In the Interest of G. M., Children (Mother) , 347 Ga. App. 487 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
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
A18A0949. IN THE INTEREST OF G. M. et al., CHILDREN
(MOTHER).
DILLARD, Chief Judge.
The mother of G. M. and N. M., two minor children, appeals the juvenile
court’s order finding her children to be dependent and granting temporary custody to
the Lowndes County Division of Family and Children Services (“DFCS”). In doing
so, the mother contends that DFCS failed to present clear and convincing evidence
that her children were dependent. For the reasons set forth infra, we reverse.
G. M. was born in September 2013, and N. M. was born in October 2015. At
N. M.’s birth, the mother tested positive for opiates and admitted to using opiates
while pregnant. As a result of the mother’s drug use, N. M. showed signs of opiate
withdrawal when she was born, but she was successfully treated, and all her
symptoms resolved by the time she was one month old. Initially, DFCS did not
remove the children from their mother’s care. Instead, the mother was referred for a
substance-abuse assessment. She complied with this directive, and, ultimately, went
to outpatient therapy to address her drug dependence. Over the next several months,
the mother was randomly drug tested. She had a positive drug test (for amphetamine)
on December 4, 2015, but all of her other drug screens—including urine tests on
November 28, 2015, December 18, 2015, and January 26, 2016, and a hair-follicle
test on May 4, 2016—were negative. The negative hair-follicle screen was indicative
of the mother not using illegal drugs for the three to six months prior to the test.
But on May 6, 2016, the mother’s therapist arrived for an appointment and
observed that she was under the influence. The mother admitted that she had taken
two Soma pills, and the therapist contacted the DFCS caseworker, who came to the
home and removed the children. Ultimately, the children were placed in foster care.
Approximately one month later, DFCS filed a complaint, alleging that the mother was
an admitted drug addict, who had not worked her case plan1 or made any progress
1
Although the complaint references a case plan and the notice of appeal asked
the clerk not to omit anything from the appellate record, it does not appear in the
record. Indeed, the only case plans in the record were entered after the instant
dependency order. We remind the parties that “although the chronology and the
nature of events may be clear to the witnesses, and others involved in the lower court
2
toward resolving her addiction. As a result, DFCS sought a finding of dependency
and custody of the children. The juvenile court entered a preliminary protective order
pending a hearing, which was later held on July 12, 2016.
At the hearing, the DFCS case manager testified that, despite the mother’s
negative drug screens, she was continuing to use opiates throughout DFCS’s
involvement with the family. Specifically, the caseworker testified the mother
admitted to her and the therapist that she was continuing to use drugs. But the
therapist testified that between January and May 2016, the mother admitted only to
using opiates on May 6. And although the mother admitted to using Soma without a
prescription on May 6, she denied using drugs since then and testified that, with the
help of therapy, she had stopped using drugs prior to May 6. The mother was
prescribed opiates three years before the hearing and, since then, she had taken drugs
on occasion without a prescription, self-medicating as a coping mechanism.
With regard to the incident on May 6, 2016, the therapist and the caseworker
observed that the mother’s speech was slurred, she moved slowly, and she was
proceedings, including the presiding judge, without the development of a full and
complete record, this Court is greatly hampered in its consideration of the issues
presented.” In the Interest of G. R. B., 330 Ga. App. 693, 696 n.6 (769 SE2d 119)
(2015) (punctuation omitted); accord In the Interest of A. J. I., 277 Ga. App. 226, 228
n.2 (626 SE2d 195) (2006).
3
irritable and unfocused. When the caseworker arrived at the mother’s home, she was
returning from a neighbor’s house with N. M. and G. M. and admitted to being under
the influence. At the hearing, the caseworker expressed concern that the mother could
not provide proper supervision to the children while she was under the influence. But
the caseworker conceded that the children were not abused nor left unsupervised, and
they never went without food, clothing, shelter, or medical care. Indeed, the
caseworker testified that she did not have any evidence the mother placed her
children in harm’s way on May 6, “but there are a lot of possibilities out there.”
