In re Interest of J.C., A15A1144.

• Decision Date: 16 November 2015
• Docket Number: No. A15A1144.,A15A1144.
• Citation: 779 S.E.2d 734,334 Ga.App. 526
• Parties: In the Interest of J.C., a child.
• Court: Georgia Court of Appeals

334 Ga.App. 526

779 S.E.2d 734

In the Interest of J.C., a child.

No. A15A1144.

Court of Appeals of Georgia.

Nov. 16, 2015.

Linda B. Taylor, Newnan, Jacqueline Couturier Cauble, Calandra Almond Harps, Samuel S. Olens, Shalen S. Nelson, for J.C., a child.

McFADDEN, Judge.

The mother of J.C. appeals from the juvenile court's March 5, 2014 order transferring temporary legal custody of the child, then one-and-a-half years old, from the mother to the child's aunt. Because there was not clear and convincing evidence that at the time of the transfer order the child was presently deprived due to the mother's parental unfitness, we reverse.

Georgia's former juvenile code applies to this case because it was commenced in 2013. See generally In the Interest of G.R.B., 330 Ga.App. 693 n. 1, 769 S.E.2d 119 (2015) (explaining that new juvenile code applies to juvenile proceedings commenced on and after January 1, 2014, and describing changes made by new juvenile code pertaining to deprivation proceedings). The former juvenile code authorized a juvenile court to transfer temporary legal custody of a child from a parent to one of several enumerated persons or entities if the child was found to be a deprived child. Former OCGA § 15–11–55(a)(2)(A).

A "deprived child" is a child who is "without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health or morals[.]" Former OCGA § 15–11–2(8)(A). "[A]n order temporarily transferring custody of a child based on alleged deprivation must be grounded upon a finding that the child is at the present time a deprived child, and a finding of parental unfitness is essential to support an adjudication of present deprivation." In the Interest of G.S., 279 Ga.App. 89, 92, 630 S.E.2d 607 (2006) (citations and punctuation omitted; emphasis in original); accord In re J.C.P., 167 Ga.App. 572, 575–576, 307 S.E.2d 1 (1983) (on motion for reconsideration). In other words,

[t]o authorize even a loss of temporary custody by a child's parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child.

In the Interest of S.S., 232 Ga.App. 287, 289, 501 S.E.2d 618 (1998) (citation and punctuation omitted).

1. Facts and procedural history.

Keeping the above standards in mind, we turn to the evidence, which we view "in the light most favorable to the juvenile court's judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived." In the Interest of G.S., 279 Ga.App. at 91, 630 S.E.2d 607 (citation and punctuation omitted).

Viewed most favorably to the juvenile court's judgment, the evidence shows that J.C. was born in Baltimore on September 1, 2012, when the mother was 23 years old. Before J.C.'s birth, the mother had lived with her own mother, then moved to Baltimore where she lived at various times with her stepfather (who abused her), with a former boyfriend, with female friends, and on the streets working as a prostitute. At the time of J.C.'s birth, the mother lived in a homeless shelter. She did not know with certainty the identity of J.C.'s father but believed he could have been her stepfather.

In November 2012, the mother and J.C. moved into the house of the mother's sister ("the aunt") in Georgia. While living with the aunt, the mother engaged in some cutting behavior. Sometimes she would take J.C. across the street to spend time with neighbors whom the aunt described as "wrong people" because they fought and drank. Occasionally the aunt would see the mother drink alcohol, but she testified that the mother did not drink much. However, the mother smoked marijuana and at some point, at the mother's request, the aunt provided the mother with a urine specimen for a drug test. The mother did not get along with the aunt and planned to move back in with her own mother, but in January 2013 her mother passed away.

In February 2013, the mother and the aunt got into a verbal argument, leading the mother to pack her and J.C.'s belongings and leave the house to stay with friends. The mother had no transportation, the weather was very cold, and the aunt did not know where the mother was going. The Department of Family and Children's Services ("DFCS") became involved; the appellate record contains sparse details on this point but does contain an unappealed deprivation order in which the juvenile court pertinently found

that [DFCS] received allegations that the child was being neglected due to the mother's mental instability. The mother [had] recently attempted to leave [the aunt's] home in the rain while holding the child after an argument with [the aunt]. DFCS and law enforcement arrived at the residence and the mother was belligerent and verbally combative.... The mother admits to cutting herself. She reports that she yells at the baby but has never physically harmed him.

