Case Law Update Tom C. Rawlings Judge, Juvenile Courts Middle Judicial Circuit Sandersville, GA (478) 553-0012 firstname.lastname@example.org www.tomrawlings.com
The Court’s Authority “I’m in Control Here!”
Once the juvenile court commits a child to the custody of DFCS, it cannot dictate where DFCS must place the child or, in this case, prohibit DFCS from making a certain placement. In the Int. of A.N, 281 Ga. 58 (2006) In re Tidwell, 279 Ga. App. 734 (6/12/2006). The Court’s Authority
H.B. 153: Placement Oversight Before DFCS changes a foster child’s placement: Must inform the court and counsel. The court or a party can request a hearing to determine whether the move is appropriate. Court is required to defer to the agency BUT may have some discretion to block a move that is completely inappropriate. Coming July 1 as part of 15-11-55! The Court’s Authority
In re Tidwell, 279 Ga. App. 734 (6/12/2006). No Power to hold DFCS in Contempt because: No authority to place child committed to DFCS Order showed “nothing on its face to demonstrate that the deprivation of [the child] with regard to [the father] had been placed in issue in the hearing.” The Court’s Authority
In Re: Liles, 278 Ga. App. 496 (629 SE2d 492) (3/27/2006) Court properly found a parent in contempt for refusing to bring his child to visits with the probation. Court had placed the parent under a protective order pursuant to OCGA § 15-11-5, order clearly spelled out the parent’s duties. The Court’s Authority
In re Jefferson, ___ Ga. App. ___ (A06A2253 decided 3/30/07). Re-affirmed Court’s authority to hold person in criminal contempt. The Court’s Authority
Child declared deprived, placed in foster care or with relatives TPR filed or pending; parents surrender rights to a relative Relative goes to Superior Court and files adoption petition Snyder v. Carter, 276 Ga. App. 426 (Ga. Ct. App. 2005) Edgar v. Shave, 205 Ga. App. 337 (422 SE2d 234) (1992). Defeating Juvenile Court Jurisdiction via an Adoption Petition
Unchallenged, valid allegations of deprivation; No evidence that the parents were engaged in any custody dispute prior to the instances of deprivation; THEN cannot say that the deprivation proceeding was a disguised custody In the Interest of D.T., ___ Ga. App. ___ (A06A1815 decided 3/20/07). In the Int. of K.L.H., 281 Ga. App. 394 (2006). Putative father brings deprivation proceeding against custodial mother, court finds child deprived and awards custody to the father and his mother. Custody or Deprivation?
Father incarcerated in Tennessee served by certified mail in TPR case. Acknowledged service. In the Int. of C.S., 279 Ga. App. 831 (632 SE2d 665) (May 12, 2006) Supreme Court has granted certiorari in S06G1802 to determine whether delivery by certified mail is sufficient in a termination of parental rights case. The Court has referred the parties to OCGA §§ 15-11-39.1 and 15-11-96. Notice and Opportunity to be Heard
Parent’s Right to Representation • In the Interest of A. M. A., 270 Ga. App. 769 (12/6/2004) • “It was incumbent on the court to make inquiry into appellant's financial status and properly determine whether she was indigent. The trial court failed to exercise its affirmative duty of determining on the record whether [the mother] exercised reasonable diligence in attempting to retain trial counsel” • VACATED.
Parent’s Right to Representation • BUT SEE: In the Int. of Z.K., ___ Ga. App. ___ (A07A0253 decided 4/19/07) • Court held that a father had to show not only the denial of his right to counsel but also harm resulting from it. • Father failed to show how having counsel might have changed the result, not entitled to reversal. • physical precedent only.
Parent’s Right to Representation • While termination of parental rights cases are more civil in nature than criminal, parents facing termination of their rights have been afforded some of the protections to which criminal defendants are entitled. This includes providing to indigent parents effective representation at all stages of any proceeding involving the termination of their parental rights.” • In the Int. of E.G., ___ Ga. App. ___ (A06A1944 decided 3/27/07).
Parent’s Right to Representation • In the Interest of B.B., 268 Ga. App. 858, (2004) • SELF-REPRESENTATION? The record shows that Brewton has multiple mental disorders, including delusional disorder, psychotic disorder, and depression. In addition, an expert testified that Brewton confused fantasy with reality, was unable to make rational judgments, was incapable of assisting in her defense, was unable to knowingly or voluntarily waive her right to represent herself, and was incapable of independently handling an appeal.