As for the mother’s treatment, her therapist testified that she suffered from
depression and was forthcoming about her substance abuse. The mother had not been
required to enter an inpatient treatment program in her initial substance-abuse
assessment, and it was undisputed that she was compliant with her outpatient therapy.
The therapist nonetheless recommended inpatient treatment, which the mother
expressed a willingness to try. Nevertheless, the mother failed to enroll in inpatient
drug treatment prior to the hearing, despite a DFCS recommendation and referral.
Before the children were born, the mother was jailed as a result of shoplifting
and credit-card fraud charges. And before N. M. was born, she was arrested,
convicted, and placed on probation for driving under the influence of Soma. G. M.
4
was not with her at the time of her arrest. At the hearing, the caseworker testified that
the mother had “been to jail like three times since we’ve had this case for violations
of her probation[,]” but provided no dates or other details about the probation
violations. In this regard, the mother admitted to being incarcerated twice for
probation violations, although one time was in June 2016, after the children had been
removed from her care.
The DFCS caseworker also testified to certain medical concerns. Specifically,
she believed G. M. was suffering from tooth decay, which the mother had failed to
address. Notably, however, the children’s pediatrician testified that tooth decay is a
common problem among young children, affecting some 40 percent of the population
of South Georgia, and that it is hard to obtain a dental appointment for a child under
the age of three through Medicaid. N. M. also suffered from unexplained seizures
and, according to the caseworker, unusual eye movements. But the caseworker
admitted that there was no evidence N. M.’s seizures or unusual eye movements were
caused by anything within the mother’s control. And the pediatrician explained that
the mother obtained regular medical care for the children, including successful
treatment for N. M.’s seizures, which appeared to be unrelated to her intra-uterine
opiate exposure.
5
Following the hearing, the juvenile court entered an order, nunc pro tunc to
July 12, 2016,2 finding the children to be dependent based on the mother’s abuse of
opiates, awarding temporary custody to DFCS, and ordering the mother to enter an
inpatient substance-abuse treatment program. Specifically, the juvenile court based
its finding of dependency on the following facts: the mother tested positive for
opiates at N. M.’s birth and, as a result of her drug use, N. M. experienced opiate
withdrawal; the mother had a positive drug test in December 2015, was under the
influence on May 6, 2016, and admitted using opiates without a prescription over the
past three years; the mother was on probation based on a conviction for driving under
the influence of a prescription medication and had been incarcerated on two occasions
for probation violations since October 2015; the mother had not entered residential
drug treatment; and G. M.’s teeth were noticeably decayed. This appeal follows.3
2
The trial court entered its order in August 2016 nunc pro tunc to the July
hearing, but the transcript was not made a part of the record on appeal until October
2017 and, as a result of this delay, the case was not docketed in this Court until
December 2017.
3
Neither G. M.’s father nor N. M.’s father was served with the complaint prior
to the hearing, and neither is a party to this appeal. But since the juvenile court
entered its dependency order, G. M.’s father has legitimated him and has been
“actively participat[ing] in the case plan for reunification[.]”
6
In a single claim of error, the mother appeals from the juvenile court’s
determination that her children were dependent, contending that the court lacked clear
and convincing evidence to support its finding of dependency. We agree.
We review the juvenile court’s finding of dependency in the light most
favorable to the juvenile court’s judgment “to determine whether any rational trier of
fact could have found by clear and convincing evidence that the child is dependent.”4
In doing so, we do not weigh the evidence or determine the credibility of witnesses;
4
In the Interest of S. C. S., 336 Ga. App. 236, 244 (784 SE2d 83) (2016). The
Juvenile Code was “substantially revised in 2013.” In the Interest of M. F., 298 Ga.
