In the Interest Of: N. T., a Child (Father)

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, 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
November 19, 2015
In the Court of Appeals of Georgia
A15A1284. IN THE INTEREST OF: N. T., a child.
BOGGS, Judge.
The father of now seven-year-old N. T. appeals from juvenile court order
terminating his parental rights to the child.1 We hold that termination of the father’s
parental rights was premature, and therefore reverse.
In considering the [father]’s appeal, we view the evidence in the
light most favorable to the juvenile court’s disposition and determine
whether any rational trier of fact could have found by clear and
convincing evidence that the [father]’s right to custody should have been
terminated. We neither weigh the evidence nor determine the credibility
of any witnesses, but instead defer to the juvenile court’s findings of
fact.
1
We granted the father’s application for discretionary appeal. Prior to the
termination hearing, the mother surrendered her parental rights to N. T. and his half
brother J. T. As such, the mother is not a party to this appeal.
(Citation and punctuation omitted.) In the Interest o f A. B., 311 Ga. App. 629 (716
SE2d 755) (2011).
So viewed, the evidence showed that in June 2007, the father was released
upon serving a sentence following his guilty plea to attempted robbery. The father
claimed that he did not attempt to rob the victim, and that the victim only made the
accusation after the father hurt him for punching his then-wife in the face.2 In July
2007, the father met another woman, and N. T. was conceived shortly thereafter. In
September 2007, however, he was incarcerated for a parole violation for
communicating with his estranged wife. N. T. was born on April 30, 2008 during the
father’s incarceration.
In September 2008, when N. T. was five months old, the father was released,
but was again incarcerated a day later for violation of parole after being accused of
2
This was the father’s second wife. The father testified that he was first
married from 1984 to 1996 and that he had two children, twins, during this marriage,
who are now adults. He explained that the twins lived with him and his first wife from
the time they were born in 1985 until 1993 when their mother moved out and took the
children to Georgia. He admitted that he had not seen the children very often over the
years, but stated that he last saw them in December 2013.
2
biting his estranged wife. He claimed that she made the false allegation upon
discovering that he had fathered a child with another woman.
During the father’s incarceration, the mother and N. T. moved to Georgia, but
later returned to New York. In September 2010, when N. T. was 30 months old, the
father was released and began working for a temporary service. In October 2010, he
filed for, and subsequently received, joint custody of N. T.
From October 2010 to February 2011, the father remained in New York with
N. T. and his mother, and cared for the child. But in February 2011, he was again
arrested for a parole violation. The mother alleged that the father “wanted [her] cell
phone to look at porn,” and when she refused, he “wrestled me for the phone. He
broke the back door. I called police. I had bruises on my legs.” The father claimed
that he was arrested because of accusations made by the mother in retaliation for his
calling child protective services upon discovering her doing drugs.3 The father
explained that soon after his arrest, the mother again took N. T. to Georgia and
remained there.
3
A New York court subsequently granted the father’s petition for writ of
habeas corpus. See page 5 infra. That court found that the “dissimilarities” between
the mother’s injuries observed by two police officers and her statement to police were
significant. There was also evidence presented that drugs were present in the mother’s
home.
3
In May 2011, while the father remained incarcerated, a Georgia juvenile court
entered an order for shelter care for N. T. and his half-sibling J. T., following the
mother’s request that they be placed in DFCS care because she did not have housing
and could not provide for them. On May 11, 2011, the juvenile court entered orders
finding that the children were deprived and granting DFCS temporary custody of
them. The court issued an order directing DFCS to establish a case plan that required
the father to legitimate N. T., resolve his legal issues, and demonstrate his ability and
willingness to parent the child.
In May 2012, DFCS agreed to set up phone visits so that the father could talk
with N. T. It was at this time that the father was notified that his case plan had been
updated since he had provided proof of legitimation, and that the new goals for
reunification were for him to provide stable housing and income (although he was
still incarcerated), and “[c]omplete psychological and assessments and follow all
recommendations.” The case plan report indicates that the father was also required
to complete a substance abuse assessment, a parental fitness assessment and a
domestic violence assessment, all of which he completed.
