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In re R. S. T.

Court of Appeals of Georgia

March 16, 2018

IN THE INTEREST OF R. S. T., a child.

          McMillian, Judge.

         In 2013, the biological mother of R. S. T. first appealed a juvenile court order finding her minor daughter deprived. This Court reversed the order after finding the Fulton County Department of Family and Children Services (the "Department") failed to present clear and convincing evidence of present deprivation. In the Interest of R. S. T., 323 Ga.App. 860 (748 S.E.2d 498) (2013). On remand, the Department filed a new dependency petition, [1] and the mother's rights were ultimately terminated in March 2016. The mother filed an application for discretionary appeal from this latest order, which this Court granted.[2] For the reasons that follow, we vacate and remand this case for further proceedings consistent with this opinion.

         On appeal, we review an order terminating parental rights in the light most favorable to the juvenile court's findings to determine whether any rational trier of fact could have found by clear and convincing evidence that the mother's right to custody should have been terminated. In the Interest of A. B., 311 Ga.App. 629, 629 (716 S.E.2d 755) (2011). So viewed, the record shows that R. S. T. was born in July 2012. Shortly after her birth, R. S. T. was taken into care by the Department due to concerns regarding the mother's mental health, her ability to provide for R. S. T., and the mother's non-cooperation with a case plan that had been developed for the mother's seven other children who had previously been adjudicated deprived. In the Interest of R. S. T., 323 Ga.App. at 861. The Department then filed a deprivation petition, alleging that the mother suffered from a psychotic disorder and failed to complete treatment sufficient to ensure that her older children could be returned to the home. The Department also alleged the older children had previously been subjected to a home without utilities and suffered medical neglect and other abuse, and the Department feared R. S. T. would suffer a similar fate.

         After this Court reversed the juvenile court's first order finding R. S. T. deprived, [3] the Department immediately filed a second deprivation complaint. The Department alleged the mother's oldest child had been returned to her earlier in the year but was assaulted while in her care and removed again. Following a hearing, the juvenile court found R. S. T. deprived but granted the mother temporary custody in October 2013. However, by January 2014, R. S. T. was returned to the Department's custody due to concerns regarding alcohol and physical abuse. In the fall of 2014, the Department filed a new dependency petition, and following a hearing in December 2014, the juvenile court entered an order finding that R. S. T. was a dependent child. Specifically, the juvenile court found that the mother remained unemployed, even though she was capable of finding employment, and unable to provide for the daily financial needs of R. S. T. and that her mental health issues adversely affected her ability to provide adequate care, control or supervision of the child. The juvenile court also found that the guardian of several of the mother's other children and another witness had repeatedly heard the mother curse and scream and witnessed the mother shove one of her other daughters against a wall and knee her in the stomach. Based on these and other findings, the juvenile court ordered that custody of R. S. T. remain with the Department and approved a concurrent reunification and adoption plan.

         In August 2015, the Department filed a petition for termination of parental rights, and a hearing on the petition was held in March 2016. At the hearing, the juvenile court heard testimony from multiple psychologists, three Department case workers, the court-appointed guardian ad litem, and the mother. The Department presented testimony that a case plan was developed early on wherein the mother was to maintain stable and suitable housing and sufficient income, follow all recommendations from her providers, and also undergo psychological and parental fitness assessments and take parenting classes. Angela Maxwell, the first case manager assigned to R. S. T.'s case, testified that the Department was unable to confirm in 2012 whether the mother completed the required parenting skills or psychological assessments because she refused to use the Department's providers, stating instead that she wished to use her own provider.

         A new case plan was developed in 2013 with the same goals. However, by 2014, the only goal the mother completed was attending parenting training classes. The mother was frequently verbally aggressive with members of the Department, including towards Maxwell on multiple occasions throughout her years assigned to R. S. T.'s case. In early 2015, the Department attempted to convene a family meeting to review the mother's case plan goals, but the meeting had to be stopped because the mother became "very irate and aggressive." The mother cursed at Maxwell and appeared to want to fight her physically before Maxwell left the room, and the mother left the building. Throughout this time, the mother remained without employment, receiving only social security payments, and was evicted from her apartment for failure to pay rent. She also refused to pay her required child support.

