Case Law UpdateGuardian Ad Litem Training. Columbus, Georgia. May 6, 2005

Judge Tom C. Rawlings

Juvenile Courts

Middle Judicial Circuit

Sandersville, GA

(478) 553-0012

Tom@sandersville.net

HB 212 Guardian ad Litem Training

• Brings Georgia into Compliance with federal CAPTA (Child Abuse and Treatment Act)

• Governor has to certify that this training exists in order to receive CAPTA funds

• Requires GAL’s for children in deprivation matters to have pre-appointment training

• Has grandfather provision for existing GAL’s

• Does not require training to be provided by Office of the Child Advocate

• Supported by CJCJ with amendments

• 3rd Annual Statewide GAL conference: 8/17/-8/18, Savannah, Georgia

Jurisdiction• In the Interest of J. E. T., 269 Ga. App. 567, 5

69 (9/13/ 2004) (Cobb)

• Pro Se mother, Ms. Titelman, sought order finding child deprived in custody of father. DISMISSED as disguised custody action.

• There is nothing "which would prevent a juvenile court from considering whether it had jurisdiction over a particular case initiated by a deprivation petition. If it appears from an analysis of the pleading that it is actually a disguised custody matter, then it is outside the subject matter jurisdiction of the juvenile courts."

Jurisdiction• In the Interest of T. L., 269 Ga. App. 842 (10/

4/2004) (Wayne Co.)

• Deprivation petition was brought by DFACS against mother, alleging the existence of a filthy home that was unsafe for five-month-old. Asked that temporary custody be granted to the father.

• NOT a disguised custody matter.

Deprivation: Mootness• In the Interest of I.S., 607 S.E.2d 546 (Su

preme Court, 1/10/2005)

• Juvenile Court found child deprived, allowed child to remain with parents. A few months later, Court issued dispositional order closing case. Parents appealed original deprivation finding.

• Case MOOT because child was in parents’ custody and DFCS case was closed.

Child’s Right to Representation• In the Interest of A. M. A., 270 Ga. App. 769

(12/6/2004)• “In any proceeding for terminating parental

rights or any rehearing or appeal thereon, the court shall appoint an attorney to represent the child as the child's counsel and may appoint a separate guardian ad litem or a guardian ad litem who may be the same person as the child's counsel." (citing 15-11-98)

Child’s Right to Representation•Kenny A. v. Sonny Perdue,

http://www.childwelfare.net/

•“The Court concludes that plaintiff foster children have both a statutory and a constitutional right to counsel in all deprivation proceedings, including but not limited to TPR proceedings.”

Attorney and GAL??• In re Williams, 805 NE2d 1110, (Ohio, 2004) • Child has statutory right to counsel.• Child’s wish to be with mother differed from

GAL’s recommendation.• “When a child consistently expresses a

desire to be with a parent, then a juvenile court should investigate, giving due regard to the child's maturity and understanding of the proceedings, and make a ruling about whether an attorney should be appointed to represent the child's interest and expressed wishes.”

Parent’s Right to Representation• In the Interest of A. M. A., 270 Ga. App. 769

(12/6/2004)• “It was incumbent on the court to make

inquiry into appellant's financial status and properly determine whether she was indigent. The trial court failed to exercise its affirmative duty of determining on the record whether [the mother] exercised reasonable diligence in attempting to retain trial counsel”

• VACATED.

Parent’s Right to Representation• In the Interest of B.B., 268 Ga. App. 858, (2004)

• SELF-REPRESENTATION? The record shows that Brewton has multiple mental disorders, including delusional disorder, psychotic disorder, and depression. In addition, an expert testified that Brewton confused fantasy with reality, was unable to make rational judgments, was incapable of assisting in her defense, was unable to knowingly or voluntarily waive her right to represent herself, and was incapable of independently handling an appeal.

