D
                               FOURTH DIVISION
                                 DOYLE, P. J.,
                            MILLER and DILLARD, 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/


                                                                      March 2, 2015




In the Court of Appeals of Georgia
 A14A1809. IN THE INTEREST OF S. R. R.

      MILLER, Judge.

      Following a hearing, the juvenile court terminated the mother’s parental rights

with respect to her son, S. R. R. We granted the mother’s application for discretionary

review, and she appeals the juvenile court’s order.1 The mother contends that the

evidence was insufficient to support the termination of her parental rights. After a

thorough review, this Court finds that the evidence does not clearly and convincingly

show that the mother is presently unfit or that the cause of S. R. R.’s deprivation is

likely to continue and cause serious harm. Accordingly, we reverse the juvenile

court’s decision.


      1
        The juvenile court terminated the putative father’s parental rights, and he is
not a party to this appeal.
             In considering the mother’s appeal, we view the evidence in the
      light most favorable to the juvenile court’s disposition and determine
      whether any rational trier of fact could have found by clear and
      convincing evidence that the mother’s right to custody should have been
      terminated.


(Citation omitted.) In the Interest of A. B., 311 Ga. App. 629 (716 SE2d 755) (2011).

Nevertheless, in conducting our review, we must proceed

      with the knowledge that there is no judicial determination which has
      more drastic significance than that of permanently severing a natural
      parent-child relationship. It must be scrutinized deliberately and
      exercised most cautiously. The right to raise one’s children is a fiercely
      guarded right in our society and law, and a right that should be infringed
      upon only under the most compelling circumstances.


(Citations omitted.) In the Interest of C. J. V., 323 Ga. App. 283 (746 SE2d 783)

(2013). Moreover, clear and convincing evidence of present or current parental

unfitness, as opposed to past unfitness, is required to terminate a mother’s rights to

her natural child. See In the Interest of T. F., 250 Ga. App. 96, 98 (1) (550 SE2d 473)

(2001).

      So viewed, the evidence shows that the mother suffers from several disabling

health problems, including multiple sclerosis, diabetes, fibromyalgia and lupus. The


                                          2
mother is under continuous medical care for her health issues and she takes several

prescription medications to control her symptoms.2 When S. R. R. was born on

October 1, 2010, he was hospitalized for two weeks for an enlarged heart. Within

weeks of his birth, the mother placed S. R. R. in the care of a friend.3 S. R. R. lived

in the friend’s home until June 21, 2012 when he was removed by the Division of

Family and Child Services (“DFCS”). The juvenile court subsequently found S. R.

R. to be deprived and extended the temporary grant of custody to DFCS until June 21,

2013.

        Pursuant to the deprivation order, DFCS initiated a case plan which provided

for non-reunification and adoption. The case plan required the mother to maintain

consistent contact with S. R. R. through scheduled bi-weekly visitation and pay child

support. The juvenile court subsequently granted the mother’s motion to modify the

temporary custody order so that she could have weekly visitation with S. R. R.

        The mother completed most of her case plan goals, including completing her

parenting and anger management classes, obtaining a psychological evaluation,



        2
            The mother’s prescribed medications include morphine, hydrocodone, and
xanax.
        3
            The mother also has three older children who live with their father.

                                             3
successfully completing her probation supervision, and paying some child support.

Importantly, the mother has consistently visited with S. R. R., who has bonded with

her and calls her “Mommy.” The mother also buys clothes, toys and books for S. S.

R. and brings him his favorite foods and books to read during visitation.

      The mother has lived in the same home since August 2012, and the home

includes a separate bedroom for S. S. R., which contains a child’s bed, and numerous

toys and decorations. The mother receives approximately $740 per month in SSI

disability income, which covers her rent, utilities and car insurance, and she owns her

van outright.4 The mother also testified that she intended to apply for food stamps or

obtain employment to supplement her disability income if she can find a position that

will accommodate her disability.

