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Georgia SAAG Juvenile Court Deprivation Case Reference Manual, April 2004


A Reference Manual for Special Assistant Attorneys General

 

 

Principal Developers:

  • Chris Harris, Research Assistant, Georgia Supreme Court Child Placement Project
  • 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:

  • Robert Coleman, Special Assistant Attorney General of Hall County
  • James Hunnicutt, Special Assistant Attorney General of Troup County
  • Robert Nardone, Special Assistant Attorney General of Dekalb County
  • Velma Tilley, Special Assistant Attorney General of Bartow County

 

 

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 April 2004

 

 


I. Introduction

 

 

As Special Assistant Attorneys General, you make a huge difference in the life of a child by your representation of DFCS in cases involving the abuse or neglect of children. This manual is designed to give you an in depth understanding of Georgia deprivation law and juvenile court procedures. The manual is written in chronological order and will take the reader through the legal requirements and the expectations of the court in a deprivation case from the first allegation, through the removal of the child from the home, up to and including the possibility of terminating parental rights. The manual discusses the investigation of an allegation by DFCS, Preliminary Protective Custody, 72-hour emergency hearings, the filing of deprivation petitions, adjudicatory and dispositional hearings, judicial review of cases and the termination of parental rights. The Juvenile Code of Georgia can be found at Title 15, Chapter 11 of the Official Code of Georgia Annotated. O.C.G.A. § 15-11-19 provides that the Council of Juvenile Court Judges can promulgate rules and forms governing the procedures and practice of juvenile courts throughout the state. The Council is composed of all juvenile court judges within the state. This mirrors a provision in the state constitution which allows for the Supreme Court to adopt and publish uniform court rules with the advice and consent of the council of judges in the affected class. Ga. Const. Art. VI, § IX,  I. Such action was taken by the Supreme Court with the publication of the Uniform Rules for the Juvenile Courts of Georgia. We will be referring to the rules periodically throughout this manual. As part of the Child Placement Project, similar manuals are also being prepared for DFCS case managers, attorneys for parents, and attorneys for children.

II. Jurisdiction of the Juvenile Court System

A. Jurisdiction of the Court

 

 

Juvenile courts are of limited jurisdiction and possess only the powers that are specifically granted by the General Assembly. In re J.O., 191 Ga. App. 521 (1989). The judgments of a juvenile court must recite the specific facts which formed the basis of the court's determination that it had jurisdiction over the person and subject matter alleged. If a court order fails to recite jurisdictional facts in any court order, the order can be declared void on appeal. Williams v. Dept. of Human Resources, 150 Ga. App. 610 (1979).

 

In Georgia, the juvenile court has exclusive jurisdiction over a child who is alleged to be deprived and is the court in which deprivation petitions should be filed. O.C.G.A. § 15-11-28(a)(1)(C). This gives the juvenile court system subject matter jurisdiction over deprivation cases in general as well as jurisdiction over the juveniles themselves. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4.2, 4.8. A child is defined under the Code for purposes of a deprivation action as anyone under the age of 18. O.C.G.A. § 15-11-2(2)(C). This differs from a situation in which a juvenile is charged with a delinquent act where a child is defined as anyone under the age of 17. O.C.G.A. § 15-11-2(2)(B). The juvenile courts also have exclusive jurisdiction over children alleged to be unruly, delinquent, or in need of treatment or commitment because they are mentally ill, as well as matters involving the Interstate Compact on Juveniles. O.C.G.A. § 15-11-28(a)(1)(A, B, D); O.C.G.A. § 15-11-28(a)(2)(B).

 

In addition, the juvenile court has exclusive jurisdiction over petitions for the termination of parental rights outside of those filed in connection with an adoption proceeding. The juvenile court system retains concurrent jurisdiction with superior courts to hear a petition to terminate parental rights filed in connection with an adoption proceeding. O.C.G.A. § 15-11-28(a)(2)(C). Additionally, the juvenile court has concurrent jurisdiction with the superior courts to hear legitimation petitions either transferred to the juvenile court from superior court or involving a child with respect to whom a deprivation proceeding is pending. O.C.G.A. § 15-11-28(e).

 

Under the Georgia Constitution, the superior court system has original jurisdiction over divorce actions. Ga. Const. 1983, Art. VI, §IV,  I. The juvenile court has concurrent jurisdiction with the superior court of that circuit to determine child support and custody issues only when the case is transferred by a proper order of the superior court. O.C.G.A. § 15-11-28 (c).

 

Finally, it was not the intention of the General Assembly to grant the juvenile courts original jurisdiction over questions of the custody of a child when there is a dispute between the parents. Bartlett v. Bartlett, 99 Ga. App. 770 (1959). Therefore, if a non-custodial parent claims that the child is deprived, the matter must be commenced in Superior Court.

 

Juvenile courts should not accept a deprivation petition filed by one parent against another because it is a prima facie custody matter, and most likely an attempt to gain custody of the child by bypassing a more stringent standard of proof necessary to modify a custody award. In the Interest of W.W.W., 213 Ga. App. 732 (1994). If the superior court judge determines that the deprivation proceeding is not a custody dispute in disguise, the judge will transfer the deprivation issues to the juvenile court for adjudication. In the Interest of M.A. et al., Children, 218 Ga. App. 433 (1995). Thus, during the investigation of an allegation of deprivation it is possible that the SAAG will have some contact with the superior court system as well. Once a case is properly before the juvenile court, the court is free to temporarily transfer custody to a noncustodial parent as part of a dispositional order. In the Interest of A.L.L., et. al children, 211 Ga. App. 767 (1994). In that case, the Court of Appeals held that an order of a juvenile court changing the custody of a child was not a modification of a final divorce decree, which would be out of its jurisdiction, but instead was a proper disposition based on a determination that the children were deprived in their current environment. Id. at 767.

 

In many jurisdictions, a superior court judge will also hold the dual position of juvenile court judge for each of the counties within his/her judicial circuit. The Georgia Supreme Court has held that in such situations the trial judge could arguably exercise authority as both a superior and juvenile court judge simultaneously. Watkins v. Watkins, 266 Ga. 269 (1996). However, in a final hearing on custody in a divorce action in superior court, a trial judge may not make a finding that neither parent is fit and transfer custody of the child to DFCS with no notice to the parents that this issue would be raised or that they might possibly come under the jurisdiction of the juvenile court during this hearing. In that case, no deprivation petition had been filed with the court and no notice was given to the parents about the potential ramifications of this hearing had the judge chosen to exercise his powers as a juvenile court judge during this hearing. While the judge can exercise the power of both courts at once, due process requires the notice and hearing requirements of the juvenile court to be adhered to. Id. at 272, 273. These requirements will be discussed in later chapters.

 

It is also possible for you to come into some contact with the Probate Court as well. The judge of the probate court in which a minor with no guardian is domiciled has the authority to appoint a guardian of the person or property of the child. O.C.G.A. § 29-4-4(a). If the minor is over the age of 14, he/she will have the authority to select this guardian themselves. O.C.G.A. § 29-4-4 (b). The probate court is also authorized to appoint a temporary guardian of a minor when the person having actual physical custody of such minor alleges that the minor is in need of a guardian and each living natural guardian signs a notarized relinquishment of guardianship rights. O.C.G.A. § 29-4-4.1(a)(1). If the natural guardian has failed to sign such a relinquishment, no temporary guardian can be appointed unless proper notice is given by the court and no objection is filed with the court by one or both of the natural guardians. O.C.G.A. § 29-4-4.1(a)(1). Notice of an application for temporary guardianship can be provided to the child's parents by personal service, service by mail, or by publication once a week for two weeks in the official legal organ of the county. O.C.G.A. § 29-4-4.1(b). If no objection is made by the child's natural guardian within fourteen days after notice is mailed or ten days after such notice is first published, whichever is later, the judge of the probate court shall appoint a temporary guardian. O.C.G.A. § 29-4-4.1(b). Once again, a minor over the age of 14 has the option of selecting his/her own guardian. O.C.G.A. § 29-4-4.1(a)(2). Any temporary guardian established by the court must be dissolved upon application of the child's natural guardian. O.C.G.A. § 29-4-4.1(c). The Attorney General has issued an unofficial opinion that unless a temporary guardian is appointed under O.C.G.A. § 29-4-4.1, a probate court is without authority to appoint a guardian for a minor child if that child has living parents, unless the parents have relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37.

B. Definition of Deprivation

 

 

The code lists four circumstances in which a child can be considered "deprived". When the child:

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

 

 

O.C.G.A. § 15-11-2(8)(A-D).

 

1. Without Proper Parental Care or Control

 

 

The first provision is a general catch-all definition of deprivation and most petitions are filed on this basis. You may notice that the statutory definition of deprivation is written in broad, non-specific language. This area of the Code is to be "liberally construed" by the court in order to assist and protect "children whose well-being is threatened." O.C.G.A. § 15-11-1(1). The definition of deprivation is broad enough to allow "sufficient latitude of discretion for the juvenile court." Moss v. Moss, 135 Ga. App. 401 (1975). The Court of Appeals has held that this definition of deprivation is not unconstitutional on the grounds of vagueness. Jones et al. v. Dept. of Human Resources, 168 Ga. App. 915 (1983).

 

The Attorney General has interpreted this definition to include children who are abused, neglected, and exploited as defined in other sections of the Georgia Code. 1976 Op. Att'y Gen. No. 76-131. O.C.G.A. § 19-7-5(b)(3)(A) defines "Child Abuse" as physical injury or death inflicted upon a child by a parent...by other than accidental means; provided, however, physical forms of discipline may be used as long as there is no physical injury to the child. The definition also includes the neglect or exploitation by a parent or caretaker as well as sexual assault or sexual exploitation of such a child. O.C.G.A. § 19-7-5(b)(3)(B-D).

 

One large restriction to the catch-all provision is that a child should not be declared "deprived" simply because the child might be considered "better off" in a different environment. Ferreira, McGough's Juvenile Practice and Procedure (2nd ed.), § 4-3. In one case, the court reasoned that while 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 for productivity, morality, cleanliness, and responsibility does not rob her of her right to raise her own children.... R.C.N. v. State of Georgia, 141 Ga. App. 490 (1977). In that case, 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. Id. at 491. In contrast, the court later spoke in this area again in Vermilyea v. Dept. of Human Resources, 155 Ga. App. 746 (1980). 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. The condition of the subjects of the petition in this case shocked the conscience of the court. "Even the poorest of the poor can be expected to maintain reasonably clean and hygienic living conditions." Id. at 750. When a finding of deprivation is based upon unsanitary or unsafe conditions in the home, it is necessary to make specific findings of fact as to how these conditions adversely affect the child. In the Interest of D.S. et al., children., 217 Ga. App. 29 (1995). As a result, it is necessary for DFCS to present evidence not only of the conditions within the house, but also how those conditions affected the child physically, mentally, emotionally, and morally.

 

Many cases combine not only "moral unfitness, physical abuse and abandonment," but also frequent moves from home to home which can prevent the successful formation of a parent-child relationship. Elrod v. Dept. of Family and Children Serv., 136 Ga. App. 251 (1975). A child can be deprived of a "sound environment based upon love and nurture." There can be a substantial danger that the child will suffer emotional as well as physical, mental, and moral harm justifying a finding of deprivation. Id. at 255, 256.

 

The Court of Appeals has held that a finding of deprivation is not a finding of some sort of "fault" upon the abilities and actions of that child's parents. The definition of a deprived child focuses on the needs of the child regardless of whether the behavior of the child's parents either caused the child's deprivation or could have prevented it. Brown v. Fulton Co. Dept. of Family and Children Serv., 136 Ga. App. 308 (1975). In a situation where a child has been sexually abused by her father, the Court of Appeals has held that a juvenile court does not abuse its discretion by removing a child from the care and custody of her mother as well if her mother did not believe that the abuse was occurring and was unwilling to shield the child from danger by leaving the home of the child's father. In the Interests of B.H., 190 Ga. App. 131 (1989).

 

A finding of deprivation must be based upon the present conditions of the child as opposed to any alleged past deprivation or potential deprivation in the future. The juvenile court system only has jurisdiction over cases in which a child is alleged "to be" deprived as opposed to cases in which a parent alleges that the child was deprived and potentially will be deprived again if returned to the child's other custodial parent. Lewis v. Winzenreid, 263 Ga. 459 (1993).

 

Many cases involve the filing of deprivation petitions when one or both of the child's parents are incarcerated. The Court of Appeals rejected an argument by a father in jail for killing his wife that his children cannot be considered deprived because they are living with temporary guardians. The statutory definition of deprivation is based upon an absence of proper parental care and control. In the Interest of J.L.M. et al., Children, 204 Ga. App. 46 (1992).

2. Unlawful Adoption

 

 

Placing a child in care or adoption in violation of the law requires an understanding of Georgia adoption law that is beyond the scope of this manual. Private adoptions are legal in Georgia so long as the appropriate procedural requirements are followed. O.C.G.A. § 19-8-4; O.C.G.A. § 19-8-5, Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-4. Several acts are clearly prohibited by law, the violation of which might be grounds to consider the child deprived under this definition. Id. § 4-4. Any contract in which a mother agrees to the adoption of her child by another in exchange for monetary consideration is void on the grounds of public policy. Downs et al. v. Wortman et al., 228 Ga. 315 (1971). Here, the mother agreed to the adoption of her child in exchange for an airline ticket to another state. Her consent to the adoption was not freely and voluntarily given and she was allowed to withdraw from the agreement. Id. at 315. However, if the monetary consideration goes to the child instead of the parent, any such agreement is not void as being against public policy and is presumably enforceable. Id. at 315. The Georgia Adoption Code also forbids any individual or organization from directly or indirectly holding out inducements to parents to part with their children. O.C.G.A. § 19-8-24(a)(2). In addition, offering a child's services as payment for a debt of the parents is also illegal. The Georgia Supreme Court ruled another contract void on the grounds of public policy because it attempted to transfer the custody of the child to a creditor of the parents, who was to use the services of the child until the debt was paid. The creditor was given full control over their son as though he was the child's parent and could hire the boy out to whomever he chose. Kidd v. Brown, et al., 136 Ga. 85 (1911). The Georgia Juvenile Code also forbids any form of advertising that a person or organization will adopt or will arrange for a child to be placed for adoption. O.C.G.A. § 19-8-24(a)(1). There are no appellate court decisions interpreting this section of the Juvenile Code due to its lack of use at the trial court level. As a result the exact nature of the "unlawful adoption" definition of deprivation remains unclear.

3. Abandonment

 

 

Abandonment clearly seems to cover intentional parental desertion. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-6. Abandonment is also used as a basis for the termination of parental rights. 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 Co. Dept. of Family and Children Services, 162 Ga. App. 702 (1982). Since a finding of deprivation can at worst only suspend a parent's rights to the custody and control of his/her child as opposed to a petition to terminate where those rights can be severed, presumably the standard of proof necessary for a finding of abandonment in a deprivation case would be lower. Ferreira, McGough's Juvenile Practice and Procedure (2nd ed.), § 4-6. However, no appellate court decision has addressed this issue, probably due to the lack of regular use of this definition of deprivation at the trial court level.

4. Without a Parent, Guardian, or Custodian

 

 

A child is also deprived if he/she is without a parent, guardian, or custodian. This ground for deprivation is often used but rarely appealed; therefore, its precise meaning is unclear. Presumably, it means something other than abandonment, such as a lack of a parent or guardian to care for the child due to illness or death. There is some indication that this standard can include situations in which one parent is deceased and another is incarcerated. In re J.R.T., a Child., 233 Ga. 204 (1974). However, given the large number of deprivation cases involving incarcerated parents that are filed under the general category of a "lack of proper parental care or control" it seems clear that this category is rarely used for this purpose.

 

One important exception to the four deprivation categories is specifically listed in the Code. "No child who in good faith is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof, shall, for that reason alone, be considered to be a deprived child." O.C.G.A. § 15-11-2 (8). The Juvenile Code seems to allow for the refusal of traditional medical treatments based upon the religious beliefs of that child's parents. Presumably, then, a child cannot be classified as deprived solely because his parents choose to forego a standard medical treatment recommended by a child's physician. Although no court has defined the exact boundaries of this statutory exception, if a child's life or long-term health are endangered due to a lack of medical care, state intervention is still appropriate regardless of the justification posed by the parents. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-7. This issue has yet to be resolved. However, it is clear that when a parent's refusal is not based upon his/her religious beliefs, the state is authorized to intervene in cases of medical neglect. Bendiburg v. Dempsey, 909 F.2d 463 (11th Cir. 1990). In Jessie Mae Jefferson v. Griffin Spalding Co. Hospital Authority, et al., 247 Ga. 86 (1981), the Supreme Court refused to issue a stay of a combined order of the juvenile and superior court transferring temporary custody of an unborn child to the Department of Human Resources. Here, the court also ordered the mother to undergo an emergency cesarian section after she had refused to do so on religious grounds in a situation where the child and quite possibly the mother would have died during natural delivery. Id. at 87. The mother was due to give birth at any moment. Id. at 88. Testimony given during the hearing indicated that both had a possibility of survival at nearly 100% if the cesarian were performed. Id. at 88.

 

C. Venue

 

 

A deprivation proceeding may be commenced in any county in which the child resides or in any county where the child is present when the proceeding in commenced. O.C.G.A. § 15-11-29(a). In Georgia civil cases, proper venue exists in the county in which the defendant resides. However, the Georgia Constitution specifically allows the General Assembly to adopt differing venue rules in the Juvenile Code. Ga. Const. 1983, Art. VI, §II,  VI. The "presence" option to allow the filing of petition in any county in which the child is present was specifically upheld by the Georgia Court of Appeals. In the Interest of C.R., 160 Ga. App. 873 (1982). If your county has either a full or part-time juvenile court judge to hear deprivation cases, the hearing should occur in your county if that is either where the child resides or was present when the action was commenced. If your county has a superior court judge who periodically hears juvenile court cases, the superior court judge can choose to hear your case in any county within your judicial circuit. O.C.G.A. § 15-11-29(b). In such situations, it may be necessary for you to travel to another county to appear in a deprivation hearing.

 

An objection to a particular venue can be waived by a party to the proceeding if the venue was changed pursuant to a motion filed by that party. In the Interest of M.J.G. et al., Children, 203 Ga. App. 452 (1992). The court found that the child's father was estopped from raising the issue of improper venue when the venue was changed per his request from one county to another. Id. at 454.

 

 

III. Removing A Deprived Child From The Home

A. Protective Custody

 

 

The Georgia Juvenile Code allows a law enforcement officer or a duly authorized officer of the court to take a child into custody "if there are reasonable grounds to believe that the child is suffering from illness or injury or is in immediate danger from his or her surroundings and that his or her removal is necessary." O.C.G.A. § 15-11-45(a)(4). This can be done without a warrant, summons, or other judicial authorization prior to detaining the child. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-10. Law enforcement officers often encounter situations of child abuse and neglect during their daily interactions with the public. This law allows that officer to immediately remove a child from the home to protect the child. The court can later determine whether the removal was necessary for the child's protection. Whether a "duly authorized officer of the court" includes a DFCS case manager is unclear. However, one commentator has suggested that a case manager might not be authorized by law to remove a child from the home without first obtaining court authorization to do so. Id. at § 4-10. The DFCS Social Service Manual now prevents a case manager from removing a child from the home without at least verbal authorization from the court to do so. See Social Service Manual. Under these circumstances, a complaint should be filed as soon as possible following removal and the court must issue a written order for shelter care.

