Brent Diegel appeals from a trial court decision dismissing his complaint for failure to state a claim after he sought to enforce an agreement to terminate his rights to his two children. Since the complaint was based on a void agreement, the Court of Appeals affirms.

Right before the couple divorced they signed a contract to terminate Brent’s rights to his children. The contract was witnessed by their attorneys and stated that the wife - Cami- would file a petition to terminate Brent’s rights and that he would pay expenses for termination and that they would do anything necessary (paper work, court appearances) to terminate rights. Cami filed the petition but after realizing that the check from Brent’s attorney was returned for insufficient funds she dismissed the petition and did not re-file. Brent sued Cami and her attorney for breach of contract and fraud. The trial court dismissed the petition on the grounds that Brent could not voluntarily terminate his parental rights.

The Court of appeals agrees and states that the parents’ duty to support the child does not end in divorce or separation. A parent cannot contract away the right of the child to be supported by the other parent. Brent’s attempt to voluntarily abandon his parental responsibility is void.

In the Interest of M.A.M. A03A0816 (6/13/03) 03 F.C.D.R. 1852
Parental Rights

Citing the absence of clear and convincing evidence, the mother of MAM appeal from a juvenile court order terminating her parental rights. The juvenile court found by clear and convincing evidence that MAM was deprived and MAM was placed with the Department of Human Resources (DHR). That order was not appealed and so it controls in a termination hearing. The same goes for the finding in that same order that the deprivation was caused by lack of parental control. MAM had been admitted to the hospital with gangrene in one toe that may have spread to her blood stream and severe diaper rash. Temporary custody was sought by the department and a deprivation petition was filed. MAM was found deprived and a reunification plan was entered.

During the year and a half that MAM spent in state custody, the mother provided no financial support nor did she get a job. She also lived in hotels, failing to maintain stable housing. The mother never obtained the required psychological examination and opted for a one day parenting class five days before the hearing rather than the required six week class. Mother also had a history of violence - she shot MAM’s father while MAM was in DHR custody. She did not visit MAM consistently going months between some visits including a time when she was incarcerated. During visits mother would bring other friends and did not develop a meaningful bond with MAM.

The lack of parental care was found to be likely to continue. Prior conduct can be used to determine whether deprivation will likely continue. The conditions of the mother’s life that caused the deprivation have not improved. The lack of stability, history of violence and refusal to take an active role in MAM’s life caused the court to determine that the lack of parental control would likely continue. The small effort made by mother to comply with the case plan was not enough to outweigh her past history of unfitness. There was insufficient evidence to suggest that if MAM was kept in limbo in the foster care system her mother could provide a stable and adequate home for her.

Based on presented evidence the juvenile court was correct in finding that the deprivation would cause serious harm to MAM. Serious harm had in fact already been caused. The Court found that there was clear and convincing evidence of parental inability or misconduct and that termination was in the best interest of the child.

In the Interest of KW A03A403 (6/13/03) 03 FCDR 1850
Deprivation, Jurisdiction, Notice

KW’s parents appeal the order of the juvenile court finding KW deprived and leaving custody with the South Carolina Department of Social Services (SCDSS). On appeal the parents cite errors on the part of the juvenile court in giving full faith and credit to the order from South Carolina which gave legal custody to SCDSS and physical custody to KW’s paternal uncle and aunt, and in failing to follow the Clayton County order that granted custody to them. The Court affirms.

SCDSS obtained custody of KW after his mother left him with a stranger while intoxicated. The mother was living in South Carolina and was separated from the father who was living in Georgia. They retained custody based on evidence that the parents had sexually abused him. The order required the parents to enroll in a sexual offenders program and that SCDSS attempt to transfer the case to Georgia. The transfer did not happen at that time and the parents did not comply with the order. Over the next two years the parents were restricted from any contact with KW and he was placed with a paternal uncle and aunt in Georgia. A termination of parental rights petition was filed by SCDSS but the hearing was continued. Arguing that Georgia had jurisdiction, the parents moved to stay or dismiss the termination action. The South Carolina family court agreed to transfer the case but then SCDSS learned that Georgia would not accept jurisdiction. SCDSS then moved to have the order reconsidered and the order was reversed.

Between the time the order was reversed and the time a written order on the reversal was entered, the parents filed a writ of habeas corpus against KW’s uncle and aunt in superior court Clayton County, arguing that KW should be returned to his parents. The writ was granted without any input from SCDSS and KW was returned to his parents.

After being with them just days the Bartow County Juvenile Court placed KW in care of DFCS. DFCS filed a deprivation petition where evidence of present deprivation was entered in addition to copies of the prior orders from the South Carolina family court. The parents argued that full faith and credit could not be given to the South Carolina orders because they did not have jurisdiction because Clayton County gave custody back to them. The court found that KW was deprived and that SCDSS had legal custody of him.

On appeal the Court holds that the juvenile court did not err in ruling that SCDSS maintained legal custody of KW. The Court noted that the case comes under the Interstate Compact on the Placement of Children (ICPC), which allows jurisdiction over the child to remain with the sending agency when an agency places a child in Georgia. SCDSS had neither given up nor been relieved of its jurisdiction over KW and KW had not been adopted. Additionally, the parents were bound by the orders from the South Carolina family court since the had not been appealed.

The writ filed by the parents does not change the results because the ICPC did not give them the authority to file the writ. Since Georgia had previously refused jurisdiction when asked by SCDSS, the parents could not force Georgia to divest SCDSS of its jurisdiction. The parents also knew that the order transferring the case to Georgia had been reversed before they filed the habeas action. The court also stated that even if the habeas was in order the SCDSS was not made a part to the action and as such the results would not have been binding on SCDSS. The juvenile court ruling is affirmed.

In the Interest of M.H.S. A03A0037 (5/29/03) 03FCDR 1720
Parental Rights

Citing insufficiency of evidence, the father of MHS appeals an order of the juvenile court terminating his parental rights and denying his motion for a new trial. The Court finds the evidence to be sufficient and affirms.

Appellant and MHS’s mother divorced and she retained custody of eight year old MHS. The exwife testified that they divorced because of Appellant’s drinking and because of physical and verbal altercations between them. Appellant maintained contact with MHS after divorce but according to his ex-wife, his behavior became increasingly erratic. In a conversation about visitation between the parents shortly after the divorce, Appellant suggested that he would not be seeing MHS any longer. Shortly after that Appellant pulled a gun out and bound and raped a real estate agent after he pretended to be a house hunter and she took him to see a vacant house. The victim escaped and when the police arrived they found a not threatening Appellant’s ex-wife. She received protection for her and her children while Appellant was tracked to Arizona where he admitted himself to a hospital for a psychiatric evaluation. Appellant was transported back to Georgia where he went on two hunger strikes. He pled guilty to rape, kidnaping, armed robbery, sexual battery, and possession of a firearm during the commission of a felony. He was sentenced to serve 20 years and is not eligible for parole. His release is scheduled for 2020. Up until his arrest Appellant had paid court-ordered child support. His ex-wife petitioned to have is parental rights terminated and the court held a hearing and terminated Appellants parental rights to MHS.

The juvenile court found parental misconduct and inability on the part of Appellant. Since MHS was not living with his father the court looked at whether the father failed significantly to communicate with or make attempts to communicate with MHS in a supportive and meaningful parental manner and whether he provided for the care and support of MHS. MHS’ guardian ad litem testified that any because Appellant is incarcerated, any bond between him and MHS would not likely be supportive and meaningful and that Appellant did not appear interested in financially supporting MHS. As such, the guardian ad litem recommended that it would be in the child’s best interest to not have a relationship. MHS’ psychologist testified that it was ok for Appellant to correspond with MHS by mail but that there was concern over the emotional damage that he could suffer from physical contact through prison visitations. In addition, MHS will be 27 when Appellant is eligible for parole. Even though the court found that Appellant tried to maintain contact with his son through letters and cards and that he was a loving father who wanted to be involved in his child’s life it ruled that there was sufficient evidence of parental misconduct and inability. The factors that show misconduct can also be used to find that termination is in the best interest of the child. The court was also concerned with stability. The mother has remarried and wants the step-father with whom MHS has a close relationship, to adopt him and change his name. The Court of appeals affirms the decision of the trial court.

