Principal Developers:
Contributors:
This manual was written to provide informal information about the process of child deprivation cases. It is not to be used as the official authority on law and procedure.
Funded by the Georgia Supreme Court Child Placement Project
November 1997; Revised June 2001; Updated December 2004
The information contained in this manual is not intended to teach the law regarding child abuse and neglect proceedings in juvenile courts. It is designed to serve as a checklist and reference guide rather than as an authority on the law. This manual will provide attorneys with an outline of how a "typical" case may progress from start to finish, including what decisions need to be made at each proceeding, what participants should be involved at each stage, suggestions on effective advocacy, and where to find more information. This area of the law is changing rapidly, so detailed discussion of statutory or case law is limited; lawyers are advised to review the law every time they work on a case.
An incident of child abuse or neglect officially becomes a juvenile court case when the petition is filed. This is not the first action that occurs, however; a deprivation case starts long before the court obtains jurisdiction over the matter. A "typical" deprivation case begins with a call to the county Department of Family and Children Services (DFCS). Throughout this manual the term "'typical' deprivation case" is used to describe a deprivation proceeding in which DFCS is the petitioner and the parents are the respondents. This term is used as shorthand for the type of case to which the code and rules can most easily be applied.. This call may be made by a neighbor, police officer, mandated reporter (see O.C.G.A. § 19-7-5), or any person having knowledge of or information about mistreatment of the child. (see O.C.G.A. § 15-11-38).
The call to DFCS is directed to the Child Protective Services (CPS) Unit, which is charged with investigating allegations of abuse and neglect. A decision is made within that unit whether to further investigate the allegation. If further investigation is needed, a CPS worker will be assigned to investigate and determine whether the allegation is confirmed, unconfirmed, or unfounded. If it is confirmed or unconfirmed, CPS may provide support services to the family to prevent the problem from escalating to a level necessitating removal of the child from the home. If there is an immediate threat of harm to the child, a law enforcement officer or a duly authorized officer of the court has authority to remove the child from the home. As soon as possible after removal (if court authorization was not obtained in advance), an intake officer of the juvenile court must be contacted. The intake officer will make the determination (usually over the phone), based on the facts presented, whether the child should be detained or released.
If the child is removed from the home and the intake officer approves the removal, a court hearing must be held within 72 hours of the time the child is removed, unless the 72 hours ends on a week-end or legal holiday, in which case the hearing will be held on the next business day. The purpose of this hearing is to determine whether the child can be safely placed back in the home and whether reasonable grounds exist to believe that the allegations in the complaint or petition are true.
If, at the 72-hour hearing, the court decides that the child must remain out of the home, a deprivation petition must be filed within five days of the 72-hour hearing. The petition is the formal commencement of the deprivation proceeding. If the court decides that it is safe for the child to be released to his or her parent or guardian, but DFCS believes there is a need to file a deprivation petition, the petition must be filed within 30 days of the 72-hour hearing.
Before a petition can be filed, an authorized officer of the court must determine that filing a petition is in the best interest of the public and the child. In most cases the petitioner files a "complaint" and the court accepts the complaint and "approves" the filing of a petition. Once a petition is filed, an adjudicatory hearing must be set within ten days. Juvenile court "trials" occur in two phases: the adjudication is the fact-finding phase (the "trial") and the disposition is the phase in which the placement and plan for the child are decided ("sentencing"). Although the code requires the adjudication to be set within ten days, it does not require the case to actually be heard within ten days. A continuation may be granted at the judge's discretion.
The adjudicatory hearing can only be held after proper notice to all necessary parties. If, at the adjudicatory hearing, the court determines by clear and convincing evidence that the child is deprived, the court will hold a dispositional hearing. As a practical matter, this hearing is usually held within the same proceeding as the adjudication, but it can be held separately for a variety of reasons. If the court does not find that the child is deprived, the case is dismissed. Even with a dismissal, CPS may continue to maintain an open CPS case on the family, providing services and monitoring the family.
Even before the court hearing, DFCS and the family are supposed to be working together to resolve whatever problems may have precipitated the petition. Within 30 days of taking the child out of the home, DFCS must file a case plan with the court which describes what the problems are, how they will be addressed by the parents and by DFCS, and what the plan for the child is (short-term placement, long-term placement, services to be provided, etc.). If the disposition occurs before the 30 days has expired, DFCS may present a case plan at the dispositional hearing or may be ordered to develop one. Some courts set the date for the case plan meeting at the court hearing and order the parents to attend.
DFCS may decide that the situation is so egregious that the child can never be placed back in the home, regardless of what services may be provided or what actions may be taken by the parents. In that situation DFCS will file a non-reunification plan instead of a case plan. O.C.G.A. § 15-11-58 (commonly referred to as Senate Bill 611, the legislative bill that amended this code section to allow the filing of non-reunification plans). The non-reunification plan must describe what the problems are, why the problems will never be resolved, and what the short-term and permanent plans for the child are. If a non-reunification plan is filed, a hearing must be held on the plan within 30 days of the date it is filed, regardless of the timing of the adjudicatory hearing.
Assuming that deprivation is found and a case plan is presented at the disposition hearing, the court may decide to give custody of the child to the parents, to DFCS or to any other custodian of the child. O.C.G.A. § 15-11-55. If the court gives custody to anyone other than DFCS, the court may do so subject to conditions or limitations ordered by the court. If the court gives custody to DFCS, the court may not tell DFCS where to place the child, but the court may at any time review the placement DFCS has chosen and may order DFCS to change the placement. O.C.G.A. § 15-11-55(c).
If the child is placed in the custody of DFCS, the order awarding such custody will expire 12 months from the date the child was removed from the home. The court, or a Citizen Review Panel, must review the child's case within 90 days of the dispositional order, but not later than 6 months from the time the child was originally taken out of the home. Such reviews must occur every six months thereafter, as long as the child remains in foster care and is not free for adoption. If the parents' rights to the child are terminated, such reviews are only required annually and are conducted by the judge.
As the 12 month order nears expiration, DFCS must decide whether the conditions in the home have been remedied to the point at which it is safe to return the child to the home. If DFCS thinks the parents are not yet able to safely care for the child, but that that more time and more services will lead to the return of the child to the home, DFCS may file a motion to extend custody. DFCS may also file a motion to extend custody along with a non-reunification plan if DFCS believes that nothing will lead to the return of the child to the home, but also believes that termination of the parents' rights is not appropriate at the current time. In the alternative, DFCS may file a petition to terminate the parents' rights to the child.
