In the Interest of J. A. B. Et Al., Children

SECOND DIVISION
MILLER, P. J.,
BRANCH, J., and PETERSON, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

March 23, 2016

In the Court of Appeals of Georgia
A15A2049. IN THE INTEREST OF J. A. B. et al., children.

MILLER, Presiding Judge.

The mother of J. A. B., K. J. D., and A. D. D. appeals from the juvenile court’s

order terminating her parental rights.1 We granted the mother’s application for

discretionary review, and now conclude that the juvenile court’s order is insufficient

to enable appellate review. Therefore, we vacate the termination order and remand

this case.

As a threshold matter, we note that the new Juvenile Code applies to these

proceedings even though the State filed the initial deprivation petition in 2013,

because the State’s termination petition was filed in September 2014, after the new

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The juvenile court also terminated the parental rights of J. A. B.’s putative
father, and that ruling has not been appealed. The father of K. J. D. and A. D. D. is
deceased.
code went into effect. In the Interest of C. J. V., 333 Ga. App. 844, 847-48 (2) (777

SE2d 692) (2015) (applying the new code to a case in which the deprivation petition

was filed in 2013 but the termination petition was filed in 2014). Therefore, we

proceed under the current Georgia law.

We view the evidence in the light most favorable to the juvenile court’s

disposition and determine whether any rational trier of fact could have found by clear

and convincing evidence that the mother’s right to custody should have been

terminated. In the Interest of A. B., 311 Ga. App. 629 (716 SE2d 755) (2011).

Nevertheless, in conducting our review, we must proceed

with the knowledge that 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.

(Citations and punctuation omitted.) In the Interest of C. J. V., 323 Ga. App. 283 (746

SE2d 783) (2013).

So viewed, the evidence shows that J. A. B. was born in July 2007, K. J. D. was

born in September 2009, and A. D. D. was born in May 2011. In January 2013, the

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mother, the children, and the mother’s fiancé were driving through Georgia when a

police officer stopped their vehicle in Canton. After finding marijuana in the car, the

police officer arrested the mother’s fiancé on drug charges and three counts of cruelty

to children. The mother was also arrested for possession of less than one ounce of

marijuana and three counts of cruelty to children. Aside from this brief interaction,

the family has no connection to Georgia.

Based on the arrests, the Georgia Division of Family and Children Services

(“DFCS”) took the children into custody on January 13, 2013. The juvenile court

issued an order for shelter care the next day and appointed a guardian ad litem. DFCS

placed the children in foster care because the mother was incarcerated and the

children had no relatives in Georgia.

On February 8, 2013, the children were adjudicated deprived.2 The initial case

plan called for reunification with the mother and temporary placement with a relative.

In December 2013, DFCS placed the children with their grandmother in Indiana. In

February 2014, the mother’s case plan was changed to non-reunification.

2
The new Juvenile Code uses the term “dependent” instead of “deprived.” See
OCGA § 15-11-2 (22); In the Interest of C.J.V., supra, 333 Ga. App. at 847-48 (2).
The distinction does not alter our analysis here.

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 In September 2014, DFCS filed a petition to terminate the mother’s parental

rights, which the juvenile court granted on February 2, 2015. The grandmother

continues to have custody of and is willing to adopt the children, who are thriving in

her care and are meeting all of their developmental milestones.

In its termination order, the juvenile court considered the testimony of the

DFCS case worker, the court-appointed special advocate, the mother, and her fiancé.

The juvenile court made the following factual findings and conclusions of law: (1)

the children are dependent under OCGA § 15-11-2 (22) (A), the cause of the

dependency is likely to continue and not be remedied, and the continued dependency

will or is likely to cause serious physical, emotional, mental, and moral harm to the

children; (2) the mother failed to complete all of the case plan requirements, including

showing proof of housing and employment, and completing a psychological

evaluation; and (3) the mother visited the children only sporadically, seeing her

children five out of the fifteen scheduled visits and not at all for the prior sixteen

months. The juvenile court then stated, “the Court, therefore, finds that the mother has

abandoned her children.” The juvenile court cited the subsection of the termination

statute addressing abandonment and explained, “based on their abandonment and the

mother’s unresolved issues, the children continue to be dependent. . . . The Court

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finds that it is in the children’s best interest[s] that the mother’s parental rights be

terminated. . . .”

On appeal, the mother argues that the juvenile court erred in finding that the

children are dependent and that the dependency is likely to continue or will not be

remedied. She further argues that the juvenile court erred in finding that the

dependency will or is likely to cause serious physical, mental, emotional, or moral

harm to the children.

Under OCGA § 15-11-310 (2014),

(a) In considering the termination of parental rights, the court shall first
determine whether one of the following statutory grounds for
termination of parental rights has been met:

....

(4) A child is abandoned by his or her parent; or

(5) A child is a dependent child due to lack of proper parental care or
control by his or her parent, reasonable efforts to remedy the
circumstances have been unsuccessful or were not required, such cause
of dependency is likely to continue or will not likely be remedied, and
the continued dependency will cause or is likely to cause serious
physical, mental, emotional, or moral harm to such child.

