HomeContactSearch

Georgia Parent Attorney Juvenile Court Deprivation Case Reference Manual, April 2004


A Reference Manual for Attorneys Representing Parents

 

 

Principal Developers:

  • Karen L. Worthington, Staff Attorney, Juvenile Advocacy Division Georgia Indigent Defense Council
  • Melissa Dorris, Research Assistant, Georgia Supreme Court Child Placement Project (2001 Revision)
  • John Taylor, Research Assistant, Georgia Supreme Court Child Placement Project (2001 Revision)
  • Laurie-Ann Fallon, Research Assistant, Georgia Supreme Court Child Placement Project (2004 Revision)

 

Contributors:

  • Chris Harris, Research Assistant, Georgia Supreme Court Child Placement Project
  • Dan Terner, Student Intern, Juvenile Advocacy Division, GIDC
  • Jan Wheeler, Staff Attorney, Juvenile Advocacy Division, GIDC

 

 

 

This manual was written to provide informal information about the process of child deprivation cases. It is not to be used as the official authority on law and procedure.

 

 

 

Funded by the Georgia Supreme Court Child Placement Project
November 1997; Revised June 2001; Updated December 2004

 

 

 

 

 

 

 

I. Introduction

 

 

The information contained in this manual is not intended to teach the law regarding child abuse and neglect proceedings in juvenile courts. It is designed to serve as a checklist and reference guide rather than as an authority on the law. This manual will provide attorneys with an outline of how a "typical" case may progress from start to finish, including what decisions need to be made at each proceeding, what participants should be involved at each stage, suggestions on effective advocacy, and where to find more information. This area of the law is changing rapidly, so detailed discussion of statutory or case law is limited; lawyers are advised to review the law every time they work on a case.

 

II. Overview of child abuse and neglect proceedings

 

A. Progress of a Georgia Deprivation Case

 

 

An incident of child abuse or neglect officially becomes a juvenile court case when the petition is filed. This is not the first action that occurs, however; a deprivation case starts long before the court obtains jurisdiction over the matter. A "typical" deprivation case begins with a call to the county Department of Family and Children Services (DFCS). Throughout this manual the term "'typical' deprivation case" is used to describe a deprivation proceeding in which DFCS is the petitioner and the parents are the respondents. This term is used as shorthand for the type of case to which the code and rules can most easily be applied.. This call may be made by a neighbor, police officer, mandated reporter (see O.C.G.A. § 19-7-5), or any person having knowledge of or information about mistreatment of the child. (see O.C.G.A. § 15-11-38).

 

The call to DFCS is directed to the Child Protective Services (CPS) Unit, which is charged with investigating allegations of abuse and neglect. A decision is made within that unit whether to further investigate the allegation. If further investigation is needed, a CPS worker will be assigned to investigate and determine whether the allegation is confirmed, unconfirmed, or unfounded. If it is confirmed or unconfirmed, CPS may provide support services to the family to prevent the problem from escalating to a level necessitating removal of the child from the home. If there is an immediate threat of harm to the child, a law enforcement officer or a duly authorized officer of the court has authority to remove the child from the home. As soon as possible after removal (if court authorization was not obtained in advance), an intake officer of the juvenile court must be contacted. The intake officer will make the determination (usually over the phone), based on the facts presented, whether the child should be detained or released.

 

If the child is removed from the home and the intake officer approves the removal, a court hearing must be held within 72 hours of the time the child is removed, unless the 72 hours ends on a week-end or legal holiday, in which case the hearing will be held on the next business day. The purpose of this hearing is to determine whether the child can be safely placed back in the home and whether reasonable grounds exist to believe that the allegations in the complaint or petition are true.

 

If, at the 72-hour hearing, the court decides that the child must remain out of the home, a deprivation petition must be filed within five days of the 72-hour hearing. The petition is the formal commencement of the deprivation proceeding. If the court decides that it is safe for the child to be released to his or her parent or guardian, but DFCS believes there is a need to file a deprivation petition, the petition must be filed within 30 days of the 72-hour hearing.

 

Before a petition can be filed, an authorized officer of the court must determine that filing a petition is in the best interest of the public and the child. In most cases the petitioner files a "complaint" and the court accepts the complaint and "approves" the filing of a petition. Once a petition is filed, an adjudicatory hearing must be set within ten days. Juvenile court "trials" occur in two phases: the adjudication is the fact-finding phase (the "trial") and the disposition is the phase in which the placement and plan for the child are decided ("sentencing"). Although the code requires the adjudication to be set within ten days, it does not require the case to actually be heard within ten days. A continuation may be granted at the judge's discretion.

 

The adjudicatory hearing can only be held after proper notice to all necessary parties. If, at the adjudicatory hearing, the court determines by clear and convincing evidence that the child is deprived, the court will hold a dispositional hearing. As a practical matter, this hearing is usually held within the same proceeding as the adjudication, but it can be held separately for a variety of reasons. If the court does not find that the child is deprived, the case is dismissed. Even with a dismissal, CPS may continue to maintain an open CPS case on the family, providing services and monitoring the family.

 

Even before the court hearing, DFCS and the family are supposed to be working together to resolve whatever problems may have precipitated the petition. Within 30 days of taking the child out of the home, DFCS must file a case plan with the court which describes what the problems are, how they will be addressed by the parents and by DFCS, and what the plan for the child is (short-term placement, long-term placement, services to be provided, etc.). If the disposition occurs before the 30 days has expired, DFCS may present a case plan at the dispositional hearing or may be ordered to develop one. Some courts set the date for the case plan meeting at the court hearing and order the parents to attend.

 

DFCS may decide that the situation is so egregious that the child can never be placed back in the home, regardless of what services may be provided or what actions may be taken by the parents. In that situation DFCS will file a non-reunification plan instead of a case plan. O.C.G.A. § 15-11-58 (commonly referred to as Senate Bill 611, the legislative bill that amended this code section to allow the filing of non-reunification plans). The non-reunification plan must describe what the problems are, why the problems will never be resolved, and what the short-term and permanent plans for the child are. If a non-reunification plan is filed, a hearing must be held on the plan within 30 days of the date it is filed, regardless of the timing of the adjudicatory hearing.

 

Assuming that deprivation is found and a case plan is presented at the disposition hearing, the court may decide to give custody of the child to the parents, to DFCS or to any other custodian of the child. O.C.G.A. § 15-11-55. If the court gives custody to anyone other than DFCS, the court may do so subject to conditions or limitations ordered by the court. If the court gives custody to DFCS, the court may not tell DFCS where to place the child, but the court may at any time review the placement DFCS has chosen and may order DFCS to change the placement. O.C.G.A. § 15-11-55(c).

 

If the child is placed in the custody of DFCS, the order awarding such custody will expire 12 months from the date the child was removed from the home. The court, or a Citizen Review Panel, must review the child's case within 90 days of the dispositional order, but not later than 6 months from the time the child was originally taken out of the home. Such reviews must occur every six months thereafter, as long as the child remains in foster care and is not free for adoption. If the parents' rights to the child are terminated, such reviews are only required annually and are conducted by the judge.

 

As the 12 month order nears expiration, DFCS must decide whether the conditions in the home have been remedied to the point at which it is safe to return the child to the home. If DFCS thinks the parents are not yet able to safely care for the child, but that that more time and more services will lead to the return of the child to the home, DFCS may file a motion to extend custody. DFCS may also file a motion to extend custody along with a non-reunification plan if DFCS believes that nothing will lead to the return of the child to the home, but also believes that termination of the parents' rights is not appropriate at the current time. In the alternative, DFCS may file a petition to terminate the parents' rights to the child.

 

Laws and policies are changing to focus on placing children in permanent homes as quickly as possible. This is obvious in the statutory changes providing for time-limited orders and frequent court reviews, and is becoming more noticeable in practice. Courts want to know early in the process what the long-term permanent plan for a child is and are allowing parents less and less time to demonstrate their willingness to properly parent their children. When parents cannot demonstrate substantial progress toward responsible parenthood within a year or less, courts are becoming less reluctant to free children for adoption so that they can grow up in a permanent home. Participants in these proceedings should keep in mind that a "permanent home" for a child is not limited to the birth home or an adoptive home; a permanent placement may take many forms, including: with parents, with a guardian, in long-term foster care while maintaining a relationship with the parents, in an independent living program, with an adoptive family.

 

"Permanency" is a misleading word in the deprivation context because even though permanency may be achieved, the court case may remain open for years. This can cause confusion regarding the extent of an attorney's involvement in these cases. Actual closure is achieved in a few situations. If the child is returned to the home, the juvenile court case is closed (although it may continue with some supervision for a period of time before being closed). If the child is adopted, the case is closed. If a temporary custody order is allowed to expire, the case is technically closed because the court loses jurisdiction. When a child turns 18 without requesting continued services, the case is closed. Most other outcomes mean that the case continues as an ongoing case within the juvenile court system.

 

There are countless variations on the "basic deprivation case" fact scenario described above. The above fact pattern, however, describes the flow of a deprivation case as shown on the following

 

 

 

[INSERT FLOW CHART OF A DEPRIVATION CASE]

 

 

B. Juvenile Court System of Georgia

 

 

Just as there are many variations of a basic deprivation case, there are many variations of the forum in which these cases are brought. This manual attempts to address issues applicable to all juvenile courts in Georgia, while respecting the fact that practice varies widely with each court. Georgia does not have a unified court system and currently does not provide state funds for the operation of juvenile courts. O.C.G.A. § 15-11-18 provides for the establishment of a juvenile court in each county and calculates the amount the state shall contribute toward the juvenile court judges' salaries, but funds for the state contribution to these courts have never been appropriated. As a result, the burden of providing for the protection of children through the court system has rested on the individual counties. In 1998, each of the 159 counties in Georgia has addressed this challenge in a manner best suited to each jurisdiction, resulting in 22 full-time juvenile courts, 42 counties with cases heard by part-time juvenile court judges, 37 counties with cases heard by an associate juvenile court judge or other designee under the supervision of a superior court judge, and 58 superior court judges hearing juvenile court cases. After the recent passing of the juvenile court funding bill HB 182, 45 of the 48 circuits are applying for state funding; of the 14 circuits that had superior court judges doing juvenile court, all but 2 have appointed one or more juvenile court judges for a total of 17 new judges since prior to the passing of HB 182. Of those, 11 are part-time and 6 are full-time; five part-time judges went full-time; two circuits are considering the appointment of another judge, bringing the number of judges in those circuits to 3; which would be a first in Georgia for a circuit to have more than 2 judges(excluding associates of course). (Information provided by CJCJ, Nov. 2001). As of January 2005, there are 149 members on the Council of Juvenile Court Judges in Georgia: 49 full-time juvenile court judges, 42 part-time juvenile court judges, 30 associate juvenile court judges (full and part-time), 6 superior court judges who exercise juvenile court jurisdiction, 17 pro tempore judges, and 5 senior judges. (CJCJ website http://www.georgiacourts.org/councils/cjcj/index.htm)

 


As expected, local procedures (DFCS and court) vary considerably depending on the jurisdiction. The juvenile courts, the Supreme Court of Georgia, and various state agencies are working to improve consistency in the way deprivation cases are handled. This manual is one result of those efforts.

 

C. Related Proceedings in Other Forums

 

 

In addition to knowing how the juvenile court system is configured, it is important to know how juvenile court cases are related to cases in other courts. The following is a list of actions in the juvenile court or other courts which may be related to ongoing juvenile court deprivation cases:

  • superior court custody matters
  • probate court guardianship
  • superior court adoption proceedings
  • superior court domestic matters
  • state court or superior court domestic violence proceedings
  • superior court criminal prosecution
  • administrative law proceedings related to benefits, disabilities, or educational services
  • juvenile court delinquency or unruly proceedings

 

O.C.G.A. § 15-11-30.1

 

 

D. Philosophy of Juvenile Court

 

 

The development of the juvenile court, from the first child abuse "case" brought by the Society for the Prevention of Cruelty to Animals, to the "first" juvenile court in Chicago, to the current debate surrounding the abolishment of the juvenile court altogether, is the subject of many excellent articles and books. For this introductory section, a brief explanation of why children are handled in separate courts will suffice. Readers are encouraged to explore this topic more fully on their own.

 

The original juvenile courts were developed along what has come to be called a "treatment model." The belief underlying this model is that children committing improper acts are not "criminals" but are children with problems who need "treatment and rehabilitation." The juvenile court was established so that children could receive services toward this end under the "supervision" of the court using its power as parens patriae to order such intervention. The juvenile court's involvement in the lives of children who are abused and neglected has gone through several phases just as the court itself has. The overarching purpose of the court has remained constant: the protection of children. However, the court's approach to protecting children has shifted. For many years the goal of child protective agencies has been to put families back together (reunification). Courts were trying to treat and rehabilitate entire families, not just individual children. In recent years the focus of courts, social service agencies, and child advocates has shifted toward providing for the individual needs of the children over the needs of the family unit. This shift has culminated in the passage of the federal Adoption and Safe Families Act of 1997 (P.L. 105-89), in November, 1997. This law modifies existing federal legislation regarding foster care so that reasonable efforts to reunify families are not always required and the provision of reunification services is limited to the 15 months following the child's placement in foster care. Additionally, if a child has been in foster care 15 out of the most recent 22 months, states are directed to file petitions to terminate parental rights unless the state has placed the child with a relative; the state has documented a compelling reason for determining that terminating parental rights would not be in the best interests of the child; or the state has not provided appropriate reunification services, if such services were warranted. Finally, the law requires a permanency hearing to be held after a child has been in foster care for 12 months.

 

In recent years, and particularly since the appropriation of federal funds to examine this issue (Omnibus Budget Reconciliation Act of 1993, P.L. 203-66), there has been increased involvement in the national movement to improve court practice in child abuse and neglect cases. Toward this end, the National Council of Juvenile Court and Family Court Judges has developed and published RESOURCE GUIDELINES, Improving Court Practice in Child Abuse and Neglect Cases, a manual describing procedures and resources which can assist judges in making the critical determinations necessary in these types of cases. Throughout this manual the RESOURCE GUIDELINES will be referenced as GUIDELINES. The key principles underlying the guidelines are:

  1. the need for comprehensive and timely judicial action in child welfare cases;
  2. the need to assure safe and permanent homes of abused or neglected children;
  3. the prominent role of the judiciary in this process;
  4. the avoidance of unnecessary separation of children and families;
  5. the need to make reasonable efforts to safely reunify families that have been separated;
  6. the need to quickly find permanent homes for children when reunification is not feasible;
  7. the need to make timely decisions in child abuse and neglect litigation;
  8. the special obligations on juvenile and family court judges to oversee case progress.

 

GUIDELINES, pp. 12-14.

 

E. Federal Legislation

 

 

As independent as Georgia's juvenile court system may appear to be, state laws addressing deprivation cases are heavily influenced by federal law. The Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272) imposed many requirements on state juvenile courts receiving federal money. These requirements include evaluations of social services agencies' reasonable efforts to prevent removal of children and to reunite families; periodic reviews of foster care cases; adherence to timelines for permanency planning decisions; procedural safeguards for placement and visitation. GUIDELINES, p. 11. The Child Abuse Prevention and Treatment Act of 1974 (P.L. 93-247) (CAPTA) also heavily influences state handling of child abuse and neglect cases. This law requires states receiving federal funds for the prevention of child abuse and neglect to provide a GAL for every child involved in such proceedings. In 1993, Congress passed additional legislation affecting juvenile courts. In the Omnibus Budget Reconciliation Act of 1993, Congress allocated funds for grants to states that agreed to study how their courts handled abuse and neglect cases and to implement improvements in the process. P.L. 203-66; 45 C.F.R., Part 92. Georgia is participating in this national project, referred to as the Court Improvement Project. The Supreme Court of Georgia created the Child Placement Project within the Administrative Office of the Courts to conduct the study and implement the resulting recommendations. This manual and the collaborative cross-training are both products of this project.

 

A new piece of federal legislation which will again reshape some of Georgia's laws was enacted in November, 1997. The federal Adoption and Safe Families Act of 1997 (P.L. 105-89) changes some of the primary requirements of P.L. 96-272. The first major change contained in (P.L. 105-89) eases requirements that social service agencies make reasonable efforts to preserve and reunify families. Reasonable efforts no longer need to be made in certain instances, including when a parent has subjected the child to "aggravated circumstances" and when the parent's rights to another child have previously been terminated. If reunification is the initial goal, family reunification services are to be provided, but they are now called "time-limited family reunification services" and only need to be provided for the 15 month period following the child's placement in foster care. If a state determines that reasonable efforts need not be made, a permanency hearing must be held within 30 days.

 

Another major change is a shift in philosophy regarding the most appropriate placement for a child. Previously, the statute required reunification efforts to the greatest extent possible before grounds for termination would be found to exist. The emphasis is now on finding a permanent home for the child as early in the process as possible. Toward this goal, the statute now requires states to file for termination or join in a termination action certain circumstances exist. The statute provides that if a child has been in agency foster care for 15 of the most recent 22 months, if the child is an abandoned infant, if the parent has killed another child or has seriously injured the child or a sibling, the state shall file a petition to terminate the parental rights, unless:

  1. the state has placed the child with a relative,
  2. the state has documented a compelling reason for determining that terminating parental rights would not be in the best interests of the child, or
  3. the state has not provided appropriate reunification services, if such services were warranted.

 

A third major change is the way time in foster care is measured. The old statute measured time from the child's initial placement. The statute now reads that a child is "considered to have entered foster care on the earlier of the date of
the first judicial finding that the child [is deprived (i.e. adjudication)], or the date 60 days after the date on which the child is removed from the home."

 

A fourth change is a new requirement that foster parents, preadoptive parents, or relatives providing care for a child must be provided with notice of, and an opportunity to be heard in, any reviews or hearings concerning the child. Such notice does not mean that any of these people become a party to the proceeding solely on the basis of having notice and an opportunity to be heard.

 

Another change reflects the shift in emphasis from reunification to permanency. The law previously provided for a dispositional hearing after a child was in foster care for 18 months. The purpose of this hearing was to determine the final disposition of the case. The law now requires a permanency hearing after the child has been in foster care for 12 months (using the new calculation for time in foster care). The purpose of the permanency hearing is to finalize 'the permanency plan for the child.

 

In addition to child welfare legislation, there are many federal laws which affect juveniles in deprivation cases, including but not limited to: Individuals with Disabilities Education Act, 20 U.S.C. § 1400(c); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); Americans With Disabilities Act, P.L. 101-336; Personal Responsibility and Work Opportunity Act of 1996; and Supplemental Security Income laws (42 U.S.C. § 1382 and 20 C.F.R. § 416.900 et. seq.). While each of these pieces of legislation is a specialized area of practice in itself, lawyers in juvenile court should, at a minimum, know when these federal laws are implicated in a juvenile court case. Recognizing that a federal law may be applicable in a situation, knowing where to find the law, and knowing who specializes in that area are useful tools for effective advocacy.

 

III. Juvenile Court Participants

 

 

This chapter will describe the primary persons involved in deprivation proceedings and will answer the following questions:

  • Who is this person?
  • What is his or her purpose in a juvenile court case?
  • What rights or duties does this person have with respect to the proceedings?

 

 

The juvenile court is similar to other courts in that each case involves "parties." However, the definition of "parties" goes beyond the "traditional" black letter definition which generally includes only plaintiff and defendant. Proper parties to a deprivation action include the child, parents, guardians, a legal caretaker or other custodian of child, guardians ad litem, and other "proper or necessary parties" including CASA, DFCS and DHR workers, as well as counsel for the above, are proper parties in deprivation cases. O.C.G.A. § 15-11-39(b).

 

A. Judge

 

1. Who is this person?

 

 

As in other courts, the judge is the person who presides over the proceedings and issues the rulings. However, the judge in deprivation proceedings is much more than that. The judge is considered the gatekeeper of the deprivation process because "juvenile and family court judges, the gatekeepers of our nation's foster care system, must ultimately decide whether families in crisis will be broken apart and children placed in foster care or placement can be safely avoided..." (Endorsement of RESOURCE GUIDELINES by the Conference of Chief Judges, August 3, 1995)

 

2. What is his or her purpose in a juvenile court case?

 

 

The judge has many purposes in addition to presiding over the court proceedings. Unlike other courts, in juvenile court the judge may be involved in a case for years, and during those years the judge serves as the "case manager," in the sense that the judge makes the decisions regarding what is happening in each stage of the case. As a "case manager," the judge must ensure that DFCS complies with state and federal requirements and that cases are processed within the appropriate time frames. Most importantly, final responsibility for the protection of each child rests with the judge making the decisions.

