In re D.J., No. A06A0287.
| Decision Date | 12 May 2006 |
| Docket Number | No. A06A0287.,No. A06A0288. |
| Citation | 631 S.E.2d 427,279 Ga. App. 355 |
| Parties | In the Interest of D.J., et al., children. |
| Court | Georgia Court of Appeals |
Michael S. Webb, for appellant (case no. A06A0287).
Bruce A. Kling, Dalton, for appellant (case no. A06A0288).
Rodney Q. Quarles, Chatsworth, Philip F. Woodward, Dalton, for appellee.
In Case Nos. A06A0287 and A06A0288, the father and mother, respectively, contest the termination of their parental rights under OCGA § 15-11-94 to D.J. and W.J. For reasons that follow, we affirm both cases.
Terminating parental rights pursuant to OCGA § 15-11-94 requires a court to employ a two-step procedure. The first step requires the court to determine whether there is present clear and convincing evidence of parental misconduct or inability.1 Parental misconduct or inability is found where (1) the child is deprived; (2) the lack of proper parental care or control by the parent in question is the cause of the child's deprivation; (3) the cause of deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.2 The second step of the procedure requires the court to determine whether termination of parental rights is in the child's best interest.3
D.J. was born in February 1999. In October 2002, he was removed from his parents' home and placed in the home of his paternal grandmother. In February 2003, the juvenile court adjudicated him deprived, citing domestic violence between the parents in the child's presence, the mother's lack of employment, and her self-described depression and panic attacks. The court granted temporary custody of D.J. to his paternal grandmother and further ordered that reunification of the parents with D.J. required: (1) the parents to maintain for at least six months stable, suitable housing with sufficient space to meet the needs of the entire family; (2) the parents to maintain for at least six months gainful employment with income sufficient to meet the family's needs; (3) the parents to maintain meaningful contact with the child by complying with a visitation schedule to be set; (4) the parents to complete a parenting/nurturing class; (5) the parents to complete a psychological evaluation and follow recommended treatment; (6) the parents to complete a drug and alcohol assessment and follow any recommended treatment; (7) the parents to complete an anger management course; (8) the parents to complete marriage counseling, if they chose to remain together (9) the father to pay child support in the amount of 20 percent of his gross income; and (10) the mother to pay the greater of 20 percent of her gross income or $45 per week.
Meanwhile, W.J. was born in October 2003. In February 2004, the Department of Family and Children Services (DFCS) received a report of domestic violence between the parents, during which episode the mother was holding the child and "busted a glass." It was also alleged that the parents had a history of drug use. DFCS immediately conducted a home visit, discovering broken glass and a knife on a bookshelf. DFCS removed W.J. from her home and placed her, pursuant to a safety plan, in her paternal grandparents' home. The mother submitted to a drug screen at DFCS's request, which was positive for methamphetamine.
Also, in February 2004, the couple divorced. The next month, the father went to DFCS and reported that the mother had attacked him and lacerated his ear. In April, the mother went to DFCS battered, with a swollen face and two black eyes, and attributed her injuries to the father.
DFCS subsequently filed a petition alleging that W.J. was deprived, and the court held a hearing. On September 23, 2004, the juvenile court adjudicated the child deprived, citing domestic violence between her parents in the child's presence and the detection of methamphetamine in the mother's February 2004 drug screen. The court awarded temporary custody and control of W.J. to her paternal grandparents.
On January 21, 2005, the children's paternal grandparents petitioned to terminate the mother's and father's parental rights to D.J. and W.J. on grounds of parental misconduct or inability as provided in OCGA § 15-11-94. Specifically, petitioners alleged that the children were without proper parental care or control; the parents had failed to comply with court-ordered requirements of reunification; there was domestic violence between the parents; the parents had failed to contribute to the financial support of the children; the parents abused drugs; the parents had failed to maintain regular contact with the children; the children were in a stable, loving home; and the petitioners wished to adopt the children. They sought permanent custody of D.J. and W.J. In June 2005, the court held a hearing and granted the petition.
1. In his sole claim of error, the father complains that the juvenile court allowed the petitioners to call him as an adverse witness, subject to cross-examination.4 He argues that in parental rights termination hearings, permitting a petitioner to call the parent as an adverse witness, subject to cross-examination, deprives the parent of due process in violation of the Fourteenth Amendment to the United States Constitution and Article I, Section I, Paragraph I of the Constitution of the State of Georgia. Recently, however, this court considered and rejected that argument.5 Thus, we affirm the termination of the father's parental rights to both children.
2. The mother contends that the termination of her parental rights to D.J. was not supported by sufficient evidence. On appeal, we view the evidence in the light most favorable to the juvenile court's ruling and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent's rights should have been terminated.6 So viewed, the evidence was sufficient.
(a) The juvenile court's order finding by clear and convincing evidence that D.J. was deprived was not appealed. Therefore, the mother is bound by that finding.7
(b) In determining whether a child is without proper parental care and control, a court shall consider, without being limited to,
the excessive use of or a history of chronic unrehabilitated abuse of narcotic drugs with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child;8 and the physical, mental, or emotional neglect of the child or of another child by the parent.9 Where a child is not in the parent's custody, the court must also consider whether the parent unjustifiably and significantly for one year or longer prior to the filing of the termination petition failed to: (i) develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) provide for the care and support of the child as required by law or judicial decree; and (iii) comply with a court-ordered plan designed to reunite the child with the parent.10
Evidence showed the excessive use of, or a history of chronic unrehabilitated abuse of, a narcotic drug by the mother that rendered her incapable of providing adequately for the child's needs. Since D.J.'s removal from his home, the mother had passed only two drug tests. She failed two, and all others to which she submitted were determined to have been "altered." The mother claimed that she had used methamphetamine with the father, but not since she became pregnant with D.J. Explaining the two positive test results, she claimed that the father had administered her the drug without her knowledge. But the children's paternal aunt testified that she and the mother had "done drugs together ever since [the parents have] been together," eight or nine years, and as recently as six to eight weeks before the hearing.11 On that last occasion, the aunt recounted, the mother had come to her residence with the drug, told her that she and the father had purchased it with money from their recent paychecks, and stayed at her residence several days smoking methamphetamine. In addition, although the mother had successfully completed two drug and alcohol assessments, she was expelled from the third such program the month of the hearing for lack of attendance.
Evidence showed that the mother had neglected D.J. and failed to develop and maintain a parental bond with him. In an order subsequent to its termination order, the juvenile court set supervised visitations between the mother and D.J. every other Saturday at the home of D.J.'s maternal grandmother. But in the ten months before the termination hearing, the mother had not seen D.J. at all. She blamed her failure to do so on the child's paternal grandmother. The grandmother admitted that she had refused to permit the mother to visit D.J., explaining that she had reason to believe that the mother was still using methamphetamine. The grandmother testified that the mother had once shown her the drug and complained that "this is where [the father's] money's going." Concerned for D.J.'s safety, the grandmother agreed to permit the mother to spend time with D.J. only if the mother presented results of a drug test showing the presence of no illegal drug. The mother never provided the grandmother with such results. The grandmother never again permitted the mother visitation with D.J. And the mother did nothing to enforce her visitation rights under the court's order.
Evidence showed that the mother failed to support D.J. financially. The mother testified that she had paid no child support for D.J. and that she had provided no food for him since he was three years old.
Evidence showed that the mother had significantly and unjustifiably failed to comply with the court-ordered reunification plan. The requirements of the mother's plan with respect...
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