In re C.L.

• Decision Date: 12 April 2012
• Docket Number: No. A11A2423.,A11A2423.
• Citation: 12 FCDR 1349,727 S.E.2d 163,315 Ga.App. 607
• Parties: In the Interest of C.L. et al., children.
• Court: Georgia Court of Appeals

315 Ga.App. 607

727 S.E.2d 163

12 FCDR 1349

In the Interest of C.L. et al., children.

No. A11A2423.

Court of Appeals of Georgia.

March 30, 2012.

Reconsideration Denied, April 12, 2012.

James Kenneth Luttrell, Woodstock, for appellant.

Samuel S. Olens, Atty. Gen., Atlanta, Hope Merkert Pereira, Shalen S. Nelson, Sr. Asst. Atty. Gen., Jamie Lisa Smith, Marietta, Elizabeth M. Williamson, Asst. Atty. Gen., for appellee.

BLACKWELL, Judge.

The mother of two young boys, C.L. and C.L.,¹ appeals from the termination of her parental rights.² She contends, among other things, that the evidence is insufficient to sustain two of the factual findings on which the termination was premised. We find no merit in this contention, and we affirm.

Viewed in the light most favorable to the judgment below,³ the evidence shows that the older boy came to the attention of the Department of Family and Children Services in April 2008, when the Department learned that his parents had a problem with substance abuse. Nearly a year later, the mother was arrested on drug charges, and at that time, the older boy was taken into the custody of the Department. Although the older boy was returned in March 2009 to the custody of his mother under a protective order, he was taken again into the custody of the Department only a month later, when both of his parents were arrested after they failed drug tests. At that time, both parents consented to a finding of deprivation based upon their incarcerations, unstable housing, unemployment, and unresolved substance abuse issues, and the juvenile court entered an order consistent with that stipulation.

The younger boy was born in October 2009. Two months later, and only about a week before the older boy was scheduled to be returned to his mother, she was arrested again, having violated the terms of her probation by breaking her curfew and failing a drug test. At that point, the younger boy also was put in the custody of the Department, and both parents again consented to findings of deprivation, this time with respect to the younger boy.

In January 2010, the mother was released from jail, and she entered an inpatient rehabilitation program to get help with her drug problem. She left that program without permission, however, only three months later. In March and April 2010, the mother refused to take a drug test on three occasions, and when a judge ordered her to take a drug test soon thereafter, she tested positive for methamphetamine use. The mother later admitted that, if she had taken the other drug tests in March and April 2010, she probably would have failed them too.

In May 2010, the juvenile court approved a permanency plan of reunification and a concurrent permanency plan of nonreunification, termination of parental rights, and adoption. These plans required the mother to obtain and maintain stable housing and employment, obtain substance abuse evaluations and any recommended treatment, submit to random drug tests, attend parenting classes, resolve any criminal cases that might affect her ability to parent, maintain meaningful contact with the children, pay child support, and cooperate with the Department. Around that time, authorities could not locate the mother for about two months, although she later testified that, during this time, she was awaiting bed space in a better rehabilitation facility. She had no contact at all with her children between April and August 2010.

In July 2010, the mother was admitted into another rehabilitation program, but she twice tested positive for methamphetamine use in the weeks following her admission to the program. Although the mother testified that she only used drugs “two or three times” after the boys were born, she conceded that, between April and July 2010, she spent her time “getting high,” and she used drugs at least once after entering the second rehabilitation program. The mother stayed in the second rehabilitation program for about 30 days, and in August 2010, she surrendered to law enforcement authorities on yet another probation violation. The mother still was incarcerated when the court below heard evidence on the petition to terminate her parental rights in December 2010.⁴

The two boys were placed in the same foster home when they were taken into the custody of the Department, and they have remained there since. At the hearing, their caseworker testified that the boys now are doing “very well,” and their foster parents want to adopt them. The caseworker said that the foster home is the only home that the younger boy could remember, and she was unsure whether he would even know his mother. The caseworker testified that the older boy also is doing well in the foster home, although she conceded that he has a bond with his mother. The caseworker explained, however, that, because the mother had been unable to be a parent to the boys, they have nothing to gain by continuing a relationship with her. Both the guardian ad litem and the court-appointed special advocate (CASA) recommended that the juvenile court terminate the parental rights of the mother. The guardian cited the criminal history of the mother, her lack of history of stable employment, her unresolved drug issues, and her failure to take responsibility for her actions, as well as the need of the boys for permanency. The CASA agreed, explaining that, since leaving the custody of their mother, the boys “are receiving education, they're loved, everything.”

