In the Interest of S. N. H.
Full Opinion (html_with_citations)
Appellant K. H., the biological mother of S. N. H., appeals from the orders terminating her parental rights to the child and denying her amended motion for new trial. Appellant challenges the sufficiency of the evidence to support the termination. She also contends that her trial counsel rendered ineffective assistance and that the juvenile court erred in taking judicial notice of matters in prior deprivation proceedings* Finding no error, we affirm.
On appeal from an order terminating parental rights, we must determine whether, after reviewing the evidence in a light most favorable to the lower courtâs judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parentâs rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to*322 the trial courtâs factfinding and affirm unless the appellate standard is not met.1
Viewed in the light most favorable to the termination order, the record shows that S. N. H. was born on November 16, 2005, and appellant was evicted from her home in April 2006, when S. N. H. was five months old. Because appellant was homeless and unable to care for the child, she sought assistance from the Gwinnett County Department of Family and Children Services (âDFACSâ). DFACS provided temporary shelter for appellant and S. N. H., but when offered additional housing, appellant declined the offer. In July, appellant returned to DFACS to give up the child, stating that she was âtired of deedingâ with the situation and âwanted her life back.â
DFACS filed a deprivation petition on July 17, 2006, and the juvenile court held an emergency hearing. In an order entered on December 13, nunc pro tunc to August 1, 2006, the juvenile court found that appellant âbehaved very belligerently and disrespectfully and displayed physical aggressiveness and posturing as the [c]ourt attempted to inform her of her rights.â Appellant resisted arrest for criminal contempt, attempted to bite a female deputy, took off her shirt, wrapped it around her neck, and attempted to hang herself. She informed another deputy that she would shoot him if she had a gun. The court found that the child was deprived because appellant suffered from a deficiency of her physical, mental, emotional, or moral condition of such a nature as to render her unable to provide for the childâs needs.
The reunification plan required appellant to maintain stable housing and stable income; attend anger management and parenting classes and counseling and drug and alcohol treatment, as recommended by The Road to Recovery, Inc. (âRoad to Recoveryâ); attend budgeting classes; secure a transportation plan; and obtain a GED. Appellant, however, substantially failed to comply with the plan. She was terminated from the Road to Recovery program due to her belligerent behavior, lost her job, smoked marijuana daily, and was evicted from her home. As a result, in an order dated May 31, 2007, the juvenile court found her in contempt of court. DFACS then filed a nonreunification case plan.
The termination hearing was held on February 12, 2008. Dr. Michael J. Runo, a psychologist who performed a parental fitness evaluation on appellant pursuant to the courtâs order,
Dr. Margaret Garvin, a psychotherapist and appellantâs expert witness,
Tara Thomas testified that she was the DFACS case manager assigned to appellantâs case during the time that the case plan called for reunification. Thomas testified that the goals of the plan were stable housing, stable income, anger management, parenting classes, budgeting class, and getting a GED; that appellant had not come forward with proof of compliance with any of the goals except for a proposed budget; and that appellant had not paid any child support. However, the visits Thomas observed between appellant and the child appeared to be âmeaningful and purposeful.â Thomas also testified that appellant had not asked for DFACSâs assistance in obtaining medication or treatment and had not inquired about the availability of sliding-scale services. Moreover, Thomas was unable to conduct any home visits because appellant âwould not allow it.â
Thomas testified that S. N. H. has âa very tight bondâ with the foster mother, who plans to adopt the child, and that it would be âdevastatingâ to the child to be removed from that home. Based on appellantâs disruptive behavior, inability to maintain housing and employment, and her mental status, Thomas did not believe that appellant was capable of providing structure and a nurturing environment for the child.
Appellant testified that she had taken several steps to provide a suitable home for S. N. H. Her attorney tendered into evidence a copy of two paycheck stubs from Pizza Hut; a copy of her lease, showing that she had rented an apartment on February 4, two weeks before the hearing; evidence that she had secured utility service; and certificates of completion issued by Garvin on July 6, 2007, for an anger management program, an alcohol and drug treatment program, and a parenting skills class. Appellant testified that she earns $1,600 per month, but except for a part-time job for which she was paid âunder the table,â, she had never held a job for more than a couple of months.
Appellant admitted that she smoked marijuana; that she needs help with her drug problem and her anger; that she needs medication to control her anger but that the lack of it would not prevent her from taking care of her child; and that she has not obtained medication because she cannot afford it. Appellant also admitted, however, that she had no idea what the medication costs and that she pays to have her hair and nails done. Appellant testified that she would be willing to âsacrificeâ her hair and nails if she had to do so. Appellant also admitted telling Road to Recovery that she felt like killing herself; that they would âregret itâ if she did not get her baby
The juvenile court ruled from the bench that it would grant DFACSâs petition to terminate appellantâs parental rights. The court remarked that although appellant might be able to provide financially for the childâs basic needs, appellant still had mental health needs that had not been addressed, and the child had bonded with the only home she had ever really known. The court found that DFACS had sustained its burden of proof by clear and convincing evidence.
