ChildWelfare.net - Georgia GAL Juvenile Court Deprivation Case Reference Manual, April 2004

Melissa Dorris, Research Assistant, Georgia Supreme Court Child Placement Project (2001 Revision)

Laurie-Ann Fallon, Research Assistant, Georgia Supreme Court Child Placement Project (2004 Revision)

Jennifer King, Training and Affiliate Services Director, Georgia Court Appointed Special Advocates

I. Introduction

As a law or volunteer guardian ad litem, you will become heavily involved in the juvenile court process in cases involving the abuse or neglect of children. In the representation of children, the lack of a commonly accepted definition of a guardian ad litem is confusing. The titles include: child advocate attorney, guardian ad litem, volunteer guardian ad litem, etc. In Georgia, volunteer guardians ad litem are trained by Georgia CASA, which stands for Court Appointed Special Advocates. For the sake of this manual, we will be referring to attorney guardians ad litem as law guardians and volunteer guardian ad litems as CASAs. This manual is designed to give you an in-depth understanding of Georgia deprivation law and juvenile court procedures. The manual is written in procedural chronological order and will take the reader through the legal requirements and the expectations of the court in a deprivation case from the first allegations of abuse and neglect, through the removal of the child from the home, up to and including family reunification or termination of parental rights.

Issues discussed in the manual include: the investigation of an allegation by DFCS, Preliminary 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. § 15-11-4 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, ś I. The Supreme Court took such action with the publication of the Uniform Rules for the Juvenile Courts of Georgia. We will be referring to the rules periodically throughout this manual.

II. Roles and Responsibilities of the Law Guardian/CASA Team

A. Role Definition

Over the years, defining the role of the guardian ad litem (GAL) has generated much debate. Until recently, there has been little guidance for GALs appointed to represent children in deprivation cases partly due to the lack of a common definition. In 1996, the American Bar Association promulgated its Standards of Practice for Lawyers who Represent Children. These standards state a preference for the traditional attorney/client relationship, but recognize that the GAL is an "officer of the court" appointed to represent the child's interests without being bound by the child's expressed preferences. American Bar Association, Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (Adopted February 5, 1996).

Guardians ad litem may and should ascertain the child's position in a "developmentally appropriate" manner and present the child's stated wishes in court. However, the GAL's recommendation is ultimately formulated after information has been collected from all sources, such as a CASA, the caseworker, the parents or legal guardian and their attorney, the child, other family members, witnesses and any other evidence to be presented during the hearing. Under this model, the law guardian can remain an independent legal representative of the child's interests and can make objective recommendations to the court. The law guardian should work to provide the maximum amount of representation and services for each child in the system, focusing on the child's best interests.

The ABA recognizes that even when acting solely as attorney for the child, advocating for the child's preferences should not result in action that would be "seriously injurious to the child." Id. In striving to provide competent, ethical law guardian representation, the attorney must be willing to seek out multidisciplinary training opportunities, particularly in the field of child development. The law guardian has an ethical duty to give voice to the child's stated position, while ultimately rendering to the court a recommendation "in the child's best interest." Sadly, given the realities of the child welfare and judicial systems (too many cases, too few resources), the law guardian may not have any hope of achieving the truly best alternative for his/her client (e.g, "fixing" the abusive or neglectful situation so that the child can return home), and may be forced to seek the "least detrimental alternative." Goldstein, Solnit and Freud, In the Best Interests of the Child (1986).

Further complicating the work for the GAL is the overburdened child welfare system and unrealistic caseloads. Often, law guardians carry prohibitively high caseloads that prevent them from even meeting all of their clients, let alone developing an ongoing advocacy relationship with them. An effective way courts can address this last problem is to team the law guardians with trained CASA volunteers. While we recognize that many courts use either law guardians or CASAs, we strongly urge courts to use both as a team. The law guardian provides a legally trained voice for the child, and can enter the litigation arena with the license and skills to subpoena and examine witnesses (including the CASA), present evidence, formulate legal arguments, and explain to the child client the legal consequences of the court's actions. Again, this assumes that the law guardian has taken the time to become well versed in child development and skilled in communicating with child clients at various stages of development. Vasquez, Rosemary, L.C.S.W., Interviewing Children (National CASA presentation 1995)(Appendix 4).

The trained CASA, who is generally assigned to one or two cases, will have more time to devote to developing rapport with the child and thoroughly investigating the case. Bringing volunteers into the child welfare system allows the community to see its tax dollars at work, sheds light on the system, and keeps the system honest. It helps the other players rise above the bureaucracy for the sake of a child. In making decisions about the representation, the law guardian/CASA should ask him or herself the following seven questions:

B. The National Trend

Several writers are offering an innovative approach to understanding the roles and responsibilities in representing children. One approach is authored by Professor Koh Peters who addresses the "wishes/best interest" dichotomy by offering what she calls "contextual/child-centered lawyering." Peters, Jean Koh, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions at 2.3 (b), n.17 (Michie 1997). Professor Peters argues that the polarizing debate between representing best interests and representing the child's expressed wishes should be set aside. Rather than divided, these two missions are complementary. She asserts that the law guardian is to reflect on the child's point of view by entering and understanding the world of the child client along with respecting him/her as a unique and subjective individual. She calls upon the attorney to maintain this approach from the point of initial client contact until closure of the attorney/client relationship. The "Peters Model" is as follows:

The author Marvin Ventrell further endorses this model of the law guardian's role by explaining that, optimally, the law guardian/CASA team should apply a synthesis of beneficence ("best interest") and autonomy (child's expressed position) in advocating for their child clients. See Ventrell, Marvin, "Models of Child Advocacy: Achieving Balance of Beneficence and Autonomy," in The Development and Direction of Children's Law in America at 135-142.

