In the Interest of C. L. , 315 Ga. App. 607 ( 2012 )

Blackwell, Judge.

The mother of two young boys, C. L. and C. L.,¹ appeals from the termination of her parental rights.² She contends, among other things, that the evidence is insufficient to sustain two of the factual findings on which the termination was premised. We find no merit in this contention, and we affirm.

Viewed in the light most favorable to the judgment below,³ the evidence shows that the older boy came to the attention of the Department of Family and Children Services in April 2008, when the Department learned that his parents had a problem with substance abuse. Nearly a year later, the mother was arrested on drug charges, and at that time, the older boy was taken into the custody of the Department. Although the older boy was returned in March 2009 to the custody of his mother under a protective order, he was taken again into the custody of the Department only a month later, when both of his parents were arrested after they failed drug tests. At that time, both parents consented to a finding of deprivation based upon their incarcerations, unstable housing, unemployment, and unresolved substance abuse issues, and the juvenile court entered an order consistent with that stipulation.

The younger boy was born in October 2009. Two months later, and only about a week before the older boy was scheduled to be returned to his mother, she was arrested again, having violated the terms of her probation by breaking her curfew and failing a drug test. At that point, the younger boy also was put in the custody of the Department, and both parents again consented to findings of deprivation, this time with respect to the younger boy.

In January 2010, the mother was released from jail, and she entered an inpatient rehabilitation program to get help with her drug problem. She left that program without permission, however, only three months later. In March and April 2010, the mother refused to take a drug test on three occasions, and when a judge ordered her to take a drug test soon thereafter, she tested positive for methamphetamine use. The mother later admitted that, if she had taken the other drug tests in March and April 2010, she probably would have failed them too.

In May 2010, the juvenile court approved a permanency plan of reunification and a concurrent permanency plan of nonreunification, termination of parental rights, and adoption. These plans required the mother to obtain and maintain stable housing and employment, obtain substance abuse evaluations and any recommended treatment, submit to random drug tests, attend parenting classes, resolve any criminal cases that might affect her ability to parent, maintain meaningful contact with the children, pay child support, and cooperate with the Department. Around that time, authorities could not locate the mother for about two months, although she later testified that, during this time, she was awaiting bed space in a better rehabilitation facility. She had no contact at all with her children between April and August 2010.

In July 2010, the mother was admitted into another rehabilitation program, but she twice tested positive for methamphetamine use in the weeks following her admission to the program. Although the mother testified that she only used drugs “two or three times” after the boys were born, she conceded that, between April and July 2010, she spent her time “getting high,” and she used drugs at least once after entering the second rehabilitation program. The mother stayed in the second rehabilitation program for about 30 days, and in August 2010, she surrendered to law enforcement authorities on yet another probation violation. The mother still was incarcerated when the court below heard evidence on the petition to terminate her parental rights in December 2010.⁴

The two boys were placed in the same foster home when they were taken into the custody of the Department, and they have remained there since. At the hearing, their caseworker testified that the boys now are doing “very well,” and their foster parents want to adopt them. The caseworker said that the foster home is the only home that the younger boy could remember, and she was unsure whether he would even know his mother. The caseworker testified that the older boy also is doing well in the foster home, although she conceded that he has a bond with his mother. The caseworker explained, however, that, because the mother had been unable to be a parent to the boys, they have nothing to gain by continuing a relationship with her. Both the guardian ad litem and the court-appointed special advocate (CASA) recommended that the juvenile court terminate the parental rights of the mother. The guardian cited the criminal history of the mother, her lack of history of stable employment, her unresolved drug issues, and her failure to take responsibility for her actions, as well as the need of the boys for permanency. The CASA agreed, explaining that, since leaving the custody of their mother, the boys “are receiving education, they’re loved, everything.”