In the Interest of N.L. A03A0880 (4/10/03) 03 FCDR 1263
Parental Rights

The natural mother of NJ and NL appeals termination of her parental rights citing the lack of clear convincing evidence. The Court of Appeals finds sufficient evidence and affirms. In 1999 DFCS received a referral that appellant’s husband CH, had beaten NL really bad. That same day, appellant reported the abuse to DFCS. When NL was taken in for a physical there were bruises but no broken bones. CH admitted to beating the child while he was high on cocaine. A case was opened on the family and among other things, the case plan required that appellant assured the safety of her children by, among other things, keeping them away from CH. A month later CH was back in the house and appellant placed her children with department where it was determined that they were physically abused by CH and emotionally abused by appellant. The new reunification plan required appellant to manage her mental health needs, visit her children, maintain a stable home, keep her children safe, and find positive ways to discipline her children.

About a month later in-home therapy reported that things were not improving in the home and that CH had beaten appellant and she had quit her job. There would be two more domestic disturbances that year with the one in October ending with CH arrested for battery.

In January 2000 another reunification plan with the same goals as the previous, was ordered. July 2000 DFCS’ non-reunification plan was rejected and they were ordered to continue reunification. Almost a year later there was a new case plan requiring appellant to continue maintaining a safe, stable home, cooperate with DFCS and show that she can meet the special needs of her children. Appellant followed the case plan and started having unsupervised visits with the children. DFCS then filed a motion to transfer custody back to appellant but then moved to dismiss the motion after learning that during an unsupervised visit NJ suffered burns on his tongue, mouth, pallet, lips and face which the examining doctor called a bad injury. At the hearing to dismiss the motion, there was evidence that appellant had recently been involved in domestic violence and that NJ had been seen in the emergency room following a sexual abuse allegation. NJ said that his mother pulled his "wee-wee", he was having trouble urinating. The motion was dismissed and unsupervised visits were stopped.

A non-reunification case plan was then ordered for NL and NJ and an order was entered at a hearing that appellant did not attend. The non-reunification order was not appealed. After hearing evidence on June 19, 2002 the children’s father and appellant’s rights were terminated.

Appellant claims there was no clear and convincing evidence of parental misconduct that caused her children’s deprivation or that deprivation was likely to continue or cause serious harm. The Court determined the fact the children were deprived was already established and the order was never appealed. The court established that the deprivation was caused by lack of parental control. Appellant was employed but paid little or no child support. Appellant was always in violation of the case plan- she never made CH leave for good and exposed the children to domestic violence. She also showed no signs of getting a job. Appellant missed scheduled visits with her children and did not cooperate with DFCS. At the time of termination she was living in a motel with no plans to find a stable home for her children. In the eight months before termination appellant had almost no contact with her children

The Court found that deprivation would likely continue because Appellant showed very little regard for her children’s safety and welfare. She continued to have a relationship with the man who abused them. The Court found termination to be in the best interest of the children because of appellant’s failure to protect her children. Refrain from exposing them to harm, provide for them a stable home and work with DFCS on the reunification plan.

Georgia Dep’t of Human Resources v. Sweat S03A0179 (4/29/03)
Child Support, Due Process, Equal Protection, Right to Privacy, Takings Clause, Costs, Transcripts

The Supreme Court ruled that the trial court erred in declaring Georgia’s statutory child support guidelines to be unconstitutional, stating that the court used incorrect constitutional standards and unsound constitutional analyses.

Samuel and Michelle Sweat agreed when they divorced that he would have custody of their children, she would have visitation and would not have to pay child support. Less than two years later Samuel requested that Michelle be notified by the Georgia Child Support Enforcement Agency of a possible modification of her obligation and she was asked to furnish financial information. Michelle was then instructed to pay $452 per month plus $79 toward the three children’s health insurance based upon Georgia’s statutory child support guidelines (the guidelines). Michelle challenged both the child support award and the guidelines. The guidelines were ruled unconstitutional by the trial court during a hearing.

The trial court found that the guidelines were arbitrary, hastily enacted, and were reviewed by an unqualified Guideline Commission and as such they violate substantive due process under Georgia and US Constitutions. The court also found that because the guidelines placed different burdens on similarly situated persons, they violate state and federal equal protection guarantees. The guidelines were also found to violate right to privacy because they do not allow the parent to make her own decisions on how much to spend on her children. The trial court also found that because Michelle was reduced to "poverty status" the guidelines violate the Georgia Constitution’s takings clause. Because of this she would be unable to pay for her own transcript and the state was ordered to supply her with a copy free of charge. The Agency’s request for modification of the child support order was denied.

The Court found that the guidelines did not violate the Georgia or US Constitution’s guarantee of substantive due process. Unless a statute "manifestly infringes upon a constitutional right or violates the rights of the people" it is deemed constitutional. If the statute does not infringe and the complainer is not a member of a suspect class a "rational basis" test must be performed. Under this test a statute will be constitutional as long as it is reasonably related to the public heath, safety or general welfare. A statute is not declared unconstitutional just because it has imperfect classifications. The Court stated that the guidelines are not arbitrary. In determining the amount to be paid they take into account the non-custodial parent’s income level and also may use eighteen special circumstances to adjust the amount of support to be paid.

The Court ruled that the guidelines do not violate equal protection under the state or US Constitution. Once again, since there is no fundamental right or suspect class involved, the "rational basis" test is used. Statute will be upheld if under any set of facts, a rational relationship can be found between the classifications drawn in the statute and a legitimate end of government that the Constitution allows. The Court finds that the statute does not treat similarly situated individuals differently. Custodial and non-custodial parents are not similarly situated because non-custodial parents usually have less involvement in the daily care of their children.

The guidelines do not violate the right to privacy. The Court ruled that the Appellee has no privacy in the process used to determine her child support obligations. The trial court is to consider whether an agreement made between the parties is sufficient based on parental ability and the needs of the children and should not simply adopt the agreement. Setting child support is a public process and under Georgia’s public policy divorced parents are to contribute financially to the well being of their children.

The Court found that the guidelines are not a governmental "taking" but that they are the states attempt to ensure that children of divorced or separated parents are adequately taken care of. The taking is not for public purposes but rather for supporting the children. The Court also found that the trial court erred in ordering a transcript be provided to Appellee at no cost. The Court stated that since the Appellee has never been ordered to pay child support there is no factual basis for asking the state to provide the transcript at no cost.

The trial court’s ruling was reversed.

In the Interest of J.B. A03A0452 (4/10/03) 03 F.C.D.R 1261
Deprivation , Sequestration, Due Process

Mother of JB appeals determination by juvenile court that JB is deprived, contending that the court erred by allowing DFCS witnesses to be in the court room during her testimony and by requiring her to present her case before DFCS rested its case. The court, finding no error, affirms.

Responding to a call concerning JB a caseworker visited the home. When the caseworker arrived the mother answered the door with a baby in her arms. Caseworker asked to see JB and the mother untied JB’s door at which point he came "flying" through the door and headed for the refrigerator. He started eating a cup of corn with his hands. He was begging for food and the caseworker made him a sandwich which he "gulped" down as well as pizza the mother removed from the oven. His sheet was bloody and filthy and the mother said that she did not know there were bloodstains on the sheet. JB had bruises from head to toe that were later documented at the sheriff’s department where the caseworker told the mother to follow her to. Injuries included bite marks that the mother said she inflicted as punishment after first being bitten by JB.

After examining JB, a pediatrician who is an expert in child abuse, testified that tests did not show any abnormality that would cause JB to bruise easily. She also testified that though lumps on a child’s head could be from falling because their heads are heavy, the lacerations meant that a lot of force was used. He also had a bald spot around one of the cuts suggesting his hair had been pulled out. She concluded that his injuries were too numerous to be caused by normal child play and that he had been abused.

The trial court found that JB had been abused in his mother’s custody and did not think that her testimony that she was unaware of his injuries because he bathed and dressed himself, to be credible. The trial court concluded that JB was deprived. The mother asserts that the court erred in allowing DFCS employees to remain in the courtroom during testimony, after the rule of sequestration had been invoked by her. DFCS responded that it thought its three employees to remain and that it did not intend to call the foster parents who were present. The employees were allowed to testify in the presence of each other over the mother’s objection because the judge ruled that they were all agents of the same department and all of their statements were already on record.

