1. 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. Miller
and
F. Michael Starosto
Emory University School of Law JD Candidate 2015

2. In the Interest of C.J.V 323 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 2013
The 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.

3. Court of Appeals Current Focus
1. Orders that don’t explain how child harmed 2. Poverty 3. Case plans are discriminatory 4. Continued Deprivation in TPR - not asking the right question 5. Permanency

4. 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.

5. 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”

6. 2. Poverty Court of Appeal’s new focus:
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)
Court 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

7. 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)

8. Issues With This Argument
Court 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, educational, or even moral advantages elsewhere
D.L.T.C., 299 Ga. App. 765, 769 (2009)
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)
Present situation must be considered prior to termination
In the Interest of V.E.H, 262 Ga. App. 192 (2003)
This is the only true source of understanding what the child’s future will be like

9. 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 § (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 § (b)(4)(C)

10. Discrimination of Reunification Plans
Court 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

11. 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 § (b)(4)(A)(iv)
*Deprivation is dependency in the new Code

12. 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

13. 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 § (a)

14. 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
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)

15. 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

16. Comparing the Old and New Code
OCGA § (a-b)
OCGA § (a)
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
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

17. Comparing the Old and New Code
OCGA § (b)(4)(A)
OCGA § (5)
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
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

18. Comparing the Old and New Code
OCGA § (a)
OCGA § (B)
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
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 , considered relevant and proper by the court