In his communication with DFCS, the father expressed concern about an injury
to N. T.’s leg while in foster care, and requested that the foster parents not feed him
4
pork. The father was also concerned that N. T. had been molested. A detective
testified that he investigated the father’s claim that N. T. told him he had been
molested,4 but that based upon N. T.’s failure to disclose sexual abuse during a
forensic interview, the sheriff’s department would not conduct any further
investigation. The DFCS investigator also testified that she found no evidence of
abuse.
An August 2012 case plan report indicated that the father had legitimated N.
T. and that the other plan goals were ongoing. The report also noted that the father
had been writing to N. T. and sending him drawings, and that he “will have phone
visitation with his son.” The father was released in October 2012 following the grant
of his petition for writ of habeas corpus. The habeas court concluded that the father
was denied his statutory and constitutional rights to confront and cross-examine the
mother about the allegations leading to his arrest for violation of parole in February
2011. Upon his release, he completed a job training program as well as a parenting
class in New York.
4
N. T. told the father that his foster father, “likes kissing my no-no box.” A
DFCS investigator testified that N. T. told her “that a child at daycare had touched his
no-no square and reported that that was reported to the daycare. He didn’t go
anywhere as far as any adults . . touching him or kissing him or anything in his
private area.”
5
On January 3, 2013, DFCS filed a petition for termination of parental rights.
On January 24, 2013, because the father was prohibited from leaving the State of New
York until March 21, 2013, the juvenile court ordered the father to complete a
psychological evaluation and bonding assessment as soon after that date as possible.
The father was released from parole in March 2013, and the same week of his release
made a trip to Georgia to see N. T. At that time N. T. had been in the custody of
DFCS for nearly two years. The father applied for housing and sought employment
in Chattanooga, Tennessee, just across the Georgia state line from Walker County
where N. T. resided with his foster parents. There he completed a program to aid in
finding stable housing and employment. He also began supervised visits with N. T.
during this time. The father testified that he submitted several job applications but
was never interviewed, and that he had to cancel the only interview he was given
because he had to be in court. Although he was advised to stay in Chattanooga, he
claimed a lack of employment opportunities there and moved to Texas to live with his
brother. The father moved into his brother’s home in April of 2013 and immediately
found employment.
On April 6, 2013, the juvenile court issued an order of adjudication and
disposition in which it found that the causes of deprivation as to the father were
6
unstable housing and failure to provide adequate support for the child due to unstable
or irregular employment. The court ordered that custody of N. T. remain with DFCS,
and that the permanency plan was reunification:
The facts supporting continued efforts toward reunification are: the
Father was recently released from prison. It’s too early to specify a time
certain for reunification because: parents have not completed their case
plans. The Court finds that the concurrent permanency plan for the child
is: Adoption following Termination of Parental Rights.
A September 2013 case plan report noted that the father had completed all
assessments, and that he had given copies of check stubs from his employment in
Texas to his attorney and to DFCS, that he had given “paperwork to his attorney and
the department to show that he is no longer on probation or under parole,” that he had
weekly phone visitation with N. T. and when he “is in town he is given an
opportunity to have a supervised visitation with [N. T.]” On the same date, the
juvenile court entered a supplemental order again noting that the concurrent
permanency plan was for reunification and adoption. Subsequently, on October, 23,
2013, the mother surrendered her parental rights to N. T.
While in Texas, the father suffered a hernia injury while lifting a treadmill.
After being evaluated by doctors, he was told that he needed surgery to repair the
7
injury. After he experienced difficulty getting medical insurance in Texas, he moved
to New Jersey to obtain medical insurance. The father left Texas about 30 days before
the January 30 - February 4, 2014 termination hearing.
At the time of the hearing, the father had lived with the cousin in New Jersey
for 30 days and was employed as a pizza delivery driver. He stated that he understood
that this cousin could not be approved for N. T.’s placement because she had a felony
conviction. The father explained that once he received medical care he plans to move
back to Texas: “That’s where basically all my family’s at. I have resources out there
in Texas. I have a lot of resources. With my CDL license in Texas, I know I can get
a good job.” The father testified that once he obtained his hernia surgery in New
Jersey, he will complete the six to eight-week CDL tractor trailer training course he
had registered for there and expected to be employed by late spring, a few months
following the hearing. He testified further that each time he comes to Georgia for a
proceeding in juvenile court, he visits N. T., but that it’s expensive for him to get
transportation to and from the state.
