author: McFadden, Judge.

text:
    A15A1291.
    TURNER v. THE STATE.
    (778 SE2d 257)
   McFadden, Judge.

After a jury trial, Scott Turner was convicted of child molestation and enticing a child for indecent purposes. On appeal, he argues that he received ineffective assistance of counsel, but we find that he has failed to show both deficient performance and prejudice. Turner also argues that the trial court erred by limiting his attempts to show that the victim’s mother had threatened to falsely accuse another person of child molestation. We hold that Turner has failed to show an abuse of discretion in this regard. We thus affirm Turner’s convictions.

1. Facts.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that the victim was Turner’s stepdaughter, who was 13 years old at the time of trial. The victim testified that while her mother was away from their house, Turner would beckon her into his bedroom. She would remove her pants and underwear and bend over the bed. Turner would remove his pants and underwear, hold the victim by the hips, and rub his penis against her anus. In addition, while they sat on the living room couch, Turner would have the victim fondle his penis and he would fondle her breasts. The victim testified that it happened “a lot,” maybe every other day, for a period of two years, and less frequently before that; in total, Turner molested the victim for more than seven years.

Eventually the victim told her father’s girlfriend that Turner was molesting her. The girlfriend advised the victim to tell her mother. When the victim told her mother about the abuse, the mother confronted Turner. The victim’s mother asked Turner what he had done to the victim, and he responded, “I touched her and I made her touch me.” When she asked Turner “if he got off,” he responded, “not that [the victim] ever knew.” The victim’s mother asked the victim, in Turner’s presence, when the abuse had stopped, and the victim said earlier that year. Turner corrected her, responding, “uh-uh [negative], it stopped at the Baptist Tabernacle,” meaning it had stopped when the family began attending the Baptist Tabernacle at an earlier date.

The mother called the family’s pastor and his wife, who came to the residence. She also called the police, and Turner heard that telephone call. Turner kept repeating that he had to go because he could not “go to prison for the rest of [his] life.”

The pastor and his wife arrived, and the pastor began speaking with Turner. Turner told the pastor that he had ruined his family. When the pastor’s wife asked Turner what he had been thinking, he responded, “I wasn’t thinking.” Suddenly, Turner fled. The police arrived at the residence and then drove around looking for Turner, but they were unable to find him.

Several hours later, Turner returned to the house, holding a knife and a hammer. The victim’s mother attempted to call the police again, but Turner took the phone and asked her to wait until the morning, so they could talk about it. The mother was able to call the police on another phone, and Turner exited the residence. The mother looked outside to see if she could locate Turner, in order to tell the dispatcher his location, and she saw him lying on the ground in the back yard. He was bloody, and the bloody knife was next to him; he had hammered the knife into his leg. The mother told Turner that she really wanted to kill him. He responded that he wished she would. An ambulance arrived. As Turner was carried away on a stretcher, he said, “Please ask [the victim] to forgive me. I’ve destroyed my family. I’ve destroyed my life.”

While Turner was in the emergency room, the pastor again spoke with him. Turner told the pastor that he might have molested the victim when changing diapers.

2. Ineffective assistance of counsel.

Turner argues that trial counsel provided ineffective assistance by failing to object to improper comments on Turner’s pre-arrest silence and by failing to present expert testimony. In order to prevail on his claim of ineffective assistance of counsel, Turner

must show that counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different. Moreover, in ruling on an ineffectiveness claim, this [c]ourt need not analyze the deficient performance prong if the [c]ourt determines the prejudice prong has not been satisfied.

Jackson v. State, 282 Ga. 494, 497 (2) (651 SE2d 702) (2007) (citations and punctuation omitted).

(a) Failure to object to questions and comments that allegedly concerned pre-arrest silence.

Turner argues that trial counsel was ineffective because she did not object when the state asked witnesses about Turner’s failure to deny the allegations during their discussions with him before his arrest. He argues that these questions, along with statements made during the state’s opening statement and closing argument, violated the “bright-line rule in Georgia that the [s]tate may not comment on either a defendant’s silence prior to arrest or failure to come forward voluntarily.” Rush v. State, 294 Ga. 388, 390 (2) (a) (754 SE2d 63) (2014) (citations and punctuation omitted). Consequently, Turner argues, those questions and comments about Turner failing to deny the allegations against him were improper and trial counsel rendered deficient performance when she failed to object. See State v. Sims, 296 Ga. 465, 470 (2) (a) (769 SE2d 62) (2015).

Initially, we reject the state’s argument that the comments were admissible under Gibson v. State, 291 Ga. App. 183, 187-188 (3) (661 SE2d 850) (2008), because our Supreme Court has overruled the holding in Gibson. In Gibson, we held that the bright-line rule is “limited to a defendant’s silence in the face of questions by an agent of the [sjtate or his failure to come forward when he knew that he was the target of a criminal investigation.” Id. at 188 (3) (citations, punctuation and emphasis omitted). In Gibson, we relied on Roebuck v. State, 261 Ga. App. 679, 684 (4) (583 SE2d 523) (2003), to support that holding. In Roebuck, we, in turn, relied on Morrison v. State, 251 Ga. App. 161, 163-165 (3) (554 SE2d 190) (2001). However, in Reynolds v. State, 285 Ga. 70 (673 SE2d 854) (2009), our Supreme Court overruled Morrison, 251 Ga. App. at 164 (3) and its progeny and reiterated that the state may not comment on a defendant’s silence or failure to come forward.

But notwithstanding that rule, we find no reversible error. Several of the comments to which Turner points are permissible comments on his flight rather than impermissible comments on his silence. Several of the comments concerned Turner’s failure to answer questions during conversations with witnesses, and therefore were properly the subject of questioning by the prosecutor. And counsel’s failure to object to any comments that were improper does not entitle Turner to a new trial, given the overwhelming evidence of his guilt, including his admission that he “touched [the victim] and [he] made her touch [him].”

“[Statements about flight are proper as circumstantial evidence of guilt.” Rush, 294 Ga. at 390 (2) (a) (holding that prosecutor’s statement that “the guilty man flees but the righteous man stands bold as a lion,” was not an improper comment on defendant’s failure to come forward because statements about a defendant’s flight are proper as circumstantial evidence of guilt). The prosecutor’s comments about Turner leaving the residence before the police arrived were proper.

Turner complains of the state’s examination of his wife, the pastor, and the pastor’s wife. All three witnesses testified about their conversations with Turner and, in response to the prosecutor’s questions, his failure to deny the allegations of child molestation. For example, when the prosecutor was questioning the victim’s mother about confronting Turner with the victim’s allegations, the mother described the conversation that she had with the victim and Turner. She testified that she asked how long the molestation had been occurring. The victim answered, and Turner corrected her answer. The mother testified that she then asked Turner:

[I]s this true, is this true, and he just hung his head and looked at the floor. And I got up and I put my hands on my hips and I told him, I said, you better tell me something or we’re fixing to have a problem. And at that time, he said, okay, let’s go into the sunroom.

The instances about which Turner complains are “not squarely governed by the principle . . . prohibiting mention of a defendant’s silence or failure to come forward [because Turner] was not silent and did not fail to come forward.” Carter v. State, 324 Ga. App. 118, 126 (2) (b) (749 SE2d 404) (2013) (where appellant was not silent and willingly talked, rule did not require the exclusion of testimony about her failure to mention certain facts). Rather, he willingly engaged in conversation with his wife, his pastor, and the pastor’s wife, making certain admissions, answering certain questions, and supplying detail about the molestation. The testimony of these witnesses about Turner’s silence simply highlighted the inconsistencies between what Turner told them and what he failed to say in the same conversations. The testimony was not subject to the bright-line rule. See Rush, 294 Ga. at 390-391 (2) (a). See also Brown v. State, 167 Ga. App. 61, 63-64 (4) (305 SE2d 870) (1983) (jury “surely was entitled to know” of conflicts in defendant’s statements).

Assuming without deciding that other comments and questions about Turner’s silence were improper and that trial counsel’s performance was deficient for not objecting to them, this deficient performance does not require a new trial. Trial counsel’s failure to object to any improper references to Turner’s silence did not prejudice his defense in light of the strength of the evidence of his guilt.

Improper reference to a defendant’s silence . . . does not automatically require reversal. . . . [T]he error may be harmless beyond a reasonable doubt. The determination of harmless error must be made on a case by case basis, taking into consideration the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt.

Al-Amin v. State, 278 Ga. 74, 85 (15) (597 SE2d 332) (2004) (citations and punctuation omitted). Here, the evidence of Turner’s guilt was quite strong and included the victim’s testimony, Turner’s multiple admissions, and his flight. Given the overwhelming evidence of Turner’s guilt, we conclude that he has not shown that, “if trial counsel had objected to the prosecutor’s comments, there is a reasonable probability that the outcome of the trial would have been different.” Jackson, 282 Ga. at 497 (2) (citations omitted).

(b) Failure to present expert witness.

Turner argues that trial counsel was ineffective because she failed to present an expert witness to testify about the forensic interview of the victim and the behavioral patterns of sexually abused children. In light of the overwhelming evidence of Turner’s guilt, particularly his multiple admissions, Turner has not shown “that, but for counsel’s failure to call an expert witness, there is a reasonable probability that the outcome of the trial would have been different.” Vaughn v. State, 307 Ga. App. 754, 759 (4) (706 SE2d 137) (2011).

3. False accusation.

Turner argues that the trial court abused his discretion by refusing to allow Turner to present evidence of a false accusation of molestation. He sought to present evidence that the victim’s mother had threatened to falsely accuse the victim’s father of molesting the victim if he did not give her custody or child support. But Turner did not make the requisite showing.

