Case Law Update Tom C. Rawlings Judge, Juvenile Courts Middle Judicial Circuit Sandersville, GA...

Case Law UpdateCase Law Update

Tom C. RawlingsTom C. RawlingsJudge, Juvenile CourtsJudge, Juvenile CourtsMiddle Judicial CircuitMiddle Judicial Circuit

Sandersville, GASandersville, GA(478) 553-0012(478) 553-0012

[email protected]@sandersville.netwww.tomrawlings.comwww.tomrawlings.com

The Court’s Authority

“I’m in Control Here!”

The Court’s AuthorityThe Court’s Authority

Once the juvenile court commits Once the juvenile court commits a child to the custody of DFCS, it a child to the custody of DFCS, it cannot dictate where DFCS must cannot dictate where DFCS must place the child or, in this case, place the child or, in this case, prohibit DFCS from making a prohibit DFCS from making a certain placement.certain placement.

In the Int. of A.N, 281 Ga. 58 In the Int. of A.N, 281 Ga. 58 (2006)(2006)

In re TidwellIn re Tidwell, , 279 Ga. App. 734 279 Ga. App. 734 (6/12/2006).(6/12/2006).


H.B. 153: Placement OversightH.B. 153: Placement Oversight• Before DFCS changes a foster child’s Before DFCS changes a foster child’s

placement:placement: Must inform the court and counsel. Must inform the court and counsel. The court or a party can request a The court or a party can request a

hearing to determine whether the move hearing to determine whether the move is appropriate.is appropriate.

Court is required to defer to the agency Court is required to defer to the agency BUT may have some discretion to block BUT may have some discretion to block a move that is completely a move that is completely inappropriate. inappropriate.

Coming July 1 as part of 15-11-55!Coming July 1 as part of 15-11-55!

The Court’s AuthorityThe Court’s Authority In re TidwellIn re Tidwell, , 279 Ga. App. 734 279 Ga. App. 734

(6/12/2006).(6/12/2006). No Power to hold DFCS in Contempt No Power to hold DFCS in Contempt

because:because:• No authority to place child committed No authority to place child committed

to DFCSto DFCS• Order showed “nothing on its face to Order showed “nothing on its face to

demonstrate that the deprivation of demonstrate that the deprivation of [the child] with regard to [the father] [the child] with regard to [the father] had been placed in issue in the had been placed in issue in the hearing.”hearing.”


In Re: LilesIn Re: Liles, 278 Ga. App. 496 , 278 Ga. App. 496 (629 SE2d 492) (3/27/2006)(629 SE2d 492) (3/27/2006)

Court properly found a parent in Court properly found a parent in contempt for refusing to bring his contempt for refusing to bring his child to visits with the probation.child to visits with the probation.

Court had placed the parent Court had placed the parent under a protective order pursuant under a protective order pursuant to OCGA § 15-11-5, order clearly to OCGA § 15-11-5, order clearly spelled out the parent’s duties.spelled out the parent’s duties.


In re In re Jefferson, ___ Ga. App. ___ Jefferson, ___ Ga. App. ___ (A06A2253 decided 3/30/07).(A06A2253 decided 3/30/07).

Re-affirmed Court’s authority to Re-affirmed Court’s authority to hold person in criminal contempt.hold person in criminal contempt.

Defeating Juvenile Court Defeating Juvenile Court Jurisdiction via an Adoption PetitionJurisdiction via an Adoption Petition Child declared deprived, placed in Child declared deprived, placed in

foster care or with relativesfoster care or with relatives TPR filed or pending; parents TPR filed or pending; parents

surrender rights to a relativesurrender rights to a relative Relative goes to Superior Court and Relative goes to Superior Court and

files adoption petitionfiles adoption petition Snyder v. CarterSnyder v. Carter, 276 Ga. App. 426 , 276 Ga. App. 426

(Ga. Ct. App. 2005)(Ga. Ct. App. 2005) Edgar v. ShaveEdgar v. Shave, 205 Ga. App. 337 (422 , 205 Ga. App. 337 (422

SE2d 234) (1992).SE2d 234) (1992).

