E.C., In Interest of, A97A0454

• Decision Date: 28 February 1997
• Docket Number: No. A97A0454,A97A0454
• Citation: 482 S.E.2d 522,225 Ga.App. 12
• Parties: , 97 FCDR 1101 In the Interest of E.C., a child.
• Court: Georgia Court of Appeals

Page 522

482 S.E.2d 522

225 Ga.App. 12, 97 FCDR 1101

In the Interest of E.C., a child.

No. A97A0454.

Court of Appeals of Georgia.

Feb. 28, 1997.

Meadows & Power, Gregory A. Futch, McDonough, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Ernest D. Blount, for appellee.

ELDRIDGE, Judge.

Appellant Brenda Camp challenges the termination of her parental rights, asserting that there was insufficient evidence that her child was deprived or that such deprivation, if present, was likely to continue. For the reasons set forth, we affirm the termination order of the trial court.

On March 11, 1994, an investigator from the Henry County Department of Family & Children Services ("DFCS") visited appellant's home on a referral. Appellant answered the door wearing only a tee-shirt and talked to the investigator for ten minutes before putting on additional clothing. Appellant's speech was slurred, she appeared intoxicated, and she admitted taking medications and drugs. Appellant's 14-month-old child, E. C., was taken into emergency custody by DFCS under court order. Following a 72-hour hearing on March 14, 1994, the juvenile court determined that the child was "deprived as contemplated under the provisions of OCGA § 15-11-2(8) in that she is without proper parental care, control, subsistence, education, ... [and concluding that] the deprivation of the child will continue and she will suffer irreparable harm" unless removed from appellant's home. ¹ The court awarded temporary custody to DFCS and held a hearing on the deprivation petition on March 28, 1994. Between the first and second hearings, appellant was tested for drug use on March 18, 1994 and tested positive for methadone, codeine, and three other compounds. On September 13, 1994, the juvenile court found E. C. to be deprived and entered an order nunc pro tunc to March 28, 1994. The order was not appealed by appellant and later was extended for two years on September 21, 1995.

Between March 1994 and November 1995, DFCS developed four case plans for appellant with the goal of reuniting her with E. C. The juvenile court approved and adopted the case plans. Among the requirements of the plans, which were almost identical, were provisions requiring appellant to visit E.C. weekly; to secure and maintain a stable residence; to attain and maintain "emotional stability"; to address her drug problem and remain drug-free; to obtain a doctor's report documenting what medications have been prescribed and their purpose; to obtain psychological counseling; and to pay child support in the amount of $25 per month.

Following appellant's failure to comply with the case plans, DFCS petitioned the court to terminate the parental rights of appellant and the child's father on April 6, 1996. A termination hearing was held on June 19, 1996. The court heard testimony from appellant and DFCS employees, as well as the child's guardian ad litem, who recommended that appellant's parental rights be terminated. The court terminated the parental rights of appellant and the child's father ² on August 20, 1996. Appellant timely appealed.

In her only enumeration of error, appellant asserts that there was not "clear and convincing evidence" that E.C. was deprived or that any deprivation, if present, was likely to continue. This is essentially a challenge to the sufficiency of the evidence presented during the termination hearing in June 1996.

"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 the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost.' In the Interest of A.O.A., 172 Ga.App. 364, 365-366, 323 S.E.2d 208 (1984), quoting Blackburn v. Blackburn, 249 Ga. 689, 694, 292 S.E.2d 821 (1982); see also In the Interest of A.M.V., 222 Ga.App. 528, 474 S.E.2d 723 (1996); In the Interest of J.M.D., 221 Ga.App. 556, 472 S.E.2d 123 (1996); In the Interest of S.L.W., 221 Ga.App. 509, 510, 471 S.E.2d 579 (1996) (holding that the 'reviewing court is to defer to the lower court in the area of factfinding and should affirm' unless this standard is not met)." (Punctuation omitted.) In the Interest of T.B.R., 224 Ga.App. 470, 472, 480 S.E.2d 901 (1997); see also Clarke v. Cotton, 263 Ga. 861, 440 S.E.2d 165 (1994) (holding that clear and convincing evidence is that intermediate standard of proof between "preponderance of the evidence" and "beyond a reasonable doubt.").