Before evidence of false accusations may be admitted, “the trial court is required to make a threshold determination outside the jury’s presence that a reasonable probability of falsity exists.” Osborne v. State, 291 Ga. App. 711, 713 (2) (662 SE2d 792) (2008) (citation omitted). The defendant has the burden of coming forward with evidence at the hearing to establish a reasonable probability that the accusation is false. Clements v. State, 279 Ga. App. 773, 774 (2) (632 SE2d 702) (2006). For the purposes of this appeal, we will assume that a threat of making a false accusation of sexual misconduct is admissible in the same way that a false accusation itself is admissible. But see Pollio v. State, 278 Ga. App. 729, 730-731 (1) (629 SE2d 583) (2006) (affirming exclusion of victim’s statement, which defendant claimed was a false accusation of sexual misconduct, because, inter alia, “statement was not an allegation of sexual misconduct”). Here Turner has not met his burden of establishing a reasonable probability that the accusation was false. Although counsel informed the trial court that she could present testimony “from other witnesses that [the victim’s mother] had made a statement that she was going to accuse [the victim’s father],” counsel did not identify those witnesses — or even seek a ruling on the issue of falsity from the trial court. Turner has not shown that the trial court abused his discretion in excluding this evidence. Id. at 731 (1).

Decided October 8, 2015

Reconsideration denied November 16, 2015.

Lawrence J. Zimmerman, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

       The rule is based on former OCGA § 24-3-36. Our Supreme Court has “express[ed] no opinion about the continuing validity of [the rule] under the new Evidence Code.” State v. Sims, 296 Ga. 465, 471 (3) (769 SE2d 62) (2015). But here, as Turner was tried in 2012, the former Evidence Code applies.


source: Caselaw Access Project

author: McFadden, Judge. DILLARD, Judge,

license: Public Domain

text:
    A15A1430.
    DELL v. DELL.
    (780 SE2d 348)
   McFadden, Judge.

In Dell v. Dell, 324 Ga. App. 297 (748 SE2d 703) (2013), we vacated the order terminating Leah M. Dibello Dell’s parental rights to her daughter and granting stepmother Sarah Dell’s petition to adopt the child because, among other things, the order did not include specific findings of fact and conclusions of law as required by OCGA §§ 19-8-10 and 19-8-18 (b). We remanded the case for further proceedings. Dell, 324 Ga. App. at 298-302 (1) (physical precedent as to Division 1). Upon remittitur, the trial court entered a new order again terminating Leah Dell’s parental rights and granting Sarah Dell’s adoption petition. Leah Dell filed this appeal.

Leah Dell argues that the evidence does not support the termination and adoption, but we find the evidence sufficient. She argues that she received ineffective assistance of counsel, but we find that she has failed to show both deficient performance and prejudice. She argues that the trial court abused its discretion by denying her motion for continuance so that she could appear, but we find she is not entitled to reversal on this ground because she was not harmed, given that the trial court conducted another hearing at which she appeared and was allowed to present her defense. We thus affirm.

1. Background.

In the earlier appeal, we found that the evidence showed:

[T]he minor child, E. D., was born on September 14, 2002. E. D. is the natural child of Dwain and Leah, who were married at the time of E. D.’s birth. Dwain and Leah separated when E. D. was a toddler because Leah became addicted to methamphetamine. E. D. was subsequently found to be deprived, and Dwain was awarded custody of her. In December 2004, Dwain and Leah divorced, and Dwain was granted permanent primary physical and legal custody of E. D. Although Leah was properly served in the divorce action and had notice of the hearing, she did not appear.
Between 2004 and November 2006, Leah regularly visited with E. D. Although ordered to pay monthly child support, however, Leah made only one payment of approximately $1,300 after Dwain filed a contempt action. In 2007, Leah moved to Florida. After she moved, Leah and Dwain lost contact with each other. Since that time, Leah has not contacted Dwain or E. D., paid any child support, or sent any letters, cards or gifts.
Dwain and Sarah married in June 2007, and had a daughter, A. D., in January 2010. Sarah is a certified pre-K teacher. . . . Sarah has lived with and cared for E. D. since 2007, and E. D. considers Sarah to be her mother. E. D. has no health problems, has progressed appropriately in school and has bonded with her half-sister, A. D.
On September 3, 2010, Dwain and Sarah filed their petition to terminate Leah’s parental rights. The petition also requested an order permitting Sarah to adopt E. D. Although Leah was personally served, attended a mediation and completed a court-mandated workshop, she did not attend the scheduled trial in this case.
At the trial in this case, Leah’s counsel moved for a continuance, stating that Leah was without funds to travel from Florida to the scheduled trial. Leah’s counsel assured the superior court that Leah would be able to attend the trial if it were continued until the following month. The superior court denied the motion, and the trial was conducted in Leah’s absence.
Following the trial, the superior court terminated Leah’s rights based on her abandonment of E. D. and her failure to provide for E. D.’s care and support for more than a year. The superior court also approved Sarah’s adoption of E. D., finding that adoption was in E. D.’s best interests.

Dell, 324 Ga. App. at 297-298 (footnote omitted).

After the trial court, on remand, entered another order to comply with our directive, Leah Dell, proceeding pro se, filed this appeal. “While [her] brief is far from a model of clarity and cites very little legal authority for the propositions [she] sets forth, to the extent we are able to discern the basis of [her] assertions of error we address them as follows.” Ovrevik v. Ovrevik, 254 Ga. App. 756, 762 (3) (564 SE2d 8) (2002).

2. The evidence was insufficient.

Leah Dell argues that the evidence was insufficient to support the termination and adoption. We agree that the evidence was insufficient to support the trial court’s finding that Leah Dell abandoned her child. But it was sufficient to support the trial court’s findings that Leah Dell failed to have any contact with the child and failed to support the child for a period longer than a year immediately prior to the filing of the termination and adoption petition and that these failures were without justifiable cause. These findings support the termination and adoption.

When a biological parent refuses to surrender her parental rights to allow a stepparent adoption, cf. OCGA § 19-8-6 (a) (1), as Leah Dell did here,

the court may nevertheless terminate the biological parent’s rights and grant the stepparent’s petition to adopt the child if it finds, among other things, that there is clear and convincing evidence that the parent has abandoned the child, ... or that the parent, [“]for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) To communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) To provide for the care and support of that child as required by law or judicial decree. [”] OCGA § 19-8-10 (a) (1) . . . ; 19-8-10 (b).

Ray v. Hann, 323 Ga. App. 45, 48 (2) (746 SE2d 600) (2013) (citation and footnotes omitted).

Here, the court found that Leah Dell had abandoned the child, a finding that would support the termination and adoption under OCGA § 19-8-10 (a) (1). It also found that Leah Dell had failed to have any contact with the child and had failed to support the child for a period longer than a year immediately prior to the filing of the termination and adoption petition and that these failures were without justifiable cause, findings that would support the termination and adoption under OCGA § 19-8-10 (b).

Our appellate courts have held that in order to find abandonment, there must be sufficient evidence of an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental obligations growing out of the same, and forego all parental duties and claims. Because the circumstances in this case do not comport with this definition, in that [Leah Dell’s] pursuit of this litigation arguably shows that [she] did not intend to sever entirely [her] parental obligations, we are constrained to find that the adoption was not proper under OCGA § 19-8-10 (a) (1). However,... we find that there was evidence to support the trial court’s judgment under OCGA § 19-8-10 (b).

Hall v. Coleman, 264 Ga. App. 650, 653 (1) (592 SE2d 120) (2003) (citations, punctuation and emphasis omitted).

Leah Dell does not dispute that she failed to communicate with the child or to pay child support for more than a year before the petition was filed in September 2010. She testified at the hearing on her motion for reconsideration that she had not paid child support since 2005. And the court found that she had not visited the child since 2006.

Instead, Leah Dell argues that her failures are justified. She argues that she could not communicate with the child or pay support because the father had moved without notifying her of his new location. But she testified that, at the end of 2009 or the beginning of 2010, she learned where the father, child, and stepmother lived. Yet for the nine or ten months thereafter until the petition was filed, she paid no support nor sought any visitation.

She also argues that her failure to pay child support is excused by the fact that the father had closed a child support case to which she was making her payments. Yet at a July 2012 hearing she testified that she learned that the child support case was closed “last year.” Presuming that she meant 2011, this was months after the adoption petition had been filed. This does not explain her failure to pay child support since 2005.

Finally, she argues that her failure to pay child support is excused because she had no income. The court found Leah Dell’s testimony that she had no income not to be credible, given that she also testified that she was running her fiancé’s company. When asked whether she had income, she responded, “we just started the income, so yes; yes and no.” She also testified that she had been able to earn a living.

The court explicitly found that Leah Dell had not justified her failure to provide care and to pay child support with any circumstances beyond her control, and clear and convincing evidence supports this finding.

3. Ineffective assistance of counsel.

Leah Dell argues that her attorneys were ineffective. “An indigent parent has a statutory right to effective legal representation in termination proceedings.” Dell, 324 Ga. App. at 302 (2) (citation omitted). “In order to prevail on a claim of ineffective assistance of counsel the mother must show that her counsel’s performance was deficient and that the deficient performance was prejudicial to her defense.” In the Interest of A. H. P., 232 Ga. App. 330, 334 (2) (500 SE2d 418) (1998) (citation and punctuation omitted). If Leah Dell “fails to meet [her] burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted). We find that Leah Dell has failed to meet her burden.

Leah Dell argues that counsel appointed to represent her at the trial on the termination and adoption petition did not notify her of the hearing date, but trial counsel testified otherwise. The evidence shows that the case had been placed on a week-long trial calendar, and the court had warned Leah Dell that she should be prepared to be there at any time during that week. Counsel testified that he notified Leah Dell on the Monday of that week that her case would be reached on Wednesday, but Leah Dell told him she could not attend the trial because she lacked funds and because of a scheduling issue.

