IN THE INTEREST OF M. S., a child.
DILLARD, P. J., GOBEIL and HODGES, JJ.
Flood, the mother of M. S., appeals from the Whitfield County
Juvenile Court's order finding M. S. dependent as to both
parents 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.
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.
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. King admitted that the Department had not
conducted any further hair follicle or urine drug screenings
of Flood since October 2, 2018.
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. 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.
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. 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
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."
S.'s putative biological father, Jeremy,  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.
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
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.
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.
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.
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."
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,
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 ...