author: McFADDEN, Judge.

text:
    A14A1334.
    WILLIAMS v. THE STATE.
    (765 SE2d 622)
   McFADDEN, Judge.

Shepherd Walter Williams appeals the denial of his motion to suppress. He challenges the sufficiency of the affidavit supporting the search warrant authorizing use of a drug dog at the front door of his residence. He also challenges the subsequent affidavit — based in part on the drug dog’s alert — supporting the warrant for the search of the residence itself. We find that the magistrate had a substantial basis for concluding that probable cause existed to issue both search warrants. We therefore affirm.

Our Supreme Court, in State v. Palmer, 285 Ga. 75 (673 SE2d 237) (2009), described the standards applicable to the various levels of judicial scrutiny involved in the warrant process as follows:

The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate’s decision to issue a search warrant based on a finding of probable cause.
A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.
Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis.... The duty of the appellate courts is to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. ... In reviewing the trial court’s grant or denial of a motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review, keeping in mind that a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

Id. at 77-78 (citations and punctuation omitted).

Viewed with these principles in mind, we turn to the search warrants that Williams challenges on appeal. The first warrant authorized the deployment of a drug-detecting dog at the front door of Williams’ residence. (The United States Supreme Court has recently-held that “using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment.” Florida v. Jardines,_ U. S. _(133 SCt 1409, 185 LE2d 495) (2013).) The warrant was supported by an affidavit describing the following circumstances:

The affiant, a sergeant with the Lowndes County Sheriff’s Office, received information from an unidentified person that a black man known as “Shap” housed and distributed cocaine and marijuana from his residence at 4349 Bevel Creek Drive in Valdosta. The unidentified person also stated that “Shap” cooked cocaine there.

Over the course of the next month, officers drove by the residence multiple times, but never saw a vehicle. But on June 24, 2013, about a month after receiving the information from the unidentified person, two officers passed by the residence and saw a green Pontiac Grand Am with a certain tag number parked there. The car left the residence, and the officers followed. They conducted a traffic stop (apparently for a littering violation), and the sergeant who made the affidavit went to the stop. The driver was Octavia Kimberly Bryant, to whom the car was registered. Williams was seated in the back seat. Investigators were familiar with Williams from previous narcotics-related arrests and knew he used the nickname “Shep.” The investigators and the sergeant smelled marijuana on Williams’ breath and person. They searched the car and found marijuana residue. According to the sergeant’s affidavit, Williams admitted that “he had recently smoked marijuana before getting into the car.” Williams also told the officers that he was on felony probation. Williams told the officers that he and Bryant had come from their residence, but Williams and Bryant each gave different addresses, neither of which matched the Bevel Creek Drive address from which the officers had seen them drive away. The officers issued a warning citation, and Williams and Bryant left the scene.

Another unidentified person reported that the Grand Am returned to the Bevel Creek Drive address two hours after the traffic stop; that the car was there regularly; that Williams lived at that address; and that an instance of unspecified “drug-related activity” had occurred there.

The sergeant drove by the residence the next morning and saw the Grand Am parked there. He checked an Internet database and determined that the Bevel Creek Drive address was Bryant’s most recent address. He also checked the call records of Lowndes County Dispatch and determined that Bryant had made a call from that address two months before. Based on this evidence, the sergeant concluded that Williams and Bryant lived at the Bevel Creek Drive location but were concealing their address. The sergeant knew that narcotics dealers often attempt to conceal their addresses.

The sergeant ran a criminal history check of Williams and determined that he had five felony convictions. His criminal history listed drug-related charges of purchase, possession, manufacture, distribution or sale of marijuana sometime in the 2000s (the last digit of the year was omitted from the affidavit); possession of marijuana with intent to distribute in 2001; possession of cocaine with intent to distribute in 2003; possession of marijuana in 2003; possession of marijuana in 2005; possession of cocaine in 2005; three counts of sale of cocaine in 2006; and possession of cocaine in 2008. The history also listed obstruction and weapons charges.

Based on this affidavit, a magistrate signed a search warrant authorizing the sergeant “to use and deploy a certified narcotics K9 detection team on the front exterior door” of the Bevel Creek Drive residence. The police executed this warrant, and the dog indicated by his behavior that he smelled drugs. Based on the dog’s alert as well as the information provided in the first affidavit, the sergeant sought a warrant to search the residence, and the magistrate issued the warrant.

Williams argues that the affidavit supporting the application for the warrant for the deployment of the drug dog at his residence was insufficient because it failed to demonstrate the veracity of the unnamed persons who provided information to the police. But the affidavit in this case provided significant additional information to demonstrate probable cause. That information included the fact that Williams was stopped after leaving the residence under surveillance, lied about where he had come from, a common tactic of narcotics dealers, and admitted that “he had recently smoked marijuana before getting into the car” and that he was a convicted felon. The officers found marijuana residue in the car, and they were familiar with Williams because of his previous narcotics-related arrests. Williams’ criminal history showed that he was a five-time convicted felon, and it listed drug-related charges, including charges based on the distribution of drugs. See Caffo v. State, 247 Ga. 751, 755 (2) (c) (279 SE2d 678) (1981) (magistrate may properly rely on policeman’s knowledge of a suspect’s reputation).

Given these other circumstances, any infirmity regarding the information from the unnamed persons was not fatal to the search warrant affidavit. Powers v. State, 261 Ga. App. 296, 302-303 (4) (582 SE2d 237) (2003). See also Braun v. State, 324 Ga. App. 242, 244 (1) (b) (747 SE2d 872) (2013) (although information from tipster of unknown reliability was insufficient to justify no-knock provision in warrant, other circumstances, including the presence of drug residue in defendant’s trash can and his prior arrest record were sufficient). Under these circumstances, the magistrate had a substantial basis for concluding that probable cause existed to issue the first search warrant. And those circumstances, plus the drug dog’s alert and the sergeant’s description of the dog’s certification, established a substantial basis for concluding that probable cause existed to issue the second search warrant. Rivera v. State, 247 Ga. App. 713, 714 (1) (545 SE2d 105) (2001) (“Evidence that a dog has been trained and certified as a drug detection dog constitutes prima facie evidence of its reliability for purposes of a probable cause determination.”) (citation omitted).

Decided October 29, 2014.

Brittney Coons-Long, for appellant.

J. David Miller, District Attorney, Jessica W. Clark, Jeremy K. Baker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A14A1395.
    HONESTER v. THE STATE.
    (765 SE2d 376)
   McFadden, Judge.

After a jury trial, Wayne Honester was convicted of obstruction of a law enforcement officer. Honester appeals, asserting that his trial counsel was ineffective in failing to file a plea in bar of former jeopardy after a prior jury trial on the same charge ended in a mistrial over Honester’s objection. Because counsel’s performance was deficient in failing to file a plea in bar and there is reasonable probability that, but for such deficiency, the outcome below would have been different, we reverse.

Honester was indicted on a single charge of felony obstruction of a law enforcement officer by fighting with the officer during a lawful arrest. The facts underlying the indictment were that police officers, who had responded to a report of gunshots, were speaking with Honester and others in the area. After one of the officers had asked Honester three times to remove his hands from his pockets, Honester complied and put a plastic bag in his mouth. The officer grabbed Honester’s neck to try to get him to spit out the bag, but Honester pulled away as the officer tried to hold on to his arm and neck. The other officer tried to assist, and they fell to the ground. Using a baton to threaten Honester, the officers subdued and handcuffed him.

