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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 |
Authority |
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Purpose |
To permanently sever the parent -- child relationship so that the child may be placed for adoption |
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Pleadings |
Petition to Terminate Parental Rights Court is required to hear TPR within 90 days of filing of petition and make a ruling on TPR petition within 30 days of conclusion of the TPR, just cause exception |
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Parties |
Parents, child, DFACS, SAAG, parents attorneys |
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Notice |
Legal father
Biological / Putative father
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Right to Attorney |
Parents; Child shall be appointed attorney (15-11-98) |
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Standard of Proof |
Clear & convincing proof of the grounds for termination and that termination is in the best interest of the child |
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Five situations where TPR appropriate
Additionally, if the child has already been removed from the home prior to a petition to terminate parental rights, the court can consider whether the parent, without a justifiable cause, has failed significantly for a period of one year or longer prior to the filing of the termination petition:
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Jurisdiction/Venue |
Usually where deprivation actions held but may be county of residence of the child |
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Decision Points |
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Placement of child following grant of TPR -- all placements must be in child's best interest (15-11-103)
First, with a person related by blood or marriage or extended family for adoption if the Court determines such a placement is in the child's best interest
Second, DHR or licensed child-placing agency for adoption placement
Third, with suitable individual willing to become guardian
Fourth, DHR or licensed child-placing agency for foster care
Fifth, to an agency or organization authorized by law to receive & provide care for children……….
Sixth, Court may take other suitable measure for the care & welfare of the child
Post TPR Reviews 15-11-103 (e)
If adoption is not filed within 6 months of the TPR order then in court reviews every 6 months thereafter as long as the child remains un-adopted
To review the circumstances of the child,
Tto review what efforts have been made to assure adoption (DFACS must continue to use reasonable efforts to finalize the permanent plan)
15-11-93. Effect of termination order.
An order terminating the parental rights of a parent under this article is without limit as to duration and terminates all the parent's rights and obligations with respect to the child and all rights and obligations of the child to the parent arising from the parental relationship, including rights of inheritance. The parent is not thereafter entitled to notice of proceedings for the adoption of the child by another, nor has the parent any right to object to the adoption or otherwise to participate in the proceedings.
15-11-94. Grounds for termination; other dispositions.
(a) In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of this Code section. If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home. If the court finds clear and convincing evidence of the circumstance provided in paragraph (5) of subsection (b) of this Code section, the court shall presume that termination of parental rights is in the best interest of the child.
(b) Except as provided in subsections (e) through (h) of Code Section 15-11-96, the court by order may terminate the parental rights of a parent with respect to the parent's child if:
(1) The written consent of the parent, acknowledged before the court, has been given; provided, however, that acknowledgment before the court is not necessary where the parent or parents voluntarily surrender the child for adoption as provided by subsection (e) of Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7;
(2) A decree has been entered by a court of competent jurisdiction of this or any other state ordering the parent, guardian, or other custodian to support the child, and the parent, guardian, or other custodian has wantonly and willfully failed to comply with the order for a period of 12 months or longer;
(3) The parent has abandoned the child or the child was left under circumstances that the identity of the parent is unknown and cannot be ascertained despite diligent searching, and the parent has not come forward to claim the child within three months following the finding of the child;
(4)(A) The court determines parental misconduct or inability by finding that:
(i) The child is a deprived child, as such term is defined in Code Section 15-11-2;
(ii) The lack of proper parental care or control by the parent in question is the cause of the child's status as deprived;
(iii) Such cause of deprivation is likely to continue or will not likely be remedied; and
(iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.
(B) In determining whether the child is without proper parental care and control, the court shall consider, without being limited to, the following:
(i) A medically verifiable deficiency of the parent's physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child;
(ii) Excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child;
(iii) Conviction of the parent of a felony and imprisonment therefore which has a demonstrable negative effect on the quality of the parent-child relationship;
(iv) Egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature;
(v) Physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent; and
(vi) Injury or death of a sibling under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse.