The Court finds no abuse of discretion on the part of the trial court. None of the witnesses testified to the same events and so they could not have shaped their testimony to support or dispute the testimony of another which is the purpose of the rule of sequestration. As to the foster parents being present, the court finds that because the mother acquiesced to the trial court’s ruling allowing them to remain, the mother cannot then bring it up on appeal. The mother also asserts that the court erred in forcing her to present her case before DFCS’s final witness testified. DFCS notified the court that their final witness was out of town and that her testimony would have to be presented at a later date. DFCS presented their witnesses that were present and then the mother was instructed to begin. The mother claimed that having to present her case without hearing all the evidence against her was in violation of her due process rights. The court responded that she had plenty of notice as to what the witness’ testimony would be from the state’s opening statement. The Court finds no error. When the last DFCS witness testified the mother had an opportunity to testify again but did not. She failed to raise and obtain a ruling on her equal protection challenge in the trial court and so there was nothing for the Court to review. As for her due process challenge the Court finds that the trial court has broad discretion with respect to the order of proof. The mother did not show how her presentation of evidence would have been different if she had been able to present after all of the DFCS witnesses and therefore could show no harm.

In the Interest of D.C. & E.C. A03A0225 (1/9/03) 03 FCDR 182
Parental Rights

DFCS instituted deprivation proceedings on behalf of DC and EC. The juvenile court found that DFCS did not produce clear and convincing evidence of deprivation. The children’s guardian ad litem appeals contending that the evidence warrants a ruling that the children are deprived. The Court of Appeals disagrees and affirms.

The children were removed from their mother’s custody because of her drug abuse and criminal conviction. Mother complied with reunification requirements and her son was returned to her. He was then removed again and the daughter remained in foster care. The removal was based on the thought that the children may be subject to sexual abuse if they were returned to their mother. This came from the fact that the maternal grandfather lived close to the mother and there was evidence that he sexually abused the mother when she was a child. The daughter’s psychologist testified that she saw her put an object into her vagina and saying that she learned that from her stepfather. The mother testified that her father did not have unsupervised visits with the children so he could not abuse them. She also testified that the children’s stepfather had done nothing improper. There was no investigation into the suspicions and neither child testified nor were interviewed.

DFCS testified that the mother had complied with all reunification requests except the one to provide for the safety of her children, because she exposed the children o her cigarette smoke. The reason for the daughter not being returned to the mother is that the pshychologist testified that the daughter was more dependent on her foster mother and that the mother had not been able to form a bond with the daughter. Other testimony authorized the court to find that the mother had a deep bond with the son and was working on bonding with the daughter. The court was also urged to find that the mother and her husband provided a suitable home for the children and could properly care for them. The juvenile court found that DFCS had not met its burden of proof on the allegations of deprivation and that the mother’s right to custody of her children was not lost. Decision affirmed.

In the Interest of V.I.D. and S.K.D. A03A0349 (12/20/02) 03 FCDR 67
Parental Rights

The mother of VID (born August 1991) and SKD (born February 1995) appeals the order of the juvenile court terminating her parental rights. The mother concedes that lack of proper parental care or control is the cause of the children’s deprivation and that if deprivation continues it would cause serious harm to the children. Mother contends that there is insufficient evidence to support a finding that the deprivation would continue. The Court of Appeals affirms the trial court decision.

The children were found to be deprived because of their parents’ instability and substance abuse. The parents were addicted to prescription medicine, the older daughter had not been enrolled in school and they were living in a criminally acquired U-Haul truck. The mother was later convicted of a felony because of the truck. The parents separated because of their arrests and began living in homes unsuitable for the children. The children were placed into DFCS’s custody. Reunification plans were entered into and though the goals were largely met the children were not returned to the parents because the father had a history of sexually molesting another child, and the mother had reconciled with the father and refused to live apart from him. DFCS continued to have custody when it was realized that the mother had allowed the father unsupervised contact with the children against the court’s order.

After another the parents complied with the reunification plan and the children were sent home. Within a few months the parents violated a condition by engaging in domestic violence in front of the children. Another plan to reunite the children with the mother was ordered even though DFCS recommended that the children not be reunited with either parent. The children were again sent home but a few months later the home was "in shambles and her life chaotic". The counselor treating the family found that the mother was unable to adequately provide for the children without supervision. She was later arrested for shoplifting while the children were with her and they were placed in DFCS’s custody again. Another reunification plan was ordered but at the hearing DFCS retained custody based on testimony from the evaluating psychiatrist that the mother was unprepared to parent children. A year later the mother was still found to be unstable and unable to cope with stress. She was unable to maintain employment and used alcohol, which interfered with her psychotropic medication, in violation of court orders. A psychologist treating the mother testified that though the mother was unable to take care of her children, she would be ready to do so in six months.

The Court of Appeals found that the subsequent termination of both parents’ rights was in order. The court, in making its determination, was authorized to place more weight on the parents’ past acts as opposed to future promises and based on the mother’s past negative acts the deprivation was likely to continue.

In the Interest of D.N.B. A02A1964 (11/19/02) 02 FCDR 3443
Parental Rights, Deprivation

Natural mother of DNB, LB, appeals a juvenile court order terminating her parental rights citing error in two factual findings entered by the court. The Court of Appeals, finding no error, affirm.

At age four DNB was taken into emergency DFCS custody when a caretaker could not locate the mother. DNB had marks and bruises on her thighs and buttocks. Additionally, DNB had severe dental problems at that time and had to have, among other things, five teeth extracted. The doctor testified that the state of disrepair had probably developed over six months to a year. DNB was placed in temporary custody of DFCS, and the order included a finding that DNB was deprived. A supplemental order listed eight requirements for reunification that mother was expected to substantially comply with. After a year of DNB being in state custody DFCS petitioned for termination of Lb’s parental rights. After a full evidentiary hearing, where there was testimony that LB failed to comply with virtually all of the reunification requirements, the court found parental inability and misconduct. LB’s parental rights were terminated.

LB contends that the court erred in ruling that she failed to substantially comply with the reunification plan. The Court of Appeals found however, that the record is full of evidence that LB failed to substantially comply with the reunification plan and supports the juvenile court’s findings. LB also claims that since she was willing to anything to get her child back, had a home, car and job, the court erred in finding that the deprivation would likely continue if the child was returned to her. The Court of Appeals disagreed finding that the evidence, including LB’s failure to provide a safe and stable home for her child, supported the court’s ruling.

In the Interest of C.M., E.M., and A.D.M. A02A1264; A02A1265 (11/15/02) 02 FCDR 3440
Parental Rights; Hearsay

Parents of CM, EM, and ADM appeals a juvenile court decision to terminate their parental rights.

Both parents contend that the trial court erred in not appointing them counsel for the deprivation hearing. The Court of Appeals points out that neither parent can show that they requested an appointment of counsel based on indigency nor that such request was denied. Additionally, the court points out that because deprivation and termination proceedings are different any error should have been appealed before and since they were not appealed the deprivation determination stands.

Both parents also claim that the trial court erred by admitting inadmissible hearsay. The parents object to the admission of a time line prepared by DFCS showing the history of DFCS’s involvement with the family, on the grounds that it was prepared from DFCS records and contained hearsay. The juvenile court however, found the time line to be a business record and admitted it. The court found that the time line was not a business record. It was prepared for the litigation and not as a regular course of business nor was it prepared and maintained pursuant to a routine practice. The Court of Appeals found that there was no reversible error in admitting the time line as a business record because the court said that it would not consider the hearsay. In addition, the appellants failed to show any finding of fact that was based on the hearsay.

