IN RE HY, A04A2245.

• Decision Date: 18 November 2004
• Docket Number: No. A04A2245.,A04A2245.
• Citation: 270 Ga. App. 497,606 S.E.2d 679
• Parties: In the Interest of H.Y. et al., children.
• Court: Georgia Court of Appeals

606 S.E.2d 679

270 Ga. App. 497

In the Interest of H.Y. et al., children.

No. A04A2245.

Court of Appeals of Georgia.

November 18, 2004.

Ralph F. Forsythe, Cedartown, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Atlanta, Mundy & Gammage, Billie J. Crane, Cedartown, for appellee.

ELDRIDGE, Judge.

The mother of H.Y. and A.Y. appeals from the March 8, 2004 order of the Juvenile Court of Polk County terminating her parental rights, contending that the evidence was insufficient to support the trial court's order and that the Department of Family and Children Services ("DFACS") failed to conduct a thorough search for a suitable family with whom to place the children. Finding no error, we affirm.

On appeal, we must view the evidence in a light most favorable to the juvenile court's order 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. We do not weigh the evidence and must defer to the trial judge as the factfinder.

(Citations and punctuation omitted.) In the Interest of K.A.C., 229 Ga.App. 254, 255(3), 493 S.E.2d 645 (1997).

Viewed in this light, the evidence shows that DFACS became involved with the mother and the children in November 1999, when they had an ongoing child protective services case with her. When the referral came in, the mother and the children were living out of a car. However, by the time a DFACS caseworker received the complaint, the mother and children were living with the mother's sister-in-law. Because the sister-in-law had a current case of her own with DFACS, the caseworker felt it was best to separate the families. The mother rented a trailer in the same trailer park where her sister-in-law lived, and DFACS provided the mother with funds to pay rent and utilities for the first month, as well as furnishings necessary to provide a home for the children. The mother obtained employment at a Chevron station. The case was closed against the mother in March 2000, because the mother moved out of the county.

On October 27, 2000, DFACS received a second referral concerning the mother and the children. Upon investigation, DFACS learned that the mother and the children were living in a motel with the mother's boyfriend. Based on allegations of domestic abuse and substance abuse in the children's presence, the children were taken into custody. After the children came into DFACS custody, the mother admitted that her boyfriend was using crack cocaine and that there was domestic violence between the two of them. The mother further stated that she and her boyfriend moved into separate motels.

When the children came into custody, A.Y. had a severe large and circular burn on his hand. Upon inquiry, the mother stated that she had not sought medical treatment for A.Y. because she did not have transportation and that A.Y. had obtained the burn from a heater in the motel room. However, upon inspection by DFACS, there was no heater which would have caused such a burn. A.Y.'s top teeth were also severely rotted. In addition, there was evidence that the mother was feeding A.Y., who was 15 months old, peanut M & M's and other inappropriate food. During the first referral, DFACS had attempted to instruct the mother in properly caring for A.Y. nutritionally, as she was feeding him evaporated milk mixed with Kayo syrup. In regard to H.Y., his teeth were severely rotted and black. Light bruising was also observed on H.Y.'s back. When asked about the bruises, H.Y. replied that the mother's boyfriend had "whipped" him. H.Y. also had a cut on the bottom of one of his feet. Further, the mother no longer was in possession of the furniture purchased for her by DFACS some nine months earlier, stating that she had lent it to a friend who refused to return it.

DFACS developed a reunification case plan for the mother under which she was required to maintain a parent-child bond with H.Y. and A.Y. by regular visitation; become and remain emotionally stable; obtain and maintain stable employment and housing; learn and demonstrate appropriate parenting skills; and become drug free. Her case plan goals were made an order of the juvenile court and were discussed with the mother on a monthly basis. The mother was consistent in visiting the children on a weekly basis, until May 2001, when the mother missed three visits in a row. The visits were changed to every other week because H.Y. became upset when his mother did not show-up. Further, despite being informed by the caseworker that she needed to assume the role of a mother and disciplinarian during the visits, the mother consistently deferred to the DFACS caseworker and would ask her to make the children mind.

