Bill Text: GA HB641 | 2011-2012 | Regular Session | Enrolled
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Courts; juvenile proceedings; substantially revise provisions
Spectrum: Slight Partisan Bill (Republican 5-2)
Status: (Engrossed - Dead) 2012-03-22 - Senate Committee Favorably Reported [HB641 Detail]
Download: Georgia-2011-HB641-Enrolled.html
Bill Title: Courts; juvenile proceedings; substantially revise provisions
Spectrum: Slight Partisan Bill (Republican 5-2)
Status: (Engrossed - Dead) 2012-03-22 - Senate Committee Favorably Reported [HB641 Detail]
Download: Georgia-2011-HB641-Enrolled.html
12 LC 29
5200ERS
House
Bill 641 (COMMITTEE SUBSTITUTE)
By:
Representatives Willard of the
49th,
Lindsey of the
54th,
Abrams of the
84th,
Collins of the
27th,
Oliver of the
83rd,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 15 of the Official Code of Georgia Annotated, relating to courts, so
as to substantially revise, supersede, and modernize provisions relating to
juvenile proceedings; to provide for purpose statements; to provide for
definitions; to provide for general provisions; to provide for juvenile court
administration; to provide for dependency proceedings; to provide for venue; to
provide for taking children into care; to provide for preliminary protective
hearings; to provide for petitions alleging dependency; to provide for summons
and service; to provide for preadjudication procedures; to provide for
adjudication; to provide for predisposition social study; to provide for family
reunification determinations; to provide for disposition of dependent children;
to provide for permanency plan hearings for dependent children; to provide for
permanent guardianship; to provide for termination of parental rights; to
provide for petitions to terminate parental rights and summons; to provide for
hearings on such petitions; to provide for grounds for terminating parental
rights; to provide for disposition of children whose parental rights have been
terminated; to provide for independent living services; to provide for children
in need of services; to provide for informal procedures for children in need of
services; to provide for formal court proceedings for children in need of
services; to provide for preadjudication custody and release of children in need
of services; to provide for a petition seeking an adjudication that a child is
in need of services; to provide for adjudication, disposition, and reviews; to
provide for a permanency plan for children in need of services; to provide for
mental health issues; to provide for delinquency; to provide for custody and
release of a child; to provide for intake or arraignment; to provide for
informal adjustment; to provide for a petition alleging delinquency and summons;
to provide for preadjudication procedures for delinquency proceedings; to
provide for transfers to superior court; to provide for adjudication of
delinquency; to provide for predisposition investigation; to provide for
disposition hearings for delinquent children; to provide for permanency plans
for delinquent children; to provide for traffic offenses; to provide for
competency in delinquency cases; to provide for parental notification of
abortions; to provide for access to hearings and records; to provide for
emancipation of minors; to provide for the Office of the Child Advocate for the
Protection of Children; to amend Article 1 of Chapter 5 of Title 49 of the
Official Code of Georgia Annotated, relating to children and youth services so
as to provide for an appeal procedure when the Division of Family and Children
Services of the Department of Human Services fails to provide aftercare and
transitional services to certain children; to provide for the Department of
Human Services to provide for performance measures for an independent living
skills program; to amend the Official Code of Georgia Annotated so as to conform
provisions to the new Chapter 11 of Title 15 and correct cross-references; to
provide for related matters; to provide for an effective date and applicability;
to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
PART
I
JUVENILE CODE
SECTION 1-1.
JUVENILE CODE
SECTION 1-1.
Title
15 of the Official Code of Georgia Annotated, relating to courts, is amended by
revising Chapter 11, relating to juvenile proceedings, in its entirety as
follows:
"CHAPTER
11
ARTICLE 1
ARTICLE 1
15-11-1.
The
purpose of this chapter is to secure for each child who comes within the
jurisdiction of the juvenile court such care and guidance, preferably in his or
her own home, as will secure the child's moral, emotional, mental, and physical
welfare as well as the safety of both the child and community. It is the intent
of the General Assembly to promote a juvenile justice system that will protect
the community, impose accountability for violations of law, provide treatment
and rehabilitation, and equip juvenile offenders with the ability to live
responsibly and productively. It is the intent of the General Assembly to
preserve and strengthen family relationships, countenancing the removal of a
child from his or her home only when state intervention is essential to protect
the child and enable him or her to live in security and stability. In every
proceeding, this chapter seeks to guarantee due process of law, as required by
the Constitutions of the United States and the State of Georgia, through which
every child and parent and all other interested parties are assured fair
hearings at which legal rights are recognized and enforced. Above all, this
chapter shall be liberally construed to reflect that the paramount child welfare
policy of this state is to determine and ensure the best interests of its
children.
15-11-2.
As
used in this chapter, the term:
(1)
'Abandonment' or 'abandoned' means any conduct on the part of a parent,
guardian, or legal custodian showing an intent to forgo parental duties or
relinquish parental claims. Intent may be evidenced by:
(A)
Failure, for a period of at least six months, to communicate meaningfully with a
child;
(B)
Failure, for a period of at least six months, to maintain regular visitation
with a child;
(C)
Leaving a child with another person without provision for the child's support
for a period of at least six months;
(D)
Failure, for a period of at least six months, to participate in any court
ordered plan or program designed to reunite the parent, guardian, or legal
custodian with a child;
(E)
Leaving a child without affording means of identifying the child or the parent,
guardian, or legal custodian and:
(i)
The identity of the parent, guardian, or legal custodian cannot be ascertained
despite diligent searching; and
(ii)
The parent, guardian, or legal custodian has not come forward to claim the child
within three months following the finding of the child;
(F)
Being absent from the home for a period of time that creates a substantial risk
of serious harm to a child left in the home;
(G)
Failure to respond, for a period of at least six months, to notice of child
protective proceedings; or
(H)
Any other conduct indicating an intent to forgo parental duties or relinquish
parental claims.
(2)
'Abuse' means:
(A)
Any nonaccidental physical injury or physical injury which is inconsistent with
the explanation given for it suffered by a child as the result of the acts or
omissions of a person responsible for the care of the child;
(B)
Emotional abuse;
(C)
Sexual abuse or sexual exploitation;
(D)
Prenatal abuse; or
(E)
The commission of an act of family violence as defined in Code Section 19-13-1
in the presence of a child. An act includes a single act, multiple acts, or a
continuing course of conduct. As used in this subparagraph, the term 'presence'
means physically present or able to see or hear.
(3)
'Adult' means any individual who is not a child as defined in paragraph (10) of
this Code section.
(4)
'Affiliate court appointed special advocate program' means a locally operated
program operating with the approval of the local juvenile court which screens,
trains, and supervises volunteers to advocate for the best interests of an
abused and neglected child in dependency proceedings.
(5)
'Aggravated circumstances' means the parent has:
(A)
Abandoned an infant;
(B)
Attempted, conspired to attempt, or has subjected a child or a sibling of the
child to death or great bodily harm;
(C)
Attempted, conspired to attempt, or has subjected a child or a sibling of the
child to torture, chronic abuse, sexual abuse, or sexual exploitation;
or
(D)
Committed the murder or voluntary manslaughter of the other parent of the child
or has been convicted of aiding or abetting, attempting, or soliciting the
murder or voluntary manslaughter of the other parent of the child.
(6)
'Biological father' means the male who impregnated the biological mother
resulting in the birth of the child.
(7)
'Business day' means Mondays through Fridays and shall not include weekends or
legal holidays.
(8)
'Caregiver' means any person providing a residence for a child or any person
legally obligated to provide or secure adequate care for a child, including a
parent, guardian, or legal custodian.
(9)
'Case plan' means a plan which is designed to ensure that a child receives
protection, proper care, and case management and may include services for the
child, the child's parent, guardian, or legal custodian, and other
caregivers.
(10)
'Child' means any individual who is:
(A)
Under the age of 18 years;
(B)
Under the age of 17 years when alleged to have committed a delinquent
act;
(C)
Under the age of 22 years and in the care of DFCS;
(D)
Under the age of 23 years and is eligible for and receiving independent living
services through DFCS; or
(E)
Under the age of 21 years who committed an act of delinquency before reaching
the age of 17 years and who has been placed under the supervision of the court
or on probation to the court for the purpose of enforcing orders of the
court.
(11)
'Child in need of services' means:
(A)
A child who is found to be in need of care, guidance, counseling, structure,
supervision, treatment, or rehabilitation and who is found to be:
(i)
Subject to compulsory school attendance and who is habitually and without good
and sufficient cause truant, as such term is defined in Code Section 15-11-381,
from school;
(ii)
Habitually disobedient of the reasonable and lawful commands of his or her
parent, guardian, or legal custodian and is ungovernable or places himself or
herself or others in unsafe circumstances;
(iii)
A runaway, as such term is defined in Code Section 15-11-381;
(iv)
A child who has committed an offense applicable only to a child;
(v)
A child who wanders or loiters about the streets of any city or in or about any
highway or any public place between the hours of 12:00 Midnight and 5:00
A.M.;
(vi)
A child who disobeys the terms of supervision contained in a court order which
has been directed to such child who has been adjudicated a child in need of
services; or
(vii)
A child who patronizes any bar where alcoholic beverages are being sold,
unaccompanied by his or her parent, guardian, or legal custodian, or who
possesses alcoholic beverages;
(B)
A child who has committed a delinquent act and is found to be in need of
supervision but not of treatment or rehabilitation; or
(C)
A child who is alleged to have committed a delinquent act and is unrestorably
incompetent to proceed.
(12)
'Complaint' is the initial document setting out the circumstances that resulted
in the child being brought before the court.
(13)
'Court' means the juvenile court or the court exercising jurisdiction over
juvenile matters.
(14)
'Court appointed special advocate' or 'CASA' means a community volunteer
who:
(A)
Has been screened and trained regarding child abuse and neglect, child
development, and juvenile court proceedings;
(B)
Has met all the requirements of an affiliate court appointed special advocate
program;
(C)
Is being actively supervised by an affiliate court appointed special advocate
program; and
(D)
Has been sworn in by a judge of the juvenile court in the court or circuit in
which he or she wishes to serve.
(15)
'Criminal justice purposes' means the performance of any activity directly
involving the investigation, detection, apprehension, detention, pretrial
release, post-trial release, prosecution, adjudication, correctional
supervision, or rehabilitation of children or adults who are accused of,
convicted of, adjudicated of, or charged with crimes, delinquent acts or the
collection, storage, and dissemination of criminal history record
information.
(16)
'DBHDD' means the Department of Behavioral Health and Developmental
Disabilities.
(17)
'Delinquent act' means:
(A)
An act committed by a child designated a crime by the laws of this state, or by
the laws of another state if the act occurred in that state, under federal laws,
or by local ordinance, and the crime shall not be an offense applicable only to
a child or a juvenile traffic offense;
(B)
The act of disobeying the terms of supervision contained in a court order which
has been directed to a child who has been adjudged to have committed a
delinquent act; or
(C)
Failing to appear as required by a citation issued for an act that would be a
crime if committed by an adult.
(18)
'Delinquent child' means a child who has committed a delinquent act and is in
need of treatment or rehabilitation.
(19)
'Department' means the Department of Human Services.
(20)
'Dependent child' means a child who:
(A)
Has been abused or neglected and is in need of the protection of the
court:
(B)
Has been placed for care or adoption in violation of law; or
(C)
Is without a parent, guardian, or legal custodian.
(21)
'Designated felony act' means a delinquent act committed by a child 13 years of
age or older which, if committed by an adult, would be one or more of the
following crimes:
(A)
Aggravated assault;
(B)
Aggravated battery or battery in violation of Code Section 16-5-23.1 if the
victim is a teacher or other school personnel;
(C)
Armed robbery not involving a firearm;
(D)
Arson in the first or second degree;
(E)
Attempted murder;
(F)
Conspiracy in violation of Article 4 of Chapter 7 of Title 16;
(G)
Escape in violation of Code Section 16-10-52 if the child has previously been
adjudicated to have committed a designated felony;
(H)
Hijacking a motor vehicle;
(I)
Kidnapping or attempted kidnapping;
(J)
Possession, manufacture, or distribution of destructive devices and any other
violation of Code Section 16-7-82 or 16-7-84;
(K)
Racketeering in violation of Code Section 16-14-4;
(L)
Robbery;
(M)
Trafficking of certain controlled substances in violation of Code Section
16-13-31;
(N)
Any violation of Code Section 16-7-2;
(O)
Any violation of Code Section 16-15-4;
(P)
Any subsequent violation of Code Sections 16-8-2 through 16-8-9, if the property
which was the subject of the theft was a motor vehicle and the child committing
the violation has had one or more separate, prior adjudications of delinquency
based upon a violation of Code Sections 16-8-2 through 16-8-9, provided that the
prior adjudications of delinquency shall not have arisen out of the same
transaction or occurrence or series of events related in time and
location;
(Q)
Any subsequent violation of Code Section 16-7-85 or 16-7-87, if the child
committing the violation has had one or more separate, prior adjudications of
delinquency based upon a violation of Code Section 16-7-85 or 16-7-87, provided
that the prior adjudications of delinquency shall not have arisen out of the
same transaction or occurrence or series of events related in time and
location;
(R)
Any subsequent violation of subsection (b) of Code Section 16-11-132, if the
child committing the violation has had one or more separate, prior adjudications
of delinquency based upon a violation of subsection (b) of Code Section
16-11-132, provided that the prior adjudications of delinquency shall not have
arisen out of the same transaction or occurrence or series of events related in
time and location; or
(S)
Any other act which, if committed by an adult, would be a felony, if the child
committing the act has three times previously been adjudicated delinquent for
acts which, if committed by an adult, would have been felonies, provided that
the prior adjudications of delinquency shall not have arisen out of the same
transaction or occurrence or series of events related in time and
location.
Such
term shall also mean an act which constitutes a second or subsequent
adjudication of delinquency based on a violation of Code Section 16-11-127.1 or
which is a first violation of Code Section 16-11-127.1 involving a firearm as
defined in paragraph (2) of subsection (a) of Code Section 16-11-131 or a
dangerous weapon or machine gun as defined in Code Section 16-11-121 or any
weapon as defined in Code Section 16-11-127.1, together with an
assault.
(22)
'Developmental level' is a child's ability to understand and communicate, taking
into account such factors as age, maturity, mental capacity, level of education,
cultural background, and degree of language acquisition.
(23)
'DFCS' means the Division of Family and Children Services of the
department.
(24)
'DJJ' means the Department of Juvenile Justice.
(25)
'Emancipation' means termination of the rights of a parent to the custody,
control, services, and earnings of a child.
(26)
'Emotional abuse' means acts or omissions by a person responsible for the care
of the child that cause any mental injury to a child's intellectual or
psychological capacity as evidenced by an observable and significant impairment
in a child's ability to function within the child's normal range of performance
and behavior or create a substantial risk of impairment, if the impairment or
substantial risk of impairment is diagnosed and confirmed by a licensed mental
health professional or physician qualified to render such
diagnosis.
(27)
'Evaluation' means a comprehensive, individualized examination of a child by an
examiner that may include the administration of one or more assessment
instruments. The purpose of an evaluation may include diagnosing the type and
extent of a child's behavioral health disorders and needs, making specific
recommendations, and assessing a child's legal competencies.
(28)
'Examiner' means a licensed psychologist, psychiatrist, or clinical social
worker who has expertise in child development specific to severe or chronic
disability of children attributable to intellectual impairment or mental illness
and has received training in forensic evaluation procedures through formal
instruction, professional supervision, or both.
(29)
'Foster care' means placement in foster family homes, child care institutions,
or another substitute care setting approved by the department. Such term shall
exclude secure detention facilities or other facilities operated primarily for
the purpose of detention of a child adjudicated delinquent.
(30)
'Guardian ad litem' means an individual appointed to assist the court in
determining the best interests of a child.
(31)
'Guardianship order' means the court judgment that establishes a permanent
guardianship and enumerates a permanent guardian's rights and responsibilities
concerning the care, custody, and control of a child.
(32)
'Identification data' means the fingerprints, name, race, sex, date of birth,
and any other unique identifiers of a child.
(33)
'Imminent danger' means a determination that present or pending harm precludes
less extreme solutions to the problem. In dependency cases, such determination
shall be based on the assessment of the following nonexclusive
factors:
(A)
The severity, regularity, and duration of abuse or neglect to the
child;
(B)
The strength of the evidence supporting the allegations of abuse or
neglect;
(C)
The risk that the parent will flee with the child;
(D)
Any harm to the child that might result in removal; or
(E)
The time to obtain a court order.
(34)
'Indigent person' means a person who, at the time of requesting an attorney, is
unable without undue financial hardship to provide for full payment of an
attorney and all other necessary expenses for representation or a child who is a
party to a dependency proceeding. To determine indigence in a delinquency
proceeding, the court shall follow the standards set forth in Chapter 12 of
Title 17.
(35)
'Informal adjustment' means the disposition of case other than by formal
adjudication and disposition.
(36)
'Judge' means the judge of the court exercising jurisdiction over juvenile
matters.
(37)
'Juvenile court intake officer' means the juvenile court judge, associate
juvenile court judge, court service worker, DJJ staff member serving as an
intake officer, or person employed as a juvenile probation or intake officer
designated by the juvenile court judge or, where there is none, the superior
court judge, which person is on duty for the purpose of determining whether any
child taken into custody should be released or detained and, if detained, the
appropriate place of detention.
(38)
'Legal custodian' means:
(A)
A person to whom legal custody of the child has been given by order of a court;
or
(B)
A public or private agency or other private organization licensed or otherwise
authorized by law to receive and provide care for a child to which legal custody
of the child has been given by order of a court.
(39)
'Legal father' means a male who:
(A)
Has legally adopted a child;
(B)
Was married to the biological mother of that child at the time the child was
conceived or was born, unless such paternity was disproved by a final order
pursuant to Article 3 of Chapter 7 of Title 19;
(C)
Married the legal mother of the child after the child was born and recognized
the child as his own, unless such paternity was disproved by a final order
pursuant to Article 3 of Chapter 7 of Title 19;
(D)
Has been determined to be the father by a final paternity order pursuant to
Article 3 of Chapter 7 of Title 19; or
(E)
Has legitimated the child by a final order pursuant to Code Section 19-7-22 or
by voluntary acknowledgment of paternity that has not been rescinded pursuant to
Code Section 19-7-46.1
and
who has not surrendered or had terminated his rights to the child.
(40)
'Legal mother' means the female who is the biological or adoptive mother of the
child and who has not surrendered or had terminated her rights to the
child.
(41)
'Mediation' means the procedure in which a mediator facilitates communication
between the parties concerning the matters in dispute and explores possible
solutions to promote reconciliation, understanding, and settlement.
(42)
'Mediator' means a neutral third party who attempts to focus the attention of
the parties upon their needs and interests rather than upon their rights and
positions and who lacks the authority to impose any particular agreement upon
the parties or to recommend any particular disposition of the case to the
court.
(43)
'Mentally ill' means having a disorder of thought or mood which significantly
impairs judgment, behavior, capacity to recognize reality, or ability to cope
with the ordinary demands of life.
(44)
'Neglect' means:
(A)
The failure to provide proper parental care or control, subsistence, education
as required by law, or other care or control necessary for the child's physical,
mental, or emotional health or morals;
(B)
The failure to provide the child with adequate supervision necessary for the
child's well-being; or
(C)
The abandonment of a child by his or her parent, guardian, or legal
custodian.
(45)
'Other persons who have demonstrated an ongoing commitment to the child'
includes:
(A)
'Fictive kin,' meaning a person who is known to a child as a relative, but is
not, in fact, related by blood or marriage to the child and with whom the child
has resided or had significant contact; and
(B)
'Other individuals,' including but not limited to, neighbors, teachers, scout
masters, caregivers, or parents of friends of the child and with whom a child
has resided or had significant contact.
(46)
'Parent' means either the legal father or the legal mother of the
child.
(47)
'Party' means a child, parent, guardian, legal custodian, or other person
subject to any judicial proceeding under this chapter; provided, however, that
for purposes of Article 7 of this chapter, only a child and the state shall be a
party.
(48)
'Permanency plan' means a specific written plan prepared by DFCS designed to
ensure that a child is reunified with his or her family or ensure that the child
quickly attains a substitute long-term home when return to the child's family is
not possible or is not in the child's best interests.
(49)
'Permanent placement' means:
(A)
Return of the legal custody of a child to the child's parent;
(B)
Placement of a child with an adoptive parent pursuant to a final order of
adoption; or
(C)
Placement of a child with a permanent guardian.
(50)
'Person responsible for the care of the child' means:
(A)
An adult member of the child's household;
(B)
A person exercising supervision over a child for any part of the 24 hour day;
or
(C)
Any adult who, based on relationship to the parent, guardian, or legal custodian
or a member of the child's household, has access to the child.
(51)
'Preliminary protective hearing' means the hearing held within 72 hours after a
child who is alleged to be abused or neglected is placed in foster
care.
(52)
'Prenatal abuse' means exposure to chronic or severe use of alcohol or the
unlawful use of any controlled substance, as such term is defined in Code
Section 16-13-21, which results in:
(A)
Symptoms of withdrawal in a newborn or the presence of a controlled substance or
a metabolite thereof in the newborn's body, blood, urine, or meconium that is
not the result of medical treatment; or
(B)
Medically diagnosed and harmful effects in the newborn's physical appearance or
functioning.
(53)
'Probation and intake officer' means any probation officer and any personnel of
a juvenile court to whom are delegated the duties of an intake officer under
this chapter, other than a juvenile court judge, associate juvenile court judge,
or court service worker.
(54)
'Probation officer' means any personnel of a juvenile court or staff of DJJ to
whom are delegated the duties of a probation officer under this chapter, other
than a juvenile court judge or associate juvenile court judge.
(55)
'Prosecuting attorney' means the district attorney of the judicial circuit or
county in which juvenile proceedings are instituted or the solicitor of the
juvenile court in which the juvenile proceedings are instituted or such
individuals' designees.
(56)
'Putative father registry' means the registry established and maintained
pursuant to subsections (d) and (e) of Code Section 19-11-9.
(57)
'Reasonable efforts' means due diligence and the provision of appropriate
services.
(58)
'Reasonably diligent search' means the efforts of DFCS to identify and locate a
parent whose identity or location is unknown or a relative or other person who
has demonstrated an ongoing commitment to a child. Such search shall be
initiated at the outset of a case under Article 3 of this chapter and shall be
conducted throughout the duration of a case, when appropriate. A reasonably
diligent search shall include at a minimum:
(A)
Interviews with the child's parent during the course of an investigation, while
child protective services are provided, and while the child is in
care;
(B)
Interviews with the child;
(C)
Interviews with identified relatives throughout the case;
(D)
Interviews with any other person who is likely to have information about the
identity or location of the person being sought;
(E)
Comprehensive searches of data bases available to DFCS including, but not
limited to, searches of employment, residence, utilities, vehicle registration,
child support enforcement, law enforcement, corrections records, and any other
records likely to result in identifying and locating the person being
sought;
(F)
Appropriate inquiry during the course of hearings in the case; and
(G)
Any other reasonable means that are likely to identify relatives or other
persons who have demonstrated an ongoing commitment to the child.
(59)
'Relative' means a person related to a child by blood, marriage, or adoption,
including the spouse of any of those persons even if the marriage was terminated
by death or dissolution.
(60)
'Restitution' means any property, lump sum, or periodic payment ordered to be
made to any victim. Restitution may also be in the form of services ordered to
be performed by a child.
(61)
'Screening' means a relatively brief process to identify a child who potentially
may have mental health or substance abuse needs, through administration of a
formal screening instrument, to identify a child who may warrant immediate
attention or intervention or a further, more comprehensive
evaluation.
(62)
'Secure detention facility' means a detention facility operated by or on behalf
of DJJ and shall include a Youth Development Campus or a Regional Youth
Detention Center.
(63)
'Services' means assistance including, but not limited to, care, guidance,
education, counseling, supervision, treatment, and rehabilitation or any
combination thereof.
(64)
'Sexual abuse' means a caregiver or other person responsible for the care of the
child employing, using, persuading, inducing, enticing, or coercing any child to
engage in any act which involves:
(A)
Sexual intercourse, including genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same or opposite sex;
(B)
Bestiality;
(C)
Masturbation;
(D)
Lewd exhibition of the genitals or pubic area of any person;
(E)
Flagellation or torture by or upon a person who is nude;
(F)
The condition of being fettered, bound, or otherwise physically restrained on
the part of a person who is nude;
(G)
Physical contact in an act of apparent sexual stimulation or gratification with
any person's clothed or unclothed genitals, pubic area, or buttocks or with a
female's clothed or unclothed breasts;
(H)
Defecation or urination for the purpose of sexual stimulation; or
(I)
Penetration of the vagina or rectum by any object except when done as part of a
recognized medical procedure by a licensed health care
professional.
(65)
'Sexual exploitation' means conduct by a caregiver or other person responsible
for the care of the child who allows, permits, encourages, or requires a child
to engage in:
(A)
Prostitution, in violation of Code Section 16-6-9; or
(B)
Sexually explicit conduct for the purpose of producing any visual or print
medium depicting such conduct, in violation of Code Section
16-12-100.
(66)
'Sibling' means a person with whom the child shares one or both parents in
common by blood, adoption, or marriage, even if the marriage was terminated by
death or dissolution.
(67)
'Statutory overnight delivery' means delivery of notice as provided in Code
Section 9-10-12.
(68)
'Visitation' means a period of access to a child by a parent, guardian, legal
custodian, sibling, other relative, or other person who has demonstrated an
ongoing commitment to the child in order to maintain parental and familial
involvement in the child's life when the child is not residing with such
person.
(69)
'Weekend' means Saturday or Sunday.
15-11-3.
Through
direct calendaring, whenever possible, a single judge shall hear all successive
cases or proceedings involving the same child or family.
15-11-4.
Where
procedures are not provided in this chapter, the court shall proceed in
accordance with:
(1)
Title 17 in a delinquency proceeding; and
(2)
Chapter 11 of Title 9 in all other matters.
15-11-5.
(a)
When a period of time measured in days, weeks, months, years, or other
measurements of time except hours is prescribed for the exercise of any
privilege or the discharge of any duty, the first day shall not be counted but
the last day shall be counted; and, if the last day falls on a weekend, the
party having such privilege or duty shall have through the following business
day to exercise such privilege or discharge such duty.
(b)
When the last day prescribed for the exercise of any privilege or the discharge
of any duty falls on a public and legal holiday as set forth in Code Section
1-4-1, the party having such privilege or duty shall have through the next
business day to exercise such privilege or discharge such duty.
(c)
When the period of time prescribed is less than seven days, intermediate
weekends and legal holidays shall be excluded in the computation.
15-11-6.
(a)
Except as provided in subsection (b) of this Code section, a child attains a
specified age the first second past midnight on the day of the anniversary of
the child's birth.
(b)
A child born on February 29 attains a specified age on March 1 of any year that
is not a leap year.
15-11-7.
(a)
The juvenile court shall have jurisdiction to act as a court of inquiry with all
the powers and rights allowed courts of inquiry in this state and to examine or
investigate into the circumstances or causes of any conduct or acts of any
person 17 or more years of age that may be in violation of the laws of this
state whenever such person is brought before the court in the course of any
proceeding instituted under this chapter. The court shall cause the person to
be apprehended and brought before it upon either a writ of summons, a warrant
duly issued, or by arrest.
(b)
When, after hearing evidence, the court has reasonably ascertained that there is
probable cause to believe that the person has committed a misdemeanor or felony
as prescribed under the laws of this state, the court shall commit, bind over to
the court of proper jurisdiction in this state, or discharge the person. When
justice shall require, the court shall cause the person to make such bail as the
court shall deem proper under the circumstances and to cause the person to
appear before the court of proper jurisdiction in this state to be acted upon as
provided by law.
15-11-8.
The
juvenile court is a court of record having a seal. The judge and the judge's
duly appointed representatives shall each have power to administer oaths and
affirmations.
15-11-9.
The
juvenile court judge, associate juvenile court judge, and judge pro tempore
shall have authority to issue a warrant for the arrest of any child for an
offense committed against the laws of this state, based either on personal
knowledge or the information of others given under oath.
15-11-10.
Except
as provided in Code Section 15-11-560, the juvenile court shall have exclusive
original jurisdiction over juvenile matters and shall be the sole court for
initiating action:
(1)
Concerning any child who:
(A)
Is alleged to be delinquent;
(B)
Is alleged to be a child in need of services;
(C)
Is alleged to be dependent;
(D)
Is alleged to be in need of treatment or commitment as a mentally ill or
developmentally disabled child;
(E)
Is alleged to have committed a juvenile traffic offense as defined in Code
Section 15-11-630;
(F)
Has been placed under the supervision of the court or on probation to the court;
provided, however, that such jurisdiction shall be for the purpose of
completing, effectuating, and enforcing such supervision or a probation begun
prior to the child's seventeenth birthday;
(G)
Has remained in foster care after the child's eighteenth birthday or who is
receiving independent living services from DFCS after the child's eighteenth
birthday; provided, however, that such jurisdiction shall be for the purpose of
reviewing the status of the child and the services being provided to the child
as a result of the child's independent living plan or status as a child in
foster care; or
(H)
Requires a comprehensive services plan in accordance with Code Section
15-11-658; or
(2)
Involving any proceedings:
(A)
For obtaining judicial consent to the marriage, employment, or enlistment in the
armed services of any child if such consent is required by law;
(B)
For permanent guardianship brought pursuant to the provisions of Article 3 of
this chapter;
(C)
Under Code Section 39-3-2, the Interstate Compact on Juveniles, or any
comparable law, enacted or adopted in this state;
(D)
For the termination of the legal parent-child relationship and the rights of the
biological father who is not the legal father of the child, other than that in
connection with adoption proceedings under Article 1 of Chapter 8 of Title 19,
in which the superior courts shall have concurrent jurisdiction to terminate the
legal parent-child relationship and the rights of the biological father who is
not the legal father of the child;
(E)
For emancipation brought pursuant to the provisions of Article 11 of this
chapter;
(F)
Under Article 9 of this chapter, relating to prior notice to a parent, guardian,
or legal custodian relative to an unemancipated minor's decision to seek an
abortion; or
(G)
Brought by a local board of education pursuant to Code Section 20-2-766.1
relating to court orders requiring that a parent, guardian, or legal custodian
attend a conference or participate in programs or treatment to improve a
student's behavior.
