concurring in part and dissenting in part.
This is a difficult case. It illustrates perfectly the interests that must be balanced in cases involving the termination of parental rights. On the one hand, Georgia law zealously guards the rights of parents to retain custody and control of their children; on the other hand, the law protects the safety and health of children.3 As a remedy of last resort, the courts will terminate parental rights if the State proves parental misconduct or inability by clear and convincing evidence.4 Balancing these competing concerns in this case, I conclude that the State failed to carry its burden and that the juvenile court should not have terminated appellants’ parental rights. Thus, while I concur with the majority’s opinion in Case No. A99A1396, affirming the juvenile court’s order holding that J. V. is a deprived child, I respectfully dissent from the majority’s opinion in Case No. A99A1397, affirming the juvenile court’s order terminating appellants’ parental rights.
As the majority notes, to prove parental misconduct or inability justifying the termination of appellants’ parental rights, the State must present clear and convincing evidence that: (1) J. V. was deprived; (2) his deprivation was caused by a lack of proper parental *630care or control; (3) the cause of J. V.’s deprivation is likely to continue; and (4) continued deprivation will likely cause serious harm to J. V.5 I agree with the majority that the State carried its burden with respect to the first two factors. I cannot agree, however, that the State presented clear and convincing evidence that J. V.’s deprivation would likely continue if he were returned to appellants’ custody.
The majority concludes that the deprivation would likely continue based on appellants’ past conduct. Although the juvenile court was authorized to consider that conduct in evaluating the likelihood of future deprivation, “evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in [his or] her natural child; clear and convincing evidence of present unfitness is required.”6 There is no evidence of present unfitness in this case.
Appellants complied in every respect with the case plan established by the Department of Family & Children Services and adopted by the juvenile court to reunite them with their son. That plan required appellants to take a parenting class, to keep in contact with the DFCS case manager, and to pay child support. The majority fails to recognize that appellants did all of this and more. They took parenting classes, as well as an additional cardiopulmonary resuscitation class; they paid monthly child support for J. V; and there is no evidence that they failed to communicate with DFCS. They also visited J. V. three to four times per week, provided his formula and diapers, and washed his clothes. J. V.’s physical custodian testified that appellants followed all of DFCS’ rules during the visits, treated J. V. carefully and protectively, and did “everything to show me that they are good parents.” J. V.’s mother testified that if J. V. were returned to the custody of his parents, she would stay home with him, treat him carefully, cooperate with DFCS, and ensure that J. V. received effective medical care. Finally, appellants submitted to polygraph tests; which they passed, and were evaluated by a clinical psychologist, who testified that they did not seem capable of violence.7 Thus, the unrefuted evidence showed that appellants complied fully with the reunification case plan and that they are conscientious and willing to take any step required in order to be reunited with their child. Under these circumstances, Georgia law does not allow us to terminate their parental rights at this time.8
*631The majority concludes that J. V.’s deprivation would likely continue because of appellants’ failure or inability to come forward with an explanation for his injuries. The case plan developed by DFCS, however, contained no such requirement, and there is no evidence in the record that anyone from DFCS ever demanded such an explanation from appellants as a precondition to the return of their child.9 We must remember that the burden of proof in a termination case lies with the State, not the parents.10 Having elected to remove J. V. from his parents’ custody and to develop a reunification case plan, DFCS was responsible for clearly stating the requirements of that plan:
The [case] plan . . . shall contain . . .[a] clear description of the specific actions to be taken by the parents and the specific services to be provided by [DFCS] or other appropriate agencies in order to bring about the identified changes that must be made in order for the child to be safely returned home. 11
Appellants were not required to read additional provisions into the case plan based upon speculation about what DFCS might really have wanted. In fact, appellants were in a particularly poor position to do so because, as DFCS knew, they are native Spanish speakers with a minimal command of the English language. Although appellants did not offer a conclusive explanation for J. V.’s injuries, that was not a requirement of the plan, and the evidence showed without dispute that appellants took all actions that were specifically required by the plan.
The majority apparently dismisses appellants’ compliance with the case plan because the plan failed to address the cause of J. V.’s injuries. The majority points out that the DFCS caseworker testified that she could not develop a meaningful plan because appellants provided no explanation for the injuries. But DFCS determined that reunification may be appropriate, and DFCS was therefore required to formulate a plan addressing “each reason requiring removal” of J. V. from appellants’ custody and prescribing “specific actions ... in order to bring about the identified changes that must be made in order for the child to be safely returned home.”12 The case plan could have — and probably should have — explicitly required that appellants satisfactorily explain the reasons for their son’s injuries. Alternatively, DFCS could have determined at the outset that reunifica*632tion was not appropriate, or it could have proceeded as though all three caregivers were child abusers and required appropriate rehabilitative or protective measures.13 But DFCS took none of these steps. Instead, it chose to develop a case plan that skirted the very issue which it now blames appellants for failing to address and on which it bases its petition to terminate their parental rights: what exactly happened to J. V.? It is unfair and contrary to the law to penalize appellants for the shortcomings in the case plan developed and administered by DFCS. The whole point of a reunification plan is that the parents are entitled to regain custody of their child if they meet its requirements. Because appellants complied fully with every stated provision of the plan, I believe their parental rights should not be permanently severed at this juncture.
Decided December 1, 1999 Reconsideration denied December 20, 1999 Rebecca A. Hulsey, Wayne D. Keaton, for appellants. Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Edwards, Friedewald & Grayson, Robert J. Grayson, for appellee.Like the majority, I am troubled by the number and extent of J. V.’s fractures and the absence of any conclusive explanation for them. By dissenting in this case, I do not intend in any way to minimize the horror of what happened to J. V. But I also cannot disregard the parents’ actions since the injuries occurred. As my colleagues will likely agree, we seldom see a parental rights termination case in which the parents have not only complied with every provision of the case plan, but have gone beyond the requirements of the plan to ensure the welfare of their child.
I am reminded of the adage that “bad facts make bad law.” The facts with regard to J. V.’s injuries are undeniably bad. But it remains the burden of the State to prove present parental unfitness by clear and convincing evidence. This the State failed to do. The evidence in the record simply does not allow an inference of present parental unfitness in light of appellants’ full compliance with the case plan and other actions since J. V. was removed from their custody. Accordingly, I dissent.
In re Suggs, 249 Ga. 365, 367 (2) (291 SE2d 233) (1982).
In the Interest of K. E. B., 190 Ga. App. 121, 124 (378 SE2d 171) (1989).
See OCGA § 15-11-81 (b) (4) (A).
(Punctuation omitted; emphasis in original.) In the Interest of K. J., 226 Ga. App. 303, 304 (1) (486 SE2d 899) (1997).
There is no evidence that the maternal grandmother, who also had access to the child, submitted to such testing.
See In the Interest of J. E. E., 235 Ga. App. 247, 249-250 (509 SE2d 147) (1998) (no termination of parental rights where evidence showed natural mother complied with goals of case plan); In the Interest of K. E. B., supra at 124-125.
In fact, the evidence showed that, with the exception of Rachel Oliver’s half-hour visit on November 14, no one from DFCS ever visited appellants for any reason.
See In the Interest of H. L. T., 164 Ga. App. 517, 520 (298 SE2d 33) (1982).
(Emphasis supplied.) OCGA § 15-11-41 (d) (3).
Id.
See OCGA § 15-11-41 (b) (4), (d).