Leah Dell argues that counsel was ineffective because he stated to the court that she completely agreed with the adoption, and only desired that her parental rights not be terminated. This is a mischaracterization of counsel’s comments to the court. In fact, counsel stated that if the court were inclined to grant the adoption, given Leah Dell’s lack of involvement with the child, then his biggest concern was that Leah Dell be allowed to maintain a relationship with the child. Given the overwhelming evidence that Leah Dell was uninvolved with the child, we deem unexceptionable trial counsel’s decision not to contest that fact and instead to advocate for the best outcome he judged realistically attainable in light of it. See Fletcher v. State, 326 Ga. App. 389, 391 (2) (756 SE2d 625) (2014).

Leah Dell argues that both the attorney who represented her at the hearing on the adoption petition and another appointed attorney who represented her at the hearing on her motion for reconsideration failed to call witnesses who would testify on her behalf regarding her attempts to locate the father’s whereabouts. As discussed above, however, she testified that she had located the father well before the petition for adoption was filed but she nevertheless failed to pay support or to contact the child. Thus any deficiency in this regard did not prejudice her case.

She argues that the attorneys failed to present crucial evidence, yet she does not identify the evidence she contends they should have presented. Leah Dell argues the attorneys failed to properly question witnesses, but she fails to specify questions the attorneys should have asked and of what witnesses they should have asked them. Accordingly, she has not demonstrated that these alleged failures affected the outcome of the trial and these claims of ineffectiveness fail. See Grant v. State, 295 Ga. 126, 132 (5) (c) (757 SE2d 831) (2014).

4. Continuance.

Leah Dell argues that the trial court erred by denying her motion for continuance of the hearing on the adoption petition so that she could be present and by using her absence at the hearing as grounds for terminating her parental rights. “Atrial court’s decision to grant or to deny a continuance will not be disturbed absent abuse of discretion.” In the Interest of N. H., 313 Ga. App. 292 (1) (721 SE2d 103) (2011) (citation and punctuation omitted). To obtain reversal based on the denial of a continuance, a party must show harm. Id. at 293 (1). Leah Dell has not shown harm. She was represented at the hearing by counsel, who, as the trial court found, “made impressive efforts to advocate for [her] despite her absence at trial.” And after the case was remanded, the trial court conducted a hearing on her motion for reconsideration at which Leah Dell was represented by another attorney and was allowed to testify and present evidence. Finally, nowhere in the final order does the trial court state that Leah Dell’s absence is a ground for terminating her parental rights. Under these circumstances, Leah Dell has not shown that she is entitled to reversal.

5. Failure to provide written judgment.

Leah Dell argues that she is entitled to reversal because she was never sent the original judgment. Any failure in this regard did not harm Leah Dell because that judgment was vacated and a new judgment was entered. Leah Dell does not claim that she did not receive this judgment.

Decided October 2, 2015

Reconsideration denied November 16, 2015.

Leah M. Dibello Dell, pro se.

Andrew T. Mosley II, for appellee.

Judgment affirmed.

Ellington, P. J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said by the Court in the majority opinion. As a result, the majority’s opinion may not be cited as binding precedent in future cases. See Court of Appeals Rule 33 (a).


text:
    A15A1144.
    In the Interest of J. C., a child.
    (779 SE2d 734)
   McFadden, Judge.

The mother of J. C. appeals from the juvenile court’s March 5, 2014 order transferring temporary legal custody of the child, then one-and-a-half years old, from the mother to the child’s aunt. Because there was not clear and convincing evidence that at the time of the transfer order the child was presently deprived due to the mother’s parental unfitness, we reverse.

Georgia’s former Juvenile Code applies to this case because it was commenced in 2013. See generally In the Interest of G. R. B., 330 Ga. App. 693, n. 1 (769 SE2d 119) (2015) (explaining that new Juvenile Code applies to juvenile proceedings commenced on and after January 1, 2014, and describing changes made by new Juvenile Code pertaining to deprivation proceedings). The former Juvenile Code authorized a juvenile court to transfer temporary legal custody of a child from a parent to one of several enumerated persons or entities ifthe child was found to be a deprived child. Former OCGA § 15-11-55 (a) (2) (A).

A “deprived child” is a child who is “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[.]” Former OCGA § 15-11-2 (8) (A). “[A]n order temporarily transferring custody of a child based on alleged deprivation must be grounded upon a finding that the child is at the present time a deprived child, and a finding of parental unfitness is essential to support an adjudication of present deprivation.” In the Interest of G. S., 279 Ga. App. 89, 92 (630 SE2d 607) (2006) (citations and punctuation omitted; emphasis in original); accord In re J. C. P., 167 Ga. App. 572, 575-576 (307 SE2d 1) (1983) (on motion for reconsideration). In other words,

[t]o authorize even a loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child.

In the Interest of S. S., 232 Ga. App. 287, 289 (501 SE2d 618) (1998) (citation and punctuation omitted).

1. Facts and procedural history.

Keeping the above standards in mind, we turn to the evidence, which we view “in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived.” In the Interest of G. S., 279 Ga. App. at 91 (citation and punctuation omitted).

Viewed most favorably to the juvenile court’s judgment, the evidence shows that J. C. was born in Baltimore on September 1, 2012, when the mother was 23 years old. Before J. C.’s birth, the mother had lived with her own mother, then moved to Baltimore where she lived at various times with her stepfather (who abused her), with a former boyfriend, with female friends, and on the streets working as a prostitute. At the time of J. C.’s birth, the mother lived in a homeless shelter. She did not know with certainty the identity of J. C.’s father but believed he could have been her stepfather.

In November 2012, the mother and J. C. moved into the house of the mother’s sister (“the aunt”) in Georgia. While living with the aunt, the mother engaged in some cutting behavior. Sometimes she would take J. C. across the street to spend time with neighbors whom the aunt described as “wrong people” because they fought and drank. Occasionally the aunt would see the mother drink alcohol, but she testified that the mother did not drink much. However, the mother smoked marijuana and at some point, at the mother’s request, the aunt provided the mother with a urine specimen for a drug test. The mother did not get along with the aunt and planned to move back in with her own mother, but in January 2013 her mother passed away.

In February 2013, the mother and the aunt got into a verbal argument, leading the mother to pack her and J. C.’s belongings and leave the house to stay with friends. The mother had no transportation, the weather was very cold, and the aunt did not know where the mother was going. The Department of Family and Children Services (“DFCS”) became involved; the appellate record contains sparse details on this point but does contain an unappealed deprivation order in which the juvenile court pertinently found

that [DFCS] received allegations that the child was being neglected due to the mother’s mental instability. The mother [had] recently attempted to leave [the aunt’s] home in the rain while holding the child after an argument with [the aunt]. DFCS and law enforcement arrived at the residence and the mother was belligerent and verbally combative.... The mother admits to cutting herself. She reports that she yells at the baby but has never physically harmed him.

On March 3, 2013, the mother and DFCS agreed to an “impending danger safety plan” that did not articulate any specific safety threats but stated that J. C. would live with the aunt and that the mother would have supervised visits with him at the aunt’s home.

At a May 14, 2013, adjudicatory hearing the mother, acting pro se, stipulated that J. C. was deprived. (The appellate record does not contain a transcript of that hearing.) On June 6, 2013, the juvenile court entered the above-mentioned unappealed deprivation order that adjudicated J. C. deprived based on four causes: “Perpetration of Domestic Violence”; “Neglect/Lack of Supervision”; “Neglect/ Inadequate Housing”; and “Mental/Physical Impairment of Parent.” The juvenile court ruled that the mother would retain legal custody and control of J. C. provided that she “comply with the family plan devised by [DFCS] and follow all recommendations and referrals to service providers, including, but not limited to: counseling recommended by [a particular service provider], parenting classes, clean and suitable housing and psychiatric evaluation[.]” The juvenile court held that the aunt would have physical custody of J. C. “until such time as the mother complies with the terms of [the juvenile court’s order]” and that “[p]hysical custody of the child shall not return to the mother without prior order of this [c]ourt.” The order further stated that it would “expire on May 14, 2014, unless sooner terminated by [o]rder of this [c]ourt.”

The mother did not appeal from this deprivation ruling. We note, however, that the juvenile court lacked the authority to award physical custody of the child to a person other than the child’s legal custodian. See In the Interest of A. N., 281 Ga. 58, 59-61 (636 SE2d 496) (2006) (juvenile court addressing issue of temporary custody was not authorized to impose upon grant of legal custody a condition that physical custody be given to a party of the court’s choosing, because the concept of legal custody includes the right to determine where and with whom child shall live); In re R. R. M. R., 169 Ga. App. 373, 374-375 (1) (312 SE2d 832) (1983) (juvenile court addressing issue of temporary custody was not authorized to grant one person or agency legal custody of child and another person or agency physical custody of child).

Consequently, in the summer of 2013 J. C. remained living with the aunt and initially the mother lived in her truck. She briefly lived with a pimp but denied prostituting for him. She then moved into an agency-operated shelter. The mother began parenting classes and obtained employment, but in August 2013 she sustained an injury that prevented her from working.

On August 16, 2013, a licensed psychologist performed a four-hour psychological/parental fitness evaluation on the mother. The mother was very candid in their interview. She related that she was the victim of childhood sexual abuse, had a history of prostitution, and had a history of difficult relationships with abusive partners. She told the psychologist that she smoked marijuana and consumed two alcoholic drinks a day. She described a criminal history (a burglary conviction with a probated sentence and first offender status) and a history of cutting behavior as a teenager that she resumed after the argument with the aunt.