Laws and policies are changing to focus on placing children in permanent homes as quickly as possible. This is obvious in the statutory changes providing for time-limited orders and frequent court reviews, and is becoming more noticeable in practice. Courts want to know early in the process what the long-term permanent plan for a child is and are allowing parents less and less time to demonstrate their willingness to properly parent their children. When parents cannot demonstrate substantial progress toward responsible parenthood within a year or less, courts are becoming less reluctant to free children for adoption so that they can grow up in a permanent home. Participants in these proceedings should keep in mind that a "permanent home" for a child is not limited to the birth home or an adoptive home; a permanent placement may take many forms, including: with parents, with a guardian, in long-term foster care while maintaining a relationship with the parents, in an independent living program, with an adoptive family.
"Permanency" is a misleading word in the deprivation context because even though permanency may be achieved, the court case may remain open for years. This can cause confusion regarding the extent of an attorney's involvement in these cases. Actual closure is achieved in a few situations. If the child is returned to the home, the juvenile court case is closed (although it may continue with some supervision for a period of time before being closed). If the child is adopted, the case is closed. If a temporary custody order is allowed to expire, the case is technically closed because the court loses jurisdiction. When a child turns 18 without requesting continued services, the case is closed. Most other outcomes mean that the case continues as an ongoing case within the juvenile court system.
There are countless variations on the "basic deprivation case" fact scenario described above. The above fact pattern, however, describes the flow of a deprivation case as shown on the following
[INSERT FLOW CHART OF A DEPRIVATION CASE]
Just as there are many variations of a basic deprivation case, there are many variations of the forum in which these cases are brought. This manual attempts to address issues applicable to all juvenile courts in Georgia, while respecting the fact that practice varies widely with each court. Georgia does not have a unified court system and currently does not provide state funds for the operation of juvenile courts. O.C.G.A. § 15-11-18 provides for the establishment of a juvenile court in each county and calculates the amount the state shall contribute toward the juvenile court judges' salaries, but funds for the state contribution to these courts have never been appropriated. As a result, the burden of providing for the protection of children through the court system has rested on the individual counties. In 1998, each of the 159 counties in Georgia has addressed this challenge in a manner best suited to each jurisdiction, resulting in 22 full-time juvenile courts, 42 counties with cases heard by part-time juvenile court judges, 37 counties with cases heard by an associate juvenile court judge or other designee under the supervision of a superior court judge, and 58 superior court judges hearing juvenile court cases. After the recent passing of the juvenile court funding bill HB 182, 45 of the 48 circuits are applying for state funding; of the 14 circuits that had superior court judges doing juvenile court, all but 2 have appointed one or more juvenile court judges for a total of 17 new judges since prior to the passing of HB 182. Of those, 11 are part-time and 6 are full-time; five part-time judges went full-time; two circuits are considering the appointment of another judge, bringing the number of judges in those circuits to 3; which would be a first in Georgia for a circuit to have more than 2 judges(excluding associates of course). (Information provided by CJCJ, Nov. 2001). As of January 2005, there are 149 members on the Council of Juvenile Court Judges in Georgia: 49 full-time juvenile court judges, 42 part-time juvenile court judges, 30 associate juvenile court judges (full and part-time), 6 superior court judges who exercise juvenile court jurisdiction, 17 pro tempore judges, and 5 senior judges. (CJCJ website http://www.georgiacourts.org/councils/cjcj/index.htm)
As expected, local procedures (DFCS and court) vary considerably depending on the jurisdiction. The juvenile courts, the Supreme Court of Georgia, and various state agencies are working to improve consistency in the way deprivation cases are handled. This manual is one result of those efforts.
In addition to knowing how the juvenile court system is configured, it is important to know how juvenile court cases are related to cases in other courts. The following is a list of actions in the juvenile court or other courts which may be related to ongoing juvenile court deprivation cases:
The development of the juvenile court, from the first child abuse "case" brought by the Society for the Prevention of Cruelty to Animals, to the "first" juvenile court in Chicago, to the current debate surrounding the abolishment of the juvenile court altogether, is the subject of many excellent articles and books. For this introductory section, a brief explanation of why children are handled in separate courts will suffice. Readers are encouraged to explore this topic more fully on their own.
The original juvenile courts were developed along what has come to be called a "treatment model." The belief underlying this model is that children committing improper acts are not "criminals" but are children with problems who need "treatment and rehabilitation." The juvenile court was established so that children could receive services toward this end under the "supervision" of the court using its power as parens patriae to order such intervention. The juvenile court's involvement in the lives of children who are abused and neglected has gone through several phases just as the court itself has. The overarching purpose of the court has remained constant: the protection of children. However, the court's approach to protecting children has shifted. For many years the goal of child protective agencies has been to put families back together (reunification). Courts were trying to treat and rehabilitate entire families, not just individual children. In recent years the focus of courts, social service agencies, and child advocates has shifted toward providing for the individual needs of the children over the needs of the family unit. This shift has culminated in the passage of the federal Adoption and Safe Families Act of 1997 (P.L. 105-89), in November, 1997. This law modifies existing federal legislation regarding foster care so that reasonable efforts to reunify families are not always required and the provision of reunification services is limited to the 15 months following the child's placement in foster care. Additionally, if a child has been in foster care 15 out of the most recent 22 months, states are directed to file petitions to terminate parental rights unless the state has placed the child with a relative; the state has documented a compelling reason for determining that terminating parental rights would not be in the best interests of the child; or the state has not provided appropriate reunification services, if such services were warranted. Finally, the law requires a permanency hearing to be held after a child has been in foster care for 12 months.
In recent years, and particularly since the appropriation of federal funds to examine this issue (Omnibus Budget Reconciliation Act of 1993, P.L. 203-66), there has been increased involvement in the national movement to improve court practice in child abuse and neglect cases. Toward this end, the National Council of Juvenile Court and Family Court Judges has developed and published RESOURCE GUIDELINES, Improving Court Practice in Child Abuse and Neglect Cases, a manual describing procedures and resources which can assist judges in making the critical determinations necessary in these types of cases. Throughout this manual the RESOURCE GUIDELINES will be referenced as GUIDELINES. The key principles underlying the guidelines are:
GUIDELINES, pp. 12-14.