B. Removal by Court Order

 

 

Often DFCS will be contacted directly by school officials or other concerned citizens regarding the possibility of abuse or neglect of a child. DFCS case managers do not necessarily need to remove the child from the home themselves with the assistance of law enforcement personnel. If after an investigation the case manager finds that there is a sufficient basis to remove the child from the home, a complaint or deprivation petition may be filed with a juvenile court judge. The contents of this petition will be discussed later in this manual. Some Georgia courts do not require the filing of a petition prior to issuing a protective custody order and will issue a summons or other order to take the child into custody upon the filing of a complaint or affidavit. The statute itself simply requires that the court make such a determination on the basis of an affidavit or sworn testimony, but it is the practice of some courts to require more. O.C.G.A. § 15-11-49.1. The decision of the court should be based upon an affidavit or sworn testimony that:

  1. the conduct, condition, or surroundings of the child are endangering his health or welfare or those of others; or
  2. that he may abscond or be removed from the jurisdiction of the court or that he will not be brought before the court notwithstanding the service of the summons.

 

O.C.G.A. § 15-11-49.1.

 

If the judge agrees that the circumstances warrant removal of the child, a summons or other order will be issued authorizing a law enforcement officer to immediately take the child into custody. O.C.G.A. § 15-11-49.1. In practice, it is often the juvenile court intake officer issuing a summons to appear in this situation. While not specifically authorized by statute, it is the practice in some jurisdictions for the court to issue a "pick up" order after which DFCS caseworkers will themselves take the child into custody. If the court finds that immediate removal is unnecessary in a given case the court may simply issue a summons directing the parents, guardian, or other custodian of the child to appear at the adjudicatory hearing and to bring the child with him/her. O.C.G.A. § 15-11-39(c). If the parent willfully fails to appear him or herself or fails to bring the child before the court at the designated time, the court is authorized to punish such a person for contempt of court. O.C.G.A. § 15-11-39(c).

 

It should be noted that protective custody orders authorized by a juvenile court are not entitled to enforcement outside of the State of Georgia. Nevertheless, the Court of Appeals refused to reverse an order of a juvenile court when a social worker traveled to a hospital in Chattanooga, Tennessee to take custody of the child after the judge authorized the petition. Sanchez v. Walker Co. Dept. of Family and Children's Serv., 138 Ga. App. 49 (1976), rev'd on other grounds 237 Ga. 406 (1976). There was no order from a court of competent jurisdiction in Tennessee allowing the caseworker to take custody of the child. The mother was a resident of Georgia and service upon her there was valid. Since the child was illegitimate, his residence was held to be that of the mother. Since jurisdiction over the child was otherwise completely proper, the Court of Appeals declined to reverse the order on that basis. Id. at 51.

 

Any private citizen or government employee may report a case of suspected abuse, neglect or exploitation to DFCS, law enforcement personnel or the district attorney's office. O.C.G.A. § 19-7-5 (d) & (e). Some individuals are required by law to make these reports if that person has reasonable cause to believe that the child has been abused, neglected, or exploited. O.C.G.A. § 19-7-5(c)(1). These "mandated reporters" include physicians, hospital and medical personnel, dentists, psychologists, podiatrists, nurses, counselors, social workers, school teachers, administrators and guidance counselors, child welfare agency personnel, and law enforcement personnel. O.C.G.A. § 19-7-5(c)(1)(A-N). Any individual or organization which makes a report in good faith under this article will be immune from any civil or criminal liability regardless of whether the report was required. O.C.G.A. § 19-7-5(f).

 

C. Procedures for Taking the Child into Custody

 

 

After removing the child from the home, a law enforcement officer or an appropriate officer of the court should immediately bring the child before the juvenile court or promptly contact the juvenile court intake officer. O.C.G.A. § 15-11-47(a)(3). If the child is suffering from a serious physical condition or illness which requires medical treatment, the law enforcement officer may take the child to a medical facility prior to contacting the juvenile court intake officer. O.C.G.A. § 15-11-47(a)(2). The person taking the child into custody shall promptly notify the parent, guardian or other custodian as well as the court that the child has been detained along with a statement of the reasons for doing so. URJC, 8.2.

 

After the child's removal from the home, the intake officer should immediately begin an investigation to determine whether it is necessary to detain the child or if the child can be released to his/her parents. O.C.G.A. § 15-11-49(a). The purpose of providing for review of a detention by the juvenile court intake officer is "to make certain that a juvenile's rights are protected when he is taken into custody or placed in detention." Paxton v. State, 159 Ga. App. 175 (1981). Each juvenile court judge must appoint one individual to serve in this capacity during each twenty-four hour period. This individual may be the judge himself, an associate juvenile court judge, court service worker, or a person employed as a juvenile probation or intake officer designated by the court. O.C.G.A. § 15-11-2(10). The Georgia Constitution requires that the legislative, judicial, and executive powers shall "forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others..." Ga. Const. Art. 1, § 2 3. The Attorney General's office has unofficially interpreted this to mean that an officer of the Sheriff's department is not statutorily permitted to serve in the capacity of the intake officer if a county has not provided for such a position. 1983 Opinion of the Att'y Gen. U83-66. The Georgia Supreme Court recently addressed the issue holding that police officers are per se disqualified from acting as intake officers for the juvenile court since the police department is part of the executive branch and the role of the intake officer is judicial in nature. Brown v. Scott, 266 Ga. 44 (1995)). This presumably means that the juvenile court must provide separately for the appointment of intake officers from outside of the county's law enforcement community. Uniform Rule for the Juvenile Courts of Georgia 2.5 says that the intake officers shall only be court-employed intake or probation officers, court service workers or other Division of Children and Youth Services staff designated by the judge exercising juvenile court jurisdiction.

 

A child can be detained or placed in shelter care prior to an informal detention hearing in four situations. When:

  1. his detention or care is required to protect the person or property of others or of the child;
  2. the child may abscond or be removed from the jurisdiction of the court;
  3. he has no parent, guardian, or custodian or other person able to provide supervision and care for him and return him to the court when required, or
  4. an order for his detention or shelter care has been made by the court...

 

O.C.G.A. § 15-11-46(1-4).

 

Situation 4 occurs when an order for detention was already ordered by the court and the law enforcement officer was ordered to simply pick up the child as required by the summons.

 

If the intake officer determines it is not necessary to detain a child under these standards, the child will be released to his parents or legal guardian. O.C.G.A. § 15-11-49(a). If the DFCS caseworker, represented by a SAAG, wishes to pursue the matter further regardless of the decision of the intake officer, a deprivation petition should be filed with the court within thirty (30) days of the child's release. O.C.G.A. § 15-11-49(b). If the intake officer determines that the placing of the child in detention or shelter care is necessary, an informal detention hearing before a juvenile court should be scheduled and held within 72 hours of removing the child from the custody of his/her parents. O.C.G.A. § 15-11-49(c)(3). If the child is not going to be released prior to an informal detention hearing, the child can only be placed in:

  1. a licensed foster home or a home approved by the court which may be a public or private home or the home of the noncustodial parent or of a relative;
  2. a facility operated by a licensed child welfare agency; or
  3. a shelter care facility operated by the court.

 

O.C.G.A. § 15-11-48(a)(1&2), and O.C.G.A. § 15-11-48(f).

 

The term "shelter care" is used frequently throughout the Juvenile Code. This term is defined in the definitional section of the Juvenile Code at O.C.G.A. § 15-11-2(10.1) as "a licensed foster home or home approved by the court which may be a public or private home or the home of the non-custodial parent or a relative, or a facility operated by a licensed child welfare agency." The temporary physical placement of the child in one of these facilities or foster care homes requires the approval of the juvenile court judge or his designated appointee. O.C.G.A. § 15-11-48(f).

 

IV. 72-Hour Informal Detention Hearing

A. When is the hearing required? What must be shown?

 

 

An informal detention hearing within 72 hours of the child's removal from the home is required when the juvenile court intake officer has determined that the child should not be released to the custody of his or her parents. This hearing serves two purposes. One is to determine whether a child who has been taken into custody shall be released or detained pending further court proceedings, and the second is to determine if reasonable grounds exist to believe that the allegations in the complaint or petition are true. Uniform Rules for the Juvenile Courts of Georgia, 8.1. The rules also provide that the hearing shall be of an informal nature in which hearsay testimony will be allowed. URJC, 8.1. If the 72-hour period expires on a Saturday, Sunday, or legal holiday, the hearing must be held on the next day of business which is not a Saturday, Sunday, or legal holiday. O.C.G.A. § 15-11-49(c)(3). However, the court may grant a continuance in a detention hearing for a "reasonable period" to obtain reports and other evidence bearing on the need to detain the child. URJC, 8.6. During the continuance, the judge may order that the child remain detained or release him/her to the custody of his/her parent(s). URJC, 8.6.

 

The courts have interpreted this time frame to be mandatory and if the hearing is not held within 72 hours of the child's removal, the deprivation action will be dismissed without prejudice. Sanchez v. Walker Co. Dept. of Family and Children's Services, 237 Ga. 406 (1976). This allows DFCS to refile a deprivation petition without delay if it has reason to believe that the child is abused or neglected. Id. at 411. It would seem that a 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 another "pick up" order to again detain the child should the court find such action warranted. While these procedures allow the case to go forward, the delay associated with beginning the process over again potentially extends the time a child will spend in shelter and foster care. If a parent fails to make a timely objection during the informal detention hearing that the statutory time limits have not been observed, this objection is effectively waived and cannot be raised on appeal. Irvin v. Dept of Human Resources, 159 Ga. App. 101 (1981).

 

At this hearing the judge will determine if this child's detention is required under the standards explained above in O.C.G.A. § 15-11-46(1-4). The hearing provides the child's parents with judicial review of the actions taken by the juvenile court intake officer. Most juvenile courts have interpreted the 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 and Termination, Children in Court: A Systems Approach. (1989), p. 14, 15. The petitioner, most likely the county division of DFCS, must show evidence to indicate that it is "more likely than not" that the child is deprived. This is a much lower burden of proof on DFCS than will be required on the formal adjudicatory hearing on the merits of the deprivation petition. The standard of proof in the 72-hour hearing is not entirely clear since the statute is silent on the issue.

 

B. Notice to Parties

 

 

The court is required to provide "reasonable notice" of the informal detention hearing either orally or in writing, stating the time, place, and purpose of the hearing to the child and if they can be found to his/her parents, guardian, or other custodian. O.C.G.A. § 15-11-49(c)(4). The Sanchez case also makes notice to the parent of the child mandatory and failure to do so can again result in a dismissal without prejudice. Sanchez v. Walker Co. Dept. of Family. and Children's Services, 237 Ga. 406 (1976). If a parent is not notified of the hearing because he/she could not be located and did not waive his/her right to appear at this hearing, the parent can file a motion with the court which will require the rehearing of the matter without unnecessary delay. O.C.G.A. § 15-11-49(d). In such situations, the child shall be released unless it appears that removing the child from the home is required under the standards set forth above. O.C.G.A. § 15-11-49(d). A parent who has not received notice of the hearing may file an affidavit with the court stating these facts to cause a 72-hour hearing to be reheld. This procedure raises the potential procedural burdens for the SAAG as well as more delays for the child prior to the adjudication of his/her case. During an investigation, it is critical to find the parents of the child so that the court may provide notice of the proceedings as soon as possible.

 

C. Right to Counsel

 

 

A participant is entitled to legal representation at all stages of any proceeding alleging deprivation. If a party is indigent and cannot afford a lawyer, the court will extend an offer to that party for counsel, which may be waived. O.C.G.A. § 15-11-6(b). An "indigent person" is defined under the code as one who 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). Prior to the commencement of the informal detention hearing, the judge is required to inform all parties of their right to counsel. O.C.G.A. § 15-11-49(c)(4). The court may continue a proceeding so that a party may obtain a lawyer. O.C.G.A. § 15-11-6(b).

 

The court will appoint a guardian ad litem to represent the interests of a child who is a party to a deprivation proceeding when there is no parent available to represent the interests of the child. O.C.G.A. § 15-11-49(c)(4) and O.C.G.A. 15-11-9. In addition, if the interests of the child and his parent(s) or guardian, conflict, a guardian ad litem shall be appointed to represent the child. O.C.G.A. § 15-11-9. In interpreting this section of the Code, the Attorney General has issued an opinion that in deprivation hearings brought between a child and his/her parent or guardian, an inherent conflict of interest arises which requires the appointment of a guardian ad litem. Op. Att'y Gen. 76-131 (1976). O.C.G.A. § 15-11-6(b) also requires the appointment of representation for the child in these two situations but uses the term "counsel" instead of guardian ad litem.

 

The Georgia Court of Appeals has held that all parties to a deprivation proceeding, including the child and his/her parents should be represented individually by counsel. McBurrough v. Dept. of Human Resources, 150 Ga. App. 130 (1978). In addition, a parent in a deprivation action cannot waive the child's rights to independent legal counsel. Id. at 131. The court held that a deprivation action is one in which the interests of the child and her parents are adverse and that the juvenile court could have appointed a guardian ad litem to protect the interests of the child and should have done so. Id. at 131.

 

In 1974, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA), P.L. 93-247, which required all states receiving federal funds to appoint a guardian ad litem to represent the interest of the child in child abuse or neglect cases which result in a judicial proceeding. 42 U.S.C. § 5106(b)(6). The act is silent on the roles and responsibilities of this guardian in a deprivation proceeding. However, federal regulations provide that while the guardian does not have to be an attorney, the guardian must be charged with representing the rights and best interests of the child. 45 C.F.R. Ch. XIII, § 1340.14(g) (10-1-96 Edition). CAPTA was recently amended to specify that, in order for states to be eligible for a CAPTA state grant, the guardian ad litem appointed must have received "appropriate" training for their role. 42 U.S.C. § 5106a(b)(2)(A)(xiii). The law remains silent as to what training would be deemed "appropriate."

 

The purpose of the guardian ad litem is to protect the interests of the child in all matters relating to litigation. In re J.S.C., 182 Ga. App. 721 (1987). The type of representation offered to children in deprivation proceedings varies from jurisdiction to jurisdiction. In some jurisdictions, private paid attorneys are appointed to serve as a guardian ad litem (GAL). These individuals are called Child Advocates by some courts. Other courts appoint private attorneys to act as "counsel" for a child that is the focus of a deprivation petition. Some counties have volunteer guardian ad litem and Court Appointed Special Advocate (CASA) programs to provide representation for children. These volunteers might not be attorneys and therefore do not participate fully in the hearing by calling and questioning witnesses, etc. Just as the duties and responsibilities of the child's representative may vary from court to court, the title of this individual can vary as well. In order to avoid confusion, for purposes of this manual, guardians ad litem will refer to attorneys appointed to represent the child's interest in a deprivation or termination hearing. The term CASA will be used to refer to the various forms of volunteer guardians ad litem used throughout the state. These volunteers may not be officially affiliated with the CASA organization, but they essentially serve the same purpose. Although the language is similar, do not confuse the guardians ad litem appointed by the juvenile court to represent the interests of the child with the temporary and permanent guardians appointed by the probate court to care for the child in lieu of his/her parents.

 

The exact nature of the GAL's role in court is somewhat unclear due to a lack of a statutory definition of their duties. Practices seem to vary throughout the state. Ferriera, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-14. The GAL seems to have a duty to fully investigate the allegations contained in the petition as well as the explanation, if any, offered by the parents. The GAL should also meet with or inspect the child prior to the deprivation hearing and attempt to ascertain the desires and position of the child, if age appropriate. In all cases, the GAL should at least provide the court with a recommendation in a closing argument based upon their own observations and the evidence presented at trial. Id. at § 4-14. While some juvenile courts restrict a GAL to an advisory role, others allow them to participate equally in the hearing with the SAAG and the attorney representing the parents. This may include seeking discovery, as well as calling and cross-examining witnesses. Id. at § 4-14. The Court of Appeals has recently held that in a child custody proceeding, when a judge appointed a guardian ad litem to represent a child, the child was in effect made a party to the proceeding and therefore had standing to appeal the judgment through his guardian ad litem. Miller v. Reiser, 213 Ga. App. 683 (1994). The court came to a similar conclusion in a proceeding to terminate parental rights where the statute mandates the appointment of a guardian ad litem. In re G.K.J., 187 Ga. App. 443 (1988).

 

If the child is old enough to have some understanding of the proceedings, the GAL will need to explain the court process to the child and make sure that the child's wishes are known to the court. However, under Ethical Considerations 7-12 and 7-17, an attorney acting as a GAL is not required to change his/her recommendations to the court based upon the wishes of the child. The guardian's role in the deprivation process is to make a recommendation in the best interests of the child which may mean a recommendation that is contrary to what the child desires. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-14. This has led some to believe that a conflict of interest could develop in a situation where an attorney was acting both as the child's counsel as well as a guardian ad litem. The Court of Appeals has determined that in a deprivation case, an attorney acting as both a guardian and attorney for the child is not in a conflict of interest and can perform both roles with the permission of the court. Dawley v. Butts Co. Dept. of Family and Children Serv., 148 Ga. App. 815 (1979).

 

Another potential court participant is the Court Appointed Special Advocate or CASA. For our purposes, this term includes the various volunteer guardian ad litem programs run by community volunteers who are not members of the bar. CASA is an organization operating in many counties within our state where trained volunteers take an in-depth look at an alleged case of deprivation, including, if possible, interviewing the child and his/her parent, and provide a report to the court at the adjudicatory and dispositional hearings. Often the CASA and the GAL work as a team, with the CASAs having more time to do a more comprehensive study of the family due to their relatively small caseloads. The CASA volunteer will usually make an oral or written report of his/her observations to the court and any recommendations for disposition. The level of the CASA's involvement in the proceedings once again depends upon the practices of the juvenile court in which you serve. The CASA may be restricted to making a report to the court of his/her findings, or in some jurisdictions may be allowed a more active role in the proceedings based upon his/her training and qualifications.

 

The person who represents the petitioner in the 72-hour informal detention hearing varies from jurisdiction to jurisdiction. In some counties, the petitioner, usually DFCS, is represented by the SAAG assigned to that county. In other counties, it is common practice to allow the GAL for the child or the DFCS caseworker to represent the Department's case at the 72-hour hearing. There is no standard in the Juvenile Code or the Uniform Rules of the Juvenile Courts of Georgia endorsing or opposing this practice. In all other deprivation hearings, the petitioner, usually DFCS, is represented by an attorney. O.C.G.A. § 15-11-41(c).

 

 

 

 

 

V. Filing of A Deprivation Petition

 

A. When must the petition be filed?

 

 

In cases where the juvenile court intake officer has released the child into the custody of his/her parents, a deprivation petition has to be filed with the court within thirty (30) days of the child's release if DFCS wishes to pursue the case further. O.C.G.A. § 15-11-49(b). If the child was not released either by the intake officer after the child's removal or the juvenile court judge in the 72-hour hearing, a deprivation petition must be submitted within five (5) days of that hearing. O.C.G.A. § 15-11-49(e). The petition may have already been filed if DFCS had gone directly to the juvenile court judge asking that the child be taken into protective custody. O.C.G.A. § 15-11-49(d).

 

The filing of the petition starts the time table for the scheduling of the formal adjudicatory hearing on the merits of the deprivation petition. This period is shortened considerably when the child is removed from the home. If the child is removed from the home, the adjudicatory hearing must be held within ten (10) days after the filing of the petition. If the child was released to his parents, the hearing must be held within sixty (60) days of the filing of the deprivation petition. O.C.G.A. § 15-11-39(a). With five days to file a petition and ten days thereafter to hold an adjudicatory hearing, a possibility exists of at most a fifteen day wait between the 72-hour informal detention hearing and the adjudicatory hearing on the petition. This contrasts considerably with the potential ninety day wait in cases where the intake officer and/or the juvenile court judge determined that the child's detention was not warranted. In addition, a judge has the power to grant a continuance in such a proceeding for good cause. URJC, 11.3.

