In the INTEREST OF C.A.B. Et Al., Children. , 347 Ga. App. 474 ( 2018 )


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  •                                SECOND DIVISION
    MILLER, P. J.,
    BROWN and GOSS, JJ.
    NOTICE: Motions for reconsideration must be
    physically received in our clerk’s office within ten
    days of the date of decision to be deemed timely filed.
    http://www.gaappeals.us/rules
    October 3, 2018
    In the Court of Appeals of Georgia
    A18A0862. IN THE INTEREST OF C. A. B. et al., children.
    MILLER, Presiding Judge.
    Linda Baker, the mother of children C. A. B., D. M. B., and H. U. B., appeals
    from the juvenile court’s order terminating her parental rights to all three children. On
    appeal, she contends that the juvenile court lacked clear and convincing evidence to
    support the termination of her parental rights because she had substantially complied
    with most of her case plan goals and was set to be released from incarceration. After
    a thorough review of the record, we conclude that there is clear and convincing
    evidence to support the juvenile court’s order finding that Baker subjected the
    children to aggravated circumstances and that it was in the children’s best interest to
    be permanently removed from her custody. Accordingly, we affirm.
    On appeal from a juvenile court’s decision to terminate parental rights, we view
    the evidence in the light most favorable to the juvenile court’s ruling and determine
    whether any rational trier of fact could have found by clear and convincing evidence
    that the parent’s rights should be terminated. In the Interest of C. S., 
    319 Ga. App. 138
    , 139 (735 SE2d 140) (2012). Nonetheless,
    this deferential standard of review is tempered by the fact that there is
    no judicial determination which has more drastic significance than that
    of permanently severing a natural parent-child relationship. It must be
    scrutinized deliberately and exercised most cautiously. The right to raise
    one’s children is a fiercely guarded right in our society and law, and a
    right that should be infringed upon only under the most compelling
    circumstances.
    (Footnote omitted.) In the Interest of E. G. L. B., 
    342 Ga. App. 839
    , 840 (805 SE2d
    285) (2017).
    So viewed, the evidence shows that Baker has four children: son De. B., born
    in 2007, and daughters C. A. B., born in 2008, D. M. B., born in 2012, and H. U. B.,
    born in 2015.1 Baker lost custody of De. B. in 2014 after she physically abused him
    1
    C. A. B.’s father surrendered his parental rights. The juvenile court also
    terminated the father’s parental rights with respect to D. M. B.’s father and H. U. B.’s
    father. The fathers have not appealed the termination of their rights.
    2
    because she believed he was stealing money from her. She was charged with child
    cruelty in connection with this abuse and received a probated sentence. De. B. was
    removed from Baker’s care, but the other children were not.
    C. A. B. had witnessed her mother strike her brother on the head with a stick
    and, after De. B. was removed from Baker’s custody, Baker began physically abusing
    C. A. B. Specifically, Baker used a stick or other object to strike C. A. B.; Baker hit
    C. A. B. if she did not complete her chores quickly enough or properly; Baker pushed
    her into the furniture and busted her lip; and Baker had burned her with hot water in
    the bathtub. When C. A. B. was interviewed in connection with the removal petition,
    she had a facial wound and bruises on her body, including a busted lip and a loose
    tooth.
    In 2015, Baker left seven-year-old C. A. B. home alone for an hour while she
    took the other two children to the doctor. During that time, C. A. B. was sexually
    assaulted by an unknown attacker. When questioned about this incident, Baker first
    stated that C. A. B. was not at home when Baker woke up that morning and that when
    C. A. B. returned to the home, she was “bleeding between her legs” and stated that
    she had “been with a boy.” Baker later changed her story and admitted that she had
    asked her brother to stay with C. A. B. while she took the other children to the doctor,
    3
    but that she left the house before her brother arrived. This was not the first time Baker
    had left C. A. B. home alone. Baker was arrested, jailed, and charged with child
    cruelty.
    The Division of Family and Children Services (“DFCS”) filed a petition for
    temporary custody of C. A. B., D. M. B., and H. U. B., noting that Baker was
    currently incarcerated on charges of child cruelty related to C. A. B. The children
    were removed from the home, taken into DFCS custody, and placed with their aunt
    and uncle. When the children were removed, H. U. B. was three months old, and D.
    M. B. was three years old.
    The juvenile court found the children to be dependent, and Baker did not
    appeal from this decision.2 DFCS prepared a case plan, which required Baker to settle
    her legal issues, obtain stable housing and income, and undergo assessments for