Parent’s Rights: Representation or Presence

•  In the Interest of A.J., 269 Ga. App. 580 (9/14/2004) (Fulton)

• Incarcerated father requested counsel; not provided, nor was he brought to deprivation hearing.

• “Because the father was denied an opportunity to be heard, constitutionally or as provided by statute, the deprivation proceedings at issue can be but a nullity.”

• “Because a parent's right to counsel in such proceedings is threatened by the failure to follow the notice and hearing requirements in the Juvenile Code, our Supreme Court has held them mandatory, subject to waiver.”

Parent’s Rights: Rep., Presence• In the Interest of S.R.B., 270 Ga. App. 466 (11/1

6/ 2004) (Glynn County)

• Father requested transport from prison to attend TPR hearing. DENIED, but was represented by counsel.

• “Due to his own inability to conform to the law, he was unable to avail himself of the opportunity to appear in person; however, it is undisputed that he was represented in all the parental termination proceedings by counsel who appeared in his stead. We know of no constitutional entitlement mandating the father's right to appear personally at the termination hearing."

Deprivation: Standard

• Clear & Convincing Evidence• “This standard of review safeguards the high

value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base his determination on a few isolated instances of unusual conduct or idiosyncratic behavior. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.”

In the Interest of S. J., 270 Ga. App. 598 (2004)

Deprivation: Child Hearsay• In the Interest of B.W., 268 Ga. App. 862 (6/30/04).

(Soloman)• Child alleged deprived based on reports that the child's

mother was not protecting the child from repeated acts of sexual molestation by the mother's boyfriend. At the hearing on the matter, several witnesses testified (and a videotaped interview was shown) as to statements the child made to them regarding acts of molestation by the boyfriend and regarding the mother's refusal to protect the child from same. When the mother attempted to call the child as a witness for cross-examination, the court refused to allow the child to testify. REVERSED because child not “available” to testify.

Deprivation: Hearsay• In the Interest of E.C., 271 Ga. App. 133 (1

2/16/2004) (Ruffin, Richmond Co.)

• DFCS neither called nor cross-examined a single witness during the deprivation hearing.

• Findings based all on HEARSAY, on the mother's failure to submit to a drug screen within 24 hour, and the fact the mother is engaged in a lesbian relationship.

• REVERSED.• See also In the Int. of K.D., 2005 Ga. App.

LEXIS 381 (April 13, 2005) (contempt)

Hearsay• In the Interest of K.J., 269 Ga. App. 78 (8/11/04) (McDonald)• HEARSAY QUESTION IN TPR: The record shows that the

mother failed to keep therapy appointments as required by the case plan. According to the mother, the testimony in this regard is hearsay and should not be considered. However, "all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition." [OCGA 15-11-56 (a) To the extent such reports constitute hearsay, "the courts are presumed to have disregarded it." Here, the mother essentially admitted that she did not attend therapy, and thus we will not assume that the juvenile court relied upon hearsay in making its finding. Affirmed.

• Also: In the Interest of T. D. B., 266 Ga. App. 434 (2004)

Psychological Evidence• Herendeen v. State, 268 Ga. App. 113 (2004), cert granted

S04C1788 (9/8/04) • “[V]oluntariness is not relevant to a consideration of the

privilege; the only question is whether the records were prepared in the course of treatment, whether voluntary or not.” Lucas v. State

• “Custody or retention of parental rights is often conditioned upon consent to treatment and the successful completion of various types of therapy; the therapists report back to the juvenile court in order to assist the court in making its decision. . . . But the language in Lucas is very broad, and the Supreme Court has not  limited its application to criminal prosecutions. [T]he  potential effect of Lucas on the use of psychiatric and psychological records in the juvenile court must be addressed by the Georgia Supreme Court or by the General Assembly .”

Deprivation from Drugs• In the Interest of J.L., 269 Ga. App. 226

(8/23/04)– Even though there is no evidence of how

appellant's drug use adversely affected J. L., there is clear and convincing evidence that appellant abused cocaine. Viewing this evidence in the light most favorable to the juvenile court's judgment, it is a fair inference that use of cocaine by a parent has an adverse effect on a minor child.

