In the Interest of C. J. V. , 323 Ga. App. 283 ( 2013 )

McMillian, Judge.

The mother of C. J. V. and F. N. R., born in January 2007 and January 2009, respectively, appeals from the trial court’s order terminating her parental rights. Because the evidence does not show clearly and convincingly that the cause of the deprivation of the children is likely to continue or will not likely be remedied, we must reverse the order of termination.

On appeal from a juvenile court’s order terminating a parent’s rights, we view the evidence in the light most favorable to the court’s decision and determine whether any rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In the Interest of C. S., 319 Ga. App. 138, 139 (735 SE2d 140) (2012). Additionally,

[w]e proceed in a termination case with the knowledge 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.

(Citations and punctuation omitted.) In the Interest of M. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006). In the Interest of T. E. T., 282 Ga. App. 269, 269-270 (638 SE2d 412) (2006); In the Interest of T. J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002).

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 ofparental 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 SE2d 397) (2007). Moreover, OCGA § 15-11-94 (b) (4) (B) sets out several factors that a juvenile court may consider in deciding whether the child is without proper parental care and control. And if the children are not in the parent’s custody, pursuant to OCGA § 15-11-94 (b) (4) (C),

the court shall consider, without being limited to, 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) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.

(Emphasis supplied.)

Without belaboring the point, we will assume that the evidence was sufficient to show that the children were deprived since the mother did not appeal that determination. Accordingly, we will focus our analysis on whether the evidence clearly and convincingly showed that the deprivation was likely to continue since we believe that is the dispositive inquiry here.

The termination petition in this case was filed on May 24, 2012, less than one year after the initial case plan was entered on June 29, 2011. The mother’s reunification goals included attending parenting classes, obtaining and maintaining a source of income and stable housing, maintaining visitation with the children, “follow [ing] through with Vocational Rehab for assistance with employment,” completing a psychological evaluation and following through with recommendations, and paying child support.

The evidence at the termination hearing, which took place in August 2012, showed that despite the fact that the mother lived in an area of the state that had been particularly hard hit by recent economic downturns, the mother had been able to secure a job and had been working for about three to four months. Further, although the mother had been “laid off” at the time of the hearing, she testified that she had been definitively told by her employer that she would be called back, although she did not have an exact date for when that would be. The mother had already applied for unemployment benefits, although she had been laid off for only about one week. The mother had also been living on her own in an efficiency unit for about six months, and although the mother’s sister signed the lease and paid the rent for the first three months, the mother had apparently been paying the rent since that time.

The mother had also met the case plan requirement of attending a parenting class and completing a psychological evaluation. Further, she had consistently visited the children, and by all accounts she had a bond with them, knew how to care for them, interacted appropriately with them, and provided them presents at appropriate times. Further, she had started making child support payments after she got a job, and had made two payments totaling almost $700.

The juvenile court recognized that the mother had met some of the case plan goals, but found that the mother had not met the goals of securing stable employment because she was unemployed at the time of the hearing. Further, the juvenile court opined that because she was currently unemployed, she was in danger of losing her housing and noted the mother’s history of instability with income and housing. The juvenile court acknowledged that the mother had made two child support payments, but noted that the mother did not start paying child support until after the petition was filed. Likewise, although the juvenile court recognized that the mother had completed the psychological evaluation, he did not consider her to have fulfilled the plan requirement because she had not followed through with the recommended treatment. And the court made a negative finding concerning the mother’s failure to participate in a vocational rehabilitation program. Thus, the court concluded that the children would be currently deprived if returned to the mother because of her lack of stable, suitable housing, her lack of income, her failure to pay child support and her failure to complete “many” of the case plan goals.

Although

[i]t is well settled that a juvenile court may consider the past conduct of the parent in determining whether the conditions of deprivation are likely to continue,... it is equally true that 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. Moreover, the record must contain clear and convincing evidence that the cause of the deprivation is likely to continue.

(Citations and punctuation omitted; emphasis in original.) In the Interest of D. L. T. C., 299 Ga. App. 765, 769 (1) (684 SE2d 29) (2009). In our view, even construing the evidence in the light most favorable to the termination order, as we must on appeal, several pertinent findings in the juvenile court’s order were either contrary to or not clearly and convincingly shown by the evidence.