Both parents also contend that there was insufficient evidence to support termination of their parental rights. The children were found to be deprived because of the parent’s neglect, failure to develop and maintain a meaningful bond with the children, failure to follow case plan goals, and emotionally abusive conduct toward the children. It was found that deprivation would continue and be harmful to the children if they were returned to the parents. The children were 10, 12 and 13 years old and DFCS had been involved with the family for 13 years. The children had been placed in foster care first because the father was in jail and the mother could not be found. The next time was when the mother was arrested and the father was threatening to kill himself. In 1998 they were placed in foster care again and have been there since. Both parents had been convicted of crimes and the father spent almost half of his life behind bars. Both parents had mental disorders and neither consistently received treatment. Neither parent supported the children nor did they interact appropriately with the children. The visits between parents and children always left the children hysterical according to a caseworker. There was also testimony that the children’s behavior regressed after the visits. Testimony was presented that neither parent could adequately care for the children. The mother’s husband sexually abused the children and the father showed poor judgment in his manic state. The children loved their parents but did not want to live with them.

The court of appeals found that there was sufficient evidence that the parents’ rights should have been terminated.

The father alleges that the court erred in not recording the deprivation proceedings. Because deprivation and termination proceedings are different any error should have been appealed before and is without merit in this appeal.

In the Interest of K.S. A02A2198 (10/15/02) 02 FCDR 3095
Parental Rights

Mother appeals termination of her parental rights to her two children citing insufficient evidence. In October of 1999 Douglas county DFCS removed Appellant’s seven year old daughter and nine year old son from the Appellant’s and her husband’s home because of Appellant’s emotional instability and the children’s educational deprivation. The son had not attended school in two years and the daughter had been out for a semester. The daughter was non-verbal and the son’s psychological evaluation showed him to have developmental disorders, psychotic disorders, and posttraumatic stress disorders and that he functioned academically at the kindergarten level or below. The father consented to the termination of his parental rights. Reunification plans for the mother required that she maintain stable housing and employment, enroll in a parenting class, support the children financially, maintain her emotional bond with the children, attempt to obtain transportation and obtain mental health evaluations and treatment. Appellant changed jobs several times between October 1999 and June 2001. In 2000 she was jailed for one month on a terroristic threat charge and in 2001 she was jailed for six months for a forgery conviction. She claimed that she had been working since her release but her case worker testified that she had been told that appellant was not working. Since her children had been with DFCS she lived in numerous different places, including a motel and a car. She did not pay child support for the children. She did however, complete a parenting class. There is evidence of her love for the children and she did bond with them. After making inappropriate comments at her visits, which caused her son to become agitation and his behavior to regress her visits had to be supervised. She missed the scheduled supervised visits. During her incarceration, the children improved. Termination hearing was held in April 2002 where evidence showed that the children were improving. The daughter’s foster parents were willing to adopt her and the son was on medication and needed to live in a therapeutic environment.

The Appellate Court affirmed, finding that the juvenile court was authorized to find that the children are deprived, based on the evidence. Although the appellant loves her children, she did not provide them with the care required by law while they were in her custody. Additionally, she failed to comply with the reunification plans. The court was right in finding that the appellant would be unable to care for the children now. The son needs special care that she is not equipped to give and the daughter has prospects for adoption. The court found that termination was in the children’s best interest.

In the Interest of C.C. A02A0895 (9/23/02) 02 FCDR 2838
Parental Rights, Deprivation

C.C.’s mother, S.J.C. appeals the termination of her parental rights. In an earlier opinion the Court reversed the trial court’s finding of deprivation based on evidence presented at a February 2000 hearing. The trial court entered another termination order based on evidence presented at an August 2000 hearing. On appeal the issue is whether the State presented enough evidence at the August hearing to sustain the termination order. The Appellate Court reversed finding that much of the testimony presented about S.J.C. and her child was "flawed, weak, or seriously contested."

The scope and future prognosis of S.J.C.’s mental disorder is unclear. The psychiatrist who diagnosed her did not testify. She admitted failing a couple of times to take her medication but there was no evidence of her being diagnosed with bipolar disorder, or that the nature of her illness prevented her from caring for her child. She did not see a counselor every month between her return from Florida and the hearing but no counselor or doctor testified that she was required to do so. Though she has no housing of her own, she does have friend willing to let her and her child live with them. When she had previously left her child in her friends’ care, while she went and sought treatment, her child was not deprived. All of the child’s needs were met. The Court found that DFCS failed to present clear and convincing evidence that the child was deprived or that S.J.C. caused any deprivation.

In Re T.M.G. S02G0228 (9/30/02) 02 FCDR 2805
Adoption, Collateral Estoppel

The Supreme Court granted certiorari to review the decision by the appellate court that appellants are collaterally estopped from seeking to adopt T.M.G. because they acted and were treated like parties in appellees’ earlier adoption proceeding. The Court reversed because it previously held that appellants were not parties to appellees’ earlier adoption proceeding, and the issue in the current action was not decided in the appellees’ previous action. Appellants were not collaterally estopped from bringing their own action.

T.M.G.. was placed with the Edmondsons, the appellants, when he was two months old and remained with them. In 1997 the Strohs, the appellees, from Alabama were able to obtain, in their favor, T.M.G.’s mother’s surrender of her parental rights. The Strohs instituted adoption proceedings in Echols county, Georgia and also sought to take custody of T.M.G.. DHR at the same time was in the midst of terminating T.M.G.’s mother’s parental rights and they intervened in the adoption proceeding. The Edmondsons filed their own adoption proceeding and sought to consolidate with the Strohs. The petitions were denied, for procedural defects on the Edmondsons’ part, and the Strohs because they are Alabama residents. The motion to consolidate was dismissed as moot. The Strohs appealed and the Edmondsons filed a brief as amicus curiae. The Court of Appeals remanded to the trial court for them to give the Strohs custody while the instituted adoption proceedings in Alabama. The Edmondsons’ petition for certiorari was initially granted and then later vacated because the Court found that they were not nor had ever been parties to the Strohs action.

The Edmondsons filed another petition in the county that they live in with DHR’s consent. The trial court dismissed the petition on the Strohs motion based on the Appellate Court decision in the Stroh’s earlier action. On appeal the Court of Appeals affirmed holding that the Edmondsons were collaterally estopped from seeking to adopt T.M.G.. The Court reasoned that the Edmondsons were parties to the Strohs’ adoption proceeding and could have timely intervened in the action. The Supreme Court found that ruling to be in contradiction to the Supreme Court’s previous ruling that the Edmondsons were never parties in the Strohs’ action. The Court found that the Edmondsons were not in privity in the Strohs’ case. The issue of whether the Edmondsons could adopt T.M.G. was not decided in the Strohs’ case so no common issues are involved. The Court remanded the matter to the trial court so that the Edmondsons may continue with their adoption proceeding.

In the Interest of K.C.H. A02A1575 9/20/02 02 FCDR 2722
Termination

Mother appeals from juvenile court order finding K.C.H. deprived and turning child over to the Georgia Department of Human Resources for temporary custody. In deprivation hearing for mother’s other two children, the court found that the children were deprived and that the mother’s boyfriend sexually molested her daughter. There would be no reunification unless the boyfriend moved out. The mother did not believe that the boyfriend molested her daughter and instead of making him leave she married him. She was pregnant with K.C.H. at the time of the hearing and the day before she gave birth she and her husband went to South Carolina where she had the baby girl. The department took the baby because the father was still living with the mother.

The Court of Appeals found that though K.C.H. was born in South Carolina, venue was proper because there was no evidence that the couple had moved there. As for K.C.H.’S deprivation, the court found that she was deprived because the father, who was still living with the mother, had molested the other daughter and as such was a threat to her health and well being.

In the Interest of D.B., C.T. & W.J. A02A1574 9/19/02 02 FCDR 2720
Termination

Juvenile court terminated mother’s parental rights and mother appealed citing insufficient evidence. The Court of Appeals affirmed. The children were removed from the mother’s care after severe unexplained bruises were noticed on two of the children. The mother used a stick, belt and paddle to punish the children. She admitted that she injured D.B.’s foot and ankle but that she did not seek any medical attention fearing investigation. Five year-old C.T. was sexually abused by mother’s brother and after staying with the mother for four days, W.J. went back to his foster mother with 15 bite marks. The mother failed a polygraph test regarding W.J.’s abuse and was charged with two counts of cruelty to children and pled nolo contendere to two counts of simple battery. She claimed that the children inflicted each other’s injuries. The court found that even if the harm was not caused by the mother, the injuries came about as a result of her inability to provide adequate care for her children, and that there was a connection between the nolo contendere plea and the harm inflicted upon the children. There was also evidence of the mother’s mental illness and her refusing to take her medication. The court found that deprivation was likely to continue and that termination was in the best interest of the children.