3. What rights or duties does this person have with respect to the proceedings?

 

 

Juvenile court judges have broad discretion in performance of their many duties, some of which are listed below:

  • review and confirm findings and recommendations of associate juvenile court judges O.C.G.A. § 15-11-21.
  • question any witness called by any party for the purpose of determining the truth T.L.T. v. State, 133 Ga. App. 895 (1975)
  • determine who may be admitted to or excluded from a proceeding, including the child O.C.G.A. § 15-11-78.
  • question a child in chambers without the presence of counsel if there are no objections In re R.R.M.R., 169 Ga. App. 373 (1983)

 

One note about the judge: Juvenile court has a tendency to be less formal than other courts. This informality can be misleading because attorneys may be less rigid in curtailing their discussions of cases. Attorneys should be especially conscious that they do not violate any client confidences in discussions (with other parties or the judge) to "work out a plan" or in any other situation, and that casual conversation with judges does not amount to ex parte communications about any pending case matters.

 

 

 

B. Child

 

1. Who is this person?

 

 

The child is the central figure in a deprivation case and is often referred to as "the subject of the proceedings." The involvement of the child in the court proceedings depends in part on the age and developmental abilities of the child. It also depends on the nature of the allegations and the litigiousness of the proceedings.

2. What is his or her purpose in a juvenile court case?

 

 

It is difficult to describe the child's "purpose" in a case other than to say the child is to be protected. The child is involved because everything that happens is directed toward the court ordering a 'solution' that is in the best interests of the child, including protection from physical and emotional harm, and placement in a permanent home.

3. What rights or duties does this person have with respect to the proceedings?

 

 

A child is generally considered a "party" to a deprivation proceeding, although debate continues to surround this issue. (See O.C.G.A. § 15-11-6 and O.C.G.A. § 15-11-9). When the child is considered a party to the proceedings, the child has the same rights with respect to deprivation proceedings as other parties, including those listed below:

  • The right to representation: Every child in a deprivation case in Georgia is entitled to representation. (O.C.G.A. § 15-11-49(c)(4); O.C.G.A. § 15-11-6(b); O.C.G.A. § 15-11-9; 76 Op. Atty Gen. 131 (1976). Neither federal nor state law requires that such representation be by a lawyer. Section 15-11-6(b) states that "counsel must be provided for a child not represented by his parent, guardian, or custodian," emphasis added and section 15-11-9 states that the "court...shall appoint a guardian ad litem for a child who is a party to the proceeding if he has no parent, guardian, or custodian appearing on his behalf...," emphasis added. Both statutes provide for the appointment of counsel or a guardian when the interests of the child conflict with the interests of any guardian, custodian, or parent involved. The office of the Attorney General has issued an opinion stating that in a deprivation proceeding, the child's interests and a parent's interests are always adverse because of the nature of the proceedings; therefore appointment of a guardian is always necessary. 76 Op. Atty Gen. 131 (1976). The statutes appear to allow the court discretion regarding whether the guardian will be an attorney guardian ad litem, a non-attorney guardian ad litem, or an attorney as counsel. An exception to this discretion is stated in O.C.G.A. § 15-11-98, "In any proceeding for terminating parental rights or any rehearing or appeal thereon, the court shall appoint an attorney to represent the child as his counsel and may appoint a separate guardian ad litem or a guardian ad litem who may be the same person as his counsel," (emphasis added).
  • The right to introduce evidence and call witnesses on his/her behalf as well as cross examine adverse witnesses. O.C.G.A. § 15-11-7(a).
  • The right to testify at all stages of the proceedings. A.C.G. v. State, 131 Ga. App. 156 (1974).
  • The rights of parties are guaranteed by the due process clause of the Fourteenth Amendment. In re L.L.W., 141 Ga. App. 32 (1977).

 

When children are involved, their rights must be upheld with respect for their developmental age and abilities.

C. Attorneys for children

1. Who is this person?

 

 

In the majority of Georgia jurisdictions, attorneys who represent children are appointed from lists of attorneys willing and qualified to take such appointments. More and more juvenile courts had been requiring that attorneys provide certification of training in juvenile court proceedings as a qualification for appointment to this list. Attorneys should check with individual courts on this matter. In some counties the juvenile court may enter into a contract with a firm or individual attorneys to represent all children in deprivation proceedings. A few counties have attorney guardians ad litem who work for the court full time representing all the children in deprivation proceedings.

 

However, the appointment of attorneys for children will likely change because the federal legislation that linked federal funding to the appointment of a GAL in child abuse and neglect judicial proceedings was recently amended. The Child Abuse Prevention and Treatment Act (CAPTA), P.L. 93-247, now requires that the GAL appointed, whether it is a Court Appointed Special Advocate (CASA) or an attorney, must have received training "appropriate" to the role. 42 U.S.C. § 5106(b)(2)(4)(xiii). The law does not elaborate as to what type of training constitutes "appropriate." However, in order to continue to receive federal funding, Georgia's juvenile courts will need to make sure that any attorney, CASA, or other GAL appointed to represent a child is properly trained for their role.

 

2. What is his or her purpose in a juvenile court case?

 

 

When an attorney is appointed to represent a child in a deprivation case in Georgia, the attorney is usually serving as a guardian ad litem for that child, in which case the attorney is appointed as an officer of the court to represent the best interests of the child. (See O.C.G.A. § 15-11-9). However, there is a general understanding in most courts that even if the attorney is representing the best interests of the child, the attorney will convey the child's wishes to the court, or will provide for the child to do so him/herself.

 

The role of the guardian ad litem, hereinafter "GAL," is addressed extensively in the Attorney and Volunteer Guardian Ad Litem Manual in Section II. This section addresses a different role of the attorney: that of attorney as counsel. Attorneys are rarely asked to perform this role in deprivation proceedings. An attorney serving as counsel for a child advocates for the client's wishes rather than the for what is in the best interest of the child. This can be a difficult role for many attorneys who may believe that what the child wants is not the best thing for the child in the long run. An excellent guide to the duties of an attorney representing a child client can be found in the ABA Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases. (Hereinafter cited as Standards, adopted by the ABA in 1996). The standards define a child's attorney as "a lawyer who provides legal services for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult client." (Standard A-1). One item emphasized in the ABA Standards and in other practice manuals is that attorneys must provide "developmentally appropriate" representation, meaning "that the child's attorney should ensure the child's ability to provide client-based directions by structuring all communications to account for the individual child's age, level of education, cultural context, and degree of language acquisition." (Standard A-3).

 

The two situations in Georgia that require an attorney serving as counsel both arise with regard to termination of parental rights hearings. O.C.G.A. § 15-11-98 requires the appointment of an attorney as counsel "in any proceeding for terminating parental rights...." O.C.G.A. § 15-11-58(k) indicates that when DFCS has not filed a petition for termination of parental rights but the guardian ad litem determines that a termination of parental rights is appropriate, the GAL is authorized to file such a petition. In re J.S.C. clarifies that once the petition is filed the GAL becomes the attorney for the child and a new GAL must be appointed. In re J.S.C., 182 Ga. App. 721 (1987).

 

A usual occurrence in Georgia is for an attorney to be appointed to serve as both GAL and counsel for the child. Opinions vary as to whether this dual role is inherently conflicting. Attorneys serving in this dual capacity should remain mindful of the possibility of a conflict, and should remember that if they foresee a conflict, they may step into the role of attorney as counsel and may request the appointment of a separate GAL. Dawley v. Butts Co. DFCS, 148 Ga.app. 815 (1979). When an attorney requests the appointment of a separate guardian ad litem the attorney need not disclose the facts supporting the request for an appointment; a statement that a conflict will arise if the attorney continues to represent the child in a dual capacity, or that there is a need for the child to be represented by both an attorney and a guardian ad litem, should suffice.

3. What rights or duties does this person have with respect to the proceedings?

 

 

The following list of duties applies to all attorneys representing clients in juvenile court. (This list is compiled from a variety of sources including RESOURCE GUIDELINES, ABA Standards). This list contains common-sense elements of the practice of law in most subject areas, but is worth including in this manual because the less formal environment of the juvenile court and the age of the clients tend to mislead attorneys into thinking that their obligations as attorneys representing juvenile court clients are substantially different than their obligations as attorneys representing clients in other forums. Some of the duties may only apply to children or parents, but in the interest of space, this list is only printed once in this manual.

  1. Actively participate in every critical stage of the proceedings, including negotiations, discovery, pretrial conferences, reviews, and hearings.
  2. Conduct a full interview with the client
  3. Counsel the child, in an age-appropriate manner, concerning the subject matter of the proceedings, the child's rights, the court system, the proceedings, the lawyer's role, and what to expect in the legal process.
  4. Inform other parties and their representatives that you are representing the child and expect reasonable notification prior to case conferences, changes of placement, and other changes of circumstances affecting the child and the child's family.
  5. Thoroughly investigate the case at every stage of the proceedings.
  6. If the child has been removed from the home determine:
  7. what contacts DFCS has made with the parents and the child since the initial placement
  8. what efforts were made to prevent the removal
  9. what alternative placements (i.e. relatives, friends) were explored
  10. what efforts have been made to reunify the family since the child was taken.
  11. Interview key witnesses, including DFCS workers, key service providers to the child and family, representative of other key agencies, and others with knowledge of the case. Such witnesses may include neighbors, school personnel, clergy, doctors, employers, and relatives.
  12. Review all documents that have been submitted to the court.
  13. Review the agency's file (if possible) and any pertinent law enforcement agency reports to evaluate the case and to ensure that the agency has complied with its own procedures and regulations.
  14. When necessary to protect your client's interests, introduce and cross-examine witnesses, file and argue motions, develop dispositional proposals for the court and file appeals.
  15. Obtain or subpoena necessary records, such as school reports, medical records, and DFCS records.
  16. If allegations involve sexual abuse, find out whether the child participated in a videotaped interview. If so, obtain a copy and transcribe it.
  17. If allegations involve physical abuse, find out if photographs of the injuries exist, where they are located, and what the chain of custody is. If possible, obtain copies.
  18. When necessary, arrange for independent evaluations of children or parents.
  19. Identify appropriate resources for the child and the family, including any relatives or friends who may be willing to care for the child.
  20. Develop a theory and strategy of the case to implement at hearings, including factual and legal issues.
  21. If at all possible, attend treatment, placement, administrative hearings, other proceedings involving legal issues, and school case conferences or staffings concerning the child.
  22. Attempt to reduce case delays and ensure that the court recognizes the need to quickly achieve permanency for the child.
  23. Stay in regular contact with clients, writing letters and making telephone calls when necessary and using tickler files.
  24. If at all possible, meet with the client prior to each court proceeding.
  25. Continue to remain in contact with the agency and monitor case progress between court hearings.
  26. Discuss options related to an appeal if appropriate and represent the client on appeal.

 

For additional guidance on the role of attorneys, see IJA-ABA Juvenile Justice Standards Annotated: A Balanced Approach, Standards Relating to Counsel for Private Parties; and ABA Standards of Practice for Attorneys Who Represent Children in Child Abuse and Neglect Cases. Also, the Code of Professional Responsibility found at the back of the State Bar Directory and Manual are applicable to attorneys in juvenile court in the same way that they are applicable to attorneys in other courts. It is wise to review these standards and cannons periodically.

 

D. Guardian Ad Litem (GAL)

1. Who is this person?

 

 

In the majority of Georgia jurisdictions, attorney guardians ad litem are appointed from lists of attorneys willing and qualified to take such appointments. More and more juvenile courts are requiring that attorneys provide certification of training in juvenile court proceedings as a qualification for appointment to this list. Attorneys should check with individual courts on this matter. In some counties the juvenile court may enter into a contract with a firm or individual attorneys to represent all children in deprivation proceedings. A few counties have attorney guardian ad litems who work for the court full time representing all the children in deprivation proceedings. A guardian ad litem may be a lay person (non-attorney) who is appointed as an officer of the court to represent the best interests of the child.

 

GALs may also be non-lawyers. Georgia CASA develops new CASA programs and supports 41 existing local CASA programs that currently serve 96 counties. (Georgia CASA, October 2004). CASA is a national program in which volunteer citizens are specially trained to represent the best interests of children in juvenile court abuse and neglect proceedings. After completing 40 hours of training, CASAs become sworn officers of the court. A complete discussion of the role of CASAs and the role of GALs can be found in the law guardian section of this manual. The structure of CASA programs varies in each county. In some courts CASAs participate in court as witnesses; in some courts CASAs are represented by counsel; in some courts CASAs work closely with the GAL attorney and submit a written report to the court but do not participate in court proceedings; and in some courts CASAs actively participate in the court process.

2. What is his or her purpose in a juvenile court case?

 

 

The Guardian ad Litem or CASA is "an officer of the court who is appointed to protect the child's interests without being bound by the child's expressed preferences." (ABA Standard A-2).

3. What rights or duties does this person have with respect to the proceedings?

 

 

A complete discussion of the duties of a Guardian ad Litem or a CASA are found in the Guardian Ad Litem Manual at Section II. The list of duties found under "Child's Attorney" is applicable, with modification, to attorney guardians ad litem just as it is to other attorneys in juvenile court.

 

E. Parents

1. Who is this person?

 

 

In deprivation cases the terms "mother" and "father" become much more complicated than in everyday life. There are fewer mutations of mother than of father. A biological mother is the female who gives birth to a child. A "legal mother" is the female who is either the biological or adoptive mother of the child and who has not surrendered or otherwise lost her parental rights to the child. O.C.G.A. § 15-11-2(10.2).

 

Fathers can be legal fathers, biological fathers, or putative fathers. The words attached to "father" are more than merely descriptive; they define the rights of the father with regard to custody of the child.

 

A biological father is the man who is genetically linked to the child. Following the 1997 legislative session, a man whose sole connection to a child is genetics no longer has legal rights to the child. The biological father must take action to become a legal father before his rights to custody (including notice of related proceedings) take effect. A biological father has the right to notice of termination proceedings, but only under certain circumstances, discussed under "termination of parental rights" and in the law guardian manual.

 

If the father does not pursue his legitimation petition to finality or if the court concludes the biological father is not the really the biological father, the man will lose all rights to the child. However, at the same time the legislature placed more responsibility upon biological fathers, it made the process of legitimating a deprived child less complicated. O.C.G.A. § 15-11-28(e) was amended to provide the juvenile courts with concurrent jurisdiction with the superior courts to hear legitimation proceedings if the matter is transferred to the juvenile court or if there is a pending deprivation proceeding involving the child in question.

 

A "legal father" is a male who:

  1. has legally adopted a child;
  2. Was married to the biological mother of that child at the time the child was conceived or born unless his paternity was disproved in a court hearing;
  3. married the legal mother of the child after the child was born and recognized the child as his own, unless paternity was disproved in a court hearing;
  4. has been determined to be the father in a paternity hearing;
  5. has legitimated the child.

 

 

All of these constitute a legal father so long as he has not surrendered or had his parental rights previously terminated.

 

O.C.G.A. § 15-11-2(10.1)(A-E).

 

A "putative father" is a male who is named as the father of a child by the biological mother, or who declares himself the biological father of a child, but for whom paternity has not conclusively been established. Once paternity is established, the putative father becomes the biological father.

 

It is possible for a single child to have more than one putative father, or even to have a legal father and a putative or biological father. As can be seen in the definition above, a legal father does not need to prove paternity to obtain the status of "legal father." Each of the fathers who are entitled to receive notice of deprivation proceedings is also entitled to court-appointed counsel if he is indigent. Juvenile courtrooms can get crowded when the parentage of a child is in dispute.

2. What is his or her purpose in a juvenile court case?

 

 

Most parents in deprivation proceedings would probably say that their goal in juvenile court proceedings is to get their children back. The job of the attorney representing the parent is to help the parent achieve this goal. As the client, the parent is to actively assist the attorney in representing the parent.

3. What rights or duties does this person have with respect to the proceedings?

 

 

In addition to the rights parents have as parties (see listing of rights of children, above), parents have constitutionally protected rights to parent their children, some of which are mentioned below:

  • [T]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. (Santosky v. Kramer, 455 U.S. 745, 753 (1982); and see Griswold v. Connecticut, 381 U.S. 479 (1965) (parents have a constitutionally protected right to raise their children.); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (government may only interfere with parents' right to raise children if parents are unwilling or unable to care for their children). The Supreme Court has held, however, that "the family itself is not beyond regulation in the public interest, as against a claim of religious freedom, and neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth's well being, the State as parens patriae may restrict the parent's control...the right to practice religion freely does not include liberty to expose the ...child to ill health or death." (Prince v. Massachusetts, 321 U.S. 158 (1944); and see Wisconsin v. Yoder, 406 U.S. 205 (1972) (parents' power may be limited if it appears that parents' decisions will jeopardize the child's health or safety or may result in significant social burdens).
  • Indigent parents have a right to court-appointed counsel at all proceedings, including appeals, and a right to paupered transcript on appeal if indigent. (O.C.G.A. § 15-11-6(b); Nix v. DHR, 236 Ga. 794 (1976). The Georgia Juvenile Code defines an indigent person as "one who at the time of requesting counsel is unable without undue financial hardship to provide for full payment of legal counsel and all other necessary expenses for representation." O.C.G.A. § 15-11-6(a).
  • Authority to consent to the child's adoption, even if the child has been temporarily transferred to the custody of DFCS. Skipper v. Smith, 239 Ga. 854 (1977).

 

F. Attorney(s) for parent(s)

 

 

Each parent, guardian, and custodian, may have his or her own attorney. "If the interests of two or more parties conflict, separate counsel shall be provided for each of them." (O.C.G.A. § 15-11-6(b)).

1. Who is this person?

 

 

In the majority of Georgia jurisdictions, attorneys who represent parents are appointed from lists of attorneys willing and qualified to take such appointments. More and more juvenile courts are requiring that attorneys provide certification of training in juvenile court proceedings as a qualification for appointment to this list. Attorneys should check with individual courts on this matter. In some counties the juvenile court may enter into a contract with a firm or individual attorneys to represent all parents in deprivation proceedings.

2. What is his or her purpose in a juvenile court case?

 

 

The first rule for an attorney in juvenile court is to know who the attorney represents. This sounds basic, but there are many misconceptions about the purpose of juvenile court and about the parties in juvenile court. An attorney for a parent is bound to zealously advocate for the rights and interests of the parent. Some attorneys have difficulty with this role because they believe the purpose of juvenile court is to protect children and that all attorneys are in court to serve that ultimate purpose. It may help to remember that the juvenile court is a forum in the adversarial system. "In the final analysis, if you work to ensure the integrity of the judicial process, you ultimately safeguard the interests of the child." Representing Parents in Child Protection Cases, Lisa A. Granik, page 4.

 

No matter how casual the proceedings may seem, or how easy it may appear to "work things out" for the best interests of the child, the ultimate sanction the parent faces is the permanent dissolution of his or her parental relationship with his or her child. Even a "simple case" of neglect may lead to serious consequences which cannot be predicted.

3. What rights or duties does this person have with respect to the proceedings?

 

 

A list of duties of the attorney can be found under "Child's Attorney," above. With some modification this list is applicable to all attorneys representing clients in juvenile court.

 

Attorneys representing parents should be aware of the potential for conflicts when representing parents. Sometimes, in what appears to be a "simple case," one attorney is asked to represent both parents in a deprivation proceeding. Keep in mind that even when the parents appear to be a unit (i.e. both named in a single petition, both have same "story"), they are separate individuals being named as individual respondents and although the case may appear to be "simple," you are, in effect, agreeing to represent co-defendants. Before accepting representation of two individuals review the Code of Professional Responsibility for the Georgia State Bar, especially those discussing "Interests of Multiple Clients." Also see IJA-ABA Juvenile Justice Standards Relating to Counsel for Private Parties, 3.2 Adversity of interests.

