Court of Appeals of Georgia.
Decided: March 11, 2013.
All the witnesses conceded, however, that D. J. and his mother had a bond. The mother consistently maintained her weekly visits with D. J. Some observers testified that during these visits, the mother and D. J. were like two children playing with each other, which raised some concerns about the mother’s ability to play a mother-child role, but the caseworkers testified that the mother’s ability to nurture D. J. improved over time and she has basic parenting skills such as the ability to change a diaper. Peters testified, however, that although the mother loves D. J., but she has not seen that “mother child bond, that nurturing.” She said the mother and child had no more of a bond on the last visit than they did on the first. Peters conceded, however, that the mother had the ability to perform daily living skills and could administer medications by reading the label. She also handles her own medical appointments.
At the time of the hearing, D. J. was still in foster care and had an adoptive resource with the guardians for his older siblings.
Based upon this evidence, the juvenile court granted the petition to terminate the mother’s and the putative father’s parental rights.3 In addition to identifying the portions of the case plan completed by the mother and those still in progress, the juvenile court found that the mother scores in the extreme low range of intellectual functioning and had no scores over the fifth grade, according to the second psychological evaluation; “[t]he Department has concerns regarding the mother’s inability to comprehend information with limited insight and her inability to make rational decisions when it comes to raising a child with medical concerns;” “[t]he mother’s cognitive function mayimpair her ability to properly care for the child’s special medical needs;” her other three children are in the care of former foster parents via guardianship; and according to Peters, although the mother and child had a bond, the mother lacked the “nurturing component” of bonding or parenting needed for the child. (Emphasis supplied.) From this, the juvenile court concluded that the mother had failed to comply with a court-ordered plan designed to reunite her with her child for a period in excess of one year prior to filing the petition for termination of parental rights. The court also found that the mother failed to provide court-ordered child support or other financial support for D. J. in excess of one year prior to filing the petition. We conclude that these findings, and the evidence upon which they are based, are insufficient to support the termination of the mother’s parental rights.
The statutory framework for the termination of parental rights sets out a two-pronged test:
Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-94 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A). In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.
(Citation omitted.) In the Interest of R. N. H., 286 Ga.App. 737, 739-740 (650 S.E.2d 397) (2007). In determining whether a child is without proper parental care or control when the child is not in the parent’s custody, the court may consider
whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) [t]o develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent or parents.
(Emphasis supplied.) OCGA § 15-11-94 (b) (4) (C).
Accepting the prior findings that D. J. was a deprived child, the juvenile court found that the deprivation was caused by the mother’s failure to comply with the case plan for a period of one year or longer prior to the filing of the termination petition. But even construing the evidence in the light most favorable to the judgment below, the record does not support this finding by clear and convincing evidence, and the termination order appears to ignore the juvenile court’s prior findings regarding the mother’s case plan progress.
It is undisputed that the mother had completed most of her case plan goals by the time the petition was filed in June 2011. The case plan required that the mother submit to a psychological evaluation. She, in fact, submitted to two such evaluations, one in January 2010 and the other in January 2011. By February 25, 2010, the mother had also completed the requirement that she attend a parenting class, and the trial court found she had completed a separate general parenting class with AADD in its September 20, 2011 order. The mother also worked steadily toward achieving the requirement of stable housing, first in transitional housing, then in two separate one bedroomapartments, and by the hearing in January 2012, she had a two bedroom apartment with a bedroom set up for D. J., which met DFCS’ requirements. Thus, in August 2010, the juvenile court found that the mother was making” favorable case plan progression,” and by December 2010, her “only hurdle” was the referral to AADD. By June 14, 2011, five days after the petition was filed, the court found that she had met most of her case plan goals, and DFCS was reconsidering its plan to terminate her parental rights.
The only requirement that remained ongoing at the time of the hearing was the requirement that the mother follow the recommendations arising from the psychological evaluations.4 The record indicates that she had completed some of these requirements, such as the parenting classes, and that circumstances beyond her control prevented her from completing others. For example, the mother participated in individual counseling until the funding ran out, and DFCS never referred her to a psychiatrist as the second psychological exam recommended. The mother also submitted to literacy testing, as recommended by the exams, but Floyd testified that she was not required to take literacy classes and a notation from a citizen’s review panel indicates that she did not qualify for the literacy program. And although the mother never completed theGED class, the psychological exam only recommended that she be referred to the class. We could find nothing in the record to indicate that completion of the class was added as a requirement to her case plan.
The specific requirement that the mother participate with AADD’s recommendations was not added to her case plan until April 2011, only two months before the petition was filed, and AADD first contacted her in December 2010, only six months before the petition. Accordingly, the record does not, and indeed cannot, contain evidence of a failure to comply with AADD’s recommendations for one year or more prior to the filing of the petition as required by the statute. Moreover, the record shows that the mother was participating to some extent, albeit somewhat reluctantly, with AADD. For example, the order from June 14, 2011, indicates that the mother was becoming more receptive to suggestions from AADD, and she allowed Peters to inspect her new townhome just prior to the hearing. Therefore, the juvenile court’s conclusion that the mother failed to comply with the case plan for more than a year prior to the filing of the termination petition is not supported by clear and convincing evidence.
Similarly, the record lacks clear and convincing evidence, at least at this time, to support the trial court’s finding that the cause of the deprivation is likely to continue, or will not likely be remedied because the mother continued to work on her case plan goals. Shortly before the hearing, she was able to obtain suitable housing and she had allowed AADD to visit the home. And although DFCS’ witnesses all expressed concern that the mother might not be able to administer medicine to D. J., the evidence belied these concerns. She demonstrated to Peters that she was perfectly capable of reading labels and administering medicine in various ways, including through a syringe. Moreover, she could use a breathing machine to treat her own asthma. Although she had not demonstrated the ability to do the same for D. J., she was never given the opportunity to do so.