Honester was tried before a jury on March 11, 2011. After deliberating for about three hours, the jury sent a note to the judge, stating, “We cannot agree on the verdi[c]t. What are your instructions?” Both the state and the defense requested that the trial court give the jury an Allen charge for further deliberations. See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896). The judge said that before giving such a charge he wanted to ask the jury two questions: (1) the numerical division of votes as to guilt or innocence, and (2) whether it was likely that further deliberations would result in a unanimous verdict. Honester objected to the court asking the jurors how they were voting as to guilt or innocence, but the court overruled the objection and sent the jury a note containing both questions. The jury responded that the vote was eleven to one in favor of acquittal and answered “no” to the second question.

Upon learning of the nature and numerical breakdown of the jury vote, the state withdrew its request for an Allen charge. Honester renewed his request for the charge and also suggested that the jurors be asked if anyone was refusing to deliberate. The court stated that it would ask that question before deciding whether to give an Allen charge. The court submitted the question to the jury, and the jury responded that no one was refusing to deliberate. Honester again requested that the court give the Allen charge.

The trial judge, however, expressed concern that such a charge would place “undue pressure on a juror.” After further argument from the defense, the trial judge observed that the case “has had a lot of difficult evidence.” The judge then refused to give an Allen charge and, over the express objection of the defense, sua sponte declared a mistrial. The court reasoned: “I don’t think it appropriate to give the Allen charge and then put the jury back into a posture of further deliberations and pressuring when it’s clear from two of the communications that they cannot reach a verdict so I’ll declare a mistrial in the case.”

Five days later, Honester was tried again before a different jury which returned a guilty verdict. But upon being polled in open court, one of the jurors indicated that the verdict had not been freely and voluntarily made by him. The judge then instructed the jury to return to the jury room and continue deliberating. A short time later, the jury returned with another guilty verdict. Before imposing sentence, the trial court asked Honester if he wanted to say anything on his own behalf. Honester responded, ‘Tour Honor,... I don’t see how one week it’s eleven my way and then next week all twelve say I’m guilty. I don’t understand that Your Honor ... I feel I would have been entitled to a fair trial last week. You would have did the same thing you did today send them right back in the room.” Thereafter, the trial court imposed the maximum sentence of five years.

Trial counsel did not move for a new trial, but filed a direct appeal. After new appellate counsel was appointed and raised a claim of ineffective assistance of trial counsel, this court remanded the case to the trial court to give appellate counsel the opportunity to pursue the ineffectiveness claim. On remand, an evidentiary hearing was held on Honester’s claim that his trial counsel was ineffective in failing to file a plea in bar following the court’s sua sponte declaration of a mistrial over objection of the defense. At the hearing, trial counsel testified that he had not considered filing a plea in bar after the first trial. When asked why he did not consider it, he admitted: “I really don’t have any reason. It’s just not something that crossed my mind, to be honest.” Several weeks after the hearing, the trial court summarily denied the motion for a new trial. This appeal followed.

1. Ineffective assistance of counsel.

Honester contends that the trial court erred in denying his motion for a new trial based on his assertion that trial counsel was ineffective in failing to file a plea in bar after the first trial ended in a mistrial over the objection of the defense. We agree.

To prevail on a claim of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), “a criminal defendant must prove (1) that his trial counsel’s performance was deficient, and (2) that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency.” Mattox v. State, 305 Ga. App. 600, 605 (3) (699 SE2d 887) (2010) (citations and punctuation omitted). As to the first prong, counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Sutton v. State, 295 Ga. 350, 354 (6) (759 SE2d 846) (2014) (citation and punctuation omitted). Thus, a “defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Strickland, supra at 690 (III) (A).

Here, Honester has met his burden of showing that trial counsel’s failure to file a plea in bar was not the result of reasonable professional judgment. As counsel’s uncontradicted testimony at the ineffective assistance hearing established, he exercised no professional judgment at all with regard to filing a plea in bar. Rather, as he admitted, he had no reason for such an omission and failed to file a plea in bar simply because it never “crossed [his] mind.” Because counsel’s failure to file a plea in bar was the result of oversight and not the result of some trial tactic or reasonable professional judgment, such failure constitutes deficient performance. See Henderson v. Hames, 287 Ga. 534, 539-540 (3) (697 SE2d 798) (2010) (failure to raise issue was not a reasonable tactic or trial strategy where counsel admitted that he simply “failed to notice” the legal issue).

Honester must also show that counsel’s deficient performance prejudiced his defense. Mattox, supra. As no plea in bar was filed, the merits of such a plea are not directly before us. Rather we must decide whether Honester has shown that there is a reasonable probability that the outcome below would have been different if counsel had filed a plea in bar.

In that light we examine the propriety of the trial court’s sua sponte declaration of a mistrial, over Honester’s objection, in the first trial. Once jeopardy has attached, a mistrial may be declared over the defendant’s objection only in cases of manifest necessity.

Once a defendant’s jury is impaneled and sworn, jeopardy attaches, and he is entitled to be acquitted or convicted by that jury. If a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a manifest necessity for the mistrial. A manifest necessity to declare a mistrial may exist under urgent circumstances, such as where an impartial verdict cannot be reached. Because of the severe consequences of ordering a mistrial without the accused’s consent, a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives. The state bears the heavy burden of showing such manifest necessity where, as here, a mistrial is granted over the defendant’s objection. It is also within the trial court’s discretion to determine whether a jury is hopelessly deadlocked, thus necessitating a mistrial. The decisive factor is not the length of the deliberation, but the inability of the jury to agree on a verdict.

Johnson v. State, 256 Ga. App. 730, 731-732 (569 SE2d 625) (2002) (citations and punctuation omitted).

Atrial court’s judgment about whether there was manifest necessity to grant a mistrial is entitled to great deference. A trial judge has acted within his sound discretion in rejecting possible alternatives and in granting a mistrial, if reasonable judges could differ about the proper disposition, even though in a strict, literal sense, the mistrial is not necessary. This great deference means that the availability of another alternative does not without more render a mistrial order an abuse of sound discretion.

Ogletree v. State, 300 Ga. App. 365, 366 (685 SE2d 351) (2009) (citation and punctuation omitted; emphasis supplied).

In the instant case, while the trial judge’s decision to grant a mistrial is entitled to great deference, there existed not only less drastic alternatives, but other factors which arguably rendered the grant of a mistrial an abuse of discretion. The first of those other factors was the trial court’s error in asking the jury the precise nature of its vote as to guilt and innocence. “The law is clear in this state that a trial court may, after the jury has had a case under consideration and indicates that it is unable to agree on a verdict, inquire how the jury stands numerically.” Gibson v. State, 272 Ga. 801, 802 (2) (537 SE2d 72) (2000) (citations and punctuation omitted). But “[tjrial courts should not, of course, inquire as to the nature of a jury’s numerical division. And we encourage them to inform jurors not to reveal that information.” Sears v. State, 270 Ga. 834, 839 (1), n. 1 (514 SE2d 426) (1999) (citations omitted). Here, the trial court not only failed to inform the jurors not to reveal the nature of their votes as to guilt or innocence, but expressly solicited such information over Honester’s objection. Compare Gibson, supra (trial court properly asked jurors for numerical breakdown of their vote, while specifically cautioning them not to state whether vote favored acquittal or conviction). After the jury provided the improper information requested by the court, indicating a vote of eleven to one in favor of acquittal, the state immediately withdrew its earlier request for an Allen charge, and a short time later the trial court acquiesced in the state’s newfound position.