    parental fitness, mental health, and substance abuse, and complete any
    recommendations from those assessments.
    In January 2016, Baker pleaded guilty to child cruelty in the second degree, and
    she was sentenced to ten years, with two to serve. Although DFCS initially planned
    2
    Baker is bound by the juvenile court’s dependency order because she did not
    appeal it. See In the Interest of J. S. G., 
    242 Ga. App. 387
    , 388 (1) (529 SE2d 141)
    (2000).
    4
    on Baker’s reunification with her children, it later recommended non-reunification
    due to Baker’s incarceration and the length of time the children were in DFCS
    custody. In October 2016, DFCS filed its original petition to terminate Baker’s
    parental rights. In April 2017, DFCS amended the petition, citing as grounds for
    termination that Baker had not complied with the case plan and was currently
    imprisoned.
    At a hearing, Baker testified that she was currently incarcerated on child cruelty
    charges, and she admitted that she had physically abused De. B. and left C. A. B. at
    home alone. Baker explained that she had never applied for or had a job, and that she
    received social security benefits due to “slow brain waves inside [her] head.” She
    stated that she planned to live with her mother after her release from jail until she
    could find housing and a job. She further testified that she had completed programs
    and courses while incarcerated. However, she admitted that she did not receive any
    job training or parenting classes during her imprisonment.
    The director of a child advocacy center, who had conducted a forensic
    interview with C. A. B., testified that C. A. B. had injuries to her face and body when
    she was interviewed, and C. A. B. had stated that Baker caused those injuries. The
    director also testified that C. A. B. expressed the desire to remain with her aunt. The
    5
    court appointed special advocate (“CASA”) testified that all three children were
    thriving in the aunt’s custody. Neither D. M. B. nor H. U. B. testified due to their
    ages.
    The juvenile court found that the children were dependent due to their lack of
    parental care and control, and that Baker had subjected the children to aggravating
    circumstances through the abuse of De. B. and C. A. B. After detailing the abuse C.
    A. B. suffered, the juvenile court found that Baker’s conduct qualified as aggravated
    circumstances in that she subjected C. A. B. and her siblings to chronic abuse.
    Although the juvenile court found that Baker had met some of the parenting plan
    goals by completing the various required assessments, the juvenile court further noted
    that she had failed to provide care and support, to create a significant bond with her
    children over the previous six months, or to obtain stable housing and income due to
    her incarceration. Thus, the juvenile court found that the cause of the children’s
    dependency was likely to continue and cause serious physical, mental, emotional, or
    moral harm given the egregious abuse. The juvenile court then considered that
    placement with the aunt and uncle was in the children’s best interest because they
    would remain with family and be able to see each other. Baker sought discretionary
    review, and this Court granted her application. This appeal followed.
    6
    In her sole enumeration of error, Baker argues that the juvenile court’s decision
    is not supported by clear and convincing evidence where, as here, she made
    significant progress toward most of her case plan goals. She also contends that the
    language in the juvenile court’s order leaves it unclear whether the court was relying
    on lack of proper parental care and control or on aggravating circumstances, the latter
    of which DFCS did not allege as a basis for termination. After a careful review of the
    record, we conclude that there is sufficient evidence to support the termination of
    Baker’s parental rights.
    OCGA § 15-11-3103 sets forth the grounds for terminating parental rights and
    provides, in relevant part, that
    (a) In considering the termination of parental rights, the court shall first
    determine whether one of the following statutory grounds for
    termination of parental rights has been met:
    ...
    (2) The parent has subjected his or her child to aggravated
    circumstances;
    3
    We refer to the statute in effect in 2017, as that is the date applicable to the
    termination order in this case. We note that the statute was amended effective July 1,
    2018 and the language in the current version has changed. Compare OCGA § 15-11-
    310 (a) (5) (2017) with OCGA § 15-11-310 (a) (5) (July 1, 2018).
    7
    ...
    (5) A child is a dependent child due to lack of proper parental care or
    control by his or her parent, reasonable efforts to remedy the
    circumstances have been unsuccessful or were not required, such cause
    of dependency is likely to continue or will not likely be remedied, and
