In re Interest of S.O.C.

• Decision Date: 02 July 2015
• Docket Number: No. A15A0533.,A15A0533.
• Citation: 774 S.E.2d 785,332 Ga.App. 738
• Parties: In the Interest of S.O.C., a child.
• Court: Georgia Court of Appeals

332 Ga.App. 738

774 S.E.2d 785

In the Interest of S.O.C., a child.

No. A15A0533.

Court of Appeals of Georgia.

July 2, 2015.

Irene Serlis, for Appellant.

Samuel S. Olens, Atty. Gen., Franklin Barton Patterson, Asst. Atty. Gen., Shalen S. Nelson, Senior Asst. Atty. Gen., for Appellee.

Opinion

DILLARD, Judge.

The mother of a minor child, S.O.C., appeals from an order of the Juvenile Court of Hall County terminating her parental rights and its subsequent denial of her motion for new trial. Specifically, the mother contends that the court lacked clear and convincing evidence to support its findings that (1) the child was deprived; (2) lack of proper parental care or control caused the deprivation; (3) such cause was likely to continue; and (4) the continued deprivation would cause or was likely to cause serious physical, mental, or emotional harm to the child. Because we find that there was insufficient evidence to support the juvenile court's finding that continued deprivation would cause or was likely to cause harm to the child, we reverse.

Viewed in the light most favorable to the juvenile court's findings,¹ the evidence shows that S.O.C. was born on December 26, 2011, a few weeks premature. At the time of his birth, S.O.C. had marijuana metabolites in his system and he was underweight. Additionally, at that time it was determined that both the mother² and S.O.C. were HIV-positive. As a result, on January 17, 2012, Hall County Department of Family & Children Services (“DFCS”) successfully sought an authorization for shelter care. On January 24, 2012, the mother moved to contest the authorization of shelter care, and on that same day, DFCS filed a deprivation petition. Following a February 10, 2012 hearing, the juvenile court entered an order finding that S.O.C. was deprived based on its conclusion that the mother's marijuana use impaired her ability to care for S.O.C.'s medical needs. Nevertheless, the court returned custody of S.O.C. to his mother subject to several conditions, including that the mother refrain from illegal drug use, attend to S.O.C.'s medical needs, and continue living with her boyfriend, who had stable employment, a stable residence, and wished to raise S.O.C. as his own son.

On May 23, 2012, the juvenile court issued a judicial-review order, finding that the mother had remained drug free and otherwise compliant with her case plan. The court entered a similar order on September 12, 2012, finding that the mother had completed a parenting class, taken S.O.C. to all of his medical appointments, and had remained in the residence she shared with her boyfriend. However, she had missed a recent drug screening, which the court considered to be equivalent to a positive test. In addition, as a result of a substance-abuse assessment, the mother was advised to undergo 17 weeks of substance-abuse treatment. But she disagreed with this assessment and indicated her intention to seek a second opinion.

On January 17, 2013, DFCS filed another deprivation petition, alleging that the mother had tested positive for marijuana in an August 2012 drug screening and that she had missed other screenings and failed to attend the recommended substance-abuse-treatment classes. However, on February 4, 2013, the juvenile court issued an order, stemming from a November 19, 2012 hearing, in which it allowed the mother to keep custody of S.O.C. in light of the fact that she had not failed any additional drug tests since the August screening. But one day later, the court issued an order finding that the mother had tested positive for marijuana in August and September 2012, and warning her that further substance abuse would likely result in the loss of custody of S.O.C.

On April 10, 2013, after a February 18, 2013 hearing, the juvenile court again found S.O.C. to be deprived based on the fact that the mother had failed to complete the substance-abuse-treatment classes, had tested positive for marijuana as recently as December 2012, and had missed several other scheduled drug screenings. However, the court delayed final disposition of S.O.C. to allow the mother to enter the Hall County Family Treatment Court. This order was followed by an order of final disposition on April 24, 2013, which allowed the mother to retain custody of S.O.C. subject to her successful completion of the Family Treatment Court program. But on May 1, 2013, after determining that the mother had tested positive for marijuana in three recent drug screenings (and, therefore, was required to serve a 15–day jail term), the juvenile court entered an order placing custody of S.O.C. with DFCS. At that time, the mother requested that custody be placed with her boyfriend, but the court declined to do so because he had no one to provide child care while he worked. On June 10, 2013, the court entered a final disposition order, again noting that it was placing custody of S.O.C. with DFCS based on the mother's continued marijuana use.