The trial court also compounded its error by failing to follow “the better practice [of] consider [ing] carefully the factors listed in Thornton v. State, 145 Ga. App. 793, 795 (245 SE2d 22) (1978) before declaring a mistrial.” Hurston v. State, 206 Ga. App. 570, 571 (1) (426 SE2d 196) (1992). Although not mandatory, pursuant to Thornton, supra,

[w]hen the trial court is informed of a deadlock, the following are among the steps to be taken in deciding whether to order a mistrial or to require the jury to deliberate further: (1) polling the jurors or questioning them as a group to determine whether additional time would be helpful; (2) considering whether the jury is so exhausted that the free will of the minority might be overcome; (3) considering the length of the trial and the complexity of the case; and (4) considering the length of time the jury has deliberated.

Albert v. State, 180 Ga. App. 779, 786 (8) (350 SE2d 490) (1986) (citations and punctuation omitted). Here, the trial court took none of these steps, and instead sent the jury a second note asking if anyone was refusing to deliberate. Upon receiving the jury’s response that no one was refusing to deliberate, the trial judge made no further inquiries of the jury and declared a mistrial.

In doing so, the trial court correctly noted that the jury had indicated that it could not agree on a verdict. However, “the trial court was not bound by those pronouncements. [Cit.] On the contrary, the trial court, in the exercise of a sound discretion, was required to make its own determination as to whether further deliberations were in order. [Cit.]” Sears, supra at 838 (1) (jury twice stated that it was at an eleven to one “deadlock,” but trial court was not bound by those statements). See also Todd v. State, 243 Ga. 539, 542 (3) (255 SE2d 5) (1979) (trial court was not required to accept jury’s feeling that it was “hopelessly deadlocked”). In refusing to instruct the jury to deliberate further, the trial court’s expressed rationale was that doing so would somehow put undue pressure on the jury.

The trial judge offered no explanation as to why a proper Allen charge would result in such undue pressure, and thus his reasoning appears to be premised on the false presumption that he could have only given an improperly coercive instruction. Indeed, based on the trial court’s unexplained reasoning, a valid Allen charge or other instruction to continue deliberations could never be given once a jury has claimed to be at an impasse. This, of course, is not the law in Georgia, which has approved the use of noncoercive Allen charges by trial judges confronted with a deadlocked jury. McMillan v. State, 253 Ga. 520, 523 (4) (322 SE2d 278) (1984). As our Supreme Court has explained, “unless the trial judge must declare a mistrial as soon as the jury reports difficulty reaching a verdict — and we have just held to the contrary — then some supplemental instructions concerning further deliberations are desirable, perhaps even necessary.” Romine v. State, 256 Ga. 521, 527 (1) (d) (350 SE2d 446) (1986). Such instructions are appropriate as long as they are not “coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” Scott v. State, 290 Ga. 883, 888 (6) (725 SE2d 305) (2012).

Under the circumstances of this case, there is no reason why the trial court could not have simply given the pattern jury instructions for a hung jury or an otherwise appropriately noncoercive Allen charge. For instance, in the similar case of Gamble v. State, 291 Ga. 581, 583-584 (5) (731 SE2d 758) (2012), the jury had deliberated for two-and-a-half hours when it indicated a deadlock and asked what to do in the case of a hung jury. As in the instant case, the trial court asked whether any juror was refusing to deliberate and whether it was likely that further deliberations would result in verdict, and the jury answered “no” to both questions. But unlike the instant case, the trial court did not then sua sponte declare a mistrial, and instead properly gave the pattern jury charge. Id. See also Larry v. State, 266 Ga. 284, 287-288 (5) (466 SE2d 850) (1996) (trial court gave noncoercive Allen charge after learning that one juror wished to be excused from deliberations because she “felt that fellow jurors were trying to make the decision for her”). Here, the trial court’s flawed reasoning that any Allen charge would have put undue pressure on the jury does not provide a valid basis for the sua sponte declaration of a mistrial over the objection of the defense.

Moreover, the record reveals circumstances that are typically cited as factors that support instructing a deadlocked jury to continue its deliberations, rather than immediately granting a mistrial. The jury had deliberated for the relatively short time of three hours, the jury indicated that no one was refusing to deliberate, and the jurors were only a single vote from unanimity. Under these circumstances, further deliberations certainly would have been appropriate. See Sanders v. State, 290 Ga. 445, 449-450 (6) (721 SE2d 834) (2012) (no error in giving Allen charge where jury was deadlocked after eight hours but all jurors were still participating in deliberations); Humphreys v. State, 287 Ga. 63, 80 (9) (a) (694 SE2d 316) (2010) (no abuse of discretion in denying motions for mistrial where all jurors still deliberating after several hours); Jones v. State, 273 Ga. 231,234-235 (5) (539 SE2d 154) (2000) (no error in requiring jury to continue deliberating where deadlocked 11-1 after ten hours of deliberations); Gibson, supra at 803 (2) (no error giving Allen charge after seven hours of deliberations and court had learned of 11-1 deadlock since “[a]n inquiry into the numerical division of a deadlocked jury enables the court to ascertain the likelihood of agreement among the jurors”); Sears, supra at 835 (1) (court properly instructed jury to continue deliberations where jurors were deadlocked 11-1 after deliberating for six hours). Instead, the trial judge, without further questioning of the jury, opted for the most drastic measure of interrupting the proceedings and, on his own, declaring a mistrial.

The power of a trial judge to interrupt proceedings on his own by declaring a mistrial is subject to stringent limitations. State v. Johnson, 267 Ga. 305 (477 SE2d 579) (1996). In this case, for the reasons set forth above, we conclude that there is a reasonable probability that a reviewing court could find that there was no manifest necessity for the exercise of such power and the sua sponte declaration of a mistrial in the first trial. See Johnson v. State, supra at 731-732 (standard of review of grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the court’s findings support its conclusion). Accordingly, there is also a reasonable probability that the outcome below would have been different if Honester’s counsel had not deficiently failed to file a plea in bar. Because counsel’s deficient performance prejudiced the defense, the trial court erred in denying Honester’s motion for a new trial on the ground of ineffective assistance of counsel.

Decided October 29, 2014.

Tyler R. Conklin, James C. Bonner, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

We therefore reverse. On remand the trial court should grant the motion for new trial thereby allowing Honester an opportunity to file a plea in bar.

2. Remaining arguments.

Because of our holding above in Division 1, we need not reach Honester’s remaining arguments.

Judgment reversed.

Andrews, P. J., concurs. Ray, J., concurs in judgment only.


text:
    A14A1409.
    YOUNG v. GRIFFIN.
    (765 SE2d 625)
   McFADDEN, Judge.

After a motorcycle ridden by Eugene Young collided with a truck driven by James Lamonte Griffin, Young sued Griffin for personal injury. A jury found Young 51 percent negligent and Griffin 49 percent negligent in connection with the collision, and the trial court entered a judgment in Griffin’s favor. On appeal, Young argues that the trial court inadequately responded to improper closing arguments of Griffin’s counsel, but even assuming the arguments were improper, they did not in reasonable probability change the result of the trial. Young also argues that the trial court gave three jury charges that were not supported by the evidence, but the evidence authorized two of the charges and the third was not reversible error. Accordingly, we affirm.

