ChildWelfare.net - Open Courts: APPENDIX B

Appendix B

*** THIS SECTION IS CURRENT THROUGH THE 2000 GENERAL ASSEMBLY ***

O.C.G.A. § 15-11-28 (2000)

(a) Exclusive original jurisdiction. Except as provided in

subsection (b) of this Code section, the court shall have exclusive

original jurisdiction over juvenile matters and shall be the sole

court for initiating action:

(1) Concerning any child:

(A) Who is alleged to be delinquent;

(B) Who is alleged to be unruly;

(D) Who is alleged to be in need of treatment or commitment as a

mentally ill or mentally retarded child;

(E) Who is alleged to have committed a juvenile traffic offense

as defined in Code Section 15-11-73; or

(F) Who has been placed under the supervision of the court or on

probation to the court; provided, however, that such

jurisdiction shall be for the sole purpose of completing,

effectuating, and enforcing such supervision or a probation

begun prior to the child's seventeenth birthday; or

(2) Involving any proceedings:

(A) For obtaining judicial consent to the marriage, employment,

or enlistment in the armed services of any child if such consent

is required by law;

(B) Under the Interstate Compact on Juveniles, or any comparable

law, if enacted or adopted in this state;

and the rights of the biological father who is not the legal

father of the child, other than that in connection with adoption

proceedings under Chapter 8 of Title 19, in which the superior

courts shall have concurrent jurisdiction to terminate the legal

parent-child relationship and the rights of the biological

father who is not the legal father of the child;

(D) Under Article 3 of this chapter, relating to prior notice to

a parent or guardian relative to an unemancipated minor's

decision to seek an abortion; or

(E) Brought by a local board of education pursuant to Code

Section 20-2-766.1.

(b) Criminal jurisdiction.

(1) Except as provided in paragraph (2) of this subsection, the

court shall have concurrent jurisdiction with the superior court

over a child who is alleged to have committed a delinquent act

which would be considered a crime if tried in a superior court and

for which the child may be punished by loss of life, imprisonment

for life without possibility of parole, or confinement for life in

a penal institution.

(2)(A) The superior court shall have exclusive jurisdiction over

the trial of any child 13 to 17 years of age who is alleged to

have committed any of the following offenses:

(i) Murder;

(ii) Voluntary manslaughter;

(iii) Rape;

(iv) Aggravated sodomy;

(v) Aggravated child molestation;

(vi) Aggravated sexual battery; or

(vii) Armed robbery if committed with a firearm.

(A.1) The granting of bail or pretrial release of a child

charged with an offense enumerated in subparagraph (A) of this

paragraph shall be governed by the provisions of Code Section

17-6-1.

(B) After indictment, the superior court may after investigation

and for extraordinary cause transfer any case involving a child

13 to 17 years of age alleged to have committed any offense

enumerated in subparagraph (A) of this paragraph which is not

punishable by loss of life, imprisonment for life without

possibility of parole, or confinement for life in a penal

institution. Any such transfer shall be appealable by the State

of Georgia pursuant to Code Section 5-7-1. Upon such a transfer

by the superior court, jurisdiction shall vest in the juvenile

court and jurisdiction of the superior court shall terminate.

Any case transferred by the superior court to the juvenile court

pursuant to this subparagraph shall be subject to the designated

felony provisions of Code Section 15-11-63 and the transfer of

the case from superior court to juvenile court shall constitute

notice to the child that such case is subject to the designated

felony provisions of Code Section 15-11-63.

investigation and for extraordinary cause, decline prosecution

in the superior court of a child 13 to 17 years of age alleged

to have committed an offense specified in subparagraph (A) of

this paragraph. Upon declining such prosecution in the superior

court, the district attorney shall immediately withdraw the case

and lodge it in the appropriate juvenile court for adjudication.

Any case transferred by the district attorney to the juvenile

court pursuant to this subparagraph shall be subject to the

designated felony provisions of Code Section 15-11-63 and the

transfer of the case from superior court to juvenile court shall

constitute notice to the child that such case is subject to the

designated felony provisions of Code Section 15-11-63.

