FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ.
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
November 18, 2016
In the Court of Appeals of Georgia
A16A1967, A17A0322. IN THE INTEREST OF L. P., J. P., AND
P. P.
PETERSON, Judge.
The mother and father of three children, L. P., J. P., and P. P., appeal from the
termination of their parental rights. The mother argues that termination of her rights
was error because she substantially completed her case goals and her children’s
dependency was not likely to continue or cause them future harm, and that the
juvenile court violated her right to due process by terminating her parental rights
despite the Division of Family and Children Services’ (“DFCS”) failure to file her
case plan. The father argues that the juvenile court erred by terminating his parental
rights without clear and convincing evidence that the children would be harmed by
their continued dependency. We conclude that clear and convincing evidence in the
record supports the juvenile court’s findings that the children’s dependency is likely
to continue and failing to terminate the parents’ rights is likely to cause the children
serious physical, mental, or emotional harm. Accordingly, we affirm.
Viewed in the light most favorable to the judgment below, see In the Interest
of M. S. S., 308 Ga. App. 614, 614 (708 SE2d 570) (2011), the evidence shows that
the three children came into the care of DFCS in January 2013 due to the parents’
unstable housing and employment and unresolved domestic violence and criminal
issues. Later that year, the children were returned to the care of their mother under a
protective order. In December 2013, however, DFCS received a report that the mother
had been involuntary hospitalized due to mental health issues1 on the same night the
father was arrested for a probation violation. The children then returned to DFCS
custody.
When the dependency petition filed by DFCS was heard in March 2014, the
mother was incarcerated and the father’s whereabouts were unknown. Based on the
evidence presented as to the father, and with the consent of the mother, the juvenile
court found the children dependent, awarded temporary custody to DFCS, and
1
The mother testified she was hospitalized for drug use, but concedes in her
appeal that she was committed for “extreme paranoia” and mental health issues.
2
ordered the parents to complete a case plan to resolve the dependency issues. Though
no case plan appears in the record (and the mother argues hers was never filed ),2 the
juvenile court’s order terminating parental rights states that the case plan required the
parents to complete a number of tasks, including, but not limited to: (1) obtaining and
maintaining stable housing, employment, and income; (2) resolving outstanding
criminal issues; (3) attending parenting classes; and (4) completing mental health
evaluations. The mother also had to complete a substance abuse evaluation and
follow associated recommendations, attend Narcotics Anonymous meetings, and
submit to random DFCS drug screens. The father maintained only intermittent contact
with DFCS, and was later arrested. The mother cycled in and out of jail for various
offenses, including simple battery and possession of methamphetamines.
In June 2014, the juvenile court found that the parents had failed to complete
any of the tasks on their case plan and failed to maintain contact with DFCS. Both
parents remained incarcerated. DFCS filed a motion for a finding of non-reunification
in July 2014, and a petition to terminate parental rights in October 2014. The mother
2
The mother conceded at her termination hearing that she previously received
a copy of her case plan, and that DFCS had reviewed the plan with her and provided
her with resources and referrals to complete the plan. DFCS witnesses testified they
had previously given copies of the case plan to each parent.
3
was subsequently released from jail and entered a drug court program. She was
sanctioned for missing one drug screen, but DFCS withdrew its motion for non-
reunification as to the mother and requested that the termination hearing be held in
abeyance due to her substantial compliance in the drug court treatment program and
her cooperation with DFCS. In November 2014, the father tested positive for multiple
substances on a drug screen, and some time later the court suspended his visitation
with the children3 and further indicated an intention to terminate his parental rights.
On April 30, 2015, the mother tested positive for methamphetamines,4 but she
admitted only to using GHB on a number of occasions since entering the drug court
program. The mother was subsequently sanctioned for not disclosing her relapse to
DFCS. In July 2015, the mother tested positive for synthetic marijuana, which she
denied using, and was removed from the drug court program and then incarcerated.
The juvenile court held its first termination of parental rights hearing for both
parents on August 25, 2015. At the hearing, a DFCS supervisor testified that the
3
The court suspended the father’s visitation with the children until he enrolled
in a substance abuse treatment program and had negative drug screens. The father did
not regain visitation with the children before the deprivation hearing.
4
A DFCS witness testified that the positive drug screen for methamphetamine
was a “false positive” because the drug the mother had actually used was GHB. But
the mother has not explained why her use of that drug was more legitimate.
4
mother had not obtained stable housing or employment. A separate DFCS witness
testified that the children would be harmed if the parents’ rights were not terminated
because the children would face an uncertain future, which could result in emotional
harm, whereas if the termination were granted, their foster family was interested in
adopting them. The youngest child had spent nearly the entirety of his childhood with
his foster parents, and considered his foster parents to be his mother and father. The
juvenile court continued the hearing, finding that it did not have enough evidence to
evaluate potential harm to the children or to decide whether termination was in their
best interest.
At a subsequent hearing held on November 12, 2015, a psychologist testified
as an expert witness regarding his evaluations of the two oldest children, L. P. and J.