The father explained that the only financial support he has provided to N. T.
was in the form of “little gifts, a little clothing. I’ve been doing that. And while I was
in prison, it wasn’t much, but I wrote [N. T.], like, twice a month, sent him little
8
handkerchiefs, pictures.” He stated he has provided shoes, food, and clothing for N.
T. since his release. The father also purchased birthday and Christmas gifts for N. T.
He claimed that in May 2012, a Georgia “judge gave [him] a court order for [him] not
to pay any child support for a period of two years,” and directed him to pay medical
insurance:
And when I got out, . . . I called Mr. Gary Cline.5 Gary Cline said, No,
you do not have to get medical insurance because [N. T.] already has
medical insurance. Then I wanted to send [N. T.] some money and I
wanted to send the foster parents some money, and then Mr. Gary Cline
said, No, please do not send any money. The most you could probably
send is $5 and I’ll take a picture of [N. T.] holding the $5. That way
you’ll know that he got it.
A DFCS caseworker assigned to N. T.’s case testified that she arranged for the
father to have phone calls with N. T. while he was incarcerated beginning in July
2012. She explained that “[N. T.] had a little bit of trouble adjusting to the phone
calls” and that he would cry and become upset and did not want to talk to his father
in the beginning. But over time, N. T. began participating and the calls were longer
in duration. She explained that the father would send N. T. letters and drawings
5
Cline was N. T.’s case manager from the summer of 2013 to February 2013.
9
during his incarceration. The executive director of a supervised visitation program
testified that the father visited N. T. in person seven times beginning in June 2013,
and that since that time he also had 28 phone visits with N. T. out of the 30 phone
visits scheduled. Another employee of the supervised visitation program noted that
while N. T. stated during phone calls that he wanted the father to come for a visit, she
believed that his desire for a visit was due to his desire to play on the playground and
get gifts and money from the father. But she acknowledged that over the past seven
or eight months following the father’s release, he and “[N. T.] are much closer than
they were in the beginning.”
Another caseworker testified that in April 2013, at the request of the father, she
completed an “ICPC packet” to assess the home of the father’s brother for placement
of N. T. She explained that DFCS had generally approved the brother’s home in
Texas for placement of N. T., but not for placement there with the father because he
was currently granted only supervised visitation. The caseworker explained further
that the father provided her proof of income on one occasion in 2013 when he lived
in Texas, but had not provided her with any recent proof of income. She stated that
DFCS would be seeking to place N. T. for adoption by the foster parents, who
expressed a desire to adopt him.
10
During an in camera interview at the termination hearing, the following
colloquy took place between N. T., then five-years-old, and the trial court:
The Court: He asked you if you wanted to go to Texas with him?
[N. T.]: (Witness moved head up and down.) I have to ask the judge. I
do want to.
The Court: Do you want to leave who you call your daddy?
[N. T.]: Uh-huh.
The Court: Huh? Do you like living with your daddy or you like living
with [the father]?
[N. T.]: [the father]
The Court: Do what?
[N. T.]: [the father]
The Court: Why is that?
[N. T.]: Because I love him.
The Court: You love him?
11
[N. T.]: Uh-huh
The Court: Why do you love him?
[N. T.]: Because I do because he’s my dad.
A social worker testified that when she asked N. T. if he wanted to go and live with
his father, N. T. responded that he did. When she explained that living with the father
meant he would not be with his foster family, he “became teary-eyed” and said he did
not want to go. The foster mother testified that N. T. was placed in her home in June
2011 and that by March 2013 a parent/child relationship was solidly in place. She
explained that she and her husband are “ready to give [N. T.] a forever home.” Her
husband, the foster father, did not testify.