(D) The superior court may transfer any case involving a child

13 to 17 years of age alleged to have committed any offense

enumerated in subparagraph (A) of this paragraph and convicted

of a lesser included offense not included in subparagraph (A) of

this paragraph to the juvenile court of the county of the

child's residence for disposition. Upon such a transfer by the

superior court, jurisdiction shall vest in the juvenile court

and jurisdiction of the superior court shall terminate.

(E) Within 30 days of any proceeding in which a child 13 to 17

years of age is convicted of certain offenses over which the

superior court has exclusive jurisdiction as provided in

subparagraph (A) of this paragraph or adjudicated delinquent on

the basis of conduct which if committed by an adult would

constitute such offenses, the superior court shall provide

written notice to the school superintendent or his or her

designee of the school in which such child is enrolled or, if

the information is known, of the school in which such child

plans to be enrolled at a future date. Such notice shall

include the specific criminal offense that such child committed.

A local school system to which the child is assigned may request

further information from the court's file.

the subject of controversy, except in those cases where the law

gives the superior courts exclusive jurisdiction, in the

consideration of these cases the juvenile court shall have

concurrent jurisdiction to hear and determine the issue of custody

and support when the issue is transferred by proper order of the

superior court.

(d) Age limit for new actions. The juvenile court shall not have

jurisdiction to initiate any new action against an individual for

acts committed after he or she has reached the age of 17 years.

This subsection does not affect the court's jurisdiction to enter

extension orders pursuant to Code Section 15-11-58.

(e) Concurrent jurisdiction as to legitimation petitions.

(1) The juvenile court shall have concurrent jurisdiction to hear

any legitimation petition transferred to the juvenile court by

proper order of the superior court.

(2) The juvenile court shall have jurisdiction to hear any

legitimation petition filed pursuant to Code Section 19-7-22 as to

a child with respect to whom a deprivation proceeding is pending

in the juvenile court at the time the legitimation petition is

filed.

(3) Notwithstanding the provisions of paragraphs (1) and (2) of

this subsection, after a petition for legitimation is granted, if

a demand for a jury trial as to support has been properly filed by

either parent, then the case shall be transferred to superior

court for such jury trial.

O.C.G.A. § 15-11-78 (2000)

(a) Except as otherwise provided by subsection (b) of this Code

section, the general public shall be excluded from hearings

involving delinquency, deprivation, or unruliness. Only the

parties, their counsel, witnesses, persons accompanying a party for

his or her assistance, and any other persons as the court finds have

a proper interest in the proceeding or in the work of the court may

be admitted by the court. The court may temporarily exclude the

child from the hearing except while allegations of his or her

delinquency or unruly conduct are being heard.

(b) The general public shall be admitted to:

(1) An adjudicatory hearing involving an allegation of a

designated felony pursuant to Code Section 15-11-63;

(2) An adjudicatory hearing involving an allegation of delinquency

brought in the interest of any child who has previously been

adjudicated delinquent; provided, however, the court shall close

any delinquency hearing on an allegation of sexual assault or any

delinquency hearing at which any party expects to introduce

substantial evidence related to matters of deprivation;

(3) Any child support hearing;

(4) Any hearing in a legitimation action filed pursuant to Code

Section 19-7-22; or

(5) At the court's discretion, any dispositional hearing involving

any proceeding under this article.

O.C.G.A. § 49-5-40 (2000)

(a) As used in this article, the term:

(1) "Abused" means subjected to child abuse.

(2) "Child" means any person under 18 years of age.

(3) "Child abuse" means:

(A) Physical injury or death inflicted upon a child by a parent

or caretaker thereof 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;

(B) Neglect or exploitation of a child by a parent or caretaker

thereof;

(D) Sexual exploitation of a child; or

(E) However, 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 an "abused" child.

(3.1) "Sexual abuse" means a person's employing, using,

persuading, inducing, enticing, or coercing any minor who is not

that person's spouse to engage in any act which involves:

(A) Sexual intercourse, including genital-genital, oral-genital,

anal-genital, or oral-anal, whether between persons of the same

or opposite sex;

(B) Bestiality;

(D) Lewd exhibition of the genitals or pubic area of any person;

(E) Flagellation or torture by or upon a person who is nude;

(F) Condition of being fettered, bound, or otherwise physically

restrained on the part of a person who is nude;

(G) Physical contact in an act of apparent sexual stimulation or

gratification with any person's clothed or unclothed genitals,

pubic area, or buttocks or with a female's clothed or unclothed

breasts;

(H) Defecation or urination for the purpose of sexual

stimulation; or

(I) Penetration of the vagina or rectum by any object except

when done as part of a recognized medical procedure.