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A dependent child is defined as an abused or neglected child in need of the court’s

protection, or a child without a parent, guardian, or legal custodian. OCGA § 15-11-2

(22) (A), (C) (2014). Abandonment is defined as “conduct on the part of a

parent . . . showing an intent to forgo parental duties or relinquish parental claims.”

OCGA § 15-11-2 (1) (2014). To evaluate intent, the juvenile court may consider

conduct such as failure to communicate meaningfully or regularly visit with the child

for at least six months, § 15-11-2 (1) (A)-(B), and failure to participate in a court-

ordered case plan, § 15-11-2 (1) (D). Importantly, to constitute abandonment, the

conduct must actually show an intent to abandon in light of the rest of the record.

Once the juvenile court determines the statutory basis for termination, the

juvenile court must consider whether termination is in a child’s best interests. OCGA

§ 15-11-310 (2014). “When the court finds that any ground set out in Code Section

15-11-310 is proved by clear and convincing evidence and that termination of

parental rights is in a child’s best interests, it shall order the termination of the

parent’s rights.” OCGA § 15-11-320 (a) (2014).

The statutory basis for termination is the prerequisite finding. In the Interest

of D. T. A., supra, 312 Ga. App. at 34 (2). Indeed, the statute itself mandates that the

juvenile court must make a specific finding as to why the parents’ rights are being

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terminated. Under § 15-11-310, dependency and abandonment are separate grounds

for termination. In this case, however, it is unclear whether the juvenile court

intended to rely on dependency or abandonment to support its decision because the

juvenile court appears to address dependency and abandonment interchangeably. For

example, its order encompasses findings of dependency with the conclusion that the

children have been abandoned. We cannot determine from the juvenile court’s order

whether it intended to find abandonment, dependency, or both as the statutory ground

for termination. See In the Interest of D. T. A., 312 Ga. App. 26, 33 (1) (d) (717 SE2d

536) (2011) (explaining that the 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 punctuation omitted). Even the parties seem unsure of the

juvenile court’s order, focusing their arguments exclusively on dependency without

mentioning abandonment, even though the juvenile court’s order discusses

abandonment several times.

Moreover, we have serious concerns with the factual record before us and

whether it supports a finding of termination. For example, termination based on

dependency requires a showing that continued dependency “will cause or is likely to

cause serious physical, mental, emotional, or moral harm.” OCGA § 15-11-310 (a)

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(5). DFCS argues that the mother did a poor job of caring for her children. Even if

this were a sufficient basis to remove the children from her care, it does not rise to the

level of proof necessary to terminate the mother’s parental rights. See In the Interest

of J. S. B., 277 Ga. App. 660, 663 (2) (d) (627 SE2d 402) (2006) (noting the “vague

testimony” of the DFCS caseworker and explaining that a mother’s inability to

provide care does not mean her relationship with the children is detrimental).

For the juvenile court to base its decision on abandonment is also problematic

on this record. Simply announcing that the mother has failed to visit the children,

without taking into account the geographic difficulties and other obstacles that arose

after DFCS removed the children, is hardly enough to support such a drastic result.

Cf. In the Interest of K. E. A., 292 Ga. App. 239, 240 (663 SE2d 822) (2008) (finding

abandonment where non-custodial parent was unable to see children while

incarcerated and then failed to take required steps upon his release). Nor can we

condone basing a termination decision on the parent’s alleged failure to submit

paperwork to DFCS where there was other evidence to show compliance with the

reunification plan. This literal form over substance is inconsistent with the burden

placed on DFCS to support a termination proceeding.

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 DFCS relies on the testimony of the caseworker – the third or fourth one

involved in this case – and the brief questions posed to the Court-appointed special

advocate to support its argument. Such a paucity of evidence can hardly be enough

to bring about the termination of rights. The burden on DFCS in termination cases is

a heavy one, with good reason.

Terminating a parent’s rights, and thus forever foreclosing
the possibility of restoring the natural parent-child
relationship, is governmental extinguishment of the parent
and child’s constitutional right to familial relations. There
is, then, no judicial determination which has more drastic
significance than that of permanently severing a natural
parent-child relationship. Accordingly, compelling facts
are required to terminate parental rights.

(Punctuation and footnotes omitted.) In the Interest of S. O. C., 332 Ga. App. 738,

743 (774 SE2d 785) (2015)

These concerns underscore our inability to discern from the juvenile court’s

order whether the juvenile court found dependency or abandonment as the basis for

termination, and until the juvenile court has clarified its determination in this regard,

we are unable to properly review the conclusion that termination is in the children’s

best interests. In other words, the conflicting legal conclusions “preclude an

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intelligent review of the merits of the appeal.” Grantham v. Grantham, 269 Ga. 413,

414 (1) (499 SE2d 67) (1998) (remanding a custody case for further factual findings

and conclusions of law to enable appellate review). Accordingly, we vacate the

termination order and remand this case to the juvenile court with direction to more

fully develop the statutory ground or grounds for termination and the factual findings

supporting its decision.

Judgment vacated and case remanded with direction. Branch and Peterson,

JJ., concur.

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