         After the mother visited R. S. T. in May 2015, she informed the visitation provider that she did not wish to visit with R. S. T. any more. The mother also told a case manager that she only wanted visitation if it was at her home and unsupervised. In July 2015, a case manager personally delivered a MARTA card to the mother so she could visit the child and participate in the services offered by the Department. While at the mother's residence, the case manager observed that it was very cluttered, that the landlord had sectioned off a portion of the living room to serve as the mother's bedroom, and that the mother had a large dog. The mother remained "very adamant" that she would not cooperate with the Department or use the services it provided. Another case manager also testified that in most of her interactions with the Department, the mother was aggressive, making it difficult to ascertain which providers the mother may have been seeing.

         In December 2015, the Department contacted the mother regarding visitation, but the mother once more reported that she would not visit her child again unless the visits were unsupervised. The mother also admitted to the new case manager that "every now and then she [smokes] marijuana" and that she was out of her prescribed medication. When the case supervisor contacted the mother later that month, the mother cursed at her and told her not to call anymore before hanging up. The mother again refused visitation with R. S. T. in January 2016. She eventually attended one visitation with R. S. T. in March 2016 but complained about the location. The Department agreed to change the location for the next visit, but the mother then cancelled the next scheduled visit.

         The current case manager testified at the termination hearing that she had visited the mother's most current residence and did not feel it was appropriate for R. S. T. as the mother was living with her boyfriend, his mother, his mother's husband, and his mother's great granddaughter in a two-bedroom apartment.[4] None of these individuals had ever met R. S. T. Although the mother stated that R. S. T. would be able to share a bedroom with the other child, she did not have a bed for R. S. T. in that room. Moreover, the Department did not have any information regarding the other adults residing in the home, and the mother did not have a lease or other legal arrangement with either the landlord or legal tenant to live there with R. S. T. She had moved in only two weeks prior to the hearing after she and her prior landlord had "an issue." When questioned by her own counsel about her future plans with her boyfriend, the mother became argumentative and repeatedly replied, "It's none of your business."

         Dr. Andrew Gothard, a psychologist who performed a psychological and parental fitness evaluation on the mother, [5] testified that he learned through his interview with her that she was not employed and relied solely on social security benefits. She also had zero social support, meaning she had neither family nor friends that she could rely on for assistance, save one member of her church and professionals who were providing services to her. She admitted to drinking vodka at least once per week but refused to clarify the frequency or the quantity. She also admitted to smoking marijuana "socially." Gothard was particularly struck by the mother's proud assertion that - despite having nine children in total from five different fathers and her problems with caring for those children - she intended to have additional children.

         Gothard further testified that, although the mother acknowledged a prior history of mental health issues, she was "vague and guarded" in her description. At one point during the testing, her mood shifted very dramatically and inexplicably. She told Gothard, "I'm not with game playing now; I'm getting irritated; now I'm getting aggressive; you just ask me straight up." The mother denied any current significant mental health issues, but reported taking Seroquel, which would not typically be prescribed absent a mental health concern. Gothard found the mother's behavior to be suggestive of bi-polar disorder and her test scores indicative of antisocial behavior. However, although her prior records included diagnoses of bipolar disorder, psychotic disorder, personality disorder, anxiety disorder, and depressive disorder, Gothard did not feel he could give a definitive diagnosis due to the mother's defensiveness, inconsistent responses, and refusal to complete all the testing. Therefore, he advised that the mother should "continue to receive any and all mental health and allied support services that were in place, " including psycho-therapy, psychiatric medication, and substance abuse treatment if needed.

