Hewlett v. Hewlett

• Decision Date: 07 March 2019
• Docket Number: A18A1821
• Citation: 349 Ga.App. 267,825 S.E.2d 622
• Parties: HEWLETT v. HEWLETT et al.
• Court: Georgia Court of Appeals

349 Ga.App. 267
825 S.E.2d 622

HEWLETT
v.
HEWLETT et al.

A18A1821

Court of Appeals of Georgia.

March 7, 2019

825 S.E.2d 623

Stephen H. Harris, Savannah, for Appellant

George A. Waters, Richmond Hill, for Appellees

Doyle, Presiding Judge.

349 Ga.App. 267

The biological mother of C. J. H.¹ ("the mother") appeals from an order terminating her parental rights and granting an adoption petition filed by the child’s maternal grandfather ("the grandfather" and current temporary guardian) and his wife (collectively "grandparents"). The mother argues that the superior court erred because its order was

825 S.E.2d 624

not supported by clear and convincing evidence that she failed to exercise proper parental care or control due to misconduct or inability under former OCGA § 15-11-310 (a) (5).² Based on our review of the record before us at this time, we agree and reverse.³

The adoption proceeding was predicated on the termination of the mother’s parental rights pursuant to former OCGA § 19-8-10 (a) (5), which authorizes adoption without a prior surrender or termination of parental rights "when the court determines by clear and convincing evidence that the ... [biological p]arent has failed to exercise proper parental care or control due to misconduct or inability, as set out in" former OCGA § 15-11-310 (a) (3), (4), or (5), which enumerate certain grounds for termination of parental rights.⁴ Further, the court must determine whether "the adoption is in the

349 Ga.App. 268

best interests of that 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."⁵

On appeal from an order severing parental rights based on an adoption petition, we view the evidence in the light most favorable to the trial court’s findings and determine whether a rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights have been lost.⁶

"Nevertheless, in conducting our review, we must proceed with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously."⁷ "[T]he right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances."⁸

So viewed, the record shows that C. J. H. was born in 2009 with evidence of barbiturates in his system, causing the Department of Family and Children Services ("DFCS") to intervene before he left the hospital. To avoid a foster placement with an unknown family, the grandfather offered to help, and the mother agreed to allow the grandfather to become the temporary guardian of C. J. H. In the time after C. J. H.’s birth, the mother, who has been diagnosed with schizoaffective disorder, struggled with illegal drug use resulting in periodic homelessness and incarceration for a few years until entering a mental health court diversion program in 2012.

As part of that program, the mother began receiving counseling services, and she voluntarily entered a residential substance abuse program and underwent drug testing. The program director testified that the mother was a good participant, took her medications, drug tested negative, and presented no issues during her six-month stay there. Likewise, the mother’s counselor testified that the mother was sanction-free in the court program,

825 S.E.2d 625

and she successfully completed it in 2014. The mother continues to actively participate in counseling and regularly takes her mental health medication.

349 Ga.App. 269

The mother receives a disability benefit due to her mental health condition, and she has had stable housing since 2013. In 2014, she moved from a one-bedroom to a two-bedroom apartment to accommodate a child. The mother’s property manager testified that the mother’s "rent is paid monthly on time.... I've never had any issues with her. And from what I could see and know of her for the almost four years that she’s been there, she’s been a great resident."

The grandparents have raised C. J. H. at their home since his birth, and the mother has been allowed regular visitation. The mother visited frequently at first, but then experienced interruptions from 2009 to 2012 before she entered the mental-health court program. For at least the two years leading up to the final hearing in June 2017, the mother visited C. J. H. regularly, usually over the weekend. C. J. H. was diagnosed with ADHD, which is treated with medication, but otherwise he is thriving in the grandparents' custody and earns good grades in school.

In 2015, the mother filed a petition to terminate the temporary guardianship,⁹ and the parties were ordered to mediation, which was not successful because the grandparents did not believe that the mother was ready to assume full responsibility to take custody of C. J. H. In 2016, the grandparents filed a petition to adopt C. J. H., and after an evidentiary hearing at which all the parties testified, the superior court entered an order terminating the mother’s parental rights and granting the grandparents' adoption petition.¹⁰ The mother now appeals.

The mother argues that the superior court erred by terminating her parental rights because the record lacks clear and convincing evidence of her parental unfitness. As noted above, the termination of the mother’s parental rights is predicated on a showing by the grandparents that the standard in former OCGA § 15-11-310 (a)¹¹ has been met, including the ground in this case:¹²

[The] child is a dependent child due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were

349 Ga.App. 270

not required, such cause of dependency is likely to continue or will not likely be remedied, and the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child.¹³

In addition to this ground, the superior court also must determine whether termination and adoption are in the best interests of the child.¹⁴

Here, it is undisputed that the mother suffers from a lifelong mental condition that, when unaddressed by medication, has in the past impeded her parenting of C. J. H., and she has struggled with substance abuse. But it is also undisputed that since entering and successfully completing the mental-health court program, the mother has remained drug-free, has obtained and maintained stable housing, and has stabilized her mental health through medication and counseling. Further, with the help of the grandparents, she has established and maintained a bond with C. J. H. through regular visitation. Thus, despite the mother’s difficulty in the past, the evidence shows substantial progress

825 S.E.2d 626

(as opposed to mere hope or promises) in establishing a loving and stable home environment.¹⁵ If anything, she is a success story of the mental-health court diversion program.

Nevertheless, pretermitting whether this suffices to show that C. J. H. remains dependent or whether that dependency is likely to continue, this case is akin to those in which a child is placed in foster care due to his parent’s lack of proper care.

When a court assesses whether a child now in foster care is likely to suffer serious harm as a result of continued deprivation, the court must consider not only the likelihood of harm if the child remains indefinitely in foster care, but also the likelihood of harm if the child returns to the custody of his parent, notwithstanding that the deprivation persists. The [petitioners are] required to show that continued dependency will cause harm. Dependency will cause harm only if all of the options available to [the petitioners] short of termination — keeping the child in foster care, or returning

349 Ga.App. 271

the child to the parent — will themselves cause harm. The [petitioners] must show that both would cause harm. This Court has reversed termination orders due to a lack of evidence that the children would experience serious harm if they remained in foster care, even when the [petitioner] did show that the return of the child to the parent might well cause harm. In considering whether there is evidence that remaining in foster care will cause serious harm to a child, we have examined both (1) the extent to which instability and impermanency are currently causing specific harms to the child and (2) whether the parent’s current relationship with the child is itself detrimental.¹⁶

The superior court in this case found that "both physical and long term emotional harm are likely with the denial of the...