Parent’s Rights: Representation or Presence • In the Interest of A.J., 269 Ga. App. 580 (9/14/2004) (Fulton) • Incarcerated father requested counsel; not provided, nor was he brought to deprivation hearing. • “Because the father was denied an opportunity to be heard, constitutionally or as provided by statute, the deprivation proceedings at issue can be but a nullity.” • “Because a parent's right to counsel in such proceedings is threatened by the failure to follow the notice and hearing requirements in the Juvenile Code, our Supreme Court has held them mandatory, subject to waiver.”
Parent’s Rights: Rep., Presence • In the Interest of S.R.B., 270 Ga. App. 466 (11/16/ 2004) (Glynn County) • Father requested transport from prison to attend TPR hearing. DENIED, but was represented by counsel. • “Due to his own inability to conform to the law, he was unable to avail himself of the opportunity to appear in person; however, it is undisputed that he was represented in all the parental termination proceedings by counsel who appeared in his stead. We know of no constitutional entitlement mandating the father's right to appear personally at the termination hearing."
The Right to What You Say? • To be present and to be heard during the proceedings, to be represented by counsel at all stages of the proceedings, to present evidence and cross-examine adverse witnesses, to waive recordation of the proceedings, and to petition the court to modify, vacate, or set aside an order. If the parents are indigent, the court must appoint counsel to represent the parents and their child. • In the Int. of J.L.B., 280 Ga. App. 556 (___ SE2d ___) (7/14/2006)
What Is Deprivation? • Lack of Parental Care and Control? • But see: In re Tidwell, 279 Ga. App. 734 (6/12/2006) • Parties had stipulated child was “not deprived as to the father,” so Court had no authority over the father.
What Is Deprivation? • Deprivation must be PRESENT. • “Evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required.” • In the Int. of M.A., 280 Ga. App. 854 (2006). • Father who tried to burn down the family’s house was no longer around; the mother had complied with the case plan, visited with the children, completed her parenting classes, and lived in the same home for two years.
What Is Deprivation? • Deprivation must be PRESENT. • Normally, in a TPR, an unappealed finding of deprivation is sufficient to find deprivation for TPR purposes. • BUT -- In the Int. of R.C.M, ___ Ga. App. ___ (A07A0399 decided 4/5/07) • Binds a parent to the finding that at the time of the order the child was deprived for the reasons given in the order.
What Is Deprivation? • Deprivation must HARM child. • In the Int. of D.S, ___ Ga. App. ___ (A06A1992 decided 2/28/07) • Court reversed a finding of deprivation; • no evidence showed a link between the stepfather’s harsh criticism and “ranting” and the child’s emotional problems. • Not “idiosyncratic”, “isolated” behavior. • In the Int. of C.L.Z., 283 Ga. App. 247 (1/9/07)
Deprivation from Drugs • In the Interest of J.L., 269 Ga. App. 226 (2004) • Even though there is no evidence of how appellant's drug use adversely affected J. L., there is clear and convincing evidence that appellant abused cocaine. Viewing this evidence in the light most favorable to the juvenile court's judgment, it is a fair inference that use of cocaine by a parent has an adverse effect on a minor child. • In the Interest of M.L.C., 249 Ga. App. 435, 439 (2001) • In the Interest of D.E.K., 236 Ga. App. 574, 577-578 (1999)
Deprivation: Mental Incapacity • In the Interest of C. F., 266 Ga. App. 325 (2004) • Mother accidentally od’d child on Tylenol with codeine. Was given case plan including attending literacy classes. Court later found continued deprivation because she could read only at kindergarten level. • REVERSED. Based on the evidence presented at the hearing, the mother substantially complied with the goals of the case plan. NO ONE REQUIRED HER TO ACHIEVE ANY PARTICULAR READING LEVEL.