A clinical psychologist conducted a bonding assessment for N. T. and the
father in March 2013. She concluded that N. T. got comfortable with the father “but
there was never a - - from my observation the level of bonding that there was with the
foster parents.” She acknowledged, however that “there never really could be because
of the intensity of time spent between the foster parents and [the father].” She stated
further that N. T.’s needs are being met by the foster parents, not the father. While she
testified that the father’s “instability is so strong . . ., I would not put a child in his
12
care,” she confirmed that nothing indicated that the father should not have future
contact with N. T., and that she did not know if future contact would be detrimental.
She stated that early on there was an indication that the relationship between the
father and N. T. was detrimental to N. T. because he was afraid and “very
uncomfortable,” but admitted she really did not have enough information to make that
assumption at the time of the hearing and that she would need an updated assessment.
She also stated that even if the father obtained stable housing and employment in the
future, she would not change her recommendation that he could not parent N. T. The
psychologist’s opinion was based upon her belief that N. T. needed stability and not
to be in limbo: “children need to know who their parents are or foster parents are to
become adoptive parents and the longer instability continues the more unsettled they
are.” She could not answer the question of whether breaking contact with the father
would be harmful to N. T. without further evaluation of the child.
The psychologist prepared an updated bonding assessment for N. T. and the
father based upon 45 minutes of observation the day before her testimony on the last
day of the hearing. She explained that N. T. knows that “[h]e has two dads,” that he
is comfortable with the father, but that “[N. T.] does not show bonding signals back
to him very much” and does not show the father “that much affection.” She explained
13
further that the bond between N. T. and the father is not a parental bond, and that N.
T. has a strong parental bond with his foster parents. She stated further: “I don’t want
to diminish the bond with [the father]. He is trying very hard to be part of this child’s
life and [N. T.] knows that. Okay. But it’s more like a play date. They go and they
play, and [the father] works hard at that and [N. T.] responds to that.” She concluded
that removing N. T. from the custody of his foster parents would be traumatizing for
the child and that he needs to remain with them for his emotional well-being. The
psychologist admitted however, that the bond between N. T. and the father was
stronger than it was in the beginning and that N. T. views him as his “other father.”
And when asked if it would be detrimental to N. T. if the relationship with the father
was cut off, she responded: “In the best interest of [N. T.] I think it would be
appropriate to have some contact, but having said that, I think it needs to be at the
discretion of the - - whoever’s going to be his long term parents.” The guardian ad
litem submitted a letter to the court listing when he had observed N. T. and what
documents he had reviewed in the case, and summarily recommended that the father’s
parental rights be terminated.
In a 44-page order, the juvenile court terminated the father’s parental rights to
N. T. The father filed a motion for new trial asserting in part that his trial counsel was
14
ineffective. At the hearing on the motion in November 2014,6 eight months after his
parental rights were terminated, the father explained that he was a professional driver
with TransAm trucking, had his “first operation” for his hernia, and would have a
court hearing for child support in December 2014. The juvenile court denied the
motion concluding that the father received effective assistance of counsel, and again
focused upon the lack of a parental bond between the father and N. T. and the strong
bond the child had with his foster parents. The court commended the father on his
accomplishments since the termination hearing finding that “this progress was not
likely under the evidence at that time,” and concluded that because the father would
likely not be able to develop a meaningful, supportive parental bond with N. T., harm
would come to the child if he were returned to his father.
The father appeals, challenging the sufficiency of the evidence, specifically,
the sufficiency of the evidence that the cause of the deprivation is likely to continue
or will cause N. T. serious physical, mental, emotional or moral harm.
The new Juvenile Code, which became effective on January 1, 2014, applies
to those juvenile proceedings commenced on or after that date. See Ga. L. 2013, p.
6
Counsel for N. T. did not appear at the hearing but submitted a letter to the
court stating that he “would be opposed to a new [ ] trial.”
15
294 § 5-1. Thus, the former code applies here because the order for shelter care and
deprivation order were entered in May 2011. See In the Interest of F. A. G. R., 328
Ga. App. 88, 89 n.1 (761 SE2d 512) (2014).