As independent as Georgia's juvenile court system may appear to be, state laws addressing deprivation cases are heavily influenced by federal law. The Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272) imposed many requirements on state juvenile courts receiving federal money. These requirements include evaluations of social services agencies' reasonable efforts to prevent removal of children and to reunite families; periodic reviews of foster care cases; adherence to timelines for permanency planning decisions; procedural safeguards for placement and visitation. GUIDELINES, p. 11. The Child Abuse Prevention and Treatment Act of 1974 (P.L. 93-247) (CAPTA) also heavily influences state handling of child abuse and neglect cases. This law requires states receiving federal funds for the prevention of child abuse and neglect to provide a GAL for every child involved in such proceedings. In 1993, Congress passed additional legislation affecting juvenile courts. In the Omnibus Budget Reconciliation Act of 1993, Congress allocated funds for grants to states that agreed to study how their courts handled abuse and neglect cases and to implement improvements in the process. P.L. 203-66; 45 C.F.R., Part 92. Georgia is participating in this national project, referred to as the Court Improvement Project. The Supreme Court of Georgia created the Child Placement Project within the Administrative Office of the Courts to conduct the study and implement the resulting recommendations. This manual and the collaborative cross-training are both products of this project.
A new piece of federal legislation which will again reshape some of Georgia's laws was enacted in November, 1997. The federal Adoption and Safe Families Act of 1997 (P.L. 105-89) changes some of the primary requirements of P.L. 96-272. The first major change contained in (P.L. 105-89) eases requirements that social service agencies make reasonable efforts to preserve and reunify families. Reasonable efforts no longer need to be made in certain instances, including when a parent has subjected the child to "aggravated circumstances" and when the parent's rights to another child have previously been terminated. If reunification is the initial goal, family reunification services are to be provided, but they are now called "time-limited family reunification services" and only need to be provided for the 15 month period following the child's placement in foster care. If a state determines that reasonable efforts need not be made, a permanency hearing must be held within 30 days.
Another major change is a shift in philosophy regarding the most appropriate placement for a child. Previously, the statute required reunification efforts to the greatest extent possible before grounds for termination would be found to exist. The emphasis is now on finding a permanent home for the child as early in the process as possible. Toward this goal, the statute now requires states to file for termination or join in a termination action certain circumstances exist. The statute provides that if a child has been in agency foster care for 15 of the most recent 22 months, if the child is an abandoned infant, if the parent has killed another child or has seriously injured the child or a sibling, the state shall file a petition to terminate the parental rights, unless:
A third major change is the way time in foster care is measured. The old statute measured time from the child's initial placement. The statute now reads that a child is "considered to have entered foster care on the earlier of the date of
the first judicial finding that the child [is deprived (i.e. adjudication)], or the date 60 days after the date on which the child is removed from the home."
A fourth change is a new requirement that foster parents, preadoptive parents, or relatives providing care for a child must be provided with notice of, and an opportunity to be heard in, any reviews or hearings concerning the child. Such notice does not mean that any of these people become a party to the proceeding solely on the basis of having notice and an opportunity to be heard.
Another change reflects the shift in emphasis from reunification to permanency. The law previously provided for a dispositional hearing after a child was in foster care for 18 months. The purpose of this hearing was to determine the final disposition of the case. The law now requires a permanency hearing after the child has been in foster care for 12 months (using the new calculation for time in foster care). The purpose of the permanency hearing is to finalize 'the permanency plan for the child.
In addition to child welfare legislation, there are many federal laws which affect juveniles in deprivation cases, including but not limited to: Individuals with Disabilities Education Act, 20 U.S.C. § 1400(c); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); Americans With Disabilities Act, P.L. 101-336; Personal Responsibility and Work Opportunity Act of 1996; and Supplemental Security Income laws (42 U.S.C. § 1382 and 20 C.F.R. § 416.900 et. seq.). While each of these pieces of legislation is a specialized area of practice in itself, lawyers in juvenile court should, at a minimum, know when these federal laws are implicated in a juvenile court case. Recognizing that a federal law may be applicable in a situation, knowing where to find the law, and knowing who specializes in that area are useful tools for effective advocacy.
This chapter will describe the primary persons involved in deprivation proceedings and will answer the following questions:
The juvenile court is similar to other courts in that each case involves "parties." However, the definition of "parties" goes beyond the "traditional" black letter definition which generally includes only plaintiff and defendant. Proper parties to a deprivation action include the child, parents, guardians, a legal caretaker or other custodian of child, guardians ad litem, and other "proper or necessary parties" including CASA, DFCS and DHR workers, as well as counsel for the above, are proper parties in deprivation cases. O.C.G.A. § 15-11-39(b).
As in other courts, the judge is the person who presides over the proceedings and issues the rulings. However, the judge in deprivation proceedings is much more than that. The judge is considered the gatekeeper of the deprivation process because "juvenile and family court judges, the gatekeepers of our nation's foster care system, must ultimately decide whether families in crisis will be broken apart and children placed in foster care or placement can be safely avoided..." (Endorsement of RESOURCE GUIDELINES by the Conference of Chief Judges, August 3, 1995)
The judge has many purposes in addition to presiding over the court proceedings. Unlike other courts, in juvenile court the judge may be involved in a case for years, and during those years the judge serves as the "case manager," in the sense that the judge makes the decisions regarding what is happening in each stage of the case. As a "case manager," the judge must ensure that DFCS complies with state and federal requirements and that cases are processed within the appropriate time frames. Most importantly, final responsibility for the protection of each child rests with the judge making the decisions.
Juvenile court judges have broad discretion in performance of their many duties, some of which are listed below:
One note about the judge: Juvenile court has a tendency to be less formal than other courts. This informality can be misleading because attorneys may be less rigid in curtailing their discussions of cases. Attorneys should be especially conscious that they do not violate any client confidences in discussions (with other parties or the judge) to "work out a plan" or in any other situation, and that casual conversation with judges does not amount to ex parte communications about any pending case matters.
The child is the central figure in a deprivation case and is often referred to as "the subject of the proceedings." The involvement of the child in the court proceedings depends in part on the age and developmental abilities of the child. It also depends on the nature of the allegations and the litigiousness of the proceedings.
It is difficult to describe the child's "purpose" in a case other than to say the child is to be protected. The child is involved because everything that happens is directed toward the court ordering a 'solution' that is in the best interests of the child, including protection from physical and emotional harm, and placement in a permanent home.
A child is generally considered a "party" to a deprivation proceeding, although debate continues to surround this issue. (See O.C.G.A. § 15-11-6 and O.C.G.A. § 15-11-9). When the child is considered a party to the proceedings, the child has the same rights with respect to deprivation proceedings as other parties, including those listed below:
When children are involved, their rights must be upheld with respect for their developmental age and abilities.
In the majority of Georgia jurisdictions, attorneys who represent children are appointed from lists of attorneys willing and qualified to take such appointments. More and more juvenile courts had been requiring that attorneys provide certification of training in juvenile court proceedings as a qualification for appointment to this list. Attorneys should check with individual courts on this matter. In some counties the juvenile court may enter into a contract with a firm or individual attorneys to represent all children in deprivation proceedings. A few counties have attorney guardians ad litem who work for the court full time representing all the children in deprivation proceedings.
