In the Interest of M.S.S., a Child.

• Decision Date: 22 March 2011
• Docket Number: No. A10A2314.,A10A2314.
• Citation: 708 S.E.2d 570,308 Ga.App. 614
• Parties: In the Interest of M.S.S., a child.
• Court: Georgia Court of Appeals

308 Ga.App. 614

708 S.E.2d 570

In the Interest of M.S.S., a child.

No. A10A2314.

Court of Appeals of Georgia.

March 22, 2011.

Jamie Lisa Smith, Marietta, for appellant.Thurbert E. Baker, Atty. Gen., Shalen S. Nelson, Sr. Asst. Atty. Gen., Kathryn Ann Fox, Asst. Atty. Gen., Sanders Buie Deen, Marietta, for appellee.

BLACKWELL, Judge.

Following a hearing, the juvenile court entered an order terminating the parental rights of the mother of M.S.S.¹ The mother now appeals from that order, asserting that the juvenile court lacked jurisdiction to enter the termination order, that the evidence was insufficient to support certain of the juvenile court's factual findings, and that she received ineffective assistance of counsel. Because we find no merit in any of these claims, we affirm.

Viewed in the light most favorable to the juvenile court's findings,² the record shows that on September 18, 2007, Cobb County police found the mother and M.S.S., who was approximately 15 months of age at that time, in an apartment filled with marijuana smoke.³ The Cobb County Department of Family and Children Services (the “Department”) assumed temporary custody of M.S.S. two days later. The Department was awarded custody of M.S.S. based on the mother's stipulation that the child was deprived, given the mother's lack of stable housing and need for a substance-abuse assessment.

The Department then filed a deprivation petition, and in October 2007, the juvenile court entered an order finding M.S.S. to be deprived based on the mother's stipulation that the father had abandoned the child and that the mother then was incarcerated, lacked adequate and stable housing, and needed substance-abuse assessment and treatment. The order granted temporary custody of M.S.S. to the Department, specified reunification with the mother as the permanency plan, identified the prerequisites for reunification, and required the mother to keep the court informed of her whereabouts.⁴ The order was entered nunc pro tunc to September 20, 2007 and provided that the award of temporary custody to the Department would expire on September 20, 2008, unless the order was “subsequently modified or amended.”

The next year, the Department filed a motion for an order extending its temporary custody of M.S.S., and the juvenile court scheduled a hearing on that motion for September 11, 2008, nine days before the earlier custody order was set to expire. After the parents failed to appear at the scheduled hearing, the juvenile court entered an interim order, which extended the Department's temporary custody of M.S.S. until November 7, 2008,⁵ and it scheduled another hearing for November 5, at which the court would revisit the question of an extension.

The mother also did not appear at the November 5, 2008 hearing. The juvenile court then granted the Department's motion to extend temporary custody, and it entered an order continuing M.S.S. in the Department's custody until November 5, 2009. In its order extending custody, the juvenile court noted that neither parent had appeared for the hearing and that both the mother and the father had effectively abandoned the child. Although the permanency plan remained reunification with the mother, the juvenile court observed that she had failed to make any progress on her case plan and that she had failed to maintain contact with M.S.S. The court, therefore, ordered the Department to investigate the possibility of terminating both the mother's and the father's parental rights.

The Department filed a second motion for an extension of custody on October 9, 2009, and a hearing on that motion was held on November 5, 2009. The juvenile court granted the motion, finding that M.S.S. continued to be a deprived child and extending again the Department's custody of the child through November 5, 2010. The finding of deprivation as to the mother was based on her failure to maintain communication with the Department and her lack of progress on her case plan. Specifically, the court found that the mother had failed to address her substance-abuse problems and had failed to maintain stable housing or stable employment.