 

In all proceedings over which the juvenile court has jurisdiction (including deprivation cases), proceedings can only be initiated upon receipt of a written complaint form, or a petition. URJC, 4.1. The intake officer does not have the authority to refuse a complaint, which only the judge can do. URJC, 4.1. However, the intake officer must screen the complaint before a petition is filed and make a recommendation to the court for:

  1. Dismissal;
  2. A referral to another agency for services;
  3. Approval to file a petition, or "other appropriate action".

 

URJC, 4.2.

 

In screening the complaint, the intake officer should consider:

  1. Whether the complaint is one over which the court has jurisdiction;
  2. Whether the complaint is frivolous;
  3. Whether the child should be detained pending a hearing, and if so where;
  4. Whether the child should be diverted to an agency that meets his or her needs; and
  5. If a petition should be filed with the court.

 

URJC, 4.2.

 

If a deprivation action is initiated by other than a complaint (such as with a petition), a copy of the complaint form (JUV-2) must be completed and attached to the petition (JUV-4). A copy of these forms are attached at the end of this chapter.

 

Before a petition alleging deprivation may be filed with the court, the juvenile court judge or a person authorized by the court must determine and endorse upon the petition that the filing is in the best interests of both the public and the child. O.C.G.A. § 15-11-37; URJC, 4.2. In practice this means that the judge or his/her designee will sign the petition (JUV-4) in the space provided. A failure at the trial court level to make such an endorsement is not reversible error when the juvenile court judge has endorsed the filing of the petition by issuing an order to detain the juvenile to protect both the child and society. J.G.B., et al. v. State of Georgia, 136 Ga. App. 75 (1975). On another occasion, the Court of Appeals refused to reverse an order finding a child to be deprived as a result of a deprivation petition filed without an endorsement from the court when a temporary custody hearing was held on the same day as the filing. In the Interest of M.D.S., et al., children., 211 Ga. App. 706 (1994).

 

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. Even though the judge may have already issued a detention order in a previous hearing, the deprivation case does not officially begin until this document is accepted by the court. Longshore v. State, 239 Ga. 437 (1977). The petition alleging deprivation may be made by any person, including a law enforcement officer, who has knowledge of the facts alleged and believes that they are true. O.C.G.A. § 15-11-38. This person is called the petitioner and is usually the county branch of DFCS represented by the SAAG. If the petitioner is a private party without the benefit of counsel, the juvenile court judge may request the assistance of the District Attorney or a member of his/her staff to represent the petitioner. If for any reason the District Attorney is unable to assist, the judge is authorized to appoint legal counsel to represent the petitioner. O.C.G.A. § 15-11-41(c).

 

 

B. What must the petition contain?

 

 

The Georgia Juvenile Code provides that a deprivation petition must plainly set forth:

  1. the facts which bring the child within the jurisdiction of the court, with a statement that it is in the best interest of the child and the public that the proceeding be brought...;

 

  1. the name, age, and residence address, if any, of the child on whose behalf the petition brought;

 

  1. the names and residence addresses, if known to petitioner, of the parents, guardian, or custodian of the child and of the child's parents, or if neither his parents, his guardian, nor his custodian reside or can be found within the state or if their respective places of residence addresses are unknown, the name of any known adult relative residing within the county, or if there is none, the known adult relative residing nearest to the location of the court, and
  2. whether the child is in custody, and if so, the place of his detention and the time he was taken into custody.

 

 

O.C.G.A. § 15-11-38.1(1-4).

 

 

The information contained in the petition must satisfy the due process requirement of the right of an accused to know the nature of the charges filed against him/her. The petition must provide the parent in ordinary and concise language the facts demonstrating the nature of the parent's alleged failure to provide proper parental care or control in order to enable the parent to have sufficient information to prepare a defense. In re D.R.C., 191 Ga. App. 278 (1989). The court held that a petition that simply stated that the parent had violated the standards set forth in law without providing any details violated the parent's due process rights. Id. at 278. The petition must be specific enough so that the parent will have at least some idea of what he/she is being accused.

 

The petition can be amended at any time prior to the adjudication provided that the court shall grant all other parties the necessary additional time to prepare to ensure a full and fair hearing. URJC, 6.6. If a child is detained, the amendments shall not delay the hearing more than ten days beyond the time originally set for the hearing unless a continuance is requested by the child or his/her attorney. URJC, 6.6.

 

 

VI. Adjudicatory Hearing on the Deprivation Petition

 

 

There are two distinct parts to a hearing on the merits of a deprivation petition. An adjudicatory hearing is used to determine whether the allegations contained in the complaint are true. This is basically a review of the evidence to determine whether or not the child is currently deprived under the standards set forth in the Georgia Juvenile Code. The dispositional hearing is essentially used to determine what will be done now to improve the life of the child once he/she has been found to be deprived. The adjudicatory hearing must be held within ten (10) days of the filing of the deprivation petition if the child is in shelter or foster care with DFCS and within sixty (60) days from the filing if the child was released to the custody of his/her parents by the juvenile court intake officer or the judge at the 72-hour hearing. O.C.G.A. § 15-11-39(a).

 

The courts have held that the time frame for this hearing is mandatory just as in the 72 hour hearing, the violation of which can result in dismissal without prejudice. Sanchez v. Walker Co. Dept of Family and Children's Services., 237 Ga. 406 (1976). However, if the parent or guardian of the child does not specifically object to a violation of the statutory time frame, the issue will be considered waived on appeal. Id. at 409. The court has come to a similar conclusion for adjudicatory hearings involving minors who are not removed from the home. The parents of the minor not in state custody did not object to a hearing beyond the 60 day time limit either at the hearing or in a motion for a new trial and the issue was therefore effectively waived. E.S. v. State, 134 Ga. App. 724 (1975).

 

The Uniform Rules for the Juvenile Courts of Georgia allow a judge to continue an adjudicatory hearing for a reasonable time for "good cause shown" despite these statutory time limits. URJC, 11.3. In deprivation cases, the granting of a continuance beyond the statutory time limitations must be by written order stating the specific reason for the continuance. URJC, 11.3. No specific definition of what constitutes "good cause" for a continuance has been given. This leaves the juvenile court judge with a great deal of discretion to adjust the statutory time frame for holding an adjudicatory hearing. What one judge may consider an adequate basis for a continuance may differ substantially from that of another. However, since an excessive number of continuances can result in the child remaining in foster care for an extended period of time, continuances are discouraged. It is important for the SAAG representing the county to consult with the DFCS case manager prior to the hearing to make sure that all documents and necessary witnesses will be available at the start of the hearing in order to prevent unnecessary continuances.

 

A. Pretrial Discovery

 

 

The Georgia Supreme Court has ruled that the provisions of the Civil Practice Act are not applicable to the juvenile court system. English v. Milby, 233 Ga. 7 (1974). In addition, neither the 14th Amendment to the United States Constitution nor the Georgia Constitution require pre-trial discovery in proceedings to terminate parental rights. In the Interest of L.L.W., et al., 141 Ga. App. 32 (1977). The Georgia Juvenile Code does not specifically mention the use of discovery in deprivation proceedings. However, the Uniform Rules for the Juvenile Courts of Georgia state that discovery may be allowed in all cases where deprivation is alleged. URJC, 7.1. In addition, the Georgia Appellate Court ruled in Ray v. Department of Human Resources that the Civil Practice Act may be adopted by a juvenile court as to procedures for which no specific provision is made in the Juvenile Code. Ray v. Department of Human Resources, 155 Ga.App. 81 (1980). Any discovery permitted under this rule will be at the discretion of the presiding juvenile court judge. Requests for discovery must be made in writing and state the type of discovery requested, which can include:

  1. interrogatories;
  2. depositions;
  3. admissions of a party to the proceeding;
  4. requests for production of documents; and
  5. requests for physical and mental examinations of a parent, guardian, custodian, or child.

 

URJC, 7.2.

 

Responsive pleadings are encouraged in deprivation matters but they are not required by the rules. URJC, 7.6.

 

All such requests must include a Rule Nisi spelling out a time and place for a hearing on the request to determine what discovery will be allowed and a time frame for completion. URJC, 7.2(a); URJC, 7.4. Any and all objections to any such request shall be made at the hearing or else the objection is waived unless otherwise allowed at the discretion of the court. URJC, 7.2(b). The discovery motion and notice of a hearing shall not be served later than three (3) days, excluding weekends and holidays, before the time specified for the hearing, unless specifically ordered by the court on ex parte application for good cause shown. Service must be performed upon all parties, including the parents, the child or his/her legal custodian or their legal counsel if so represented. URJC, 7.2(c). If the child has been removed from the home the discovery request must be filed within 48 hours of the filing of the petition. Otherwise the request should be filed within 15 days of the filing of the petition. If the child is in shelter or foster care, discovery must be completed within 15 days of an approval order, but in all other cases it must be completed within 30 days. URJC, 7.3. In addition, if the child is in foster or shelter care, a discovery request by any party acts as a request for continuance of the time period for the adjudicatory hearing which shall then be reset to within seven (7) days, excluding weekends and holidays, of the date that such discovery is ordered to be completed by the court. URJC, 7.3.

 

The Court of Appeals has overturned a trial court ruling authorizing an attorney for a father involved in a termination proceeding to interview the child alone without supervision by DFCS or a guardian ad litem. In the Interest of L.L.W., et al., 141 Ga. App. 32 (1977). The court held that an attorney could not interview an adverse party without the presence of counsel. The father's ability to call witnesses, introduce evidence, and cross-examine witnesses for the state was enough to protect his interests under the constitution. Id. at 33.

 

A source of occasional controversy in the area of pretrial discovery, is a request for the production of documents from the DFCS caseworker's file. The Child Abuse and Deprivation Records Act states that "each and every record concerning the report of child abuse" is confidential and access to such records is prohibited. O.C.G.A. § 49-5-40(b). The Georgia Code allows for a judge to order access to these records by subpoena when access to such records is necessary "for the determination of an issue" before the court. O.C.G.A. § 49-5-41(a)(2). The juvenile court judge is required to review the file independently and release only the information necessary for the resolution of this issue. O.C.G.A. § 49-5-41(a)(2). In reviewing the DFCS case file, the judge will take into account the appropriate evidentiary rules to determine if the document is admissible. O.C.G.A. § 49-5-41(a)(2)

 

The concept of confidentiality in DFCS records of investigations into allegations of child abuse and neglect is a difficult burden to overcome for attorneys for parents and children. The Court of Appeals has held that the intent of the legislature was to interpret O.C.G.A. § 49-5-40 broadly to provide maximum protection to records and reports of child abuse and neglect and to construe O.C.G.A. § 49-5-41 strictly to limit the scope of statutory exceptions. Horne et al. v. The State, 192 Ga. App. 528 (1989). However, the concept of confidentiality of DFCS records has certain constitutional and statutory limits. The Georgia Court of Appeals has previously overturned a juvenile court order because the trial judge in that case said that the father and his attorney had no right of access to Department of Human Resources records. The court found that the legislature intended to allow pretrial discovery of Department records within the discretion of the juvenile court judge, except where specifically barred in the statute. The court specifically looked at the code section quoted above. Ray v. Department of Human Resources, 155 Ga. App. 81 (1980). The Court of Appeals later held that the right to know the nature of the evidence against a person is fundamental to our system of justice. In Re M.M.A., 166 Ga. App. 620 (1983). There, the juvenile court also denied the parents any access to departmental records and files. The court found that if the files contained a matter which should have remained confidential, those records could have been removed from the case file prior to providing it to the parents' attorney. Id. at 625.

 

This ability to access DFCS records in a deprivation action only goes so far. The Georgia Court of Appeals has held that a trial judge acted within his power in refusing to allow discovery of "caseworker notes, memorandum, and other caseworker generated documents" that were not intended to be used by the department at the hearing. In re C.M., 179 Ga. App. 508 (1986). Discovery is applicable to juvenile court proceedings within the confines set by the trial court judge and requests are granted at the discretion of the juvenile court judge. The holding in Ray allows for in camera review of the case file by the judge in order to determine what should remain confidential and what is discoverable. Discovery requests are granted at the discretion of the juvenile court judge.

 

B. Summons and Necessary Parties to the Proceeding

 

 

Once an adjudicatory hearing date has been scheduled pursuant to the required time frame discussed above, the judge will issue a summons to all individuals "who appear to the court to be proper or necessary parties to the proceeding." O.C.G.A. § 15-11-39(b). These parties can include the parents, guardian, custodians, a guardian ad litem, Court Appointed Special Advocates, DFCS case managers and any other persons who appear to be necessary parties. O.C.G.A. § 15-11-39(b). The summons will require them to appear before the court at a fixed time to answer the allegations listed in the petition. A copy of the deprivation petition will accompany the summons. O.C.G.A. § 15-11-39(b).

 

Service of the summons may be made by any "suitable person" under the direction of the court. O.C.G.A. § 15-11-39.1(c). Presumably, this includes the DFCS case manager and this is common practice in many jurisdictions throughout the state. If a party lives within the state and can be found, the summons must be personally served upon him/her at least 24 hours before the hearing. If they live within the state but cannot be found, the summons may be mailed to the party by registered or certified mail at least five days prior to the hearing. A party who lives outside of the state can be personally served or served by mail at least five days prior to the start of the hearing. O.C.G.A. § 15-11-39.1(a). An objection to a service of process in a deprivation hearing can be waived by that party's voluntary appearance at the proceeding. In the Interest of W.J.G., a child., 216 Ga. App. 168 (1995). In this case, the mother had abandoned the home and her location was unknown, but as soon as she made contact with the court, she was provided with an attorney and served notice of each subsequent hearing and review. Id. at 171.

 

It is apparently common practice throughout the state for service of the summons and the petition to occur at the 72-hour hearing itself. There does not appear to be anything in the Code to prevent this procedure, but you must remember that the summons must include a date for the adjudicatory hearing. The judge will have to schedule the adjudicatory hearing at the 72-hour hearing and issue the summons immediately. Also a copy of the petition will have to be attached to the summons. If this procedure is followed the petition will have to be completed before the 72-hour hearing.

 

If a party, after reasonable effort cannot be found, the court may resort to service by publication in a local newspaper. O.C.G.A. § 15-11-39.1(b). The summons served by publication shall indicate the general nature of the allegations and state where a copy of the petition can be obtained. O.C.G.A. § 15-11-39(b). The adjudicatory hearing cannot be held until five days after the date of the last publication. O.C.G.A. § 15-11-39.1(b). If a party is provided notice by publication, a provisional hearing may be conducted on the allegations of a petition alleging deprivation. O.C.G.A. § 15-11-39.2(a). The summons served upon any other party must state that prior to the final hearing a provisional hearing will be held at a specific time and place. O.C.G.A. § 15-11-39.2(a)(2)(A). All other parties who are not served by publication must appear at this hearing to answer the allegations contained in the petition. O.C.G.A. § 15-11-39.2(a)(2)(B). The court may enter a provisional order pending the final hearing in juvenile court. The findings of fact and order of disposition made at the provisional hearing will become final at the final hearing unless the party served by publication appears. O.C.G.A. § 15-11-39.2(a)(2)(C). The child in question must be before the court at the provisional hearing. O.C.G.A. § 15-11-39.2(a)(3). The findings of the provisional hearing shall have interlocutory effect pending the final hearing on the petition. O.C.G.A. § 15-11-39.2(b). If the party served by publication does not appear at the final hearing, the findings from the provisional hearing shall be vacated and the court would proceed normally into an adjudicatory hearing on the merits of the petition. O.C.G.A. § 15-11-39.2(c).

 

C. The Conduct of the Hearing and the Standard of Evidence

 

 

One of the main features of the juvenile court system is the use of confidentiality for the purpose of protecting the child from any later stigmatization from the public. For this reason, there are no jury trials used in juvenile court and all judicial decisions are rendered by the juvenile court judge. O.C.G.A. § 15-11-41(a). The general public is also excluded from observing deprivation hearings. Only the parties to the proceeding, their lawyers, witnesses, or any other person the court finds having a "proper interest" in the proceeding are allowed to attend. O.C.G.A. § 15-11-78(a). This differs considerably from a dispositional hearing, where the judge has discretion to admit the general public. O.C.G.A. § 15-11-78(b)(5).

 

The Georgia Supreme Court has held that a state may create a rule that deprivation hearings in juvenile court are presumed closed to the press and public. Florida Publishing Company v. Morgan, 253 Ga. 467 (1984). For constitutional reasons, this presumption is not binding and the press or plaintiff must be given an opportunity to show that the state's or juvenile's interest in a closed hearing is not overriding in comparison to the public's interest in a public hearing. Id. at 473. The burden is on the press or public to formally request that the hearing be opened and the court must then allow that party to present evidence and argue that the presumption should be lifted in a particular case. Id. at 473. If a party fails to object to the presence of reporters in the courtroom during an adjudicatory hearing, that party waives the right to raise this issue on appeal. Heath v. McGuire, et. al., 167 Ga. App. 489 (1983).

 

A party is entitled to introduce evidence, testify, and call witnesses on his/her behalf as well as cross examine adverse witnesses under the Georgia Juvenile Code. O.C.G.A. § 15-11-7(a). In addition, a party is also entitled to legal representation at all stages of a deprivation proceeding. O.C.G.A. § 15-11-6(b). All of these rights are guaranteed by the due process clause of the Fourteenth Amendment. In the Interest of L.LW., 141 Ga. App. 32 (1977).

 

In addition, the court itself has several rights under the Code as well as by common law during the hearing. The court may, in its discretion, exclude the child from all or part of a deprivation hearing to shield the child from unnecessary stress and conflict. O.C.G.A. § 15-11-78(a). The judge also has the discretionary right to question any witness called by any party for the purpose of determining the truth so long as the court does not appear to take sides in the dispute prior to a ruling. T.L.T. v. State, 133 Ga. App. 895 (1975). The Court of Appeals has held that a trial judge was allowed to question a minor in chambers without the presence of counsel in a deprivation hearing when such an interview was conducted on the record and no objection was made by any party to the procedure. In re R.R.M.R., 169 Ga. App. 373 (1983). The Court of Appeals has also held that when examining the child's preferences in the matter, the trial court may exclude the parent from the proceedings so long as her attorney is present and has the ability to cross-examine the child. Spence v. Levi, 133 Ga. App. 581 (1974). During the course of these proceedings the court may order that the child be examined by a physician or psychologist and may also order treatment for the child under certain conditions. O.C.G.A. § 15-11-12(b).

 

The actual hearing itself is preserved by the court reporter using stenographic or electronic recording device should it become necessary to review the case on appeal. O.C.G.A. § 15-11-41(b). If a trial court fails to record the hearing without an express waiver by the juvenile, his/her parent, or attorney, the findings of the court can be reversed on appeal. In re R.L.M., 171 Ga. App. 940 (1984).

 

The Court of Appeals has held that the admission of some hearsay testimony during the adjudicatory hearing is not alone grounds for a reversal on appeal. Moss v. Moss, 135 Ga. App. 401 (1975). In a situation where a judge assumes the role as the trier of fact in the absence of the jury, the judge is presumed to sift through the evidence and only consider admissible portions of witness testimony in making a determination in the case. As long as there is some other evidence other than the hearsay statements which can independently support the judicial finding, the admission of hearsay testimony does not justify a reversal of a juvenile court ruling on appeal. Id. at 404. Other evidence presented at trial must support a finding of deprivation or termination by clear and convincing evidence outside of the hearsay statements. In the Interest of J.T.S., et al., 185 Ga. App. 772 (1988). Only after making a finding of deprivation may a court consider hearsay for issues relating to the disposition of the case. In the Interest of D.S., 212 Ga. App. 203 (1994). There must be specific findings of fact on which the judge relies in ruling a child to be deprived outside of any hearsay statements made at trial in order to avoid a reversal on appeal. These findings of fact must be clear and a mere a recitation of the legal requirements for a finding of deprivation is insufficient. Id. at 204.