 

G. Department of Family Children Services caseworkers

1. Who is this person?

 

 

The DFCS caseworker, in consultation with a supervisor, is the person who makes the determination whether to file a deprivation petition. The allegations are reviewed by DFCS' attorney to ensure that they are legally sufficient to support a claim. The DFCS worker involved in the case may be a Child Protective Services (CPS) worker who made the initial home visit, s/he may be the placement worker who was assigned to the case after the child was removed from the home, or s/he may be a supervisor. Several different case workers may be involved in a single deprivation case because the expertise of each is necessary at different proceedings. For example, the CPS worker who assessed the conditions in the home and made the decision that they were unsafe for the child is the appropriate worker to testify at the 72-hour hearing to determine whether the child should remain out of the home until the full hearing. However, the CPS worker may be unnecessary in the review process because that worker may not have had contact with the child after the initial emergency placement. Sometimes the appropriate DFCS worker cannot be in court at the time of the hearing and another worker is sent instead so that a DFCS representative is available. If this worker does not have personal knowledge of the child or the family, this worker may not be able to testify regarding the case.

2. What is his or her purpose in a juvenile court case?

 

 

DFCS workers are involved in juvenile court proceedings because they are state agents charged with protecting children who are abused or neglected. The DFCS worker's goal is to find a safe permanent placement for the child as quickly as possible. This goal is not as clear as it sounds however, because DFCS must be making reasonable efforts to provide services to the family, and, at the same time, must be "collecting evidence" to support termination of parental rights, should that become necessary.

3. What rights or duties does this person have with respect to the proceedings?

 

 

The rights and duties of DFCS workers with regard to court proceedings are similar to those of other parties. The following information regarding the duties of DFCS workers in general may be more helpful to attorneys representing parents or children.

 

The role of DFCS workers as a whole is currently in flux as Temporary Assistance to Needy Families (TANF) policies are being implemented. TANF is Georgia's plan for implementing the provisions of the Personal Responsibility and Work Opportunity Act of 1996. (P.L. 104-193). There will probably be less change in the roles of workers assigned to deprivation cases than in other areas, but the responsibilities of these workers will change as the services they are able to provide change based on TANF.

 

Child Protective Services (CPS) is the unit charged w/ investigating allegations of child abuse and neglect. When a report is made to DFCS, a CPS worker is assigned to investigate the allegations. The CPS worker may decide whether the allegation is confirmed, unconfirmed, or unfounded. The CPS worker may visit the home directly or may visit the child(ren) at school. If the decision is made to take the child into protective custody, the case is assigned to a placement worker. This worker is responsible for developing a 30-day case plan with the parent(s). The role of this caseworker is becoming more critical because decisions regarding the permanent placement of the child are being made more quickly. O.C.G.A. § 15-11-58 now authorizes DFCS to submit a nonreunification plan at the start of a deprivation case. DFCS workers must be highly skilled to make a decision this serious and this permanent so early in the process.

 

The placement worker is the person who will likely develop the case plan and will work with the family to provide needed services to the parent(s) and child(ren). This worker will participate in periodic reviews of the case and, with the assistance of a supervisor, will ultimately make the decision whether the parents' rights should be terminated. DFCS is currently modifying the duties of caseworkers. Structured decision making, a method by which DFCS workers will determine what services can and should be provided to a family, may be implemented in the future. Courts and attorneys need to be aware of internal DFCS policies because those policies establish the parameters of DFCS services and of workers' duties. For example, it would not be a wise use of time for an attorney for a parent to develop a case plan to present to DFCS that requires the provision of certain services if DFCS policy no longer allows or requires such services to be provided.

 

It is to an attorney's advantage to know the roles and responsibilities of DFCS workers. Knowing which worker to ask for what information or assistance will increase the efficiency of the attorney and the provision of services or answers to the client. Knowing which workers are the keepers of which information also assists with trial preparation. Because of the structure of DFCS, an attorney must know which workers to question about what. A CPS worker's knowledge will rarely extend beyond the time the child was placed in foster care, and since that worker made the initial determination that the child was at risk, that worker will probably not provide any information that is favorable to reunification of the child with the parents. A supervisor may be called when the attorney is trying to show that a particular worker acted outside DFCS protocol, or to establish the outer parameters of what may be considered "reasonable" in terms of provision of services in a given county.

 

Attorneys should also be aware that county DFCS offices may have a high turnover rate among caseworkers, or that an understaffed office may not assign alternate workers to cover caseloads of workers who are out of the office on vacation, sick leave, or conferences. This means that an attorney should find out the extent of a caseworker's involvement in a case before questioning that caseworker on the stand.

 

 

For further information on DFCS policies and procedures, please see the CPS Policy Manual and Foster Care Policy Manual, which are available on the DHR ODIS website (http://www.odis.dhr.state.ga.us/3000_fam/FamilyChildren.htm).

 

H. Special Assistant Attorney General (SAAG)

1. Who is this person?

 

 

A SAAG is an attorney in private practice who has been appointed by the Office of the Attorney General to represent a state agency (DFCS) in juvenile court matters. In most juvenile courts there are only one or two SAAGs, although in some larger counties there may be more.

2. What is his or her purpose in a juvenile court case?

 

 

The SAAG is responsible for representing the interests of the state in civil child abuse and neglect proceedings. The SAAG ultimately answers to the Office of the Attorney General, but represents the county DFCS office.

 

3. What rights or duties does this person have with respect to the proceedings?

 

 

Much of the list under "Child's Attorney" applies to the SAAG as well, recognizing that the SAAG does not just represent an individual client; the SAAG represents a state agency.

 

In addition to the duties listed above, the SAAG is responsible for working closely with DFCS to ensure that all DFCS work is properly documented and to ensure that cases are moving in a timely manner toward a permanent disposition. The SAAG works with individual DFCS workers to prepare them for court when necessary and assists county DFCS offices with implementing state laws and DHR-DFCS policies. The SAAG is responsible for timely filings of all petitions and motions for DFCS and for preparing and presenting cases in court.

 

In most counties the SAAG does not participate in 72-hour hearings, in case planning sessions, or in periodic reviews. There does not appear to be a prohibition on the SAAG's involvement in these proceedings, however.

 

I. Other family members/ private petitioners

1. Who is this person?

 

 

O.C.G.A. § 15-11-38 allows any person "who has knowledge of the facts alleged or is informed and believes they are true" to file a deprivation petition. In some counties when a private citizen files a deprivation petition the court will not allow the case to proceed without DFCSinvolvement. Once DFCS becomes involved they often become the petitioner. In other cases private deprivations, often called "granny petitions" because they are often filed by grandmothers who are already caring for the children, are regular occurrences.

 

Sometimes a relative or family friend will file a petition when DFCS has already done so because the relative or friend wishes to obtain custody of the child. In these situations the court often dismisses the private petition, proceeds on the DFCS petition (probably on the theory that the "interest" of the petition is the protection of the child and this interest is protected by DFCS), and allows the friend or relative to participate as a party.

2. What is his or her purpose in a juvenile court case?

 

 

There are as many purposes behind the filing of private deprivations as there are individuals, but a common reason is that a relative is already caring for a child and wants to provide some stability to that arrangement (i.e. prevent mother from taking the child) or needs to have legal authority to enroll the child in school. Courts are reluctant to appoint counsel for relatives filing private petitions, but under Georgia law all indigent parties are entitled to court-appointed counsel at all stages of proceedings. O.C.G.A. § 15-11-6. The law does not limit the right to counsel to those proceedings in which DFCS is a party.

 

One type of private petition is not allowed in juvenile court. The Court of Appeals has held that deprivation proceedings between parents are prima facie custody matters which must be brought in the superior court. In re W.W.W., 213 Ga. App. 732 (1994). However, the Supreme Court clarified that each petition must be viewed on its own merits to determine if "it is actually a disguised custody matter [and] outside the subject matter jurisdiction of the juvenile courts." In re M.C.J., 271 Ga. 546, 548 (1999).

 

In many instances private deprivation petitions appear to be a means of ensuring stability for a child without having to utilize DFCS resources. The court's jurisdiction over these cases, however, is limited to 2 years, and if no further action is taken there is not "permanency" in the arrangement. O.C.G.A. § 15-11-58.1. If a private petitioner wishes to maintain custody beyond that time period, the person must file a Motion to Extend Custody. A hearing must be held on the motion prior to the expiration of the initial court order. The hearing is handled in the same manner regardless of whether DFCS or another person is the petition (see description of MTE under Section VI of this manual). In most courts there is no trigger to remind the relative that the order will expire so these orders often do expire without further action. By law, when the order expires, the parent once again has legal custody of the child because the juvenile court no longer has jurisdiction over the case.

 

One concern about private petitions is that court oversight is limited. When custody is given to DFCS the law requires periodic reviews of the case and limits the order to one year. These requirements promote actions to locate a permanent placement for the child. The law does not appear to require judicial review of deprivation cases in which DFCS is not involved, although the judge could order such reviews. Similarly, a home study is required before a child is placed by DFCS but a similar study is not required in private deprivations. Some courts will not place a child without a study though, so if DFCS is not involved in a case the court has to have someone conduct the home study.

 

Readers representing petitioners in private deprivation actions should note that the suggestions in this manual are aimed at defendants and not petitioners.

3. What rights or duties does this person have with respect to the proceedings?

 

 

The rights of a private party filing a deprivation petition are the same as those of other parties, as discussed above.

 

J. Other People

 

 

Brief mention should be made of other participants in the process:

  1. court clerk--responsible for keeping the court records and often the calendar; in larger courts the clerk provides a docket for calendar call
  2. judge's secretary--if the clerk does not schedule hearings, the secretary probably does
  3. citizen review panel--specially trained citizen volunteers who conduct periodic reviews of the cases of children in foster care in lieu of the judge. They present a report to the judge after each review with a summary of findings and recommendations.
  4. Court services workers- court personnel who may handle intake when a child is removed from the home or who may act as court investigators or court caseworkers in deprivation cases (rarely used in deprivation matters).

 

 

 

 

IV. Juvenile Court Procedures

 

 

This chapter will provide an outline of the procedural aspects of how a deprivation case comes to court, including jurisdiction, venue, notice and service, time limits, removal of the child from the home, and filing of pleadings. A more complete discussion of juvenile court procedure can be found in the Law Guardian Manual.

A. Jurisdiction

 

  1. Juvenile courts have exclusive jurisdiction over:

 

  • Deprivation actions involving children under 18
  • Proceedings for obtaining judicial consent for marriage, employment, or enlistment in armed forces
  • Actions for termination of parental rights, as well as actions for termination of the rights of the biological father who is not the legal father of the child (other than in connection with adoption proceedings...in which the superior courts have concurrent jurisdiction to terminate). See O.C.G.A. § 15-11-28(a)(2)(C).
  • Actions involving children who are under court's supervision or on probation
  • Proceedings related to prior notice of parent or guardian of a minor seeking an abortion

 

  1. Juvenile Courts have concurrent jurisdiction with superior courts over:

 

  • Custody and support cases transferred from Superior Court (O.C.G.A. § 15-11-28 (c)). This includes cases under the Uniform Child Custody Jurisdiction Act (O.C.G.A. § 19-9-40, et. seq.). (See also UCCJEA).
  • Legitimation petitions transferred from superior court
  • Legitimation petitions filed in juvenile court regarding a child who is the subject of a pending deprivation proceeding in that court at the time the legitimation petition is filed.
  • Guardianships
  • Name changes in conjunction with legitimation

 

  1. Juvenile Courts have NO JURISDICTION over deprivation allegations brought by one parent against another parent. Deprivation proceedings between parents are prima facie custody matters which must be brought in the superior court. In re W.W.W., 213 Ga. App. 732 (1994); In the Interest of M.A. and M.A., 218 Ga. App. 433 (1995). However, the Supreme Court clarified that each petition must be viewed on its own merits to determine if "it is actually a disguised custody matter [and] outside the subject matter jurisdiction of the juvenile courts." In re M.C.J., 271 Ga. 546, 548 (1999).
  2. Superior Court proceeding cannot "change into" a juvenile court proceeding in the midst of a hearing. In a parental custody action in superior court, the judge may not declare both parents unfit, turn the case into a juvenile court deprivation proceeding, award custody to DFCS, and incorporate a case plan into the custody order, without first notifying the parties that deprivation would be at issue and insuring that subject matter jurisdiction over deprivation is lodged in the juvenile court. This is true even in counties where the superior court judge also presides in juvenile court. Watkins v. Watkins, 266 Ga. 269 (1996)
  3. Juvenile Court can obtain emergency jurisdiction over nonresidents: the court can exercise emergency jurisdiction over a child whose home state is not Georgia under § 19-9-64(a) when such an exercise "is necessary...to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse." Also see In the Interest of M.M., 222 Ga. App. 313 (1996).
  4. Unless otherwise provided by law, all orders affecting a deprived juvenile terminate when the child reaches age 21; any orders affecting a deprived child after age 18 are in effect through the voluntary continuation of the juvenile in DFCS custody or other programs. O.C.G.A. § 15-11-58.1.

 

B. Venue

 

 

Places where a deprivation action may be commenced:

  • County in which the child is present when the action is commenced
  • County in which the child resides
  • A child need not be physically present in the county in which that child resides on the date of filing.
  • If superior court judge sits as juvenile court judge, hearings may be held in any county within the judicial circuit over which the judge presides.

 

 

O.C.G.A. § 15-11-29

 

C. Notice and Service

 

  1. For 72-hour detention hearing (O.C.G.A. § 15-11-49(c)(4)):

 

  • Reasonable notice, either oral or written, must be given to the child, and, if they can be found parents, guardian, or custodian
  • Notice must state time, place, and purpose of hearing
  • If parent, guardian, or custodian cannot be found, court shall appoint a guardian ad litem

 

  1. For other hearings (for service in TPR hearings, see section X infra), Summon shall be issued to:
  • Parents
  • Anyone with physical custody of child
  • Child if the child is 14 years old or older
  • Guardian
  • Guardian ad litem, and
  • Any other persons who appear to the court to be proper or necessary parties.

 

  1. If served by means other than publication, a copy of the petition shall accompany the summons. O.C.G.A. § 15-11-39(b).
  2. Personal service within Georgia: A resident parent is entitled to be served personally at least 24 hours before the hearing unless the parent cannot be found. O.C.G.A. § 15-11-39.1(a).
  3. Service by Mail within Georgia: If the parents' address is known or can be ascertained, the summons may be served by mailing or by registered or certified mail at least 5 days before the hearing.
  4. Nonresident service: non-residents are entitled to be served personally or by registered or by certified mail at least 5 days before the hearing. O.C.G.A. § 15-11-39.1.
  5. UCCJA mandates that notice of a proceeding under that act shall be served, mailed, delivered, or last published at least 30 days before any hearing. O.C.G.A. § 19-9-45(b).
  6. Publication:
  • If, after reasonable effort, a party cannot be found and a current address cannot be ascertained, service may be made by publication, in which case the hearing shall not be held earlier than 5 days after the date of the last publication. O.C.G.A. § 15-11-39.1(d)
  • Published summons shall indicate the general nature of the allegations and where a copy of the petition can be obtained. O.C.G.A. § 15-11-39(b). See O.C.G.A. § 9-11-4 and O.C.G.A. § 9-11-5.
  • Notice requirements and time limits must be strictly complied with. If notice and hearing requirements are not adhered to, the petition shall be dismissed without prejudice. Sanchez v. Walker County DFCS, 140 Ga. App. 175, (1976).

 

D. Time Limits

 

  1. 72 hours from removal to initial court hearing (except when time expires on week-end or holiday)
  2. 5 days from initial 72-hour hearing to filing of petition
  3. 10 days from filing of petition to adjudicatory hearing
  4. 30 days (or until adjudicatory hearing, whichever is less) from initial removal to filing of 30-day case plan
  5. 30 days from filing of non-reunification plan to non-reunification hearing
  6. 90 days from entering of dispositional order to first periodic review (but cannot be held later than 6 months after initial removal)
  7. 6 months from first periodic review second periodic review must occur
  8. 12 months from initial removal until court order expires

 

E. Removal of the child from the home (O.C.G.A. § 15-11-45, and O.C.G.A. § 15-11-47)

 

  1. If an initial allegation of deprivation is made directly to DFCS, DFCS may contact the police to facilitate an investigation and the preparation of an investigative report. Note that the investigative report should be included in subsequent petitions and complaints to provide a factual basis for removal.
  1. DFCS or the police must notify the court (or court designee) who must make a determination based on the facts presented as to whether the child should be removed from the home.
  2. The court may issue a verbal authorization for the child to be taken into protective custody if the court finds:
  • there are reasonable grounds to believe the child is suffering from illness or injury, or
  • the child is in immediate danger from his or her surroundings, and
  • removal from the home is necessary.
  • This authorization is often referred to as an emergency shelter care order. O.C.G.A. § 15-11-45(a)(4).
  1. Practical note: The removal of a child from the home usually occurs prior to the verbal authorization to do so. If DFCS or the police feel that a child is in immediate danger they will remove the child to a safe place and "with all reasonable speed" "promptly contact a juvenile court intake officer." O.C.G.A. § 15-11-47.
  2. Place of Detention (O.C.G.A. § 15-11-48):
  • A licensed foster home or home approved by court
  • A facility operated by a licensed child welfare agency or
  • A shelter care facility operated by the court
  • In a hospital, with relatives, or in other court-approved settings

F. Pleadings

 

  1. There are no filing fees in juvenile court.
  1. Complaint: The filing of a complaint is the most common way to initiate a deprivation action. URJC 4.1 states, ". . . [all] proceedings shall be initiated in the juvenile court upon the receipt of a written juvenile complaint form, petition, transfer from another court . . . which shall be submitted to the court and shall be referred to an intake officer of the court . . . in all cases in which a proceeding is initiated by other than a complaint, the form JUV-2 shall be completed by the person bringing the action and shall accompany the initiating document."
  2. Petition: Deprivation petitions may be filed by anyone who has knowledge of the facts alleged or is informed and believes they are true. The person filing the petition need not be a relative of the child, nor must their knowledge be first-hand. O.C.G.A. § 15-11-38. In In the Interest of A.V.B., 222 Ga.App. 241 (1997), the Georgia Supreme Court held a deprivation petition was properly filed against Dougherty County DFCS by the Georgia Advocacy Office, despite the fact that the GAO was not a parent, relative, or guardian ad litem. The court also held that the petition was not barred by sovereign immunity, since the relief sought was similar to injunctive relief and no damages were sought. The court does not officially take jurisdiction over the case until the petition has been filed. The petition itself is what officially commences a deprivation proceeding. See Longshore v. State, 239 Ga. 437 (1977).
  3. The deprivation petition must contain the following (O.C.G.A. § 15-11-38.1):
  • ordinary and concise language stating the facts demonstrating the basis for the parents' or custodians' alleged failure to provide proper parental care and control [merely reciting the statutory requirements is insufficient because it lacks adequate information to enable the parent to prepare a defense, In re D.R.C., 191 Ga. App. 278 (1989);
  • a statement that it is in the best interest of the child and the public that the proceeding be brought;
  • the name, age, and residence address, if any, of the child on whose behalf the petition is brought;
  • the names and residence addresses, if known to the petitioner, of the parents, guardian, or custodian of the child and of the child's spouse, if any; or similar information of relatives;
  • whether the child is in custody, the place of detention, and the time the child was taken into custody.
  1. Time Limits to File Petition (O.C.G.A. § 15-11-49(e); URJC 6.8):
  • If the child is in state custody, petition must be filed within 5 days of detention hearing
  • If the child is not in custody, must be filed within 30 days of detention hearing.
  • Failure to comply with these time limits shall result in dismissal without prejudice.
  1. No petition may be filed without endorsement by the court or the court's designee. The court or the court's designee must determine that "the filing of a petition is in the best interest of the public and the child," before a petition may be filed. O.C.G.A. § 15-11-37; URJC 4.2.
  2. Amendments: "A petition may be amended at any time prior to adjudication, provided that the court shall grant the parties such additional time to prepare as may be required to ensure a full and fair hearing." URJC 6.6.

 

 

V. Juvenile Court Practice

 

This chapter will provide information on how to effectively advocate for clients in the juvenile court system. There are many differences between advocacy in a superior court setting and advocacy in a juvenile court setting, not the least of which is the fact that the central figure is a child. Subsequent chapters will discuss each proceeding which may be encountered in juvenile court. Information in this chapter is applicable to each of the subsequent chapters.

