In the INTEREST OF A. F. Et Al., Children.

FIRST DIVISION
BARNES, P. J.,
ELLINGTON, 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

June 22, 2018

In the Court of Appeals of Georgia
A18A0416. IN THE INTEREST OF A. F. et al., CHILDREN.

BARNES, Presiding Judge.

The mother of A. L. C. B. F. (“A. F.”), C. M. J. F. (“C. F.”), and A. K. W. F.,

appeals from the order of the trial court terminating her parental rights.1 On appeal,

she contends that the evidence was insufficient to support the termination. Upon our

review, and finding insufficient evidence demonstrating that continued dependency

will cause or is likely to cause the children serious physical, mental, emotional, or

moral harm, we reverse.

On appeal from an order terminating parental rights, we review the
evidence in the light most favorable to the juvenile court’s judgment in
order to determine whether any rational trier of fact could have found by
clear and convincing evidence that the natural parent’s rights to custody
have been lost. We neither weigh evidence nor determine witness
credibility, but defer to the juvenile court’s findings of fact and affirm
unless the appellate standard is not met.

1
This Court granted the mother’s application for discretionary review of the
termination order.
(Citation and punctuation omitted). In re U. G., 291 Ga. App. 404, 404 (662 SE2d

190) (2008).

So viewed, the evidence demonstrates that, at the time of the termination

hearing, A. L. C. B. F. was four-and-a-half years old; C. M. J. F. was three-and-a-half

years old, and A. K. W. F. was one-and-a-half years old.2 Andrew Walker is the

biological father of A. K. W. F.3 The location of A. L. C. B. F. and C. M. J. F.’s

putative biological father is unknown, and the legal father, the mother’s husband, by

request, was excused from the proceedings.

On June 9, 2015, upon the filing of a complaint alleging dependency, and the

entry of a dependancy removal order, A. L. C. B. F. and C. M. J. F. were taken into

the custody of the Whitfield County Division of Family and Children Services

(“DFCS”) On June 10, 2015, the trial court entered a preliminary protective order

placing temporary custody of the two children with DFACS. According to the order,

there was probable cause to believe that the children were dependant because the

2
The mother has a fourth child, her oldest, who is also in state custody and who
is not a part of this case.
3
The juvenile court terminated both the mother’s and Walker’s parental rights
in the termination order, but only the mother’s termination is the subject of this
appeal.

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mother was unemployed, did not have a stable environment for the children, and there

was a history of domestic violence, including a recent physical altercation between

the mother and her current boyfriend during which she had threatened to “harm

herself with a razor.” Thereafter, on June 15, 2015, DFACS filed a petition of

dependency alleging that the two children were dependent because the “children have

been abused or neglected and are in need of protection of the court” given the

mother’s unemployment, lack of stable home environment and violent relationship

with Walker, the father of her unborn child.

Subsequently, the juvenile court entered an order of dependency as to the two

children. According to that order, the children were dependant “due to being

homeless, and without food, clothing and shelter.” The order noted the mother’s

frequent moves and that she had been staying week-to-week in different motels; at

one point, there was no food in her residence; and she was seen searching through

trash cans for food at a gas station. The order also noted the mother’s history of

abusive relationships with men and the children witnessing the abuse.

The mother’s ensuing reunification case plan required, among other things, that

she maintain stable housing for six consecutive months, maintain visitation with the

children, pay child support, participate in parenting classes, comply with random drug

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screenings, and comply with psychological referral for parental fitness and domestic

violence assessments. After a case plan judicial review and permanency planning

hearing, on September 9, 2015 the trial court entered an order detailing the mother’s

progress, including that, although she was still unemployed, she was visiting the

children, had enrolled in parenting classes, and had all negative drug screenings. At

the time, the mother was living with Walker at his grandmother’s house.

After a March 2, 2016 permanency hearing, the trial court found that the

mother had completed her psychological evaluation and continued to have clean drug

screenings. She was also working, had housing and was paying child support. A. K.

W. F., who was born on November 30, 2015, was living with the mother, and the

mother was allowed limited, but unsupervised visitation with A. F. and C. F.

However, the trial court found that before the children could be reunited with the

mother, additional elements of the case plan needed to be completed, including

mental health treatment.

On March 30, 2016, the mother visited DFACS and reported that the previous

night, she and Walker had an altercation and she was “fearful for her safety.” She said

that Walker “hit her frequently,” and was advised to get a Temporary Protective

Order (“TPO”) to have Walker removed from the lease. DFACS scheduled an

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appointment for the mother to meet with the District Attorney’s office to take out the

TPO, but she did not show up. However, Walker was arrested and charged with

family violence, and his probation was revoked. On May 25, 2016, after Walker was

released from jail and discovered hiding in the mother’s home, A. K. W. F. was taken

into DFACS custody.

The trial court’s order after a subsequent August 8, 2016 permanency hearing

revealed that, although the mother had achieved certain of her case plan goals, her

housing was uncertain because she lived in a mobile home that was leased to Walker.

The trial court “strongly cautioned” the mother about continued contact with Walker

because of their “domestic violence issues.” The mother had been referred for mental

health treatments, and had participated in vocational rehabilitation and applied for

Social Security disability.

On January 9, 2017, DFCS filed a petition to terminate the mother’s parental

rights, alleging that termination was in the children’s best interest because she: could

not maintain stable housing, employment, or transportation; had a history of abusive

relationships and did not protect the children from the effects of the abuse; and was

intellectually and emotionally incapable of safely parenting the children.

5
 Hearings on the termination petition was held on April 10, 2017 and April 20,

2017. A case manager with DFACS testified that the mother had a long history of

instability with housing, income and relationships, and that her involvement with

DFACS started in February 2013. At that time, DFACS received a report that the

mother was living with A. F. in an abandoned house in Columbus, Georgia, and a

family support case was opened the next month because the mother was homeless.

DFACS received a report in August 2013 that the family was homeless and that the

mother was observed striking one of her children while in a hospital emergency room.

In February and March 2014, DFACS investigated reports of neglect and family

violence, and the case was ultimately closed when the family moved in with the

mother’s mother-in-law.

The case manager further testified that the current case was a result of

allegations of neglect and family violence, including that the mother had reported that

Walker struck her in the head and stomach while she was pregnant with A. K. W, F.

According to the case manager, at the time of the termination hearing, the mother did

not have a stable income, refused to participate in therapy, and continued her

relationship with Walker, which endangered the children. She also testified that the

mother would not work with Georgia Vocational Rehabilitation Services (“GVRS”),

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had let her food stamps and other benefits lapse, and that the children would not be

safe in her care.

A job readiness specialist with GVRS testified that the mother had briefly

worked at a convenience store, but at the 90-day follow-up, the mother was no longer

working. A parent aide with Family Menders testified that while the mother was

cooperating with services, she missed at least 15 appointments and had at least 3

different residences. The aide testified that the mother had little or no food in the

home on several occasions, that she had bought food for the mother with her own

money, and that the mother had difficulty preparing even basic meals. According to

the aide, from the time she started working with the mother in July 13, 2016 until the

time of the hearing, the mother had only worked “maybe six to eight weeks.”

A friend of the mother’s testified that she would provide food for the mother

at times, that the mother had asked her not to tell DFCS that she was with Walker,

and that although the mother loves the children, she cannot take care of them,

financially or otherwise. The mother’s oldest child, and A. K. W. F. are placed with

the friend, and, she agreed that the children “have a good time seeing their mother,”

and that they love her and know that she’s their mother.

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 A psychologist, who had seen the mother on three different occasions, testified

that she did not believe that the mother could independently meet the needs of caring

for the children or provide an environment in which to raise them. According to the

doctor’s evaluation, the mother likely needed daily parenting support, and the doctor

diagnosed her with mixed personality disorder, borderline intellectual functioning,

and intellectual developmental disorder.

The mother testified that she currently had rent-free housing, acknowledged

that she was unemployed, but was trying to apply for Social Security disability

benefits. According to the mother, she was last employed a week before the

termination hearing but was fired within 30 minutes because she did not speak

Spanish. Five months earlier, she was fired from a gas station because she “burnt the

chicken.” When asked if she could keep a job, the mother answered “I can try.” She

further testified that she had never missed visits with the children, that the children

love her and she has a strong maternal bond with them, that she had paid her child

support, had completed parenting classes and psychological evaluation, and that the

only goal in her case plan that she had not completed was therapy. The mother

admitted that she let Walker come home when he got out of jail, and that she knew

8
he was not allowed to be around the children. The guardian ad litem recommended

that the mother’s parental rights be terminated.

The juvenile court issued an order terminating the mother and Walker’s

parental rights. The court concluded that there was clear and convincing evidence of

parental misconduct and inability, and that termination of parental rights was in the

children’s best interests considering their physical, mental, emotional, and moral

needs, including their need for permanency, stability, and a secure and stable home.

The court found, by clear and convincing evidence, that: the children were dependent;

the lack of proper parental care and control was the cause of the dependency; that

cause was likely to continue and not be remedied; and the continued dependency

would cause or was likely to cause serious physical, mental, emotional, or moral

harm. The court also found that reasonable efforts had been made, without success,

to prevent the need to remove the children from the home and to make it possible for

them to return to the home, and that the termination of parental rights would enable

the children to achieve a more stable home life through adoption.

In its order, the trial court included extensive factual findings including that,

the mother could not consistently provide a home and care for her children, the

mother’s lengthy history of financial and housing instability, her history of

9
relationships involving domestic violence with at least three men, admission that she

intended to reconcile with Walker, and five-year history with DFCS for these issues.

The trial court acknowledged that the mother had completed parenting classes, was

in counseling, and made some attempt to meet the requirements of her reunification

case plan, but that her progress was insufficient, and would never be sufficient, to

enable her to be a full-time independent parent.

On appeal, the mother contends that the evidence was insufficient to support

the termination of her parental rights. She asserts that the evidence demonstrated

substantial compliance with her case plan, including that, she completed parenting

classes and drug screening, was in counseling at the time of the termination hearing,

paid child support, and was significantly employed in 2016.

The termination of parental rights involves a two-pronged analysis. See OCGA

§ 15- 11-310. First, under OCGA § 15-11-310 (a), the trial court first determines

whether one of the requisite statutory grounds for termination of parental rights has

been met, including, the ground in this case, that:

[the] 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

10
 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). Second, if any of the statutory criteria has been met, the

trial court must ascertain whether termination of parental rights is in the best interest

of the child. The factors pertaining to the “best interest” inquiry include: (1) the

child’s sense of attachments, including the sense of security and familiarity and the

continuity of affection; (2) the child’s wishes and long-term goals; (3) the child’s

need for permanence, stability and continuity of relationships; and (4) other factors

listed in OCGA § 15-11-26, which the trial court considers relevant. See OCGA §

15-11-310 (b).

As to the statutory grounds, first, the mother did not appeal the juvenile court’s

order finding that the children were dependent, and thus she is bound by that order.

In the Interest of B. M., 298 Ga. App. 100, 102 (1) (a) (679 SE2d 113) (2009). In

considering whether the cause of the dependency is likely to continue, among other

matters, here the trial court considered evidence that, after more than two years under

the existing case plan, the mother was still not ready to resume independently caring

for the children. In the Interest of O. M. J., 297 Ga. App. 20, 27 (2) (b) (676 SE2d

421) (2009) (“The test in determining termination of parental rights is whether the

11
mother, ultimately standing alone, is capable of mastering and utilizing the necessary

skills to meet her parenting obligations.”) (citation and punctuation omitted; emphasis

in original). Moreover, although the mother contends that she achieved several of the

case plans goals, including recent housing, the mother’s housing was dependent on

her relationship with others, including an abusive boyfriend, and most recently,

whether her Social Security benefits were approved. The trial court was authorized

to find that her housing was not stable. See In the Interest of A. R., 302 Ga. App. 702,

709 (1) (c) (691 SE2d 402) (2010). Regarding “recent improvement, the trial court,

not the appellate court, determines whether a parent’s conduct warrants hope of

rehabilitation.” (Citations and punctuation omitted.) In the Interest of D. L. S., 271

Ga. App. 311, 314 (1) (c) (609 SE2d 666) (2005). Consequently, the trial court did

not err in finding that the dependency was likely to continue and will not likely be

remedied.

When a court assesses whether a child now in foster care is likely
to suffer serious harm as a result of continued deprivation, the court
must consider not only the likelihood of harm if the child remains
indefinitely in foster care, but also the likelihood of harm if the child
returns to the custody of his parent, notwithstanding that the deprivation
persists. The State is required to show that continued dependency will
cause harm. Dependency will cause harm only if all of the options

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 available to DFCS short of termination — keeping the child in foster
care, or returning the child to the parent — will themselves cause harm.
The State must show that both would cause harm. This Court has
reversed termination orders due to a lack of evidence that the children
would experience serious harm if they remained in foster care, even
when the State did show that the return of the child to the parent might
well cause harm. In considering whether there is evidence that
remaining in foster care will cause serious harm to a child, we have
examined both (1) the extent to which instability and impermanency are
currently causing specific harms to the child and (2) whether the
parent’s current relationship with the child is itself detrimental.

(Citation and punctuation omitted.) In the Interest of B. R. J., 344 Ga. App. 465, 475-

476 (1) (d) (810 SE2d 630) (2018). See In the Interest of A.S., 339 Ga. App. 875, 881

(3) (2016) (“The State must show that both scenarios would likely cause serious harm

in order for a termination of parental rights to be justified.”)

Here, although the trial court found that “serious harm will occur to the

children if the children are returned to the care of either parent,” the trial court did not

assess the extent to which instability and impermanency are currently causing specific

harms to the children, and whether, as a result of the dependency, the children would

be harmed by remaining in foster care indefinitely. Although the psychologist who

evaluated the mother testified that the mother’s abusive relationship with Walker was

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“not healthy for the children and that’s going to lead to more trauma when they are

taken away again,” there was no testimony at all from any witness about the effects,

harmful or otherwise, of foster care on the children in relation to their dependency.

There was “no . . . finding regarding how continuing the status quo would harm the

children in this case.” In the Interest of B. R. J., 344 at 476. See In the Interest of A.

T., 271 Ga. App. 470, 473-475 (610 SE2d 121) (2005) (reversing termination of

rights given no particularized evidence as to adverse effects of foster care or

impermanency on the children in question).

While “our Court has recognized, in case after case, that children should not

be required to linger unnecessarily and indefinitely in foster care, inasmuch as

children need permanence of home and emotional stability, or they are likely to suffer

serious emotional problems,” In the Interest of C. L., 315 Ga. App. 607, 612 (1) (b)

(727 SE2d 163) (2012), the evidence was “insufficient to support [the trial court’s]

conclusion that any continued dependency experienced by these children will cause

or is likely to cause them serious physical, mental, emotional, or moral harm, and we

therefore reverse.” In Interest of E. M. D., 339 Ga. App. 189, 206 (2) (793 SE2d 489)

(2016).

Judgment reversed. Ellington, P.J., and McMillian J., concur.

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