In re J.E.
| Decision Date | 30 March 2011 |
| Docket Number | No. A10A2363.,A10A2363. |
| Citation | 309 Ga.App. 51,711 S.E.2d 5 |
| Parties | In the Interest of J.E., a child. |
| Court | Georgia Court of Appeals |
Lisa Lott, San Jose, CA, for appellant.
Thurbert E. Baker, Atty. Gen., Shalen S. Nelson, Sr. Asst. Atty. Gen., Penny Hannah, Asst. Atty. Gen., Kathryn A. Pope, Anniston, AL, for appellee.
On appeal from a juvenile court's order terminating a mother's parental rights as to her child, J.E., the mother argues that the evidence was insufficient in that the record did not show that the child's state of deprivation was likely to continue or that any continued deprivation would likely cause serious harm. See OCGA § 15–11–94(b)(4)(A)(iii), (iv). The mother also argues that the trial court failed to take account of the positive relationship between her and the child. We disagree with these contentions and therefore affirm.
(Citations and punctuation omitted.) In the Interest of R.N., 224 Ga.App. 202, 480 S.E.2d 243 (1997).
So viewed, the record shows that on September 27, 2006, five days after J.E. was born, the Athens–Clarke County Department of Family and Children Services ("the Department") filed a complaint alleging that J.E.'s mother, who was homeless at the time, had used cocaine throughout her pregnancy and to induce labor, and that both mother and child had tested positive for cocaine at the child's birth. In October 2006, the Department filed a deprivation petition. After a hearing at which the mother stipulated to a finding of deprivation, the court awarded custody of J.E. to the Department. In March 2007, the juvenile court adopted the Department's case plan, which required the mother to secure steady employment and housing, to attend parenting classes, to undergo a psychological evaluation, to visit J.E. twice weekly, to complete a drug-treatment program including random drug screening, and to remain drug- and alcohol-free for six months. A complaint for child support was filed more than a year later, but was not served on the mother because she could not be located. The mother has never paid any child support.
In May 2007, the juvenile court reviewed the case and found that the mother had failed to find employment or housing, that she had dropped out of drug treatment within a month, and that she tested positive for cocaine in five out of six drug screens. In September 2007, the mother pled guilty to a shoplifting charge and was sentenced to 60 days in jail, 12 months probation, and 20 hours of community service, which was to be suspended if she successfully completed a rehabilitation program. After the mother failed to report to her probation officer, however, the state court issued an order to show cause why sentence should not be imposed.
The juvenile court again reviewed the case in June 2008, at which time the mother again consented to a finding of deprivation. Although the mother was in compliance with the drug-treatment program and had tested negative for drugs since January 2008, the juvenile court found that she had not made enough progress with her case plan, including drug treatment and housing, to warrant a change in custody.
The juvenile court held another status hearing on September 12, 2008. With the support of her case manager, J.E.'s mother had returned to Athens and was living in the residential component of an outpatient drug-treatment facility, Advantage Behavior Health Systems Women's Services ("Women's Services"), in order to be closer to J.E. The case plan incorporated into the juvenile court's order indicated that the mother had continued to have regular visitation with J.E. The case plan also noted, however, that the mother was not employed and had no suitable housing. The court again ordered that J.E. remain in her foster home.
In October 2008, the residential component of Women's Services lost its funding and shut its doors, leaving the mother without shelter. With the support of her case manager, the mother moved into a transitional living facility for recovering addicts called Freedom From Bondage ("FFB"), which required that she obtain employment within two weeks of moving in. FFB's policy further required that the mother pay a $200 entry fee and rent of $100 a week, attend two twelve-step recovery meetings a week, and abide by a curfew. After one month, the mother was asked to leave FFB because the only employment she was able to find required her to work evening hours in violation of the curfew and because she was unable to pay the entry fee and rent.
From mid-November 2008 through March 2009, J.E.'s mother lived in and out of homeless shelters and drifted between friends' apartments. Although she worked briefly as a cashier in a grocery store, she was terminated after the balance in her cash register was short for two consecutive days. She was asked to submit to three drug screens but failed to do so.
In March 2009, the mother found employment at a fast-food restaurant but was laid off the following month for absenteeism. In April 2009, as she submitted strands of her hair for a drug test, she confessed to her case manager that she had used cocaine and marijuana since being out of treatment, and as recently as two weeks prior to the test. The test results confirmed the presence of cocaine.
On June 29, 2009, the Department filed a petition for termination of the mother's parental rights in J.E. The hearing on the petition was held on September 23 and October 23 of that year.
A psychologist had assessed the mother in February 2007, at which time she told him that although she was in outpatient rehabilitation, she needed an inpatient program because it would restrict her freedom and thus her risk of relapse
, and that she had been under the influence of drugs during some of her visits to the child. After the mother failed to appear at several scheduled follow-up appointments, she returned for a second session, after which the psychologist concluded that she suffered from cocaine dependence with psychological dependence and that she needed inpatient rather than outpatient treatment.
When asked at the termination hearing about the possibility of relapse in light of the facts that the mother had tested positive for cocaine in April 2009, the psychologist responded: "The single best predictor of future behavior is past behavior, so if we're having an ongoing pattern of drug abuse or drug dependency, the likelihood is to continue." When asked about the mother's failure to obtain a steady job or housing, the psychologist said:
I would answer that similarly. If problems that were present when I first evaluated her continued to be present, ... those are not good prognostic indicators of the likelihood that they will improve in the near future. I'm not saying that they won't, just saying that they are not prognostically positive.
Under cross-examination, the psychologist admitted both the relevance of the mother's present bond with J.E., whom he had never met, and the possibility that the mother could stay sober permanently. But he also confirmed his judgment that the mother would likely be unable to overcome her drug addiction:
She understands what a good parent is, yet she's not able for some reason, or not willing[,] to make the changes that she prescribes. And so I don't necessarily judge her on it, but ... it sheds a light on how deep her problem [s] with drugs really are. And that shows to me that the April incident of '09 outweighs today being sober, although today being sober is a good sign and I like to see that.
The guardian ad litem filed her report on the day before the second session of the termination hearing. The guardian reported inter alia that the mother had told her outpatient provider that she had smoked marijuana and inhaled at least a gram of cocaine every day from January through mid-May 2009 and that J.E. was more affectionate with her foster mother than with her natural mother. The guardian concluded that the mother's parental rights in J.E. should be terminated.
The addiction counselor at the mother's inpatient service testified that during her residency, the mother had violated a number of policies designed to keep the residents drug-free. In August 2009, only six weeks before the termination hearing, the mother visited an emergency room for a heart complaint, called a man she knew to be a drug dealer to meet her there, and obtained $20 from him. During the same visit to the hospital, the mother complained of neck pain and, without authorization, obtained a prescription, never filled, for muscle relaxers.
Although there was some evidence that J.E. had previously had difficulties with her mother's visits, the juvenile court heard extensive testimony concerning the positive present relationship between the two, as well as the favorable conditions in the child's foster home, including that the foster mother wished to adopt her permanently. The juvenile court then found as follows:
In spite of inconsistency in many areas of the mother's life, she has visited regularly with her child, and they have a positive relationship. [The case manager] testified that the mother and the child interact appropriately and in a healthy way. Two different times during this case, [however, the case manager] was on the verge of requesting overnight visits, but each time, [he] was unable to follow through with his plans because of the mother's circumstances. The mother is currently unable to provide the necessities of life for the child. The mother is in treatment for...
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