Dillard, Chief Judge.The mother of G. M. and N. M., two minor children, appeals the juvenile court’s order finding her children to be dependent and granting temporary custody to the Lowndes County Division of Family and Children Services (“DFCS”). In doing so, the mother contends that DFCS failed to present clear and convincing evidence that her children were dependent. For the reasons set forth infra, we reverse. G. M. was born in September 2013, and N. M. was born in October 2015. At N. M.’s birth, the mother tested positive for opiates and admitted to using opiates while pregnant. As a result of the mother’s drug use, N. M. showed signs of opiate withdrawal when she was born, but she was successfully treated, and all her symptoms resolved by the time she was one month old. Initially, DFCS did not remove the children from their mother’s care. Instead, the mother was referred for a substance-abuse assessment. She complied with this directive, and, ultimately, went to outpatient therapy to address her drug dependence. Over the next several months, the mother was randomly drug tested. She had a positive drug test (for amphetamine) on December 4, 2015, but all of her other drug screens—including urine tests on November 28, 2015, December 18, 2015, and January 26, 2016, and a hair-follicle test on May 4, 2016—were negative. The negative hair-follicle screen was indicative of the mother not using illegal drugs for the three to six months prior to the test. But on May 6, 2016, the mother’s therapist arrived for an appointment and observed that she was under the influence. The mother admitted that she had taken two Soma pills, and the therapist contacted the DFCS caseworker, who came to the home and removed the children. Ultimately, the children were placed in foster care. Approximately one month later, DFCS filed a complaint, alleging that the mother was an admitted drug addict, who had not worked her case plan[1] or made any progress toward resolving her addiction. As a result, DFCS sought a finding of dependency and custody of the children. The juvenile court entered a preliminary protective order pending a hearing, which was later held on July 12, 2016.At the hearing, the DFCS case manager testified that, despite the mother’s negative drug screens, she was continuing to use opiates throughout DFCS’s involvement with the family. Specifically, the caseworker testified the mother admitted to her and the therapist that she was continuing to use drugs. But the therapist testified that between January and May 2016, the mother admitted only to using opiates on May 6. And although the mother admitted to using Soma without a prescription on May 6, she denied using drugs since then and testified that, with the help of therapy, she had stopped using drugs prior to May 6. The mother was prescribed opiates three years before the hearing and, since then, she had taken drugs on occasion without a prescription, self-medicating as a coping mechanism. With regard to the incident on May 6, 2016, the therapist and the caseworker observed that the mother’s speech was slurred, she moved slowly, and she was irritable and unfocused. When the caseworker arrived at the mother’s home, she was returning from a neighbor’s house with N. M. and G. M. and admitted to being under the influence. At the hearing, the caseworker expressed concern that the mother could not provide proper supervision to the children while she was under the influence. But the caseworker conceded that the children were not abused nor left unsupervised, and they never went without food, clothing, shelter, or medical care. Indeed, the caseworker testified that she did not have any evidence the mother placed her children in harm’s way on May 6, “but there are a lot of possibilities out there.”As for the mother’s treatment, her therapist testified that she suffered from depression and was forthcoming about her substance abuse. The mother had not been required to enter an inpatient treatment program in her initial substance-abuse assessment, and it was undisputed that she was compliant with her outpatient therapy. The therapist nonetheless recommended inpatient treatment, which the mother expressed a willingness to try. Nevertheless, the mother failed to enroll in inpatient drug treatment prior to the hearing, despite a DFCS recommendation and referral. Before the children were born, the mother was jailed as a result of shoplifting and credit-card fraud charges. And before N. M. was born, she was arrested, convicted, and placed on probation for driving under the influence of Soma. G. M. was not with her at the time of her arrest. At the hearing, the caseworker testified that the mother had “been to jail like three times since we’ve had this case for violations of her probation[,]” but provided no dates or other details about the probation violations. In this regard, the mother admitted to being incarcerated twice for probation violations, although one time was in June 2016, after the children had been removed from her care.The DFCS caseworker also testified to certain medical concerns. Specifically, she believed G. M. was suffering from tooth decay, which the mother had failed to address. Notably, however, the children’s pediatrician testified that tooth decay is a common problem among young children, affecting some 40 percent of the population of South Georgia, and that it is hard to obtain a dental appointment for a child under the age of three through Medicaid. N. M. also suffered from unexplained seizures and, according to the caseworker, unusual eye movements. But the caseworker admitted that there was no evidence N. M.’s seizures or unusual eye movements were caused by anything within the mother’s control. And the pediatrician explained that the mother obtained regular medical care for the children, including successful treatment for N. M.’s seizures, which appeared to