Diana Rugh Johnson, JD, CWLS

PROBLEMS WE DEAL WITH IN JUVENILE COURT Overly casual atmosphere Bad facts  Petition granted Burden shifting Judge Judy syndrome Best interest of the child = trump card

HOW CASE LAW CAN HELP Refocus Reminder that THIS IS COURT Reminder that there are laws “I’m not making this up…” Implicit threat of appeal  reversal

WHEN TO USE CASE LAW Preliminary motions Opening statement Mid-trial Closing argument

USEFUL CASES Bad Petitions In the Interest of C.L.C., 299 Ga. App. 729 (2009) The juvenile court has exclusive jurisdiction over a child alleged to be deprived, but if the petition fails to make valid allegations of deprivation as defined by O.C.G.A. § (8), the matter is not a deprivation proceeding within the jurisdiction of the juvenile court.

USEFUL CASES Mental Illness In the Interest of C.C., 257 Ga. App. 543 (2002) A parent’s mental illness alone does not establish clear and convincing evidence of deprivation absent evidence of how the parent’s condition renders her unable to parent her child.

USEFUL CASES Domestic Violence In the Interest of C.D.E., 248 Ga. App. 756 (2001) Evidence failed to support finding of deprivation where petitioner failed to show that father’s misdemeanor acts of domestic violence against his wife, none of which were witnessed by his children or severe enough to cause bruising, had any negative effect on his relationship with his children.

USEFUL CASES Dirty House In the Interest of D.S., 217 Ga. App. 29 (1995) Deprivation finding reversed when there was no evidence that the child was experiencing physical neglect, medical problems, malnourishment, emotional harm or mental inadequacies as a result of the filthy living conditions in the home.

USEFUL CASES One-Time Incident In the Interest of C.L.Z., 283 Ga. App. 247 (2007) Deprivation as to the grandmother was reversed because deprivation finding was based on a single incident in which witnesses observed grandmother shouting at the child, forcing the child’s head into the side of their vehicle, and tying a piece of clothing over the child’s eyes. There was no evidence the child was harmed, that the grandmother had MH issues, or that this was anything other than an isolated incident.

USEFUL CASES Summary Testimony In the Interest of A.A., 252 Ga. App. 167 (2001) Termination of parental rights reversed because the state’s principle witness was a new case manager who relied on a summary of the previous case manager’s files. Introduction of this testimony was error because the summary was hearsay.

USEFUL CASES Likely to Continue at TPR In the Interest of L.J.L., 247 Ga. App. 477 (2001) Even when a parent’s past conduct is far from exemplary, past unfitness alone is not sufficient to support a termination of parental rights absent clear and convincing evidence to present unfitness.

USEFUL CASES Likelihood of Harm at TPR In the Interest of A.T., 271 Ga. App. 470 (2005) Termination reversed because there was no evidence that remaining in foster care would cause any adverse effect on the children and no testimony from an expert that permanency and a stable environment were important to the children’s well-being or that failure to terminate would be detrimental to the children. Undisputed evidence of strong bond between mother and children.

USEFUL CASES Best Interest at TPR In the Interest of T.P., 270 Ga. App. 700 (2004) The state must first establish parental misconduct before it may consider the best interest of the child.

USEFUL CASES Mental Health at NR In the Interest of A.M., 306 Ga. App. 358 (2010) Allegations that a parent suffers from a medically verifiable deficiency of mental health that renders them incapable of providing for the needs of the children must be supported by clear and convincing evidence that a parent lacks the mental competency to care for the children.

USEFUL CASES Standard of Proof at Custody Mod under § (b) In re J.N., 302 Ga. App. 631 (2010) The burden is on the parent to prove by a preponderance of the evidence that due to changed circumstances, it is in the best interest of the child that the requested modification or vacation of the prior order be granted.

USEFUL CASES Burden of Proof at Termination of Temporary Guardianship Boddie v. Daniels, 288 Ga. 143 (2010) In a custody dispute between a noncustodial biological parent and a third party, the third party must prove by clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent by terminating the temporary guardianship.

USEFUL CASES Admissibility of Psych Evals In the Interest of C.D.E., 248 Ga. App. 756 (2001) Records which contain diagnostic opinions of third parties who are not available for cross- examination are generally inadmissible without objection. Hearsay evidence has no probative value even when admitted without objection.

USEFUL CASES Psychological Testing In re D.H., 178 Ga. App. 119 (1986) – Special concurrence Compulsory psych evaluation of a family’s children, coupled with submitting parents to the MMPI psych evaluation, under the particular facts of this case, appears to be an unacceptable and unreasonable intrusion into family affairs by the State, if not a violation of the Right of Privacy under the 1 st, 4 th, and 9 th Amendments…Were these types of evaluation arbitrarily used on the families of social workers, judges and others who may have unusual and other than normal living habits and situations, harsh psychological and disciplinary guidelines could well become the norm rather than the exception, as there is no assurance that any of us could pass the test.

USEFUL CASES Formal Hearings In the Interest of A.B., 263 Ga. App. 697 (2003) The intervention of the state into the parent-child relationship is a matter of utmost seriousness, and thus the legislature has imposed upon the state the burden of proving its allegations of deprivation by CCE. The record in this case, however, reflects a proceeding more in the nature of an informal conference than the requisite evidentiary hearing. Each child…deserves a full, separate, and thoughtful review by the juvenile court of the issues relating to him. The proceeding in this case fell far short of this standard. And while it may be that the trial court knew more about the case than the paltry record before us reflects, we take this opportunity to remind counsel of the gravity of the issues presented and of their responsibility in these matters, including, but not limited to, making a record for this Court to review in each case.

TIPS FOR FINDING GOOD CASE LAW Read case law when you don’t have a deadline Shepardize cases even when you don’t have to Look outside of Title 15 Read case law updates Committee on Justice for Children “Bulletin Board” Appellate-Law-Summaries Talk to other parent attorneys

SUGGESTION FOR ORGANIZING CASE LAW ITIO AJI (non-compliance w/PO not depr) ITIO CLC (petition failed to allege depr) ITIO CLZ (single incident ≠ depr) ITIO EC (homosexuality not cause of depr) ITIO KS (MH problems must be medically verified) ITIO MLC (drug use not necessarily depr) ITIO TJ (unexplained injuries can be depr) ITIO WAP (mom not properly caring for infant)

Diana Rugh Johnson