 

The following "tools" of juvenile court practice will be mentioned or discussed:

  • Official Code of Georgia Annotated
  • Uniform Rules of Juvenile Court
  • Client Interviews
  • Discovery
  • Evidence

 

A. Official Code of Georgia Annotated (O.C.G.A.)

 

 

The first source of information for every attorney is Title 15 of the Georgia Code. This area of the law is being revised each year, so the statutes should be reviewed every time an attorney works on a juvenile court case. The other three primary Titles attorneys will use are Title 19, "Domestic Relations," Title 16, "Crimes and Offenses," and Title 49, "Social Services."

B. Uniform Rules of Juvenile Court (URJC)

 

 

The second source of information is the Uniform Rules of Juvenile Court; these rules address practice and procedure in juvenile court and contain samples of most of the forms and documents used in juvenile court proceedings.

 

C. Client Interviews

 

 

The next source of information is the client. What follows is a list of information to obtain from the client that will be helpful in developing a case strategy. The lists below are to be used as a supplement to the list of attorney's duties in Section III of this manual.

 

If your client is a child, the following information will be helpful to know:

  1. Are the child's physical and emotional needs being met (i.e. how is the child dealing with the situation)?
  1. What the child wants to happen
  2. What the child's perception of the events is
  3. whether the child has any religious or cultural needs that are not being met in the current placement
  4. whether there are any relatives or friends who could care for the child (get as much information on relatives and putative fathers as possible)
  5. What the living situation in the parent's home is, including the size of the house, who lives there, who comes around on a regular basis
  6. Who the primary caretaker (i.e. responsible for children, housekeeping, grocery shopping, etc.) in the home is (it may be the child)
  7. The parents' past and present marital (and other relationships) status
  8. information on other children of both parents; if the child is older, whether s/he has children
  9. The family's financial situation (what are the sources of income and in whose name are they obtained )
  10. The parents' employment record (present and past); this may also apply to older children
  11. What transportation is available for the family
  12. The child's educational situation, including what school and grade the child is in, what arrangements have been made or need to be made if the child has had to change schools because of placement, whether the child has any special educational needs, including any possible disabilities that have not been documented
  13. The parents' educational background
  14. The child's physical and mental health, including medical history, immediate needs, etc.
  15. What involvement, if any, the child welfare agency has had with the parent or child
  16. What other court contacts the child has had (i.e. delinquency hearings)

 

Keep in mind that all interactions with a child-client must be age-appropriate. There are many excellent sources of information on interviewing children. Also remember that the above information may not be available from the child directly.

 

If your client is a parent, the following information will be helpful to know:

  1. What the parent wants to happen
  2. What the parent's perception of the events is
  3. Accepting that the child will remain out of the home at least temporarily, whether the client has any preference about placement of the child (i.e. based on medical, religious, cultural, or other needs)
  4. whether there are any relatives or friends who could care for the child (get as much information on relatives and putative fathers as possible)
  5. What the living situation in the parent's home is, including the size of the house, who lives there, who comes around on a regular basis
  6. Who the primary caretaker (i.e. responsible for children, housekeeping, grocery shopping, etc.) in the home is
  7. The parents' past and present marital (and other relationships) status
  8. Information on other children of both parents
  9. The family's financial situation (what are the sources of income and in whose name are they obtained )
  10. The parents' employment record (present and past) and potential for employment
  11. What transportation is available for the family
  12. The parents' educational background
  13. The child's educational situation, including what school and grade the child is in, what special educational needs the child may have, what the parent's involvement in the child's education has been, including what contacts the parent has had with any school personnel (potential witnesses)
  14. The parents' physical and mental health, including medical history, psychiatric treatment, immediate needs, etc.
  15. The child's physical and mental health, including medical history, immediate needs, etc.
  16. What involvement, if any, the child welfare agency has had with the parent or child
  17. What services the parent believes would be helpful.
  18. What changes in the parents' life the parent feels are necessary and what changes the parent is willing to make
  19. What services are currently being provided
  20. What progress the parents have made toward remedying the circumstances resulting in deprivation
  21. Who made the decision to file a petition
  1. The basis for DFCS involvement, including the specific harm resulting in DFCS involvement
  2. What prior contacts both parents have had with any of the courts or law enforcement

 


The information listed above will provide the basis for developing a theory of the case and a "trial" strategy. Of course, one of the skills of an advocate is evaluating the credibility and relevance of information provided.

 

D. Discovery

 

 

Title 15 of the Georgia Code is silent on the use of discovery in juvenile court matters. The Uniform Rules of Juvenile Court, however, state that discovery may be allowed in all cases where deprivation is alleged. URJC 7.1. While the Georgia Supreme Court has held that the provisions of the Georgia Civil Practice Act are not applicable to the juvenile court, URJC 7.1 states that any discovery in juvenile court shall be made in conformance with Article V of the Civil Practice Act, O.C.G.A. §§ 9-11-26 through 9-11-37. (English v. Milby, 233 Ga. 7 (1974)). All discovery in deprivation cases is conducted at the discretion of the judges, and in conformance with strict time limits that can be modified by the judge.

 

Parties wishing to conduct discovery must submit to the court a written request to proceed with formal discovery. The request must state in particularity the type of discovery requested and shall include a Rule Nisi order stating the time and place of a hearing on the motion for discovery. URJC 7.2. The time limits for discovery stated below.

 

If the child has been removed from the home:

  1. Any request for discovery must be filed within 48 hours of the filing of the petition.
  2. Written motion and notice of the hearing must be served no later than 3 days before the hearing (excluding weekends and holidays). URJC 7.2.
  3. Any permitted discovery must be completed within 15 days of the date of the order permitting such discovery.
  4. A request for discovery extends the time limits for adjudication in O.C.G.A. § 15-11-39(a). The adjudicatory hearing shall be set no later than 7 days after discovery ends, excluding weekends and holidays.

 

 

If the child remains in the home:

  1. Any request for discovery must be filed within 15 days of the filing of the petition.
  2. Any permitted discovery must be completed within 30 days of the date of the order permitting such discovery.

 

All tools of discovery are permissible in juvenile court (at the judge's discretion), including depositions, interrogatories, and subpoenas duces tecum. Attorneys practicing in juvenile court must continuously balance zealous advocacy using all tools available in an adversarial system with the reality of a close-knit system that is designed to be less litigious and more cooperative. In most juvenile courts one or two judges hear all juvenile court matters and there are a limited number of "opposing parties" (DFCS workers and their SAAGs). Attorneys must make practical decisions about what advocacy tools and techniques will realistically work within their juvenile court system. Participants in deprivation cases will usually be interacting for one or more years, and every decision which escalates the adversariness of the proceedings potentially decreases the level of cooperation among the participants.

 

One discovery tool that is not often used but is useful to know about, especially in cases involving government agencies, is the Georgia Open Records Act. O.C.G.A. § 50-18-70 et. seq.; and see Napper v. Georgia Television Co., 257 Ga. 156 (1987). The usefulness of this tool is limited in the deprivation context because of the short time frames. When time is available, it can be used when information is needed from DFCS and responses to less formal requests are not forthcoming. Sometimes information which the county DFCS office may be objecting to produce is actually available from the state DHR/DFCS office if the appropriate request is submitted.

E. Evidence

 

 

A common misconception about juvenile court is that formal rules of evidence do not apply. Formal rules of evidence are applicable, but not to all proceedings. Because the delineation between proceedings such as the adjudicatory hearing and the dispositional hearing is often not distinct, it may appear that formal rules of evidence are not applied. Formal rules of evidence apply to the formal fact-finding proceedings: adjudication, but at other proceedings (i.e. 72-hour hearing, disposition, periodic reviews) the rules of evidence are relaxed and hearsay is allowed. Even when hearsay is not allowed, allowing inadmissible evidence is not necessarily prejudicial. The error may be considered harmless, depending on the entirety of the record. If other evidence supports the court's finding of deprivation the error will not be grounds for reversal. See Moss v. Moss, 135 Ga. App. 401 (1975) (when judge is trier of fact, judge is presumed to only consider admissible evidence in making determinations);In re J.T.S., 185 Ga. App. 772 (1988) (evidence other than inadmissible hearsay statements must support findings).

 

A full discussion of evidence in juvenile court proceedings is beyond the scope of this manual. A primary source of information on this subject as it applies to Georgia is McGough's Georgia Juvenile Practice and Procedure, (2ed). This book contains a fairly detailed discussion of evidence in Georgia juvenile courts.

 

One piece of evidence that is a vital component to every deprivation case and the subject of continuing controversy regarding its confidentiality is the DFCS records. The Child Abuse and Deprivation Records Act prohibits access to records concerning reports of child abuse and neglect except by court order. (O.C.G.A. § 49-5-40 et. seq). DFCS interprets this code section quite broadly, asserting that all DFCS information, including case files, memos, etc., is confidential. The Court of Appeal, however, has said that a juvenile court may, in its discretion, release relevant information from DFCS records. (Ray v. D.H.R., 155 Ga. App. 81 (1980)). In Ray v. D.H.R., the Court held that denial of access to DFCS files interfered with the parents' constitutional right to cross-examination. In a later decision the Court of Appeals again found that denying parents' access to DFCS files interferes with parent's fundamental rights and that a judge should remove privileged materials from files after an in camera review rather than completely denying access. In re M.M.A., 166 Ga App. 620 (1983).

 

Information from DFCS files such as case narratives summary reports, court records, service plans, goals, and objectives, can be obtained directly from DFCS. A request must be filed directly with DFCS and they have ten days upon receipt of the request to provide copies of the documents to the parents. DFCS may impose a $.25 per page copying fee for certain documents. (Vicky O. Kimbrell, "Juvenile Court Deprivation Proceedings: Representing the Parent," pp. 14-15, reproduced in GIDC training materials). If DFCS claims that files are confidential, the judge can be asked to review the files and only release information pertinent to the case. The judge has wide latitude in determining what is relevant. Remember that the judge who is deciding the case is probably the one who will be determining what to release from the DFCS records, and in so doing, will review the complete file DFCS prior to the adjudication. Attorneys must balance the critical nature of the information they are seeking with the fact that the judge may see all DFCS information on the child during the in camera review.

 

Another piece of evidence often used in deprivation proceedings is a court-ordered physical or mental examination of the parent or the child. O.C.G.A. § 15-11-12(b) provides for the court to order a physical or mental evaluation of a child during the pendency of any proceeding and O.C.G.A. § 15-11-100 allows the court to order a physical or mental evaluation of any parent, step-parent, guardian, or child involved in a proceeding under Article 2 of the Juvenile Code. Article 2 is limited to proceedings to terminate parental rights so it is appears that a child can be evaluated at any time after the filing of a deprivation petition while a parent can only be ordered to submit to an evaluation when a termination of parental rights petition has been filed. (Kimbrell at 16-17).

 

When a child is being evaluated upon the request of petitioners, the child's attorney and the parent's attorney should take steps to ensure that the examiner is qualified and independent. One way to protect the "independence" of the evaluation is to request a court order restricting all parties from having contact with the examiner other than what is necessary to arrange the evaluation. This would include prohibiting any parties from providing the examiner with a "background summary" containing prejudicial information about the family or parents. (Kimbrell at 16). Attorneys should obtain copies of evaluations and reports at the earliest possible opportunity so strategic decisions regarding arranging for a private evaluation or deposing the examiner can be made.

 

While funds for experts may not be provided to indigent parents, there is no prohibition on obtaining a private evaluation separate from the court-ordered evaluation. A decision regarding whether the expert's report or testimony will be used in the proceedings can be made after the evaluation is completed. If an attorney submits a request to the court for funds for an expert (of any type), the request should contain recommendations for suggested experts. The use of experts in relation to juvenile court proceedings is an area attorneys should be familiar with, but which is beyond the scope of this manual. Many deprivation proceedings hinge on the testimony of a psychiatrist or doctor, so the art of examining, cross-examining and even deposing such witnesses should be studied.

 

In the dispositional hearing held after a child is adjudicated deprived, reports and studies containing hearsay are considered by the court. This is permitted under O.C.G.A. § 15-11-12(a). If the two hearings are held within one proceeding, attorneys can request that the judge clearly distinguish when the adjudicatory phase has ended to clarify when social studies and other reports are admissible.

 

Attorneys are advised to review law and advocacy relating to child witnesses, including the child hearsay exception which permits a witness to testify "as to a statement made to the witness by a child under the age of 14 describing an act of sexual contact or physical abuse performed on the child or in the child's presence if the child is available to testify and the court finds the circumstances of the statement provide sufficient indicia of reliability. O.C.G.A. § 24-3-16. All children who are the subject of deprivation actions are deemed competent to testify in court. O.C.G.A. § 24-9-5(b).All other child witnesses must meet the requirements of competency. O.C.G.A. § 24-9-5. Please refer to Section VII in the Law Guardian Manual for more information on child witnesses.

 

VI. Juvenile Court Proceedings

 

 

This chapter discusses each of the primary proceedings attorneys will encounter in juvenile court. The discussion of each type of proceeding will describe:

  • the type of proceeding, including the burden of proof
  • when the proceeding will occur
  • who is usually involved in the proceeding
  • what the purpose of the proceeding is and what will occur during the proceeding
  • suggestions for effective advocacy in each type of proceeding.

 


The following provisions apply to all juvenile court hearings. Juvenile court has historically been a closed court, and as such, there is no jury and the public is excluded from the proceedings. The law is evolving toward a more open process so the code should be consulted when this issues arises. One settled fact is that the judge has wide discretion regarding who may be present in the courtroom. Witnesses may be sequestered upon request. All proceedings shall be recorded by appropriate means (stenographic, electronic, mechanical, or other) unless the recordation is waived by the juvenile and his parent, guardian, or attorney. O.C.G.A. § 15-11-41(b). Waiver of recordation is not recommended, as it greatly affects the ability to effectively appeal a decision. The time limits on holding hearings may be waived. The court has discretion to continue a hearing for a reasonable time for good cause shown. If the granting of a continuance extends the date of the hearing beyond the statutory limits of O.C.G.A. § 15-11-39(a), the court shall enter a written order stating the specific reason for the continuance and in whose custody the child is placed. URJC 11.3.

 

A. 72-hour hearing (O.C.G.A. § 15-11-49)

1. The type of proceeding, including the burden of proof

 

 

The 72-hour hearing is the first court hearing in a deprivation case in which the child has been removed from the home. It is also called the emergency shelter care hearing, probable cause hearing, or informal detention hearing. Rules of evidence are relaxed and hearsay is admissible.

2. When the proceeding will occur

 

 

The 72-hour hearing must be held within 72 hours after placement in shelter care. If the 72 hour limit expires on Saturday, Sunday or legal holiday, the hearing must be held the following business day. (O.C.G.A. § 15-11-49; URJC 6.8). Requirements of this code section may be waived, but failure to adhere to the time limits of O.C.G.A. § 15-11-49 without a waiver shall result in dismissal without prejudice. (Irvin v. DHR, 159 Ga. App. 101 (1981); Sanchez v. Walker County DFCS, 140 Ga. App. 175, 230 S.E.2d 139 (1976). "Without prejudice" means that the department may refile a deprivation petition without delay if it has reason to believe that the child is abused or neglected. Id. at 411. Technically the dismissal of a petition would require returning a child to the custody of his/her parent(s). However, given the court's authority to issue preliminary protective custody orders based on allegations contained in a petition, there seems to be nothing to prevent a juvenile court judge from issuing a "pick up" order again to detain the child should the court believe the situation warrants such action. Realistically, moving to dismiss a petition based on failure to adhere to the statutory time limits only results in further delays in the case and it is usually in all parties' best interest to move the case to resolution as quickly as possible. However, if DFCS has a particularly weak case or if the parents have greatly improved their situation since the petition was filed, DFCS may not refile the petition if it is dismissed on technical grounds. Also, the fact that it could be dismissed may be used as leverage in reaching an agreement on the matter. Another reason attorneys may want to move for dismissal is to "reset" the clock in a case. Court orders date from the time the child is initially taken from the home. With the current atmosphere toward permanent placements as soon as possible, it will become more common for DFCS to only provide reunification services for 12 months, and then file a non-reunification plan. (See O.C.G.A. § 15-11-58). Since custody technically reverts back to the parent when a petition is dismissed, even if the child is kept out of the home on an emergency "pick-up" order, all times for the new petition should date from the pick-up order rather than from the earlier removal. This issue has not been brought before the Court of Appeals so it is unclear how case law will interpret these actions.

 

Most juvenile courts have interpreted 72-hour hearings as the equivalent of a "probable cause" hearing which uses a standard of proof known as "preponderance of the evidence." (Kipling Louise McVay, Deprivation a Termination, Children in Court: A Systems Approach. (1989), p. 14, 15). The petitioner must show through evidence that it is "more likely than not" that the child is deprived. This is a much lower burden of proof than will be required at the formal adjudicatory hearing (trial) on the merits of the deprivation petition. There is not consensus in Georgia on the proper standard of proof in the 72-hour hearing since the code is silent on the issue. The Georgia Juvenile Court Benchbook notes that "the burden is on the petitioner to prove the need for detention; there is no indication from the code that a 'probable cause' standard is all that is necessary." Ch. VI, p.3.

3. Who is usually involved in the proceeding

 

 

In reality the only people present at most 72-hour hearings are the judge, the caseworker bringing the deprivation action and the parents. Recommendations for "best practice" techniques advise that all parties and their attorneys participate in the initial proceeding so that cases that can be worked out or diverted can be dismissed without keeping the child out of the home any longer than is necessary.
The GUIDELINES recommend that the following persons should ALWAYS be present at the 72-hour hearing:

  • judge or judicial officer
  • parents whose rights have not been terminated, including putative fathers
  • relatives with legal standing or other custodial adults (The GUIDELINES recommend the presence of all parents and adult full-time caretakers because even if the child cannot be returned to the home from which he or she was taken, the child may be placed with someone other than DFCS. Counsel for all parties is recommended because this hearing is a critical event that is strategically important to subsequent court actions/activity. GUIDELINES, pp.33-34)
  • assigned caseworker
  • agency attorney
  • attorney for parents (separate attorneys if conflict warrants)
  • legal advocate for the child and/or GAL/CASA
  • court reporter or suitable technology
  • security personnel

 

 

GUIDELINES, p. 33.

 

In some counties caseworkers on other cases, court personnel, witnesses for other cases, etc., remain in the courtroom after calendar call. At the 72-hour hearing and in all proceedings, attorneys should remember that any party can request exclusion of unnecessary persons such as these.

4. What the purpose of the proceeding is and what will occur during the proceeding

 

 

The purpose of the 72-hour hearing is twofold: first, to determine whether a child who has been removed from the home shall be released to his or her parents or detained pending further court proceedings; and second, to determine whether reasonable grounds exist to believe that the allegations in the complaint or petition are true.

 

The statutory grounds for detention are:

  1. to protect the child,
  1. to prevent the child from being removed from the jurisdiction, or
  2. to provide for the child's care or supervision because no parent, guardian or custodian is able to do until the full hearing can be held. O.C.G.A. § 15-11-46

 

 

The following critical questions need to be addressed at this hearing:

  1. Have all parties been advised of their rights?
  1. Has a GAL or CASA been appointed for the child?
  2. Has an attorney been retained by or appointed for the parents?
  3. Should the child be returned home immediately, placed with a guardian or relative, or kept in foster care until the adjudication?
  4. What services would allow the child to remain safely at home?
  5. Will the parties voluntarily agree to participate in such services?
  6. Has DFCS made reasonable efforts to avoid removing the child from the home?
  7. Are responsible relatives or other responsible adults available as placement options or as support for the family?
  8. Is the placement proposed by the agency the least disruptive and most family-like setting that meets the needs of the child?
  9. Has a recommendation been made for non-reunification?
  10. Are restraining orders, or orders expelling an allegedly abusive parent from the home appropriate? (O.C.G.A. § 15-11-11 gives the court authority to issues protective orders pending or after disposition in a case. Given the specific language "if an order of disposition of a child has been or is about to be made in a proceeding under this article...," there is currently discussion among attorneys and judges in Georgia regarding whether such orders can be issued at any time before adjudication)
  11. Are orders needed for examinations, evaluations, or immediate services?
  12. What are the terms and conditions for parental and sibling visitation?
  13. What consideration has been given to financial support of the child?
  14. Should the court authorize the filing of a petition, or should the case be continued for a period of time to allow DFCS to work with the family before deciding to commence a full deprivation proceeding?
  15. If a petition has been filed has a copy been served to each party?
  16. Has a date been set for the adjudicatory hearing and has notice been given?