      Despite the mother’s efforts to complete her case plan goals and bond with her

son through regular visitation, DFCS filed its petition to terminate the mother’s

parental rights on July 17, 2013. The petition alleged that the mother’s home was not

suitable housing; the mother and the putative father were living together despite a




      4
       The mother’s disability income leaves her with very little money after she
pays her expenses.

                                          4
history of domestic violence; and the mother was living with and supporting members

of the putative father’s family with her disability income.

      The evidence presented at the termination hearing, however, showed that the

putative father had moved out of the mother’s home in March 2013, and the putative

father’s family members had moved out in August of that year.

      The evidence also showed that, beginning in August 2013, the mother worked

as a driver, earning approximately $80 per week from one employer and a total of

$800 in income from another employer. At the time of the termination hearing, the

mother had a job offer to work as a driver for her second employer at a salary of $500

per week.

      With regard to the condition of the mother’s home, the DFCS placement

manager in charge of S. R. R.’s case attempted to visit the mother’s home on several

occasions when the mother was not home, and was only able to complete one visit.

During one attempted visit, the placement manager found beer cans strewn around the

yard. The evidence also showed that the mother smokes cigarettes, however, she

testified at the hearing that she no longer smokes inside the home.

      Photographs of the outside of the mother’s residence, which were taken during

the placement manager’s visits, showed accumulated trash. The mother testified at the

                                          5
termination hearing that her landlord was supposed to remove the trash and, when he

failed to do so, she personally paid to have the trash hauled away. The mother

introduced photographs at the continued termination hearing showing that the trash

had been removed and the inside of her home was clean.

      The mother contends that the evidence was insufficient to support the

termination of her parental rights. We agree.

      A juvenile court’s termination of parental rights is a two-step process:

      The first step requires a finding of parental misconduct or inability,
      which requires clear and convincing evidence that: (1) the child is
      deprived; (2) lack of proper parental care or control is the cause of the
      deprivation; (3) such cause of deprivation is likely to continue; and (4)
      the continued deprivation will cause or is likely to cause serious
      physical, mental, emotional, or moral harm to the child. If these four
      factors are satisfied, the court must then determine whether termination
      of parental rights is in the child’s best interest, considering physical,
      mental, emotional, and moral condition and needs, including the need
      for a secure and stable home.




                                         6
(Footnotes omitted.) In the Interest of T. F., supra, 250 Ga. App. at 98 (1); see also

former OCGA § 15-11-94 (a), (b) (4) (A) (i)-(iv).5 Moreover, where as here, the child

is not in the parent’s custody the juvenile court shall consider

      whether the parent without justifiable cause has failed significantly for
      a period of one year or longer prior to the filing of the petition for
      termination of parental rights: (i) To develop and maintain a parental
      bond with the child in a meaningful, supportive manner; (ii) To provide
      for the care and support of the child as required by law or judicial
      decree; and (iii) To comply with a court ordered plan designed to reunite
      the child with the parent[.]


(Citation omitted.) In the Interest of C. J. V., supra, 323 Ga. App. at 284; see also

former OCGA § 15-11-94 (b) (4) (C). DFCS had the burden of proof in this case. In

the Interest of M. J. T., 255 Ga. App. 553 (565 SE2d 877) (2002).




      5
         In 2013, the General Assembly adopted a new Juvenile Code to replace
Chapter 11 of Title 15 of the Georgia Code. Ga. L. 2013, p. 294, § 1-1. The new
Juvenile Code became effective on January 1, 2014, and applies to all juvenile
proceedings commenced on and after such date. Ga. L. 2013, p. 294, § 1-1.
       Although the termination order in this case was not entered until January 15,
2014 and the trial court specifically referenced the new code in its termination order,
the petition to terminate the mother’s parental rights was filed on July 17, 2013, and
the termination hearing commenced on December 13, 2013 prior to the new code’s
effective date. Accordingly, we apply the former statute, OCGA § 15-11-94, in this
case.

