In re A.M.B.
| Decision Date | 21 October 2021 |
| Docket Number | A21A1208 |
| Parties | In the INTEREST OF A.M.B. et al., children. |
| Court | Georgia Court of Appeals |
Weston Dale Maffit, for Appellant.
Calandra Almond Harps, Christopher Michael Carr, Shalen S. Nelson, Atlanta, for Appellee.
Phipps, Senior Appellate Judge.
The mother of five-year-old A. B., three-year-old L. B., and two-year-old A. M. B. appeals from the juvenile court's order finding the children dependent and granting temporary custody to the Walton County Department of Family and Children Services (the "Department"). The mother argues on appeal that the dependency finding was not supported by clear and convincing evidence. For the reasons explained below, we agree and reverse.
This Court reviews a 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, 784 S.E.2d 83 (2016). In so doing, "we neither weigh the evidence nor judge the credibility of the witnesses, but instead defer to the factual findings made by the juvenile court, bearing in mind that the juvenile court's primary responsibility is to consider and protect the welfare of a child whose well-being is threatened." Id. at 245, 784 S.E.2d 83 (citation and punctuation omitted).
So viewed, the record shows that the Department became involved with the family after the mother's former boyfriend, the father of L. B. and A. M. B., purportedly threw the mother through a wall. The Department provided the mother services and entered a safety plan for the mother to maintain stable housing and keep the children safe and away from domestic violence. The plan required the mother to live with her great aunt. She did so from September 2019 to January 2020, but then left her great aunt's house and did not follow up with the services provided by the Department. According to the mother, she left her great aunt's house because her grandmother, who also lived there, used drugs, and the mother did not want to lose her children. The great aunt, however, testified that the mother moved out after the great aunt confronted her about her new boyfriend's drug use. The mother spent the next 45 days living with her children at two separate hotels and her brother's house. She paid for the hotels with a tax refund and the help of her stepfather.
After being unable to contact the mother, the Department asked police to perform a welfare check on the children at the home of the boyfriend's father. Police located the mother at this house in March 2020 and arrested her for violating her probation by removing an ankle monitor;1 she was released the following month. Following the mother's arrest, the Department asked her great aunt to pick up the children from the boyfriend's parents’ house. When the great aunt picked up the children, they were all in wet diapers, smelled of urine, and were unkempt. After the mother was released from jail, she visited the children at the great aunt's house and provided diapers, clothes, and toys for the children.
According to the guardian ad litem's report, the mother and her current boyfriend were "believed" to be using methamphetamine, the boyfriend reportedly had a criminal record for child molestation and aggravated sodomy of a child, and the mother was not employed and did not have housing in her own name. The guardian detailed the children's developmental delays and cognitive challenges, including A. B.’s speech and intellectual disabilities, as well as his anemia
and umbilical hernia. The guardian noted that A. B., specifically, needed a caring environment with clear and firm structure, limits, and boundaries given the severity of his behavioral and socio-emotional difficulties, as well as his limited language development. The guardian recommended that the children be placed in the Department's temporary custody, but remain in the great aunt's home.
On June 22, 2020, the Department filed a dependency petition seeking placement of the children with the Department. According to the petition, the children are abused or neglected and in need of court protection. The only factual support included in the petition was as follows:
At the dependency hearing, the mother testified that on May 30, 2020, approximately a month before the Department filed its dependency petition, she began living rent-free with the Culpepper family, taking care of a woman who has health issues and watching her grandchildren. The Culpeppers’ house has five bedrooms and three bathrooms, including a spare bedroom where the mother's children could stay. While the mother admitted she did not have a plan if she were thrown out of the Culpepper house, she did not believe that would happen. In addition, although the mother was not employed at the time of the hearing, she claimed that the Culpeppers were going to pay her, and she also was hoping to be re-employed at Petco.
The mother's great aunt testified that, in the past, the mother lived with the children in places where there was no water or power and with individuals she did not know well; however, the great aunt did not provide dates or details for these assertions. The great aunt did not know where the mother was staying at the time of the hearing.
A psychologist who evaluated A. B. in January 2020 testified that although the child appeared a bit unkempt, there were no "red flags" concerning his safety or the manner in which he was being taken care of by the mother. He was physically healthy, but his intelligence scores were significantly below average, and the psychologist was concerned about A. B.’s speech delay and behavioral issues.
She recommended a caring environment with plenty of structure for A. B., as well as additional testing. In addition, she recommended a reliable, consistent caregiver. The mother testified that when the children were in her custody after moving out of her great aunt's house, she took them to all of their doctors’ appointments, and the Department offered no contrary evidence.
The court specifically noted that the facts presented at the hearing did not demonstrate dependency as a result of substance abuse by the children's mother. The court awarded custody of the children to the Department and ordered the mother to provide names and addresses of suitable relative placements.
However, the juvenile court judge acknowledged that he did not "see [the mother] taking long to get – work her case plan to get her children back." According to the judge, "the problem is basically the housing and the – [w]ell, the lack of housing and the income but [the mother] can cure that in six months." The mother timely appealed from this order.
In her sole argument on appeal, the mother asserts that the juvenile court lacked the requisite clear and convincing evidence to find that the children are dependent or that she caused any such dependency. Specifically, she asserts that there is no evidence to support a finding that the children are "abused" or that they are "neglected" based on her inability to provide proper parental care or control. We agree.
(a) Under Georgia law, "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."2 In the Interest of H. B. , 346 Ga. App. 163, 164 (1), 816 S.E.2d 313 (2018) (citation, punctuation, and footnote omitted); see also OCGA § 15-11-180 (). As relevant here, OCGA § 15-11-2 (22) (A) defines a "dependent child" as a child who, among other things, "[h]as been abused or neglected and is in need of the protection of the court." ...
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