Custody or Deprivation?Custody or Deprivation? Unchallenged, valid allegations of Unchallenged, valid allegations of

deprivation;deprivation; No evidence that the parents were No evidence that the parents were

engaged in any custody dispute prior engaged in any custody dispute prior to the instances of deprivation;to the instances of deprivation;

THEN cannot say that the deprivation THEN cannot say that the deprivation proceeding was a disguised custody proceeding was a disguised custody

• In the Interest of D.T., ___ Ga. App. ___ In the Interest of D.T., ___ Ga. App. ___ (A06A1815 decided 3/20/07).(A06A1815 decided 3/20/07).

• In the Int. of K.L.H.,In the Int. of K.L.H., 281 Ga. App. 394 281 Ga. App. 394 (2006). Putative father brings deprivation (2006). Putative father brings deprivation proceeding against custodial mother, court proceeding against custodial mother, court finds child deprived and awards custody to finds child deprived and awards custody to the father and his mother.the father and his mother.

Rights, etc.Rights, etc.

Notice and Opportunity to be HeardNotice and Opportunity to be Heard

Father incarcerated in Tennessee Father incarcerated in Tennessee served by certified mail in TPR case. served by certified mail in TPR case. Acknowledged service.Acknowledged service.

• In the Int. of C.SIn the Int. of C.S., 279 Ga. App. 831 (632 ., 279 Ga. App. 831 (632 SE2d 665) (May 12, 2006)SE2d 665) (May 12, 2006)

Supreme Court has granted certiorari Supreme Court has granted certiorari in S06G1802 to determine whether in S06G1802 to determine whether delivery by certified mail is sufficient delivery by certified mail is sufficient in a termination of parental rights in a termination of parental rights case. case.

The Court has referred the parties to The Court has referred the parties to OCGA §§ 15-11-39.1 and 15-11-96.OCGA §§ 15-11-39.1 and 15-11-96.

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

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

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

• VACATED.VACATED.

Parent’s Right to RepresentationParent’s Right to Representation• BUT SEE: BUT SEE: In the Int. of Z.K.In the Int. of Z.K., ___ Ga. , ___ Ga.

App. ___ (A07A0253 decided 4/19/07)App. ___ (A07A0253 decided 4/19/07)• Court held that a father had to show Court held that a father had to show

not onlynot only the denial of his right to the denial of his right to counsel counsel but alsobut also harm resulting from harm resulting from it.it.

• Father failed to show how having Father failed to show how having counsel might have changed the counsel might have changed the result, not entitled to reversal.result, not entitled to reversal.

• physical precedent onlyphysical precedent only..

Parent’s Right to RepresentationParent’s Right to Representation• While termination of parental rights cases While termination of parental rights cases

are more civil in nature than criminal, are more civil in nature than criminal, parents facing termination of their rights parents facing termination of their rights have been afforded some of the protections have been afforded some of the protections to which criminal defendants are entitled. to which criminal defendants are entitled. This includes providing to indigent parents This includes providing to indigent parents effective representation at all stages of any effective representation at all stages of any proceeding involving the termination of proceeding involving the termination of their parental rights.” their parental rights.”

• In the Int. of E.GIn the Int. of E.G., ___ Ga. App. ___ ., ___ Ga. App. ___ (A06A1944 decided 3/27/07).(A06A1944 decided 3/27/07).

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

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

Parent’s Rights: Representation or Parent’s Rights: Representation or PresencePresence

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

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

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

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

Parent’s Rights: Rep., PresenceParent’s Rights: Rep., Presence• In the Interest of S.R.BIn the Interest of S.R.B., 270 Ga. App. 466 ., 270 Ga. App. 466

(11/16/ 2004) (Glynn County)(11/16/ 2004) (Glynn County)• Father requested transport from prison to Father requested transport from prison to

attend TPR hearing. DENIED, but was attend TPR hearing. DENIED, but was represented by counsel.represented by counsel.

