In the Interest of D. M. Et Al., Children

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, 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 20, 2016
In the Court of Appeals of Georgia
A16A1295. IN THE INTEREST OF D. M. AND B. A. M., children.
DILLARD, Judge.
The mother of D. M. and B. A. M., two minor boys, appeals from the juvenile
court’s order terminating her parental rights.1 She argues that the juvenile court erred
by terminating her rights when the evidence was insufficient to support the court’s
decision. Because the evidence was sufficient as to some factors but the juvenile court
failed to make the requisite findings of fact as to others, we vacate and remand for
additional proceedings consistent with this opinion.
On appeal, we view the evidence in the light most favorable to the juvenile
court’s disposition to determine whether any rational trier of fact could have found
1
The juvenile court also terminated the rights of the boys’ father, but he is not
a party to this appeal.
by clear and convincing evidence that the mother’s parental rights should have been
terminated.2 But as we have repeatedly emphasized, 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.3
So viewed, the record reflects that D. M. (born August 3, 2009) and B. A. M.
(born January 4, 2011) were first removed from their mother’s home in February
2011, after reports of domestic violence, unsanitary living conditions, the threat of
2
In the Interest of J. A. B., 336 Ga. App. 367, 368 (785 SE2d 43) (2016).
3
Id. (punctuation omitted); see also In the Interest of S. O. C., 332 Ga. App.
738, 743 (774 SE2d 785) (2015); In the Interest of C. J. V., 323 Ga. App. 283, 283
(746 SE2d 783) (2013); 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, 269-70 (638 SE2d 412)
(2006); In the Interest T. J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002). With
this in mind, we note that the mother’s brief fails to comply with the rules of this
Court, which require an appellant’s brief to contain “argument and citation of
authorities.” Court of Appeals Rule 25 (a) (3); see also Court of Appeals 25 (c) (2)
(“Any enumeration of error which is not supported in the brief by citation of authority
or argument may be deemed abandoned.”). Our review of this appeal was hindered
by the appellant’s failure to cite to a single legal authority beyond the new provision
in the Juvenile Code.
2
imminent eviction, and the mother’s refusal to stay in a shelter to protect the children
from their father. In April 2011, after a hearing, the juvenile court found by clear and
convincing evidence that the children were deprived and placed them in the
temporary custody of the Department of Family and Children Services (“the
Department”).
In July 2011, the juvenile court approved of a case plan for the boys’ parents,
which required the parents to, inter alia, complete parenting classes, obtain and
maintain a source of income and housing, obtain childcare and assure that the
children were properly supervised, complete a domestic-violence assessment, and
complete and follow recommendations after a psychological evaluation. Then, in
March 2012, the Department moved for an extension of the previous deprivation
order so that it could monitor the mother’s progress with the case plan until she
moved into a new home, though she had completed some aspects of the plan.4
On April 27, 2012, nunc pro tunc March 28, 2012, the juvenile court entered
an order returning custody of the children to the mother subject to an aftercare plan.
However, on April 24, 2012, the court entered a second shelter-care order that once
again placed the children in the Department’s custody following a report by law
4
D. M. and B. A. M.’s father consented to non-reunification with the children.
3
enforcement that then one-year-old B. A. M. had nearly been run over while playing
in the middle of the street and while then two-year-old D. M. was playing by the edge
of the road (both of the toddlers had been playing outside without any supervision by
their mother). In addition to this troubling report, the Department discovered that
upon the children’s return to the mother, she had failed to use either the approved
child-care services arranged by the Department or the Department-approved backup
child-care services offered by a friend. Instead, the mother left the children in the care
of a person who had a criminal drug history and an “extensive” history with the
Department. Furthermore, two Department representatives observed that the children
were very dirty while in the mother’s care, that the upkeep of her home had suffered
a drastic decline, and that she was once again facing eviction.
The same day that the children returned to the Department’s custody, the
juvenile court approved of a second case plan for the mother, which required the
mother to submit to another psychological evaluation and develop a stronger support
system, in addition to goals that were identified in the previous case plan. Then, on
June 7, 2012, nunc pro tunc May 16, 2012, the court found by clear and convincing
evidence that the children were deprived.
