                               FIRST DIVISION
                                DOYLE, C. J.,
                          PHIPPS, P. J, and BOGGS, J.

                    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


                                                                  September 22, 2015




In the Court of Appeals of Georgia
 A15A0782. IN THE INTEREST OF C. J. V., et al., children.                     DO-037

      DOYLE, Chief Judge.

      We granted the mother’s application for discretionary review of a trial court

order terminating her parental rights to eight-year-old C. J. V. and six-year-old F. N.

R. After a thorough consideration of this case, including our review of the transcript

of the termination hearing, which transcript was not available at the time we granted

the mother’s application, we have determined that the juvenile court’s order was

supported by clear and convincing evidence.1 Accordingly, we find that the

application for discretionary appeal was improvidently granted, and we dismiss the

mother’s appeal.

      1
        See OCGA § 15-11-303 (“In all proceedings under this article, the standard
of proof to be adduced to terminate parental rights shall be by clear and convincing
evidence.”).
      This is the second time we have reviewed an order terminating this mother’s

parental rights. In In the Interest of C. J. V.,2 a majority of this Court reversed the

juvenile court’s termination order, essentially finding that the juvenile court had

improperly terminated the mother’s parental rights based solely upon her poverty.3

The evidence before this Court at that time showed that the mother was unemployed,

frequently moved, and was at times dependent upon others for financial support.4

Based upon the mother’s shortcomings, the juvenile court terminated her parental

rights.5 We reversed on appeal, finding that the mother had completed the majority

of her case plan goals, secured employment, and made two child support payments

totaling $700.6 We further noted the absence of “evidence of a verifiable mental or

physical condition that indicates the mother is incapable of caring for the children.”7




      2
          323 Ga. App. 283 (746 SE2d 783) (2013).
      3
          See id. at 286-288.
      4
          See id. at 284-285.
      5
          See id. at 285.
      6
          See id. at 284-285.
      7
          Id. at 287.

                                          2
Under the facts presented, we concluded that the mother’s failure to fully comply with

her case plan stemmed largely from her relative poverty.8

       Following this Court’s reversal, on July 23, 2013, the Department of Family

and Children Services (“the Department”) filed a deprivation petition alleging that (1)

the mother was without income, (2) she tested positive for methamphetamine, and (3)

she and the children were living in her father’s two-bedroom trailer with inadequate

space for the children. That petition was dismissed, however, after it was determined

that the drug test was a false positive and that there was sufficient space for the

children in the trailer.

       On September 20, 2013, the Department filed another deprivation petition.

Following a hearing, the juvenile court entered an order finding the children deprived

and placed them in the custody of the Department. On November 8, 2013, the court

entered a case plan requiring the mother to maintain stable housing and income for

six months; pay child support; complete an in-person parent nurturing program; and

undergo drug and alcohol assessment and complete any resulting recommended

treatment. On February 26, 2014, the Department filed a petition to terminate the

mother’s parental rights.

       8
           See id. at 286-287.

                                          3
      At the final hearing held in May 2014, the Department presented the testimony

of the children’s foster mother, who, along with her husband, had cared for the

children since July 2011. The foster mother testified that the children visited with the

mother in September 2012 and then not again until August 2013. The same day the

children were returned to their mother, she called the foster parents’ home six to eight

times, and within twenty-four hours, the mother returned the children to the foster

parents, offering an arrangement wherein the boys would live with the foster parents

and that she would visit them. The foster mother agreed, but later became concerned

about the mother exercising visitation because the children were “total[ly] different”

after their brief visit with the mother. C. J. V. became scared, refused to use the

restroom alone, had two accidents at school, required a night light, and displayed

aggression; F. N. R. began wetting the bed and had night terrors.