However, the appointment of attorneys for children will likely change because the federal legislation that linked federal funding to the appointment of a GAL in child abuse and neglect judicial proceedings was recently amended. The Child Abuse Prevention and Treatment Act (CAPTA), P.L. 93-247, now requires that the GAL appointed, whether it is a Court Appointed Special Advocate (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." However, in order to continue to receive federal funding, Georgia's juvenile courts will need to make sure that any attorney, CASA, or other GAL appointed to represent a child is properly trained for their role.
When an attorney is appointed to represent a child in a deprivation case in Georgia, the attorney is usually serving as a guardian ad litem for that child, in which case the attorney is appointed as an officer of the court to represent the best interests of the child. (See O.C.G.A. § 15-11-9). However, there is a general understanding in most courts that even if the attorney is representing the best interests of the child, the attorney will convey the child's wishes to the court, or will provide for the child to do so him/herself.
The role of the guardian ad litem, hereinafter "GAL," is addressed extensively in the Attorney and Volunteer Guardian Ad Litem Manual in Section II. This section addresses a different role of the attorney: that of attorney as counsel. Attorneys are rarely asked to perform this role in deprivation proceedings. An attorney serving as counsel for a child advocates for the client's wishes rather than the for what is in the best interest of the child. This can be a difficult role for many attorneys who may believe that what the child wants is not the best thing for the child in the long run. An excellent guide to the duties of an attorney representing a child client can be found in the ABA Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases. (Hereinafter cited as Standards, adopted by the ABA in 1996). The standards define a child's attorney as "a lawyer who provides legal services for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult client." (Standard A-1). One item emphasized in the ABA Standards and in other practice manuals is that attorneys must provide "developmentally appropriate" representation, meaning "that the child's attorney should ensure the child's ability to provide client-based directions by structuring all communications to account for the individual child's age, level of education, cultural context, and degree of language acquisition." (Standard A-3).
The two situations in Georgia that require an attorney serving as counsel both arise with regard to termination of parental rights hearings. O.C.G.A. § 15-11-98 requires the appointment of an attorney as counsel "in any proceeding for terminating parental rights...." O.C.G.A. § 15-11-58(k) indicates that when DFCS has not filed a petition for termination of parental rights but the guardian ad litem determines that a termination of parental rights is appropriate, the GAL is authorized to file such a petition. In re J.S.C. clarifies that once the petition is filed the GAL becomes the attorney for the child and a new GAL must be appointed. In re J.S.C., 182 Ga. App. 721 (1987).
A usual occurrence in Georgia is for an attorney to be appointed to serve as both GAL and counsel for the child. Opinions vary as to whether this dual role is inherently conflicting. Attorneys serving in this dual capacity should remain mindful of the possibility of a conflict, and should remember that if they foresee a conflict, they may step into the role of attorney as counsel and may request the appointment of a separate GAL. Dawley v. Butts Co. DFCS, 148 Ga.app. 815 (1979). When an attorney requests the appointment of a separate guardian ad litem the attorney need not disclose the facts supporting the request for an appointment; a statement that a conflict will arise if the attorney continues to represent the child in a dual capacity, or that there is a need for the child to be represented by both an attorney and a guardian ad litem, should suffice.
The following list of duties applies to all attorneys representing clients in juvenile court. (This list is compiled from a variety of sources including RESOURCE GUIDELINES, ABA Standards). This list contains common-sense elements of the practice of law in most subject areas, but is worth including in this manual because the less formal environment of the juvenile court and the age of the clients tend to mislead attorneys into thinking that their obligations as attorneys representing juvenile court clients are substantially different than their obligations as attorneys representing clients in other forums. Some of the duties may only apply to children or parents, but in the interest of space, this list is only printed once in this manual.
For additional guidance on the role of attorneys, see IJA-ABA Juvenile Justice Standards Annotated: A Balanced Approach, Standards Relating to Counsel for Private Parties; and ABA Standards of Practice for Attorneys Who Represent Children in Child Abuse and Neglect Cases. Also, the Code of Professional Responsibility found at the back of the State Bar Directory and Manual are applicable to attorneys in juvenile court in the same way that they are applicable to attorneys in other courts. It is wise to review these standards and cannons periodically.
In the majority of Georgia jurisdictions, attorney guardians ad litem are appointed from lists of attorneys willing and qualified to take such appointments. More and more juvenile courts are requiring that attorneys provide certification of training in juvenile court proceedings as a qualification for appointment to this list. Attorneys should check with individual courts on this matter. In some counties the juvenile court may enter into a contract with a firm or individual attorneys to represent all children in deprivation proceedings. A few counties have attorney guardian ad litems who work for the court full time representing all the children in deprivation proceedings. A guardian ad litem may be a lay person (non-attorney) who is appointed as an officer of the court to represent the best interests of the child.
GALs may also be non-lawyers. Georgia CASA develops new CASA programs and supports 41 existing local CASA programs that currently serve 96 counties. (Georgia CASA, October 2004). CASA is a national program in which volunteer citizens are specially trained to represent the best interests of children in juvenile court abuse and neglect proceedings. After completing 40 hours of training, CASAs become sworn officers of the court. A complete discussion of the role of CASAs and the role of GALs can be found in the law guardian section of this manual. The structure of CASA programs varies in each county. In some courts CASAs participate in court as witnesses; in some courts CASAs are represented by counsel; in some courts CASAs work closely with the GAL attorney and submit a written report to the court but do not participate in court proceedings; and in some courts CASAs actively participate in the court process.
The Guardian ad Litem or CASA is "an officer of the court who is appointed to protect the child's interests without being bound by the child's expressed preferences." (ABA Standard A-2).
A complete discussion of the duties of a Guardian ad Litem or a CASA are found in the Guardian Ad Litem Manual at Section II. The list of duties found under "Child's Attorney" is applicable, with modification, to attorney guardians ad litem just as it is to other attorneys in juvenile court.
In deprivation cases the terms "mother" and "father" become much more complicated than in everyday life. There are fewer mutations of mother than of father. A biological mother is the female who gives birth to a child. A "legal mother" is the female who is either the biological or adoptive mother of the child and who has not surrendered or otherwise lost her parental rights to the child. O.C.G.A. § 15-11-2(10.2).
Fathers can be legal fathers, biological fathers, or putative fathers. The words attached to "father" are more than merely descriptive; they define the rights of the father with regard to custody of the child.
A biological father is the man who is genetically linked to the child. Following the 1997 legislative session, a man whose sole connection to a child is genetics no longer has legal rights to the child. The biological father must take action to become a legal father before his rights to custody (including notice of related proceedings) take effect. A biological father has the right to notice of termination proceedings, but only under certain circumstances, discussed under "termination of parental rights" and in the law guardian manual.