4
The children were again returned to the mother in March 2013, and their return
was subject to her completion of an aftercare case plan. While working on the goals
of the aftercare plan, in August 2013, the Department received an unsubstantiated
report that then two-year-old B. A. M. had a visible hand-print-shaped bruise on his
face. D. M., who was then four years old, was interviewed and reported that the
mother’s boyfriend had hit the child and called him a “lying baby” and his mother a
“stupid bitch.” The Department eventually closed the case against the mother,
however, due to her progress with the aftercare case plan.
But then, in December 2013, the Department received substantiated reports that
D. M. had significant bruising on his bottom and back and a cut on his arm. D. M.
reported that his mother had cut his arm with a knife and hit him, which he said she
did when she was angry. When the Department spoke to the mother about these
allegations,5 she responded that the cut to D. M.’s arm was caused by a chain link
fence but admitted that the bruises were probably from a spanking she administered
with a belt. Around this same time, the mother was also referred to a therapist for
5
The Department representative met with the mother while the mother was at
D. M.’s school, and the representative noticed that while the mother was inside, she
left B. A. M. and another unidentified small child unattended in her car with the
engine running.
5
assistance in dealing with what was deemed problematic behavior by D. M., but the
mother did not believe that D. M. needed services and instead minimized his
behavior.
Finally, in April 2014, the Department received a report that D. M. had a burn
mark on his foot, and that he had again been found in the middle of the road. And
then, in May 2014, the Department received a report that a neighbor saw still four-
year-old D. M. outside after dark, knocking repeatedly in an attempt to enter the
residence, and that the mother appeared unconcerned when she eventually opened the
door. The same neighbor also reported seeing D. M. nearly get hit by a car while in
the road. Thereafter, when the Department presented her with a safety plan that
required her agreement to properly supervise the children and keep them out of the
road, the mother refused to sign it.
Ultimately, in July 2014, following a hearing on a dependency petition, the
juvenile court found by clear and convincing evidence that the children were
dependent and placed them in the Department’s custody for a third time. And in
February 2015, the Department filed its petition seeking to terminate the mother’s
parental rights, upon which a hearing was conducted in July 2015.
6
At the hearing on the petition to terminate, Department representatives and
other witnesses recounted many of the facts set forth supra and, additionally, there
was testimony that the mother cooperated with the Department when actively working
on case plans but would immediately become uncooperative after the children were
returned to her custody. One Department representative opined that the mother
behaved appropriately toward her children in a controlled environment but quickly
regressed without supervision, and that the allegations against the mother grew more
serious with each removal from her care. As a result, the Department determined that
it would no longer seek reunification between the mother and children.
The boys’ foster parents also testified at the hearing and expressed their desire
to adopt the children. They recounted the struggles they encountered when the boys
first came to live in their home a little over one year prior to the hearing—particularly
angry, defiant behavior by D. M., who was prone to hoarding, lying, nightmares, bed
wetting, and daytime accidents. But both children’s behavior had significantly
improved since beginning therapy. The foster parents also testified that they had
stopped informing the children about impending visits with their mother until they
were en route because there was a noticeable increase in defiant and regressive
behavior before and after these visits, with D. M. the one to primarily exhibit this
7
behavior, which B. A. M. would then mimic. Additionally, the foster father testified
that the boys no longer referred to their mother as “mom,” but instead by her first
name.
In addition to the foregoing, the juvenile court also considered deposition
testimony from a licensed psychologist who conducted three separate evaluations of
the mother in April 2011, June 2012, and September 2014. In April 2011, she
diagnosed the mother with postpartum depression and deferred a diagnosis of
personality disorder. The psychologist also noted that the mother seemed to be
attracted to abusive, possessive men who abused substances, and she believed the
mother’s low self-esteem was manifested by continuously making poor decisions.
Finally, the psychologist noted that while the mother was motivated to regain custody
of the children, she was also at a high risk for abusive parenting due to inappropriate
expectations of children (i.e., the mother believed the children could care for
themselves without supervision) and lacked the ability to be empathetic.
