Lead Opinion
Following a hearing, the juvenile court entered an order terminating the parental rights of the mother of M. S. S.
Viewed in the light most favorable to the juvenile court’s findings,
The Department then filed a deprivation petition, and in October 2007, the juvenile court entered an order finding M. S. S. to be deprived based on the mother’s stipulation that the father had abandoned the child and that the mother then was incarcerated, lacked adequate and stable housing, and needed substance-abuse assessment and treatment. The order granted temporary custody of M. S. S. to the Department, specified reunification with the mother as the pеrmanency plan, identified the prerequisites for reunification, and required the mother to keep the court informed of her
The next year, the Department filed a motion for an order extending its temporary custody of M. S. S., and the juvenile court scheduled a hearing on that motion for September 11, 2008, nine days before the earlier custody order was set to expire. After the parents failed to appear at the scheduled hearing, the juvenile court entered an interim order, which extended the Dеpartment’s temporary custody of M. S. S. until November 7, 2008,
The mother also did not appear at the November 5, 2008 hearing. The juvenile court then granted the Department’s motion to extend temporary custody, and it entered an order continuing M. S. S. in the Department’s custody until November 5, 2009. In its order extending custody, the juvenile court noted that neither parent had appeared for the hearing and that both the mother and the father had effectively abandoned the child. Although the permanency plan remained reunification with the mother, the juvenile court observed that she had failed to make any progress on her casе plan and that she had failed to maintain contact with M. S. S. The court, therefore, ordered the Department to investigate the possibility of terminating both the mother’s and the father’s parental rights.
The Department filed a second motion for an extension of custody on October 9, 2009, and a hearing on that motion was held on November 5, 2009. The juvenile court granted the motion, finding that M. S. S. continued to be a deprived child and extending again the Department’s custody of the child through November 5, 2010. The finding of deprivation as to the mother was based on her failure to maintain communication with the Department and her lack of progress on her case plan. Specifically, the court found that the mother had failed to address her substance-abuse problems and had failed to maintain stable housing or stable employment.
The Department also filed in October 2009 a petition to terminate the mother’s parental rights, and the juvenile court set a hearing on this petition for February 24, 2010. Evidence presented at the termination hearing established that between September 2007 and November 2009, the mother’s contact with M. S. S. had been
Later in December 2008, representatives of the Department met with the mother and learned that there was an outstanding warrant for her arrest for probation violations.
The evidence also showed that the Department had reviewed the mother’s case plan with her as early as February 2008. The plan remained unchanged during the two-and-a-half years leading up to the terminаtion hearing. It required the mother to undergo a psychological evaluation and follow all recommendations made as a result of the evaluation, attend and successfully complete parenting classes, attend and successfully complete a drug-treatment program, submit to random drug screens, remain drug- and alcohol-free for six consecutive months, cooperate with and follow the recommendations of the Department family aid worker assigned to her, obtain and maintain a stable source of income sufficient to support the child, and obtain stable and safe housing large enough to accommodate the family. Although the Department caseworker testified that the entire plan сould have been completed within six months (or by August
Despite making progress on other aspects of her case plan, the mother never maintained stable housing or stable employment. After M. S. S. first entered the Department’s custody, the mother claimed to be “self-employed,” styling hair for friends and neighbors. She was employed in September and October 2009 as a telemarketer but was fired from that job. She remained unemployed from November 2009 until mid-February 2010, and she obtained a part-time job at a local fast-food restaurant only two days before the termination hearing.
The mother had a history of alternating between homelessness and unstable housing that depended on the kindness of third parties. She admitted that she had been homeless before moving to Georgia in 2007 and that she was homeless at the timе of her September 2007 arrest. Following her initial release from jail in November 2007, she lived at a friend’s apartment until March 2008. Between March and June 2008, she lived with a brother, and from June 2008 until February 2009, when she was jailed on her probation violations, she was homeless. Following her release from jail in April 2009, she lived first with a friend, and then with the paternal grandmother of her second child, before moving to a transitional housing facility in September 2009. She remained at the transitional housing facility, where she was supposed to pay monthly rent of $500, until shortly before the termination hearing in February 2010. She successfully paid her own rent for September, October, and November 2009, but after losing her job, she was forced to rely upon assistance from a local сharity to pay her rent for the months of December and January. Thus, between September 2007 and January 2010, the mother had paid rent for only three months.
