THIRD DIVISION
MILLER, P. J.,
MCFADDEN, P. J., and MCMILLIAN, 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 7, 2017
In the Court of Appeals of Georgia
A16A1610. IN THE INTEREST OF D. W. et al., children.
MCFADDEN, Presiding Judge.
We granted discretionary appellate review of the juvenile court’s order
terminating the parental rights of a mother to four of her minor children — eight-year-
old D. W., six-year-old E. W., five-year-old T. W., and four-year-old A. W.1 The
mother argues on appeal that there was not clear and convincing evidence to support
the juvenile court’s conclusion that the cause of the children’s dependency was likely
to continue. Because the juvenile court’s order does not specify which of its many
detailed findings support her conclusion that the cause of the children’s dependency
was likely to continue, it is insufficient to enable appellate review of this issue. So we
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The order on appeal expressly does not address the mother’s parental rights
to a fifth child, who also was the subject of the termination petition. Accordingly, this
appeal does not concern that fifth child.
vacate the judgment below and remand the case for entry of a properly supported
order based on the evidence in the case.
1. Facts and procedural posture.
The evidence, viewed in the light most favorable to the juvenile court’s
decision, see In the Interest of C. S., 319 Ga. App. 138, 139 (735 SE2d 140) (2012),
shows that the children experienced a very chaotic, traumatic, and violent home life.
Their father physically abused their mother, and their mother — a methamphetamine
addict — made repeated allegations that their father physically and sexually abused
the children. The children were removed from the mother’s custody due to her
addiction, and for several years, as their mother spent time in domestic violence
shelters and rehabilitation facilities, the children alternated between the custody of
the Department of Family and Children Services (“DFCS”) and the custody of their
father. Ultimately the father and mother reunited and later married.
This proceeding commenced in June 2014 when the mother made a new
allegation against the father — that he was sexually abusing the oldest child, D. W.
— and DFCS filed a complaint that led the juvenile court to remove all of the
children from the parents’ home and place them in foster care. The psychologist who
initially evaluated the children at DFCS’s request testified that the dysfunction in
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their household “was having a very negative impact on the children. The children
were all significantly disturbed, having severe problems.” This psychologist believed
that the children’s behavior was consistent with sexual abuse or exposure.
When they entered foster care, the four children all displayed significant
emotional and behavioral problems. DFCS initially attempted to place the children
in the same foster home, but that placement was unsuccessful due to the children’s
disruptive behavior. At the foster parent’s request, the four children were removed
from that home. DFCS then placed D. W., T. W., and A. W. in one new foster home
and E. W. in a different new foster home. The children received counseling, and all
but A. W. showed emotional and behavioral progress in their new foster homes. A.
W.’s behavior declined in the foster home with her two brothers, and shortly before
the termination hearing she was removed from that home because of her aggressive
and sexual behavior toward them. Her behavior improved when she was placed in a
different foster home by herself. The two boys who remained in the same foster home
— D. W. and T. W. — could not be in each other’s presence unsupervised because
of acts of aggression and sexual behavior between them, and at the time of the
termination hearing T. W.’s behavior was beginning to decline. At the time of the
termination hearing, only A. W. had a potential adoptive family.
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The juvenile court adjudicated the children dependent as to both parents. As
to the mother, the juvenile court found that she had stipulated to the following causes
of the children’s dependency: inadequate or unstable housing; unstable employment
or income; methamphetamine abuse; neglect or lack of supervision; and domestic
violence. The juvenile court found that the mother had also stipulated to the following
as a cause of dependency: “Counseling needed to address mental health and
behavioral needs of children. Children exhibit aggressive behaviors and sexually
acting out on each other. Clearly, they have been exposed to inappropriate sexual
content or witnessed sexual situations.” The juvenile court initially directed DFCS
to prepare a reunification case plan for the mother requiring her to become and remain
drug- and alcohol-free; complete a substance abuse program and follow any
recommendations made; submit to random drug screens; complete a psychological
evaluation and follow any recommendations made; receive treatment for domestic
violence; refrain from exposing the children to domestic violence; obtain and
maintain safe, stable housing; maintain a stable, legal income; complete parenting
classes and demonstrate skills learned; and maintain a bond with the children through
regular visitation. Based on evidence presented at the termination hearing, the
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juvenile court found that the mother had “actively worked, and completed, the
requirements of her case plan.”
Nevertheless, on May 22, 2015, DFCS petitioned to terminate the mother’s
parental rights to the children. DFCS alleged, among other things, that the children
remained dependent due to the mother’s inability to meet their mental health and
behavioral needs. DFCS stated that “there exists parental misconduct or inability
relative to the . . . children within the meaning of OCGA § 15-11-311 (a) (1) due to
a medically verified deficiency of such children’s mother’s physical, mental, or
emotional health that is of such duration or nature so as to render the mother unable
to provide adequately for her children.”