         Dr. Carolyn Johnson, a clinical psychologist who performed a bonding assessment on R. S. T. and her foster parents, testified that it is critical that children form attachments before age three. At four years of age, children begin taking their secure attachments into the world and must know that they have a "secure base" that will be there for them. R. S. T., who was approaching four years old, had been living with her foster parents for approximately 18 months. Johnson found R. S. T. was very attached to her foster parents and demonstrated that she considered them to be a secure attachment, able to meet her needs and to provide a safety net and source of support. Johnson testified that if R. S. T. did not maintain this permanency, "breaking the attachment she has to her foster parents [would] be a problem for her." Breaking this attachment at R. S. T.'s age is a traumatic process that can cause grief, anger, depression, and feelings of hopelessness. Johnson explained that children with a disrupted attachment also have a greater chance of developing problems later in life, such as difficulty making and keeping friends, anxiety, diminished coping skills, and involvement in delinquency. Johnson also testified that a lack of visits or irregular visits are another cause of concern for R. S. T. The current case manager also testified that R. S. T. had a "very strong relationship" with her foster parents, who wished to adopt her.

         Deborah Higgins, the mother's therapist, testified that she is working with the mother on regulating her emotions and anger management issues. According to Higgins, relationships remain a struggle for the mother because she suffers from a personality disorder that requires a lengthy therapeutic treatment course. Higgins is also treating the mother for her current diagnosis of major depression. The mother is currently taking Depakote, which Higgins acknowledged is often prescribed to treat bipolar disorder, which Gothard had testified was one of the mother's prior diagnoses. Higgins counseled the mother against stopping her visitation with R. S. T., but she did not heed the advice.

         The mother also testified at the hearing. She claimed that she recently began work as a child care assistant two weeks prior to the hearing, but refused to provide the company's name and would not explain how she applied for the job or came to get the job. She received $652 in social security benefits and $56 in food stamps per month. She claimed that she was currently compliant in taking her medication, which helped her remain calm, and that she received mental health counseling for her anger management issues. She ceased taking the Seroquel and was no longer taking any medication for bipolar disorder.

         At one point during her testimony, the mother left the witness stand, declaring that she did not want to answer any more questions. She eventually returned when the court intervened and told her to return to the stand, but again refused to respond to questions from R. S. T.'s attorney. When the juvenile court questioned the mother, she admitted to her lack of visitation with R. S. T., stating "I've just been wanting to have my time with her without it being an inconvenience."[6] When asked how she felt her lack of visitation for over six months affected R. S. T., the mother responded, "I don't know if it did or not."

         On April 25, 2016, the juvenile court entered an order terminating the mother's parental rights. The mother filed a motion for new trial, which the juvenile court denied. This appeal followed.

         1. We begin by noting that "[t]erminating a parent's rights, and thus forever foreclosing the possibility of restoring the natural parent-child relationship, is governmental extinguishment of the parent and child's constitutional right to familial relations." (Citation and punctuation omitted.) In the Interest of S. O. C., 332 Ga.App. 738, 743 (774 S.E.2d 785) (2015). Thus, "our analysis is guided by an overarching constitutionally based principle that the termination of parental rights is a remedy of last resort which can be sustained only when there is clear and convincing evidence that the cause of the [dependency] is likely to continue." Id. at 742.

         A juvenile court's termination of parental rights involves a two-step process. First, the court must determine whether at least one of the five statutory grounds for termination enumerated in OCGA § 15-11-310 (a) has been met. Here, the Department proceeded under OCGA § 15-11-310 (a) (5), which provides a ground for termination when:

A child is a dependent child due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied, and the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child.[7]

         In her first and second enumeration of errors, the mother argues that there was insufficient evidence to show that R. S. T. was dependent due to a lack of proper parental care and control and that, if she were dependent, there was insufficient evidence to show that any dependency was likely to continue. We disagree as to both contentions.

         (a) In assessing whether a child is dependent due to lack of proper parental care and control, the juvenile court may consider, inter alia, the following factors:

A medically verified deficiency of [the] parent's physical, mental, or emotional health that is of such duration or nature so as to render such parent unable to provide adequately for his or her child; . . . Excessive use of or history of chronic unrehabilitated substance abuse with the effect of rendering a parent . . . incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of his or her child; . . . [and] . . . Physical, mental, or emotional neglect of his or her child or evidence of past physical, mental, or emotional neglect by the parent of such child or another child of such parent[.]