If the father does not pursue his legitimation petition to finality or if the court concludes the biological father is not the really the biological father, the man will lose all rights to the child. However, at the same time the legislature placed more responsibility upon biological fathers, it made the process of legitimating a deprived child less complicated. O.C.G.A. § 15-11-28(e) was amended to provide the juvenile courts with concurrent jurisdiction with the superior courts to hear legitimation proceedings if the matter is transferred to the juvenile court or if there is a pending deprivation proceeding involving the child in question.
A "legal father" is a male who:
All of these constitute a legal father so long as he has not surrendered or had his parental rights previously terminated.
O.C.G.A. § 15-11-2(10.1)(A-E).
A "putative father" is a male who is named as the father of a child by the biological mother, or who declares himself the biological father of a child, but for whom paternity has not conclusively been established. Once paternity is established, the putative father becomes the biological father.
It is possible for a single child to have more than one putative father, or even to have a legal father and a putative or biological father. As can be seen in the definition above, a legal father does not need to prove paternity to obtain the status of "legal father." Each of the fathers who are entitled to receive notice of deprivation proceedings is also entitled to court-appointed counsel if he is indigent. Juvenile courtrooms can get crowded when the parentage of a child is in dispute.
Most parents in deprivation proceedings would probably say that their goal in juvenile court proceedings is to get their children back. The job of the attorney representing the parent is to help the parent achieve this goal. As the client, the parent is to actively assist the attorney in representing the parent.
In addition to the rights parents have as parties (see listing of rights of children, above), parents have constitutionally protected rights to parent their children, some of which are mentioned below:
Each parent, guardian, and custodian, may have his or her own attorney. "If the interests of two or more parties conflict, separate counsel shall be provided for each of them." (O.C.G.A. § 15-11-6(b)).
In the majority of Georgia jurisdictions, attorneys who represent parents are appointed from lists of attorneys willing and qualified to take such appointments. More and more juvenile courts are requiring that attorneys provide certification of training in juvenile court proceedings as a qualification for appointment to this list. Attorneys should check with individual courts on this matter. In some counties the juvenile court may enter into a contract with a firm or individual attorneys to represent all parents in deprivation proceedings.
The first rule for an attorney in juvenile court is to know who the attorney represents. This sounds basic, but there are many misconceptions about the purpose of juvenile court and about the parties in juvenile court. An attorney for a parent is bound to zealously advocate for the rights and interests of the parent. Some attorneys have difficulty with this role because they believe the purpose of juvenile court is to protect children and that all attorneys are in court to serve that ultimate purpose. It may help to remember that the juvenile court is a forum in the adversarial system. "In the final analysis, if you work to ensure the integrity of the judicial process, you ultimately safeguard the interests of the child." Representing Parents in Child Protection Cases, Lisa A. Granik, page 4.
No matter how casual the proceedings may seem, or how easy it may appear to "work things out" for the best interests of the child, the ultimate sanction the parent faces is the permanent dissolution of his or her parental relationship with his or her child. Even a "simple case" of neglect may lead to serious consequences which cannot be predicted.
A list of duties of the attorney can be found under "Child's Attorney," above. With some modification this list is applicable to all attorneys representing clients in juvenile court.
Attorneys representing parents should be aware of the potential for conflicts when representing parents. Sometimes, in what appears to be a "simple case," one attorney is asked to represent both parents in a deprivation proceeding. Keep in mind that even when the parents appear to be a unit (i.e. both named in a single petition, both have same "story"), they are separate individuals being named as individual respondents and although the case may appear to be "simple," you are, in effect, agreeing to represent co-defendants. Before accepting representation of two individuals review the Code of Professional Responsibility for the Georgia State Bar, especially those discussing "Interests of Multiple Clients." Also see IJA-ABA Juvenile Justice Standards Relating to Counsel for Private Parties, 3.2 Adversity of interests.
The DFCS caseworker, in consultation with a supervisor, is the person who makes the determination whether to file a deprivation petition. The allegations are reviewed by DFCS' attorney to ensure that they are legally sufficient to support a claim. The DFCS worker involved in the case may be a Child Protective Services (CPS) worker who made the initial home visit, s/he may be the placement worker who was assigned to the case after the child was removed from the home, or s/he may be a supervisor. Several different case workers may be involved in a single deprivation case because the expertise of each is necessary at different proceedings. For example, the CPS worker who assessed the conditions in the home and made the decision that they were unsafe for the child is the appropriate worker to testify at the 72-hour hearing to determine whether the child should remain out of the home until the full hearing. However, the CPS worker may be unnecessary in the review process because that worker may not have had contact with the child after the initial emergency placement. Sometimes the appropriate DFCS worker cannot be in court at the time of the hearing and another worker is sent instead so that a DFCS representative is available. If this worker does not have personal knowledge of the child or the family, this worker may not be able to testify regarding the case.
DFCS workers are involved in juvenile court proceedings because they are state agents charged with protecting children who are abused or neglected. The DFCS worker's goal is to find a safe permanent placement for the child as quickly as possible. This goal is not as clear as it sounds however, because DFCS must be making reasonable efforts to provide services to the family, and, at the same time, must be "collecting evidence" to support termination of parental rights, should that become necessary.
The rights and duties of DFCS workers with regard to court proceedings are similar to those of other parties. The following information regarding the duties of DFCS workers in general may be more helpful to attorneys representing parents or children.
The role of DFCS workers as a whole is currently in flux as Temporary Assistance to Needy Families (TANF) policies are being implemented. TANF is Georgia's plan for implementing the provisions of the Personal Responsibility and Work Opportunity Act of 1996. (P.L. 104-193). There will probably be less change in the roles of workers assigned to deprivation cases than in other areas, but the responsibilities of these workers will change as the services they are able to provide change based on TANF.
Child Protective Services (CPS) is the unit charged w/ investigating allegations of child abuse and neglect. When a report is made to DFCS, a CPS worker is assigned to investigate the allegations. The CPS worker may decide whether the allegation is confirmed, unconfirmed, or unfounded. The CPS worker may visit the home directly or may visit the child(ren) at school. If the decision is made to take the child into protective custody, the case is assigned to a placement worker. This worker is responsible for developing a 30-day case plan with the parent(s). The role of this caseworker is becoming more critical because decisions regarding the permanent placement of the child are being made more quickly. O.C.G.A. § 15-11-58 now authorizes DFCS to submit a nonreunification plan at the start of a deprivation case. DFCS workers must be highly skilled to make a decision this serious and this permanent so early in the process.
