Lead Opinion
Following the grant of her application for discretionary appeal, the mother ofD. J. appeals the juvenile court’s order terminating her parental rights. The mother asserts that the evidence was insufficient to support the court’s order. We agree.
“While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship.” (Punctuation and footnote omitted.) In the Interest of D. L. T. C.,
DFCS then established a case plan for the mother with the concurrent goals of reunification and placement with a fit and willing relative, with the following goals: (1) the mother must attend and successfully complete a psychological evaluation; (2) the mother must follow the recommendations of that evaluation; (3) the mother must obtain and maintain safe and affordable housing with room enough for D. J.; and (4) the mother must attend and successfully complete all parenting classes. The plan was updated in April 2011 to add a specific requirement that the mother be “assessed by AADD and participate with their recommendations.” AADD is identified in the record both as the “Atlanta Alliance on Development Disabilities” and as “All About Developmental Disabilities.”
Because the mother’s parental rights were terminated based upon a finding that she had failed to comply with these goals, we address the juvenile court’s pre-termination findings on this issue in some detail. Following a hearing, the juvenile court signed a final disposition order on January 11,2010, keeping D. J. in DFCS custody. A review order entered May 19, 2010, continued custody in DFCS because the mother had not completed her case plan goals, but the court found that she had completed parenting classes. Following a permanency hearing, the juvenile court issued an order on August 19, 2010, finding that the mother still lived in transitional housing, visited with D. J. every Monday, participated with her parent aide, and had submitted to a literacy test, which indicated that she reads • above a fifth grade level. The order further noted that DFCS was seeking assistance with AADD due to a concern about whether the mother will be able to read D. J.’s prescriptions and provide for the child’s special needs. The order also noted that the mother had not completed her case plan goals, but showed “favorable case plan progression.” A second permanency order, entered in October 2010, also noted the mother’s “favorable progress” on her case plan goals.
A disposition order signed December 8, 2010, found that the mother had substantially complied with her case plan, and the “only hurdle” concerned the referral to AADD, which had not yet contacted
DFCS filed a petition to terminate the mother’s parental rights on June 9, 2011, based upon an allegation that she had failed to comply with her case plan for a period in excess of one year prior to the filing of the petition. At the June 14, 2011 review, however, the juvenile court found that the mother had been more receptive to suggestions from her AADD providers and was more interactive in playing with D. J. The court also found that the mother could read a prescription bottle and administer the correct dosage, although the AADD worker had not had the opportunity to observe the mother giving medication to D. J. because his caregivers did not bring any medication to the visits. The juvenile court also found that the mother had completed most of her case plan goals, including the parental assessment and psychological evaluation, and she was working on obtaining suitable housing. Moreover, the review order notes that “considering the mother’s progress, the Department will reconsider its plan to terminate parental rights.”
The termination hearing was held in January 2012, when D. J. was two years old. The evidence showed that Grady Hospital first contacted DFCS about D. J. because the mother was having trouble understanding why he needed a certain formula and because she had no home to which to take him. DFCS had previous contact with the mother in 2005 concerning her other three children, who were removed from the mother’s custody and lived with a legal guardian at the time of the hearing. In compliance with the case plan goals, the mother underwent a psychological evaluation for parental fitness and literacy testing. She was diagnosed with mild mental retardation, depressive disorder and a learning disability. A second psychological evaluation confirmed the diagnosis of mild mental retardation and depressive disorder and recommended family therapy if the mother and all her children were to be reunited.
The mother completed general parenting classes, but DFCS and AADD also required her to attend specialized classes for parents with developmental disabilities. But the mother was not consistent in attending these classes; she participated in only two classes with AADD between March and November, and thus had not completed the specialized classes by the time of the hearing. The mother also began classes for a GED but dropped out with no explanation. The mother additionally received individual counseling for a time, but she was unable to complete the program due to funding issues.