Deprivation: Mental Incapacity • 14-year-old mother, IQ of 57. • Mother completed all her case plan goals except completing high school or getting a GED. She had maintained a home, completed parenting classes, and cooperated with DFCS. • “Although [she] has completed most of her case plan goals and wishes to be part of her child’s life, the evidence shows that she lacks the mental capacity to care for H.F.G. without around-the-clock assistance from others, something DFCS is not obligated to provide. . . . The test must be whether the parent, ultimately standing alone, is capable of mastering and can effectively demonstrate the ability to utilize parenting skills.” • In the Int. of H.F.G., 281 Ga. App. 22 (2006)
Unexplained Injuries • A finding of deprivation does not require determining “whodunit.” • In the Interest of S.Y., ___ Ga. App. ___ (A07A0271 decided 3/14/07).
Termination: Typical Standards (A) The court determines parental misconduct or inability by finding that: (i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child's status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.O.C.G.A. § 15-11-94
“Likely to Continue” • “In determining whether the children's deprivation is likely to continue, the juvenile court may consider the parent's past conduct. Furthermore, the decision as to a child's future must rest on more than positive promises which are contrary to negative past fact.” • In the Int. of J.D., 280 Ga. App. 861 (2006)
“Likely to Continue” • “the juvenile court, not [the appellate] court, determines whether a parent's conduct warrants hope of rehabilitation, and it also judges the credibility of appellant's good intentions." • In the Int. of M.R., 282 Ga. App. 91 (2006)
“Likely to Continue” • Mother with prior clean record imprisoned for vehicular homicide; had been a soldier. • “There is not clear and convincing evidence that the cause of the deprivation is likely to continue and will not be remedied. Imprisonment alone does not automatically authorize a termination of parental rights premised upon parental unfitness; there must be circumstances in aggravation.“ • In the Int. of J.A.W., 281 Ga. App.545 (2006)
“Likely to Continue” • The Importance of Case Plans: • No likelihood that deprivation would continue where parents completed most of case plan. • In the Int. of A.F., 283 Ga. App. 509 (2/8/07) • No such showing where father not given opportunity to complete case plan. • In the Int. of R.C.M., A07A0399
Termination: Cause Harm • In the Interest of A.T., 271 Ga. App. 470 (2/1/2005) (Blackburn, Miller, Bernes) • Mother didn’t complete case plan over two-year period. However, HARM REQUIREMENT not met. • NO: • Testimony of adverse effect of foster care; • Adoptive parents lined up; • Expert testimony regarding need for permanency; • “[A]ll we have is evidence of the mother's inability to parent her children. The mother's inability to care for her children does not necessarily mean that her current relationship with them is detrimental.”
Termination: Harm • “Both children in this case exhibited distress before and during contact with the mother, as when M. H. H. screamed and cried that he did not want to see his mother, and when M. K. H. repeatedly slapped her during her visitation sessions.” • In the Interest of M.K.H., 270 Ga. App. 564 (11/19/2004) • “Evidence of a lack of parental bond between the natural parent and child, that the child has adapted well to foster care, and that the foster parents wish to adopt will together support the juvenile court's conclusion that continued deprivation is likely to harm the child.” • In the Interest of J.W.M., A05A0433, 2005 Ga. App. LEXIS 404 (4/19/05) • HARM REQUIREMENT MET!
Termination: Harm • In the Interest of T.P., 270 Ga. App. 700 (12/1/ 2004)(Baldwin Co.; Adams, Ruffin, Eldridge) • “We find that the state failed to present any evidence as to the effect that such continued deprivation would have on the child. Although there are indications in the record that the child was receiving counseling, there was no testimony from any professional, or from any lay witness, that the child would suffer physical, mental, emotional or moral harm from the current situation.” • “Not automatically true that finding deprivation likely to continue will support finding” of harm. • HARM REQUIREMENT NOT MET!
Termination: Harm • “[T]he court is authorized to consider the adverse effects of prolonged foster care in determining that continued deprivation is likely to cause serious physical, emotional, or moral harm to the child.” • In the Int. of K.L., 280 Ga. App. 773 (2006);
Termination: Harm • "It is well settled that children need permanence of home and emotional stability or they are likely to suffer serious emotional problems. Children cannot be kept in foster care limbo with no hope of any permanent future." • In the Interest of B. D., 281 Ga. App. 725 (2006);
Termination: Harm • “Deprivation of love and nurture is equally as serious as mental or physical disability.” • In the Int. of T.G.Y., 279 Ga. App. 449, 472 (631 SE2d 467) (May 17, 2006).
