IN THE INTEREST OF A. B., et al., children. IN THE INTEREST OF K. B., a child.
BARNES, P. J., MERCIER and BROWN, JJ.
these consolidated appeals, the mother and father of K.
appeal from the juvenile court's final order in a
dependency case. The mother also appeals from the same order
as it relates to M. C. and A. B.,  her two other children fathered
by different men, who are not parties in these this appeals.
In Case No. A19A0147, the mother contends that the juvenile
court erred by: (1) denying her request for a continuance to
hire counsel of her choice and (2) adjudicating the children
dependent in the absence of clear and convincing evidence
showing dependency. In Case No. A19A0148, the father asserts
that the juvenile court erred by: (1) finding K. B. dependent
because the State failed to show dependency by clear and
convincing evidence and (2) granting temporary custody of [K.
B.] to the Department of Family and Children's Services
(DFCS). For the reasons explained below, we vacate the
juvenile court's dependency and disposition orders and
remand this case with instruction.
an appeal from an adjudication of dependency, we review the
evidence in the light most favorable to the juvenile
court's judgment to determine whether any rational trier
of fact could have found by clear and convincing evidence
that a child is dependent. In the Interest of S. C.
S., 336 Ga.App. 236, 244 (784 S.E.2d 83) (2016)
(standard of review in dependency case). "In making this
determination, we neither weigh the evidence nor judge the
credibility of the witnesses, but instead defer to the
factual findings made by the juvenile court, bearing in mind
that the juvenile court's primary responsibility is to
consider and protect the welfare of a child whose well-being
is threatened. [Cit.]" (Punctuation omitted.)
Id. at 245.
Under the most recent version of Georgia's Juvenile Code,
the juvenile court may place a minor child in the protective
custody of [DFCS] where the State shows, by clear and
convincing evidence, that the child is a dependent child. . .
. Pursuant to OCGA § 15-11-2 (22), a dependent child is
defined as "a child who: (A) Has been abused or
neglected and is in need of the protection of the court; (B)
Has been placed for care or adoption in violation of law; or
(C) Is without his or her parent, guardian, or legal
custodian." But even after finding a child to be
dependent, a juvenile court can only remove a child from a
parent's custody if it finds that "the dependency
resulted from unfitness on the part of the parent, that is,
either intentional or unintentional misconduct resulting in
the abuse or neglect of the child or by what is tantamount to
physical or mental incapability to care for the child."
And "proof of unfitness must be shown by clear and
(Citations and punctuation omitted.) In the Interest of
T. S., 348 Ga.App. 263, 269 (820 S.E.2d 773) (2018).
An order entered following a hearing in a dependency
proceeding shall include findings of fact. OCGA §
15-11-111 (b) (2). Such findings of fact should be made in
accordance with OCGA § 9-11-52 (a), which provides that
a court must find the facts specially and . . . state
separately its conclusions of law. Thus, the facts must be
found specially; and the conclusions of law must be stated
separately, regardless of whether the order otherwise is
sufficient for purposes of review.
(Citations and punctuation omitted.) In the Interest of
B. G., 345 Ga.App. 167, 169 (1) (812 S.E.2d 552) (2018).
case, the juvenile court's one-page dependency order
states on the first page that "[t]he Court makes the
following findings of fact and conclusions of law. . .
[.]" This statement is followed by a recitation of
facts, some specific findings of fact interspersed
throughout, a summary of the mother's testimony, and no
separate statement of the juvenile court's conclusions of
law. Additionally, the order contains no finding whatsoever
with regard to parental unfitness, much less a separate
finding with regard to the father. See In the Interest of
C. R., 292 Ga.App. 346, 351 (2) (665 S.E.2d 39) (2008).
These deficiencies "prevent us, in this case, from
making an intelligent review of the [mother and father]'s
challenges to the sufficiency of the hearing evidence."
B. G., 345 Ga.App. at 169 (1). Accordingly, we
vacate the juvenile court's dependency ruling and
corresponding disposition order in both cases and remand them
with direction that the juvenile court prepare appropriate
findings of fact and conclusions of law and enter a new
judgment, after which another appeal may be made.
mother contends that the juvenile court erred by denying her
request for a continuance to hire counsel of her choice. We
mother points out, a party to a dependency proceeding
"shall have the right to an attorney at all stages of
the proceedings," OCGA § 15-11-103 (a), and
"shall be given an opportunity to: (1) Obtain and employ
an attorney of such party's own choice; (2) Obtain a
court appointed attorney if the court determines that such
party is an indigent person; or (3) Waive the right to an
attorney." OCGA § 15-11-103 (g). Indeed, the mother
also had "a constitutional right to be represented by
paid counsel if she so chose." Johnson v.
Hauck, 344 Ga.App. 848, 854 (2), n.13 (812 S.E.2d 303)
with the right to counsel of one's choice, comes the
obligation to "use reasonable diligence in obtaining
retained counsel. A [party] may not use a request for change
of counsel as a dilatory tactic. A refusal to grant a
continuance will not be disturbed by appellate courts unless
it clearly appears that the judge abused his discretion in
this regard." (Citations and punctuation omitted.)
Lane v. State, 299 Ga. 791, 794 (2) (792 S.E.2d 378)
(2016). See also In the Interest of K. A. P., 277
Ga.App. 794, 798 (2) (627 S.E.2d 857) (2006). Additionally,
OCGA § 15-11-110 (b) provides that "[c]ontinuances
shall be granted only upon a showing of good cause. . .
." Accordingly, the mother had a duty to show that she
exercised due diligence in attempting to hire retained
counsel as "good cause" for the grant of a
continuance. Compare OCGA § 17-8-20 (in criminal cases,
"the party making an application for a continuance must
show that he has used due diligence").
upon the particular facts and circumstances of this case, the
mother has failed to show that the juvenile court abused its
discretion in denying her request for a continuance. The
record shows that on December 4, 2017, the juvenile court
advised the mother of her right to hire counsel, seek
appointed counsel, or represent herself. When the mother
stated she wanted an attorney, the juvenile court immediately
appointed counsel for the mother and rescheduled the case for
December 7, 2017, so that her new counsel could prepare and
appear. Appointed counsel represented the mother during two
evidentiary hearings held on December 7 and December 13,
after which the juvenile court orally pronounced a finding of
unspecified "probable cause," presumably probable
cause that the children were dependent. See OCGA §
15-11-146 (a) (1) ("At the preliminary protective
hearing, the court shall determine . . . [w]hether there is
probable cause to believe a child is a dependent
child.") (punctuation omitted).
December 20, 2017, appointed counsel appeared again on the
mother's behalf at a 10-day adjudication hearing, but the
mother was not present. Because the mother had not yet been
served with a dependency petition filed two days earlier, the
juvenile court continued the adjudication until January 16,
2018. At the beginning of the January 16 hearing, the
mother's counsel advised the ...