Debate surrounding this "synthesis" approach has suggested that a "hybrid" role may be the best framework within which to advocate for children, however, current ethical rules (i.e., the ABA Standards) may in fact hinder this approach. The law guardian is cautioned to not perceive the approach as permitting "relaxed representation," but as providing an alternative to serving as a "robotic mouthpiece" for clients who may not be entirely capable of protecting their own best interests.

These three authors, Peters, Haralambie and Ventrell, will assist any child advocate who has struggled with the confusion of role ambiguity. For additional reading on the roles and responsibilities of the GAL, please see: Child Advocacy at a Crossroads: The Development and Direction of Children's Law in America, NACC Children's Law Manual Series (1996 Edition) (can be obtained by contacting the Nat'l Assoc. of Counsel for Children, 1205 Oneida Street, Denver, Colorado 80220; (303)322-2260), Perry and Teply, Interviewing, Counseling and In-Court Examination of Children: Practical Approaches for Attorneys, 18 Creighton L.Rev. 1369 (1985), Walker, Anne Graffam, Ph.D., Handbook on Questioning Children: A Linguistic Perspective (1994); Rich, John, Interviewing Children and Adolescents (1986); Donald Duquette, Advocating for the Child in Protection Proceedings: A Handbook for Lawyers and CASA (1990).

III. Jurisdiction of the Juvenile Court System

A. Jurisdiction of the Court

In Georgia, the juvenile court has exclusive original jurisdiction over a child who is alleged to be deprived; it is the sole court in which a deprivation petition 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 personal jurisdiction over the juveniles themselves. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4.2, 4.8. A child is defined by 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. In delinquency cases, a child is defined as anyone under the age of 17. O.C.G.A. § 15-11-2(2)(B). The Juvenile Court also has exclusive jurisdiction over children alleged to be delinquent, unruly, or in need of treatment or commitment because they are mentally ill, as well as matters involving the Interstate Compact on the Placement of 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 adoption proceedings. With regard to petitions to terminate parental rights filed in connection with an adoption proceeding, the Juvenile Court system has concurrent jurisdiction with Superior Courts. O.C.G.A. § 15-11-28(a)(2)(C). Similarly, the Juvenile Court retains 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).

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. 520 (1989). Juvenile court judgments must recite the specific facts that 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).

Under the Georgia Constitution, the Superior Court system has original jurisdiction over divorce actions. Ga. Const. 1983, Art. VI, § IV, ś 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). The Juvenile Court does not retain jurisdiction to hear a petition for custody filed by a child's paternal grandparents after making a finding that the child is deprived and transferring temporary legal custody of the child to DFCS. This petition was not in the nature of a deprivation petition and did not request a change in custody because the children were deprived. There was no proper transfer of such a case from Superior to Juvenile Court to allow the court to consider this request. In the Interest of C.C., et al., Children, 193 Ga. App. 120 (1989).

Some confusion arises when deprivation is alleged in a custody battle between the child's parents or third parties. It was not the intention of the General Assembly to grant the juvenile courts original jurisdiction over the custody of a child when there is a dispute between the parents. Bartlett v. Bartlett, 99 Ga. App. 770 (1959). 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). All deprivation proceedings arising between the child's parents should be filed originally in superior court. 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, the law guardian should first and foremost ascertain that the complaint filed with the juvenile court is NOT a custody "battle," disguised as allegations of deprivation. In another case, the Court of Appeals has held that an order of a juvenile court changing the custody of a child was not a modification on a determination that the children were deprived in their current environment. In the Interest of A.L.L., 211 Ga. App. 767 (1994).

In some jurisdictions, a superior court judge holds the dual position of a 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. However, in a final hearing on custody in a divorce action in a 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. Watkins v. Watkins, 266 Ga. 269 (1996). 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 the 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.

The authority of the juvenile court to appoint a guardian ad litem, which can be an attorney or volunteer, is provided for in O.C.G.A. § 15-11-9. That section states that the court shall appoint a guardian ad litem (GAL) for a child where there is "no parent, guardian, or custodian appearing on his behalf or if their interests conflict with his or in any other case in which the interests of the child require a guardian." The section further states that the court shall not appoint a party to the proceeding, his employee, or representative as guardian ad litem.

B. Definition of Deprivation

1. Without Proper Care or Control

The first provision is a general catchall 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 law was meant to be read broadly to allow the state to take action to protect the child in cases of abuse and neglect without restraint by precise definitions that may not be applicable to all situations which could constitute deprivation.

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 of such a child. O.C.G.A. § 19-7-5(b)(3)(B-D).

