In re K.L.M.

• Decision Date: 15 June 2012
• Docket Number: Nos. A12A0272,A12A0273.,s. A12A0272
• Citation: 316 Ga.App. 246,729 S.E.2d 452,12 FCDR 2020
• Parties: In the Interest of K.L.M. et al., children.
• Court: Georgia Court of Appeals

316 Ga.App. 246

729 S.E.2d 452

12 FCDR 2020

In the Interest of K.L.M. et al., children.

Nos. A12A0272, A12A0273.

Court of Appeals of Georgia.

June 15, 2012.

Matthew Benjamin Bennett, for the Interest of K.L.M.

Warren L. Mixon, Ocilla, Samuel S. Olens, Atlanta, Shalen S. Nelson, for Appellee.

MILLER, Judge.

Following a hearing, the juvenile court terminated the mother's parental rights with respect to her children K.L.M. and K.M.S.¹ WE GRANTED THE MOther's application for discretionary review, and she appeals the juvenile court's order. On appeal, the mother contends that the juvenile court failed to include sufficient findings of fact and conclusions of law to support its decisions, and that the evidence was insufficient to support termination of her parental rights. For the reasons that follow, we vacate the judgments below and remand these cases for entry of properly supported orders based upon the evidence in the case.

In considering the mother's appeal, we view the evidence in the light most favorable to the juvenile court's disposition and determine whether any rational trier of fact could have found by clear and convincing evidence that the mother's right to custody should have been terminated. We neither weigh the evidence nor determine the credibility of any witnesses, but instead defer to the juvenile court's findings of fact.

(Citation omitted.) In the Interest of A.B., 311 Ga.App. 629, 629, 716 S.E.2d 755 (2011).

So viewed, the evidence shows that in approximately 2002, the mother and K.L.M. and K.M.S.'s father, who was a registered sex offender, began living together in Texas. The mother gave birth to K.L.M. in January 2006 and to K.M.S. in February 2007. At some point, the father developed a romantic relationship with another woman, who moved in with the family. During the time that the mother, father, and the father's girlfriend resided together, the mother had a third child, H.H.,² with the father. Upon giving birth to H.H., the mother falsely listed the father's girlfriend as the “mother” on the H.H.'s birth certificate due to the girlfriend's threats of physical violence.

Based upon reports of domestic violence in the residence, the state of Texas initiated proceedings in 2009 to remove the mother's children from her custody. To avoid the Texas authorities, the mother fled Texas and moved to Georgia in March 2009. Upon arriving in Georgia, the mother, K.L.M., and K.M.S. began residing with the mother's sister. The mother's third child, H.H., was left in the custody of the girlfriend.

Shortly thereafter, the Berrien County Department of Family and Children Services (the “Department”) launched an investigation upon receiving a report that the mother fled Texas. Due to sanitation issues, medical neglect, and inadequate housing and clothing, the children were taken into the Department's care. The juvenile court subsequently found the children to be deprived and placed legal custody of the children in the Department.³

The juvenile court issued reunification plans that required the mother to, among other things, secure suitable housing with the assistance of the Department, maintain employment, and end her relationship with the father due to his status as a registered sex offender. The Department found the mother a suitable home and requested that she pay the deposit for utilities since she had steady employment. The mother refused to pay the deposit, claiming that she could not afford it. The Department discovered, however, that the mother had been sending money to the father during this time. The mother continued to reside with her sister and her family, sleeping in the living room.

Although the mother denied having contact with the father, the Department presented evidence that the mother maintained a relationship with him in contravention of the reunification plan. A licensed professional counselor attempted to explain to the mother that the father had manipulated her, but the mother defended him and insisted that their relationship was not abusive. Given these circumstances, the Department initiated a non-reunification plan and filed a petition to terminate the mother's parental rights.