OCGA § 15-11-311 (a) (1), (2), & (5). And in making this determination when the child is not in the custody and care of his or her parent, the court must also consider whether the parent has significantly failed, without justifiable cause, for a period of six months prior to the date of the termination hearing:

(1) To develop and maintain a parental bond with his or her child in a meaningful, supportive manner; (2) To provide for the care and support of his or her child as required by law or judicial decree; and (3) To comply with a court ordered plan designed to reunite such parent with his or her child.

OCGA § 15-11-311 (b).

         The record here clearly supports the juvenile court's finding that R. S. T. was currently dependent at the time of the hearing. As summarized above, the mother failed to maintain visitation with R. S. T. from May 2015 to March 2016, with only sporadic visitation prior to May 2015.[8] She also failed to provide child support, refused to provide proof of her income, and was currently living in a two-bedroom home with four other individuals, none of whom had been screened by the Department or ever met R. S. T. See In the Interest of B. D. O., 343 Ga.App. 587, 591 (1) (807 S.E.2d 507) (2017) (parent's failure to pay child support is compelling evidence she is not an able parent); In the Interest of P. D. W., 296 Ga.App. 189, 194 (1) (b) (674 S.E.2d 338) (2009) (Georgia law requires parents to financially support their children while in foster care, even absent a court order, and even if unable to earn income). Significantly, the mother suffered from serious mental health issues, which she denied, even though she was taking some medication and receiving some counseling. See In the Interest of S. P., 336 Ga.App. 488, 497 (2) (a) (784 S.E.2d 846) (2016) (affirming finding of dependency where mother was unable or unwilling to address her psychological issues).

         The mother asserts that at the time of the hearing, she had made "measurable strides" in meeting her case plan goals. However, we have repeatedly acknowledged that "in considering past deprivations compared to present achievements, juvenile courts are entitled to assign much less weight to such assertions of sudden parental fitness when compared to other evidence." (Citation and punctuation omitted.) In the Interest of S. O. C., 332 Ga.App. at 744 (2). See also In the Interest of A. S., 339 Ga.App. 875, 880 (2) (794 S.E.2d 672) (2016) (juvenile court entitled to weigh mother's credibility).

         The mother also argues that the juvenile court should have given more or less weight to the testimony of certain witnesses. However, this argument is without merit. "On appeal, this Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court's factfinding and affirm unless the appellate standard is not met." In the Interest of A. A., 252 Ga.App. 167, 169 (2) (555 S.E.2d 827) (2001).

         (b) The record also supports the juvenile court's findings that the dependency was likely to continue. At the time of the hearing, the mother had only very recently moved into her boyfriend's mother's home and refused to provide any information about their relationship or their intentions. Because the mother's housing was completely dependent on her relationship with her boyfriend and her boyfriend's mother, and the mother refused to provide any information about those relationships, her housing could not be considered stable. See In re A. R., 302 Ga.App. 702, 709 (1) (c) (691 S.E.2d 402) (2010). Moreover, "[l]ast-minute efforts to obtain stable housing, especially those that take place after the termination petition is filed, are of questionable significance and sincerity." (Citation and punctuation omitted.) In the Interest of P. D. W., 296 Ga.App. at 195 (1) (c) (noting this is particularly true where the newly found housing "depends on the continuation of a relationship with a new boyfriend").

         The mother also refused to provide proof of her income or her job, which she had only very recently obtained. Juvenile courts are authorized to find that a "parent['s] conduct over the years was a better predictor of [her] future conduct than a few months of partial stability." (Citation and punctuation omitted.) In the Interest of C. H., 305 Ga.App. 549, 561 (2) (c) (700 S.E.2d 203) (2010). Thus, judging the credibility of the mother's good intentions was a task for the juvenile court. In the Interest of L. P., 339 Ga.App. 651, 655-56 (1) (749 S.E.2d 252) (2016). See also In the Interest of M. N. R., 282 Ga.App. 46, 47 (637 S.E.2d 777) (2006) ("The decision as to a child's future must rest on more than positive promises which are contrary to negative past fact.") (citation and punctuation omitted).