During the second evaluation in June 2012, the psychologist no longer believed
the mother suffered from postpartum depression, but again observed that she
displayed traits of dependent and avoidant-personality disorder. She also noted that
the mother trusted others too quickly, was prone to procrastination, had not made
8
progress on recommendations from the April 2011 report, was defensive about the
possibility of suffering from psychological problems, and was extremely sensitive to
criticism.
Finally, during the September 2014 evaluation, the mother denied having any
problems, which suggested to the psychologist that she had not benefitted from the
many services provided by the Department and was not making progress. And this
time, the psychologist also confirmed that the mother was suffering from a
personality disorder. According to the doctor, the mother’s personality disorder
impaired her functioning and resulted in rigidity to change, which explained the
mother’s inability to make lasting change and her immediate relapses to past
behaviors. Thus, the psychologist concluded that providing the mother with
additional services would not improve her prognosis because she had already been
provided with these services without any improvement. The psychologist ultimately
recommended against returning the children to the mother’s custody unless another
individual could be present in the home and assume primary responsibility for
parenting the children, and thus, she recommended the termination of the mother’s
parental rights.
9
After considering all of the foregoing, the juvenile court terminated the
mother’s parental rights on October 22, 2015. This Court thereafter granted the
mother’s application for discretionary appeal.
At the outset, we note that the new Juvenile Code applies in this case because
the State’s petition to terminate parental rights was filed in February 2015.6 And like
the former Juvenile Code, Georgia’s new Juvenile Code provides for a two-step
process to determine whether terminating parental rights is warranted in a particular
case.7
First, as outlined in OCGA § 15-11-310 (a), the juvenile court must find that
one of five statutory grounds for termination has been satisfied. And here, the
statutory ground at issue is OCGA § 15-11-310 (a) (5), which provides that
[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
6
See Ga. L. 2013, p. 294, § 5-1 (“This Act shall become effective on January
1, 2014, and shall apply to all offenses which occur and juvenile proceedings
commenced on and after such date.”).
7
Compare OCGA § 15-11-310 with OCGA § 15-11-94 (2013).
10
the continued dependency will cause or is likely to cause serious
physical, mental, emotional, or moral harm to such child.
Then, if the foregoing statutory grounds for termination have been met, the juvenile
court must determine whether termination is in the child’s best interests after
considering several specified factors.8 Of course, in all termination proceedings, “the
standard of proof to be adduced to terminate parental rights shall be by clear and
convincing evidence.”9
Importantly, our analysis is guided by an overarching constitutionally based
principle that the termination of parental rights is a “remedy of last resort which can
be sustained only when there is clear and convincing evidence that the cause of the
deprivation is likely to continue.”10 Indeed, as our Supreme Court has emphasized,
“[o]ne who is subject to the termination of parental rights cannot be equated to an
individual who faces an interruption of custody” because termination “is a much more
8
See OCGA § 15-11-310 (b) (1)-(4).
9
OCGA § 15-11-303.
10
In the Interest of T. Z. L., 325 Ga. App. 84, 91 (1) (a) (751 SE2d 854) (2013)
(punctuation omitted); accord In the Interest of J. V. J., 329 Ga. App. 421, 424 (765
SE2d 389) (2014); In the Interest of C. J. V., 323 Ga. App. 283, 287 (746 SE2d 783)
(2013).
11
severe measure” that acts “to address the most exceptional situation of a deprived
child and that child’s continuing deprivation.”11 Put another way, “it is one thing to
remove a child from a parent’s custody for reasons of neglect, but quite another to
permanently and irrevocably sever the natural parent-child relationship.”12 And there
is a reason for this crucial distinction: “Terminating a parent’s rights, and thus forever
foreclosing the possibility of restoring the natural parent-child relationship, is
governmental extinguishment of the parent and child’s constitutional right to familial
relations.”13 There is, then, no judicial determination which has “more drastic
significance than that of permanently severing a natural parent-child relationship.”14
11
In the Interest of A. C., 285 Ga. 829, 833 (2) (686 SE2d 635) (2009); see also
In the Interest of S. O. C., 332 Ga. App. at 742.
