Letter from the Chief Justice

To all Special Assistant Attorneys General:

    The attorneys in Georgia who represent our social service agencies have tremendous responsibility in child abuse and neglect cases. I was once a Special Assistant Attorney General when I practiced law, and I am well aware of the impact your actions have on a child's life. It benefits the state to have clear procedures to aid attorneys in making process decisions for children's cases. In consultation with attorneys from the American Bar Association, a select group of Georgia's Special Assistant Attorneys General has developed and published "Aspirational Guidelines for Special Assistant Attorneys General for Child Deprivation Cases."

    The authors of this document are to be commended for their efforts to improve the process for our child abuse and neglect cases. It is important that their efforts are honored by striving to meet these guidelines. I personally want to extend my deepest appreciation to all of you for your dedication in protecting Georgia's children, and I extend an offer of support to improve the work you do.

Sincerely,

Robert Benham

These aspirational guidelines were developed by the following participants attending a joint Special Assistant Attorneys General and Division of Family and Children Services Workshop sponsored by the Office of the Attorney General and the Supreme Court of Georgia Child Placement Project.

Sheri Capes
John P. Cheeley
John Robert Coleman, Jr.
Vivian Egan
Tammy Griner
Robert Hall
Paula Hanington
W. Ashley Hawkins
Kathy Herren
David Hellwig
William Jenkins
William C. Joy
John Robert Laseter
Velma Tilley
Doris Walker

Special thanks go to Eva Klain and Mimi Laver of the American Bar Association who gave so generously of their time and knowledge to Georgia.

Introduction

    Ten Special Assistant Attorneys General (SAAGs) and Representatives of the State Division of Family and Children Services (DFCS) were brought together for a two-day workshop to develop guidelines for child deprivation cases. This brief manual was developed from that workshop and was substantively guided by the National Council of Family and Juvenile Court Judges' "Resource Guidelines" manual and faculty from the American Bar Association. The workshop and manual development were funded by the Supreme Court of Georgia Child Placement Project. The format of this document is, by consensus, designed to be short and concise and yet provide enough details to help a Special Assistant Attorney General properly present child deprivation cases. These guidelines are non-mandatory and aspirational, yet much thought and debate went into their formation, and SAAGs are urged to read and consider these guidelines for deprivation cases. While every deprivation case is important, these guidelines were primarily developed for the cases where the Division of Family and Children Services has taken a child into custody.

The Need for Guidelines

    Children in deprivation cases come before juvenile courts for protection from further harm and for timely decision making for their futures. SAAGs play a crucial role in the processing of these cases which have a direct impact on the lives of children. As a result of recent changes in federal and state law, the issues are more complex, requiring more hearings and more people. In 1995, with Georgia's foster care system holding 16,000 children in custody, the Supreme Court of Georgia began a study to get a statewide view of how child deprivation cases are processed. The study revealed that the process of deprivation cases differs dramatically across the state. Some of the interviews and survey results stated that the process is driven by the strongest personality in the court. Other court participants, including many SAAGs, expressed frustration about the lack of current information on practice to provide a context in which they and others can evaluate and improve their own practice.

    When information on diverse practices is shared, the best of each style can be incorporated into practice in all jurisdictions. Consistency in process of deprivation cases is more likely to lead to consistent results, ensuring that all juvenile court participants across the state will be treated similarly and can hold the same expectations about juvenile court. Meeting these expectations is even more critical today since the number of children in foster care remains unacceptably high. On the day of the workshop in January 1999, Georgia had more than 15,000 children in state custody.

Mission Statement

    To develop aspirational guidelines to assist SAAGs throughout Georgia in improving the quality of their representation, which will ultimately lead to better outcomes for children and families in the child welfare system.

General Issues

    The participants decided that there were three main areas in which Georgia should focus on supporting and improving the function of SAAGs. In addition, specific guidelines were developed for each hearing stage of a child deprivation case.

The Three Main Areas of Focus for the Georgia Guidelines

1. Improving compliance with statutory timelines and requirements while ensuring the substantive content of court orders and the case record.
2. Improving the relationship between SAAGs and DFCS by creating mechanisms for on-going communication and training.
3. Improving preparation for hearings throughout the process while incorporating use of technology.