1. Trial evidence.

Young testified at trial that, on June 19, 2010, he was riding his motorcycle southbound toward a railroad crossing, traveling at 25 miles per hour. As he “got right at the track” the crossing lights flashed, and he heard a train. He then saw Griffin’s truck blocking his lane on the other side of the crossing. He slammed on his brakes but was unable to stop and hit the truck. He was injured in the collision. In his cross-examination of Young, Griffin’s counsel introduced into evidence photographs showing the skid marks left by the motorcycle.

Griffin testified that he was driving northbound toward the railroad crossing when the crossing lights began to flash and the crossing arm began to descend. There was no oncoming traffic between him and the crossing at that time, and he did not expect any vehicles to cross the tracks as the arm was descending. Griffin decided to make a U-turn to avoid waiting on the train. The turn took him “a few seconds.” As he had almost completed the turn with his truck blocking the southbound lane, he heard and felt the impact of Young’s motorcycle. He had not seen or heard Young before that point. The force of the impact damaged the frame of Griffin’s truck.

The driver of a vehicle that was behind Griffin’s truck at the time of the collision testified that the crossing lights began flashing and the crossing arm began descending before Griffin started the U-turn. The driver did not see any oncoming traffic when Griffin started the turn, and he did not see or hear Young before the collision occurred. The passenger in that vehicle also testified that the crossing arm began descending before Griffin started his U-turn, and that at that point she had not seen any oncoming traffic. She did not see where Young was when the gate began descending. She heard the impact of the collision, which occurred as Griffin was completing the U-turn.

The police officer who responded to and investigated the accident testified that the speed limit on that segment of road was 35 miles per hour. He testified that both Griffin and the driver of the vehicle behind Griffin’s truck told him at the scene that Young had crossed the railroad tracks as the arm was descending. He determined that Griffin and Young both were at fault for the collision. (The trial court allowed the officer to give this opinion over Young’s objection; Young has not challenged that ruling on appeal.)

2. Improper closing arguments.

Young asserts that Griffin’s counsel made improper arguments during closing and that the trial court should have either rebuked counsel and given a curative jury instruction or granted Young a mistrial. But Young did not object contemporaneously to one of the allegedly improper arguments, and he did not obtain from the trial court a ruling either sustaining or overruling his objection to the other of the allegedly improper arguments. Consequently, our appellate review of this issue is limited to “whether the improper argument [s] in reasonable probability changed the result of the trial.” Stolte v. Fagan, 291 Ga. 477, 483 (2) (b) (731 SE2d 653) (2012) (citation omitted). Applying this standard, we find that Young has not shown reversible error.

Griffin’s counsel argued in closing that the skid mark evidence contradicted Young’s testimony that he did not see the flashing lights until he had reached the railroad tracks. Griffin’s counsel stated:

There is something called perception time and reaction time. I talked about it yesterday and, in fact, I believe, if I’m not mistaken, [Young’s counsel] talked about it in his opening statement. I think he even used the figure of two or two and a half seconds for perception time and reaction time and that’s probably about right, the time it takes the human body to perceive a problem and then react to it.
And the reason that is significant, Ladies and Gentlemen, is if the skid marks start on the northern boundary of the railroad tracks and Mr. Young is going south, that means he perceived an issue at the railroad tracks back up the road when he was north of the railroad tracks. The skid marks start here (indicating). That means he perceived something when he was up here (indicating).

Griffin’s counsel then calculated the number of feet a person driving 25 miles per hour would travel in a second and argued: “If we go with what [Young’s counsel] said yesterday, two and a half seconds for perception and reaction . . . .”

At that point, Young’s counsel objected, stating that Griffin’s counsel was “misstating both what I said and the evidence. I never said there was a reaction time of two and a half seconds. What we said was it took [Griffin] two seconds to make his U-turn.” In the jury’s presence, both sides debated exactly what Young’s counsel had said during his opening statement. The trial court then said: “Since this has been brought up, I will have to leave it to the jury to remember what was said during the course of the trial. Go ahead, [Griffin’s counsel].”

Griffin’s counsel proceeded to argue that, considering a “perception and reaction time” of two-and-a-half seconds and a speed of 25 miles per hour, the skid mark evidence indicated that Young “would have been 90 feet north of the railroad tracks at the time he saw something that caused him to put on his brakes.” Young’s counsel made no further objection during closing argument, but once the jury retired he moved for a mistrial based on the allegedly improper arguments. The trial court reviewed the transcript ofYoung’s opening statement and denied the motion.

Young argues that the trial court’s response was insufficient. See OCGA § 9-10-185 (imposing duty on trial court to interpose and prevent counsel from making statements of prejudicial matters not in evidence, to rebuke counsel and give curative instruction to endeavor to remove improper impression from jury’s minds if counsel objects to improper statements, and in its discretion to order mistrial if plaintiff’s attorney is offender). But unlike in Stolte, 291 Ga. at 479-482 (2), and Steele v. Atlanta Maternal-Fetal Medicine, 271 Ga. App. 622, 622-625 (1) (610 SE2d 546) (2005), overruled in part on other grounds by Smith v. Finch, 285 Ga. 709, 712 (1) (681 SE2d 147) (2009), which Young cites in support of this argument, here the trial court neither overruled nor sustained Young’s objection. “It is the duty of counsel to obtain a ruling on his motions or objections.” Smith v. Stacey, 281 Ga. 601, 602 (1) (642 SE2d 28) (2007) (citation and punctuation omitted). Moreover, “the fact that [Young] made a prior objection [did] not obviate [his] responsibility to interpose a contemporaneous objection at each instance of offending argument.” Stolte, 291 Ga. at 482 (2) (b) (citation and footnote omitted). An objection to a closing argument made after the argument has concluded is untimely. See id.; see also Mullins v. Thompson, 274 Ga. 366, 367 (2) (553 SE2d 154) (2001) (motion for mistrial based on improper closing argument cannot be made after closing argument); Hamilton v. Shumpert, 299 Ga. App. 137, 144 (3) (682 SE2d 159) (2009) (accord).

Under these circumstances, we must assess the allegedly improper closing arguments to determine “whether the improper arguments] in reasonable probability changed the result of the trial.” Stolte, 291 Ga. at 483 (2) (b) (citations and punctuation omitted). Assuming that the arguments referring to “perception and reaction time” were improper (given that no trial evidence addressed that concept), we cannot say that in reasonable probability these arguments changed the trial result. Other trial evidence cast doubt on Young’s depiction of events, including: the physical skid mark evidence; the testimony from Griffin and the other eyewitnesses that the crossing arm had begun descending before Griffin started his U-turn, that they saw no oncoming traffic at that time, and that Young struck Griffin as Griffin had nearly completed his turn; and the testimony of the investigating police officer regarding the information he obtained at the scene. Moreover, the trial court specifically instructed the jury that “what the lawyers say during this trial is not evidence,” including what “they say in their opening statements or their arguments[.]” Cf. O’Neal v. State, 288 Ga. 219, 223 (2) (702 SE2d 288) (2010) (finding it highly probable that trial court’s inadequate response to improper closing argument did not contribute to jury’s verdict in light of strength of state’s evidence and trial court’s specific instruction to jury that closing arguments of counsel did not constitute evidence).