First, contrary to the juvenile court’s findings, the record shows that at the time the termination petition was filed, which was less than one year after the case plan was put into place, the mother had met or substantially completed many of the major goals of her case plan. She had been able to secure employment, and although she was temporarily laid off, she was certain she would be called back to work and in the interim had already applied for unemployment benefits. Thus, the juvenile court merely speculated that the mother might be without income for such a length of time that she was in danger of losing her residence because she would not be able to pay for it. And although the mother did not participate in vocational rehabilitation, she was able to secure employment through her own efforts. Further, the mother had made significant efforts to pay child support after she had secured employment, paying a substantial amount in a short period of time although her hourly wages were not high.

Further, the mother had completed her psychological evaluation. Although the juvenile court nevertheless counted this as a failure because she apparently did not follow up on the recommended treatment, neither the psychological examination nor the results were introduced into evidence at the termination hearing, and the report does not otherwise appear in the record. Thus, we do not know how minor or trivial those recommendations might have been, or even whether they related to any aspect of the mother being able to parent her children. And, importantly, there is no other evidence in the record to suggest that the mother suffered from any medically verifiable deficiency of a mental or emotional nature that would result in an inability to parent her children. Moreover, as with the case plan in general, the mother was given only a short period of time to complete the recommendations before the termination petition was filed and the hearing held.

Thus, it appears that this is a case where the primary reason the mother’s rights were terminated was due to economic inability to provide for the children, and that her shortcomings in failing to comply with the two major components of her case plan “stem largely from her relative poverty. However, [it is well established that] poverty alone is not a basis for termination.” (Citation omitted.) In the Interest of C. T., 286 Ga. App. 186, 190 (648 SE2d 708) (2007). Similarly, we have held that the fact that a mother is “unemployed, without prospects for future employment, and without any stable living arrangements” is not sufficient to terminate parental rights. Chancey v. Dept. of Human Resources, 156 Ga. App. 338, 340 (1) (274 SE2d 728) (1980). Moreover, in this case there is no evidence of a verifiable mental or physical condition that indicates the mother is incapable of caring for the children. And the juvenile court appears to have totally discounted the fact that despite the hurdles facing the mother in her bleak economic environment, she managed to find a job which gave her enough income to pay her rent and make several substantial child support payments. Accordingly, this is not a case where the “evidence” consisted of merely “positive promises” from the parent that she would change and rectify past failures so as to avoid termination of her parental rights, and the juvenile court appears to have prematurely discounted the mother’s progress toward meeting her goals. Further, the mother’s efforts to maintain a bond with her children appeared to be consistent throughout, and it appears that she had been successful in maintaining that bond during the limited amount of visitation she was allowed.¹

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. While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship. Accordingly, we reverse the judgment and remand the case for establishment of a reunification plan for the appellant, subject to whatever disposition is warranted by future events and those occurring since the last termination hearing.

(Citations and punctuation omitted.) In the Interest of C. S., 319 Ga. App. at 148. In the Interest of M.T.F., 318 Ga.App. 135(733 SE2d 432) (2012) (although mother did not have verifiable proof of income, she had maintained stable housing and her prospects for future employment were high); In the Interest of K. J., 226 Ga. App. 303 (486 SE2d 899) (1997) (termination not warranted because juvenile court’s determination that mother could not maintain an independent lifestyle was premature). Compare In the Interest of J. J. J., 289 Ga. App. 466, 469-470 (657 SE2d 588) (2008) (deprivation likely to continue when appellant had medically verifiable deficiency of mental or emotional health, failed to support the child, comply with reunification plan and failed to establish bond).

Because we find that the evidence does not support a determination that the causes of the deprivation are likely to continue or will not likely be remedied, we need not reach the issue of harm or the second stage of the inquiry concerning the best interests of the children.

Judgment reversed,

Phipps, C. J., Doyle, P. J., McFadden and Boggs, JJ., concur. Dillard, J., concurs fully and specially. Andrews, P. J., dissents.

1 The mother testified that initially she was allowed to visit every week with the children, but that amount was reduced to every two weeks and then to once per month.