In Interest of CWD

• Decision Date: 31 March 1998
• Docket Number: No. A98A0514.,A98A0514.
• Parties: In the Interest of C.W.D. et al., children.
• Court: Georgia Court of Appeals

501 S.E.2d 232

232 Ga. App. 200

In the Interest of C.W.D. et al., children.

No. A98A0514.

Court of Appeals of Georgia.

March 31, 1998.

Reconsideration Denied April 14, 1998.

Certiorari Denied September 18, 1998.

Lindsey & Jacobs, Tamara Jacobs, Barnesville, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Bush & Smith, Wilson H. Bush, Jackson, Jenkins & Nelson, John C. Shelton, Atlanta, W. Ashley Hawkins, Forsyth, for appellees. ELDRIDGE, Judge.

This appeal was taken by the mother of three minor children, C.W.D., T.A.D., and C.D.H., after the Juvenile Court of Butts County entered an order terminating her parental rights, as well as the parental rights of the fathers, on September 25, 1997.

On November 1, 1994, the mother was arrested by the Butts County Sheriff's Department; the Georgia Department of Human Resources, acting through the Butts County Department of Family & Children Services ("DFCS"), then became involved when called by the Sheriff's Department about the children. When taken into custody, the children appeared physically dirty, had dirty clothes, and smelled of urine and body odor. The mother gave the DFCS caseworker several false names, as did the children. Because the mother prevented the correct identification of herself and her children and refused to give the names and addresses of relatives willing to take the children, a safekeeping order for the children was obtained on that date from the juvenile court. The mother finally provided the names of several relatives, but they were unwilling to take the children. The mother also reluctantly provided the identities of the putative fathers; none of the fathers made any effort to contact, support, or reunite with the children. The children have remained in the custody of DFCS since November 1, 1994.

While the mother was held in the Putnam County Jail, DFCS took the children to visit with their mother, but the children shrieked, cried, and acted fearful of their mother.

On April 5, 1995, the mother and DFCS developed a plan of unification with the following goals: (1) that the children would have a safe and stable home; (2) that the children's educational, psychological, medical, and dental needs would be met; (3) that the mother would cooperate with DFCS; and (4) that the mother would have positive communications with her children. The juvenile court adopted the case plan and ordered compliance on April 14, 1995.

When the plan was developed on April 5, 1995, the mother was incarcerated; she was not released from prison until the summer of 1995, when she moved to Coweta County. On October 3, 1995, a second reunification plan was developed that was virtually identical to the first plan. On October 11, 1995, the Juvenile Court of Butts County adopted the plan by order.

On November 12, 1995, the mother's home was investigated, but was not approved because the dwelling had too many hazards that put the children at risk. In November 1995, the mother agreed to pay child support but failed to do so in violation of a court order.

Between August 1995 and April 11, 1996, the mother visited the children approximately once a month. Several visits were scheduled, but the mother failed to appear. The visits with the children were strained, and the children expressed the wish not to visit with the mother.

On April 2, 1996, a third reunification plan was completed that was virtually identical to the prior plans. It was made the order of the court on April 10, 1996. The mother was arrested again for shoplifting and incarcerated on April 11, 1996. On October 9, 1996, the juvenile court issued an order that encompassed the prior provisions, but ordered that DFCS proceed toward termination of all parental rights. On October 21, 1996, the mother was tried, convicted, and sentenced to ten years imprisonment, four to serve with the balance probated. Subsequent to the mother's arrest on April 11, 1996, she remained in custody and made no further visits with the children.

Since April 1995, the mother failed to meet the goals of the plans and, as a result of her repeated incarcerations, was unable to provide a safe and secure home. She failed to pay child support. She failed to cooperate with DFCS in that she did not provide: (1) verification of her income; (2) the children's medical histories; (3) contact with DFCS after her incarceration in April 1996; and (4) the names of the putative fathers in a timely manner. The mother's communication with the children was either late, not made at all, or strained when made in person. Written communication was non-existent from April 11, 1996 until October 1996, and she failed to meet the goal of monthly communication.

