In re Interest of K. G., A17A1309

• Decision Date: 24 October 2017
• Docket Number: A17A1309
• Citation: 343 Ga.App. 345,807 S.E.2d 70
• Parties: IN the INTEREST OF K. G., a child.
• Court: Georgia Court of Appeals

343 Ga.App. 345

807 S.E.2d 70

IN the INTEREST OF K. G., a child.

A17A1309

Court of Appeals of Georgia.

October 24, 2017

The Ricks Law Firm, Deidre E. Ricks, for appellant.

Christy E. Draper, for appellee.

McFadden, Presiding Judge.

The mother of K. G. appeals the juvenile court order granting a petition for permanent guardianship of the child. The mother argues that the juvenile court erroneously failed to consider certain required factors when determining whether reasonable efforts to reunify her with the child would be detrimental to the child. But the court is no longer required to consider those factors. And construed in favor of the juvenile court's ruling, the record demonstrates that the juvenile court could have found by clear and convincing evidence that reunification services would be detrimental to the child. The mother has abandoned her argument that the juvenile court erred in finding the guardianship to be in the child's best interest. So we affirm.

1. Background.

K. G. was born with Down syndrome and a heart condition, and has special needs. The guardian, who is the mother's half sister, took the child when the mother went to the hospital for treatment of her asthma and had no one else to look after the child. The guardian did not return the child when the mother was released from the hospital, instead seeking custody based upon the child's dependency. The juvenile court entered an order finding the child to be dependent, and about two years later, granted the guardian's petition for permanent guardianship, awarding the mother visitation. The mother filed this appeal.

2. Efforts to reunify.

(a) Failure to consider certain factors.

The mother argues that the juvenile court failed to consider certain required factors before awarding permanent guardianship of the child. However, the new Juvenile Code, which governs this case, see In the Interest of M. F., 298 Ga. 138, 140 (1), n. 4, 780 S.E.2d 291 (2015), does not require consideration of those factors. So we disagree.

Citing In the Interest of L. B., 319 Ga. App. 173, 735 S.E.2d 162 (2012), the mother argues that, before determining whether reasonable efforts to reunify the mother and child would be detrimental to the child under OCGA § 15-11-240 (a) (1), the juvenile court was required to consider four factors:

(1) [whether the mother] unjustifiably failed to complete a previously ordered reunification plan, (2) [whether] the child had been removed from the home on at least two previous occasions, (3) [whether] any of the grounds for terminating parental rights set forth in [former] OCGA § 15-11-94 (b) exist, or (4) [whether] reasonable efforts to reunify are deemed unnecessary under [former] OCGA § 15-11-58 (a) (4).

In the Interest of L. B., 319 Ga. App. at 176 (2), 735 S.E.2d 162. But in In the Interest of L. B., we addressed the former version of the guardianship statute, OCGA § 15-11-30.1, which mandated consideration of the four factors by referencing the statute that contained them.

Specifically, that former version of the statute stated that before a juvenile court could appoint a permanent guardian of a child, it had to

[f]ind that reasonable efforts to reunify the child with his or her parent would be detrimental to the child in accordance with subsection (h) of [former] Code Section 15-11-58 [which set forth those four factors] or find that the living parents or parent of the child have consented to the permanent guardianship[.]

Former OCGA § 15-11-30.1 (a) (2) (A) (i). The new version of the guardianship statute, OCGA § 15-11-240, states in pertinent part that before a juvenile court may appoint a permanent guardian of a child, it must "[f]ind that reasonable efforts to reunify such child with his or her parents would be detrimental to such child or find that the living parents of such child have consented to the permanent guardianship[.]" OCGA § 15-11-240 (a) (1). The new statute omits reference to the four factors or to any statute referencing them. We must presume that the General Assembly's omission was a matter of considered choice. See generally Inland Paperboard & Packaging v. Ga. Dept. of Revenue, 274 Ga. App. 101, 104, 616 S.E.2d 873 (2005). Consequently, the fact that the juvenile court did not explicitly consider the four factors set forth in our former Juvenile Code and discussed in In the Interest of L. B., supra, does not entitle the mother to reversal.

