In re Interest of E.M.D.

• Decision Date: 28 October 2016
• Docket Number: A16A0986
• Citation: 339 Ga.App. 189,793 S.E.2d 489
• Parties: IN The INTEREST OF E.M.D., et al., children.
• Court: Georgia Court of Appeals

339 Ga.App. 189

793 S.E.2d 489

IN The INTEREST OF E.M.D., et al., children.

A16A0986

Court of Appeals of Georgia.

October 28, 2016

Caroline Anne Schofield, for Appellant.

Christopher Michael Carr, James A. Chamberlin Jr., Penny Hannah, Samuel S. Olens, Shalen S. Nelson, for Appellee.

Peterson, Judge.

The mother of four minor children, E.M.D., M.C.D., L.A.W., and M.O.W., appeals from a juvenile court order terminating her parental rights. The mother argues that the trial court lacked clear and convincing evidence to support its findings that (1) chronic, unrehabilitated substance abuse rendered her incapable of providing adequately for her children's needs; (2) the cause of her children's dependency is likely to continue; and (3) the continued dependency would cause serious physical, mental, emotional or moral harm to the children. Because the trial court's factual findings are insufficient to support its conclusion that a failure to terminate the mother's rights will cause or is likely to cause the children serious physical, mental, emotional, or moral harm, we reverse.

I. Factual and procedural background

A. Proceedings prior to termination hearing

In reviewing an order terminating parental rights, we view the evidence in the light most favorable to the juvenile court's findings. See In the Interest of R.S. , 287 Ga.App. 228, 228, 651 S.E.2d 156 (2007). So viewed, the evidence shows that on July 11, 2012, the juvenile court entered an order of shelter care regarding the children, placing the children in the custody of Glynn County Division of Family and Children Services (DFCS).¹ The following day, DFCS filed a petition alleging the children were deprived. A urinalysis testing form filed with the juvenile court indicates that the mother tested positive for cocaine that day and indicates that the mother reported having taken oxycodone and trazadone since her "last screen." On July 25, 2012, the juvenile court issued orders finding the children to be deprived and ordering them to remain in the temporary custody of DFCS. The order found that the mother, children, and the father of the two youngest children were living in a hotel room² kept "in deplorable conditions" and that a case worker found the children dirty, unfed, and with signs of abuse and neglect, such as a cigarette burn to the face of a child and severe diaper rash.³ The court cited reports of neighbors that the children wandered the premises looking for food and were left unattended in the hotel room after midnight, and that the parents had been seen trying to obtain prescription drugs from other hotel residents.

In October 2012, the juvenile court entered orders incorporating a case plan submitted by DFCS, setting forth the items that must be "completed sufficiently to remove the risk" to the children before the mother could be permanently reunited with them. The plan required the mother to (1) complete a drug and alcohol assessment through Gateway Behavioral Health Services; (2) continue treatment based on Gateway's recommendations; (3) complete a psychological evaluation and follow the provider's recommendations; (4) undergo random monthly drug screenings and test negative at least six months in a row; (5) take prescribed psychiatric medications and communicate with her counselor regarding her mental health needs; (6) participate in support group meetings; (7) agree to the release of treatment information to her DFCS case worker; (8) complete a domestic violence assessment and follow the provider's recommendations; (9) obtain and maintain a source of income and keep DFCS apprised of all job applications; (10) obtain and maintain stable, clean and safe housing appropriate for herself and the children; and (11) ensure the children have ongoing medical care with their pediatrician, actively asking questions about their medical care even while they are out of her custody. A separate notation in the case plan documents said that DFCS expected parents to pay child support and warned that failure to do so could be a ground for termination of parental rights, but the documents did not specify any particular amount of support that was required.

On July 30, 2013, the juvenile court granted DFCS's motion for an extension of the grant of temporary custody to the agency. The court found that the mother had gained employment and visited with the children but had not provided child support, maintained stable housing or completed drug treatment, and thus had not sufficiently complied with the case plan to allow reunification at that time.