138, 140 (1) n.4 (780 SE2d 291) (2015). Importantly, the former Juvenile Code
“authorized a juvenile court to award custody to the Department of any minor child
shown to be ‘deprived.’” In the Interest of S. C. S., 336 Ga. App. at 244 n.4. But the
current Juvenile Code “uses the word ‘dependent’ in lieu of ‘deprived[.]’” Id. In this
case, DFCS filed its complaint on June 6, 2016, such that the new Juvenile Code
applies. See OCGA § 15-11-16 (a) (3) (providing that a proceeding under the new
Juvenile Code “may be commenced . . . by the filing of a complaint or a petition as
provided in Article[ ] 3 . . . of [the new Juvenile Code],” which governs dependency
proceedings); In the Interest of M. F., 298 Ga. at 140 (1) n.4 (noting that the new
Juvenile Code applies to proceedings commenced on or after January 1, 2014).
Nonetheless, given the similarities between the definition of a “deprived child” and
that of a “dependent child,” we find that “our previous decisions addressing the
deprivation of a child are relevant to appeals involving the dependency of a child.”
In the Interest of S. C. S., 336 Ga. App. at 244 n.4.
7
“instead we defer to the juvenile court’s findings of fact and affirm unless the
appellate standard is not met.”5
Notably, even a temporary loss of custody is not authorized unless there is clear
and convincing evidence that the dependency “resulted from the unfitness on the part
of the parent, that is, either intentional or unintentional misconduct resulting in the
abuse or neglect of the child or by what is tantamount to physical or mental
incapability to care for the child.”6 Thus, only under compelling circumstances that
are found to exist by such clear and convincing proof may a court sever, even
temporarily, the parent-child custodial relationship.7 This is because “the right to the
custody and control of one’s child is a fiercely guarded right in our society and in our
law.”8 Indeed, as our Supreme Court recently emphasized, the right of familial
5
In the Interest of A. J. H., 325 Ga. App. 848, 848 (755 SE2d 241) (2014);
accord In the Interest of B. M. B., 241 Ga. App. 609, 609 (527 SE2d 250) (1999).
6
In the Interest of A. J. H., 325 Ga. App. at 852 (punctuation omitted); accord
In the Interest of C. R., 292 Ga. App. 346, 351 (2) (665 SE2d 39) (2008).
7
In the Interest of A. J. H., 325 Ga. App. at 852; accord In the Interest of H.
S., 285 Ga. App. 839, 841 (648 SE2d 143) (2007); In the Interest of A. J. I., 277 Ga.
App. at 227; In the Interest of S. J., 270 Ga. App. 598, 599 (607 SE2d 225) (2004).
8
In the Interest of H. S., 285 Ga. App. at 843-44; accord In the Interest of A.
J. I., 277 Ga. App. at 230.
8
relations is “among the inherent rights that are derived from the law of nature.”9 And
because of the sacred right at stake in custody proceedings, generally, the record must
contain evidence of present dependency, not merely past or potential future
dependency.10 Finally, the party who brings the petition alleging dependency, not the
parent from whose custody the child is being removed, carries the burden of proof.11
Here, the juvenile court found the children dependent, as defined by OCGA §
15-11-2 (22), in that they had been abused or neglected.12 “Neglect” is defined as,
inter alia, “[t]he failure to provide proper parental care or control, subsistence,
education as required by law, or other care or control necessary for a child’s physical,
mental, or emotional health or morals; [or] . . . [t]he failure to provide a child with
9
Patten v. Ardis, 304 Ga. 140, 141 (2) (816 SE2d 633) (2018); accord Sloan
v. Jones, 130 Ga. 836, 847 (62 SE 21) (1908); Moore v. Dozier, 128 Ga. 90, 93-94
(57 SE 110) (1907); see generally In the Interest of R. B., 346 Ga. App. 564, 571-76
(816 SE2d 706) (2018) (Dillard, C.J., concurring fully and specially).
10
In the Interest of A. J. H., 325 Ga. App. at 852; accord In the Interest of R.