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

The Right to What You Say?The Right to What You Say?• To be present and to be heard during the To be present and to be heard during the

proceedings, to be represented by counsel at proceedings, to be represented by counsel at all stages of the proceedings, to present all stages of the proceedings, to present evidence and cross-examine adverse evidence and cross-examine adverse witnesses, to waive recordation of the witnesses, to waive recordation of the proceedings, and to petition the court to proceedings, and to petition the court to modify, vacate, or set aside an order. If the modify, vacate, or set aside an order. If the parents are indigent, the court must appoint parents are indigent, the court must appoint counsel to represent the parents and their counsel to represent the parents and their child.child.

• In the Int. of J.L.B.,In the Int. of J.L.B., 280 Ga. App. 556 (___ 280 Ga. App. 556 (___ SE2d ___) (7/14/2006)SE2d ___) (7/14/2006)

Substantive StuffSubstantive Stuff

What What IsIs Deprivation? Deprivation?

Lack of Parental Care and Control?Lack of Parental Care and Control? But see: In re Tidwell, 279 Ga. App. But see: In re Tidwell, 279 Ga. App.

734 (6/12/2006)734 (6/12/2006) Parties had stipulated child was “not Parties had stipulated child was “not

deprived as to the father,” so Court deprived as to the father,” so Court had no authority over the father.had no authority over the father.


Deprivation must be Deprivation must be PRESENT.PRESENT. ““Evidence of past unfitness, standing Evidence of past unfitness, standing

alone, is insufficient to terminate the alone, is insufficient to terminate the rights of a parent in her natural child; clear rights of a parent in her natural child; clear and convincing evidence of present and convincing evidence of present unfitness is required.”unfitness is required.”• In the Int. of M.A., 280 Ga. App. 854 (2006).In the Int. of M.A., 280 Ga. App. 854 (2006).• Father who tried to burn down the family’s Father who tried to burn down the family’s

house was no longer around; the mother had house was no longer around; the mother had complied with the case plan, visited with the complied with the case plan, visited with the children, completed her parenting classes, and children, completed her parenting classes, and lived in the same home for two years.lived in the same home for two years.


Deprivation must be Deprivation must be PRESENT.PRESENT. Normally, in a TPR, an unappealed Normally, in a TPR, an unappealed

finding of deprivation is sufficient to finding of deprivation is sufficient to find deprivation for TPR purposes.find deprivation for TPR purposes.

BUT -- BUT -- In the Int. of R.C.MIn the Int. of R.C.M, ___ Ga. App. , ___ Ga. App. ___ (A07A0399 decided 4/5/07) ___ (A07A0399 decided 4/5/07)

Binds a parent to the finding that Binds a parent to the finding that at the at the time of the order the child was deprived time of the order the child was deprived for the reasons given in the orderfor the reasons given in the order..


Deprivation must HARM child.Deprivation must HARM child. In the Int. of D.S, ___ Ga. App. ___ In the Int. of D.S, ___ Ga. App. ___

(A06A1992 decided 2/28/07) (A06A1992 decided 2/28/07) • Court reversed a finding of deprivation; Court reversed a finding of deprivation; • no evidence showed a link between the no evidence showed a link between the

stepfather’s harsh criticism and “ranting” stepfather’s harsh criticism and “ranting” and the child’s emotional problems.and the child’s emotional problems.

Not “idiosyncratic”, “isolated” behavior.Not “idiosyncratic”, “isolated” behavior.• In the Int. of C.L.Z.In the Int. of C.L.Z., 283 Ga. App. 247 , 283 Ga. App. 247

(1/9/07)(1/9/07)

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

(2004)(2004)• Even though there is no evidence of how Even though there is no evidence of how

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

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

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

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

(2004)(2004)

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

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

Deprivation: Mental IncapacityDeprivation: Mental Incapacity• 14-year-old mother, IQ of 57. 14-year-old mother, IQ of 57. • Mother completed all her case plan goals except Mother completed all her case plan goals except

completing high school or getting a GED. She had completing high school or getting a GED. She had maintained a home, completed parenting classes, maintained a home, completed parenting classes, and cooperated with DFCS. and cooperated with DFCS.