In the Interest of T.S.T. A02A0878; A02A0879; A02A0880 (9/12/02) 02 FCDR 2680
Reunification

The juvenile court dismissed Larry Samuel Thurmond’s petition to terminate his former wife’s parental rights to their three minor children. Thurmond appeals and the Court of Appeals reversed the portion of the lower court’s order that dismissed the petition as being premature.

The juvenile court dismissed the petition as being premature, citing OCGA §15-11-58 (a), because Thurmond had not sought a reunification plan nor did he present any facts to suggest that a reunification plan was not required. The Court of Appeals reversed because a reunification plan is not required under the code. According to the amended OCGA §15-11-58 that is being applied retroactively in this case, a reunification plan is only required if the court removes a child from his home and places that child in the custody of the Department of Human Resources (DHR). Since DHR was not involved in this private action, no reunification plan is necessary. Order reversed and case remanded.

In the Interest of J.R.H. A02A1229 (8/29/02) 02 FCDR 2553
Parental Rights

The Court of Appeals affirmed the juvenile court’s order terminating the parental rights of J.R.H.’s father. Father appeals citing insufficient evidence.

Minors J.J., J.R.H., and J.R.J. all have the same mother but different fathers. After a fourth child, K.J. died the three surviving children were found to be deprived and the Department of Family and Children Services was given temporary legal custody of them. The children at that time were thought to be living with their maternal grandparents but were in fact living with their mother. J.R.H.’s father was sentenced to eight years probation after a conviction of forgery. Two years later his probation was revoked because he committed aggravated assault with intent to rob. He is incarcerated with a maximum parole date of 2005.

The father admitted that before his incarceration, the father did not provide any child support for the child and that his conviction has adversely affected his relationship with the child. The child was deemed deprived and the father did not appeal the order. The deprivation is caused by the lack of parental care or control by the father and such deprivation is likely to continue and will harm the child. The father has not formed a bond with the child and, other than for a few months after the child’s birth, has not lived with the child. He has not provided any care and support for the child, and until termination proceedings were initiated, when the child was six, did not seek to legitimate J.R.H. The court found termination to be in the best interest of J.R.H.

In the Interest of C.R. A02A1067 (8/23/02) 02 FCDR 2490
Freedom of Religion

The Court of Appeals affirmed the juvenile court order granting permission to the child’s temporary custodian to have the child immunized. The Mother appeals the order because it was granted over her religious objections. The court found that under O.C.G.A., the medical care for a deprived child is determined by the child’s custodian.

In the interest of H.H. A02A1612 (8/23/02) 02 FCDR 2491
Termination

The State petitioned for Parental rights to be terminated after the parents continued to live in deplorable conditions and failed to comply with the reunification plan. The children were removed from the home because of unsanitary living conditions and abandonment. The juvenile court granted the petition and the parents appealed citing insufficient evidence to warrant termination and error by the court in not placing the children with the paternal grandparents. The Appellate Court affirmed finding that the evidence supports the trial court’s termination order. The children were not placed with the grandparents because of their health and age, the opposition to the third grandchild, and their disinterest in obtaining custody in the four years that the case was with DFCS.

In the Interest of B.F. A02A0851 (08/20/02) 02 FCDR 2488
Termination

The court terminated parental rights of both mother and father and the mother appeals. The Court of Appeals, which had previously reversed the termination of the father’s rights, reverses the termination of the mother’s rights citing insufficient evidence of some of the factors necessary to support a finding of parental misconduct.

After the parents separated B.F. stayed with the father while the daughter stayed with the mother. At one point both children were with the father until the mother came and took the daughter. She left B.F. thinking that he would not be able to be away from his father with whom he was very close. The father and the mother’s husband did not get along and when the father and B.F. moved the mother lost touch with them. She tried to locate them but had not seen B.F. until he turned up in DFCS custody more than two years later. At the hearing, the child’s guardian ad litem could not recommend termination of the mother’s parental rights because she could not say that is was in the child’s best interest.

A finding of parental misconduct is determined by evidence that the child is deprived, that the cause of deprivation is lack of parental care or control, that the cause of deprivation is likely to continue and that the continued deprivation id likely to cause harm to the child. The child was previously found to be deprived by the trial court due in part to the fact that the mother’s whereabouts were unknown at the time. Deprivation was caused in part by the mother’s lack of parental care because she had no contact with the child for more than two years.

The Court, however found that the trial court’s determination that deprivation is likely to continue is premature. Although the mother had not been in touch with B.F. in more than two years there was evidence that she tried to locate him. She left him with his father because she thought that he was capable of taking care of him. Though she only visited B.F. once in the six months since she learned of his situation, she explained that her car was inoperable and that in an effort to be away from her husband of whom she was afraid, she lived far away from her children. There was no evidence of past neglect and the court cannot say that such will continue. The Court found that there was no evidence that any continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. No evidence was found to suggest that B.F. would suffer from a continued relationship with his mother.

In the Interest of R.N.R., R.E.R., M.R.& C.C.II A02A1196 (8/20/02) 02 FCDR 2493
Reunification

The juvenile court’s order that the Clayton County Department of Family and Children Services, (the Department) could stop trying to reunify the children with their mother. The mother appeals and the court affirmed.

The juvenile court found that, because the mother had physically neglected the children, any reasonable efforts to reunify the family would be detrimental to the children. At the time the children were taken from the mother the two-year-old twins R.N.R & R.E.R were only 13 pounds each and could neither speak nor walk. They could barely sit up. M.R. at seven was also malnourished. C.C.II was taken at birth. In foster care all children thrived but the mother thought they had gained too much weight and maintains that she was a very competent parent. At the time of C.C.II’s birth a doctor stated that the other three were suffering from severe malnutrition to the point of starvation and that if they had continued on that course they would have died.

Reunification efforts should be terminated when they would be detrimental to the child. Additionally, such services should not be provided if there is clear and convincing evidence that any of the grounds for terminating parental rights are present. The fact that the children were starving, added to the mother’s denial of responsibility support the Juvenile Court’s findings that the children were physically neglected and that reunification would be detrimental.

In the interest of O.J. A02A1221 (8/8/02) 02 FCDR 2399
Termination

The Court of Appeals affirmed the trial court’s termination of parental rights. The single mother suffered from chronic schizophrenia which hindered her ability to care for her child. On appeal the mother argued that there was insufficient evidence, that the court erred in admitting hearsay testimony and that the court erred in not appointing her an attorney for the deprivation hearings.

The court ruled that the trial court was allowed to admit the hearsay testimony and that the mother failed to request an attorney which is available "upon the request of [the indigent party.]" O.C.G.A.§15-11-6 (b) In order to terminate the rights of a parent there must be clear and convincing evidence of parental misconduct or inability, it must also be determined that termination is in the best interest of the child. It was determined on prior occasions that the child was deprived which was caused by lack of proper parental care. The mother’s mental illness left her and the child homeless, exposed to continued molestation and she was unable to care for the child.

Since the mental disorder was a permanent condition for which the mother was disinclined to take her medication, it was likely that the deprivation would continue. Termination was in the child’s best interest because of the child’s need for a stable and secure home which, based on the previously enumerated factors, the mother was unable to provide.

In the Interest of P.O.M. A02A1314 (5/23/02) 02 FCDR 2401
Termination, Adoption

The superior court terminated parental rights and granted petition for adoption by the child’s paternal aunt and her husband. The court affirmed the decision. The court found that P.O.M. was deprived. The mother used drugs, was continuously incarcerated, failed to complete the goals set forth in the case reunification plan and did not show any meaningful interest in her children. The court also found that based on the mother’s past conduct, deprivation was likely to continue.