S. T., 323 Ga. App. 860, 863 (748 SE2d 498) (2013).
11
In the Interest of T. P., 291 Ga. App. 83, 85-6 (3) (661 SE2d 211) (2008); see
OCGA § 15-11-180 (“The petitioner shall have the burden of proving the allegations
of a dependency petition by clear and convincing evidence.”).
12
See OCGA § 15-11-2 (22) (A) (defining a “dependent child” as “a child who
. . . [h]as been abused or neglected and is in need of the protection of the court”).
9
adequate supervision necessary for such child’s well-being[.]”13 And “abuse” is
defined as “[a]ny nonaccidental physical injury . . .; [e]motional abuse; [s]exual abuse
or sexual exploitation; [p]renatal abuse; or [t]he commission of an act of family
violence . . . in the presence of a child.”14
Although a juvenile court may consider prior unrehabilitated substance abuse
to infer harm to a child even when there is no showing of actual harm,15 the evidence
established that the mother had passed all but one of her drug screens since November
2015, she was forthcoming and compliant in her outpatient treatment, and she was
willing to enter inpatient treatment, even though she had not been required to do so
by court order prior to the instant dependency order or by her initial substance-abuse
assessment. And while the mother was under the influence on May 6, 2016, she
13
OCGA § 15-11-2 (48).
14
OCGA § 15-11-2 (2).
15
See OCGA § 15-11-311 (a) (2) (providing that, in determining whether a
child is without proper parental care or control, the juvenile court may consider, inter
alia, “[e]xcessive use of or history of chronic unrehabilitated substance abuse with
the effect of rendering a parent of such child incapable of providing adequately for
the physical, mental, emotional, or moral condition and needs of his or her child”);
In the Interest of K. W., 279 Ga. App. 319, 321 (631 SE2d 110) (2006) (“[A] juvenile
court is entitled to infer an adverse effect on the children when there is evidence of
chronic alcohol or drug abuse by the parent.”).
10
admitted the relapse to her therapist and the DFCS caseworker, and there was no clear
and convincing evidence that the children were placed in harm’s way as a result of
her intoxication that day.16
16
Compare In the Interest of G. R. B., 330 Ga. App. at 701-02 (reversing
finding of deprivation when, although parents admitted to incidents of domestic
violence in front of child and father “admitted to previously using methamphetamine
daily for five years,” the evidence established that father had passed several drug
screens, he was willing to undergo random drug tests, and he was partway through
a nine-month substance abuse program); In the Interest of A. J. I., 277 Ga. App. at
229-30 (reversing deprivation finding when, although mother tested positive for
drugs once or twice when the children were in her custody, there was no evidence that
“her occasional drug use resulted in her inability to care for her children or that it
adversely affected the children” and there was no evidence that the mother used drugs
around the children); In the Interest of M. L. C., 249 Ga. App. 435, 438-39 (548 SE2d
137) (2001) (reversing finding of deprivation when, although father admitted to
previous addiction to marijuana, he had used only once in the preceding ten months
and had passed all but one of his monthly drug tests), with In the Interest of C. R., 292
Ga. App. 346, 349-50 (1) (a) (665 SE2d 39) (2008) (affirming finding of deprivation
when “mother used cocaine both before and after the birth of [the child]. . . and often
left [the child] in the care of others when she went to use drugs”); In the Interest of
K. W., 279 Ga. App. at 322-23 (affirming finding of deprivation and holding that it
was fair to infer harm to child from mother’s chronic abuse of methamphetamine
when, despite ongoing DFCS investigation into her addiction, mother did not cease
using the drug); In the Interest of J. L., 269 Ga. App. 226, 227-29 (1) (603 SE2d 742)
(2004) (affirming finding of deprivation and holding that it was fair to infer that
mother’s chronic abuse of illegal drugs would have an adverse effect on child when
she had failed repeated drug tests despite enrollment in treatment, refused to complete
treatment, was hostile toward DFCS workers, and admitted to continued use of illegal