12
In the Interest of S. O. C., 332 Ga. App. at 742.
13
Id. at 742-43. Indeed, unlike a custody proceeding, the termination of a
natural parent’s right to familial relations with his or her child “leaves the parent with
no right to visit or communicate with the child, to participate in, or even to know
about, any important decision affecting the child’s religious, educational, emotional,
or physical development.” Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452
U.S. 18, 39 (I) (A) (101 SCt 2153, 68 LE2d 640) (1981) (Blackmun, J., dissenting).
14
In the Interest of L. J. L., 247 Ga. App. 477, 479 (543 SE2d 818) (2001)
(punctuation omitted); In the Interest of S. O. C., 332 Ga. App. at 743; In the Interest
of J. V. J., 329 Ga. App. at 429; In the Interest of K. J., 226 Ga. App. 303, 306 (1)
(486 SE2d 899) (1997).
12
Accordingly, “compelling facts” are required to terminate parental rights.15 And while
the juvenile court may consider past parental conduct in deciding whether the cause
of deprivation is likely to continue,16 evidence of past unfitness, standing alone, is
“insufficient to terminate the rights of a parent in her natural child.”17 Rather, clear
and convincing evidence of “present unfitness is required.”18 Finally, this Court has
repeatedly recognized that the constitutional 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
15
In the Interest of J. V. J., 329 Ga. App. at 424 (punctuation omitted); accord
Carvalho v. Lewis, 247 Ga. 94, 94 (274 SE2d 471) (1981); see also In the Interest of
S. O. C., 332 Ga. App. at 743; In the Interest of K. J., 226 Ga. App. at 306 (1).
16
In the Interest of D. W., 294 Ga. App. 89, 92 (1) (c) (668 SE2d 533) (2008);
accord In the Interest of J. V. J., 329 Ga. App. at 424; In the Interest of A. H., 289 Ga.
App. 121, 123 (1) (a) (656 SE2d 254) (2008).
17
In the Interest of C. J.V., 323 Ga. App. at 285 (punctuation omitted); accord
In the Interest of J. V. J., 329 Ga. App. at 424; In the Interest of D. L. T. C., 299 Ga.
App. 765, 769 (1) (684 SE2d 29) (2009).
18
In the Interest of C. J. V., 323 Ga. App. at 285 (punctuation omitted); accord
In the Interest of J. V. J., 329 Ga. App. at 424-25; In the Interest of D. L. T. C., 299
Ga. App. at 769 (1).
13
under the most compelling circumstances.”19 With these guiding principles in mind,
we turn now to the mother’s enumerations of error.
1. First, the mother argues that there was insufficient evidence to show that D.
M. and B. A. M. were dependent due to a lack of proper parental care and control and
that, if the children were dependent, there was insufficient evidence to show that any
dependency was likely to continue. We disagree as to both contentions.20
(a) The children were dependent due to a lack of proper parental care and
control. First, the current version of OCGA § 15-11-311 provides that, inter alia, in
determining whether a child lacks proper parental care or control, the trial court shall
consider, but is not limited to, “[a] medically verified deficiency of such child’s
parent’s physical, mental, or emotional health that is of such duration or nature so as
19
In the Interest of J. V. J., 329 Ga. App. at 425 (punctuation omitted); accord
In the Interest of C. J. V., 323 Ga. App. at 283; In the Interest of J. C., 242 Ga. 737,
738 (1) (251 SE2d 299) (1978); In the Interest of M. A., 280 Ga. App. 854, 856 (635
SE2d 223) (2006); In the Interest of T. J. J., 258 Ga. App. 312, 314 (574 SE2d 387)
(2002).
20
The mother does not argue that there was insufficient evidence that
“reasonable efforts to remedy the circumstances have been unsuccessful or were not
required” and, accordingly, we do not address that factor of OCGA § 15-11-310 (a)
(5). See In the Interest of J. V. J., 329 Ga. App. at 425 n.15 (noting that because
mother only challenged the sufficiency of the evidence as to one factor in termination
of her rights, this Court did not consider the other factors because those arguments
were abandoned).
