In re Interest of J.C.W.

• Decision Date: 27 November 2012
• Docket Number: No. A12A1341.,A12A1341.
• Citation: 734 S.E.2d 781,318 Ga.App. 772
• Parties: In the Interest of J.C.W. et al., children.
• Court: Georgia Court of Appeals

318 Ga.App. 772

734 S.E.2d 781

In the Interest of J.C.W. et al., children.

No. A12A1341.

Court of Appeals of Georgia.

Nov. 27, 2012.

Brian Maurice Condon, Jodie Ann Wasson, Willie Jake Lovett Jr., for Appellants.

Samuel S. Olens, Atty. Gen., Shalen S. Nelson, Senior Asst. Atty. Gen., Elizabeth M. Williamson, Penny Hannah, Asst. Attys. Gen., Atlanta, Robert Edward Hall, Roswell, Janine Marie Carson, Alixe Elisabeth Steinmetz, for Appellee.

Aimee E. Stowe, Stephen M. Reba, James B. Outman, amici curiae.

BOGGS, Judge.

In the third appearance of these parties before this court,¹ three-year-old twins, J.C.W. and J.C.W., appeal from a juvenile court order awarding long-term custody until their 18th birthday to their maternal aunt and uncle. The children assert that this court should reverse the juvenile court because (1) it lacked jurisdiction; (2) it wrongly concluded that the Juvenile Code establishes a preference for relative placement; (3) it failed to find that termination of parental rights and adoption by the foster parents was in the twins' best interest; (4) it failed to conduct a de novo rehearing; (5) it erred by finding the existence of a conditional stipulation to nonreunification and placement; (6) it abused its discretion by ruling the foster mother's testimony inadmissible; and (7) it erroneously entered its order nunc pro tunc. For the reasons explained below, we vacate the juvenile court's order with direction.

Juvenile Court Proceedings²

The record shows the twins were born on February 10, 2009, and their older brother Ja. C.W. was born on October 12, 2007. On March 21, 2009, the juvenile court entered an order authorizing shelter care for the three children based upon the risk of "inappropriate or no supervision." The following day, all three children were placed in the care of one foster family working with a private agency, Giving Children a Chance of Georgia ("GCAC"). At the time of the placement, the foster parents did not intend to adopt any children.

Less than a month later, the foster parents determined that caring for three young children was "too much" for them to handle. The twins required constant care and the older 17–month–old sibling "had some disciplinary issues." The foster mother testified that after a meeting with the Department of Family and Children Services ("DFACS"), she believed all three children would be moved to another foster family. A few days later, however, she learned that DFACS had decided to leave the twins in her care and place the older sibling with another foster family. On April 13, 2009, the older sibling was placed in a different foster home based upon a determination by DFACS that "he needed individual attention to address his behaviors and perceived developmental delays."

On July 9, 2009, the juvenile court entered an order finding all three children deprived based upon the following: the mother's lack of adequate housing and income; the mother's mental health issues for which therapy and treatment had been recommended in April 2009; the female twin's failure to thrive in the mother's care; a report that the female twin fell from the mother's lap resulting in visible physical injuries; and the mother's history with DFACS in another county with regard to the oldest child. The juvenile court also scheduled a permanency hearing to take place six months later on February 1, 2010. Throughout the remainder of 2009 and early 2010, the mother worked on her case plan and the permanency plan contemplated reunification with the mother. During this time, the mother did not provide DFACS with complete information about relatives who might be available for placement of the children.

The record shows that in February 2010, the mother provided DFACS with the names of eight brothers for the first time. DFACS also changed the case plan to concurrent goals of reunification or placement with fit and willing relatives. Based upon an objection by the children's attorney, the juvenile court denied DFACS' request to change the permanency plan to include placement with a fit and willing relative in favor of "a concurrent plan of reunification and adoption."

Although the foster parents expressed an interest in adopting the twins by March 2010, they also suggested to DFACS three months later that friends who lived close to them might also want to adopt the twins. The friends, like the foster parents, did not wish to adopt the twins' older sibling.