One large restriction to the catchall 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, supra, § 4-3. "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 of 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 again addressed this issue 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. Given the broad range of interpretation in this area, the law guardian/CASA should be mindful of the need to ensure presentation of clear, specific, tangible evidence in neglect cases (e.g., photographs, eyewitnesses giving vivid descriptions based on direct, continuous observation).

Many cases not only combine moral unfitness, physical abuse and abandonment, but also reflect the belief that frequent moves from home to home can prevent the successful formation of a parent-child relationship. A child can thus be deprived of a sound environment built upon love and nurture. There can be a substantial danger that the child will suffer emotional as well as physical, mental, and moral harm. Elrod v. Dept. of Family and Children Services, 136 Ga. App. 251 (1975). Again, because emotional abuse cases are among the most difficult to prove, the law guardian should ensure that comprehensive evidence is presented on behalf of the child, including expert testimony based on evaluation of the child and his/her parent(s). Haralambie, The Child's Attorney, supra at pp. 183-184.

The Georgia 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 Services, 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 father. In the Interest of B.H., 190 Ga. App.131 (1989).

The general rule is that a finding of deprivation must be based upon the present condition 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).

The reader should note, however, that once allegations of deprivation exist for one child in the home, other siblings may be removed simultaneously from the home, even without a showing that these other children were actually harmed, neglected or themselves personally deprived. A line of cases has been relied upon by the Juvenile Courts which state that past acts of deprivation are certainly stronger proof and more convincing evidence upon which to decide the issue. But there is no reason why a determination of deprivation may not be made on proof that the conditions under which the child would be raised in the parent's home strongly indicated that the deprivation will occur in the future. Roberts v. State of Georgia , 141 Ga. App. 268 (1977) and Jones v. Dept. of Human Resources, 155 Ga. App. 371 (1980). Essentially, one need not wait for a child to be harmed before removing that child, if conditions of deprivation already exist in the home, or if another child in the home has already been personally harmed.

Many cases involve the filing of deprivation petitions when one or both of the child's parents are incarcerated. The Court of Appeals has previously 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).

2. Illegal Adoption

The General Assembly has established three other very specific areas in which a child can be considered deprived. 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, supra, 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. at § 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. 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. Downs et al. v. Wortman et al., 288 Ga. 315 (1971). However, if the monetary consideration goes to the child instead of the parent, any such agreement is not void for public policy reasons and is presumably enforceable. Id. at 317. The Georgia Adoption Code also prohibits 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). 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 adopted or 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. Given the recent proliferation of just this type of advertising in the print media and over the Internet, some judicial interpretation of this statutory provision may be expected in the near future.

3. Abandonment

Abandonment clearly seems to cover intentional parental desertion. Ferreira, McGough's, supra, § 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 custody and control of his/her child as opposed to a motion 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, supra, § 4-6.

4. Without a Parent, Guardian, or Custodian

A child is also deprived if he/she is without a parent, guardian, or custodian. This ground for deprivation is also rarely used, so its precise meaning is unclear. Presumably, it means something other than abandonment, such as lack of parent or guardian to care for the child due to illness or death. One instance when a child might be alleged to be deprived because he/she is without a parent, guardian, or custodian would be when a child is informally placed in the jurisdiction with a relative and his/her parent is outside of the jurisdiction. If a petition is filed on such a child, it should be filed under this Code section. Under such circumstances, a child can be returned to the parent or if such placement is found to be inappropriate a petition for custody can be filed. There is also 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, the larger number of deprivation cases involving incarcerated parents are filed under the general category of "lack of proper parental care or control," thus 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. 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, some commentators have suggested that if a child's life or long-term health is endangered due to a lack of medical care, state intervention is still appropriate regardless of the justification posed by the parents. Ferreira, McGough's, supra, § 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 (11th Cir. 1990).

In Jefferson v. Griffin Spalding Co. Hospital Authority, et al., 247 Ga. 86 (1981), the Supreme Court denied an appeal from a combined order of the Butts County Juvenile and Superior Courts transferring temporary custody of an unborn child to the Department of Human Resources. Here, the court also ordered the mother to undergo an emergency cesarean 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 the mother and unborn child had a possibility of survival at nearly 100% if the cesarean were performed. Id. at 86.

One of Georgia's Juvenile Court judges has commented on the subject, in a precedent setting ruling that has become a standard by which to measure the state's interests against the parents' First Amendment rights, regarding religious decisions for their minor children. In a case involving the juvenile court's authorization to a hospital to perform a life saving blood transfusion to a child whose parents refused the treatment on religious grounds, Judge Edward D. Wheeler held that "the state has a vital interest in preserving the lives and health of its citizens." He also recognized, however, that "The First Amendment right to freedom of religion must be recognized and respected when its practice is not contrary to the best interests of the citizens of the State." In authorizing the blood transfusion over the objections of the natural parents, the Court cited a Supreme Court case on the subject, which held beyond limitation:

C. Venue

A deprivation proceeding may be commenced in the 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 of Georgia. Ga. Const. 1983, Art VI, §II, ś VI. The "presence" option allowing the filing of a 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 the county has either a full or part-time juvenile court judge to hear deprivation cases, the hearing should occur in that county since that will be where the child either resides or was present when the action was commenced. If the county has a superior court judge who hears juvenile court cases, the superior court judge can choose to hear the case in any county within that judicial circuit. O.C.G.A. § 15-11-29(b). In such situations, it may be necessary to travel to another county within the judicial circuit to appear in a deprivation hearing.