In its termination order, the juvenile court found that the mother failed to make significant progress toward reunification in the two years in which she had been offered services. The court concluded that, given her history and continuing incarceration, the mother was unlikely to remedy the causes of deprivation within a reasonable time. With respect to the physical, emotional, and mental health needs of the boys, the court found that “the children do have the need for a sense of permanency and a safe and stable home.” The court noted that the older boy had been in the custody of the Department for the last two of his four years of life, and the younger boy had been in the Department’s care for all but the first two months of his life. The court further found that the boys had been placed together in a stable and loving foster home and that their foster parents had expressed a “willing[ness] to provide [them] with a permanent home through adoption.”

The mother filed a timely motion for new trial. At the hearing on this motion, she apparently submitted evidence that she was scheduled to be released from her current term of incarceration in May 2011. The court denied the motion, and she filed a timely discretionary appeal, which this Court granted.

1. When we consider the sufficiency of the evidence adduced in support of a petition to terminate parental rights, we ask whether any rational trier of fact could have found clearly and convincingly that the rights of the natural parent to custody have been lost. In the Interest of R. S., 287 Ga. App. 228, 228 (651 SE2d 156) (2007). To prove that parental rights ought to be terminated, the Department first must prove “parental misconduct or inability” by clear and convincing evidence. OCGA § 15-11-94 (a). Such proof requires the Department to establish: (1) that the child is deprived; (2) that the deprivation is a result of a lack of proper parental care or control; (3) that the cause of the deprivation is likely to continue; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. See OCGA § 15-11-94 (b) (4) (A) (i)-(iv). If the Department carries this burden, it then must prove that “termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child[,] including the need for a secure and stable home.” OCGA § 15-11-94 (a). In this case, the mother does not challenge the findings that the boys are deprived or that a lack of proper parental care or control is the cause of the deprivation.⁵ Nor does she claim that the court erred when it found that termination was in the best interest of the boys. Instead, the mother argues only that the Department failed to prove that the deprivation is likely to continue and that any such continued deprivation is likely to cause serious harm to the boys. We address each of these contentions below.

(a) With respect to a finding that deprivation is likely to continue, we have explained before:

If over the intervening months or years since she originally lost custody of the children, the mother has not modified the behavior that led to the original and continued removal of the children, then a court could find that the mother will continue to so act in the future and therefore that the cause of the deprivation will likely continue.

In the Interest of T. A. H., 310 Ga. App. 93,96 (2) (712 SE2d 115) (2011) (footnote omitted). “[T]he court can consider a parent’s past conduct in determining whether . . . conditions of deprivation are likely to continue.” In the Interest of B. T., 291 Ga. App. 604, 608 (c) (662 SE2d 656) (2008) (citation and punctuation omitted). And although a “parent’s incarceration does not always compel the termination of parental rights, it can support a termination when there are sufficient aggravating circumstances present.” In the Interest of A. E. S., 310 Ga. App. 667, 669-670 (714 SE2d 148) (2011) (punctuation and footnote omitted). A juvenile court also is entitled to consider proof that a parent failed to complete a case plan as evidence that a deprivation is likely to continue. In the Interest of J. A., 298 Ga. App. 11, 15 (1) (679 SE2d 52) (2009).

Here, the evidence shows that the mother was arrested and jailed following the birth of the older boy. She then violated her probation on at least two occasions, leading to two additional periods of incarceration, which left her unable to provide a stable environment for the boys or to support them. Even if she left the first rehabilitation program for legitimate reasons, she left it without permission, relapsed into drug abuse, and failed to notify the Department of her whereabouts. This evidence is sufficient to support the finding that the deprivation is likely to continue. See In the Interest of K. A. S., 279 Ga. App. 643, 650-651 (1) (b), (c) (632 SE2d 433) (2006) (evidence including that mother “failed to complete two of the most important goals of her case plan, to obtain and maintain a stable, legal income and housing,” was sufficient to show that the deprivation was due to lack of parental care and control and that the causes of the deprivation were likely to continue); In the Interest of M. N. R., 282 Ga. App. 46, 47-48 (637 SE2d 777) (2006) (even assuming that a mother had stopped using drugs by the time of the termination hearing, evidence including her admission that she had not completed a drug treatment program she enrolled in six months before the hearing and had relapsed after completing an earlier program was sufficient to affirm the juvenile court’s judgment that the deprivation was likely to continue).

