In Re Mss
708 S.E.2d 570
| Ga. Ct. App. | 2011Background
- Cobb County Department of Family and Children Services assumed temporary custody of M.S.S. after mother’s home exposed to marijuana smoke (Sept 2007).
- Deprivation petition filed; deprivation found based on mother’s housing instability, incarceration, and need for substance-abuse evaluation/treatment.
- Temporary custody extended repeatedly; hearings held in Sept–Nov 2008 and through Nov 2010, with mother largely noncompliant and absent.
- Mother’s contact with M.S.S. was sporadic from Sept 2007 to Nov 2009; she faced probation violations and intermittent incarceration.
- Case plan required housing, employment, drug treatment, psychological evaluation, parenting classes, and stable income; mother failed to meet major requirements for over a year.
- CASA recommended termination; foster mother sought adoption; child bonded with foster family and flourished in their care.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to enter termination order | Mother argues orders after Sept 20, 2008 void. | Department argues jurisdiction preserved by waiver and interim extensions. | Jurisdiction preserved; waiver/alternate hearing valid; orders not void. |
| Whether deprivation continued and harm proven | Mother contends deprivation unlikely to continue; progress shown. | Department showed prolonged failure to achieve housing and employment; risk of harm. | Clear and convincing evidence shows deprivation likely to continue and would cause serious harm. |
| Best interests support termination | Mother argues undue emphasis on status quo; not enough to terminate. | Foster bond and permanency concerns outweigh mother’s progress. | Termination in child’s best interest given lack of progress and stable placement needs. |
| Ineffective assistance of counsel | Counsel should have challenged void orders and deprivation finding at termination. | Counsel’s handling reasonable; lack of prejudice to outcome; deprivation finding still valid. | No ineffective assistance; counsel’s performance not prejudicial. |
Key Cases Cited
- In the Interest of A.S.O., 243 Ga.App. 1, 530 S.E.2d 261 (2000) (waiver of mandatory procedures possible by parent’s conduct)
- In the Interest of C.S., 236 Ga.App. 312, 511 S.E.2d 895 (1999) (waiver of timely hearing by failure to appear)
- In the Interest of R.S., 287 Ga.App. 228, 651 S.E.2d 156 (2007) (standard for sufficiency in termination cases)
- In the Interest of P.D.W., 296 Ga.App. 189, 674 S.E.2d 338 (2009) (current deprivation must be proven at termination hearing)
- In the Interest of J.K., 278 Ga.App. 564, 629 S.E.2d 529 (2006) (harm assessed by likelihood of harm if returned to parent)