Principal Developers:

Contributors:

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

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.

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.

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

O.C.G.A. § 15-11-2(8)(A-D).

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).

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.

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.

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 (11^th 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.

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.

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 (2^nd 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.

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:

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).

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:

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:

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).

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.

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.

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).

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:

URJC, 4.2.
 

In screening the complaint, the intake officer should consider:

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).

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

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.

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.

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:

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.

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).

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:

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:

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).

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.

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.
 

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.

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.

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).

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:

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:

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