In its termination order, the juvenile court found that the mother failed to make significant progress toward reunification in the two years in which she had been offered services. The court concluded that, given her history and continuing incarceration, the mother was unlikely to remedy the causes of deprivation within a reasonable time. With respect to the physical, emotional, and mental health needs of the boys, the court found that “the children do have the need for a sense of permanency and a safe and stable home.” The court noted that the older boy had been in the custody of the Department for the last two of his four years of life, and the younger boy had been in the Department's care for all but the first two months of his life. The court further found that the boys had been placed together in a stable and loving foster home and that their foster parents had expressed a “willing[ness] to provide [them] with a permanent home through adoption.”

The mother filed a timely motion for new trial. At the hearing on this motion, she apparently submitted evidence that she was scheduled to be released from her current term of incarceration in May [315 Ga.App. 610]2011. The court denied the motion, and she filed a timely discretionary appeal, which this Court granted.

1. When we consider the sufficiency of the evidence adduced in support of a petition to terminate parental rights, we ask whether any rational trier of fact could have found clearly and convincingly that the rights of the natural parent to custody have been lost. In the Interest of R.S., 287 Ga.App. 228, 228, 651 S.E.2d 156 (2007). To prove that parental rights ought to be terminated, the Department first must prove “parental misconduct or inability” by clear and convincing evidence. OCGA § 15–11–94(a). Such proof requires the Department to establish: (1) that the child is deprived; (2) that the deprivation is a result of a lack of proper parental care or control; (3) that the cause of the deprivation is likely to continue; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. See OCGA § 15–11–94(b)(4)(A)(i)–(iv). If the Department carries this burden, it then must prove that “termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child [,] including the need for a secure and stable home.” OCGA § 15–11–94(a). In this case, the mother does not challenge the findings that the boys are deprived or that a lack of proper parental care or control is the cause of the deprivation.⁵ Nor does she claim that the court erred when it found that termination was in the best interest of the boys. Instead, the mother argues only that the Department failed to prove that the deprivation is likely to continue and that any such continued deprivation is likely to cause serious harm to the boys. We address each of these contentions below.

(a) With respect to a finding that deprivation is likely to continue, we have explained before that:

If over the intervening months or years since she originally lost custody of the children, the mother has not modified the behavior that led to the original and continued removal of the children, then a court could find that the mother will continue to so act in the future and therefore that the cause of the deprivation will likely continue.

In the Interest of T.A.H., 310 Ga.App. 93, 96(2), 712 S.E.2d 115 (2011) (punctuation and footnote omitted). “[T]he court can consider a parent's past conduct in determining whether ... conditions of deprivation are likely to continue.” In the Interest of B.T., 291 Ga.App. 604, 608(c), 662 S.E.2d 656 (2008) (citation and punctuation omitted). And although a “parent's incarceration does not always compel the termination of parental rights, it can support a termination when there are sufficient aggravating circumstances present.” In the Interest of A.E.S., 310 Ga.App. 667, 669–670, 714 S.E.2d 148 (2011) (punctuation and footnote omitted.). A juvenile court also is entitled to consider proof that a parent failed to complete a case plan as evidence that a deprivation is likely to continue. In the Interest of J.A., 298 Ga.App. 11, 15(1), 679 S.E.2d 52 (2009).

Here, the evidence shows that the mother was arrested and jailed following the birth of the older boy. She then violated her probationon at least two occasions, leading to two additional periods of...