15-11-11.
(a)
The juvenile court shall have concurrent jurisdiction to hear:
(1)
Any legitimation petition filed pursuant to Code Section 19-7-22 concerning a
child who is alleged to be dependant;
(2)
Any legitimation petition transferred to the court by proper order of the
superior court;
(3)
The issue of custody and support when the issue is transferred by proper order
of the superior court; and
(4)
Any petition for the establishment or termination of a temporary guardianship
transferred to the court by proper order of the probate court.
(b)
If a demand for a jury trial as to support has been properly filed by either
parent, then the case shall be transferred to superior court for the jury
trial.
15-11-12.
(a)
Nothing in this chapter shall be construed to prevent a child from being found
both dependent and delinquent or both dependent and a child in need of services
if there exists a factual basis for such a finding.
(b)
If a child alleged or found to be delinquent or a child in need of services is
also alleged or found to be dependent, dependency proceedings may be
consolidated with delinquency or child in need of services proceedings to the
extent consistent with due process of law as provided in Articles 3, 6, and 7 of
this chapter.
(c)
The time frames and requirements of Article 3 of this chapter shall apply to
cases in which a child alleged or found to be a child in need of services or
delinquent is placed in foster care and has also been alleged or found to be
dependent.
15-11-13.
The
court shall have jurisdiction to appoint a guardian of the person or conservator
of the property of any child in any proceeding authorized by this chapter. Any
such appointment shall be made pursuant to the same requirements of notice and
hearing as are provided for appointments of guardians of the persons and
conservators of the properties of any child by the probate court.
15-11-14.
(a)
The court shall hold a hearing within 30 days of receipt of a case transferred
from the probate court pursuant to subsection (f) of Code Section 29-2-6 or
subsection (b) of Code Section 29-2-8.
(b)
After notice and hearing, the court may make one of the following
orders:
(1)
That the temporary guardianship be established or continued if the court
determines that the temporary guardianship is in the best interests of the
child. The order shall thereafter be subject to modification only as provided
in Code Section 15-11-32; or
(2)
That the temporary guardianship be terminated if the court determines it is in
the best interests of the child. The child shall be returned to the parent
unless the court determines that there is probable cause to believe the child
would be abused, neglected, or abandoned in the custody of the child's
parent.
(c)
A case shall proceed as a dependency matter pursuant to the provisions of
Article 3 of this chapter if, after notice and hearing, the court
determines:
(1)
That it is in the best interests of the child that the temporary guardianship
not be established or that the temporary guardianship be terminated but there is
probable cause to believe the child would be abused, neglected, or abandoned if
returned to the parent; or
(2)
That it is in the best interests of the child that the temporary guardianship be
continued over the parent's objection.
(d)
The court may refer a case transferred from probate court to DFCS for further
investigation.
15-11-15.
(a)
In handling divorce, alimony, habeas corpus, or other cases involving the
custody of a child, a superior court may transfer the question of the
determination of custody, support, or custody and support to the juvenile court
either for investigation and a report back to the superior court or for
investigation and determination.
(b)
If the referral is for investigation and determination, then the juvenile court
shall proceed to handle the matter in the same manner as though the action
originated under this chapter in compliance with the order of the superior
court, except that the parties shall not be entitled to obtain an appointed
attorney through the juvenile court.
(c)
At any time prior to the determination of any such question, the juvenile court
may transfer the jurisdiction of the question back to the referring superior
court.
15-11-16.
(a)
A proceeding under this chapter may be commenced:
(1)
By an order of transfer of a case from another court as provided in Code Section
15-11-11 or 15-11-567 or subsection (f) of Code Section 29-2-6 or subsection (b)
of Code Section 29-2-8;
(2)
By the summons, notice to appear, or other citation in a proceeding charging a
juvenile traffic offense or a violation of the laws, rules, and regulations
governing the Georgia Department of Natural Resources Game and Fish Division;
or
(3)
By the filing of a petition for adoption or legitimation under Code Section
15-11-11, or in other cases by the filing of a complaint or a petition as
provided in Articles 3, 4, 6, 7, 9, and 11 of this chapter.
(b)
The petition and all other documents in the proceeding shall be entitled 'In the
interest of _____, a child,' except upon appeal.
(c)
On appeal, the anonymity of the child, and where appropriate, a victim or
witness who is under the age of 18 years, shall be preserved by appropriate use
of the child's, victim's, or witness's initials as appropriate.
15-11-17.
(a)
All hearings under this chapter shall be conducted by the court without a jury.
Any hearing may be adjourned from time to time within the discretion of the
court.
(b)
Except as otherwise provided, all hearings shall be conducted in accordance with
Title 24.
(c)
The proceedings shall be recorded by stenographic notes or by electronic,
mechanical, or other appropriate means capable of accurately capturing a full
and complete record of all words spoken during the proceedings.
(d)
A juvenile court judge, an associate juvenile court judge, a judge pro tempore
of the juvenile court, or any person sitting as a juvenile court judge may
conduct hearings in connection with any proceeding under this chapter in any
county within the judicial circuit. When a superior court judge sits as a
juvenile court judge, hearings in connection with any proceeding under this
chapter may be heard before such judge in any county within the judicial circuit
over which the judge presides.
15-11-18.
Upon
application of a party, the court, or any authorized officer of the court, the
clerk of the court shall issue subpoenas in accordance with the provisions of
Title 24 requiring attendance and testimony of witnesses and production of
papers at any hearing under this chapter.
15-11-19.
(a)
A party has the right to be present, to be heard, to present evidence material
to the proceedings, to cross-examine witnesses, to examine pertinent court files
and records, and to appeal the orders of the court; provided, however, that the
court shall retain the discretion to exclude a child from any part or parts of
any proceeding under Article 3 of this chapter if the court determines that it
is not in the child's best interests to be present. The attorney for the child
shall not be excluded.
(b)
A person afforded rights under this chapter shall be advised of such rights at
that person's first appearance before the court.
15-11-20.
(a)
At any time during a proceeding under this chapter, the court may refer the case
to mediation.
(b)
When referring a case to mediation, the court shall take into consideration the
guidelines from the Georgia Commission of Dispute Resolution for mediating cases
involving domestic violence or family violence.
(c)
A referral order shall recite that while the parties shall attend a scheduled
mediation session and shall attempt to mediate in good faith, such parties shall
not be required to reach an agreement.
(d)
Victims in a delinquency case referred to mediation may attend and participate
in such mediation.
15-11-21.
(a)
Once an order referring a case to mediation has been signed, the court shall
appoint a mediator from a list of court approved mediators who are registered
with the Georgia Office of Dispute Resolution to mediate juvenile court
cases.
(b)
The court shall appoint a qualified mediator within five days of signing the
order referring the case to mediation.
15-11-22.
(a)
The parties shall sign and date a written agreement to mediate. The agreement
to mediate shall identify the controversies between the parties, affirm the
parties' intent to resolve such controversies through mediation, and specify the
circumstances under which mediation may continue. The agreement to mediate
shall specify the confidentiality requirements of mediation and the exceptions
to confidentiality in mediation as such are set forth in the Supreme Court of
Georgia's Uniform Rules for Alternative Dispute Resolution
Programs.
(b)
A mediator shall not knowingly assist the parties in reaching an agreement which
would be unenforceable for reasons such as fraud, duress, the absence of
bargaining ability, unconscionability, or lack of court
jurisdiction.
(c)
Prior to the parties signing an agreement to mediate, the mediator shall advise
the parties that each of them may obtain review by an attorney of any agreement
reached as a result of the mediation.
(d)
The mediator shall at all times be impartial.
15-11-23.
(a)
Upon issuing a referral to mediation the court may stay the
proceeding.
(b)
Mediation shall occur as soon as practicable and be scheduled within 30 days of
the order referring the matter to mediation unless the time frame is extended by
the court.
(c)
The court may extend the timeline for scheduling a mediation for an additional
30 days.
15-11-24.
(a)
Either party may withdraw from or terminate further participation in mediation
at any time.
(b)
A mediator shall terminate mediation when:
(1)
The mediator concludes that the participants are unable or unwilling to
participate meaningfully in the process;
(2)
The mediator concludes that a party lacks the capacity to perceive and assert
his or her own interests to the degree that a fair agreement cannot be
reached;
(3)
The mediator concludes that an agreement is unlikely; or
(4)
The mediator concludes that a party is a danger to himself or herself or
others.
15-11-25.
(a)
All mediation agreements shall be presented to the juvenile court judge for
approval.
(b)
The mediation agreement shall be made an order of the court unless, after
further hearing, the court determines by clear and convincing evidence that the
agreement is not in the best interests of the child.
15-11-26.
Whenever
a best interests determination is required, the court shall consider and
evaluate all of the factors affecting the best interests of the child in the
context of the child's age and developmental needs. Such factors shall
include:
(1)
The physical safety and welfare of the child, including food, shelter, health,
and clothing;
(2)
The love, affection, bonding, and emotional ties existing between the child and
each parent or person available to the care for the child;
(3)
The love, affection, bonding, and emotional ties existing between the child and
his or her siblings, half siblings, and stepsiblings and the residence of such
other children;
(4)
The child's need for permanence, including the child's need for stability and
continuity of relationships with a parent, siblings, other relatives, and any
other person who has provided significant care of the child;
(5)
The child's sense of attachments, including the child's sense of security, the
child's sense of familiarity, and continuity of affection for the
child;
(6)
The capacity and disposition of each parent or person available to care for the
child to give the child love, affection, and guidance and to continue the
education and rearing of the child;
(7)
The home environment of each parent or person available to care for the child
considering the promotion of nurturance and safety of the child rather than
superficial or material factors;
(8)
The stability of the family unit and the presence or absence of support systems
within the community to benefit the child;
(9)
The mental and physical health of all individuals involved;
(10)
The home, school, and community record and history of the child, as well as any
health or educational special needs of the child;
(11)
The child's community ties, including church, school, and friends;
(12)
The child's background and ties, including familial, cultural, and
religious;
(13)
The least disruptive placement alternative for the child;
(14)
The uniqueness of every family and child;
(15)
The risks attendant to entering and being in substitute care;
(16)
The child's wishes and long-term goals;
(17)
The preferences of the persons available to care for the child;
(18)
Any evidence of family violence, substance abuse, criminal history, or sexual,
mental, or physical child abuse in any current, past, or considered home for the
child;
(19)
Any recommendation by a court appointed custody evaluator or guardian ad litem;
and
(20)
Any other factors considered by the court to be relevant and proper to its
determination.
15-11-27.
During
the pendency of any proceeding under this chapter, the court may
order:
(1)
The child to be examined by outside parties or private providers at a suitable
place by a physician or psychologist; provided, however, that orders to perform
an evaluation shall not be imposed upon DJJ; and
(2)
Medical or surgical treatment of a child who is suffering from a serious
physical condition or illness which, in the opinion of a licensed physician,
requires prompt treatment, even if the parent, guardian, or legal custodian has
not been given notice of a hearing, is not available, or without good cause
informs the court of his or her refusal to consent to the
treatment.
15-11-28.
(a)
No admission, confession, or incriminating information obtained from a child in
the course of any screening that is undertaken in conjunction with proceedings
under this chapter, including but not limited to, court ordered screenings,
shall be admitted into evidence in any adjudication hearing in which the child
is accused under this chapter. Such admission, confession, or incriminating
information may be considered by the court at disposition.
(b)
No admission, confession, or incriminating information obtained from a child in
the course of any assessment or evaluation, or any treatment that is undertaken
in conjunction with proceedings under this chapter, including but not limited to
court ordered assessments and evaluations, shall be admitted into evidence
against the child, except as rebuttal or impeachment evidence, or used as a
basis for such evidence, in any future adjudication hearing or criminal
proceeding in which the child is accused. Such admission, confession, or
incriminating information may be considered by the court at
disposition.
15-11-29.
(a)
In any proceeding under this chapter, either on application of a party or on the
court's own motion, the court may make an order restraining or otherwise
controlling the conduct of a person if due notice of the application or motion
and the grounds therefor and an opportunity to be heard thereon have been given
to the person against whom the order is directed. Such an order may require any
such person:
(1)
To stay away from the home or the child;
(2)
To permit a parent to visit the child at stated periods;
(3)
To abstain from offensive conduct against the child, the child's parent, or any
person to whom custody of the child is awarded;
(4)
To give proper attention to the care of the home;
(5)
To cooperate in good faith with an agency to which custody of a child is
entrusted by the court or with an agency or association to which the child is
referred by the court;
(6)
To refrain from acts of commission or omission that tend to make the home not a
proper place for the child;
(7)
To ensure that the child attends school pursuant to any valid law relating to
compulsory attendance;
(8)
To participate with the child in any counseling or treatment deemed necessary
after consideration of employment and other family needs; and
(9)
To enter into and complete successfully a substance abuse program approved by
the court.
(b)
After notice and opportunity for hearing afforded to a person subject to a
protective order, the order may be modified or extended for a further specified
period, or both, or may be terminated if the court finds that the best interests
of the child and the public will be served thereby.
(c)
Protective orders may be enforced by citation to show cause for contempt of
court by reason of any violation thereof and, where protection of the welfare of
the child so requires, by the issuance of a warrant to take the alleged violator
into custody and bring him or her before the court.
15-11-30.
A
legal custodian has the right to physical custody of the child, the right to
determine the nature of the care and treatment of the child, including ordinary
medical care, and the right and duty to provide for the care, protection,
training, and education and the physical, mental, and moral welfare of the
child, subject to the conditions and limitations of the order and to the
remaining rights and duties of the child's parent or guardian.
15-11-31.
(a)
In addition to all other inherent powers of the court to enforce its lawful
orders, the court may punish an adult for contempt of court by imprisonment for
not more than 20 days or a fine not to exceed $1,000.00 for willfully disobeying
an order of the court or for obstructing or interfering with the proceedings of
the court or the enforcement of its orders.
(b)
The court shall restrict and limit the use of contempt powers with respect to
commitment of a child to a secure facility and in no event shall a child solely
alleged or adjudicated to be dependent be placed in a secure
facility.
(c)
A child may be placed in a secure facility for not more than 72 hours
if:
(1)
He or she is found in contempt of court;
(2)
Less restrictive alternatives have been considered and are unavailable or
inappropriate or if the child has already been ordered to serve a less
restrictive alternative sanction but failed to comply with the sanction;
and
(3)
For a child in need of services, the requirements of Code Section 15-11-416
regarding the valid court order exception have been met.
(d)
In addition or as an alternative to the punishment provided in subsection (a) of
this Code section, after notice and opportunity to be heard, the court may
impose any or all of the following sanctions when a parent, guardian, or legal
custodian other than DJJ or DFCS willfully violates any order issued by the
court directed to him or her:
(1)
Require the parent, guardian, or legal custodian of the child to make
restitution in an amount not to exceed $2,500.00 for any damage or loss caused
by the child's wrongful act;
(2)
Reimburse the state for the costs of detention, treatment, or rehabilitation of
the child;
(3)
Require the parent, guardian, or legal custodian of the child to participate in
a court approved educational or counseling program designed to contribute to the
ability to provide proper parental care and supervision of the child, including,
but not limited to, parenting classes; or
(4)
Require the parent, guardian, or legal custodian of the child to enter into a
contract or plan as a part of the disposition of any charges against the child,
so as to provide for the supervision and control of the child by the parent,
guardian, or legal custodian and reunification with the child.
15-11-32.
(a)
An order of the court shall be set aside if:
(1)
It appears that it was obtained by fraud or mistake sufficient therefor in a
civil action;
(2)
The court lacked jurisdiction over a necessary party or of the subject matter;
or
(3)
Newly discovered evidence so requires.
(b)
An order of the court may also be changed, modified, or vacated on the ground
that changed circumstances so require in the best interests of the child except
an order of dismissal following a contested adjudicatory hearing.
(c)
Except as otherwise provided in Code Section 15-11-602, an order committing a
child to DJJ may only be modified after the child has been transferred to DJJ
custody upon motion of DJJ.
(d)
Any party to the proceeding, the probation officer, or any other person having
supervision or legal custody of or an interest in the child may petition the
court for the relief provided in this Code section. Such petition shall set
forth in clear and concise language the grounds upon which the relief is
requested.
(e)
After a petition seeking relief under this Code section is filed, the court
shall fix a time for hearing and shall cause notice to be served on the parties
to the proceeding or those affected by the relief sought. After the hearing,
the court shall deny or grant relief as the evidence warrants.
15-11-33.
(a)
Whenever an order of disposition incorporates a reunification plan and the
residence of the parent is not in the county of the court with jurisdiction or
the residence of the parent changes to a county other than the county of the
court with jurisdiction, the court may transfer jurisdiction to the juvenile
court of the residence of the parent to whom the reunification plan is
directed.
(b)
Within 30 days of the filing of the transfer order, the transferring court shall
provide the receiving court with certified copies of the adjudication order, the
order of disposition, the order of transfer, the case plan, and any other court
documents deemed necessary by the transferring court to enable the receiving
court to assume jurisdiction over the matter.
(c)
The transferring court shall retain jurisdiction until the receiving court
acknowledges acceptance of the transfer.
(d)
Compliance with this Code section shall terminate jurisdiction in the
transferring court and confer jurisdiction in the receiving court.
15-11-34.
Except
as otherwise provided by Code Section 17-10-14, a child shall not be committed
to an adult correctional facility or other facility used primarily for the
execution of sentences of persons convicted of a crime.
15-11-35.
In
all cases of final judgments of the juvenile court, appeals shall be taken to
the Court of Appeals or the Supreme Court in the same manner as appeals from the
superior court. However, no such judgment or order shall be superseded except
in the discretion of the trial court; rather, the judgment or order of the court
shall stand until reversed or modified by the reviewing court.
15-11-36.
(a)
The following expenses shall be a charge upon the funds of the county upon
certification thereof by the court:
(1)
The cost of medical and other examinations and treatment of a child ordered by
the court;
(2)
The cost of care and support of a child committed by the court to the legal
custody of an individual or a public or private agency other than DJJ, but the
court may order supplemental payments, if such are necessary or desirable for
services;
(3)
Reasonable compensation for services and related expenses of an attorney
appointed by the court, when appointed by the court to represent the child and
when appointed by the court to conduct the proceedings;
(4)
Reasonable compensation for a guardian ad litem;
(5)
The expense of service of summons, notices, and subpoenas, travel expenses of
witnesses, transportation, subsistence, and detention of the child, and other
like expenses incurred in the proceedings under this chapter; and
(6)
The cost of counseling and counsel and advice required or provided under the
provisions of Code Section 15-11-212 or 15-11-601.
(b)
For a child not committed to the legal custody of DJJ, the county, upon
certification by the court, shall reimburse DJJ for reasonable and necessary
expenses incurred for a child's subsistence, detention, care, and other like
expenses.
(c)
If, after due notice to the parent or other person legally obligated to care for
and support the child and after affording such person an opportunity to be
heard, the court finds that such person is financially able to pay all or part
of the costs and expenses outlined in subsection (a) of this Code section, the
court may order such person to pay the same and prescribe the manner of payment.
In addition, the court may order payment from the parent or other legally
obligated person or entity to reimburse all or part of the costs and expenses of
the department or DJJ for treatment, care, and support of the child. Unless
otherwise ordered, payment shall be made to the clerk of the court for
remittance to the person or agency, including the department or DJJ, to whom
compensation is due or, if the costs and expenses have been paid by the county,
to the appropriate officer of the county.
15-11-37.
(a)
The court may collect supervision fees from those who are placed under the
court's formal or informal supervision in order that the court may use those
fees to expand the provision of the following types of ancillary
services:
(1)
Housing in nonsecure facilities;
(2)
Educational services, tutorial services, or both;
(3)
Counseling and diagnostic testing;
(4)
Mediation;
(5)
Transportation to and from court ordered services;
(6)
Truancy intervention services;
(7)
Restitution programs;
(8)
Job development or work experience programs;
(9)
Community services; and
(10)
Any other additional programs or services needed to meet the best interests,
development, and rehabilitation of the child.
(b)
The juvenile court may order each delinquent child or child in need of services
who receives supervision to pay to the clerk of the court:
(1)
An initial court supervision user's fee of not less than $10.00 nor more than
$200.00; and
(2)
A court supervision user's fee of not less than $2.00 nor more than $30.00 for
each month that the child receives supervision.
The
child and each parent, guardian, or legal custodian of the child may be jointly
and severally liable for the payment of such fee and shall be subject to the
enforcement procedure in subsection (c) of Code Section 15-11-36. The judge
shall provide that any such fees shall be imposed on such terms and conditions
as shall assure that the funds for the payment are from moneys earned by the
child. All moneys collected by the clerk under this subsection shall be
transferred to the county treasurer, or such other county official or employee
who performs duties previously performed by the treasurer, who shall deposit the
moneys into a county supplemental juvenile services fund. The governing
authority of the county shall appropriate moneys from the county supplemental
juvenile services fund to the juvenile court for the court's discretionary use
in providing supplemental community based services described in subsection (a)
of this Code section to child offenders. These funds shall be administered by
the county and the court may draw upon them by submitting invoices to the
county. The county supplemental juvenile services fund may be used only for
these services. Any moneys remaining in the fund at the end of the county
fiscal year shall not revert to any other fund but shall continue in the county
supplemental juvenile services fund. The county supplemental juvenile services
fund may not be used to replace other funding of services.
(c)
The clerk of the court shall be responsible for collections of fees as ordered
by the court.
(d)
For the purpose of this Code section, the term 'guardian' or 'legal custodian'
shall not be interpreted or construed to include the department or
DJJ.
15-11-38.
(a)
Any court may order the establishment of a community based risk reduction
program, within the geographical jurisdiction of the court, for the purpose of
utilizing available community resources in assessment and intervention in cases
of delinquency, dependency, or children in need of services. Subject to the
procedures, requirements, and supervision established in the order creating such
program, any individual and any public or private agency or entity may
participate in the program.
(b)
As part of a risk reduction program, a court may implement or adopt an early
intervention program designed to identify children and families who are at risk
of becoming involved with the court. Such early intervention program shall be
for the purpose of developing and implementing intervention actions or plans to
divert the children and their families from becoming involved in future cases in
the court. The court's involvement shall be for the limited purpose of
facilitating the development of the program and for the purpose of protecting
the confidentiality of the children and families participating in the
program.
(c)
As part of an early intervention program, the court may enter into protocol
agreements with school systems within the court's jurisdiction, the county
department of family and children services, the county department of health,
DJJ, any state or local department or agency, any mental health agency or
institution, local physicians or health care providers, licensed counselors and
social workers, and any other social service, charitable, or other entity or any
other agency or individual providing educational or treatment services to
families and children within the jurisdiction of the court. Such protocol
agreements shall authorize the exchange of confidential information in the same
manner and subject to the same restrictions, conditions, and penalties as
provided in Code Section 15-11-40.
(d)
When any agency or entity participating in a protocol agreement identifies a
child who is at risk of becoming delinquent, dependent, or a child in need of
services, the agency or entity shall refer the case to a multiagency staffing
panel. The panel shall develop a multiagency intervention plan for the child.
The child or the parent, or both, may be present during any review of the
child's case by the panel. The parent, guardian, or legal custodian of the
child shall be notified of the plan by the agency making the referral or by a
person or entity designated by the panel to administer the program. The staff
of the court, but not the judge, shall work with the other agencies involved to
educate the parent and the child on the importance of following the plan and on
the consequences if either the parent or the child is referred to the court. If
an intervention plan is developed for a child and the parent, guardian, or legal
custodian consents to the plan, the failure to comply with the plan or any
portion thereof may constitute the basis for a referral to DFCS.
15-11-39.
(a)
In any jurisdiction within which a risk reduction program has been established,
when a child comes before the court for disposition, the court may order that an
assessment be made of the child and the circumstances resulting in the child
being before the court.
(b)
The assessment shall be developed by assembling existing information and
individualized plans of the agencies involved in providing services to the child
and his or her parent, guardian, or legal custodian. If the assessment
demonstrates a need for a case plan, the court may order that a case plan be
developed by a panel representing community agencies as authorized by the court.
The case plan shall contain the proposed actions and alternatives for the proper
and efficient use of available community resources to assist the
child.
(c)
The case plan shall be served on the child and the child's parent, guardian, or
legal custodian. The case plan shall also include a cover letter which contains
the following information:
(1)
Sources to explain the process, procedures, and penalties for not responding to
the court order in the prescribed time frame; and
(2)
The deadline for responding to the court order and stating objections to the
case plan or any portion thereof is ten days from the date of
service.
(d)
If no objection is made or if the child, parent, guardian, or legal custodian
consents to the case plan, the case plan shall be incorporated into and made a
part of the disposition order entered in the case by entry of a supplemental
order. The case plan may be modified by the court at any time the child is
under the jurisdiction of the court.
(e)
If a child or a parent, guardian, or legal custodian objects to the case plan,
the court shall conduct a hearing. The court may decline to adopt the case plan
or may confirm or modify the case plan. In implementing a case plan, the court
shall have available all of the protective powers set forth in Code Section
15-11-29, without the necessity of a show cause hearing, unless objection is
made to the case plan.
15-11-40.
(a)
Notwithstanding any provision contained in this chapter or in any rule or
regulation adopted by any department, board, or agency of the state to the
contrary, the court and any individual, public or private agency, or other
entity participating in a community based risk reduction program may exchange,
as necessary, information, medical records, school records, immigration records,
records of adjudication, treatment records, and any other records or information
which may aid in the assessment of and intervention with the children and
families in the program if such exchange of information is ordered by the court
or consented to by the parties. Such information shall be used by such
individuals and agencies only for the purposes provided in this chapter and as
authorized by the court for the purpose of implementing the case plan and for
the purposes permitted under each agency's own rules and regulations. Such
information shall not be released to any other individual or agency except as
may be necessary to effect the appropriate treatment or intervention as provided
in the case plan. Such information shall otherwise remain confidential as
required by state and federal law and the court may punish any violations of
confidentiality as contempt of court.
(b)
Any person who authorizes or permits any unauthorized person or agency to have
access to confidential records or reports of child abuse shall be guilty of a
misdemeanor. Any person who knowingly and under false pretenses obtains or
attempts to obtain confidential records or reports of child abuse or information
contained therein shall be guilty of a misdemeanor.
(c)
Confidential records or reports of child abuse and information obtained from
such records may not be made a part of any record which is open to the public
except that a prosecuting attorney may use and make public that record or
information in the course of any criminal prosecution for any offense which
constitutes or results from child abuse.
(d)
This Code section shall not abridge the provisions relating to confidentiality
of patient or client records and shall not serve to destroy or in any way
abridge the confidential or privileged character thereof.
15-11-41.
(a)
Except as otherwise provided in Code Section 15-11-710, entities governed by
federal or state privacy laws may require the following before sharing
confidential information:
(1)
For release of child abuse records by the department, a subpoena and subsequent
order of the court requiring the release of such information in accordance with
Code Section 49-5-41;
(2)
For release of information relating to diagnosis, prognosis, or treatment of
drug and alcohol abuse:
(A)
If the person is 18 or has been emancipated, consent from the person to whom
such information relates;
(B)
If the person is under the age of 18 years and has not been emancipated, valid
consent from such person's parent, guardian, or legal custodian or consent by a
parent, guardian, or legal custodian to a confidentiality agreement between the
health care provider and the unemancipated minor; provided, however, that
consent from an unemacipated minor shall be sufficient for the release of such
information if the unemancipated minor is allowed by law to consent to the
health care service to which the records relate without the consent of a parent,
guardian, or legal custodian and the unemancipated minor has not designated
anyone as a personal representative; or
(C)
A subpoena requiring the release of such information and protective order of the
court regarding the release of such information; and
(3)
For release of confidential health, mental health, or education
records:
(A)
If the person is 18 or has been emancipated, consent from the person to whom
such information relates;
(B)
If the person is under the age of 18 years and has not been emancipated, valid
consent from such person's parent, guardian, or legal custodian or consent by a
parent, guardian, or legal custodian to a confidentiality agreement between the
health care provider and the unemancipated minor; provided, however, that
consent from an unemacipated minor shall be sufficient for the release of such
information if the unemancipated minor is allowed by law to consent to the
health care service to which the records relate without the consent of a parent,
guardian, or legal custodian and has not designated anyone as a personal
representative;
(C)
A subpoena requiring the release of such information; or
(D)
An order of the court requiring the release of such information.
(b)
In issuing an order for the release of information under this Code section, the
court may:
(1)
Include protections against further disclosure of the information;
(2)
Limit the purposes for which the information may be used; and
(3)
Require records to be redacted so that only relevant information is
shared.
(c)
Nothing in this Code section shall be deemed to replace the responsibility of
entities governed by federal and state privacy laws to comply with such
laws.
ARTICLE
2
15-11-50.
(a)
There is created a juvenile court in every county in the state.
(b)
Except where election is provided by local law, the judge or a majority of the
judges of the superior court in each circuit in the state may appoint one or
more qualified persons as judge of the juvenile courts of the circuit. Such
superior court judge or judges shall establish the total number of circuit-wide
juvenile court judges and shall establish whether the judge or judges shall be
full time or part time, or a combination of full time and part time. Each
circuit-wide judge appointed shall have the authority to act as judge of each
juvenile court in each county of the circuit.
(c)
If no person is appointed as a juvenile court judge for a circuit, then a
superior court judge of the circuit shall as part of the duties of the superior
court judge assume the duties of the juvenile court judge in all counties in the
circuit in which a separate juvenile court judgeship has not been
established.
(d)
All juvenile court judgeships established on or before October 1, 2000, their
methods of compensation, selection, and operation shall continue until such time
as one or more circuit-wide juvenile court judges are appointed. However, in
any circuit where a superior court judge assumes the duties of the juvenile
court judge, such circuit shall not be entitled to the state funds provided for
in Code Section 15-11-52.