(b) We next consider whether evidence supports the finding that the continued deprivation of the boys is likely to cause them serious harm. When a court assesses whether a child now in foster care is likely to suffer serious harm as a result of continued deprivation, see OCGA § 15-11-94 (b) (4) (A) (iv), the court must consider not only the likelihood of harm if the child remains indefinitely in foster care, but also the likelihood of harm if the child returns to the custody of his parent, notwithstanding that the deprivation persists.⁶ In the Interest of J. E., 309 Ga. App. 51, 58 (1) (d) (711 SE2d 5) (2011) (whole court) (“[0]ur law requires a juvenile court to consider not only the relationship between the parent and child at the time of the termination hearing, but also what might happen if the child were returned to the parent given the likelihood that the deprivation under which the child has been suffering would continue after a reunion with that parent.”). Here, the evidence shows a likelihood of harm in both circumstances.

First, the record supports a finding that the boys likely would suffer serious harm if they were returned to their mother. After all, the deprivation in this case involves, among other things, the mother repeatedly relapsing into abuse of illegal drugs, as well as her repeated incarceration for crimes and violations of probation, circumstances that, the court below found, are likely to persist. When the record includes evidence sufficient to support a finding that such circumstances are likely to persist and thereby leave a parent unable to provide for the needs of her child, we have said, time and again, that the same evidence also may authorize a finding that continued deprivation is likely to cause serious harm, even if it does not compel a finding of likely harm. See, e.g., In the Interest of A. E., 314 Ga. App. 206, 209 (2) (c) (723 SE2d 499) (2012); In the Interest of T.B. R., 304 Ga. App. 773, 782 (1) (d) (697 SE2d 878) (2010); In the Interest of K. A. S., 279 Ga. App. at 651-652 (1) (d). In J. E., we sustained a finding of a likelihood of harm based on evidence similar to the evidence that appears in this case. 309 Ga. App. at 58 (1) (d) (considering “the harmful consequences of the mother’s possible or likely relapse into drug use and/or her continued failure to provide for her child”).