The juvenile court entered a termination order in March 2008, nunc pro tunc to February 12, 2008.
1. A termination of parental rights case involves a two-step analysis.
(a) The child is deprived. Because appellant did not appeal the juvenile courtâs order finding S. N. H. deprived, and because the evidence showed that the conditions upon which this finding was based still existed at the time of the termination hearing, appellant was bound by this finding.
When the child is not in the parentâs custody, the court also is required to consider whether that parent, without justifiable cause, has failed significantly for a year or more prior to the filing of the termination petition: â(i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child . . .; and (iii) To comply with a court ordered plan designed to reunite the child with the parent.â
We conclude that DFACS demonstrated by clear and convincing evidence that lack of proper parental care or control caused the childâs deprivation.
(c) The cause of the childâs deprivation is likely to continue. Appellantâs failure to stabilize her volatility, and her continued inability to maintain stable housing and stable employment, authorized the juvenile court to find that the cause of the deprivation is likely to continue.
(d) Continued deprivation is likely to cause serious harm to the child. The same circumstances that authorized the juvenile courtâs determination that the child was deprived due to lack of proper parental control or inability and that such deprivation was likely to continue provided clear and convincing evidentiary support for the conclusion that such âcontinued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.â
2. Best interest of the child. After finding clear and convincing evidence of parental misconduct or inability, the juvenile court must then determine whether termination of parental rights is in the childâs best interest, âafter considering the physical, mental, emotional, and moral condition and needs of the child, . . . including the need for a secure and stable home.â
3. Appellant argues that the juvenile court erred by accepting a stipulation from the parties that all previous evidence â and not specific facts tendered at prior hearings â would come into evidence, even though those hearings did not involve the termination of parental rights. Appellant mischaracterizes the law as well as what occurred at the hearing, where the juvenile court simply asked the partiesâ attorneys if they would stipulate to the court taking judicial notice of the evidence, exhibits, testimony, and court orders in the underlying deprivation proceeding. A court may take âjudicial cognizance of records on file in its own court.â
4. Appellant next argues that the juvenile court abused its discretion and committed reversible error by taking judicial notice of previous unappealed court orders from earlier hearings when the juvenile court knew that appellantâs attorney never informed her of
5. Appellant next alleges six instances of ineffective assistance of trial counsel. âWhile termination of parental rights cases are more civil in nature than criminal, parents facing termination of their rights have been afforded some of the protections to which criminal defendants are entitled,â including the right to effective representation.
To meet the first prong of this test, [appellant] must overcome the strong presumption that counselâs performance fell within a wide range of professional conduct and that counselâs decisions were not made in the exercise of reasonable professional judgment. The reasonableness of counselâs conduct is examined from counselâs perspective at the time of trial and under the circumstances of the case. The second prong requires [appellant] to show there is a reasonable probability that, absent counselâs unprofessional errors, the result of the trial would have been different.30
(a) Appellant first argues that trial counsel was ineffective for stipulating to the evidence that had been admitted in the prior deprivation proceedings. At the hearing, newly appointed counsel argued that trial counsel should have objected on the ground that the orders in the file were not the best evidence and should have demanded that DFACS present certified copies of the evidence in the deprivation proceedings.
(b) Appellant next argues that trial counsel was ineffective in failing to instruct her client of her right to appeal the deprivation orders. Trial counsel testified repeatedly at the new trial hearing that she found no grounds upon which to appeal the orders. Although appellant claims that one of the courtâs unappealed orders did not comply with OCGA § 15-11-58 (h), she does not show a reasonable probability that an appeal would have been successful and, most significantly, would have altered the outcome of her current termination proceeding. As we held in Division 1 (a), DFACS presented evidence that the child was deprived at the time of the termination hearing and did not simply rely on the courtâs prior orders. The juvenile courtâs finding that counsel was not ineffective in this regard is not clearly erroneous.
(c) Appellant next maintains that trial counsel was ineffective in failing to introduce evidence that during a hearing on September 17, 2007, appellant had taken a drug test, which was negative. This assertion lacks factual support in the record. During the termination hearing, trial counsel specifically directed the courtâs attention to the fact that the drug screen appellant took in September 2007 was negative. Finally, at the new trial hearing, the court stated that it
(d) Appellant contends that trial counsel was ineffective in failing to object when the guardian ad litem asked Runo whether, in his medical opinion, appellant was unfit to care for S. N. H. on the day of the hearing. We disagree. That was the last question asked by the guardian ad litem, and appellantâs trial counsel quickly asked Runo whether appellantâs ability to parent could change if she were to receive therapy. Trial counsel was able to get Runo to admit that it was âpossibleâ that appellantâs outlook could change. âA claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight.â
(e) Citing In the Interest of C. W. D.,
(fj Appellant contends that trial counsel was ineffective in failing to file a motion for a pretrial Daubert
OCGA § 24-9-67.1 (d) permits a civil litigant to file a motion requesting a pretrial hearing to determine whether a witness qualifies as an expert and whether his or her testimony is based on sufficient facts that will be admitted at trial, among other criteria. Pretermitting whether this statute applies in cases concerning termination of parental rights, there was no showing of prejudice in the case at bar from failure to hold a pretrial hearing because DFACS established Runoâs qualifications at the termination hearing. Runo testified that he was a licensed psychologist who had been perform
In sum, appellant has failed to show that, but for trial counselâs alleged errors, there is a reasonable probability that her parental rights would not have been terminated. Furthermore, clear and convincing evidence supports the termination order. It follows that the trial court did not err in denying appellantâs motion for new trial.
