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In re V.G.

Court of Appeals of Georgia, Third Division

October 22, 2019

In the Interest of V.G., a child.

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

          HODGES, JUDGE

         The mother of two-year-old V. G. appeals the juvenile court's order finding V. G. to be a dependent child and granting temporary custody to the Fulton County Department of Family and Children Services (the "Department"). The mother argues that the juvenile court lacked the requisite clear and convincing evidence to support its findings that (1) V. G. is a "dependent child" within the meaning of OCGA § 15-11-2 (22), (2) the mother is an unfit parent, and (3) the Department took reasonable efforts to preserve or reunify the family pursuant to OCGA § 15-11-202. Because the evidence is insufficient to support a finding that the mother has lost her right to custody of the child, we reverse.

         The record shows that V. G. was born on April 7, 2017. He has a pediatrician, is current on vaccinations, and does not have special needs. The mother's involvement with the Department began around August 21, 2018, when the mother contacted a community agency seeking help because she did not have adequate housing. The agency referred her to the Department, and the mother was "compliant" and "cooperative" as the Department assisted her in getting into a shelter. The Department case manager testified that when she saw V. G., he was appropriately clothed and not underweight or malnourished. According to the case manager, V. G. was "appropriately bonded" with his mother: she "interacted with him appropriately," and he "reache[d] for her and look[ed] to her for comfort." The mother receives $750 in social security income benefits each month and $190 in food stamps.

         The mother subsequently lost her shelter bed after missing curfew because her bus was late. The mother contacted "a lot" of shelters, but was unable to secure a spot, so she went to Grady Hospital to request help from a social worker that she had previously seen a number of times. The Grady social worker reported the incident to the Department. Concerned with the mother's lack of stable housing and a comment the mother made about being overwhelmed, the Department filed a dependency complaint on September 7, 2018. Although housing was the primary safety concern prompting removal, and the Department conceded at the dependency hearing that "at the time of the removal [the mother's] mental health was not a concern[, ]" the Department's dependency complaint nonetheless listed concerns regarding the mother's alleged bipolar schizophrenia diagnosis, a potential mental breakdown by the mother, and an older child in foster care.

         On September 10, 2018, the juvenile court issued a dependency removal order, finding as follows: "Mother requested that [the] child come into care as she is feeling overwhelmed due to an untreated/unmedicated diagnosis of bipolar-schizophrenia; mother has no housing and recently lost her bed [at] a homeless shelter." Based on these findings, the juvenile court concluded that removing V. G. from his mother's care was necessary to protect him, and the court awarded custody to the Department. The Department decided there would be no reunification plan for the mother.

         Four days later, the Department filed a dependency petition, and the juvenile court held a hearing on the matter on September 24, 2018. Two witnesses testified at the hearing: the Department case manager and the mother. Regarding housing, the mother testified, and the child's advocate confirmed, that the mother and V. G. could stay with the mother's sister until they found another place to stay. When initially asked, the Department case worker indicated at the dependency hearing that the mother's sister was not willing to be a resource for the child. However, later during the hearing, the case worker conceded that V. G.'s mother's sister recently stated she was willing to be a resource, but the Department had not had time to follow-up with her. The mother's sister did not testify at the hearing, but, according to the case worker, "if [the mother's] sister, the maternal aunt, was willing and able to be a placement resource, [that would] resolve the issue with the Department in regards to [the mother and the child] having housing." The juvenile court, however, concluded in its dependency order that the mother was unable to provide an adequate home, finding her claim that the mother's sister was an available placement resource for her and the child to be "not . . . credible."

         As for the mother's alleged mental health issue, the diagnosis, if any, is unclear from the record. The mother allegedly reported to the case manager that she had been diagnosed by her school as "schizophrenic bipolar" when she was approximately three or four years old, but the mother also stated that she had never had the diagnosis confirmed or taken medication for any mental health disorder. The case manager admitted that she does not have any information regarding the mother's diagnosis or any proof confirming that the mother has been diagnosed with or treated for any mental health issue. Moreover, the Department did not present expert testimony on the alleged diagnosis or otherwise show that the mother suffered from any symptoms of a mental health condition.