drugs). But cf. In the Interest of A. S., 339 Ga. App. 875, 880 (2) (794 SE2d 672)
(2016) (affirming finding that children’s dependency was likely to continue and
would not likely be remedied when there was evidence that mother and her youngest
child tested positive for cocaine and marijuana at the child’s birth, mother “continued
11
Furthermore, the evidence was undisputed that G. M. was not with the mother
when she was arrested for driving under the influence and that her other criminal
convictions occurred prior to the children’s births. As for her probation violations,
although she was jailed twice for probation violations, one violation occurred after
the children were taken out of her care, and DFCS failed to present any evidence as
to the dates or lengths of any incarcerations. Thus, DFCS failed to present clear and
convincing evidence that these probation violations resulted in abuse or neglect of the
children.17
Finally, as to G. M.’s tooth decay, the evidence was not clear and convincing
that the tooth decay was the mother’s fault or that it was causing G. M. any pain or
testing positive for cocaine and marijuana, as well as oxycodone” afterwards and,
following a period of treatment and negative screens, mother tested positive for
benzodiazepines, failed to complete substance abuse counseling, and refused “drug
screens despite being advised the refusal would be treated as a positive screen by
DFCS”).
17
Cf. In Interest of E. G. L. B., 342 Ga. App. 839, 846 (1) (805 SE2d 285)
(2017) (“[I]mprisonment alone does not automatically authorize a termination of
parental rights premised upon parental unfitness; there must be circumstances in
aggravation.” (punctuation omitted)); In the Interest of T. Z. L., 325 Ga. App. 84, 95,
98-99 (1) (a) (751 SE2d 854) (2013) (reversing termination of father’s rights when,
although there was evidence of four prior convictions, two of the crimes were
committed before the child’s birth, only one involved a lengthy (four-year) period of
incarceration, and there was no finding that the father was likely to continue to
engage in criminal activity).
12
other ill effects. Rather, the undisputed evidence was that tooth decay was extremely
common in young children and that it was very difficult to obtain treatment for same
for a child G. M.’s age on Medicaid.18
Admittedly, the mother has a substance abuse problem, which resulted in N.
M. suffering from withdrawal symptoms at birth. But since that time, the mother has
been seeking treatment for her addiction, resulting in a five-month period of negative
drug screens. Although she relapsed on May 6, 2016, on this record, we cannot say
that there was clear and convincing evidence that the children were presently
dependent as a result of her relapse, her legal problems, or G. M.’s tooth decay.
Accordingly, we conclude that DFCS failed to establish sufficient evidence of the
18
Compare In the Interest of A. J. H., 325 Ga. App. at 852 (reversing finding
of deprivation when, although mother failed to give child all of his prescribed
medication, there was no evidence to counter her explanation that some were to be
given only as needed or the dosages had been reduced, and there was no evidence that
the child suffered any ill effects from inconsistent use of medication), with In the
Interest of D. N. B., 258 Ga. App. 481, 481-82 (574 SE2d 574) (2002) (affirming
termination of parental rights when mother had a lengthy history of neglecting the
child, including the fact that, at the time child was taken into DFCS custody, she “had
five abscessed teeth and numerous other decayed teeth and urgently needed dental
work[; h]er gums were swollen, infected, and bleeding, and the child had difficulty
eating”).
13
mother’s unfitness, and we therefore reverse the juvenile court’s finding of
dependency and its subsequent award of temporary custody to DFCS.19
Judgment reversed. Mercier, J., concurs. Doyle, P. J., dissents.
* THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE
33.2 (a)
19
See In the Interest of G. R. B., 330 Ga. App. at 702 (reversing determination
that child was deprived when record lacked clear and convincing evidence of harm
to child); In the Interest of A. J. I., 277 Ga. App. at 231 (same); In the Interest of M.