The mother told the psychologist that she had completed parenting classes and that she had begun anger management classes but had not returned because she did not like the others in the class and because the leader had said she did not need the classes. The mother appeared to the psychologist to be amenable to therapy and making an effort with it.

The psychologist administered several tests to the mother. These tests reflected that she had an IQ on the lower end of average but not low enough to mentally impair her and that she had a high probability for substance abuse and self-medication. She scored high on tests for trauma, anxiety, depression, and suicidal ideation. Her score on a child abuse potential inventory reflected that she had personality characteristics in common with “people who have typically abused a child.” She scored low on an inventory of parenting aspects, and although she had a reasonable understanding of child rearing and parenting principles, the mother’s expressed intention of using corporal punishment rather than time-outs to discipline J. C. in the future concerned the psychologist, in light of her other test scores.

Based on his interview and the test results, the psychologist diagnosed the mother with various mental disorders that, in his opinion, affected her functioning and required immediate treatment. He recommended that J. C. not be returned to his mother’s care and that she have only supervised contact with him until a therapist deemed her ready for unsupervised contact.

After receiving the psychologist’s report, in October 2013, DFCS petitioned to transfer temporary legal custody of J. C. from the mother to the aunt. The mother, at that point represented by counsel, moved to dismiss the petition and for a return of physical custody to her.

On December 10, 2013, the juvenile court held an evidentiary hearing, at which the psychologist testified to the findings from his August 2013 evaluation. As detailed below, various other witnesses testified to actions that the mother had taken since the juvenile court’s earlier deprivation finding.

A DFCS case manager testified at the hearing that DFCS had developed a case plan for the mother that set goals for her to continue counseling, attend anger management classes, follow the psychologist’s recommendations, and obtain an evaluation from a licensed psychiatrist. The case manager described her knowledge of the mother’s progress in these areas: the mother was in the initial phases of individual counseling, she had not finished anger management classes but had expressed her intent to attend a series of classes that had not yet begun, and she had not yet had a psychiatric evaluation. The case manager explained that the mother was responsible for finding her own psychiatrist and that DFCS had not referred the mother to a psychiatrist. The case manager also testified that the mother was working with a new service provider; the new provider had not given DFCS information about the mother’s progress and DFCS had not given the new provider the psychologist’s August 2013 evaluation.

The DFCS case manager met with the mother regularly. She testified that, at the time of the hearing, the mother was on medical leave from employment and that in September 2013 she had moved into a three-bedroom trailer that was clean and had room for J. C.; she received help in paying her rent and utilities from the agency that operated the shelter where she had stayed. The mother lived alone in the trailer, although sometimes she would have friends visit; the mother introduced her friends to the case manager using nicknames, and the case manager did not know whether or not the mother knew the friends’ actual names. The mother had visits with J. C. that were arranged and supervised by the aunt.

The case manager testified that, at some point during the late summer of 2013, a fire erupted while the mother was cooking at the aunt’s house. The mother told the case manager that she had momentarily entertained the thought of letting the house burn down but, realizing that J. C. would not have a place to stay, she called the fire department.

When asked why DFCS sought the transfer of temporary custody from the mother to the aunt, the case manager responded: “I feel that Mom is not making any behavior change in regards to her parenting skills or her child’s well being.” She noted that the mother blamed others for DFCS’s involvement and had never lived with J. C. on her own. The case manager testified that the mother had stated she did not intend to continue a relationship with J. C. if the aunt was given custody of the boy.

The aunt testified at the hearing that J. C. was living with her, that the mother visited J. C. regularly, and that the mother attended doctor appointments with the boy. The aunt had discretion over the visitation schedule. The relationship between the aunt and the mother was strained, and the aunt testified that the mother had laughed about the household fire incident. However, the aunt helped the mother move into her new residence, which the aunt described as livable and clean. The aunt opined that the mother was unable to care for J. C., noting that the mother had never taken care of the boy without help from others, she was “not stable,” and she socialized with undesirable people.

The juvenile court heard testimony from an employee of the agency that operated the shelter where the mother had lived in the summer of 2013 and from which the mother continued to receive support. This witness testified that the mother had begun parenting classes, had found stable housing, and had begun individual counseling. She testified that she had seen improvements in the mother’s ability to manage anger, noting that the mother had “been through a lot that makes people angry” and describing, as an example of the mother’s improved skills in this area, an incident “where a resident [of the shelter] tried to actually fight with her, and instead of fighting with the other resident [the mother] came and told the staff and tried to resolve the situation.” In the agency employee’s opinion, the mother had “evolved.”

A witness who had become a close friend of the mother in the summer of 2013 testified that she spent time with the mother every day, provided her with some financial assistance, and regularly took her to therapy and counseling appointments. She stated that the mother was scheduled to begin anger management classes. Although the mother spoke about her past cutting behavior, the friend saw no evidence of current cutting. The friend had observed the mother interact with J. C. at doctor appointments and the aunt’s house, and she described the two as having a loving bond. The friend testified to changes she had observed in the mother between the summer of 2013 and the hearing in December 2013. Initially the mother had been very angry, but the witness had seen the mother’s personal growth. She had witnessed the mother get frustrated without losing her temper. The friend testified: “[S]he is a very loving person. She has a good heart. She... did have trust issues but now she has grown to the point that she does trust. And that’s why I feel like with her that she’s more like a daughter than just a friend.” The friend stated that the mother had a positive support system that included her, the family violence agency employee, and a relative. She testified to her belief that the mother was capable of taking care of J. C. and she committed to help the mother to that end.

The mother testified at the hearing that, since moving out of the aunt’s house, she had completed parenting classes and begun counseling. Because J. C. did not live with her, she was not presently eligible for an in-home parenting class. She had an appointment for a psychiatric evaluation set for several days after the hearing and was taking prescribed medication for depression. She had registered for a series of anger management classes that would begin the following month, and she also was scheduled to begin substance abuse treatment. The mother presented photographs of her three-bedroom trailer home, in which she had placed a crib and other items for J. C. The mother admitted to one instance of cutting behavior since J. C.’s birth. She admitted to smoking marijuana and described obtaining the drug from strangers outside of convenience stores. Another witness who administered a drug test to the mother testified that she had tested positive for marijuana and cocaine.

At the end of the hearing, the psychologist, who had listened to all of the testimony, returned to the stand and testified that the mother “appears [to be] in a very similar situation” as she was when he evaluated her four months earlier, if not a worse situation due to the positive drug test, although he acknowledged that the mother had developed a support network and begun taking medication for her psychological conditions. He had not had further contact with the mother after the August 2013 evaluation, and he testified that he did not “know for sure” whether her parental fitness had improved or her scores would have changed on the assessment tests he had previously administered. The psychologist testified that he had concerns about J. C. being returned to his mother’s care because, without counseling, the mother’s condition would not improve. He also testified that the aunt should not supervise contact between the mother and J. C.

On March 5, 2014, the juvenile court entered the order at issue on appeal. In that order, the juvenile court found that J. C. remained deprived “as previously found by this [c]ourt on May 14, 2013, [and] that the [m] other has not yet remedied her issues that resulted in a deprivation finding in May 2013[.]” The juvenile court denied the mother’s motion to dismiss and her motion for a return of physical custody, and instead transferred temporary legal custody of J. C. from the mother to the aunt. The mother appeals from this order.

2. Present deprivation.

As stated above, for a transfer of even temporary legal custody of J. C. from the mother to the aunt, DFCS was required to show by clear and convincing evidence that J. C. was presently deprived. See In the Interest of G. S., 279 Ga. App. at 91. In his March 5, 2014, order the juvenile court found J. C. deprived because the mother had not remedied the causes of deprivation identified in the earlier deprivation order. See generally In the Interest of M. T. F., 318 Ga. App. 135, 145-146 (1) (733 SE2d 432) (2012) (where child is not in parent’s physical custody, DFCS may show present deprivation by showing that, if child were returned to parent at time of hearing, child would be deprived). Those causes were: “Perpetration of Domestic Violence”; “Neglect/Lack of Supervision”; “Neglect/Inadequate Housing”; and “Mental/Physical Impairment of Parent.” We must view the earlier, unappealed deprivation order as establishing that those causes of deprivation existed at the time of the earlier order. See In the Interest of P. D. W., 296 Ga. App. 189, 192 (1) (a) (674 SE2d 338) (2009) (unappealed order adjudicating child deprived binds parent to finding that at time of order child was deprived for reasons given therein). Present deprivation “may be established by showing that the conditions upon which an earlier finding of deprivation was based still exist[ed] at the time of the termination hearing.” In the Interest of M. T. F., 318 Ga. App. at 146 (1) (citations omitted).

The appellate record, however, offers little meaningful insight into the conditions giving rise to the prior deprivation findings, which the juvenile court entered after a hearing at which the mother stipulated to deprivation without the benefit of counsel. The paucity of the record on this point hampers our ability to determine whether there is evidence that those conditions still existed at the time of the deprivation ruling at issue in this appeal. As detailed below, the record, as it exists, does not contain clear and convincing evidence to support the trial court’s conclusion that, in December 2013, J. C. remained presently deprived.

(a) Perpetration of domestic violence.

The record does not contain clear and convincing evidence that the mother had continued to perpetrate domestic violence. To begin with, the record does not clearly identify the victim of the domestic violence that the juvenile court found the mother to have perpetrated in the May 2013 order. That order refers to the argument between the mother and the aunt and also states that the mother had yelled at the infant J. C., but the order does not describe any acts of violence, and the aunt made clear in her later testimony that her argument with the mother was not physical but was “just words.”

