May 12, 2009

Parental Rights, Deprivation - Georgia Case Law Update

On March 13, 2009, the Georgia Court of Appeals affirmed the juvenile court’s termination of a father’s parental rights in In the Interest of D.F. (A08A2371). The father challenged the sufficiency of the evidence of his parental misconduct or inability, or that termination of parental rights would be in the children’s best interests. The Court of Appeals disagreed with the father, holding that “[t]he evidence authorized the juvenile court to find that although the father has not engaged in any abuse or intentional misconduct whatsoever toward his children, and although he has made a sincere and food faith effort to obtain reunification with the children by meeting his parental responsibilities, his mental infirmities simply render him incapable of parenting the children without the full-time assistance that is unavailable to him.” The Court, thus, found that terminating the father’s parental rights was in the best interests of the children.

May 7, 2009

Deprivation - Georgia Case Law Update

On February 23, 2009, the Georgia Court of Appeals affirmed the Dekalb county juvenile court’s deprivation ruling in In the Interest of Z.D. (A09A0487). The Dekalb juvenile court based its deprivation finding on the following evidence: (1) one child was punished for bedwetting by “either sitting on the toilet for prolonged periods of time or being made to sit in cold bath water;” (2) the father did not seek medical treatment for the children’s extremely unusual eating behaviors and, instead, beat the children with a belt if they ate school cafeteria food; (3) the father refused to agree to a home visit; (4) the father tried to withdraw the children from school after reports of suspected abuse; and (5) the father did not follow the DFCS safety plan. Based on the above, the Court of Appeals found that the deprivation finding by the juvenile court was supported by clear and convincing evidence.

April 30, 2009

Deprivation - Georgia Case Law Update

On February 23, 2009, the Georgia Court of Appeals affirmed the Dekalb county juvenile court’s deprivation ruling in In the Interest of N.H. (A08A1759). During the course of DFCS’ investigation of a teenage mother and her child which raised significant concerns, the DFCS case worker secured the services of a parenting support company to instruct the mother on what to feed infants and, generally, how to care for infants. During the parenting specialist’s visit to the home, she noted that the mother fed the infant inappropriate food despite instruction that it was inappropriate. As a result of the investigation, the juvenile court found that the mother “had intellectual limitations evidenced by her continued improper feeding of the child.” Despite the mother’s objection to the deprivation finding because the parenting specialist assigned by DFCS only visited the home once, the Court of Appeals found the evidence sufficient to support a finding of deprivation.

April 23, 2009

Deprivation - Georgia Case Law Update

On February 9, 2009, the Georgia Court of Appeals vacated the juvenile court’s deprivation ruling in In the Interest of A.R. (A08A2411). The children were found to be deprived because their mother had surrendered her parental rights and her father was incarcerated. Notwithstanding the fact that the father was incarcerated and, thus, his location within the state was known, he was not personally served with the deprivation petition. Due to this non-amendable defect, the Order was vacated. As evidence of the importance of personal service, during the course of the appeal, the state even conceded that the order needed to be vacated due to lack of service.

April 20, 2009

Child Support, Deprivation - Georgia Case Law Update

On January 28, 2009, the Georgia Court of Appeals affirmed the decision of the Gwinnett County Juvenile Court regarding the modification of a temporary child support award in a deprivation case. In In the Interest of R.F. (A08A1683), a biological mother’s five children were found to be deprived and removed from her custody, and she was ordered to pay child support to the temporary custodians. She alleged that the trial court erred by treating her motion as one for modification of child support rather than a final child support order, ignoring statutory guidelines in determining the child support amount, and in refusing to modify the previous order.

The Court of Appeals rejected the mother’s argument that her petition was one for a final child support order. The Court questioned whether a juvenile court was the proper jurisdiction for a final child support order, but rested its holding on the fact that there had been no final disposition of the deprivation proceedings and, thus, there could be no final order.

The mother further contended that the trial court erred in treating funds from trust proceeds as her income for purposes of a child support determination. The Court of Appeals easily dismissed this argument, citing to O.C.G.A. §19-6-15(f)(1)(A)(x), which states that both trust income and gifts that consist of cash should be included in calculating gross income for child support purposes.

In addition, the Court of Appeals affirmed the trial court’s ruling in refusing to modify the child support amount. Interestingly, though the mother was trying to modify her support obligation downward, she argued that the substantial change warranting modification was the fact that the children had increased educational expenses. The Court simply stated that “the fact that the needs of the children have increased cannot serve as the basis for decreasing the amount of child support a parent is obligated to pay” and found no other basis for downward modification, based upon the evidence presented at trial.

