                             FOURTH DIVISION
                               DILLARD, C. J.,
                         DOYLE, P. J., and MERCIER, 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


                                                                       March 7, 2019




In the Court of Appeals of Georgia
 A18A1821. HEWLETT v. HEWLETT et al.                                           DO-067

      DOYLE, Presiding Judge.

      The biological mother of C. J. H.1 (“the mother”) appeals from an order

terminating her parental rights and granting an adoption petition filed by the child’s

maternal grandfather (“the grandfather” and current temporary guardian) and his wife

(collectively “grandparents”). The mother argues that the superior court erred because

its order was not supported by clear and convincing evidence that she failed to

exercise proper parental care or control due to misconduct or inability under former




      1
          C. J. H. was born on January 3, 2009.
OCGA § 15-11-310 (a) (5).2 Based on our review of the record before us at this time,

we agree and reverse.3

      The adoption proceeding was predicated on the termination of the mother’s

parental rights pursuant to former OCGA § 19-8-10 (a) (5), which authorizes

adoption without a prior surrender or termination of parental rights “when the court

determines by clear and convincing evidence that the . . . [biological p]arent has failed

to exercise proper parental care or control due to misconduct or inability, as set out

in” former OCGA § 15-11-310 (a) (3), (4), or (5), which enumerate certain grounds




      2
        See OCGA § 19-8-10 (a) (4) (2017) (setting out the prerequisites for adoption
absent a prior surrender or termination of parental rights). Although not raised by the
parties, we note that a new version with substantive changes to the Juvenile Code,
including OCGA §§ 19-8-10 and 15-11-310, was enacted in 2018. See Ga. L. 2018,
p. 285, § 4-1; p. 474. Because the petition and judgment in this case predate the
enactment of the revised Code version, we apply the prior version in effect at the
time. See Nathans v. Diamond, 282 Ga. 804, 808-809 (2) (654 SE2d 121) (2007)
(“[T]he rule is that laws that affect substantive rights may operate prospectively only.
Substantive law is that law which creates rights, duties, and obligations. Procedural
law is that law which prescribes the methods of enforcement of rights, duties, and
obligations.”) (footnote and punctuation omitted); Johnson v. Eidson, 235 Ga. 820,
821 (221 SE2d 813) (1976) (noting that “[a]doption is a right which did not exist at
common law[, and is purely] statutory in nature”).
      3
       The validity of the temporary guardianship is not before this Court, and it
remains in effect at this time.

                                           2
for termination of parental rights.4 Further, the court must determine whether “the

adoption is in the best interests of that child, after considering the physical, mental,

emotional, and moral condition and needs of the child who is the subject of the

proceeding, including the need for a secure and stable home.”5

      “On appeal from an order severing parental rights based on an adoption

petition, we view the evidence in the light most favorable to the trial court’s findings

and determine whether a rational trier of fact could have found by clear and

convincing evidence that the biological parent’s rights have been lost.”6

“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.”7 “[T]he right to raise one’s children is




      4
          See Steele v. Steele, 346 Ga. App. 196, 197 (816 SE2d 327) (2018).
      5
          OCGA § 19-8-10 (a) (5) (2017).
      6
          Smallwood v. Davis, 292 Ga. App. 173 (1) (664 SE2d 254) (2008).
      7
       (Citation and punctuation omitted.) In the Interest of J. A. B., 336 Ga. App.
367, 368 (785 SE2d 43) (2016).

                                           3
a fiercely guarded right in our society and law, and a right that should be infringed

upon only under the most compelling circumstances.”8

      So viewed, the record shows that C. J. H. was born in 2009 with evidence of

barbiturates in his system, causing the Department of Family and Children Services

(“DFCS”) to intervene before he left the hospital. To avoid a foster placement with

an unknown family, the grandfather offered to help, and the mother agreed to allow

the grandfather to become the temporary guardian of C. J. H. In the time after C. J.