Regardless of the identity of the victim of the domestic violence initially found by the juvenile court, the record contains no evidence whatsoever that the mother had continued to perpetrate domestic violence against anyone. At the time of the December 2013 hearing, the mother lived alone, there is no evidence that she was involved in a romantic or sexual relationship with anyone, and there is no evidence that she had engaged in any violent acts whatsoever toward the aunt, toward J. C., or toward any other person. At most, the evidence showed that when the household fire erupted the mother briefly entertained the thought of letting the house burn down but did not act on this thought. Even if the mother’s initial thought regarding the fire could be construed as an act of “domestic violence,” it was a single incident that does not support a finding of present deprivation. See In the Interest of H. B., 324 Ga. App. 36, 38 (1) (749 SE2d 38) (2013) (single incident of domestic violence did not demonstrate deprivation).

(b) Neglect/lack of supervision.

The record does not contain clear and convincing evidence that, in December 2013, J. C. was deprived due to lack of supervision. The record does not describe the circumstances that the juvenile court found to constitute lack of supervision in the spring of 2013, and consequently we cannot determine whether there was evidence that those circumstances still existed. Similarly, although the psychologist’s August 2013 written report included “neglect of child — perpetrator” as one of his diagnostic impressions of the mother, neither his report nor his testimony identified the specific circumstances that resulted in that diagnosis, and thus we cannot determine if those circumstances persisted in December 2013.

The juvenile court’s order also does not explain how the mother would fail to supervise J. C. if he were returned to her care. The order included some factual findings critical of the mother’s previous lifestyle, including her cutting behavior, the time she spent with undesirable persons, and her working as a prostitute. But we discern from the record “no evidence of abuse or abandonment,” In the Interest of E. M., 264 Ga. App. 277, 281 (590 SE2d 241) (2003) (citations omitted), and the juvenile court did not explain whether or how the mother’s earlier behaviors would lead to a failure to supervise the boy. Cf. In the Interest of D.E.K., 236 Ga. App. 574, 577-578 (512 SE2d 690) (1999) (evidence of, among other things, mother’s transitory lifestyle, previous drug use, and relationship with abusive husband did not amount to clear and convincing evidence that child was deprived, where uncontroverted evidence showed that mother had cared for child to best of her ability and child’s basic physical, mental, and emotional needs had been met). Moreover, there was no evidence that these behaviors persisted at the time of the hearing. While the juvenile court noted that the mother had left the aunt’s house with J. C. in inclement weather (the act that apparently led to the involvement of DFCS), there was no evidence that this was anything other than an isolated episode or that J. C. suffered any emotional or physical harm from it. See In the Interest of H. B., 324 Ga. App. at 38 (1). Finally, while the juvenile court’s order stressed the mother’s continued drug use and the fact that she obtained marijuana from strangers, again there was no evidence that her drug use caused J. C. any emotional or physical harm. See In the Interest of M. L. C., 249 Ga. App. 435, 437 (2) (548 SE2d 137) (2001) (reversing finding of deprivation and transfer of temporary custody where there was “little evidence of record indicating how the parents’ drug use affected [the child]”).

However, there was evidence that the mother was taking steps to care for J. C.’s needs by establishing an appropriate residence, accompanying him on doctor visits, and attending parenting classes. See In the Interest of G. S., 279 Ga. App. at 93 (noting evidence that mother was taking steps to care for child’s needs, including scheduling dental and medical appointments, in finding there was not clear and convincing evidence of deprivation). Under these circumstances, there was not clear and convincing evidence that J. C. was presently deprived due to the mother’s failure to supervise him.

(c) Neglect/inadequate housing.

The record does not contain clear and convincing evidence that, in December 2013, the mother had inadequate housing for J. C. To the contrary, the undisputed evidence showed that the mother had obtained suitable housing in the form of a three-bedroom trailer that was clean and livable and contained necessities for the child. See In the Interest of E. M., 264 Ga. App. at 281.

(d) Mental/physical impairment of parent.

In both its appellate brief and at oral argument the state emphasized the mother’s alleged mental impairment as the primary reason to affirm the juvenile court’s ruling. Even if we were to find clear and convincing evidence sufficient to sustain the juvenile court’s finding of deprivation caused by mental impairment, that evidence would not support affirming the judgment. The erroneous findings of the juvenile court discussed above would necessitate a remand. See In the Interest of E. R. D., 172 Ga. App. 590 (323 SE2d 723) (1984) (after setting aside as clearly erroneous a finding of the juvenile court that the record did not support, reversing a deprivation order and remanding it to the juvenile court for further proceedings because the appellate court could not “determine whether the juvenile court would have found clear and convincing evidence of deprivation based upon the remaining evidence before it”). But as detailed below, the record does not contain clear and convincing evidence sufficient to support mental impairment as a cause of present deprivation.

In determining whether a child is a “deprived child” under former OCGA § 15-11-2 (8) (A), a court may consider “[a] medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” Former OCGA § 15-11-94 (b) (4) (B) (i). See In the Interest of C. D. E., 248 Ga. App. 756, 764 (2) (546 SE2d 837) (2001). Although the psychologist opined that the mother had “significant health issues that could negatively affect her ability to parent,” for several reasons we find that his opinion was not clear and convincing evidence that the mother had a medically verifiable mental health deficiency of such duration or nature as to render her unable to provide adequately for J. C.

The psychologist’s opinion did not establish how his diagnostic impressions of the mother related to a finding that the child was deprived. See In the Interest of C. D. E., 248 Ga. App. at 764 (2). As to many of the diagnostic impressions, there was “no discussion of how [they were] relevant to the mother’s ability to parent her child.” In the Interest of K. S., 271 Ga. App. 891, 893 (611 SE2d 150) (2005). While the psychologist’s written report contained a list of “significant issues impairing [the mother’s] ability to parent,” neither the list nor the psychologist’s testimony about that list demonstrated the necessary link between a verifiable mental health deficiency and an inability to provide adequately for the child. The psychologist “did not... testify as to the effect of the [mother’s conduct] on [J. C.] or state that [he] had been harmed by [his mother’s] actions ... at any other time [and he] gave no specific example of [the effect of the mother’s behavior on the child].” In the Interest of C. L. Z., 283 Ga. App. 247, 248 (641 SE2d 243) (2007) (reversing deprivation finding). Compare In the Interest of M. E., 265 Ga. App. 412, 416-417 (1) (593 SE2d 924) (2004) (clear and convincing evidence authorized juvenile court to find child deprived based upon mother’s lack of mental ability to care for child where mother’s multiple mental health diagnoses had manifested in her fixating on idea that father had abused child, in her repeatedly taking child to health care providers with unsubstantiated claims of sexual abuse, in her possibly having harmed child in order to support abuse allegations, and in her having emotionally abused child by failing to control anger).

Some of the items on the significant issues list — for example, that the mother has been “[d]iagnosed with Intermittent Explosive Disorder” — merely restated diagnostic impressions without addressing whether or why these conditions were of such duration or nature as to render the mother unable to parent. Some of the items on the significant issues list — for example, that the mother had an “[i] ncomplete case plan” — did not necessarily follow from any of the specific diagnostic impressions. Some of the items on the significant issues list — for example, that the mother had “[n]o place of her own” and had “[e]ngag[ed]in prostitution while caring for her child” — either directly conflicted with or were not supported by the evidence of record; the undisputed evidence showed that by the time of the hearing the mother did have her own housing, and while there was evidence that the mother had prostituted herself before J. C. was born and briefly had lived with a pimp after the juvenile court removed J. C. from her care, there was no evidence that she had prostituted herself during any time when the child was in her care. The psychologist admitted at the hearing that he did not know when the prostitution had occurred. Despite the incompleteness and inaccuracy of the lists found in the psychologist’s written report, the juvenile court repeated much of them verbatim in his final order as findings of fact supporting the conclusion that J. C. was deprived. See generally In the Interest of C. D. E., 248 Ga. App. at 763 (2) (juvenile court’s inclusion in order of allegations unsupported by evidence suggests that court’s ultimate conclusion that children were deprived was based on a flawed view of facts).

Even more significantly, the concerns that the psychologist raised in his written report and emphasized in his hearing testimony centered primarily on the mother’s past experiences and possible future actions, not on her present ability to care for J. C. The psychologist testified that his “two biggest concerns” were the mother’s “ability to control herself from hurting [J. C. and] her previous tendency to pick abusive people to be with.” But a transfer of even temporary custody from a parent must be due to present deprivation. In the Interest of G. S., 279 Ga. App. at 92. Evidence of a parent’s past conduct and the possibility of future deprivation does not support a transfer of custody. See In the Interest of G. R. B., 330 Ga. App. at 701 (concern over risk that parents — who had troubled, violent relationship — might reunite in future was not evidence of present deprivation); In the Interest of D. L. T. C., 299 Ga. App. 765, 770 (1) (684 SE2d 29) (2009) (while “courts may consider past conduct when determining whether deprivation is likely to continue,... a finding of parental unfitness must be based on present circumstances”) (citation and punctuation omitted). See generally In the Interest of C. D. E., 248 Ga. App. at 765-766 (2) (distinguishing between future risk and present danger). This is particularly true where, as here, there is no showing of any previous physical or emotional harm to the child. See In the Interest of H. S., 285 Ga. App. 839, 842 (648 SE2d 143) (2007) (reversing award of temporary custody from father to other relatives; despite some evidence of instance of domestic violence between parents, there was no evidence that child suffered any emotional or physical harm). Compare In the Interest of T. S., 310 Ga. App. 100, 103 (1) (712 SE2d 121) (2011) (finding sufficient evidence of deprivation where mother, who was in anger management counseling, twice previously had injured children, and psychologist working with mother testified that it was unwise to return children to her until she sought further counseling); In the Interest of R. M., 276 Ga. App. 707, 716 (624 SE2d 182) (2005) (while children’s future risk of contracting tuberculosis from parents might not have constituted deprivation under different circumstances, where another child in the household already had died from the disease and parents nevertheless had refused to comply with treatment to mitigate risk, there was evidence of present deprivation).