• In the Interest of M.L.C., 249 Ga. App. 435, 439 (2001)

• In the Interest of D.E.K., 236 Ga. App. 574, 577-578 (1999)

Deprivation: A Filthy House• In the Interest of T. L., 269 Ga. App. 842 (10/4/

04)

• The trial court's finding of deprivation was premised on finding that the "home was filthy and unsafe due to rodent and insect infestation, and the home was extremely cluttered and presented a fire hazard for all of the occupants." It also found that the mother failed to comply with her safety plan and made minimal progress in remedying the unsuitable conditions . REVERSED. Here, although the home appeared cluttered and dirty, the environment was otherwise suitable, as the DFACS caseworker affirmed. Moreover, from August 5 until the day of the hearing, August 28, the mother showed continued improvement in achieving the goal of her safety plan.

Deprivation: Mental Incapacity• In the Interest of J. W., 271 Ga. App. LEXIS 518 (2/4/

2005)

• Father completed case plan involving child with cerebral palsy, but nonreunification ordered and adoption permanency plan approved because of father’s own permanent mental limitations.

• AFFIRMED because nonreunification presumed where there is “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.”

Deprivation: Mental Incapacity• In the Interest of C. F., 266 Ga. App. 325 (200

4)

• Mother accidentally od’d child on Tylenol with codeine. Was given case plan including attending literacy classes. Court later found continued deprivation because she could read only at kindergarten level.

• REVERSED. Based on the evidence presented at the hearing, the mother substantially complied with the goals of the case plan. NO ONE REQUIRED HER TO ACHIEVE ANY PARTICULAR READING LEVEL.

Deprivation: Safety Plans

• In the Interest of D. C., 268 Ga. App. 882 (2004)– Pertinently, it is undisputed in the evidence

that being left at home alone had frightened D. C.; that D. C. markedly improved in school after his removal from the home; and that the mother was in complete noncompliance with the safety plan that she had signed. We find that there was sufficient clear and convincing evidence for a rational trier of fact to find that D. C. was deprived for the mother's parental inability or misconduct.

Deprivation: “Roamers”

• In the Interest of E.M., 264 Ga. App. 277 (2003) (McDonald)– The juvenile court found that the father had arrived in

Athens without funds or ability to provide shelter or financial support for himself or E. M. and that he had not secured housing or the means to provide housing for himself and the child. The court further found that the father had not addressed E. M.'s emotional problems and that there was no indication he had the training or ability to do so. The court, however, acknowledged the possibility that the father could learn how to do so. The court concluded that the child was deprived and that the causes of his deprivation were the father's lack of stable housing and income, and his failure to address the child's emotional problems . REVERSED!

Deprivation: Munchausen• In the Interest of A. B., 267 Ga. App. 466 (2004)

(Spivey)– The juvenile court's conclusions concerning A. B.'s

deprivation and her mother's MSBP behavior were supported by the opinions of Dr. David Hall (the pediatrician who treated A. B. during her hospitalization in Atlanta), Dr. Eugene Kallay (a pediatrician who treated A. B. for about four to six months after she came into foster care), and Dr. Randall Alexander (an expert in pediatric child abuse who also evaluated A. B. after she had come into foster care). Those doctors' assessments were, however, premised on the assumptions that A. B.'s so-called seizures had been observed only by the mother, that they had not manifested themselves after A. B. had been removed from her mother's care and taken off seizure medication, and that A. B.'s failure to thrive continued until she went into foster care. REVERSED!

