In re A. B.

• Decision Date: 15 May 2019
• Docket Number: A19A0147,A19A0148
• Citation: 828 S.E.2d 394,350 Ga.App. 158
• Parties: In the INTEREST OF A. B., et al., children. In the Interest of K. B., a child.
• Court: Georgia Court of Appeals

350 Ga.App. 158

828 S.E.2d 394

In the INTEREST OF A. B., et al., children.

In the Interest of K. B., a child.

A19A0147

A19A0148

Court of Appeals of Georgia.

May 15, 2019

Jeannie Smith Altman, for Appellant (Case No. A19A0147).

Jana L. Evans, Dallas, for Appellant (Case No. A19A0148).

Christopher Michael Carr, Saudia Leshawna Crawford, Penny Hannah, Shalen S. Nelson, Atlanta, for Appellee (Case Nos. A19A0147, A19A0148).

Brown, Judge.

In these consolidated appeals, the mother and father of K. B.¹ appeal from the juvenile court’s final order in a dependency case. The mother also appeals from the same order as it relates to M. C.² and A. B.,³ her two other children fathered by different men, who are not parties in these this appeals. In Case No. A19A0147, the mother contends that the juvenile court erred by: (1) denying her request for a continuance to hire counsel of her choice and (2) adjudicating the children dependent in the absence of clear and convincing evidence showing dependency. In Case No. A19A0148, the father asserts that the juvenile court erred by: (1) finding K. B. dependent because the State failed to show dependency by clear and convincing evidence and (2) granting temporary custody of [K. B.] to the Department of Family and Children’s Services (DFCS). For the reasons explained below, we vacate the juvenile court’s dependency and disposition orders and remand this case with instruction.

1. In an appeal from an adjudication of dependency, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that a child is dependent. In the Interest of S. C. S. , 336 Ga. App. 236, 244, 784 S.E.2d 83 (2016) (standard of review in dependency case). "In making this determination, we neither weigh the evidence nor judge the credibility of the witnesses, but instead defer to the factual findings made by the juvenile court, bearing in mind that the juvenile court’s primary responsibility is to consider and protect the welfare of a child whose well-being is threatened. [Cit.]" (Punctuation omitted.) Id. at 245, 784 S.E.2d 83.

Under the most recent version of Georgia’s Juvenile Code, the juvenile court may place a minor child in the protective custody of [DFCS] where the State shows, by clear and convincing evidence, that the child is a dependent child.... Pursuant to OCGA § 15-11-2 (22), a dependent child is defined as "a child who: (A) Has been abused or neglected and is in need of the protection of the court; (B) Has been placed for care or adoption in violation of law; or (C) Is without his or her parent, guardian, or legal custodian." But even after finding a child to be dependent, a juvenile court can only remove a child from a parent’s custody if it finds that "the dependency resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child." And "proof of unfitness must be shown by clear and convincing evidence[.]"

(Citations and punctuation omitted.) In the Interest of T. S. , 348 Ga. App. 263, 269, 820 S.E.2d 773 (2018). Additionally,

An order entered following a hearing in a dependency proceeding shall include findings of fact. OCGA § 15-11-111 (b) (2). Such findings of fact should be made in accordance with OCGA § 9-11-52 (a), which provides that a court must find the facts specially and ... state separately its conclusions of law. Thus, the facts must be found specially; and the conclusions of law must be stated separately, regardless of whether the order otherwise is sufficient for purposes of review.

(Citations and punctuation omitted.) In the Interest of B. G. , 345 Ga. App. 167, 169 (1), 812 S.E.2d 552 (2018).

In this case, the juvenile court’s one-page dependency order states on the first page that "[t]he Court makes the following findings of fact and conclusions of law...[.]" This statement is followed by a recitation of facts, some specific findings of fact interspersed throughout, a summary of the mother’s testimony, and no separate statement of the juvenile court’s conclusions of law. Additionally, the order contains no finding whatsoever with regard to parental unfitness, much less a separate finding with regard to the father. See In the Interest of C. R. , 292 Ga. App. 346, 351 (2), 665 S.E.2d 39 (2008). These deficiencies "prevent[ ] us, in this case, from making an intelligent review of the [mother and father]’s challenges to the sufficiency of the hearing evidence." B. G. , 345 Ga. App. at 169 (1), 812 S.E.2d 552. Accordingly, we vacate the juvenile court’s dependency ruling and corresponding disposition order in both cases and remand them with direction that the juvenile court prepare appropriate findings of fact and conclusions of law and enter a new judgment, after which another appeal may be made. Id. 2. The mother contends that the juvenile court erred by denying her request for a continuance to hire counsel of her choice. We disagree.