Compliance

    The following should be implemented in the area of compliance with federal and state statutory requirements:
Continuances should be kept to an absolute minimum, except where necessary to gather evidence and present important witnesses. Guardians ad litem (GALs) should be appointed early in the process to foster access to additional evidence as well as to prevent the need for continuances because the GAL has not had adequate time to prepare.

    In order to meet the Adoption and Safe Families Act (ASFA) and its counter-parts in the Georgia code and to make the caseworker and SAAG effective advocates for children and DFCS in the court system, the development of new training programs would be beneficial. Caseworkers could benefit from a curriculum which emphasized appropriate courtroom behavior and gathering and presenting evidence in court. SAAGs could benefit from an ongoing training program to educate them on changes in current laws and DFCS policy and how to implement them. A SAAG committee would be helpful in drafting the curriculum for these training programs, preparing a SAAG manual, and keeping SAAGs informed about changes in the law and DFCS policy. Training manuals should be created for SAAGs, one that is comprehensive and one that contains the critical elements of each hearing. In addition, a mentoring system should be considered to partner a new SAAG with an experienced one to provide the new SAAG with information and guidance.

    Final orders of the court should be a complete master plan of what all parties are required to do and must supersede and not be inconsistent with the case plan, as given to parents. Additionally, SAAGs must always exercise care in developing a full record for appeal.

Relationships

    The following should be implemented to improve the relationship between SAAGs and DFCS:

    SAAGs should be given a role in caseworker training. In addition to training on current child welfare law, a training model should also include education on the common language of DFCS policy and statutory requirements, assist caseworkers in understanding their role as investigators and evidence gatherers, and provide an understanding of the SAAGs role as it relates to casework.

    A channel for ongoing communication between SAAGs, the DFCS state office, DFCS supervisors, and case-workers should be established. This channel should provide for meetings between these groups to address system-wide problems and issues as well as a protocol to confer on especially difficult cases.

Preparation

    The following should be implemented to improve preparation at each hearing stage:

    Uniform contents for pleading should be developed in accordance with law. A uniform system for preparing pleadings should also be adopted. A "bank" of the best forms should be created and circulated for the benefit of all SAAGs so that they have the most efficient tools to process child deprivation cases.

    SAAGs and caseworkers should set aside adequate time to confer prior to the commencement of all hearings.

    Technological advances should be utilized to properly track cases so that orders do not expire and statutory compliance with time frames can be monitored.

Specific Guidelines for Each Hearing Stage

Initial Consultation

    Prior to any hearing, the SAAG should:

• Review all documentation.
• Have all identifying information on one document. This includes names of all parties and family members, addresses, and telephone numbers.
• Contact caseworker early in the case. Return caseworker's telephone calls. Ensure that caseworker has SAAGs telephone number(s).
• Set aside time to confer with caseworker prior to hearing and communicate to the caseworker that such time has been set aside.
• Communicate to caseworker what information or evidence is needed and what SAAGs expectations are. Ensure that all known information is in writing.
• Promote dialogue between caseworker and caseworker supervisor as necessary.
• Make initial determination as to legal sufficiency.
• Ascertain DFCS position from the caseworker, involving the supervisor if necessary.

72-Hour Hearing

    This emergency hearing is held within 72 hours of a child's removal from the home. It is critical that this hearing be timely and thorough. Time is of the essence in child abuse and neglect cases and any opportunity to prevent a child's case from continuing its path into the system should be seized. Once a child is removed it becomes logistically and practically more difficult to help a family resolve its problems; thus, all guidelines developed for this hearing seek to prevent the child from unnecessarily entering the system or to ensure faster permanency for the child.