IV. Removing A Deprived Child From the Home

A. Protective Custody

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, supra, § 4-10. Law enforcement officers often encounter situations of child abuse and neglect during their daily interactions with the public. This law allows such an officer to immediately remove a child from the home so that 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 caseworker is unclear. However, one commentator has suggested that a caseworker might not be authorized by law to remove a child from the home without first obtaining a preliminary protective custody order. Id. at § 4-10.

B. Preliminary Protective Custody Orders

Often DFCS will be contacted directly by school officials or other concerned citizens regarding the possibility of abuse or neglect of a child without the involvement of law enforcement. DFCS caseworkers do not necessarily need to remove the child from the home themselves; they can do so with the assistance of law enforcement personnel. If, after an investigation, the caseworker finds that there is a sufficient basis to remove the child from the home, a complaint and deprivation petition may be filed with a juvenile court judge. The contents of this petition will be discussed later in this manual. If the judge agrees that the circumstances warrant removal of the child, a summons will be issued authorizing a law enforcement officer to immediately take the child into custody. O.C.G.A. § 15-11-49.1. This decision should be based upon an affidavit or sworn testimony that:

If the judge 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 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 pursuant to O.C.G.A. § 15-11-5. O.C.G.A. § 15-11-39(c). Some Georgia courts do not require the filing of a petition but will issue a summons upon the filing of a complaint or affidavit. These cases can initially be heard ex parte if the circumstances require immediate action by the court.

Preliminary protective custody orders authorized by a juvenile court are not entitled to enforcement outside of the state of Georgia. The Georgia Court of Appeals has 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 Fam. and Child. 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 jurisdiction over the child was otherwise completely proper, the Court of Appeals declined to reverse the order on that basis.

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) and (e). Some individuals are required by law to make these reports if they have reasonable cause to believe that the child has been abused, neglected, or exploited. O.C.G.A. § 19-7-5(c)(1). Such individuals 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. (The Mandated Reporting Statutes) O.C.G.A. § 19-7-5(c)(1)(A-N). Any individual or organization reporting in good faith under this article, will be immune for any civil or criminal liability regardless of whether the report was required. O.C.G.A. § 19-7-5(f).

C. Procedures for Taking the Child into Custody

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 requiring 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 and the court that the child has been detained and must state 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 this review is "to make certain that a juvenile's rights are protected when he/she 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 him or herself, an associate juvenile court judge, court service worker, juvenile probation officer or intake officer designated by the court. O.C.G.A. § 15-11-2(10). In some of the larger jurisdictions, the juvenile court may have an "intake section," staffed by personnel familiar with the drafting of complaints. Protective and/or holding orders are then routed to the judge for signature.

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, ś 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 intake officer if a county has not provided for such a position. Op. Att'y Gen. U83-66 (1983). 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 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 requires that intake officers shall only be court-employed intake or probation officers, court service workers, or other Department of Children and Youth Services (now Department of Juvenile Justice) staff designated by the judge exercising juvenile court jurisdiction.

If the intake officer determines it is not necessary to detain the 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 the Special Assistant Attorney General (SAAG), wishes to pursue the matter further regardless of the intake officer's decision, a deprivation petition should be filed with the court within 30 days of the child's release. O.C.G.A. § 15-11-49(b). If the intake officer determines that the detention or shelter care placement of the child is necessary, an informal detention hearing before a juvenile court should be scheduled and held within 72 hours of removing the child from the parents' custody. O.C.G.A. § 15-11-49(c)(3). If the child is not released prior to an informal detention hearing, he/she can only be placed in:

The term "shelter care" is used frequently throughout the Juvenile Code. The term is defined in the detentional 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 relative, or a facility operated by a licensed child welfare agency." The temporary physical placement of the child anywhere other than in one of these facilities or foster care homes requires the approval of the juvenile court judge or his/her designated appointee.

D. Responsibilities of the Law Guardian/CASA Team When a Deprivation Complaint Has Been Filed

Once a child has been removed from the home and a deprivation complaint has been filed, that child's case should immediately come to the attention of the Child Advocacy Unit, (if one operates in your jurisdiction) or to the law guardian/CASA appointed to the case. A law guardian, like an attorney representing a private client, should not wait until the first court hearing to begin advocating for the child or investigating the case. Just as a private attorney handling a criminal or civil matter begins to represent the client as soon as any kind of notice of potential legal action is served, so too should the law guardian begin to represent the child either when he/she is removed from the home, or when a deprivation complaint is filed. Although there may be difficulties locating the child at such an early stage in the proceedings, the law guardian/CASA should be prepared to go to the place where the child is located as soon a possible after removal and interview the child. An early interview with the child is in the best interest of that child as well as the family, as it allows for the development of a positive relationship between the law guardian/CASA and the child.

