In the Interest of M. S. S.
308 Ga. App. 614
| Ga. Ct. App. | 2011Background
- Cobb County police found mother and M. S. S., about 15 months old, in an apartment with marijuana smoke; DFACS assumed temporary custody two days later.
- The Department filed a deprivation petition; in October 2007 the court found M. S. S. deprived based on mother’s stipulation that father abandoned the child and mother was incarcerated, lacked stable housing, and needed substance-abuse assessment and treatment.
- Temporary custody to the Department was awarded with reunification as the plan, and the order was entered nunc pro tunc to September 20, 2007, expiring September 20, 2008 unless modified.
- The Department requested extensions of custody; hearings were scheduled for September and November 2008; mother and father failed to appear at key hearings, leading to interim extensions.
- A second extension was granted in November 2009, extending custody through November 5, 2010, with deprivation found against the mother based on failure to maintain communication and progress on the case plan.
- In October 2009 the Department filed a petition to terminate the mother’s parental rights; at the February 24, 2010 termination hearing, evidence showed sporadic contact, incarcerations, probation violations, and limited employment and housing stability; CASA recommended termination; the child had bonded with a foster mother who desired adoption; the court found M. S. S. deprived, likely to remain deprived, and that termination was in her best interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction after expiration of temporary order | Mother alleges no timely hearing before September 20, 2008 voids orders | Court retained jurisdiction via waiver and interim extensions; transcript unavailable | Jurisdiction retained; orders valid |
| Whether deprivation was likely to continue and cause harm | Recent progress undermines likelihood of continued deprivation | Past prolonged noncompliance supports continuing deprivation and harm | Sufficient evidence of likelihood of continued deprivation and serious harm |
| Whether termination was in child’s best interest | Not properly argued or proven | Record supports best interest finding | Termination in child’s best interest |
| Effective assistance of counsel | Counsel should have appealed void orders and deprivation finding | Orders not void; lack of appeal on deprivation did not prejudice results | Counsel not ineffective; no prejudice shown |
Key Cases Cited
- In the Interest of A. S. O., 243 Ga. App. 1 (Ga. App. 2000) (waiver of timely hearing in deprivation/termination cases possible by parties’ conduct)
- In the Interest of C. S., 236 Ga. App. 312 (Ga. App. 1999) (mandates and consequences of missing hearings; waiver implied by conduct)
- In the Interest of B. B. S., 253 Ga. App. 119 (Ga. App. 2001) (recording of extensions and hearings; lack of transcript impacts review)