         Finally, in addition to the lack of stable housing and income, given the mother's continued aggression with Department case workers, her refusal to complete all portions of the required psychological evaluation, and her refusal to provide answers to various questions at the hearing, the juvenile court did not err in finding R. S. T.'s dependency is likely to continue. Accordingly, this enumeration of error fails. See In the Interest of M. S. S., 308 Ga.App. 614, 621 (2) (a) (708 S.E.2d 570) (2011) ("mother's failure to make any significant progress toward achieving the goals of stable employment and stable housing, standing alone, was sufficient to support the juvenile court's finding that the cause of [the child]'s deprivation was likely to continue"). See also In the Interest of J. J. J., 289 Ga.App. 466, 469-70 (657 S.E.2d 588) (2008) (deprivation likely to continue when appellant had medically verifiable deficiency of mental or emotional health, failed to support the child, failed to comply with reunification plan, and failed to establish bond).

         2. The mother next asserts, without citation of authority in support, that the trial court erred in admitting Johnson's testimony regarding her bonding evaluation because Johnson relied on hearsay statements and because her opinion went to the ultimate issue of whether termination is in the best interests of R. S. T. We disagree.

         Johnson, who was tendered as an expert on child psychology and attachment and bonding without objection, explained that she formed her opinions based on three components: interview, observation, and testing. She also testified that the methods she uses and the information she gathers are of the type regularly used by others in her profession. OCGA § 24-7-703 provides that if the facts or data relied upon by an expert are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts or data need not be admissible in evidence in order for the opinion or inference to be admitted." In addition, the testimony of an expert in the form of an opinion is not objectionable on the grounds that it embraces an ultimate issue to be decided by the trier of fact. See OCGA § 24-7-704 (a). Accordingly, this enumeration of error fails.

         3. The mother also argues that, even if Johnson's testimony was properly admitted, the Department failed to prove that any continuing dependency is likely to cause serious harm to R. S. T. We are constrained to agree.

         Pursuant to OCGA § 15-11-311 (a) (5), a juvenile court may only terminate parental rights based on dependency upon finding by clear and convincing evidence that the "continued dependency was likely to cause serious physical, mental, emotional, or moral harm" to the child. In making this determination, the court must assess two scenarios: (1) "the likelihood of harm if the child returns to the custody of his parent, notwithstanding that the deprivation persists" and (2) "whether a child currently in foster care is likely to suffer serious harm as a result of continued dependency if the child remains indefinitely in foster care[.]" In the Interest of A. S., 339 Ga.App. at 881 (3). The Department must show that both scenarios would likely cause serious harm in order for a termination of parental rights to be justified. Id. That is because "whether returning the child to the parent would cause harm matters little if there is no evidence that the child is likely to experience serious harm under the status quo." In the Interest of E. M. D., 339 Ga.App. 189, 201-02 (2) (b) (793 S.E.2d 489) (2016).

         Moreover, "an order terminating parental rights must contain explicit findings supporting the conclusion that continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child." (Citation omitted.) In the Interest of A. S., 339 Ga.App. at 881. Merely reciting the legal standard and that it was met is not sufficient. Id. "Instead, the juvenile court must ascertain the facts and state not only the end result of that inquiry but the process by which it was reached." (Punctuation and citation omitted.) Id.

         At the outset of our review, we note that the trial court made no specific finding that continued dependency will cause or is likely to cause serious harm to the child, merely reciting the legal standard without any factual underpinning. We have reversed termination orders on this basis. See In the Interest of E. M. D., 339 Ga.App. at 205 (2) (b) ("In keeping with these requirements of specific findings by clear and convincing evidence of serious harm, we have reversed termination orders unsupported by evidence of particularized findings of harm experienced by the children while in foster care."). However, we exercise our discretion to continue our review to determine whether the record contains clear and convincing evidence that R. S. T.'s continued dependency was likely to cause harm.

