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In re M. S.

Court of Appeals of Georgia, Third Division

October 11, 2019

IN THE INTEREST OF M. S., a child.

          DILLARD, P. J., GOBEIL and HODGES, JJ.

          Gobeil, Judge.

         Jessica Flood, the mother of M. S., appeals from the Whitfield County Juvenile Court's order finding M. S. dependent as to both parents[1] and awarding temporary custody to M. S.'s paternal grandparents. In her sole enumeration of error, Flood argues that the dependency finding was not supported by clear and convincing evidence. For the reasons explained below, we agree and reverse.

         The record shows that on September 14, 2018, the Whitfield County Department of Family and Children Services ("the Department"), filed a dependency petition, alleging that M. S. (then 1 year old) was a dependent child in need of the State's protection for the following reasons: (1) Flood had other children that were currently in foster care; (2) M. S.'s legal father, Justin Flood, was incarcerated, and the location of M. S.'s putative biological father, Jeremy ("Jeremy"), was unknown; (3) on August 2, 2018, a drug screening of Flood's hair follicle was positive for methamphetamine, cocaine, and benzodiazepine; (4) there were ongoing concerns about the condition of Flood's home, which was "extremely nasty"; (5) Flood was recently evicted and was uncertain of where she would be living; (6) Flood had a temporary protective order ("TPO") against Jeremy due to domestic violence; and (7) M. S. was previously "safety planned" to her paternal grandparents, Andrea and Michael White, both of whom had been involved with M. S. her entire life, and were approved by the Department for placement and willing to assume custody of M. S. Accordingly, the Department requested that custody of M. S. be vested with the paternal grandparents and that a guardian ad litem ("GAL") be appointed. The juvenile court subsequently appointed a GAL for M. S.

         Two months later, a hearing on the dependency petition was held on November 29, 2018. The Department called Jeremy, M. S.'s case manager, and M. S.'s paternal grandmother as witnesses. Jennifer King, a case manager with the Department, testified that she became involved with M. S. on August 14, 2018, after the Department received a report from a foster care case manager that "there were concerns for the home conditions and [that] the mother had tested positive [for drugs] on her hair follicle." Specifically, a drug screening of Flood's hair follicle in August 2018 tested positive for methamphetamine, cocaine, and benzodiazepine. A repeat screening on October 2, 2018, tested positive for benzodiazepine and cocaine, but at a lower level.[2] King admitted that the Department had not conducted any further hair follicle or urine drug screenings of Flood since October 2, 2018.

         King also testified that Flood had "a lengthy history" with the Department which she reviewed as part of her investigation, and that, at the time of her investigation, there was a pending proceeding to terminate Flood's parental rights to another child.[3] King testified that she also reviewed the allegations in the TPO with Flood, and Flood confirmed that all of the allegations were true and that she was "fearful" of Jeremy.

         As part of her investigation, King performed a walk-through of Flood's apartment. King observed that the apartment was cluttered, there was no bed for M. S. (Flood indicated that she had been sleeping on the couch with M. S.), "[t]here wasn't a whole lot of food in the home, and the kitchen was pretty messy with dishes and food . . . [and King's] feet [stuck] to the floor." King indicated that M. S. was crawling on the sticky floor, and that there was an odor coming from the apartment, but she did not describe the odor. When King questioned Flood about the condition of the apartment, Flood indicated that she had not cleaned because "she had been working." Flood denied that she was being evicted, and indicated that the action had been dropped based on an agreement she reached with her landlord to pay extra money each week until she "caught up" on the rent. However, King spoke with Flood's landlord and the landlord denied having any payment arrangement with Flood. King informed Flood that the action had not been dropped and that Flood was going to be evicted. Because Flood was being evicted and had nowhere to go with M. S., King requested legal custody of M. S. on behalf of the Department, but the request was denied.[4] As an alternative, the Department safety planned M. S. to Jeremy's parents on August 14, 2018. King testified that M. S. already had a relationship with the Whites, as "[t]hey had kept her several times for long periods." King indicated that the Department was requesting that legal custody of M. S. be transferred to the Whites.

         On cross-examination, King acknowledged that, a few weeks after being evicted, Flood obtained a new apartment around September 18, 2018. A walkthrough of the new apartment revealed that it met Department standards. Specifically, "[i]t was clean and furnished[, including a baby bed, ] and had some safety devices in place." When asked why the Department wanted to place M. S. with her paternal grandparents, even though Flood had obtained a stable home and had a job, King stated, without further elaboration, that the Department's "concern [was] that [Flood] has failed to maintain housing for long periods of time."

