                              THIRD DIVISION
                             ELLINGTON, P. J.,
                        DILLARD and MCFADDEN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                      July 13, 2015




In the Court of Appeals of Georgia
 A15A0317. IN THE INTEREST OF R. E., M. C., L. P., AND J. P.,
     children.

      MCFADDEN, Judge.

      The mother of the children whose interests are at issue appeals the termination

of her parental rights. She argues that the evidence does not support the termination.

We agree and reverse.

      1. Facts.

      On appeal from a juvenile court’s order terminating parental rights, we view

the evidence

      in the light most favorable to the juvenile court’s ruling, and our review
      is limited to addressing the question of whether any rational trier of fact
      could have found by clear and convincing evidence that the parent’s
      rights should have been terminated. In this review, we must necessarily
      defer to the juvenile court’s fact finding, weighing of the evidence, and
      credibility determinations.


In the Interest of C. M., 325 Ga. App. 869, 869-870 (1) (756 SE2d 5) (2014) (citation

and punctuation omitted).

      So viewed, the evidence shows that the four children involved in this case have

the same mother and two different fathers. The two older children are R. E. and M.

C.; their father is R. E. Sr. The two younger children are L. P. and J. P.; their father

is R. S.; the mother lives with R. S. Not involved in this case are two more children

of the mother with a third man, to whom the mother was married at the time of the

termination hearing; those children live with their father.

      In April 2010, the mother, who apparently had ongoing interactions with the

Department of Family and Children Services (DFCS), began taking M. C. to weekly

counseling appointments. An entity called Gateway – the nature of which is not

explained in the record – had referred M. C. to a therapist for counseling because she

was wetting and soiling herself. R. E. began seeing the same therapist in June for help

with his Attention Deficit Hyperactivity Disorder. The mother continued to bring her

children to the counseling appointments until funding for the program ended. The




                                           2
therapist worked with the mother on her parenting skills, and the mother complied

with the therapist’s recommendations.

      In July 2010, a DFCS employee accompanied the mother and these two

children to a counseling appointment; the DFCS employee reported to the therapist

that five-year-old M. C. and her six-year-old brother R. E. had been found naked

together in a bedroom. With the therapist present, the DFCS employee questioned M.

C. about sexual activity. The child denied any such activity with her brother. But she

said that R. E. Sr. and “someone named James” – who remains unidentified – had

touched her brother R. E.’s private parts. R. E. likewise denied engaging in sexual

behavior with his sister, but said that his father, R. E. Sr., and “James” had touched

him and that “James” had “put his mouth on his private parts.” That was the only

disclosure R. E. made. The record says nothing about the forensic interview

techniques used or about efforts to avoid leading questions.

      The police were called and a detective interviewed the children. This time, R.

E. said that no one had touched him inappropriately. M. C. said that no one had

touched her, but she again reported that her father, R. E. Sr., had touched R. E.

inappropriately once. Her descriptions of that event varied however: at one point she

said that she had seen the incident, at another that she had only “heard” it. The

                                          3
detective tested her capacity to distinguish between telling the truth and telling a lie

and concluded that five-year–old M.C. did not yet have that capacity. So she

concluded that there was not enough evidence to bring charges.

      A week later, on July 20, 2010, M. C. told the therapist that someone had “put

his finger in her bottom.” Again her descriptions of the event varied: “she went back

and forth” about who had done it. In some of the child’s accounts it was her brother

R. E., in others it was R. S., the father of the younger children. The mother had

noticed a possible physical sign of abuse, but again M. C. went “back and forth” with

the mother about whether it was R. E. or R. S. who had touched her.

      On December 2, 2011, in response to an outcry from M. C. at school, the

detective interviewed the children again. M. C. told the detective that her brother R.

E. had touched her private parts one time through her clothing. The detective did not

testify about R. E.’s response to M. C.’s claim.

      R. E. did tell the detective that he had seen R. S. and his mother having sex “a

few times.” The detective was unable to get the seven-year-old to elaborate.

      The detective interviewed R. S., who lived with the mother and all of the

children. But there is nothing in the record to indicate whether R. S. was ever

confronted with the charge that he had improperly touched M. C. He did acknowledge

                                           4
to the detective that he and the mother engaged in “poly-sex, meaning they had sex

with other people.” He described a single instance, two weeks before, when he and

the mother had a friend over and while the children were asleep, the friend and R. S.

engaged in a sexual act in the dining room/kitchen area of their trailer. The children

never mentioned any exposure to this activity, and the mother explained that the

children could not have seen it because she had locked them into a back bedroom.

