609 S.E.2d 381 | Ga. Ct. App. | 2004
The Richmond County Department of Family and Children Services (DFCS) alleged that E. C. and S. C., minor children in their mother’s custody, were deprived. Following a hearing, the juvenile court issued an order entitled “Order Transferring Custody” in which it found the children deprived and awarded custody of the children to various family members. The mother appeals, arguing that insufficient evidence supported the juvenile court’s finding of deprivation. The mother also argues that the juvenile court lacked jurisdiction. For reasons that follow, we reverse.
1. “On appeal from a finding that a child is deprived, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived.”
According to Ransom’s affidavit, he contacted E. C., who told him that his mother and Martin smoked marijuana in the house. With respect to the allegations of violence, E. C. told Ransom that his mother and Martin argued, but that he had not seen Martin hit his mother. Ransom’s affidavit showed that DFCS also spoke with several others regarding allegations of physical violence in the home.
As a result of the allegations, the mother was required to sign a safety plan in which she agreed the children would have no contact
On September 2, 2003, the juvenile court conducted a detention hearing. Based upon the alleged violation of the safety plan, the children were taken into DFCS custody. The juvenile court also appointed a guardian ad litem, A1 Yarbrough, to investigate the allegations of deprivation.
DFCS subsequently filed a deprivation petition, and the juvenile court conducted a hearing.
The mother’s attorney then called witnesses, including both Yarbrough, the guardian ad litem, and Priscilla Germany, the current DFCS caseworker. In his report, Yarbrough wrote that his “investigation found little solid evidence for [the] allegations” of domestic violence. And Germany testified that the mother “has been working on her case plan” and had done everything DFCS had requested. Although the mother had yet to complete a drug assessment and treatment plan, the delay was caused by DFCS rather than any reticence on the part of the mother. When asked for her recommendation, Germany said that she thought the children could be returned to their mother and that DFCS would continue to monitor the case for six months.
Following the hearing, the juvenile court found the children to be deprived, and it awarded custody of E. C. to his biological father and custody of S. C. to her maternal grandparents. On appeal, the mother argues that insufficient evidence supports the juvenile court’s finding of deprivation. We agree.
At the outset, we note that DFCS neither called nor cross-examined a single witness during the deprivation hearing. Thus,
“[Djuring a nonjury trial, it is presumed that the court is able to sift the wheat from the chaff and select only the legal evidence. We will reverse the trial court only where there is no legal evidence to support the trial court’s ruling.”
The first two reasons cited for the deprivation — the alleged domestic abuse — are supported only by hearsay contained in Ransom’s report and affidavit. At the hearings, DFCS did not ask a single question of any witness regarding allegations of abuse, and no witness gave competent testimony about such abuse. The evidence required to support a finding of deprivation must be not only clear and convincing, but also competent.
Although the juvenile court found that the mother had failed to timely obtain a drug test, there is no evidence to support this finding. Rather, Germany testified that the mother had done everything asked of her and that the only reason the drug test had not been performed was because it had not been scheduled by DFCS. And the mother cannot be held accountable for DFCS’ failure to schedule the test.
Thus, the only remaining basis for the juvenile court’s ruling is the fact the mother is involved in a lesbian relationship. However, deprivation focuses on the “needs of the child regardless of parental fault.”
to authorize a loss of temporary custody by a child’s parent[ ], on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.12
Assuming that the mother’s relationship with Martin should factor into the juvenile court’s analysis, it should not be a determining factor unless it is shown that the children have been or might be harmed in some manner by their mother’s lifestyle.
2. In view of our holding in Division 1, we need not address the mother’s remaining enumeration of error.
Judgment reversed.
(Punctuation omitted.) In the Interest of E. M., 264 Ga. App. 277, 278 (590 SE2d 241) (2003).
The daughter was fathered by Robert Sessoms.
The hearing began on November 24, 2003, and was continued to December 15, 2003.
(Emphasis supplied.)
See In the Interest of B. W., 268 Ga. App. 862, 863 (602 SE2d 869) (2004); In the Interest of C. G., 261 Ga. App. 814 (1) (584 SE2d 33) (2003); In the Interest of C. A, 249 Ga. App. 280, 282 (2) (548 SE2d 37) (2001).
See In the Interest of O. J., 257 Ga. App. 1,4 (2) (570 SE2d 79) (2002) (“ ‘To the degree any such [reports] contained hearsay, the courts are presumed to have disregarded it.’ ”); In the Interest of J. C., 242 Ga. 737, 740-741 (3) (251 SE2d 299) (1978).
(Punctuation omitted.) In the Interest of T. D. B., 266 Ga. App. 434, 442 (4) (597 SE2d 537) (2004).
See In the Interest of C. D. E., 248 Ga. App. 756, 764-765 (2) (546 SE2d 837) (2001).
See In the Interest of E. M., supra.
See In the Interest of C. D. E., supra at 767 (“The issue in a deprivation hearing involving a transfer of custody... is not whether the parent has committed illegal acts, but whether there is ‘intentional or unintentional misconduct resulting in the abuse or neglect of the child or ... what is tantamount to physical or mental incapability to care for the child.’ ”).
See In the Interest of E. M., supra.
(Punctuation omitted.) In the Interest of C. D. E., supra at 760-761 (1).
See In the Interest of R. E. W., 220 Ga. App. 861, 863 (471 SE2d 6) (1996) (father’s homosexuality did not merit restrictive visitation absent evidence that child was exposed to father’s conduct in a manner that is harmful).
See In the Interest of E. M., supra at 281; In the Interest of C. D. E., supra at 761-762, 766-767.