In the Interest of J.M., A01A1119 (8/27/01) 01 FCDR 2741

DFCS petitioned to terminate the mother's parental rights. The Juvenile Court granted the petition and the mother appealed. The Court of Appeals held that: (1) the evidence was sufficient to support the finding that the mother lacked parental care or control of minor children, and (2) the mother's continued behavior was sufficient to support finding that the cause of the children's deprivation was likely to continue; and (3) evidence that a continued relationship with the mother would likely cause serious physical, mental, emotional or moral harm to children was not clear and convincing. There was no testimony that children would be seriously affected by continuing their relationship with their mother, that the children were thriving in foster care or that the children were experiencing harm caused by "foster care drift."

In the Interest of C.M., A01A1210 (8/24/01) 01 FCDR 2743

Mother appealed from trial court's order terminating her parental rights. The Court of Appeals held that the evidence was sufficient to support termination of her parental rights. Clear and convincing evidence supported the finding that the child's deprivation was likely to continue, despite the mother's contentions that DFCS did not work with her on parental issues before the termination hearing, and that the state's evidence was antiquated and insufficient to support a finding of present or likely future deprivation. Numerous witnesses testified about the child's behavior problems before being removed from his mother's custody and the child improved drastically after being removed from his mother's custody and placed on anti-hyperactivity medication. Additionally, the mother was diagnosed with a mental disorder and did not complete treatment, and after visits with the mother the child's behavior deteriorated dramatically.

In the Interest of D.A.E., A01A0981 (8/16/01) 01 FCDR 2589

DFCS sought to terminate the mother's parental rights to her minor son. The trial court granted the termination of the mother's parental rights and the mother appealed. The Court of Appeals held that sufficient evidence supported termination of the mother's parental rights to her minor son. Appellant was repeatedly incarcerated on drug charges, failed to complete a substance abuse treatment, failed to keep a job or find stable housing, and admitted trading sexual favors for a place to stay.

In the Interest of S.H., A01A2029 (8/16/01) 01 FCDR 2587

DFCS petitioned to terminate the parental rights of the incarcerated putative father and the father filed petition to legitimate the child. The juvenile court denied the petition to legitimate the child, found the father's parents unsuitable for placement of child, and terminated the father's parental rights. The father appealed. The Court of Appeals held that: (1)the father's failure to file a petition to legitimate his daughter within the statutorily mandated 30 days after receipt of the notice of petition to terminate his parental rights deprived him of standing to challenge the termination petition; (2) the evidence of parental misconduct was sufficient to support the denial of the legitimation petition and to terminate the father's parental rights; (3) the finding that the grandmother was not a suitable placement for the child was not abuse of discretion; and (4) the finding that grandfather was not suitable placement for child was premature.

In the Interest of M.C.L., A01A1337 (8/8/01) 01 FCDR 2591

DFCS petitioned to terminate parental rights to two children of the mother and separate fathers. The trial court granted the petition as to mother and father of the younger child, and denied the petition as to the father of older child. The mother and father of the younger child appealed. The Court of Appeals held that: (1) the evidence of the parents' past conduct and failure to comply with the goals of the DFCS reunification plan was sufficient to support a finding the deprivation was likely tp continue; (2) the evidence of the effect of nearly two years of foster care on children was sufficient to support the finding that continued deprivation was likely to cause harm to the children; and (3) the evidence was sufficient to support the finding that termination of parental rights was in the children's best interests.

Coleman v. Grimes A01A1470 (7/31/01) 01 FCDR 2465

The step-father petitioned to terminate the parental rights of the biological father and to adopt the child. The Superior Court terminated the biological father's parental rights and granted the petition for adoption. The biological father appealed. The Court of Appeals held that: (1) the biological mother and step-father were collaterally estopped from litigating to terminate the biological father's parental rights to the child, and (2) the biological father was entitled to a new trial based on the biological mother's false statements included in her "Mother's Affidavit."

The biological father's prior legitimation proceeding fully addressed the issues of abandonment and parental fitness that biological mother and step-father attempted to raise in the termination of parental rights proceeding. The biological mother had notice of the biological father's legitimation proceeding, and the biological mother and step- father were in privity for the purpose of biological father's legitimation proceeding.

In the Interest of J.R.T. and G.F.T., A01A1942 (7/24/01) 01 FCDR 2412

DFCS brought a termination of parental rights action against the mother regarding two of her children. At the termination hearing, the mother's attorney moved for a continuance due to the mother's unexplained absence. The juvenile court denied the motion and terminated the mother's parental rights. The Mother appealed. The Court of Appeals held that: (1) the continuance of the hearing was not warranted; (2) the evidence was sufficient to show the mother was unfit and to support the termination of her parental rights; and (3) the appeal included a legitimate inquiry as to whether the evidence established all the statutory criteria required for the termination.

In the Interest of K.S., A01A1350 (7/2/01) 01 FCDR 2153

The father appeals an order by the juvenile court terminating his parental rights. The Court of Appeals held that: (1) the defendant's continuous incarceration constituted aggravating circumstances to support the termination of his parental rights, and (2) clear and convincing evidence supported termination of father's parental rights.

Davis v. LaBrec. S00G1296 (6/25/01) 01 FCDR 1988

Child's purported biological father filed a complaint to establish paternity, to set aside a previous legitimation order naming another man as child's legal father, and to legitimate and obtain custody of the child. The Superior Court granted purported biological father's petition and the legal father appealed. The Court of Appeals reversed and remanded and certiorari was granted. The Supreme Court held that the action was governed by best interests of child standard, rather than parental fitness standard.

In the Interest of B.C. and S.N.C., A01A0476 (6/20/01) 01 FCDR 2018

The mother appealed from order of the juvenile court terminating her parental rights. The Court of Appeals held that: (1) the trial court's failure to set out a plan for reunification and give the mother an opportunity to meet those goals required reversal of the order terminating the mother's parental rights as to the 10-month-old child; (2) clear and convincing evidence supported a finding that the pattern of deprivation was likely to continue and to cause harm to three-year-old; and (3) the evidence was sufficient to support a finding that termination was in best interest of the child.

In the Interest of T.F., A01A1421 (6/13/01) 01 FCDR 2016

The mother of T.F. appeals an order of the juvenile court terminating her parental rights. The Court of Appeals held that: (1) the evidence supported the termination of parental rights, and (2) the evidence supported the determination that there was no suitable family member with whom the child could be placed.

The evidence supported a finding that the conditions giving rise to the child's deprivation were likely to continue, and that discontinuation of reunification efforts and termination of the incarcerated mother's parental rights were in the child's best interest. Although the mother was drug-free for the past 18 months and attended all substance abuse and parenting classes that the prison offered, the mother failed in two prior attempts to prove her ability to remain sober and care for the child in an uncontrolled environment. Moreover, no firm parole date was set, and the mother presented no testimony from any of her counselors assessing her performance in substance abuse and parenting programs.

In the Interest of D.T.C. , (3/28/01) 01 FCDR 1241

The juvenile court terminated a father's rights in his son and the father appealed. The Court of Appeals held that: (1) there was sufficient evidence that father was presently unfit, and (2) there was sufficient evidence that termination was in the child's best interests.

In the Interest of A.T.H. and J.D.E., (3/13/01) 01 FCDR 1153

After the mother was convicted and received a life sentence for felony murder and armed robbery, DFCS petitioned to terminate the mother's parental rights to her three children. The juvenile court terminated her parental rights with respect to two children and the mother appealed. The court of appeals held that: (1) the evidence supported a finding that deprivation was likely to continue or would result in serious harm to the children, and (2) the records of citizen review panel meetings held over the years were admissible.

In the Interest of C.C., (4/11/01) 01 FCDR 1344

The Juvenile Court found the child to be deprived and placed her in the temporary custody of DFCS and the mother appealed. The Court of Appeals held that the evidence was insufficient to support the juvenile court's finding that child was deprived. DFCS failed to meet its burden of proof because despite the mother’s lengthy history of mental health problems she sought treatment for her condition and made sure that the child received proper care in the interim.

In the Interest of A.R., (3/12/01) 01 FCDR 1152

Parents appealed a finding of the juvenile court that their children were deprived and granting custody to DFCS in a termination of parental rights proceeding. The Court of Appeals held that: (1) the parents acquiesced in the juvenile court's failure to record an in-chambers interview with one of their children and, thus, implicitly waived the recordation requirement; (2) the juvenile court was entitled to rely on the evidence gathered in the unrecorded interview; and (3) the evidence supported a finding that grounds for termination of parental rights were established.