P. He testified that if the children were left to “linger” in foster care, they could be
expected to suffer “some degree of emotional harm,” would develop a sense of
hopelessness, and would have trouble developing emotional bonds. He did not
evaluate the youngest child but testified that a child who is removed from the care of
foster parents with whom he has spent the majority of his life would also experience
a number of deleterious effects. The expert further noted that L. P. had some behavior
problems and fought with J. P. around the time parental visitation resumed. The
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expert testified regarding the harm that could result from the children being exposed
to domestic violence, drug use, continued incarceration, and lack of stable living
arrangements, and stated that “there is a very strong potential that the negative impact
can be lasting well beyond just the immediate impact.” The expert conceded that if
“all of the issues that resulted in harm to the children are cured, then logically, there
would be a lower risk of future harm to the children.”
The therapist for J. P and L. P. also testified at the later hearing. She testified
that the children had been experiencing certain negative emotions associated with the
shifting amount of visitation by their parents, and that L. P.’s academic motivation
had suffered when visitation with her parents ceased. She further testified that J. P.
and L. P. experienced mood shifts and drops in their activity levels and motivation
after visitations with their parents. However, overall, the children’s emotional states
had stabilized while under the care of their foster parents.
The children’s foster mother testified that when visits with the parents resumed,
J. P. became more argumentative and combative, and had conduct issues at school.
L. P. experienced similar troubles at school, and the youngest child, P. P., showed
signs of anxiety at being separated from his foster parents. J. P. and L. P. also
experienced trouble with their grades when the visits with their parents became
6
irregular, she testified, but once the visits with their parents entirely ceased, their
performance stabilized.
At this later hearing, the father, who was on probation, provided proof that he
had completed the anger management class and proof of stable housing for the past
three months. The father further stated that he had taken some unprescribed pain pills
in March but had done some drug and alcohol awareness education since then. The
father also testified regarding his employment since his release on probation. A DFCS
witness also testified that the father had provided some check stubs and proof of
attendance at over twenty Narcotics Anonymous or Alcoholics Anonymous meetings.
The juvenile court entered an order terminating the parental rights of the
mother and father. The court cited the lack of stable employment, income, and
housing for the parents, continued substance abuse and failure to complete treatment
by both parents, the mother’s continued incarceration, and the father’s history of lack
of participation in treatment programs and in the case plan more generally. The court
also cited the testimony of the psychologist who testified as to the harm the children
were likely to suffer if they were returned to their parents. The parents each filed a
motion for a new trial, which the juvenile court denied. The parents then filed timely
application for discretionary appeal, which this Court granted.
7
OCGA § 15-11-310(a) provides that a court considering termination of parental
rights first must determine whether at least one of five statutory grounds for
termination has been met. Here, the trial court terminated the parent’s rights under
OCGA § 15-11-310(a)(5), which provides that a ground for termination exists when:
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.
If it finds that any of the statutory grounds has been met, the juvenile court then shall
consider whether termination is in the child’s best interest. OCGA § 15-11-310(b).
Grounds for termination must be proven by clear and convincing evidence. OCGA
§ 15-11-320(a). A trial court’s order terminating parental rights must “[c]ontain
written findings on which the order is based, including the factual basis for a
determination that grounds for termination of parental rights exist and that
termination is in the best interests of the child[.]” OCGA § 15-11-320(b)(1).
1. The mother first argues that the trial court erred in terminating her parental
rights because she substantially completed her case goals and her children’s
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dependency was not likely to continue.5 In determining that the children were
dependent due to lack of proper parental care and control, the trial court relied on the
following grounds: (1) “[e]xcessive use of or history of chronic unrehabilitated
substance abuse with the effect of rendering a parent of such child incapable of
providing adequately for the physical, mental, emotional, or moral condition and
needs of his or her child”; (2) “[p]hysical, mental, or emotional neglect of his or her
child or evidence of past physical, mental, or emotional neglect by the parent of such
child or another child of such parent”; and (3) “whether such parent, without
justifiable cause, has failed significantly for a period of six months prior to the date
of the termination hearing . . . [t]o comply with a court ordered plan designed to
reunite such parent with his or her child.” OCGA § 15-11-311(a)(2), (a)(5), (b)(3).
The record shows that, after entering a drug court program, the mother tested
positive for methamphetamine and, separately, synthetic marijuana. She denied using
either of these substances, and admitted only to using GHB on a number of occasions
5
The father does not challenge the juvenile court’s findings of dependency or
that it was likely to continue, but rather argues that the evidence was not clear and
convincing that the children would likely suffer serious harm. We address that
argument in Division 2.
9
since entering drug court. The mother did not disclose her initial relapse to DFCS as
instructed, was removed from the drug court program, and was re-incarcerated.