At the initial interview, the law guardian/CASA should attempt to "ascertain the wishes of the child, to determine the psychological state of the child and the reaction of the child to the incidents that have occurred, and to develop some feeling for the appropriateness or inappropriateness of the current placement." These concerns must be addressed in the context of considering and understanding child development issues related to separation. Lawyers for Children ABA Center for Children and the Law (1990) at 296-304. The law guardian/CASA should also attempt to meet with or talk to members of the family from which the child was removed, the social worker or workers responsible for the case, and any other parties who may have important information about the case. This will help the law guardian/CASA determine what course of action is in the child's best interest and will also facilitate the development of a strategy for any future hearings.

V. 72-Hour Informal Detention Hearing

A. When Is the Hearing Required? What Must Be Shown?

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, URJC, 8.6 allows the court to 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. 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.

Courts have interpreted this time frame to be mandatory and if the hearing is not scheduled within 72 hours of the child's removal, the deprivation action will be dismissed "without prejudice." Sanchez v. Walker Co. Dept. of Fam. and Child. Serv., 237 Ga. 406 (1976). This means that the department may 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 feel that the situation warrants such action. While these procedures allow the case to go forward, the delay associated with beginning the process over again is burdensome for the DFCS caseworker, and may needlessly extend the time a child must spend in shelter care. If a parent fails to make a timely objection during the informal detention hearing based on noncompliance with statutory time limits, the objection is effectively waived and cannot be raised on appeal. Irvin v. Dept. of Human Resources, 159 Ga. App. 101 (1981).

At the 72-hour hearing the judge will determine if the child's detention is required under the standards set forth 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 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, who more often than not will be the county division of DFCS, sometimes represented by a Special Assistant Attorney General (SAAG), must show through evidence that it is "more likely than not" that the child is deprived. This is a much lower burden of proof than will be required at the formal adjudicatory hearing (trial) on the merits of the deprivation petition. Not all agree on the proper standard of proof in the 72-hour hearing since the statute is silent on the issue. The 1996 Georgia Juvenile Court Benchbook notes that "the burden is on the petitioner to prove the need for detention; there is no indication from the code that a 'probable cause' standard is all that is necessary."

B. Notice to Parties

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 to his/her parents, guardian, or other custodian if they can be found. 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 Fam. and Child. Serv., 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. In such situations, the child shall be released unless it appears that the child's detention or shelter care 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 places additional procedural burdens on the SAAG and DFCS caseworker, and creates further delays for the child prior to the adjudication of his/her case. During the 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.

C. Right to Counsel

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 provide that party with counsel. 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 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 grant a continuance (postpone the proceeding) so that a party can obtain a lawyer. O.C.G.A. § 15-11-6(b).

The juvenile court will appoint a guardian ad litem to represent the interest of a child who is a party to all deprivation proceedings, and in cases where the interests of the child and his/her parents conflict. O.C.G.A. § 15-11-49(c)(4) and O.C.G.A. § 15-11-9. In interpreting § 15-11-9, the Attorney General has issued the 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). The 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. In addition, a parent in a deprivation action cannot waive the child's right to independent legal counsel. 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. McBurrough v. Dept. of Human Resources, 150 Ga. App. 130 (1978).

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 a law guardian for the child or the DFCS caseworker to represent the department's case at the 72-hour hearing. This would appear to be an obvious conflict of interest given specific statutory and judicial mandates that the guardian ad litem not be a party to the proceedings. See O.C.G.A. § 15-11-9; In re J.S.C., 182 Ga. App. 721 at 723 (1987). In all other deprivation hearings, the petitioner, who again is usually DFCS, is represented by an attorney.

In 1974, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA), P.L. 93-247, which required that all states receiving federal funds appoint a guardian ad litem (GAL) to represent the interest of the child in abuse or neglect cases which result in a judicial proceeding. 42 U.S.C. § 5106(b)(6). The act does not require that the guardian ad litem be an attorney, and is mostly silent on the roles and responsibilities of the GAL in judicial proceedings, mandating only that the GAL is charged with representing the rights and best interest of the child. 45 C.F.R. Ch. XIII, § 1340.14(g)(10-1-96 ed.). However, CAPTA was recently amended to require that the GAL appointed, whether it is a CASA or an attorney, must have received training "appropriate" to the role. 42 U.S.C. § 5106(b)(2)(4)(xiii). The law does not elaborate as to what type of training constitutes "appropriate."

The purpose of the guardian ad litem is to protect the interests of the child in all matters relating to the litigation. In re J.S.C., Ga. App. 721 (1987). The type of representation offered to children in deprivation proceedings varies from jurisdiction to jurisdiction, and it has long been a goal of child welfare professionals and concerned members of the bar to develop a greater sense of uniformity in representation, one of the primary goals of this manual. In some counties, attorneys in private practice are appointed to serve as a guardian ad litem while in others, staff attorneys are hired as advocates for the child. Other counties have volunteer guardian ad litem and CASA programs to provide representation for children. These volunteers are often not attorneys and lack standing to make legal arguments and motions on behalf of the child.

