(no title)

A94A2222.
(217 Ga. App. 29)
(456 SE2d 715)
(1995)

http://www.lawskills.com/case/ga/id/287/83/index.html

The evidence recited is virtually the same evidence we previously determined did not constitute “clear and convincing evidence of deprivation under OCGA 15-11-2 (8).” In the Interest of D. S., supra at 204. However, the evidence has been rendered less compelling by the notable deletion of the references to a drug raid on the home and the presence of a large quantity of drugs which were accessible to the children.
Moreover, the trial court’s order contains no finding of fact with respect to the condition of the children. While the evidence showed that the family was living in filthy surroundings, there was no evidence of how the environment adversely affected the children, i.e., evidence of physical neglect, medical problems, malnourishment, emotional harm or mental inadequacies. Compare Vermilyea v. Dept. of Human Resources, 155 Ga. App. 746 (272 SE2d 588) (1980). Thus, there is no evidence upon which a determination can be made that the children were without “proper parental care or control, subsistence, education as required by law, or other care or control necessary for [their] physical, mental, or emotional health or morals” under OCGA 15-11-2 (8).
Furthermore, “a showing of parental unfitness is required in cases of temporary custody sought by a third party. [Cit.] Parental unfitness is ‘ “caused either by intentional or unintentional misconduct resulting in abuse or neglect of the child, or by what is tantamount to physical or mental incapability to care for the child.” ‘ [Cits.]” In re J. C. P., 167 Ga. App. 572, 575 (307 SE2d 1) (1983). There was no evidence of neglect or abuse of the children. With respect to the mother’s fitness, the DFCS caseworker assigned to her testified, “I don’t have an opinion as to whether she’s an appropriate mother or not. I don’t have any reason to have one one way or the other; okay? I mean, I don’t have any reason to believe that she’s not or that she is.”
” ‘The right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.’ [Cit.] Our review of the record fails to unearth the clear and convincing proof that any rational trier of fact could have found that [appellant] had conducted [herself] in such a way as to abuse or neglect [the children] to the extent that [her] parental right to custody should be terminated.” In re S. E. H., supra at 851-852. Other than seeking to have the children declared deprived, there is no evidence that DFCS has provided any support services to this mother which would eliminate the necessity of resorting to the drastic measure of state intervention into this family unit. Compare Vermilyea, supra. Nor is there evidence that the mother would be uncooperative. We do not condone her neglectful housekeeping, but “we cannot say as a matter of law that the situation is such that [she] should be condemned as an unfit parent and stripped of [her] parental right to custody of [her children].” Id. at 852. See also In the Interest of M. A. V., supra at 302.
2. In light of our holding in Division 1, we need not address the remaining enumerations of error.
Dock H. Davis, for appellant.

CASE LAW
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In the Interest of D.S., 217 Ga. App. 29 (1995)
Deprivation finding reversed when there was no evidence that the child was experiencing physical neglect, medical problems, malnourishment, emotional harm or mental inadequacies as a result of the filthy living conditions in the home.
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WHAT’S NEW?
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NEW: Thirteen states are competing for nine “waivers” from federal child welfare funding rules. We grade the proposals in the NCCPR Child Welfare Waiver Proposal Report Card