Accordingly, we find no reversible error arising from the trial court’s response to the allegedly improper arguments.

3. Jury charges.

Over Young’s obj ection, the trial court charged the jury on certain provisions of OCGA §§ 40-6-140 (concerning a driver’s responsibility to stop at a railroad crossing), 40-6-180 (concerning a driver’s speed when approaching a railroad crossing, among other things), and 40-6-182 (concerning the setting of speed limits). The trial court instructed the jury that Griffin contended Young had violated each of these Code sections, that the jury was to determine whether such a violation occurred, and that any such violation constituted negligence as a matter of law. Young argues that the evidence did not support these charges. See Dept. of Transp. v. Davison Investment Co., 267 Ga. 568, 570 (2) (481 SE2d 522) (1997) (“Instructions not warranted by the evidence are cause for a new trial unless it is apparent that the jury could not have been misled thereby.”) (citations and punctuation omitted). The charges on OCGA §§ 40-6-140 and 40-6-180 were correct, and the charge on OCGA § 40-6-182 was harmless. We therefore find no ground for reversal.

In the charge, the trial court recited verbatim the following portions of OCGA § 40-6-140:

(a) Whenever any person driving a vehicle approaches a railroad grade crossing, such driver shall stop within 50 feet but not less than 15 feet from the nearest rail of such railroad and shall not proceed until he can do so safely, when: (1) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train; (2) A crossing gate is lowered or a human flagman gives or continues to give a signal of the approach of the passage of a train; or (3) An approaching train is plainly visible and is in hazardous proximity to such crossing, (b) No person shall drive any vehicle through, around, or under any crossing gate or barrier at a railroad crossing while such gate or barrier is closed or is being opened or closed. . . . (d) No person shall drive a vehicle over a railroad grade crossing when a train is approaching.

OCGA § 40-6-140 (a), (b), (d). The trial court also recited verbatim the entirety of OCGA § 40-6-180, which provides:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. Consistently with the foregoing, every person shall drive at a reasonable and prudent speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching and traversing a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

OCGA § 40-6-180.

The trial court did not err in giving charges on either of these Code sections. The trial evidence supported the giving of a charge on OCGA § 40-6-140, because there was circumstantial evidence that Young crossed the railroad tracks after the crossing gate began to descend. Several witnesses testified that the crossing gate began to descend before Griffin started his turn, and Young testified that he was on the railroad tracks when he saw Griffin’s truck blocking his lane. Moreover, the investigating police officer testified that witnesses at the scene told him that Young had crossed the tracks as the gate was descending. The trial evidence also supported the giving of a charge on OCGA § 40-6-180, because it showed that one of the conditions addressed by that Code section — the approaching and crossing of a railroad grade crossing — was at issue in this case.

Finally, the trial court recited verbatim the entirety of OCGA § 40-6-182, which provides:

Whenever the commissioner of public safety or the commissioner of transportation shall determine upon the basis of an engineering and traffic investigation that any maximum speed set forth in this article is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of the state highway system, they may jointly determine and declare a reasonable and safe maximum speed at such place, which shall be effective when appropriate signs giving notice thereof are erected. Such a maximum speed limit may be declared to be effective at all times as are indicated upon such signs; and differing limits may be established for different times of day, different varying weather conditions, and other factors bearing on safe speeds, which shall be effective when posted upon appropriate fixed or variable signs. In no case shall the maximum speed limit for any highway be established at higher than the maximum speed limits set forth in Code Section 40-6-181 for that type of highway.

Decided October 29, 2014.

Craig A. Webster, for appellant.

John T. Croley, Jr., Young, Thagard, Hoffman, Smith, Lawrence & Shenton, J. Holder Smith, Jr., Goodman, McDuffey, Lindsey & Johnson, James F. Cook, Jr., for appellee.

OCGA § 40-6-182. Although this charge accurately recited the provisions of OCGA § 40-6-182, it was not appropriate for the trial court to charge the jury with determining whether Young violated this Code section. As Young points out in his appellate brief, OCGA § 40-6-182 does not govern his behavior; it governs the actions of the commissioners of public safety and transportation in setting speed limits.

Nevertheless, we discern no reversible error here because an inapplicable jury instruction is not grounds for reversal where it does not appear that the inapplicable part was calculated to mislead the jury, erroneously affected the verdict or was prejudicial to the rights of the complaining party.

Williams v. Capitol Corporate Cleaning, 313 Ga. App. 61, 64 (1) (e) (720 SE2d 228) (2011) (citation and punctuation omitted). The evidence regarding the posted speed limit in this case was undisputed, and no suggestion was made that the posted speed limit had been improperly set. Consequently, the charge on the statute governing the setting of speed limits “did not demand a finding against [Young]. It was a matter for the jury to weigh the evidence, evaluate causation, and allocate liability. Based on the record in this case, the challenged jury instruction did not affect that process such that a reversal is required.” Id. (footnote omitted).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


author: ELLINGTON, Presiding Judge.

text:
    A14A2017.
    ALESSI et al. v. CORNERSTONE ASSOCIATES, INC.
    (765 SE2d 630)
   ELLINGTON, Presiding Judge.

On May 12,2014, the Superior Court of Spalding County granted the application for confirmation of an arbitration award filed by Cornerstone Associates, Inc. In the same order, the trial court granted Cornerstone’s motion for attorney fees under Georgia’s “offer of settlement” statute, OCGA § 9-11-68, against Gary and Melissa Alessi, the parties who initiated the underlying arbitration proceedings by making a demand for arbitration of their dispute with Cornerstone. On June 2, 2014, the Alessis filed a notice of direct appeal from the May 12, 2014 order. The trial court, however, has not yet entered an appealable final judgment in this matter. “[Wjith regard to judicial actions confirming arbitration awards,” the GeorgiaArbitration Code requires that “the judgment and the order confirming the award must be on separate documents[.]” (Emphasis supplied.) Barge v. St. Paul Fire & Marine Ins. Co., 245 Ga. App. 112, 117 (2) (535 SE2d 837) (2000). See OCGA § 9-9-15 (a) (“Upon confirmation of the award by the court, judgment shall be entered in the same manner as provided by [the Civil Practice Act] and be enforced as any other judgment or decree.”); (b) (“The judgment roll shall consist” of the arbitration agreement, the arbitrators’ award, a copy of the court order confirming, modifying, or correcting the award, and a copy of the judgment.). Thus, an order confirming an arbitration award is not, itself, a “judgment.” Barge v. St. Paul Fire & Marine Ins. Co., 245 Ga. App. at 117 (2).

“It is the duty of this [C]ourt to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (Punctuation and footnote omitted.) Deleon-Alvarez v. State, 324 Ga. App. 694, 698 (1) (751 SE2d 497) (2013). See also O’Leary v. Whitehall Constr., 288 Ga. 790, 791 (1) (708 SE2d 353) (2011) (accord); Mauer v. Parker Fibernet, LLC, 306 Ga. App. 160, 161 (701 SE2d 599) (2010) (accord). Because the May 12, 2014 order is neither a final judgment nor a type of judgment otherwise designated as directly appealable in OCGA § 5-6-34 (a), and because the Alessis failed to comply with the interlocutory appeal procedure provided in OCGA § 5-6-34 (b), the Alessis’ notice of appeal failed to confer jurisdiction upon this Court. Accordingly, this appeal must be dismissed as premature. Mauer v. Parker Fibernet, LLC, 306 Ga. App. at 161; Barge v. St. Paul Fire & Marine Ins. Co., 245 Ga. App. at 117 (2). The Alessis’ premature notice of appeal will be effectively filed upon entry of judgment. Gillen v. Bostick, 234 Ga. 308, 310-311 (1) (215 SE2d 676) (1975); Livingston v. State, 221 Ga. App. 563, 564-565 (1) (472 SE2d 317) (1996). The case may then be retransmitted to this Court for redocketing.