L. C., 249 Ga. App. at 439 (same).
14
A18A0949. IN THE INTEREST OF G. M. et al., CHILDREN
(MOTHER).
DOYLE, Presiding Judge.
Respectfully, I dissent because there was sufficient evidence to support the trial
court’s finding of dependency.1
On appeal from an order finding a child to be a dependent child,
we review the juvenile court’s finding of dependency in the light most
favorable to the lower court’s judgment to determine whether any
rational trier of fact could have found by clear and convincing evidence
that the child is dependent. In making this determination we neither
weigh the evidence nor judge the credibility of the witnesses, but instead
defer to the factual findings made by the juvenile court, bearing in mind
that the juvenile court’s primary responsibility is to consider and protect
the welfare of a child whose well-being is threatened.2
1
To the extent that the record lacks documentation from the mother’s case plan
prior to the removal of the children in May 2016, we presume that the trial court’s
order is supported by evidence absent from the record. See In the Interest of C. M. L.,
260 Ga. App. 502, 504 (2) (580 SE2d 276) (2003).
2
(Punctuation omitted.) In the Interest of R. D., 346 Ga. App. 257, 259 (1) (816
SE2d 132) (2018).
Clear and convincing evidence is an intermediate standard of proof, greater than a
preponderance of the evidence but less than proof beyond a reasonable doubt; under
the clear and convincing evidence standard it is not necessary to make a showing of
evidence that is unequivocal or undisputed.3
“Under the most recent version of Georgia’s Juvenile Code, the juvenile court
may place a minor child in the protective custody of the Department where the State
shows, by clear and convincing evidence, that the child is a dependent child.”4 A
“dependent child” has, inter alia, “been abused or neglected and is in need of the
protection of the court.”5 “Neglect” is defined as “[t]he failure to provide proper
parental care or control, subsistence, . . . or other control necessary for a child’s
physical, mental, or emotional health or morals;” or “[t]he failure to provide a child
with adequate supervision necessary for such child’s well-being.”6
In determining whether a child is without proper parental care or
control, the trial court may consider, among other things, excessive use
of or history of chronic unrehabilitated abuse of intoxicating liquors or
3
Cf. Clarke v. Cotton, 207 Ga. App. 883, 884-885 (2) (429 SE2d 291) (1993).
4
In the Interest of A. W., 340 Ga. App. 406, 411 (1) (797 SE2d 655) (2017).
5
OCGA § 15-11-2 (22).
6
OCGA § 15-11-2 (48) (A) & (B).
2
narcotic or dangerous drugs or controlled substances with the effect of
rendering the parent incapable of providing adequately for the physical,
mental, emotional, or moral condition and needs of the child.7
Moreover, this Court has held that a juvenile court may infer that chronic,
unrehabilitated drug use has an adverse effect on a minor child “[e]ven though there
is no evidence of how [a parent’s] drug use adversely affects” a child.8
In this case, although there was disputed evidence of the mother’s sobriety
during the period between the time her infant tested positive for opiates at birth in
October 2015 and the time the mother admitted to taking unprescribed opiates
resulting in removal of the children in May 2016, there was clear and convincing
7
(Punctuation omitted.) In the Interest of J. C., 264 Ga. App. 598, 601 (2) (591
SE2d 475) (2003). See also In the Interest of S. O. C., 332 Ga. App. 738, 743-744 (1)
(774 SE2d 785) (2015) (“when there is clear and convincing evidence of such chronic
unrehabilitated drug use, the juvenile court may infer an adverse impact on the child
and find the child deprived”); In the Interest of C. R., 292 Ga. App. 346, 350 (1) (a)
(665 SE2d 39) (2008) (affirming finding of deprivation because “[c]lear and
convincing evidence was presented . . . that the [parent] had a history of drug abuse
which continued after [the child] was born and during the [parent’s] care of [the
child]”).