• ““Although [she] has completed most of her case Although [she] has completed most of her case plan goals and wishes to be part of her child’s life, plan goals and wishes to be part of her child’s life, the evidence shows that she lacks the mental the evidence shows that she lacks the mental capacity to care for H.F.G. without around-the-clock capacity to care for H.F.G. without around-the-clock assistance from others, something DFCS is not assistance from others, something DFCS is not obligated to provide. . . . The test must be whether obligated to provide. . . . The test must be whether the parent, ultimately standing alone, is capable of the parent, ultimately standing alone, is capable of mastering and can effectively demonstrate the mastering and can effectively demonstrate the ability to utilize parenting skills.”ability to utilize parenting skills.”

• In the Int. of H.F.G.In the Int. of H.F.G., 281 Ga. App. 22 (2006), 281 Ga. App. 22 (2006)

Unexplained InjuriesUnexplained Injuries

A finding of deprivation does not A finding of deprivation does not require determining “whodunit.”require determining “whodunit.”•In the Interest of S.Y., ___ Ga. App. ___ (A07A0271 decided 3/14/07).

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

finding that:finding that:

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

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

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

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

O.C.G.A. § 15-11-94O.C.G.A. § 15-11-94

““Likely to Continue”Likely to Continue”

““In determining whether the In determining whether the children's deprivation is likely to children's deprivation is likely to continue, the juvenile court may continue, the juvenile court may consider the parent's past conduct. consider the parent's past conduct. Furthermore, the decision as to a Furthermore, the decision as to a child's future must rest on more than child's future must rest on more than positive promises which are contrary positive promises which are contrary to negative past fact.”to negative past fact.”• In the Int. of J.D., 280 Ga. App. 861 In the Int. of J.D., 280 Ga. App. 861

(2006)(2006)


““the juvenile court, not [the the juvenile court, not [the appellate] court, determines whether appellate] court, determines whether a parent's conduct warrants hope of a parent's conduct warrants hope of rehabilitation, and it also judges the rehabilitation, and it also judges the credibility of appellant's good credibility of appellant's good intentions." intentions." • In the Int. of M.R.,In the Int. of M.R., 282 Ga. App. 91 282 Ga. App. 91

(2006)(2006)


Mother with prior clean record imprisoned Mother with prior clean record imprisoned for vehicular homicide; had been a soldier.for vehicular homicide; had been a soldier.

““There is not clear and convincing There is not clear and convincing evidence that the cause of the deprivation evidence that the cause of the deprivation is likely to continue and will not be is likely to continue and will not be remedied. Imprisonment alone does not remedied. Imprisonment alone does not automatically authorize a termination of automatically authorize a termination of parental rights premised upon parental parental rights premised upon parental unfitness; there must be circumstances in unfitness; there must be circumstances in aggravation.“aggravation.“• In the Int. of J.A.W., 281 Ga. App.545 (2006) In the Int. of J.A.W., 281 Ga. App.545 (2006)


The Importance of Case Plans:The Importance of Case Plans: No likelihood that deprivation would No likelihood that deprivation would

continue where parents completed most of continue where parents completed most of case plan.case plan.• In the Int. of A.F.In the Int. of A.F., 283 Ga. App. 509 (2/8/07) , 283 Ga. App. 509 (2/8/07)

No such showing where father not given No such showing where father not given opportunity to complete case plan.opportunity to complete case plan.• In the Int. of R.C.M., In the Int. of R.C.M., A07A0399 A07A0399

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

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

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

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

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

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

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

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

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

• In the Interest of J.W.M., A05A0433, 2005 Ga. App. LEXIS 40In the Interest of J.W.M., A05A0433, 2005 Ga. App. LEXIS 404 (4/19/05)4 (4/19/05)

• HARM REQUIREMENT MET!HARM REQUIREMENT MET!

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

4)4)

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

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

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

• HARM REQUIREMENT NOT MET!HARM REQUIREMENT NOT MET!

