Child Attorney Trial Notebook for Deprivation Cases in Georgia’s Juvenile Courts

Mary Hermann
Child Attorney
Consultant
Carl Vinson Institute of Government

For print copies, please contact the Supreme Court of Georgia's Committee on Justice for Children
www.gajusticeforchildren.org
Phone: 404.657.9219

Adjudication -- Formal Hearing --
10 Day Hearing -- ADJ.

Authority	15-11-39, 15-11-39.1, 15-11-39.2 & 15-11-54, URJC 6 & 11
	Purpose	To determine whether there is clear and convincing evidence the child is presently deprived
	Pleading	Petition, verified by petitioner Filed within 5 days of PCH (not waivable) Late filing - cure start over w/ new safekeeping Contains specific statement of factual allegations
	Jurisdiction	child under 18 years alleged to be deprived in state
	Venue	Child present in the county when action commenced Found in the county Custodial parents residence
	Timing	set & heard within ten days of Petition filing May be waived to be set at same time as disposition hearing, if waiver on record & good cause shown If ADJ continued, Child removed - should be heard within 30 days of removal, may be waived Child with parent -- should be heard with 60 days of petition filing, may be waived Provisional Hearing, 15-11-39.2, may be held where: one of the parties is present before the Court at the Provisional Hearing and the other is being served by publication, child is personally before the Court at the Provisional hearing, and Final hearing is noticed and held following completion of publication
	Parties	DFACS, mother, father (legal or putative), SAAG, CA, legal guardian, Attorney for parent, CASA, age appropriate children may be excluded 15-11-78 (a) Other helpful persons - relatives, potential placements, service providers, witnesses of deprivation, persons of significance to the child
	Service	Formal service required -- summons & copy of petition May be waived if on record by appearance at the adjudication hearing Personal service to parent / legal custodian - whereabouts known within state, then service must be perfected at least 24 hours prior to the hearing Certified/registered mail, overnight delivery to parent / legal guardian -- if within the State but cannot be found but address is known or can with diligence be ascertained then service must be perfected at least 5 days prior to the hearing Personal, certified/registered mail, overnight delivery to parent / legal guardian -- if outside the State where address is known or can with diligence be ascertained, then service must be perfected at least 24 hours prior to the hearing Publication if after reasonable efforts whereabouts are unknown, then service must be perfected by publication onec a week for 30 days with the hearing set no sooner than 5 days after the last publication date
	Standard of Proof	Clear & Convincing evidence and rules of evidence apply
	Right to Attorney	Parents/legal guardian should be advised of right to counsel & if indigent, right to appointed counsel Inquiry about incarcerated parents
	Reasonable Efforts	To prevent removal, preserve family To reunify family where removal was necessary UNLESS case qualifies as NONREUNIFICATION 15-11-58(a)(4) & (5) -- more below
	Stipulation	parents / legal custodian may negotiate stipulation to certain facts in petition which would result in a finding of deprivation a particular disposition may also be negotiated Court must approve stipulation and will require presentation of a prima facie case on the record with competent evidence Stipulated facts MUST address all risk factors to the child so that an adequate Caseplan will be developed Possible to stipulate to some facts and have a hearing on other facts The Court findings of facts control the Caseplan & when and how the child is reunified Could child be returned to the parents with DFACS services possibly under a Protective Order (Court supervision of parental/custodian compliance with safety plan or case plan.)
	Decision Points	Petition sustained or stipulated or dismissed If Petition sustained, who gets custody? Is Disposition now or later? If Petition sustained but child goes home, are there conditions to the child returning home? -- Protective Order 15-11-11, & is the Court going to review compliance with the Protective Order? If Petition sustained, is custody going to someone other than DFACS? Custody to Third Party 15-11-55 (a)(2)(A) Specific finding of facts supporting finding of deprivation Specific conclusions of law What specific actions must parent take to have child returned Reasons for removal -- identify issues (drugs, mental health, neglect, physical abuse, sexual abuse, abandonment) -- specific findings Contrary to the welfare -- specific findings Visitation b/n child & parent, child & other family (sibling) Relative resources to be explored, home evals Immediate service needs of child or family (medical / educational) Would DFACS services expedite return? If so, which services are needed & for how long? Absent parents, name & whereabouts, legal status Does Father need to Legitimate? DNA Testing Should a CASA be appointed? Is Poverty / Homelessness an issue? If perpetrator is unknown, identity of perpetrator may be condition precedent to return of child to home If deprivation result of parental drug / alcohol abuse, 6 consecutive months of random clean screens may be condition precedent to return of child to home 15-11-55(e) Are the reasons for Removal the same as the barriers to reunification: if different order needs to address Set Disposition hearing date
	Documents / Information Needed Dismissal Continuance	Placement of child, any disruptions to placements Release of information for child to ca or general HIPPA release order Reports from: forensic eval / psych eval / medical & dental screen or exam Progress of CCFA -- due 30 days after removal? Home evaluations of relative placement options Case plan due 30 days after removal Photos / police reports / criminal records Birth Certificate of child MDT -- Multidisciplinary Team Meeting scheduled??? If DFACS asks for a dismissal, then testimony or written statement as to how child is no longer at risk is there a Safety Plan signed by offending parent? if yes, it should be submitted as an exhibit to support dismissal Does Court order the opening of a CPS case or wraparound services for a specific period of time? verify child is not afraid to go home in lieu of an outright dismissal, CA may suggest child be returned to the parents, DFACS put services in place, leave Petition open, & all parties come back to court to confirm services have adequately addressed risk factors & then dismissal if Court dismisses Petition after hearing evidence, Court may still request DFACS services or CPS referral further investigation, necessary witness, service / notice on parties begin services to allow child to return home, home evaluation of relative