On March 3, 2013, the mother and DFCS agreed to an "impending danger safety plan" that did not articulate any specific safety threats but stated that J.C. would live with the aunt and the mother would have supervised visits with him at the aunt's home.

At a May 14, 2013, adjudicatory hearing the mother, acting pro se, stipulated that J.C. was deprived.¹ (The appellate record does not contain a transcript of that hearing.) On June 6, 2013, the juvenile court entered the above-mentioned unappealed deprivation order that adjudicated J.C. deprived based on four causes: "Perpetration of Domestic Violence"; "Neglect/Lack of Supervision"; "Neglect/Inadequate Housing"; and "Mental/Physical Impairment of Parent." The juvenile court ruled that the mother would retain legal custody and control of J.C. provided that she "comply with the family plan devised by [DFCS² ] and follow all recommendations and referrals to service providers, including, but not limited to: counseling recommended by [a particular service provider], parenting classes, clean and suitable housing and psychiatric evaluation[.]" The juvenile court held that the aunt would have physical custody of J.C. "until such time as the mother complies with the terms of [the juvenile court's order]" and that "[p]hysical custody of the child shall not return to the mother without prior order of this [c]ourt." The order further stated that it would "expire on May 14, 2014, unless sooner terminated by [o]rder of this [c]ourt."

The mother did not appeal from this deprivation ruling. We note, however, that the juvenile court lacked the authority to award physical custody of the child to a person other than the child's legal custodian. See In the Interest of A.N., 281 Ga. 58, 59–61, 636 S.E.2d 496 (2006) (juvenile court addressing issue of temporary custody was not authorized to impose upon grant of legal custody a condition that physical custody be given to a party of the court's choosing, because the concept of legal custody includes the right to determine where and with whom child shall live); In re R.R.M.R., 169 Ga.App. 373, 374 –375(1), 312 S.E.2d 832 (1983) (juvenile court addressing issue of temporary custody was not authorized to grant one person or agency legal custody of child and another person or agency physical custody of child).

Consequently, in the summer of 2013 J.C. remained living with the aunt and initially the mother lived in her truck. She briefly lived with a pimp but denied prostituting for him. She then moved into an agency-operated shelter. The mother began parenting classes and obtained employment, but in August 2013 she sustained an injury that prevented her from working.

On August 16, 2013, a licensed psychologist performed a four-hour psychological/parental fitness evaluation on the mother. The mother was very candid in their interview. She related that she was the victim of childhood sexual abuse, had a history of prostitution, and had a history of difficult relationships with abusive partners. She told the psychologist that she smoked marijuana and consumed two alcoholic drinks a day. She described a criminal history (a burglary conviction with a probated sentence and first offender status) and a history of cutting behavior as a teenager that she resumed after the argument with the aunt.

The mother told the psychologist that she had completed parenting classes and that she had begun anger management classes but had not returned because she did not like the others in the class and because the leader had said she did not need the classes. The mother appeared to the psychologist to be amenable to therapy and making an effort with it.

The psychologist administered several tests to the mother. These tests reflected that she had an IQ on the lower end of average but not low enough to mentally impair her and that she had a high probability for substance abuse and self-medication. She scored high on tests for trauma, anxiety, depression, and suicidal ideation. Her score on a child abuse potential inventory reflected that she had personality characteristics in common with "people who have typically abused a child." She scored low on an inventory of parenting aspects, and although she had a reasonable understanding of child rearing and parenting principles, the mother's expressed intention of using corporal punishment rather than time-outs to discipline J.C. in the future concerned the psychologist, in light of her other test scores.

Based on his interview and the test results, the psychologist diagnosed the mother with various mental disorders that, in his opinion, affected her functioning and required immediate treatment. He recommended that J.C. not be returned to his mother's care and that she have only supervised contact with him until a therapist deemed her ready for unsupervised...