As to the likelihood of harm as a result of foster care continuing indefinitely, the court below found that “the children do have the need for a sense of permanency and a safe and stable home.”⁷ This finding is no error. In the first place, our Court has recognized, in case after case, that children should not be required to linger unnecessarily and indefinitely in foster care, inasmuch as “children need permanence of home and emotional stability, or they are likely to suffer serious emotional problems.” J. E., 309 Ga. App. at 58 (1) (d) (citation and punctuation omitted); see also In the Interest of T. H., 311 Ga. App. 641, 645 (716 SE2d 724) (2011); In the Interest of R. J. D. B., 305 Ga. App. 888, 895 (1) (b) (700 SE2d 898) (2010); In the Interest of A. R., 302 Ga. App. 702, 711 (1) (d) (691 SE2d 402) (2010); In the Interest of A. J. D. S., 300 Ga. App. 235, 239 (4) (684 SE2d 360) (2009); In the Interest of S. N. H., 300 Ga. App. 321, 327 (1) (d) (685 SE2d 290) (2009); In the Interest of K. R., 298 Ga. App. 436, 442 (1) (d) (680 SE2d 532) (2009); In the Interest of P. D. W., 296 Ga. App. 189, 196 (1) (d) (674 SE2d 338) (2009); In the Interest of D. W., 294 Ga. App. 89, 93 (1) (d) (668 SE2d 533) (2008); In the Interest of C. J. L. C., 293 Ga. App. 848, 852 (1) (c) (668 SE2d 821) (2008); In the Interest of J. L. C., 292 Ga. App. 763, 768 (666 SE2d 98) (2008); In the Interest of D. B. C., 292 Ga. App. 487, 496 (1) (d) (664 SE2d 848) (2008); In the Interest of J. S., 292 Ga. App. 86, 89 (663 SE2d 793) (2008). Given our consistent recognition of this principle, we are not convinced that affirmative and individualized evidence always is required to authorize a finding that a child has a need for permanence and stability. But even if it is required, such evidence appears in this case. The case manager testified that both boys need permanency. About the younger boy, the case manager noted that he had been in the custody of the Department since he was seven weeks old, that his foster parents loved and cared for him and satisfied his needs, and that “[h]e needs to know that that’s going to continue.” As to the older boy, the case manager testified that he has been “through so much already” and “needs the stability that he has” with his foster parents. And the guardian ad litem described the need of the older boy for permanence as “dire.” Finally, the case manager testified that, although the mother loved the boys, she provided no stability, and the boys had nothing to gain from a continued relationship with her; the CASA reported that the mother had no stable housing or employment, that inconsistent visits with the mother negatively affected the older boy, and that the needs of both boys were met by their foster parents; and the guardian ad litem urged that the juvenile court terminate the parental rights of the mother to “permit these children to attain permanency.” This evidence is sufficient to sustain a finding that a continuation of foster care is likely to cause serious harm to the boys. See, e.g., In the Interest of M. S. S., 308 Ga. App. 614, 618, 623 (2) (b) (708 SE2d 570) (2011) (physical precedent only) (CASA testified about child’s need “for permanency and stability’); In the Interest of J. S. T. S., 273 Ga. App. 221, 226 (614 SE2d 863) (2005) (guardian ad litem testified about the “stability the children needed”).

2. The mother also asserts two other claims of error, but both are without merit, and neither warrants much discussion. First, the mother complains about the failure of the court below to continue the hearing on the petition to terminate her parental rights to permit her to obtain the testimony of an employee of one of the rehabilitation programs in which she was enrolled. But it appears that this testimony would have been cumulative of other evidence presented at the hearing, and for this reason, the denial of the continuance was no error. See In re N. S. M., 183 Ga. App. 398, 399 (2) (359 SE2d 185) (1987) (no error in excluding cumulative evidence). Second, the mother contends that the juvenile court should have placed the boys with the paternal grandmother of their half-sister. “This Court will not disturb a juvenile court’s determination that placement with a relative is not in the best interest of the child absent an abuse of discretion,” In the Interest of T. B. R., 304 Ga. App. at 784 (2) (citations and punctuation omitted), and although the court below considered this placement, it concluded that the grandmother, who has limited means and is caring for four other children, was without sufficient resources to care sufficiently for the boys. That conclusion was no abuse of discretion.

Judgment affirmed.

Ellington, C. J., Barnes, P. J., Doyle, P. J., and Miller, J., concur. Mikell, P. J., and Adams, J., dissent.

1 For the sake of clarity, we refer to the boys in this opinion as the “older boy” and the “younger boy.” The older boy was born in January 2007, and the younger boy was born in October 2009.

2 The parental rights of the father also were terminated, but that is not an issue in this appeal.

3 See In the Interest of M. S. S., 308 Ga. App. 614 (708 SE2d 570) (2011).

4 At the hearing, the mother estimated that she would remain incarcerated until the middle of 2011, and after that, she would serve another seven years on probation, during which time she presumably would be subject to random drug tests.

5 In any event, we note that the mother’s incarceration at the time of the termination hearing and her resulting inability to support the boys authorized the court to make those findings. See In the Interest of D. T. A., 312 Ga. App. 26, 31 (1) (a), (b) (717 SE2d 536) (2011).

6 The dissent addresses only the former of these considerations. Because the dissent does not consider the likelihood of harm if the hoys return to the custody of the mother, notwithstanding that the deprivation persists, its analysis is incomplete.

7 The record contains evidence that the boys’ foster parents, who have cared for them for most of their lives, are interested in adopting the boys.