Just before the termination hearing, the mother moved to a
With respect to M. S. S., the evidence showed that the child had beеn in the same foster home since entering the Department’s custody and that she had adapted well and was flourishing in that home. She had bonded with her foster mother, who expressed a desire to adopt the child. The CASA recommended termination of the mother’s parental rights based on the mother’s inability to obtain or maintain stable employment and stable housing and on M. S. S.’s need for permanency and stability.
Based on this evidence, the juvenile court found that M. S. S. was a deprived child, her deprivation resulted from a lack of parental care and control, her deprivation was likely to continue if custody were returned to the mother, and without termination of parental rights, the child would suffer serious physical, mental, emotionаl, or moral harm. The juvenile court further found that termination of the mother’s parental rights was in the best interest of M. S. S., and it granted the Department’s petition. The mother then filed an application for a discretionary appeal, which we granted. This appeal followed.
1. We first address the mother’s assertion that the juvenile court lacked jurisdiction to enter the termination order. Her argument is based on OCGA § 15-11-58 (n), which allows a court to extend a temporary custody order for an additional 12 months if:
(1) [a] hearing is held upon motion of the [Department] prior to the expiration of the order; (2) [reasonable notice of the factual basis of the motion and of the hearing and opportunity to be heard are given to thе parties affected; and (3) [t]he court finds that the extension is necessary to accomplish the purposes of the order extended.
As noted above, the trial court scheduled a hearing on the Department’s first motion for an extension of custody for September 11, 2008, nine days before the expiration of the earlier custody order.
(a) By failing to appear at the timely-scheduled hearing, the mother waived the requirement that a hearing on the extension motion be held on or before September 20, 2008. This Court has previously said that even the “mandatory” procedural requirements of the juvenile court code can be waived in deprivation and termination proceedings by the affirmative conduct of a parent or her lawyer. In the Interest of A. S. O.,
(b) In the alternative, even if the law did not permit the waiver of the requirement that a hearing be held beforе the original order expired, it would afford the mother no relief here. The juvenile court set a hearing for September 11, 2008, before the expiration of the earlier custody order. While we know that the mother failed to appear at that hearing, we do not know what else happened because no transcript of those proceedings is contained in the record on appeal. But for all we know, the juvenile court may have received evidence on September 11 sufficient to justify an extension of the
2. We now turn to the mother’s claim that the evidence is insufficient to sustain the termination of her parental rights. “In considering a challenge to the sufficiency of the evidence in a termination of parental rights case, the question is whether any rational trier of fact сould have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. [Cit.]” In the Interest ofR. S.,
In this case, the mother does not challenge the juvenile court’s findings that M. S. S. was deprived or that the lack of proper parental care or control was the cause of the deprivation. Rather, the mother argues only that the Department failed to prove that the deprivation was likely to continue, that any such continued deprivation would cause serious harm to M. S. S., and that termination of her parental rights was in the child’s best interest. We address each of these contentions below.
(a) In support of her assertion that the Department failed to prove that the deprivation was likely to continue, the mother points to evidence showing that she recently had achieved some of her case-plan goals and was making progress on others. She also points
These arguments, however, ignore the fact that for two-and-a-half years, the mother failed to achieve two of the reunification plan’s most important requirements: that she maintain stable housing and stable employment. The mere fact that the mother obtained housing about two weeks before the termination hearing, and had paid advance rent for two months, did not make that housing stable. In the Interest of T. V,
Moreover, the mother’s argument ignores the indisputable fact that the mother made no progress at all on her case plan for approximately 19 months, something that the juvenile court was obligated to consider. See OCGA § 15-11-94 (b) (4) (C) (iii).