H.’s birth, the mother, who has been diagnosed with schizoaffective disorder,

struggled with illegal drug use resulting in periodic homelessness and incarceration

for a few years until entering a mental health court diversion program in 2012.

      As part of that program, the mother began receiving counseling services, and

she voluntarily entered a residential substance abuse program and underwent drug

testing. The program director testified that the mother was a good participant, took

her medications, drug tested negative, and presented no issues during her six-month

stay there. Likewise, the mother’s counselor testified that the mother was sanction-

free in the court program, and she successfully completed it in 2014. The mother



      8
          In the Interest of J. C., 242 Ga. 737, 738 (1) (251 SE2d 299) (1978).

                                           4
continues to actively participate in counseling and regularly takes her mental health

medication.

      The mother receives a disability benefit due to her mental health condition, and

she has had stable housing since 2013. In 2014, she moved from a one-bedroom to

a two-bedroom apartment to accommodate a child. The mother’s property manager

testified that the mother’s “rent is paid monthly on time. . . . I’ve never had any issues

with her. And from what I could see and know of her for the almost four years that

she’s been there, she’s been a great resident.”

      The grandparents have raised C. J. H. at their home since his birth, and the

mother has been allowed regular visitation. The mother visited frequently at first, but

then experienced interruptions from 2009 to 2012 before she entered the mental-

health court program. For at least the two years leading up to the final hearing in June

2017, the mother visited C. J. H. regularly, usually over the weekend. C. J. H. was

diagnosed with ADHD, which is treated with medication, but otherwise he is thriving

in the grandparents’ custody and earns good grades in school.




                                            5
      In 2015, the mother filed a petition to terminate the temporary guardianship,9

and the parties were ordered to mediation, which was not successful because the

grandparents did not believe that the mother was ready to assume full responsibility

to take custody of C. J. H. In 2016, the grandparents filed a petition to adopt C. J. H.,

and after an evidentiary hearing at which all the parties testified, the superior court

entered an order terminating the mother’s parental rights and granting the

grandparents’ adoption petition.10 The mother now appeals.

      The mother argues that the superior court erred by terminating her parental

rights because the record lacks clear and convincing evidence of her parental

unfitness. As noted above, the termination of the mother’s parental rights is




      9
         The mother filed an earlier petition to terminate the temporary guardianship
in 2009, shortly after C. J. H.’s birth. That petition was dismissed for her subsequent
failure to appear, apparently due to her incarceration and/or homelessness.
      10
         The guardianship question remains open pending the outcome of the
adoption proceeding.

                                           6
predicated on a showing by the grandparents that the standard in former OCGA § 15-

11-310 (a)11 has been met, including the ground in this case:12

      [the] child is a dependent child due to lack of proper parental care or
      control by his or her 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.13


In addition to this ground, the superior court also must determine whether termination

and adoption are in the best interest of the child.14

      Here, it is undisputed that the mother suffers from a life-long mental condition

that, when unaddressed by medication, has in the past impeded her parenting of C. J.

H., and she has struggled with substance abuse. But it is also undisputed that since


      11
          This Code section was amended in 2018, after the hearing and judgment in
this case. See Ga. L. 2018, p. 935, § 3. As noted above, we apply the statute in effect
at the time of the ruling.
      12
         The grandparents do not contend that the mother has failed to comply with
a child support decree nor that she has abandoned C. J. H. See OCGA § 15-11-310
(a) (3) & (4) (2017).
      13
       (Punctuation omitted.) In the Interest of A. F., 346 Ga. App. 538, 543 (816
SE2d 496) (2018) (quoting OCGA § 15-11-310 (a) (2017)).
      14
           See OCGA § 19-8-10 (a) (2017).

                                           7
entering and successfully completing the mental-heath court program, the mother has

remained drug-free, has obtained and maintained stable housing, and has stabilized

her mental health through medication and counseling. Further, with the help of the

grandparents, she has established and maintained a bond with C. J. H. through regular

visitation. Thus, despite the mother’s difficulty in the past, the evidence shows

substantial progress (as opposed to mere hope or promises) in establishing a loving

and stable home environment.15 If anything, she is a success story of the mental-

health court diversion program.