Practice Points

How does parental behavior impact welfare of child?
CA receives copy of any document or exhibit submitted into evidence
For any child under 3 years with a finding of deprivation, MUST have a Babies Cant Wait (BCW)referral for developmental assessment & referral for BCW services; may need to be included in adjudicatory Order
For any child over 14 years, the case plan MUST include a referral & plan for Independent Living Services and Written transitional Living Plan; may need to be included in the adjudicatory order
Was child present for Court? Did Child want to attend Court Hearing? Was Child position presented to the Court? How will child be advised of the outcome of court hearing if child not present.

15-11-39. Time for hearing; summons; waiver of service of summons; judicial order to child's parents, guardian, or custodian.

(a) After the petition has been filed the court shall set a hearing thereon, which, if the child is in detention, shall not be later than ten days after the filing of the petition. In the event the child is not in detention, the court shall set a hearing thereon which shall be not later than 60 days from the date of the filing of the petition.

(b) The court shall direct the issuance of a summons to the parents, guardian, or other custodian, a guardian ad litem, and any other persons who appear to the court to be proper or necessary parties to the proceeding, requiring them to appear before the court at the time fixed to answer the allegations of the petition. The summons shall also be directed to the child if he or she is 14 or more years of age or is alleged to be a delinquent or unruly child. A copy of the petition shall accompany the summons unless the summons is served by publication, in which case the published summons shall indicate the general nature of the allegations and where a copy of the petition can be obtained.

(c) The court may endorse upon the summons an order directing the parents, guardian, or other custodian of the child to appear personally at the hearing and directing the person having the physical custody or control of the child to bring the child to the hearing. In the event a parent, guardian, or other custodian of the child willfully fails to appear personally at the hearing after being ordered to so appear, or the parent, guardian, or other custodian of the child willfully fails to bring the child to the hearing after being so directed, the court may enter any order authorized by and in accordance with the provisions of Code Section 15-11-5.

(d) The summons shall state that a party is entitled to counsel in the proceedings and that the court will appoint counsel if the party is unable without undue financial hardship to employ counsel.

(e) A party other than the child may waive service of summons by written stipulation or by voluntary appearance at the hearing. If the child is present at the hearing, the child's counsel, with the consent of the parent, guardian, other custodian, or guardian ad litem, may waive service of summons in the child's behalf.

15-11-39.1. Service of summons; costs of service and travel expenses.

(a) If a party to be served with a summons is within this state and can be found, the summons shall be served upon him or her personally at least 24 hours before the hearing. If a party to be served is within this state and cannot be found but his or her address is known or can with reasonable diligence be ascertained the summons may be served upon such party by mailing him or her a copy thereof by registered or certified mail or statutory overnight delivery at least five days before the hearing. If a party to be served is outside this state but he or she can be found or his or her address is known or his or her whereabouts or address can with reasonable diligence be ascertained, service of the summons may be made either by delivering a copy thereof to such party personally or by mailing a copy to him or her by registered or certified mail or statutory overnight delivery at least five days before the hearing.