(b) Evidence supports the juvenile court's decision.

As noted above, under the applicable statute, the juvenile court was required to find that reasonable efforts to reunify K. G. with her mother would be detrimental to K. G. OCGA § 15-11-240 (a) (1). The juvenile court made this finding, essentially determining that the mother's behavior at K. G.'s medical and therapy appointments sabotages the provision of services to K. G. In reviewing such a finding,

this [c]ourt construes the evidence in favor of the judgment and determines whether a rational trier of fact could have found clear and convincing evidence that reunification services should not be provided. We neither weigh the evidence nor determine the credibility of witnesses; we defer to the juvenile court's factfinding and affirm unless the appellate standard is not met.

In the Interest of J. B., 274 Ga. App. 20, 619 S.E.2d 305 (2005) (citations and punctuation omitted).

Viewed in this light, the record demonstrates that the guardian and the mother are half sisters. K. G. was born with Down syndrome and a congenital heart defect and has special needs. The mother made no efforts to obtain support or to prepare herself for K. G.'s birth, even though she knew that K. G. would be born with these conditions and would require services immediately. The guardian, on the other hand, contacted Babies Can't Wait in an attempt to obtain services immediately; she could not make appointments for the child because she was not the guardian at that time. Babies Can't Wait tried to work with the mother, but the mother would not cooperate.

At the time K. G. came into the guardian's care, she was six years old but could not speak. She did not understand boundaries. For example, when the door was opened or when the guardian would take her shopping, K. G would run off. K. G. would approach strangers and hug them. K. G. was not doing well in school; she was moved to a lower level class. K. G. could not follow directions, and she had behavioral problems. She could not stay seated, she would leave class, and she would stand on the desks and chairs.

When K. G. came into the guardian's care, the guardian immediately sought a psychological assessment for K. G. as well as services to address her significant needs, including speech therapy and occupational therapy. Now K. G. has weekly occupational and speech therapy appointments. K. G. works on fine motor skills, muscle development, and behavioral skills. The guardian worked with K. G.'s advocate to teach K. G. appropriate boundaries. The first day K. G. attended school while in the guardian's care, the guardian and the child's advocate developed an Individualized Education Plan for K.G.

The mother testified that when K. G. lived with her, the mother believed that the only service K. G. needed was speech therapy, which she received through school. She only learned that K. G. was far behind developmentally when the guardian took custody. Now, the mother believes, K. G. needs speech therapy and muscle therapy.

K. G. has made great improvements in the two years she has been with the guardian. She now can sit still; she can move in ways she was unable to move before, such as placing and keeping her hands on her knees, and controlling her tongue; and she has strengthened her abdominal muscles, allowing her to sit upright. Her behavior in school has improved, and she was promoted to the next grade. She can speak her name, she can count, she can identify colors, and she can recite the alphabet.

The juvenile court found that the mother's behavior interferes with the provision of essential services to K. G. For example, the guardian testified that initially K. G.'s therapist would discuss with the guardian K. G.'s progress, the guardian's concerns, and tasks for K. G. to work on at home. When the mother attended the sessions, however, the mother was disruptive, leading the therapist to communicate only in writing, which prevented the guardian from discussing her concerns about K. G. with the therapist. And week after week, the mother's disruptions would consume time in K. G's one-hour session.

The mother, along with the guardian, attended K. G.'s last well check with her pediatrician. The mother informed the nurse that she was K. G.'s mother. The nurse sensed tension and called in the practice manager. The practice manager explained to the mother that she needed to allow the guardian to make the decisions. The mother began yelling and was uncooperative. She complained about the nurses drawing K. G.'s blood. She stated that the doctor to whom she previously had taken K. G. was much better and that she would never return to this doctor. The mother was so disruptive that the staff threatened to eject her from the office. The mother's behavior upset K. G., who began crying.

The guardian sought a psychological assessment of the child. The mother attended the first appointment. But she was disruptive and refused to participate. The mother would not provide any information about K. G.'s...