    the continued dependency will cause or is likely to cause serious
    physical, mental, emotional, or moral harm to such child.
    The term “aggravated circumstances” means, as is relevant here, the parent
    abandoned the child, subjected the child or the child’s sibling to torture or abuse, or
    assaulted the child or the child’s sibling, which resulted in serious bodily injury.
    OCGA § 15-11-2 (5) (A), (C), (F). “Abuse” is defined to include “[a]ny nonaccidental
    physical injury or physical injury which is inconsistent with the explanation given for
    it suffered by a child as the result of the acts or omissions of a person responsible for
    the care of a child[.]” OCGA § 15-11-2 (2) (A).
    If any of the statutory grounds for termination are met, the court shall then
    consider whether termination is in the children’s best interest. OCGA § 15-11-310
    (b); see also OCGA § 15-11-26. “[T]he standard of proof to be adduced to terminate
    parental rights shall be by clear and convincing evidence.” OCGA § 15-11-303.
    8
    As an initial matter, the fact that the juvenile court considered aggravating
    circumstances, even though the termination petition did not specify this as a grounds
    for termination, does not preclude our review of that basis for terminating Baker’s
    parental rights. See In the Interest of K. C. W., 
    297 Ga. App. 714
    , 717 (1) (678 SSE2d
    343) (2009) (finding no error in juvenile court’s consideration of father’s mental
    capacity even though that was not identified as a ground for termination in the
    petition).
    Turning to the merits, Baker focuses her argument on the trial court’s finding
    that the children were dependent and that the dependency was likely to continue and
    cause harm. We need not decide whether dependency was an appropriate basis on
    which to terminate Baker’s parental rights because the juvenile court also found that
    Baker subjected the children to aggravated circumstances – namely, the abuse of De.
    B. and C. A. B. – and the record amply supports termination on this statutory basis.
    See OCGA § 15-11-310 (a) (5).
    As the juvenile court found, Baker has a history of abusing her children. She
    lost custody of her oldest child because she abused him, and once he was removed
    from the home, Baker began abusing C. A. B. The juvenile court’s order details the
    physical abuse and injuries C. A. B. suffered. Moreover, C. A. B. was aware of the
    9
    abuse her older brother suffered before her mother began to abuse her. This is a
    sufficient basis for the juvenile court to terminate Baker’s parental rights with regard
    to C. A. B. See OCGA § 15-11-310 (a) (2).
    There is also sufficient evidence to support the termination of Baker’s parental
    rights with respect to D. M. B. and H. U. B. When they were removed from Baker’s
    care, D. M. B. and H. U. B. were only three years old and three months old,
    respectively. As noted, the definition of “aggravated circumstances” includes that the
    parent subjected the child or the child’s sibling to abuse, or assaulted the child’s
    sibling. See OCGA § 15-11-2 (5) (C), (F). Thus, the juvenile court was authorized to
    consider Baker’s abuse of C. A. B. as evidence that she will not be able to care for her
    other children. Id.; see also In the Interest of S. B., 
    312 Ga. App. 180
    , 183-184 (1)
    (718 SE2d 49) (2011) (sexual abuse of older siblings allowed court to infer adverse
    effect on younger siblings and find children deprived); In the Interest of S. L. B., 
    265 Ga. App. 684
    , 688 (595 SE2d 370) (2004) (“the fact that appellant had three older
    children who were not in her care or supported by her indicates that she would
    likewise be unable to care for S. L. B.”); In the Interest of K. C. H., 
    257 Ga. App. 529
    ,
    531-532 (2) (571 SE2d 515) (2002) (finding younger child dependent after parent lost
    custody of older child due to sexual abuse by mother’s live-in boyfriend).
    10
    Accordingly, there was clear and convincing evidence to support the termination of
    Baker’s parental rights on the statutory ground of aggravated circumstances due to
    abuse.4 We therefore affirm the juvenile court’s order terminating Baker’s parental
    rights to all three children.
    Judgment affirmed. Brown and Goss, JJ., concur.
    4
    In her reply brief, Baker challenges the finding that termination was in the
    children’s best interest. However, she waived this issue by not raising it in her initial
    brief. See Currid v. DeKalb State Court Probation Dept., 
    274 Ga. App. 704
    , 707 (1),
    n. 8 (618 SE2d 621) (2005) (refusing to consider legal and factual arguments raised
    for the first time in reply brief). Nevertheless, there is clear and convincing evidence
    to support the juvenile court’s finding that termination of Baker’s parental rights is
    in the best interest of the children.
    11
    

Document Info

Docket Number: A18A0862

Citation Numbers: 819 S.E.2d 916, 347 Ga. App. 474

Judges: Miller

Filed Date: 10/3/2018

Precedential Status: Precedential

Modified Date: 10/19/2024