Under OCGA § 15-11-81(a), the considerations for terminating parental rights involve a two-step process. In the Interest of J.M.D., 221 Ga.App. at 557, 472 S.E.2d 123. The trial court must first determine "whether there is present clear and convincing evidence of parental misconduct or inability." OCGA § 15-11-81(a). Such conduct or inability may be proved by showing, inter alia, that (1) the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the "continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child." OCGA § 15-11-81(b)(4)(A)(i)-(iv).

Further, in determining whether there is a lack of "proper parental care and control," the court may consider several factors, including the parent's "[e]xcessive use of ... narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child," as well as "physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent." OCGA § 15-11-81(b)(4)(B)(ii), (v).

Once the trial court establishes a lack of parental care and control, the second part of the test for determining whether parental rights should be terminated is whether such termination "is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home." OCGA § 15-11-81(a).

Therefore, after examining the evidence in the light most favorable to the appellee, the State of Georgia and DFCS, we conclude that there is more than sufficient clear and convincing evidence in the case sub judice for a rational factfinder to determine that appellant's parental rights should be terminated and that such termination is in E. C.'s best interest.

The first factor in the determination of parental misconduct or inability is consideration of whether the child is deprived. In the case sub judice, E. C. was determined to be deprived in March 1994 and was taken into custody by DFCS. This deprivation order was extended in 1995 and has not been appealed by appellant. Therefore, appellant is bound by this finding of deprivation and the first factor is satisfied. In the Interest of T.B.R., 224 Ga.App. at 473, 480 S.E.2d 901; In the Interest of J.M.D., 221 Ga.App. at 558, 472 S.E.2d 123; In the Interest of S.L.W., 221 Ga.App. at 512, 471 S.E.2d 579.

However, even without an express finding of deprivation by the court, there is clear and convincing evidence that E. C. was deprived in 1994 and still would be deprived if she were living with appellant. Appellant is currently homeless, after leaving her parent's home in Henry County, where she previously lived with E. C. Appellant is disabled with a back injury resulting from a car accident and receives $423 in Social Security disability payments per month. Until recently, the disability check was sent to appellant's mother, who used it to pay appellant's rent and utilities and sent appellant $100 monthly with which to purchase all of her food and necessities. Appellant owned a car at one time, but had no money to have it repaired when it broke down. Therefore, she primarily relies on friends for transportation, although she admitted that she sometimes hitchhikes. While appellant denies that her lack of resources in any way deprived E. C., she seems to blame the same problems for her frequent failure to visit E. C. during required weekly visitations.

Even with these difficulties, however, appellant has somehow managed to maintain daily methadone treatments in Atlanta, Georgia. She is transported daily to Atlanta by a van which is paid for by Medicaid. It is unclear why appellant is taking the methadone treatments, since she consistently has failed, in abrogation of her case plan requirements, to provide a physician's report on her physical condition and all of her prescribed medications. The only explanation for the drug use is appellant's claim that she injured her back in a 1991 car accident and has been disabled ever since, although she freely admits she is capable of working. Appellant admits taking methadone treatments while pregnant with E. C. Appellant claims she is addicted to painkillers, but even though she has had the opportunity to obtain Medicaid-financed, in-patient detoxification treatment, she has resisted such treatment.

Such evidence goes not only to a finding that E. C. is deprived, but also to the second factor to be considered by the court, which is whether the deprivation is caused by a lack of proper parental care or control by appellant. Appellant's unexplained daily use of narcotics supports a finding that appellant is "incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child." OCGA § 15-11-81(b)(4)(B)(ii). Appellant's refusal to address her drug problem, and her apparent inability to support herself and provide a stable environment for E. C., provide...