Decided October 29, 2014.

Power & Jaugstetter, Patrick D. Jaugstetter, for appellants.

Bendin Sumrall & Ladner, Stephen T. Snow, Jennifer C. Beilis, for appellee.

Appeal dismissed without prejudice and case remanded.

Phipps, C. J., and McMillian, J., concur.


author: Dillard, Judge.

text:
    A14A0943.
    In the Interest of J. V. J., a child.
    (765 SE2d 389)
   Dillard, Judge.

The mother of a minor child, J. V. J., appeals from an order of the Juvenile Court of Houston County terminating her parental rights and its subsequent denial of her motion for a new trial, arguing that the court lacked clear and convincing evidence to support its finding that the cause of her child’s deprivation was likely to continue. For the reasons set forth infra, we reverse.

Viewed in the light most favorable to the juvenile court’s findings, the evidence showed that J. V. J. was born on September 25, 2012, and was immediately removed from her mother’s custody by the Department of Family and Children Services (“the Department”) because her mother previously lost parental rights to three other children and had a history of instability and drug use. Nine months later, on June 26,2013, the juvenile court held a termination hearing, during which the mother admitted that she used crack cocaine two or three times per week for ten years. The mother contended, however, that her drug use ceased when she learned that she was pregnant with J. V. J. in March 2012. Further, the mother testified that she had no relationship with five of her six children, and that her parental rights as to three of those children were terminated.

The mother visited J. V. J. regularly since her birth and, even though the Department never provided her with a case plan, she independently decided to attend a 15-week parenting course, complete an outpatient substance-abuse program, earn her high-school diploma, and enroll in college to become a medical assistant. Regarding her finances, the mother testified that she received a Pell Grant and student loans for school and, if J. V. J. were returned to her, that she could apply for temporary assistance for needy families. Further, the mother explained that she was trying to “get [her] life together and be a better mom” and, as she would be unable to have other children, she wanted to prove that she could care for J. V. J.

The evidence also shows that, although the mother had been unemployed for the last ten years, she had lived in the same apartment for approximately two years (since July 18, 2011). The mother’s boyfriend moved in with her shortly after J. V. J. was born, and he paid most of their living expenses. And while the mother and boyfriend knew that the boyfriend was not J. V. J.’s biological father, they nevertheless signed an acknowledgment of legitimacy, indicating that he was the father.

On September 27,2012, two days after J. V. J.’s birth, the mother and her boyfriend tested positive for cocaine and, on May 21, 2013, the boyfriend tested positive a second time. Three weeks later, in June 2013, the boyfriend paid for an independent drug test and, this time, he tested negative for cocaine. The technician who administered the May test testified that the boyfriend’s positive drug test in May showed a low level of cocaine, indicating that “he was trying to quit” or “cut down some.” The evidence presented below further shows that, in March 2013, the boyfriend successfully completed a substance-abuse program.

The director of a women’s rehabilitation center testified that the mother had enrolled in an outpatient substance-abuse program. And while she had been noncompliant in the past, the mother had done “exceptionally well” in the program this time. Indeed, she ceased using drugs in October 2012, and since then, tested negative for drugs 32 times. Moreover, when the mother completed the program, she enrolled in a support group for recovering addicts and participated in every program the center offers, including a job-readiness program.

A case manager testified that the Department did not develop a case plan for J. V. J. and, in fact, did nothing to assist the mother or work toward reunification. The case manager had no contact whatsoever with the substance-abuse program, but she nevertheless confirmed that the mother had been drug-free for at least 90 days preceding May 2013, when she tested negative for drugs. And when the case manager supervised visits, she noticed that the mother played with her child, bonded with her, and appeared to love her. Further, despite “transportation issues,” the mother never missed a scheduled supervised visit with her daughter. Additionally, J. V. J.’s Court Appointed Special Advocate (“CASA”) visited the mother’s home, which included a room with a baby bed, diapers, and baby clothes, and she found it pleasant, moderately furnished, and clean. And based on the home visit and her contact with J. V. J. and her mother, the CASA believed reunification was indeed an option and that the mother was able to care for the child.

J. V. J.’s foster mother testified that she adopted two of J. V. J.’s biological siblings, and that she and her husband desired to adopt J. V. J. as well. At the close of the hearing, J. V. J.’s guardian ad litem commended the mother, stating “[s]he’s managed to completely turn her life around and it’s very impressive.” Nonetheless, she agreed with the Department’s recommendation to terminate the mother’s parental rights based on her boyfriend’s “substance abuse issues.”

On August 8, 2013, the juvenile court terminated the mother’s parental rights. The court first found that the mother was not credible because she signed an acknowledgment falsely representing that her boyfriend was J. V. J.’s father. Moreover, the court determined that termination was warranted because the mother had a long history of chronic instability and drug abuse, and she lived with a man dependent upon cocaine. And noting that the mother’s parental rights to three of her other children were terminated, the court found that she was unstable regarding her ability to meet J. V. J.’s needs, and that no evidence suggested she would ever develop that ability. The court was also adamant that J. V. J. “CANNOT live with... [the mother’s boyfriend].” Finally, the court concluded that it was in J. V. J.’s best interests to terminate her mother’s parental rights because “it would be unspeakably inhumane to the child to remove her from the [foster] home.”

The mother then filed a motion for a new trial, arguing that the court lacked sufficient grounds for termination and that the Department failed to show instability. The court denied the motion, reiterating its initial findings. Thereafter, the mother filed an application for a discretionary appeal, which we granted. This appeal follows.

On appeal, the mother maintains that the juvenile court terminated her parental rights without clear and convincing evidence that the cause of J. V. J.’s deprivation, including the mother’s past drug use and current poverty, was likely to continue or will likely not be remedied. We agree.

At the outset, we note that on appeal from a termination order, “we view the evidence in the light most favorable to the juvenile court’s ruling and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated.” A juvenile court’s termination of parental rights involves a two-step process. The first step dictates a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are satisfied, the court must then determine whether termination of parental rights is “in the child’s best interest, considering physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home.”

Furthermore, it is well settled that termination of parental rights is a “remedy of last resort which can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue.” As such, “compelling facts” are required to terminate parental rights. And while the juvenile court may consider past parental conduct in deciding whether the cause of deprivation is likely to continue, evidence of past unfitness, standing alone, is “insufficient to terminate the rights of a parent in her natural child.” Rather, clear and convincing evidence of “present unfitness is required.” Additionally, a parent’s poverty alone is an insufficient basis to terminate parental rights. Lastly, we have repeatedly recognized that “[t]he right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.”

