IN RE ASH, A99A1054.

• Decision Date: 10 August 1999
• Docket Number: No. A99A1054.,A99A1054.
• Citation: 239 Ga. App. 565,521 S.E.2d 604
• Parties: In the Interest of A.S.H. et al., children.
• Court: Georgia Court of Appeals

521 S.E.2d 604

239 Ga. App. 565

In the Interest of A.S.H. et al., children.

No. A99A1054.

Court of Appeals of Georgia.

August 10, 1999.

Sean A. Black, Toccoa, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Joanna Temple, Demorest, for appellee.

ELDRIDGE, Judge.

The appellant in this case is a thirty-year-old woman whose parental rights to her two children, ages eight and ten, were terminated in Stephens County Juvenile Court in November 1998. We affirm the trial court's ruling.

The facts of this case, viewed in the light most favorable to the State,¹ are as follows: The appellant is the mother of eight-year-old A.S.H., a girl, and ten-year-old L.L.H., a boy. In 1991, the appellant voluntarily placed her children in the custody of the Department of Family & Children Services ("DFACS"), following a history of seizures, mental and emotional problems, homelessness, and thoughts of suicide. DFACS provided substantial, intensive assistance to the appellant in an attempt to keep the family together. However, in 1993, the children were placed in court-ordered foster care following a suicide attempt by the appellant. The children have remained in the custody of DFACS until the present, pursuant to numerous continuation orders by the juvenile court. The appellant did not appeal any of the custody extensions or the underlying findings that the children were deprived.

The appellant has since married and currently resides with her husband in an apartment, where they share homemaking responsibilities, although the husband usually does the cooking out of concern that the appellant might have a seizure and burn herself. The appellant has worked at one job during the six months prior to the termination proceeding, but she left the job after a few hours because she did not like it. Her previous job lasted only a few weeks.

On April 1, 1998, the State filed a petition to terminate the appellant's parental rights.² The petition noted that, during a DFACS home evaluation, the appellant was unable to understand simple questions and "has not demonstrated any skills to take care of the children," despite her participation in parenting classes.

According to a psychological examination performed prior to the termination proceedings, the appellant suffers from mild mental retardation, with a full scale I.Q. of 70 and a first grade reading and math ability. She exhibited significant problems with memory and social reasoning ability, was highly dependent on others, and exhibited a passive-aggressive personality disorder.

In addition to her mental deficiencies, the appellant has been diagnosed with a major depressive disorder with psychotic features, a schizo affective disorder, a seizure disorder, and asthma. She contemplated suicide in 1991. She presently takes several types of medication to control these disorders, but has resisted mental health care.

The psychologist found that the appellant's low scores from the parenting abilities assessment suggest that she "will not be able to sufficiently provide for children in the area of parenting without intervention and assistance from a third party." He also noted that, due to her passive-aggressive personality, she quickly becomes "defiant and difficult when things are not going her way," so that her reactions to normal parenting situations are "unpredictable." Based on his observations of the appellant, he determined that the appellant "overestimates her own ability to function [and] believes she can function totally independently," even though he found that "[h]er potential for parenting is very low and there appears to be serious questions regarding her ability to independently be responsible for parenting children."

Further, he expressed concerns that she may become physically aggressive with the children, or may use guilt, negative comments, or manipulation to control the children. Such concerns were realized in part when, during supervised visits with the children, the appellant jokingly called the boy a "dummy"; complained that the children did not bring anything for her; and told the boy that she depended on him to take care of her.

The psychologist also evaluated the appellant's husband, who presented a full scale I.Q. score of 73 (mild mental retardation) and exhibited a second to third grade ability in reading and math. However, unlike the appellant, her husband completed high school and held a driver's license. He was not employed and had no demonstrable employment history. The psychologist also noted various specific concerns about the husband's ability to manage additional parental responsibilities if the children were returned to their mother.

After examining L.L.H., the ten-year-old boy, the psychologist found that the boy exhibited an extremely high full scale I.Q. of 121. He also noted that the child had expressed feelings of being concerned about his mother's well-being. In the psychologist's opinion, if the child was reinstated in his mother's home, the roles of mother and child may be reversed, so that the child would become the caregiver and the mother would become increasingly dependent. As a result, the child "would increasingly be looked to as an individual who could make decisions and be available to provide appropriate information to others. This would make it difficult for [the child] to experience normal childhood development due to the risk of precocious adult responsibilities being placed on him. Even if they were not imposed by the adults around him, [the child] would likely feel he needed to assume the role in order to have things run smoothly." Further, the child exhibited negative behavior in the recent past, including aggression, destruction of property, lying, and stealing; such behavior increased following visits with his mother.

In contrast to her half-brother, the eight-year-old girl, A.S.H., exhibited a borderline to low average range of intelligence, with a full scale I.Q. of 76. She was in need of speech and language intervention and showed "significant academic impairment." She also showed signs of attention deficit hyperactivity disorder.

Both children expressed confusion "by the fact that other children in the foster home are being adopted and these children are not free for adoption." Therefore, DFACS noted that it "can offer them no sense of stability or security at this time."

Additional testimony was elicited from numerous DFACS caseworkers who had assisted the family over the years. The caseworkers consistently reported their observations and concerns that the appellant lacked the maturity and parenting skills necessary to care for the children. One caseworker testified about the difficulty she had in communicating with the appellant, due to appellant's apparent inability to understand even simple questions. The caseworkers testified that the appellant had long-standing problems obtaining housing and ensuring that utility and rent bills were paid on time. The caseworkers also noted that the appellant had failed to make any significant progress in meeting case plan goals, including court-ordered mental health counseling, in part because her attendance at the mandatory counseling sessions was "sporadic." The appellant's most recent caseworker expressed concerns that the appellant was not taking her medication as directed, based on incidents in which the appellant suddenly became extremely agitated, aggressive, and violent; began hallucinating; or required restraints from hurting herself or others. According to this caseworker, this indicated the possibility that the appellant may become violent with the children. The caseworkers unanimously opined that termination of the appellant's parental rights was appropriate in this case and in the best interests of the children.

After hearing testimony during the termination proceeding and considering all of the evidence, the trial court found that, due to her limited mental capacity and parenting abilities, the appellant was "barely" able to take care of herself, so that the children would not have a secure, stable home with her. He found that such parental inability caused the children to be deprived, and that they were harmed thereby "by virtue of their languishing in temporary foster care" for over five years. As such, termination was in the children's best interests. Accordingly, he terminated the appellant's parental rights, and she appeals. Held:

1. In her first enumeration, the appellant contends that the trial court erred in finding that there was clear and convincing evidence of parental inability under OCGA § 15-11-81(b)(4).³ We disagree.

The standard of appellate review where a parent's rights to [her] child have been severed is whether[,] after reviewing the evidence in the light most favorable to the appellee [(DFACS)], any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost. The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.

(Citations and punctuation omitted.) In the Interest of A.Q.W., 217 Ga.App. 13, 14, 456 S.E.2d 284 (1995). See also In the Interest of C.G., supra; In the Interest of K.A.C., 229 Ga.App. 254, 493 S.E.2d 645 (1997); In the Interest of T.B.R., 224 Ga.App. 470, 472, 480 S.E.2d 901 (1997); In the Interest of R.N., 224 Ga.App. 202, 480 S.E.2d 243 (1997); In the Interest of J.H., 210 Ga.App. 255, 258(1), 435 S.E.2d 753 (1993).

The statutory criteria for the termination of parental rights is the two-step procedure of OCGA § 15-11-81(a). First[,] the court determines whether there is

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