"Sexual abuse" shall not include consensual sex acts involving

persons of the opposite sex when the sex acts are between minors

or between a minor and an adult who is not more than five years

older than the minor. This provision shall not be deemed or

construed to repeal any law concerning the age or capacity to

consent.

(4) "Sexual exploitation" means conduct by a child's parent or

caretaker who allows, permits, encourages, or requires that child

to engage in:

(A) Prostitution, as defined in Code Section 16-6-9; or

(B) Sexually explicit conduct for the purpose of producing any

visual or print medium depicting such conduct, as defined in

Code Section 16-12-100.

(b) Each and every record concerning reports of child abuse and

child controlled substance or marijuana abuse which is in the

custody of the department or other state or local agency is declared

to be confidential, and access thereto is prohibited except as

provided in Code Section 49-5-41 and Code Section 49-5-41.1.

O.C.G.A. § 49-5-41 (2000)

(a) Notwithstanding Code Section 49-5-40, the following persons or

agencies shall have reasonable access to such records concerning

reports of child abuse:

(1) A legally mandated, public or private, child protective agency

of this state or any other state bound by similar confidentiality

provisions and requirements which is investigating a report of

known or suspected child abuse or treating a child or family which

is the subject of a report or record;

(2) A court, by subpoena, upon its finding that access to such

records may be necessary for determination of an issue before such

court; provided, however, that the court shall examine such record

in camera, unless the court determines that public disclosure of

the information contained therein is necessary for the resolution

of an issue then before it and the record is otherwise admissible

under the rules of evidence;

(3) A grand jury by subpoena upon its determination that access to

such records is necessary in the conduct of its official business;

(4) A district attorney of any judicial circuit in this state or

any assistant district attorney who may seek such access in

connection with official duty;

(5) Any adult who makes a report of suspected child abuse as

required by Code Section 19-7-5, but such access shall include

only notification regarding the child concerning whom the report

was made, shall disclose only whether the investigation by the

department or governmental child protective agency of the reported

abuse is ongoing or completed and, if completed, whether child

abuse was confirmed or unconfirmed, and shall only be disclosed if

requested by the person making the report;

(6) Any adult requesting information regarding investigations by

the department or a governmental child protective agency regarding

a deceased child when such person specifies the identity of the

child, but such access shall be limited to a disclosure regarding

whether there is such an ongoing or completed investigation of

such death and, if completed, whether child abuse was confirmed or

unconfirmed;

(7) The State Personnel Board, by administrative subpoena, upon a

finding by an administrative law judge appointed by the chief

state administrative law judge pursuant to Article 2 of Chapter 13

of Title 50, that access to such records may be necessary for a

determination of an issue involving departmental personnel and

that issue involves the conduct of such personnel in child related

employment activities, provided that only those parts of the

record relevant to the child related employment activities shall

be disclosed. The name of any complainant or client shall not be

identified or entered into the record;

(7.1) A child advocacy center which is certified by the Child

Abuse Protocol Committee of the county where the principal office

of the center is located as participating in the Georgia Network

of Children's Advocacy Centers or a similar accreditation

organization and which is operated for the purpose of

investigation of known or suspected child abuse and treatment of a

child or a family which is the subject of a report of abuse, and

which has been created and supported through one or more

intracommunity compacts between such advocacy center and one or

more police agencies, the office of the district attorney, a

legally mandated public or private child protective agency, a

mental health board, and a community health service board;

provided, however, any child advocacy center which is granted

access to records concerning reports of child abuse shall be

subject to the confidentiality provisions of subsection (b) of

Code Section 49-5-40 and shall be subject to the penalties imposed

by Code Section 49-5-44 for authorizing or permitting unauthorized

access to or use of such records;