On August 10, 2010, DFACS filed a petition in juvenile court to terminate parental rights as to all three children. On August 13, 2010, a meeting was held between the two sets of foster parents for all three children, a DFACS representative, and the mother's brother and his wife to discuss transitional visits with the aunt and uncle. Based upon information included in a court report prepared for a permanency review hearing held on September 23, 2010, friction developed between both sets of foster parents and the aunt and uncle with regard to visitation.³ In mid-October, all three children began visiting with their aunt and uncle, beginning with two-hour visits, progressing into an all-day visit, an overnight visit, and two or three weekend visits in a row.

On November 5, 2010, DFACS changed the placement of the twins' older brother from foster care to the aunt and uncle because their home had been approved for placement and transitional visits were going well. On November 15, 2010, the twins' foster parents moved to intervene in the pending juvenile court action and also requested that they be awarded custody following any termination of parental rights.

The next day, on November 16, 2010, DFACS filed a motion for non-reunification asserting that "further efforts to reunite the children with their parents would be detrimental in that there exists parental misconduct and inability relative to the [three] children within the meaning of OCGA § 15–11–94(b)(4)." With regard to the mother, the motion alleged that she had failed to achieve the goals in her case plan because she was without suitable housing, had not completed parenting classes, and did not have adequate financial resources to care for the children. The motion also stated that "[t]ermination of parental rights is not in the best interest of the children inasmuch as the permanency plan is placement with a fit and willing relative, to wit: [the] maternal uncle and aunt." DFACS also filed contemporaneously a motion to modify custody of the three children to the aunt and uncle.

The petition for termination of parental rights, the motion for non-reunification, and the motion to modify custody were all scheduled for a hearing on the same day, November 18, 2010.⁴ At the beginning of the hearing, the mother's attorney waived notice and service of the motions for non-reunification and to modify custody. She also stated that the mother had "no objection to the motion for non-reunification" and would stipulate to the modification of custody to her brother and his wife. The trial court granted the motion for non-reunification and initially granted the motion to modify custody. When the children's counsel objected, the juvenile judge agreed to hear evidence before ruling on the motion to modify custody.

The children's attorney called two witnesses: the foster mother and the mother's brother. The foster mother testified that she was interested in adopting the twins, but was not interested in having their older brother back in her home. She explained that her desire to adopt the twins developed over time as she and her husband became "more attached to them and felt that it was the right thing to do." She believed that the children had been abandoned by their family because the mother's visitations were sparse and "[t]here was no other family visitation at all. We thought there was going to be some family come through around April–May, and then we didn't hear anything else again until August." Based on their perception that no family was coming forward, they determined that "if we were going to keep going, we might as well adopt."

The foster mother admitted that she had been recently supportive of her friends adopting the twins. She also acknowledged that she told a DFACS case-worker in October 2010 that she "did not like the relatives, that she did not want the [female twin] to be molested, put out on the street and get pregnant."⁵

The foster mother testified that the twins call her and her husband "momma" and "dadda." She explained that when the twins "get home from a visit or anything, they just—they're so happy to see and call us momma and pat us on the face, and a lot of times they'll just say, Are we home, and just—you know, it's just—you can feel the attachment and love they have for us." She also testified that the twins "are as nutty about [her three children, ages 21, 18, and 16] as they are us .... [the male twin] talks about his Bobby all the time, which is my son, ... and my daughter Bagney, as they call her, they Skype on the computer every night, and sing songs and play games, and play peekaboo, and whatever you can do on Skype every evening." She acknowledged that "some bond" existed between the twins and their older brother, but she did not believe "it's any more of a bond than they have with any kid at the day care center."

The mother's brother who sought custody testified that he and his wife have been married for 26 years and raised four children. Three of them were in college, including one at the United States Air Force Academy, while his oldest one is married. The uncle works as a high school custodian and his wife works as head secretary at an elementary school.

The uncle testified that he was notified that the children were in DFACS custody in April 2010. Although he testified that he was "very close" with the mother and knew "what was going on," he also explained that "no one really disclosed her personal business." He explained that he and his wife "were always there for [the mo...