(b) If, after reasonable effort, a party to be served with a summons cannot be found and such party's post office address cannot be ascertained, whether he or she is within or outside this state, the court may order service of the summons upon him or her by publication in accordance with Code Sections 9-11-4 and 9-11-5. The hearing shall not be earlier than five days after the date of the last publication.

(d) The court may authorize the payment from county funds of the costs of service and of necessary travel expenses incurred by persons summoned or otherwise required to appear at the hearing.

15-11-39.2. Provisional hearing where summons served by publication; interlocutory effect of findings and order; final hearing.

(a) If service of summons upon a party is made by publication, the court may conduct a provisional hearing upon the allegations of the petition and enter an interlocutory order of disposition if:

(1) The petition alleges delinquency, unruly conduct, or deprivation of the child;

(2) The summons served upon any party:

(A) States that prior to the final hearing on the petition designated in the summons a provisional hearing thereon will be held at a specified time and place;

(B) Requires the party who is served other than by publication to appear and answer the allegations of the petition at the provisional hearing;

(C) States further that findings of fact and orders of disposition made pursuant to the provisional hearing will become final at the final hearing unless the party served by publication appears at the final hearing; and

(D) Otherwise conforms to Code Section 15-11-39; and

(3) The child is personally before the court at the provisional hearing.

(b) All provisions of this article applicable to a hearing on a petition, to orders of disposition, and to other proceedings dependent thereon shall apply under this Code section, but findings of fact and orders of disposition shall have only interlocutory effect pending final hearing on the petition. The rights and duties of the party served by publication are not affected except as provided in subsection (c) of this Code section.

(c)If the party served by publication fails to appear at the final hearing on the petition, the findings of fact and interlocutory orders made shall become final without further evidence and shall be governed by this article as if made at the final hearing. If the party appears at the final hearing, the findings and orders shall be vacated and disregarded and the hearing shall proceed upon the allegations of the petition without regard to this Code section.

15-11-54. Findings in deprivation proceedings.

(a) Findings. After hearing the evidence on any petition alleging deprivation, the court shall make and file its findings as to whether the child is a deprived child. If the court finds that the child is not a deprived child, it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.

(b) Findings with regard to result of alcohol abuse or drug abuse. If the court finds that a child is deprived, the court shall also make and file a finding as to whether such deprivation is the result of alcohol abuse or drug abuse by a parent or guardian.

(c) Disposition. The court shall proceed immediately or at a postponed hearing to make a proper disposition of the case in accordance with Code Section 15-11-55 if the court finds from clear and convincing evidence that the child is deprived.

15-11-78. Exclusion of public from hearing; exceptions.

(a) Except as otherwise provided by subsection (b) of this Code section, the general public shall be excluded from hearings involving delinquency, deprivation, or unruliness. Only the parties, their counsel, witnesses, persons accompanying a party for his or her assistance, and any other persons as the court finds have a proper interest in the proceeding or in the work of the court may be admitted by the court. The court may temporarily exclude the child from the hearing except while allegations of his or her delinquency or unruly conduct are being heard.

(b) The general public shall be admitted to:

(1) An adjudicatory hearing involving an allegation of a designated felony pursuant to Code Section 15-11-63;

(2) An adjudicatory hearing involving an allegation of delinquency brought in the interest of any child who has previously been adjudicated delinquent; provided, however, the court shall close any delinquency hearing on an allegation of sexual assault or any delinquency hearing at which any party expects to introduce substantial evidence related to matters of deprivation;

(3) Any child support hearing;

(4) Any hearing in a legitimation action filed pursuant to Code Section 19-7-22; or

(5) At the court's discretion, any dispositional hearing involving any proceeding under this article.

RULES OF JUVENILE COURTS
6. FILING OF PETITION

6.1 When May a Petition Be Filed.

A petition may be filed only when the petition is in proper form and it has been properly endorsed by the court or a designee thereof.

6.2 Definition of Filing.

The filing of a petition shall consist of the act of presenting to the clerk of the juvenile court, or to a deputy clerk if authorized, a petition in proper form (verified and endorsed) which said clerk or deputy clerk shall accept and note thereon by rubber stamp, automatic date/time stamp or other means, the exact date and time of filing.

6.3 Preliminary Determination.

A petition alleging delinquency, deprivation or unruliness of a child shall not be filed unless the court or its designee has determined and endorsed upon the petition that the filing of the petition is in the best interest of the public and the child.

