330 Ga. App. 817
Ga. Ct. App.2015Background
- Child S.R.R., born Oct. 1, 2010, was hospitalized for two weeks (enlarged heart) then placed with a friend; DFCS removed him June 21, 2012 and juvenile court later found him deprived and extended DFCS custody.
- DFCS opened a non-reunification/adoption case plan; mother was allowed weekly visitation (modified from biweekly) and completed most case-plan tasks (parenting, anger management, psychological evaluation, probation, some child support) and consistently visited and bonded with the child.
- Mother suffers from multiple serious health conditions (multiple sclerosis, diabetes, fibromyalgia, lupus) and takes prescribed narcotics/controlled medications; she receives about $740/month SSI but supplemented income with driving work and had a potential $500/week job offer at hearing.
- DFCS alleged unsuitable housing, continued cohabitation with a putative father with history of domestic violence, and misuse of disability income to support putative father’s family; evidence showed the putative father and his family had moved out months before the termination hearing.
- DFCS placement worker observed trash/beer cans outside during attempted home visits; mother presented photographs showing trash removed and an interior suitable for the child (separate bedroom, child bed, toys); mother testified she no longer smokes inside.
- Juvenile court terminated mother’s parental rights; mother appealed, arguing insufficient clear and convincing evidence of present unfitness or likelihood the cause of deprivation would continue and cause serious harm. Court of Appeals reversed.
Issues
| Issue | Mother’s Argument | DFCS’s Argument | Held |
|---|---|---|---|
| Whether evidence (clear and convincing) showed present parental unfitness to support termination | Evidence shows mother completed plan, bonds with child, has stable home and income prospects; disabilities do not render her incapable | Mother’s disabilities, limited income, alleged filthy home, prior lack of custody, and domestic tension show present unfitness | Reversed — evidence did not clearly and convincingly show present unfitness |
| Whether the cause of deprivation is likely to continue and cause serious harm | Past deprivation related to circumstances that have changed; mother addressed many issues and can care for child despite disabilities | Mother’s limited resources, medications, and prior non-custody make continuation likely | Reversed — insufficient proof that cause of deprivation is likely to continue |
| Whether poverty or disability alone can justify termination | Poverty/disability alone do not justify termination absent incapacity to care for child | Poverty/disability indicate inability to provide stable care | Reversed — court emphasized poverty/disability alone insufficient to terminate |
| Credibility and home-condition findings supporting termination | Mother disputed observations, produced evidence showing cleanup and employment prospects | DFCS relied on placement worker observations (trash, beer cans) and juvenile court questioned mother’s credibility | Court found contested facts (cleanup, absent putative father, employment) undercut clear-and-convincing standard; credibility issues insufficient to sustain termination |
Key Cases Cited
- In the Interest of A. B., 311 Ga. App. 629 (establishing standard of review for termination appeals)
- In the Interest of C. J. V., 323 Ga. App. 283 (termination requires clear and convincing evidence of present unfitness; poverty/disability insufficient alone)
- In the Interest of T. F., 250 Ga. App. 96 (requires showing present, not merely past, unfitness)
- In the Interest of C. S., 319 Ga. App. 138 (termination is remedy of last resort; must show cause of deprivation likely to continue)
- In the Interest of J. S. B., 277 Ga. App. 660 (medical/mental conditions require expert evidence to prove incapacity detrimental to child)
- In the Interest of M. J. T., 255 Ga. App. 553 (DFCS bears the burden of proof in termination proceedings)
- In re M. M., 263 Ga. App. 353 (lack of employment or future prospects insufficient alone to terminate parental rights)