In recent decades, child welfare professionals and the public have become increasingly determined that existing child protective procedures be improved. Pursuant to CAPTA, states began adopting legislation that required representation for the child's best interests during judicial proceedings. In 1996, CAPTA was reauthorized and now reads: "...a guardian ad litem, who may be an attorney or a court appointed special advocate (or the preferred model of both), shall be appointed" to represent children in abuse and neglect cases. Georgia CASA Publications: Legal Proceedings in the Juvenile Court, at 5.

The appointment of both a volunteer and an attorney to juvenile deprivation cases ensures a stronger form of representation for abused and neglected children. CASA volunteers have the time and commitment to familiarize themselves with the facts of each case, establish a relationship with the child and monitor the case until permanency is achieved (e.g., family reunification or termination and adoption). The attorneys' legal expertise is essential to move cases through the system, and to ensure that a child's interests are promoted and legal rights protected throughout the duration of the case. A national study commissioned by the U.S. Department of Health and Human Services found that the "team approach" of using law guardians teamed with lay or CASA volunteers was "highly recommended." The study found that this model tended to promote:

Another helpful tool for law guardians is use of student interns. Student interns from various disciplines (e.g., social work, law, psychology, nursing, pediatrics, education) can bring a unique and invaluable perspective to the law guardian's caseload, often providing additional levels of case investigation, preparation and assistance. Representation of children is inherently multidisciplinary in character. The students get the opportunity to learn skills not taught in classrooms or by reading textbooks, while gaining respect for one another's professional perspectives. Forming a relationship with a school can offer a student credit hours, stipends, or both. All interns should receive training and direct law guardian supervision, and can be sworn in as officers of the court. In Georgia, the Supreme Court has expanded the Third Year Practice Act enabling law students who have completed their second year to present evidence and arguments in court under the direct supervision of the attorney. Utilizing students can also potentially recruit needed attorneys as law guardians.

1. Fact Finder/Investigator

2. Legal Representative

3. Case Monitor

"As case monitor, the [law guardian] takes active steps to ensure that the case is moving swiftly through the court process while properly serving the best interests of the child" Duquette, supra at 36. The law guardian should make sure that parties are given timely notice, documents are filed, hearings fall within statutory limits and all information pertinent to the case has been filed. If the child is adjudicated deprived, the law guardian should track until permanency is achieved.

4. Mediator/Conciliator

"As mediator-conciliator, the [law guardian] facilitates a collaborative working relationship among all parties so that problems can be resolved and a generally acceptable agreement can be presented to the court." Duquette, at 36. Serving in this capacity, the law guardian/CASA team attempts to resolve a case as soon as possible, even before the adjudicatory hearing; common thought is that although it is a parent/guardian's right to contest the petition alleging deprivation, and have a full hearing on the allegations, a full-blown trial may not always be in the best interest of the child. Often these hearings require that a child testify against a parent, (not the best of situations for eventual reunification where the parent-child relationship may already be strained), or may require a child to be in the courtroom with the alleged perpetrator, causing further trauma to the child. But see ABA Standards, infra. In order to resolve the case, the law guardian/CASA should hold conferences with parties based on independently gained information, interviews, viewing of videotaped testimony, and other information the team has gathered, and may encourage pre-trial amendment of a deprivation petition in order to facilitate settlement. The CASA coordinator, CASA volunteers, and legal interns play a crucial role in pre-trial negotiations, by providing information regarding home evaluations, psychological/psychiatric reports, relative placement analyses and proposed testimony from witnesses - all invaluable to the law guardian if there is to be a positive resolution. The parents' attorneys must be included in pre-trial discussions. Many of these hearings are unique and quite unlike typical adversarial trials in State or Superior Courts. These civil cases do not necessarily look towards an assignation of blame or culpability. While the law guardian is certainly mindful that parent/guardian's attorneys are required to zealously represent their clients, the law guardian should seek to work with them in order to reach a resolution that serves the best interest of the child. Parents' attorneys and law guardians should explore options other than full hearings, and should openly discuss placement recommendations. They should consider formulating consent orders that may more expeditiously facilitate family reunification, following the completion of realistic and appropriate goals by parents.

5. Information and Resource Broker

VI. Filing of a Deprivation Petition

A. When Must The Petition Be Filed?

In cases where the juvenile court intake officer has chosen to release the child into the custody of his/her parents, a deprivation petition has to be filed with the court within 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 has not been released by either 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 days of that hearing. O.C.G.A. § 15-11-49(e). The petition may have already been filed if DFCS has 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 scheduling the formal adjudicatory hearing on the deprivation petition's merits. This period is shortened considerably when the child is in detention or shelter care. Under these circumstances, the petition must be filed within five (5) days of the detention hearing and the adjudicatory hearing must be held within ten (10) days after the petition is filed. O.C.G.A. § 15-11-39(a). Therefore, if the child is not released, there is a possible fifteen day wait between the informal detention hearing and the adjudicatory hearing on the petition. If the child has been released to his/her 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). Thus, if the intake officer or the juvenile court judge determines that the child's detention is not warranted and the child is released to his/her parent(s), there is a potential ninety day wait between the detention hearing and the adjudicatory hearing. In addition, a judge can continue such a proceeding for good cause. URJC, 11.3. As a law guardian/CASA, it is likely that the majority of your cases will be those in which a 72 hour detention hearing has been held, the judge has found "probable cause" that deprivation exists, and has ordered a petition to be filed by DFCS within 5 days.