In the Interest of R.W.. A01A0606 (3/8/01) 01 FCDR 1057

DFCS petitioned to terminate a mother's parental rights. The juvenile court terminated the mother's rights and the mother appealed. The Court of Appeals held that: (1) the evidence was sufficient to support the termination of the mother's parental rights; (2) the court could consider the mother's lack of monetary support of her children; and (3) the mother failed to preserve for appellate review her claim that the juvenile court erred by placing the children directly for adoption without first considering a family member.

In the Interest of B.N.A., A00A1933 (3/5/01) 01 FCDR 973

The juvenile court entered an order terminating the parental rights of the father and an appeal was taken. The Court of Appeals held that father's previous drug offense conviction, current charges against him, and the lack of greater initiative in reuniting himself with his child, was insufficient to show that the father's lack of proper parental care or control was causing, and would continue to cause the child to be deprived where DFCS did not establish a proper case plan and allow adequate time fore completion of the caseplan.

In the Interest of C.D.E., S.M.E and D.C.E., A00A1914; A00A1995 (3/6/01) 01 FCDR 1059

DFCS filed a deprivation petition as to five children living with their parents, three of whom were children of father, one of home was child of mother, and one of whom was child of both parents. The Juvenile Court entered a judgment which contained a finding that children were deprived, provided that DFCS retain custody of four children, and provided that the mother retain custody of the joint child, if she had absolutely no contact with father. The parents appealed with respect to the four children placed with DFCS. The Court of Appeals held that: (1) insufficient evidence supported a finding that the children were "deprived;" (2) the court could not apply the general principle that judges are presumed to ignore hearsay evidence in making determinations, when the trial court expressly relied on hearsay in the medical report; and (3) even if evidence supported a finding of deprivation, the judgment should be vacated as it was based on a mischaracterization of evidence.

In the Interest of A.L.E. AND T.S.E., A01A0205 (2/22/01) 01 FCDR 865

The mother of two children appealed the termination of her parental rights and claimed that her trial counsel rendered ineffective assistance. The life of this mentally ill mother unraveled after her husband was struck by a massive stroke. The Court of Appeals affirmed the termination due to her incapacitating mental illness. However, the Court remanded the case to juvenile court for a hearing on appellant’s ineffective assistance of counsel claim because appellate counsel was appointed after trial counsel filed the notice of appeal.

In the Interest of D.L.D., A01A0216 (2/20/01) 01 FCDR 869

The father of three children appeals from a juvenile court order terminating his parental rights. In his sole enumeration of error, he contends the juvenile court did not have sufficient evidence to terminate his parental rights. The Court of Appeals disagreed and affirmed the juvenile court’s order because the father failed to remain drug free and out of jail, failed to maintain suitable employment and did not provide a stable home for his children.

In the Interest of S.K. AND F.K., A00A2259, A00A2260 (2/19/01) 01 FCDR 811

A proceeding was brought to terminate the mother's parental rights to two children based on failure to protect them from alleged sexual abuse. In a companion case, the paternal grandmother sought custody of those children. The juvenile court order terminated the mother's rights and denied custody to the grandmother. Both appealed. The Court of Appeals held that: (1) the juvenile court’s denial of the mother's motion for independent psychological examination of children was not an abuse of discretion; (2) the grandmother was not entitled to a new hearing based on the fact that only a partial transcript existed for one of the four sessions that occurred at trial level; and (3) the juvenile court’s denial of custody to the grandmother was not an abuse of discretion

Denial of mother's motion for an independent psychological examination of her children was not an abuse of discretion since a psychologist had examined the children just a few months prior to the hearing and had concluded they had been substantially harmed from sexual abuse by male relatives and from the mother's continual denial that abuse had occurred, and mother presented no evidence that those conclusions were in any way biased or that another psychologist would come to a different conclusion. Grandmother to whom juvenile court denied custody of children in the termination of parental rights case was not entitled, under the statute requiring that such proceedings be recorded, to new hearing based on fact that only a partial transcript existed for one of four separate sessions that occurred at trial level since the reasoning behind the rulings at issue on appeal was either transcribed or was included in the detailed written order.

In the Interest of C.N.S.. A01A0426 (2/15/01) 01 FCDR 703

The mother appealed an order of the Juvenile Court terminating her parental rights to her children. The Court of Appeals held that: (1) the mother's near continuous incarceration was an aggravating circumstance, such as would establish the mother's lack of parental control over children; (2) the evidence supported a conclusion that termination of the mother's parental rights was in the children's best interests; (3) the trial court's erroneous admission of the mother's drug screen test was harmless; and (4) the citizen review panel reports were admissible.

In the Interest of J.B., (2/14/01) 01 FCDR 705

Both parents appeal the trial court’s order terminating their parental rights. The standard of review of a juvenile court’s decision to terminate parental rights is whether, after reviewing the evidence in the light most favorable to appellants, any rational trier of fact could have found by clear and convincing evidence that the parent’s right to custody of the children has been lost. The Superior Court affirmed the termination of parental rights stating that, "This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met."

In the Interest of L.M.J... A00A0298 (1/31/01) 01 FCDR 565

In a termination of parental rights proceeding involving a mother, the grandmother appealed an order of the juvenile court awarding permanent custody of child to DFCS. The Court of Appeals held that: (1) the grandmother had standing to appeal the order granting permanent custody of child to DFCS, and (2) sufficient evidence supported the conclusion that it was not in child's best interest to be placed with grandmother.

The grandmother had standing to appeal an order granting permanent custody of the child to DFCS in a termination of parental rights proceeding involving the mother, though the trial court failed to enter a formal ruling on the grandmother's motion to intervene, as trial court effectively granted grandmother's motion to intervene by allowing her to fully participate in the proceeding. Sufficient evidence supported the conclusion that it was not in child's best interest to be placed with the grandmother due to her inability to properly discharge parental responsibilities.

In the Interest of S.L.H.. A00A2029 (1/19/01) 01 FCDR 414

After the petition for termination of the father's parental rights was filed, the juvenile court terminated parental rights. The father appealed. The Court of Appeals affirmed holding that the father's parental rights could be terminated, although he had been incarcerated, as the required statutory notice regarding legitimation by a biological father was given, in addition to the notice contained in the termination petition the juvenile court ordered father over two years earlier to legitimate child or risk losing his parental rights, and his incarceration was no excuse for his inaction.

In the Interest of J.L.H.. A00A2538 (1/19/07) 01 FCDR 419

The putative father appealed the termination of his parental rights. The Court of Appeals held that clear and convincing evidence supported the termination. The termination of the father's parental rights was supported by a finding of deprivation resulting from father's inability to adequately care for his children and a finding that termination of parental rights was in best interests of the children. There was testimony that the children were kept in unsuitable living conditions without appropriate food, clothing, or care, that the father abused drugs, sold the children's furnishings for questionable reasons, and that he committed numerous crimes which resulted in multiple incarcerations.

In the Interest of J.J.W., A00A2000 (1/18/01) 01 FCDR 412

In a child protection proceeding, the juvenile court entered an order terminating the parental rights of both parents and placing the child in permanent custody of DFCS. The father appealed. The Court of Appeals held that: (1) the evidence was sufficient to support a termination of parental rights, and (2) permanent placement with DFCS without investigating any relatives as possible suitable placement, was improper. Evidence of father's past conduct toward child, as well as his failure to cooperate with the case plan and repeated acts of physical aggression toward child's mother, was sufficient to show that the child's continued deprivation by father was likely to continue or would not likely be remedied, as required to support termination of father's parental rights. The father also admitted to mental impairment, and at one point lured the child's mother out of a drug rehabilitation center, abandoning child there and taking the mother on crack cocaine binge. Placement of the child in permanent custody of DFCS following termination of parental rights of both parents was improper, in absence of any evidence that the department investigated any relatives as possible suitable placement for child as required by statute.