(8) Police or any other law enforcement agency of this state or

any other state or any medical examiner or coroner investigating a

report of known or suspected abuse or any child abuse protocol

committee or subcommittee thereof created pursuant to Chapter 15

of Title 19, it being found by the General Assembly that the

disclosure of such information is necessary in order for such

entities to carry out their legal responsibilities to protect

children from abuse and neglect, which protective actions include

bringing criminal actions for such abuse or neglect, and that such

disclosure is therefore permissible and encouraged under the 1992

amendments to Section 107(b)(4) of the Child Abuse Prevention and

Treatment Act, 42 U.S.C. Section 5106(A)(b)(4); and

(9) The Governor, the Attorney General, the Lieutenant Governor,

or the Speaker of the House of Representatives when such officer

makes a written request to the commissioner of the department

which specifies the name of the child for which such access is

sought and which describes such officer's need to have access to

such records in order to determine whether the laws of this state

are being complied with to protect children from abuse and neglect

and whether such laws need to be changed to enhance such

protection, for which purposes the General Assembly finds such

disclosure is permissible and encouraged under the 1992 amendments

to Section 107(b)(4) of the Child Abuse Prevention and Treatment

Act, 42 U.S.C. Section 5106(A)(b)(4).

(b)(1) Notwithstanding Code Section 49-5-40, the juvenile court in

the county in which are located any department or county board

records concerning reports of child abuse, after application for

inspection and a hearing on the issue, shall permit inspection of

such records by or release of information from such records to

individuals or entities who are engaged in legitimate research for

educational, scientific, or public purposes and who comply with

the provisions of this subsection. When those records are located

in more than one county, the application may be made to the

juvenile court of any one such county. A copy of any application

authorized by this subsection shall be served on the nearest

office of the department. In cases where the location of the

records is unknown to the applicant, the application may be made

to the Juvenile Court of Fulton County.

(2) The juvenile court to which an application is made pursuant to

paragraph (1) of this subsection shall not grant the application

unless:

(A) The application includes a description of the proposed

research project, including a specific statement of the

information required, the purpose for which the project requires

that information, and a methodology to assure the information is

not arbitrarily sought;

(B) The applicant carries the burden of showing the legitimacy

of the research project; and

employees, or agents of agencies receiving or investigating a

report of abuse or treating a child or family which is the

subject of a report, shall be deleted from any information

released pursuant to this subsection unless the court determines

that having the names and addresses open for review is essential

to the research and the child, through his or her

representative, gives permission to release the information.

(3) Notwithstanding the provisions of this subsection, access to

the child abuse registry created pursuant to Article 8 of this

chapter shall not be permitted except as allowed by Article 8 of

this chapter.

permit access to records concerning reports of child abuse and may

release information from such records to the following persons or

agencies when deemed appropriate by such department:

(1) A physician who has before him a child whom he reasonably

suspects may be abused;

(2) Reserved;

(3) A person legally authorized to place a child in protective

custody when such person has before him a child he reasonably

suspects may be abused and such person requires the information in

the record or report in order to determine whether to place the

child in protective custody;

(4) An agency or person having the legal custody, responsibility,

or authorization to care for, treat, or supervise the child who is

the subject of a report or record;

(5) An agency, facility, or person having responsibility or

authorization to assist in making a judicial determination for the

child who is the subject of the report or record of child abuse,

including but not limited to members of officially recognized

citizen review panels, court appointed guardians ad litem,

certified Court Appointed Special Advocate (CASA) volunteers who

are appointed by a judge of a juvenile court to act as advocates

for the best interest of a child in a juvenile proceeding, and

members of a county child abuse protocol committee or task force;

(6) A legally mandated public child protective agency or law

enforcement agency of another state bound by similar

confidentiality provisions and requirements when, during or

following the department's investigation of a report of child

abuse, the alleged abuser has left this state;

(7) A child welfare agency, as defined in Code Section 49-5-12, or

a school where the department has investigated allegations of

child abuse made against any employee of such agency or school and

any child remains at risk from exposure to that employee, except

that such access or release shall protect the identity of:

(A) Any person reporting the child abuse; and

(B) Any other person whose life or safety has been determined by

the department or agency likely to be endangered if the identity

were not so protected;