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 interest of both the public and the child. O.C.G.A. § 15-11-37; URJC, 4.2. A failure at the trial court level to make such an endorsement is not reversible error when the juvenile court judge has impliedly 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).

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 and filed. 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 DFCS caseworker 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).

B. What Must The Petition Contain?

The information contained in the petition must satisfy the due process requirement of the right of an accused to know the nature of the allegations filed against him/her. This means that 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 of.

Once a petition has been filed, it should immediately come to the attention of the appointed law guardian/CASA. At this stage of the deprivation proceeding, the law guardian/CASA should read and review the petition and ensure that all of the information that has been gathered (e.g., police reports, interview notes, affidavits of effort), and is accurately reflected in the allegations enumerated in the petition. The law guardian/CASA should begin an independent investigation of the complaint, formulating preliminary position as to what is in the child's best interest. Questions that should be answered at this stage include the following:

Realistically, time does not always permit a thorough investigation at such an early stage of the proceeding. Thus, the law guardian/CASA should be mindful that, at this stage, all facts may not have been presented to the court, and one should make recommendations accordingly, even if they are tentative ones. In fact, throughout the entire process, the law guardian/CASA will constantly refine his/her perspective on the case. It may be appropriate to ask that the detention hearing be continued if crucial data has not been provided and an extension of time would permit a thorough and exhaustive compilation of relevant evidence.

Finally, a law guardian/CASA should take the time to thoroughly think through a case in order to effectively present it. For example, if a child has pending delinquent charges, contact with the child's probation officer and/or public defender is necessary. Remember, each case will have a different set of facts and players that will require careful consideration in order to determine the best course of action to take on the child's behalf.

VII. Adjudicatory Hearing on the Deprivation Petition

There are two distinct parts to a hearing on the merits of a deprivation petition - the adjudicatory hearing and the dispositional hearing. The first part, the 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 adjudicatory hearing must be held within ten (10) days of the filing of the deprivation petition if the child is in shelter care and within sixty days (60) of the filing of the petition 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 like the time frame for the 72-hour hearing, the violation of which can result in dismissal without prejudice. Sanchez v. Walker Co. Dept. of Family and Children Services, 237 Ga. 406 (1976). This practice was specifically endorsed by the court in Sanchez. If the parent or guardian of the child does not specifically object to a violation of the statutory time frame without a continuance, 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 sixty 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. 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 in adjusting 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. It should be remembered that an excessive number of continuances can result in the child remaining in foster care for an extended period of time. It is important for the DFCS caseworker to consult with the SAAG representing the department, as well as the law guardian/CASA 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 law guardian/CASA plays a major role at this stage of the proceedings. Pre-trial negotiation is one of the most critical phases of advocacy because a full-blown trial may not be in a child's best interest. A child may have to testify against a parent in a trial causing anxiety and trauma for the child. The experience could further alienate the child from the parent and can create a dynamic that is not conducive to successful family reunification. ABA Standards, supra at C-6, D-6. The law guardian should make all practical attempts to resolve a case prior to the adjudicatory hearing. This would include holding conferences with parties based on independently gained information, interviews, viewing of videotaped testimony and other information the team has gathered. The CASA can play a crucial role in these pretrial negotiations, bringing to the table home evaluations, psychological/psychiatric reports, relative placement analysis and proposed testimony from witnesses, all invaluable to the attorneys if there is to be a successful resolution. Bross and Michaels, at 90. It should be noted that all agreements, including proposed stipulations or admissions, amended language or other consensual proposals must have the approval of the law guardian/CASA.

Pursuant to pre-trial negotiations, the CASA can and should bring to the table information about the family members and family history; relevant historical data; information on reasonable efforts regarding services provided, if appropriate, available or refused; summaries of persons interviewed and documents reviewed; and a summary of the facts which justify his or her recommendations. Georgia CASA Publications: The Role of the CASA Volunteer in Court Proceedings, (1989).

It is here that the mediator role of the law guardian/CASA is most visibly seen. In most cases it would most definitely serve the child's best interests to have all adversarial parties agree on a plan that seeks family reunification (or an alternative permanent plan) prior to entering the courtroom. If, however, an amicable stipulated agreement cannot be reached, the next phase of the process is the adjudicatory hearing, which resembles in all aspects, a full trial.

A. Pretrial Discovery

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 Fourteenth Amendment to the United States Constitution nor the Georgia Constitution require pretrial 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. 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 interrogatories, depositions, admissions of a party to the proceeding, requests for production of documents, and requests for physical and mental examinations of a parent, guardian, custodian, or child. URJC, 7.2. 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 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 forty-eight hours of the filing of the petition. Otherwise, the request should be filed within fifteen days of the filing of the petition. If the child is in shelter or foster care, discovery must be completed within fifteen days of an approval order, but in all other cases it must be completed within thirty 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 days, excluding weekends and holidays, of the date that such discovery is ordered to be completed by the court. URJC, 7.3. Responsive pleadings are encouraged in deprivation matters but they are not required by the rules. URJC, 7.6.