Termination: HarmTermination: Harm

• ““[T]he court is authorized to consider [T]he court is authorized to consider the adverse effects of prolonged the adverse effects of prolonged foster care in determining that foster care in determining that continued deprivation is likely to continued deprivation is likely to cause serious physical, emotional, or cause serious physical, emotional, or moral harm to the child.”moral harm to the child.” In the Int. of K.L.In the Int. of K.L., 280 Ga. App. , 280 Ga. App. 773 (2006); 773 (2006);


• "It is well settled that children need "It is well settled that children need permanence of home and emotional permanence of home and emotional stability or they are likely to suffer serious stability or they are likely to suffer serious emotional problems. Children cannot be emotional problems. Children cannot be kept in foster care limbo with no hope of kept in foster care limbo with no hope of any permanent future." any permanent future."

In the Interest of B. D., 281 Ga. App. 725 In the Interest of B. D., 281 Ga. App. 725 (2006); (2006);


• ““Deprivation of love and nurture Deprivation of love and nurture is equally as serious as mental or is equally as serious as mental or physical disability.” physical disability.” In the Int. of T.G.Y.In the Int. of T.G.Y., 279 Ga. App. , 279 Ga. App. 449, 472 (631 SE2d 467) (May 17, 449, 472 (631 SE2d 467) (May 17, 2006). 2006).


• This battle over the standard – actual This battle over the standard – actual proof or inference from the totality of proof or inference from the totality of the circumstances – came to a head the circumstances – came to a head recently!recently!

• In the Int. of J.K., 278 Ga. App. 564 In the Int. of J.K., 278 Ga. App. 564 (629 SE2d 529) (2006). (629 SE2d 529) (2006).

• The Result: STALEMATE!!!!The Result: STALEMATE!!!!

Voluntary SurrenderVoluntary Surrender

No Grace Period for surrender made No Grace Period for surrender made in open court – cannot withdraw it, in open court – cannot withdraw it, unlike the 10-day written surrender.unlike the 10-day written surrender.• In the Int. of T.C.DIn the Int. of T.C.D, 281 Ga. App. 517 , 281 Ga. App. 517

(2006).(2006). Once surrender made to DFCS, no Once surrender made to DFCS, no

right to further notice.right to further notice.• In the Int. of A.C.In the Int. of A.C., ___ Ga. App. ___ , ___ Ga. App. ___

(A06A2255 decided 2/27/07)(A06A2255 decided 2/27/07)

Putative Fathers and LegitimationPutative Fathers and Legitimation Too often, social workers tend to neglect Too often, social workers tend to neglect

putative fathersputative fathers

Even if a putative father is not legitimate, Even if a putative father is not legitimate, it is critical that they be contacted and it is critical that they be contacted and that a case plan be established for them.that a case plan be established for them.

In the Int.of T.E.T.,In the Int.of T.E.T., 282 Ga. App. 269, 273 282 Ga. App. 269, 273 (2006)(2006)• Court of Appeals reversed a termination Court of Appeals reversed a termination

determination because DFCS never determination because DFCS never implemented a reunification plan for the implemented a reunification plan for the father, who had expressed an interest in father, who had expressed an interest in taking the child.taking the child.

Putative Fathers and LegitimationPutative Fathers and Legitimation In the Int. of C.L.In the Int. of C.L., ___ Ga. App. ___ (A06A2490 , ___ Ga. App. ___ (A06A2490

decided 3/29/07).decided 3/29/07). Putative father sued to legitimate his biological Putative father sued to legitimate his biological

child, who was born to the mother while she was child, who was born to the mother while she was married.married.

Mother later incarcerated, left the child with her Mother later incarcerated, left the child with her husband. husband.

Superior court legitimated the biological father Superior court legitimated the biological father then referred the matter to juvenile court to then referred the matter to juvenile court to determine custody.determine custody.

Juvenile court, applying a “best interests of the Juvenile court, applying a “best interests of the child” standard, gave the husband and the newly child” standard, gave the husband and the newly legitimated father joint custody.legitimated father joint custody.