      Nevertheless, pretermitting whether this suffices to show that C. J. H. remains

dependent or whether that dependency is likely to continue, this case is akin to those

in which a child is placed in foster care due to his parent’s lack of proper care.

      When a court assesses whether a child now in foster care is likely to
      suffer serious harm as a result of continued deprivation, the court must
      consider not only the likelihood of harm if the child remains indefinitely
      in foster care, but also the likelihood of harm if the child returns to the
      custody of his parent, notwithstanding that the deprivation persists. The
      [petitioners are] required to show that continued dependency will cause


      15
        Compare In the Interest of G. A. M., 302 Ga. App. 177, 178 (1) (c) (690 SE2d
472) (2010) (“The [terminating] court must base its decision on more than positive
promises of good behavior which past conduct has proven will likely not be carried
out.”).

                                          8
      harm. Dependency will cause harm only if all of the options available to
      [the petitioners] short of termination — keeping the child in foster care,
      or returning the child to the parent — will themselves cause harm. The
      [petitioners] must show that both would cause harm. This Court has
      reversed termination orders due to a lack of evidence that the children
      would experience serious harm if they remained in foster care, even
      when the [petitioner] did show that the return of the child to the parent
      might well cause harm. In considering whether there is evidence that
      remaining in foster care will cause serious harm to a child, we have
      examined both (1) the extent to which instability and impermanency are
      currently causing specific harms to the child and (2) whether the parents
      current relationship with the child is itself detrimental.16


      The superior court in this case found that “both physical and long term

emotional harm are likely with the denial of the adoption to” the grandparents. But

absent from the record is any evidence concerning “the extent to which [any

perceived] instability and impermanency are currently causing specific harms to [C.

J. H.], and whether, as a result of the dependency, [C. J. H.] would be harmed by

remaining in [the care of the grandparents] indefinitely.”17 There was no testimony

from a caseworker, counselor, psychologist, or guardian ad litem opining that harm



      16
           (Punctuation omitted.) In the Interest of A. F., 346 Ga. App. at 544.
      17
           (Punctuation omitted.) Id. at 544-545.

                                            9
would result from C. J. H. remaining with the grandparents in the current situation,

nor was there any evidence that continuing a parental relationship, in some form, with

the mother would harm C. J. H. To the contrary, the grandparents both testified that

they do not prevent the mother from visiting C. J. H. at her will because they believe

that C. J. H. needs a relationship with his mother. Notably, when asked whether it

would harm C. J. H. to be returned to his mother, the grandfather testified he was “50

percent sure on it.” Fifty percent does not rise to the level of a preponderance of the

evidence, much less the higher standard of clear and convincing evidence, which is

applicable here. In sum, there was no showing “regarding how continuing the status

quo would harm the [child] in this case.”18

      It is undisputed that the mother has faced and always will face significant

hurdles in her life. But the record here shows multiple years of unrefuted progress

toward the mother’s stabilization that has not been undermined by evidence of harm

to C. J. H. It is also clear that none of the mother’s progress nor C. J. H.’s stable

lifestyle to date would have been possible without the care offered by the

grandparents, and their commitment to C. J. H. and to the relationship between the

mother and her son is commendable. C. J. H. is thriving in the care of his extended

      18
           Id. at 545.

                                          10
family, the mother has stabilized, and the parent and child at issue maintain a positive,

healthy bond. This is not a case in which a child is lingering unnecessarily and

indefinitely in foster care, facing impermanence and tenuous social bonds, and

suffering emotional harm due to that instability.19 Therefore, in light of the record

before us, “the evidence was insufficient to support the trial court’s conclusion that

any continued dependency experienced by [C. J. H.] will cause or is likely to cause

[him] serious physical, mental, emotional, or moral harm, and we therefore reverse.”20

      Judgment reversed. Mercier, J., concurs. Dillard, C. J., concurs fully and

specially.