(C) In addition to the considerations in subparagraph (B) of this paragraph, where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights:
(i) To develop and maintain a parental bond with the child in a meaningful, supportive manner;
(ii) To provide for the care and support of the child as required by law or judicial decree; and
(iii) To comply with a court ordered plan designed to reunite the child with the parent or parents; or
(5) The parent has been convicted of the murder of the child's other parent.
(c) If the court does not make an order of termination of parental rights, it may grant an order under Code Section 15-11-55 if the court finds from clear and convincing evidence that the child is a deprived child.
15-11-95. Petition
(a) The petition to terminate parental rights and all subsequent court documents in the proceeding shall be entitled "In the matter of _____________, a child.", except upon appeal, in which event the anonymity of the child shall be preserved by appropriate use of initials. The
petition shall be in writing.
(b) The petition shall be made, verified, and endorsed by the court as provided in Article 1 of this chapter for a petition alleging deprivation.
(c) The petition shall state clearly that an order for termination of parental rights is requested and that the effect thereof will be as stated in Code Section 15-11-93, and shall set forth in ordinary and concise language the facts required by Code Section 15-11-38.1.
(d) When a petition seeks termination of the rights of a biological father who is not the legal father and who has not surrendered his rights to the child, the petition shall be amended to include a certificate from the putative father registry disclosing the name, address, and social security number of any registrant acknowledging paternity of the child pursuant to subparagraph (d)(2)(A) of Code Section 19-11-9 or indicating the possibility of paternity of a child of the child's mother pursuant to subparagraph (d)(2)(B) of Code Section 19-11-9 for a period beginning no later than two years immediately prior to the child's date of birth. Such certificate shall document a search of the registry on or after the date of the filing of the petition and shall include a statement that the registry is current as to filings of registrants as of the date of the petition or as of a date later than the date of the petition.
15-11-96. Summons; rights of biological fathers.
(a) Upon filing of the petition, summons shall be issued forthwith on the child's parents, guardian, lawful custodian, and on the person presently having physical custody of the child.
(b) A copy of the petition shall be attached to the summons in all cases other than service by publication. When served by publication, the notice shall indicate the general nature of the allegations and where a copy of the petition may be obtained by the child's parents, guardian, lawful custodian, and the person presently having physical custody of the child. Such copy shall be available from the court during business hours. A free copy shall be available to the parent or, upon request, shall be mailed to the parent. All summons shall contain a statement to the effect that the hearing is for the purpose of terminating parental rights.
(c) The summons shall require the person who has physical custody of the child to appear personally and to bring the child before the court at the time and place stated in the summons. Where, at the court's discretion, it is deemed in the interest of the child that the child need not be brought before the court, the court may so indicate. The summons shall be served at least 30 days before the time set for the hearing, and a copy of the petition shall be served together with the summons and shall be made in the manner provided in Code Section 9-11-4, relating to service in civil practice.
(d) If the paternity of a child born out of wedlock has been established in a judicial proceeding to which the father was a party prior to the filing of the petition, the father shall be served with summons as provided by this article. Such father has the right to be heard unless he has relinquished all paternal rights with reference to the child.
(e) If there is a biological father who is not the legal father of a child and he has not executed a surrender as specified in paragraph (2) of subsection (e) of Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7 he shall be notified of the proceedings pursuant to this Code section in the following circumstances:
(1) If his identity is known to the petitioner or the petitioner's attorney;
(2) If he is a registrant on the putative father registry who has acknowledged paternity of the child in accordance with subparagraph (d)(2)(A) of Code Section 19-11-9;
(3) If he is a registrant on the putative father registry who has indicated possible paternity of a child of the child's mother in accordance with subparagraph (d)(2)(B) of Code Section 19-11-9 during a period beginning two years immediately prior to the child's date of birth; or
(4) If the court finds from the evidence, including but not limited to the affidavit of the mother executed in compliance with the court's requirement pursuant to subsection (g) of this Code section in the form provided in subsection (h) of Code Section 19-8-26, that such biological father who is not the legal father has performed any of the following acts:
(A) Lived with the child;
(B) Contributed to the child's support;
(C) Made any attempt to legitimate the child; or
(D) Provided support or medical care for the mother either during her pregnancy or during her hospitalization for the birth of the child.
