315 Ga. App. 673
Ga. Ct. App.2012Background
- Two five-year-old twins (M.M. and M.M.) were deprived; a two-year custody disposition was entered in favor of the father after a May 9, 2011 adjudication finding deprivation.
- Mother left the children with the father in July 2010 and did not visit or pay support for five months prior to the deprivation petition in November 2010.
- DFACS initially removed the children from the mother’s care in 2007 for a positive drug test; safety plans placed the children with the maternal sister.
- Paternity testing confirmed the father as the twins’ father; the mother had previously pursued a legitimation/custody action that was pending.
- The juvenile court found present deprivation and granted temporary custody to the father in June 2011; mother appeals the jurisdiction and the sufficiency of the evidence.
- The appellate court affirms, concluding the petition was deprivation, not a disguised custody dispute, and that there was clear and convincing evidence of present deprivation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction of the deprivation petition | Mother argues deprivation is a custody dispute; juvenile court lacks jurisdiction | Father asserts petition was properly a deprivation action | Jurisdiction affirmed: petition was deprivation, not a disguised custody action. |
| Sufficiency of evidence of present deprivation | Mother challenges the adequacy of present-deprivation findings | Father contends evidence shows present deprivation and risk to the children | Evidence supports present deprivation and RC strong enough to uphold the finding. |
Key Cases Cited
- In re K.L.H., 281 Ga.App. 394, 636 S.E.2d 117 (2006) (deprivation petitions judged on merits; not a prima facie custody dispute)
- In re M.C.J., 271 Ga. 546, 523 S.E.2d 6 (1999) (deprivation jurisdiction defined; distinguish custody actions)
- In re W.W., 308 Ga.App. 407, 707 S.E.2d 611 (2011) (factors for deprivation include lack of stability; review standard)
- In re V.D., 303 Ga.App. 155, 692 S.E.2d 780 (2010) (stability and improvements considered in deprivation analysis)
- In the Interest of T.P., 291 Ga.App. 83, 661 S.E.2d 211 (2008) (stability and housing/ employment as deprivation factors)