 

The Georgia Evidence Code provides a special hearsay exception to a child's description of sexual contact or physical abuse:

 

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

 

O.C.G.A. § 24-3-16.

 

The major question to be decided in each case in which this hearsay exception is used is whether the statements provide "sufficient indicia of reliability" to allow them to be admissible. In making such a determination, there are several factors to be considered:

  1. The atmosphere and circumstances under which the statement was made (including the time, place, and people present thereat);
  2. The spontaneity of the child's statement to the persons present;
  3. The child's age;
  4. The child's general demeanor;
  5. The child's condition (physical or emotional);
  6. The presence or absence of threats or promise of benefits;
  7. The presence or absence of drugs or alcohol;
  8. The child's general credibility;
  9. The presence or absence of any coaching by parents or other third parties before or at the time of the child's statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child's statement and typical language used therein; and
  10. The consistency between repeated out-of-court statements by the child.

 

Gentry v. State, 213 Ga. App. 24 (1994).

 

It is not necessary to hold a separate hearing on potential hearsay statements at trial to see if they contain the required "indicia of reliability" prior to hearing them in court. The Georgia Supreme Court ultimately found no error in not doing so since by later admitting such statements into evidence the judge ultimately found the statements reliable just as he surely would have done following a separate evidentiary hearing. Robinson v. State, 257 Ga. 725 (1988). The trial judge is presumed to know the law and in any ruling using hearsay statements as a basis for a decision, the judge is presumed to have found them admissible. In the Interest of D.R.C., a child., 198 Ga. App. 348 (1991); and In the Interest of T.M.H., et al., children., 197 Ga. App. 416 (1990).

 

The term "available to testify" in this code section refers to the child's competency to testify or one competent to testify under O.C.G.A. § 24-9-5. Hunnicutt v. State, 194 Ga. App. 714 (1990). In all cases in which a child is the subject of a deprivation action, that child is deemed competent to testify in court. O.C.G.A. § 24-9-5(b). Even if a child cannot understand the nature of an oath, the child will be considered competent to testify according to the Code. O.C.G.A. § 24-9-5(a). If you have any other child witnesses that are not the subject of a deprivation petition, these children must meet the normal requirements for competency.

 

After hearing the evidence on any petition alleging deprivation, the court shall make and file its findings as to whether the child is deprived. If the court does not find that the child is deprived under the Juvenile Code by clear and convincing evidence, it shall dismiss the petition and order the child discharged from any detention or other restriction previously ordered in the proceeding. O.C.G.A. § 15-11-54(a). In a ruling that a child is deprived, the trial court is required to make specific findings of fact supporting this decision, which must be made separately from the conclusions of law. In the Interest of D.S., et al., children., 212 Ga. App. 203 (1994). If the court finds by clear and convincing evidence that the child is deprived, it shall sustain the petition and proceed immediately into a disposition hearing or continue such a hearing until another date. O.C.G.A. § 15-11-54(c). The court may order the child to remain in detention during a continuance before the dispositional hearing. Such a continuance to another date within a "reasonable period" of time may be granted in order to receive reports and other evidence bearing on the disposition of the case. O.C.G.A. § 15-11-56(b).

 

The Georgia Juvenile code authorizes the use of protective orders restraining or controlling the conduct of a person on the motion of a party or by the court's own motion if an order of disposition has been made or is about to be made. The party against whom such an order is issued must be given notice of the application, the grounds therefore, and the opportunity to be heard prior to approval of the order by the court. The order may require a 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(a)(1-9).

 

These orders may be enforced by a contempt order of the court and when necessary a warrant to take the alleged violator into custody and bring him before the court. O.C.G.A. § 15-11-11(c).

D. Reasonable Efforts Requirements

 

 

One of the most difficult and confusing issues for all participants in deprivation hearings is the requirements of the federal Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272), 42 U.S.C. § 670 et seq. All states receive foster care maintenance payments for each child in foster care under the Title IV-E of the Social Security Act. In order to maintain these payments, P.L. 96-272 now requires that in each case of a deprived child in state custody, "reasonable efforts" have to be made to work with the family to prevent the necessity of removing the child from the home. 42 U.S.C. § 671 (a)(15)(A). In addition, if removal was necessary to protect the health and safety of the child, reasonable efforts must be made to allow for the reunification of the child with his family. 42 U.S.C. § 671(a)(15)(B).

 

Since the passage of Public Law 96-272, the focus of the child welfare system has shifted toward providing for and protecting 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 (Public Law 105-89), in November 1997. In Georgia, Senate Bill 611 and House Bill 1572 were passed to bring the Georgia Juvenile Code into compliance with this Act. 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. 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 within 12 months after a child has entered foster care.

 

The burden on the department to provide preventative and reunification services applies, in most instances, to every step of the deprivation process beginning with the 72-hour informal detention hearing. In such cases, the juvenile court judge will review the actions of DFCS to determine if reasonable efforts were made to provide "reunification services" to the child's parents at every judicial review of the disposition of the case. O.C.G.A. § 15-11-58(a). Specifically, reasonable efforts must be made to preserve and reunify families prior to the placement of a child in foster care, to prevent or eliminate the need for removal, and where removal was deemed necessary, to make it possible for a child to return safely to his/her home. O.C.G.A. § 15-11-58(a)(2)(A-B). If continuation of reasonable efforts of this kind is determined to be inconsistent with the child's permanency plan, DFCS must make reasonable efforts to place the child in a timely manner in accordance with the child's permanency plan and to complete whatever steps are necessary to finalize that plan for the child. O.C.G.A. § 15-11-58(a)(3).

 

There are emergency situations in which the child's health and safety are in imminent danger thus requiring the immediate removal of the child from the home. In such instances it would not be reasonable to make an effort to prevent removal. This is recognized in the Child Protective Services Manual. Moreover, the Adoption and Safe Families Act makes clear that the safety and health of the child are to be the paramount concerns throughout the case. O.C.G.A. § 15-11-58(a)(1). Thus, under certain egregious circumstances, reasonable efforts will not be considered. As identified in O.C.G.A. § 15-11-58(a)(4), reasonable efforts are not required with respect to a parent of a child who has subjected the child to aggravated circumstances including abandonment, torture, chronic abuse or sexual abuse, who has committed the murder or voluntary manslaughter of another child of the parent or aided or abetted, attempted, conspired or solicited to do the same, or who has committed a felony assault that results in serious bodily injury to the child or another child. Reasonable efforts are similarly not required where the parental rights of another sibling of the child have been terminated involuntarily. O.C.G.A. § 15-11-58(a)(4). In these situations, DFCS is not required to submit a reunification plan to the court as part of its 30-day case plan. O.C.G.A. § 15-11-58(b).

 

Where reunification is the permanency goal, federal regulations require that the case plan for each child must include a description of services offered and services provided to prevent the removal of the child and to reunify the family after removal. 45 C.F.R. Ch. XIII, § 1356.21(d)(4), (10-1-96 Edition). Alternatively, when appropriate, the case plan may state clearly all of the reasons supporting a finding that reasonable efforts to reunify are detrimental to the child and therefore, that reunification services need not be provided. O.C.G.A. § 15-11-59(f). Periodic reviews by a judge or a Citizen Review Panel should occur at least once every six months. O.C.G.A. § 15-11-58(k). Except where justified by the circumstances mentioned, if at any point the judge finds that reasonable efforts have not been made, under P.L. 96-272, the State of Georgia will lose the federal foster care maintenance payments provided for that child under Title IV-E of the Social Security Act. 42 U.S.C. § 671(a)(15) and § 672 (a)(1).

 

Often court participants find it very confusing to work with this law because of a lack of any clear standard as to the meaning of "reasonable efforts". Neither the Adoption Assistance and Child Welfare Act of 1980 nor the Adoption and Safe Families Act of 1997 provided any definition of this term, only a requirement that reasonable efforts had to be made by the department. Federal regulations established pursuant to this act require each state to submit a Title IV-B plan which specifies which preplacement preventative and reunification services are available to children and families in need. 45 C.F.R. Ch. XIII, §1357.15(e)(1) (10-1-95 Edition). The regulations provide a list of services which may be provided as part of this plan but these are merely suggestions not requirements.

  1. 24-hour emergency caretakers;
  2. homemaker services;
  3. day care;
  4. crisis counseling;
  5. individual and family counseling;
  6. emergency shelters;
  7. procedures and arrangements for access to available emergency financial assistance;
  8. temporary child care to provide respite to the family for a brief period;
  9. home-based family services;
  10. self-help groups;
  11. services to unmarried parents;
  12. provision of or arrangements for mental health, drug and alcohol abuse counseling;
  13. vocational counseling or rehabilitation;
  14. other services the agency identifies as necessary or appropriate.

 

45 C.F.R. Ch. XIII, §1357.15(e)(2) (10-1-95 Edition).

 

Another source of insight into the meaning of this term can be found in a widely read book, Making Reasonable Efforts: Steps for Keeping Families Together, 45 C.F.R. Ch. XIII § 1357.15 (e)(2) (10-1-95 edition). This book was published with the cooperation of several groups including the National Council of Juvenile and Family Court Judges. Included in this publication is a list of recommended services written in broad terminology to be made available under the state's reasonable efforts requirements.

  1. family preservation services;
  2. generic family based/ family centered services;
  3. cash payments;
    1. to meet emergency needs;
    2. to provide ongoing financial support;
  4. noncash services to meet basic needs;
    1. food and clothing;
    2. housing (emergency shelter and permanent housing);
  5. noncash services to address specific problems;
    1. in home respite care;
    2. out of home respite care;
    3. child day care;
    4. treatment for substance abuse/ chemical addiction;
    5. treatment for sexual abusers and victims;
    6. mental health counseling/ psychotherapy;
    7. parental training;
    8. life skills training;
    9. household management;
  6. facilitative services
    1. visitation (to prepare both parent and child for their eventual reunification);
    2. transportation (when services are geographically inaccessible). (p. 81-90)

 


Many of these suggested services are similar to those contained in the federal regulations. However, as of now there are no formal requirements at the federal or state level as to what must be contained in Georgia's Title IV-E plan. You should consult with DFCS periodically to see what preplacement preventative and reunification services are available in your county. Since there is no formal definition of reasonable efforts, the juvenile judge for your jurisdiction may interpret this requirement more broadly than the department does and reject your recommendations if the court feels that more efforts are needed to prevent the removal of the child or to provide for the reunification of the family.

 

 

VII. Disposition of a Deprived Child

 

 

The main focus of the dispositional hearing is what should be done to improve the life of the child now that he/she is found to be deprived in the adjudicatory hearing. The dual hearing procedure is sometimes called a bifurcated system, that is, a system with separate hearings for factual determinations on the merits of the deprivation petition and child welfare decisions. The court can conduct the dispositional hearing immediately following the adjudicatory hearing or can schedule the dispositional hearing for a latter date.

A. Evidence

 

 

In the dispositional hearing, the court is authorized to receive "all information helpful in determining the questions presented" even if this information would not have been admissible during the adjudicatory hearing because of evidentiary problems such as hearsay. O.C.G.A. § 15-11-56(a). Attorneys for both the parents and the child are still entitled to examine any written reports submitted to the court prior to the dispositional hearing and to cross-examine any individuals making the reports. O.C.G.A. § 15-11-56(a). However, confidential sources of information need not be disclosed. O.C.G.A. § 15-11-56(a).

 

The judge may direct that a social study and report be made to the court concerning "the child, his family, his environment, and other matters." However, the court may not take this information into consideration until after the adjudicatory hearing finding that the child is deprived. These reports are only admissible for purposes of the child welfare decisions which must be made in the deprivation hearing. O.C.G.A. § 15-11-12(a). The Georgia Supreme Court has previously held that the admission of such a report prior to the conclusion of an adjudicatory hearing was more than a technical violation of the law but did not constitute grounds for reversible error. In the Interest of J.C. et al., 242 Ga. 737 (1978). The caseworker who wrote the report was a witness and available for cross examination and the appeals court assumed that the trial court did not consider any hearsay statements contained in the report. The court found that enough evidence outside of this report was submitted to the court to independently support the court's decision. Id. at 741. You should also remember that the judge in your jurisdiction may require that the 30-day case plan be completed and submitted to the court prior to the dispositional hearing; and, in fact, pursuant to O.C.G.A. § 15-11-58(b) a written report must be submitted to the court within 30 days from the date of removal of a child from the home.

 

Dispositional hearings must be held in the county of the child's residence. C.L.A. et al. v. State of Georgia, 137 Ga. App. 511 (1976). When the same juvenile court judge presides over both the adjudicatory and dispositional hearings, it is not necessary to allow for another full scale evidentiary hearing on the evidence that has already been submitted to the court in the adjudicatory hearing. The judge does not need to allow for the repeated presentation of the same evidence in the dispositional hearing. D.C.A. et al. v. State of Georgia, 135 Ga. App. 234 (1975).

 

B. Dispositional Alternatives

 

 

If a child is found to be deprived, the court can choose any of the following dispositional choices that is best suited to the protection and physical, mental, and moral welfare of the child:

  1. Permit the child to remain with his or her parents, guardian, or other custodian, including a putative father, subject to any conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child;

 

  1. Subject to conditions and limitations as the court prescribes, transfer temporary legal custody to any of the persons or entities described in this paragraph. The court shall approve or direct the retransfer of the physical custody of the child back to the parents, guardian, or other custodian either upon the occurrence of specified circumstances or in the discretion of the court. The persons or entities to whom or which temporary legal custody may be transferred include the following:

 

  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;

 

  1. an agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child;

 

  1. any Public agency authorized by law to receive and provide care for the child; or

 

  1. an individual in another state with or without supervision by an appropriate officer under O.C.G.A. § 15-11-89.

 

  1. Transfer custody of the child to the court of another state exercising jurisdiction over juveniles if authorized by and in accordance with O.C.G.A. § 15-11-87 if the child is or is about to become a resident of that state.

 

 

O.C.G.A. § 15-11-55(a)(1)-(3).

 

The court is also authorized in all dispositional hearings to order the child and/or the child's parents or guardian to participate in counseling. O.C.G.A. § 15-11-68. The Georgia Juvenile Court provides the court with the power to punish a person for contempt of court for disobeying an order of the court, obstructing or interfering with the proceedings of the court, or the enforcement of its orders. O.C.G.A. § 15-11-5.

 

In addition to these procedures, if the court determines that a child who has been adjudicated deprived is or is about to become a resident of another state, the court may defer the dispositional hearing and request by any appropriate means that the juvenile court of the child's new or prospective residence accept jurisdiction over the child. O.C.G.A. § 15-11-87(a). If the child becomes a resident of another state while under the protective supervision of the court, the court may request that the juvenile court of the child's new residence state accept jurisdiction and continue his protective supervision. O.C.G.A. § 15-11-87(b). If the receiving court approves the request, the sending juvenile court will transfer custody of the juvenile as well as a certified copy of the order adjudging the child to be deprived and the order of disposition if one has already been filed. The juvenile court of our state will also provide a statement of the facts of the case as well as any recommendations and other information it considers of assistance to the accepting court in making a disposition. O.C.G.A. § 15-11-87(c).

 

The court may also order the parent(s) or guardian of the child to compensate the county or the Department of Human Resources for the following expenses:

  1. the cost of medical and other examinations and treatment of a child ordered by the court;
  2. the cost of care and support of a child committed by the court to the legal custody of an individual or a public or private agency;
  3. reasonable compensation for services and related expenses of counsel appointed by the court, where appointed by the court to represent the child and when appointed by the court to conduct the proceedings;
  4. reasonable compensation for a guardian ad litem;
  5. the expenses of service of summons, notices, and subpoenas, travel expenses of witnesses, transportation, subsistence, and detention of the child, and other like expenses incurred in the proceedings under this article; and
  6. the cost of counseling and advice required or provided under O.C.G.A. §§ 15-11-57 and O.C.G.A. § 15-11-68.

 


O.C.G.A. § 15-11-8(a).

 

The court is authorized to require payment from a parent or guardian for these items after providing such a person with an opportunity to be heard and finding that he/she is financially able to make such payments. O.C.G.A. § 15-11-8(b).

 

Special rules exist for the disposition of a mentally ill or mentally retarded child. O.C.G.A. § 15-11-149. If at any time the evidence indicates to the court that a child may be suffering from one of these conditions, the court may commit the child to an appropriate institution, agency, or individual for study and report on the child's mental condition. O.C.G.A. § 15-11-149(a). If it appears from the study and report that the child is committable under the laws of this state, the court shall order that the child shall be detained and shall proceed to commit the child within ten days to the Division of Mental Health, Developmental Disabilities, and Addictive Diseases of the Department of Human Resources. O.C.G.A. § 15-11-149(c). Otherwise, the child should be dealt with as otherwise provided by this section. O.C.G.A. § 15-11-149(d).

 

The statute allows for the transfer of temporary legal custody of the child to the Division of Family and Children Services or to other qualified individuals or organizations. O.C.G.A. § 15-11-55(a). A court's order removing a child from the child's home shall be based upon a finding by the court that leaving such a child in the home "would be contrary to the welfare of the child." O.C.G.A. § 15-11-58(a). At this point the court will also make a determination as to whether reasonable efforts were made to prevent or eliminate the need for the removal and to make it possible for the child to return to the home of his parent(s) or guardian. O.C.G.A. § 15-11-58(a).

 

A dispositional order transferring the temporary legal custody of a child is not equivalent to a termination of parental rights. The transfer of legal custody to DFCS or any other organization or individual only suspends the rights of the child's parents. These rights are not severed on a permanent basis. Rodgers et al. v. Department of Human Resources, 157 Ga. App. 235 (1981).

 

The custodian to whom legal custody of the child is given by the court has several rights under the law:

  1. The right to physical custody of the child;
  2. The right to determine the nature of the care and treatment of the child, including ordinary medical care;
  3. The right and duty to provide for the care, protection, training, and education as well as the physical, mental, and moral welfare of the child.

 

O.C.G.A. § 15-11-13.

 

These rights are subject to the conditions and limitations imposed on the custodian by the dispositional order as well as the remaining rights and duties of the child's parents or guardian. O.C.G.A. § 15-11-13. "Legal Custody" is defined elsewhere under Georgia law as a legal status which embodies the following rights and responsibilities:

 

  1. The right to have the physical possession of the child or youth;
  2. The right and duty to protect, train, and discipline him;
  3. The responsibility to provide him with food, clothing, shelter, education, and ordinary medical care; and
  4. The right to determine where and with whom he shall live.

 

O.C.G.A. § 49-5-3(12).

 


The Code notes these aspects of legal custody are subject to any residual parental rights and responsibilities. O.C.G.A. § 49-5-3(13). These residual rights include the right to visitation of the child by his parents. In the Interest of K.B., 188 Ga. App. 199 (1988). A juvenile court judge can order an end to visitation under the conditions and limitations the court is free to impose on the order in O.C.G.A. § 15-11-55(a) as well as in a protective order issued pursuant to O.C.G.A. § 15-11-11. However, there must be compelling facts to sever all ties between the parent(s) and the child. The court will not infer that visitation rights have been severed if the court is silent on the issue. Id. at 200. The parent(s) are entitled to a hearing on a termination of visitation rights if the issue was not formally addressed by the court in the adjudicatory or dispositional hearings. Id. at 201.

 

Another residual right remaining with a parent whose child has been temporarily transferred to the custody of DFCS is the authority to consent to the child's adoption. The Georgia Supreme Court has held that a mother retains the authority to place her child up for adoption with the child's grandparents prior to a hearing on the termination of her parental rights. Skipper v. Smith, 239 Ga. 854 (1977). At that point her parental rights remained in force and the termination proceedings were no longer necessary since the mother had voluntarily terminated her rights by placing the child for adoption. The court retained the authority to deny the adoption petition by the child's grandparents if such a decision would be in the best interests of the child. Id. at 857.