(f) Notification provided for in subsection (e) of this Code section shall be given to a biological father who is not a legal father by the following methods:
(1) Registered or certified mail or statutory overnight delivery, return receipt requested, at his last known address, which notice shall be deemed received upon the date of delivery shown on the return receipt;
(2) Personal service, which notice shall be deemed received when personal service is perfected; or
(3) Publication once a week for three weeks in the official organ of the county where the petition has been filed and of the county of his last known address, which notice shall be deemed received upon the date of the last publication.
If feasible, the methods specified in paragraph (1) or (2) of this subsection shall be used before publication.
(g) If there is a biological father who is not the legal father of the child and the identity of such biological father is not known to the petitioner or the petitioner's attorney, then the court shall be authorized to require the mother to execute an affidavit regarding such father in the form provided in subsection (h) of Code Section 19-8-26 or show cause before the court if she refuses. If the court finds from the evidence including but not limited to the affidavit of the mother that such biological father who is not the legal father has not performed any of the following acts:
(1) Lived with the child;
(2) Contributed to the child's support;
(3) Made any attempt to legitimate the child; or
(4) Provided support or medical care for the mother either during her pregnancy or during her hospitalization for the birth of the child,
and the petitioner provides a certificate from the putative father registry stating that there is no entry on the putative father registry either acknowledging paternity of the child or indicating possible paternity of a child of the child's mother for a period beginning no later than two years immediately prior to the child's date of birth, then it shall be rebuttably presumed that the biological father who is not the legal father is not entitled to notice of the proceedings. Absent evidence rebutting the presumption, then no further inquiry or notice shall be required by the court and the court shall enter an order terminating the rights of such biological father to the child.
(h) When notice is given pursuant to subsection (e) of this Code section, it shall advise such biological father who is not the legal father that he loses all rights to the child and will not be entitled to object to the termination of his rights to the child unless, within 30 days of receipt of such notice, he files:
(1) A petition to legitimate the child pursuant to Code Section 19-7-22; and
(2) Notice of the filing of the petition to legitimate with the court in which the action under this Code section is pending.
(i) A biological father who is not the legal father loses all rights to the child and the court shall enter an order terminating all such father's rights to the child and such father may not thereafter object to the termination of his rights to the child if within 30 days from his receipt of the notice provided for in subsection (e) of this Code section he:
(1) Does not file a legitimation petition and give notice as required in subsection (h) of this Code section;
(2) Files a legitimation petition which is subsequently dismissed for failure to prosecute; or
(3) Files a legitimation petition and the action is subsequently concluded without a court order declaring a finding that he is the legal father of the child.
15-11-97. Failure to answer summons; taking child into protective custody.
(a) If any person named in and properly served with summons shall without reasonable cause fail to appear or, when directed in the summons, to bring the child before the court, then the court may issue a rule nisi against such person, directing the person to appear before the court to show cause why such person should not be held in contempt of court.
(b) If the summons cannot be served or if the person to whom the summons is directed fails to obey it, the court may issue an order to take the child into protective custody.
15-11-98. Attorneys and guardians ad litem.
(a) In any proceeding for terminating parental rights or any rehearing or appeal thereon, the court shall appoint an attorney to represent the child as the child's counsel and may appoint a separate guardian ad litem or a guardian ad litem who may be the same person as the child's counsel.
(b) If the parent or parents of the child desire to be represented by counsel but are indigent, the court shall appoint an attorney for such parent or parents, which shall be a charge upon the funds of the county upon certification thereof by the court in the same manner as authorized for other expenses under Code Section 15-11-8.
15-11-99. Standard of proof.
In all proceedings under this article, the standard of proof to be adduced to terminate parental rights shall be by clear and convincing evidence.