One caseworker testified the mother was not cooperative with the first parent aide DFCS provided, despite the fact that the juvenile court’s August 2010 order found that she was participating with the aide. Beginning in 2011, however, AADD began providing parental counseling and sometimes had trouble getting the mother to cooperate. Marie Peters, the AADD outreach specialist, began making home visits with the mother in April 2011. By the time of the hearing, however, she had visited the mother’s home only four to five times,
The mother recently, however, allowed Peters to visit her new home. Although the mother lived in a series of homes that were not acceptable to DFCS, at the time of the hearing, she lived with the putative father in a two-bedroom townhouse, with two full bathrooms. The mother had a room set aside for D. J., with a toddler bed. The home was clean and had a fire extinguisher and two smoke alarms. During the visits Peters had in the mother’s homes, they always appeared clean. Moreover, on one occasion, the mother demonstrated an ability to administer different forms of medicine, including using a syringe. She also demonstrated that she knows how to use a breathing machine for her own asthma, but Peters never had the occasion to observe her administer breathing treatments to D. J.
The mother’s sole independent source of income was a social security payment, but it was sufficient to meet the stable income requirement of her case plan. The putative father was employed with Labor Ready, after working as a cook at Waffle House for 15 years. He is the payee on the mother’s SSI income of $720 per month, and their rent is $550. In addition, he earns approximately $800 to $900 per month in income from his job, and they also receive approximately $320 per month in food stamps. Although the mother had failed to contribute to D. J.’s support, she brought him toys at her visits and gifts for holidays and his birthday.
Even though the mother had complied in substantial part with the case plan, the caseworkers had concerns about the mother’s ability to parent D. J., to read his medication, to get him to appointments and to make sure he is safe and his needs are met. They also had concerns as to whether the mother understood the severity of D. J.’s medical issues. D. J. has asthma, and at the time of the hearing, he was undergoing physical therapy to address issues he had with walking and wearing a cranial helmet at night to re-shape his head. Sometimes the mother gave D. J. food and liquids at her visits that would aggravate his asthma symptoms or cause him to throw up.
All the witnesses conceded, however, that D. J. and his mother had a bond. The mother consistently maintained her weekly visits with D. J. Some observers testified that during these visits, the mother and D. J. were like two children playing with each other, which raised some concerns about the mother’s ability to play a mother-child role, but the caseworkers testified that the mother’s ability to nurture D. J. improved over time and she has basic parenting skills such as the ability to change a diaper. Peters testified, however, that although the mother loves D. J., she has not seen that “mother child bond, that nurturing.” She said the mother and
At the time of the hearing, D. J. was still in foster care and had an adoptive resource with the guardians for his older siblings.
Based upon this evidence, the juvenile court granted the petition to terminate the mother’s and the putative father’s parental rights.
The statutory framework for the termination of parental rights sets out a two-pronged test:
Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-94 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will*253 not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A). In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.
(Citation omitted.) In the Interest of R. N. H.,
whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) [t]o develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent or parents.
(Emphasis supplied.) OCGA § 15-11-94 (b) (4) (C).
Accepting the prior findings that D. J. was a deprived child, the juvenile court found that the deprivation was caused by the mother’s failure to comply with the case plan for a period of one year or longer prior to the filing of the termination petition. But even construing the evidence in the light most favorable to the judgment below, the record does not support this finding by clear and convincing evidence, and the termination order appears to ignore the juvenile court’s prior findings regarding the mother’s case plan progress.
It is undisputed that the mother had completed most of her case plan goals by the time the petition was filed in June 2011. The case plan required that the mother submit to a psychological evaluation. She, in fact, submitted to two such evaluations, one in January 2010 and the other in January 2011. By February 25,2010, the mother had also completed the requirement that she attend a parenting class, and the trial court found she had completed a separate general parenting class with AADD in its September 20, 2011 order. The mother also worked steadily toward achieving the requirement of stable housing, first in transitional housing, then in two separate one-bedroom apartments, and by the hearing in January 2012, she had a two-bedroom townhouse with a bedroom set up for D. J., which met DFCS’ requirements. Thus, in August 2010, the juvenile court found that the mother was making “favorable case plan progression,”
The only requirement that remained ongoing at the time of the hearing was the requirement that the mother follow the recommendations arising from the psychological evaluations.
