D.I.W., In Interest of

• Decision Date: 29 November 1994
• Docket Number: No. A94A2758,A94A2758
• Citation: 451 S.E.2d 804,215 Ga.App. 644
• Parties: In the Interest of D.I.W., a child.
• Court: Georgia Court of Appeals

Page 804

451 S.E.2d 804

215 Ga.App. 644

In the Interest of D.I.W., a child.

No. A94A2758.

Court of Appeals of Georgia.

Nov. 29, 1994.

Reconsideration Denied Dec. 14, 1994.

Certiorari Denied Feb. 24, 1995.

Jennifer B. Mann, Abbi S. Taylor, Decatur, for appellant.

Michael J. Bowers, Atty. Gen., William C. Joy, Sr. Asst. Atty. Gen., Teresa E. Lazzaroni, Asst. Atty. Gen., Robert G. Nardone, Avondale Estate, Dorothy V. Murphy, Decatur, for appellee.

BLACKBURN, Judge.

Appellant, Rebecca Whitener, appeals the order of the juvenile court terminating her parental rights to D.I.W.

D.I.W. was placed in the emergency custody of the DeKalb County Family & Children Services (DFCS) at birth by court order on September 13, 1991. The DFCS' initial concerns were that Whitener was mentally unable to provide care to her child and that her brother, a convicted child molester, lived in the home she intended to return to upon her release from the hospital. On December 2, 1991, the juvenile court adjudicated D.I.W. deprived in that Whitener, among other things, lacked the abstract thinking skills necessary to understand that her brother's presence in the home represented potential danger to D.I.W. On September 8, 1993, the juvenile court extended DFCS' custody of D.I.W. to July 13, 1995, because of Whitener's failure to satisfy the goals established in DFCS' plans directed at the reunification of her family. Whitener concurred in the extension.

On November 19, 1993, DFCS filed a petition for termination of parental rights under provisions of OCGA § 15-11-81(b)(4)(B)(i) for medically verifiable deficiency of Whitener's mental or emotional health of such a duration or nature which rendered her unable to provide adequately for D.I.W.'s physical, mental, emotional, and moral condition needs. The juvenile court heard the petition on February 9, 1994, and ordered Whitener's parental rights terminated eight days later. ¹ This appeal followed.

1. Whitener first contends that there was insufficient evidence to terminate her parental rights in that neither parental misconduct nor inability was shown by clear and convincing evidence.

" 'The termination of parental rights under OCGA § 15-11-81 is a two-step process. First, the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second, the court considers whether termination is in the best interest of the child. In the Interest of G.K.J., 187 Ga.App. 443, 444(3), 370 S.E.2d 490 (1988). The standard for appellate review of a termination of parental rights is " 'whether a rational trier of fact could have found by clear and convincing evidence that the natural parent's rights had been lost. (Cit.)' (Cit.)" In the Interest of R.L.H., 188 Ga.App. 596, 597, 373 S.E.2d 666 (1988).' In the Interest of C.D.P., 211 Ga.App. 42, 43(3), 438 S.E.2d 155 [1993]." In the Interest of M.R., 213 Ga.App. 460, 463, 444 S.E.2d 866 (1994).

Parental misconduct or inability is determined by finding: 1) that the child is deprived; 2) that the lack of proper parental care or control is the cause of the deprivation; 3) that such child's deprivation is likely to continue or will not be remedied; and 4) that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81(b)(4)(A). Among the factors relevant to a child lacking proper parental care and control is a medically verifiable deficiency of the parent's mental or emotional health of such duration or nature as to render the parent unable to provide adequately for the child's needs. OCGA § 15-11-81(b)(4)(B)(i). Another is a parent's unjustifiable failure to significantly comply with a court-ordered plan to reunite the child with the parent for one year or longer. OCGA § 15-11-81(b)(4)(C)(iii).

In the case sub judice, an unappealed order entered by the juvenile court on December 2, 1991, established that D.I.W. was a deprived child within the meaning of OCGA § 15-11-81(b)(4)(A)(i). See In the Interest of B.P., 207 Ga.App. 242, 244, 427 S.E.2d 593 (1993) (An unappealed deprivation determination is binding on appeal.). Further, the juvenile court heard the undisputed testimony of Dr. Ritz, a licensed psychologist, who testified that he had evaluated Whitener psychologically in April 1993, and found her to be suffering from a dependent personality disorder. He also reviewed the factual findings from psychological evaluations admitted in evidence at previous deprivation hearings and concluded that Whitener had not shown improvement for two years and that the likelihood of improvement in the future was poor. Moreover, he noted that Whitener had been molested by her grandfather until the time of his death in 1989. It was his view that this history of molestation left Whitener neither able to advocate for herself or her child. Dr. Ritz also testified that the combination of Whitener's limited mental ability, dependent personality, prior history, and behavior, significantly jeopardized her future ability to parent a child. In this regard, he indicated that Whitener had been unable to protect her previous children from violence and that she was unable to adequately assess the...