Deprivation: Present?• In the Interest of K.J., 268 Ga. App. LEXIS 843 (7/30/04)

(Welch)• Mother claimed child found deprived without evidence of present

deprivation because she had beaten child only once, 5 months before deprivation hearing. Court held that although only “one isolated incident,” it was a proper basis for the trial court to conclude that K.J. remained presently deprived. The Court of Appeals further held that the proper focus of the inquiry is the needs of the child, and that the February beating was a sufficient basis on which the court could find that the mother was not yet ready to parent K.J. in a manner suited to meet his needs. Beating was severe enough to bring mother’s parenting ability into question. Affirmed.

Termination: Typical Standards(A) The court determines parental misconduct or inability by

finding that:

         (i) The child is a deprived child, as such term is defined in Code Section 15-11-2;

         (ii) The lack of proper parental care or control by the parent in question is the cause of the child's status as deprived;

         (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and

         (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

O.C.G.A. § 15-11-94

Termination: Case Plans• In the Interest of D. L., 268 Ga. App. 360

(6/15/04) (Nash)• TPR on father: argued he could not work

toward achieving the goals because he was not aware of them and that DFCS didn’t give him enough time (just a few months).

• Evidence showed he refused to deal with DFACS or discuss the case plan. Caseworkers tried to get the father to come in to discuss the plan and his complete refusal to cooperate or even to maintain contact with DFACS.

Termination: Case Plans• In the Interest of R.S., 270 Ga. App. 810 ( 12/8/2004)

(Bartles)

• “Even if the reunification plan has been in effect for less than one year, a termination of parental rights may be warranted by other factors such as a parent's history of chronic unrehabilitated drug use (as well as felony conviction and imprisonment having a demonstrable negative effect on the quality of the parent-child relationship) [or evidence showing failure] significantly to develop and maintain a parental bond with his child in a meaningful, supportive manner. Consideration of these other factors authorized a termination of his parental rights.

Termination: Likely to Continue

• In the Interest of J.H., 267 Ga. App. 541 (2004)(Tribble)

• TPR on Mother. Children came into state care when because one was being sexually abused by her stepfather.

• The Court found that the mother’s failure to maintain contact with her children was insufficient to establish present deprivation and likelihood of continuing deprivation because it was explained by her belief that she was prohibited from contacting her children.

• REVERSED.

Termination: Likely to Continue

• “The court may consider past conduct of the parent in making its determination that such conditions of deprivation are likely to continue. Such an inference is appropriate, since the juvenile court is not required to reunite [J. W. M.] with [the mother] in order to obtain current evidence of deprivation or neglect."

In the Interest of J.W.M., A05A0433, 2005 Ga. App. LEXIS 404 (4/19/05)

Termination: Cause Harm• In the Interest of A.T., 271 Ga. App. 470 (2/1/2005)

(Blackburn, Miller, Bernes)• Mother didn’t complete case plan over two-year

period. However, HARM REQUIREMENT not met.• NO:

• Testimony of adverse effect of foster care;• Adoptive parents lined up;• Expert testimony regarding need for permanency;

• “[A]ll we have is evidence of the mother's inability to parent her children. The mother's inability to care for her children does not necessarily mean that her current relationship with them is detrimental.”

Termination: Harm• “Both children in this case exhibited distress

before and during contact with the mother, as when M. H. H. screamed and cried that he did not want to see his mother, and when M. K. H. repeatedly slapped her during her visitation sessions.”

• In the Interest of M.K.H., 270 Ga. App. 564 (11/19/2004)

• “Evidence of a lack of parental bond between the natural parent and child, that the child has adapted well to foster care, and that the foster parents wish to adopt will together support the juvenile court's conclusion that continued deprivation is likely to harm the child.”

• In the Interest of J.W.M., A05A0433, 2005 Ga. App. LEXIS 404 (4/19/05)

• HARM REQUIREMENT MET!

Termination: Harm• In the Interest of T.P., 270 Ga. App. 700 (12/1/ 200

4)

(Baldwin Co.; Adams, Ruffin, Eldridge)• “We find that the state failed to present any

evidence as to the effect that such continued deprivation would have on the child. Although there are indications in the record that the child was receiving counseling, there was no testimony from any professional, or from any lay witness, that the child would suffer physical, mental, emotional or moral harm from the current situation.”