Termination: Harm • This battle over the standard – actual proof or inference from the totality of the circumstances – came to a head recently! • In the Int. of J.K., 278 Ga. App. 564 (629 SE2d 529) (2006). • The Result: STALEMATE!!!!
Voluntary Surrender • No Grace Period for surrender made in open court – cannot withdraw it, unlike the 10-day written surrender. • In the Int. of T.C.D, 281 Ga. App. 517 (2006). • Once surrender made to DFCS, no right to further notice. • In the Int. of A.C., ___ Ga. App. ___ (A06A2255 decided 2/27/07)
Putative Fathers and Legitimation • Too often, social workers tend to neglect putative fathers • Even if a putative father is not legitimate, it is critical that they be contacted and that a case plan be established for them. • In the Int.of T.E.T., 282 Ga. App. 269, 273 (2006) • Court of Appeals reversed a termination determination because DFCS never implemented a reunification plan for the father, who had expressed an interest in taking the child.
Putative Fathers and Legitimation • In the Int. of C.L., ___ Ga. App. ___ (A06A2490 decided 3/29/07). • Putative father sued to legitimate his biological child, who was born to the mother while she was married. • Mother later incarcerated, left the child with her husband. • Superior court legitimated the biological father then referred the matter to juvenile court to determine custody. • Juvenile court, applying a “best interests of the child” standard, gave the husband and the newly legitimated father joint custody. • Court of Appeals’ decision: once the superior court legitimated the biological father, the court had no discretion to give custody to the “former” legal father because “the statutes do not contemplate a child having two legal fathers.”
Aqui sin documentos • Essentially, the termination of the father's parental rights was based on the possibility that the father could someday be deported and, with her mother's parental rights also severed, A. P. might be returned to DFACS's custody or sent to Mexico. When we wield the awesome power entrusted to us in these cases, our decisions must be based on clear and convincing evidence of parental misconduct or inability and that termination is in the best interest of the child, and not speculation about "the vagaries or vicissitudes that beset every family on its journey through the thickets of life." A court may not sever a parent-child relationship solely because it has determined that the child might enjoy certain advantages elsewhere • In the Interest of M.M., 263 Ga. App. 353, 362-363 (Ga. Ct. App. 2003)
Mental Health Privilege • State v. Herendeen, 279 Ga. 323 (2005). • Records of an individual’s treatment by a psychiatrist, etc. is privileged even if court-ordered. • In the Int. of I.M.G., 276 Ga. App. 598 (12/1/05). • Psychosexual counseling from the Medlin Clinic was privileged even though it was required as part of reunification plan.
Mental Health Privilege • Solutions? • Guardian ad litem may be appropriate person to determine whether privilege should be waived for a child. See Herendeen. • For adults: What about OCGA § 24-4-22: “If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, . . . a presumption arised that the charge or claim against him is well-founded.”
Child Hearsay • In the Int. of S.S., 281 Ga. App. 781 (2006). • In the Int. of B.W., 268 Ga. App. 862 (2004).
§ 15-11-58. Reasonable efforts regarding reunification of family; reports and plans; custody orders when reunification found not to be in child's best interest; duration of orders; review of determinations; hearings; supplemental orders (a) A court's order removing a child from the child's home shall be based upon a finding by that court that continuation in the home would be contrary to the welfare of the child. If the court places custody of the child in the Division of Family and Children Services of the Department of Human Resources, the court shall also determine as a finding of fact whether reasonable efforts were made by the Division of Family and Children Services of the Department of Human Resources and any other appropriate agencies to preserve and reunify families prior to the placement of a child in the custody of the Department of Human Resources, to prevent or eliminate the need for removal of the child from that child's home, and to make it possible for the child to return safely to the child's home. Such findings shall also be made at every subsequent review of the court's order under this chapter. (1) In determining reasonable efforts to be made with respect to a child, as described in this subsection, and in making such reasonable efforts, the child's health and safety shall be the paramount concern; (2) Except as provided in paragraph (4) of this subsection, reasonable efforts shall be made to preserve and reunify families: (A) Prior to the placement of a child in the custody of the Department of Human Resources, to prevent or eliminate the need for removing the child from the child's home; and (B) To make it possible for a child to return safely to the child's home;