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Termination of Parental Rights Under OCGA § 15-11-94

Georgia Court of Appeals Arguments on Poverty, etc, and Comparison to the Law

Judge Sandra W. Millerand

F. Michael StarostoEmory University School of Law

JD Candidate 2015

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In the Interest of C.J.V323 Ga. App. 283, 291 (2013)

“The poster child for all that is wrong with this Court’s Termination of parental rights jurisprudence”

Issued in July 2013The information for this presentation comes from arguments made in both concurrent and dissenting arguments made by the Court of Appeals over the past two years and are summarized in the above referenced case.

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Court of Appeals Current Focus

1. Orders that don’t explain how child harmed2. Poverty3. Case plans are discriminatory4. Continued Deprivation in TPR - not asking the right question5. Permanency

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1. Orders that don’t explain how child harmed

• In the Interest of C.J.V. issued July 2013- Court of Appeals reversed

the TPR because the evidence did not show clearly that the cause of deprivation will likely continue

- Trial court judges must “show how a child will suffer harm if deprivation continues”

• It’s the law – trial court judges must include a statement of how a child will suffer harm- not enough to simply use the words that the child will be harmed.

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What do judges need to do?

• Recite the expert testimony as to how a child will suffer harm; Use the words of the expert psychologist

• Do not simply state that the child will suffer harm if deprivation/dependency continues

• If the case manager uses the phrase ask him or her “what harm”; “how will the child be harmed”

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2. PovertyCourt of Appeal’s new focus:• (C.J.V.) The Concurrence: I agree but

not for the reasons you think . . .- This case was “not even close”- Mother was “poor, really,

really poor”?!- Trial judge did nothing more

than “parrot the language the court of appeals frequently uses to justify terminating parental rights”

• Parents are having their rights taken away because they are poor– This is becoming an

institutionalized policy

The Current Law:• Court of Appeals has continually held that

poverty can not be the basis for termination

- A court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, education, or even moral advantages elsewhere

- D.L.T.C., 299 Ga. App. 765, 769 (2009)

• Present situation must be considered prior to termination– This is the only true source of

understanding what the child’s future will be like

– In the Interest of V.E.H., 262 Ga. App. 192 (2003)

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What do trial Judges need to do?Address these issues of poverty in your TPR Court Orders that will dismiss the Court of Appeals Concerns such as: • Parents are having their rights taken away because they are poor• This is becoming an institutionalized policy by the courts• Goals being imposed by Courts are discriminatory as to the poor

– Independent housing, stable employment and vocational rehabilitation all go against the poor

– Forces idyllic parenting onto poor families• State can’t sever relationship because of a failure to provide a middle class

lifestyle, can’t keep up with the Joneses– No justification for termination if the parent is unable to financially or

emotionally raise the child at the time of the TPR hearing• In the Interest of C.J. V., 323 Ga. App. 283, 291 (2013)

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3. Case Plans are discriminatory

The current law provides that: • Court is allowed to decide if the parent has

failed to comply with a court ordered plan as a basis for termination of parent rights

• OCGA § 15-11-94(b)(4)(C)(iii)

– Used to analyze whether the child is without proper parental care and control when the child is not in the parent’s custody• OCGA § 15-11-94(b)(4)(C)

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Discrimination of Reunification PlansCourt of Appeal Focus:• Goals are disproportionately

discriminating against the economically disadvantaged– Independent housing, stable

employment and vocational rehabilitation all go against the poor

– Court can’t force their notion of parenting onto citizens

• Unconstitutional– An individual has the right to the

privacy of raising their children

• No justification for termination if the parent is unable to financially or emotionally raise the child at the time of the TPR hearing

The current law:• Court may use failure to adhere to a case

plan as a factor in showing by clear and convincing evidence that deprivation was likely to continue– In the Interest of D.D., 273 Ga. App. 839

(2005)• Constitutional

– Fundamental misunderstanding of the Constitutional argument being made• State must provide the parents

with fundamentally fair processes– Santosky v. Kramer, 455 U.S.