After receiving evidence at the termination hearing, the juvenile court entered
an order terminating the mother’s parental rights to the four children. (The juvenile
court also terminated the father’s parental rights, and the father has not challenged
that order in this appeal. At the time of the termination hearing, the mother was
attempting to serve the father with a complaint for divorce.)
2. Applicable law.
Georgia’s new Juvenile Code applies to this case, because it concerns a
juvenile proceeding commenced in 2014. See Ga. L. 2013, pp. 294, 514, § 5-1; In the
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Interest of M. F., 298 Ga. 138, 140 (1) n. 4 (780 SE2d 291) (2015). Like Georgia’s
former Juvenile Code, the new Juvenile Code provides for a two-step process for
determining whether to terminate parental rights. A juvenile court must strictly follow
this statutory process. In the Interest of T. Z. L., 325 Ga. App. 84, 100 (1) (751 SE2d
854) (2013). In considering whether to terminate parental rights, the juvenile court
must “first determine whether one of [five specified] statutory grounds for
termination of parental rights has been met[.]” OCGA § 15-11-310 (a). The ground
pertinent to this appeal requires the juvenile court to examine the circumstances and
causes of a child’s dependency, which is defined as the child’s “abuse[ ] and neglect[
] and . . . need of the protection of the court.” OCGA § 15-11-2 (22). Under this
ground, the juvenile court must determine whether the child’s dependency is
due to lack of proper parental care or control by his or her parent,
[whether] reasonable efforts to remedy the circumstances have been
unsuccessful or were not required, [whether] such cause of dependency
is likely to continue or will not likely be remedied, and [whether] the
continued dependency will cause or is likely to cause serious physical,
mental, emotional, or moral harm to such child.
OCGA § 15-11-310 (a) (5).
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“If any of the statutory grounds for termination has been met, the [juvenile]
court shall then consider whether termination is in a child’s best interest[ ] after
considering [several specified] factors[.]” OCGA § 15-11-310 (b). “In all proceedings
under this article, the standard of proof to be adduced to terminate parental rights
shall be by clear and convincing evidence.” OCGA § 15-11-303. Consequently, “[o]n
appeal from a juvenile court’s decision to terminate parental rights, we review the
evidence in the light most favorable to the court’s decision and determine whether
any rational trier of fact could have found clear and convincing evidence that the
parental rights should be terminated.” In the Interest of C. S., supra, 319 Ga. App. at
139 (citation omitted).
We cannot review a termination decision, however, if the juvenile court’s order
does not clearly identify the specific factual findings that support the determination
that the statutory requirements for termination have been met. In the Interest of D. M.,
339 Ga. App. 46, 55 (2) (a) (793 SE2d 422) (2016); In the Interest of J. A. B., 336 Ga.
App. 367, 370 (785 SE2d 43) (2016); In the Interest of D. T. A., 312 Ga. App. 26, 33
(1) (d) (717 SE2d 536) (2011); In the Interest of G. K. J., 187 Ga. App. 443, 445 (3)
(370 SE2d 490) (1988). “The trial judge is to ascertain the facts and to state not only
the end result of that inquiry but the process by which it was reached.” In the Interest
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of J. M., 251 Ga. App. 380, 383 (4) (554 SE2d 533) (2001) (citation and punctuation
omitted; emphasis supplied). A recitation that a legal requirement was met will not
suffice. In the Interest of D. M., supra; In the Interest of D. T. A., supra.
3. The juvenile court’s order.
While the juvenile court’s order in this difficult and troubling case clearly
reflects diligent and careful consideration, it does not provide us with the findings
necessary for our appellate review. The juvenile court set forth many detailed factual
findings, but she did not identify specific factual findings that authorized her
conclusion that cause of the children’s dependency was likely to continue.
To review the evidence supporting the juvenile court’s conclusion that the
cause of dependency was likely to continue, we must first determine what the juvenile
court found to be the cause of the children’s dependency. See In the Interest of N. T.,
334 Ga. App. 732, 742 (3) (780 SE2d 416) (2015) (question is whether there is clear
and convincing evidence that specified causes of dependency are likely to continue).
Consequently, although on appeal the mother challenges only the juvenile court’s
conclusion that the cause of the children’s dependency was likely to continue, this
conclusion is intertwined with the conclusion regarding the existence of present
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dependency, and we therefore set forth all of those conclusions to provide context for
our analysis:
Based upon these facts [the detailed factual findings set forth
earlier in the order], the Court finds that [the four children that are the
subject of this appeal] are dependent children as to their mother due to
her lack of proper parental care or control. . . . In addition to the findings
of fact made throughout this Order, court orders have been entered
finding these children to be dependent and those orders stand today. The
children are dependent now due to the horrific emotional and behavioral
instability of each of the . . . four children.
...
Reasonable efforts to remedy the circumstances of dependency
have been made but were unsuccessful. Truthfully, given the history of
three prior sojourns in foster care, DFCS could have elected to file for
termination of parental rights immediately. The prior Court orders
document the efforts made. Despite the children being in highly
structured and nurturing environments, they continue to struggle with
their emotional and behavioral challenges. [A. W.] is only just now
beginning to see the light but could revert quickly with a return with her
siblings.