The Department also filed in October 2009 a petition to terminate the mother's parental rights, and the juvenile court set a hearing on this petition for February 24, 2010. Evidence presented at the termination hearing established that between September 2007 and November 2009, the mother's contact with M.S.S. had been sporadic. The mother had no contact whatsoever with M.S.S. between September and December 2007, while she was incarcerated following her conviction for loitering and prowling. Between December 2007 and August 2008, the mother had supervised visits scheduled every other week with M.S.S., but according to the child's court-appointed special advocate (“CASA”), the mother missed at least seven of the approximately seventeen scheduled visits and was late to a number of others. Between August 20, 2008 and December 3, 2008, the mother could not be located and made no attempt to contact the Department.

Later in December 2008, representatives of the Department met with the mother and learned that there was an outstanding warrant for her arrest for probation violations.⁶ The Department caseworker explained to the mother that she would need to resolve her probation violations before continuing with her case plan. The mother eventually surrendered herself on the outstanding warrant in February 2009, after discovering that she was pregnant with her second child. She was incarcerated until April 1, 2009 and upon her release was placed in an intensive probation supervision program, which she completed in November 2009. There is no evidence in the record showing what contact, if any, the mother had with M.S.S. during the six months she was in intensive probation. Following her release from intensive probation, she was permitted unsupervised weekend visitation with M.S.S., but again, there is no indication in the record of the extent to which she actually visited with M.S.S. after November 2009.

The evidence also showed that the Department had reviewed the mother's case plan with her as early as February 2008. The plan remained unchanged during the two-and-a-half years leading up to the termination hearing. It required the mother to undergo a psychological evaluation and follow all recommendations made as a result of the evaluation, attend and successfully complete parenting classes, attend and successfully complete a drug-treatment program, submit to random drug screens, remain drug- and alcohol-free for six consecutive months, cooperate with and follow the recommendations of the Department family aid worker assigned to her, obtain and maintain a stable source of income sufficient to support the child, and obtain stable and safe housing large enough to accommodate the family. Although the Department caseworker testified that the entire plan could have been completed within six months (or by August 2008), the mother admitted that she made no effort at all to fulfill its requirements for more than a year, until after her second release from jail in April 2009. Specifically, the mother did not enter drug treatment until June 2009, did not complete that treatment until October 2009, and did not complete the required parenting classes until approximately July 2009. Although the mother did undergo a psychological evaluation in February 2008, shortly after receiving the case plan, her efforts to follow the recommendations resulting from that assessment still were listed as “ongoing” as of November 2009.

Despite making progress on other aspects of her case plan, the mother never maintained stable housing or stable employment. After M.S.S. first entered the Department's custody, the mother claimed to be “self-employed,” styling hair for friends and neighbors. She was employed in September and October 2009 as a telemarketer but was fired from that job. She remained unemployed from November 2009 until mid-February 2010, and she obtained a part-time job at a local fast-food restaurant only two days before the termination hearing.⁷ Thus, the evidence showed that between September 2007 and February 2010, the mother held a full-time job for only two months.

The mother had a history of alternating between homelessness and unstable housing that depended on the kindness of third parties. She admitted that she had been homeless before moving to Georgia in 2007 and that she was homeless at the time of her September 2007 arrest. Following her initial release from jail in November 2007, she lived at a friend's apartment until March 2008. Between March and June 2008, she lived with a brother, and from June 2008 until February 2009, when she was jailed on her probation violations, she was homeless. Following her release from jail in April 2009, she lived first with a friend, and then with the paternal grandmother of her second child, before moving to a transitional housing facility in September 2009. She remained at the transitional housing facility, where she was supposed to pay monthly rent of $500, until shortly before the termination hearing in February 2010. She successfully paid her own rent for September, October, and November 2009, but after losing her job, she was forced to rely upon assistance from a local charity to pay her rent for the months of December and January. Thus, between September 2007 and January 2010, the mother had paid rent for only three months.

Just before the termination hearing, the mother moved to a two-bedroom, one-bath apartment, which she rented for $495 per month. She paid the security deposit and rent for the first two months using money she received as part of her 2009 tax refund.⁸ Also living with the mother at that apartment was her second child, who then was less than a year old. She was not married to the baby's father and received no child support for the baby. She did, however, receive $200...