      R. S.was interviewed at the residence. The detective found it “disgusting” with

“dirty clothes all over the place,” “dirty dishes piled up everywhere,” “food on the

couch,” and “holes in the trailer itself that you could fall through.”

      DFCS took the three oldest children into custody that day. Five months later,

when J. P. was born, he too was taken into custody. The juvenile court approved a

case plan that required the mother to attend parenting classes, to maintain a source of

income, to maintain stable, clean, and safe housing, to complete counseling, and to

complete a psychological evaluation.

      In February 2012, the juvenile court found the three older children to be

deprived. The court based its order on factual findings that the children “reported to

school officials, police authorities, and representatives of the Department of Family

and Children Services that they have been sexually molested by adults in their home

                                           5
and each other. The children also report[ed] witnessing intercourse and other sexual

acts between and among adults in the home including their parents and other third

parties.” The court further found that “[a]fter receiving the reports[,] when the police

responded to the parents’ home, they found the home to be in a deplorable condition.”

The court determined that “[t]he causes of deprivation are emotional abuse, sexual

abuse of some or all of the children by others or by and among the children as well

as neglect/lack of supervision by the parents and inadequate housing of the parents.”

Finally, the court concluded that the children “cannot adequately and safely be

protected at home because of the acts of sexual depravity which they report in the

home, its effects on them physically and emotionally, and the deplorable condition

of the home.” Once the youngest child was born, the juvenile court found him to be

deprived as well, largely for the same reasons it had found his older siblings to be

deprived.

      In December 2013, DFCS filed a petition to terminate the rights of the mother

and the two fathers, R. E. Sr. and R. S. DFCS alleged that the parents “perpetrated

egregious past conduct towards these children of a physically, emotionally and

sexually cruel and abusive nature.” It alleged that the mother, for more than a year,

had failed to provide care and support to the children; had failed to maintain safe and

                                           6
stable housing; had failed to maintain stable income; had failed to maintain a bond

with the children; and had failed “to complete counseling to address her poly-

amorous lifestyle which has negatively impacted her children.”

         Following the termination hearing, the juvenile court terminated the parental

rights of all parents. We granted the mother’s application to appeal the termination

order.

         2. Parental misconduct or inability.

         This case is controlled by the former Juvenile Code, which was effective

through 2013. The new Juvenile Code adopted that year became effective on January

1, 2014; it applies to juvenile proceedings commenced on and after January 1, 2014.

Ga. L. 2013, p. 294, §§ 1-1, 5-1.

         Under the former Code, before terminating parental rights, a juvenile court first

had to find clear and convincing evidence of parental misconduct or inability and then

had to find that termination of parental rights was in the best interest of the children.

Former OCGA § 15-11-94 (a). To determine parental misconduct or inability, the

court had to find that:

         (i) The child is a deprived child, as such term is defined in [former]
         Code Section 15-11-2; (ii) The lack of proper parental care or control by


                                             7
       the parent in question is the cause of the child’s status as deprived; (iii)
       Such cause of deprivation is likely to continue or will not likely be
       remedied; and (iv) The continued deprivation will cause or is likely to
       cause serious physical, mental, emotional, or moral harm to the child.


Former OCGA § 15-11-94 (b) (4) (A). The mother argues that there was insufficient

evidence of present parental misconduct or inability. We agree because clear and

convincing evidence does not support a finding that the children were deprived at the

time of the termination hearing or that any deprivation was likely to continue.

       Former OCGA § 15-11-2 (8) (A) defined “deprived child” as a child “without

proper parental care or control, subsistence, education as required by law, or other

care or control necessary for the child’s physical, mental, or emotional health or

morals.” In order to terminate the mother’s parental rights, DFCS had to prove by

clear and convincing evidence that the children were deprived at the time of the

termination hearing, “which in the case of noncustodial parents involves a showing

that, if the child[ren were] returned to [their] parents at the time of the hearing, [they]

would be deprived. This may be established by showing that the conditions upon

which an earlier finding of deprivation was based still exist at the time of the

termination hearing.” In the Interest of B. W., 325 Ga. App. 899, 902-903 (2) (a) (756



                                            8
SE2d 25) (2014) (citation and punctuation omitted). DFCS also had to prove that the

cause of any deprivation was likely to continue or was not likely to be remedied.

