In re Interest of M. C.

• Citation: 365 Ga.App. 398,878 S.E.2d 625
• Decision Date: 20 September 2022
• Docket Number: A22A0655
• Parties: In the INTEREST OF M. C. et al., children (mother).
• Court: United States Court of Appeals (Georgia)

365 Ga.App. 398

878 S.E.2d 625

In the INTEREST OF M. C. et al., children (mother).

A22A0655

Court of Appeals of Georgia.

September 20, 2022

Karimah Boston, for Appellant.

Christopher Michael Carr, Attorney General, Atlanta, Bryan K. Webb, Deputy Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Emily Allen Harris, Mark Brooks, Assistant Attorneys General, for Appellee.

Gobeil, Judge.

The mother appeals from an order of the Fulton County Juvenile Court continuing to find her five minor children, Mq. C., Mi. C., A. M., Z. M., and J. M., dependent and maintaining temporary custody of them with the Fulton County Department of Family and Children Services (the "Department"). On appeal, the mother contends the juvenile court erred in: (1) finding that the Department had proven the children's dependency by clear and convincing evidence; and (2) admitting the Department's court report prepared by a case manager over the mother's objection. For the reasons that follow, we vacate the juvenile court's dependency determination and disposition order and remand the case for further proceedings.

"[O]n appeal from an order finding a child to be a dependent child, we review the juvenile court's finding of dependency in the light most favorable to the lower court's judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child is dependent." In the Interest of S. C. S. , 336 Ga. App. 236, 244-245, 784 S.E.2d 83 (2016). Similarly, when reviewing "an order ... extending temporary custody of the children to [the Department], we construe the evidence in the light most favorable to the juvenile court's findings." In the Interest of A. T. , 309 Ga. App. 822, 822, 711 S.E.2d 382 (2011).

So viewed, the record shows that the mother has five children, Mq. C. (born March 25, 2009), Mi. C. (born August 16, 2011), A. M. (born November 20, 2012), Z. M. (born January 5, 2015), and J. M. (born November 1, 2017). In April 2018, during a medical visit, doctors observed that Mi. C. and Z. M. had injuries consistent with child abuse, including internal injuries and other visible marks and bruises. Both children disclosed that their mother's boyfriend¹ had disciplined them by punching, slapping, and whipping them with wet leather belts. Mq. C., Z. M., and A. M. all had old scars resembling that of a belt and a switch. Law enforcement detained the mother's boyfriend and charged him with cruelty to children and family violence, but he was released on bond a few days later. The Department issued a safety plan prohibiting the boyfriend from having any contact with the children, but the boyfriend returned to live at the home with the mother after he was released on bond. As a result, on April 20, 2018, the juvenile court granted the Department's request for an ex parte emergency order, placing the children in the Department's custody.

On April 30, 2018, the Department filed a dependency petition as to all five children. The petition alleged that the children had sustained injuries that could not be explained by the mother and her boyfriend; the mother had neglected the children by failing to provide them with adequate supervision; and the mother admitted to the use of marijuana in the past. The Department developed case plans for each of the children recommending concurrent reunification and adoption.

After a hearing on June 27, 2018, a transcript of which does not appear in the record, the juvenile court issued an order finding the children dependent because they had been abused or neglected and were in need of protection. Specifically, the court made the following findings: (1) the children had injuries that could not be explained by the mother; (2) the children had physical injuries such as marks and bruises and they disclosed that they had been disciplined by being struck or whipped by the mother's boyfriend with a belt; (3) the mother failed to protect the children from being physically abused by her boyfriend; (4) the mother failed to provide the children with adequate supervision without the Department's assistance; (5) the mother admitted to using marijuana in the past; and (6) the mother had violated the Department's safety plan by allowing her boyfriend back into the house with the children.

After a review hearing on July 30, 2018, the juvenile court transferred temporary legal custody of the children to the Department, and approved the Department's case plans for reunification for each of the children. In an order dated January 15, 2019, the juvenile court noted that the mother had been referred for a parent aide, parenting classes, anger management, domestic violence and substance abuse assessments, and individual therapy. The court acknowledged that the mother has been compliant with parts of her case plan by completing anger management and securing housing and employment. Nevertheless, the court continued: "Although the mother has actively participated in the case plan for reunification and has worked diligently to improve her circumstances, immediate reunification is not feasible because the mother has not completed her case plan for reunification at this time." Because the children remained dependent, the court continued their current placements with the mother having supervised visitation. In subsequent review orders dated February 13, 2019, May 20, 2019, July 12, 2019, and February 14, 2020, the juvenile court continued to find the children dependent and that returning them to the mother's custody was not in their best interest. The juvenile court also denied the mother's motion to return the children to her custody.

At a July 7, 2020 status hearing, the Department sought to introduce as evidence "the Department's Court Report," dated June 30, 2020. The mother's counsel objected because she was not provided access to the records that formed the basis of the report. The court overruled the objection, finding that the report was based on the case manager's own knowledge, who was present and available for cross-examination.

The Department's case manager testified that the present permanency plan for the five children was concurrent reunification, guardianship, and adoption. Before the mother could be reunified with the children, she was required to complete a parental fitness assessment, a domestic violence assessment, individual and family therapy, obtain adequate housing and employment, and complete a substance abuse program. The case manager explained that part of the mother's substance abuse treatment program required her to perform community service hours, but she had failed to complete any of her required hours. Additionally, the mother had only been tested twice for drugs since November 2019 because "they couldn't get in contact with [the mother]" for a few months.

The case manager further testified that all of the children, except for Mq. C.,² were placed with or approved to be placed with either relatives or fictive kin as permanent guardians. The children had been in their placements for over two years and were stable in their current homes. The Department asked that the court move forward with non-reunification with guardianship for the children in their current placements.

The guardian ad litem ("GAL") recommended that the children remain in their current placements with guardianships. She had spoken to the children, who all voiced a desire to remain in their current homes even though they loved their mother. The GAL also opined that based on the length of time that the children had been living in their homes, approximately two years, maintaining the current placements would be the most stabilizing arrangement to achieve a safe and secure environment for the children.

On October 26, 2020, the juvenile court entered an order nunc pro tunc to July 7, 2020, finding that "[t]he children continue to be dependent children as defined in OCGA § 15-11-2 (22) in that they are without proper parental care or control, subsistence, education as required by law, or other care or control necessary for their physical, mental[,] or emotional health or morals." The court highlighted that the mother had completed the parental fitness, psychological, psychiatric, domestic violence, and substance abuse evaluations, as well as secured housing and a job. Although the mother had been participating in an outpatient drug treatment program, she had not been able to attend since the start of the COVID-19 pandemic. Additionally, the children had received services since being placed in the Department's custody as follows: Mq. C. (diagnosed with ADHD) was placed in a therapeutic foster home and participated in therapy, behavioral services, and medication management; Mi. C. and A. M. (both diagnosed with ADHD) received weekly therapy, had 504 education plans, as well as medication management; and Z. M. participated in play therapy, medication management, and was in need of a 504 plan.³

The court explained that it was necessary for the children to continue in their current placements for their safety, and the "placements allow the mother greater access to the children until the children can be transitioned back into her care, and the placements are the guardianship resources." Additionally, the Department did not intend to petition for the termination of the mother's parental rights. The court acknowledged that the mother had "actively participated" in her case plan for reunification and "worked diligently to improve her circumstances." Nevertheless, the court concluded that immediate...