As the mother points out, a party to a dependency proceeding "shall have the right to an attorney at all stages of the proceedings," OCGA § 15-11-103 (a), and "shall be given an opportunity to: (1) Obtain and employ an attorney of such party’s own choice; (2) Obtain a court appointed attorney if the court determines that such party is an indigent person; or (3) Waive the right to an attorney." OCGA § 15-11-103 (g). Indeed, the mother also had "a constitutional right to be represented by paid counsel if she so chose." Johnson v. Hauck , 344 Ga. App. 848, 854 (2), n.13, 812 S.E.2d 303 (2018).

But with the right to counsel of one’s choice, comes the obligation to "use reasonable diligence in obtaining retained counsel. A [party] may not use a request for change of counsel as a dilatory tactic. A refusal to grant a continuance will not be disturbed by appellate courts unless it clearly appears that the judge abused his discretion in this regard." (Citations and punctuation omitted.) Lane v. State , 299 Ga. 791, 794 (2), 792 S.E.2d 378 (2016). See also In the Interest of K. A. P. , 277 Ga. App. 794, 798 (2), 627 S.E.2d 857 (2006). Additionally, OCGA § 15-11-110 (b) provides that "[c]ontinuances shall be granted only upon a showing of good cause...." Accordingly, the mother had a duty to show that she exercised due diligence in attempting to hire retained counsel as "good cause" for the grant of a continuance. Compare OCGA § 17-8-20 (in criminal cases, "the party making an application for a continuance must show that he has used due diligence").

Based upon the particular facts and circumstances of this case, the mother has failed to show that the juvenile court abused its discretion in denying her request for a continuance. The record shows that on December 4, 2017, the juvenile court advised the mother of her right to hire counsel, seek appointed counsel, or represent herself.

When the mother stated she wanted an attorney, the juvenile court immediately appointed counsel for the mother and rescheduled the case for December 7, 2017, so that her new counsel could prepare and appear. Appointed counsel represented the mother during two evidentiary hearings held on December 7 and December 13, after which the juvenile court orally pronounced a finding of unspecified "probable cause," presumably probable cause that the children were dependent. See OCGA § 15-11-146 (a) (1) ("At the preliminary protective hearing, the court shall determine ... [w]hether there is probable cause to believe a child is a dependent child.") (punctuation omitted).

On December 20, 2017, appointed counsel appeared again on the mother’s behalf at a 10-day adjudication hearing, but the mother was not present. Because the mother had not yet been served with a dependency petition filed two days earlier, the juvenile court continued the adjudication until January 16, 2018. At the beginning of the January 16 hearing, the mother’s counsel advised the court that the mother "is requesting a continuance to hire an attorney." The juvenile court responded:

I understand, but I have instructed her to do that and give them time to be ready for the trial. The children are in foster care and I have to adjudicate them within 60 days.... What I'm going to do is, I'm going to let them present the evidence today. I'm going to leave the evidence open for her to secure other counsel, but I've got to adjudicate in that 60-day-window....

The mother’s counsel responded, "okay," and DFCS presented the testimony of one caseworker before the case concluded for the day.

The record contains no evidence that the mother sought retained counsel or expressed any dissatisfaction with appointed counsel before asking the juvenile court for a continuance to hire counsel on January 16, over 43 days after the juvenile court first advised her of her right to hire her own attorney. Moreover, the mother did not seek a continuance for counsel she already had retained, but rather "to hire" retained counsel in the first instance;⁴ she made no effort to establish that she had exercised reasonable diligence to obtain retained counsel. Under these circumstances, we cannot say that the juvenile court abused its discretion in denying her request for a continuance. See Flowers v. State , 275 Ga. 592, 594 (2), 571 S.E.2d 381 (2002) (trial court did not abuse discretion by denying request for continuance made on the morning of trial to hire retained counsel to replace appointed counsel). See also Percell v. State , 346 Ga. App. 219, 222 (2), 816 S.E.2d 344 (2018) (rejecting defendant’s claim that trial court abused discretion in denying motion for continuance because it "did not give him the opportunity to explain why he wanted to fire appointed counsel[;] the record [did] not show that he sought such an opportunity"); Coats v. State , 303 Ga. App. 818,...