Prior to the 72-Hour Hearing, the SAAG should:

• Collect all documentation, including the complaint.
• Confer with caseworker and obtain all identifying information on family members.
• Establish jurisdiction that child was found in this county or one parent is a legal resident.
• Assure that notice has been provided to parents.
• Determine what reasonable efforts were made to prevent removal, including investigation and collateral contacts.
• Prepare questions for direct and cross examination.
• If appropriate, draft orders for the appointment of parent attorney(s) and a GAL to prevent continuances. Separate parent attorneys should be provided in domestic violence situations and any other potential conflict.

At the 72-Hour Hearing, the SAAG should:

• Be present. The group felt strongly that DFCS be represented at all stages of the process.
• If mother is present and has claimed the father is unknown, have her testify to same under oath.
• If parents are present, request voluntary consents and releases for psychological evaluations and drug screens.
• Present evidence, including testimony and documentary evidence as appropriate, given the burden of proof at the 72-Hour Hearing.
• Have a prepared order for the judge to sign.
• Obtain potential witness list for the Adjudicatory Hearing.
• Request that the next hearing be set so that parents can be served with notice while present for the 72-Hour Hearing.
• Be prepared to address whether the agency is making reasonable efforts to rehabilitate the family and eliminate the need for placement of the child.

Adjudicatory Hearing

    The adjudicatory hearing is the trial of the facts. The outcome of adjudication controls whether the state may intervene over the objections of the family. The standard is clear and convincing evidence. The following should be implemented in the adjudicatory hearing:

Prior to the Adjudicatory Hearing, the SAAG should:

• File petition within five days of the 72-Hour Hearing.
• Make certain that all parties are served and witnesses are subpoenaed in a timely manner.
• Assemble documentary evidence, including medical records, photographs, subpoenas, and proof of service.
• Interview witnesses.
• Confer with parent attorney(s) and GAL, if previously appointed, to determine whether an agreement or stipulation can be reached.
• Review case plan, if available.
• Prepare questions for direct and cross examination.
• Review the law, including rules of evidence and supporting case law.
• Learn the judge's individual court practices, demeanor, etc. Talk to other attorneys about judge's likes and dislikes.

At the Adjudicatory Hearing, the SAAG should:
 

• Be present. The Child Protective Services worker and placement caseworker should also be present.
• Have witnesses present. Even if prior agreement was reached with parent attorney(s) and GAL, witnesses should still be present in case unexpected dispute arises or judge rejects agreement.
• Avoid continuances.
• Assemble and distribute all orders.
• Present evidence, including testimony of witnesses, medical/psychological records, photographs.
• Be prepared to address whether the agency is making reasonable efforts to rehabilitate the family and eliminate the need for placement of the child.
• Ensure that the case plan, if available, is based on findings of fact and is made an order of the court or a supplemental order, and is signed indicating that the court is adopting it.
• If possible, schedule next hearing(s), including disposition or review, if appropriate. Provide notice of later hearings to all parties.

Dispositional Hearing

    Disposition is the stage of the juvenile court process in which, after finding that the child is deprived and is within the jurisdiction of the court, the court determines who should have custody and control of the child. This hearing is usually held immediately following the adjudicatory hearing. All parties present at the adjudicatory hearing need to be present at the dispositional hearing. The following should be implemented in the dispositional hearing:

Prior to the Dispositional Hearing, the SAAG should:
 

• Obtain case plan with recommendation as to placement. Ensure that goals for reunification are consistent with reasons for removal.
• Obtain recommendations of professionals, including medical and psychiatric care providers and teachers.
• Review evidentiary standards and hearsay rules.
• Determine whether child support needs to be addressed.

At the Dispositional Hearing, the SAAG should:
 

• Ensure that the caseworker has made an eligibility referral as to child support enforcement.
• Be prepared to address whether the agency is making reasonable efforts to rehabilitate the family and eliminate the need for placement of the child.
• Schedule next hearing and provide all parties with notice. In cases where substance abuse is an issue, the SAAG should consider the advisability of having more frequent hearings to determine parental progress on treatment goals.