(e)
When one or more circuit-wide juvenile court judges are appointed or elected,
any juvenile court judge in office at that time shall be authorized to fulfill
his or her term of office. The jurisdiction of each judge shall be circuit
wide.
(f)
After the initial appointments and prior to any subsequent appointment or
reappointment of any part-time or full-time juvenile court judge, the judge or
judges responsible for making the appointment shall publish notice of the
vacancy of the juvenile court judgeship once a month for three months prior to
such appointment or reappointment. Such notice shall be published in the
official legal organ of each of the counties in the circuit where the juvenile
court judge has venue. The expense of such publication shall be paid by the
county governing authority in the county where such notice is
published.
(g)
In the event that more than one juvenile court judge is appointed, one judge
shall be designated presiding judge.
(h)
In any case in which action under this Code section is to be taken by a superior
court judge of the circuit, such action shall be taken as follows:
(1)
Where there are one or two superior court judges, such action shall be taken by
the chief judge of the circuit; and
(2)
Where there are more than two superior court judges, such action shall be taken
by a majority vote of the judges of the circuit.
15-11-51.
(a)
No person shall be judge of the juvenile court unless, at the time of his or her
appointment, he or she has attained the age of 30 years, has been a citizen of
the state for three years, is a member of the State Bar of Georgia, and has
practiced law for five years.
(b)
A juvenile court judge shall be eligible for reappointment or
election.
15-11-52.
(a)
Each appointed juvenile court judge shall serve for a term of four
years.
(b)
The compensation of the full-time or part-time juvenile court judges shall be
set by the superior court with the approval of the governing authority or
governing authorities of the county or counties for which the juvenile court
judge is appointed.
(c)
Out of funds appropriated to the judicial branch of government, the state shall
contribute toward the salary of the judges on a per circuit basis in the
following amounts:
(1)
Each circuit with one or more juvenile court judges who are not superior court
judges assuming the duties of juvenile court judges shall receive a state base
grant of $85,000.00;
(2)
In addition to this base amount, each circuit which has more than four superior
court judges is eligible for additional state grants. For each superior court
judge who exceeds the base of four judges, the circuit shall be eligible for an
additional grant in an amount equal to one-fourth of the base amount of the
state grant;
(3)
In circuits where the superior court judges elect to use the state grant for one
or more part-time judges, the amount of the state grant shall be as
follows:
(A)
For each part-time judge who works one day
weekly
|
$17,000.00
|
(B)
For each part-time judge who works two days
weekly
|
34,000.00
|
(C)
For each part-time judge who works three days
weekly
|
51,000.00
|
(D)
For each part-time judge who works four days
weekly
|
68,000.00;
|
provided,
however, that a grant for one or more part-time judges shall not exceed the
amount the circuit is eligible for in accordance with paragraphs (1) and (2) of
this subsection; and
(4)
All state grants provided by this subsection shall be spent solely on salaries
for juvenile court judges and shall not be used for any other
purposes.
15-11-53.
(a)
It shall be unlawful for any full-time juvenile court judge to engage in any
practice of law outside his or her role as a juvenile court judge.
(b)
It shall be unlawful for a part-time judge of any juvenile court to engage
directly or indirectly in the practice of law in his or her own name or in the
name of another as a partner in any manner in any case, proceeding, or matter of
any kind in the court to which he or she is assigned or in any other court in
any case, proceeding, or any other matters of which it has pending jurisdiction
or has had jurisdiction.
(c)
It shall be unlawful for any juvenile court judge, full time or part time, to
give advice or counsel to any person on any matter of any kind whatsoever which
has arisen directly or indirectly in court, except such advice or counsel as a
judge is called upon to give while performing the duties of a juvenile court
judge.
15-11-54.
(a)
Each juvenile court shall be assigned and attached to the superior court of the
county for administrative purposes.
(b)
The governing authority of the county of residence of each juvenile court judge
shall offer the juvenile court judge insurance benefits and any other benefits
except retirement or pension benefits equivalent to those offered to employees
of the county, with a right to contribution from other counties in the circuit
for a pro rata contribution toward the costs of such benefits, based on county
population. Counties shall continue to provide membership in retirement plans
available to county employees for any juvenile court judge in office before July
1, 1998, who did not become a member of the Georgia Judicial Retirement System
provided by Chapter 23 of Title 47.
(c)
Except for state base grants provided by Code Section 15-11-52, all expenditures
of the court are declared to be an expense of the court and payable out of the
county treasury with the approval of the governing authority or governing
authorities of the county or counties for which the juvenile court judge is
appointed.
15-11-55.
(a)
To the extent that the provisions of this article conflict with a local
constitutional amendment authorizing the election of a juvenile court judge and
with the provisions of a local Act authorized by such local constitutional
amendment to provide for the term of office, vacancies in office,
qualifications, compensation, and full-time or part-time status of a juvenile
court judge or judges, the provisions of such local constitutional amendment and
such local Act shall govern.
(b)
The state grants provided by Code Section 15-11-52 shall be provided to any
circuit encompassing a juvenile court governed by the provisions of a local
constitutional amendment and a local Act in the same manner as other circuits,
except that, in any circuit with one or more elected juvenile court judges, the
elected juvenile court judge who is senior in duration of service as a juvenile
court judge shall establish, subject to other applicable provisions of law, the
total number of circuit-wide juvenile court judges, whether the judge or judges
shall be full time or part time or a combination of full time and part time, and
the compensation of any part-time juvenile court judge or judges.
15-11-56.
(a)
No person who is serving as a full-time juvenile court judge shall at the same
time hold the office of judge of any other class of court of this
state.
(b)
No person serving as a juvenile court judge after being elected juvenile court
judge pursuant to a local law authorized by a constitutional amendment shall at
the same time hold the office of judge of any other class of court of this
state.
(c)
Nothing in this Code section shall prevent any duly appointed or elected
juvenile court judge from sitting by designation as a superior court judge
pursuant to Code Section 15-1-9.1.
15-11-57.
(a)
Whenever a juvenile court judge is appointed it shall be the duty of the clerk
of the superior court to forward to the Secretary of State and to the Council of
Juvenile Court Judges a certified copy of the order of appointment. The order
of appointment shall set out the name of the person appointed, the term of
office, the effective date of the appointment, the name of the person being
succeeded, if any, and whether the office was vacated by resignation, death, or
otherwise. Upon receipt of such order, the Secretary of State shall issue a
commission as for superior court judges.
(b)
Whenever an associate juvenile court judge is appointed to serve in a juvenile
court, the clerk of the juvenile court shall forward a certified copy of the
order of appointment to the Council of Juvenile Court Judges.
15-11-58.
(a)
All of the judges and associate judges of the courts exercising jurisdiction
over children shall constitute a Council of Juvenile Court Judges. The council
shall annually elect from among its members a judge to serve as presiding judge
and chairperson of the council.
(b)
The Council of Juvenile Court Judges:
(1)
Shall meet at stated times to be fixed by it or on call of the
chairperson;
(2)
May establish general policies for the conduct of courts exercising jurisdiction
over children;
(3)
May promulgate uniform rules and forms governing procedures and practices of the
courts;
(4)
Shall publish in print or electronically an annual report of the work of the
courts exercising jurisdiction over children, which shall include statistical
and other data on the courts' work and services, research studies the council
may make of the problems of children and families dealt with by the courts, and
any recommendations for legislation; and
(5)
Shall be authorized to inspect and copy records of the courts, law enforcement
agencies, the department, and DJJ for the purpose of compiling statistical data
on children.
(c)
Subject to the approval of the Council of Juvenile Court Judges, the presiding
judge of the council shall appoint a chief administrative and executive officer
for the Council of Juvenile Court Judges who shall have the title of director of
the Council of Juvenile Court Judges. Under the general supervision of the
presiding judge of the council and within the policies established by the
Council of Juvenile Court Judges, the director shall:
(1)
Provide consultation to the courts regarding the administration of court
services and the recruitment and training of personnel;
(2)
Make recommendations to the Council of Juvenile Court Judges for improvement in
court services;
(3)
With the approval of the presiding judge, appoint consultants and necessary
clerical personnel to perform the duties assigned to the Council of Juvenile
Court Judges and the director;
(4)
Collect necessary statistics and prepare an annual report of the work of the
courts;
(5)
Promulgate in cooperation with DJJ standard procedures for coordinating state
and local probation services throughout the state; and
(6)
Perform such other duties as the presiding judge of the council shall
specify.
15-11-59.
(a)
The Council of Juvenile Court Judges, in conjunction with the Institute of
Continuing Judicial Education of Georgia, shall establish seminars for all
judges and associate juvenile court judges exercising juvenile court
jurisdiction and may make provisions relative to such seminars by court rules
properly adopted.
(b)
Seminars shall offer instruction and training in juvenile law and procedure,
child development and psychology, sociological theories relative to delinquency
and breakdown of the family structure, and such other training and activities as
the Council of Juvenile Court Judges may determine would promote the quality of
justice in the juvenile court system.
(c)
Expenses of administration of seminar programs and actual expenses incurred by
the judges or associate juvenile court judges in attending such seminars shall
be paid from state funds appropriated for the Council of Juvenile Court Judges
for such purpose, from federal funds available to the Council of Juvenile Court
Judges for such purpose, or from other appropriate sources. Expenses for judges
and associate juvenile court judges shall not exceed the allowances allowed
members of the General Assembly.
(d)
Each judge and associate juvenile court judge exercising juvenile jurisdiction
shall receive training appropriate to the role and participate in at least 12
hours of continuing legal education or continuing judicial education established
or approved by the Council of Juvenile Court Judges each year and meet such
rules as established by the Council of Juvenile Court Judges pertaining to such
training. Superior court judges may meet this requirement by attending seminars
held in conjunction with the seminars for superior court judges provided by the
Institute of Continuing Judicial Education of Georgia. Judges and associate
juvenile court judges shall not exercise juvenile court jurisdiction unless the
Council of Juvenile Court Judges certifies that annual training has been
accomplished or unless the judge is in the first year of his or her initial
appointment; provided, however, that the Council of Juvenile Court Judges may in
hardship cases extend deadlines for compliance with this Code
section.
15-11-60.
(a)
A judge may appoint one or more persons to serve as associate juvenile court
judges in juvenile matters on a full-time or part-time basis. The associate
juvenile court judge shall serve at the pleasure of the judge, and his or her
salary shall be fixed by the judge with the approval of the governing authority
or governing authorities of the county or counties for which the associate
juvenile court judge is appointed. The salary of each associate juvenile court
judge shall be paid from county funds.
(b)
Each associate juvenile court judge shall have the same qualifications as
required for a judge of the juvenile court as provided in Code Section 15-11-51;
provided, however, that any person serving as an associate juvenile court judge
on January 1, 2013, shall be qualified for appointment thereafter to serve as an
associate juvenile court judge.
15-11-61.
(a)
The judge may appoint one or more persons to serve at the pleasure of the judge
as associate juvenile court traffic judges on a full-time or part-time
basis.
(b)
An associate juvenile court traffic judge shall be a member of the State Bar of
Georgia.
(c)
The compensation of associate juvenile court traffic judges shall be fixed by
the judge with the approval of the governing authority of the county and shall
be paid in equal monthly installments from county funds, unless otherwise
provided by law.
15-11-62.
(a)
In the event of the disqualification, illness, or absence of the judge of the
juvenile court, the judge of the juvenile court may appoint any member of the
State Bar of Georgia who is resident in the judicial circuit in which the court
lies and has practiced law for five years, any judge or senior judge of the
superior courts, or any duly appointed juvenile court judge to serve as judge
pro tempore of the juvenile court. In the event the judge of the juvenile court
is absent or unable to make such appointment, the judge of the superior court of
that county may so appoint.
(b)
The person appointed shall have the authority to preside in the stead of the
disqualified, ill, or absent judge and shall be paid from the county treasury
such emolument as the appointing judge shall prescribe; provided, however, that
the emolument shall not exceed the compensation received by the regular juvenile
court judge for such services.
15-11-63.
(a)
The judge of the juvenile court shall have the authority to appoint clerks and
any other personnel necessary for the execution of the purposes of this
chapter.
(b)
The salary, tenure, compensation, and all other conditions of employment of such
employees shall be fixed by the judge, with the approval of the governing
authority of the county. The salaries of the employees shall be paid out of
county funds.
(c)
Any employee of the court may be removed for cause by the judge of the court,
the reasons therefor to be assigned in writing.
15-11-64.
(a)
Any person who is appointed as or is performing the duties of a clerk of the
juvenile court shall satisfactorily complete 20 hours of training in the
performance of the duties of a clerk of the juvenile court within the first 12
months following such appointment or the first performance of such
duties.
(b)
In each year after the initial appointment, any person who is appointed as or is
performing the duties of a clerk of the juvenile court shall satisfactorily
complete in that year 12 hours of additional training in the performance of such
person's duties as clerk.
(c)
Training pursuant to this Code section shall be provided by the Institute of
Continuing Judicial Education of Georgia. Upon satisfactory completion of such
training, a certificate issued by the institute shall be placed into the minutes
of the juvenile court record in the county in which such person serves as a
clerk of the juvenile court. All reasonable expenses of such training
including, but not limited to, any tuition fixed by such institution shall be
paid from county funds by the governing authority of the county for which the
person serves as a clerk of the juvenile court, unless funding is provided from
other sources.
(d)
A judge of the juvenile court shall appoint a clerk pro tempore for that court
in order for the regular clerk to attend required training. Such clerk pro
tempore shall not be required to meet the training requirements for performing
the clerk's duties.
(e)
The provisions of this Code section shall not apply to clerks of juvenile courts
who also act as clerks of superior courts and who already have mandatory
training requirements in such capacity.
15-11-65.
(a)
The judge may appoint one or more probation and intake officers.
(b)
The salaries of the probation and intake officers shall be fixed by the judge
with the approval of the governing authority of the county or counties for which
he or she is appointed and shall be payable from county funds.
15-11-66.
(a)
A county juvenile probation officer or DJJ staff member serving as a juvenile
probation officer:
(1)
Shall make investigations, reports, and recommendations to the court as directed
by this chapter;
(2)
Shall supervise and assist a child placed on probation or under the protective
supervision or care of such probation officer by order of the court or other
authority of law;
(3)
Shall make appropriate referrals to other private or public agencies of the
community if such assistance appears to be needed or desirable;
(4)
May take into custody and detain a child who is under the supervision or care of
such probation officer if the probation officer has reasonable cause to believe
that the child's health or safety or that of another is in imminent danger, or
that the child may abscond or be removed from the jurisdiction of the court, or
when so ordered by the court pursuant to this chapter;
(5)
May not conduct accusatory proceedings against a child who is or may be under
such probation officer's care or supervision;
(6)
May not draft judicial orders, official charges, or any other document which is
required to be drafted by an attorney;
(7)
Shall perform all other functions designated by this chapter or by order of the
court pursuant thereto. Any of the functions specified in this Code section may
be performed in another state if authorized by the court located in this state
and permitted by the laws of the other state; and
(8)
Other laws to the contrary notwithstanding, no county juvenile probation officer
or DJJ staff serving as a probation officer shall be liable for the acts of a
child not detained or taken into custody when, in the judgment of such officer,
such detention or custody is not warranted.
(b)
Notwithstanding subsection (a) of this Code section, DJJ, as the employer, shall
maintain sole authority over the duties and responsibilities of all DJJ staff
members serving as probation officers.
15-11-67.
(a)
A juvenile court intake officer:
(1)
Shall receive and examine complaints and charges of delinquency, dependency, or
that a child is in need of services for the purpose of considering the
commencement of proceedings under this chapter;
(2)
Shall make appropriate referrals to other private or public agencies of the
community if such assistance appears to be needed or desirable;
(3)
Shall compile on a regular basis the case files or a report on those cases that
were informally adjusted for review by the judge;
(4)
May not conduct accusatory proceedings against a child or draft judicial orders,
official charges, or any other document which is required to be drafted by an
attorney;
(5)
Shall perform all other functions designated by this chapter or by order of the
court pursuant thereto; and
(6)
Except as provided in Article I, Section II, Paragraph IX(d) of the
Constitution, no county juvenile court intake officer, or DJJ staff member
serving as a juvenile court intake officer shall be liable for the acts of a
child not detained or taken into custody when, in the judgment of such officer,
such detention or custody is not warranted.
(b)
Notwithstanding subsection (a) of this Code section, DJJ, as the employer, shall
maintain sole authority over the duties and responsibilities of all DJJ staff
members serving as juvenile court intake officers.
15-11-68.
(a)
The probation and intake services of the juvenile court of each county may be
transferred to and become a part of the state-wide juvenile and intake services
and be fully funded through DJJ. The probation and intake officers of juvenile
courts of those counties whose probation and intake services are transferred
pursuant to this Code section shall become DJJ employees on the date of such
transfer and on and after that date such employees shall be subject to the
salary schedules and other DJJ personnel policies, except that the salaries of
such employees shall not be reduced as a result of becoming DJJ
employees.
(b)
The probation and intake services of the juvenile court of a county may be
transferred to DJJ by local Act of the General Assembly which approves such
transfer.
(c)
Persons who were probation and intake officers of the juvenile court of a county
on June 30, 1996, but who were transferred as probation and intake officers to
and became a part of the state-wide juvenile and intake services system fully
funded through DJJ before January 1, 1999, shall be covered employees in the
classified service of the State Personnel Administration.
ARTICLE
3
Part 1
Part 1
15-11-100.
The
purpose of this article is:
(1)
To assist and protect children whose physical or mental health and welfare is
substantially at risk of harm from abuse, neglect, or exploitation and who may
be further threatened by the conduct of others by providing for the resolution
of dependency proceedings in juvenile court;
(2)
To ensure that dependency proceedings are conducted expeditiously to avoid
delays in permanency plans for children;
(3)
To provide the greatest protection as promptly as possible for children;
and
(4)
To ensure that the health, safety, and best interests of the child be the
paramount concern in all dependency proceedings.
15-11-101.
(a)
If necessary, the investigator of a report of child abuse and neglect may apply
to the court for certain medical examinations and evaluations of a child or
other children in the household.
(b)
Upon a showing of probable cause in an affidavit executed by the applicant, the
court may order a physical examination and evaluation of a child or other
children in the household by a physician. Such order may be granted ex
parte.
(c)
Upon a showing of probable cause in an affidavit executed by the applicant and
after a hearing, the court may order a psychological or psychiatric examination
and evaluation of a child or other children in the household by a psychologist,
psychiatrist, or other licensed mental health professional.
(d)
Upon a showing of probable cause in an affidavit executed by the applicant and
after a hearing, the court may order a forensic examination and evaluation of a
child or other children in the household by a psychologist, psychiatrist, or
other licensed mental health professional.
(e)
Upon a showing of probable cause in an affidavit executed by the applicant and
after a hearing, the court may order a physical, psychological, or psychiatric
examination of a child's parent, guardian, or legal custodian.
15-11-102.
(a)
The preliminary protective hearing shall be held promptly and no later than 72
hours after a child is placed in foster care, provided that, if the 72 hour time
frame expires on a weekend or legal holiday, such hearing shall be held on the
next day which is not a weekend or legal holiday.
(b)
If a child was not taken into protective custody or is released from foster care
at the preliminary protective hearing, the following time frames
apply:
(1)
The petition for dependency shall be filed within 30 days of the preliminary
protective hearing;
(2)
Summons shall be served at least 72 hours before the adjudication
hearing;
(3)
The adjudication hearing shall be held no later than 60 days after the filing of
the petition for dependency; and
(4)
If the dispositional hearing is not held in conjunction with the adjudication
hearing, it shall be held and completed within 30 days after the conclusion of
the adjudication hearing.
(c)
If a child is not released from foster care at the preliminary protective
hearing, the following time frames apply:
(1)
The petition for dependency shall be filed within five days of the preliminary
protective hearing;
(2)
Summons shall be served at least 72 hours before the adjudication
hearing;
(3)
The adjudication hearing shall be held no later than ten days after the filing
of the petition;
(4)
DFCS shall submit to the court its written report within 30 days of the date a
child who is placed in the custody of DFCS is removed from the home and at each
subsequent review of the disposition order. If the DFCS report does not contain
a plan for reunification services, the nonreunification hearing shall be held no
later than 30 days from the time the report is filed; and
(5)
If the dispositional hearing is not held in conjunction with the adjudication
hearing, it shall be held and completed within 30 days after the conclusion of
the adjudication hearing.
(d)
An initial periodic review hearing shall be held within 75 days following a
child's removal from his or her home. An additional periodic review shall be
held within four months following such initial review.
(e)
Permanency plan hearings shall be held no later than 30 days after DFCS has
submitted a written report to the court which does not provide a plan for
reunification services or:
(1)
For children under seven years of age at the time a petition for dependency is
filed, no later than nine months after the child is considered to have entered
foster care, whichever comes first. Thereafter a permanency plan hearing shall
be held every six months while the child continues in DFCS custody or more
frequently as deemed necessary by the court until the court determines that the
child's permanency plan and goal have been achieved; and
(2)
For children seven years of age and older at the time a petition is filed, no
later than 12 months after the child is considered to have entered foster care,
whichever comes first. Thereafter a permanency plan hearing shall be held every
six months while the child continues in DFCS custody or more frequently as
deemed necessary by the court until the court determines that the child's
permanency plan and goal have been achieved.
(f)
A supplemental order of the court adopting a child's permanency plan shall be
entered within 30 days after the court has determined that reunification efforts
need not be made by DFCS.
15-11-103.
(a)
The child and any other party to a proceeding under this article shall have the
right to a qualified and independent attorney at all stages of the proceedings
under this article.
(b)
The court shall appoint an attorney for a child alleged to be dependent. The
appointment shall be made as soon as practicable to ensure adequate
representation of such child and, in any event, before the first court hearing
that may substantially affect the interests of such child.
(c)
A child's attorney owes to the child the duties imposed by the law of this state
in an attorney-client relationship.
(d)
Before an attorney may be appointed to represent a child, he or she shall have
received training appropriate to the role that is administered or approved by
the Office of the Child Advocate for the Protection of Children; provided,
however, that such office shall exempt from the training requirement any
attorney who has practiced as an attorney or guardian ad litem in juvenile court
dependency proceedings for three or more years and, when such determination is
made by the court, has demonstrated a proficiency in child representation.
Preappointment training shall be satisfied within an attorney's existing
continuing legal education obligations and shall not require the attorney to
complete additional training hours in addition to the hours currently required
by the State Bar of Georgia.
(e)
If an attorney has been appointed to represent a child in a prior proceeding
under this chapter, the court, when possible, shall appoint the same attorney to
represent the child in any subsequent proceeding.
(f)
An attorney appointed to represent a child in a dependency proceeding shall
continue the representation in any subsequent appeals unless excused by the
court.
(g)
Neither a child nor a representative of a child may waive a child's right to an
attorney in a dependency proceeding.
(h)
A party other than a child shall be informed of his or her right to an attorney
prior to any hearing. A party other than a child shall be given an opportunity
to:
(1)
Obtain and employ an attorney of such party's own choice;
(2)
Obtain a court appointed attorney if the court determines that such party is an
indigent person; or
(3)
Waive the right to an attorney.
15-11-104.
(a)
The court shall appoint a guardian ad litem for a child alleged to be
dependent.
(b)
A child's attorney may serve as the child's guardian ad litem unless or until
there is conflict of interest between the attorney's duty to the child as the
child's attorney and the attorney's considered opinion of the child's best
interests as guardian ad litem.
(c)
A party to the proceeding, the employee or representative of a party to the
proceeding, or any other individual with a conflict of interest shall not be
appointed as guardian ad litem.
(d)
A court shall appoint a CASA to act as guardian ad litem whenever possible, and
a CASA may be appointed in addition to an attorney who is serving as a guardian
ad litem.
(e)
A lay guardian shall not engage in activities which could reasonably be
construed as the practice of law.
(f)
Before the appointment as a guardian ad litem, such person shall have received
training appropriate to the role as guardian ad litem which is administered or
approved by the Office of the Child Advocate for the Protection of Children.
For attorneys, preappointment guardian ad litem training shall be satisfied
within the attorney's existing continuing legal education obligations and shall
not require the attorney to complete additional training hours in addition to
the hours currently required by the State Bar of Georgia.
(g)
Any volunteer guardian ad litem authorized and acting in good faith, in the
absence of fraud or malice and in accordance with the duties required by this
Code section, shall have immunity from any liability, civil or criminal, that
might otherwise be incurred or imposed as a result of taking or failing to take
any action pursuant to this Code section.
(h)
The court may remove a guardian ad litem from a case upon finding that the
guardian ad litem acted in a manner contrary to a child's best interests, has
not appropriately participated in the case, or if the court otherwise deems
continued service as inappropriate or unnecessary.
(i)
A guardian ad litem shall not engage in ex parte contact with the court except
as otherwise provided by law.
(j)
The court, the child, or any other party may compel a guardian ad litem for a
child to attend a trial or hearing relating to the child and to testify, if
appropriate, as to the proper disposition of a proceeding.
(k)
The court shall ensure that parties have the ability to challenge
recommendations made by the guardian ad litem or the factual basis for the
recommendations in accordance with the rules of evidence applicable to the
specific proceeding.
(l)
A guardian ad litem's report shall not be admissible into evidence prior to the
disposition hearing except in accordance with the rules of evidence applicable
to the specific proceeding.
(m)
A guardian ad litem who is not also serving as attorney for a child may be
called as a witness for the purpose of cross-examination regarding the guardian
ad litem's report even if the guardian ad litem is not identified as a witness
by a party.
15-11-105.
(a)
A guardian ad litem shall advocate for a child's best interests in the
proceeding for which the guardian ad litem has been appointed.
(b)
In determining the child's best interests, a guardian ad litem shall consider
and evaluate all of the factors affecting the best interests of the child in the
context of a child's age and developmental needs. Such factors shall
include:
(1)
The physical safety and welfare of the child, including food, shelter, health,
and clothing;
(2)
The mental and physical health of all individuals involved;
(3)
Evidence of domestic violence in any current, past, or considered home for the
child;
(4)
A child's background and ties, including familial, cultural, and
religious;
(5)
A child's sense of attachments, including a child's sense of security, a child's
sense of familiarity, and continuity of affection for the child;
(6)
The least disruptive placement alternative for a child;
(7)
A child's wishes and long-term goals;
(8)
A child's community ties, including church, school, and friends;
(9)
A child's need for permanence which includes the child's need for stability and
continuity of relationships with a parent, siblings, and other
relatives;
(10)
The uniqueness of every family and child;
(11)
The risks attendant to entering and being in substitute care;
(12)
The preferences of the persons available to care for the child; and
(13)
Any other factors considered by the guardian ad litem to be relevant and proper
to his or her determination.
(c)
Unless a child's circumstances render the following duties and responsibilities
unreasonable, a guardian ad litem shall at a minimum:
(1)
Maintain regular and sufficient in-person contact with the child and, in a
manner appropriate to the child's developmental level, meet with and interview
the child prior to custody hearings, adjudication hearings, disposition
hearings, judicial reviews, and any other hearings scheduled in accordance with
the provisions of this chapter;
(2)
In a manner appropriate to the child's developmental level, ascertain the
child's needs, circumstances, and views;
(3)
Conduct an independent assessment to determine the facts and circumstances
surrounding the case;
(4)
Consult with the child's attorney, if appointed separately, regarding the issues
in the proceeding;
(5)
Communicate with health care, mental health care, and other professionals
involved with the child's case;
(6)
Review case study and educational, medical, psychological, and other relevant
reports relating to the child and the respondents;
(7)
Review all court related documents;
(8)
Attend all court hearings and other proceedings to advocate for the child's best
interests;
(9)
Advocate for timely court hearings to obtain permanency for the
child;
(10)
Protect the cultural needs of the child;
(11)
Contact the child prior to any proposed change in the child's
placement;
(12)
Contact the child after changes in the child's placement;
(13)
Request a judicial citizen review panel or judicial review of the
case;
(14)
Attend citizen panel review hearings concerning the child and if unable to
attend the hearings, forward to the panel a letter setting forth the child's
status during the period since the last citizen panel review and include an
assessment of the DFCS permanency and treatment plans;
(15)
Provide written reports to the court and the parties on the child's best
interests which shall include, but not be limited to, recommendations regarding
placement of the child, updates on the child's adjustment to placement, DFCS's
and respondent's compliance with prior court orders and treatment plans, the
child's degree of participation during visitations, and any other
recommendations based on the best interests of the child;
(16)
When appropriate, encourage settlement and the use of any alternative forms of
dispute resolution and participate in such processes to the extent permitted;
and
(17)
Monitor compliance with the case plan and all court orders.
(d)(1)
Except as provided in Article 12 of this chapter, a guardian ad litem shall
receive notices, pleadings, or other documents required to be provided to or
served upon a party and shall be notified of all court hearings, judicial
reviews, judicial citizen review panels, and other significant changes of
circumstances of the child's case to the same extent and in the same manner as
the parties to the case are notified of such matters.
(2)
A guardian ad litem shall be notified of the formulation of any case plan of the
child's case and may be given the opportunity to be heard by the court about
such plans.
(e)
Upon presentation of an order appointing a guardian ad litem, such guardian ad
litem shall have access to all records and information relevant to a child's
case when such records and information are not otherwise protected from
disclosure pursuant to Code Section 19-7-5. Such records and information shall
not include records and information provided under Article 12 of this chapter or
provided under Chapter 4A of Title 49.
(f)
All records and information acquired or reviewed by a guardian ad litem during
the course of his or her appointment shall be deemed confidential and shall not
be disclosed except as ordered by the court.
(g)
Except as provided in Code Section 49-5-41, regarding access to records, any
guardian ad litem who discloses confidential information obtained during the
course of his or her appointment, in violation of law, shall be guilty of a
misdemeanor. A guardian ad litem shall maintain all information and records
regarding mental health, developmental disability as defined in Code Section
37-1-1, and substance abuse according to the confidentiality requirements
contained in Code Section 37-3-166, 37-4-125, or 37-7-166, as
applicable.