The placement worker is the person who will likely develop the case plan and will work with the family to provide needed services to the parent(s) and child(ren). This worker will participate in periodic reviews of the case and, with the assistance of a supervisor, will ultimately make the decision whether the parents' rights should be terminated. DFCS is currently modifying the duties of caseworkers. Structured decision making, a method by which DFCS workers will determine what services can and should be provided to a family, may be implemented in the future. Courts and attorneys need to be aware of internal DFCS policies because those policies establish the parameters of DFCS services and of workers' duties. For example, it would not be a wise use of time for an attorney for a parent to develop a case plan to present to DFCS that requires the provision of certain services if DFCS policy no longer allows or requires such services to be provided.
It is to an attorney's advantage to know the roles and responsibilities of DFCS workers. Knowing which worker to ask for what information or assistance will increase the efficiency of the attorney and the provision of services or answers to the client. Knowing which workers are the keepers of which information also assists with trial preparation. Because of the structure of DFCS, an attorney must know which workers to question about what. A CPS worker's knowledge will rarely extend beyond the time the child was placed in foster care, and since that worker made the initial determination that the child was at risk, that worker will probably not provide any information that is favorable to reunification of the child with the parents. A supervisor may be called when the attorney is trying to show that a particular worker acted outside DFCS protocol, or to establish the outer parameters of what may be considered "reasonable" in terms of provision of services in a given county.
Attorneys should also be aware that county DFCS offices may have a high turnover rate among caseworkers, or that an understaffed office may not assign alternate workers to cover caseloads of workers who are out of the office on vacation, sick leave, or conferences. This means that an attorney should find out the extent of a caseworker's involvement in a case before questioning that caseworker on the stand.
For further information on DFCS policies and procedures, please see the CPS Policy Manual and Foster Care Policy Manual, which are available on the DHR ODIS website (http://www.odis.dhr.state.ga.us/3000_fam/FamilyChildren.htm).
A SAAG is an attorney in private practice who has been appointed by the Office of the Attorney General to represent a state agency (DFCS) in juvenile court matters. In most juvenile courts there are only one or two SAAGs, although in some larger counties there may be more.
The SAAG is responsible for representing the interests of the state in civil child abuse and neglect proceedings. The SAAG ultimately answers to the Office of the Attorney General, but represents the county DFCS office.
Much of the list under "Child's Attorney" applies to the SAAG as well, recognizing that the SAAG does not just represent an individual client; the SAAG represents a state agency.
In addition to the duties listed above, the SAAG is responsible for working closely with DFCS to ensure that all DFCS work is properly documented and to ensure that cases are moving in a timely manner toward a permanent disposition. The SAAG works with individual DFCS workers to prepare them for court when necessary and assists county DFCS offices with implementing state laws and DHR-DFCS policies. The SAAG is responsible for timely filings of all petitions and motions for DFCS and for preparing and presenting cases in court.
In most counties the SAAG does not participate in 72-hour hearings, in case planning sessions, or in periodic reviews. There does not appear to be a prohibition on the SAAG's involvement in these proceedings, however.
O.C.G.A. § 15-11-38 allows any person "who has knowledge of the facts alleged or is informed and believes they are true" to file a deprivation petition. In some counties when a private citizen files a deprivation petition the court will not allow the case to proceed without DFCSinvolvement. Once DFCS becomes involved they often become the petitioner. In other cases private deprivations, often called "granny petitions" because they are often filed by grandmothers who are already caring for the children, are regular occurrences.
Sometimes a relative or family friend will file a petition when DFCS has already done so because the relative or friend wishes to obtain custody of the child. In these situations the court often dismisses the private petition, proceeds on the DFCS petition (probably on the theory that the "interest" of the petition is the protection of the child and this interest is protected by DFCS), and allows the friend or relative to participate as a party.
There are as many purposes behind the filing of private deprivations as there are individuals, but a common reason is that a relative is already caring for a child and wants to provide some stability to that arrangement (i.e. prevent mother from taking the child) or needs to have legal authority to enroll the child in school. Courts are reluctant to appoint counsel for relatives filing private petitions, but under Georgia law all indigent parties are entitled to court-appointed counsel at all stages of proceedings. O.C.G.A. § 15-11-6. The law does not limit the right to counsel to those proceedings in which DFCS is a party.
One type of private petition is not allowed in juvenile court. The Court of Appeals has held that deprivation proceedings between parents are prima facie custody matters which must be brought in the superior court. In re W.W.W., 213 Ga. App. 732 (1994). However, the Supreme Court clarified that each petition must be viewed on its own merits to determine if "it is actually a disguised custody matter [and] outside the subject matter jurisdiction of the juvenile courts." In re M.C.J., 271 Ga. 546, 548 (1999).
In many instances private deprivation petitions appear to be a means of ensuring stability for a child without having to utilize DFCS resources. The court's jurisdiction over these cases, however, is limited to 2 years, and if no further action is taken there is not "permanency" in the arrangement. O.C.G.A. § 15-11-58.1. If a private petitioner wishes to maintain custody beyond that time period, the person must file a Motion to Extend Custody. A hearing must be held on the motion prior to the expiration of the initial court order. The hearing is handled in the same manner regardless of whether DFCS or another person is the petition (see description of MTE under Section VI of this manual). In most courts there is no trigger to remind the relative that the order will expire so these orders often do expire without further action. By law, when the order expires, the parent once again has legal custody of the child because the juvenile court no longer has jurisdiction over the case.
One concern about private petitions is that court oversight is limited. When custody is given to DFCS the law requires periodic reviews of the case and limits the order to one year. These requirements promote actions to locate a permanent placement for the child. The law does not appear to require judicial review of deprivation cases in which DFCS is not involved, although the judge could order such reviews. Similarly, a home study is required before a child is placed by DFCS but a similar study is not required in private deprivations. Some courts will not place a child without a study though, so if DFCS is not involved in a case the court has to have someone conduct the home study.
Readers representing petitioners in private deprivation actions should note that the suggestions in this manual are aimed at defendants and not petitioners.
The rights of a private party filing a deprivation petition are the same as those of other parties, as discussed above.
Brief mention should be made of other participants in the process:
This chapter will provide an outline of the procedural aspects of how a deprivation case comes to court, including jurisdiction, venue, notice and service, time limits, removal of the child from the home, and filing of pleadings. A more complete discussion of juvenile court procedure can be found in the Law Guardian Manual.
Places where a deprivation action may be commenced:
This chapter will provide information on how to effectively advocate for clients in the juvenile court system. There are many differences between advocacy in a superior court setting and advocacy in a juvenile court setting, not the least of which is the fact that the central figure is a child. Subsequent chapters will discuss each proceeding which may be encountered in juvenile court. Information in this chapter is applicable to each of the subsequent chapters.