• “Not automatically true that finding deprivation likely to continue will support finding” of harm.

• HARM REQUIREMENT NOT MET!

Relative Search

• [B]efore transferring temporary legal custody in an order of disposition under this paragraph a reasonably diligent search for a parent or relative of the child or other persons who have demonstrated an ongoing commitment to the child shall be conducted by the court and the Department of Human Resources. Such search shall be completed within 90 days from the date on which the child was removed from the home, the results of such search documented in writing and filed with the court at the time of the first review. During such 90 day period, the child may be placed in the temporary legal custody of the Department of Human Resources or any other appropriate entity or person . . . .

O.C.G.A. § 15-11-55 (a)(2)(D)

Relative Search• In the Interest of J.B.C., 261 Ga. App. 7 (2003)

• In the instant case, the mother's sister has requested that she be considered as a placement for the children. Nevertheless, the juvenile court has ordered that her home need not be investigated as a possible placement. In its order, the court refers to testimony that on two occasions prior to the termination hearing the children's aunt did not follow through on paperwork needed for such an evaluation, and that she did not visit    the children during the previous year that they were in foster care.

• REVERSED.

Relative Search• In the Interest of H.Y., 270 Ga. App. 497 (11/18/2

004)

(Polk Co.)• Sister expressed interest but did not follow up

with DFCS for home evaluation. Grandmother also expressed interest but then decided not to have her home evaluated. Aunt never supplied requested fingerprints for home evaluation.

• AFFIRMED, “due to the failure of the maternal grandmother and the mother's sister to comply with DFACS' requirements and provide the requested information.”

Relative Search

• A trial court's determination that placement with a relative is not in the best interest of the child will not be disturbed by this Court absent an abuse of discretion

In the Interest of J. B. C., 269 Ga. App. 529 (Sept 10, 2004)

• Also In the Interest of S.R.B., A05A0575, 2005 Ga. App. LEXIS 397 (4/19/2005)

Legitimation• Bowers v. Pearson, 271 Ga. App. 266 (1/7/

2005)

• Thorough discussion of the possible standards for legitimation:– Parental fitness where parent has not

abandoned “opportunity interest”– Best interests of child otherwise

Termination Hearings and Orders

• HB 195 – Shortens time frames for hearings and orders in TPR cases

• Court required to conduct hearing within 90 days of filing of TPR petition, with exceptions

• Order to issue within 30 days of close of hearing

HB 180: Background Checks on for Relative Placement• Allows DHR (DFCS) to conduct a name

only (not fingerprint) check on adults living in homes where children may be placed in exigent circumstances

• Name only check to be followed by finger print check within 15 days

• Move children more quickly to relatives

SR 161- Juvenile Law CommissionCode Revision

25 Committee Members: Appointed by:

3 Senators Senate Committee on Assignments, one designated as Co-Chair

3 Representatives Speaker of the House, one designated as Co-Chair

DJJ Commissioner Governor

DHR Commissioner Governor

CYCC Director Governor

Criminal Defense Attorney who routinely appears in Juvenile Court GPDSC

Local School Superintendent State School Superintendent

Juvenile Court Judge CJCJ

Executive Director of CJCJ Juvenile Court Judges

Superior Court Judge who previously served as Juvenile Court Judge

CSCJ

2 Members of Juvenile Law Committee of Young Lawyers Division of State Bar

Themselves (one with delinquent experience and one with deprivation experience)

The State Child Advocate Governor

Chairperson of PAC or designee PAC

A SAAG Attorney General

Prosecuting Attorney who routinely appears in Juvenile Court PAC

Sheriff Governor

Chief of Police Governor

2 Other Members Governor

Legislative Chairperson of GACDL GACDL

Report due by 12/31/06 Resolution stands abolished on 12/31/06