Consequently, the mother’s history of choosing abusive partners, and the psychologist’s concern that she might choose another abusive partner in the future, did not demonstrate J. C.’s present deprivation. See In the Interest of C. D. E., 248 Ga. App. at 761-762 (1) (possibility that mother, who was a past victim of domestic violence, might enter into another abusive relationship in the future was not a ground for taking custody of child away from her). Likewise, the psychologist’s concerns that the mother’s psychological makeup and past childhood trauma might predispose her to harm J. C. in the future did not support a finding of present deprivation, where there was no evidence that the mother had ever actually harmed the child. See id. at 765-767

(2) (reversing deprivation finding despite psychologist’s report that father, who had a bipolar diagnosis, was a “walking time bomb” who presented a risk of danger to his children).

The psychologist also testified that he was concerned that the mother’s drug use would impair her ability to parent J. C., stating that “if you have trouble controlling your anger and you’re high, then that’s a major issue[.]” But again, the psychologist based this recommendation on a concern that the mother might harm J. C. in the future, although there was no evidence that she had at any time harmed the child in connection with her drug use. See In the Interest of M. L. C., 249 Ga. App. at 437 (2).

Without question, the evidence, including the psychologist’s opinion, depicted a mother who is struggling with significant mental and emotional challenges. But “[t]he right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.” In the Interest of G. S., 279 Ga. App. at 94 (citation and punctuation omitted). The evidence in this case showed that the mother had never physically or emotionally harmed her child and that she was working to overcome her mental and emotional challenges. A concern ■— however well-founded — that she might not succeed in overcoming those challenges simply did not establish by clear and convincing evidence the present deprivation required to remove the child from her custody. Accordingly, we reverse the order transferring temporary legal custody of J. C. from the mother to the aunt. (In doing so, we note that the earlier order giving physical custody to the aunt has expired.)

Decided November 16, 2015.

Jacqueline C. Cauble, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Linda B. Taylor, Assistant Attorneys General, for appellee.

Judgment reversed.

Dillard, J., concurs. Ellington, P. J., concurs in judgment only.

       The unappealed deprivation order states that the mother waived counsel. From counsels’ statements at oral argument, it appears that such waivers, negotiated with DFCS, may be a regular occurrence at adjudicatory hearings in deprivation cases in some jurisdictions.
      Although the propriety of this waiver of counsel is not raised on appeal, we note that Georgia law entitled the mother to legal representation, including court-provided counsel if she were found indigent, and Georgia law required the juvenile court to ascertain that the mother was aware of this right. Former OCGA § 15-11-6 (b). A waiver of this statutory right to counsel must be both knowing and voluntary, In the Interest of B. B., 267 Ga. App. 360, 362 (2) (599 SE2d 304) (2004), and it must be made on the record. In the Interest of J. M. B., 296 Ga. App. 786, 789 (676 SE2d 9) (2009). Proceedings that might lead to the termination of a parent-child relationship also can implicate due process concerns. See generally Lassiter v. Dept. of Social Svcs., 452 U. S. 18, 31-32 (II) (C) (101 SCt 2153, 68 LE2d 640) (1981) (adopting standards for determining whether due process entitled parent to counsel in termination proceeding).
      The instant case offers an example of the significant, detrimental effect of a parent’s lack of counsel in deprivation proceedings. In the earlier proceeding the mother, without benefit of counsel, stipulated that the child was deprived, that the attendant circumstances (such as alleged cutting behavior) constituted deprivation, and that the child could be removed from her care for up to a year. These stipulations have limited to some degree the arguments the mother has been able to make in later stages of the proceedings, including in this appeal. In fact, the state has emphasized the mother’s stipulations in its appellate arguments, asserting that, “about six months prior to the hearing on [DFCS’s] motion to transfer custody, [the mother] had stipulated to the fact that J. C. was deprived due to her mental instability and consented to placing him in the physical custody of his maternal aunt.”

       This family plan is not in the appellate record.

       It is not clear if this is the “family plan” to which the juvenile court referred in his earlier deprivation order; in any event, this plan is not part of the appellate record.

       It is important to note that the “case plan” to which the psychologist referred — which is not in the record — could not have been a reunification plan, because at the time the child was in the legal custody of the mother. In any event, at the time the psychologist identified “incomplete case plan” as a significant issue, no more than a few months had passed since the plan’s development, and there was undisputed evidence at the hearing that the mother had actively worked toward the plan’s goals. Cf. In the Interest of J. H., 310 Ga. App. 401, 403-404 (713 SE2d 472) (2011) (reversing juvenile court’s determination that child was deprived where, among other things, there was “no evidence that [mother’s] failure to readily accept [DFCS’s] advice and assistance resulted in any harm to [the child]”).


author: Boggs, Judge.

text:
    A15A1252.
    WILLIS v. ALLSTATE INSURANCE COMPANY.
    (779 SE2d 744)
   Boggs, Judge.

This case, involving an action on a homeowner’s insurance policy issued by Allstate Insurance Company to Linda Willis, appears before us for the second time. The underlying facts are laid out in detail in Willis v. Allstate Ins. Co., 321 Ga. App. 496 (740 SE2d 413) (2013):

[W]hile in the process of remodeling her home, Willis rented a portable storage unit to hold some of her possessions. Because the unit was placed in her front yard, some of Willis’s neighbors complained, and, without notice to Willis, the owner of the storage unit removed it from her yard and put it in the company’s storage yard. Willis reported this to Allstate as a theft. Then, the next day Willis’s home burned, and Allstate boarded up the house because it determined the house was unsafe. Willis contends other property of hers was stolen from the boarded-up house. Although Willis filed claims for the stolen property, the fire damage to her home, and the costs of her temporary living expenses, Allstate never paid any of the claims.
Consequently, Willis filed suit on her policy. After this initial suit was removed to federal court, Willis dismissed the action without prejudice. Sometime later she filed an identical suit in Fulton County Superior Court, and, although Allstate was properly served, Allstate failed to answer the complaint, and was in default. Allstate moved to open the default, which the trial court subsequently denied. Thereafter, the trial court entered a judgment on liability.
Before the hearing on damages, the trial court made several rulings: It denied Allstate’s motion to exclude the opinion testimony of Willis’s expert, denied Allstate’s motion to prevent Willis from arguing to the jury that liability was clear, and granted Willis’s motion preventing Allstate from contesting liability or offering any defense to liability. Then, the trial court vacated its earlier order on Allstate’s motion for partial summary judgment and granted Allstate’s motion on Willis’s claims for fraud and promissory estoppel. The trial court found that, notwithstanding the entry of the default, Willis’s claims for fraud and promissory estoppel failed as a matter of law.

Willis, supra, 321 Ga. App. at 497.

Willis appealed, contending the trial court erred by granting summary judgment to Allstate on her claims for fraud and promissory estoppel after it had entered a default judgment against Allstate. Allstate appealed, contending, in pertinent part, that the trial court erred by holding Allstate could not introduce evidence at trial disputing its liability to Willis and by precluding Allstate from offering any defense at trial, including policy defenses. Willis, supra, 321 Ga. App. at 496. This Court affirmed the grant of summary judgment to Allstate on the fraud and promissory estoppel claims, specifically concluding that “Willis is not entitled to prevail solely because Allstate is in default,” because a default does not preclude a defendant from showing that under the facts as deemed admitted, no claim existed which would allow the plaintiff to recover. Id. at 501 (1).

However, we reversed the trial court’s ruling “to the extent [that] it ruled that Allstate was prevented from introducing any evidence on liability.” (Emphasis in original.) Willis, supra, 321 Ga. App. at 502 (2). We noted:

It is axiomatic that a default does not result in the admission of allegations that are not well-pled or that are the result of forced inferences. The failure to answer or to appear at trial serves as an admission of the facts alleged in the complaint, but not of the conclusions of law contained therein. So while a default operates as an admission of the well-pled factual allegations in a complaint, it does not admit the legal conclusions contained therein.

(Citation and punctuation omitted.) Id. at 501-502 (2). Thus, although Allstate waived its opportunity to assert any affirmative defenses included within OCGA § 9-11-8 (c) by failing to timely answer, see Azarat Marketing Group v. Dept. of Admin. Affairs, 245 Ga. App. 256, 257 (1) (a) (537 SE2d 99) (2000), “the trial court erred by holding that Allstate cannot contest liability or offer defenses, including policy defenses at trial.” Willis, supra, 321 Ga. App. at 502 (3).

Following remand, the trial court entertained argument on Allstate’s motion for summary judgment on the ground that Willis failed to timely file her complaint in violation of the suit limitation provision in her contract. The trial court granted the motion, relying on Allstate Ins. Co. v. Sutton, 290 Ga. App. 154 (658 SE2d 909) (2008), to find that Allstate’s actions and settlement negotiations did not waive the contractual limitation provision. Willis appeals this order.

We first note that the majority of the allegations in Willis’ appellate brief are not supported by citations to the record, in violation of Court of Appeals Rule 25 (a) (1). As this Court has repeatedly stated, “it is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (Citation, punctuation and footnote omitted.) Helms v. Franklin Builders, 305 Ga. App. 863 (700 SE2d 609) (2010). Nevertheless, because the record in this case is small, we will exercise our discretion to resolve this appeal on the merits. We also note that the record transmitted to us does not contain a copy of the homeowner’s policy issued to Willis. However, it does not appear that the parties contest the policy language.