(h)
In the event of a change of venue, the original guardian ad litem shall, as soon
as possible, communicate with the appointed guardian ad litem in the new venue
and shall forward all pertinent information to the new guardian ad
litem.
15-11-106.
(a)(1)
Before executing duties as a CASA, and upon completion of all the requirements
of an affiliate court appointed special advocate program, a CASA shall be sworn
in by a judge of the juvenile court in the court or circuit in which he or she
wishes to serve. A CASA shall not be assigned a case prior to being sworn in by
a juvenile court judge as set forth in this paragraph.
(2)
If a juvenile court judge determines that a child involved in a dependency
proceeding needs a CASA, the judge shall have the authority to appoint a CASA,
and in such circumstance shall sign an order appointing a CASA at the earliest
possible stage of the proceedings. Such order shall impose on a CASA all the
duties, rights, and responsibilities set forth in this Code section and Code
Sections 15-11-104 and 15-11-105.
(b)
The role of a CASA in juvenile court dependency proceedings shall be to advocate
for the best interests of the child.
(c)
In addition to the reasons stated in subsection (h) of Code Section 15-11-104,
the court may discharge a CASA upon finding that the CASA has acted in a manner
contrary to the mission and purpose of the affiliate court appointed special
advocate program.
15-11-107.
(a)
A parent, guardian, or legal custodian's reliance on prayer or other religious
nonmedical means for healing in lieu of medical care, in the exercise of
religious beliefs, shall not be the sole basis for considering his or her child
to be a dependent child; provided, however, that the religious rights of a
parent, guardian, or legal custodian shall not limit the access of a child to
medical care in a life-threatening situation or when the condition will result
in serious disability.
(b)
In order to make a determination as to whether a child is in a life-threatening
situation or that the child's condition will result in serious disability, the
court may order a medical evaluation of the child.
(c)
If the court determines, on the basis of any relevant evidence before the court,
including the court ordered medical evaluation and the affidavit of the
attending physician, that a child is in a life-threatening situation or that a
child's condition will result in serious disability, the court may order that
medical treatment be provided for a child.
(d)
A child whose parent, guardian, or legal custodian inhibits or interferes with
the provision of medical treatment in accordance with a court order shall be
considered to be dependent and the court may find the parent, guardian, or legal
custodian in contempt and enter any order authorized by and in accordance with
the provisions of Code Section 15-11-31.
15-11-108.
(a)
The court shall give to all parties written notice of the date, time, place, and
purpose of the following postadjudication hearings or reviews:
(1)
Nonreunification hearings;
(2)
Disposition hearings;
(3)
Periodic review hearings;
(4)
Periodic reviews by judicial citizen review panel;
(5)
Permanency plan hearings;
(6)
Termination of parental rights hearings; and
(7)
Termination of parental rights review hearings.
(b)
Issuance and service of summons, when appropriate, shall comply with the
requirements of Code Sections 15-11-160 and 15-11-161.
(c)
Unless otherwise provided in this chapter, written notice shall be delivered to
the recipient at least 72 hours before the hearing or review by United States
mail, e-mail, or hand delivery.
15-11-109.
(a)
In advance of each hearing or review, DFCS shall give written notice of the
date, time, place, and purpose of the review or hearing to the caregiver of the
child, the foster parent of the child, any preadoptive parent, or any relative
providing care for the child including the right to be heard. The written
notice shall be delivered to the recipient at least 72 hours before the review
or hearing, except in the case of preliminary protective hearings or emergency
hearings when such notice is not possible, by United States mail, e-mail, or
hand delivery.
(b)
Notice of a hearing or review shall not be construed to require a legal
custodian, foster parent, preadoptive parent, or relative caring for the child
to be made a party to the hearing or review solely on the basis of such notice
and opportunity to be heard.
15-11-110.
(a)
Upon request of an attorney for the parent, guardian, legal custodian, child, or
petitioner, the court may continue any hearing under this article beyond the
time limit within which the hearing is otherwise required to be held; provided,
however, that no continuance shall be granted that is contrary to the interests
of the child. In considering a child's interests, the court shall give
substantial weight to a child's need for prompt resolution of his or her custody
status, the need to provide a child with a stable environment, and the damage to
a child of prolonged temporary placements.
(b)
Continuances shall be granted only upon a showing of good cause and only for
that period of time shown to be necessary by the evidence presented at the
hearing on the motion. Whenever any continuance is granted, the facts proved
which require the continuance shall be entered in the court record.
(c)
A stipulation between attorneys or the convenience of the parties shall not
constitute good cause. Except as otherwise provided by judicial rules governing
attorney conflict resolution, a pending criminal prosecution or family law
matter shall not constitute good cause. The need for discovery shall not
constitute good cause.
(d)
In any case in which a parent, guardian, legal custodian, or child is
represented by an attorney and no objection is made to an order continuing any
such hearing beyond the time limit, the absence of such an objection shall be
deemed a consent to the continuance; provided, however, that even with consent,
the court shall decide whether to grant the continuance in accordance with
subsection (a) of this Code section.
15-11-111.
(a)
At any hearing held with respect to a child, the court in its discretion, and
based upon the evidence, may enter an order:
(1)
Accepting or rejecting any DFCS report;
(2)
Ordering an additional evaluation; or
(3)
Undertaking such other review as it deems necessary and appropriate to determine
the disposition that is in the child's best interests.
(b)
The court's order:
(1)
May incorporate all or part of the DFCS report; and
(2)
Shall include findings of fact which reflect the court's consideration of the
oral and written testimony offered by all parties, as well as nonparties, who
are required to be provided with notice and a right to be heard in any hearing
to be held with respect to the child, and DFCS.
15-11-112.
(a)
When a child is removed from his or her home the court shall order reasonable
visitation that is consistent with the age and developmental needs of the child
if the court finds that it is in the child's best interests. The court's order
shall specify the frequency, duration, and terms of visitation including whether
or not visitation shall be supervised or unsupervised.
(b)
There shall be a presumption that visitation shall be unsupervised unless the
court finds that unsupervised visitation is not in the child's best
interests.
(c)
Within 30 days of the court finding that there is a lack of substantial progress
towards completion of a case plan, the court shall review the terms of
visitation and determine whether the terms continue to be appropriate for the
child or whether the terms need to be modified.
15-11-113.
When
a child is alleged to be dependent, the date the child is considered to have
entered foster care shall be the date of the first judicial finding that a child
has been subjected to child abuse or neglect or the date that is 60 days after
the date on which a child is removed from his or her home, whichever is
earlier.
Part
2
15-11-125.
(a)
A proceeding under this article may be commenced:
(1)
In the county in which a child legally resides; or
(2)
In the county in which a child is present when the proceeding is commenced if
the child is present without a parent, guardian, or legal custodian or the acts
underlying the dependency allegation are alleged to have occurred in that
county.
(b)
For the convenience of the parties, the court may transfer the proceeding to the
county in which a child legally resides. If the proceeding is transferred,
certified copies of all legal and social documents and records pertaining to the
proceeding on file with the clerk of court shall accompany the
transfer.
Part
3
15-11-130.
(a)
Notwithstanding Code Sections 15-11-133 and 15-11-135, DFCS shall be authorized
to provide emergency care and supervision to any child without seeking a court
order for a period not to exceed seven days when:
(1)
As a result of an emergency or illness, the person who has physical and legal
custody of a child is unable to provide for the care and supervision of the
child, and such person or a law enforcement officer, emergency personnel
employed by a licensed ambulance provider, fire rescue personnel, or a hospital
administrator or his or her designee requests that DFCS exercise such emergency
custody; and
(2)
The child is not at imminent risk of abuse or neglect, other than the risks
arising from being without a caretaker.
(b)
During the period when a child is in the temporary care and supervision of DFCS,
DFCS shall endeavor to place the child with a relative of the parent, guardian,
or legal custodian, in foster care, or in emergency foster care or shall make
other appropriate placement arrangements. DFCS shall have the same rights and
powers with regard to the child as does the parent, guardian, or legal custodian
including the right to consent to medical treatment.
(c)
Immediately upon receiving custody of a child, DFCS shall begin a diligent
search for a relative or other designee of the parent who can provide for the
care and supervision of the child.
(d)
At any time during such seven-day period, and upon notification to DFCS that the
parent, guardian, or legal custodian or an expressly authorized relative, or
designee thereof, is able to provide care to and exercise control over the
child, DFCS shall release the child to the person having custody of the child at
the time the child was taken into DFCS custody or to such person's authorized
relative or designee.
(e)
Upon the expiration of such seven-day period, if the child has not been released
or if DFCS determines that there is an issue of neglect, abandonment, or abuse,
DFCS shall promptly contact a juvenile court intake officer or bring the child
before the juvenile court. If, upon making an investigation, the juvenile court
intake officer finds that foster care is warranted for the child, then, for
purposes of this chapter, the child shall be deemed to have been placed in
foster care at the time such finding was made and DFCS may file a dependency
petition.
(f)
DFCS and its successors, agents, assigns, and employees shall be immune from any
and all liability for providing care and supervision in accordance with this
Code section, for consenting to medical treatment for the child, and for
releasing the child.
15-11-131.
(a)
Notwithstanding Code Section 15-11-133, a physician, licensed to practice
medicine in this state who is treating a child may take or retain temporary
protective custody of the child, without a court order and without the consent
of a parent, guardian, or legal custodian, provided that:
(1)
The physician has reasonable cause to believe that the child is in a
circumstance or condition that presents an imminent danger to the child's life
or health as a result of suspected abuse or neglect; or
(2)
There is reasonable cause to believe that the child has been abused or neglected
and there is not sufficient time for a court order to be obtained for temporary
custody of the child before the child may be removed from the presence of the
physician.
(b)
A physician holding a child in temporary protective custody shall:
(1)
Make reasonable and diligent efforts to inform the parents, guardian, or legal
custodian of the child of the whereabouts of the child;
(2)
As soon as possible, make a report of the suspected abuse or neglect which
caused him or her to take temporary custody of the child and inform DFCS that
the child has been held in temporary custody; and
(3)
Not later than 24 hours after the child is held in temporary
custody:
(A)
Contact a juvenile court intake officer, and inform such intake officer that the
child is in imminent danger to his or her life or health as a result of
suspected abuse or neglect; or
(B)
Contact a law enforcement officer who shall take the child and promptly bring
the child before a juvenile court intake officer.
(c)
A child who meets the requirements for inpatient admission shall be retained in
the hospital or institution until such time as the child is medically ready for
discharge. Upon notification by the hospital or institution to DFCS that a
child who is not eligible for inpatient admission or who is medically ready for
discharge has been taken into custody by a physician and the child has been
placed in DFCS custody, DFCS shall take physical custody of the child within six
hours of being notified.
(d)
If the juvenile court intake officer determines that the child is to be placed
in foster care and the court orders that the child be placed in DFCS custody,
then:
(1)
If the child remains in the physical care of the physician, DFCS shall take
physical possession of the child within six hours of being notified by the
physician, unless the child meets the criteria for admission to a hospital or
other medical institution or facility; or
(2)
If the child has been brought before the court by a law enforcement officer,
DFCS shall promptly take physical possession of the child.
(e)
If the juvenile court intake officer determines that the child should not be
placed in foster care, the child shall be released.
(f)
If the child is placed in foster care, then the court shall notify the child's
parents, guardian, or legal custodian, the physician, and DFCS of the
preliminary protective hearing which is to be held within 72 hours.
(g)
If after the preliminary protective hearing the child is not released, DFCS
shall file a petition alleging dependency in accordance with this article,
provided that there is a continued belief that the child's life or health is in
danger as a result of suspected abuse or neglect.
(h)
Any hospital or physician authorized and acting in good faith and in accordance
with acceptable medical practice in the treatment of a child under this Code
section shall have immunity from any liability, civil or criminal, that might
otherwise be incurred or imposed as a result of taking or failing to take any
action pursuant to this Code section. This Code section shall not be construed
as imposing any additional duty not already otherwise imposed by
law.
15-11-132.
(a)
The facts supporting the issuance of an order of removal may be relayed orally,
including telephonically, to the judge or a designated juvenile court intake
officer, and the order directing that a child be taken into custody may be
issued orally or electronically.
(b)
When a child is taken into custody under exceptional circumstances, an affidavit
or sworn complaint containing the information previously relayed orally,
including telephonically, shall be filed with the clerk of the court the next
business day, and a written order shall be issued if not previously issued. The
written order shall include the court's findings of fact supporting the
necessity for the child's removal in order to safeguard the child's welfare and
shall designate the child's legal custodian.
(c)
The affidavit or sworn complaint filed after the child has been placed shall
indicate whether the child was released to the child's parent, guardian, or
legal custodian or remains removed.
(d)
DFCS shall promptly notify the parent, guardian, or legal custodian of the
nature of the allegations forming the basis for taking the child into custody
and, if the child is not released, of the time and place of the preliminary
protective hearing.
15-11-133.
(a)
A child may be removed from his or her home, without the consent of the child's
parents, guardian, or legal custodian:
(1)
Pursuant to an order of the court under this article; or
(2)
By a law enforcement officer or duly authorized officer of the court if the
child is in imminent danger of abuse or neglect if he or she remains in the
home.
(b)
Upon removing a child from his or her home, the law enforcement officer or duly
authorized officer of the court shall:
(1)
Immediately deliver the child to a medical facility if the child is believed to
suffer from a serious physical condition or illness which requires prompt
treatment, and, upon delivery, shall promptly contact DFCS;
(2)
Bring the child immediately before the juvenile court or promptly contact a
juvenile court intake officer; and
(3)
Promptly give notice to the court and the child's parents, guardian, or legal
custodian that the child is in protective custody, together with a statement of
the reasons for taking the child into protective custody.
(c)
The removal of child from his or her home by a law enforcement officer shall not
be deemed an arrest.
(d)
A law enforcement officer removing a child from his or her home has all the
privileges and immunities of a law enforcement officer making an
arrest.
(e)
A law enforcement officer shall promptly contact a juvenile court intake officer
for issuance of a court order once such officer has taken a child into
protective custody and delivered the child to a medical facility.
(f)
A juvenile court intake officer shall immediately determine if the child should
be released, remain in protective custody, or be brought before the court upon
being contacted by a law enforcement officer, duly authorized officer of the
court, or DFCS that a child has been taken into protective custody.
15-11-134.
(a)
Any order authorizing the removal of a child from his or her home shall be based
on a finding by the court that continuation in the home would be contrary to the
child's welfare.
(b)
Such findings shall be made on an individualized case-by-case basis and shall be
documented in the court's written order.
15-11-135.
(a)
A child taken into custody shall not be placed in foster care prior to the
hearing on the petition unless:
(1)
Foster care is required to protect the child;
(2)
The child has no parent, guardian, or legal custodian or other person able to
provide supervision and care and return him or her to the court when required;
or
(3)
An order for the child's foster care has been made by the court.
(b)
No child alleged or adjudicated to be dependent shall be detained in any jail,
adult lockup, or adult detention facility, nor shall a child be detained in a
regional youth detention center or youth development center unless the child is
also alleged or adjudicated to be delinquent, and the court determines that the
requirements for detention under Article 7 of this chapter are met.
(c)
A child alleged to be dependent may be placed in foster care only
in:
(1)
A licensed or approved foster home or a home approved by the court which may be
a public or private home or the home of the noncustodial parent or of a
relative;
(2)
A facility operated by a licensed child welfare agency; or
(3)
A licensed shelter care facility approved by the court.
(d)
The actual physical placement of a child pursuant to this Code section shall
require the approval of the judge of the juvenile court or his or her
designee.
(e)
In any case in which a child is taken into protective custody of DFCS, the child
shall be placed together with any siblings who are also in protective custody,
to the extent that it is practical and appropriate, or DFCS shall include a
statement in its report and case plan of continuing efforts to place the
siblings together or why such efforts are not appropriate. If siblings are not
placed together, DFCS shall provide for frequent visitation or other ongoing
interaction between the siblings, unless DFCS documents that such frequent
visitation or other ongoing interaction would be contrary to the safety or
well-being of any of the siblings.
Part
4
15-11-145.
(a)
If a child alleged to be dependent is removed from his or her home and is not
returned home, the preliminary protective hearing shall be held promptly and not
later than 72 hours after the child is placed in foster care; provided, however,
that if the 72 hour time frame expires on a weekend or legal holiday, the
hearing shall be held on the next day which is not a weekend or legal
holiday.
(b)
Reasonable oral or written notice of the preliminary protective hearing, stating
the time, place, and purpose of the hearing, shall be given to the child and, if
such person can be found, to the child's parent, guardian, or legal
custodian.
(c)
If a parent, guardian, or legal custodian has not been notified of the
preliminary protective hearing and did not appear or waive appearance at such
hearing and thereafter files an affidavit showing such facts, the court shall
rehear the matter without unnecessary delay and shall order the child's release
unless it appears from such hearing that the child's foster care is warranted or
required.
(d)
The following persons shall have the right to participate in the preliminary
protective hearing:
(1)
The child's parent, guardian, or legal custodian, unless such person cannot be
located or fails to appear in response to the notice;
(2)
The child's attorney and guardian ad litem if a guardian ad litem has been
appointed;
(3)
The child, unless the court finds, after considering evidence of harm to the
child that will result from the child's presence at the proceeding, that being
present is not in the child's best interests;
(4)
The parent's attorney if an attorney has been retained or
appointed;
(5)
The assigned DFCS caseworker; and
(6)
The attorney for DFCS.
(e)
The court may allow the following parties to be present at the preliminary
protective hearing, if the court finds it is in the best interests of the
child:
(1)
Any relative or other person who has demonstrated an ongoing commitment to the
child with whom the child might be placed;
(2)
DFCS employees involved in the case;
(3)
An advocate as requested by the parent, guardian, or legal custodian;
and
(4)
Other persons who have knowledge of or an interest in the welfare of the
child.
(f)
At the commencement of the preliminary protective hearing, the court shall
inform the parties of:
(1)
The contents of the complaint in terms understandable to the child and parent,
guardian, or legal custodian;
(2)
The nature of the proceedings in terms understandable to the child and parent,
guardian, or legal custodian;
(3)
Their due process rights including their right to an attorney and to an
appointed attorney if they are indigent persons, the right to call witnesses and
to cross-examine all witnesses, the right to present evidence, and the right to
a trial by the court on the allegations in the complaint or
petition.
(g)
If the child is not released at the preliminary protective hearing, a petition
for dependency shall be made and presented to the court within five days of such
hearing.
15-11-146.
(a)
At the preliminary protective hearing, the court shall determine:
(1)
Whether there is probable cause to believe the child is dependent;
and
(2)
Whether protective custody of the child is necessary to prevent abuse or neglect
pending the hearing on the dependency petition.
(b)
The court:
(1)
On finding that the complainant has not proved either of the required elements
prescribed in subsection (a) of this Code section, shall dismiss the case and
shall return the child to the child's parent, guardian, or legal
custodian;
(2)
On finding that the complainant has not met the burden of proving that
protective custody is necessary, shall return the child to the child's parent,
guardian, or legal custodian pending the hearing on the dependency petition;
or
(3)
On finding that the complainant has met the burden prescribed in subsection (a)
of this Code section, may place the child in the temporary custody of DFCS
pending the hearing on the dependency petition.
(c)
A court's order removing a child from the child's home shall be based upon a
finding that:
(1)
Continuation in the home would be contrary to the child's welfare;
and
(2)
Removal is in the child's best interests.
(d)
The court shall make written findings as to whether DFCS has made reasonable
efforts to prevent or eliminate the need for removal of the child from the home
and to make it possible for the child to safely return home. When the court
finds that no services were provided but that reasonable services would not have
eliminated the need for protective custody, the court shall consider DFCS to
have made reasonable efforts to prevent or eliminate the need for protective
custody. The court shall include in the written findings a brief description of
what preventive and reunification efforts were made by DFCS.
(e)
In determining whether a child shall be removed or continued out of the home,
the court shall consider whether the provision of reasonable services can
prevent or eliminate the need to separate the family. The court shall make a
written finding in every order of removal that describes why it is in the best
interests of the child that the child be removed from the home or continued in
foster care.
(f)
To aid the court in making the required written findings, DFCS shall present
evidence to the court outlining the reasonable efforts made to prevent taking
the child into protective custody and to provide services to make it possible
for the child to safely return home and why protective custody is in the best
interests of the child.
Part
5
15-11-150.
A
DFCS employee, a law enforcement officer, or any person who has actual knowledge
of the abuse, neglect, or abandonment of a child or is informed of the abuse,
neglect, or abandonment of a child that he or she believes to be truthful may
make a petition alleging dependency.
15-11-151.
(a)
If a child was removed from his or her home, the petition alleging dependency
shall be filed within five days of the preliminary protective
hearing.
(b)
If the child was not removed from his or her home or if the child was removed
from his or her home but was released from protective custody at the preliminary
protective hearing, the petition alleging dependency shall be filed within 30
days of the preliminary protective hearing.
(c)
Upon a showing of good cause and notice to all parties, the court may grant a
requested extension of time for filing a petition alleging dependency in
accordance with the best interests of the child. The court shall issue a
written order reciting the facts justifying the extension.
(d)
If a petition alleging dependency is not filed within the required time frame,
the complaint shall be dismissed without prejudice.
15-11-152.
A
petition alleging dependency shall be verified and may be on information and
belief and shall set forth plainly and with particularity:
(1)
The facts which bring the child within the jurisdiction of the court, with a
statement that it is in the best interests of the child and the public that the
proceeding be brought;
(2)
The name, date of birth, and residence address of the child on whose behalf the
petition is brought;
(3)
The name and residence address of the parent, guardian, or legal custodian of
the child; or, if neither the child's parent nor the child's guardian nor the
child's legal custodian resides or can be found within the state or if such
place of residence address is unknown, the name of any known adult relative
residing within the county or, if there is none, the known adult relative
residing nearest to the location of the court;
(4)
Whether the child is in protective custody and, if so, the place of his or her
foster care and the time the child was taken into protective custody;
and
(5)
Whether any of the matters required by this Code section are
unknown.
15-11-153.
(a)
The petitioner may amend the petition alleging dependency at any
time:
(1)
To cure defects of form; and
(2)
Prior to the adjudication hearing, to include new allegations of fact or
requests for adjudication.
(b)
When the petition is amended after the initial service to include new
allegations of fact or requests for adjudication, the amended petition shall be
served on the parties and provided to the attorneys of record.
(c)
The court shall grant the parties such additional time to prepare as may be
required to ensure a full and fair hearing; provided, however, that when a child
is in protective custody or in detention, the adjudication hearing shall not be
delayed more than ten days beyond the time originally fixed for the
hearing.
Part
6
15-11-160.
(a)
The court shall direct the issuance of a summons to the child if the child is 14
years of age or older, the child's parent, guardian, or legal custodian, the
child's attorney, the child's guardian ad litem, if any, and any other persons
who appear to the court to be proper or necessary parties to the proceeding,
requiring them to appear before the court at the time fixed to answer the
allegations of the petition alleging dependency. A copy of the petition
alleging dependency shall accompany the summons unless the summons is served by
publication, in which case the published summons shall indicate the general
nature of the allegations and where a copy of the petition alleging dependency
can be obtained.
(b)
The summons shall state that a party is entitled to an attorney in the
proceedings and that the court will appoint an attorney if the party is an
indigent person.
(c)
The court may endorse upon the summons an order directing the parent, guardian,
or legal custodian of the child to appear personally at the hearing and
directing the person having the physical custody or control of the child to
bring the child to the hearing.
(d)
A party other than the child may waive service of summons by written stipulation
or by voluntary appearance at the hearing.
15-11-161.
(a)
If a party to be served with a summons is within this state and can be found,
the summons shall be served upon him or her personally as soon as possible and
at least 72 hours before the adjudication hearing.
(b)
If a party to be served is within this state and cannot be found but his or her
address is known or can be ascertained with reasonable diligence, the summons
shall be served upon such party at least five days before the adjudication
hearing by mailing him or her a copy by registered or certified mail or
statutory overnight delivery, return receipt requested.
(c)
If a party to be served is outside this state but his or her address is known or
can be ascertained with reasonable diligence, service of the summons shall be
made at least five days before the adjudication hearing either by delivering a
copy to such party personally or by mailing a copy to him or her by registered
or certified mail or statutory overnight delivery, return receipt
requested.
(d)
If, after justifiable effort, a party to be served with a summons cannot be
found and such party's address cannot be ascertained, whether he or she is
within or outside this state, the court may order service of the summons upon
him or her by publication. The adjudication hearing shall not be earlier than
five days after the date of the last publication.
(e)(1)
Service by publication shall be made once a week for four consecutive weeks in
the official organ of the county where the petition alleging dependency has been
filed. Service shall be deemed complete upon the date of the last
publication.
(2)
When served by publication, the notice shall contain the names of the parties,
except that the anonymity of the child shall be preserved by the use of
appropriate initials, and the date the petition alleging dependency was filed.
The notice shall indicate the general nature of the allegations and where a copy
of the petition alleging dependency can be obtained and require the party to be
served by publication to appear before the court at the time fixed to answer the
allegations of the petition alleging dependency.
(3)
Within 15 days after the filing of the order of service by publication, the
clerk of court shall mail a copy of the notice, a copy of the order of service
by publication, and a copy of the petition alleging dependency to the last known
address of the party being served by publication.
(f)
Service of the summons may be made by any suitable person under the direction of
the court.
(g)
The court may authorize the payment from county funds of the costs of service
and of necessary travel expenses incurred by persons summoned or otherwise
required to appear at the hearing.
15-11-162.
(a)
In the event a parent, guardian, or legal custodian of the child willfully fails
to appear personally at a hearing after being ordered to so appear or the
parent, guardian, or legal custodian of the child willfully fails to bring the
child to a hearing after being so directed, the court may issue an order against
the person, directing the person to appear before the court to show cause why he
or she should not be held in contempt of court.
(b)
If the parent, guardian, or legal custodian fails to appear in response to an
order to show cause, the court may issue a bench warrant directing that the
parent, guardian, or legal custodian be brought before the court without delay
to show cause why he or she should not be held in contempt and the court may
enter any order authorized by and in accordance with the provisions of Code
Section 15-11-31.
15-11-163.
(a)
If service of summons upon a party is made by publication, the court may conduct
a provisional hearing upon the allegations of the petition alleging dependency
and enter an interlocutory order of disposition if:
(1)
The petition alleges dependency of the child;
(2)
The summons served upon any party:
(A)
States that prior to the final hearing on such petition a provisional hearing
will be held at a specified time and place;
(B)
Requires the party who is served other than by publication to appear and answer
the allegations of the petition alleging dependency at the provisional
hearing;
(C)
States further that findings of fact and orders of disposition made pursuant to
the provisional hearing will become final at the final hearing unless the party
served by publication appears at the final hearing; and
(D)
Otherwise conforms to the requirements of Code Section 15-11-160;
and
(3)
The child is personally before the court at the provisional
hearing.
(b)
Findings of fact and orders of disposition shall have only interlocutory effect
pending final hearing on the petition alleging dependency.
(c)
If the party served by publication fails to appear at the final hearing on the
petition alleging dependency, the findings of fact and interlocutory orders made
shall become final without further evidence. If the party appears at the final
hearing, the findings and orders shall be vacated and disregarded and the
hearing shall proceed upon the allegations of such petition without regard to
this Code section.
Part
7
15-11-170.
(a)
In all cases under this article, any party shall, upon written request to the
party having actual custody, control, or possession of the material to be
produced, have full access to the following for inspection, copying, or
photographing:
(1)
The names and telephone numbers of each witness likely to be called to testify
at the hearing by another party;
(2)
A copy of any formal written statement made by the child who is alleged to be
dependent or any witness that relates to the subject matter concerning the
testimony of the witness that a party intends to call as a witness at the
hearing;
(3)
Except as otherwise provided in subsection (b) of this Code section, any
scientific or other report which is intended to be introduced at any hearing or
that pertains to physical evidence which is intended to be
introduced;
(4)
Any drug screen concerning the child who is alleged to be dependent or his or
her parent, guardian, or legal custodian;
(5)
Any case plan concerning the child who is alleged to be dependent or his or her
parent, guardian, or legal custodian;
(6)
Any visitation schedule related to the child who is alleged to be
dependent;
(7)
Photographs and any physical evidence which are intended to be introduced at any
hearing;
(8)
Copies of the police incident report regarding an occurrence which forms part or
all of the basis of the petition; and
(9)
Any other relevant evidence not requiring consent or a court order under
subsection (b) of this Code section.
(b)
Upon presentation of a court order or written consent from the appropriate
person or persons permitting access to the party having actual custody, control,
or possession of the material to be produced, any party shall have access to the
following for inspection, copying, or photographing:
(1)
Any psychological, developmental, physical, mental or emotional health, or other
assessments of the child who is alleged to be dependent or the family, parent,
guardian, or legal custodian of such child;
(2)
Any school record concerning the child who is alleged to be
dependent;
(3)
Any medical record concerning the child who is alleged to be
dependent;
(4)
Transcriptions, recordings, and summaries of any oral statement of the child who
is alleged to be dependent or of any witness, except child abuse reports that
are confidential pursuant to Code Section 19-7-5 and work product of
counsel;
(5)
Any family team meeting report or multidisciplinary team meeting report
concerning the child who is alleged to be dependent or his or her parent,
guardian, or legal custodian;
(6)
Supplemental police reports, if any, regarding an occurrence which forms part of
all of the basis of the petition; and
(7)
Immigration records concerning the child who is alleged to be
dependent.
(c)
If a party requests disclosure of information pursuant to subsection (a) or (b)
of this Code section, it shall be the duty of such party to promptly make the
following available for inspection, copying, or photographing to every other
party:
(1)
The names and last known addresses and telephone numbers of each witness to the
occurrence which forms the basis of the party's defense or claim;
(2)
Any scientific or other report which is intended to be introduced at the hearing
or that pertains to physical evidence which is intended to be
introduced;
(3)
Photographs and any physical evidence which are intended to be introduced at the
hearing; and
(4)
A copy of any written statement made by any witness that relates to the subject
matter concerning the testimony of the witness that the party intends to call as
a witness.