                                          7
       The mother did not appeal the juvenile court’s deprivation orders. Accordingly,

for purposes of our review, we assume that the evidence was sufficient to show that

S. R. R. was deprived due to the mother’s past lack of proper parental care or control.

In the Interest of C. J. V., supra, 323 Ga. App. at 284. Nevertheless, we emphasize

that

       termination of parental rights is a remedy of last resort and can be
       sustained only when there is clear and convincing evidence that the
       cause of the deprivation is likely to continue. In the instant case, the
       evidence is not clear and convincing, at least at this time, that the
       deprivation is likely to continue.


(Citations and punctuation omitted.) In the Interest of C. S., 319 Ga. App. 138, 148

(1) (735 SE2d 140) (2012).

       This Court will not sustain the termination of a mother’s right to raise her child,

based on either her poverty or her physical disabilities, when neither render her

incapable of caring for her child. See In the interest of C. J. V., supra, 523 Ga. App.

at 286-287. Moreover, neither the mother’s past unfitness nor her lack of future

employment prospects, whether related to her disability or not, is sufficient to

terminate her parental rights. See In the Interest of T. F., supra, 250 Ga. App. at 98

(1) (evidence of past unfitness standing alone is insufficient to terminate parental

                                            8
rights); In re M. M., 263 Ga. App. 353, 359 (1) (587 SE2d 825) (2003) (mother’s lack

of employment and lack of prospects for future employment is insufficient to

terminate her rights).

      Here, with regard to whether S. R. R.’s deprivation is likely to continue, the

juvenile court found that S. R. R. had essentially never resided with the mother, the

mother had very limited income, the mother and putative father resided in the same

home and they had a contentious relationship,6 the mother was taking multiple

medications which impacted her ability to provide for S. R. R.’s day-to-day care, and

the mother’s home was in a continuous state of filth. The juvenile court also focused

on the mother’s lack of credibility.7 Even construing the evidence in the light most

favorable to the juvenile court’s order, the evidence presented at the termination

hearing does not clearly and convincingly show that the mother is presently unfit and

that S. R. R.’s deprivation is likely to continue and cause serious harm.

      6
        Although the mother and the putative father do not live together, the evidence
shows that they do not get along. On one occasion an argument between them
resulted in the mother’s arrest for allowing the unlicensed putative father to drive her
van and the putative father’s arrest for possession of marijuana. On another occasion,
the putative father showed up at the mother’s house and got into an argument with
her. When police responded to the mother’s home, the putative father left.
      7
        Specifically, the juvenile court found that the mother’s testimony that she no
longer smoked in the house and did not drink alcohol was not credible.

                                           9
      The evidence showed that the mother completed most of her case plan goals,

including parenting and anger management classes; she paid some child support; she

consistently visited with S. R. R.; she presented evidence that she is capable of caring

for her son despite her physical disabilities; and she has bonded with him. Although

the mother takes several medications, those medications are prescribed by her doctor.

Moreover, no evidence showed that the mother’s health issues render her incapable

of caring for S. R. R. See In the Interest of J. S. B., 277 Ga. App. 660, 663 (2) (d)

(627 SE2d 402) (2006) (reversing termination of mother’s parental rights where no

expert witness testified that mother’s antisocial personality disorder or learning

disability would be detrimental to her children).

      The evidence also showed that the mother presently has a clean and stable

home with a separate bedroom and child’s bed which she decorated for S. R. R.

Moreover, contrary to the juvenile court’s finding, the evidence presented at the

termination hearing showed that the putative father had not been living with the

mother for several months. Finally, the evidence showed that the mother has

supplemented her disability income with work as a driver, and she presented

testimony from her second employer that she has the prospect of regular employment.



                                          10
      Accordingly, while the evidence shows that the mother is disabled and lives on

limited means, the evidence does not clearly and convincingly show that she is

presently unfit or that S. R. R.’s deprivation is likely to continue and cause serious

harm. Consequently, we must reverse the juvenile court’s order terminating the

mother’s parental rights.

      Judgment reversed. Doyle, P. J., and Dillard, J., concur.




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