8
(Emphasis supplied.) See In the Interest of J. L., 269 Ga. App. 226, 229 (1)
(603 SE2d 742) (2004). Compare with In the Interest of J. C., 264 Ga. App. at 601
(2) (“parents’ admission of isolated drug use, considered alone, may not be clear and
convincing evidence that they could not provide for the ‘physical, mental, emotional,
or moral condition and needs’ of the child[]” but other evidence in addition to the
parents’ admission established deprivation) (emphasis supplied).
3
evidence on which the juvenile court could rely to support its finding that the children
were dependent because of the mother’s chronic, unrehabilitated drug use.
The record contains evidence that the mother had numerous negative drug
screens;9 however, the mother admitted to her case worker that she used unprescribed
opiates between October 2015 and May 2016.10 Additionally, her therapist testified
that she observed the mother visibly intoxicated in May 2016 at their scheduled in-
home appointment.11 That evidence coupled with the mother’s admission to using
9
The mother had negative urine tests on November 18, 2015; December 18,
2015; January 26, 2016; and a negative hair follicle test on May 4, 2016 (two days
before the admitted use). Although the hair follicle test may have covered much of
the time frame between January 26, 2016, and May 4, 2016, the exact time frame
which the test covered was not specifically indicated.
10
The mother also provided equivocal testimony at the hearing regarding her
use of opiates during that time period.
11
The case worker testified that when the mother was under the influence she
“was very irritable, not focused. She kind of moved kind of — her body movement
was kind of like slow. I guess you could say a robotic type of movement.” The case
worker testified that the drug use could be a problem because she would not be as
“alert as you need to be” or “give the reaction that you need to give” to children as
young as G. M. and N. M. Compare with In the Interest of A. J. I., 277 Ga. App. 226,
229 (626 SE2d 195) (2006) (reversing the termination of the mother’s parental rights,
noting that there was “no evidence that [the mother’s] occasional drug use resulted
in her inability to care for her children or that it adversely affected the children[;] . .
. no evidence that the caseworker observed any adverse living conditions or that the
children were not being properly cared for at that time . . .[; a]nd, according to the
caseworker, the mother told her that the children were not with her at the time of the
marijuana use.”) (emphasis supplied).
4
opiates for three years prior to N. M.’s birth, her conviction for driving under the
influence of opiates prior to N. M.’s birth, her use of opiates during her pregnancy
with N. M. resulting in the child suffering withdrawal syndrome, her incarceration
after the children were removed from her care in May, and another incarceration
during the time period of October 2015 to May 2016, the juvenile court was
authorized to find that the mother had an ongoing drug addiction,12 which it could
infer resulted in adverse effects on the children.13
12
Compare with In the Interest of A. W., 340 Ga. App. at 414-415 (1)
(reversing a deprivation finding in which there was no evidence of the mother’s
continued use of narcotics after a single, though serious, domestic violence incident
between the mother and father while the child was being cared for by a family
member, and no evidence that the mother was a long-term user); In the Interest of G.
R. B., 330 Ga. App. 693, 700-701 (769 SE2d 119) (2015) (reversing because although
there was admission of past drug use by the father, there was no evidence of
concurrent drug use during the dependency case);
13
See In the Interest of N. H., 297 Ga. App. 344, 345-346 (1) (677 SE2d 399)
(2009); In the Interest of C. R., 292 Ga. App. at 350 (1) (a); In the Interest of K. W.,
279 Ga. App. 319, 322-323 (631 SE2d 110) (2006); In the Interest of J. L., 269 Ga.
App. at 229 n.6 (collecting cases). In addition to the testimony regarding the mother’s
drug use, there was some evidence that she had misused her food stamps in April
2016, which would have affected her capacity to provide for the children, as well as
some evidence that G. M. may have tooth decay. Moreover, because the children were
very young at the time of the proceedings, it is unlikely that they could testify
regarding any adverse effects or lack thereof caused by the mother’s drug use.
5
Based on these facts and the standard of review, I would affirm the juvenile
court’s finding of dependency.
6