Review Hearing

    The following guidelines address judicial reviews only. Since panel guidelines are already established, these review hearing guidelines are targeted for courts that do not have citizen review panels. No value judgment is implied about the choice of citizen review panels or judicial reviews. Review hearings are court proceedings that take place after disposition in which the court reviews the status of the case. Reviews examine progress made by the parties since the conclusion of the dispositional hearing and provide an opportunity for correction and revision of the case plan. The purpose of review hearings is to make sure that the case progresses and children spend as short a time as possible in temporary placement.

Prior to the Review Hearing, the SAAG should:
 

• Make certain that all parties to the hearing have received notice.
• Review the case plan and previous orders of the court.
• Ask caseworker to review the case plan as well and determine whether reunification is still the permanency plan or whether non-reunification is appropriate.
• Obtain caseworker's written assessment of parent(s)' progress on case plan goals.

Prepare to address the following issues at the Review Hearing, if appropriate:
 

• Whether there is a need for continued placement of the child.
• Whether the court-approved permanency plan for the child remains the best plan for the child.
• Whether the agency is making reasonable efforts to rehabilitate the family and eliminate the need for placement of the child.
• Whether services set forth in the case plan and the responsibilities of the parties need to be clarified or modified due to the availability of additional information or changed circumstances.
• Whether the child is in an appropriate placement which adequately meets all physical, emotional, and educational needs.
• Whether the terms of visitation need to be modified.
• Whether child support needs to be addressed.
• Whether any additional court orders need to be made to move the case toward successful completion.
• What time frame should be followed to achieve reunification or other permanent placement for the child.

Where appropriate at the Review Hearing, the SAAG should:
 

• State the purpose of the review, i.e., determine progress on case plan goals.
• Ask the court to take judicial notice of all previous findings of fact and re-state the causes of deprivation.
• State the permanency plan on the record.
• Ensure that current custody order does not expire.
• Ensure that order refers to or incorporates previous orders.
• Schedule next hearing and provide notice to all parties.

Custody Extension Hearing

    At 12 months after a child enters care, the court order giving custody will expire. A motion to extend custody for another 12 months may be filed by the SAAG and a hearing will take place.

Prior to the Custody Extension Hearing, the SAAG should:
 

• Consider combining the extension hearing with the permanency hearing.
• Ensure that hearing is timely to prevent previous order from expiring. Motion to extend should be filed at least sixty days prior to expiration date.
• Provide notice and serve all parties.
• Gather all documentary evidence, including medical and psychological records.
• Review previous case plan and order(s) of the court.

At the Custody Extension Hearing, the SAAG should:
 

• Announce reunification as plan if appropriate, and reunification date to ensure compliance with ASFA's 15/22 provision.
• If termination of parental rights is appropriate, petition should be filed within 60 days.

Additional Hearings on the Permanency Plan

    There is need for some clarity about permanency hearings and custody extension hearings (or motions to extend hearings). Under Georgia law, the permanency plan is addressed as a part of the custody extension hearing. One code section indicates that a permanency hearing is separate from the custody extension hearing, and is to be held within twelve months after a child comes into care. However, such a separate hearing is not clearly provided in Georgia law. The two purposes of the permanency hearing are 1) to determine if a child will remain in care, and 2) to determine a child's permanency plan. Both purposes should also be addressed at the custody extension hearing.  "Permanency Hearings" are provided whenever reunification efforts or reasonable efforts for reunification are not made or cease. At this time, permanency hearings are not triggered by a custody extension hearing. However, permanency issues are required to be heard and determined at the time of a custody extension hearing. Because of this lack of clarity, some of our Georgia juvenile courts are holding separate permanency hearings, others are renaming custody extension hearings to permanency hearings and others have not changed their procedures at all since passage of the ASFA. At this writing, a committee has recently been created by Georgia's juvenile court judges to review the Georgia code to address some of these conflicts.
 

In the meantime, if appropriate, prior to the Permanency Hearing, the SAAG should:
 

• Present the permanency plan for the child to the court as indicated below in the section entitled "Hearing on Permanency Plan."
• Provide notice and serve all parties.
• Make certain that the parents have an opportunity to be heard if DFCS is proposing changes in the case plan concerning the child's placement or visitation privileges.