 

 

GUIDELINES, P. 37.

 

The 72-hour hearing should end with a decision regarding the temporary placement of the child and a recommendation regarding the filing of a petition. (O.C.G.A. § 15-11-37 provides that no petition should be filed without authorization of the court. This authorization is often included in the court order from the 72-hour hearing).

5. Suggestions for effective advocacy

 

 

The 72-hour hearing should be treated as a critical stage in the proceedings, and as such, attorneys should fully participate if possible. It is common for attorneys to be appointed to cases after this hearing but parents and children have a right to representation at the hearing. This hearing may be continued for appointment of counsel; this increases the length of time a child spends out of the home, however. The initial hearing can be a useful discovery tool as it provides responding parties with information about the evidence supporting the allegations against them.

 

B. Pre-trial conference

1. The type of proceeding, including the burden of proof

 

 

The pre-trial conference in juvenile court is similar to pre-trial conferences in superior court. It is not a common proceeding in many courts, but it is used regularly in others; it can be especially useful prior to a contested termination of parental rights. The pre-trial conference may address issues such as evidence to be presented, issues which have been resolved, and witnesses that may need to be subpoenaed. Of the attorneys are having disputes about any evidentiary matters or time frames, these may be resolved through a pre-trial conference.

2. When the proceeding will occur

 

 

A pre-trial conference may be held upon the motion of any party or on the order of the court at a time compatible with the statutory time limits for related actions.

3. Who is usually involved in the proceeding

 

 

Participants in the pre-trial conference should include the attorneys for the parties. URJC 7.5. Although the rule is silent on this matter, if a party is unrepresented or if a child is represented by someone other than counsel, the unrepresented party and the child's representative would presumably be included in the pre-trial conference. The petitioning case worker is often included.

4. What the purpose of the proceeding is and what will occur during the proceeding

 

 

The pre-trial conference is an informal forum for resolving issues prior to trial that provides for a more effective use of in-court time. Issues to be considered at the conference include:

  • the simplification of the issues
  • the necessity or desirability of amendments to the pleadings
  • the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof
  • the imitaton of the number of expert witnesses and
  • such other matters as may aid in the disposition of the action.

 

 

URJC 7.5.

 

 

After the conference the court should issue an order reciting the actions taken at the conference, the agreements made by the parties, and limiting the issues for trial to those not already disposed of. This order will then "control[] the subsequent course of the action unless modified at the trial to prevent manifest injustice. URJC 7.5.

C. Adjudicatory Hearing (O.C.G.A. § 15-11-78)

1. The type of proceeding, including the burden of proof

 

 

The adjudicatory hearing is the formal fact-finding proceeding at which a determination is made whether there is clear and convincing evidence to support a finding that a child is deprived. If there is not, the case should be dismissed (although DFCS may maintain an open CPS case on the family). If there is, a dispositional hearing must be held.

2. When the proceeding will occur

 

 

If the child has been removed from the home the adjudicatory hearing should be set not later than ten days after the petition is filed. If the child is still in the home the adjudicatory hearing should be set within 60 days after the petition is filed. The hearing may be continued to a later date but there should be an order in the file stating the cause for the continuance and setting the new hearing date. The time limits may be waived. (O.C.G.A. § 15-11-39; URJC 6.8)

3. Who is usually involved in the proceeding

 

 

The GUIDELINES recommend that the following persons should ALWAYS be present at the adjudicatory hearing:

  • judge or judicial officer
  • parents whose rights have not been terminated, including putative fathers
  • relatives with legal standing or other custodial adults
  • assigned caseworker
  • agency attorney
  • attorney for parents (separate attorneys if conflict warrants)
  • legal advocate for the child and/or GAL/CASA
  • court reporter or suitable technology
  • security personnel

 

 

GUIDELINES, p. 48.

 

The following people may also be needed at the adjudicatory hearing:

  • child (if appropriate based on age and circumstances)
  • siblings
  • extended family members
  • juvenile court staff
  • law enforcement officers
  • service providers
  • teachers
  • therapists
  • family friends
  • other witnesses

4. What the purpose of the proceeding is and what will occur during the proceeding

 

 

The purpose of the adjudication is to determine whether child is presently deprived. O.C.G.A. § 15-11-2 describes the following bases for finding deprivation:

  1. Child is without proper parental care, control, subsistence, education as required by law, or other care or control necessary for mental, physical or emotional health or morals
  2. Child has been placed for adoption or care in violation of law
  3. Abandonment
  4. Child is without a parent, guardian, or custodian

 


There is extensive case law regarding what circumstances constitute deprivation. The following general holdings can serve as a basis for building a case, but each issue will require independent research. A general rule is that deprivation must be based on present conditions and not on past circumstances or potential future deprivation. (See e.g. Lewis v. Winzenreid, 263 Ga. 459 (1993). However, evidence of past deprivation, especially if the circumstances are very similar to present conditions, can be considered sufficient for a finding of deprivation. Likewise, present deprivation of one child may allow for removal of siblings even without a showing of actual harm against those children and past deprivation of a child may provide sufficient evidence of current deprivation of a sibling in a similar situation. (For a broader view of the seemingly contradictory case law on this subject see Roberts v. State of Georgia , 141 Ga.App. 268 (1977) and Jones v. D.H.R, 155 Ga.App. 371 (1980) and cases citing those cases). Each decision is fact specific and the judge has broad discretion in making such determinations. Attorneys representing parents who have past histories with social service agencies should make every effort to distinguish the parent's current situation from any past circumstances resulting in intervention.

 

"Deprivation" encompasses a wide range of actions and inactions, including emotional deprivation. Elrod v. DFCS, 136 Ga. App. 251 (1975). In some counties truancy charges against children are paired with deprivation proceedings alleging educational neglect. Failure to provide adequate medical care amounts to medical neglect, although there are allowances for religious beliefs regarding medical treatment (for a more detailed discussion of this see law guardian section at...). Even with the breadth of situations amounting to deprivation, a child CANNOT be declared "deprived" simply because the child might be considered "better off" in a different environment. (See McGough's Juvenile Practice & Procedure (2nd ed.), § 4-3).
The Court of Appeals has said, "[w]hile the state may not sit idly by as a child suffers an unconscionable hardship, neither may it blithely intercede simply because the child's lot is substandard. A mother's failure to live up to societal norms of productivity, morality, cleanliness, and responsibility does not rob her of her right to raise her own children...." R.C.N. v. Georgia, 141 Ga. App. 490 (1977). In R.C.N. the record indicates that the trailer in which the mother was living was "on occasion unclean." In addition, the mother was heard using profanity, lived at several different addresses in a short period of time leading up to the hearing, had no reliable source of income, and recently aided and abetted in the escape of a prisoner. In contrast, when the court addressed this issue in Vermilyea v. Dep't. Of Human Resources, the court held that "unfortunate economic and personal circumstances" are not an excuse for parents to ignore the basic hygiene and medical needs of their children. (155 Ga. App. 746 (1980). The court stated, "[e]ven the poorest of the poor can be expected to maintain reasonably clean and hygienic living conditions." (Id. at 750).

 

A final rule to note is that a finding of deprivation is based on the needs of the child without regard to any "fault" on the part of the parents in causing or failing to prevent the causes of the child's condition. (See Brown v. Fulton County DFCS, 136 Ga. App. 308 (1975).

 

The key issues to be addressed at this hearing include:

  1. Which allegations of the petition have been proved or admitted, if any?
  2. Whether there is a legal basis for continued court and agency intervention.
  3. Whether reasonable efforts have been made to prevent the need for placement or to safely reunify the family?
  4. Whether any mental or psychological evaluations need to be ordered before the disposition.
  5. Whether any social studies or home evaluations need to be ordered before the disposition.
  6. Whether any protective orders need to be ordered pending disposition.
  7. Whether court assistance is needed in locating or notifying potential placements such as relatives and putative fathers.

 

 

GUIDELINES, p. 49-50.

 

After the conclusion of the adjudication hearing the court must issue a written order with findings of fact and conclusions of law which includes:

  1. recitation of findings of fact which support its jurisdiction over both subject matter and all necessary parties
  2. specific findings of fact and conclusions of law in accordance with O.C.G.A. § 9-11-52 dealing with findings by the court (the order cannot merely recite the statutory definition of deprivation and state that the court has found those conditions to exist).
  3. determination whether reasonable efforts have been made to prevent or eliminate the need for placement
  4. sufficiently detailed information to justify DFCS and court choices for treatment and services
  1. a defensible basis for refusing to return a child home or terminating parental rights if parents fail to improve
  1. easily understandable language so that all parties know the court's findings
  2. the date and time of the next hearing, if appropriate.

 

 

GUIDELINES, p. 52 and Georgia Juvenile Court Benchbook, CJCJ, Ch. VI., p. 4.

 

The court usually moves directly from the adjudication into the disposition, sometimes without clearly delineating the change. A single order is issued encompassing both proceedings. An alternative to proceeding to the disposition that is "used by many juvenile courts but not provided for in the Juvenile Code is to suspend the proceedings for a given period of time during which the child's caretaker is permitted to carry out the court's stated objectives." (Georgia Juvenile Court Benchbook, CJCJ, Ch. VI., p. 4).

5. Suggestions for effective advocacy

 

 

The adjudicatory hearing is the "trial" of juvenile court proceedings and attorneys should treat it as such. A finding of deprivation can provide the underlying basis for a later decision to terminate of parental rights. In fact, the Court of Appeals recently said, in a termination proceeding, "[t]his deprivation order was extended in 1995 and has not been appealed by appellant. Therefore, appellant is bound by this finding of deprivation and the first factor ["present clear and convincing evidence of parental misconduct or inability] is satisfied."

 

In preparing for the adjudication, many strategic decisions must be made in consultation with the client. For a complete discussion of trial strategies and preparation see Trial Manual for Defense Attorneys in Juvenile Court . (Randy Hertz, Martin Guggenheim, Anthony Amsterdam, Trial Manual for Defense Attorneys in Juvenile Court, ALI-ABA 1991).

 

One of the major decisions the parent needs to make is whether s/he is going to admit to the allegations. In the past courts would readily accept a stipulation of deprivation from the parties which vaguely indicated the nature of the allegations but was far short of an admission. This was considered a win-win agreement because DFCS could ensure protection of the child and the parents could "save face" and avoid "admitting" to abusive behaviors. Over time the many problems with these stipulations have become evident and courts are becoming more reluctant to accept such agreements.

 

One difficulty with the stipulations is that they technically render the court order finding deprivation invalid. The final order must contain specific findings of fact to support the conclusion of law, but no specific factual findings can be made when the stipulation is vague. See generally, O.C.G.A. § 15-11-58. Another problem is that stipulations limit DFCS's ability to address the causes of deprivation. A case plan cannot require any actions unrelated to the cause of deprivation and the findings of the court. Consequently, DFCS may be unable to require services necessary to address the true problem. For example, if DFCS believes that sexual abuse but the parent stipulated to neglect involving allegations of a sexual nature by the child, counseling and treatment for sexual abuse cannot be required of that parent. In situations such as this, it is not improbable that DFCS would file a motion for modification of the case plan, and at the modification hearing would present information to support the modification.

 

In addition to the difficulties discussed above, more consideration is being given to the detrimental effects of stipulations upon children who disclose. Negative messages are conveyed to children when they are subjected to the drastic action of being taken out of the home without the court validated their allegations. Attorneys should be mindful that the nature of stipulations and agreements in deprivation proceedings is changing, and parents who may have agreed to stipulations in the past must be informed about the changes.

 

One expert has said the following about the decision to contest allegations: "Deciding whether to contest depends on whether there is a reasonable chance of prevailing, and, if parents are likely to lose, whether the impact on the parents' relationship with the social welfare agency would be so damaging as to not be in the parents' interest to contest." (Granik, p. 7). One way to approach this discussion with the parents is to ask them their ultimate goal, i.e. to get the child back, and to help them realize that ultimately achieving that goal may be more important than winning the smaller battles against DFCS. Once the decision is made to contest, "do so vigorously." Prepare the case for trial; raise objections to inadmissible evidence, ensure all relevant issues are raised to be preserved for appeal, make the state prove every element of its case, ensure that hearing is recorded, and request specific findings of fact. (Granik, p. 7).

 

With that just said, the following must also be pointed out. There is a common perception that juvenile court judges do not like attorneys who come into court with a "superior court" mentality and approach cases in adversarial manner. There is also a common understanding among child welfare specialists and social scientists that children and families benefit more from a cooperative approach to addressing problems than from the win-lose approach typical of an adversarial court system. Successful juvenile court attorneys remain mindful of the differences between a bench trial and a jury trial and are always conscious of the ongoing nature of juvenile court cases. Remembering these points will help attorneys when assessing cases and advising clients of their options and the likely outcome of each option.

 

Other strategic decisions include the need for and effects of continuances and whether the parent should testify. For a more complete discussion of these issues with relation to representing parents in Georgia see articles by Vicky O. Kimbrell of Georgia Legal Services.

 

Regarding continuances, Kimbrell states, "[a] request for a continuance should be carefully discussed with the parent-client if the child is in detention. The prolonged separation of the parent from the child, especially an infant or young child, can be both emotionally and legally detrimental for the parent and the child. If a continuance of more than two weeks is necessary, the attorney should attempt to obtain some visitation or other form of contact by the parent with the child, either informally or by order of the court. DFCS regulations state that an initial visitation should occur within the first week after a child is removed from the home and regularly thereafter." (Vicky O. Kimbrell, "Juvenile Court Deprivation Proceedings: Representing the Parent," GIDC training materials, citing Georgia DHR, Social Services manual Ch. 1000, Section 10.2; See also, 42 U.S.C. § 675(1)(B). Even if a continuance is requested, it may only delay the hearing a few days. If a continuance is necessary, request it at earliest possible date and specifically detail justification for it. The court should enter an order resetting the hearing with an explanation for the continuance. URJC 7.7

 

D. Provisional Hearing (O.C.G.A. § 15-11-39.2)

1. The type of proceeding, including the burden of proof

 

 

A provisional hearing is a formal court proceeding that is basically an adjudicatory hearing conducted in the absence of a party who must be service by publication. All the rules and provisions concerning adjudicatory hearings apply.

2. When the proceeding will occur

 

 

A provisions hearing occurs within the statutory time frame allowed for adjudicatory hearings.

3. Who is usually involved in the proceeding

 

 

Participants in the provisional hearing should include all persons recommended for participation in the adjudication with two changes. First, the child must be personally before the court at the provisional hearing. (O.C.G.A. § 15-11-39.2(a)(3). Second, the party who must be served by publication cannot be present.

4. What the purpose of the proceeding is and what will occur during the proceeding

 

 

The purpose of a provisional hearing is to move forward with a case (i.e. provide the child with a permanent plan) within statutory time limits even though a party must be served by publication which may take months. The primary difference between an adjudication and disposition hearing and a provisional hearing is that the order from a provisional hearing is only an interlocutory order. O.C.G.A. § 15-11-39.2(b). After the provisional hearing on the allegations of the petition the court enters an interlocutory order which remains in effect until the date of the final hearing. If the party served by publication fails to appear at the final hearing, the findings of fact and interlocutory orders become final without further evidence. If, however, the party served by publication appears at the final hearing, all interlocutory findings and orders shall be vacated and a new hearing on the petition must be held. O.C.G.A. § 15-11-39.2(c).

 

Service for the provisional hearing must state:

  1. time and place of provisional hearing
  2. requirement that any party served by means other than publication must appear at provisional hearing
  3. findings and orders made at the provisional hearing will become final at the final hearing unless party served by publication appears at the final hearing

 

 

 

E. Disposition (O.C.G.A. § 15-11-55)

1. The type of proceeding, including the burden of proof

 

 

The disposition is a court proceeding held to determine what should be done to improve the situation of a child and the child's family after a finding that a child is deprived. The disposition hearing is usually held within the same hearing as the adjudication but once the adjudicatory phase is completed the rules of evidence are relaxed and the court may consider "all information helpful in determining the questions presented." O.C.G.A. § 15-11-56(a). Notwithstanding the relaxed evidentiary rules, opposing counsel is still entitled to examine social histories and home study reports prior to the dispositional hearing and to cross examine any witnesses put forth by the opposing counsel. Confidential sources of information need not be disclosed, however. O.C.G.A. § 15-11-56(a).

2. When the proceeding will occur

 

 

The dispositional hearing may be held separately from the adjudication to allow time for reports or evaluations to be completed. If held separately, the dispositional hearing should be held within a reasonable time from the adjudicatory hearing. O.C.G.A. § 15-11-54.

3. Who is usually involved in the proceeding

 

 

Participants in the disposition include all those recommended to participate in the adjudication.

4. What the purpose of the proceeding is and what will occur during the proceeding

 

 

The purpose of the disposition is to determine the plan "best suited to the protection and physical, mental, and moral welfare of the child" now that the child has been found to be deprived. O.C.G.A. § 15-11-55(a).

 

The key issues to be addressed at this hearing include:

  1. What is the appropriate statutory disposition of the case and long-term plan for the child?
  2. Where the child should be placed?
  3. What services will allow the child to remain safely at home?
  4. Has DFCS made reasonable efforts to avoid protective placement of the child? (this determination must be made at every review of the case)
  5. Are responsible relatives or other responsible adults available as placement options or as support for the family?
  6. Is the placement proposed by the agency the least disruptive and most family-like setting that meets the needs of the child?
  7. Does the proposed case plan reasonably address the problems and needs of the child and the parents?
  8. Is the case plan specific enough? (see discussion of case plans)
  9. Has a recommendation been made for non-reunification?
  10. Are restraining or protective orders necessary?
  11. Are orders needed for examinations, evaluations, or immediate services?
  12. What are the terms and conditions for parental visitation?
  13. What are the terms and conditions for sibling visitation, if applicable?
  14. What consideration has been given to financial support of the child?
  15. Has a date been set for the next review of the case and notice been given?

 

GUIDELINES, P. 37, 63.

 

The statutory list of disposition options includes: (O.C.G.A. § 15-11-55(a)).

  1. placement with the child's parents, guardian, or other custodian, including a putative father, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child
  1. Any individual including a putative father who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child;
  2. An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child;
  3. Any public agency authorized by law to receive and provide care for the child
  4. An individual in another state with or without supervision by an appropriate officer under Code Section 15-11-89
  5. transfer of custody to the court of another state exercising jurisdiction over juveniles if authorized by and in accordance with Code Section 15-11-87 if the child is or is about to become a resident of that state.

 


The law specifically prohibits the placement of a deprived child in an institution or other facility designed or operated for the benefit of delinquent children unless the child is also adjudicated delinquent. O.C.G.A. § 15-11-55(b). Other limitations on dispositional options include a prohibition against ordering joint custody to DFCS and another entity outside the Department of Human Resources (DHR). If joint custody is ordered, DFCS shall be relieved of further responsibility for the child. O.C.G.A. § 15-11-55(c). This code section was enacted when the Department of Juvenile Justice (DJJ, formerly Department of Children and Youth Services) was a division of DHR. The purpose of the code section was to limit the liability of DHR for children not wholly within their custody. The code section has not been amended since DJJ was made an agency separate from DHR. When a child is adjudicated both delinquent and deprived, judges often order joint custody to DJJ and DFCS. Both agencies tend to object to such an order, each claiming that the child is the responsibility of the other agency. Although the agencies will object at the local level, particularly since such multi-needs children are difficult and expensive to place, there appears to be an informal policy at the state level against appealing such orders. Attorneys should be aware that until the Court of Appeals addresses this issue or the statute is changed, judges are willing to issue such joint custody orders. Joint custody to DHR-DFCS and any person or entity other than DJJ, however, remains impermissible.