The mother argues in her appeal that the children’s dependency is unlikely to
continue because she is completing drug rehabilitation courses while incarcerated. A
DFCS witness testified, however, that the mother felt she still needed the structure of
in-patient drug treatment. Despite the mother’s claim of newfound personal reform,
which is for the juvenile court to weigh, the evidence in the record was clear and
convincing to support the juvenile court’s finding that the mother had continued her
pattern of drug use, had not been forthcoming about her ongoing drug issues, and had
not been successful in completing a drug treatment program. See In re T. W. O., 283
Ga. App. 771, 776 (1) (a) (iii) (643 SE2d 255) (2007) (“[J]udging the credibility of
the parent[‘s] good intentions was a task for the juvenile court.”) (footnote and
punctuation omitted); In re M. N. R., 282 Ga. App. 46, 47 (637 SE2d 777) (2006)
(“The decision as to a child’s future must rest on more than positive promises which
are contrary to negative past fact.”) (citation omitted). The record makes clear that the
mother’s ongoing drug problem substantially contributed to her inability to provide
for the needs of her children, as her incarceration and her related inability to maintain
stable housing or employment all stem from her drug use. Where, as here, the
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mother’s drug use has a deleterious effect on her ability to parent, the juvenile court
is justified in finding that the children’s dependency was likely to continue.
Without even addressing the two remaining causes for dependency cited by the
juvenile court in its order,6 we find the evidence clearly and convincingly supported
the juvenile court’s determination that the deprivation was likely to continue. See In
re M. N. R., 282 Ga. App. at 47 (dependency was likely to continue where mother
admitted she did not complete a drug treatment program, relapsed after completing
an earlier program, had positive drug screens, and had not successfully completed a
drug treatment program).
2. Both parents argue that there is insufficient evidence that the children’s
continuing dependency will cause the children serious harm. OCGA § 15-11-
310(a)(5) demands that the juvenile court terminate parental rights based on
dependency only upon finding by clear and convincing evidence that “the continued
dependency will cause or is likely to cause serious physical, mental, emotional, or
moral harm” to the child in question. We have long said that a finding that
6
The mother’s failure to follow the case plan was a separate basis for granting
termination that we do not reach here, and therefore her remaining argument that the
juvenile court deprived her of her due process rights when it failed to file her case
plan is moot.
11
dependency is likely to continue does not necessarily justify a finding of harm,
although dependency could support a finding of harm in particular circumstances. See
In the Interest of J. E., 309 Ga. App. 51, 57 (1) (d) (711 SE2d 5) (2011) (whole court)
(analyzing under “deprivation” standard of former Juvenile Code). Rather, in
determining whether harm to the child exists, “our law requires a juvenile court to
consider both the relationship between the parent and child at the time of the
termination hearing and what might happen if the child were returned to the parent.”
In the Interest of E. M. D., et al., No. A16A0986, 2016 WL 6395633, 2016 Ga. App.
LEXIS 598, at *8 (II) (B) (Oct. 28, 2016). Thus, the court must assess whether a child
currently in foster care is likely to suffer serious harm as a result of continued
dependency if the child remains indefinitely in foster care, and “also the likelihood
of harm if the child returns to the custody of his parent, notwithstanding that the
deprivation persists.” In the Interest of C. L., 315 Ga. App. 607, 611-12 (1) (b) (727
SE2d 163) (2012). The State must show that both scenarios would likely cause
serious harm in order for a termination of parental rights to be justified. See E. M. D.,
2016 WL 6395633, 2016 Ga. App. LEXIS 598, at *8. “Under this framework,
whether returning the child to the parent would cause harm matters little if there is no
evidence that the child is likely to experience serious harm under the status quo.” Id.
12
The juvenile court found that the children would be harmed if returned to their
parents because of their parents’ inability to provide stability for their children, and
because of their substance abuse and past incarceration and domestic violence issues.
This finding is supported by the record.
The record also supports a finding that the children would continue to suffer
harm under the current arrangement. The expert testified that one of the children, L.
P., experienced behavioral problems and would fight with one of her siblings around
the time she resumed visits with her parents. The therapist for the two older children,
L. P. and J. P., testified that the inconstancy of the visits with their parents had
negative consequences on the children, and that the children would experience mood
shifts and drops in their activity level and motivation after visits with their parents.
The children’s foster mother testified that when visits with their parents resumed, J.
P. became more argumentative and combative and experienced problems at school,
L. P. experienced similar school troubles, and the youngest child, P. P., showed signs
of anxiety at being separated from his foster parents. However, these troubles
dissipated when visits with the mother and father were discontinued. Finally, the two
older children expressed a desire to be adopted by their foster parents, with whom
they had bonded, if they could not be returned to their mother and father. The record
13
supported the juvenile court’s finding that maintaining the status quo would likely
harm the children. See In re S. A. B., 269 Ga. App. 705, 708-09 (605 SE2d 100)
(2004) (clear and convincing evidence supported finding that continued deprivation
would cause harm where child had developed a positive relationship with his foster
parent and expressed his desire to be adopted, and where remaining in foster care
would lead to school conduct and academic problems).
Judgments affirmed. Phipps, P. J., and Dillard, J., concur.
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