      19
         Compare In the Interest of C. L., 315 Ga. App. 607, 613 (1) (b) (727 SE2d
163) (2012) (recounting the evidence of harm to the children in their present
circumstances of foster care, in which the children had nothing to gain by a
relationship with their mother, and her visits negatively affected him).
      20
           (Punctuation omitted.) In the Interest of A. F., 346 Ga. App. at 545.

                                           11
 A18A1821. HEWLETT v. HEWLETT et al.                                     DI-067



      DILLARD, Chief Judge, concurring fully and specially.

      I fully concur in the majority’s thoughtful and well-reasoned opinion, but write

separately to reiterate my view that, regardless of any statutory provisions suggesting

otherwise, a parent’s fundamental right to familial relations with her child may not

be terminated under either the federal or Georgia Constitutions1 simply because that


      1
        In acknowledging that parents have a fundamental constitutional right to
familial relations with their children, the Supreme Court of the United States has
primarily grounded this substantive right in the Due Process Clause of the Fourteenth
Amendment. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (43 SCt 625, 47 LEd
1042) (1923); Stanley v. Illinois, 405 U.S. 645, 651 (II) (92 SCt 1208, 31 LE2d 551)
(1972). Other courts have identified the Ninth Amendment or other provisions of the
Fourteenth Amendment as providing independent or arguably more appropriate
constitutional bases for this fundamental right. See, e.g., Doe v. Heck, 327 F.3d 492,
parent has not demonstrated to the government’s satisfaction that she (1) is a model

parent or (2) has “stable housing.” Likewise, as the majority aptly notes, a judge is not

permitted to terminate a parent’s constitutional right to familial relations merely

because her child has been in the care of a guardian (or foster care) for an extended

period of time without a specific showing that this “uneasy status quo” is causing the

child serious harm.2 As I have repeatedly explained, a parent’s constitutional right to


517-18 (II) (B) & n.22 (7th Cir. 2003) (Manion, J.). But regardless of the
constitutional mooring for the right to familial relations, there is no doubt that this
right was widely recognized and accepted by those who wrote and ratified our federal
Constitution. See id.; 2 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES WITH
NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL
GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA 446
(Birch & Small 1803) (“The duty of parents to provide for the maintenance of their
children, is a principle of natural law.”); 2 JAMES KENT, COMMENTARIES ON
AMERICAN LAW 169 (O. Halsted 1827) (noting that “[t]he rights of parents result
from their duties [to their children],” and “the law has given them such authority”);
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT, Ch. 6, § 71 (Hackett Publishing
Co., Inc. 1980, originally published in 1690) (“This shews the reason how it comes
to pass, that parents in societies, where they themselves are subjects, retain a power
over their children, and have as much right to their subjection, as those who are in the
state of nature.”); see also GA. CONST. Art. I, § I, ¶ XXIX (“The enumeration of rights
herein contained as part of this Constitution shall not be construed to deny to the
people any inherent rights which they may have hitherto enjoyed.”).
      2
         See Santosky v. Kramer, 455 U.S. 745, 765-66 (III) (B) (102 SCt 1388, 71
LE2d 599) (1982) (noting that “[f]or the child, the likely consequence of an erroneous
failure to terminate is preservation of an uneasy status quo[,]” whereas “[f]or the
natural parents, . . . the consequence of an erroneous termination is the unnecessary
destruction of their natural family”); In the Interest of J. E., 309 Ga. App. 51, 69-70

                                           2
familial relations with her child may not be terminated unless the State—or in this

case the guardian—is able to demonstrate by clear and convincing evidence that the

parent-child relationship, through the parent’s actions or inaction, has been

irretrievably damaged—i.e., that the continuation of the parent-child relationship, as