745 (1982)• Goals are designed to make sure that the

children are returned to a stable environment– Government is setting up a minimum

standard of decency for children– Not forcing their ideas of parenting

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4. Continued Deprivation

• This is the law– Must show that continued deprivation will cause

or is likely to cause serious physical, mental, emotional or moral harm• O.C.G.A § 15-11-94(b)(4)(A)(iv)

*Deprivation is dependency in the new Code

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4. Continued Deprivation (Cont’d)Court of Appeal Focus:• Disagrees that the pertinent question

in TPR cases is whether the continued deprivation will harm the child (current law), but rather it should be whether the natural parent-child relationship has been irretrievably damaged as a result of the parent’s unwillingness or inability to care for the child (not the current law)

• Must have explicit finding of fact that the child at issue will suffer or is likely to suffer serious harm as a result of the continued deprivation

• In the Interest of C.J.V, 323 Ga. App. 283, 290 (2013)

The current law:• No mention of the parent-child relationship in

the statute-Constitutionally protected right that can be brought down by clear and convincing evidence-Ability to financially and emotionally raise the child are 2 separate issues

• Court must look at more than the child at issue-Must look to the parent to determine if the parent is capable of stopping the potential harm that brought them to the court-Court accomplishes this by showing clear and convincing evidence based on the current situation and testimony (In the Interest of M.R., 282 Ga. App. 91 (2006))

• TPR would only happen in extreme cases-Parent has been completely absent from the process and these cases are rarely brought to trial

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5. Permanency As A Factor In Determining A Child’s Best Interest

• This is the law– Factor in considering what is best for the child• Court must consider the needs of the child who is the

subject of the proceeding, including the need for a secure and stable home– OCGA § 15-11-94(a)

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5. Permanency

Court of Appeal Focus:• Arguments for permanency

have been based on generalizations and not on explicit facts– In the Interest of J.E., a child,

309 Ga. App. 51, 66 (2011)

• Court must make explicit findings of fact that the child at issue will be harmed– In the Interest of J.E., a child,

309 Ga. App. 51, 66 (2011)

The current law• Court has held that it is well

settled that children need permanence of home and emotional stability or they are likely suffer serious emotional problems– In the Interest of R. J. D. B., 305 Ga.

App. 888, 895 (700 SE2d 898) (2010)

• Juvenile court has broad discretion in determining how the interest of the child is best served– In the Interest of M. L. P., 236 Ga.

App. 504, 510 (1) (d) (1999)

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What are judges to do??• Make specific findings about harm to a child,

(Department needs to have an expert witness on this issue)

• Improve your reasoning when finding that a child will be harmed if deprivation/dependency) will continue.

• Explain why and or how the failure to complete a case plan will harm the child rather than a simple finding that the parent did not comply with case plan

• Address the issue of poverty in your order

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Comparing the Old and New CodeOCGA § 15-11-94(a-b)• Standard

– Clear and convincing evidence of parental misconduct or inability laid out in the statute

• Reasons for termination– Written consent– Parent has failed to comply

with an order of support for 12 months

– Abandoned child– Parental misconduct or

inability

OCGA § 15-11-310(a)

• Standard– Clear and convincing

evidence

• Reasons for termination– Written consent– Parent subject child to

aggravated circumstances– Failed to follow court decree

to support the child for 12 months

– Abandoned child– Child is dependent due to lack

of parental care or control by the parent

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Comparing the Old and New CodeOCGA § 15-11-94(b)(4)(A)

• Parental misconduct or inability proven by– Child is deprived as defined– Lack of proper parental care

or control– Deprivation is likely to

continue– Continued deprivation will

cause or is likely to cause serious physical, mental, emotional or moral harm to the child

OCGA § 15-11-310(5)

• Child is dependent due to lack of parental care or control by his parent

• Reasonable efforts to remedy the circumstances have been unsuccessful or not required

• Cause of dependency is likely to continue or will not likely be remedied

• Continued dependency will cause or is likely to cause serious physical, metal, emotion, or moral harm to the child

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Comparing the Old and New CodeOCGA § 15-11-94(a)

• If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child– Considering physical, mental,

emotional and moral condition

– Needs of the child, including the need for a secure and stable home

OCGA § 15-11-310(B)• If any statutory grounds for

termination are met, the court shall then consider whether termination is in the child’s best interest after considering– Child’s sense of attachments,

including security and familiarity, and the continuity of affection for such child

– Child’s wishes and long term goals

– Child’s need for permanence, including a need for stability and continuity of relationships

– Any other factors including those set forth in Section 15-11-26, considered relevant and proper by the court