 

In the same way that a judge cannot order custody to DFCS and a third party, a judge cannot order custody to DFCS and physically place the child elsewhere. (See e.g., In re R.R.M.R., 169 Ga. App. 373 (1983); In re R.L.M., 171 Ga. App. 940 (1984), In re J.N.T., 212 Ga. App. 498 (1994). Once custody is given to DFCS, placement of the child is within the sole discretion of the agency. This discretion does have limits, however. DFCS cannot place a child back with his or her parents without court approval. O.C.G.A. § 15-11-55(a)(2) The "approval" can take several forms. Some orders contain a list of conditions, satisfaction of which automatically provides for the return of the child to the home. A better practice is for DFCS to notify the court by letter when the conditions have been met so the court file has documentation of the return. Any party who objects to the return of custody may request a hearing on the issue. (Georgia Juvenile Court Benchbook, CJCJ, Ch. XII, p. 1).

 

The other limitation is in the court's authority to review the placement at any time. O.C.G.A. § 15-11-55(c) states that after placement of a child with DFCS the court:

 

"may at any time conduct sua sponte a judicial review of the current placement plan being provided to said child. After its review the court may order the division to comply with the current placement plan, order the division to devise a new placement plan within available division resources, or make any other order relative to placement or custody outside the Department of Human Resources as the court finds to be in the best interest of the child."

 

This code section appears to state that although the court cannot direct placement of a child in DFCS custody, the court retains veto power over DFCS's placement choices.

 

Attorneys for parents and children can use this provision to their advantage if they feel that a particular placement is inappropriate for the child. Any party (and probably any person) can bring concerns about a placement to the attention of the court and request that the court conduct a review of the placement. DFCS has internal policies regarding time limits on responding to a court order for revision of a placement plan and the court may set its own time frame on this issue. O.C.G.A. § 15-11-58(k) provides that when the court finds that a placement is no longer appropriate in the context of periodic review
hearings, DFCS has 10 days to submit a revised plan for court approval. It is likely that this time frame is applicable to a similar determination under O.C.G.A. § 15-11-55(c).

 

Before issuing a dispositional order, the court may direct that a social study or home evaluation be conducted and a written report be presented to the court. A home evaluation is common practice in DFCS cases, although the report is often presented through testimony rather than as a written report. In private deprivation cases DFCS may be directed to conduct a home evaluation or the court may designate someone else to do the evaluation. O.C.G.A. § 15-11-12(a).

 

For more information on the rights and duties of legal custodians, see O.C.G.A. § 15-11-13 and O.C.G.A. § 49-5-3. The law guardian section also discusses the use of protective orders by the court, authorized by O.C.G.A. § 15-11-11. Protective orders which restrain or otherwise control the conduct of a person may be issued if proper notice and opportunity for hearing have been made. O.C.G.A. § 15-11-11. Such an order may require any such person:

  1. To stay away from the home or the child;
  2. To permit a parent to visit the child at stated periods;
  3. To abstain from offensive conduct against the child, his parent, or any person to whom custody of the child is awarded;
  4. To give proper attention to the care of the home;
  5. To cooperate in good faith with an agency to which custody of a child is entrusted by the court or with an agency or association to which the child is referred by the court;
  6. To refrain from acts of commission or omission that tend to make the home not a proper place for the child;
  7. To ensure that the child attends school pursuant to any valid law relating to compulsory attendance;
  8. To participate with the child in any counseling or treatment deemed necessary after consideration of employment and other family needs; and
  9. To enter into and complete successfully a substance abuse program approved by the court.

 

 

O.C.G.A. § 15-11-11.

 

While the imposition of protective orders can be used to pave the way for the return of a child to the home because they assure the court of a concrete safety plan for the child, Attorneys for parents should ensure that such protective orders do not infringe upon the constitutional or statutory rights of parents.

 

If DFCS is amenable to reunification if certain changes are made, further court action can be avoided if the court order states the protective actions that must be taken before the child can be returned home, and orders the return of the child upon completion of those actions.

Although they can be used to a client's advantage, protective orders can also be damaging if they are not complied with. Juvenile courts are authorized to punish a person for contempt for disobeying a court order. O.C.G.A. § 15-11-5.

 

The court's written findings of fact and conclusions of law issued at the conclusion of the disposition hearing should:

  1. Determine the legal disposition of the case, including the custody of the child, based upon the statutory option provided under Georgia law
  2. State the long-term plan for the child
  3. When applicable, state why continuation of child in the home would be contrary to the child's welfare
  4. Approve, disapprove, or recommend modification of the proposed case plan
  5. Determine whether there is a plan for monitoring the implementation of the case plan and identify who is responsible for that
  6. Determine whether the GAL or CASA is available to assist with monitoring the implementation of the case plan and issue related orders as necessary (i.e. appoint the GAL/CASA for the pendency of the case)
  7. When placement or services are ordered that are contrary to that agreed upon by the parties, specify the evidence or legal basis upon which the order is made
  8. Specify whether reasonable efforts have been made to prevent or eliminate the need for placement
  9. Specify the terms of parental visitation
  10. Specify the terms of sibling visitation
  11. Specify parental responsibilities for child support
  12. Be written in easily understandable language so that parents and all parties fully understand the court's order
  13. Set date and time of next hearing, if needed.

 

 

GUIDELINES, p. 64.

 

The time limits on orders are:

  1. An initial award of custody to DFCS shall remain in effect for 12 months from the time the child was first placed in custody. O.C.G.A. § 15-11-58(k).
  1. An extension of custody to DFCS can remain in effect for up to 12 months after the expiration of the initial custody order. O.C.G.A. § 15-11-58(n).
  2. All other orders of custody in a deprivation proceeding (i.e. to someone other than DFCS) shall remain in effect for not more than two years. O.C.G.A. § 15-11-58.1.
  3. Orders extending custody to persons other than DFCS remain in effect for not more than two years. O.C.G.A. § 15-11-58.1(a)(4).
  4. All custody orders may be terminated by the court prior to its expiration if the purposes of the order have been accomplished. O.C.G.A. § 15-11-58.1(b).
  5. All orders affecting a child terminate when the child reaches the age of 18. O.C.G.A. § 15-11-58.1(c).

5. Suggestions for effective advocacy

 

 

Although the dispositional hearing is generally held at the same time as the adjudication, if a parent denies the allegations and the child is still adjudicated deprived, consider postponing the disposition. Parents may not have been willing to discuss disposition options or to work with DFCS prior to the adjudication. Postponing the disposition may allow the parties time to work out an agreeable case plan after the parent has had a "cooling down" period. (Granik p. 8). This will allow the attorney time to draft a proposed order incorporating the case plan.

 

The disposition hearing and order can be used to set the framework for future reviews. Ensure that the proceeding is recorded and establish a clear record that can be referred to in later reviews. The parent should not be held accountable for things that are not clearly addressed at the disposition hearing.

 

F. Permanency Planning (O.C.G.A. § 15-11-58)

 

 

Permanency Planning is the process of deciding upon a permanent placement for a child. The detrimental effect of multiple placements on children is becoming more widely recognized, and as a result, child advocates in the social service arena and the legal arena are working to limit the number of placements in which children reside. "Permanency planning" is an overarching term used to describe all the elements involved in developing case plans for children and parents, reviewing the case periodically and revising the case plan as necessary, and deciding where the child will be permanently placed.

 

Permanency planning should begin with the family's initial contact with DFCS. Discussion about "reducing the number of children in foster care" usually focuses heavily on ways to increase the number of children who are adopted. Another way to reduce the number of children in care is to reduce the number of children who enter foster care. Many deprivation cases result from situations that might be prevented by early intervention into a family by DFCS or another service provider. Attorneys generally do not become involved in cases until there are allegations that deprivation has occurred, but every attorney should find out (as soon as possible after agreeing to represent a parent or child) what actions have occurred since the family's very first contact with DFCS.

 

While this section is set apart from the sections on other distinct court proceedings, permanency planning is not something that occurs at a particular proceeding; it is something that flows through every proceeding in a deprivation case. Because permanency planning does not occur at one distinct proceeding this section will not follow the format of other sections discussing court proceedings and will instead discuss each element of permanency planning.

 

Two terms essential to discussions of permanency planning are "case plan" and "reasonable efforts." The case plan is the central element of permanency planning. The case plan states the problems resulting in deprivation, how they will be addressed, who will address them, the date by which they will be addressed, and the long-term goals for the child and family. The case plan defines the parameters of the ongoing case because all future decisions regarding reunification of the family (or termination of parental rights) will be based on progress toward the goals established in the case plan. For that reason, participation of the parents, the child, and their advocates in the development of the case plan is critical. This is said with knowledge that as a practical matter case plans are usually developed by a caseworker with little or no input from a parent or anyone else. To emphasize the importance of appropriate case plans attorneys should not that many termination of parental rights cases are decided based upon compliance with a case plan.

 

"Reasonable efforts" is a description of the affirmative duty of DFCS to limit the number of children in foster care and the length of a child's stay in foster care. This obligation is placed on every state that receives federal money to assist with the cost of keeping children in foster care. (P.L. 96-272). The duty imposed upon DFCS is to make "reasonable efforts" to prevent a child from coming into care (i.e. provide preventive services to a family to eliminate the need for removing the child), and to make "reasonable efforts" to reunify the family after the child has been removed (i.e. provide support and rehabilitative services to remedy the situation that led to the removal of the child). The judge is required to make a determination regarding whether DFCS has made "reasonable efforts" at every stage of the proceedings (72-hour hearing, adjudication, disposition, reviews, etc.). The Federal Adoption and Safe Families Act of 1997 (P.L. 105-89), discussed in Section II, lists circumstances in which reasonable efforts toward reunification do no need to be made. Reasonable efforts and case plans will be discussed in more detail below.

 

Although permanency planning is a component of every proceeding, there are some distinct proceedings that are designed solely for permanency planning, especially periodic reviews and hearings on non-reunification plans. These will be discussed below.

 

One misconception about permanency planning is that it has only two possible outcomes: reunification of a family or termination of parental rights and adoption. A "permanent placement" for a child can actually be a variety of settings, and the goal is to find the one that is in the best interests of the child. "Permanent" options may include:

  1. reunification (return to birth home)
  2. termination of parental rights and adoption
  3. long-term foster care
  4. independent living program (for older teens)
  5. placement in a group home
  6. guardianship to a relative or family friend

 

 

The primary statute addressing permanency planning is O.C.G.A. § 15-11-58. This statute should be read every time a case file is reviewed. This statute is quite detailed and has been revised every year for the last several years.

1. Case Plans

 

As soon as a child is taken into DFCS custody DFCS is to begin developing a case plan for that child and the family. This case plan is usually referred to as a "30-day case plan" because it must be submitted to the court in writing within 30 days after DFCS takes custody of the child. DFCS may submit a non-reunification plan instead of a 30-day case plan if DFCS does not think reunification is appropriate (see discussion below). Either the case plan or the non-reunification plan is submitted to the judge as part of a report. O.C.G.A. § 15-11-58(b). The report must contain any dissenting recommendations of the citizen review panel (if the panel was involved in developing the plan) and any recommendation made by the parents. The case plan should be developed with the parents. In fact, DFCS must provide five days written notice of the meeting to the parents and must advise the parents that the report will be submitted to be an order of the court. If the county has a Citizen Review Panel, the panel is to be included in the development of the case plan. (In practice, this generally does not happen). The parents must understand that the case plan contains the key to getting the child back in the home, and that not complying with the case plan may lead to termination of their parental rights. Parents should ALWAYS participate in the development of the case plan. An attorney is probably not aware of the case at the time the 30-day case plan is being developed, but should become involved in developing the permanent case plan. This is not commonly done and may be met with resistance from other participants in the process. However, development of the case plan is a critical step in the deprivation process and nothing prohibits the parents' attorney, the child's attorney, or the GAL or CASA from participating in this process. If reunification is recommended, the parents have five days to request a hearing on the case plan; if a request is not made the case plan becomes a court order. If reunification is not recommended, the court will hold a hearing within 30 days.

 

Cooperative efforts in developing case plans will be enhanced if all participants are aware of the options available and the limitations imposed on each participant. One way to foster a cooperative relationship is to maintain ongoing communications within the county about changes in DFCS policies, perhaps through an informal monthly breakfast or lunch.

2. Recommended Elements of a Reunification Plan

 

 

A reunification plan shall address each reason requiring removal and shall contain at least the following: O.C.G.A. § 15-11-58(c).

  1. The purpose for which the child was placed in foster care
  2. A statement of the reasons why the child cannot be adequately protected at home
  3. A statement of the harm which may occur if the child remains in the home
  4. A description of the services offered and the services provided to prevent removal of the child from the home;
  5. A discussion of how the plan is designed to achieve a placement in the least restrictive, most family-like setting available and in close proximity to the home of the parents, consistent with the best interests and special needs of the child;
  6. A clear description of the specific actions to be taken by the parents
  7. A clear description of the specific services to be provided by DFCS or other appropriate agencies
  8. Specific time frames in which the goals of the plan are to be accomplished
  9. The person within DFCS or other agency which is directly responsible for ensuring that the plan is implemented;
  10. Consideration of a reasonable visitation schedule which allows the parents to maintain meaningful contact with their children through personal visits, telephone calls, and letters.

 

 

The case plan cannot condition the return of the child on parents' performance of actions (or receipt of services) that are not directly related to the circumstances necessitating separation, unless there is court review and approval of the conditions. However, this issue should be raised before the plan becomes part of the court's disposition order.

3. Nonreunification Plan

 

 

If reunification is not recommended, the court must hold a hearing within 30 days to determine whether reunification is appropriate (if DFCS files a nonreunification plan at any time during the pendency of the case the court must hold a hearing within 30 days). O.C.G.A. § 15-11-58(e). The law allowing for non-reunification plans is still relatively new so there is not yet case law on this topic. A plain reading of the statute indicates that the court must schedule the hearing upon receipt of a nonreunification plan (not upon a motion by a party), and that there is no discretion to waive or continue this hearing to a time beyond the 30 days.

 

At the hearing on the non-reunification plan DFCS must indicate whether and when the Department will proceed with termination of parental rights (TPR). If DFCS does not recommend TPR, the court may appoint a GAL to determine whether TPR should be filed. O.C.G.A. § 15-11-58(g).

 

When a recommendation is made that reunification services are not appropriate and should not be provided, the report shall address each reason requiring removal and shall contain at least the following: O.C.G.A. § 15-11-58(f).

  1. The purpose for which the child was placed in foster care
  2. a statement of the reasons why the child cannot be adequately protected at home
  3. a statement of the harm which may occur if the child remains in the home
  4. a description of the services offered and the services provided to prevent removal of the child from the home
  5. A clear statement describing all of the reasons supporting a finding that reasonable efforts to reunify a child with the child's family will be detrimental to the child, and that reunification services therefore need not be provided
  6. a statement of specific findings as to whether any of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-94.

 


At the hearing on the non-reunification plan the court must determine by clear and convincing evidence that reunification of the child with his or her family will be detrimental to the child. O.C.G.A. § 15-11-58(h). After such a finding DFCS no longer needs to provide reunification services to the family. Until parental rights have been terminated, however, parents continue to have rights regarding the child, including the right to reasonable visitation (unless the court has found visitation to be harmful to the child). Attorneys for parents and children may request that DFCS continue to facilitate the parent-child relationship and that DFCS continue to provide services to the child. While DFCS no longer has an affirmative duty to provide reunification services, the code is silent as to what specific services (other than "reunification services") DFCS may provide or may refuse to provide.

4. Presumption of Nonreunification

 

 

There shall be a presumption against reunification if the court finds by clear and convincing evidence that: O.C.G.A. § 15-11-58(h).

  1. The parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family;
  2. A child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions; or
  3. Any of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-94.

 


Attorneys for parents should remember that the effect of a presumption is the shifting of the burden of proof on that issue. This means that when one of the above situations exists, the burden is on the parent to prove why reunification should occur, rather than a burden upon DFCS to show why reunification should not occur. A discussion of rebutting these presumptions is beyond the scope of this manual. Information provided in section VI on termination of parental rights may provide guidance.

5. Reasonable Efforts (O.C.G.A. § 15-11-58(a)).

 

 

As stated above, reasonable efforts is the term used to describe what DFCS must be doing to prevent the need for removing a child from the home and to safely place the child back in the home. Federal law requires that at every stage of the proceedings the court must make a finding as to whether or not reasonable efforts were made by DFCS and any other appropriate agencies to:

  1. prevent or eliminate the need for removal AND
  2. make it possible for the child to return to the child's home.

 


If the judge finds that reasonable efforts have not been made, Georgia will lose the federal foster care maintenance payments provided for that child under Title IV-E of the Social Security Act. Georgia law requires a finding by the court regarding whether continuation in the home would be contrary to the welfare of the child and implies that this finding must be made at every review of the case by the court. O.C.G.A. § 15-11-58(a). The paragraphs of O.C.G.A. § 15-11-58 that discuss nonreunification plans imply that the reasonable efforts findings required by O.C.G.A. § 15-11-58(a) would not be necessary once a nonreunification plan is approved by the court, but the language requiring findings of fact regarding reasonable efforts to be made at every subsequent review of the court's order has not been modified . This appears to mean that an examination of reasonable efforts is still required at every court proceeding regardless of whether the plan is for reunification or for nonreunification.

 

Although they both require that "reasonable efforts" be made, the federal laws and the state laws are silent on what constitutes "reasonable efforts." One commonly accepted guideline is that "reasonable" refers to what is available within a particular area, given the area's resources. However, difficultly in obtaining necessary resources, including financial constraints, is not an adequate justification for failing to provide such resources. For a thorough explanation of "reasonable efforts," including the philosophy behind the requirement and concrete descriptions of what qualifies as "reasonable efforts," see Making Reasonable Efforts: Steps for Keeping Families Together. (This book was published with the cooperation of several groups including the National Council of Juvenile and Family Court Judges. A copy can be obtained by sending a self-addressed mailing label and request to: Office of Communications, Edna McConnell Clark Foundation, 250 Park Ave., New York, NY 10177-0026). The following list is a summary of recommended services to be made available under the Georgia's reasonable efforts requirements: (Making Reasonable Efforts, pp. 81-90; 45 C.F.R. Ch. XIII, § 1357.15(e)(2) (10-1-95 Edition)

  1. family preservation services;
  1. generic family based/family centered services;
  2. cash payments;
  • to meet emergency needs;
  • to provide ongoing financial support;
  1. noncash services to meet basic needs;
  • food and clothing;
  • housing (emergency shelter and permanent housing);
  1. noncash services to address specific problems;
  • in home respite care;
  • out of home respite care;
  • child day care;
  • treatment for substance abuse/chemical addiction;
  • homemaker services;
  • crisis counseling;
  • self-help groups;
  • vocational counseling or rehabilitation;
  • job training and placement
  • treatment for sexual abusers and victims;
  • mental health counseling/psychotherapy;
  • parental training;
  • life skills training;
  • household management assistance;
  1. facilitative services
  • visitation (to prepare both parent and child for their eventual reunification);
  • transportation (when services are geographically inaccessible).

 


Readers should note that this list was developed prior to "welfare reform" and the federal Adoption and Safe Families Act of 1997 (P.L. 105-89), and under the new provisions of TANF, DFCS may no longer be required to provide all the services listed above. This list can be used as a guide for parents, DFCS, and attorneys when working to develop a case plan. If any of the above services cannot be provided, the participants should question why the services are not available, and what alternatives are available. Effective advocates should identify alternate service providers. This task is becoming easier in Georgia; many service providers are now listed on the World Wide Web with information including whether they accept low-income clients and current availability.

 

After a case plan has been developed and incorporated into the court's disposition order, the case must be monitored by the court. Reviews can be conducted by the judge or by a citizen review panel made up of specially trained volunteers who are sworn officers of the court. The first periodic review must be held within 90 days of the entry of the dispositional order but not later than 6 months after the child initially entered care. O.C.G.A. § 15-11-58(k). These reviews must continue to be held at six month intervals as long as the child remains in DFCS custody and is not available for adoption. (After the child is freed for adoption the reviews are conducted annually. O.C.G.A. § 15-11-103(e). The purpose and scheduling of periodic reviews is changing as the laws in this area change. Since initial orders of custody to DFCS now expire after 12 months, the law may only require one periodic review during that period. In practice, however, many judges are ordering more frequent reviews of cases so that a citizen review panel may review a case 60 or 90 days after the dispositional order is entered, six months after than, and again prior to a hearing on a motion to extend custody if the child is not to be returned home at the end of one year.

 

In practice, participants in review hearings, especially if conducted by a citizen review panel, have not included attorneys for any party. However, after each review of a case, the court enters a supplemental order of disposition incorporating the case plan into the order. This supplemental order has the same legal effect as the original order of disposition, so all participants and their representatives should be as involved at this stage as they would at any other critical stage of the proceedings.