 

In awarding temporary legal custody, the juvenile court has several options. The court is not required to place the child with a non-custodial parent simply because the custodial parents' parental rights have been temporarily suspended. In the Interest of A.S., 185 Ga. App. 11 (1987). The judge may in his/her discretion choose to place the child with DFCS instead of the non-custodial parent based on a review of the suitability of the other parent as a temporary guardian of the child. Id. at 12.

 

The juvenile court judge has the power to place conditions and limitations prior to the transfer of temporary legal custody of a child to another individual or agency. O.C.G.A. § 15-11-55(a)(2). This authority includes the ability to condition the return of the child to his parent(s) or guardian on the achievement of certain goals by the parent or guardian. The judge can also order continued supervision by DFCS after the child has been returned to the home. O.C.G.A. § 15-11-55(a)(2). If DFCS is attempting to obtain temporary legal custody of a child, it is important to determine what conditions the caseworker would like to see imposed upon the parent in order to regain custody of the child. There are many possibilities and the needs of each child may differ. However, almost every case will require the parent to cooperate with the case plan as adopted by the court, to keep his/her address known to DFCS, to visit the child, and to pay child support to the department. Kipling Louise McVay, Deprivation and Termination, Children in Court: A Systems Approach, p. 22 (1989). Pursuant to O.C.G.A. § 15-11-55 the court may find the child to be deprived and return the child to the home of a parent under certain restrictions. However, if the court places legal and physical custody with someone other than the parents, then that agency or person has several rights under the law.

 

The Court of Appeals has held that the statute does not authorize the separation of legal and physical custody of a deprived child between two separate organizations or individuals. In re R.R.M.R., 169 Ga. App. 373 (1983). A juvenile court has no authority to transfer temporary legal custody to DFCS and then order the child be placed in foster care. If DFCS is given legal custody, the department has the authority to decide where and with whom the child will live. In re R.L.M., 171 Ga. App. 940 (1984). In addition, the juvenile court cannot award joint custody between the Department of Human Resources and an unrelated third party if DHR objects to this arrangement. In the Interest of J.N.T., a child, 212 Ga. App. 498 (1994). In a typical deprivation case, the child is adjudicated as deprived and then temporary legal custody is transferred to DFCS during the dispositional hearing. From that point on, DFCS has the authority as the party with "legal custody" of the child under O.C.G.A. § 49-5-3(12) to determine where and with whom the child shall live. The court may not award temporary legal custody to DFCS and then give physical custody of the child to an individual of its own choosing. The court re-emphasized that physical and legal custody cannot be separated. Id. at 499.

 

Dispositional orders involving the placing of a child in shelter or foster care remain in effect for 12 months after the date of the original placement with the department unless it is terminated by the court before that time. O.C.G.A. § 15-11-58(k). All other dispositional orders continue in effort for not more than two years. O.C.G.A. § 15-11-58.1(a). URJC, 15.2. The court may terminate an order of disposition prior to its extension if it appears that the purposes of the order have been completed. O.C.G.A. § 15-11-58.1(b). A dispositional order is also terminated automatically once the child reaches the age of eighteen (18). O.C.G.A. § 15-11-58.1(c).

 

  1. Interstate Compact on the Placement of Children (ICPC)

 

 

The juvenile court system only has authority to place a child in institutional or foster care within the confines of the State of Georgia. The term foster care includes a child transferred to the home of a noncustodial parent or relative not being paid a subsidy by the state. A juvenile court should not make an order of disposition placing a child outside of the State of Georgia without the cooperation and approval of the state where the child will reside. In order to address the inherent difficulties of placing a child in a facility or foster care situation across state lines, the Interstate Compact on the Placement of Children (ICPC) was formed. This compact has been ratified and is in force in all fifty states. The term "placements" for purposes of the compact include a foster family, boarding home, child-caring agency or institution located in another state. This definition does not include any institution for the mentally ill, any hospital or other medical facility or any institution that is primarily educational in character. ICPC Article II(d). In addition, Article VIII of the ICPC lists two situations in which the terms of the ICPC shall not apply:

  1. the sending or bringing of a child into a receiving state by his parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or non-agency guardian in the receiving state.
  2. Any placement, sending or bringing of a child into a receiving state pursuant to any other interstate compact to which both parties are a party to.

 


This second restriction applies to minors who are covered by other compacts such as the Interstate Compact on Juveniles and the Interstate Compact on Mental Health which cover the interstate transfer and supervision of juvenile delinquents and the mentally ill. Article III(b) of the ICPC requires that prior to "sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to possible adoption," the sending state shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state. The notice must at least contain at least the following:

  1. The name, date, and place of birth of the child.
  2. The identity and address or addresses of the parents or legal guardian.
  3. The name and address of the person, agency or institution to or with which the sending agency proposes to send, bring, or place the child.
  4. A full statement of the reasons for such a proposed action and evidence of the authority to which the placement is proposed to be made.

 

ICPC, Article III(b)(1-4).

 

In practicality this means that the caseworker or the judge who is requesting the evaluation will need to complete ICPC Form 100A and send it, along with the social history of the child, a court order, and a needs assessment of the child to the Compact Administrator for the State of Georgia as defined in Article VII of the ICPC. This information should be sent to:

 

Interstate Compact Specialist
2 Peachtree Street
12-100
Atlanta, Georgia 30303

 

The administrator is responsible for reviewing the information and forwarding it to the Compact Administrator in the receiving state. The appropriate child welfare agency in the receiving state will conduct a study of the proposed placement site and record their findings in a report to the receiving state's Compact Administrator. The child welfare agency of the receiving state may request the sending agency to provide any supporting or additional information that is necessary under the circumstances in order to evaluate the proposed placement. ICPC, Article III(c). The child will not be "sent, brought, or cause to be sent or brought into the receiving state" until the Compact Administrator in the receiving state has notified the sending state in writing that the proposed placement does not appear to be contrary to the interests of the child. ICPC, Article III(d).

 

The National Association for the Administrators of the Interstate Compact recommends that it should take no longer than thirty working days (6 weeks) to process such a request in the receiving state from the time that the Compact Administrator receives the request until the date that the proposed placement is approved or denied. Guide to the Administration of the Interstate Compact on the Placement of Children, p. 7. These procedures allow the fulfillment of two important purposes of the Interstate Compact on the Placement of Children. First, the state from which the child is sent is provided with the most complete information on which to evaluate a proposed placement before it is made. Second, the state to which the child is sent will have a full opportunity to ascertain the circumstances of the proposed placement in order to assure adequate protection for the child. ICPC Article I, (c & d).

 

The length of time required to approve an interstate transfer under the Compact has sparked a great deal of debate about reforming this procedure in recent years. Article VII of the ICPC allows the Compact Administrators in each state, acting jointly, to establish rules and regulations to allow for the purposes of the act to be carried out more effectively. In 1996, The Association of Administrators for the ICPC, established Regulation 7 which provides for the "Priority Placement" of children across state lines in certain circumstances. Priority Placement procedures are now applicable if the proposed placement is with a parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt and;

  1. the child is under two; or
  2. the child is in an emergency shelter; or
  3. the court finds the child has spend a substantial amount of time in the home of the proposed placement.

 

ICPC Regulation 7.1(a).

 

The Priority Placement procedures can also be invoked if the receiving state Compact Administrator has a properly completed ICPC-100A and the necessary supporting documentation for over thirty (30) business days but has not provided notice as to whether the placement will be approved or denied. ICPC, Regulation 7.1(b).

 

Regulation 7 establishes a strict time table for the completion of each step in the process of placing a child in a facility or foster care family across state lines. If a juvenile court judge determines that the circumstances warrant a priority placement, he/she should within two (2) business days notify the sending agency (the local county DFCS office). The county department has three (3) business days to transmit the order along with a completed ICPC-100A and the supporting documentation to the Georgia Compact Administrator. Within two (2) business days the Compact Administrator should send the priority placement request and supporting documentation to the receiving state's Compact Administrator by overnight mail. The receiving state's child welfare department has twenty (20) business days from this date to send to Compact Administrator for that state the evaluation of the proposed placement. The Compact Administrator in the receiving state will return the necessary documentation with a notice of approval or denial to the sending state's Compact Administrator by fax. The Georgia Compact Administrator will then notify DFCS and the juvenile court judge of the decision of the receiving state. Regulation 7, ICPC. The priority placement request and home study require additional forms which are attached at the end of this chapter.

 

Under Article V of the ICPC, the sending state will retain jurisdiction overthe child once an out of state placement has been made. This means that the juvenile court will make all decisions in regards to custody, supervision, care, treatment, and disposition of the child. The sending state will also continue to have financial responsibility to the child just as it would in an in state placement until the child is adopted, emancipated, reaches the age of majority, or until the Compact Administrator in the receiving state recommends that the case be closed. ICPC, Article V(a).

 

 

VIII. Permanency Planning - Judicial and Citizen Review

 

 

An order of disposition placing a deprived child in foster care under the supervision of the Division of Family and Children Services is effective for up to 12 months after the original placement unless it is terminated sooner by the court. O.C.G.A. § 15-11-58(k). Any other order of disposition will remain in force for two years unless sooner terminated by the court. O.C.G.A. § 15-11-58.1(a).

A. 30-Day Case Plans

 

 

Within thirty (30) days of the date of the removal of the child and at each subsequent review of the dispositional order, DFCS must submit a written report which shall either include a case plan for the reunification of the family or the basis for its determination that a plan for reunification is not appropriate. The contents of the report shall be based upon a meeting to be held between DFCS, in consultation with the citizen review panel (if such a panel operates within your county), and the parents and children if available. O.C.G.A. § 15-11-58(b). The parents shall be given written notice of the meeting at least five days in advance and shall be advised that the report to be discussed at this meeting will be submitted to the judge to become an order of the court. O.C.G.A. § 15-11-58(b). The final report will become part of the formal case record and will be made available to the parents or guardian of the child upon request. The report must contain any dissenting recommendations of the citizen review panel and any recommendations made by the parents. O.C.G.A. § 15-11-58(b). The adjudicatory and dispositional hearings will often have already been held before the end of the thirty day time period. Be aware that courts in some jurisdictions require the 30-day case plan to be completed before the dispositional hearing is held.

 

If a 30 Day case plan is submitted to the court which contains a plan for reunification services, it must also address each of the following items:

  1. each reason requiring the removal of the child;
  2. the purpose for which the child was placed in foster care, including a statement of the reason why the child cannot be adequately protected at home and the harm which may occur if the child remains in the home;
  3. the services offered and provided to prevent the removal of the child from the home;
  4. 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;
  5. a clear description of the specific actions taken by the parents and specific services provided by DFCS or other appropriate agencies in order to bring about the identified changes that must be made in order to return the child to the home. (all services and actions required of the parents not directly related to the circumstances necessitating separation cannot be made conditions for the return of the child without further court review).
  6. specific time frames in which the goals of the plan are to be accomplished to fulfill the purpose of the reunification plan;
  7. the person within DFCS who is directly responsible for ensuring that the plan is implemented;
  8. consideration of the advisability of reasonable visitation schedules which allow parent(s) to maintain meaningful contact with their children through personal visits, telephone calls, and letters.

 

O.C.G.A. § 15-11-58(c).

 

If the report contains a proposed plan for reunification services, the report must be transmitted to the parents at the time it is filed with the court, along with written notice that the report will be the order of the court unless, within five days from the receipt of the report, the parents request a hearing before the juvenile court to review the contents of the report. O.C.G.A. § 15-11-58(d). If no hearing is requested, the court shall enter a disposition order or supplemental order adopting the parts of the plan for reunification services which the court finds essential and specifying what must be accomplished by all parties before reunification of the family can be granted. O.C.G.A. § 15-11-58(d).

 

If the report does not contain a plan for reunification services, the court, after proper notice to the child's parent(s), shall hold a hearing within 30 days following the filing of the report. O.C.G.A. § 15-11-58(e). A case plan with a non-reunification recommendation must address each of the following issues:

  1. each reason requiring the removal of the child;
  2. the purpose behind placing the child in foster care and the reasons why the child cannot be adequately protected at home and the harm which may occur if the child remains in the home;
  3. a description of the services offered and the services provided to prevent the removal of the child from the home;
  4. 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, including specific findings as to whether any of the grounds for terminating parental rights exist, as set forth in § 15-11-94(b) or paragraph (4) of subsection (a) of this Code section.

 

O.C.G.A. § 15-11-58(f).

 

At this hearing, DFCS will be expected to inform the judge whether and when it intends to proceed with the termination of parental rights. If DFCS does not make such a recommendation, the judge may appoint a guardian ad litem (if one has not already been appointed) to review the report and determine whether termination proceedings should be commenced independently on behalf of the child. O.C.G.A. § 15-11-58(g).

 

In order to accept a recommendation by DFCS that a reunification plan for a particular family is inappropriate, the court must determine by clear and convincing evidence that reasonable efforts to reunify a child with his/her family will be detrimental to the child. O.C.G.A. § 15-11-58(h). There is a presumption that reunification services should not be provided if the court finds by clear and convincing evidence that:

  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 exists. (these grounds will be discussed in the following chapter on Termination of Parental Rights); or
  4. any of the circumstances exist which make it unnecessary to provide reasonable efforts to reunify.

 

O.C.G.A. § 15-11-58(h)(1-4).

 

B. Judicial and Citizen Review

 

 

The cases of all children in foster care under the supervision of DFCS shall be initially reviewed within 90 days of a disposition order but no later than six months following the child's placement. O.C.G.A. § 15-11-58(k). These cases are to be periodically reviewed every six-months thereafter. O.C.G.A. § 15-11-58(k). At these periodic reviews, the reunification plan proposed by DFCS may be revised and adjusted over time in order to meet the needs of the child and to react to the changing conditions in regards to his/her parents. O.C.G.A. § 15-11-58(k). This hearing is to be conducted by the juvenile court judge or the citizen review panel if such an organization is active in your county. At the time of each review, DFCS will be expected to inform the court whether it intends to proceed with the termination of parental rights. O.C.G.A. § 15-11-58(k).

 

Although these reviews can be conducted by the juvenile court judge, many counties have chosen to appoint a Citizen Review Panel to perform this and other duties in the juvenile court system. O.C.G.A. § 15-11-58(k). Each panel review of a foster care case shall make findings and submit recommendations to the court which should address the following issues:

  1. the necessity and appropriateness of the current placement;
  2. whether reasonable efforts have been made by the local DFCS office to obtain permanency for the child;
  3. the degree of compliance with the specific goals and objectives set out in the case plan of all appropriate parties and their level of participation;
  4. whether any progress has been made in improving the conditions that caused the child's removal from the home; and
  5. any specific changes that need to be made in the case plan, including a change in the permanency goal and the projected date when permanency for the child is likely to be achieved.

 

URJC, 24.7.

 

There are specific guidelines for foster care reviews by Citizen Review Panels contained in Rule 24 of the Uniform Rules for the Juvenile Courts of Georgia. Three panel members constitute a quorum and no action may be taken and no review made in the absence of a quorum. URJC, 24.6(b). The panel can choose to hear from any person who formally requests to be heard as long as they have specific knowledge of the case and can assist in the review process. Parents and children may bring a representative of their choice who is authorized to provide the panel with information. URJC, 24.13(a). The chairperson may excuse any person from the review at the request of any participant if the chairperson determines that such exclusion is necessary to proper review of the case. URJC, 24.13(e). Each participant in the review must affirm by oath to keep all information disclosed in the review confidential. URJC, 24.13(f). The panel may meet privately with the child if it will serve to improve the child's ability to communicate. URJC, 24.13(b). The parents, child, DFCS staff, and foster parents should all receive written notice of a review. URJC, 24.13(c).

 

If the Citizen Review Panels conducts the review, the panel will transmit its report, including its findings and recommendations along with those of DFCS and the department's proposed revised plan for reunification or nonreunification to the court and the parents within five days. Any party to this proceeding may request a hearing on the proposed revised plan within five days after receiving a copy of the report. O.C.G.A. § 15-11-58(k).

 

If no hearing is requested, the juvenile court judge will review the proposed plan and enter a supplemental order incorporating the report as part of its disposition of the case. O.C.G.A. § 15-11-58(l). If a hearing is held, the court will review the evidence presented by all parties and enter a supplemental order incorporating the elements of the revised plan the court finds appropriate. The supplemental order shall be entered by the judge within a "reasonable time" after the hearing and shall provide for 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 continue 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.

 

O.C.G.A. § 15-11-58(l).

 

C. Motions to Extend Custody

 

 

A court which made a disposition or supplemental order can extend the duration of its order for temporary custody for twelve (12) months if DFCS files a motion with the court prior to the expiration of the order and a hearing is held to determine the permanency plan for the child. O.C.G.A. § 15-11-58(o). The permanency plan for the child must state:

  1. whether, and if applicable, when the child should be returned to his/her parent(s);
  2. whether the case should be referred for termination of parental rights and the child placed for adoption or referred for legal guardianship;
  3. that the child be placed in another planned permanent living arrangement in cases where DFCS has documented to the court a compelling reason for determining that it would not be in the best interest of the child to return home, be referred for termination of parental rights, be placed for adoption, or be placed with a fit and willing relative or with a legal guardian;
  4. Whether reunification services, if in effect, should be continued;
  5. What procedural safeguards should be applied to the following:
          1. parental rights with respect to the removal of the child from the home of his/her parents;
          2. a change in the child's placement;
          3. any determination affecting visitation privileges of the parents.

 

O.C.G.A. § 15-11-58(o)(2).

 

The parents of the child must be given an opportunity to be heard at this hearing prior to the judge's decision. O.C.G.A. § 15-11-58(o)(2). In order to grant an extension of temporary custody over the child to DFCS, the court must find that the extension is necessary to accomplish the purposes of the original order. O.C.G.A. § 15-11-58(n)(3). If the desire to the child in temporary custody with DFCS is based upon new circumstances not previously addressed in the deprivation proceeding, the appropriate procedure would be to file a new deprivation petition.

 

The motion to extend temporary custody and the hearing thereon should be filed and held prior to the expiration of the original dispositional order removing the child from the home. O.C.G.A. § 15-11-58(n). Failure to do so can result in a reversal on appeal of a decision to extend temporary custody. Page v. Shuff, 160 Ga. App. 866 (1982). However, the parent or guardian must object to the failure to properly file the motion on time during the extension hearing or they will loose the right to object to the state's mistake on appeal. Id. at 867. 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 parent(s) or guardian. However, nothing at this point would prevent DFCS from filing a new deprivation petition requesting that the child be removed from the home once again.

 

The Court of Appeals has previously refused to overturn a judgement of the trial court temporarily extending custody with DFCS on the last day before a dispositional order was set to expire until another deprivation petition could be filed. In the Interest of P.M. et al., children, 201 Ga. App. 100 (1991). In that case, the court held an emergency hearing to extend custody without notifying the child's mother. By the time the case reached the Court of Appeals, the trial court held an adjudicatory hearing on the merits of the new deprivation petition and once again ordered the child removed from the home. The court declined to reverse an improper extension order because the lower court had found once again by clear and convincing evidence that the child was deprived. Id. at 100. In order to prevent unnecessary trauma on the child as well as having to start the deprivation process over again, it is important for the SAAG and case manager to coordinate with each other so that motions to extend custody are filed in plenty of time to allow for a hearing prior to the expiration of the original order.