         Here, under the first scenario, the record supports a finding that R. S. T. would suffer serious harm if she were returned to her mother. Given the mother's lack of stable housing and lack of income, it is likely that she would continue to fail to provide for her child. The mother's ongoing mental health issues, aggression, and violence toward another child also support that R. S. T. would suffer harm if returned to her mother. See In the Interest of C. L., 315 Ga.App. 607, 612 (1) (b) (727 S.E.2d 163) (2012). But that does not end the inquiry because OCGA § 15-11-311 (a) (5) "requires the State to show that continued dependency - not merely a specific arrangement for the child - will cause harm. Dependency will cause harm only if all of the options available to DFCS short of termination - keeping the child in foster care, or returning the child to the parent - will themselves cause harm." In the Interest of E. M. D., 339 Ga.App. at 201 (2) (b).

         Turning to the second scenario, "[i]n considering whether there is evidence that remaining in foster care will cause serious harm to a child, we have examined both (1) the extent to which instability and impermanency are currently causing specific harms to the child and (2) whether the parent's current relationship with the child is itself detrimental." (Citation and punctuation omitted.) In the Interest of E. M. D., 339 Ga.App. at 202 (2) (b). We do not find any evidence in the record, nor did the trial court make any specific factual finding, as to these factors or generally that remaining in foster care would likely cause serious harm to R. S. T.

         To the contrary, Johnson, a bonding and attachment expert, and the current case worker testified about the strong and positive relationship R. S. T. has with her foster parents and in particular, Johnson opined that R. S. T. is moving into a stage "at which forming attachments is very critical" and that permanancy is important because "the potential for breaking the attachment that she has to her foster parents will be a problem for her." However, Johnson did not opine that the instability and impermanency of foster care were currently causing any specific harm to R. S. T.[9]Moreover, there was no other evidence presented that R. S. T. suffered any emotional stress or sadness from the instability and impermanency associated with foster care. Cf. In the Interest of E. M. D., 339 Ga.App. at 205 (2) (b).

         And although Johnson noted that the mother's lack of visitation was a cause for concern because there was only a tenuous bond between R. S. T. and her mother, she testified that she did not test R. S. T., who was three and a half years old at the time, to see whether she knew her mother or whether she had the cognitive capacity to recognize and remember that her mother had not been visiting her. Thus, there was no evidence that the mother's current relationship with R. S. T., or lack thereof, was adversely affecting R. S. T. Cf. In the Interest of E. M. D., 339 Ga.App. at 202 (2) (b) ("in many of those cases, the evidence also would support a finding that the parent's relationship with the child, or lack thereof, is such that maintaining the status quo of foster care with a continued parental relationship would also be harmful"). Accordingly, we find that the Department has failed to carry its burden to support by clear and convincing evidence that R. S. T. would likely be seriously harmed if she were to remain in foster care.[10]

         4. However, although neither party has squarely raised the issue of abandonment on appeal, from our review of the record, it is clear that the Department asserted, albeit cursorily, and the juvenile court agreed, that termination of the mother's parental rights was also proper under OCGA § 15-11-310 (a) (4), which provides that termination of parental rights is authorized when "[a] child is abandoned by his or her parent." OCGA § 15-11-2 (1) defines "abandonment" or "abandoned" to mean "any conduct on the part of a parent, guardian, or legal custodian showing an intent to forgo parental duties or relinquish parental claims." This intent may be evidenced by:

(A) Failure, for a period of at least six months, to communicate meaningfully with a child;
(B) Failure, for a period of at least six months, to maintain regular visitation with a child;
. . .
(H) Any other conduct indicating an intent to forgo parental duties or relinquish parental claims.

Id. See In the Interest of B. D. C., 256 Ga. 511, 512 (350 S.E.2d 444) (1986).

         Here, the Department claimed in its petition for termination that R. S. T. had been abandoned by her mother and putative biological father. Although the focus of the hearing was on whether the Department satisfied its burden under OCGA § 15-11-310 (a) (5), the Department argued briefly in closing that the mother had abandoned the child. And after reciting ...

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