There are several issues related to discovery of which one should be aware. 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. The court held that an attorney could not interview an adverse party without the presence of counsel. In the Interest of L.L.W., et al., 141 Ga. App. 32 (1977). 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, O.C.G.A. § 49-5-40(b) states that "each and every record concerning the report of child abuse" is confidential and access to such records is prohibited. The Georgia Code allows for a judge to access 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 law guardian/CASA's relationship with DFCS workers may be such that caseworkers will readily and voluntarily share information, understanding that each player's role is not necessarily adversarial, but that it involves gathering as much information as possible to formulate a recommendation to help the child. However, the relationship can be somewhat guarded requiring diligent and assertive efforts to get the necessary information.

For parent attorneys, the Georgia Court of Appeals 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 the Department of Human Resource's 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 by statute. The court specifically looked at the code section O.C.G.A. § 49-5-41(a)(2). Ray v. Dept. 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. There the juvenile court also made the mistake of denying the parents any access to departmental records and files. The court said that if the files contained a matter which should have remained confidential, those records could have been removed from the casefile prior to providing it to the parents' attorney. In Re M.M.A., 166 Ga. App. 620 (1983). 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. Discovery is applicable to juvenile court proceedings within the confines set by the trial court judge. There was no evidence in this case that the child's parent was denied access to documents that were favorable or material to his case. In Re C.M., 179 Ga. App. 508 (1986). One should remember that discovery requests are granted at the discretion of the juvenile court judge. What one judge may consider relevant for the determination of an issue before the court may differ from that of another judge.

B. Summons and Necessary Parties to the Proceedings

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 will include the parents, guardian, custodians, law guardian, Court Appointed Special Advocates, DFCS caseworkers, and any other persons who appear to be necessary parties. O.C.G.A. § 15-11-39(b). The parents of a child born in wedlock or legitimated are proper parties and entitled to the substantive and procedural protections of the Georgia Juvenile Code. Id. at Ch. VI, p. 2. The mother of a child born out of wedlock is a necessary party and must be provided with a summons and a copy of the petition. O.C.G.A. § 15-11-96, to be discussed later in the chapter on Termination of Parental Rights, has often been interpreted to give the father of an illegitimate child the same procedural protections in a deprivation action. 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 caseworker and this is common practice in many jurisdictions throughout the state. If a party lives within the state and can be found; the summons may be personally served upon him/her within twenty-four hours of the hearing. If a party lives 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 method, but one 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. A copy of the petition must be attached to the summons. Therefore, if this procedure is followed, the petition must be completed before the 72-hour hearing.

If, after reasonable effort, a party cannot be found, the court may resort to service by publication, which usually means public notice in a local newspaper. O.C.G.A. § 15-11-39.1(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. 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. 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 temporary order pending the final hearing in juvenile court. The findings of fact and the dispositional order made at the provisional hearing will become permanent at the final hearing unless the party served by publication appears. The child in question must be before the court at the provisional hearing. O.C.G.A. § 15-11-39.2(a)(3). If the party served by publication does 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).

C. Conduct of the Hearing and the Standard of Evidence

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. For constitutional reasons, this presumption is not binding and the press or plaintiff must be given an opportunity to show that the neither the state's interest nor the juvenile's interest in a closed hearing is overriding in comparison to the public's interest in a public hearing. The burden is on the press or the 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. Florida Publishing Company v. Morgan, 253 Ga. 467 (1984). 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, 167 Ga. App. 489 (1983).

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 his or her attorney is present and has the ability to cross-examine the child. Spence v. Levi, 133 Ga. App. 581 (1974). Bear in mind that anytime a child is interviewed, even by the court itself, the law guardian should request to also be present or to have the CASA be present.

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. In a situation where a judge assumes the role of 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. Moss v. Moss, 135 Ga. App. 401 (1975). 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. There must be specific findings of fact which the judge relies on 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 not merely a recitation of the legal requirements for a finding of deprivation. In the Interest of D.S., 212 Ga. App. 203 (1994).

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 that 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.

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 under O.C.G.A. § 24-9-5. Hunnicutt v. State, 194 Ga. App. 714 (1990). In order to testify as a competent witness, a child must normally be able to understand the "nature" of the oath to tell the truth, the whole truth, and nothing but the truth. O.C.G.A. § 24-9-5(a). However, in all cases in which a child is involved in a deprivation action, that child is deemed competent to testify in court. O.C.G.A. § 24-9-5(b). It is NOT necessary to establish competency and/or credibility of the child who is the subject of the proceedings. Any other child witnesses that are not the subject of a deprivation petition must meet normal competency requirements.

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). 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 or shelter care during the period before the continued 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). A common third option used by many juvenile courts but not provided for in the Juvenile Code is to suspend the proceedings for a given period of time during which the child's caretaker is permitted to carry out the court's stated objectives.

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:

Working with Child Deprivation Cases in Georgia's Juvenile Courts

A Reference Manual for Attorney and Volunteer Guardians Ad Litem