 

IX. Termination of Parental Rights

 

 

A petition for the termination of parental rights is often made by the Division of Family and Children Services when it appears that efforts to reunify the family will either be futile or potentially endanger the child emotionally and physically. A termination petition can also be filed on behalf of the child by his/her guardian ad litem or any other interested party just as in a petition alleging the child to be deprived. O.C.G.A. § 15-11-95(b). An order terminating parental rights has the effect of ending all rights and obligations of the parent with respect to the child and the child to the parent. O.C.G.A. § 15-11-93. If parental rights are terminated the parents has no right to object or participate in any further proceedings. The parent will have no right to notice of or the right to object to the future adoption of that child into another home. O.C.G.A. § 15-11-93. The termination of one parent's rights with respect to the child has no effect on the legal rights of another parent. O.C.G.A. § 15-11-105.

 

Once a parent's rights have been terminated in regards to the child, all obligations to support the child end and the state may not require the parent to support a child in the custody of DFCS. Dept. of Human Resources v. Ammons, 206 Ga. App. 805 (1992). In addition, all rights of inheritance from the child's biological parents end once that parent's rights with respect to the child have been terminated. A juvenile court may not reserve inheritance rights for a child in an order terminating parental rights. Spence v. Levi, 133 Ga. App. 581 (1974).

 

The venue requirements for a petition to terminate parental rights mirror those of a petition alleging the child to be deprived. O.C.G.A. § 15-11-95(b); and O.C.G.A. § 15-11-29. The Court of Appeals has held that in a proceeding to terminate parental rights, a petition can also be filed in the county in which the child resides in a foster home if that location is different from the county in which the first action concerning the child was filed. Cain v. Dept. of Human Resources, 166 Ga. App. 801 (1983).

A. Standard of Proof and Requirements for Termination

 

 

The Georgia Juvenile Code sets forth four basic situations where a petition for the termination of parental rights is clearly appropriate:

  1. the parent has given written consent, acknowledged before the court, to the termination of his/her parental rights with respect to the child;
  2. a decree has been entered by a court ordering the parent to support the child and the parent has wantonly and willfully failed to comply with the order for a period of 12 months or longer;
  3. the parent has either abandoned the child or left the child in a situation such that the identity of the parent cannot be determined after a diligent search, and the parent has not come forward to claim the child within three months of his/her finding; or
  4. The court makes a finding of parental misconduct or inability.

 

O.C.G.A. § 15-11-94(b)(1-4).

 

According to the Georgia Juvenile Code, the court can only order the termination of parental rights by finding with clear and convincing evidence that the parent in question falls into one of the categories set forth above. O.C.G.A. § 15-11-94(a). Even if the court finds justification for termination, the court cannot terminate a parent's rights unless such action would be in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need of that child for a secure and stable home. O.C.G.A. § 15-11-94(a).

 

This is a high standard for the petitioner to overcome. A decision to terminate parental rights is held to a very high standard which is taken very seriously by the appellate courts. "Seldom does the state wield so awesome a power as when it permanently ends the family ties between parent and child." R.C.N. v. State of Ga., 141 Ga. App. 490, 491 (1977). "The tearing of the flesh of one's offspring is a penalty by the state second in severity or arguable surpassing in severity, only to depriving a person of his or her liberty." Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (1976). It is not sufficient by itself for termination to be in the "best interest" of the child or that the child might be better off in another environment. Carvalho v. Lewis, 247 Ga. 94 (1981). A finding of unfitness must be made based on a review of whether the parent can care for the child alone without the necessity of state intervention. A termination cannot be granted simply because the child might find better "financial, education or even moral advantages elsewhere." Id. at 95.

 

In a deprivation hearing, a decision is reached 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 Co. Dept. of Family and Children Serv., 136 Ga. App. 308 (1975). However, a petition to terminate parental rights can only be approved upon a findings of some sort of "parental misconduct or unfitness resulting in the abuse or neglect of the child." Chancey v. Dept. of Human Resources, 156 Ga. App. 338 (1980). A decision to terminate cannot be based upon the "best interests" or "welfare of the child" alone. Id. at 340.

 

A decision to approve a petition to terminate parental rights must under any of the standards must be made by a finding of clear and convincing evidence. O.C.G.A. § 15-11-94(a). In a termination order, the judge must specifically state that his decision is supported by clear and convincing evidence. Failure to do so will result in a reversal upon appeal. In re R.L.Y., et al., 181 Ga. App. 14 (1986). Just as in a deprivation order, a simple recitation of the statutory requirements followed by a statement that these minimum standards of parental conduct have not been met in a given case also will not be considered sufficient on appeal. The court will need to make specific factual findings to support its decision to terminate parental rights. In the interest of M.H.F., a child., 201 Ga. App. 56 (1991), and In the Interest of H.T., a child., 198 Ga. App. 463 (1991).

 

1. Voluntary Relinquishment of Parental Rights

 

 

 

The Code contains a rarely used ground for termination when the parent consents to the termination of their parental rights in writing, and acknowledges this fact before the court. O.C.G.A. § 15-11-94(b)(1). That acknowledgment is not necessary when the parent voluntarily surrenders the child for adoption. O.C.G.A. § 15-11-94(b)(1). This section does not authorize a parent to file a motion in juvenile court to terminate their own parental rights. This section was meant to be used in situations where a third party, such as DFCS, requests a termination and the parent consents to this outcome. However, this consent must be voluntary. The Court of Appeals has held in a case where a mother filed a request to terminate her own rights in regards to her daughter for fear of criminal prosecution for parental abandonment, such a motion had to be rejected. In re K.L.S., 180 Ga. App. 688 (1986). In this case, the mother had rarely seen her child in eight years and the maternal grandmother had threatened to swear out a warrant for her arrest. Id. at 689.

2. Failure to Comply with a Child Support Order

 

 

The Juvenile Code also authorizes the termination of parental rights when a parent has wantonly and willfully failed to comply with a child support order for a period of one year or longer. O.C.G.A. § 15-11-94(b)(2). Any complaint or petition alleging a failure to comply with a previous court order as a basis for termination should include a copy of that previous order attached to the complaint or petition. URJC, 4.1. The key to this standard appears to be whether the parent "wantonly and willfully" failed to comply with the court order. The Court of Appeals has upheld a decision by a juvenile court rejecting a termination petition where the trial judge defined "wantonly and willfully" based on previous precedents as "without reasonable excuse, with a conscious disregard for duty, willingly, voluntarily, and intentionally." In re H.B. and K.B., 174 Ga. App. 435 (1985). In that case the court found that the mother did not intentionally violate the court order for one year or longer when evidence showed that she had an extremely low income, tried to send $100 to the child's father and provided health insurance for the children by borrowing money and cashing in her retirement fund. Id. at 435. In another case, the Court of Appeals found that a father's failure to follow a child support order was not wanton or willful when he was laid off from his job and unable to pay child support. In re S.G.T., 175 Ga. App. 475 (1985). The court has also held that a mother's failure to provide child support for over one year did not justify termination when there was no request for child support and no court order mandating such action. Uniroyal Goodrich Tire, Co, et al. v. Adams et al., 221 Ga. App. 706 (1996)). These cases where decided under O.C.G.A. § 15-11-51(a)(4) which was repealed when the General Assembly enacted Article II of the current Juvenile Code dealing with the Termination of Parental Rights in 1986. However, the language used in defining this particular ground for termination remains the same. O.C.G.A. § 15-11-94(b)(2).

 

 

3. Parental Abandonment

 

 

The Court of Appeals addressed the issue of abandonment in Thrasher v. Glynn Co. Dept. of Family and Children Serv., 162 Ga. App. 702 (1982). The facts of an abandonment case must be construed in favor of the parent and against a finding of abandonment. In order to make such a finding there must be sufficient 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." Id. at 702. The court noticed that the father had failed to attempt to legitimate the child, establish any familial relationship with the child, or contribute to the support of the child or of the mother (including medical care) during or after her pregnancy and hospitalization. Id. at 702. You will note that these are the same factors in determining whether a putative father whose address is not known should have his parental rights terminated even in the absence of his presence at the hearing. O.C.G.A. § 15-11-96(e)(4)(a-d). In addition, merely turning over the custody of a child to another is not alone grounds for termination of parental rights. Uniroyal Goodrich Tire, Co, et al. v. Adams et al., 221 Ga. App. 705 (1996). Here, custody of a child was provided temporarily to one of the mother's adult children. The mother had entered into an agreement whereby she reserved the right to reacquire custody by filing a petition with the probate court. This is not sufficient to constitute abandonment since there was no intent to entirely severe the parent-child relationship. Id. at 706.

 

4. Parental Misconduct or Inability

 

 

Parental misconduct or inability is a catch-all category under which most petitions to terminate parental rights are filed. To approve such a petition the court will need to find that:

  1. the child is deprived under the definition given in the Juvenile Code (as explained in a previous chapter);
  2. the lack of proper parental care or control by the parent in question is the cause of the child's deprivation;
  3. the cause of the child's deprivation is likely to continue or will not likely be remedied; and
  4. the continued deprivation will cause or is likely to cause serious physical, mental, emotion, or moral harm to the child.

 

O.C.G.A. § 15-11-94(b)(4)(A)(i-iv).

 

The Juvenile Court is required to make specific findings of fact as to each of the statutory elements prior to approving a petition to terminate parental rights. Failure to find specifically that the deprivation experienced was likely to cause the child serious "physical, mental, moral, or emotional harm" constitutes grounds for reversal on appeal. Caldwell v. Boone et al., 166 Ga. App. 250 (1983). In ruling on the question of deprivation, the juvenile court is allowed to take judicial notice of a previously unappealed ruling finding the child to be deprived if such an order is still in effect. In the Interest of J.R., a child., 202 Ga. App. 418 (1992). The records of previous deprivation hearings concerning the child who is the subject of the petition are admissible in any subsequent termination proceedings. O.C.G.A. § 15-11-101.

 

This last type of termination petition is by far the most common you will encounter as a SAAG. The key to this standard is whether the child lacked proper parental care and control. The Juvenile Code states that the court may consider any and all of the following factors in determining whether the parent has exhibited proper care and control over the child for purposes of a termination petition:

  1. a medically verifiable deficiency in the parent's physical, mental, or emotional health that exists to such a degree and for such a length of time as to render the parent unable to provide properly for the physical, mental, emotional, or moral conditions and needs of the child;
  2. the excessive use or history of chronic unrehabilitated abuse of drugs or alcohol which renders the parent incapable of providing properly for the physical, mental, emotional, or moral conditions and needs of the child;
  3. the conviction of the parent of a felony and the parent's subsequent imprisonment which has a clearly negative effect on the quality of the parent-child relationship;
  4. the 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;
  5. the 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 in question;
  6. the injury or death of a sibling of the child under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse.

 

O.C.G.A. § 15-11-94(b)(4)(B)(i-vi).

 

In addition, if the child has already been removed from the home prior to a petition to terminate parental rights, the court can consider whether the parent, without a justifiable cause, has failed significantly for a period of one year or longer prior to the filing of the termination petition:

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

 

O.C.G.A. § 15-11-94(b)(4)(C)(i-iii).

 

Courts generally consider a two-step analysis in deciding whether to terminate a parent's rights. First, the court determines whether there is clear and convincing evidence of parental misconduct or unfitness. Second, if termination of parental rights is in the best interests of the child. In the Interest of B.J.H., 194 Ga. App. 282 (1990). The Court of Appeals has held that the same evidence that supports a finding of parental misconduct or inability will support a finding that termination of parental rights is in the child's best interest. In the Interest of B.P., et al., children., 207 Ga. App. 272 (1992). If the court finds by clear and convincing evidence that the child meets these standards and the petition to terminate parental rights is justifiable, there is no burden on the court to finding by clear and convincing evidence that a lesser alternative disposition, such a transferring temporary legal custody to DFCS, would be less appropriate for this child. In the Interest of P.F.J., 184 Ga. App. 47 (1985).

 

Past deprivation alone will not be considered sufficient to prove present deprivation but 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., children., 219 Ga. App. 133 (1995), In the Interest of B.J., 220 Ga. App. 144 (1996). The fact that the termination statute uses the term "is deprived" instead of "will be deprived" does not mean that DFCS must wait for deprivation to occur before taking action. Roberts v. State of Georgia, 141 Ga. App. 268 (1977). It is largely a question of the quality of the evidence. DFCS is authorized to take action to terminate parental rights when evidence shows that the conditions under which the child will be raised in the parent's home strongly indicate that deprivation will occur in the future. In this case the mother was 14 years old, borderline retarded, and living with her elderly grandparents who would not be able to assist in caring for the child. Id. at 270. It is not necessary for the state to provide a parent with an opportunity to rehabilitate themselves prior to filing a motion to terminate their parental rights. The state is authorized to proceed immediately with such a motion once the deprivation action has commenced. In the Interest of B.R.S., a child., 198 Ga. App. 561 (1991).

 

Parental "misconduct or unfitness" authorizing a termination under the statute can be caused by either "intentional or unintentional misconduct causing the abuse or neglect of a child or by what is tantamount to physical or mental incapacity to care for the child." In the Interest of G.L.H., et al., children., 209 Ga. App. 146 (1993). A parent's failure to comply with requirements to attend mental health and parenting counseling can be considered in determining if the cause of the child's deprivation is likely to continue into the future. Id. at 150.

 

Evidence of the living and economic conditions of foster parents who wish to adopt a child is not evidence as to the first part of this test concerning parental misconduct or unfitness but it is evidence of whether termination would be in the "best interest" of the child by providing the court with potential alternative living arrangements. In the Interest of J.M.G., a child., 214 Ga. App. 738 (1994). However, standing alone the availability of an alternative living arrangement or a lack of wealth on the part of the natural parent(s) is not enough to justify a termination of parental rights. Id. at 738. The court had held in a previous case that evidence of "foster care drift" alone is no reason to terminate parental rights, but the adoptability of a child and the child's need for a stable home and potential negative effects of long term foster care is a factor in the determination of deprivation. In the Interest of J.C.J., a child., 207 Ga. App. 599 (1993); In re G.M.N. and D.M.N., 183 Ga. App. 458 (1987).

 

A common situation in which a termination is sought is when a parent is imprisoned after a conviction of a felony and this has a "clearly negative effect on the quality of the parent-child relationship." O.C.G.A. § 15-11-94(b)(4)(B)(iii). The Juvenile Code specifically allows the court to consider this as evidence of a lack of proper "parental care or control" in determining if the child is deprived and whether the cause of that deprivation is likely to continue causing harm to the child. O.C.G.A. § 15-11-97(b)(4)(B)(iii). Imprisonment alone does not automatically result in a termination of that parent's rights to the care and control of his/her child. In the Interest of R.L.H., a child., 188 Ga. App. 596 (1988). In that case the Court of Appeals affirmed a termination when the father did not attempt to contact DFCS or his children when he was released from prison for six weeks, refrain from criminal activity as required by the case plan, and had no present prospects for employment, a steady income, or a stable home. Id. The Court of Appeals has also held that a "clearly negative effect on the parent child relationship" can be shown by direct or circumstantial evidence. In the Interest of L.F., a child., 203 Ga. App.522 (1992). In that case the negative effect was shown by the father's repeated incarcerations for criminal offenses and parole violations. The court held this to be an additional factor to determine if the child is presently deprived and will likely continue to be deprived in the future. Id. at 522.

 

The killing of one spouse by another resulting in a conviction for murder constitutes sufficient grounds to terminate parental rights, however such action does not automatically result in the termination of the surviving parent's rights. In the Interest of J.M.R. et al., children., 218 Ga. App. 490 (1995). If malice is shown by a conviction for the murder of one's spouse, this is sufficient to imply moral unfitness authorizing termination since this situation is likely to continue resulting in harm to the child. Id.; and Heath v. McGuire et al., 167 Ga. App. 489 (1983). In another case, the Court of Appeals reversed a decision to terminate the parental rights of a man convicted of the voluntary manslaughter of his wife. The court noted that no malice is required in a manslaughter conviction and the requirement of mitigating circumstances surrounding the homicide. The father was about to be released on parole at the time of the petition and had a home and job waiting for him. There was no other evidence of parental misconduct or failure to provide for his children and he had attempted to maintain contact with the children throughout his incarceration. In the Interest of H.L.T., 164 Ga. App. 517 (1982). However, in the presence of other factors which indicate parental misconduct or inability to care for the child, a decision to terminate the parental rights of a father convicted of the voluntary manslaughter of his wife was upheld. Brown v. Dept. of Human Resources, 157 Ga. App. 106 (1981).

 

The court is also authorized to consider a deficiency in the parent's physical, mental, or emotional health that renders the parent unable to provide properly for the needs of the child in determining if the child lacks proper parental care or control. O.C.G.A. § 15-11-94(b)(4)(B)(i). It should be remembered that a finding of present deprivation likely to be continued in the future causing harm to the child is based upon a finding of a lack of "proper parental care and control". O.C.G.A. § 15-11-94(b)(4)(ii). The fact that a mother is living with the child's grandparents who provide the mother with support does preclude a finding of deprivation which is likely to continue into the future. In re S.R.J., a child., 176 Ga. App. 685 (1985). The Court of Appeals affirmed a termination in a case where the mother was unable to retain more than the simplest parenting skills and needed constant supervision from her parents. The test is whether the parent, standing alone, is ultimately capable of mastering proper parental skills. Id. at 686. Another case involving the mental inability to properly care for a child involved a mother who was released from parenting classes because she could not meet her own needs let alone those of her child. In the Interest of A.S.M., a child., 214 Ga. App. 668 (1994). In addition, she only attended 15 Alcoholic Anonymous meetings in a two year period, met with two psychiatrists but failed to show up for follow up appointments, failed to pay child support, find steady employment, or refit her house to make it fit for a child to live in. Id. at 672, 673. The Court of Appeals has come to similar conclusions in situations where the mother was mentally ill and mildly retarded and therefore incapable of caring for the child without assistance as well as a situation when a parent would require twenty-four hour supervision to avoid injuring the child. See Griffith v. Dept. of Human Resources, 159 Ga. App. 649 (1981); and Maynard v. Berriern Co. Dept. of Family and Children Serv., 162 Ga. App. 618 (1982). A termination of a father's parental rights were also justified when he failed to protect his child from her abusive mother even though he knew that she was prone to violence and had harmed the child in the past. The father was mentally retarded and his lack of care was likely to continue and not be remedied. In the Interest of M.C.A.B., a child., 207 Ga. App. 325 (1993). The Georgia Supreme Court has rejected an equal protection argument of parents who had their parental rights terminated for mental incapacity to care for their children. The welfare of the child was the compelling government interest which justified the removal of the children from their home and the infringement upon their fundamental right to care for and raise their child. In the Interest of J.C., et al., 242 Ga. 737 (1978).

 

Another common situation listed under the statute as evidence of a lack of proper parental care and control is the failure of a parent for over one year to comply with a case plan designed to reunite a family. O.C.G.A. § 15-11-94(b)(4)(C)(iii). This one year period appears to include the time period in which the parent and DFCS have entered into an agreement prior to the order having been filed by the juvenile court judge. In the Interest of C.D.P., a child., 211 Ga. App. 42 (1993). The Court of Appeals upheld trial court decision considering noncompliance with the plan even though not one year had passed since the plan was included in a supplemental dispositional order since the plan was in effect by agreement of the parties for over a year and the purpose of the statute was served. The Court did note that this was not the dispositive factor in the termination. Id. at 43.

 

When the child is already in DFCS custody, the court should also consider whether the parent has failed without justifiable cause for a period of one year or more to communicate with the child, provide for the care and support of the child, and to comply with a court ordered plan designed to reunite the family. O.C.G.A. § 15-11-94(b)(4)(C)(i-iii). The Court of Appeals has upheld an order to terminate parental rights when the trial court made specific findings as to the first two factors but not the third. The parent had not failed to comply with a reunification plan because one was not entered into by the parent. In the Interest of A.O.S., II., 189 Ga. App. 860 (1989). The court found the third factor irrelevant to the case and held that while the first two factors alone would not be grounds for termination in and of themselves, in conjunction with other issues, they could provide a justification for the termination of parental rights. Id. at 862.

