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In the Interest of D. S.

Clear and convincing evidence did not support the termination of the mother's and the father's parental rights to their child.

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The Juvenile Court of Houston County terminated the parental rights of the mother and father of D. S. The parents appeal, asserting that the evidence is insufficient to support the juvenile court’s decision. Because several of the findings in the juvenile court decision are based on evidence that is not clear and convincing and, in some instances, evidence that is not even in the record before us, we must reverse. We note that this is an atypical termination case in that it was not brought by the Department of Family and Children Services. Rather, the case was initiated by relatives of the child’s father, and according to the record before us, insofar as the Department became involved, it did not substantiate the claims of parental unfitness. D. S. was born on December 29, 2003.1 On June 17, 2004, a cousin of the child’s father and the cousin’s husband filed a petition for custody of the child in Houston County Superior Court, alleging that D. S. had been the victim of family violence. That same day, the superior court issued an ex parte order awarding temporary custody of D. S. to the cousin and her husband and transferring the matter to the Houston County Juvenile Court.

On June 23, 2004, the parties appeared before a juvenile court judge, who stated that the case had been transferred to the juvenile court not as a family violence matter, but as a deprivation case. During the brief hearing, the parents requested that the court order the Department of Family and Children Services to investigate their home and the allegations of misconduct. The juvenile court issued such an order, directing that the Department investigate the parents while the child remained in the temporary custody of the cousin and her husband.

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