Court of Appeals’ decision: once the superior Court of Appeals’ decision: once the superior court legitimated the biological father, the court court legitimated the biological father, the court had no discretion to give custody to the “former” had no discretion to give custody to the “former” legal father becauselegal father because “the statutes do not “the statutes do not contemplate a child having two legal fathers.”contemplate a child having two legal fathers.”

Aqui sin documentosAqui sin documentos Essentially, the termination of the father's parental rights Essentially, the termination of the father's parental rights

was based on the possibility that the father could someday was based on the possibility that the father could someday be deported and, with her mother's parental rights also be deported and, with her mother's parental rights also severed, A. P. might be returned to DFACS's custody or severed, A. P. might be returned to DFACS's custody or sent to Mexico. When we wield the awesome power sent to Mexico. When we wield the awesome power entrusted to us in these cases, our decisions must be based entrusted to us in these cases, our decisions must be based on clear and convincing evidence of parental misconduct or on clear and convincing evidence of parental misconduct or inability and that termination is in the best interest of the inability and that termination is in the best interest of the child, and not speculation about "the vagaries or child, and not speculation about "the vagaries or vicissitudes that beset every family on its journey through vicissitudes that beset every family on its journey through the thickets of life." A court may not sever a parent-child the thickets of life." A court may not sever a parent-child relationship solely because it has determined that the child relationship solely because it has determined that the child might enjoy certain advantages elsewheremight enjoy certain advantages elsewhere• In the Interest of M.M.,In the Interest of M.M., 263 Ga. App. 353, 362-363 (Ga. Ct. 263 Ga. App. 353, 362-363 (Ga. Ct.

App. 2003)App. 2003)

EvidenceEvidence

Mental Health PrivilegeMental Health Privilege

State v. HerendeenState v. Herendeen, 279 Ga. 323 (2005)., 279 Ga. 323 (2005).• Records of an individual’s Records of an individual’s treatmenttreatment by a by a

psychiatrist, etc. is privileged psychiatrist, etc. is privileged even if court-even if court-ordered.ordered.

In the Int. of I.M.G.In the Int. of I.M.G., 276 Ga. App. 598 , 276 Ga. App. 598 (12/1/05). (12/1/05). • Psychosexual counseling from the Medlin Clinic Psychosexual counseling from the Medlin Clinic

was privileged even though it was required as was privileged even though it was required as part of reunification plan.part of reunification plan.

Mental Health PrivilegeMental Health Privilege

Solutions?Solutions?• Guardian ad litem may be appropriate person Guardian ad litem may be appropriate person

to determine whether privilege should be to determine whether privilege should be waived for a child. See waived for a child. See HerendeenHerendeen..

• For adults: What about OCGA § 24-4-22: “If a For adults: What about OCGA § 24-4-22: “If a party has evidence in his power and within his party has evidence in his power and within his reach by which he may repel a claim or charge reach by which he may repel a claim or charge against him but omits to produce it, . . . a against him but omits to produce it, . . . a presumption arised that the charge or claim presumption arised that the charge or claim against him is well-founded.”against him is well-founded.”

Child HearsayChild Hearsay

In the Int. of S.S.In the Int. of S.S., 281 Ga. App. 781 , 281 Ga. App. 781 (2006).(2006).

In the Int. of B.W.In the Int. of B.W., 268 Ga. App. 862 , 268 Ga. App. 862 (2004).(2004).