(8) An employee of a school or employee of a child welfare agency,

as defined in Code Section 49-5-12, against whom allegations of

child abuse have been made, when the department has been unable to

determine the extent of the employee's involvement in alleged

child abuse against any child in the care of that school or

agency. In those instances, upon receiving a request and signed

release from the employee, the department may report its findings

to the employer, except that such access or release shall protect

the identity of:

(A) Any person reporting the child abuse; and

(B) Any other person whose life or safety has been determined by

the department or agency likely to be endangered if the identity

were not so protected;

(9) Any person who has an ongoing relationship with the child

named in the record or report of child abuse any part of which is

to be disclosed to such person but only if that person is required

to report suspected abuse of that child pursuant to subsection (b)

of Code Section 19-7-5, as that subsection existed on January 1,

1990; and

(10) Any school principal or any school guidance counselor, school

social worker, or school psychologist who is certified under

Chapter 2 of Title 20 and who is counseling a student as a part of

such counseling person's school employment duties, but those

records shall remain confidential and information obtained

therefrom by that counseling person may not be disclosed to any

person, except that student, not authorized under this Code

section to obtain those records, and such unauthorized disclosure

shall be punishable as a misdemeanor.

(d) Notwithstanding any other provision of law, any child-caring

agency, child-placing agency, or identified foster parent shall have

reasonable access to nonidentifying information from the placement

or child protective services record compiled by any state department

or agency having custody of a child with respect to any child who

has been placed in the care or custody of such agency or foster

parent or for whom foster care is being sought, excluding all

documents obtained from outside sources which cannot be redisclosed

under state or federal law. A department or agency shall respond to

a request for access to a child's record within 14 days of receipt

of such written request. Any child-caring agency, child-placing

agency, or identified foster parent who is granted access to a

child's record shall be subject to the penalties imposed by Code

Section 49-5-44 for unauthorized access to or use of such records.

Such record shall include reports of abuse of such child and the

social history of the child and the child's family, the medical

history of such child, including psychological or psychiatric

evaluations, or educational records as allowed by state or federal

law and any plan of care or placement plan developed by the

department, provided that no identifying information is disclosed

regarding such child.

(e) Notwithstanding any other provisions of law, with the exception

of medical and mental health records made confidential by other

provisions of law, child abuse and deprivation records applicable to

a child who at the time of his or her death was:

(1) In the custody of a state department or agency or foster

parent;

(2) A child as defined in paragraph (3) of Code Section 15-11-171;

(3) The subject of an investigation, report, referral, or

complaint under Code Section 15-11-137

shall not be confidential and shall be subject to Article 4 of

Chapter 18 of Title 50, relating to open records.

**Editor's note: paragraph (3) of 15-11-171 reads as follows:

(3) "Child" or "children" means an individual receiving protective

services from the division, for whom the division has an open case

file, or who has been, or whose siblings, parents, or other

caretakers have been the subject of a report to the division

within the previous five years.

Additionally, in the previous statute, section (e)(3) incorrectly numbered the relevant code section. The correct number is not 15-11-137, but rather 15-11-173, which is provided below.

O.C.G.A. § 15-11-173 (2000)

The advocate shall perform the following duties:

(1) Identify, receive, investigate, and seek the resolution or

referral of complaints made by or on behalf of children concerning

any act, omission to act, practice, policy, or procedure of an

agency or any contractor or agent thereof that may adversely

affect the health, safety, or welfare of the children;

(2) Refer complaints involving abused children to appropriate

regulatory and law enforcement agencies;

(3) Report the death of any child to the chairperson of the child

fatality review subcommittee of the county in which such child

resided at the time of death, unless the advocate has knowledge

that such death has been reported by the county medical examiner

or coroner, pursuant to Code Section 19-15-3, and to provide such

subcommittee access to any records of the advocate relating to

such child;

(4) Provide periodic reports on the work of the Office of the

Child Advocate for the Protection of Children, including but not

limited to an annual written report for the Governor and the

General Assembly and other persons, agencies, and organizations

deemed appropriate. Such reports shall include recommendations

for changes in policies and procedures to improve the health,

safety, and welfare of children and shall be made expeditiously in

order to timely influence public policy;

(5) Establish policies and procedures necessary for the Office of

the Child Advocate for the Protection of Children to accomplish

the purposes of this article including without limitation

providing the division with a form of notice of availability of

the Office of the Child Advocate for the Protection of Children.