Under the former Code, the termination of parental rights case involves a
two-step analysis. First, there must be a finding of parental misconduct or inability,
which requires clear and convincing evidence that: (1) the child is deprived; (2) the
lack of proper parental care or control is the cause of the deprivation; (3) the cause
of the deprivation is likely to continue; and (4) continued deprivation is likely to
cause serious physical, mental, emotional, or moral harm to the child. See former
OCGA § 15-11-94 (b) (4) (A) (i) - (iv). If these four factors are found to exist, then
the juvenile court must ascertain whether termination of parental rights is in the best
interest of the child, considering his or her physical, mental, emotional, and moral
condition and needs, including the need for a secure, stable home. See former OCGA
§ 15-11-94 (a); In the Interest of A. G., 293 Ga. App. 383 (667 SE2d 176) (2008).
1. Deprivation. The father did not appeal the juvenile court orders finding N.
T. to be deprived. He is therefore bound by the court’s findings with regard to
deprivation. See In the Interest of I. S., 278 Ga. 859, 861 n. 6 (607 SE2d 546) (2005).
The most recent deprivation order found N. T. deprived as to the father because of the
16
father’s unstable housing and failure to provide adequate support for the child due to
unstable or irregular employment.
2. Lack of proper parental care and control is the cause of the deprivation. In
determining whether a child is without proper parental care or control, the juvenile
court is entitled to consider the factors outlined in former OCGA § 15-11-94 (b) (4)
(B):
(i) A medically verifiable deficiency of the parent’s physical, mental, or
emotional health of such duration or nature as to render the parent
unable to provide adequately for the physical, mental, emotional, or
moral condition and needs of the child; (ii) Excessive use of or history
of chronic unrehabilitated abuse of intoxicating liquors or 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; (iii) Conviction of
the parent of a felony and imprisonment therefor which has a
demonstrable negative effect on the quality of the parent-child
relationship; (iv) Egregious conduct or evidence of past egregious
conduct of the parent toward the child or toward another child of a
physically, emotionally, or sexually cruel or abusive nature; (v)
Physical, mental, or emotional neglect of the child or evidence of past
physical, mental, or emotional neglect of the child or of another child by
the parent; and (vi) Injury or death of a sibling under circumstances
which constitute substantial evidence that such injury or death resulted
from parental neglect or abuse.
17
Here, the juvenile court found no clear and convincing evidence with regard to factors
i, ii, iv, and vi. The court did find, however, that as outlined in OCGA § 15-11-94 (b)
(4) (B) (iii) and (v), that the father’s history of incarceration, lasting about 48 months
of N. T.’s life, had a demonstrable negative affect on the parent-child relationship,
and his failure to parent, rear, or support his now-adult children, supported a finding
that the lack of proper parental care and control is the cause of N. T.’s deprivation.
OCGA § 15-11-94 (b) (4) (C) provides that in addition to the considerations
in subparagraph (B),
where the child is not in the custody of the parent who is the subject of
the proceedings, in determining whether the child is without proper
parental care and control, 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[.]
In considering these additional factors, the juvenile court found that the father failed
to establish a parental bond with N. T., and that the foster parents had a strong
parental bond with the child, and that the father failed to demonstrate an ability to
18
parent N. T. as required by his case plan. The court noted that although the father
completed parent training and a course on strategies for obtaining and sustaining
employment, he chose to leave Chattanooga, after only a few weeks, where he was
close in proximity to N. T., and move to Texas exemplifying an “instability that has
resulted in his inability to parent [N. T.] at this time.”
Under these circumstances, clear and convincing evidence supported the
juvenile court’s conclusion that the father’s lack of proper parental care and control
caused N. T.’s deprivation. See, e.g., In the Interest of A. G., 293 Ga. App. 383, 386
(2) (667 SE2d 176) (2008) (mother’s failure to, among other things, take the steps
necessary to develop a parental bond with children, failure to finish her GED, develop
job skills, and maintain employment provided clear and convincing evidence that her
lack of parental care and control was the cause of deprivation).
3. The cause of the deprivation is likely to continue. The juvenile court found
that the evidence of the father’s past conduct “convinced the Court that the
deprivation will likely continue.”
Although it 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
19
parent in her natural child; clear and convincing evidence of present
unfitness is required.
(Citations and punctuation omitted.) In the Interest of K. D. E., 288 Ga. App. 520,
523-524 (1) (654 SE2d 651) (2007).