(d)
A request for discovery or reciprocal discovery shall be complied with promptly
and not later than five days after the request is received or 72 hours prior to
any hearing except when later compliance is made necessary by the timing of the
request. If the request for discovery is made fewer than 48 hours prior to an
adjudicatory hearing, the discovery response shall be produced in a timely
manner. If, subsequent to providing a discovery response in compliance with
this Code section, the existence of additional evidence is found, it shall be
promptly provided to the party making the discovery request.
(e)
If a request for discovery or consent for release is refused, application may be
made to the court for a written order granting discovery. Motions for discovery
shall certify that a request for discovery or consent was made and was
unsuccessful despite good faith efforts made by the requesting party. An order
granting discovery shall require reciprocal discovery. Notwithstanding the
provisions of subsection (a) or (b) of this Code section, the court may deny, in
whole or in part, or otherwise limit or set conditions concerning the discovery
response upon a sufficient showing by a person or entity to whom a request for
discovery is made that disclosure of the information would:
(1)
Jeopardize the safety of a party, witness, or confidential
informant;
(2)
Create a substantial threat of physical or economic harm to a witness or other
person;
(3)
Endanger the existence of physical evidence;
(4)
Disclose privileged information; or
(5)
Impede the criminal prosecution of a minor who is being prosecuted as an adult
or the prosecution of an adult charged with an offense arising from the same
transaction or occurrence.
(f)
No deposition shall be taken of a child unless the court orders the deposition,
under such conditions as the court may order, on the ground that the deposition
would further the purposes of this part.
(g)
If at any time during the course of the proceedings it is brought to the
attention of the court that a person or entity has failed to comply with an
order issued pursuant to this Code section, the court may grant a continuance,
prohibit the party from introducing in evidence the information not disclosed,
or enter such other order as the court deems just under the
circumstances.
(h)
Nothing contained in this Code section shall prohibit the court from ordering
the disclosure of any information that the court deems necessary for proper
adjudication.
(i)
Any material or information furnished to a party pursuant to this part shall
remain in the exclusive custody of the party and shall only be used during the
pendency of the case and shall be subject to such other terms and conditions as
the court may provide.
Part
8
15-11-180.
The
petitioner shall have the burden of proving the allegations of a dependency
petition by clear and convincing evidence.
15-11-181.
(a)
The court shall fix a time for the adjudication hearing. If the child is in
foster care, the hearing shall be scheduled for no later than ten days after the
filing of the petition alleging dependency. If the child is not in foster care,
the adjudication hearing shall be held no later than 60 days after the filing of
the petition alleging dependency. If adjudication is not completed within 60
days from the date the child was taken into protective custody, the petition
alleging dependency may be dismissed without prejudice.
(b)
The following persons shall have the right to participate in the adjudication
hearing:
(1)
The child's parent, guardian, or legal custodian, unless such person cannot be
located or fails to appear in response to the notice;
(2)
The child's attorney and guardian ad litem, if a guardian ad litem has been
appointed;
(3)
The child, unless the court finds, after considering evidence of harm to the
child that will result from the child's presence at the proceeding, that being
present is not in the child's best interests;
(4)
The attorneys for the parent, guardian, or legal custodian if attorneys have
been retained or appointed;
(5)
The assigned DFCS caseworker; and
(6)
The attorney for DFCS.
(c)
If the court finds it is in the best interests of the child, the court may allow
the following to be present at the adjudication hearing:
(1)
Any relative or other person who has demonstrated an ongoing commitment to the
child with whom the child might be placed;
(2)
DFCS employees involved with the case;
(3)
An advocate as requested by the parent, guardian, or legal custodian;
and
(4)
Other persons who have knowledge of or an interest in the welfare of the
child.
(d)
Except as provided in this subsection, the adjudication hearing shall be
conducted in accordance with Title 24. Testimony or other evidence relevant to
the dependency of a child or the cause of such condition may not be excluded on
any ground of privilege, except in the case of:
(1)
Communications between a party and his or her attorney; and
(2)
Confessions or communications between a priest, rabbi, or duly ordained minister
or similar functionary and his or her confidential communicant.
(e)
After hearing the evidence, the court shall make and file specific written
findings as to whether the child is a dependent child.
(f)
If the court finds that the child is not a dependent child, it shall dismiss the
petition alleging dependency and order the child discharged from foster care or
other restriction previously ordered.
(g)
If the court finds that the child is dependent, the court shall proceed
immediately or at a postponed hearing to make a proper disposition of the
case.
(h)
If the court finds that a child is dependent, the court shall also make and file
a finding whether such dependency is the result of substance abuse by a parent,
guardian, or legal custodian.
(i)
If the disposition hearing is held on the same day as the adjudication hearing,
the court shall schedule the dates and times for the first periodic review
hearing and for the permanency plan hearing.
Part
9
15-11-190.
If
the allegations of the petition alleging dependency are admitted or after an
adjudication hearing the court has found the child to be dependent, the court
may direct that a written social study and report be made by DFCS.
15-11-191.
Each
social study shall include, but shall not be limited to, a factual discussion of
each of the following subjects:
(1)
What plan, if any, for the return of the child to his or her parent and for
achieving legal permanency for the child if efforts to reunify fail, is
recommended to the court;
(2)
Whether the best interests of the child will be served by granting reasonable
visitation rights to his or her other relatives, in order to maintain and
strengthen the child's family relationships;
(3)
Whether the child has siblings under the court's jurisdiction, and, if
so:
(A)
The nature of the relationship between the child and his or her
sibling;
(B)
Whether the siblings were raised together in the same home and whether the
siblings have shared significant common experiences or have existing close and
strong bonds;
(C)
Whether the child expresses a desire to visit or live with his or her sibling
and whether ongoing contact is in the child's best interests;
(D)
The appropriateness of developing or maintaining the sibling
relationships;
(E)
If the siblings are not placed together in the same home, why the siblings are
not placed together and what efforts are being made to place the siblings
together or why those efforts are not appropriate;
(F)
If the siblings are not placed together, the frequency and nature of the visits
between siblings; and
(G)
The impact of the sibling relationship on the child's placement and planning for
legal permanence;
(4)
The appropriateness of any relative placement; and
(5)
Whether the caregiver desires and is willing to provide legal permanency for the
child if reunification is unsuccessful.
Part
10
15-11-200.
(a)
Within 30 days of the date a child who is placed in DFCS custody is removed from
the home and at each subsequent review of the disposition order, DFCS shall
submit a written report to the court which shall either:
(1)
Include a case plan for a reunification of the family; or
(2)
Include a statement of the factual basis for determining that a plan for
reunification is not appropriate.
(b)
The report submitted by DFCS shall become a discrete part of the case record in
a format determined by DFCS and shall be made available to the child if the
child is 14 years of age or older, the child's attorney, the child's guardian ad
litem, if any, and the parent, guardian, or legal custodian of the child. The
contents of the report shall be determined at a meeting to be held by DFCS in
consultation with the parent, guardian, or legal custodian and child, when
appropriate. The parent, guardian, or legal custodian, the child if the child
is 14 years of age or older, the child's attorney, and the child's guardian ad
litem, if any, shall be given written notice of the meeting at least five days
in advance of such meeting and shall be advised that the report will be
submitted to the court for consideration as an order of the court. The report
submitted to the court shall also contain any dissenting recommendations of the
judicial citizen review panel, if applicable, and any recommendations of the
parent, guardian, or legal custodian, if such are available.
(c)
If the court adopts a report that contains a case plan for reunification
services, it shall be in effect until modification by the court. The case plan
shall address each reason requiring removal and shall, at a minimum, comply with
the requirements of Code Section 15-11-201.
(d)
If the submitted report contains a proposed case plan for reunification
services:
(1)
DFCS shall provide the caregiver, the foster parent, and any preadoptive parent
or relative providing care for the child with a copy of those portions of the
court approved case plan that involve the permanency goal and the services to be
provided to the child;
(2)
A copy of the report and case plan shall be delivered to the parent, guardian,
or legal custodian by United States mail, e-mail, or hand delivery at the same
time the report and case plan are transmitted to the court, along with written
notice that the report will be considered by the court without a hearing unless,
within five days from the date the copy of the report and case plan were
delivered, the parent, guardian, or legal custodian requests a hearing before
the court to review the report and case plan; and
(3)
If no hearing is requested, the court shall enter a disposition order or
supplemental order incorporating all elements of the case plan for reunification
services which the court finds essential to reunification, specifying what shall
be accomplished by all parties before reunification of the family can be
achieved.
(e)
When a recommendation is made that reunification services are not appropriate
and should not be allowed, the report submitted by DFCS shall address each
reason requiring removal and shall contain at least the following:
(1)
The purpose for which the child was placed in foster care, including a statement
of the reasons why the child cannot be adequately and safely protected at home
and the harm which may occur if the child remains in the home and a description
of the services offered and the services provided to prevent removal of the
child from the home;
(2)
A clear statement describing all of the reasons supporting a finding that
reunification of a child with the child's parent will be detrimental to the
child and that reunification services therefore need not be provided, including
specific findings as to whether any of the grounds for terminating parental
rights exist; and
(3)
The statements, provisions, and requirements found in paragraphs (11) and (12)
of subsection (b) of Code Section 15-11-201.
15-11-201.
(a)
The case plan shall be designed to achieve placement in the most appropriate,
least restrictive, and most family-like setting available and in close proximity
to the parent's home, consistent with the best interests and special needs of
the child, and which considers the placement's proximity to the school in which
the child is enrolled at the time of placement.
(b)
The case plan shall be developed by DFCS and the child's parent, guardian, or
legal custodian and, when appropriate, the child. The case plan shall include,
but shall not be limited to, all of the following:
(1)
A description of the circumstances that resulted in the child being placed under
the jurisdiction of the court and in foster care;
(2)
An assessment of the child's and family's strengths and needs and the type of
placement best equipped to meet those needs;
(3)
A description of the type of home or institution in which the child is to be
placed, including a discussion of the safety and appropriateness of the
placement;
(4)
Specific time-limited goals and related activities designed to enable the safe
return of the child to his or her home, or, in the event that return to his or
her home is not possible, activities designed to result in permanent placement
or emancipation;
(5)
Assignment of specific responsibility for accomplishing the planned
activities;
(6)
The projected date of completion of the case plan objectives;
(7)
The date time-limited services will be terminated;
(8)
A schedule of visits between the child and his or her siblings and other
appropriate family members and an explanation if no visits are
scheduled;
(9)
When placement is made in a foster family home, group home, or other child care
institution that is either a substantial distance from the home of the child's
parent, guardian, or legal custodian or out-of-state, the case plan shall
specify the reasons why the placement is the most appropriate and is in the best
interests of the child;
(10)
When an out-of-state group home placement is recommended or made, the case plan
shall comply with Code Section 39-4-4, the Interstate Compact on the Placement
of Children. In addition, documentation of the recommendation of the
multidisciplinary team and the rationale for such particular placement shall be
included. The case plan shall also address what in-state services or facilities
were used or considered and why they were not recommended;
(11)
If applicable, a statement that reasonable efforts have been made and a
requirement that reasonable efforts shall be made for so long as the child
remains in the custody of the department:
(A)
To place siblings removed from their home in the same foster care, kinship care,
guardianship, or adoptive placement, unless DFCS documents that such a joint
placement would be contrary to the safety or well-being of any of the siblings;
and
(B)
In the case of siblings removed from their home who are not so jointly placed,
for frequent visitation or other ongoing interaction between the siblings,
unless DFCS documents that such frequent visitation or other ongoing interaction
would be contrary to the safety or well-being of any of the
siblings;
(12)
Provisions ensuring the educational stability of the child while in foster care,
including:
(A)
An assurance that the placement of the child in foster care takes into account
the appropriateness of the current educational setting and the proximity to the
school in which the child is enrolled at the time of placement;
(B)
An assurance that the state agency has coordinated with appropriate local
educational agencies to ensure that the child remains in the school in which the
child is enrolled at the time of placement; or
(C)
If remaining in such school is not in the best interests of the child, an
assurance by DFCS that DFCS and the local educational agencies have cooperated
to assure the immediate and appropriate enrollment in a new school, with all of
the educational records of the child provided to such new school;
(13)
An account of health and education information about the child including school
records, immunizations, known medical problems, any known medications the child
may be taking, names and addresses of the child's health and educational
providers; the child's grade level performance; assurances that the child's
placement in foster care takes into account proximity to the school in which the
child was enrolled at the time of placement; and other relevant health and
educational information;
(14)
A recommendation for a permanency plan for the child. If, after considering
reunification, adoptive placement, or permanent guardianship, DFCS recommends
placement in another planned permanent living arrangement, the case plan shall
include documentation of a compelling reason or reasons why termination of
parental rights is not in the child's best interests. For purposes of this
paragraph, a 'compelling reason' shall have the same meaning as in paragraph (2)
of subsection (b) of Code Section 15-11-233;
(15)
A statement that the parent, guardian, or legal custodian and the child have had
an opportunity to participate in the development of the case plan, to review the
case plan, to sign the case plan, and to receive a copy of the plan, or an
explanation about why he or she was not able to participate or sign the case
plan;
(16)
A requirement that the DFCS case manager and staff and, as appropriate, other
representatives of the child provide the child with assistance and support in
developing a transition plan that is personalized at the direction of the child;
includes specific options on housing, health insurance, education, local
opportunities for mentors and continuing support services, and work force
supports and employment services; and is as detailed as the child may elect in
the 90 day period immediately prior to the date on which the child will attain
18 years of age;
(17)
For a child in out-of-home care who is 14 years of age or older, a written
description of the programs and services which will help the child prepare for
the transition from foster care to independent living; and
(18)
The identity of the person within DFCS or other agency who is directly
responsible for ensuring that the case plan is implemented.
15-11-202.
(a)
Except as provided in subsection (a) of Code Section 15-11-203, reasonable
efforts shall be made to preserve or reunify families:
(1)
Prior to the placement of a child in DFCS custody to prevent the need for
removing the child from the child's home; or
(2)
To eliminate the need for removal and make it possible for a child to return
safely to the child's home at the earliest possible time.
(b)
In determining the type of reasonable efforts to be made with respect to a child
and in making such reasonable efforts, the child's health and safety shall be
the paramount concern.
(c)
Reasonable efforts are made upon the exercise of due diligence by DFCS to use
appropriate services to meet the needs of the child and the child's family.
Services may include those provided by DFCS and other services available in the
community.
(d)
The court shall be required to review the appropriateness of DFCS's reasonable
efforts at each stage of the proceedings.
(e)(1)
At the preliminary protective hearing, DFCS has the burden of demonstrating
that:
(A)
It has made reasonable efforts to prevent placement of a child in foster
care;
(B)
There are no appropriate services or efforts which could allow the child to
safely remain in the home given the particular circumstances of the child and
family at the time of the child's removal and so the absence of such efforts was
justifiable; or
(C)
Reasonable efforts to prevent placement and to reunify the child with the
child's family are not required because of the existence of one or more of the
circumstances enumerated in subsection (a) of Code Section
15-11-203.
(2)
At the adjudication hearing, DFCS has the burden of demonstrating
that:
(A)
It has made reasonable efforts to eliminate the need for removal of the child
from the child's home and to reunify the child with the child's family at the
earliest possible time; or
(B)
Reasonable efforts to prevent placement and to reunify the child with the
child's family are not required because of the existence of one or more of the
circumstances enumerated in subsection (a) of Code Section
15-11-203.
(3)
At each other hearing, DFCS has the burden of demonstrating that:
(A)
It has made reasonable efforts to eliminate the need for removal of the child
from the child's home and to reunify the child with the child's family at the
earliest possible time; or
(B)
It has made reasonable efforts to finalize an alternative permanent home for the
child.
(f)
When determining whether reasonable efforts have been made, the court shall
consider whether services to the child and family were:
(1)
Relevant to the safety and protection of the child;
(2)
Adequate to meet the needs of the child and family;
(3)
Culturally and linguistically appropriate;
(4)
Available and accessible;
(5)
Consistent and timely; and
(6)
Realistic under the circumstances.
(g)
A finding that reasonable efforts have not been made shall not preclude the
entry of an order authorizing the child's placement when the court finds that
placement is necessary for the protection of the child.
(h)
When efforts to prevent the need for the child's placement were precluded by an
immediate threat of harm to the child, the court may make a finding that
reasonable efforts were made if it finds that the placement of the child in the
absence of such efforts was justifiable.
(i)
Reasonable efforts to place a child for adoption or with a guardian or legal
custodian may be made concurrently with reasonable efforts to reunify. When
DFCS decides to concurrently make reasonable efforts for both reunification and
permanent placement away from the parent, guardian, or legal custodian, DFCS
shall disclose its decision and both plans to all parties and obtain approval
from the court. When DFCS proceeds on both plans, the court's review of
reasonable efforts shall include efforts under both plans.
(j)
An order placing or continuing the placement of a child in DFCS custody shall
contain, but shall not be limited to, written findings of facts
stating:
(1)
That the child's continuation in or return to the child's own home would be
contrary to the child's welfare;
(2)
Whether reasonable efforts have been made to prevent or eliminate the need for
placement of the child, unless the court has determined that such efforts are
not required or shall cease; and
(3)
Whether reasonable efforts should continue to be made to prevent or eliminate
the need for placement, unless the court has previously determined that such
efforts are not required or shall cease.
15-11-203.
(a)
The court may direct that reasonable efforts to eliminate the need for placement
of the child shall not be required or shall cease if the court determines and
makes written findings of fact that:
(1)
The parent has subjected the child to aggravated circumstances;
(2)
The parent has been convicted of the murder of another child of the
parent;
(3)
The parent has been convicted of the voluntary manslaughter of another child of
the parent;
(4)
The parent has been convicted of aiding or abetting, attempting, conspiring, or
soliciting to commit murder or voluntary manslaughter of another child of the
parent;
(5)
The parent has been convicted of committing a felony assault that results in
serious bodily injury to the child or another child of the parent;
(6)
The parent has been convicted of rape, sodomy, aggravated sodomy, child
molestation, aggravated child molestation, incest, sexual battery, or aggravated
sexual battery of the child or another child of the parent;
(7)
The parent is required to register as a sex offender and that preservation of
the parent-child relationship is not in the child's best interests;
or
(8)
The parental rights of the parent to a sibling have been terminated
involuntarily and the circumstances leading to the termination of parental
rights to that sibling have not been resolved.
(b)
If the court determines that one or more of the circumstances enumerated in
subsection (a) of this Code section exist or DFCS has submitted a written
report to the court which does not contain a plan for reunification services
then:
(1)
A permanency plan hearing shall be held for the child within 30 days;
and
(2)
Reasonable efforts shall be made to place the child in a timely manner in
accordance with the permanency plan and to complete whatever steps are necessary
to finalize the permanent placement of the child.
15-11-204.
(a)
If the DFCS report does not contain a plan for reunification services, the court
shall hold a nonreunification hearing to review the report and the determination
that a plan for reunification services is not appropriate.
(b)
The nonreunification hearing shall be held no later than 30 days from the time
the DFCS report is filed. Notice of the nonreunification hearing shall be
provided, by summons, to the child if the child is 14 years of age or older, the
child's parent, guardian, or legal custodian, the child's attorney, the child's
guardian ad litem, if any, and specified nonparties entitled to
notice.
(c)
At the nonreunification hearing:
(1)
DFCS shall notify the court whether and when it intends to proceed with
termination of parental rights; and
(2)
The court shall also hold a permanency plan hearing, at which the court shall
consider in-state and out-of-state permanent placement options for the child,
and shall incorporate a permanency plan for the child in its order.
(d)
DFCS shall have the burden of demonstrating by clear and convincing evidence
that a reunification plan is not appropriate considering the health and safety
of the child and the child's need for permanence. There shall be a presumption
that reunification is detrimental to the child and reunification services should
not be provided if the court finds by clear and convincing evidence
that:
(1)
The parent has unjustifiably failed to comply with a previously ordered plan
designed to reunite the family;
(2)
A child has been removed from the home on at least two previous occasions and
reunification services were made available on those occasions;
(3)
A ground for terminating parental rights exists; or
(4)
Any of the circumstances set out in subsection (a) of Code Section 15-11-203
exist, making it unnecessary to provide reasonable efforts to
reunify.
(e)
If the court has entered an order finding that reasonable efforts to reunify a
child with his or her family are not required but the court finds further that
referral for termination of parental rights and adoption is not in the best
interests of the child, the court may, upon proper petition, place the child in
the custody of a permanent guardian pursuant to the provisions of this
article.
Part
11
15-11-210.
(a)
If not held in conjunction with the adjudication hearing, the disposition
hearing shall be held and completed within 30 days after the conclusion of the
adjudication hearing.
(b)
The court may consider any evidence, including hearsay evidence, that the court
finds to be relevant, reliable, and necessary to determine the needs of the
child and the most appropriate disposition.
(c)
Before determining the appropriate disposition, the court shall receive in
evidence:
(1)
The social study report, if applicable, made by DFCS and the child's proposed
written case plan. The social study report and case plan shall be filed with
the court not less than 48 hours before the disposition hearing;
(2)
Any study or evaluation made by a guardian ad litem appointed by the
court;
(3)
Any psychological, medical, developmental, or educational study or evaluation of
the child; and
(4)
Other relevant and material evidence as may be offered, including, but not
limited to, the willingness of the caregiver to provide legal permanency for the
child if reunification is unsuccessful.
(d)
Prior to the disposition hearing, and upon request, the parties and their
attorneys shall be afforded an opportunity to examine any written reports
received by the court.
(e)(1)
Portions of written reports received by the court which are not relied on by the
court in reaching its decision, which if revealed would be prejudicial to the
interests of the child or any party to the proceeding, may be withheld in the
court's discretion. Confidential sources of information need not be
disclosed.
(2)
Parties and their attorneys shall be given the opportunity to controvert written
reports received by the court and to cross-examine individuals making such
reports.
(f)
At the conclusion of the disposition hearing, the court shall set the time and
date for the first periodic review hearing and the permanency plan
hearing.
15-11-211.
(a)
Before final disposition, a reasonably diligent search for a parent or relative
of the child or other persons who have demonstrated an ongoing commitment to the
child shall be conducted by DFCS.
(b)
All adult relatives of the child identified in the search required by subsection
(a) of this Code section, subject to exceptions due to family or domestic
violence, shall be provided with notice:
(1)
Specifying that the child has been or is being removed from parental
custody;
(2)
Explaining the options the relative has to participate in the care and placement
of the child and any options that may be lost by failing to respond to the
notice;
(3)
Describing the process for becoming an approved foster family home and the
additional services and supports available for children placed in approved
foster homes; and
(4)
Describing any financial assistance for which the relative may be
eligible.
(c)
The search required by subsection (a) of this Code section and the notification
required by subsection (b) of this Code section shall be completed, documented
in writing, and filed with the court within 30 days from the date on which the
child was removed from the home.
(d)
After the completion of the search required by subsection (a) of this Code
section, DFCS shall have a continuing duty to search for relatives or other
persons who have demonstrated an ongoing commitment to the child and with whom
it may be appropriate to place the child until such relatives or persons are
found or until the child is placed for adoption unless DFCS is excused from such
search by the court.
15-11-212.
(a)
The court may make any of the following orders of disposition or a combination
of those best suited to the protection and physical, emotional, mental, and
moral welfare of the child:
(1)
Permit the child to remain with his or her parent, guardian, or legal custodian
subject to conditions and limitations as the court prescribes, including
supervision as directed by the court for the protection of the
child;
(2)
Grant or transfer temporary legal custody to any of these persons or
entities:
(A)
Any individual, including a biological parent, who, after study by the probation
officer or other person or agency designated by the court, is found by the court
to be qualified to receive and care for the child;
(B)
An agency or other private organization licensed or otherwise authorized by law
to receive and provide care for the child;
(C)
Any public agency authorized by law to receive and provide care for the child;
provided, however, that for the purpose of this Code section, the term 'public
agency' shall not include DJJ; or
(D)
An individual in another state with or without supervision by an appropriate
officer pursuant to the requirements of the Code Section 39-4-4, the Interstate
Compact on the Placement of Children;
(3)
Transfer jurisdiction over the child in accordance with the requirements of Code
Section 39-4-4, the Interstate Compact on the Placement of
Children;
(4)
Order the child and such child's parent, guardian, or legal custodian to
participate in counseling or in counsel and advice as determined by the court.
Such counseling and counsel and advice may be provided by the court, court
personnel, probation officers, professional counselors or social workers,
psychologists, physicians, qualified volunteers, or appropriate public, private,
or volunteer agencies as directed by the court and shall be designed to assist
in deterring future conditions of dependency or other conduct or conditions
which would be harmful to the child or society;
(5)
Order the parent, guardian, or legal custodian of the child to participate in a
court approved educational or counseling program designed to contribute to the
ability of the parent, guardian, or legal custodian to provide proper parental
care and supervision of the child, including, but not limited to, parenting
classes;
(6)
Order DFCS to implement and the child's parent, guardian, or legal custodian to
cooperate with any plan approved by the court; or
(7)
Order temporary child support for a child to be paid by that person or those
persons determined to be legally obligated to support the child. In determining
such temporary child support, the court shall apply the child support guidelines
provided in Code Section 19-6-15 and the implementation and any review of the
order shall be held as provided in Code Section 19-6-15. Where there is an
existing order of a superior court or other court of competent jurisdiction, the
court may order the child support obligor in the existing order to make payments
to the child's caretaker on a temporary basis but shall not otherwise modify the
terms of the existing order. A copy of the juvenile court's order shall be
filed in the clerk's office of the court that entered the existing order.
Temporary child support orders entered pursuant to this paragraph shall be
enforceable by the court's contempt powers so long as the court is entitled to
exercise jurisdiction over the dependency case.
(b)
The transfer of temporary legal custody may be subject to conditions and
limitations the court may prescribe. Such conditions and limitations shall
include a provision that the court shall approve or direct the return of the
physical custody of the child to the child's parent, guardian, or legal
custodian either upon the occurrence of specified circumstances or at the
direction of the court. The return of physical custody of the child to the
child's parent, guardian, or legal custodian may be made subject to conditions
and limitations the court may prescribe including, but not limited to,
supervision for the protection of the child.
(c)
A child found to be dependent shall not be committed to or confined in an
institution or other facility designed or operated for the benefit of delinquent
children unless the child is also found to be delinquent and the child's
detention is warranted under the requirements of Article 7 of this
chapter.
(d)
After transferring temporary legal custody of a child to DFCS, the court may at
any time conduct sua sponte a judicial review of the current placement plan
being provided to the child. After its review, the court may order DFCS to
comply with the current placement plan, order DFCS to devise a new placement
plan, or make any other order relative to placement or custody outside DFCS as
the court finds to be in the best interests of the child. Placement or a change
of custody by the court outside DFCS shall relieve DFCS of further
responsibility for the child except for any provision of services ordered by the
court to ensure the continuation of reunification services to the family when
appropriate.
(e)
A court shall not be required to make an order of disposition regarding a child
who is discharged from a facility in which the child was hospitalized or
habilitated pursuant to Chapter 3, 4, or 7 of Title 37 unless the child is to be
discharged into the physical custody of any person who had such custody when the
court made its most recent finding that the child was dependent.
(f)
If a child is found to be a dependent child and the dependency is found to have
been the result of substance abuse by a parent, guardian, or legal custodian and
the court orders transfer of temporary legal custody of the child, the court
shall be authorized to further order that legal custody of the child may not be
transferred back to the child's parent, guardian, or legal custodian unless the
parent, guardian, or legal custodian undergoes substance abuse treatment and
random substance abuse screenings and those screenings remain negative for a
period of no less than six consecutive months.
(g)
If the court finds that DFCS preventive or reunification efforts have not been
reasonable but that further efforts could not permit the child to safely remain
at home, the court may nevertheless authorize or continue the removal of the
child.
(h)
When the case plan requires a concurrent permanency plan, the court shall review
the reasonable efforts of DFCS to recruit, identify, and make a placement in a
home in which a relative, foster parent, or other person who has demonstrated an
ongoing commitment to the child has agreed to provide a legally permanent home
for the child in the event reunification efforts are not
successful.
15-11-213.
Any
order of disposition shall contain written findings of fact to support the
disposition and case plan ordered. Before making an order of disposition, the
court shall consider the following:
(1)
Why the best interests and safety of the child are served by the disposition and
case plan ordered including but not limited to:
(A)
The interaction and interrelationship of the child with his or her parent,
siblings, and any other person who may significantly affect the child's best
interests;
(B)
The child's adjustment to his or her home, school, and community;
(C)
The mental and physical health of all individuals involved;
(D)
The wishes of the child as to the child's placement;
(E)
The wishes of the child's parent, guardian, or legal custodian as to the child's
custody;
(F)
Whether there exists a relative of the child or other individual who, after
study by DFCS, is found to be qualified to receive and care for the child;
and
(G)
The ability of the parent, guardian, or legal custodian to care for the child in
the home so that no harm will result to the child;
(2)
The availability of services recommended in the case plan;
(3)
What alternative dispositions or services under the case plan were considered by
the court and why such dispositions or services were not appropriate in the
instant case;
(4)
The appropriateness of the particular placement made or to be made by the
placing agency; and
(5)
Whether reasonable efforts were made to prevent or eliminate the necessity of
the child's removal and to reunify the family after removal unless reasonable
efforts were not required. The court's findings should include a brief
description of what preventive and reunification efforts were made and why
further efforts could not have prevented or eliminated the necessity of
removal.
15-11-214.
(a)
An order of disposition in a dependency proceeding shall continue in force until
the purposes of the order have been accomplished.
(b)
The court may terminate an order of disposition of a child adjudicated as
dependent on or without an application of a party, if it appears to the court
that the purposes of the order have been accomplished.
(c)
Unless a child remains in DFCS care or continues to receive services from DFCS,
as allowed by Article 5 of this chapter, when a child adjudicated as dependent
reaches 18 years of age, all orders affecting him or her then in force terminate
and he or she shall be discharged from further obligation or
control.