         The mother's attorney and the child's advocate both argued at the dependency hearing that the Department had not met its burden of proof. According to V. G.'s child advocate, the mother

came to the Department for assistance and it seems like we're penalizing her for coming to the Department for assistance. This child is one year old. There's no evidence there have been any harm or hurt to this child. . . . And the safety concerns that they're saying, there is just no evidence that matches that. At the preliminary protective hearing there was no mention that mental health was even an issue; it said that Mom was overwhelmed and that she didn't have housing. Homelessness alone and poverty alone is not enough to keep removing children. . . . I think [the mother] does deserve the ability and the opportunity to continue to parent her child.

         The juvenile court, nevertheless, found V. G. dependent, transferred custody to the Department, and found the Department made reasonable efforts to eliminate the need to remove the child from his home and to reunify the child with his family. The mother appeals.

         1. In two related enumerations of error, the mother argues that the juvenile court lacked clear and convincing evidence to sustain a finding that V. G. is a dependent child under OCGA § 15-11-2 (22) or that she is an unfit parent. Because "parental unfitness is essential to support an adjudication of [dependency]," In the Interest of D. H. D., 289 Ga.App. 32, 35 (656 S.E.2d 183) (2007) (citation omitted), [1] we have consolidated these issues to facilitate our analysis.

         Under OCGA § 15-11-2 (22), a "dependent child" is defined as a child who (a) has been abused or neglected and is 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. A juvenile court "may place a minor child in the protective custody of the Department where the [Department] shows, by clear and convincing evidence, that the child is a 'dependent child.'" (Citation omitted.) In the Interest of H. B., 346 Ga.App. 163, 164 (1) (816 S.E.2d 313) (2018).

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).

Proof of parental unfitness must also be [by] clear and convincing [evidence]. This standard of review safeguards the high value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base his determination on a few isolated instances of unusual conduct or idiosyncratic behavior. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.

(Citations omitted.) In the Interest of E. M., 264 Ga.App. 277, 278 (590 S.E.2d 241) (2003).

         In this case, the juvenile court's order is awkwardly worded and confusing.[2] In the "Conclusions of Law" section of the order, the court states that the child is dependent "in that he is without his parent, guardian or legal custodian." There is no mention in the court's conclusions of abuse, neglect, or failure by the mother "to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for a child's physical, mental, or emotional health or morals[, ]" which is the definition of "neglect." OCGA § 15-11-2 (48) (A). In the "Findings of Fact" section of the order, however, the court's findings all address neglect, not dependency based on a child being without his parent, guardian, or legal custodian. The order indicates that the child is in need of the protection of the Court due to being without proper parental care and supervision and is dependent as that term is defined in OCGA § 15-11-2(22) due to the following conditions:

1. Said child is without proper parental care, control or supervision in that;
2. The mother is without a home of her own and is unable to provide stable housing for the child; the mother secured placement in a shelter but lost the placement by not returning to the shelter in time to preserve her bed; the mother testified that she and the child could move in with the aunt immediately; however, the case manager testified that upon arriving at court the mother asked the case manager if the case manager had found a place for the mother to stay; the aunt, who previously declined to be a placement, was not present in court to confirm that her home was available;
3. The mother reported to the Department that she is diagnosed with Bipolar Schizophrenia;
4.The mother refuses to submit to evaluations to determine the status of her mental health;
5. The mother has an open dependency case in DeKalb County, GA involving a sibling of the child . . .;
6. The mother reported to the Department that she was overwhelmed and could no longer care for the child . . .; at a subsequent Family Team Meeting (FTM), the mother became hostile and walked out of the room stating she was not going to be compliant with the Department's efforts;
7. The mother is unable to provide adequate care, control or supervision of the child;
8. The mother is unable to provide an adequate home, care or support for the child; the mother has visited Grady Hospital three (3) to four (4) times in the last six (6) months seeking assistance but has not accepted any mental health services; the court does not find credible the mother's claim that ...

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