The record shows that the Allstate policy issued to Willis provided: “No suit or action may be brought against us unless there has been full compliance with all policy terms. Any suit or action must be brought within one year after inception of loss or damage.” (Emphasis in original.) Such suit limitations are enforceable in Georgia, and an insured’s compliance with such a provision is a condition precedent to filing a lawsuit based on the policy. Smith v. Allstate Ins. Co., 159 Ga. App. 743, 744 (1) (285 SE2d 82) (1981).

Here, the underlying facts are not disputed. The three losses at Willis’ house occurred on February 27, 2006, February 28, 2006, and September 3, 2006. Willis notified Allstate and filed proofs of loss in November 2006, but did not file her first lawsuit against Allstate for its failure to pay until December 16, 2008, well over two years after the date of loss.

In an attempt to circumvent her failure to comply with the applicable suit limitation requirement, Willis argues that Allstate waived the suit limitation in the policy by misleading her during negotiations to “lull her into the false sense of security of believing that liability was clearly accepted ... so as to delay her past the Statute of Limitation, and/or the time within which the policy required her to file her action in the Courts.” In two enumerations of error, Willis contends that the trial court erred in relying on Sutton, supra, 290 Ga. App. 154, rather than Auto-Owners Ins. Co. v. Ogden, 275 Ga. 565 (569 SE2d 833) (2002), to conclude that Allstate’s conduct did not lull Willis into believing that the suit limitation provision in the insurance contract was waived. We disagree.

In Ogden we held: “An insurance company may waive the contractual limitation provision where the company leads the insured by its actions to rely on its promise to pay, express or implied.” (Citation, punctuation and footnote omitted.) 275 Ga. at 567 (2). Specifically,

[i]f the insurer never denied liability, but continually discussed the loss with its insured with a view toward negotiation and settlement without the intervention of a suit, whether or not this lulled the insured into a belief that the 12-month clause in the contract was waived by the insurer can become a disputed question of fact for the jury.

(Citation, punctuation and footnote omitted.) Id. However, Ogden is distinguishable. There, an insured filed a timely claim for fire damage to his house under his homeowner’s policy. The insurer agreed that the loss was covered under the policy, approved a contractor to make the repairs, prepared a proof of loss stating a specific amount for the full cost of repair, and issued a check for two-thirds of that amount, withholding the remaining repair cost pending the insured’s return of the proof of loss within 15 days. Id. at 565-566. The insured did not meet the 15-day deadline, and the insurer withheld the remaining repair cost. Id. When the insured sued to recover this remaining amount, the insurer sought shelter in the one-year contractual limitation period in the policy. Id. The Supreme Court held that there was a factual dispute as to whether the insurer had waived the limitation period. Id. at 567 (2); compare Ga. Farm Bureau Mut. Ins. Co. v. Pawlowski, 284 Ga. App. 183, 184 (1) (643 SE2d 239) (2007) (investigation, negotiation, and rejection of settlement offer do not suggest that insurer attempted to trick insured into believing one-year limitation period would be enlarged).

In the present case, Allstate never agreed that the losses were covered under the policy, never made any payments for the losses, and continuously warned Willis that it was not waiving any policy provisions. The trial court found that from the time Willis placed Allstate on notice of her claims and throughout the course of the proceedings, “the communications between Ms. Willis and Allstate were prefaced on the part of Allstate by the specific statement that, ‘We are not waiving any defenses. We expect our insured to comply with all terms and conditions.’ That was repeated on various occasions” until Allstate ultimately denied Willis’ claims based on her failure to cooperate in the claims process and material misrepresentations she made under oath. Indeed, the record contains numerous letters and e-mails from Allstate to Willis, and nearly all of them include similar language. For example, one of the first letters, written on May 2, 2006, included the following:

Please understand that no action of Allstate or its representatives should he considered by you to be a waiver of any of the terms, conditions, or provisions contained in the Allstate policy of insurance or found under the laws of the State of Georgia. On the contrary, Allstate will continue to insist upon strict compliance with the terms, conditions, and provisions contained in the Allstate policy of insurance and the laws of the State of Georgia. Should the circumstances arise please be aware that Allstate will avail itself of all defenses available under the terms and conditions of the policy as well as applicable law.

(Emphasis in original.) Another letter, written on June 29, 2006, stated:

With respect to the loss which occurred on February 28, 2006 . . . , you are advised that the Allstate Insurance Company reserves all rights and defenses which it has in conjunction with the policy numbered 021782701.
We further notify you that any activity on our part by way of investigation, damage determination, or emergency advance payments to you, does not constitute a waiver of our rights.
We are reserving our right to later deny coverage obligation under the policy and assert a defense of no coverage under the policy because you have failed to mitigate and protect your personal property from further damage. . . .

The letter then concluded with the same language used in the May 2, 2006 letter. September 21, 2006 and September 28, 2006 letters detailing how to complete a proof of loss specifically noted, “Receipt of these instructions is not a waiver of Allstate’s rights or defenses under the policy. These forms and materials are provided simply to assist you in completing them properly.” The letters then mention, once again, that Allstate does not waive any of the terms and conditions found in the policy and will continue to insist on strict compliance with the policy terms and conditions. The September 28, 2006 letter also advised Willis that her claim was being handled under a reservation of rights and included a copy of her policy, directing her to read the entire policy thoroughly so as to comply with its terms and conditions.

On November 29, 2007 and December 4, 2007, Allstate sent letters in which it responded to a request to set forth its position relative to the three claims. Allstate wrote:

Please be advised that Allstate will not further consider the above referenced claims. As you know, during the course of its investigation into the above referenced claims, Allstate on numerous occasions requested that you provide or produce further information substantiating your claims. That information was not provided in violation of the terms of the subject policy of insurance which obligated you to cooperate with Allstate and provide reasonably available information. In addition, during the course of its investigation, Allstate learned that you had misrepresented material facts related to the claim and your claimed loss and damage in violation of the policy of insurance and the laws of the State of GA. Finally, please be aware that the time period for you to bring a legal action seeking recovery under the above referenced policy of insurance has expired.

Thereafter, in response to an August 19, 2008 demand letter from Willis’ counsel, Allstate advised Willis to examine her policy and the suit limitation period:

That policy contained a suit limitation period which obligated Ms. Willis to file suit, if at all, within one year of the date of the loss. Georgia law has subsequently extended the suit limitation period to two years in all homeowner’s policies of insurance issued in the State of Georgia. However, that modification does not alter the conclusion that the time to bring suit on any claim specified in your letter has expired.

The trial court correctly found that this case closely resembles Sutton, supra, 290 Ga. App. 154. In Sutton, the trial court denied the insurer summary judgment, finding a question of fact concerning whether the insurer had waived the policy limitation provision through its settlement negotiations with the insured. Id. at 156 (1). This Court reversed, specifically holding:

[Settlement negotiations do not always give rise to a jury question on whether the policyholder was led to believe that he need not file suit, even if they continue throughout the policy’s limitation period. Mere negotiation for settlement, unsuccessfully accomplished, is not that type of conduct designed to lull the claimant into a false sense of security so as to constitute a waiver of the limitation defense. And where inconclusive settlement negotiations were explicitly conditioned on the policy terms, the policyholder cannot create a jury issue by claiming a belief that the insurer would waive the contractual limitation provision.

(Citations, punctuation andfootnotes omitted.) Id. at 156-157 (1). See also Shelter America Corp. v. Ga. Farm Bureau Mut. Ins. Co., 209 Ga. App. 258, 259 (1) (433 SE2d 140) (1993). In Shelter America Corp., this Court found no showing of any affirmative statement or other act by the insurer that would lead the insured to believe that the insurer would waive the contractual limitation. Specifically, we noted that the insurer explicitly stated on three occasions that no contractual provisions were waived and the parties’ inconclusive settlement negotiations were explicitly conditioned on the policy terms. Id.

Decided November 16, 2015.

W. Bryant Green III, for appellant.

Webb, Zschunke, Neary &Dikeman, MarvinD. Dikeman, Melissa C. Patton, for appellee.

Although Willis argues that Allstate fraudulently induced her to believe that it intended to accept her claims and did not intend to enforce the suit limitation provision, she points to no evidence — slight or otherwise — of any fraudulent inducement. In fact, this Court affirmed the trial court’s grant of summary judgment to Allstate on Willis’ fraud and promissory estoppel claims. Willis, supra, 321 Ga. App. at 501 (1). It is undisputed that “Allstate undertook several actions to protect the premises and engaged in discussions with Ms. Willis,” but it is equally “clear that any negotiations and any activities that took place were subject to... repeated representations” that Allstate was not waiving any policy defenses, and Willis has not presented “an affirmative promise or other act waiving the limitation.” Stapleton v. Gen. Accident Ins. Co., 236 Ga. App. 835, 838 (512 SE2d 645) (1999); Suntrust Mtg. v. Ga. Farm Bureau Mut. Ins. Co., 203 Ga. App. 40, 42 (416 SE2d 322) (1992); Draughn v. United States Fidelity & Guaranty Co., 144 Ga. App. 272, 273 (241 SE2d 52) (1977). As in Sutton, Allstate in this case “explicitly conditioned its settlement negotiations with [Willis] on the policy terms” using the same language used in the Sutton case. Sutton, supra, 290 Ga. App. at 157 (1). The trial court did not err in relying on Sutton to find “no showing in this record of any affirmative statement or other act by Allstate that would lead [Willis] to believe that the insurer would waive the contractual limitation” and in granting summary judgment to Allstate. (Citation and punctuation omitted.) Id.

Judgment affirmed.

Doyle, C. J., and Phipps, P. J., concur.