15-11-215.
(a)
Not less than five days in advance of any placement change, DFCS shall notify
the court, a child who is 14 years of age or older, the child's parent,
guardian, or legal custodian, the person or agency with physical custody of the
child, the child's attorney, the child's guardian ad litem, if any, and any
other attorney of record of such change in the location of the child's placement
while the child is in DFCS custody.
(b)
If the child's health or welfare may be endangered by any delay in changing the
child's placement, the court and all attorneys of record shall be notified of
such placement change within 24 hours of such change.
(c)
A child who is 14 years of age or older, the child's parent, guardian, or legal
custodian, the person or agency with physical custody of the child, the child's
attorney or guardian ad litem, if any, and any attorney of record may request a
hearing with regard to the child's case plan or the permanency plan in order for
the court to consider the change in the location of the child's placement and
any changes to the case plan or permanency plan resulting from the child's
change in placement location. The hearing shall be held within five days of
receiving notice of a change in the location of the child's placement and prior
to any such placement change, unless the child's health or welfare may be
endangered by any delay in changing the child's placement.
(d)
At the hearing to consider the child's case plan and permanency plan, the court
shall consider the case plan and permanency plan recommendations made by DFCS,
including a recommendation as to the location of the placement of the child, and
shall make findings of fact upon which the court relied in determining to reject
or accept the case plan or permanency plan and the recommendations made by DFCS,
including the location of the child's placement.
(e)
If the court rejects DFCS recommendations, the court shall demonstrate that DFCS
recommendations were considered and explain why it did not follow such
recommendations. If the court rejects the DFCS case plan and permanency plan
recommendations, including the change in the location of the placement of the
child, the court may order DFCS to devise a new case plan and permanency plan
recommendation, including a new recommendation as to the location of the child
within the resources of the department, or make any other order relative to
placement or custody outside the department as the court finds to be in the best
interests of the child and consistent with the policy that children in DFCS
custody should have stable placements.
(f)
Placement or a change of legal custody by the court outside DFCS shall relieve
DFCS of further responsibility for the child except for any provision of
services ordered by the court to ensure the continuation of reunification
services to the family when appropriate.
15-11-216.
(a)
All cases of children in DFCS custody shall be initially reviewed within 75 days
following the child's removal from his or her home and shall be conducted by the
court. An additional periodic review shall be held within four months following
the initial review and shall be conducted by the court or by judicial citizen
review panels established by the court, as the court directs, meeting such
standards and using such procedures as are established by court rule by the
Supreme Court of Georgia, with the advice and consent of the Council of Juvenile
Court Judges. The court shall have the discretion to schedule any subsequent
review hearings as necessary.
(b)
At any periodic review hearing, the paramount concern shall be the health and
safety of the child.
(c)
At the initial 75 day periodic review, the court shall approve the completion of
the relative search, schedule the subsequent four-month review to be conducted
by the court or a citizen judicial review panel, and shall
determine:
(1)
Whether the child continues to be a dependent child;
(2)
Whether the existing case plan is still the best case plan for the child and the
child's family and whether any changes need to be made to the case plan
including whether a concurrent case plan for nonreunification is
appropriate;
(3)
The extent of compliance with the case plan by all participants;
(4)
The appropriateness of any recommended changes to the child's
placement;
(5)
Whether appropriate progress is being made on the permanency plan;
(6)
Whether all legally required services are being provided to the child, the
foster parents if there are foster parents, and the child's parent, guardian, or
legal custodian;
(7)
Whether visitation is appropriate and, if so, approve and establish a reasonable
visitation schedule consistent with the age and developmental needs of the
child;
(8)
Whether, for a child who is 14 years of age or older, the services needed to
assist the child to make a transition from foster care to independent living are
being provided; and
(9)
Whether reasonable efforts continue to be made to prevent or eliminate the
necessity of the child's removal and to reunify the family after removal, unless
reasonable efforts were not required.
(d)
If at any review subsequent to the initial 75 day review the court finds that
there is a lack of substantial progress towards completion of the case plan, the
court shall order DFCS to develop a case plan for nonreunification or a
concurrent case plan contemplating nonreunification.
(e)
At the time of each review of a child in DFCS custody, DFCS shall notify the
court whether and when it intends to proceed with the termination of parental
rights.
15-11-217.
(a)
In the event the periodic review of a case is conducted by a judicial citizen
review panel, the panel shall transmit its report and that of DFCS, including
its findings and recommendations together with DFCS proposed revised plan for
reunification or other permanency plan, if necessary, to the court and the
parent within five days after the review.
(b)
DFCS shall provide the caregiver of the child, the foster parents of the child
if there are foster parents, and any preadoptive parents or relatives providing
care for the child with a copy of those portions of the report of the judicial
citizen review panel that involve the recommended permanency goal and the
recommended services to be provided to the child.
(c)
Any party may request a hearing on the proposed revised plan in writing within
five days after receiving a copy of the plan.
(d)
If no hearing is requested or scheduled by the court on its own motion, the
court shall review the proposed revised plan and enter a supplemental order
incorporating the revised plan as part of its disposition in the case. In the
event that a hearing is held, the court shall, after hearing evidence, enter a
supplemental order incorporating all elements that the court finds essential in
the proposed revised plan.
(e)
Notwithstanding subsections (c) and (d) of this Code section, if the judicial
citizen review panel finds that there is a lack of substantial progress towards
completion of the case plan, the court shall schedule a hearing within 30 days
of such finding to determine whether a case plan for nonreunification is
appropriate.
(f)
If the judicial citizen review panel determines that the parent has
unjustifiably failed to comply with the ordered plan designed to reunite the
family and that such failure is significant enough to warrant consideration of
termination of parental rights, the panel may make a recommendation to DFCS and
the child's attorney that a petition for termination of parental rights should
be prepared.
15-11-218.
(a)
At the conclusion of a periodic review hearing, or upon review of a report by a
judicial citizen review panel, the court shall issue written findings of fact
that include:
(1)
Why the child continues to be a dependent child;
(2)
Whether the existing case plan is still the best case plan for the child and the
child's family and whether any changes need to be made to the case plan
including whether a concurrent case plan for nonreunification is
appropriate;
(3)
The extent of compliance with the case plan by all participants;
(4)
The basis for any changes to the child's placement;
(5)
Whether visitation is or continues to be appropriate;
(6)
A description of progress being made on the permanency plan;
(7)
Whether all legally required services are being provided to the child, the
foster parents if there are foster parents, and the child's parent, guardian, or
legal custodian;
(8)
Whether, for a child who is 14 years of age or older, the services needed to
assist the child to make a transition from foster care to independent living are
being provided; and
(9)
Whether reasonable efforts continue to be made to prevent or eliminate the
necessity of the child's removal and to reunify the family after removal, unless
reasonable efforts were not required.
(b)
At the conclusion of a periodic review hearing, or upon review of a report by a
judicial citizen review panel, the court shall order one of the following
dispositions:
(1)
Return the child to the home of his or her parent, guardian, or legal custodian
with or without court imposed conditions;
(2)
Allow the child to continue in the current custodial placement because the
current placement is appropriate for the child's needs;
(3)
Allow the child to continue in the current custodial placement although the
current placement is no longer appropriate for the child's needs and direct DFCS
to devise another plan which shall:
(A)
Be submitted within ten days for court approval;
(B)
Be furnished to all parties after court approval of the revised plan;
and
(C)
Be provided to the caregiver of the child, the foster parents of the child if
there are foster parents , and any preadoptive parents or relative providing
care for the child with a copy of those portions of the court approved revised
plan that involve the permanency goal and the services to be provided to the
child; or
(4)
Make additional orders regarding the treatment plan or placement of the child to
protect the child's best interests if the court determines DFCS has failed in
implementing any material provision of the case plan or abused its discretion in
the placement or proposed placement of the child.
Part
12
15-11-230.
(a)
The court shall hold a permanency plan hearing to determine the future permanent
legal status of each child in DFCS custody.
(b)
The permanency plan hearing, which considers in-state and out-of-state placement
options for the child, shall be held:
(1)
No later than 30 days after DFCS has submitted a written report to the court
which does not contain a plan for reunification services;
(2)
For children under seven years of age at the time a petition is filed, no later
than nine months after the child has entered foster care;
(3)
For children seven years of age and older at the time a petition is filed, no
later than 12 months after the child has entered foster care; or
(4)
For a child in a sibling group whose members were removed from the home at the
same time and in which one member of the sibling group was under seven years of
age at the time a petition for dependency was filed, the permanency plan hearing
shall be held no later than nine months after the child has entered foster
care.
(c)
After the initial permanency plan hearing has occurred, a permanency plan
hearing shall be held not less frequently than every six months during the time
the child continues in DFCS custody or more frequently as deemed necessary by
the court until the court determines that the child's permanency plan and goal
have been achieved.
(d)
The child, the child's parent, guardian, or legal custodian, the child's
attorney, the child's guardian ad litem, if any, the foster parents of the child
if there are foster parents, any preadoptive parent or relatives providing care
for the child, and other parties shall be given written notice of a permanency
plan hearing at least five days in advance of such hearing and shall be advised
that the permanency plan recommended by DFCS will be submitted to the court for
consideration as the order of the court.
(e)
The court shall consult with the child, in an age-appropriate manner, regarding
the proposed permanency plan for the child.
15-11-231.
At
least five days prior to the permanency plan hearing, DFCS shall submit for the
court's consideration a report recommending a permanency plan for the child.
The report shall include documentation of the steps to be taken by DFCS to
finalize the permanent placement for the child and shall include, but shall not
be limited to:
(1)
The name, address, and telephone number of the child's parent, guardian, or
legal custodian;
(2)
The date on which the child was removed from his or her home and the date on
which the child was placed in foster care;
(3)
The location and type of home or facility in which the child is currently held
or placed and the location and type of home or facility in which the child will
be placed;
(4)
The basis for the decision to hold the child in protective custody or to place
the child outside of his or her home;
(5)
A statement as to the availability of a safe and appropriate placement with a
fit and willing relative of the child or other person who has demonstrated an
ongoing commitment to the child or a statement as to why placement with the
relative or other person is not safe or appropriate;
(6)
If as a result of the placement the child has been or will be transferred from
the school in which the child is or most recently was enrolled, documentation
that a placement that would maintain the child in that school is unavailable,
inappropriate, or that the child's transfer to another school would be in the
child's best interests;
(7)
A plan for ensuring the safety and appropriateness of the placement and a
description of the services provided to meet the needs of the child and family,
including a discussion of services that have been investigated and considered
and are not available or likely to become available within a reasonable time to
meet the needs of the child or, if available, why such services are not safe or
appropriate;
(8)
The goal of the permanency plan which shall include:
(A)
Whether and, if applicable, when the child shall be returned to the child's
parent;
(B)
Whether and, if applicable, when the child shall be referred for termination of
parental rights and adoption;
(C)
Whether and, if applicable, when the child shall be placed with a permanent
guardian; or
(D)
In the case in which DFCS has documented a compelling reason that none of the
foregoing options would be in the best interests of the child, whether, and if
applicable, when the child shall be placed in another planned permanent living
arrangement;
(9)
If the child is 14 years of age or older, a description of the programs and
services that are or will be provided to assist the child in preparing for the
transition from foster care to independent living. The description shall
include all of the following:
(A)
The anticipated age at which the child will be discharged from foster
care;
(B)
The anticipated amount of time available in which to prepare the child for the
transition from foster care to independent living;
(C)
The anticipated location and living situation of the child on discharge from
foster care;
(D)
A description of the assessment processes, tools, and methods that have been or
will be used to determine the programs and services that are or will be provided
to assist the child in preparing for the transition from foster care to
independent living; and
(E)
The rationale for each program or service that is or will be provided to assist
the child in preparing for the transition from foster care to independent
living, the time frames for delivering such programs or services, and the
intended outcome of such programs or services; and
(10)
When the recommended permanency plan is referral for termination of parental
rights and adoption or placement in another home, a description of specific
recruitment efforts such as the use of state, regional, and national adoption
exchanges, including electronic exchange systems, to facilitate orderly and
timely in-state and interstate placements.
15-11-232.
(a)
At the permanency plan hearing, the court shall make written findings of fact
that include the following:
(1)
Whether DFCS has made reasonable efforts to finalize the permanency plan which
is in effect at the time of the hearing;
(2)
The continuing necessity for and the safety and appropriateness of the
placement;
(3)
Compliance with the permanency plan by DFCS and any other service providers, the
child's parent, and the child's guardian or legal custodian, if
any;
(4)
Efforts to involve appropriate service providers in addition to DFCS staff in
planning to meet the special needs of the child and the child's parent,
guardian, or legal custodian;
(5)
Efforts to eliminate the causes for the child's placement outside of his or her
home and toward returning the child safely to his or her home or obtaining a
permanent placement for the child;
(6)
The date by which it is likely that the child will be returned to his or her
home, placed for adoption, or placed with a permanent guardian or in some other
alternative permanent placement;
(7)
Whether, in the case of child placed out-of-state, the out-of-state placement
continues to be appropriate and in the best interests of the child;
and
(8)
In the case of a child who is 14 years of age or older, the services needed to
assist the child to make a transition from foster care to independent
living.
(b)
The permanency plan incorporated in the court's order shall
include:
(1)
Whether and, if applicable, when the child shall be returned to the child's
parent;
(2)
Whether and, if applicable, when the child shall be referred for termination of
parental rights and adoption;
(3)
Whether and, if applicable, when the child shall be placed with a permanent
guardian; or
(4)
Whether there is a safe and appropriate placement with a fit and willing
relative of the child or other person who has demonstrated an ongoing commitment
to the child or a statement as to why placement with the relative or other
person is not safe or appropriate.
(c)
If the court finds that there is a compelling reason that it would not be in the
child's best interests to be returned to the parent, referred for termination of
parental rights and adoption, or placed with a permanent guardian, then the
court's order shall document the compelling reason and provide that the child
should be placed in another planned permanent living arrangement as defined in
the court's order.
(d)
A supplemental order of the court adopting the permanency plan including all
requirements of the permanency plan as provided in Code Section 15-11-231 shall
be entered following the permanency hearing and in no case later than 30 days
after the court has determined that reunification efforts shall not be made by
DFCS. The supplemental order shall include a requirement that the DFCS case
manager and staff and, as appropriate, other representatives of the child
provide the child with assistance and support in developing a transition plan
that is personalized at the direction of the child; includes specific options on
housing, health insurance, education, local opportunities for mentors and
continuing support services, and work force supports and employment services;
and is as detailed as the child may elect in the 90 day period immediately prior
to the date on which the child will attain 18 years of age.
15-11-233.
(a)
Except as provided in subsection (b) of this Code section, DFCS shall file a
petition to terminate the parental rights of the child's parent or, if such a
petition has been filed by another party, seek to be joined as a party to the
petition, and, concurrently, to identify, recruit, process, and approve a
qualified family for an adoption if:
(1)
A child has been in foster care under the responsibility of DFCS for 15 of the
most recent 22 months;
(2)
The court has made a determination that the parent has subjected the child to
aggravated circumstances;
(3)
The court has made a determination that the child is an abandoned infant;
or
(4)
The court has made a determination that the parent has been convicted
of:
(A)
The murder of another child of the parent;
(B)
Voluntary manslaughter of another child of the parent;
(C)
Voluntary manslaughter of the other parent of the child;
(D)
Aiding or abetting, attempting, conspiring, or soliciting to commit murder or
voluntary manslaughter of another child of the parent;
(E)
Aiding or abetting, attempting, conspiring, or soliciting to commit murder or
voluntary manslaughter of the other parent of the child; or
(F)
Committing felony assault that has resulted in serious bodily injury to the
child or to another child of the parent.
(b)
Termination of parental rights may not be in the best interests of the child
when:
(1)
The child is being cared for by a relative;
(2)
The case plan documents a compelling reason for determining that filing such a
petition would not be in the best interests of the child. Such compelling
reasons may include, but shall not be limited to:
(A)
The parent is successfully participating in services that will make it possible
for the child to safely return home;
(B)
Another permanency plan is better suited to meet the health and safety needs of
the child. Documentation that another permanent plan is better suited to meet
the health and safety needs of the child may include documentation
that:
(i)
The child is 14 years of age or older and objects to termination of parental
rights. Prior to accepting a child's objection, the court shall personally
question the child in chambers to determine whether the objection is the
voluntary and knowing choice of the child;
(ii)
The child is 16 years of age or older and specifically requests that
emancipation be established as his or her permanent plan;
(iii)
The parent and the child have a significant bond, but the parent is unable to
care for the child because of an emotional or physical disability, and the
child's caregiver has committed to raising the child to the age of majority and
facilitating visitation with the disabled parent; or
(iv)
The child is in a residential treatment facility that provides services
specifically designed to address the child's treatment needs, and the court
determines that the child's needs could not be served by a less restrictive
placement;
(C)
The child is living with a relative who is unable or unwilling to adopt the
child, but who is willing and capable of providing the child with a stable and
permanent home environment, and the removal of the child from the physical
custody of his or her relative would be detrimental to the child's emotional
well-being;
(D)
The court or judicial citizen review panel, in a prior hearing or review,
determined that while the case plan was to reunify the family, DFCS did not make
reasonable efforts; or
(E)
The child is an unaccompanied refugee or there are international legal
obligations or foreign policy reasons that would preclude terminating parental
rights; or
(3)
DFCS has not provided to the family of the child services deemed necessary for
the safe return of the child to the child's home, consistent with the specific
time frames for the accomplishment of the case plan goals.
(c)
The recommendation by DFCS that termination of parental rights is not in the
best interests of the child shall be based on the present family circumstances
of the child and shall not preclude a different recommendation at a later date
if the child's family circumstances change.
Part
13
15-11-240.
(a)
In addition to the jurisdiction to appoint guardians pursuant to Code Section
15-11-13, the juvenile court shall be vested with jurisdiction to appoint a
permanent guardian for a child whose custody is a subject of controversy before
the court as a result of an adjudication that the child is dependent in
accordance with this article. Prior to the entry of such an order, the court
shall:
(1)
Find that reasonable efforts to reunify the child with his or her parents would
be detrimental to the child or find that the living parents of the child have
consented to the permanent guardianship;
(2)
Find that termination of parental rights and adoption is not in the best
interests of the child;
(3)
Find that the proposed permanent guardian can provide a safe and permanent home
for the child;
(4)
Find that the appointment of a permanent guardian for the child is in the best
interests of the child and that the individual chosen as the child's permanent
guardian is the individual most appropriate to be the child's permanent guardian
taking into consideration the best interests of the child; and
(5)
If the child is 14 years of age or older, find that the appointment of a
permanent guardian for the child is in the best interests of the child and that
the individual chosen by such child as the child's permanent guardian is the
individual most appropriate to be the child's permanent guardian taking into
consideration the best interests of the child.
(b)
The court may enter an order of support on behalf of the child against the
parents of the child in accordance with paragraph (7) of subsection (a) of Code
Section 15-11-212.
15-11-241.
The
petition for the appointment of a permanent guardian pursuant to this part shall
set forth:
(1)
The facts upon which the court's jurisdiction is based;
(2)
The name and date of birth of the child;
(3)
The name, address, and county of domicile of the petitioner and the petitioner's
relationship to the child, if any, and, if different from the petitioner, the
name, address, and county of domicile of the individual nominated by the
petitioner to serve as guardian and that individual's relationship to the child,
if any;
(4)
A statement that:
(A)
Reasonable efforts to reunify the child with his or her parents would be
detrimental to the child;
(B)
Termination of parental rights and adoption is not in the best interests of the
child;
(C)
The proposed guardian can provide a safe and permanent home for the
child;
(D)
The appointment of a permanent guardian for the child is in the best interests
of the child and that the individual chosen as the child's guardian is the
individual most appropriate to be the child's permanent guardian taking into
consideration the best interests of the child; and
(E)
If the child is 14 years of age or older, that the appointment of a permanent
guardian for the child is in the best interests of the child and that the
individual chosen by such child as the child's permanent guardian is the most
appropriate individual to be the child's permanent guardian taking into
consideration the best interests of the child;
(5)
Whether the child was born out of wedlock and, if so, the name and address of
the biological father, if known;
(6)
Whether, to the petitioner's knowledge, there exists any notarized or witnessed
document made by a parent of the child that deals with the guardianship of the
child and the name and address of any designee named in the
document;
(7)
In addition to the petitioner and the nominated guardian and, if the parent has
not consented to the permanent guardianship, the names and addresses of the
following relatives of the child whose whereabouts are known:
(A)
The adult siblings of the child; provided, however, that not more than three
adult siblings need to be listed;
(B)
If there is no adult sibling of the child, the grandparents of the child;
provided, however, that not more than three grandparents need to be listed;
or
(C)
If there is no grandparent of the child, any three of the nearest adult
relatives of the child determined according to Code Section 53-2-1;
(8)
Whether a temporary guardian has been appointed for the child or a petition for
the appointment of a temporary guardian has been filed or is being filed;
and
(9)
The reason for any omission in the petition for appointment of a permanent
guardian for the child in the event full particulars are lacking.
15-11-242.
(a)
Permanent guardianship orders entered pursuant to Code Section 15-11-240
shall:
(1)
Remain in effect until the child reaches the age of 18 or becomes
emancipated;
(2)
Not be subject to review by the court except as provided in Code Section
15-11-244; and
(3)
Establish a reasonable visitation schedule which allows the child to maintain
meaningful contact with his or her parents through personal visits, telephone
calls, letters, or other forms of communication or specifically include any
restriction on a parent's right to visitation.
(b)
A permanent guardian shall have the rights and duties of a permanent guardian as
provided in Code Sections 29-2-21, 29-2-22, and 29-2-23 and shall take the oath
required of a guardian as provided in Code Section 29-2-24.
15-11-243.
(a)
Notice of a guardianship petition pursuant to this part shall be given in
accordance with subsection (c) of Code Section 29-2-17 except that, if the
parents have consented to the guardianship, notice of the petition shall not be
required to be given to:
(1)
The adult siblings of the child;
(2)
The grandparents of the child; or
(3)
The nearest adult relatives of the child as determined in accordance with Code
Section 53-2-1.
(b)
The hearing shall be conducted in accordance with Code Section 29-2-18, to
determine the best interests of the child, and in reaching its determination the
court shall consider Code Section 15-11-240.
15-11-244.
(a)
The court shall retain jurisdiction over a guardianship action under this part
for the sole purpose of entering an order following the filing of a petition to
modify, vacate, or revoke the guardianship and appoint a new
guardian.
(b)
The superior courts shall have concurrent jurisdiction for enforcement or
modification of any child support or visitation order entered pursuant to Code
Section 15-11-240.
(c)
The guardianship shall be modified, vacated, or revoked based upon a finding, by
clear and convincing evidence, that there has been a material change in the
circumstances of the child or the guardian and that such modification, vacation,
or revocation of the guardianship order and the appointment of a new guardian is
in the best interests of the child. Appointment of a new guardian shall be
subject to the provisions of Code Sections 15-11-240 and 15-11-241.
ARTICLE
4
Part 1
Part 1
15-11-260.
(a)
The purpose of this article is:
(1)
To protect a child whose parent is unwilling or unable to provide safety and
care adequate to meet his or her physical, emotional, and mental health needs by
providing a judicial process for the termination of all parental rights and
responsibilities;
(2)
To eliminate the need for a child to wait unreasonable periods of time for his
or her parent to correct the conditions which prevent a return to the
family;
(3)
To ensure that the continuing needs of a child for proper physical, mental, and
emotional growth and development are the decisive considerations in all
proceedings;
(4)
To ensure that the constitutional rights of all parties are recognized and
enforced in all proceedings conducted pursuant to this article while ensuring
that the fundamental needs of a child are not subjugated to the interests of
others; and
(5)
To encourage stability in the life of a child who has been adjudicated dependent
and has been removed from his or her home by ensuring that all proceedings are
conducted expeditiously to avoid delays in resolving the status of the parent
and in achieving permanency for a child.
(b)
Nothing in this article shall be construed as affecting the rights of a parent
other than the parent who is the subject of the proceedings.
15-11-261.
(a)
An order terminating the parental rights of a parent shall be without limit as
to duration and shall divest the parent and the child of all legal rights,
powers, privileges, immunities, duties, and obligations with respect to each
other, except:
(1)
The right of the child to receive child support from his or her parent until a
final order of adoption is entered;
(2)
The right of the child to inherit from and through his or her parent. The right
of inheritance of the child shall be terminated only by a final order of
adoption;
(3)
The right of the child to benefits due to him or her from any third person,
agency, state, or the United States based on the child's status as a child of
his or her parent. This right shall be terminated only by a final order of
adoption; and
(4)
The right of the child to pursue any civil action against his or her
parent.
(b)
When an order terminating the parent and child relationship has been issued, the
parent whose right has been terminated shall not thereafter be entitled to
notice of proceedings for the adoption of the child by another, nor has the
parent any right to object to the adoption or otherwise to participate in such
proceedings.
(c)
The relationship between the child and his or her siblings shall not be severed
until that relationship is terminated by final order of adoption.
(d)
A relative whose relationship to the child is derived through the parent whose
parental rights are terminated shall be considered to be a relative of the child
for purposes of placement of, and permanency plan for, the child until such
relationship is terminated by final order of adoption.
15-11-262.
(a)
The child and any other party to a proceeding under this article shall have the
right to a qualified and independent attorney at all stages of the proceedings
under this article.
(b)
The court shall appoint an attorney for the child in a termination of parental
rights proceeding. The appointment shall be made as soon as practicable to
ensure adequate representation of the child and, in any event, before the first
court hearing that may substantially affect the interests of the
child.
(c)
A child's attorney owes to the child the duties imposed by the law of this state
in an attorney-client relationship.
(d)
The court shall appoint a guardian ad litem for the child in a termination
proceeding:
(1)
At the request of the child's attorney; or
(2)
Upon the court's own motion if it determines that a guardian ad litem is
necessary to assist the court in determining the best interests of the
child.
(e)
The role of a guardian ad litem in a termination of parental rights proceeding
shall be the same role as provided for in all dependency proceedings under
Article 3 of this chapter.
(f)
A person appointed as a child's attorney shall have received training that is
administered or approved by the Office of the Child Advocate for the Protection
of Children prior to being appointed. Such preappointment training shall be
satisfied within an attorney's existing continuing legal education obligations
and shall not require the attorney to complete additional training hours in
addition to those currently required by the State Bar of Georgia.
(g)
If an attorney has been appointed to represent a child in a prior proceeding
under this chapter, the court, when possible, shall appoint the same attorney to
represent the child in any subsequent proceeding.
(h)
An attorney appointed to represent a child in a termination proceeding shall
continue the representation in any subsequent appeals unless excused by the
court.
(i)
Neither the child nor a representative of the child may waive the right to an
attorney in a termination proceeding.
(j)
A party other than a child shall be informed of his or her right to an attorney
prior to the adjudication hearing and prior to any other hearing at which a
party could be subjected to the loss of residual parental rights. A party other
than a child shall be given an opportunity to:
(1)
Obtain and employ an attorney of the party's own choice;
(2)
To obtain a court appointed attorney if the court determines that the party is
an indigent person; or
(3)
Waive the right to an attorney.
15-11-263.
(a)
Upon motion of any party or the court, the court may require a physical or
mental evaluation of any parent, stepparent, guardian, legal custodian, or
child.
(b)
The cost of any ordered evaluation shall be paid by the moving party unless
apportioned by the court, in its discretion, to any other party or
parties.
15-11-264.
(a)
In all cases under this article, any party shall, upon written request to the
party having actual custody, control, or possession of the material to be
produced, have full access to the following for inspection, copying, or
photographing:
(1)
The names and telephone numbers of each witness likely to be called to testify
at the hearing by another party;
(2)
A copy of any formal written statement made by the child who is alleged to be
dependent or any witness that relates to the subject matter concerning the
testimony of the witness that a party intends to call as a witness at the
hearing;
(3)
Except as otherwise provided in subsection (b) of this Code section, any
scientific or other report which is intended to be introduced at any hearing or
that pertains to physical evidence which is intended to be
introduced;
(4)
Any drug screen concerning the child who is alleged to be dependent or his or
her parent, guardian, or legal custodian;
(5)
Any case plan concerning the child who is alleged to be dependent or his or her
parent, guardian, or legal custodian;
(6)
Any visitation schedule related to the child who is alleged to be
dependent;
(7)
Photographs and any physical evidence which are intended to be introduced at any
hearing;
(8)
Copies of the police incident report regarding an occurrence which forms part or
all of the basis of the petition; and
(9)
Any other relevant evidence not requiring consent or a court order under
subsection (b) of this Code section.
(b)
Upon presentation of a court order or written consent from the appropriate
person or persons permitting access to the party having actual custody, control,
or possession of the material to be produced, any party shall have access to the
following for inspection, copying, or photographing:
(1)
Any psychological, developmental, physical, mental or emotional health, or other
assessments of the child who is alleged to be dependent or the family, parent,
guardian, or legal custodian of such child;
(2)
Any school record concerning the child who alleged to be dependent;
(3)
Any medical record concerning the child who is alleged to be
dependent;
(4)
Transcriptions, recordings, and summaries of any oral statement of the child who
is alleged to be dependent or of any witness, except child abuse reports that
are confidential pursuant to Code Section 19-7-5 and work product of
counsel;
(5)
Any family team meeting report or multidisciplinary team meeting report
concerning the child who is alleged to be dependent or his or her parent,
guardian, or legal custodian;
(6)
Supplemental police reports, if any, regarding an occurrence which forms part of
all of the basis of the petition; and
(7)
Immigration records concerning the child who is alleged to be
dependent.
(c)
If a party requests disclosure of information pursuant to subsection (a) or (b)
of this Code section, it shall be the duty of such party to promptly make the
following available for inspection, copying, or photographing to every other
party:
(1)
The names and last known addresses and telephone numbers of each witness to the
occurrence which forms the basis of the party's defense or claim;
(2)
Any scientific or other report which is intended to be introduced at the hearing
or that pertains to physical evidence which is intended to be
introduced;
(3)
Photographs and any physical evidence which are intended to be introduced at the
hearing; and
(4)
A copy of any written statement made by any witness that relates to the subject
matter concerning the testimony of the witness that the party intends to call as
a witness.