Judgment affirmed.
(Citation and punctuation omitted.) In the Interest of J. A., 286 Ga. App. 704 (649 SE2d 882) (2007).
See OCGA §§ 15-11-2 (8) (A); 15-11-94 (b) (4) (A) (i), (B) (i).
Although Runoâs report was marked as an exhibit at the hearing, it was not tendered into evidence.
Appellant was 24 years old on the date of the termination hearing.
The court granted appellantâs motion for funds to retain this expert witness.
The court order issued an amended order on June 17, 2008, nunc pro tunc to February 12, 2008, to correct the statement in the March order that Runoâs report had been entered into evidence.
OCGA § 15-11-94 (a).
OCGA § 15-11-94 (b) (4) (A) (i)-(iv).
OCGA § 15-11-94 (a).
See In the Interest of R. C. M., 284 Ga. App. 791, 798 (III) (1), n. 6 (645 SE2d 363)
OCGA§ 15-11-94 (b) (4) (B) (i).
See In the Interest of H. E. M. O., 281 Ga. App. 281, 285 (1) (b) (636 SE2d 47) (2006) (mother suffered from mental illnesses and a psychologist concluded that her prognosis was poor without inpatient treatment, to which she was resistant); In the Interest of B. B., 268 Ga. App. 858, 860 (3) (a) (603 SE2d 333) (2004) (motherâs mental illness coupled with refusal to seek treatment showed parental inability).
OCGA § 15-11-94 (b) (4) (C).
(Citations omitted.) In the Interest of A. R. A. S., 278 Ga. App. 608, 613 (2) (c) (629 SE2d 822) (2006).
See In the Interest of O. M. J., 297 Ga. App. 20, 27 (2) (b) (676 SE2d 421) (2009); In the Interest of H. E. M. O., supra at 287 (1) (c) (motherâs resistance to mental health treatment and failure to maintain stable housing or employment, in addition to other factors, authorized finding that the cause of the deprivation is likely to continue).
(Punctuation and footnote omitted.) In the Interest of K. A. B., 285 Ga. App. 537, 541 (1) (b) (646 SE2d 736) (2007).
(Punctuation omitted.) In the Interest of M. L., 290 Ga. App. 437, 441 (3) (659 SE2d 800) (2008), citing In the Interest of D. L. S., 271 Ga. App. 311, 314 (1) (c) (609 SE2d 666) (2005).
OCGA § 15-11-94 (b) (4) (A) (iv); In the Interest of H. E. M. O., supra at 287 (1) (d).
(Citation and punctuation omitted.) In the Interest of A. R. A. S., supra at 615 (2) (d).
In the Interest of T.W. O., 283 Ga. App. 771, 777 (1) (a) (iv) (643 SE2d 255) (2007).
OCGA § 15-11-94 (a).
In the Interest of M. L. P., 236 Ga. App. 504, 510 (1) (d) (512 SE2d 652) (1999) (juvenile court has broad discretion in determining how the interest of the child is best served).
(Citations and punctuation omitted.) In the Interest of A. A., 293 Ga. App. 471, 475 (3) (667 SE2d 641) (2008).
See id.
232 Ga. App. 200 (501 SE2d 232) (1998).
Id. at 209 (5).
(Punctuation and footnote omitted.) In the Interest of D. W., 294 Ga. App. 89, 94 (3) (a) (668 SE2d 533) (2008).
(Citations and punctuation omitted.) In the Interest of A. H. P., 232 Ga. App. 330, 334 (2) (500 SE2d 418) (1998).
(Citation and punctuation omitted.) Id. at 334-335 (2). See also Miller v. State, 285 Ga. 285, 286-287 (676 SE2d 173) (2009).
White v. State, 293 Ga. App. 241, 242 (1) (666 SE2d 618) (2008).
See id.
See In the Interest of C. W. D., supra at 204-205 (2).
See In the Interest of S. H. P., 243 Ga. App. 720, 722 (1) (a) (534 SE2d 161) (2000).
(Citation omitted.) Hooks v. State, 280 Ga. 164, 165 (3) (626 SE2d 114) (2006).
See supra at 209 (5).
Daubert v. Merrill Dow Pharmaceuticals, 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993).