14
to render such parent unable to provide adequately for his or her child”21 and
“[p]hysical, mental, or emotional neglect of his or her child or evidence of past
physical, mental, or emotional neglect by the parent of such child or another child of
such parent.”22 Further, this Code section provides that in determining whether a child
who is not in the parent’s custody and care is without proper parental care and
control, the trial court shall also consider, though is not limited to considering,
whether the parent, without justifiable cause, has “failed significantly for a period of
six months prior to the date of the termination hearing” to (1) develop and maintain
a parental bond with the child in a meaningful, supportive manner; (2) provide for the
care and support of the child as required by law or judicial decree; and (3) comply
with a court-ordered plan that was designed to reunite the parent and child.23
In the case sub judice, the mother did not appeal from the juvenile court’s prior
determinations that the children were deprived and/or dependent.24 Thus, we assume
21
OCGA § 15-11-311 (a) (1).
22
OCGA § 15-11-311 (a) (5).
23
OCGA § 15-11-311 (b) (1)-(3).
24
Because the Department initiated proceedings and the court made findings
of deprivation and/or dependency in April 2011, May 2012, and July 2014, both the
new and old Juvenile Code applied at different times. See supra note 6.
15
that the evidence was sufficient to show deprivation/dependency at those times.25 And
after reciting the facts that formed the basis of the prior findings of deprivation and/or
dependency, the court concluded that they were “compelling evidence of past and
present parental unfitness.”26 Specifically, the trial court highlighted the repeated
instances of inadequate food, clothing and shelter; inadequate supervision, including
the very young children being found unattended in the street on multiple occasions
throughout the mother’s history with the Department; the mother’s resistance towards
acquiring recommended therapy for D. M. due to her denial that he needed same;
injuries that were sustained by the children; and the psychologist’s ultimate
recommendation that the mother not be reunited with the children. As previously
noted, the psychologist based that recommendation upon her finding that the mother’s
personality disorder prevented her from making lasting changes and resulted in
immediate regression each time the children were returned to her custody, and she
25
See In the Interest of T. M., 329 Ga. App. 719, 723 (1) (a) (766 SE2d 101)
(2014) (“For purposes of our review, we assume that the evidence was sufficient to
show that [the child] was deprived since the mother did not appeal that
determination.”); In the Interest of R. A. R., 259 Ga. App. 680, 684-85 (1) (577 SE2d
872) (2003) (“The children’s deprivation was established by orders of the juvenile
court, which were not appealed. The mother is therefore bound by the findings in
those orders.”).
26
(Emphasis supplied).
16
also opined that the diagnosis explained the mother’s lack of progress despite the
Department providing numerous services to her over the years.27
Accordingly, there was sufficient evidence that D. M. and B. A. M. were
dependent at the time of the termination hearing due to a lack of proper parental care
and control.28
(b) The children’s dependency is likely to continue or will not likely be
remedied. After detailing the foregoing facts (which provided a basis for finding
dependency due to a lack of proper parental care and control), the trial court noted
that even after receiving extensive services, the mother “has been unable to
demonstrate an ability to care for her children once they are returned to her care.” The
27
The trial court also noted that the mother had been ordered to pay child
support while the children were in foster care but that she had failed to regularly pay
and was currently in arrears. But see In the Interest of J. V. J., 329 Ga. App. at 424
(“A parent’s poverty alone is an insufficient basis to terminate parental rights.”); In
the Interest of C. J. V., 323 Ga. App. at 287 (“[I]t is well established that poverty
alone is not a basis for termination.” (punctuation omitted)).
28
See In the Interest of P. D. W., 296 Ga. App. 189, 194 (1) (b) (674 SE2d 338)
(2009) (holding that mother’s lack of parental care and control were the cause of
deprivation when the mother, inter alia, failed to undergo court-mandated drug
treatment and provide adequate housing); In the Interest of R. A. R., 259 Ga. App. at
876 (1) (holding that mother’s lack of parental care and control were the cause of
deprivation when, inter alia, there was evidence that mother suffered from
psychological disorder that affected her ability to adequately care for her children,
and she failed to provide adequate housing and medical care for her children).