(d)
A request for discovery or reciprocal discovery shall be complied with promptly
and not later than five days after the request is received or 72 hours prior to
any hearing except when later compliance is made necessary by the timing of the
request. If the request for discovery is made fewer than 48 hours prior to an
adjudicatory hearing, the discovery response shall be produced in a timely
manner. If, subsequent to providing a discovery response in compliance with
this Code section, the existence of additional evidence is found, it shall be
promptly provided to the party making the discovery request.
(e)
If a request for discovery or consent for release is refused, application may be
made to the court for a written order granting discovery. Motions for discovery
shall certify that a request for discovery or consent was made and was
unsuccessful despite good faith efforts made by the requesting party. An order
granting discovery shall require reciprocal discovery. Notwithstanding the
provisions of subsection (a) or (b) of this Code section, the court may deny, in
whole or in part, or otherwise limit or set conditions concerning the discovery
response upon a sufficient showing by a person or entity to whom a request for
discovery is made that disclosure of the information would:
(1)
Jeopardize the safety of a party, witness, or confidential
informant;
(2)
Create a substantial threat of physical or economic harm to a witness or other
person;
(3)
Endanger the existence of physical evidence;
(4)
Disclose privileged information; or
(5)
Impede the criminal prosecution of a minor who is being prosecuted as an adult
or the prosecution of an adult charged with an offense arising from the same
transaction or occurrence.
(f)
No deposition shall be taken of a child unless the court orders the deposition,
under such conditions as the court may order, on the ground that the deposition
would further the purposes of this part.
(g)
If at any time during the course of the proceedings it is brought to the
attention of the court that a person or entity has failed to comply with an
order issued pursuant to this Code section, the court may grant a continuance,
prohibit the party from introducing in evidence the information not disclosed,
or enter such other order as the court deems just under the
circumstances.
(h)
Nothing contained in this Code section shall prohibit the court from ordering
the disclosure of any information that the court deems necessary for proper
adjudication.
(i)
Any material or information furnished to a party pursuant to this Code section
shall remain in the exclusive custody of the party and shall only be used during
the pendency of the case and shall be subject to such other terms and conditions
as the court may provide.
15-11-265.
Once
a petition to terminate parental rights has been filed, the parent shall
thereafter be without authority to execute an act of surrender or otherwise to
affect the custody of the child except the parent may:
(1)
Execute an act of surrender in favor of DFCS; and
(2)
Consent to a judgment terminating his or her parental rights.
Part
2
15-11-270.
(a)
A proceeding under this article shall be commenced in the county that has
jurisdiction over the related dependency proceedings.
(b)
For the convenience of the parties, the court may transfer proceedings to the
county in which the parent legally resides. If a proceeding is transferred,
certified copies of all legal and social documents and records pertaining to the
proceeding on file with the clerk of court shall accompany the
transfer.
Part
3
15-11-280.
(a)
A petition to terminate parental rights and all subsequent court documents in
such proceeding shall be entitled 'In the interest of _____, a child.', except
upon appeal, in which event the anonymity of the child shall be preserved by use
of appropriate initials. The petition shall be in writing.
(b)
The petition to terminate parental rights shall be made, verified, and endorsed
by the court as provided in Article 3 of this chapter for a petition alleging
dependency.
(c)
The petition to terminate parental rights shall:
(1)
State clearly that an order for termination of parental rights is requested and
that the effect of the order will be as stated in Code Section
15-11-260;
(2)
State the statutory ground, as provided in Code Section 15-11-310, on which the
petition is based; and
(3)
Set forth plainly and with particularity:
(A)
The facts which bring the child within the jurisdiction of the court, with a
statement that it is in the best interests of the child and the public that the
proceeding be brought;
(B)
The name, age, date of birth, and residence address of the child on whose behalf
the petition is brought;
(C)
The name and residence address of the parent, guardian, or legal custodian of
the child; or, if neither the child's parent nor the child's guardian nor the
child's legal custodian resides or can be found within the state or if such
place of residence address is unknown, the name of any known adult relative
residing within the county or, if there is none, the known adult relative
residing nearest to the location of the court;
(D)
Whether the child is in protective custody and, if so, the place of his or her
foster care and the time the child was taken into protective custody;
and
(E)
Whether any of the matters required by this paragraph are unknown.
(d)
When a petition seeks termination of the rights of a biological father who is
not the legal father and who has not surrendered his rights to the child, the
petition shall include a certificate from the putative father registry
disclosing the name, address, and social security number of any registrant
acknowledging paternity of the child or indicating the possibility of paternity
of a child of the child's mother for a period beginning no later than two years
immediately preceding the child's date of birth. The certificate shall document
a search of the registry on or after the date of the filing of the petition and
shall include a statement that the registry is current as to filings of
registrants as of the date of the petition or as of a date later than the date
of the petition to terminate parental rights.
(e)
A copy of a voluntary surrender or written consent, if any, previously executed
by the parent shall be attached to the petition to terminate parental
rights.
15-11-281.
(a)
The court shall direct the issuance of a summons to the child's mother, legal
father or biological father, guardian, legal custodian, the child's attorney,
the child's guardian ad litem, if any, and any other persons who appear to the
court to be proper or necessary parties to the proceeding, requiring them to
appear before the court at the time fixed to answer the allegations of the
petition to terminate parental rights. A copy of such petition shall accompany
the summons unless the summons is served by publication, in which case the
published summons shall indicate the general nature of the allegations and where
a copy of such petition can be obtained.
(b)
The court shall direct notice and a copy of the petition be provided to the
child if the child is 14 years of age or older.
(c)
The summons shall include the notice of effect of a termination judgment as set
forth in Code Section 15-11-284 and shall state that a party is entitled to an
attorney in the proceedings and that the court will appoint an attorney if the
party is an indigent person.
(d)
The court may endorse upon the summons an order directing the parent, guardian,
or legal custodian of the child to appear personally at the hearing or directing
the person having the physical custody or control of the child to bring the
child to the hearing.
(e)
A party other than the child may waive service of summons by written stipulation
or by voluntary appearance at the hearing.
15-11-282.
(a)
If a party to be served with a summons is within this state and can be found,
the summons shall be served upon him or her personally as soon as possible and
at least 30 days before the termination of parental rights hearing.
(b)
If a party to be served is within this state and cannot be found but his or her
address is known or can be ascertained with reasonable diligence, the summons
shall be served upon such party at least 30 days before the termination of
parental rights hearing by mailing him or her a copy by registered or certified
mail or statutory overnight delivery, return receipt requested.
(c)
If a party to be served is outside this state but his or her address is known or
can be ascertained with reasonable diligence, service of the summons shall be
made at least 30 days before the termination of parental rights hearing either
by delivering a copy to such party personally or by mailing a copy to him or her
by registered or certified mail or statutory overnight delivery, return receipt
request.
(d)
If, after justifiable effort, a party to be served with a summons cannot be
found and such party's address cannot be ascertained, whether he or she is
within or outside this state, the court may order service of the summons upon
him or her by publication. The termination of parental rights hearing shall not
be earlier than 31 days after the date of the last publication.
(e)(1)
Service by publication shall be made once a week for four consecutive weeks in
the official organ of the county where the petition to terminate parental rights
has been filed. Service shall be deemed complete upon the date of the last
publication.
(2)
When served by publication, the notice shall contain the names of the parties,
except that the anonymity of the child shall be preserved by the use of
appropriate initials, and the date the petition to terminate parental rights was
filed. The notice shall indicate the general nature of the allegations and
where a copy of the petition to terminate parental rights can be obtained and
require the party to be served by publication to appear before the court at the
time fixed to answer the allegations of the petition to terminate parental
rights.
(3)
A free copy of the petition to terminate parental rights shall be available to
the parent from the court during business hours or, upon request, shall be
mailed to the parent.
(4)
Within 15 days after the filing of the order of service by publication, the
clerk of court shall mail a copy of the notice, a copy of the order of service
by publication, and a copy of the petition to terminate parental rights to the
absent parent's last known address.
(f)
Service of the summons may be made by any suitable person under the direction of
the court.
(g)
The court may authorize the payment from county funds of the costs of service
and of necessary travel expenses incurred by persons summoned or otherwise
required to appear at the hearing.
15-11-283.
(a)
Unless he has surrendered all parental rights to the child, a summons shall be
served on:
(1)
A biological father who is the legal father of the child;
(2)
A biological father whose paternity has been previously established in a
judicial proceeding to which the father was a party;
(3)
A biological father whose identity is known to the petitioner or the
petitioner's attorney;
(4)
A biological father who is a registrant on the putative father registry and has
acknowledged paternity of the child;
(5)
A biological father who is a registrant on the putative father registry who has
indicated possible paternity of a child born to the child's mother during a
period beginning two years immediately preceding the child's date of birth;
or
(6)
A biological father who, if the court finds from the evidence including but not
limited to the affidavit of the child's mother, has performed any of the
following acts:
(A)
Lived with the child;
(B)
Contributed to the child's support;
(C)
Made any attempt to legitimate the child; or
(D)
Provided support or medical care for the mother either during her pregnancy or
during her hospitalization for the birth of the child.
(b)
Notice shall be given to a biological father by the following
methods:
(1)
If a biological father is within this state and can be found, the summons shall
be served upon him personally as soon as possible and least 30 days before the
termination of parental rights hearing;
(2)
If a biological father is outside this state but his address is known or can be
ascertained with reasonable diligence, service of summons shall be made at least
30 days before the termination of parental rights hearing either by delivering a
copy to him personally or by mailing a copy to him by registered or certified
mail or statutory overnight delivery, return receipt requested; or
(3)
If, after justifiable effort, a biological father to be served with summons
cannot be found and his address cannot be ascertained, whether he is within or
outside this state, the court may order service of summons upon him by
publication. The termination of parental rights hearing shall not be earlier
than 31 days after the date of the last publication. Service by publication
shall be as follows:
(A)
Service by publication shall be made once a week for four consecutive weeks in
the official organ of the county where the petition to terminate parental rights
has been filed and of the county of the biological father's last known address.
Service shall be deemed complete upon the date of the last
publication;
(B)
When served by publication, the notice shall contain the names of the parties,
except that the anonymity of the child shall be preserved by the use of
appropriate initials, and the date the petition to terminate parental rights was
filed. The notice shall indicate the general nature of the allegations and
where a copy of the petition to terminate parental rights can be obtained and
require the biological father to appear before the court at the time fixed to
answer the allegations of the petition to terminate parental
rights;
(C)
A free copy of the petition to terminate parental rights shall be available to
the biological father from the court during business hours or, upon request,
shall be mailed to the biological father; and
(D)
Within 15 days after the filing of the order of service by publication, the
clerk of court shall mail a copy of the notice, a copy of the order of service
by publication, and a copy of the petition to terminate parental rights to the
biological father's last known address.
(c)
The notice shall advise the biological father who is not the legal father that
he may lose all rights to the child and will not be entitled to object to the
termination of his rights to the child unless, within 30 days of receipt of
notice, he files:
(1)
A petition to legitimate the child; and
(2)
Notice of the filing of the petition to legitimate with the court in which the
termination of parental rights proceeding is pending.
(d)
If the identity of the biological father is not known to the petitioner or the
petitioner's attorney and the biological father would not be entitled to notice
in accordance with subsection (a) of this Code section, then it shall be
rebuttably presumed that he is not entitled to notice of the proceedings. The
court shall be authorized to require the mother to execute an affidavit
supporting the presumption or show cause before the court if she refuses.
Absent evidence rebutting the presumption, no further inquiry or notice shall be
required by the court, and the court may enter an order terminating the rights
of the father.
(e)
The court may enter an order terminating all the parental rights of a biological
father, including any right to object thereafter to such
proceedings:
(1)
Who fails to file a timely petition to legitimate the child and notice in
accordance with subsection (c) of this Code section;
(2)
Whose petition to legitimate is subsequently dismissed for failure to prosecute;
or
(3)
Whose petition to legitimate does not result in a court order finding that he is
the legal father of the child.
15-11-284.
The
notice required to be given to the mother, the biological father, and legal
father of the child shall state:
'NOTICE
OF EFFECT OF TERMINATION JUDGMENT
Georgia
law provides that you can permanently lose your rights as a parent. A petition
to terminate parental rights has been filed requesting the court to terminate
your parental rights to your child. A copy of the petition to terminate
parental rights is attached to this notice. A court hearing of your case has
been scheduled for the _____ day of __________, _____ at the_________Court of
_______County.
If
you fail to appear, the court can terminate your rights in your
absence.
If
the court at the trial finds that the facts set out in the petition to terminate
parental rights are true and that termination of your rights will serve the best
interests of your child, the court can enter a judgment ending your rights to
your child.
If
the judgment terminates your parental rights, you will no longer have any rights
to your child. This means that you will not have the right to visit, contact,
or have custody of your child or make any decisions affecting your child or your
child's earnings or property. Your child will be legally freed to be adopted by
someone else.
Even
if your parental rights are terminated:
(1)
You will still be responsible for providing financial support (child support
payments) for the child's care unless and until the child is
adopted;
(2)
The child can still inherit from you unless and until the child is adopted;
and
(3)
The child can still receive benefits based on his or her status as your child
unless and until the child is adopted.
This
is a very serious matter. You should contact an attorney immediately so that
you can be prepared for the court hearing. You have the right to hire an
attorney and to have him or her represent you. If you cannot afford to hire an
attorney, the court will appoint an attorney if the court finds that you are an
indigent person. Whether or not you decide to hire an attorney, you have the
right to attend the hearing of your case, to call witnesses on your behalf, and
to question those witnesses brought against you.
If
you have any questions concerning this notice, you may call the telephone number
of the clerk's office which is __________.'
15-11-285.
(a)
If any person named in and properly served with summons shall without reasonable
cause fail to appear or, when directed in the summons, to bring the child before
the court, then the court may issue a rule nisi against the person, directing
the person to appear before the court to show cause why he or she should not be
held in contempt of court.
(b)
If the summons cannot be served or if the person to whom the summons is directed
fails to obey it, the court may issue an order to take the child into protective
custody.
Part
4
15-11-300.
(a)
In advance of each hearing to terminate parental rights, DFCS shall give written
notice of the date, time, place, and purpose of the hearing to the caregiver of
the child, the foster parents of the child if there are foster parents, any
preadoptive parent, or any relative providing care for the child, including the
right to be heard. The written notice shall be delivered to the recipient at
least 72 hours before the review or hearing by United States mail, e-mail, or
hand delivery.
(b)
This Code section shall not be construed to require a caregiver, foster parent,
preadoptive parent, or relative caring for the child to be made a party to the
hearing solely on the basis of such notice and right to be heard.
15-11-301.
(a)
If no just cause has been shown for delay, all hearings contemplated by this
article shall be conducted within 90 days of the date a petition to terminate
parental rights is filed.
(b)
If no just cause for delay has been shown by written finding of fact by the
court, an order of disposition shall be issued by the juvenile court no later
than 30 days after the conclusion of the hearing on the petition to terminate
parental rights.
(c)
All hearings contemplated by this article shall be recorded by stenographic
notes or by electronic, mechanical, or other appropriate means capable of
accurately capturing a full and complete record of all words spoken during the
hearings. If no just cause for delay has been shown, the court reporter shall
provide a transcript of the hearings no later than 30 days after a notice of
appeal is filed.
(d)
This Code section shall not affect the right to request a rehearing or the right
to appeal the juvenile court's order.
(e)
Failure to comply with the time requirements of this Code section shall not be
grounds to invalidate an otherwise proper order terminating parental rights
unless the court determines that such delay resulted in substantial prejudice to
a party.
15-11-302.
The
record of the testimony of the parties adduced in any proceeding under this
article shall not be admissible in any civil, criminal, or any other cause or
proceedings in any court against a person named as respondent for any purpose
whatsoever, except in subsequent dependency or termination proceedings involving
the same child or dependency or termination proceedings involving the same
respondent.
15-11-303.
In
all proceedings under this article, the standard of proof to be adduced to
terminate parental rights shall be by clear and convincing
evidence.
Part
5
15-11-310.
(a)
In considering the termination of parental rights, the court shall first
determine whether one of the following statutory grounds for termination of
parental rights has been met:
(1)
The parent has given written consent to termination which has been acknowledged
by the court or has voluntarily surrendered the child for adoption;
(2)
The parent has subjected the child to aggravated circumstances;
(3)
The parent has wantonly and willfully failed to comply for a period of 12 months
or longer with a decree to support the child that has been entered by a court of
competent jurisdiction of this or any other state;
(4)
The child is abandoned by the parent; or
(5)
The child is dependent due to lack of proper parental care or control by the
parent, reasonable efforts to remedy the circumstances have been unsuccessful or
were not required, such cause of dependency is likely to continue or will not
likely be remedied, and the continued dependency will cause or is likely to
cause serious physical, mental, emotional, or moral harm to the
child.
(b)
If any of the statutory grounds for termination has been met, the court shall
then consider whether termination is in the child's best interests after
considering the following factors:
(1)
The child's sense of attachments, including the child's sense of security, the
child's sense of familiarity, and continuity of affection for the
child;
(2)
The child's wishes and long-term goals;
(3)
The child's need for permanence which includes the child's need for stability
and continuity of relationships with a parent, siblings, and other relatives;
and
(4)
Any other factors, including the factors set forth in Code Section 15-11-26,
considered by the court to be relevant and proper to its
determination.
(c)
If the court determines that the parent has subjected the child to aggravated
circumstances because the parent has committed the murder of the other parent of
the child, the court shall presume that termination of parental rights is in the
best interests of the child.
15-11-311.
(a)
In determining whether the child is without proper parental care and control,
the court shall consider, without being limited to, the following:
(1)
A medically verified deficiency of the parent's physical, mental, or emotional
health of such duration or nature as to render the parent unable to provide
adequately for the child;
(2)
Excessive use of or history of chronic unrehabilitated substance abuse with the
effect of rendering the parent incapable of providing adequately for the
physical, mental, emotional, or moral condition and needs of the
child;
(3)
A felony conviction and imprisonment of the parent for an offense which has a
demonstrably negative effect on the quality of the parent-child relationship
including, but not limited to, any of the following:
(A)
Murder of another child of the parent;
(B)
Voluntary manslaughter of another child of the parent;
(C)
Voluntary manslaughter of the other parent of the child;
(D)
Aiding or abetting, attempting, conspiring, or soliciting to commit murder or
voluntary manslaughter of another child of the parent;
(E)
Aiding or abetting, attempting, conspiring, or soliciting to commit murder or
voluntary manslaughter of the other parent of the child; or
(F)
Committing a felony assault that results in serious bodily injury to the child
or another child of the parent;
(4)
Egregious conduct or evidence of past egregious conduct of a physically,
emotionally, or sexually cruel or abusive nature by the parent toward the child
or toward another child of the parent;
(5)
Physical, mental, or emotional neglect of the child or evidence of past
physical, mental, or emotional neglect by the parent of the child or another
child of the parent; and
(6)
Serious bodily injury or death of a sibling of a child under circumstances which
constitute substantial evidence that such injury or death resulted from parental
neglect or abuse.
(b)
In determining whether the child who is not in the custody and care of a parent
is without proper parental care and control, the court shall also consider,
without being limited to, whether the parent, without justifiable cause, has
failed significantly for a period of six months prior to the date of the
termination hearing:
(1)
To develop and maintain a parental bond with the child in a meaningful,
supportive manner;
(2)
To provide for the care and support of the child as required by law or judicial
decree; and
(3)
To comply with a court ordered plan designed to reunite the child with the
parent.
(c)
A parent's reliance on prayer or other religious nonmedical means for healing in
lieu of medical care, in the exercise of religious beliefs, shall not be the
sole basis for determining the parent to be unwilling or unable to provide
safety and care adequate to meet the child's physical, emotional, and mental
health needs as provided in paragraph (1) of subsection (a) of this Code section
or as depriving the child of proper parental care or control for purposes of
this Code section and Code Section 15-11-310.
Part
6
15-11-320.
(a)
When the court finds that any ground set out in Code Section 15-11-310 is proved
by clear and convincing evidence and that termination of parental rights is in
the child's best interests, it shall order the termination of the parent's
rights.
(b)
The court's order shall:
(1)
Contain written findings on which the order is based, including the factual
basis for a determination that grounds for termination of parental rights exist
and that termination is in the best interests of the child;
(2)
Be conclusive and binding on all parties from the date of entry;
(3)
Grant custody of the child in accordance with Code Section 15-11-321;
and
(4)
Inform the parent of his or her right to use the services of the Georgia
Adoption Reunion Registry although failure to include such information shall not
affect the validity of the judgment.
(c)
If the court does not order the termination of parental rights but the court
finds that there is clear and convincing evidence that the child is dependent,
the court may enter a disposition order in accordance with the provisions of
Article 3 of this chapter.
(d)
The court shall transmit a copy of every final order terminating the parental
rights of a parent to the Office of Adoptions of the department within 15 days
of the filing of such order.
15-11-321.
(a)
Upon entering of an order terminating the parental rights of a parent, a
placement may be made only if the court finds that such placement is in the best
interests of the child and in accordance with the child's court approved
permanency plan created pursuant to Code Sections 15-11-231 and 15-11-232. In
determining which placement is in the child's best interests, the court shall
enter findings of fact reflecting its consideration of the
following:
(1)
The child's need for a placement that offers the greatest degree of legal
permanence and security;
(2)
The least disruptive placement for the child;
(3)
The child's sense of attachment and need for continuity of
relationships;
(4)
The value of biological and familial connections; and
(5)
Any other factors the court deems relevant to its determination.
(b)
A guardian or legal custodian shall submit to the jurisdiction of the court for
purposes of placement.
(c)
A placement effected under the provisions of this Code section shall be
conditioned upon the person who is given custody or who is granted an adoption
of the child agreeing to abide by the terms and conditions of the order of the
court.
(d)
In addition to its rights as a legal custodian, the department has the authority
to consent to the adoption of the child.
15-11-322.
(a)
If a petition seeking the adoption of the child is not filed within six months
after the date of the disposition order, the court shall then, and at least
every six months thereafter as long as the child remains unadopted, review the
circumstances of the child to determine what efforts have been made to assure
that the child will be adopted. The court shall:
(1)
Make written findings regarding whether reasonable efforts have been made to
move the child to permanency;
(2)
Evaluate whether, in light of any change in circumstances, the permanency plan
for the child remains appropriate; and
(3)
Enter such orders as it deems necessary to further adoption or if appropriate,
other permanency options, including, but not limited to, another
placement.
(b)
In those cases in which the child was placed with a guardian of the child's
person, within 60 days after such appointment and within 60 days after each
anniversary date of such appointment, the guardian shall file with the court a
personal status report of the child which shall include:
(1)
A description of the child's general condition, changes since the last report,
and the child's needs;
(2)
All addresses of the child during the reporting period and the living
arrangements of the child for all addresses; and
(3)
Recommendations for any modification of the guardianship order.
15-11-323.
(a)
A child who has not been adopted after the passage of at least three years from
the date the court terminated parental rights or the parent voluntarily
surrendered parental rights to DFCS and for whom the court has determined that
adoption is no longer the permanent plan may petition the court to reinstate
parental rights pursuant to the modification of orders procedure prescribed by
Code Section 15-11-32. The child may file the petition to reinstate parental
rights prior to the expiration of such three-year period if the department or
licensed child-placing agency that is responsible for the custody and
supervision of the child and the child stipulate that the child is no longer
likely to be adopted. A child 14 years of age or older shall sign the petition
in the absence of a showing of good cause as to why the child could not do
so.
(b)
If it appears that the best interests of the child may be promoted by
reinstatement of parental rights, the court shall order that a hearing be held
and shall cause notice to be served by United States mail to DFCS, the child's
attorney of record, guardian ad litem, if any, foster parents, if any, and the
child's former parent whose parental rights were terminated. The parent and
foster parents, if any, shall have a right to be heard at the hearing to
reinstate parental rights but shall not be parties at such hearing, and such
hearing may be conducted in their absence. The child's motion shall be
dismissed if the parent cannot be located or if the parent objects to the
reinstatement.
(c)
The court shall grant the petition if it finds by clear and convincing evidence
that the child is no longer likely to be adopted and that reinstatement of
parental rights is in the child's best interests. In determining whether
reinstatement is in the child's best interests the court shall consider, but
shall not be limited to, the following:
(1)
Whether the parent whose rights are to be reinstated is a fit parent and has
remedied his or her deficits as provided in the record of the prior termination
proceedings and prior termination order;
(2)
The age and maturity of the child and the ability of the child to express his or
her preference;
(3)
Whether the reinstatement of parental rights will present a risk to the child's
health, welfare, or safety; and
(4)
Other material changes in circumstances, if any, that may have occurred which
warrant the granting of the petition.
(d)
If the court grants the petition to reinstate parental rights, a review hearing
will be scheduled within six months. During such period, the court may order
that the child be immediately placed in the custody of the parent or, if the
court determines that a transition period is necessary and the child is in DFCS
custody at the time of the order, order DFCS to provide transition services to
the family as appropriate.
(e)
An order granted under this Code section reinstates the parental rights to the
child. Such reinstatement shall be a recognition that the situation of the
parent and child has changed since the time of the termination of parental
rights and reunification is now appropriate.
(f)
This Code section is intended to be retroactive and applied to any child who is
under the jurisdiction of the court at the time of the hearing regardless of the
date parental rights were terminated.
ARTICLE
5
15-11-350.
The
purpose of this article is:
(1)
To enable children who have come into the care of the state due to abuse or
neglect to enjoy as much normalcy as possible, by facilitating their
participation in activities and opportunities appropriate to their ages and
goals;
(2)
To prepare children who experience foster care to become independent and
self-sufficient adults;
(3)
To assist children in foster care in planning for their future, including
postsecondary education and the workplace; and
(4)
To provide support to older children who are leaving the state's care to ensure
that their basic health, education, and safety needs are met as they transition
to adulthood.
15-11-351.
As
used in this article, the term:
(1)
'Independent life skills assessment' means an assessment of a child upon
reaching 16 years of age to determine the specific life skills services that are
most appropriate for such child.
(2)
'Independent living assessment' means a comprehensive assessment conducted
during the month following a child's seventeenth birthday to determine such
child's skills and abilities to live independently and become
self-sufficient.
(3)
'Life skills services' includes, but shall not be limited to, independent living
skills training, including training to develop banking and budgeting skills,
interviewing skills, parenting skills, educational support, employment training,
basic legal skills, and counseling.
(4)
'Preindependent living assessment' means an initial assessment of a child's
strengths and needs to determine the preindependent living services that are
most appropriate for such child.
(5)
'Preindependent living services' includes, but shall not be limited to, life
skills training, educational field trips, and mentoring.
(6)
'Subsidized independent living services' means living arrangements that allow
the child to live independently of the daily care and supervision of an adult in
a setting that is not required to be licensed.
(7)
'Young adult' means a person who has reached the age of 18 but is not yet 23
years of age.
15-11-352.
(a)
DFCS shall administer a system of independent living transition services to
enable adolescents and young adults in foster care and young adults who exit
foster care at age 18 to make the transition to self-sufficiency as
adults.
(b)
The goals of independent living transition services shall be to assist
adolescents and young adults in foster care and young adults who were formerly
in foster care to obtain life skills and education for independent living and
employment, to enjoy a quality of life appropriate for their age, and to assume
personal responsibility for becoming self-sufficient adults.
(c)
In providing independent living services for children, DFCS shall balance the
goals of normalcy and safety for a child and provide caregivers with as much
flexibility as possible to enable such child to live as normal a life as
possible and participate in age-appropriate extracurricular, enrichment, and
social activities.
(d)
DFCS shall establish a continuum of services for eligible children in foster
care and eligible young adults who were formerly in foster care which accomplish
the goals for the system of independent living transition services.
(e)
For children in foster care, independent living transition services shall not be
a permanency plan. Independent living transition services may occur
concurrently with continued efforts to locate and achieve placement in adoptive
families for adolescents in foster care or to achieve another court approved
permanency plan.
15-11-353.
(a)
DFCS shall provide independent living services to children who have reached 14
years of age but are not yet 18 years of age and who are in foster care.
Children to be served shall meet the eligibility requirements set forth for
specific services as provided in this article.
(b)
DFCS shall provide independent living services to young adults who were in
foster care when they turned 18 years of age. Young adults to be served shall
meet the eligibility requirements set forth for specific services in this
article.
(c)
DFCS shall develop objective criteria for determining eligibility benefits and
services available under this article.
15-11-354.
(a)
DFCS shall provide adolescents and young adults with opportunities to
participate in life skills activities in their foster families and communities
which are reasonable and appropriate for their respective ages and shall provide
them with services to build such skills and increase their ability to live
independently and become self-sufficient. In providing these services DFCS
may:
(1)
Develop a list of age-appropriate activities and responsibilities to be offered
to all children involved in independent living transition services and their
foster parents;
(2)
Provide training for staff and foster parents to address the issues of
adolescents in foster care in transitioning to adulthood, which shall include
information on supporting education and employment and providing opportunities
to participate in appropriate daily activities;
(3)
Develop procedures to maximize participation in age-appropriate activities of
children in foster care;
(4)
Provide opportunities for adolescents in foster care to interact with mentors;
and
(5)
Develop and implement procedures for adolescents to directly access and manage
the personal allowance they receive from DFCS in order to learn responsibility
and participate in age-appropriate life skills activities.
(b)
Each child in foster care, his or her foster parents, and DFCS or the community
based provider shall set early achievement and career goals for the child's
postsecondary educational and work experience. DFCS and community based
providers shall implement a model to help ensure that children in foster care
are ready for postsecondary education and the workplace as follows:
(1)
A child in foster care entering the ninth grade, the child's foster parents, and
DFCS or a community based provider shall be active participants in choosing a
postsecondary goal based upon both the abilities and interests of the child.