In the Interest of D.S. and R.S., A00A2530 (1/16/01) 01 FCDR 417

In a child protection proceeding, the juvenile court entered an order terminating the mother's parental rights to her two children. The mother appealed. The Court of Appeals held that evidence of parental inability was sufficient to support the finding that mother's parental rights had been lost. The evidence in the proceedings to petition for termination of mother's parental rights was sufficient to support a finding that the mother's parental rights had been lost. The evidence indicated that the children were deprived, that the deprivation was caused by lack of proper parental care or control, that the cause of deprivation was likely to continue, that the same pattern of deprivation would likely continue if the children were reunited with mother, that continued deprivation would cause serious physical, mental, or moral harm to the children, and that termination of the mother's parental rights was in the children's best interests.

In the Interest of C.T. AND D.T. A00A2467 (1/10/01) 01 FCDR 415

A proceeding was brought to terminate parental rights of an incarcerated father who was an illegal alien awaiting deportation as a convicted felon. The Juvenile Court terminated parental rights. Father appealed. The Court of Appeals held that: (1) evidence supported termination of parental rights, and (2) the trial court's denial of father's request to participate in hearing via telephone was not reversible error.

In the Interest of L.J.L & R.L., (1/5/01) 00 FCDR 352

Challenging the sufficiency of evidence, the mother appeals the termination of her parental rights to her two children. The Court of Appeals reversed the juvenile court’s order stating that DFCS failed to show that she was presently unfit since the mother completed a drug treatment program and parenting classes, attended Narcotics Anonymous, paid child support and took steps to provide a suitable home for her children.

In the Interest of N.Y., A00A2303 (11/08/00) 01 FCDR 21

The natural father sought review of an order of the juvenile court extending temporary legal custody of his children with DFCS. The Court of Appeals held that: (1) the evidence of the father's parental unfitness was not stale, and (2) the evidence supported an extension of temporary legal custody. Approximately six months before the hearing, the older child, then 15, suffered anal intercourse while on the second of two unsupervised visits to father's home. The father and his new wife, who was 18 years old, sat in an adjacent room while the older child was sodomized by her boyfriend. Eight months before the hearing the father walked out on psychological testing required by case the plan, and father thereafter refused to follow through with individual counseling. Approximately 11 months before the hearing the younger child reported physical and verbal abuse by the father from age six on, and the older child wrote suicide note a year before hearing stating that she was afraid of father and that he threatened to kill her and her mother.

Weiss v. Varnadore, A00A1539 (11/03/00) 00 FCDR 4420

A grandmother sought custody of two grandchildren after alleging abuse. The trial court entered a joint custody order awarding custody to mother and grandmother. The mother appealed. The Court of Appeals held that vacation of the order and a remand for findings of fact was required for the appellate court to properly address a challenge to the statute permitting a parent to lose parental rights based on a voluntary contract releasing rights to a third person.

In the Interest of C.C.E., A00A1668 (10/31/00) 00 FCDR 4364

Proceeding was brought to terminate incarcerated an father's parental rights. The trial court terminated father's parental rights and the father appealed. The Court of Appeals held that precluding the father from participating via telephone in the termination hearing did not violate due process. Moreover, the father could have presented testimony to the court through other means such as a deposition or affidavit. Irrespective, the father cannot complain about his absence at the hearing because that absence was the direct result of his criminal conduct in another state.

In the Interest of D.S.R., A00A1759 (10/17/00) 00 FCDR 4218

Following termination of mother's parental rights to child by the trial court, mother appealed. The Court of Appeals, held that: (1) evidence supported termination; (2) if hearsay were introduced, it was harmless in light of other evidence that was sufficient to support termination; (3) if some evidence of mother's condition were stale, that would go to the weight of evidence and not admissibility; (4) caseworkers and nurses who were involved in treatment or daily lives of mother and child were entitled to rely upon previous diagnoses of medical condition of mother and child that were contained in medical reports and records during testimony at trial; and (5) mother failed to show harm from wrong date of citizens committee's recommendation to terminate parental rights in findings of fact.

In the Interest of U.B. AND V.B., A00A2185 (10/16/00) 00FCDR 4216

Father appealed after the Juvenile Court ruled that his two children were deprived, awarded temporary custody of father's two children to DFCS and recommended that reunification services not be provided. The Court of Appeals held that the evidence was sufficient to support a finding that children were deprived, and that the father's misconduct or inability to care for their needs rendered him unfit to retain custody, and the evidence was sufficient to support finding that family reunification was not in best interests of children.

Evidence was presented that the father had beaten the children's mother throughout their marriage, that the father had long criminal history for violence, that one child reported a fear that her parents would kill her, that one child had an unexplained broken arm while in the father's care, and that the father admitted that he had long a history of circumstances in which he directed his anger at the mother in the presence of children, and had problems controlling his temper. This evidence was sufficient to support the juvenile court's finding that the children were deprived, and that the father's misconduct or inability to care for their physical, mental, emotional, and moral needs rendered him unfit to retain custody.

There is also sufficient evidence to support the juvenile court's finding that family reunification was not in the best interests of children for it would likely only prolong their deprivation with their father, where children were twice removed from the parents' custody and were returned to them after receiving reunification services, and where father's mental health counselor testified that treatment for his intermittent explosive disorder and depression would take two to three years, and the children should not be returned to father any earlier than year from time of the hearing.

Finally, the statute governing a juvenile court's review of a DFCS determination that a family reunification plan is not appropriate only requires the trial court to approve a non-reunification plan upon clear and convincing evidence that reasonable efforts to reunify a child with his or her family would be detrimental to the child alone, rather that by requiring use of special words that court's approval of non-reunification is based upon clear and convincing evidence that reasonable efforts to reunify the family would be detrimental to the children.

In the Interest of S.S., T.S. & S.S., A00A0992 (10/4/00) 00 FCDR 4052

The mother of three children appeals the termination of her parental rights. She asserts that the juvenile court improperly terminated her parental rights because she was not served personally with a copy of the petition for termination of parental rights or the summons indicating the date of he hearing. The Court of Appeals found that the service of process on the mother was insufficient. There is no evidence that the mother was served personally with the summons and petition or by leaving a copy at her dwelling house or usual place of abode with a person of suitable age and discretion then residing therein. The fact that she may have had actual notice of the termination proceeding, through the mail by DFCS, would not cure the defective service. In termination cases, because of their sensitive nature and the infringement on fundamental liberties they entail, we recognize that we must be vigilant to protect the parties rights and interests by observing all formalities required by law, including proper service of process. Court’s should evaluate each individual case on its particular facts to determine if waiver has occurred rather than establish inflexible rules designed to make waiver more likely.

In the Interest of A.G.I., A00A1263 (9/21/00) 00 FCDR 3969

A seventeen-year-old mother appealed an order from the Juvenile Court terminating her parental rights to her child. The Court of Appeals held that: (1) the mother waived her right to be present during the final hearing to terminate her parental rights; (2) the court was authorized to take judicial notice of the initial order finding the mother's child to be deprived; and (3) the decision to terminate mother's parental rights was not supported by clear and convincing evidence.

First, a party may waive their right to be present during the trial by voluntarily absenting herself from the court. In this case, the mother was fully informed that the hearing was being held, but she refused to enter the courtroom. Second the initial order of deprivation was never appealed. So at the later termination hearing the juvenile court was authorized to take judicial notice of the order and find the child deprived. Third, the decision to terminate the mother's parental rights was not supported by clear and convincing evidence that child lacked parental care or control. The mother's diagnosis of oppositional defiant behavior, in absence the of any evidence describing what behavior was or how it might limit mother's parenting abilities, was insufficient to show that the mother was unable to provide for child's needs. The fact that the mother might have been immature and that she lacked skills to care for and support her child, absent evidence to support such findings, was not evidence of her parental inability, and the fact that mother failed to attend doctor's appointments and ran away from a maternity group home did not support the conclusion that mother neglected her child. The fact that 17-year-old mother's other child was cared for by the maternal grandmother did not prove that the mother was an unfit parent to her second child, such as would support termination of mother's parental rights to second child. The juvenile court failed to make findings that mother failed to care for or abandoned her other child and no testimony to this effect was offered at termination hearing. Based on these findings there is not clear and convincing evidence of parental misconduct or inability. Absent such evidence, the juvenile court erred in taking the drastic action of terminating parental rights.