17
evidence supported this finding because, again, the mother’s inability was explained
by the psychologist as being due to a personality disorder, which the doctor said
impaired functioning, resulted in rigidity and/or inability to change, and resulted in
the mother’s immediate relapses to past inappropriate behaviors when no longer
under Department supervision. The court also noted that the mother had been
uncooperative with regard to the recommendation that D. M. receive the counseling
he needed for his emotional well being. There was, then, evidence to support the
court’s finding that “the conditions of dependency of the child[ren] remain and are
not likely to be remedied . . . .”29
2. In her final enumerations of error, the mother argues that there was
insufficient evidence that any continued dependency was likely to cause serious
physical, mental, emotional, or moral harm to D. M. and B. A. M., and that there was
29
See In the Interest of R. N. H., 286 Ga. App. 737, 741-42 (1) (c) (650 SE2d
397) (2007) (holding that trial court’s finding that deprivation was likely to continue
was supported by the fact that, inter alia, father’s drug abuse remained untreated,
father had been incarcerated repeatedly, and the family still did not have adequate
housing for children); In the Interest of J. S. B., 277 Ga. App. 660, 662-63 (2) (c) (627
Se2d 402) (2006) (holding that trial court’s finding that deprivation was likely to
continue was supported by the fact that mother was shown to have difficulty
developing parenting skills, counselor testified that she did not believe mother would
be able to develop appropriate skills in light of mental and emotional deficiencies,
and mother failed to consistently participate in treatment for her mental-health
condition).
18
insufficient evidence that termination of her rights was in the boys’ best interests.
Because the trial court failed to provide the requisite findings of fact, we must vacate
and remand to the trial court to make appropriate findings.
(a) The dependency was likely to cause serious physical, mental, emotional, or
moral harm. It is well established that an order terminating parental rights must
“contain explicit findings supporting the conclusion that the continued deprivation
will cause or is likely to cause serious physical, mental, emotional, or moral harm to
the child.”30 Indeed, the propriety of a termination order is “inextricably intertwined
with one of this republic’s oldest and most sacred fundamental liberties—the right to
maintain familial relations and integrity.”31 To this end, a mere recitation that this
30
In the Interest of D. T. A., 312 Ga. App. 26, 33 (1) (d) (717 SE2d 536)
(2011); accord In the Interest of K. J., 226 Ga. App. 303, 307 (2) (b) (486 SE2d 899)
(1997); see Beasley v. Jones, 149 Ga. App. 317, 319 (1) (254 SE2d 472) (1979)
(reversing trial court when termination order did not specify facts supporting court’s
conclusion that child would likely suffer serious emotional harm).
31
In the Interest of J. E., 309 Ga. App. 51, 63 (711 SE2d 5) (2011) (Dillard, J.,
dissenting); see also Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 503-04
(III) (97 SCt 1932, 52 LE2d 531) (1977) (plurality opinion) (“[T]he Constitution
protects the sanctity of the family precisely because the institution of the family is
deeply rooted in this Nation’s history and tradition.”).
19
legal requirement was met will not suffice.32 Instead, the juvenile-court judge must
ascertain the facts and state “not only the end result of that inquiry but the process by
which it was reached.”33 More precisely, the juvenile court must make explicit
findings of fact with regard to the child or children at issue, rather than a hypothetical
child placed in the subject child or children’s situation.34 And here, the juvenile court
did the latter. Indeed, without providing any specific findings of fact based upon the
evidence before it, the juvenile court merely cited to generalized concerns of doubt,
32
In the Interest of D. T. A., 312 Ga. App. at 33 (1) (d); accord In the Interest
of K. J., 226 Ga. App. at 307 (2) (b); see also In the Interest of G. K. J., 187 Ga. App.
443, 445 (3) (370 SE2d 490) (1988) (“The juvenile court cannot make a bare recital
as to a finding of the existence of parental misconduct or inability.”).