At the hearing on the petition to terminate parental rights, the mother admitted that she had not attempted to obtain custody of H.H. from the father's girlfriend. The Department reported that the mother's living situation with her sister—where the children had lived prior to their removal to foster care—was not suitable for the children because the house was too small for the number of people living in it, and because it had a “really bad odor” emanating from outside the house. It was also revealed that the mother had not paid child support since the children were removed.⁴ The Department opined that the children would be deprived if returned to the mother. When the juvenile court asked the mother to explain why it should believe that she had in fact ended her relationship with the father, the mother merely responded, “You know what, I don't know.”

The Department also presented evidence that, although both children had very significant needs, the children's health and well-being had improved dramatically since the children were placed in foster care. Both the guardian ad litem and the court-appointed special advocate (“CASA”) recommended that the juvenile court terminate the parental rights of the mother. The guardian ad litem cited the mother's refusal to end her relationship with the father and her failure to obtain adequate housing. The CASA stated that the children needed permanency and routine.

In its orders terminating the mother's parental rights, the juvenile court took judicial notice of its earlier orders and proceedings. The juvenile court found that clear and convincing evidence demonstrated that the children were deprived; that the cause of the deprivation was lack of proper parental care or control; that the deprivation was likely to continue and was likely to cause serious physical, mental, emotional, and moral harm to the children; and that the termination of the mother's parental rights was in the children's best interest. In support of its determination, the juvenile court specifically found that the mother continued to maintain contact with the father, whom she knew to be a registered sex offender; that the mother sent money to the father; that she had not attempted to obtain custody of H.H.; that the mother was unable to manage a home with children and had not reached a point to be a parent; and that the guardian ad litem and the CASA had recommended termination of the mother's parental rights.

The mother contends that the juvenile court's termination order failed to set forth sufficient findings of fact to support its ultimate conclusion, and that the evidence was insufficient to support termination of her parental rights.

A juvenile court's termination of parental rights is two-step process. The first step requires a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) lack of proper parent care or control caused by the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are satisfied, the court must then determine whether termination of parental rights is in the child's best interest, considering physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home.

(Citations and punctuation omitted.) In the Interest of S.W.J.P.D., 275 Ga.App. 272, 272–273, 620 S.E.2d 497 (2005); see also OCGA § 15–11–94(a), (b)(4)(A)(i)-(iv).

(a) Deprivation. The mother contends that, while she is bound by prior unappealed orders finding the children deprived, the juvenile court erred by failing to make a determination of whether the children were deprived at the time of the termination order.

[T]his Court has repeatedly held that unappealed deprivation orders bind the parents insofar as they establish that the existence of certain conditions (at the times those orders were entered) constituted a clear and convincing showing that the child was deprived as defined under the law; but only upon a further showing by the [D]epartment that the conditions upon which this finding was based still exist at the time of the hearing on the termination petition will this criterion be met.

(Citations and punctuation omitted.) In the Interest of P.D.W., 296 Ga.App. 189, 192–193(1)(a), 674 S.E.2d 338 (2009).

Here, the juvenile court based its earlier findings of deprivation upon evidence that the father, a registered sex offender, was living near the mother, the mother was a flight-risk, and the children were living in an unsanitary and unhealthy environment. The evidence shows that these conditions had not changed at the time of the termination hearing. Significantly, the mother continued to reside in the same unsanitary house that the Department found unsuitable for the children. Additionally, despite her denials to the contrary, there was evidence that the mother continued to have a relationship with the father. Since the evidence showed that the conditions upon which the juvenile court's deprivation findings were based still existed at the time of the termination hearing, and because the mother did not appeal the initial deprivation orders, the mother was bound by these findings and may not challenge the juvenile court's finding of deprivation. See, e.g., In the Interest of K.C.W., 297 Ga.App. 714, 718(2)(a), 678 S.E.2d 343 (2009); In the Interest of R.N.H., 286 Ga.App. 737, 740(1)(a), 650 S.E.2d 397 (2007). Moreover, the mother's failure to obtain suitable housing or cease her relationship with the father, as required by the case plan, and her failure to pay child support authorized a finding the children were deprived....