The Layers of Federal Law

§ 15-11-58. § 15-11-58. Reasonable efforts regarding reunification of family; reports and Reasonable efforts regarding reunification of family; reports and plans; custody orders when reunification found not to be in child's best plans; custody orders when reunification found not to be in child's best interest; duration of orders; review of determinations; hearings; interest; duration of orders; review of determinations; hearings; supplemental orderssupplemental orders (a) A court's order removing a child from the child's home shall be based upon a (a) A court's order removing a child from the child's home shall be based upon a finding by that court that continuation in the home would be contrary to the welfare of finding by that court that continuation in the home would be contrary to the welfare of the child. If the court places custody of the child in the Division of Family and Children the child. If the court places custody of the child in the Division of Family and Children Services of the Department of Human Resources, the court shall also determine as a Services of the Department of Human Resources, the court shall also determine as a finding of fact whether reasonable efforts were made by the Division of Family and finding of fact whether reasonable efforts were made by the Division of Family and Children Services of the Department of Human Resources and any other appropriate Children Services of the Department of Human Resources and any other appropriate agencies to preserve and reunify families prior to the placement of a child in the agencies to preserve and reunify families prior to the placement of a child in the custody of the Department of Human Resources, to prevent or eliminate the need for custody of the Department of Human Resources, to prevent or eliminate the need for removal of the child from that child's home, and to make it possible for the child to removal of the child from that child's home, and to make it possible for the child to return safely to the child's home. Such findings shall also be made at every return safely to the child's home. Such findings shall also be made at every subsequent review of the court's order under this chapter.subsequent review of the court's order under this chapter.

(1) In determining reasonable efforts to be made with respect to a child, as (1) In determining reasonable efforts to be made with respect to a child, as described in this subsection, and in making such reasonable efforts, the child's health described in this subsection, and in making such reasonable efforts, the child's health and safety shall be the paramount concern;and safety shall be the paramount concern;

(2) Except as provided in paragraph (4) of this subsection, reasonable efforts shall (2) Except as provided in paragraph (4) of this subsection, reasonable efforts shall be made to preserve and reunify families:be made to preserve and reunify families:

(A) Prior to the placement of a child in the custody of the Department of Human (A) Prior to the placement of a child in the custody of the Department of Human Resources, to prevent or eliminate the need for removing the child from the child's Resources, to prevent or eliminate the need for removing the child from the child's home; andhome; and (B) To make it possible for a child to return safely to the child's home; (B) To make it possible for a child to return safely to the child's home;

Federal Law’s ImpactFederal Law’s Impact

““This court is concerned that the This court is concerned that the decision to file the petitions to decision to file the petitions to terminate parental rights in these terminate parental rights in these cases was made by the trial court, cases was made by the trial court, not by DHR.”not by DHR.”• V.M. v. State Dep't of Human Resources V.M. v. State Dep't of Human Resources

(In re M.M.),(In re M.M.), 710 So. 2d 915, 921 (Ala. 710 So. 2d 915, 921 (Ala. Civ. App. 1998)Civ. App. 1998)

Federal Law’s ImpactFederal Law’s Impact ““I can only conclude that, having been informed I can only conclude that, having been informed

by the juvenile court at the permanency hearing by the juvenile court at the permanency hearing that it need not make any further efforts at that it need not make any further efforts at reunification of the family and could proceed with reunification of the family and could proceed with adoption planning for the children, and having adoption planning for the children, and having located prospective adoptive parents in R.V. and located prospective adoptive parents in R.V. and A.V., DHR summarily rejected the possibility of an A.V., DHR summarily rejected the possibility of an outcome for the children other than adoption.”outcome for the children other than adoption.”

Referring to ASFA: “The desirable permanency to Referring to ASFA: “The desirable permanency to be achieved by adoption cannot, constitutionally, be achieved by adoption cannot, constitutionally, be a part of the evidentiary calculus at the be a part of the evidentiary calculus at the adjudicatory stage of a parental-rights-adjudicatory stage of a parental-rights-termination proceeding.”termination proceeding.”• D.M. v. Walker County Dep't of Human Res.,D.M. v. Walker County Dep't of Human Res., 919 So. 2d 919 So. 2d

1197, 1222 (Ala. Civ. App. 2005) (Crawley, dissenting)1197, 1222 (Ala. Civ. App. 2005) (Crawley, dissenting)

Case Law Update Tom C. Rawlings Judge, Juvenile Courts Middle Judicial Circuit Sandersville, GA...

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Transcript of Case Law Update Tom C. Rawlings Judge, Juvenile Courts Middle Judicial Circuit Sandersville, GA...