IN RE JWH, No. A00A1190
| Decision Date | 04 August 2000 |
| Docket Number | No. A00A1332., No. A00A1190 |
| Citation | 245 Ga. App. 468,538 S.E.2d 112 |
| Parties | In the Interest of J.W.H., a child (Two Cases). |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
McCamy, Phillips, Tuggle & Fordham, David L. Host, Charles L. Daniel III, Dalton, for appellant.
Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Waycaster, Johnson, Morris & Dean, Cynthia N. Johnson, Dalton, Karen L. Webb, Jerry W. Moncus, Rocky Face, for appellee. MILLER, Judge.
The issue on appeal in Case No. A00A1190 is whether the court erred in extending the State's custody of a child where competent evidence showed that the child was deprived, the parents were not meeting their reunification plan goals, and the parents had recently surrendered their parental rights to the foster parents on condition that the foster parents be allowed to adopt the child. We hold the court did not err and affirm.
The issue on appeal in Case No. A00A1332 is whether subsequent evidence sufficed to sustain the later termination of the parents' rights to the child. We hold it did and affirm.
Within weeks of J.W.H.'s birth, the Department of Family & Children Services took him into custody. His parents later consented to a deprivation order on May 18, 1999, that found the infant was failing to thrive, i.e., the infant was not being adequately fed and was in a life-threatening condition. They did not appeal this order. The purposes of the order were to place the deprived child in a nonthreatening environment for his safety and well-being and to allow the parents six months to work intensively with DFACS to achieve reunification.
Three months later in August the court reviewed the child's progress and determined that DFACS's custody should continue. Citing the parents' failure to abide by the goals of the reunification plan, DFACS in September petitioned the court to extend DFACS's custody of the child for an additional year. Following a hearing on November 16, the court extended DFACS's custody by one year, which order the father appeals in Case No. A00A1190. Based on a petition to terminate filed November 10, the court held a hearing in December and terminated the parents' rights to the child, which order the father appeals in Case No. A00A1332.
Meanwhile, six days after the citizens review panel recommended in October termination of parental rights, the child's natural parents surrendered to the foster parents their parental rights to J.W.H. on condition that the foster parents be allowed to adopt J.W.H. The foster parents immediately petitioned to adopt the child, which petition is pending. DFACS subsequently placed the child with a second foster family residing in a different county, where he is thriving.
1. In his appeal of the custody extension order, the father first enumerates as error that the juvenile court failed to make a finding under OCGA § 15-11-41(o)(3) that the extension was necessary to accomplish the purposes of the deprivation order. This enumeration is without merit.
The purposes of the deprivation order were to place the deprived child in a safe, secure environment for his well-being and to give the natural parents six months in which to work intensively with DFACS to meet certain goals to effect reunification. The court found that if placed back with the parents the child would still be deprived, that the parents could not provide a safe, secure environment, and that the parents had failed to achieve the reunification goals. Construed in favor of the decision, clear and convincing evidence supported the findings.1
(a) Not Achieving Reunification Plan Goals. With regard to the six goals of the reunification plan, a rational trier of fact could have found clear and convincing evidence that the father was not meeting those goals. First, the father had not attended any parenting classes as required by the plan, despite being offered those classes free of charge. Second, the father was not current on child support payments required by the plan. Third, the reunification plan required the parents to maintain a stable residence for six months, but during the first three months they had five different residences. Fourth, neither parent had visited J.W.H. for over a month prior to the hearing, even though they had been invited to do so if they cleared up some lice or nit infestation problems in their hair. Fifth, the father did not comply with the plan goal of cooperating with DFACS. Sixth, he did not receive recommended family counseling. This evidence sustains the court's finding that the father was not achieving the six reunification plan goals.
(b) Child Was Deprived and Natural Parents Could Not Provide Safe, Secure Environment. Regarding the purpose of the deprivation order to provide the deprived child with a safe, secure environment for his well-being, the evidence at the hearing also showed that the father had a propensity for violence, having (i) threatened to bring a gun to a parenting class, (ii) threatened the foster parents as well as their daughter, (iii) threatened others associated with the child, and (iv) threatened to simply take J.W.H. and leave. He told the foster parents that he was a member of a violent gang and even wore a blue bandanna into the courtroom reflecting such membership. He had not worked in two years and was incapable of identifying his disability. Just a month before the hearing the father and mother considered separation and divorce. The father conceded that he had not given a full effort to care for J.W.H. and that J.W.H. was thriving in foster care. The first foster mother who had dealt with the natural father as well as the DFACS representatives concluded that J.W.H. should not be returned to his natural parents' custody.
In his appellate brief, the father focuses on his and the mother's surrender of parental rights to the first foster parents as evidence that if the custody order were not extended, custody would then not revert to him but to the foster parents, who all parties agreed had provided good care to J.W.H. He argues that since the extension of the order was unnecessary to provide J.W.H. with a safe, secure environment (the purpose of the custody order), OCGA § 15-11-41(o)(3) disallowed the extension of the custody order.
The father's argument fails for two reasons. First, the juvenile court specifically found that the surrender of rights to the foster parents for adoptive purposes2 was a collusive attempt to bypass the scheduled hearing on the termination of parental rights. Evidence supported this finding, as the father had continuously complained of the care provided by the foster parents until the citizens review panel recommended termination of parental rights. Six days after this recommendation the father and mother suddenly surrendered their parental rights to the first foster parents. If the court finds "that the proposed adoption was merely a subterfuge to thwart the apprehended court-ordered termination of parental rights, nothing would preclude the court from proceeding with the termination-of-parental-rights hearing...."3 Similarly, a court may continue considering the extension of the order granting custody to DFACS.
Second, the surrenders were conditional on the first foster parents adopting J.W.H. If the adoption were unsuccessful, the surrenders required that J.W.H. be returned to the natural parents. As the court found that this adoption was unlikely,4 it could hardly assume that allowing the DFACS custody order to expire would not result in the child eventually being sent back to the natural parents.
Clear and convincing evidence supported the trial court's findings underlying the order to extend.
2. Citing Edgar v. Shave,5 the father complains that the juvenile court had no authority to make a finding that it would not be in the child's best interest to be adopted by any family in that county, including the first foster parents. But this finding was material to predicting the success of the pending adoption petition, which was the condition on which the surrenders to the foster parents depended. Moreover, the foster parents sought to intervene in the legal proceeding. The juvenile court did not exceed its jurisdiction by discussing the likely success of the foster parents' adoption petition.
3. The third enumeration of error assumes that the extension order approves DFACS's plan to end reunification services. The order does not purport to do so, nor does DFACS argue that it was so intended. Thus, this enumeration is without merit.
4. The fourth enumeration of error contends that clear and convincing evidence does not support various findings of the juvenile court. As a rational trier of fact could have found that clear and convincing evidence supported the key findings referenced in Division 1 above, we need not address each of the other secondary findings contested by the father.
When the same court a month later held a hearing on DFACS's petition to terminate the parents' rights, much of the evidence was repeated regarding the lack of a stable residence, the threatened divorce, the father's failure to cooperate with DFACS, and the parents' failure to visit the child. Additional evidence showed that since the November 16 hearing (i) the parents had made no progress in meeting the plan goals, (ii) they had made no attempts to verify that they were free of head lice or nits so they could visit the child, (iii) the father still failed to attend parenting classes, and (iv) the parents had paid no child support. The parents were constantly arguing and in conflict, the father did not have the patience to deal with a child and refused to accept responsibility for any wrongdoing or to acknowledge any parenting deficiencies, and the father conceded he...
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