 

In counties where there is a citizen review panel, the panel coordinator will schedule the review and will notify DFCS and the parents. Attorneys may or may not be notified. DFCS is responsible for bringing the child, and the decision whether the child attends is generally based on the age of the child. The Uniform Rules of Juvenile Court discuss the Citizen Review Panel program (formally called the Permanent Homes Project) and list the issues to be addressed at each review. URJC 24.7. The following list includes those plus additional issues recommended as best practice techniques.

 

The key issues to be addressed at each review of the case include:

  1. Whether there is a need for continued placement of a child
  2. The appropriateness of the current placement for the child
  3. What degree of progress has been made by each participant toward the specific goals and objectives of the case plan
  4. What degree of compliance there has been to court orders and directives or agreements between the participants
  5. Whether any significant new developments have occurred since the last review (including allegations of deprivation that have been made since the adjudication; results of psychological or medical tests; concurrent criminal investigations or prosecutions which have resulting in incarceration of a parent; legitimation of the child by a putative father; location of a potential relative placement has been found)
  6. Whether the court-approved, long-term, permanent plan for the child remains the best plan for the child
  7. Whether the agency is making reasonable efforts to rehabilitate the family and eliminate the need for placement of the child
  8. Whether the relationship between the caseworker, the family, and the foster family is cooperative and productive or whether changes need to made to enhance the family's ability to achieve the goals of the case plan
  9. Whether services set forth in the case plan and the responsibilities of the parties need to be clarified or modified due to the availability of additional information or changed circumstances.
  10. Whether the child is in an appropriate placement which adequately meets all physical, emotional, and educational needs.
  11. Whether the child feels his or her needs are being met
  12. Whether experts who are involved in the case (i.e. therapists, physicians) feel the placement is appropriate for the child
  13. Whether the terms of visitation need to be modified.
  14. Whether terms of child support need to be set or adjusted.
  15. Whether any additional court orders need to be made to move the case toward successful completion.
  16. What time frame should be followed to achieve reunification or other permanent plan for the child.
  17. Whether DFCS intends to file a petition to terminate parental rights and if so, when they intend to do so.
  18. Whether a GAL needs to be appointed for the purpose of determining whether a petition for termination of parental rights should be filed, if no current parties have filed one.
  19. Whether the panel recommends that termination of parental rights would be a more appropriate plan that the one agreed upon by the participants.

 

GUIDELINES, p. 75; Duquette, pp. 84-86; O.C.G.A. § 15-11-58(k), O.C.G.A. § 15-11-58(l).

 

In addition to the above questions, if long-term foster care is proposed as the permanent plan, the following information should be addressed at each review:

  1. The facts and circumstances refuting the grounds for termination of parental rights (demonstrating the fitness of the parents) or showing that although the child cannot be placed with parents, termination is not in the best interests of the child
  2. The facts and circumstances explaining why custody is not practical or appropriate
  3. Facts and circumstances demonstrating the appropriateness of the foster parents and the foster parents' commitment to permanently caring for the child
  4. A plan to ensure the stability of the placement
  5. Whether arrangements will be made for visitation with the parents, and if so, what those arrangements will be
  6. Whether arrangements will be made for visitation with the siblings or other relatives, and if so, what those arrangements will be.

 

 

GUIDELINES, p. 86.

 

If the review is conducted by a Citizen Review Panel, the following actions will occur: O.C.G.A. § 15-11-58(k) - (l).

  1. The panel's report, findings, and recommendation, along with DFCS revised permanency plan, shall be submitted to the court and the parents within five days after the review.
  2. Any party has five days after receipt of the plan to request a hearing by the judge.
  3. If no hearing is requested or scheduled by the court on its own motion, the court shall review the proposed revised plan and enter a supplemental order incorporating a revised plan as part of its disposition in the case.
  4. If a hearing is held, the court shall hear evidence and then enter a supplemental order incorporating all elements of the revised case plan that the court finds essential.
  5. The supplemental order shall be entered within a "reasonable time" from the conclusion of the hearing or the time allowed to schedule a hearing.

 


In addition to incorporating the terms of the case plan, the court's supplemental order shall provide one of the following:

  1. That the child return to the home of his or her parents, legal guardian, or custodian with or without court imposed conditions;
  2. That the child continue in the current custodial placement and that the current placement is appropriate for the child's needs; or
  3. That the child continues in the current custodial placement but that the current placement plan is no longer appropriate for the child's needs and direct the department to devise another plan within available resources.

 

 

If the department is directed to develop a new plan, the new plan must be submitted within ten days for court approval. Copies of any court approved revised plan shall be furnished to all parties.

 

Attorneys for parents should use each review hearing as an opportunity to move the parent toward their ultimate goal, which is usually to have the child placed back in the home. If the parent disagrees with the recommendation of the citizen review panel, a request for a judicial review should be made. If the parent has partially or fully complied with any of the goals on the case plan, appropriate changes should be requested to allow the parent to demonstrate his or her newly acquired abilities. For example, if a parent has completed parenting classes, the frequency and duration of visitation should be increased. If an abusive resident of the house has moved out, a request should be made for unsupervised visitation or for overnight visitation. It is also appropriate to request that the child be returned to the home if compliance with the case plan warrants the return. There is no requirement that custody must remain with DFCS for the duration of the order; the court may modify its orders at any time with cause. Changes in the case plan goals themselves may need to be made to assist the parent with progress. For example, if a parent has completed a substance abuse rehabilitation program, but feels that he or she is still at risk of relapsing, DFCS should be asked to provide support services to alleviate conditions which may result in a relapse. Similarly, the parent may need to be in individual therapy or may need homemaker or child care services until the parent is better able to be fully self-sufficient. If proposals are made to revise any of the case plan goals, all participants should remain mindful that all elements of the case plan must be based on the original finding of deprivation. If not, a court review of the case plan is necessary. This fact may get "lost" in discussions in the case review process regarding what the family "needs" or what is "best" for the family, but it may not be in the parent's best interest to have items in a case plan that are not related to the original order finding deprivation.

 

Remember that it is not necessary to wait until a scheduled review to request modifications to a case plan or to custody and visitation orders.

 

If a primary goal of advocacy on behalf of a parent is to reunify family, one way to achieve this goal is to get the parent to comply with the case plan. The likelihood of compliance is greater when the case plan is designed to be "compliable." The parent and the attorney can ensure that appropriate case plans are developed by participating in case plan meetings and review hearings. Attorneys should note that these are not adversarial proceedings so their presence may not be welcome (the SAAG and GAL almost never attend), and may actually be detrimental to the parent's position. However, there are no prohibitions against participating in these proceedings. The court may question billing for participating in these proceedings because they are not considered "necessary proceedings." Attorneys should respond that they are part of case preparation, particularly since failure to comply with a case plan can lead to termination of parental rights. Furthermore, attendance at review proceedings can be a useful discovery tool. Attorneys who do attend review proceedings should try to review the current DFCS case plan in advance. Attorneys who do not attend reviews may wish to meet with the parents before and after the proceedings.

 

If DFCS is not adhering to their requirements under the case plan, filing a motion for contempt to force the provision of services is an option. Another option is to request a hearing on the recommendations of the citizen review panel in the hopes involving the judge directly in the discussion of the case plan will force DFCS into compliance. As one advocate delicately stated, "...while avoiding any antagonism, you will, of course, also emphasize the gaps in agency services and assistance to the parents." (Granik, p. 11).

 

G. Extension of Custody (O.C.G.A. § 15-11-58(n))

1. The type of proceeding, including the burden of proof

 

 

A hearing on a motion to extend custody is a court proceeding to decide whether the current placement of a child should be maintained although the order placing the child is due to expire. Any person with temporary custody of a child may, with appropriate factual basis, petition the court for an extension of custody. If petitioner is DFCS, custody can be extended for up to one year; any other petitioner may have custody extended for up to two years.

2. When the proceeding will occur

 

 

A hearing on a petition (motion) to extend custody must be held prior to the expiration of the current order of custody (i.e. the petition must be filed in sufficient time for a hearing to be held on the matter). Failure to do so can result in a reversal on appeal of a decision to extend temporary custody. However, the parents or guardians must object to the failure to properly file the motion on time during the extension hearing or they will lose the right to object to the state's mistake on appeal. Page v. Shuff, 160 Ga. App. 866 (1982). A dispositional order which is allowed to expire before a proper extension is given by the juvenile court would seem to require the return of the child to his parents or guardian. However, DFCS could file a new deprivation petition requesting that the child be placed in DFCS custody and the judge could issue an emergency order to keep the child out of the home.

3. Who is usually involved in the proceeding

 

 

Participants at a hearing on a motion to extend custody should include those listed as participants in the adjudicatory hearing, noting that different witnesses may be used at the extension hearing.

4. What the purpose of the proceeding is and what will occur during the proceeding

 

 

A hearing shall be held on a motion for extension of custody to determine the future status of the child. The petitioner need not establish present deprivation; the court is to determine whether "extension of custody is necessary to accomplish the purposes of the order extended." The implication is that if the causes of the original deprivation have not been remedied (i.e. the requirements of the case plan have not been fulfilled), then an extension will be granted. Similarly, if the desire to keep the child in DFCS custody is based upon circumstances which were not addressed in the original petition, the appropriate procedure would be to file a new deprivation petition, not a motion to extend custody.

 

The key issues to be addressed at a hearing on a custody extension include those which are to be addressed at each review of the case as well as the following:

  1. Have the purposes of the disposition order been accomplished?
  2. Is continuing the child in an out-of-home placement in the child's best interests?
  3. Has enough progress been made toward the goals of the case plan to remedy the conditions resulting in deprivation so that it is safe for the child to be placed back in the home?
  4. Is the relationship between DFCS and the family cooperative so that if the child is placed back in the home the family would continue to work with DFCS toward achieving the goals of the case plan if not already achieved?

 

 

As the trend to move children to permanent placements more quickly continues, the nature of motions to extend custody will change. It has been common practice in the past to continue placement with DFCS for several years while the parent works toward accomplishing the goals of the case plan. The critical questions being asked in Georgia and across the country are, "How long should it take for a parent to remedy conditions resulting in deprivation? How long should the court allow a parent to 'work on' becoming a safe, adequate parent? How long is it fair to leave a child in a 'temporary' placement?"

 

The federal government has provided guidance in answering these questions in The federal Adoption and Safe Families Act of 1997 (P .L. 105-89). This law requires a permanency hearing to be held after a child has been in foster care for one year. The law requires DFCS to file a petition to terminate parental rights when a child has been in foster care for 15 of the previous 22 months, unless:

  1. the state has placed the child with a relative,
  2. the state has documented a compelling reason for determining that terminating parental rights would not be in the best interest of the child, or
  3. the state has not provided appropriate reunification services, if such services were warranted.

 

 

Georgia law is already in substantial compliance with these new federal requirements. As Georgia becomes fully aligned with federal laws, motions to extend custody will be reserved for cases where the permanent plan for a child is long-term foster care or independent living, or for private deprivation cases.

 

H. Modifications and other proceedings

1. Modification

 

 

If any party or person having an interest in the child wishes to modify the terms of the orders of the court, the party may put that request in the form of a motion and request a hearing on the matter. "An [deprivation] order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child . . ." O.C.G.A. § 15-11-40(b).

 

The most common type of motion is a motion to modify custody or visitation (i.e. to change from supervised visitation to unsupervised visitation). Another type of modification is a return of physical custody: If a deprived child is in the custody of DFCS and DFCS wants to return custody to the parent, the court must approve this return of custody and may impose conditions and limitations necessary for the protection of the child. The court may recite the conditions which must occur before the child can be returned home and may authorize the return of the child upon completion of those conditions, without the need for an additional court hearing. At modification hearings, particularly on the return of custody, the court should examine the following issues:

  1. How the conditions or circumstances leading to the removal of the child have been corrected;
  2. The frequency of recent visitation and its impact on the child;
  3. A plan for the child's safe return home and follow-up supervision after family reunification

 

 

GUIDELINES, p. 85.

2. Judicial Review of Placement

 

 

As discussed earlier in Section VI, if custody is placed with DFCS-DHR, the court may at any time conduct a sua sponte judicial review of the current placement plan for the child.

 

I. Termination of Parental Rights (O.C.G.A. § 15-11-93 et. seq.)

1. The type of proceeding, including the burden of proof

 

 

A termination of parental rights hearing is a formal fact-finding court proceeding held to determine whether there is clear and convincing evidence of parental misconduct and inability to support severance of the parent-child relationship, and whether terminating this relationship is in the best interests of the child. An order terminating parental rights is "without limit as to duration and terminates all the parent's right and obligations with respect to the child and all rights and obligations of the child to the parent arising from the parental relationship, including rights of inheritance." O.C.G.A. § 15-11-93

 

 

2. When the proceeding will occur

 

 

Title 15 is silent regarding the time frame in which a hearing on a termination of parental rights (TPR) petition must take place. The hearing should be held within a reasonable time after the filing of the petition and the order from the hearing must be issued within one year of the proceeding. O.C.G.A. § 15-11-95. Petitions for TPR have generally not been filed until reunification services have been provided to families for at least one year, and usually for several years. In extreme cases (i.e. clear abandonment of an infant, death of a child) TPR petitions have been filed within less time. The passage of Senate Bill 611 in 1996 paved the way for earlier filings of TPR petitions, as will the federal Adoption and Safe Families Act of 1997 (P.L. 105-89). DFCS is authorized to make determinations that reunification is not appropriate at the earliest contact with the family. At the hearing on the recommendation for nonreunification, DFCS must inform the court whether and when the Department intends to file a TPR petition. O.C.G.A. § 15-11-58. The intent of the legislation is to encourage a decision regarding termination of parental rights within one year after the child is taken into DFCS custody. (1996-97 hearings of the Georgia Senate Study Committee on Foster Care).

3. Who is usually involved in the proceeding

 

 

Persons who should be included as participants in termination proceedings include those listed under "Adjudications". In Georgia there are detailed statutes discussing the inclusion of fathers in these proceedings; see pages 111-114 of the GAL manual for a discussion of this subject. O.C.G.A. § 15-11-96.

4. What the purpose of the proceeding is and what will occur during the proceeding

 

 

The purpose of a hearing on a TPR petition is to make a two-part determination:

  • whether there is clear and convincing evidence of parental misconduct or inability, as discussed below;
  • whether termination of parental rights is in the best interest of the child.

 

 

A review of the case law on TPR emphasizes the fact-specific nature of each determination. Attorneys should research the current law when representing a parent or child in a TPR proceeding. The following list of statutory grounds for TPR contains comments about each ground for termination; this may provide initial guidance for researching this area of the law. Additionally, section X of the GAL manual contains a detailed discussion of Georgia TPR cases.

 

The first part of the determination to terminate parental rights requires a finding of parental misconduct or inability. The following paragraphs address this aspect of the determination.

 

The statutory grounds for terminating parental rights are: (O.C.G.A. § 15-11-94(b))

  1. Written consent of parent, acknowledged before the court;
  2. Wanton and willful failure to comply with a lawful court order to provide support for the child for a period of 12 months or longer;
  3. Abandonment of the child without coming forward within 3 months of the child being found; or
  4. Judicial determination of parental misconduct or inability by a court finding that:
  • the child is a deprived child; AND
  • the lack of proper parental care or control by the parent in question is the cause of the child's status as deprived; AND
  • such cause of deprivation is likely to continue or will not likely be remedied; AND
  • the continued deprivation will cause or is likely to case serious physical, mental, emotional, or moral harm to the child.

 

 

The following pages discuss circumstances set out in the code which are to guide the court in its determination of whether the child is deprived. These are circumstances the court is directed to consider, but the list is not conclusive; the court may also consider circumstances and factors other than those listed in O.C.G.A. § 15-11-94.

 

First, the 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."

 

In order to establish this basis, an expert diagnosis of the parent is often needed. The state's expert should testify that the parent cannot benefit from reunification services, that the condition renders the parent incapable of effectively parenting the child, and that the prognosis is that the condition is not likely to improve regardless of services which may or may not be provided. ( Early Termination of Parental Rights: Developing Appropriate Statutory Grounds, Mark Hardin, Robert Lancour; ABA Center on Children and the Law, with the support of the Edna McConnell Foundation, 1996 ABA, p. 14.)

 

In many deprivation cases where parents suffer from some form of mental or emotional incapacity, the parents' incapacity may not be severe enough to justify termination of parental rights based on that incapacity alone, as the provision of support services may allow the parent to safely care for the child. However, if DFCS provides reasonable support services and the parent does not improve enough over time to be able to care for the child without the assistance of such services, DFCS may move to terminate parental rights based on failure to comply with a court ordered case plan. (Id.) Where the incapacity is so severe that the parent is unable to safely care for the child, even with the provision of services, grounds for early termination may exist (i.e., nonreunification plan). Also, the level of incapacity of the parent, with regard to the parent's ability to care for the child, may depend on the child's condition. For example, a mildly incapacitated parent may not have difficulty caring for a child who is emotionally and physically healthy, but may not be able to care for a child with special needs.(Id. at 15). The test which has been applied by the Court of Appeals is whether the parent, standing alone, is ultimately capable of mastering proper parental skills. In re S.R.J., 176 Ga. App. 685 (1985). Attorneys representing parents who suffer from mental or physical disabilities may wish to consult with resource centers for persons with disabilities.

 

Second, the court may consider the parent's "excessive use of or history of chronic abuse of intoxicating substances having the effect of rendering the parent incapable of adequately providing for the needs of the child."

 

"This ground is very similar to the long-term physical, mental, or emotional incapacity ground, but it is distinct in [the] statutes because of the perceived voluntary nature of drug and alcohol-related disabilities. The effect of the disability, however, is still the same - a parent who is unable to care for a child." (Hardin and Lancour at 16).

 

Attorneys representing parents included in this category may wish to research the area of substance abuse treatment, including how many attempts at rehabilitation are common before addicts experience long-term success and what support is needed to prevent relapses. Evidence regarding the support structure for the parent during and after treatment may support assertions that the parent will be able to resume parental responsibilities in the future.

 

Third, the court may consider a felony conviction and imprisonment if it has a "demonstrable negative effect on the quality of the parent-child relationship." Incarceration of a parent in and of itself cannot serve as grounds for termination of parental rights. However, the longer a parent's sentence, the easier it is for DFCS to prove a "demonstrable negative effect." Until a non-reunification plan is filed (and perhaps until TPR), DFCS should provide support services to parents who are incarcerated, including providing transportation for children to visit parents. DFCS is supposed to keep parents informed of all actions regarding the child, including periodic reviews, and should arrange for the parents to be included in actions involving the child, even if it is through the submission of a letter from the parent to the citizen review panel.

 

Fourth, the court may consider "egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature; physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent; or injury or death of a sibling under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse."

 

As discussed on pages earlier, past deprivation alone will not be considered sufficient to prove present deprivation, but it can be used as evidence as to whether such conditions are likely to continue into the future. (In the interest of A.M.B. et al, 219 Ga. App. 133 (1995); In the interest of B.J., 220 Ga. App. 144 (1996)). For a finding to be based on these circumstances, the maltreatment of the second child must be similar to the maltreatment of the first, and reasonably close in time to the prior instance of abuse or neglect. "When the maltreatment is similar, then the agency's rehabilitation strategy for the family has already been proven to be unsuccessful. If the maltreatment is fundamentally different, another approach might be workable." (Hardin and Lancour at 17). Therefore attorneys for parents should demonstrate the differences between prior circumstances and current circumstances and should provide suggestions for addressing the situation other than through TPR. Attorneys should note that in ruling on the question of deprivation, the juvenile court is allowed to take judicial noticeof a previously unappealed ruling finding the child to be deprived if such an order is still in effect. In the Interest of I.R., 202 Ga. app. 418 (1992). The records of previous hearings concerning the child who is the subject of the petition are admissible in any subsequent deprivation or termination proceedings in regards to that child. O.C.G.A. § 15-11-101.

 

Finally, the court may also consider whether the parent has, without justifiable cause, failed significantly for a period of one year or longer prior to the filing of the petition to:

  • "communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner;
  • provide for the care and support of the child as required by law or judicial decree;
  • comply with a court ordered plan designed to reunite the child with the parent or parents."