6.4 Style of the Petition.

The petition and all other documents in the proceeding shall be styled "In the interest of..., a child," except upon appeal, in which event the anonymity of the child shall be preserved by appropriate use of the initials.

6.5 Content of Petition.

See O.C.G.A. § 15-11-38.1.

6.6 Amendment to Petition.

A petition may be amended at any time prior to adjudication, provided that the court shall grant the parties such additional time to prepare as may be required to ensure a full and fair hearing. Amendments shall be freely permitted in the interest of justice and the welfare of the child. When the amended petition constitutes or adds additional charges the petition shall be served in accordance with O.C.G.A. §§ 15-11-39 and 15-11-39.1. Where the child is detained amendments to the petition shall not delay the hearing more than ten (10) days beyond the time originally fixed for the hearing unless a continuance is requested by the child or the child's attorney.

6.7 Withdrawal of Petition.

If it appears after a petition has been filed that an informal adjustment rather than an adjudication would be in the best interest of the child, the petitioner may file a motion to withdraw the petition. The petition shall be withdrawn upon approval by the judge. Such approval does not result in a dismissal of the case, but only in the substitution of informal adjustment for a formal adjudication

6.8 Time Limitations.

If a child who is alleged to be delinquent or deprived is detained or placed in shelter care, a detention hearing shall be held within 72 hours from the moment the child is placed in detention or shelter care to determine whether detention or shelter care is required, provided that if the 72 hour time period expires on a Saturday, Sunday or legal holiday, the hearing shall be held on the next day which is not a Saturday, Sunday, or legal holiday. With respect to any child alleged to be unruly, the informal detention hearing shall be held promptly and not later than 72 hours. If a child is not detained and the case is to be further prosecuted other than by informal adjustment, a petition must be made and filed with the court within 30 days from the date of the child's release. If a child who is alleged to be delinquent or unruly is not released from detention, a petition must be made and filed within 72 hours of the detention hearing. If a child who is alleged to be deprived is not released from detention, a petition must be made and filed within five [5] days of the detention hearing. After the petition has been filed, the court shall fix a time for a hearing thereon, which, if the child is in detention, shall not be later than ten (10) days after the filing of the petition. In the event the child is not in detention, the court shall fix a time for a hearing thereon which shall be not later than sixty (60) days from the date of the filing of the petition.

Any child who is the subject of a delinquency or unruly proceeding or any party in a deprivation or termination of parental rights proceeding may request a rehearing of an associate judge's findings and recommendations in said proceeding. A written request for a rehearing before the judge on an associate judge's findings and recommendations shall be made within five (5) days of the date of receiving notice of the findings and recommendations, unless the fifth day falls on a weekend or legal holiday, in which event the time shall be extended to the next working day.

6.9 Responsive Pleadings and Motions.

No answer to the petition or any other pleading need be filed by any child, parent or legal guardian. A party may file a written pleading or motion to the allegations of the petition before the hearing. Copies of such pleadings shall be made available to the other parties to the case.

RULES OF JUVENILE COURTS
11. ADJUDICATORY HEARING

11.1 Nature and Purpose.

The purpose of the adjudicatory hearing is to determine if the allegations contained in the petition are true.

11.2 Dismissal.

In matters involving delinquency and/or unruliness, if the court finds that the petitioner has not met the burden of proof, it shall dismiss the proceeding, discharge the child from detention or other restrictions previously ordered by the court and enter an order of acquittal. In matters involving deprivation or termination of parental rights, the court shall dismiss the petition, with findings of fact and conclusions of law, if the evidence fails to sustain the allegations by clear and convincing evidence.

11.3 Continuance.

On the motion of the court or that of a party, the court may continue a hearing for a reasonable time upon good cause shown. However, in cases involving allegations of deprivation the granting of continuances beyond the statutory limitations as defined in O.C.G.A. § 15-11-39(a) shall be by written order and the specific reason for the continuance must be stated therein.

11.4 Social History.

The social history of the child shall not be presented to the judge until after said child is adjudicated to have committed the delinquent or unruly act.

Back to Child Attorney Trial Notebook Index Page

"Protecting children and promoting their well-being through excellence in courtroom advocacy."
GACC is an affiliate of the National Association of Counsel for Children	GACC Jane Okrasinski Executive Director Email: jane@gaccchildlaw.org

Adjudication -- Formal Hearing --10 Day Hearing -- ADJ.

Adjudication -- Formal Hearing --
10 Day Hearing -- ADJ.