...
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The cause of dependency is likely to continue and will not likely
be remedied. [The father] is gone. [The mother] is new in her recovery.
The behaviors of all four children could not be managed by the very best
of parents. If they are together, their traumatic memories are triggered
and they attack each other. [The mother] would be part of those
traumatic memories even for those children who say they want to go
home to her.
In these paragraphs, the juvenile court attempted in several ways to support her
conclusion that the cause of the children’s present dependency is likely to continue.
She referred generally to the numerous pages of factual findings set forth in other
places throughout the order, but this reference did not satisfy the requirement that she
state the process by which she reached her conclusion by setting forth the facts upon
which she relied for that conclusion. See In the Interest of D. T. A., supra, 312 Ga.
App. at 33 (1) (d) (juvenile court’s citation to general findings regarding mother’s
unfitness and conduct insufficient); In the Interest of J. M., supra, 251 Ga. App. at
383 (4) (juvenile court failed to set forth facts supporting conclusion on one of the
statutory requirements for termination).
The juvenile court referred to the children’s past dependency, stating that the
grounds established in earlier orders would have supported termination and that those
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grounds “stand today,” but her finding that the mother subsequently completed her
case plan is not consistent with the implication that those earlier grounds of
dependency persisted. See In the Interest of J. E. E., 235 Ga. App. 247, 249-250 (509
SE2d 147) (1998) (evidence that parent completed case plan is relevant to
determination of whether cause of child’s deprivation was likely to continue).
Similarly, she cited the mother’s recent recovery from past drug addiction, but she
made no finding as to whether the mother’s past drug use had “the effect of rendering
[her] incapable of providing adequately for the physical, mental, emotional, or moral
condition and needs of [the] child[ren].” OCGA § 15-11-311 (a) (2). While past drug
use is a factor in determining whether the cause of the children’s dependency is likely
to continue, it cannot alone support a conclusion that that statutory requirement for
termination has been met. See In the Interest of J. V. J., 329 Ga. App. 421, 426 (765
SE2d 389) (2014).
The juvenile court did expressly state that the children’s “horrific emotional
and behavioral instability” was the cause of their present dependency, and it is clear
from her order that she concluded this instability was likely to continue if the four
children were returned to live in the same household. There certainly was evidence
to show that the children’s past dependency caused them to be severely unstable and
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that, because of this instability, they might not ever be able to live together again. But
the children’s instability is a result of their past dependency, not a cause of their
present dependency that would support a termination of parental rights. Under the
Juvenile Code, to support the termination of parental rights, the cause of a child’s
dependency must be the “lack of proper parental care or control by [the child’s]
parent[.]” OCGA § 15-11-310 (a) (5). Notably, the juvenile court made no finding as
to whether the mother had a “medically verified deficiency of [her] physical, mental,
or emotional health that is of such duration or nature so as to render [her] unable to
provide adequately for [the] child[ren].” OCGA § 15-11-311 (a) (1). See In the
Interest of C. J. V., 323 Ga. App. 283, 287 (746 SE2d 783) (2013) (concluding that
there was not clear and convincing evidence to show cause of deprivation was likely
to continue, in part because there was no evidence that mother had a verified mental
or physical condition indicating she was incapable of caring for her children). To the
contrary, the juvenile court expressly stated that no parent — not even the best parent
— could manage the four children in a single household.
In summary, the juvenile court in her order set forth many detailed facts and
stated the conclusion that the cause of the children’s present dependency was likely
to continue. But in attempting to state the process by which that conclusion was
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reached, the juvenile court failed to point to specific facts that supported the
conclusion. While she referred generally to all of her factual findings, she emphasized
specific facts that were contradicted by some of her other factual findings or were
insufficient to support her conclusion. “A correction of the[se] error[s] may or may
not alter other findings of fact made by the juvenile court and thus may or may not
affect the ultimate judgment.” In the Interest of E. R. D., 172 Ga. App. 590 (323 SE2d
723) (1984) (citations and punctuation omitted). For that reason, we must vacate the
judgment and remand for a properly supported order. See In the Interest of D. M., 339
Ga. App. at 56 (2) (a) (vacating judgment and remanding case for “more appropriate
and explicit findings of fact and conclusions of law” and a “new judgment based on
these findings and conclusions” where failure of order to make specific factual
findings on particular statutory requirement for termination left appellate court with
no basis to evaluate whether conclusion was properly supported by clear and
convincing evidence); In the Interest of J. A. B., supra, 336 Ga. App. at 372 (vacating
termination order and remanding case to more fully develop statutory ground for
termination and factual findings supporting decision where deficiencies in order
preclude intelligent review of merits of appeal).
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Judgment vacated and case remanded. McMillian, J., concurs. Miller, P. J.,
concurs in the judgment only.
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