The juvenile court found that
[the father] has made an effort to stabilize his life after being released
from prison and to form a meaningful parental bond with [N. T.] with
minimal success. His criminal history has prevented him from obtaining
and maintaining sufficient income to provide for the basic necessities of
life for [N. T.], and it continues to do so. Although his parole is now
completed, [the father] is still in contact with the same individuals that
he associated with when his crimes were committed. He is living with
[a relative] who has a felony record for distributing illegal drugs. He has
resided in a shelter, a rental home that did not work out, a motel, his
brother and his sister in the last 10 months. He admits to still being in
regular contact with the same individuals who he contends maliciously
caused his parole to be revoked at least 2 times. It is highly unlikely that
he will ever be able to form a parental bond with [N. T.] of a meaningful
and supportive nature beyond the relationship that they now enjoy.
But the question is whether the causes of deprivation are likely to continue.
Specifically, whether there is clear and convincing evidence that the father will
continue to have unstable housing and continue to fail to provide adequate support
20
for the N. T. due to unstable or irregular employment. At the time of the hearing, the
father had admittedly for the past 30 days resided with a cousin who had a criminal
conviction for distributing drugs as the juvenile court found. But as the father
testified, he relocated to New Jersey for the purpose of getting medical care for his
hernia, care he claimed he could not receive in Texas where he had lived with his
brother for about eight months, and during which time he was successfully employed.
The father stated that he understood that his cousin’s home would not be approved
as a suitable home for N. T., but explained that he desired to have his brother’s home
in Texas approved once he returned after undergoing surgery. While the father did not
provide court-ordered child support or any other financial support because he claimed
that he was told not to send money, he consistently provided the child with clothing,
gifts and food. Even while the father was incarcerated, he sent N. T. letters, drawings
and handkerchiefs.
Although a parent’s obligation to support h[is] child exists, even in the
absence of an order directing support, we do not believe that this failure
was sufficient to support a finding that the deprivation was likely to
continue in light of the [father’s] other progress on h[is] case plan. . .
And nothing in the record indicates that [ ]he might not be able to
contribute at least a de minimis monetary amount toward h[is] child’s
support in the future.
21
In the Interest of D. J., 320 Ga. App. 247, 255-256 (739 SE2d 730) (2013) (physical
precedent only). The juvenile court’s focus mostly on the father’s status at the time
of the termination hearing does not establish clear and convincing evidence that the
cause of deprivation is likely to continue, in light of his efforts while he was
incarcerated and during the other eight months following his release. At the time of
hearing, he was employed as a pizza delivery driver, had temporary housing in order
to undergo a medical procedure, and provided the child with de minimis support. And
prior to his move to New Jersey, in the months following his release from
incarceration, he maintained housing with his brother, was employed, and provided
DFCS with proof of that employment, attempted to bond with N. T. with in-person
and phone visits, and provided gifts, some food, and clothing to the child.
“[T]ermination 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.” (Citations, punctuation
and footnote omitted; emphasis supplied.) In the Interest of C. S., 319 Ga. App. 138,
148 (1) (735 SE2d 140) (2012) (insufficient evidence that cause of deprivation likely
to continue where although father did not at all times act in an exemplary manner,
22
case did not only consist of positive promises and father’s effort to maintain a bond
with his child was consistent throughout); see also In the Interest of R. C. M., 284 Ga.
App. 791, 799-800 (III) (3) (645 SE2d 363) (2007) (where father never abused or
neglected children, children became deprived when he was arrested, case plan
included goals father could not achieve while incarcerated, and petition to terminate
was filed while father was still incarcerated before he had a real opportunity to
complete case plan goals, juvenile court’s findings that cause of deprivation likely to
continue was not supported by clear and convincing evidence); In the Interest of K.
J., 226 Ga. App. 303, 307-308 (2) (b) (486 SE2d 899) (1997) (father and child had
positive relationship to the extent permitted by father’s incarceration and no evidence
presented that child likely to suffer serious harm in absence of termination of parental
rights).