The following "tools" of juvenile court practice will be mentioned or discussed:
The first source of information for every attorney is Title 15 of the Georgia Code. This area of the law is being revised each year, so the statutes should be reviewed every time an attorney works on a juvenile court case. The other three primary Titles attorneys will use are Title 19, "Domestic Relations," Title 16, "Crimes and Offenses," and Title 49, "Social Services."
The second source of information is the Uniform Rules of Juvenile Court; these rules address practice and procedure in juvenile court and contain samples of most of the forms and documents used in juvenile court proceedings.
The next source of information is the client. What follows is a list of information to obtain from the client that will be helpful in developing a case strategy. The lists below are to be used as a supplement to the list of attorney's duties in Section III of this manual.
If your client is a child, the following information will be helpful to know:
Keep in mind that all interactions with a child-client must be age-appropriate. There are many excellent sources of information on interviewing children. Also remember that the above information may not be available from the child directly.
If your client is a parent, the following information will be helpful to know:
The information listed above will provide the basis for developing a theory of the case and a "trial" strategy. Of course, one of the skills of an advocate is evaluating the credibility and relevance of information provided.
Title 15 of the Georgia Code is silent on the use of discovery in juvenile court matters. The Uniform Rules of Juvenile Court, however, state that discovery may be allowed in all cases where deprivation is alleged. URJC 7.1. While the Georgia Supreme Court has held that the provisions of the Georgia Civil Practice Act are not applicable to the juvenile court, URJC 7.1 states that any discovery in juvenile court shall be made in conformance with Article V of the Civil Practice Act, O.C.G.A. §§ 9-11-26 through 9-11-37. (English v. Milby, 233 Ga. 7 (1974)). All discovery in deprivation cases is conducted at the discretion of the judges, and in conformance with strict time limits that can be modified by the judge.
Parties wishing to conduct discovery must submit to the court a written request to proceed with formal discovery. The request must state in particularity the type of discovery requested and shall include a Rule Nisi order stating the time and place of a hearing on the motion for discovery. URJC 7.2. The time limits for discovery stated below.
If the child has been removed from the home:
If the child remains in the home:
All tools of discovery are permissible in juvenile court (at the judge's discretion), including depositions, interrogatories, and subpoenas duces tecum. Attorneys practicing in juvenile court must continuously balance zealous advocacy using all tools available in an adversarial system with the reality of a close-knit system that is designed to be less litigious and more cooperative. In most juvenile courts one or two judges hear all juvenile court matters and there are a limited number of "opposing parties" (DFCS workers and their SAAGs). Attorneys must make practical decisions about what advocacy tools and techniques will realistically work within their juvenile court system. Participants in deprivation cases will usually be interacting for one or more years, and every decision which escalates the adversariness of the proceedings potentially decreases the level of cooperation among the participants.
One discovery tool that is not often used but is useful to know about, especially in cases involving government agencies, is the Georgia Open Records Act. O.C.G.A. § 50-18-70 et. seq.; and see Napper v. Georgia Television Co., 257 Ga. 156 (1987). The usefulness of this tool is limited in the deprivation context because of the short time frames. When time is available, it can be used when information is needed from DFCS and responses to less formal requests are not forthcoming. Sometimes information which the county DFCS office may be objecting to produce is actually available from the state DHR/DFCS office if the appropriate request is submitted.
A common misconception about juvenile court is that formal rules of evidence do not apply. Formal rules of evidence are applicable, but not to all proceedings. Because the delineation between proceedings such as the adjudicatory hearing and the dispositional hearing is often not distinct, it may appear that formal rules of evidence are not applied. Formal rules of evidence apply to the formal fact-finding proceedings: adjudication, but at other proceedings (i.e. 72-hour hearing, disposition, periodic reviews) the rules of evidence are relaxed and hearsay is allowed. Even when hearsay is not allowed, allowing inadmissible evidence is not necessarily prejudicial. The error may be considered harmless, depending on the entirety of the record. If other evidence supports the court's finding of deprivation the error will not be grounds for reversal. See Moss v. Moss, 135 Ga. App. 401 (1975) (when judge is trier of fact, judge is presumed to only consider admissible evidence in making determinations); In re J.T.S., 185 Ga. App. 772 (1988) (evidence other than inadmissible hearsay statements must support findings).
A full discussion of evidence in juvenile court proceedings is beyond the scope of this manual. A primary source of information on this subject as it applies to Georgia is McGough's Georgia Juvenile Practice and Procedure, (2ed). This book contains a fairly detailed discussion of evidence in Georgia juvenile courts.
One piece of evidence that is a vital component to every deprivation case and the subject of continuing controversy regarding its confidentiality is the DFCS records. The Child Abuse and Deprivation Records Act prohibits access to records concerning reports of child abuse and neglect except by court order. (O.C.G.A. § 49-5-40 et. seq). DFCS interprets this code section quite broadly, asserting that all DFCS information, including case files, memos, etc., is confidential. The Court of Appeal, however, has said that a juvenile court may, in its discretion, release relevant information from DFCS records. (Ray v. D.H.R., 155 Ga. App. 81 (1980)). In Ray v. D.H.R., the Court held that denial of access to DFCS files interfered with the parents' constitutional right to cross-examination. In a later decision the Court of Appeals again found that denying parents' access to DFCS files interferes with parent's fundamental rights and that a judge should remove privileged materials from files after an in camera review rather than completely denying access. In re M.M.A., 166 Ga App. 620 (1983).
Information from DFCS files such as case narratives summary reports, court records, service plans, goals, and objectives, can be obtained directly from DFCS. A request must be filed directly with DFCS and they have ten days upon receipt of the request to provide copies of the documents to the parents. DFCS may impose a $.25 per page copying fee for certain documents. (Vicky O. Kimbrell, "Juvenile Court Deprivation Proceedings: Representing the Parent," pp. 14-15, reproduced in GIDC training materials). If DFCS claims that files are confidential, the judge can be asked to review the files and only release information pertinent to the case. The judge has wide latitude in determining what is relevant. Remember that the judge who is deciding the case is probably the one who will be determining what to release from the DFCS records, and in so doing, will review the complete file DFCS prior to the adjudication. Attorneys must balance the critical nature of the information they are seeking with the fact that the judge may see all DFCS information on the child during the in camera review.