       The contractual suit limitation is a policy defense and not an affirmative defense included within OCGA § 9-11-8 (c), such as a statute of limitation, that must be set forth in an answer. See generally Wright Assoc. v. Rieder, 247 Ga. 496, 500 (2) (277 SE2d 41) (1981) (workers’ compensation statutory employer defense not affirmative defense).

       At the time Willis filed her first suit in December 2008, the one-year suit limitation for fire policies had been extended to a two-year suit limitation by Georgia law. See White v. State Farm Fire and Cos. Co., 291 Ga. 306, 308-309 (1) (728 SE2d 685) (2012).

       The present pro se action was filed in January 2010 without any notice that it was a renewal action. However, the trial court noted that it is a re-file of the original action, and Willis now has an attorney representing her.

       In a footnote, Willis notes that “ALL OF ALLSTATE’S LETTERS WERE SENT TO AN ADDRESS THAT ALL STATE KNEW PLAINTIFF NO LONGER RESIDED [sic].” However, this argument has been waived since the record does not show that Willis raised the argument in the trial court. See Locke’s Graphic & Vinyl Signs v. Citicorp Vendor Finance, 285 Ga. App. 826, 828 (2) (a) (648 SE2d 156) (2007). In addition, many of the letters in the record show that they were sent to a post office box address supplied by Willis or to Willis’ counsel.


text:
    A15A1310.
    BENTON v. GAILEY et al.
    (779 SE2d 749)
   Boggs, Judge.

In this interlocutory appeal, Lucille Benton appeals from the trial court’s order denying her motion to enforce a settlement with Cara and Howard Gailey, individually and as natural parents of Ayden Gailey, a minor. For the reasons explained below, we affirm.

“On appeal from a trial court’s order on a motion to enforce a settlement agreement, we apply a de novo standard of review.” (Citation and footnote omitted.) Lamb v. Fulton-DeKalb Hosp. Auth., 297 Ga. App. 529 (677 SE2d 328) (2009).

Because the issues raised are analogous to those in a motion for summary judgment, in order to succeed on a motion to enforce a settlement agreement, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the appellant[’]s case. Thus, we view the evidence in a light most favorable to the nonmoving party.

(Citation, punctuation and footnote omitted.) Tillman v. Mejabi, 331 Ga. App. 415 (771 SE2d 110) (2015).

So viewed, the record shows that the settlement relates to an incident in which Benton struck the minor Gailey while driving a car insuredby Encompass Insurance Company (“Encompass”). The child’s injuries were significant, and it is alleged his medical expenses exceed $500,000; Benton’s policy with Encompass had a $50,000 bodily injury liability limit.

A claim representative with Encompass submitted an affidavit averring that she spoke with Howard Gailey by telephone on October 26, 2010 and he accepted her offer to pay “$50,000 for settlement of Aiden [sic] Gailey’s claims.” In an affidavit submitted in opposition to the motion to enforce settlement, Howard Gailey denied that he orally agreed to accept the $50,000 settlement offer. According to Mr. Gailey, he “never told [the claim representative] during that telephone conversation nor at anytime after that conversation that I accepted or would agree to accept Ms. Benton’s $50,000 policy limit in settlement of any claims.” It is undisputed that the claim representative did not send a letter to Mr. Gailey confirming the purported settlement. Instead, she sent “the file” to counsel, Kelley Webb, “to assist with the settlement documents.” Webb spoke with Mr. Gailey and later his attorney, Stephen Carter, about the process to finalize a settlement involving a minor and averred in her affidavit that Carter never asserted a settlement had not been reached. According to Wehh, finalizing the settlement through probate court was delayed for over a year while Carter attempted to negotiate down various healthcare liens.

On October 1, 2012, almost two years after the purported oral settlement on October 26, 2010, Carter sent a “Time Limited Settlement Demand” letter to Webb stating, in pertinent part, that he was authorized to extend an offer to settle the claims of the parents and the minor “on the following terms:” payment of $49,250 to the parents and payment of $750 to the minor, through his natural guardians and parents. The letter also provides:

For this settlement offer and opportunity to be timely accepted, I must receive each of the following into my office by the stated deadline [October 15, 2012 at 5:00 p.m.], provided their settlement offer has not otherwise been previously rejected as contemplated by law:
1. $49,250.00 check from Encompass made jointly payable to “Howard Gailey and Cara Gailey, in their capacity of parents of Ayden Gailey, a minor, and Stephen C. Carter, P. C., their attorney”;
2. $750.00 check from Encompass made jointly payable to “Howard Gailey and Cara Gailey as Guardians of the Property of Ayden Gailey, a minor, and Stephen C. Carter, P. C., their attorney”;
3. A certified copy of the declarations page of each policy of insurance providing coverage to your insured applicable to my clients’ respective claims; and
4. [Statement under oath by corporate officer or claim manager regarding available insurance].

(Emphasis in original.) After an exchange of letters between counsel about whether probate court approval was required for the settlement, on October 15,2012, before the deadline for acceptance expired, Webb sent Carter a letter stating, in pertinent part:

Encompass Insurance Company on behalf of Lucille Benton accepts your October 1, 2012 offer but is statutorily required to have Probate Court approval of this settlement pursuant to OCGA § 29-3-1 et seq., and therefore our acceptance is subject to Probate Court approval. . . . Per your October 1,2012 correspondence, also enclosed please find an “Affidavit of Insurance” and a certified declaration page for Encompass Insurance policy 186924014.

(Emphasis supplied.) It is undisputed that Encompass never delivered to Carter the checks specified in the October 1, 2012 demand letter.

1. Benton asserts that the trial court erred by failing to enforce the alleged oral agreement on October 26, 2010. We disagree.

Compromises of doubtful rights are upheld by general policy, as tending to prevent litigation, in all enlightened systems of jurisprudence. In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties.... While an agreement maybe oral, if the parties disagree on whether an agreement was reached, the agreement must be memorialized in a writing to be enforceable, and the absence of a writing prevents enforcement.

Imerys Clays, Inc. v. Washington County Bd. of Tax Assessors, 287 Ga. App. 674, 675 (652 SE2d 580) (2007). Here, Benton has not produced a writing memorializing the terms of the alleged settlement reached on October 26, 2010. As a result, the trial court did not err by denying this portion of Benton’s motion to enforce an alleged settlement. See id.; Ellerin & Assoc. v. Brawley, 263 Ga. App. 860, 865 (5) (589 SE2d 626) (2003).

2. Benton asserts, in the alternative, that the trial court erred by concluding Encompass failed to accept the Gaileys’ October 1, 2012 settlement offer. Again, we disagree.

It is well settled that

[a]n answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without variance of any sort. Apurported acceptance of a plaintiff’s settlement offer which imposes conditions will be construed as a counteroffer to the offer to settle____(Punctuation omitted.) Herring v. Dunning, 213 Ga. App. 695, 698 (446 SE2d 199) (1994).

(Punctuation omitted.) Frickey v. Jones, 280 Ga. 573, 574 (630 SE2d 374) (2006). And “[t]he offer must be accepted in the manner specified by it; and if it calls for a promise, then a promise must be made; or if it calls for an act, it can be accepted only by the doing of the act.” (Citation and punctuation omitted.) Herring, supra, 213 Ga. App. at 699. Here, Encompass’s October 15, 2012 letter did not accept the offer “unequivocally and without variance of any sort.” Id. at 698. Instead, it expressly stated that “our acceptance is subject to Probate Court approval.” (Emphasis supplied.) Additionally, Encompass failed to deliver the checks as specified in the offer. While Encompass’s position that probate court approval was required for the settlement may be a defense to any potential claim for bad faith failure to settle, it cannot be used to alter the terms for acceptance outlined in the Gaileys’ offer letter. See Kitchens v. Ezell, 315 Ga. App. 444, 449 (1) (a) (726 SE2d 461) (2012) (physical precedent only) (party “entitled to specify the manner of acceptance”). For these reasons, we affirm the trial court’s denial of Benton’s motion to enforce an alleged settlement on October 15, 2012. See Kemper v. Brown, 325 Ga. App. 806, 808 (1) (754 SE2d 141) (2014) (insurer’s demand that plaintiff place settlement funds into an escrow account to protect interests of any pending liens “clearly constituted a counteroffer” and rejection of plaintiff’s offer).

3. In her remaining enumeration of error, Benton asserts that “the trial court disregarded OCGA § 29-3-3 (f), requiring that the gross settlement of a minor’s claim must be approved by court should it exceed $15,000.” In its order denying Benton’s motion to enforce the purported settlements, the trial court also rejected “Benton’s contention that Encompass could not accept the settlement opportunities provided by the Demand Letter by delivering checks as demanded without first obtaining court approval.” Based upon our holding in Division 2, it is not necessary for this court to address whether the trial court properly concluded that probate court approval was not required for the settlement of the minor’s claim. “The fact that appellants might possibly derive some future benefit from a favorable adjudication on an abstract question will not require this court to ... decide the case.” (Citation and punctuation omitted.) Merrill v. Eiberger, 198 Ga. App. 806 (403 SE2d 91) (1991). Whether probate court approval was necessary for a valid settlement of the minor’s claim is immaterial to our analysis of whether the Gaileys’ offer was accepted. We therefore decline to issue an advisory opinion on this issue. Huff v. The Harpagon Co., 286 Ga. 809, 811 (2) (692 SE2d 336) (2010) (“Georgia appellate courts are not authorized to render advisory opinions as to potential error. [Cits.]”) (punctuation omitted).

Judgment affirmed.

Doyle, C. J., and Phipps, P. J., concur.

Decided November 16, 2015

Downey & Cleveland, Russell B. Davis, Kelley E. Webb, Savannah L. Bray, for appellant.

Stephen C. Carter, for appellees.

       We express no opinion on the merits of this position.