The mother attended some parenting classes, but never provided DFACS any documentation that she had completed the classes. The mother obtained an initial psychological evaluation. The mother was initially resistive to counseling recommended by the psychologist and informed the DFACS caseworker that she did not feel she needed counseling. However, the mother nevertheless later started counseling with Dr. Carson. The mother failed to maintain stable employment, changing jobs in excess of five times and having periods of unemployment during the two years DFACS worked with her. The mother also failed to maintain stable housing. During the two-year period DFACS was involved, the mother moved frequently, often staying in one place only a week or two. Her housing was often with the same relatives that DFACS initially found unacceptable or at a motel with the boyfriend with whom she was living when the children were taken into custody. During certain periods, the mother was unable to provide DFACS with an address and stated that she was living with friends.

Joy Crosby, a family services worker with DFACS, testified that the mother did not have her own transportation because she had trouble maintaining employment. Ms. Crosby attempted to contact the mother concerning medical appointments for H.Y. and A.Y.; however, it was difficult for her to do so because the mother did not provide her with a current telephone number or address. Ms. Crosby testified that there were at least 12 occasions when she did not know how to contact the mother.

The mother was referred by DFACS to Morning Star Family Resources Center ("Morning Star") for parent aid and in-home therapy. Rebecca Gurgiss, a family and homestead therapist employed with Morning Star, testified that she first met the mother in July 2001 and offered her services which included individual counseling, family sessions which involved parent education and training, and behavior modification techniques. Ms. Gurgiss testified that the mother missed several visits with her and a scheduled appointment with Alcoholics Anonymous. In October 2001, the mother moved and did not leave a forwarding address. Ms. Gurgiss tried to contact the mother but, after not hearing from her for a month, she closed the case. Ms. Gurgiss testified that at the time she closed the mother's case, the mother still had not established stable housing or employment, and that she needed to resolve stress and anxiety issues, strengthen her bonds with her children, and increase her parenting skills. Ms. Gurgiss further testified that at the time the mother's case was closed, she was more concerned about the mother's physical and emotional well-being than she was at the inception of the therapy sessions.

Concerning the mother's ability to offer a stable home and proper parenting to the children, Ms. Gurgiss opined that the mother needed to obtain a safe and stable home, be free from domestic violence, maintain stable employment, and continue to visit regularly with the children while they were in foster care in order to foster a bond with them. In addition, Ms. Gurgiss testified that the mother needed to resolve her relationship with the boyfriend with whom she was living when the children were taken into DFACS custody in that he continued to be abusive and have a substance abuse problem, to which the children did not need to be exposed.

Erin Salvatore, an in-home therapist with Morning Star, worked with the children between April and September of 2003. Ms. Salvatore testified that H.Y. was having difficulty with aggression and acting out. Ms. Salvatore testified that A.Y. reported to her that H.Y. had touched him in a sexually inappropriate manner and that A.Y. was having difficulty dealing with the abuse. Ms. Salvatore stated that she did not think it was in the children's best interests to be placed together in the same home because of the risk H.Y. posed to A.Y. Ms. Jill Weaver, who has been a foster parent to the children on two different occasions, testified that A.Y. told her that H.Y. was touching him inappropriately and that she discussed H.Y.'s sexual abuse of A.Y. with the mother. At that time, the mother stated that she believed that H.Y. had been sexually abused by his uncle which might explain his sexually inappropriate behavior. Ms. Weaver further testified that A.Y. began to act out sexually later and had to be removed from her home.

Deposition testimony of Dr. Alice Wiener, a licensed psychologist, was admitted into evidence by stipulation. Dr. Wiener testified that upon observing H.Y., she found that he had a speech impediment and problems focusing on tasks, and that both his receptive and expressive language skills appeared compromised. Dr. Wiener further testified that H.Y. scored significantly below average as to intellectual ability, academic skills, and mental processing. She further reported that she could not rule out sexual abuse. Dr. Wiener opined that H.Y. should be under close supervision when around A.Y. or other younger children; that H.Y. should have a separate bedroom from A.Y.; that H.Y. should not bathe with A.Y.; and that H.Y. should...