In the case sub judice, construing the evidence in the light most favorable to the termination order, we conclude that there was not clear and convincing evidence demonstrating that the cause of J. V. J.’s deprivation is likely to continue or will likely not be remedied. Indeed, the undisputed evidence established the mother’s substantial efforts to rehabilitate herself during the nine months preceding the hearing. Significantly, even without a reunification plan or any other support from the Department, the mother earned her high-school diploma, enrolled in college, completed a drug-rehabilitation program, and attended a 15-week parenting class. Such evidence belies the juvenile court’s repeated assertions that there was no evidence that the mother would ever develop the ability to care for her child. And while the Department acknowledged the mother’s continued sobriety and that, during supervised visits, she appeared to bond with and love her child, it inexplicably recommended termination without providing her any opportunity for reunification.

Ignoring the mother’s extended sobriety, enrollment in college, and pursuit of a career as a medical assistant, the juvenile court terminated her parental rights by relying heavily on her history of drug use and past instability with respect to her other children. However, as noted supra, evidence of past misconduct, without more, is insufficient to permanently sever the natural parent-child relationship. And while the mother admitted a ten-year history of using cocaine, she tested negative for cocaine thirty-two times, enrolled in an after-care program to maintain her sobriety, and availed herself of every program that the treatment center offered. Indeed, the court cited no evidence suggesting that the mother had used drugs in the nine months before the hearing. Under these circumstances, the mother certainly provided more than mere “promises of good behavior” to show that she was not likely to continue engaging in her prior misconduct. Thus, the court impermissibly relied upon the mother’s past drug use, while ignoring undisputed evidence of her present and well-documented commitment to sobriety.

The record also fails to substantiate the juvenile court’s finding that the mother’s history of “chronic instability” justified terminating her parental rights. In so finding, the court cited only the mother’s past instability, which resulted in losing her parental rights to three other children, while ignoring the above-detailed evidence of her significant efforts to turn her life around and develop the ability to care for J. V. J. by staying sober, attending parenting classes, and furthering her education. Essentially, the juvenile court concluded that the mother’s loss of parental rights to her other children foreclosed the possibility that she could ever develop the ability to care for J. V. J. But at the time of the termination hearing, the evidence presented showed that the mother could indeed provide a stable and loving home environment for her child. Indeed, the only witness to visit the home believed that the mother could adequately care for J. V. J. The mother also submitted evidence establishing that she was a full-time student, and testified that she received student loans and other federal assistance to support herself until she graduated. Regardless, as previously noted, poverty or unemployment alone is an insufficient basis to terminate parental rights; and this is especially true when a parent’s poverty and unemployment is due, in part, to pursuing educational opportunities. Thus, as the juvenile court cited no compelling evidence that the mother is presently unstable, financially or otherwise, it erred in terminating her parental rights, in part, based on her prior history of instability.

Additionally, the mother’s cohabitation with her boyfriend is an insufficient basis for terminating her parental rights. The juvenile court found that J. V. J. could not be placed in a home with a mother “who is wholly dependent on a cocaine abuser for support” and, without further explanation, it concluded that the child simply could not live with the boyfriend. Although the home that the mother shared with her boyfriend was pleasant, clean, and included a nursery for the baby, the juvenile court rejected it as a viable option for J. V. J. without citing any evidence, much less clear and convincing evidence, that the boyfriend’s presence or even his potential drug use would negatively affect J. V. J. if she were returned to her mother. To the contrary, the evidence showed that the boyfriend helped J. V. J.’s mother maintain a stable home by contributing financially and supporting her considerable efforts to be a better mother to J. V. J. And while the boyfriend’s history of past drug use is certainly troubling, no judicial determination is more drastic than the permanent severing of the parent-child relationship and, absent clear and convincing evidence that the mother’s cohabitation with her boyfriend would negatively affect J. V. J., termination of her parental rights is unwarranted.

Furthermore, the juvenile court’s finding that J. V. J. could not be returned to her mother because it would be “unspeakably inhumane” to remove the child from her foster home lacked evidentiary support. While we certainly appreciate that J. V. J. is thriving in her foster home, as well as the commendable care the foster parents are providing to two of her siblings, the juvenile court has no authority to sever the natural parent-child relationship simply because it believes the child would be better off with the foster family. Indeed, a court is not allowed to terminate a parent’s natural right to familial relations with his or her child simply because it has determined that “the child might have better financial, educational, or even moral advantages elsewhere.” Thus, the juvenile court’s preference that J. V. J. remain with her foster family is wholly without consequence, when the court lacked clear and convincing evidence to terminate the natural mother’s parental rights.

Decided October 30, 2014.

Greg H. Bell, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Walter G. Sammons, for appellee.

In sum, no judicial determination has a more “drastic significance than that of permanently severing a natural parent-child relationship,” and it must be scrutinized “deliberately and exercised most cautiously.” And because the evidence below did not clearly and convincingly establish that the cause of J. V. J.’s deprivation was likely to continue or will not likely be remedied, the juvenile court erroneously terminated the mother’s parental rights.

For all of the foregoing reasons, we reverse.

Judgment reversed.

Doyle, P. J., and Miller, J., concur.

        In the Interest of T.W., 297 Ga. App. 886, 886 (678 SE2d 546) (2009).

       There is no evidence that J. V. J. tested positive for cocaine at birth.

       The mother testified below that she did “do a little cleaning up for her mother” in order to “make a little money.”

        In the Interest of A. T., 316 Ga. App. 782, 784-85 (730 SE2d 451) (2012) (punctuation omitted).

       We note that Title 15 has been significantly revised by the General Assembly, with the revisions effective as of January 1, 2014. Ga. L. 2013, p. 294, Part V, § 5-1 (“This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date.”). However, we review the juvenile court’s decision under the law that applied at the time of the court’s decision, which is the former version of the statute.

       See OCGA § 15-11-94 (a), (b) (4) (A) (i)-(i v) In the Interest of D. W., 294 Ga. App. 89, 91 (1) (668 SE2d 533) (2008); In the Interest of A. T., 316 Ga. App. at 784.

        In the Interest of D. W., 294 Ga. App. at 91 (1) (punctuation omitted); accord In the Interest of A. T., 316 Ga. App. at 784.

        In the Interest of T. Z. L., 325 Ga. App. 84, 94 (1) (a) (751 SE2d 854) (2013) (punctuation omitted); see also In the Interest of C. J. V., 323 Ga. App. 283, 287 (746 SE2d 783) (2013); In the Interest of K. M., 240 Ga. App. 677, 680 (523 SE2d 640) (1999); In the Interest of K. E. B., 190 Ga. App. 121, 124 (378 SE2d 171) (1989).

        In the Interest of K. J., 226 Ga. App. 303, 306 (1) (486 SE2d 899) (1997) (punctuation omitted); see also Carvalho v. Lewis, 247 Ga. 94, 94 (274 SE2d 471) (1981); In the Interest of S. M., 169 Ga. App. 364, 365 (1) (312 SE2d 829) (1983).

        See In the Interest of D. W., 294 Ga. App. at 92 (1) (c); In the Interest of A. H., 289 Ga. App. 121, 123 (1) (a) (656 SE2d 254) (2008).

        In the Interest of C. J. V., 323 Ga. App. at 285 (punctuation omitted); see also In the Interest of D. L. T. C., 299 Ga. App. 765, 769 (1) (684 SE2d 29) (2009).