As we have said time and again, “[i]n considering a parent’s claims of recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.” In the Interest ofT.W. O.,
(b) We next consider the sufficiency of the proof that continued deprivation was likely to cause serious physical, mental, emotional, or moral harm to M. S. S. This Court has looked at the question of harm in two distinct ways. Only five years ago, our Court, sitting en banc, said that the relevant question is “whether the child would be harmed if returned to the parent’s care and control, associated environment, and state of deprivation.” In the Interest of J. K.,
The evidence is sufficient to show that M. S. S. likely would suffer serious harm if she were returned to the custody and care of her mother and the state of deprivation that was likely to continue. The nature of the deprivation is enough proof, we think, to clearly and convinсingly establish a likelihood of serious harm. See In the Interest of M. E. M.,
The evidence also is sufficient to establish a likelihood that a continuation of the status quo would seriously harm M. S. S. At the age of three years and eight months, M. S. S. had been in foster care for two-and-a-half years, approximately two-thirds of her life. As a result, according to the CASA, the child had formed a parental bond
After hearing this evidence, and after observing that long-term foster care with no permanency is “a recognized harm,” the juvenile court found that a continuation of the status quo likely would be detrimental to M. S. S. The court also found that, because M. S. S. had “bonded” with her foster mother in a “parent-child relationship,” the child would suffer “significant emotional harm” if that bonding were disrupted by efforts to force upon M. S. S. a continued relationship with her natural mother. The evidence supports the juvenile court’s findings, and it sustains the conclusion that M. S. S. likely would suffer serious harm from continued maintenance of the status quo. See In the Interest of J. L. C.,
(c) The mother also asserts that the evidence is insufficient to support a finding that termination of her parental rights was in the best interest of M. S. S. The mother fails to support this enumeration in her brief, however, with any reasoned argument, citation of authority, or record citations. Accordingly, this claim of error is deemed abandoned. Gooch v. Tudor,
3. Finally, we address the mother’s claim that she was deprived of the effective assistance of counsel at the termination hearing. “[A] juvenile court’s finding that a parent has beеn afforded effective assistance of counsel will be affirmed on appeal unless that finding is clearly erroneous.” S. N. H.,
To prevail on her claim of ineffective assistance of counsel, the mother must prove both that the performance of her lawyer was deficient and that she was prejudiced by this deficient performance. S. N. H.,
As best we can tell from her brief, the mother asserts that her lawyer was ineffective for two reasons. First, the mother claims that the lawyer should have appealed from, or otherwise objected to, the allegedly void orders entered after September 20, 2008. As discussed in Division 1, supra, however, the juvenile court never lost jurisdiction of this case, and those orders are, therefore, valid. Given that trial counsel’s failure to pursue a meritless or futile objection, motion, or appeal cannot constitute ineffective assistance, the mother’s lawyer was not ineffective for failing to object to or appeal the juvenile court’s orders on jurisdictional grounds. See, e.g., Smith v. State,
The mother also claims that her lawyer should have appealed from the finding of deprivation contained in the order entered after the November 2009 hearing on the second motion to extend custody. She argues that the failure to appeal this finding meant that she was bound by it, and she says that it was this finding of deprivation that supported the termination of her parental rights. In other words, the mother claims that the failure to appeal this finding of deprivation relieved the Department of having to prove at the termination hearing that M. S. S. was currently a deprived child. This argument misapprehends the law.
The mоther is correct that ”[a]n unappealed order adjudicating a child deprived does indeed bind a parent to the finding that at the time of the order the child was deprived for the reasons given in the order.” In the Interest of K. R.,
For the reasons set forth above, we affirm the order of the juvenile court terminating the mother’s parental rights to M. S. S.
Judgment affirmed.
Notes
The juvenile court also terminated the parental rights of the father, but he is not a party to this appeal.
In the Interest of R. S.,
On September 25, 2007, police arrested the mother, and she later was indictеd for loitering and prowling in violation of OCGA § 16-11-36 (a) and for possession of methamphetamine in violation of OCGA § 16-13-30 (a). In November 2007, the mother pled guilty to both charges and was sentenced to four months in jail on the loitering and prowling charge and four years probation on the drug charge.