Moreover, the witnesses’ anecdotal evidence about the mother — i.e., feeding the child too many snacks and playing with him in a childlike fashion — does not amount to clear and convincing evidence that she will never be able to parent her child. “[T]he clear and convincing standard `safeguards the high value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base his determination on a few isolated instances of unusual conduct or idiosyncratic behavior.'” (Footnote omitted.) In the Interest of S. L. E., 280 Ga.App. 145, 151 (1) (633 S.E.2d 454) (2006). Although the juvenile court found that her cognitive functions may hamper her ability to make rational decisions regarding D. J.’s medical care, these findings were based solely on concerns voiced by lay witnesses, with no expert testimony on the issue. We cannot say, therefore, that this findings are supported by clear and convincing evidence. Cf. In the Interest of C. A., 316 Ga.App. 185, 189-191 (1) (728 S.E.2d 816) (2012) (reversing termination order where no evidence presented of medically verifiable mental deficiency).
Further, although the evidence supported the juvenile court’s finding that the mother had failed to provide court-ordered or other financial support for D. J., the record indicates that such payments were never made a part of her case plan, and no testimony was presented that she was ever told that she was required to contribute financially. Although a parent’s obligation to support her child exists, even in the absence of an order directing support,5 we do not believe that this failure was sufficient to support a finding that the deprivation was likely to continue in light of the mother’s other progress on her case plan. See In the Interest of C. S., ___ Ga. App. ___ (1) (735 S.E.2d 140, 147) (2012). The testimony demonstrated that the mother brought presents and food when she had her weekly visits with D. J., and nothing in the record indicates that she might not be able to contribute at least a de minimis monetary amount toward her child’s support in the future.6
In sum, although the mother has not acted in perfect compliance with all the recommendations given to her and has shown some reluctance to allow AADD workers into her home, the evidence shows that she has made substantial steps toward complying with DFCS’ requirements, that she has maintained a bond with D. J., and that she continues to work on her case plan goals.
As we have stated, termination of parental rights is a remedy of last resort and can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue. In the instant case, the evidence is not clear and convincing, at least at this time, that the deprivation is likely to continue. . . . Accordingly, we reverse the judgment and remand the case for establishment of a reunification plan for [the mother], subject to whatever disposition is warranted by future events and those occurring since the last termination hearing.
Judgment reversed. McFadden, J., concurs. Barnes, P. J., concurs specially.
BARNES, Presiding Judge, concurring specially.
While I agree with the outcome reached in this case, I do not agree with all that is said by the majority. Therefore, this opinion decides only the issues in this case and may not be cited as binding precedent. See Court of Appeals Rule 33 (a). I write separately to emphasize that even if a parent has completed most of his or her case plan and wishes to be part of the child’s life, termination of parental rights still may be appropriate where there is evidence that the parent has a medically verifiable mental disability that renders the parent unable to care for the essential needs of the child at the time of the hearing or for the foreseeable future. See OCGA § 15-11-94 (b) (4) (B) (i); In the Interest of H. F. G., 281 Ga.App. 22, 26-27 (1) (635 S.E.2d 338) (2006). The problem in the present termination case is that DFCS failed to present any competent expert testimony to support and elaborate upon its allegations of the mother’s cognitive impairment and its adverse impact on her ability to attend to the special medical needs of her child. See In the Interest of C. A., 316 Ga.App. 185, 189-190 (728 S.E.2d 816) (2012). However, nothing prevents DFCS from presenting such expert testimony in a future hearing if a new petition to terminate the mother’s parental rights ultimately is filed in this case.
1. The order also listed the case plan goal solely as reunification. DFCS confirmed the shift in case plan goal in a motion for extension, filed a few months later. But in the juvenile court’s order granting the motion, the court lists the plan goal as concurrent: reunification and adoption.
2. DFCS introduced a copy of the second psychological evaluation performed on the mother at the hearing in lieu of the psychologist’s testimony. In termination proceedings, “all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. . . .” OCGA § 15-11-56 (a). See also In the Interest of A. T. H., 248 Ga.App. 570, 574 (2) n.15 (547 S.E.2d 299) (2001) (applying rule to termination proceedings).
3. The rights of putative father are not the subject of this appeal.
4. The 2010 psychological evaluation recommended working in a home environment with a counselor and a paraprofessional; that she find suitable housing, that she “may benefit” from participating in an adult reading program; and that visitation be supervised. The 2011 evaluation recommended family therapy if she were reunited with all her children; parenting classes; individual therapy; a psychiatric referral; a referral to the Georgia Department of Labor for job training; and a referral to an adult literacy class to help obtain her GED.
6. Additionally, the record lacks clear and convincing evidence that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child, at least at this time. Although the trial court made findings regarding the potential harm of continued foster care, the only evidence presented on this point was a question to Sullivan as to whether she knew “what foster-care drift is.” She replied that it is when a child lingers in foster care, he may have bonding or trust issues and may start acting out, but she stated that D. J. was not displaying any of these symptoms because he is just two years old.
7. Because we find that the evidence does not support the juvenile court’s findings under OCGA § 15-11-94 (b) (4) (A), we need not reach the court’s analysis regarding the child’s best interest under OCGA § 15-11-94 (a).