Shortly thereafter, a reunification plan was established. Nevertheless, over the course of the next few months, the mother served short jail terms on at least five separate occasions after either testing positive for marijuana or missing screenings (required by the Family Treatment Court). Consequently, on October 8, 2013, DFCS filed a petition to terminate the mother's parental rights. Initially, the juvenile court scheduled a hearing on the matter for January 3, 2014. But after learning that the mother had been hospitalized since late November 2013, due to pneumonia

and resulting respiratory failure, the court continued the case for several weeks.

On January 24, 2014, the juvenile court held an evidentiary hearing on DFCS's petition to terminate the mother's parental rights. During that hearing, the coordinator for the Family Treatment Court testified that the mother initially enrolled in the program on March 6, 2013, and was eventually discharged on September 4, 2013, for repeated failures to comply with the program's requirements. Specifically, the court found that the mother often missed drug screenings and failed to attend treatment counseling sessions. And as a result of these failures, she was incarcerated on several occasions. Additionally, the mother attempted to forge documents indicating that she had performed the required community service. And although she appeared to genuinely love S.O.C. and had not actually tested positive for marijuana since May 27, 2013, the Family Treatment Court's supervisors ultimately discharged her from the program due to her inability to take responsibility for her actions and her overall dishonesty.

A licensed social worker with the Family Treatment Court also testified that the mother was dishonest and seemed to be in denial regarding her substance-abuse problem. The social worker added that the mother often missed counseling sessions. Finally, the social worker also noted that although it appeared toward the end of her time in the program that the mother had stopped her drug abuse, she still displayed the behavioral signs—primarily dishonesty—of a dependent person.

Additionally, the DFCS caseworker assigned to the mother's case testified that she had stable housing and was employed prior to her hospitalization, but that she had failed to complete other requirements of her reunification plan, including attending drug screenings scheduled after her discharge from the Family Treatment Court and completing additional parenting classes. The caseworker did acknowledge, however, that the mother attended all of S.O.C.'s medical appointments despite no longer having custody of the child. As for S.O.C., the caseworker stated that he had been with his current foster family since November 2013, and was doing quite well.

The foster mother echoed the caseworker's testimony that S.O.C. was doing well since being placed in her family's care on November 2, 2013, and further stated that she and her husband wished to adopt the child. She also testified that she and her husband were very diligent about administering the three medications required to treat S.O.C.'s HIV and attending all of the child's medical appointments. The foster mother added that during one of these appointments, S.O.C. did not want to go to his mother upon seeing her at the clinic and that the child seemed grumpy or withdrawn after the scheduled weekly visits with his mother.

During the hearing, the mother's boyfriend discussed his employment as a restaurant manager and informed the court of his intention to marry the mother and adopt S.O.C., whom he loved and viewed as his own son. He also claimed that he did not tolerate drug abuse and that he had given the mother an ultimatum to cease her use of marijuana, but that despite her past drug use, the mother had always appropriately cared for S.O.C. Additionally, the boyfriend did not think the mother had used drugs since S.O.C.'s birth.

The mother also testified during the hearing, noting that her recent failures to comply with the reunification plan were due to her lengthy hospitalization. And despite her hospitalization, the mother explained that she remained employed and still lived with her boyfriend, whom she planned to marry. She also acknowledged that she had used marijuana for a significant portion of her life, but that she had never neglected S.O.C., and that his health never suffered while he was in her care. Indeed, the mother went on to explain that she had always properly administered his medications and had never missed his medical appointments even though she often did not have reliable transportation.

In support of her testimony, the mother introduced an affidavit of a social worker from the pediatric clinic in Atlanta where S.O.C. receives treatment. In that affidavit, the social worker noted that she had known S.O.C. and the mother since the child's birth and that the mother had always attended his medical appointments and properly administered his medications. In fact, the social worker...