         M. S.'s putative biological father, Jeremy, [5] testified that he was 25 years old, M. S. was his only child, and he had never been married. He explained that he and Flood lived together until she obtained a TPO against him in July 2018, although she subsequently voluntarily dismissed the TPO. With regard to the allegations in the TPO, Jeremy admitted that he had pushed Flood; broken several of her cell phones; taken her backpack and prevented her from getting it back; punched walls; held her down; locked her in the house so she could not leave because he was trying to talk to her; got angry when he was driving and tried to scare her; and attempted suicide by hanging in front of her to scare her. However, he denied that he had ever been physically violent; threatened her with a knife; pushed her down the stairs; choked her; pulled her hair; punched holes in the walls; or threatened to drive their car off of a mountain with her in it. Jeremy stated that Flood was never violent towards him and never hit, pushed, or threatened him. He and Flood separated in mid-July 2018, "right before" she obtained the TPO. He explained that since the dismissal of the TPO, the two remained friends. When asked about whether he would consider reconciliation, Jeremy stated "if it happens, it happens. If it don't, it don't." Jeremy maintained that his friendship with Flood was "good" and that they currently did not argue or fight. He explained that since he and Flood separated in mid-July, he had been living with various friends and traveling around the country on his friend's motorcycle. He currently lived with a friend in the apartment next door to Flood, and had been there for approximately one month. He indicated that he had plans to get his own residence, although he did not have a set timeline for doing so. He worked for Wood Hollow Cabinets, and had been employed there for approximately two months. He indicated that he was making approximately $300 to $500 a week.

         Jeremy admitted that he had not been paying his parents any support even though M. S. had been in their custody for the last few months. However, on at least one occasion while M. S. was in his parents' custody, he bought some baby wipes and an outfit for her. Jeremy maintained that he told his parents to let him know "if they needed anything" for M. S., but they had not asked him to help with anything. He visited with M. S. every other Saturday at his parents' home. Jeremy testified that he planned to continue being a part of M. S.'s life, to pursue legitimation, and that he wanted to do what was in M. S.'s best interest. Jeremy stated that he believed it was in M. S.'s best interest to be with Flood.

         The Department noted that Jeremy submitted to a urine and hair follicle drug screening in October 2018. The urine test was positive for marijuana, and the hair follicle test was positive for methamphetamines and morphine. Jeremy denied knowing that his test was positive for morphine and denied using morphine. He asserted that the last time he used methamphetamines was over a "year ago." Jeremy denied that Flood used methamphetamines or any drugs at all.

         Andrea White ("Andrea"), M. S.'s paternal grandmother, testified that M. S. was born June 15, 2017, and she had been very involved in M. S.'s life from birth. She first starting keeping M. S. when she was approximately nine days old, and kept her at least every weekend because it was important to Andrea and Michael that M. S. go to church. However, they would drop M. S. off at Flood's and Jeremy's home either Sunday night or on Monday. Andrea testified that beginning in January 2018, they started keeping M. S. for longer periods of time, sometimes keeping her for two or three weeks without any contact with either Flood or Jeremy. Andrea did not elaborate as to how often these multi-week stays occurred. Rather, she stated that generally Flood would drop M. S. off on Friday, the Whites would keep her through the weekend, and Flood would pick her up on Monday. When asked whether they had the child more than Flood, Andrea stated it was as if they shared "joint custody" of M. S.

         Andrea further testified that she had concerns about her son's relationship with Flood because he had anger issues, and he and Flood seemed to argue a lot. Additionally, Flood told her that Jeremy had broken several of Flood's phones, and sometimes would prevent Flood from leaving the house after an argument. Andrea confirmed that she was bonded with M. S. and she and her husband were willing to care for M. S. until one or both of M. S.'s parents were stable. When asked about whether she had "any concerns about drug use," Andrea testified that she knew her son used marijuana. She did not express any drug use concerns with regard to Flood.

         Andrea confirmed that she had visited Flood's old apartment. When asked whether she had "any concerns about the cleanliness or neatness of the home," Andrea stated that "[t]he only thing that I honestly noticed was the spare bedroom had a very bad like cat urine smell." However, she explained that Flood and Jeremy did not have a cat although they had a dog at one time, and had tried using air fresheners and deodorizers to help with the smell. She testified that in her opinion, Flood's and Jeremy's old apartment was "not unsafe," but noted that they "never had a lot of food in [the] home."

         On cross-examination, Andrea testified that she recently asked both Flood and Jeremy if they would buy diapers and wipes for M. S., and that Jeremy bought some baby wipes and an outfit. She also stated that Jeremy told her that he was the one that did most of the care taking of M. S. when he and Flood were together. However, Andrea confirmed that she had not personally witnessed this, and that most of her interactions with Flood and Jeremy were at "a pick-up or a drop-off, . . . [s]o there wasn't a whole lot of witnessing who was doing what." Andrea confirmed that since M. S. had been placed with them, there had been no change in her. Rather, M. S. was "just like she always was, quite happy, pleasant."

         After the Department rested its case, Flood moved to dismiss the dependency petition, arguing that the Department failed to meet its burden of showing that M. S. would be dependent if returned to her custody in light of the fact that the Department admitted the mother's current apartment was adequate, she had a job and stable income, visited with M. S. regularly, and the Department had not conducted a recent drug screening. Jeremy also joined in Flood's motion. The court denied the motion, noting that "[i]t is [a] fairly close" call, but that the court was concerned about many of the domestic violence allegations in the ...

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