 

 

O.C.G.A. § 15-11-94(b).

 

 

These circumstances amount to abandonment. In termination hearings, the question of abandonment is settled by a finding of clear and convincing evidence of "actual desertion, accompanied by the intention to sever entirely, so far as possible to do so, the parental relation and throw off all obligations growing out of the same, and forego all parental duties and claims." Thrasher v. Glynn County Dep't of Family and Children Services, 162 Ga. App. 702 (1982).

 

DFCS is not required to make reasonable reunification efforts for a full year before filing for termination. Nor must the parent be given a full year to comply with the court-ordered case plan unless §15-11-94(b)(4)(c) is the sole basis for termination. In the Interest of A.M.B., 219 Ga. App. 133 (1995). In showing that a parent has failed to comply with a court-ordered case plan, DFCS should be required to prove that:

  1. the case plan was realistic and was designed to correct the behavior which led to removal of child;
  2. it made reasonable efforts to implement the plan and provide for reunification and complied with all the requirements imposed upon the Department through the plan;
  3. the parents failed to meet the goals and objectives of the plan and that over time, the parents consistently failed to take action to correct the behavior or conditions leading to removal of the child. (Hardin and Lancour at 12).

 

 

After the court satisfies the first requirement of a termination determination - a finding of parental misconduct or inability- the court must then consider the second requirement -whether termination is in the best interests of the child. In its determination the court must consider the following:

  1. physical condition and needs of child;
  2. mental condition and needs of child;
  3. emotional condition and needs of child;
  4. moral condition and needs of child;
  5. child's need for a secure and stable home.

 

 

The same evidence that supports a finding that there is parental misconduct or inability can also support the finding that termination is in the child's best interests. See In the Interest of B.P., 207 Ga. App. 242, 245 (1992).

 

If a court decides to terminate parental rights, it should do so with the goal of adoption. Therefore "the best interests of the child require that the court examine whether it is appropriate and feasible for the particular child." (Hardin and Lancour at 20). This examination includes three principal issues: (Id. at 20-23)

  1. Is termination needed to secure a permanent placement for the child? Even if grounds exist for termination of parental rights, if the permanent plan for the child is not adoption, then termination is not necessary to achieve the permanent plan.
  2. As a practical matter, is it likely that the child will be adopted, and when will that occur? "While all children are potentially adoptable in the right circumstances, in reality there are children who, following termination of parental rights, are difficult to place and never get adopted. These children lose ties to their biological parents at least through their childhood and, in some cases, lose ties to their extended families without receiving anything to replace those ties." One way to address this situation is for the court to require DFCS to develop an adoption plan for hard-to-adopt children. The plan need not identify a specific adoptive home, but should be a workable plan supported by evidence that DFCS has made successful efforts to place similar children for adoption in the past.(With the 1997 creation of the Georgia State Office of Adoptions, the responsibilities of DFCS with regard to placing children for adoption have changed. Attorneys should consult current law and policy on this subject.)
  3. Another practical matter is whether adoption is financially feasible for a potential adoptive family. Some special needs children may require extraordinary time and attention and may have excessive medical or other expenses. Government assistance to these children may be reduced or eliminated when they are adopted. While Georgia is working to eliminate this problem and will work with adoptive families to obtain adoption assistance, it may be in the best interest of the child to arrange a long-term foster care situation rather than move to terminate parental rights.

 

 

Even if the parents are not ready to assume full custody of the children, termination of parental rights is not appropriate and is not in the best interest of the child if the parents will likely be able to assume custody in the future and the evidence does not support a finding of present deprivation or that deprivation will continue in the future. In the Interest of C.R.U. and J.U., 223 Ga. App. 440 (1996).

 

Even when parental unfitness is shown, termination of parental rights should not occur if it is not in the best interests of the child. Consequently, one way to prevent termination is to demonstrate how maintaining the parental relationship is in the best interests of the child. Expert witnesses who evaluate the child and parent are often used to testify regarding the quality of the parent-child relationship and the probable effects of termination. Other evidence may include documentation of the efforts of the parent to maintain a relationship with the child (dates of calls, letters and visits).

 

The court's written findings of fact and conclusions of law issued at the conclusion of the termination of parental rights hearing should:

  1. indicate whether or not termination is granted
  2. address whether the grounds for termination were satisfied and, if so, whether termination was in the best interests of the child
  3. detail the specific facts supporting the finding
  4. be sufficient for the purpose of appellate review
  5. set a schedule for subsequent judicial review for DFCS (or Office of Adoptions) efforts toward adoption of the child

 

 

GUIDELINES, p. 99

 

 

After parental rights have been terminated, DFCS and the court have the following obligations regarding placement of the child: (O.C.G.A. § 15-11-103(a))

  1. If the rights of both parents are terminated, the court shall first attempt to place the child with a person related to the child by blood or marriage.
  2. DFCS and the court are required to perform "an exhaustive and thorough search for a suitable family member." There is not a requirement, however, to place a child with an available relative if the court finds that child would not be properly served by such placement. In the Interest of D.T., 221 Ga. app. 328, 471 S.E.2d 281 (1996).
  3. If the child is not placed with a relative, the child may be committed to DFCS or to a licensed child-placing agency. (Refer to the state Office of Adoptions for more information on such an agency)

 

 

If a petition seeking adoption of the child has not been filed within one year after the order terminating parental rights, the court shall "review the circumstances of the child to determine what efforts have been made to assure that the child will be adopted," and the court may enter such orders as it deems necessary, including a change of placement. An annual judicial review must occur thereafter, for as long as the child remains in the custody of DFCS. O.C.G.A. § 15-11-103(d).

 

 

 

 

J. Appeals

1. The type of proceeding, including the burden of proof

 

 

An appeal is a formal method of challenging an order of a court for cause. In juvenile court proceedings other actions are available for this purpose and should be taken prior to filing a formal appeal (although time limits for appeals exist).

 

The following outline briefly mentions the actions a party can take after deciding to appeal a juvenile court decision. A more complete discussion can be found in section XI of the GAL manual. The decision to appeal should be made with the client after a careful assessment of the circumstances. An appeal is financially and emotionally draining, and especially if it is an appeal of TPR, it leaves the family relationship in limbo. One way to reduce the stress is to consider making a request for expedited review, perhaps with attached affidavits of experts stating the damage to the family and child if the appeal is not completed quickly. (Granik, p. 12)

  1. The first step in the appeals process is a request to the issuing juvenile court for a modification or vacation of the order. O.C.G.A. § 15-11-40. The juvenile court has authority to revoke, reverse or modify its own order, even an order terminating parental rights. (In re P.S.C., 143 Ga. App. 887 (1977); In re H.A.M., 201 Ga. App. 49 (1991).
  1. An order shall be set aside if:
  • it was obtained by fraud or mistake;
  • the court lacked jurisdiction;
  • newly discovered evidence so requires. O.C.G.A. § 15-11-40(a).
  1. If the matter is heard by an associate juvenile court judge and is other than a detention or probable cause hearing, any party may file a written request within five days after receiving written notice of the findings of the hearing to have a rehearing by a full judge. The rehearing contemplated by this code section is a de novo review of the evidence presented to the associate juvenile court judge; it is neither a review of the associate judge's findings nor a de novo evidentiary hearing. O.C.G.A. § 15-11-21(e); In re M.E.T., 197 Ga. App. 255 (1990).
  2. An order of the juvenile court may be challenged by a motion for a new trial based on the grounds permitted under O.C.G.A. § 5-5-20 through § 5-5-25. (In re T.A.W., 265 Ga. 106 (1995).
  3. Appeals to the Court of Appeals or Supreme Court shall be in the same manner as appeals from the superior court.
  • The rule of Jacobson v. State, 201 Ga. App. 749 (1991) is applied in juvenile court: Objections not raised at trial are deemed waived and cannot be raised for the first time on appeal. Applied in In the Interest of D.L.S., 224 Ga. app. 660 (1997).
  • Notice of appeal must be filed within 30 days after entry of final judgment.
  • For purposes of appeal, all orders resulting in a final judgment at the conclusion of a dispositional hearing are considered "final judgments" according to O.C.G.A. § 5-6-34 which provides for appeals "[w] here the judgment is final-that is to say- where the cause is no longer pending in the court below." J.T.M. v. State, 142 Ga. App. 635 (1977). BUT appeal from an order is premature when the appeal is made while the order's charges are still in a period of abeyance. In the Interest of M.T., 223 Ga. App. 615 (1996).
  • O.C.G.A. § 5-6-34(a)(I) states that all final judgments are appealable by direct appeal.
  • The Court of Appeals in In re J.P., 267 Ga. 492 (1997), held that when the underlying proceeding and the order being applied primarily address the issue of whether a child is deprived, rather than who shall have custody of the child, a direct appeal is the appropriate means by which to appeal. An application for discretionary appeal is not required in appeals from deprivation orders because deprivation cases under Title 15 are neither child custody cases nor domestic relations cases under O.C.G.A. § 5-6-35. (O.C.G.A. § 15-11-3)
  • In the Interest of J.E.P. , 252 Ga. 520 (1984), states that O.C.G.A. § 5-6-35(a)(2) applies to custody proceedings in which the state or a state agency is a party.
  1. No order or judgment shall be superseded except in the discretion of the judge. O.C.G.A. § 15-11-3.
  2. On review, evidence is examined under the standard of Jackson v. Virginia 443 U.S. 307 (1979): all reasonable inferences from the evidence are construed in favor of the juvenile court's findings. In the Interest of J.K.D., 211 Ga. App. 776, 777 (1994).
  3. Standing: A person not a party to a petition or motion in a deprivation action does not have standing to challenge the disposition of the petition or motion even where the appellant is the biological mother and the original petitioners were the maternal grandparents. In the Interest of J.C.H., 224 Ga. app. 708 (1997).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table of Authorities

 

 

Cases

 

A.C.G. v. State, 131 Ga. App. 156 (1974) 17

 

Brown v. Fulton County DFCS, 136 Ga. App. 308 (1975) 48

 

Dawley v. Butts Co. DFCS, 148 Ga.app. 815 (1979) 18

 

Elrod v. DFCS, 136 Ga. App. 251 (1975) 48

 

English v. Milby, 233 Ga. 7 (1974) 38

 

Griswold v. Connecticut, 381 U.S. 479 (1965) 23

 

In re D.R.C., 191 Ga. App. 278 (1989) 34

 

In re H.A.M., 201 Ga. App. 49 (1991) 78

 

In re J.N.T., 212 Ga. App. 498 (1994) 55

 

In re J.P., 267 Ga. 492 (1997) 79

 

In re J.S.C., 182 Ga. App. 721 (1987) 18

 

In re J.T.S., 185 Ga. App. 772 (1988) 39

 

In re L.L.W., 141 Ga. App. 32 (1977) 17

 

In re M.C.J., 271 Ga. 546, 548 (1999). 28, 31

 

In re M.E.T., 197 Ga. App. 255 (1990) 78

 

In re M.M.A., 166 Ga App. 620 (1983) 39

 

In re R.L.M., 171 Ga. App. 940 (1984) 55

 

In re S.R.J., 176 Ga. App. 685 (1985) 73

 

In re T.A.W., 265 Ga. 106 (1995) 78

 

In re W.W.W., 213 Ga. App. 732 (1994) 28, 30

 

In the interest of A.M.B. et al, 219 Ga. App. 133 (1995) 74

 

In the Interest of A.M.B., 219 Ga. App. 133 (1995) 75

 

In the Interest of A.V.B., 222 Ga.App. 241 (1997) 34

 

In the interest of B.J., 220 Ga. App. 144 (1996) 74

 

In the Interest of B.P., 207 Ga. App. 242, 245 (1992) 76

 

In the Interest of C.R.U. and J.U., 223 Ga. App. 440 (1996) 76

 

In the Interest of D.L.S., 224 Ga. app. 660 (1997) 78

 

In the Interest of D.T., 221 Ga. app. 328, 471 S.E.2d 281 (1996) 77

 

In the Interest of I.R., 202 Ga. app. 418 (1992) 74

 

In the Interest of J.C.H., 224 Ga. app. 708 (1997) 79

 

In the Interest of J.E.P. , 252 Ga. 520 (1984) 79

 

In the Interest of J.K.D., 211 Ga. App. 776 (1994) 79

 

In the Interest of M.M., 222 Ga. App. 313 (1996) 31

 

In the Interest of M.T., 223 Ga. App. 615 (1996) 79

 

J.T.M. v. State, 142 Ga. App. 635 (1977) 79

 

Jackson v. Virginia 443 U.S. 307 (1979) 79

 

Jacobson v. State, 201 Ga. App. 749 (1991) 78

 

Jones v. D.H.R, 155 Ga.App. 371 (1980) 48

 

Lewis v. Winzenreid, 263 Ga. 459 (1993) 48

 

Longshore v. State, 239 Ga. 437 (1977) 34

 

Moss v. Moss, 135 Ga. App. 401 (1975) 39

 

Napper v. Georgia Television Co., 257 Ga. 156 (1987) 38

 

Nix v. DHR, 236 Ga. 794 (1976) 23

 

Page v. Shuff, 160 Ga. App. 866 (1982) 68

 

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 23

 

Prince v. Massachusetts, 321 U.S. 158 (1944) 23

 

R.C.N. v. Georgia, 141 Ga. App. 490 (1977) 48

 

Ray v. D.H.R., 155 Ga. App. 81 (1980) 39

 

re P.S.C., 143 Ga. App. 887 (1977) 78

 

Roberts v. State of Georgia , 141 Ga.App. 268 (1977) 48

 

Santosky v. Kramer, 455 U.S. 745, 753 (1982) 23

 

Skipper v. Smith, 239 Ga. 854 (1977) 23

 

T.L.T. v. State, 133 Ga. App. 895 (1975) 15

 

Thrasher v. Glynn County Dep't of Family and Children Services, 162 Ga. App. 702 (1982) 75

 

Vermilyea v. Dep't of Human Resources, 155 Ga. App. 746 (1980) 48

 

Watkins v. Watkins, 266 Ga. 269 (1996) 31

 

Wisconsin v. Yoder, 406 U.S. 205 (1972) 23

 

Official Code of Georgia Annotated

 

42 U.S.C. § 5106(b)(6) 17

 

Irvin v. DHR, 159 Ga. App. 101 (1981) 42

 

O.C.G.A. § 15-11-100 40

 

O.C.G.A. § 15-11-101 74

 

O.C.G.A. § 15-11-103(a) 77

 

O.C.G.A. § 15-11-103(d). 77

 

O.C.G.A. § 15-11-103(e) 64

 

O.C.G.A. § 15-11-11 44, 56

 

O.C.G.A. § 15-11-12(a) 41, 56

 

O.C.G.A. § 15-11-12(b) 40

 

O.C.G.A. § 15-11-13 56

 

O.C.G.A. § 15-11-18 9

 

O.C.G.A. § 15-11-2(10.1)(A-E) 22

 

O.C.G.A. § 15-11-2(10.2) 21

 

O.C.G.A. § 15-11-21 15

 

O.C.G.A. § 15-11-21(e) 78

 

O.C.G.A. § 15-11-28 (c) 30

 

O.C.G.A. § 15-11-28(a)(2)(C) 30

 

O.C.G.A. § 15-11-28(e) 22

 

O.C.G.A. § 15-11-29 31

 

O.C.G.A. § 15-11-30.1 10

 

O.C.G.A. § 15-11-37 34, 45

 

O.C.G.A. § 15-11-38 6, 28, 34

 

O.C.G.A. § 15-11-38.1 34

 

O.C.G.A. § 15-11-39(a) 38, 41

 

O.C.G.A. § 15-11-39(b) 14, 32

 

O.C.G.A. § 15-11-39.1(a) 32

 

O.C.G.A. § 15-11-39.1(d) 32

 

O.C.G.A. § 15-11-39.2 52

 

O.C.G.A. § 15-11-39.2(a)(3) 52

 

O.C.G.A. § 15-11-39.2(b) 52

 

O.C.G.A. § 15-11-39.2(c) 52

 

O.C.G.A. § 15-11-40(a) 78

 

O.C.G.A. § 15-11-40(b) 70

 

O.C.G.A. § 15-11-41(b) 41

 

O.C.G.A. § 15-11-45 33

 

O.C.G.A. § 15-11-45(a)(4) 33

 

O.C.G.A. § 15-11-46 44

 

O.C.G.A. § 15-11-47 33

 

O.C.G.A. § 15-11-48 33

 

O.C.G.A. § 15-11-49(c)(4) 16, 31

 

O.C.G.A. § 15-11-49(e) 34

 

O.C.G.A. § 15-11-5 56

 

O.C.G.A. § 15-11-54 53

 

O.C.G.A. § 15-11-55 8, 53

 

O.C.G.A. § 15-11-55(a) 53, 54

 

O.C.G.A. § 15-11-55(a)(2) 55

 

O.C.G.A. § 15-11-55(b) 54

 

O.C.G.A. § 15-11-55(c) 8, 54, 55

 

O.C.G.A. § 15-11-56(a) 53

 

O.C.G.A. § 15-11-58 passim

 

O.C.G.A. § 15-11-58(a) 62, 63

 

O.C.G.A. § 15-11-58(b) 60

 

O.C.G.A. § 15-11-58(c) 60

 

O.C.G.A. § 15-11-58(e) 61

 

O.C.G.A. § 15-11-58(f) 61

 

O.C.G.A. § 15-11-58(g) 61

 

O.C.G.A. § 15-11-58(h) 61, 62

 

O.C.G.A. § 15-11-58(l) 66

 

O.C.G.A. § 15-11-58(n) 57, 68

 

O.C.G.A. § 15-11-58.1 28, 31, 57

 

O.C.G.A. § 15-11-58.1(a)(4) 57

 

O.C.G.A. § 15-11-58.1(b) 57

 

O.C.G.A. § 15-11-58.1(c) 57

 

O.C.G.A. § 15-11-6 16, 23, 28

 

O.C.G.A. § 15-11-6(a) 23

 

O.C.G.A. § 15-11-6(b) 16, 23

 

O.C.G.A. § 15-11-7(a) 17

 

O.C.G.A. § 15-11-78 15, 46

 

O.C.G.A. § 15-11-9 16, 18

 

O.C.G.A. § 15-11-93 71

 

O.C.G.A. § 15-11-94(b) 72, 75

 

O.C.G.A. § 15-11-95 71

 

O.C.G.A. § 15-11-96 72

 

O.C.G.A. § 15-11-98 16, 18

 

O.C.G.A. § 19-7-5 6

 

O.C.G.A. § 19-9-40 30

 

O.C.G.A. § 19-9-45(b) 32

 

O.C.G.A. § 24-3-16 41

 

O.C.G.A. § 24-9-5 41

 

O.C.G.A. § 24-9-5(b) 41

 

O.C.G.A. § 49-5-3 56

 

O.C.G.A. § 49-5-40 39

 

O.C.G.A. § 50-18-70 38

 

O.C.G.A. § 5-6-34(a)(I) 79

 

O.C.G.A. § 5-6-35(a)(2) 79

 

O.C.G.A. § 9-11-26 38

 

O.C.G.A. § 9-11-4 32

 

O.C.G.A. § 9-11-5 32

 

Uniform Rules of the Juvenile Court

 

URJC 11.3 41

 

URJC 24.7 65

 

URJC 4.1 33

 

URJC 4.2 34

 

URJC 6.6 35

 

URJC 6.8 34, 42, 46

 

URJC 7.1 37

 

URJC 7.2 38

 

URJC 7.5 45, 46

 

URJC 7.7 51

 

Attorney General Opinions

 

76 Op. Atty Gen. 131 (1976) 16

 

U.S. Code/Federal Regulations

 

42 U.S.C. § 5106(b)(2)(4)(xiii) 17

 

42 U.S.C. § 675(1)(B) 51

 

45 C.F.R. Ch. XIII, § 1357.15(e)(2) 63

 

Adoption and Safe Families Act of 1997 (P.L. 105-89) passim

 

Omnibus Budget Reconciliation Act of 1993, P.L. 203-66 11, 12

 

Personal Responsibility and Work Opportunity Act of 1996. (P.L. 104-193) 25

 

The Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272) 12

 

The Child Abuse Prevention and Treatment Act of 1974 (P.L. 93-247) 12