      The juvenile court did not expressly find current deprivation. But in the

“deprivation” section of her findings of fact, she found that the mother had

insufficient and unstable housing and unstable employment and that “[t]he children

[had] been harmed by the parents’ lifestyle and the parents [had] not addressed, or

attempted to remediate that lifestyle, nor [had] they changed that lifestyle, or learned

how to protect these damaged children.” The court found that deprivation was likely

to continue because the home remained unstable; the mother had not addressed her

“psychological and lifestyle issues”; she continued “to stand by [R. S.] at the expense

of her children”; and she had “fallen woefully short of completion of [her]

reunification plan.”

      “In our view, even construing the evidence in the light most favorable to the

termination order, as we must on appeal, several pertinent findings in the juvenile

court’s order were either contrary to or not clearly and convincingly shown by the

evidence.” In the Interest of C. J. V., 323 Ga. App. 283, 286 (746 SE2d 783) (2013).

Most importantly, the juvenile court’s finding that “[t]he children [had] been harmed

by the parents’ lifestyle” is completely unsupported by the evidence. Although the

                                           9
order is not clear, we assume that the juvenile court was referring to what her order

describes as the parents’ “polyamorous lifestyle.” As for the parents’ sexual practices,

however, the evidence showed only one unusual incident, and there was no testimony

that the children were exposed to it. This is not the clear and convincing proof

required to sever the parent-child relationship. See In the Interest of G. R. B., 330 Ga.

App. 693, 701 (769 SE2d 119) (2015) (because there was no evidence child was

harmed by parents’ physical altercations and domestic violence, evidence did not

support finding of deprivation). Further, although the older children R. E. and M. C.

may have been sexually abused, there was no testimony at the termination hearing

that the mother was either responsible for or complicit in the abuse. Nor was there

clear and convincing evidence that R. S. (the father of the younger children) was the

abuser. We observe that even before the case plan was ordered, the mother had begun

taking the children to therapy and had cooperated with the therapist’s

recommendations. And the mother’s relationship with R. S. is an insufficient basis for

terminating her parental rights because there was no showing, by clear and convicting

evidence, that R. S.’s presence would negatively affect the children. In the Interest

of J. V. J., 329 Ga. App. 421, 427-428 (765 SE2d 389) (2014) (mother’s cohabitation



                                           10
with boyfriend was insufficient to terminate parental rights, given that there was no

evidence that boyfriend’s drug use or cohabitation would negatively affect child).

      Nor does clear and convincing evidence support the juvenile court’s findings

that the mother had unstable housing and unstable employment. She testified that she

had purchased a mobile home and simply needed to register the title. She had

completed all major structural repairs on the home, although her financial limitations

delayed her. The mother had had a full time job, but quit and took two part-time jobs

so that she would be able to fulfill her visitation and counseling obligations.1

Although the mother’s financial resources were seemingly limited, poverty does not

justify the termination of parental rights. In the Interest of C. J. V., 323 Ga. App. at

286-287 (explaining that evidence that a mother is “unemployed, without prospects

for future employment, and without any stable living arrangements” is an insufficient

basis to terminate her parental rights) (punctuation omitted).

      Moreover, contrary to the juvenile court’s finding, the evidence clearly showed

that the mother had met or substantially had completed many of the major goals of her

      1
        We are troubled by the mother’s undisputed testimony that she gave up a full-
time job where she was under consideration for a promotion because she could not
work the hours expected of a prospective manager and also satisfy the extensive time
demands of her case plan. We expect DFCS to accommodate parents’ need to make
a living.

                                          11
case plan. In addition to the housing and employment requirements, the mother had

completed parenting classes and parent aide services. She had undergone a

psychological evaluation. She was undergoing individual counseling, and her

therapist testified that she was doing well and was compliant with his therapeutic

regime. The mother visited the children regularly, and there was no testimony that her

interactions with them were negative or harmful.

      “[I]t is well settled that termination of parental rights is a remedy of last resort

which can be sustained only when there is clear and convincing evidence that the

cause of the deprivation is likely to continue.” In the Interest of J. V. J., 329 Ga. App.

at 424 (citations and punctuation omitted; emphasis in original). Even construing the

evidence in the light most favorable to the termination order, it does not clearly and

convincingly show that the cause of any deprivation is likely to continue. We

therefore reverse the juvenile court’s judgment. Accordingly, “we need not reach the

issue of harm or the second stage of the inquiry concerning the best interests of the

children.” In the Interest of C. J. V., 323 Ga. App. at 288. Nor do we reach the

mother’s arguments that DFCS failed to conduct a thorough and exhaustive search

for a suitable family member with whom to place the children.



                                           12
      Judgment reversed. Dillard, J., concurs; Ellington, P. J., concurs in the

judgment only.




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