In re Interest of B. M. R.

• Decision Date: 04 May 2022
• Docket Number: A22A0092
• Citation: 872 S.E.2d 882
• Parties: In the INTEREST OF B. M. R., a child.
• Court: Georgia Court of Appeals

872 S.E.2d 882

In the INTEREST OF B. M. R., a child.

A22A0092

Court of Appeals of Georgia.

May 4, 2022

Joseph Benjamin Williams, Macon, for Appellant.

Calandra Almond Harps, Christopher Michael Carr, Atlanta, Jennifer Thompson McComas, Vidalia, Shalen S. Nelson, for Appellee.

Hodges, Judge.

In an "Order of Adjudication and Temporary Disposition," the Juvenile Court of Toombs County adjudicated 9-year-old B. M. R. dependent, dissolved her paternal grandmother's temporary guardianship, and awarded B. M. R.’s temporary custody to the Georgia Department of Family and Children Services ("DFCS"). B. M. R.’s paternal grandmother ("Grandmother") appeals from the juvenile court's order, arguing that the evidence did not support a finding that terminating her guardianship was in B. M. R.’s best interest. Finding no error, we affirm.

Viewed in a light most favorable to the juvenile court's judgment,¹ the record reveals that Grandmother had custody of B. M. R. from the time she was nine days old; at the time of the hearing in July 2021, B. M. R. was 9 years old.² Between 2017 and 2020, B. M. R. transferred between two local school districts six times and had a pattern of truancy. For example, on the six occasions B. M. R. registered at one elementary school, she withdrew each time between one day and four months later. In an enrollment period that began March 19, 2018, the school withdrew B. M. R. on April 26, 2018 due to lack of attendance. During an early 2020 enrollment period, B. M. R. had 20 unexcused absences. Throughout this three-year period, schools attempted to reach Grandmother on several occasions, both by telephone and in person, with only limited success. As early as December 2019, school officials discussed B. M. R.’s academic struggles with Grandmother, noting that B. M. R. demonstrated deficits in reading, reading comprehension, and writing; was behind in completing assignments and homework; and was below grade level in mathematics. A school social worker confirmed that B. M. R.’s excessive absences "most definitely" had "a negative effect on [B. M. R.’s] ability to learn," and a second counselor agreed that B. M. R.’s constant relocation "had a negative impact upon her academic performance[.]"

In September 2020, DFCS received a report from B. M. R.’s school detailing her chronic absenteeism and resulting academic struggles. In particular, despite being enrolled in remote learning, B. M. R. had only completed one assignment and had not logged in for class in six weeks, missing 29 days of school. By October 2020, B. M. R. had returned to in-person classes, but continued to accumulate absences.

As a result of her ongoing excessive absences, B. M. R. had to repeat kindergarten, struggled with mathematics and with reading at a kindergarten level, and was in danger of repeating second grade. Moreover, B. M. R. also had diagnosed mental illnesses for which she received medication but no counseling.

During the latter half of 2020, B. M. R. moved at least six times. Compounding B. M. R.’s housing instability and resulting truancy, Grandmother suffered from bipolar disorder

with psychotic features, PTSD, and anxiety disorder which compromised her parental abilities. Grandmother received medication assistance, but did not obtain any ongoing counseling services.

The State filed a dependency petition to terminate Grandmother's guardianship due to her failure to meet B. M. R.’s educational needs, provide B. M. R. with stable housing, or to take advantage of counseling services to address her mental illnesses. Following her placement with a paternal aunt in late October 2020 to the time of the February 2021 hearing, B. M. R.’s attendance and academic performance improved. A DFCS case worker testified that, in view of Grandmother's neglect of B. M. R.’s educational and stable housing needs, it would be harmful to return B. M. R. to Grandmother's care. Both B. M. R.’s guardian ad litem and a CASA representative agreed that B. M. R. should remain with her aunt, with Grandmother allowed supervised visitation to help calm B. M. R.’s separation anxiety.

The juvenile court found that B. M. R. had been "abused or neglected and [was] in need of the protection of the Court[,]" that B. M. R.’s continued placement with Grandmother would be contrary to B. M. R.’s welfare and would not be in B. M. R.’s best interest, that Grandmother could exercise supervised visitation with B. M. R., and that while B. M. R.’s father could also exercise supervised visitation, B. M. R.’s placement with him would not be in her best interest at that time due to his domestic violence and incarceration concerns.³

As a result, the juvenile court adjudicated B. M. R. dependent, dissolved Grandmother's temporary guardianship, and awarded temporary custody of B. M. R. to DFCS. The juvenile court also implemented a permanency plan with the goal of reunifying B. M. R. and her father. This appeal followed.

In a single enumeration of error, Grandmother contends that there was insufficient evidence to demonstrate that terminating her guardianship over B. M. R. was in B. M. R.’s best interest. We disagree.

Georgia law provides that "the juvenile court may place a minor child in the protective custody of the Department where the State shows, by clear and convincing evidence, that the child is a dependent child.^{[4 ]} ... The Juvenile Code defines ‘dependent child,’ in relevant part, as a child who has been abused or neglected and is in need of the protection of the court." (Citations and punctuation omitted.) In the Interest of M. S. , 352 Ga. App. 249, 257, 834 S.E.2d 343 (2019). "Neglect" is defined, in relevant part, as "[t]he failure to provide proper parental care or control, subsistence, education as required by law , or other care or control necessary for a child's physical, mental, or emotional health or] morals[.]" (Emphasis supplied.) OCGA § 15-11-2 (48) (A). Of note, "[t]here is no statutory requirement ... that specific harm must support a finding that a child is [dependent] because of the child's failure to receive the education required by law." In the Interest of J. C. , 264 Ga. App. 598, 600 (1), 591 S.E.2d 475 (2003). However,

even a temporary loss of custody is not authorized unless there is clear and convincing evidence that the dependency resulted from unfitness on the part of the parent [or guardian], 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 incapability to care for the child.

(Citation omitted.) In the Interest of M. S. , 352 Ga. App. at 258, 834 S.E.2d 343. Therefore, "[p]arental [or guardian] unfitness, like dependency, ... must be proved by clear and convincing evidence." (Citation and punctuation omitted.) Id. ; see also Boddie v. Daniels , 288 Ga. 143, 145, 702 S.E.2d 172 (2010) (noting "the common attributes of custody and guardianship"). Moreover,

in deciding a petition to terminate [a] temporary guardianship ..., a juvenile court must determine whether there is clear and convincing evidence that termination would cause the child either ‘physical harm or significant, long-term emotional harm.’ And in making this determination, the court must bear in mind that the burden of coming forward with clear and convincing evidence is on the party opposing the termination.

(Citations and punctuation omitted.) In the Interest of K. M. , 344 Ga. App. 838, 846-847 (1), 811 S.E.2d 505 (2018) ; see also Boddie , 288 Ga. at 146, 702 S.E.2d 172 (holding that the "best interest" standard "must be narrowly interpreted to mean that the third party must prove by clear and convincing evidence that the child will suffer physical or emotional harm ... by terminating the temporary guardianship").

To these ends, OCGA § 15-11-26 provides that

[w]henever a best interests determination is required, the court shall consider and evaluate all of the factors affecting the best interests of the child in the context of such child's age and developmental needs. Such factors shall include:

(1) The physical safety and welfare of such child, including food,

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