Specifically, the order provided that any reunification plan must require the mother to resolve “all aspects of her criminal arrest,” undergo a substance-abuse evaluation and complete all treatment recommendations, and maintain stable housing and employment.
This interim order was entered on November 26, 2008, nunc pro tunc to September 11.
The probation violations included the mother’s failure to maintain gainful employment, tо keep the probation office advised of her residence, to obtain a drug and alcohol evaluation, and to pay certain court-ordered monies.
This job paid the minimum wage, and although the mother had not yet started working there, she expected that she only would work 25 to 30 hours per week.
Evidence showed that the mother’s total income for 2009, including her self-reported income for styling hair, was $9,500.
In support of this argument, the mother cites In the Interest of B. G.,
The mother also cites the caseworker’s testimony that if M. S. S. were returned to the mother as of the date of the termination hearing, the caseworker did not think that the child would be deprived. That testimony, however, goes to the finding that M. S. S. was, at the time of the termination hearing, a deprived child. See In the Interest of P. D.W.,
OCGA § 15-11-94 (b) (4) (C) (iii) provides that, in a termination of parental rights proceeding, a trial court “shall consider . . . whether the parent without justifiable cause has failed significantly for a periоd of one year or longer prior to the filing of the petition for termination of parental rights . . . [t]o comply with a court ordered plan designed to reunite the child with the parent or parents.” (Emphasis supplied.)
That is not to say that a lack of stable housing and income always demands a finding that serious harm is likely. We suppose that an uncommonly resilient child, an older child, or the extraordinary efforts of an unusually devoted and loving parent might avoid the harm that otherwise likely would follow such deprivation. But here, the mother for long periods of time had put her own desires ahead of the best interest of her daughter, which manifested in her failure to make timely progress on her case plan, her violations of the criminal laws and conditions of her probation, the periods of incarceration that followed, and her lackluster efforts to maintain contact and establish a parental relationship with the child. Although the mother recently had made some progress on her case plan, the juvenile court was entitled to consider her history as indicative of her attitudes about parenting. These considerations, although not necessary to prove a likelihood of serious harm, tend to confirm it, inasmuch as they offer no reason to believe that this mother was capable of, or willing to undertake, extraordinary efforts to shield her young child from the serious harm that otherwise is likely to result from continued deprivation.
“Where [a child has] been removed from parental custody, the Department may prove current deprivation by showing that, if the child were returned to the parents at the time of the hearing, [she] would be deprived.’’ In the Interest ofT. V,
Concurrence Opinion
concurring fully and specially.
I concur fully in Division 1 of the majority’s opinion.
Specifically, I do not agree with the majority’s assertion that a natural parent’s rights can be terminated merely because the mother failed to satisfy certain elements of the State’s reunification plan (e.g., securing stable employment and housing), or because she was not financially or emotionally capable of parenting her child at the time of the termination hearing. Nevertheless, I do agree with the majority that the juvenile court was correct in terminating the mother’s parental rights because the record evidence shows, clearly and convinсingly, that the ongoing parental relationship between the mother and M. S. S. is likely to cause the child serious, actual harm if permitted to continue. As the majority notes, “the mother for long
As our Supreme Court has previously explained, it is one thing if a parent desires to care for his or her child but simply lacks the financial wherewithal or emotional capability to do so, and quite another for a parent to wilfully disregard оr abandon his or her parental duties.
Finally, I likewise specially concur as to Division 3 of the opinion. While I agree with the majority’s conclusion that the natural mother was not deprived of effective assistance of counsel at the termination hearing, I do not agree with all of the underlying reasoning employed by the majority in reaching this determination. As such, I concur only in the majority’s ultimate conclusion that the mother was afforded effective assistance of counsel below.
Because I agree with all that is said in Division 1 of the majority’s opinion, the reasoning and holding contained therein is to be treated as binding precedent of this Court and is not to be considered as merely physical precedent.
See Thorne v. Padgett,