On May 21, 2014, DFCS filed a motion asking the court to begin "transitional" unsupervised visits, including overnight and on weekends. The accompanying case worker report cited the mother's six months of clean drug screenings, completion of inpatient residential drug treatment at Gateway,⁴ success in securing housing and employment, and positive reports of the mother's interactions with the children during their stay in a group home. A motion for extension of the juvenile court's custody order filed by DFCS less than two weeks later said that the mother had made "great efforts towards the completion of the case plan" and been "very compliant" with it, but DFCS wanted to see how transitional visitation went before returning the children to the mother's custody.

But the CASA and guardian ad litem (GAL) learned of a May 17, 2014, arrest of the mother for possession of marijuana of less than an ounce and objected to the transitional visits. The GAL's report said that a co-defendant who had been in the same vehicle when the mother was arrested was charged with various offenses, including possession of cocaine with intent to distribute.⁵ The report said the two younger children's father was arrested that same day and charged with various offenses, including possession and use of drug related objects. Although the record does not reflect an explicit ruling on the motion for unsupervised visitation, the juvenile court ordered that the children remain in the custody of DFCS, saying that it would not be in the children's best interest to return home as the parents "still are using drugs, or involved with those who are," leading to their arrests and showing "a lack of stability which the children require." Consistent with the recommendations of a citizen panel that reviewed the case, the juvenile court in December 2014 suspended the mother's visitation privileges until she could achieve three consecutive months of clean drug screenings, and it suspended the father's visitation privileges altogether.

DFCS moved for termination of the parental rights of the mother—as well as all of the children's fathers—on March 20, 2015. The petition alleged that the children were dependent due to lack of parental control by the parents, citing the mother's "history of chronic unrehabilitated substance abuse," failure to pay child support and maintain a bond with the children over the previous six months, and various shortcomings in completing the goals of her case plan. The juvenile court presided over a hearing on the termination motion on June 4, 2015.

B. Termination hearing

1. Employment, housing, and support

At the hearing, the court heard from the DFCS case worker who handled the children's case from August 2013 to February 2015, as well as the subsequent case worker, who remained on the matter at the time of the hearing. They spoke of the mother's progress on her case plan, including obtaining work and housing for the children. According to their testimony, the mother's employment during their tenure on the case included relatively brief stints at a convenience store and various restaurants. The current case worker testified that the mother informed her in March 2015 that the Steak & Shake restaurant where she had been working had closed. The mother reported cleaning houses thereafter but furnished no verification to the case worker. The current case worker testified that the mother had recently furnished a letter indicating that she had been hired at a Domino's Pizza but had been unable to furnish any pay stubs because she had not yet received one. The mother testified at the hearing that she expected to get her first pay check the following day.

The prior case worker testified that in October or November 2013 the mother provided a lease for a home she had rented, but the mother initially had insisted it was not ready for the children. The prior case worker said she made an unannounced visit to the home in January 2014 and found it was a three bedroom, two bath home that contained beds for the children and "looked ready." The mother hosted a supervised visit with the children at the home in March 2014. The current case worker testified that she had visited the mother's residence about a week before the termination hearing, and found it furnished with operational utilities. She testified that the mother had given her copies of a lease and a utility bill, although the mother was now renting it on a month-to-month basis.

The prior case worker testified that the mother's child support issue "was kind of confusing to me," in that the case worker understood that any parent with a child in state custody is supposed to pay some amount to DFCS as a form of support, but there was nothing specific about child support in the mother's case plan. The prior case worker testified that the mother occasionally gave her $25 toward support. She testified that she told the mother she needed to pay $25 per month, per child. The mother testified that the prior case worker never told her to pay anything, but acknowledged she had discussed child support with the current case worker. The current case worker testified that child support was "not indicated in [the mother's] actual case plan specifically," but insisted the case plan does indicate that parents will have to pay some support and "the practice" is $25 per child, per month. She said the mother had paid $50 altogether since the...