The specific requirement that the mother participate with AADD’s recommendations was not added to her case plan until April 2011, only two months before the petition was filed, and AADD first contacted her in December 2010, only six months before the petition. Accordingly, the record does not, and indeed cannot, contain evidence of a failure to comply with AADD’s recommendations for one year or more prior to the filing of the petition as required by the statute. Moreover, the record shows that the mother was participating to some extent, albeit somewhat reluctantly, with AADD: For example, the order from June 14,2011, indicates that the mother was becoming more receptive to suggestions from AADD, and she allowed Peters to inspect her new townhouse just prior to the hearing. Therefore, the juvenile court’s conclusion that the mother failed to comply with the case plan for more than a year prior to the filing of the termination petition is not supported by clear and convincing evidence.
Moreover, the witnesses’ anecdotal evidence about the mother — i.e., feeding the child too many snacks and playing with him in a childlike fashion — does not amount to clear and convincing evidence that she will never be able to parent her child. “[T]he clear and convincing standard ‘safeguards the high value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base his determination on a few isolated instances of unusual conduct or idiosyncratic behavior.’ ” (Footnote omitted.) In the Interest of S. L. E.,
Further, although the evidence supported the juvenile court’s finding that the mother had failed to provide court-ordered or other financial support for D. J., the record indicates that such payments were never made a part of her case plan, and no testimony was presented that she was ever told that she was required to contribute financially. Although a parent’s obligation to support her child exists, even in the absence of an order directing support,
In sum, although the mother has not acted in perfect compliance with all the recommendations given to her and has shown some reluctance to allow AADD workers into her home, the evidence shows that she has made substantial steps toward complying with DFCS’ requirements, that she has maintained a bond with D. J., and that she continues to work on her case plan goals.
As we have stated, termination of parental rights is a remedy of last resort and can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue. In the instant case, the evidence is not clear and convincing, at least at this time, that the deprivation is likely to continue----Accordingly, we reverse the judgment and remand the case for establishment of a reunification plan for [the mother], subject to whatever disposition is warranted by future events and those occurring since the last termination hearing.
(Citations and punctuation omitted.) In the Interest of C. S.,
Judgment reversed.
Notes
The order also listed the case plan goal solely as reunification. DFCS confirmed the shift in case plan goal in a motion for extension, filed a few months later. But in the juvenile court’s order granting the motion, the court lists the plan goal as concurrent: reunification and adoption.
DFCS introduced a copy of the second psychological evaluation performed on the mother at the hearing in lieu of the psychologist’s testimony. In termination proceedings, “all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. ...” OCGA § 15-11-56 (a). See also In the Interest of A. T. H.,
The rights of putative father are not the subject of this appeal.
The 2010 psychological evaluation recommended working in a home environment with a counselor and a paraprofessional; that she ñnd suitable housing; that she “may benefit” from participating in an adult reading program; and that visitation be supervised. The 2011 evaluation recommended family therapy if she were reunited with all her children; parenting classes; individual therapy; a psychiatric referral; a referral to the Georgia Department of Labor for job training; and a referral to an adult literacy class to help obtain her GED.
See, e.g., In the Interest of T. B.,
Additionally, the record lacks clear and convincing evidence that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child, at least at this time. Although the trial court made findings regarding the potential harm of continued foster care, the only evidence presented on this point was a question to Sullivan as to whether she knew “what foster-care drift is.” She replied that it is when a child lingers in foster care, he may have bonding or trust issues and may start acting out, but she stated that D. J. was not displaying any of these symptoms because he is just two years old.
Because we find that the evidence does not support the juvenile court’s findings under OCGA § 15-11-94 (b) (4) (A), we need not reach the court’s analysis regarding the child’s best interest under OCGA § 15-11-94 (a).
Concurrence Opinion
concurring specially.
While I agree with the outcome reached in this case, I do not agree with all that is said by the majority. Therefore, this opinion decides only the issues in this case and may not be cited as binding precedent. See Court of Appeals Rule 33 (a). I write separately to emphasize that even if a parent has completed most of his or her case plan and wishes to be part of the child’s life, termination of parental