(711 SE2d 5) (2011) (Dillard, J., dissenting) (“[A]ny determination that the continued
deprivation will or is likely to cause serious physical, mental, emotional, or moral
harm to a child must necessarily include a finding of serious harm or a likelihood of
serious harm in maintaining the ‘uneasy status quo[.]’” (punctuation & footnotes
omitted)); In the Interest of K. D. E., 288 Ga. App. 520, 526 (1) (654 SE2d 651)
(2007) (reversing termination order, and in doing so, noting that “even if there were
sufficient evidence before us to support a finding of continued deprivation,
termination of the parental rights of the mother would not be warranted here because
there is no evidence in the record that any continued deprivation is likely to cause
physical, mental, emotional, or moral harm to the child,” and that while “a caseworker
gave general testimony in response to leading questions that the Department was
concerned about the detrimental effects of foster care on the child, there was no
evidence that the child was experiencing difficulties, such as behavioral or social
issues, from being in foster care or that he would experience difficulties if a
permanent placement was not put into place; and there was no testimony that a
continued relationship with his mother would result in any potential or actual harm
to the child”); In the Interest of T. P., 270 Ga. App. 700, 706-07 (4) (608 SE2d 43)
(2004) (reversing termination order, notwithstanding finding of continued
deprivation, because “there was no testimony from any professional, or from any lay
witness, that the child would [likely] suffer [serious] harm from the current
situation[,]” and specifically “there is no indication that continued exposure to the
mother will cause the child harm”); see also In the Interest of J. K., 278 Ga. App. 564,
572-73 (629 SE2d 529) (2007) (Ruffin, J., concurring specially) (noting that a
“finding of continuing deprivation is not enough to demonstrate that deprivation is
harmful to the child,” and that “these cases require affirmative evidence that the child
will be seriously harmed by an ongoing parental relationship”).

                                           3
it presently exists with the child in the custody of a guardian or the State, is causing

or is likely to cause the child serious harm.3 Suffice it to say, no such showing was

made in this case, and I agree with the majority that the trial court’s judgment must

be reversed.


      3
         See In Interest of R. S. T., 345 Ga. App. 300, 320 (812 SE2d 614) (2018)
(Dillard, C.J., concurring fully and specially) (“[I]n considering any ground for
terminating parental rights, including abandonment, a juvenile court must consider
the overarching constitutional principle that termination is unauthorized unless a
parent has, by her actions or inaction, forfeited her constitutional right to familial
relations.” (punctuation omitted)); In the Interest of S. O. C., 332 Ga. App. 738, 747
(774 SE2d 785) (2015) (“[T]he juvenile court has no authority to sever the natural
parent-child relationship simply because it believes the child would be better off with
the foster family. Indeed, the juvenile court’s preference that [the child] remain with
his foster family is wholly without consequence, when the court lacked clear and
convincing evidence to terminate the natural mother’s parental rights.” (punctuation
& footnote omitted)); In the Interest of C. J. V., 323 Ga. App. 283, 291 (746 SE2d
783) (2013) (Dillard, J., concurring fully and specially) (“[T]he State has no business
facilitating the adoption of children entrusted to its care until and unless a parent has,
by her actions or inaction, forfeited her constitutional right to familial relations. The
State’s primary goal must be to maintain and preserve the natural parent-child
relationship.” (punctuation omitted)). Cf. Richard W. Garnett, Taking Pierce
Seriously: The Family, Religious Education, and Harm to Children, 76 NOTRE DAME
L. REV. 109, 114 (I), 133 (III) (2000) (“[S]tate functionaries, guided and restrained
by a proper humility about their authority and competence, should meddle with [the
parent-child relationship] only to prevent harm, very carefully defined, to a child.
That is, they should not intervene simply whenever they think intrusion or oversight
would serve the Government’s notion of the child’s “best interests” or its own
perceived need and claimed prerogative to create a certain kind of citizen . . . . Pierce
[v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (45 SCt
571, 69 LE2d 1070) (1925),] is a rejection of state omnipotence, not children’s
personhood.”).

                                            4