33
In the Interest of D. T. A., 312 Ga. App. at 33 (1) (d) (punctuation omitted);
accord In the Interest of J. M., 251 Ga. App. 380, 383 (4) (554 SE2d 533) (2001);
Beasley, 149 Ga. App. at 319 (1).
34
See In the Interest of J. E., 309 Ga. App. at 66 (Dillard, J., dissenting) (“[W]e
have repeatedly held that a juvenile court is required to make explicit findings of fact
that the child at issue—rather than some hypothetical child placed in the subject
child’s situation—will suffer or is likely to suffer serious harm as a result of the
continued deprivation.”); accord In the Interest of C. J. V., 323 Ga. App. 283, 292
(746 SE2d 783) (2013) (Dillard, J., concurring fully and specially); In the Interest of
E. G., 315 Ga. App. 35, 48 (726 SE2d 510) (2012) (Dillard, J., concurring fully as to
Div. 3 and in judgment only as to Div. 1 and 2); In the Interest of A. E. S., 310 Ga.
App. 667, 671 (714 SE2d 148) (2011) (Dillard, J., concurring specially).
20
uncertainty, hesitancy in life, and the need for stability and permanence. This will not
do. In a termination proceeding,
each child in these circumstances deserves and requires a full, separate,
and thoughtful review by the juvenile court of the issues relating to [the
child], and this cannot and will not happen if the child is treated as if she
were merely part of some detached hypothetical inquiry—rather than as
what she actually is, a human being with inherent dignity and worth.35
Without specific factual findings as to D. M. and B. A. M. on the question of
the likelihood of serious harm from continued deprivation, “we have no basis to
evaluate whether the juvenile court properly determined that clear and convincing
evidence supported the court’s conclusion on that issue.”36 Accordingly, even though
we are extremely troubled by the mother’s history with the Department, we are
nevertheless required to vacate the judgment of the juvenile court and remand the
case with the direction that the court make appropriate and explicit findings of fact
35
In the Interest of J. E., 309 Ga. App. at 66-67 (Dillard, J., dissenting)
(punctuation omitted); see also Crook v. Ga. Dep’t of Human Res., 137 Ga. App. 817,
818 (224 SE2d 806) (1976) (“If [the juvenile court] is required to make the explicit
statutory findings, the tendency to rely upon individualistic and subjective notions of
morality or sociological advantage will be lessened.”).
36
See In the Interest of D. T. A., 312 Ga. App. at 33 (1) (d).
21
and conclusions of law, and enter a new judgment based on these findings and
conclusions.37
(b) Termination was in the children’s best interest. Having determined that it
is necessary to remand for further proceedings on an issue that is a prerequisite for
considering whether the juvenile court erred in finding that termination of the
mother’s parental rights was in the children’s best interests, we cannot reach that
question.38 However, we note that the juvenile court’s order is deficient in this area
as well, again providing only a mere recitation that the court considered the relevant
factors as to the children’s best interests39 without any specific findings as to D. M.
and B. A. M. For the same reasons as those set forth in Division 2 (a) supra, the
37
See id. at 34 (1) (d) (vacating and remanding for appropriate findings of fact);
In the Interest of T. S., 310 Ga. App. 100, 104 (2) (712 SE2d 121) (2011) (same); In
the Interest of S. W. J. P. D., 275 Ga. App. 272, 273 (620 SE2d 497) (2005) (same).
38
See In the Interest of D. T. A., 312 Ga. App. at 34 (2) (“Having found it
necessary to remand this case for further proceedings as to issues that are
prerequisites for consideration of the question whether the court erred in finding that
the termination of parental rights was in the children’s best interest, we cannot reach
that question.”); see OCGA § 15-11-310 (a), (b) (providing that consideration of the
child or children’s best interest occurs only after the court determines that the
statutory grounds for termination have been met).
39
See OCGA § 15-11-310 (b) (1)-(4).
22
juvenile court, should it reach this question again on remand, must provide
appropriate and specific findings of fact on this issue as well.
For all of the foregoing reasons, we vacate the juvenile court’s judgment and
remand for further proceedings consistent with this opinion.
Judgment vacated and case remanded with direction. Phipps, P. J., and
Peterson, J., concur.
23