4. Continued deprivation is likely to cause serious physical, mental, emotional,
or moral harm to the child. Notwithstanding our holding in Division 3 above, we
hold further that there is insufficient evidence that continued deprivation is likely to
cause N. T. serious physical, mental, emotional or moral harm. The juvenile court
found that because the father had no parental bond with N. T., the child was thriving
in foster care, and the foster parents want to adopt him, N. T. would suffer emotional
23
harm the longer his life was in limbo. But “the juvenile court has no authority to sever
the natural parent-child relationship simply because it believes the child would be
better off with the foster family.” In the Interest of J. V. J., 329 Ga. App. 421, 428
(765 SE2d 389) (2014). In relying on the testimony of the clinical psychologist, the
trial court found:
If continued contact with the father prevented [the foster parents’]
adoption of [N. T.], it would be devastating to [N. T.] She noted that it
is very important for [N. T.] to have permanency with the foster parents
deciding if he should have contact with his father, otherwise the
continued contact with the father would be confusing, create anxiety and
could cause decomposition manifested by [N. T.] becoming unsettled,
acting out and becoming very upset.
But this finding is an inaccurate summary of the psychologist’s testimony. She
testified that if the bond was broken between N. T. and the foster parents, it would
be “highly traumatic causing depression, upset, anxiety and all the other things that
come out of breaking that.” In fact, when asked if she thought it would be detrimental
for N. T. to have contact with the father, the psychologist responded, “that is a very
good question and it’s an important question and it is one that I have been thinking
about. In the best interest of [N. T.] I think it would be appropriate to have some
contact. . . I think it needs to be at the discretion of the - - whoever’s going to be his
24
long-term parents.” On redirect, the psychologist explained that continued contact
would be devastating to N. T. if it meant that N. T. would have to be removed from
the foster parents’ home, and that if N. T. learns that there is a possibility of being
removed from their care he “could begin acting out and just be very upset.” There was
no evidence presented that the father’s present relationship with N. T. was detrimental
to his well-being. See In the Interest of S. O. C., 332 Ga. App. 738, 746 (3) (774 SE2d
785) (2015).
As the Supreme Court of the United States so eloquently explained in
the seminal decision of Santosky v. Kramer, [455 U. S. 745 (102 SCt
1388, 71 LE2d 599) (1982)], the “fundamental liberty interest of natural
parents in the care, custody, and management of their child does not
evaporate simply because they have not been model parents or have lost
temporary custody of their child to the State.”
(Citations, punctuation and footnotes omitted.) Id. at 746-747 (3).
Here DFCS filed a petition to terminate the father’s parental rights in January
2013, after his release via the grant of a petition for writ of habeas corpus but before
March 2013, when he was allowed to leave the state of New York. This gave the
father nine months to complete his case plan, the most recent report of which
(October 2013) stated that the goals were either ongoing or achieved. As the juvenile
25
court acknowledged, the father “has been consistent and persistent in his effort to get
to know [N. T.], beginning while he was incarcerated though the present date.”
Although the evidence showed that the bond was not a parental bond, there was no
evidence presented that continued efforts to reunify N. T. with his father would cause
serious physical, mental, emotional, or moral harm to the child.
“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,”(citations, punctuation and footnote omitted.) In the Interest of C. S.,
supra, 319 Ga. App. at 148 (1), and “it must be scrutinized ‘deliberately and exercised
most cautiously.’” (Citations, punctuation and footnotes omitted) In the Interest of J.
V. J., supra, 329 Ga. App. at 429. The evidence below did not clearly and
convincingly establish that the cause of N. T.’s deprivation was likely to continue or
that it would cause the child serious physical, mental, emotional or moral harm.
Accordingly, we reverse the judgment and remand the case for establishment of a
reunification plan for the father, subject to whatever disposition is warranted by
future events and those occurring since the termination hearing. See In the Interest
26
of C. S., supra, 319 Ga. App. at 148 (1).7 We express no opinion about whether
termination might be warranted based upon future conduct.
Judgment reversed. Doyle, C. J. and Phipps, P. J., concur.
7
Because we hold that the evidence does not support a determination that the
cause of deprivation is likely to continue and that N. T. would be seriously harmed
by the deprivation, we do not reach the inquiry concerning the best interests of the
child.
27