Another piece of evidence often used in deprivation proceedings is a court-ordered physical or mental examination of the parent or the child. O.C.G.A. § 15-11-12(b) provides for the court to order a physical or mental evaluation of a child during the pendency of any proceeding and O.C.G.A. § 15-11-100 allows the court to order a physical or mental evaluation of any parent, step-parent, guardian, or child involved in a proceeding under Article 2 of the Juvenile Code. Article 2 is limited to proceedings to terminate parental rights so it is appears that a child can be evaluated at any time after the filing of a deprivation petition while a parent can only be ordered to submit to an evaluation when a termination of parental rights petition has been filed. (Kimbrell at 16-17).
When a child is being evaluated upon the request of petitioners, the child's attorney and the parent's attorney should take steps to ensure that the examiner is qualified and independent. One way to protect the "independence" of the evaluation is to request a court order restricting all parties from having contact with the examiner other than what is necessary to arrange the evaluation. This would include prohibiting any parties from providing the examiner with a "background summary" containing prejudicial information about the family or parents. (Kimbrell at 16). Attorneys should obtain copies of evaluations and reports at the earliest possible opportunity so strategic decisions regarding arranging for a private evaluation or deposing the examiner can be made.
While funds for experts may not be provided to indigent parents, there is no prohibition on obtaining a private evaluation separate from the court-ordered evaluation. A decision regarding whether the expert's report or testimony will be used in the proceedings can be made after the evaluation is completed. If an attorney submits a request to the court for funds for an expert (of any type), the request should contain recommendations for suggested experts. The use of experts in relation to juvenile court proceedings is an area attorneys should be familiar with, but which is beyond the scope of this manual. Many deprivation proceedings hinge on the testimony of a psychiatrist or doctor, so the art of examining, cross-examining and even deposing such witnesses should be studied.
In the dispositional hearing held after a child is adjudicated deprived, reports and studies containing hearsay are considered by the court. This is permitted under O.C.G.A. § 15-11-12(a). If the two hearings are held within one proceeding, attorneys can request that the judge clearly distinguish when the adjudicatory phase has ended to clarify when social studies and other reports are admissible.
Attorneys are advised to review law and advocacy relating to child witnesses, including the child hearsay exception which permits a witness to testify "as to a statement made to the witness by a child under the age of 14 describing an act of sexual contact or physical abuse performed on the child or in the child's presence if the child is available to testify and the court finds the circumstances of the statement provide sufficient indicia of reliability. O.C.G.A. § 24-3-16. All children who are the subject of deprivation actions are deemed competent to testify in court. O.C.G.A. § 24-9-5(b).All other child witnesses must meet the requirements of competency. O.C.G.A. § 24-9-5. Please refer to Section VII in the Law Guardian Manual for more information on child witnesses.
This chapter discusses each of the primary proceedings attorneys will encounter in juvenile court. The discussion of each type of proceeding will describe:
The following provisions apply to all juvenile court hearings. Juvenile court has historically been a closed court, and as such, there is no jury and the public is excluded from the proceedings. The law is evolving toward a more open process so the code should be consulted when this issues arises. One settled fact is that the judge has wide discretion regarding who may be present in the courtroom. Witnesses may be sequestered upon request. All proceedings shall be recorded by appropriate means (stenographic, electronic, mechanical, or other) unless the recordation is waived by the juvenile and his parent, guardian, or attorney. O.C.G.A. § 15-11-41(b). Waiver of recordation is not recommended, as it greatly affects the ability to effectively appeal a decision. The time limits on holding hearings may be waived. The court has discretion to continue a hearing for a reasonable time for good cause shown. If the granting of a continuance extends the date of the hearing beyond the statutory limits of O.C.G.A. § 15-11-39(a), the court shall enter a written order stating the specific reason for the continuance and in whose custody the child is placed. URJC 11.3.
The 72-hour hearing is the first court hearing in a deprivation case in which the child has been removed from the home. It is also called the emergency shelter care hearing, probable cause hearing, or informal detention hearing. Rules of evidence are relaxed and hearsay is admissible.
The 72-hour hearing must be held within 72 hours after placement in shelter care. If the 72 hour limit expires on Saturday, Sunday or legal holiday, the hearing must be held the following business day. (O.C.G.A. § 15-11-49; URJC 6.8). Requirements of this code section may be waived, but failure to adhere to the time limits of O.C.G.A. § 15-11-49 without a waiver shall result in dismissal without prejudice. (Irvin v. DHR, 159 Ga. App. 101 (1981); Sanchez v. Walker County DFCS, 140 Ga. App. 175, 230 S.E.2d 139 (1976). "Without prejudice" 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. Technically the 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 a "pick up" order again to detain the child should the court believe the situation warrants such action. Realistically, moving to dismiss a petition based on failure to adhere to the statutory time limits only results in further delays in the case and it is usually in all parties' best interest to move the case to resolution as quickly as possible. However, if DFCS has a particularly weak case or if the parents have greatly improved their situation since the petition was filed, DFCS may not refile the petition if it is dismissed on technical grounds. Also, the fact that it could be dismissed may be used as leverage in reaching an agreement on the matter. Another reason attorneys may want to move for dismissal is to "reset" the clock in a case. Court orders date from the time the child is initially taken from the home. With the current atmosphere toward permanent placements as soon as possible, it will become more common for DFCS to only provide reunification services for 12 months, and then file a non-reunification plan. (See O.C.G.A. § 15-11-58). Since custody technically reverts back to the parent when a petition is dismissed, even if the child is kept out of the home on an emergency "pick-up" order, all times for the new petition should date from the pick-up order rather than from the earlier removal. This issue has not been brought before the Court of Appeals so it is unclear how case law will interpret these actions.
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 a Termination, Children in Court: A Systems Approach. (1989), p. 14, 15). The petitioner 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. There is not consensus in Georgia on the proper standard of proof in the 72-hour hearing since the code is silent on the issue. The 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." Ch. VI, p.3.
In reality the only people present at most 72-hour hearings are the judge, the caseworker bringing the deprivation action and the parents. Recommendations for "best practice" techniques advise that all parties and their attorneys participate in the initial proceeding so that cases that can be worked out or diverted can be dismissed without keeping the child out of the home any longer than is necessary.
The GUIDELINES recommend that the following persons should ALWAYS be present at the 72-hour hearing:
GUIDELINES, p. 33.
In some counties caseworkers on other cases, court personnel, witnesses for other cases, etc., remain in the courtroom after calendar call. At the 72-hour hearing and in all proceedings, attorneys should remember that any party can request exclusion of unnecessary persons such as these.
The purpose of the 72-hour hearing is twofold: first, to determine whether a child who has been removed from the home shall be released to his or her parents or detained pending further court proceedings; and second, to determine whether reasonable grounds exist to believe that the allegations in the complaint or petition are true.
The statutory grounds for detention are:
The following critical questions need to be addressed at this hearing: