FIRST DIVISION
BARNES, P. J.,
COOMER and PIPKIN, 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
October 19, 2020
In the Court of Appeals of Georgia
A20A1417. IN THE INTEREST OF T. Y. et al., children. CO-062
COOMER, Judge.
This case returns to us from remand. In the first instance, this Court vacated the
juvenile court’s denial of a motion for immediate reunification and return of the
mother’s six children to her custody. See Interest of T. Y., 350 Ga. App. 553, 553,
(829 SE2d 808) (2019). The mother appeals from the juvenile court’s order on
remand again denying her motion for reunification and argues that the juvenile court
erred by finding (1) continued dependency, (2) that the continued dependency would
cause serious harm, and (3) that the evidence to support such findings was clear and
convincing. The mother also asserts that the juvenile court’s findings were against
weight of the evidence presented at the hearing and that the juvenile court erred by
modifying her visitation without applying the correct legal standard. For the reasons
expressed below, we reverse.
On appeal from an order finding [children] to be [dependent children],
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 [children are] 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 [children] whose well-being is threatened.
Interest of M. S., 352 Ga. App. 249, 256 (834 SE2d 343) (2019) (citation omitted).
“[U]nder Georgia law, ‘clear and convincing evidence’ is an intermediate standard
of proof which is greater than the preponderance of the evidence standard ordinarily
employed in civil proceedings, but less than the reasonable doubt standard applicable
in criminal proceedings.” In Interest of K. M., 344 Ga. App. 838, 847 (2) (811 SE2d
505) (2018) (citation and punctuation omitted). Viewed in the light most favorable
to the juvenile court’s order,1 we recite the facts as stated in our prior opinion:
1
See In Interest of R. D., 346 Ga. App. 257, 259 (1) (816 SE2d 132) (2018).
2
[T]he mother is the biological parent of six children, including T. Y., a
son born in 2006; K. T., a daughter born in 2010; L. T., a son born in
2011; H. T., a daughter born in 2013; J. T., a daughter born in 2014; and
A. T., a son born in 2017. Joseph Yeater—whose whereabouts are
unknown—is the biological father of T. Y., and Lawrence Turner is the
biological father of the remaining children. Turner is currently
incarcerated, having pleaded guilty to charges of vehicular homicide.
DFCS’s first involvement with the mother and her children occurred in
May 2010, when the mother’s second oldest child drowned in the
bathtub. At that time, DFCS imposed a safety plan, which was ultimately
closed. DFCS became involved again in 2014, when the mother called
the police when she noticed bruising on T. Y. after Turner spanked the
child. Turner was charged with cruelty to children, and DFCS
implemented a safety plan requiring that he be separated from all the
children.
On November 18, 2015, police officers found then eight-year-old T. Y.,
who has been diagnosed as autistic, wandering the streets alone after
midnight. When questioned, he told authorities that he was going to
Walmart to buy a new mother, provided his mother’s name, and claimed
that he had run away from home before. The mother was located later
that day, but when investigators went to the home, they found it to be
unsafe. Consequently, on November 23, 2015, DFCS filed a petition
alleging that T. Y., five-year-old K. T., three-year-old L. T.,
two-year-old H. T., and one-year-old J. T. were all dependent. That same
day, the juvenile court entered a preliminary protective hearing order,
3
nunc pro tunc to November 19, 2015, placing the children in the
temporary custody of DFCS.
On December 16, 2015, the juvenile court—with the mother and
Turner’s consent—entered an order of adjudication and disposition
finding the children to be dependent and, again, granting temporary
custody of the children to DFCS. The juvenile court further noted the
cruelty-to-children charge pending against Turner as a result of his
unreasonable, excessive use of corporal punishment against T. Y. and
that he had other pending criminal charges in Jeff Davis County,
including homicide by vehicle in the first degree, driving under the
influence of alcohol, and failure to maintain lane. Additionally, as part
of this order, the juvenile court incorporated a reunification plan, which
required Turner and the mother to establish and maintain an appropriate
home and income for the children, undergo psychological evaluations
and any treatment recommended as a result of such evaluations,
complete a certified parenting class, and fully cooperate with DFCS.
On May 31, 2016, the mother and Turner filed a motion seeking to
regain custody of the children on the ground that they had completed
most of their reunification plan goals. But in a “Judicial Review Order”
dated June 23, 2016, the juvenile court noted that then five-year-old K.
T. alleged to her foster parent that Turner sexually abused her. An
investigation was conducted, and although the allegations could not be
substantiated at that time, K. T.’s foster parent continued to express
concerns. Additionally, the advocacy center that investigated K. T.’s
allegation of abuse recommended the child have no contact with Turner
4
and that a more thorough investigation be conducted. Nevertheless, on
July 27, 2016, the mother and Turner filed another motion, this time
requesting to reestablish visitation with K. T. and, alternatively, for a
return of custody of all the children. On January 12, 2017, following a
December 8, 2016 hearing, the juvenile court denied the mother and
Turner’s July 27, 2016 motion, finding that the mother had yet to seek
counseling for her various mental-health issues and that Turner still had
several criminal charges pending against him.
On April 13, 2017, the juvenile court entered a judicial review and
permanency hearing order, finding that the mother had given birth to
another child (A. T.) and had hidden her pregnancy from both DFCS and
the court. In addition, the juvenile court’s order found that the mother
failed to comply with her reunification case plan and Turner had been
sentenced to 15 years in prison with five years to serve after pleading
guilty to the vehicular-homicide charges. On July 13, 2017, the juvenile
court issued another order, finding that although the mother had made
progress on her plan, she required further mental-health treatment.
On July 21, 2017, the mother filed a motion to return all the children to
her custody, arguing that it was in the children’s best interest to be
reunified with their mother, and the DFCS caseworker and children’s
pediatrician concurred. The juvenile court held a multi-day hearing on
the mother’s motion on August 31, 2017; September 22, 2017; and
September 28, 2017. And during that hearing, the DFCS caseworker
testified that the mother had positive interactions with the children
during visitations and was complying with her case plan, including
5
continuing to undergo counseling for her mental-health issues. She also
testified that the mother’s new home is clean and safe, but conceded that
the home was in Turner’s name, who was currently incarcerated. With
regard to Turner, the caseworker admitted that she had concerns about
him being around the children upon his release, in light of the
allegations that he physically abused T. Y. and sexually abused K. T.,
but she did not believe the mother would risk losing her children by
allowing Turner back into her life. She also acknowledged that the
mother claimed she was uncertain as to whether Turner caused T. Y.’s
bruises and that she had no intention of seeking a divorce. Additionally,
the caseworker admitted that the mother lied to her about being pregnant
with A. T. and, in fact, did not admit that A. T. was her child until nearly
two months after his birth. Nevertheless, the caseworker recommended
that all six children be returned to the mother’s custody.
The juvenile court also considered testimony from a child psychologist
charged with treating K. T. for post-traumatic stress disorder, who
opined that the child’s evaluations were consistent with that of a child
who had been sexually abused. The psychologist further testified that
she did not think K. T. should be returned to the mother’s custody until
it could be determined whether she was complicit in the child’s sexual
abuse.
In addition, a visitation supervisor with Horizon Family Services
testified that the mother interacted well with the children and that her
home was always clean. Consequently, she thought the children should
be returned to the mother, but she also admitted that she was not aware
6
of the details of the reunification plan or whether the mother had fully
complied with it. Similarly, two additional visitation supervisors, one
with Horizon and the other with TLC Services, also testified that the
mother interacted well with the children during visits and that the
children wanted to return home.
Several of the children’s current foster parents also testified. The foster
parent for L. T. testified that the mother interacted well during visits,
attended all of L. T.’s medical appointments, and, therefore, she
believed L. T. should be returned to the mother’s custody. The foster
parent for T. Y. similarly testified and also advocated for reunification.
The foster parent for K. T. testified that the girl currently denies that
Turner sexually abused her, but she also acknowledged that K. T. told
several counselors that such abuse had occurred, and she admitted that
she was unsure if K. T. would be safe if returned to the mother’s
custody. Additionally, the foster parent for A. T. testified that the mother
interacted well with the child and attended all of his medical
appointments. But she, nonetheless, had concerns about returning A. T.
to the mother’s custody.
Three separate mental-health counselors testified as to their treatment of
the mother. The first counselor stated that she was treating the mother
for anxiety and depression and that she met one of her treatment goals
and was making good progress toward the others. The counselor also
stated that the mother had done well in her parenting classes, but, at this
point, she was unable to provide an opinion as to whether the children
should immediately be returned to her custody. The second counselor
7
testified that the mother complied with her recommendations regarding
parenting education but that she needed to continue undergoing
education for dealing with T. Y.’s autism and K. T.’s sexual-abuse
allegations. The counselor believed that the mother could care for the
children if she complied with these recommendations and also
advocated for A. T.’s immediate return so that the young child could
bond with the mother. The third counselor testified that the mother was
compliant and on target for meeting her plan goals. But the counselor
did express concerns that the mother did not agree K. T. had been
sexually abused and that she wanted her entire family to be reunited,
including Turner.
The mother testified at the hearing and claimed she was continuing with
mental-health counseling but had otherwise completed her case plan,
including obtaining a stable home and income. She admitted lying to
DFCS about her pregnancy with A. T., claiming that she was worried
she would lose custody of the child. She further testified that she was
unsure as to the cause of T. Y.’s bruises, but noted that she was the one
who involved the police after discovering them. The mother also stated
that she was not sure Turner had sexually abused K. T. or physically
abused T. Y., but she was open to that possibility. Additionally, she
testified that she did not believe Turner was guilty of vehicular homicide
even though he pleaded guilty to that offense and she had visited Turner
in jail on several occasions. Nevertheless, she claimed that she did not
intend to reunite with Turner upon his release because being reunited
with her children was more important.
8
Finally, despite the DFCS caseworker’s testimony recommending that
the children be returned to the mother’s custody, the caseworker’s
supervisor disagreed. Specifically, the DFCS supervisor agreed that the
mother had been complying with her case plan with regard to
counseling, but the supervisor insisted that she still had not seen a
significant change in behavior. The supervisor testified that she was
particularly concerned by the mother’s refusal to believe Turner had
sexually abused K. T., and that she continues to choose her husband
over her children. For these reasons, the supervisor worried that the
children will not be protected when Turner is eventually released from
prison. The guardian ad litem agreed with this assessment, and, during
the hearing, recommended that the juvenile court deny the mother’s
motion and increase visitation at a Court Appointed Special Advocates
(“CASA”) site.
At the conclusion of the hearing, the juvenile court took the matter
under advisement. Then, on January 19, 2018, the court issued an order
denying the mother’s motion to have the children immediately returned
to her custody.
Interest of T. Y., 350 Ga. App. at 554-558.
The mother appealed and this Court vacated the trial court’s ruling denying the
mother’s motion for immediate reunification and return of the children to her custody
and remanded the case to the juvenile court with direction. Interest of T. Y., 350 Ga.
App. at 561-562. Specifically, we found that the juvenile court’s order did not comply
9
with the statutory requirements of OCGA §§ 15-11-111 (b) (2) and 9-11-52 (a),
leaving this Court without the means to make an intelligent or meaningful review of
the mother’s contentions. Id. at 561. On remand, the juvenile court entered a new
order denying the mother’s motion for return of custody which included its findings
of facts and conclusions of law. In the order, the juvenile court concluded that the
children continued to be dependent and that if the children are returned to the
mother’s custody, the mother would fail to protect the children from Turner upon his
release from incarceration. In reaching its conclusion, the juvenile court noted the
mother’s ongoing mental health issues, her financial dependence on Turner, her
dishonesty with respect to her pregnancy with A. T., and the likelihood that the
mother and Turner would resume their relationship upon his release from
incarceration. This appeal followed.
1. The mother asserts that the juvenile court erred in finding continued
dependency because the three bases upon which the juvenile court found continued
dependency, – that is, (1) the death of a child five years prior to the removal of the
children from the home, (2) Turner’s alleged abuse of T. Y., and (3) Turner’s alleged
sexual abuse of K. T., were insufficient to support such a finding. We disagree with
the mother’s assertions, but find cause for reversal of the juvenile court’s order
10
because the order did not identify specific factual findings that authorized its
conclusion that the children are presently dependent and that the cause of the
children’s dependency is likely to continue. See In Interest of D. W., 340 Ga. App.
508, 512 (3) (798 SE2d 49) (2017).
“The Juvenile Code defines ‘dependent child,’ in relevant part, as a child who
‘[h]as been abused or neglected and is in need of the protection of the court.’” In
Interest of H. B., 346 Ga. App. 163, 164 (1) (816 SE2d 313) (2018). See also OCGA
§ 15-11-2 (22) (A). “Neglect,” is defined as “[t]he failure 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.” OCGA §
15-11-2 (48) (A). In determining whether a child is without proper parental care or
control, courts shall consider “[e]gregious conduct or evidence of past egregious
conduct of a physically, emotionally, or sexually cruel or abusive nature by such
parent toward his or her child or toward another child of such parent; . . . [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[.]”
OCGA § 15-11-311 (a) (4)-(5). To make its determinations, the juvenile court may
consider evidence of past misconduct because “the juvenile court is not required to
11
reunite a child with a parent in order to obtain current evidence of [dependency] or
neglect.” In Interest of B. S., 265 Ga. App. 795, 797 (595 SE2d 607) (2004) (citation
and punctuation omitted). “Nevertheless, the record must contain evidence of present
dependency, not merely past or potential future dependency.” In Interest of H. B., 346
Ga. App. at 165 (1).
In its order on remand denying the mother’s motion for immediate
reunification, the juvenile court makes several findings of facts in support of its
conclusion that the children remain dependent. The juvenile court noted that although
Turner did not pose an immediate threat to the children, the mother’s “subservient”
relationship with Turner prior to and since his incarceration, her reluctance to believe
the allegation of sexual abuse made by K. T. against Turner, her denial that Turner
committed harmful acts against T. Y., her ongoing mental health issues, and her
“repeated” dishonesty in her dealings with DFCS led the court to conclude that if the
children were returned to the mother’s custody, upon Turner’s release from
incarceration, the mother and Turner would once again live together, and by either
her acts or omissions, the children would be subject to maltreatment.
Despite the juvenile court’s reference to the children’s past dependency and the
possibility of future dependency should the mother and Turner reunite, the order does
12
not expressly state the cause of the children’s present dependency. See In Interest of
A. J. H., 325 Ga. App. 848, 852 (755 SE2d 241) (2014) (“[T]he record must contain
evidence of present deprivation, not past or potential future [dependency].” (citation
and punctuation omitted)). Where the children have been removed from parental
custody, current dependency may be proved by showing that, “if the children were
returned to their mother at the time of the hearing, they would be [dependent].2 This
may be established by showing that the conditions upon which an earlier finding of
[dependency] was based still exist at the time of [the hearing].” In Interest of B. R. J.,
344 Ga. App. 465, 473 (1) (a) (810 SE2d 630) (2018) (citation and punctuation
2
The Juvenile Code was substantially revised in 2013.
Importantly, the former Juvenile Code authorized a
juvenile court to award custody to the Department of any
minor child shown to be “deprived.” But the current
Juvenile Code uses the word ‘dependent’ in lieu of
“deprived.”. . . Nonetheless, given the similarities between
the definition of a “deprived child” and that of a
“dependent child,” we find that “our previous decisions
addressing the deprivation of a child are relevant to appeals
involving the dependency of a child.
Interest of T. Y., 350 Ga. App. at 558 n. 3 (citations and punctuation omitted).
13
omitted). According to the juvenile court’s own findings, the conditions upon which
it had made the earlier finding of [dependency] had changed by the time of the
hearing. The juvenile court made findings of fact that the mother was attending
counseling and making progress with her mental health issues, was in compliance
with several requirements of the case plan for reunification, attended the medical
appointments for the children, had adequate and clean housing and income for the
children, and interacted well with the children during her supervised visits. More
importantly, Turner remained incarcerated at the time of the hearing with several
years to serve on his 15 year prison sentence. “[A] finding of parental unfitness is
essential to support an adjudication of present dependency.” In Interest of H. B., 346
Ga. App. at 165 (citation omitted). And this Court has defined “unfitness” on the part
of a parent as “either intentional or unintentional misconduct resulting in the abuse
or neglect of the child or by what is tantamount to physical or mental incapability to
care for the child.” In Interest of A. J. H., 325 Ga. App. at 852 (citation omitted).
In its findings of fact, the juvenile court noted that it had conducted all prior
hearings in the case, and that despite the testimony of several witnesses
recommending reunification, it was the court’s belief, based on its observations, that
the mother is “superficially a good mother.” While it is not the duty of this Court to
14
weigh the evidence or determine the credibility of witnesses, when appellate
standards are not met, we cannot affirm the juvenile court’s decision. In Interest of
B. M. B., 241 Ga. App. 609, 609 (527 SE2d 250) (1999). Here, the crux of the
juvenile court’s reluctance to reunite the mother with the children is based on the
potential of the mother reuniting with Turner upon his release from incarceration and
the juvenile court’s belief that the mother would fail to protect the children from him.
However, these facts at best establish the potential for future dependency and do not
establish by clear and convincing evidence present dependency. See Interest of M. S.,
352 Ga. App. at 261 (facts at most established potential future dependency, not
present dependency where the parents with a history of domestic violence lived next
door to each other, remained friends, and considered entering into a romantic
relationship again in the future).
Considering the foregoing, we conclude that the record was insufficient to
support the juvenile court’s determination that at the time of the hearing, and by clear
and convincing evidence, the children were presently dependent as a result of the
mother’s unfitness. See Interest of K., 353 Ga. App. 855, 863 (840 SE2d 76) (2020)
(“[T]he record before the deciding court must contain evidence of present
15
dependency, not merely past or potential future dependency.” (emphasis in original)).
Consequently, we reverse the juvenile court’s finding of dependency.
2. As we find that there was insufficient evidence to support the juvenile
court’s finding of dependency, we need not reach the mother’s remaining
enumerations of error.3
Judgment reversed. Barnes, P. J., and Pipkin, J., concur.
3
In her fifth enumeration of error, the mother alleged that the trial court erred
by modifying her visitation without articulating the standard by which it applied to
making the decision. However, because the order giving rise to this appeal did not
address the mother’s visitation, and the mother has not shown that the issue was
raised in the juvenile court, the mother cannot raise this issue for the first time on
appeal. See In Interest of M. L. C., 249 Ga. App. 435, 436 (1) (548 SE2d 137) (2001).
16