be unrelated to her intra-uterine opiate exposure. Following the hearing, the juvenile court entered an order, nunc pro tunc to July 12, 2016,[2] finding the children to be dependent based on the mother’s abuse of opiates, awarding temporary custody to DFCS, and ordering the mother to enter an inpatient substance-abuse treatment program. Specifically, the juvenile court based its finding of dependency on the following facts: the mother tested positive for opiates at N. M.’s birth and, as a result of her drug use, N. M. experienced opiate withdrawal; the mother had a positive drug test in December 2015, was under the influence on May 6, 2016, and admitted using opiates without a prescription over the past three years; the mother was on probation based on a conviction for driving under the influence of a prescription medication and had been incarcerated on two occasions for probation violations since October 2015; the mother had not entered residential drug treatment; and G. M.’s teeth were noticeably decayed. This appeal follows.[3] In a single claim of error, the mother appeals from the juvenile court’s determination that her children were dependent, contending that the court lacked clear and convincing evidence to support its finding of dependency. We agree. We review the juvenile court’s finding of dependency 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 is dependent.”[4] In doing so, we do not weigh the evidence or determine the credibility of witnesses; “instead we defer to the juvenile court’s findings of fact and affirm unless the appellate standard is not met.”[5] Notably, even a temporary loss of custody is not authorized unless there is clear and convincing evidence that the dependency “resulted from the 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 incapability to care for the child.”[6] Thus, only under compelling circumstances that are found to exist by such clear and convincing proof may a court sever, even temporarily, the parent-child custodial relationship.[7] This is because “the right to the custody and control of one’s child is a fiercely guarded right in our society and in our law.”[8] Indeed, as our Supreme Court recently emphasized, the right of familial relations is “among the inherent rights that are derived from the law of nature.”[9] And because of the sacred right at stake in custody proceedings, generally, the record must contain evidence of present dependency, not merely past or potential future dependency.[10] Finally, the party who brings the petition alleging dependency, not the parent from whose custody the child is being removed, carries the burden of proof.[11] Here, the juvenile court found the children dependent, as defined by OCGA § 15-11-2 (22), in that they had been abused or neglected.[12] “Neglect” is defined as, inter alia, “[t]he failure to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for a child’s physical, mental, or emotional health or morals; [or] . . . [t]he failure to provide a child with adequate supervision necessary for such child’s wellbeing[.]“[13] And “abuse” is defined as “[a]ny nonaccidental physical injury . . .; [e]motional abuse; [s]exual abuse or sexual exploitation; [p]renatal abuse; or [t]he commission of an act of family violence . . . in the presence of a child.”[14] Although a juvenile court may consider prior unrehabilitated substance abuse to infer harm to a child even when there is no showing of actual harm,[15] the evidence established that the mother had passed all but one of her drug screens since November 2015, she was forthcoming and compliant in her outpatient treatment, and she was willing to enter inpatient treatment, even though she had not been required to do so by court order prior to the instant dependency order or by her initial substance-abuse assessment. And while the mother was under the influence on May 6, 2016, she admitted the relapse to her therapist and the DFCS caseworker, and there was no clear and convincing evidence that the children were placed in harm’s way as a result of her intoxication that day.[16] Furthermore, the evidence was undisputed that G. M. was not with the mother when she was arrested for driving under the influence and that her other criminal convictions occurred prior to the children’s births. As for her probation violations, although she was jailed twice for probation violations, one violation occurred after the children were taken out of her care, and DFCS failed to present any evidence as to the dates or lengths of any incarcerations. Thus, DFCS failed to present clear and convincing evidence that these probation violations resulted in abuse or neglect of the children.[17] Finally, as to G. M.’s tooth decay, the evidence was not clear and convincing that the tooth decay was the mother’s fault or that it was causing G. M. any pain or other ill effects. Rather, the undisputed evidence was that tooth decay was extremely common in young children and that it was very difficult to obtain treatment for same for a child G. M.’s age on Medicaid.[18] Admittedly, the mother has a substance abuse problem, which resulted in N. M. suffering from withdrawal symptoms at birth. But since that time, the mother has been seeking treatment for her addiction, resulting in a five-month period of negative drug screens. Although she relapsed on May 6, 2016, on this record, we cannot say that there was clear and convincing evidence that the children were presently dependent as a result of her relapse, her legal problems, or G. M.’s tooth decay. Accordingly, we conclude that DFCS failed to establish sufficient evidence of the mother’s unfitness, and we therefore reverse the juvenile court’s finding of dependency and its subsequent award of temporary custody to DFCS.[19]Judgment reversed. Mercier, J., concurs. Doyle, P. J., dissents.
* THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE 33.2 (a)