      Brittan Hord, the Department supervisor assigned to the childrens’ case

testified that on the day in 2013 when the children were returned to their mother, the

children were extremely upset and begging to return to the foster parents’ home. The

mother was two hours late to get the children, at which time they had already been

returned to the foster parents. Hord retrieved them from the foster parents’ home, and

they had to be physically placed in the car. The mother reported that she was taking

                                           4
the children to her father’s home, where she lived. The mother had previously

reported that her father had been physically and verbally abusive to her for her entire

life, and law enforcement was regularly called to the home. Hord also testified that

the mother had not secured stable independent housing for six months or longer since

2011, and she failed to consistently support the children during that time. Between

August 2013 and the May 2014 final hearing, the mother lived in three different

places: with her father; with her former girlfriend; and with her mother and mother’s

boyfriend. The mother did not have a job, but expected to receive disability, although

she was unable to explain the basis of her disability.

      The mother’s psychologist testified that the mother’s overall IQ is 57; she does

not understand complex sentences or concepts; she reads at a second grade level and

her sentence comprehension is at a first grade level; she has difficulty comprehending

medical or academic instructions regarding the children; she is unable to provide

emotional stability and support for her children; she is unable to perceive problems

with her children; she is prone to uncontrolled anger reactions; she has low empathy;

the children will soon pass her developmentally; she is unable to provide food,

shelter, clothing, or education for her children; and she functions at the level of an

eight-year-old.

                                          5
      Based upon the evidence presented, the juvenile court again entered an order

terminating the mother’s parental rights. The court noted that both the Court

Appointed Special Advocate and the Guardian Ad Litem recommended termination,

and it noted that “[t]he children are in a foster to adopt home where they have been

for nearly three years [and] are doing very well.” In the termination order, the trial

court stated:

      When the court entered the most recent adjudicatory order, the mother
      stated that she wanted more time to complete her case plan and gain
      stability to be able to provide for her children. Today she testified that
      she wants more time. It has been two years [and] ten months since these
      children first entered care. It is unfortunate that although it is obvious
      the mother loves her children, she is simply not capable of maintaining
      the stability to provide for them. The results of her psychological
      evaluation, combined with her repeated bad decisions, make it patently
      obvious that she is incapable. . . . Simply put, this mother is not capable
      of understanding what it is she needs to do to provide even the basic
      necessities for these children, let alone meet their emotional,
      educational, and social needs. It is sad, but a fact that she is of low IQ
      and functions on the level of an eight year old child, which, in the
      opinion of an expert[,] renders her incapable of parenting children.
      Meanwhile, the children, ages five and seven, have been required to
      remain in care for nearly three years. [F. N. R.] was just over two years
      of age when he was removed from his mother’s home. He is now five
      years [and] five months of age. . . . The court has been unable to allow

                                          6
       the mother even supervised visitations because any contact with their
       mother is so detrimental to the children’s well-being and behavior.


Following entry of the order, the mother filed an application for discretionary appeal,

which this Court granted.

       1. The mother argues that there was insufficient evidence to support the

termination. We disagree. The evidence adduced at the hearing following our reversal

of the first termination order supports the trial court’s order. Any strides that the

mother had made pertaining to her case plan were temporary. After making two child

support payments, the mother has paid no additional support, and she failed to secure

stable housing. Although the mother regained custody of her children, she returned

them 12 hours later and suggested that they live with the foster parents. Finally, the

mother’s mental limitations preclude her from successfully parenting her children. All

of these facts support the juvenile court’s order terminating the mother’s parental

rights.9

       9
         See OCGA § 15-11-310 (“(a) In considering the termination of parental
rights, the court shall first determine whether one of the following statutory grounds
for termination of parental rights has been met: (1) The parent has given written
consent to termination which has been acknowledged by the court or has voluntarily
surrendered . . . her child for adoption; (2) The parent has subjected . . . her child to
aggravated circumstances; (3) The parent has wantonly and willfully failed to comply
for a period of 12 months or longer with a decree to support . . . her child that has

                                           7
       2. The mother also contends that the trial court’s termination is “insufficient”

because it failed to find that the children were dependent as required by OCGA § 15-

11-310 (a) and OCGA § 15-11-320 (a). We find no basis for reversal.