The mother's care or lack thereof had a significant impact on the children. Dr. Barbara Toner, who holds a Ph.D. in clinical psychology, was qualified as an expert and testified as to the children's mental and emotional condition and the precipitating cause of their conditions. C.W.D. was diagnosed as having post traumatic stress syndrome, Tourette's syndrome, and attention deficit disorder. T.A.D. was diagnosed as suffering from post traumatic stress syndrome, as well as a possible obsessive-compulsive disorder. C.D.H. was diagnosed as experiencing post traumatic stress syndrome. Dr. Toner stated her expert opinion that the children's disorders were caused by physical, psychological, and emotional abuse by the mother. The children, under counseling and examination, told her of their fear of their mother because the mother beat them with extension cords, shoes, switches, and belts and had stepped on C.W.D.'s neck. The children have extremely negative memories of their mother and sought to forget the painful past with her. It was Dr. Toner's opinion that the children would be unable to reestablish a relationship with their mother if they were reunited or visited by her.

C.W.D. and T.A.D. testified and were cross-examined via closed circuit television after the juvenile court judge determined that to do so in the presence of their mother would be detrimental to their mental health and emotional well-being. This decision was based upon the opinion of Dr. Toner. C.W.D. testified in detail as to the same abuse to which Dr. Toner had testified. C.W.D. stated that he did not want to return to his mother and would not object to adoption. T.A.D. also testified in detail about how he had been physically abused, as had been described by Dr. Toner in earlier testimony, and that, as a consequence, he did not want to return to his mother. He had no objection to adoption and did not want to have future contact with his mother.

Following this hearing, the juvenile court terminated the parental rights of the children's mother and fathers.

1. The first enumeration of error is that the trial court erred in finding clear and convincing evidence to support termination of

the mother's parental rights. We do not agree.

There was clear and convincing evidence of deprivation of the children, and that the deprivation would continue in the future. The juvenile court went through the two-step process for termination correctly. OCGA § 15-11-81(a); In the Interest of A.M.V., 222 Ga. App. 528, 529, 474 S.E.2d 723 (1996); In the Interest of A.T., 187 Ga.App. 299, 301, 370 S.E.2d 48 (1988).

The record, by clear and convincing evidence, shows that the children were deprived within the meaning of OCGA § 15-11-2; that the mother's lack of parental care and control of the children was the cause of the deprivation status; that the deprivation was likely to continue in the future and would not be remedied; and that such deprivation caused and was likely to further cause physical, mental, emotional, and moral harm to the children. OCGA § 15-11-81(b)(4)(A)(i)-(iv); In the Interest of D.T., 221 Ga.App. 328, 329, 471 S.E.2d 281 (1996); In the Interest of G.K.J., 187 Ga.App. 443, 370 S.E.2d 490 (1988). Such factors show the existence of parental misconduct or the inability to remedy the causes of deprivation and support the juvenile court's finding that the termination of parental rights is in the best interests of the children. OCGA § 15-11-81(a).

Since November 1, 1994, the mother had been unable to provide a safe and stable home for the children, either because she has been incarcerated or because the home had too many physical hazards for the safety of the children. This demonstrates that the children were deprived and were likely to be deprived in the future. See OCGA § 15-11-81(b)(4)(A)(i), (iii); see also OCGA § 15-11-2.

The mother failed to contact or visit with the children from April 11, 1996, until September 25, 1997, the termination date, because she was incarcerated. Also, she had not maintained telephone or written communication with either the children or DFCS. Further, the children did not wish to have contact with their mother, because they were afraid of her due to her physical, psychological, and emotional abuse of them. Dr. Toner gave expert testimony that the emotional and psychological conditions from which the children suffered were caused by their mother's treatment of them and that a healthy relationship between them could not be restored. Thus, the mother's conduct satisfied the second criterion, because she caused the children's deprivation. See OCGA § 15-11-81(b)(4)(A)(ii); see also OCGA § 15-11-81(b)(4)(B)(iii), (iv), (v).

Since the mother had been without custody of the children from November 1, 1995 until September 25, 1997, within OCGA § 15-11-81(b)(4)(A)(ii), then OCGA § 15-11-81(b)(4)(C) empowered the juvenile court to determine whether the parent, without justifiable cause, failed for a period of one year or longer to significantly: (1) communicate with the children; (2) care for and support the children as required by...