15-11-100. Physical and mental evaluations.
The court may require a physical or mental evaluation of any parent, stepparent, guardian, or child involved in a proceeding under this article.
15-11-101. Record inadmissible in other actions; exceptions.
The record of the testimony of the parties adduced in any proceeding under this article shall not be admissible in any civil, criminal, or any other cause or proceedings in any court against a person named as respondent for any purpose whatsoever, except in subsequent deprivation or termination proceedings involving the same child or deprivation or termination proceedings involving the same respondent under this article.
15-11-102. Applicability of Code Section 15-11-39.2 to hearings.
The court shall conduct hearings, where appropriate, in accordance with Code Section 15-11-39.2.
15-11-103. Placement of child following termination order; custodial authority; review of placement.
(a)(1) If, upon the entering of an order terminating the parental rights of a parent, there is no parent having parental rights, the court shall first attempt to place the child with a person related to the child by blood or marriage or with a member of the child's extended family if such a person is willing and, after study by the
probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child, if the court determines such placement is the most appropriate for and in the best interest of the child. A placement effected under this paragraph shall be conditioned upon the family member who is given permanent custody or who is granted an adoption of the child agreeing to abide by the terms and conditions of the order of the court.
(2) If no placement of the child is effected under paragraph (1) of this subsection, the court may commit the child to the custody of the Department of Human Resources or to a licensed child-placing agency willing to accept custody for the purpose of placing the child for adoption, if the court determines such placement is the most appropriate for and in the best interest of the child.
(3) If no placement of the child is effected under paragraph (1) or (2) of this subsection, the court may commit the child to a suitable individual on the condition that the person becomes the guardian of the person of the child pursuant to the court's authority under Code Section 15-11-30.1, if the court determines such placement is the most appropriate for and in the best interest of the child.
(4) If no placement of the child is effected under paragraph (1), (2), or (3) of this subsection, the court may commit the child to the custody of the Department of Human Resources or to a licensed child-placing agency willing to accept custody for the purpose of placing the child in a foster home, if the court determines such placement is the most appropriate for and in the best interest of the child.
(5) If no placement of the child is effected under paragraph (1), (2), (3), or (4) of this subsection, the court may commit the child to the custody of an agency or organization authorized by law to receive and provide care for children which is operated in a manner that provides such care, guidance, and control as would be provided in a family home as defined in the court's order, if the court determines that such placement is the most appropriate for and in the best interest of the child.
(6) If no placement of the child is effected under paragraph (1), (2), (3), (4), or (5) of this subsection, the court may take other suitable measures for the care and welfare of the child.
(b) A placement may be made under the terms of this Code section only if the court finds that such placement is in the best interest of the child.
(c) The court shall transmit a copy of every final order terminating the parental rights of a parent to the Office of Adoptions of the Department of Human Resources within 15 days of the filing of such order.
(d) The custodian has authority to consent to the adoption of the child, the child's marriage, the child's enlistment in the armed forces of the United States, and surgical and other medical treatment for the child.
(e) Except in those cases where the child was placed pursuant to paragraph (3) or (5) of subsection (a) of this Code section, if a petition seeking the adoption of the child is not filed within six months after the date of the disposition order, the court shall then, and at least every six months thereafter as long as the child remains unadopted, review the circumstances of the child to determine what efforts have been made to assure that the child will be adopted. The court may then enter such orders as it deems necessary to further the adoption, including but not limited to another placement. In those cases where the child was placed with a guardian of the child's person pursuant to paragraph (3) of subsection (a) of this Code section, the guardian shall report to the court in the same manner and at the same frequency as is required for guardians of the person of minors appointed by the judge of the probate court. In those
cases where the child was placed pursuant to paragraph (5) of subsection (a) of this Code section, the court shall, at least every six months thereafter as long as the child remains subject to the jurisdiction of the court, review the circumstances of the child to determine that placement in the family home-like setting continues to be in the child's best interests.
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