        In the Interest of C. J. V., 323 Ga. App. at 285 (punctuation omitted); see also In the Interest of C. S., 319 Ga. App. 138, 145 (1) (735 SE2d 140) (2012); In the Interest of T. Z. L., 325 Ga. App. at 94 (1) (a); In the Interest of D. L. T. C., 299 Ga. App. at 769 (1).

        See In the Interest of C. J. V., 323 Ga. App. at 286-87 (explaining that evidence that a mother is “unemployed, without prospects for future employment, and without any stable living arrangements” is an insufficient basis to terminate her parental rights) (punctuation omitted)); id. at 291 (Dillard, J., concurring specially and fully) (“The State has no right to irrevocably sever the natural parent-child relationship simply because a parent is incapable of providing her children with an idyllic middle-class lifestyle.”); see also In the Interest of C. T., 286 Ga. App. 186, 190 (2) (648 SE2d 708) (2007).

        In the Interest of C. J. V., 323 Ga. App. at 283 (punctuation omitted); see also In the Interest of J. C., 242 Ga. 737, 738 (1) (251 SE2d 299) (1978); In the Interest ofM=. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006); In the Interest of T. E. T., 282 Ga. App. 269, 269-70 (638 SE2d 412) (2006); In the Interest ofT. J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002).

       Because the mother challenges only the juvenile court’s finding that the cause of J. V. J.’s deprivation was likely to continue, we decline to address the other three factors required by OCGA § 15-11-94 (a), (b) (4) (A) (i)-(iv). See In the Interest ofT. J., 281 Ga. App. 308, 314-15 (2) (636 SE2d 54) (2006) (finding that appellant abandoned an argument on appeal when she provided no legal argument or citations to the record to support the argument); Court of Appeals Rule 25 (c) (2).

       We acknowledge that the trier of fact, not the appellate court, should decide “what weight to give recent improvements” and “whether a parent’s conduct warrants hope of rehabilitation.” See In the Interest of R. C. M., 284 Ga. App. 791, 799-800 (III) (3) (645 SE2d 363) (2007) (punctuation omitted). Nevertheless, even under this deferential standard, the juvenile court is not at liberty to terminate parental rights unless clear and convincing evidence supports its decision and, as discussed infra, such evidence is clearly lacking in this case. See In the Interest of C. J. V., 323 Ga. App. at 287-288; In the Interest of C. S., 319 Ga. App. at 148 (1); In the Interest of M. T. F., 318 Ga. App. 135, 147-48 (1) (733 SE2d 432) (2012); In the Interest of K. J., 226 Ga. App. at 307-08 (2) (b).

       While the Department is not required to issue a reunification plan when a parent’s rights to other children have been terminated, see In the Interest of R. B., 309 Ga. App. 407, 412-13(1) (710 SE2d 611) (2011) (citing OCGA § 15-11-58 (a) (4) (C) (reunification efforts are not required when the parent’s rights to a sibling of the child have been terminated involuntarily)), it is unclear why the Department wholly ignored the mother’s independent efforts to remain sober, develop parenting skills, and further her education. In so doing, the Department appears to have sought termination of her parental rights to J. V. J. based solely on her past unfitness to care for her other children, which is flatly prohibited. See In the Interest of C. J. V., 323 Ga. App. at 285 (evidence of past unfitness alone is insufficient to support a termination order).

        See In the Interest of R. C. M., 284 Ga. App. at 799-800 (III) (3) (finding the juvenile court lacked clear and convincing evidence that the cause of the child’s deprivation was likely to continue when termination of the father’s parental rights was based on his past incarceration and his failure to meet the goals of the reunification plan within 45 days of his release).

        See In the Interest of G. A. M., 302 Ga. App. 177, 179 (1) (c) (690 SE2d 472) (2010) (“The juvenile court must base its decision on more than positive promises of good behavior which past conduct has proven will likely not be carried out.”).

        See In the Interest of C. J. V., 323 Ga. App. at 285 (evidence of past unfitness alone is insufficient to support a termination order); In the Interest of T. Z. L., 325 Ga. App. at 94 (1) (a) (same).

        See In the Interest of C. S., 319 Ga. App. at 146-48 (1) (finding that the juvenile court lacked clear and convincing evidence that the cause of the child’s deprivation was likely to continue when, inter alia, the parent, on his own without any assistance from the Department, completed parenting and anger-management classes, attended AA and NA meetings, maintained his sobriety, maintained stable housing for a long time, and maintained regularly scheduled visitation with his children); In re Petition of Marks, 300 Ga. App. 239, 246-47 (3) (684 SE2d 364) (2009) (finding, in an adoption case, that there was insufficient evidence that the cause of the child’s deprivation was likely to continue, when the parent, after being released from prison, completed a substance-abuse program and received significant occupational training).

       Although modestly furnished, the home had a designated room for the baby, with a baby bed, diapers, and baby clothes.

        See In the Interest of C. J. V., 323 Ga. App. at 286-87.

        Cf. In the Interest of M. T. F., 318 Ga. App. at 146 (crediting mother for being “a second-year college student. . . enrolled in on-line college courses”).

        See In the Interest of C. J. V., 323 Ga. App. at 285 (noting that “clear and convincing evidence of present unfitness is required” to support termination of parental rights) (emphasis in original).

       While the court believed that the boyfriend was “dependent” on drugs, evidence showed that he successfully completed a drug rehabilitation program in March 2013, he had only two positive drug tests, and his most recent positive drug test revealed a low level of cocaine, suggesting that “he was trying to quit” or “cut down some.”

        See In the Interest of T. Z. L., 325 Ga. App. at 94 (1) (a) (termination of parental rights “can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue”) (punctuation omitted).

        Cf. In the Interest of H. L. W., 229 Ga. App. 264, 264-67 (493 SE2d 637) (1997) (affirming the termination of parental rights when, inter alia, the mother was in a relationship with an abusive boyfriend who “beat the mother and ‘french kissed’ one of the children” and the children were “terrified” of the boyfriend).

        See In the Interest of C. S., 319 Ga. App. at 145-48 (1) (finding insufficient evidence that the cause of the child’s deprivation was likely to continue when, inter alia, no evidence showed that the parent’s current home environment was unsuitable).

        Id. at 146 (1) (punctuation omitted); see also Dell v. Dell, 324 Ga. App. 297,300 (748 SE2d 703) (2013) (same).

       We note in passing that the juvenile court failed to provide sufficient support for its conclusory finding that J. V. J.’s continued deprivation would most likely result in physical, mental, moral, or emotional harm to the child. Indeed, the court did not identify any specific harm that J. V. J. would suffer if she were returned to her mother, instead merely reciting boilerplate language from OCGA § 15-11-94 (a), (b) (4) (A) (iv). Suffice it to say, this is not a sufficient basis to irrevocably sever the familial rights of the mother to her child. As we have previously emphasized, an order terminating parental rights must contain “explicit findings supporting the conclusion! ] that by reason of the deprivation the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” In the Interest of K. J., 226 Ga. App. at 307 (2) (b). And absent such specific factual findings, we have no basis to consider whether the juvenile court properly determined that clear and convincing evidence supported its conclusion on that issue. Id. We take this opportunity to remind our juvenile courts of their obligation to include such explicit findings in their orders terminating parental rights.

        In the Interest of R. C. M., 284 Ga. App. at 800 (III) (3); accord In the Interest of K. J., 226 Ga. App. at 306 (1).

        In the Interest of K. J., 226 Ga. App. at 306 (1).