At the Permanency Hearing, the SAAG should:
 

• Present the permanency plan for the child, recommending to the court whether the child should be returned to the parents, referred for termination of parental rights and placed for adoption or referred for legal guardianship, be placed with a relative or be placed in another planned permanent living arrangement. If the child is placed outside the state, show the court that the out-of-state placement continues to be in the best interest of the child and, if the child is over 16, present evidence showing that services needed to assist the child to make the transition to independent living are being provided.
• Include a description of the permanency plan, as required by the Georgia code, in the order extending custody of the child. If the plan includes a permanent living arrangement other than reunification, adoption or legal guardianship, state the name of the child's placement. For example, Mr. and Mrs. Jones, foster parents.
• If reunification is the permanency plan, provide the court with details and services designed to effect that plan within statutory time frames.
• If non-reunification is the plan, inform the court when a termination petition will be filed.

Termination of Parental Rights Hearing

    Termination of parental rights (TPR) cases arising from child deprivation cases are among the most difficult a SAAG can face. There is a strong possibility that a case will result in TPR when intensive, in-home services cannot safely be provided, or are attempted but fail to prevent removal. There are risks to a child in terminating parental rights. If the decision is premature, a child may needlessly be deprived of a chance to return home, to keep contact with parents, and to have lifelong relationships with members of an extended family. On the other hand, failure to terminate parental rights may deprive a child of the chance for a permanent, substitute home. The longer children wait, the more difficult it becomes to find permanent homes for them, and they are more likely to suffer serious emotional and psychological harm. Delays in the court process can mean missed opportunities and consequences with devastating effects on the life of a child. Therefore, the following should be implemented in the TPR hearing.
 

Prior to the Termination of Parental Rights Hearing, the SAAG should:
 

• Serve summons and petition on all parties. The summons cannot be the standard form because it must state that the purpose of the hearing is to terminate parental rights. Use mother's exact name as it appears on the child/ren's birth certificate(s). Other names that the mother has used can be added so long as the summons contains her exact name as it appears on the birth certificate. If publication is necessary, notice must be published in the official county organ for no less than the time mandated by statute. A sheriff or professional process serve must serve the parent(s).
• Ensure that petition states every factual allegation/ground that supports termination of parental rights. The petition should indicate with specificity each goal or step in the case plan with which the parent(s) failed to comply. The caseworker should review the petition for accuracy. Ensure that petition has been properly notarized. Evidence of all such allegations should be in the file, including documentary evidence, expert evaluations and testimony, caseworker testimony, and physical evidence.
• Review entire court record and DFCS case file. Ask caseworker to review case file to prepare for hearing.
• Review the Georgia TPR statute.
• Obtain child/ren's birth certificate(s) from caseworker for file. Ensure that all prior evaluations are in file.
• Build the record:
• Once the petition is filed, check the putative father registry for named and unnamed fathers and then file amendment to petition to reflect that certification was received from the registry.
• Ensure that certified copies of all previous orders are in file.
• Check for out-of-state custody orders.
• File motion for physical and mental health evaluation updates with petition if appropriate to a ground for termination.
• If applicable, ensure that voluntary surrenders have been properly executed.
• Prepare witnesses for testimony, including direct and cross examination. Special inquiry should be made that caseworker has made diligent search for all biological relatives.
• Consider appropriateness of child/ren being present to testify. The child/ren's presence is required unless excused by the court.
• Be prepared to address unique issues and any recent developments in the case that may affect the court's decision.
• Consider use of a court reporter at hearing if the court does not provide one. In any case, make certain that the hearing is recorded.

At the Termination of Parental Rights Hearing, the SAAG should:
 

• Present evidence, including testimony of all witnesses to support termination of parental rights.
• Ensure that the court's order meets the statutory requirements with sufficient findings of fact and separate conclusions of law. This may have to be done separately for the mother and father(s).
• Never waive recording of the termination hearing.
• Prepare professional witnesses to address questions that form statutory basis for termination of parental rights.

Appeals

Once notified of an appeal, the SAAG should:
 

• Notify the Attorney General's office immediately.
• Review and follow all established rules for appellate procedure.