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In re J. G.

Court of Appeals of Georgia, Fourth Division

June 19, 2019

IN THE INTEREST OF J. G., a child.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          MARKLE, JUDGE.

         The father of J. G. appeals the juvenile court's order finding J. G. ("the child") to be dependent and granting custody to the child's maternal grandmother. In so doing, the father contends that (1) the court erred in its finding of dependency because there was no clear and convincing evidence the child was dependent; (2) the court should have extended him a case plan for reunification with the child; and (3) the court made no finding that he was unfit to have custody prior to awarding custody to a third party. For the reasons stated below, we conclude that the juvenile court's order fails to sufficiently explain its conclusion as to dependency and third-party custody. Therefore, we vacate the juvenile court's order on dependency and custody and remand the case for further proceedings consistent with this opinion.

On appeal from an order finding a child to be a dependent child, we review the juvenile court's finding of dependency in the light most favorable to the lower court's judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child is dependent. 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.

         (Citation and punctuation omitted.) In the Interest of R. D., 346 Ga.App. 257, 259 (1) (816 S.E.2d 132) (2018). Furthermore, "there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one's children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances." (Citation omitted.) In the Interest of D. M., 339 Ga.App. 46 (793 S.E.2d 422) (2016).

         So viewed, the record shows that, in November 2016, the Division of Family and Children Services ("DFCS") investigated a report of inadequate supervision of the then six-month old child after her mother allegedly poisoned both her and the father by putting sulfur in their food. The father took the child to the hospital, where he was met by DFCS personnel. Following a medical exam, and after speaking with the father, DFCS initially released the child into the father's custody, but subsequently removed the child and placed her with a family friend.

         In January 2017, the child's maternal grandmother filed a deprivation petition against both parents, alleging that the child was dependent due to (1) the mother's history of drug abuse, erratic behavior, and arrest for attempting to poison the father and child; and (2) the father's lengthy criminal history, lack of employment, lack of stable housing, and inability to provide proper medical care for the child.[1] DFCS also filed a deprivation petition on behalf of the child.

         Following an initial custody hearing, the juvenile court placed the child in the temporary custody of DFCS. The court issued a preliminary protective order, finding probable cause that the child was dependent due to abuse and neglect, and that the child was in need of the court's protection. At the custody and detention hearing, the father, proceeding pro se, stipulated to the child's dependency, allowing the child to remain in DFCS's custody. The court also ordered the father to submit to a hair follicle drug test.

         At a subsequent hearing, at which the father was represented by counsel, the father withdrew the stipulation to dependency. DFCS also declined to stipulate that the child was dependent. A child protective services investigator testified that DNA testing revealed the father to be the biological father. According to the investigator, the father was residing with his brother and niece, and he was currently employed. The investigator reported that the father's urinalysis drug screen test came back negative. On this basis, DFCS recommended the child be returned to the father. Although the juvenile court initially granted the father custody, it then vacated that order based on the prior stipulation of dependency. Thereafter, the father legitimated the child.

         At a custody hearing, an officer testified that the father had been accused and charged with child molestation approximately 20 years ago, and that he subsequently pled guilty to misdemeanor battery. The officer, however, had not observed any interaction between the father and child. The court also heard other evidence of the father's lengthy criminal history, all occurring prior to the child's birth, and none of which involved children. Another officer, who investigated the alleged poisoning of the father and the child, testified that, during his interactions with the father, he appeared to be paranoid and under the influence of drugs.

         A DFCS worker advised the court that the child was not dependent, and recommended that DFCS's custody be terminated and the child returned to the father. He further advised that the father had no stipulations with regard to the prior child molestation charge that would prohibit him from being with his child. The child's mother also testified, stating that she felt the father was the best person to care for the child.

         At a subsequent hearing, the juvenile court appointed a special advocate ("CASA"), who recommended non-reunification and that the child be placed with the maternal grandmother, and that the father be allowed visitation rights. The CASA admitted she had not visited the father's residence. The father's hair follicle drug screening test came back positive for amphetamine, methamphetamine, and cocaine. The attorneys for the father, mother, and DFCS all agreed that the father should be allowed to work a case plan in order to be reunited with the child. However, the juvenile court awarded custody to the maternal grandmother, with supervised visitation for the parents, and denied the father's request to work a case plan. This appeal followed.[2]

         1. The father argues the juvenile court erred in finding dependency because there was no clear and convincing evidence to support such a finding.[3] We conclude that the juvenile court's order is insufficient and, therefore, we must vacate the court's order, and remand the case with the direction that the court make the appropriate findings of fact.

         An order entered following a dependency hearing "[s]hall include findings of fact which reflect the court's consideration of the oral and written testimony offered by all parties. . . ." OCGA § 15-11-111 (b) (2). "[T]he juvenile court is required to make factual findings and state not only the end result of that inquiry but the process by which it was reached." (citation and ...

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