 

 

B. Notice of Proceeding and Summons

 

 

The process of terminating parental rights begins with a petition similar to the one filed in a deprivation action. Once again this petition must set forth the facts alleged in ordinary and concise language and how they relate to the terms of the statute. O.C.G.A. § 15-11-95(c). When the petition is filed, a summons notifying all relevant parties of the termination hearing should be sent to the child's parents, guardian, lawful custodian, and to the person who presently has physical custody of the child. O.C.G.A. § 15-11-96(a). A copy of the termination petition will be sent together with the summons so that all parties will be adequately prepared for the hearing. O.C.G.A. § 15-11-96(b). The summons will be served upon all parties at least thirty days prior to the date of the termination hearing. O.C.G.A. § 15-11-96(c).

 

Many of the difficulties and confusion surrounding preparing for a termination hearing involves notification to the fathers of children born out of wedlock. When the petition seeks to terminate the parental rights of a biological father who is not the legal father of the child, a certificate must be included from the putative father registry identifying any registrant acknowledging paternity of the child or the possibility of paternity of a child during the two years prior to the child's birth. O.C.G.A. § 15-11-95(d). A legal father is defined as a man 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).

 

If there is a biological father who is not the legal father of the child and he has not surrendered his parental rights, he must be notified of the termination proceedings in the following circumstances:

  1. If his identity is known to the petitioner or the petitioner's attorney;
  2. If he is a registrant on the putative father registry who has acknowledged paternity of the child;
  3. If he is a registrant on the putative father registry who has indicated possible paternity of the child during a period of two years immediately prior to the child's date of birth; or
  4. If the court finds from the evidence, including but not limited to an affidavit of the child's mother that the biological father who is not the legal father has performed any of the following acts:
    • Lived with the child;
    • Contributed to the child's support;
    • Made any attempt to legitimate the child; or
    • Provided support or medical care for the mother either during her pregnancy or during her hospitalization for the birth of the child.

 

O.C.G.A. § 15-11-96(e)(1-4).

 

A biological father who is not the legal father of a child that is listed in one of the above categories must be notified of a proceeding to terminate his parental rights by one of the following methods:

  1. Registered or certified mail, return receipt requested, at his last known address, which notice shall be deemed received upon the date of delivery shown on the return receipt;
  2. Personal service; or
  3. Publication once a week for three weeks in the official organ of the county where the petition has been filed and of the county of his last known address, which notice shall be deemed received upon the date of the last publication.

 

O.C.G.A. § 15-11-96(f)(1-3).

 

If possible, the father should be notified by methods 1 and 2 prior to resorting to notice by publication. O.C.G.A. § 15-11-96(f).

 

If there is a biological father who is not the legal father of the child and his address is not known either to the petitioner or the petitioner's attorney, then the court should request an affidavit from the mother as to whether the biological father has performed any of the following acts:

  1. Lived with the child;
  2. Contributed to the child's support;
  3. Made any attempt to legitimate the child; or
  4. Provided support or medical care for the mother either during her pregnancy or during her hospitalization for the birth of the child.

 

O.C.G.A. § 15-11-96(g)(1-4).

 

If the court finds from the evidence that such a father has not performed any of these acts and the petitioner provides a certificate from the Putative Father Registry that there is no listing for such an individual, then it shall be "rebuttably presumed" that the biological father who is not the legal father of the child is not entitled to notice of the proceedings to terminate his parental rights. O.C.G.A. § 15-11-96(g). Unless evidence exists to rebut this presumption, the court shall enter an order terminating this father's parental rights to the child. O.C.G.A. § 15-11-96(g). It appears that if the biological father who is not the legal father of the child has performed any of those acts then he is at the very least automatically entitled to notice by publication even if his location or last known address are unknown. O.C.G.A. § 15-11-96(e) and O.C.G.A. § 15-11-96(g).

 

If notice of a proceeding to terminate parental rights must be provided to a biological father who is not the legal father, such a father must be advised that he will loose all rights to the child and will not be entitled to object to the termination unless within thirty days of receipt of his notice he files:

  1. a petition to legitimate the child; and
  2. notice of the filing of the petition with the court in which the action is pending.

 

O.C.G.A. § 15-11-96(h).

 

A biological father who is not the legal father of a child will loose all rights to such a child and the court must enter an order terminating those rights if within thirty days from the receipt of his notice he:

  1. Does not file a legitimation petition and gives notice as required in subsection (h);
  2. Files a legitimation petition which is subsequently dismissed for failure to prosecute; or
  3. Files a legitimation petition and the actions is subsequently concluded without a court order declaring that he is the legal father of the child.

 

O.C.G.A. § 15-11-96(i).

 

C. Right to Counsel

 

 

In a hearing on the termination of parental rights, the juvenile court is required to appoint a separate attorney to act as counsel for the child and may choose to appoint a guardian ad litem to represent the best interests of the child. The attorney representing the child and the guardian ad litem may be and often are the same person. O.C.G.A. § 15-11-98(a), URJC, 11.8. The failure of a trial court to appoint an attorney to represent the interests of a child in a termination hearings constitutes grounds for a vacation of the judgment and a remand to the juvenile court for a rehearing. In re J.D.H., 188 Ga. App. 466 (1988). In addition, indigent parents are also guaranteed appointed counsel in proceedings to terminate parental rights. O.C.G.A. § 15-11-98(b). The Georgia Supreme Court has held that a man claiming to be the putative father to a child born to a married woman is entitled to appointed counsel in a proceeding to terminate parental rights. The putative father of a child born out of wedlock is clearly a party to a termination of parental rights. His failure to perform any parental duties previously does not affect his right to appointed counsel. Wilkins v. Dept. of Human Resources, 255 Ga. 230 (1985).

 

The Court of Appeals has held that a guardian ad litem who represented a child in a deprivation action and subsequently filed a motion to terminate parental rights on behalf of the child may not represent that child in the future termination hearing. In re J.S.C., 182 Ga. App. 721 (1987). The purpose of the guardian is to protect the interests of the child in all matters relating to the litigation. Although the guardian here has no personal stake in the outcome of this litigation, if he/she advocates from the outset for the termination motion, the child is denied separate legal counsel. The child is to have independent legal representation separate from any other interest in the proceeding. Id. at 723, 724.

 

 

D. Placement of the Child Following a Termination Order

 

 

If after a termination order is entered, the child has no remaining legal parent, the court shall attempt to first place the child with his/her extended family or with a person related to the child by blood or marriage. O.C.G.A. § 15-11-103(a)(1). Such a relative will be required to abide by the terms and conditions of the order of the court. O.C.G.A. § 15-11-103(a)(1). The court does not necessarily have to place the child with such a relative if custody in foster care through DFCS would better suit the needs of the child. In the Interest of J.E.L., et al., children., 223 Ga. App. 269 (1996). If the court in cooperation with the department cannot find a suitable placement for the child within his/her own family, the court may make any one of the following dispositions:

  1. commit the child to the custody of the Department of Human Resources or to a licensed child-placing agency willing to accept custody for the purpose of placing the child for adoption or,
  2. in the absence of an adoption, in a foster home, or take other suitable measures for the care and welfare of the child.

 

O.C.G.A. § 15-11-103(a)(2)-(6).

 

In awarding custody after terminating parental rights, the juvenile court may not place a child directly with a potential adoptive family. The court should first attempt to place the child with DFCS, then with a licensed child placement agency, then in a foster home or some other "undesignated receiver." Dept. of Human Resources v. Ledbetter, 153 Ga. App. 416 (1980). The agency or individual who receives the child is only a temporary guardian and will have the authority to consent to the future adoption of the child into another family. The grandparents of a child with no remaining legal parents may petition to adopt the child through the normal adoption procedures but they have no right to intervene in a termination hearing seeking custody of the child. Id. at 418, 419.

 

The court will send a copy of every final termination order to the DFCS Adoption Unit within 15 days of the filing of such an order. O.C.G.A. § 15-11-103(c). If no petition to adopt the child is filed, the court will at least once every year review the circumstances of the child to determine what efforts have been made to assure that the child will be adopted. O.C.G.A. § 15-11-103(e). During this time, the custodian of the child has the authority to consent to the adoption of the child, his enlistment in the armed forces as well as surgical and medical treatment for the child. O.C.G.A. § 15-11-103(d). All termination hearings are to be conducted in an expedited manner and an order of disposition in a termination case should be filed no later than one year after the filing of the petition unless just cause is shown for delay. O.C.G.A. § 15-11-106.

 

X. Motions for Reconsideration and Appeals

 

 

The Juvenile Code provides that a petition to modify or vacate a previous order of the court may be filed in particular circumstances after the disposition has been handed down. An order of the court shall be set aside if:

  1. it appears that it was obtained by fraud or mistake sufficient therefor in a civil action;
  2. the court lacked jurisdiction over a necessary party or of the subject matter; or
  3. newly discovered evidence so requires.

 

O.C.G.A. § 15-11-40(a)(1-3).

 

A dispositional order in a deprivation case 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). Such a petition may be brought by any party to the proceeding, the probation officer, or any other person having supervision or legal custody of the child. The petition should set forth in clear an concise language the grounds on which the petition is based. O.C.G.A. § 15-11-40(c). After filing of the petition, the court must fix a time for the hearing and cause notice to be served as provided by O.C.G.A. § 15-11-39.1. The hearing may be of an informal nature and the court shall grant or deny relief as the evidence warrants. O.C.G.A. § 15-11-40(d).

 

The situations provided in the code for a petition to modify or vacate an order of the court are very specific. There is no authority provided by the juvenile code for a general motion for reconsideration based upon the evidence presented at the previous hearings. The Court of Appeals has ruled that the juvenile court has an inherent power to modify its own judgments within the statutory time frame for a notice of appeal to be filed. In re P.S.C., 143 Ga. App. 887 (1977). Such notice must be filed within thirty days after the entry of final judgment. Since the Code provides that the court can modify or vacate its previous ruling in this area, the court found justification to take the less drastic step of ordering a rehearing to see if the original decision was correct. No hearing on a motion to rehear a case needed to be held before granting the relief requested. Id. at 889. The Court has also held that the petition will be looked at substantively to determine if it meets the criteria for modification or revocation under O.C.G.A. § 15-11-40. The fact that the appellant mislabeled the petition as a motion for a new trial and the court considered it a request for reconsideration is immaterial. The attorney requesting a new trial failed to make such a petition within the 30 day period provided for In re P.S.C. However, since the petition met the requirements for modification or revocation provided for in the statute, the trial court had authority to review the request regardless of the label. Id. at 889.

 

Historically, a motion for a new trial could not be used to attack an order of the juvenile court. However, the Supreme Court recently held that a juvenile court was authorized to grant new trials. In re T.A.W., a child., 265 Ga. 106 (1995). The state constitution provides that "Each superior court, state court, and other courts of record may grant new trials on legal grounds". Ga. Const. Art. VI, § I,  IV. The Juvenile Courts of Georgia are "courts of record" under O.C.G.A. § 15-11-4(b) and therefore have the right to grant new trials as do other courts provided for in the constitution. Id. at 107.

 

An appeal from a decision of the juvenile court is provided for in O.C.G.A. § 15-11-3. The Code directs that appeals can be taken from the juvenile court to the Court of Appeals or the Supreme Court in the same manner as appeals from the Superior Court. An appeal from the juvenile court cannot be filed in the superior court in the circuit in which the juvenile court is located. Such a procedure is not provided for in the statute. Rossi v. Prince, 237 Ga. 651 (1976). However, an appeal from a decision of an associate juvenile court judge made under O.C.G.A. § 15-11-21(d) will be review of the juvenile court judge of that county. URJC, 19.2. Such a review by the juvenile court judge should be a de novo review of the evidence presented to the associate juvenile court judge (formerly called a "referee"). While a simple review of the associate judge's findings and recommendations is insufficient, another full evidentiary hearing is not necessary. In the Interest of M.E.T., Jr., a child., 197 Ga. App. 255 (1990).

 

The judgment or order shall not be superseded and shall stand until it is revised or modified by the reviewing court. A trial court order can only be superseded at the discretion of the juvenile court judge. O.C.G.A. § 15-11-3. This is very different from an order of the superior court which is automatically superseded or suspended upon the filing of a timely appeal. Walker v. Walker, 239 Ga. 175 (1977). Only parties to the original proceeding have standing to appeal the judgment of the juvenile court.

 

Appeals asserting a federal or state constitutional challenge must be taken to the Georgia Supreme Court and all other appeals will be heard by the Georgia Court of Appeals. Ga. Const. Art. VI, §VI,  II and Art. VI, §V, III. This means that in effect most appeals from the Juvenile Court will be heard at the Court of Appeals. See In the Interest of J.E.P., 252 Ga. 520 (1984). An indigent parent whose parental rights have been terminated has a right to a pauper transcript of the previous proceedings for use in appealing that decision. Nix v. Department of Human Resources, 236 Ga. 794 (1976).

 

An adjudicatory order alone is not a final judgment from which an appeal can be taken. Only after a dispositional hearing is held and a decision is issued can an order transferring temporary legal custody of a child be appealed. M.K.H. v. State of Georgia, 132 Ga. App. 143 (1974). The Court of Appeals has held that a final order in a deprivation case is not a child custody or domestic relations case which requires an application for a discretionary appeal under O.C.G.A. § 5-6-35(a)(2). In the Interest of J.C.H., 224 Ga. App. 708 (1992); In the Interest of A.L.L., et al., children., 211 Ga. App. 767 (1994). In another case, at the end of a deprivation proceeding, the trial court transferred custody of a child to the child's father and granted the mother visitation rights. On appeal, the court found that such an dispositional order was subject to the discretionary appeal procedures contained in O.C.G.A. § 5-6-35(a)(2). In the Interest of L.W. et al., children., 216 Ga. App. 222 (1995). The court rejected arguments that discretionary appeals are not mandated for deprivation orders and looked at the substance of the order (modification of a child custody decree) as opposed to the nature of the underlying proceeding. Id. at 224.

 

The standard of review to be exercised by the appellate court in reviewing a decision to terminate parental rights is "whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost." In the Interest of J.M.K., et al., 189 Ga. App. 140 (1988). In reviewing a decision finding a child to be deprived, the Court of Appeals has used a similar standard of review. Sanchez v. Walker Co. Dept. of Family and Children's Serv., 138 Ga. App. 49 (1976), rev'd on other grounds 237 Ga. 406 (1979). "When the trial judge, sitting as the trier of facts, hears the evidence, his findings based on conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it." Id. at 56. The appellate court is to defer to the juvenile court's decision unless this standard of review has not been met. In re G.T.S., 207 Ga. App. 187 (1993). "The juvenile court is vested with a broad discretion which will not be controlled in the absence of manifest abuse. The trial court had the opportunity to question and observe the parties and possesses a wide discretion in determining the issues before him and if the judgment is supported by any evidence and is not clearly erroneous, an appellate court is not authorized to set it aside." In re H.B. and K.B., 174 Ga. App. 435 (1985). As in most appeals, any potential objections not raised with the trial court will not be entertained by the appellate courts for the first time on appeal. These legal arguments are considered waived by the party now objecting. In the Interest of D.L.S., a child., 224 Ga. App. 660 (1997).

Table of Authorities

 

Cases

 

Bartlett v. Bartlett, 99 Ga. App. 770 (1959) 4

 

Bendiburg v. Dempsey, 909 F.2d 463 (11th Cir. 1990). In Jessie Mae Jefferson v. Griffin Spalding Co. Hospital Authority, et al., 247 Ga. 86 (1981) 11

 

Brown v. Dept. of Human Resources, 157 Ga. App. 106 (1981) 63

 

Brown v. Fulton Co. Dept. of Family and Children Serv., 136 Ga. App. 308 (1975) 8, 57

 

Brown v. Scott, 266 Ga. 44 (1995) 15

 

C.L.A. et al. v. State of Georgia, 137 Ga. App. 511 (1976) 40

 

Cain v. Dept. of Human Resources, 166 Ga. App. 801 (1983) 55

 

Caldwell v. Boone et al., 166 Ga. App. 250 (1983) 60

 

Carvalho v. Lewis, 247 Ga. 94 (1981) 56

 

Chancey v. Dept. of Human Resources, 156 Ga. App. 338 (1980) 57

 

D.C.A. et al. v. State of Georgia, 135 Ga. App. 234 (1975) 40

 

Dawley v. Butts Co. Dept. of Family and Children Serv., 148 Ga. App. 815 (1979). 21

 

Dept. of Human Resources v. Ammons, 206 Ga. App. 805 (1992). 55

 

Dept. of Human Resources v. Ledbetter, 153 Ga. App. 416 (1980) 70

 

Downs et al. v. Wortman et al., 228 Ga. 315 (1971) 9

 

E.S. v. State, 134 Ga. App. 724 (1975) 26

 

Elrod v. Dept. of Family and Children Serv., 136 Ga. App. 251 (1975) 8

 

English v. Milby, 233 Ga. 7 (1974) 26

 

Florida Publishing Company v. Morgan, 253 Ga. 467 (1984) 31

 

G.B., et al. v. State of Georgia, 136 Ga. App. 75 (1975) 23

 

Gentry v. State, 213 Ga. App. 24 (1994) 33

 

Griffith v. Dept. of Human Resources, 159 Ga. App. 649 (1981) 64

 

Heath v. McGuire et al., 167 Ga. App. 489 (1983) 31, 63

 

Horne et al. v. The State, 192 Ga. App. 528 (1989) 28

 

Hunnicutt v. State, 194 Ga. App. 714 (1990) 34

 

In re C.M., 179 Ga. App. 508 (1986) 29

 

In re D.R.C., 191 Ga. App. 278 (1989) 25

 

In re G.K.J., 187 Ga. App. 443 (1988) 21

 

In re G.M.N. and D.M.N., 183 Ga. App. 458 (1987) 62

 

In re G.T.S., 207 Ga. App. 187 (1993) 73

 

In re H.B. and K.B., 174 Ga. App. 435 (1985) 58, 73

 

In re J.D.H., 188 Ga. App. 466 (1988) 69

 

In re J.O., 191 Ga. App. 521 (1989) 3

 

In re J.R.T., a Child., 233 Ga. 204 (1974) 10

 

In re J.S.C., 182 Ga. App. 721 (1987) 20, 69

 

In re K.L.S., 180 Ga. App. 688 (1986) 58

 

In Re M.M.A., 166 Ga. App. 620 (1983) 28

 

In re P.S.C., 143 Ga. App. 887 (1977) 71

 

In re R.L.M., 171 Ga. App. 940 (1984) 32, 45

 

In re R.L.Y., et al., 181 Ga. App. 14 (1986) 57

 

In re R.R.M.R., 169 Ga. App. 373 (1983 32, 45

 

In re S.G.T., 175 Ga. App. 475 (1985) 58

 

In re S.R.J., a child., 176 Ga. App. 685 (1985) 64

 

In re T.A.W., a child., 265 Ga. 106 (1995) 71

 

In the Interest of A.L.L., et al., children., 211 Ga. App. 767 (1994) 5, 73

 

In the Interest of A.M.B. et al., children., 219 Ga. App. 133 (1995) 61

 

In the Interest of A.O.S., II., 189 Ga. App. 860 (1989) 65

 

In the Interest of A.S., 185 Ga. App. 11 (1987) 44

 

In the Interest of A.S.M., a child., 214 Ga. App. 668 (1994) 64

 

In the Interest of B.J.H., 194 Ga. App. 282 (1990) 61

 