Such notice shall be posted prominently, by the division, in

division offices and in facilities receiving public moneys for the

care and placement of children and shall include information

describing the Office of the Child Advocate for the Protection of

Children and procedures for contacting that office; and

(6) Convene quarterly meetings with organizations, agencies, and

individuals who work in the area of child protection to seek

opportunities to collaborate and improve the status of children in

Georgia.

O.C.G.A. § 50-18-70 (2000)

(a) As used in this article, the term "public record" shall mean all

documents, papers, letters, maps, books, tapes, photographs,

computer based or generated information, or similar material

prepared and maintained or received in the course of the operation

of a public office or agency. "Public record" shall also mean such

items received or maintained by a private person or entity on behalf

of a public office or agency which are not otherwise subject to

protection from disclosure; provided, however, this Code section

shall be construed to disallow an agency's placing or causing such

items to be placed in the hands of a private person or entity for

the purpose of avoiding disclosure. Records received or maintained

by a private person, firm, corporation, or other private entity in

the performance of a service or function for or on behalf of an

agency, a public agency, or a public office shall be subject to

disclosure to the same extent that such records would be subject to

disclosure if received or maintained by such agency, public agency,

or public office. As used in this article, the term "agency" or

"public agency" or "public office" shall have the same meaning and

application as provided for in the definition of the term "agency"

in paragraph (1) of subsection (a) of Code Section 50-14-1 and shall

additionally include any association, corporation, or other similar

organization which: (1) has a membership or ownership body composed

primarily of counties, municipal corporations, or school districts

of this state or their officers or any combination thereof; and (2)

derives a substantial portion of its general operating budget from

payments from such political subdivisions.

(b) All public records of an agency as defined in subsection (a) of

this Code section, except those which by order of a court of this

state or by law are prohibited or specifically exempted from being

open to inspection by the general public, shall be open for a

personal inspection by any citizen of this state at a reasonable

time and place; and those in charge of such records shall not refuse

this privilege to any citizen.

shall be printed for purposes of public inspection no less than

every 30 days and any correction made on such index shall be made a

part of the printout and shall reflect the time and date that said

index was corrected.

(d) No public officer or agency shall be required to prepare

reports, summaries, or compilations not in existence at the time of

the request.

(e) In a pending proceeding under Chapter 13 of this title, the

"Georgia Administrative Procedure Act," or under any other

administrative proceeding authorized under Georgia law, a party may

not access public records pertaining to the subject of the

proceeding pursuant to this article without the prior approval of

the presiding administrative law judge, who shall consider such open

record request in the same manner as any other request for

information put forth by a party in such a proceeding. This

subsection shall not apply to any proceeding under Chapter 13 of

this title, relating to the revocation, suspension, annulment,

withdrawal, or denial of a professional education certificate, as

defined in Code Section 20-2-200, or any personnel proceeding

authorized under Part 7 and Part 11 of Article 17 and Article 25 of

Chapter 2 of Title 20.

(f) The individual in control of such public record or records shall

have a reasonable amount of time to determine whether or not the

record or records requested are subject to access under this article

and to permit inspection and copying. In no event shall this time

exceed three business days. Where responsive records exist but are

not available within three business days of the request, a written

description of such records, together with a timetable for their

inspection and copying, shall be provided within that period;

provided, however, that records not subject to inspection under this

article need not be made available for inspection and copying or

described other than as required by subsection (h) of Code Section

50-18-72, and no records need be made available for inspection or

copying if the public officer or agency in control of such records

shall have obtained, within that period of three business days, an

order based on an exception in this article of a superior court of

this state staying or refusing the requested access to such records.

(g) At the request of the person, firm, corporation, or other entity

requesting such records, records maintained by computer shall be

made available where practicable by electronic means, including

Internet access, subject to reasonable security restrictions

preventing access to nonrequested or nonavailable records.

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