April 16, 2009

Deprivation - Georgia Case Law Update

In In the Interest of R.J.M. (A08A1919), a mother appealed the Order of the Fulton county juvenile court sustaining a petition for deprivation to which she stipulated and which keeps the child in the custody of Fulton county DFCS. After the minor child was sexually abused by her father, DFCS filed a Petition for Deprivation and the child was removed from the home. Subsequently, an Amended Petition for Deprivation was filed, wherein the mother stipulated that the child was deprived, and the parties submitted a proposed Protective Order to the Judge that would allow the child to remain living with her mother. The court reviewed the evidence and the proposed Protective Order, but decided not to return custody to the mother.

The mother appealed, contending that she stipulated to the deprivation only because the agreement was for the child to be returned to her. On February 10, 2009, the Georgia Court of Appeals affirmed the Order of the juvenile court, holding that “[h]ad the juvenile court merely followed the parties’ recommended disposition despite reservations it had about immediately returning R.J.M. to the mother, the juvenile court would have acted contrary to its fundamental obligation in deprivation proceedings to protect the welfare of the child.”

April 9, 2009

Deprivation - Georgia Case Law Update

On February 9, 2009, the Georgia Court of Appeals affirmed the Gwinnett county juvenile court’s finding that a child was deprived under O.C.G.A. §15-11-2(8)(A), reaffirming the standard that a juvenile court’s ruling will stand if it was supported by clear and convincing evidence. In In the Interest of J.S. (A08A1993), a mother appealed the deprivation ruling, arguing that there was insufficient evidence. The Court of Appeals rejected the mother’s claim, since the evidence suggested that the mother had filed numerous unsubstantiated claims of sexual abuse against the father and a young boy at a homeless shelter where the mother and child were living. The Court held that evidence of “repeated unfounded investigations of sexual abuse” has been held to be sufficient evidence of deprivation, and that the evidence in this case authorized the juvenile court to find by clear and convincing evidence that the child was deprived.

April 9, 2009

Deprivation - Georgia Case Law Update

On February 9, 2009, the Georgia Court of Appeals affirmed the Gwinnett county juvenile court’s finding that a child was deprived under O.C.G.A. §15-11-2(8)(A), reaffirming the standard that a juvenile court’s ruling will stand if it was supported by clear and convincing evidence. In In the Interest of J.S. (A08A1993), a mother appealed the deprivation ruling, arguing that there was insufficient evidence. The Court of Appeals rejected the mother’s claim, since the evidence suggested that the mother had filed numerous unsubstantiated claims of sexual abuse against the father and a young boy at a homeless shelter where the mother and child were living. The Court held that evidence of “repeated unfounded investigations of sexual abuse” has been held to be sufficient evidence of deprivation, and that the evidence in this case authorized the juvenile court to find by clear and convincing evidence that the child was deprived.

March 28, 2009

Georgia Deprivation Finding Upheld - Georgia Case Law Update

On November 17, 2008, the Georgia Court of Appeals affirmed a Juvenile Court’s finding of deprivation under Georgia law and the removal of the child from her parents’ custody. The trial court specifically held that the child was deprived because the child was sexually abused by her Father and because the Mother failed to protect the child from this abuse.

In In the Interest of B.H. (A08A1102), the Georgia Court of Appeals stressed that, in reviewing a judgment determining that child is deprived, “we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived.” Citing In the Interest of S.S., 232 Ga. App. 287, 289 (1998). Using this standard, the Court of Appeals affirmed the finding of deprivation as to the Father, referring to testimony of another child into the house as to the abuse perpetrated by the Father and holding that a rational trier of fact could have found deprivation by clear and convincing evidence. The Court of Appeals applied the same standard and reasoning to the deprivation finding against the Mother, referring to specific evidence that the Mother had “manipulated [the child] to ensure the return of the father to the home without regard to whether he had sexually abused the child.”

March 26, 2009

Deprivation (Procedural Issues) - Georgia Case Law Update

In the Georgia Court of Appeals finding of deprivation in In the Interest of B.H. (A08A1102) on November 17, 2008, the Court addressed several procedural issues in juvenile court proceedings. First, The Court of Appeals affirmed the juvenile court’s excluding of testimony by the child’s former court-appointed special advocate (CASA). The parents wanted the CASA to testify to dispute the child’s previous allegations. Georgia law defines the CASA role as to advocate for the best interests of the child and protects the CASA/child relationship by keeping information acquired by the CASA confidential. Though confidential information could be disclosed with a court order, the Court of Appeals agreed with the trial court that requiring this CASA to testify would be “inconsistent with the purpose of the CASA program” especially because the parents had multiple other witnesses to impeach the child.

Next, the Court of Appeals upheld the trial court’s ruling limiting the scope of discovery requested by the parents, since the parents had already obtained the requested information in other formats.

In addition, the Court of Appeals upheld the trial court’s requirement that the Father view the child’s testimony from a television monitor in another room. Though there is a constitutional right to confront one’s witnesses, the Court of Appeals addressed the importance of protecting a child witness from trauma and held that, since the Father could view the testimony as it occurred and the court provided a person to run notes from the Father to his attorney, the Father’s constitutional rights were not violated.

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