In the Interest of B.P., et al., children., 207 Ga. App. 272 (1992) 61

 

In the Interest of B.R.S., a child., 198 Ga. App. 561 (1991) 62

 

In the Interest of C.D.P., a child., 211 Ga. App. 42 (1993) 65

 

In the Interest of C.R., 160 Ga. App. 873 (1982) 12

 

In the Interest of D.L.S., a child., 224 Ga. App. 660 (1997) 73

 

In the Interest of D.R.C., a child., 198 Ga. App. 348 (1991) 33

 

In the Interest of D.S. et al., children., 217 Ga. App. 29 (1995) 8

 

In the Interest of D.S., 212 Ga. App. 203 (1994) 32

 

In the Interest of D.S., et al., children., 212 Ga. App. 203 (1994) 34

 

In the Interest of G.L.H., et al., children., 209 Ga. App. 146 (1993) 62

 

In the Interest of H.L.T., 164 Ga. App. 517 (1982) 63

 

In the Interest of H.T., a child., 198 Ga. App. 463 (1991) 57

 

In the Interest of J.C. et al., 242 Ga. 737 (1978) 40, 64

 

In the Interest of J.C.H., 224 Ga. App. 708 (1992) 73

 

In the Interest of J.C.J., a child., 207 Ga. App. 599 (1993) 62

 

In the Interest of J.E.L., et al., children., 223 Ga. App. 269 (1996) 69

 

In the Interest of J.L.M. et al., Children, 204 Ga. App. 46 (1992) 9

 

In the Interest of J.M.G., a child., 214 Ga. App. 738 (1994) 62

 

In the Interest of J.M.K., et al., 189 Ga. App. 140 (1988) 73

 

In the Interest of J.M.R. et al., children., 218 Ga. App. 490 (1995) 63

 

In the Interest of J.N.T., a child, 212 Ga. App. 498 (1994) 45

 

In the Interest of J.R., a child., 202 Ga. App. 418 (1992) 60

 

In the Interest of J.T.S., et al., 185 Ga. App. 772 (1988) 32

 

In the Interest of K.B., 188 Ga. App. 199 (1988). 44

 

In the Interest of L.F., a child., 203 Ga. App.522 (1992) 63

 

In the Interest of L.L.W., et al., 141 Ga. App. 32 (1977) 26, 27, 31

 

In the Interest of L.W. et al., children., 216 Ga. App. 222 (1995) 73

 

In the Interest of M.A. et al., Children, 218 Ga. App. 433 (1995) 5

 

In the Interest of M.C.A.B., a child., 207 Ga. App. 325 (1993) 64

 

In the Interest of M.D.S., et al., children., 211 Ga. App. 706 (1994) 24

 

In the Interest of M.E.T., Jr., a child., 197 Ga. App. 255 (1990) 72

 

In the interest of M.H.F., a child., 201 Ga. App. 56 (1991) 57

 

In the Interest of M.J.G. et al., Children, 203 Ga. App. 452 (1992) 12

 

In the Interest of P.F.J., 184 Ga. App. 47 (1985 61

 

In the Interest of P.M. et al., children, 201 Ga. App. 100 (1991) 54

 

In the Interest of R.L.H., a child., 188 Ga. App. 596 (1988) 63

 

In the Interest of T.M.H., et al., children., 197 Ga. App. 416 (1990) 33

 

In the Interest of W.J.G., a child., 216 Ga. App. 168 (1995) 29

 

In the Interest of W.W.W., 213 Ga. App. 732 (1994) 5

 

In the Interests of B.H., 190 Ga. App. 131 (1989) 8

 

Irvin v. Dept of Human Resources, 159 Ga. App. 101 (1981) 17

 

Jones et al. v. Dept. of Human Resources, 168 Ga. App. 915 (1983) 7

 

Kidd v. Brown, et al., 136 Ga. 85 (1911) 9

 

Lewis v. Winzenreid, 263 Ga. 459 (1993) 8

 

Longshore v. State, 239 Ga. 437 (1977) 24

 

M.K.H. v. State of Georgia, 132 Ga. App. 143 (1974) 72

 

Maynard v. Berriern Co. Dept. of Family and Children Serv., 162 Ga. App. 618 (1982) 64

 

McBurrough v. Dept. of Human Resources, 150 Ga. App. 130 (1978) 19

 

Miller v. Reiser, 213 Ga. App. 683 (1994) 21

 

Moss v. Moss, 135 Ga. App. 401 (1975) 7, 32

 

Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (1976) 56, 72

 

Page v. Shuff, 160 Ga. App. 866 (1982) 54

 

Paxton v. State, 159 Ga. App. 175 (1981) 15

 

R.C.N. v. State of Georgia, 141 Ga. App. 490 (1977) 7, 56

 

Ray v. Department of Human Resources, 155 Ga.App. 81 (1980) 27, 28

 

Roberts v. State of Georgia, 141 Ga. App. 268 (1977) 61

 

Robinson v. State, 257 Ga. 725 (1988) 33

 

Rodgers et al. v. Department of Human Resources, 157 Ga. App. 235 (1981 43

 

Rossi v. Prince, 237 Ga. 651 (1976) 72

 

Sanchez v. Walker Co. Dept. of Family and Children's Serv., 138 Ga. App. 49 (1976), rev'd on other grounds 237 Ga. 406 (1976) 14, 73

 

Sanchez v. Walker Co. Dept. of Family and Children's Services, 237 Ga. 406 (1976) 17, 18, 26

 

Skipper v. Smith, 239 Ga. 854 (1977) 44

 

Spence v. Levi, 133 Ga. App. 581 (1974) 32, 55

 

T.L.T. v. State, 133 Ga. App. 895 (1975) 31

 

Thrasher v. Glynn Co. Dept. of Family and Children Services, 162 Ga. App. 702 (1982) 10, 59

 

Uniroyal Goodrich Tire, Co, et al. v. Adams et al., 221 Ga. App. 706 (1996) 58, 59

 

Vermilyea v. Dept. of Human Resources, 155 Ga. App. 746 (1980) 7

 

Walker v. Walker, 239 Ga. 175 (1977) 72

 

Watkins v. Watkins, 266 Ga. 269 (1996) 5

 

Wilkins v. Dept. of Human Resources, 255 Ga. 230 (1985) 69

 

Williams v. Dept. of Human Resources, 150 Ga. App. 610 (1979). 4

 

 

Official Code of Georgia Annotated

 

O.C.G.A. § 15-11-1(1) 7

 

O.C.G.A. § 15-11-101 60

 

O.C.G.A. § 15-11-103(a)(1) 69

 

O.C.G.A. § 15-11-103(a)(2)-(6) 70

 

O.C.G.A. § 15-11-103(c) 70

 

O.C.G.A. § 15-11-103(d) 70

 

O.C.G.A. § 15-11-103(e) 70

 

O.C.G.A. § 15-11-105 55

 

O.C.G.A. § 15-11-106 70

 

O.C.G.A. § 15-11-11 35, 44

 

O.C.G.A. § 15-11-11(a)(1-9) 35

 

O.C.G.A. § 15-11-11(c) 35

 

O.C.G.A. § 15-11-12(a) 40

 

O.C.G.A. § 15-11-12(b) 32

 

O.C.G.A. § 15-11-13 43

 

O.C.G.A. § 15-11-149 42

 

O.C.G.A. § 15-11-149(a) 43

 

O.C.G.A. § 15-11-149(c) 43

 

O.C.G.A. § 15-11-149(d) 43

 

O.C.G.A. § 15-11-19 3

 

O.C.G.A. § 15-11-2 (8) 11

 

O.C.G.A. § 15-11-2(10) 15

 

O.C.G.A. § 15-11-2(10.1) 16

 

O.C.G.A. § 15-11-2(10.1)(A-E) 66

 

O.C.G.A. § 15-11-2(2)(B) 4

 

O.C.G.A. § 15-11-2(2)(C) 4

 

O.C.G.A. § 15-11-2(8)(A-D) 6

 

O.C.G.A. § 15-11-21(d) 72

 

O.C.G.A. § 15-11-28 (c) 4

 

O.C.G.A. § 15-11-28(a)(1)(A, B, D) 4

 

O.C.G.A. § 15-11-28(a)(1)(C) 4

 

O.C.G.A. § 15-11-28(a)(2)(B) 4

 

O.C.G.A. § 15-11-28(a)(2)(C) 4

 

O.C.G.A. § 15-11-28(e) 4

 

O.C.G.A. § 15-11-29 11, 55

 

O.C.G.A. § 15-11-29(a) 11

 

O.C.G.A. § 15-11-29(b) 12

 

O.C.G.A. § 15-11-3 72

 

O.C.G.A. § 15-11-37 23

 

O.C.G.A. § 15-11-38 24

 

O.C.G.A. § 15-11-38.1(1-4) 25

 

O.C.G.A. § 15-11-39(a) 22, 25

 

O.C.G.A. § 15-11-39(b) 29, 30

 

O.C.G.A. § 15-11-39(c) 13, 14

 

O.C.G.A. § 15-11-39.1(a) 29

 

O.C.G.A. § 15-11-39.1(b) 30

 

O.C.G.A. § 15-11-39.1(c) 29

 

O.C.G.A. § 15-11-39.2(a) 30

 

O.C.G.A. § 15-11-39.2(a)(2)(A) 30

 

O.C.G.A. § 15-11-39.2(a)(2)(B) 30

 

O.C.G.A. § 15-11-39.2(a)(2)(C) 30

 

O.C.G.A. § 15-11-39.2(a)(3) 30

 

O.C.G.A. § 15-11-39.2(b) 30

 

O.C.G.A. § 15-11-39.2(c) 30

 

O.C.G.A. § 15-11-4(b) 71

 

O.C.G.A. § 15-11-40(a)(1-3) 71

 

O.C.G.A. § 15-11-40(b) 71

 

O.C.G.A. § 15-11-40(c) 71

 

O.C.G.A. § 15-11-40(d) 71

 

O.C.G.A. § 15-11-41(a) 31

 

O.C.G.A. § 15-11-41(b) 32

 

O.C.G.A. § 15-11-41(c) 22, 24

 

O.C.G.A. § 15-11-45(a)(4) 12

 

O.C.G.A. § 15-11-46(1-4) 16, 18

 

O.C.G.A. § 15-11-47(a)(2) 14

 

O.C.G.A. § 15-11-47(a)(3) 14

 

O.C.G.A. § 15-11-48(a)(1&2) 16

 

O.C.G.A. § 15-11-48(f) 16

 

O.C.G.A. § 15-11-49(a) 15, 16

 

O.C.G.A. § 15-11-49(b) 16, 22

 

O.C.G.A. § 15-11-49(c)(3) 16, 17

 

O.C.G.A. § 15-11-49(c)(4) 18, 19

 

O.C.G.A. § 15-11-49(d) 18, 22

 

O.C.G.A. § 15-11-49(e 22

 

O.C.G.A. § 15-11-49.1 13

 

O.C.G.A. § 15-11-5. 41

 

O.C.G.A. § 15-11-51(a)(4) 58

 

O.C.G.A. § 15-11-54(a) 34

 

O.C.G.A. § 15-11-54(c) 34

 

O.C.G.A. § 15-11-55(a) 41, 43, 44

 

O.C.G.A. § 15-11-55(a)(1)-(3) 41

 

O.C.G.A. § 15-11-55(a)(2) 45

 

O.C.G.A. § 15-11-56(a) 39, 40

 

O.C.G.A. § 15-11-56(b) 34

 

O.C.G.A. § 15-11-57 42

 

O.C.G.A. § 15-11-58(a) 36, 43

 

O.C.G.A. § 15-11-58(a)(1) 36

 

O.C.G.A. § 15-11-58(a)(2)(A-B) 36

 

O.C.G.A. § 15-11-58(a)(3) 36

 

O.C.G.A. § 15-11-58(a)(4) 36

 

O.C.G.A. § 15-11-58(b) 37, 40, 49

 

O.C.G.A. § 15-11-58(c) 50

 

O.C.G.A. § 15-11-58(d) 50

 

O.C.G.A. § 15-11-58(e) 50

 

O.C.G.A. § 15-11-58(f) 51

 

O.C.G.A. § 15-11-58(g) 51

 

O.C.G.A. § 15-11-58(h)(1-4) 51

 

O.C.G.A. § 15-11-58(k) passim

 

O.C.G.A. § 15-11-58(l) 53

 

O.C.G.A. § 15-11-58(n) 54

 

O.C.G.A. § 15-11-58(n)(3) 54

 

O.C.G.A. § 15-11-58(o) 53

 

O.C.G.A. § 15-11-58(o)(2) 54

 

O.C.G.A. § 15-11-58.1(a) 45, 49

 

O.C.G.A. § 15-11-58.1(b) 46

 

O.C.G.A. § 15-11-58.1(c) 46

 

O.C.G.A. § 15-11-59(f) 37

 

O.C.G.A. § 15-11-6(a) 19

 

O.C.G.A. § 15-11-6(b) 19, 31

 

O.C.G.A. § 15-11-68 41, 42

 

O.C.G.A. § 15-11-7(a) 31

 

O.C.G.A. § 15-11-78(a) 31

 

O.C.G.A. § 15-11-78(b)(5) 31

 

O.C.G.A. § 15-11-8(a) 42

 

O.C.G.A. § 15-11-8(b) 42

 

O.C.G.A. § 15-11-87(a) 42

 

O.C.G.A. § 15-11-87(b) 42

 

O.C.G.A. § 15-11-87(c) 42

 

O.C.G.A. § 15-11-89 41

 

O.C.G.A. § 15-11-93 55

 

O.C.G.A. § 15-11-94(a) 56, 57

 

O.C.G.A. § 15-11-94(b)(1) 57

 

O.C.G.A. § 15-11-94(b)(1-4) 56

 

O.C.G.A. § 15-11-94(b)(2) 58

 

O.C.G.A. § 15-11-94(b)(4)(A)(i-iv) 60

 

O.C.G.A. § 15-11-94(b)(4)(B)(i) 64

 

O.C.G.A. § 15-11-94(b)(4)(B)(iii) 62

 

O.C.G.A. § 15-11-94(b)(4)(B)(i-vi) 61

 

O.C.G.A. § 15-11-94(b)(4)(C)(iii) 65

 

O.C.G.A. § 15-11-94(b)(4)(C)(i-iii) 61, 65

 

O.C.G.A. § 15-11-94(b)(4)(ii) 64

 

O.C.G.A. § 15-11-95(b) 55

 

O.C.G.A. § 15-11-95(c) 65

 

O.C.G.A. § 15-11-95(d) 66

 

O.C.G.A. § 15-11-96(a) 65

 

O.C.G.A. § 15-11-96(b) 65

 

O.C.G.A. § 15-11-96(c) 66

 

O.C.G.A. § 15-11-96(e) 59, 67, 68

 

O.C.G.A. § 15-11-96(e)(1-4) 67

 

O.C.G.A. § 15-11-96(f)(1-3) 67

 

O.C.G.A. § 15-11-96(g) 67, 68

 

O.C.G.A. § 15-11-96(g)(1-4) 67

 

O.C.G.A. § 15-11-96(h). 68

 

O.C.G.A. § 15-11-96(i) 68

 

O.C.G.A. § 15-11-98(a) 68

 

O.C.G.A. § 15-11-98(b) 69

 

O.C.G.A. § 19-7-5 (d) & (e) 14

 

O.C.G.A. § 19-7-5(b)(3)(A) 7

 

O.C.G.A. § 19-7-5(b)(3)(B-D) 7

 

O.C.G.A. § 19-7-5(c)(1) 14

 

O.C.G.A. § 19-7-5(c)(1)(A-N) 14

 

O.C.G.A. § 19-7-5(f) 14

 

O.C.G.A. § 19-8-24(a)(1) 9

 

O.C.G.A. § 19-8-24(a)(2) 9

 

O.C.G.A. § 19-8-4 9

 

O.C.G.A. § 19-8-5 9

 

O.C.G.A. § 24-3-16 33

 

O.C.G.A. § 24-9-5 34

 

O.C.G.A. § 24-9-5(a) 34

 

O.C.G.A. § 24-9-5(b) 34

 

O.C.G.A. § 29-4-4 (b) 6

 

O.C.G.A. § 29-4-4(a) 5

 

O.C.G.A. § 29-4-4.1 6

 

O.C.G.A. § 29-4-4.1(a)(1) 6

 

O.C.G.A. § 29-4-4.1(a)(2) 6

 

O.C.G.A. § 29-4-4.1(b) 6

 

O.C.G.A. § 29-4-4.1(c) 6

 

O.C.G.A. § 49-5-3(12) 44, 45

 

O.C.G.A. § 49-5-3(13) 44

 

O.C.G.A. § 49-5-40 28

 

O.C.G.A. § 49-5-40(b) 28

 

O.C.G.A. § 49-5-41 28

 

O.C.G.A. § 49-5-41(a)(2) 28

 

 

Uniform Rules of the Juvenile Court

 

URJC, 11.3 23, 26

 

URJC, 11.8 68

 

URJC, 15.2 45

 

URJC, 19.2 72

 

URJC, 24.13(a) 52

 

URJC, 24.13(b 52

 

URJC, 24.13(c) 53

 

URJC, 24.13(e) 52

 

URJC, 24.13(f) 52

 

URJC, 24.6(b) 52

 

URJC, 24.7 52

 

URJC, 4.1 23, 58

 

URJC, 4.2 23

 

URJC, 6.6 25

 

URJC, 7.2 27

 

URJC, 7.2(a) 27

 

URJC, 7.2(b) 27

 

URJC, 7.2(c) 27

 

URJC, 7.3 27

 

URJC, 7.4 27

 

URJC, 7.6 27

 

URJC, 8.1 17

 

URJC, 8.2 15

 

URJC, 8.6. 17

 

 

Georgia Constitution

 

Ga. Const. 1983, Art. VI, §II,  VI 11

 

Ga. Const. 1983, Art. VI, §IV,  I 4

 

Ga. Const. Art. 1, § 2 3 15

 

Ga. Const. Art. VI, § I,  IV 71

 

Ga. Const. Art. VI, § IX,  I. 3

 

Ga. Const. Art. VI, §VI,  II and Art. VI, §V, III 72

 

 

Attorney General's Opinions

 

1976 Op. Att'y Gen. No. 76-131 7

 

1983 Op. Att'y Gen. No. U83-37 6

 

1983 Opinion of the Att'y Gen. U83-66 15

 

 

Resource Books

 

Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4.2, 4.8 4

 

Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-10 12

 

Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-14 21

 

Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-4 9

 

Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-6 10

 

Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-7 11

 

Ferreira, McGough's Juvenile Practice and Procedure (2nd ed.), § 4-3. 7

 

Ferreira, McGough's Juvenile Practice and Procedure (2nd ed.), § 4-6 10

 

Ferriera, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-14 20

 

Kipling Louise McVay, Deprivation and Termination, Children in Court: A Systems Approach. (1989) 18, 45

 

 

U.S. Code/Federal Regulations

 

42 U.S.C. § 5106(b)(6) 19

 

42 U.S.C. § 5106a(b)(2)(A)(xiii) 20

 

42 U.S.C. § 671 (a)(15)(A) 35

 

42 U.S.C. § 671(a)(15)(B) 35

 

45 C.F.R. Ch. XIII § 1357.15 (e)(2) (10-1-95 edition) 38

 

45 C.F.R. Ch. XIII, § 1340.14(g) (10-1-96 Edition) 20

 

45 C.F.R. Ch. XIII, § 1356.21(d)(4), (10-1-96 Edition) 37

 

45 C.F.R. Ch. XIII, §1357.15(e)(1) (10-1-95 Edition) 37

 

45 C.F.R. Ch. XIII, §1357.15(e)(2) (10-1-95 Edition) 38

 

Adoption