              In 2013, the General Assembly amended Title 15 of the Georgia
       Code “so as to substantially revise, supersede, and modernize provisions
       relating to juvenile proceedings and enact comprehensive juvenile
       justice reforms recommended by the Governor’s Special Council on
       Justice Reform in Georgia.” Ga. Laws 2013, Act 127. And as part of that
       statutory overhaul, the General Assembly amended the definitions
       applicable to juvenile proceedings. See Ga. Laws 2013, Act 127, § 1-1;
       see also OCGA § 15-11-2 (codification of new definitions for juvenile
       proceedings). Effective January 1, 2014, the new definitions contained


been entered by a court of competent jurisdiction of this or any other state; (4) A child
is abandoned by his . . . parent; or (5) A child is a dependent child due to lack of
proper parental care or control by his . . . parent, reasonable efforts to remedy the
circumstances have been unsuccessful or were not required, such cause of
dependency is likely to continue or will not likely be remedied, and the continued
dependency will cause or is likely to cause serious physical, mental, emotional, or
moral harm to such child. (b) If any of the statutory grounds for termination has been
met, the court shall then consider whether termination is in a child’s best interests
after considering the following factors: (1) Such child’s sense of attachments,
including his . . . sense of security and familiarity, and the continuity of affection for
such child; (2) Such child’s wishes and long-term goals; (3) Such child’s need for
permanence, including his . . . need for stability and continuity of relationships with
a parent, siblings, and other relatives; and (4) Any other factors, including the factors
set forth in [OCGA §] 15-11-26, considered by the court to be relevant and proper to
its determination. . . .”). See also In the Interest of T. A., 331 Ga. App. 92, 97 (2) (769
SE2d 797) (2015) (applying former OCGA §§ 15-11-94 & 15-11-2 (8) (A)).

                                            8
      in OCGA § 15-11-2 became applicable to juvenile proceedings
      commenced on and after that date. Ga. Laws 2013, Act 127, § 5-1 (“This
      Act shall become effective on January 1, 2014, and shall apply to all
      offenses which occur and juvenile proceedings commenced on and after
      such date.”). The former definitions used the term “deprived” to mean
      a child who was “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.” See Former
      OCGA § 15-11-2 (8) (A). But the new definitions refer to a child as
      “dependent,” rather than “deprived,” which is a child who . . . “[h]as
      been abused or neglected and is in need of the protection of the court.”
      OCGA § 15-11-2 (22) (A). “Neglect” is then defined to mean . . .”the
      failure to provide proper parental care or control, subsistence, education
      as required by law, or other care or control necessary for a child’s
      physical, mental, or emotional health or morals.” OCGA § 15-11-2 (48)
      (A).10


      The petition in this case was filed in February 2014. Thus, in order to terminate

the mother’s parental rights in this case, the trial court was required to find the

children dependent, rather than deprived.11 Nevertheless, in its final order, the trial

court found the children to be deprived. Given the similarities in the two definitions


      10
       (Punctuation omitted.) In the Interest of G. R. B., 330 Ga. App. 693, n. 1 (769
SE2d 119) (2015).
      11
           See OCGA § 15-11-310 (a) (5).

                                           9
and the fact that evidence supported a finding of dependency as defined by OCGA

§ 15-11-2 (22) (A), we find no basis for reversal.

      We granted the mother’s application for discretionary review without the

benefit of the full appellate record, including the transcript of the termination hearing;

however, because the record supports the order of the court below, we conclude that

the application for discretionary appeal was improvidently granted. Accordingly, the

order granting the mother’s application is vacated, and her appeal is hereby

dismissed.12

      Appeal dismissed. Phipps, P. J., and Boggs, J., concur.




      12
        See, e. g., Killian v. State, 315 Ga. App. 731, 732 (728 SE2d 258) (2012);
Mosley v. Georgia Peace Officer &c., 217 Ga. App. 798 (458 SE2d 503) (1995).

                                           10
