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Recent Child Custody Case Repercussions of Parental Drug Use

by merlin on June 1st, 2015
  • Sumo

In 2012, the Georgia Court of Appeals decided In re H.S., 648 S.E.2d 143, 285 Ga. App. 839 (Ga. App., 2007).  An interesting result from that case was the notation that the father’s use of marijuana was NOT held against him by the Court because the needs of the child were met, otherwise.  That issue, alone, was not enough to actually result in a necessary finding to terminate parental custody rights – “some misconduct … “resulting in the abuse or neglect of the child or … what is tantamount to physical or mental incapability to care for the child.”” In re R.L., 743 S.E.2d 502, 504, 321 Ga.App. 837 (2013)(quoting In the Interest of R.M., 276 Ga.App. at 715, 624 S.E.2d 182 (2005)).

In other words,, the cases have followed a consistent pattern: the juvenile court may decide that the parent’s drug use has been a factor supporting deprivation, but the drug use STANDING ALONE (all other factors being inconsistent with child deprivation, such that the educational, nutritional, health and support needs of the child are being met, the parent is actively seeking treatment and/or the substance use by itself does not contribute to their deprivation in any material or appreciable way, etc.) is NOT viewed by the appellate courts as a sufficient reason to sever the parent-child relationship.  Again – the custodial relationship can be destroyed at the juvenile court level, but the Court of Appeals consistently seems to reverse the decision if that is the deciding factor.  What happens, though, when the drug use is something like methamphetamine, and there were physical altercations between the mother and father?  The law is THE LAW.

For that, the most recent case on point would appear to be In the Interest of G.R.B., 769 S.E.2d 119, 330 Ga.App. 693 (Ga. Ct. App. 2015).  This case did not appear in some search engines, and it was found through other search methods, but it raises some issues that have dramatic repercussions in this area of law but which are consistent with the rulings that the Court has been making regarding when severance or even interference with the parent-child custodial relationship is appropriate.  The document which is posted here for review comes from the following link:

http://www.gaccchildlaw.org/Case_Summary_February2015.pdf

It was summarized excellently by students of the Barton Child Law and Policy Center at the Emory University School of Law.

” Decided February 12, 2015

 Opinion: Dillard

• Concurring Opinions: McFadden, Ray

• Dissenting Opinion: McMillan, Andrews

Posture: Father appeals from the juvenile court’s order finding G.R.B. deprived and awarding permanent legal custody to the child’s maternal grandparents.

Issue(s): Was the evidence sufficient to support the juvenile court’s finding of deprivation?

Holding: Reversed. The juvenile court lacked clear and convincing evidence to support a finding of deprivation.

Facts: Six months after G.R.B. was born, his father filed a petition for legitimation and custody in the Superior Court. One month later, the child’s maternal grandparents filed a motion to intervene and a complaint for grandparent custody and visitation in the same court. They simultaneously filed an emergency private deprivation petition in the Juvenile Court of Whitfield County, as a result of which they received temporary custody of G.R.B. Weeks later, the grandparents filed a verified private deprivation petition seeking custody, and a guardian ad litem was appointed for the child. On August 19, 2013, all proceeding were consolidated and transferred to the juvenile court, which granted the father’s legitimation petition. In the same order, the court also found that the mother had a significant mental health history, the relationship between the mother and father was unstable and involved domestic violence in the child’s presence, the grandparents had provided a significant amount of daily care for G.R.B., and both parents were gainfully employed and capable of providing adequate housing and income to support the child. Concerned about the domestic violence and mother’s adherence to her medication regimen, the court continued the case for three months, returned the child to his parents’ custody and directed DFCS to open a family preservation case to ensure the parents completed a parenting class, enrolled in a marriage/relationship class, and completed an anger-management course. Following a December hearing, the case was continued for another three-month period due to the occurrence of another incident of domestic violence that resulted in the mother’s arrest. A February hearing was held in response to a recent physical altercation between the father and the mother’s then boyfriend and to a request by DFCS that the father submit to drug testing. The court ordered the drug testing and for the child to remain in the grandparents’ custody. Shortly thereafter, the child’s paternal grandparents filed their own motion to intervene, seeking a finding of deprivation and custody or, in the alternative, visitation.  

In April, the juvenile court conducted its final hearing issuing a “final order on all pending matters” finding that the child’s mother had consented to the child’s placement in the grandparents’ custody, and that the father had completed the required classes but had engaged in a physical altercation in the mother’s presence while under the influence of drugs and alcohol and brandishing a weapon. The court further found that the father admitted a history of methamphetamine use but had started treatment, and that the parents had a unstable relationship involving domestic violence. Based on these findings, which were bolstered by the recommendation of the guardian ad litem and testimony from the DFCS case manager, the court found the child “would be in danger of harm if placed with the father” and ordered that permanent legal custody be placed with the maternal grandparents with parental visitation rights and support obligations.

Reasoning: On appeal from a deprivation order, the court views the evidence “in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found clear and convincing evidence of deprivation.”

Of note in the present case, the court found no evidence that the father was under the influence of methamphetamine during the altercation with the mother’s boyfriend, nor that the child was harmed in any way by the altercation since he was not present. The court also noted that the father never used meth in the child’s presence, had begun treatment, and had passed recent drug tests. The parents had no plans to get back together, and the father maintained adequate housing, gainful employment, and was able to meet G.R.B.’s needs while in his care. Although DFCS declined to make a placement recommendation on the record, the case manager did testify that the agency had “no concerns” about G.R.B.’s well being while in his father’s care, and that he had completed all classes and programs required by his case plan. In light of this evidence, the juvenile court lacked clear and convincing evidence by which to find G.R.B. presently deprived as to his father. “

That final paragraph in the summary is what is most important in these facts; again, the case involved a history of methamphetamine use and domestic violence.  The case makes clear that a finding must be of PRESENT deprivation, and that a history of such use is not sufficient, standing alone.

Food for thought, and an important step forward for Georgia, where the opposite belief seems to be prevalent and fathers and mothers get threatened often in a divorce situation with termination of their custodial rights by the other parent because of their past drug histories.

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