Such goal shall accommodate the needs of the child served in exceptional
education programs to the extent appropriate for the child. A child in foster
care, with the assistance of the child's foster parents, and DFCS or a community
based provider shall set a postsecondary goal including, but not limited
to:
(A)
Attending a four-year college or university, a community college plus
university, or a military academy;
(B)
Receiving a two-year postsecondary degree;
(C)
Attaining a postsecondary career and technical certificate or
credential;
(D)
Beginning immediate employment after completion of a high school diploma or its
equivalent; or
(E)
Enlisting in the military;
(2)
In order to assist a child in achieving his or her chosen goal, DFCS or a
community based provider shall, with the participation of the child and foster
parents, identify:
(A)
The core courses necessary to qualify for a chosen goal;
(B)
Any elective courses which would provide additional help in reaching a chosen
goal;
(C)
The grade point requirement and any additional information necessary to achieve
a specific goal; and
(D)
A teacher, other school staff member, employee of DFCS or a community based care
provider, or community volunteer who would be willing to work with the child as
an academic advocate or mentor if foster parent involvement is insufficient or
unavailable;
(3)
In order to complement educational goals, DFCS and community based providers are
encouraged to form partnerships with the business community to support
internships, apprenticeships, or other work related opportunities;
and
(4)
DFCS and community based providers shall ensure that a child and the child's
foster parents are made aware of the postsecondary goals available and shall
assist in identifying the coursework necessary to enable the child to reach the
chosen goal.
(c)
A child in foster care and a young adult formerly in foster care shall be
encouraged to take part in learning opportunities that result from participation
in community service activities.
(d)
A child in foster care and a young adult formerly in foster care shall be
provided with the opportunity to change from one postsecondary goal to another,
and each postsecondary goal shall allow for changes in each individual's needs
and preferences. Any change, particularly a change that will result in
additional time required to achieve a goal, shall be made with the guidance and
assistance of DFCS or a community based provider.
15-11-355.
DFCS
shall provide transition to independence services to children in foster care who
meet prescribed conditions and are determined eligible by DFCS. DFCS may allow
a child who is between the ages of 18 and 21 years to remain in foster care.
The service categories available to children in foster care which facilitate
successful transition into adulthood are:
(1)
Preindependent living services;
(2)
Life skills services; and
(3)
Subsidized independent living services.
15-11-356.
(a)
A child who has reached 14 years of age but is not yet 16 years of age who is in
foster care shall be eligible for preindependent living services. The specific
services to be provided to a child shall be determined using a preindependent
living assessment.
(b)
DFCS shall conduct an annual staffing for each child who has reached 14 years of
age but is not yet 16 years of age to ensure that the preindependent living
training and services to be provided as determined by the preindependent living
assessment are being received and to evaluate the progress of the child in
developing the needed independent living skills.
(c)
At the first annual staffing that occurs following a child's fourteenth
birthday, and at each subsequent staffing, DFCS shall provide to each child
detailed information on any grants, scholarships, and waivers that are available
and should be sought by the child with assistance from DFCS.
(d)
Information related to both the preindependent living assessment and all
staffings, which shall be reduced to writing and signed by the child, shall be
included as a part of the written report required to be provided to the court at
each periodic review hearing.
15-11-357.
(a)
A child who has reached 16 years of age but is not yet 18 years of age who is in
foster care shall be eligible for life skills services.
(b)
Children receiving such life skills services shall also be provided with
information related to social security insurance benefits and public assistance.
The specific services to be provided to a child shall be determined using an
independent life skills assessment
(c)
DFCS shall conduct a staffing at least once every six months for each child who
has reached 16 years of age but is not yet 18 years of age to ensure that the
appropriate independent living training and services as determined by the
independent life skills assessment are being received and to evaluate the
progress of the child in developing the needed independent living
skills.
(d)
DFCS shall provide to each child in foster care during the calendar month
following the child's seventeenth birthday an independent living assessment to
determine the child's skills and abilities to live independently and become
self-sufficient. Based on the results of the independent living assessment,
services and training shall be provided in order for the child to develop the
necessary skills and abilities prior to the child's eighteenth
birthday.
(e)
Information related to both the independent life skills assessment and all
staffings, which shall be reduced to writing and signed by the child, shall be
included as a part of the written report required to be provided to the court at
each periodic review hearing.
15-11-358.
(a)
A child who has reached 17 years of age but is not yet 21 years of age may be
eligible for subsidized independent living services if:
(1)
The child has been adjudicated dependent under Article 3 of this chapter; has
been placed in licensed out-of-home care for at least six months prior to
entering subsidized independent living; and has a permanency goal of independent
living or long-term licensed care; and
(2)
The child is able to demonstrate independent living skills, as determined by
DFCS using established procedures and assessments.
(b)
Independent living arrangements established for a child shall be part of an
overall plan leading to the total independence of the child from DFCS
supervision. Such plan shall include, but shall not be limited to:
(1)
A description of the skills of the child and a plan for learning additional
identified skills;
(2)
The behavior that the child has exhibited which indicates an ability to be
responsible and a plan for developing additional responsibilities, as
appropriate;
(3)
A plan for future educational, vocational, and training skills;
(4)
Present financial and budgeting capabilities and a plan for improving resources
and ability;
(5)
A description of a proposed residence;
(6)
Documentation that the child understands the specific consequences of his or her
conduct in an independent living program;
(7)
Documentation of proposed services to be provided by DFCS and other agencies,
including the type of service and the nature and frequency of contact;
and
(8)
A plan for maintaining or developing relationships with family, other adults,
friends, and the community, as appropriate.
(c)
Subsidy payments in an amount established by DFCS may be made directly to a
child under the direct supervision of a caseworker or other responsible adult
approved by DFCS.
15-11-359.
DFCS
shall provide or arrange for the following services to young adults formerly in
foster care who meet the prescribed conditions and are determined eligible by
DFCS:
(1)
Aftercare support services which are available to such young adults in their
efforts to continue to develop the skills and abilities necessary for
independent living; and
(2)
Transitional short-term services.
15-11-360.
(a)
A young adult who left foster care at 18 years of age but who requests services
prior to reaching 23 years of age shall be eligible for aftercare support
services.
(b)
Aftercare support services may include, but shall not be limited
to:
(1)
Mentoring and tutoring;
(2)
Mental health services and substance abuse counseling;
(3)
Life skills classes, including, but not limited to, credit management,
preventive health activities, and basic legal skills;
(4)
Parenting classes;
(5)
Job skills training;
(6)
Counselor consultations; and
(7)
Temporary financial assistance.
(c)
The specific services to be provided under this Code section shall be determined
by an aftercare services assessment and may be provided by DFCS or through
referrals in the community. Temporary assistance provided to prevent
homelessness shall be provided as expeditiously as possible and within the
limitations defined by DFCS.
15-11-361.
(a)
In addition to any services provided through aftercare support, in DFCS's
discretion, a young adult formerly in foster care may receive other appropriate
transitional services, which may include financial, housing, counseling,
employment, education, mental health, disability, and other services, if the
young adult demonstrates that the services are critical to the young adult's own
efforts to achieve self-sufficiency and to develop a personal support
system.
(b)
A young adult shall be eligible to apply for transitional support services if he
or she was a dependent child, was living in licensed foster care or in
subsidized independent living at the time of his or her eighteenth birthday, and
had spent at least six months living in foster care before his or her eighteenth
birthday.
(c)
If at any time transitional support services are no longer critical to the young
adult's own efforts to achieve self-sufficiency and to develop a personal
support system, the provision of such services may be terminated.
15-11-362.
Payment
of aftercare or transitional support funds shall be made directly to the
recipient unless the recipient requests in writing to the community based
provider or DFCS that the payments or a portion of the payments be made directly
on the recipient's behalf to a third party in order to secure services such as
housing, counseling, education, or employment training as part of the young
adult's own efforts to achieve self-sufficiency.
15-11-363.
(a)
A judicial review of the independent living services being provided to a child
shall be held:
(1)
For a child who has reached 14 years of age but is not 18 years of age, during
the periodic review and permanency plan hearings under Article 3 of this
chapter; or
(2)
For a young adult, at least annually.
(b)
In addition to the periodic review and permanency plan hearings under Article 3
of this chapter, the court shall hold a hearing to review the status of the
child within 90 days after a child's seventeenth birthday. Such hearing may be
held concurrently with a periodic review or permanency plan hearing. If
necessary, the court may review the status of the child more frequently during
the year prior to the child's eighteenth birthday.
(c)
At each periodic review, in addition to any information or report provided to
the court, the foster parent, legal custodian, guardian ad litem, if any, and
the child shall be given the opportunity to provide the court with any
information relevant to the child's best interests as it relates to independent
living transition services. In addition to any information or report provided
to the court, DFCS shall include in its social study report written verification
that the child has been:
(1)
Provided with a current Medicaid card and has been provided all necessary
information concerning the Medicaid program sufficient to prepare the child to
apply for coverage upon reaching 18 years of age, if such application would be
appropriate;
(2)
Provided with a certified copy of his or her birth certificate and, if the child
does not have a valid driver's license, a valid Georgia identification
card;
(3)
Provided information relating to federal social security insurance benefits if
the child is eligible for such benefits. If the child has received such
benefits and the benefits are being held in trust for the child, a full
accounting of such funds shall be provided and the child shall be informed about
how to access such funds;
(4)
Provided with information and training related to budgeting skills, interviewing
skills, parenting skills, and basic legal skills;
(5)
Provided with essential banking skills including an open bank account or
identification necessary to open an account;
(6)
Provided with information on public assistance and how to apply;
(7)
Provided a clear understanding of where he or she will be living on his or her
eighteenth birthday, how living expenses will be paid, and what educational
program or school he or she will be enrolled in; and
(8)
Encouraged to attend all judicial review hearings occurring after his or her
seventeenth birthday.
(d)
At the first judicial review hearing held subsequent to a child's seventeenth
birthday, DFCS shall provide the court with an updated case plan that includes
specific information related to independent living services that have been
provided since the child's fourteenth birthday or since the date the child came
into foster care, whichever came later.
(e)
At the time of a periodic review hearing if, in the opinion of the court, DFCS
has not complied with its obligations as specified in the written case plan or
in the provision of independent living services, the court shall issue a show
cause order. If cause is shown for failure to comply, the court shall give DFCS
30 days within which to comply and, on failure to comply with this or any
subsequent order, DFCS may be held in contempt.
15-11-364.
The
department shall promulgate regulations to administer this article and shall
follow the requirements of Chapter 13 of Title 50, the 'Georgia Administrative
Procedure Act.' The department shall complete the development of all
procedures, systems, assessments, and other items required by this article by
January 1, 2014.
15-11-365.
Nothing
in this article shall be interpreted to limit a child's eligibility for
postsecondary tuition, ancillary fees, or living expenses under Code Section
20-3-660.
ARTICLE
6
Part 1
Part 1
15-11-380.
The
purpose of this article is:
(1)
To acknowledge that certain behaviors or conditions occurring within a family or
school environment indicate that a child is experiencing serious difficulties
and is in need of services and corrective action in order to protect the child
from the irreversibility of certain choices and to protect the integrity of the
family;
(2)
To make other family members aware of their contributions to their family's
problems and to encourage family members to accept the responsibility to
participate in any program of care ordered by the court;
(3)
To provide a child with a program of treatment, care, guidance, counseling,
structure, supervision, and rehabilitation which the child needs to assist him
or her in becoming a responsible and productive member of society;
and
(4)
To ensure the cooperation and coordination of all agencies having responsibility
to supply services to any member of the family referred to the
court.
15-11-381.
As
used in this article, the term:
(1)
'Comprehensive services plan' means an interagency treatment, habilitation,
support, or supervision plan developed at an interagency meeting of state or
local agency representatives, parties, and other interested persons following a
court's finding that a child is incompetent to proceed. A comprehensive
services plan shall be submitted to the court for approval as part of the
disposition of the child's case.
(2)
'Habilitation' means the process by which a child is helped to acquire and
maintain those life skills which will enable him or her to cope more effectively
with the demands of his or her own person and of his or her environment and to
raise the level of his or her physical, mental, social, and vocational
abilities.
(3)
'Home detention' means court ordered confinement of a child with his or her
parent, guardian, legal custodian, or in some other specified home for 24 hours
a day unless otherwise prescribed by written court order, under which the child
is permitted out of the residence only at such hours and in the company of
persons specified in the court order establishing the home detention. Home
detention shall be monitored by DJJ or court based probation.
(4)
'Nonsecure facility' means a public or private facility which does not include
construction fixtures such as locked rooms and buildings, fences, or other
physical structures designed to physically restrict the movements and activities
of a child in custody.
(5)
'Plan manager' means a person who is under the supervision of the court and is
appointed by the court to convene a meeting of all relevant parties for the
purpose of developing a comprehensive services plan. A plan manager shall be
responsible for collecting all previous histories of the child including, but
not limited to, evaluations, assessments, treatment summaries, and school
records.
(6)
'Runaway' means a child who without just cause and without the consent of his or
her parent, guardian, or legal custodian is absent from his or her home or place
of abode for at least 24 hours.
(7)
'Status offense' means an act prohibited by law which would not be an offense if
committed by an adult.
(8)
'Truant' means having ten or more days of unexcused absences from school in the
current academic year.
(9)
'Valid court order' means a court order issued by a judge to a child alleged or
found to have committed a status offense and:
(A)
Who was brought before the court and made subject to the order;
(B)
Whose future conduct is regulated by the order;
(C)
Who was given verbal and written warning of the consequences of violating the
order at the time the order was issued and whose attorney, parent, guardian, or
legal custodian was also provided with written notice of the consequences of
violating the order, and the notice is reflected in the court record;
and
(D)
Who was afforded due process prior to the issuance of the order.
Part
2
15-11-390.
(a)
A complaint alleging a child is in need of services may be filed by a parent,
guardian, or legal custodian, DFCS, a school official, a law enforcement
officer, a guardian ad litem, or an attorney who has knowledge of the facts
alleged or is informed and believes that such facts are true.
(b)
The complaint shall set forth plainly and with particularity:
(1)
The name, date of birth, and residence address of the child on whose behalf the
complaint is being filed;
(2)
The names and residence addresses of the parent, guardian, or legal custodian,
any other family members, or any other individuals living within the child's
home;
(3)
The name of any public institution or agency having the responsibility or
ability to supply services alleged to be needed by the child; and
(4)
Whether any of the matters required by this subsection are unknown.
(c)
When a school official is filing a complaint, information shall be included
which shows that:
(1)
The legally liable school district has sought to resolve the expressed problem
through available educational approaches; and
(2)
The school district has sought to engage the parent, guardian, or legal
custodian in solving the problem but such person has been unwilling or unable to
do so, that the problem remains, and that court intervention is
needed.
(d)
When a school official is filing a complaint involving a child who is eligible
or suspected to be eligible for services under the federal Individuals with
Disabilities Education Act or Section 504 of the federal Rehabilitation Act of
1973, information shall be included which demonstrates that the legally liable
school district:
(1)
Has determined that the child is eligible or suspected to be eligible under the
federal Individuals with Disabilities Education Act or Section 504 of the
federal Rehabilitation Act of 1973; and
(2)
Has reviewed for appropriateness the child's current Individualized Education
Program (IEP) and placement and has made modifications where
appropriate.
(e)
The juvenile court intake officer shall be responsible for receiving complaints
alleging that a child is in need of services.
15-11-391.
(a)
Upon the filing of a complaint alleging that a child is in need of services, the
juvenile court intake officer shall convene a multidisciplinary conference to be
attended by the child, the child's parent, guardian, or legal custodian, DFCS,
and any other agency or public institution having legal responsibility or
discretionary authority to supply services to the family except in emergencies
or when the court or the juvenile court intake officer determines it to be
inappropriate or futile.
(b)
The juvenile court intake officer shall determine whether a mandatory conference
is inappropriate or futile based on:
(1)
A screening of the child; and
(2)
If a parent, guardian, or legal custodian has filed the complaint, the nature of
that parent, guardian, or legal custodian's participation in and compliance with
previous mandatory conferences or informal family services plan agreements, if
any.
(c)
Upon application to the court by the plan manager or upon the motion of any
party or upon the court's own motion, the court shall issue an order for good
cause to any person determined by the court to be a required participant in the
mandatory multidisciplinary conference and who is required by federal or state
law to protect the privacy of health information in his or her possession
relating to the child alleged to be in need of services or to such child's
primary caregiver. Such order shall require such person to comply with the
convening of the multidisciplinary conference and to cooperate with the plan
manager by disclosing relevant protected health information as ordered by the
court. The relevant health information required to be disclosed by the court
order shall be used only for the purposes of developing and implementing a
comprehensive services plan that is reasonably related to the promotion of the
care, guidance, counseling, structure, supervision, treatment, or rehabilitation
of the child or the child's primary caregiver for the benefit of such child.
For the purposes of this subsection, good cause shall exist when the protected
health information being sought is reasonably related to the child alleged to be
in need of services.
15-11-392.
(a)
After the mandatory multidisciplinary conference, the child, the child's parent,
guardian, or legal custodian, DFCS, and any other member of the conference may
effect an informal family services plan agreement.
(b)
An informal family services plan agreement shall include:
(1)
The identification of the conduct of the child, the child's parent, guardian, or
legal custodian, or any family member which is causing serious harm to the child
and the services needed by that individual to mitigate or eliminate the problems
within the family;
(2)
A description of the services which are needed for the child, the child's
parent, guardian, or legal custodian, or other family members, the availability
of such services within the community, and a plan for ensuring that any such
services that are available will be secured and delivered;
(3)
A description of all expected action to be taken by the child, the child's
parent, guardian, or legal custodian, or other family members;
(4)
The identification of DFCS caseworker assigned to the case and who is directly
responsible for assuring that the informal family services plan agreement is
implemented; and
(5)
An estimate of the time anticipated to be necessary in order to accomplish the
goals set out in the informal family services plan agreement.
(c)
The informal family services plan agreement shall set forth in writing the terms
and conditions agreed to by the parties as evidenced by their signature
thereto.
(d)
The informal family services plan agreement shall demonstrate that the child and
the child's parent, guardian, or legal custodian understand their right to an
adjudication hearing on their need for services and shall also demonstrate that
they consent to its terms with knowledge that consent is not obligatory and with
knowledge of the effect of such agreement.
(e)
The duration of the informal family services plan agreement shall not exceed six
months; however, the court may extend such agreement for one additional period
not to exceed six months.
Part
3
15-11-400.
DFCS
shall be the lead agency and shall have the primary responsibility for the
monitoring and management of child in need of services cases under this
article.
15-11-401.
(a)
The continued custody hearing for a child in need of services shall be held
promptly and no later than:
(1)
Twenty-four hours after a child is taken into temporary custody if the child is
being held in a secure juvenile detention facility; or
(2)
Seventy-two hours after the child is placed in foster care, provided that, if
the 72 hour time frame expires on a weekend or legal holiday, the hearing shall
be held on the next day which is not a weekend or legal holiday.
(b)
If a child was never taken into temporary custody or is released from temporary
custody at the continued custody hearing, the following time frames
apply:
(1)
The petition for a child in need of services shall be filed:
(A)
Within 30 days of the juvenile court intake officer's determination that a
mandatory conference would be inappropriate or futile;
(B)
Within 30 days of the child's release from temporary custody if the court
determines that the mandatory conference would be inappropriate or
futile;
(C)
Within 30 days of a court determination that continuing participation in the
informal family services plan procedure would be inappropriate or futile;
or
(D)
Within 30 days of the conclusion of the period governed by the informal family
services plan agreement if the child and family have not achieved the goals set
out in such agreement and there are reasonable grounds to believe that the child
is still in need of services. If no petition for a child in need of services is
filed within the required time frame, the complaint may be dismissed without
prejudice;
(2)
Summons shall be served at least 24 hours before the adjudication
hearing;
(3)
The adjudication hearing shall be scheduled to be held no later than 60 days
after the filing of the petition for a child in need of services;
and
(4)
If not held in conjunction with the adjudication hearing, the disposition
hearing shall be held and completed within 30 days after the conclusion of the
adjudication hearing.
(c)
If a child is not released from temporary custody at the continued custody
hearing, the following time frames apply:
(1)
The petition for a child in need of services shall be filed within five days of
the continued custody hearing;
(2)
Summons shall be served at least 72 hours before the adjudication
hearing;
(3)
The adjudication hearing shall be scheduled to be held no later than ten days
after the filing of the petition for a child in need of services;
and
(4)
If not held in conjunction with the adjudication hearing, the disposition
hearing shall be held and completed within 30 days after the conclusion of the
adjudication hearing.
15-11-402.
(a)
A proceeding under this article may be commenced in the county in which the act
complained of took place.
(b)
If a proceeding is commenced in the county in which the act complained of took
place, the court shall transfer the case to the county in which the child
legally resides for further proceedings.
(c)
When a proceeding is transferred, certified copies of all legal and social
documents and records pertaining to the proceeding on file with the clerk of
court shall accompany such transfer.
15-11-403.
(a)
A child shall have the right to a qualified and independent attorney at all
stages of proceedings under this article.
(b)
The court shall appoint an attorney for a child alleged to be a child in need of
services.
(c)
The court shall appoint a guardian ad litem for a child alleged to be a child in
need of services:
(1)
At the request of the child's attorney; or
(2)
Upon the court's own motion if it determines that a guardian ad litem is
necessary to assist the court in determining the best interests of the
child.
(d)
The role of a guardian ad litem in a proceeding for a child in need of services
shall be the same role as provided for in all dependency proceedings under
Article 3 of this chapter.
(e)
If an attorney or a guardian ad litem has previously been appointed for the
child in a dependency or delinquency proceeding, the court, when possible, shall
appoint the same attorney or guardian ad litem.
(f)
An attorney appointed to represent the child in a proceeding for a child in need
of services shall continue the representation in any subsequent appeals unless
excused by the court.
(g)
Neither the child nor a representative of the child may waive the right to an
attorney in a proceeding for a child in need of services.
(h)
A child shall be informed of his or her right to an attorney at or prior to the
first mandatory conference and prior to the first court proceeding for a child
in need of services. A child shall be given an opportunity to:
(1)
Obtain and employ an attorney of the child's own choice; or
(2)
To obtain a court appointed attorney if the court determines that the child is
an indigent person.
15-11-404.
A
continuance shall be granted only upon a showing of good cause and only for that
period of time shown to be necessary by the moving party at the hearing on such
motion. Whenever any continuance is granted, the facts which require the
continuance shall be entered into the court record.
15-11-405.
If
a child is alleged or found to be a child in need of services and is placed in
foster care, the child shall be required to have a case plan. In addition to
the case plan requirements of Code Section 15-11-201, a case plan shall
include:
(1)
A description of the child's strengths and needs;
(2)
A description of specific parental strengths and needs;
(3)
A description of other personal, family, or environmental problems that may
contribute to the child's behaviors;
(4)
A description of the safety, physical, and mental health needs of the
child;
(5)
Identification of the least restrictive placement to safeguard the child's best
interests and protect the community;
(6)
An assessment of the availability of community resources to address the child's
and family's needs;
(7)
An assessment of the availability of court diversion services; and
(8)
An assessment of the availability of other preventive measures.
15-11-406.
Any
proceeding or other processes or actions alleging for the first time that a
child is a runaway shall be terminated or dismissed upon the request of the
parent, guardian, or legal custodian of the child.
Part
4
15-11-410.
(a)
A child may be taken into temporary custody under this article:
(1)
Pursuant to a court order; or
(2)
By a law enforcement officer when there are reasonable grounds to believe that a
child has run away from his or her parent, guardian, or legal custodian or the
circumstances are such as to endanger the child's health or welfare unless
immediate action is taken.
(b)
Before entering an order authorizing temporary custody, the court shall
determine whether continuation in the home is contrary to the child's welfare
and whether there are available services that would prevent the need for
custody. The court shall make such determination on a case-by-case basis and
shall make written findings of fact referencing any and all evidence relied upon
in reaching its decision.
(c)
A person taking a child into temporary custody shall deliver the child, with all
reasonable speed and without first taking the child elsewhere, to a medical
facility if the child is believed to suffer from a serious physical condition or
illness which requires prompt treatment and, upon delivery, shall promptly
contact a juvenile court intake officer. Immediately upon being notified by the
person taking a child into custody, the juvenile court intake officer shall
determine if such child should be released, remain in temporary custody, or be
brought before the court.
15-11-411.
(a)
A person taking a child into temporary custody shall not exercise custody over
the child except for a period of 12 hours. A child taken into temporary custody
may be placed in a nonsecure facility for a child in need of
services.
(b)
Counties and municipalities shall be authorized to establish nonsecure
facilities where a child who is suspected of being a child in need of services
may be placed until the parent, guardian, or legal custodian assumes custody of
the child.
(c)
Immediately after a child is brought into a nonsecure facility, every effort
shall be made to contact the parents, guardian, or legal custodian of the
child.
(d)
If a parent, guardian, or legal custodian has not assumed custody of the child
in a nonsecure facility at the end of the 12 hour period, the court shall be
notified and shall place the child in the least restrictive placement consistent
with the child's needs for protection or control in the custody of the child's
parents, guardian, or legal custodian upon such person's promise to bring the
child before the court when requested by the court; provided, however, that if
such placement is not available, the child shall be placed in the custody of
DFCS which shall promptly arrange for foster care of the child.
15-11-412.
(a)
A child may be held in a secure juvenile detention facility until a continued
custody hearing is held, provided that such child is not held in a secure
detention facility for more than 24 hours and any of the following
apply:
(1)
It is alleged that the child is a runaway;
(2)
It is alleged that the child is habitually disobedient of the reasonable and
lawful commands of his or her parent, guardian, or legal custodian and is
ungovernable; or
(3)
The child has previously failed to appear at a scheduled hearing.
(b)
A child placed in a secure detention facility pursuant to subsection (a) of this
Code section shall be appointed an attorney prior to the continued custody
hearing.
(c)
In no case shall a child in custody be detained in a jail, adult lock-up, or
other adult detention facility.
15-11-413.
(a)
If the child is being held in a secure juvenile detention facility, a continued
custody hearing shall be held within 24 hours. If such hearing is not held
within the time specified, the child shall be released from temporary detention
in accordance with subsection (d) of Code Section 15-11-411 and with
authorization of the detaining authority.
(b)
If a child is not being held in a secure juvenile detention facility and has not
been released to the custody of the child's parent, guardian, or legal
custodian, a hearing shall be held promptly and not later than 72 hours after
the child is placed in foster care, provided that, if the 72 hour time frame
expires on a weekend or legal holiday, the hearing shall be held on the next day
which is not a weekend or legal holiday.
(c)
At the commencement of the continued custody hearing, the court shall inform the
parties of:
(1)
The nature of the allegations;
(2)
The nature of the proceedings;
(3)
The possible consequences or dispositions that may apply to the child's case
following adjudication; and
(4)
Due process rights, including the right to an attorney and to an appointed
attorney; the privilege against self-incrimination; that the child may remain
silent and that anything said may be used against the child; the right to
confront anyone who testifies against the child and to cross-examine any persons
who appear against the child; the right of the child to testify and to compel
other witnesses to attend and testify in his or her own behalf; the right of the
child to a speedy adjudication hearing; and the right to appeal and be provided
with a transcript for such purpose.
15-11-414.
(a)
At the continued custody hearing, the court shall determine whether there is
probable cause to believe that the child has committed a status offense or is
otherwise a child in need of services and that continued custody is
necessary.
(b)
If the court determines there is probable cause to believe that the child has
committed a status offense or is otherwise in need of services, the court may
order that the child:
(1)
Be released to the custody of a parent, guardian, or legal custodian;
or
(2)
Be placed in the least restrictive preadjudication placement consistent with the
child's need for protection and control as authorized by Code Section 15-11-411
and in accordance with Code Section 15-11-415.
(c)
If the court determines there is probable cause to believe that the child has
committed a status offense or is otherwise in need of services, the court
shall:
(1)
Refer the child and the child's family for a mandatory conference;
(2)
Order that a petition for a child in need of services be filed and set a date
for an adjudication hearing if the court determines that a mandatory conference
would be inappropriate or futile; or
(3)
When a child and his or her family are already participating in informal family
services plan procedures, order that a petition for a child in need of services
be filed and set a date for an adjudication hearing if the court determines that
continuing participation in the informal family services plan procedures would
be inappropriate or futile.
(d)
Following the continued custody hearing, the court may detain a child in a
secure juvenile detention facility for up to 24 hours, excluding weekends and
legal holidays, only for the purpose of providing adequate time to arrange for
an appropriate alternative placement pending the adjudication
hearing.
(e)
All orders shall contain written findings as to the form or conditions of
release. If a child cannot be returned to the custody of his or her parent,
guardian, or legal custodian at the hearing, the court shall state the facts
upon which the continued custody is based. The court shall make the following
findings of fact referencing any and all evidence relied upon to make its
determinations:
(1)
Whether continuation in the home of the parent, guardian, or legal custodian is
contrary to the child's welfare; and
(2)
Whether reasonable efforts have been made to safely maintain the child in the
home of his or her parent, guardian, or legal custodian and to prevent or
eliminate the need for removal. Such finding shall be made at the continued
custody hearing if possible but in no case later than 60 days following the
child's removal from the home.
15-11-415.
(a)
Restraints on the freedom of a child prior to adjudication shall be imposed only
when there is probable cause to believe that the child committed the act of
which he or she is accused, there is clear and convincing evidence that the
child's freedom should be restrained, that no less restrictive alternatives will
suffice, and:
(1)
The child's detention or care is required to reduce the likelihood that the
child may inflict serious bodily harm on others during the interim
period;
(2)
The child's detention is necessary to secure the child's presence in court to
protect the jurisdiction and processes of the court; or
(3)
An order for the child's detention has been made by the court.
(b)
A child shall not be detained:
(1)
To punish, treat, or rehabilitate the child;
(2)
To allow a parent, guardian, or legal custodian to avoid his or her legal
responsibilities;
(3)
To satisfy demands by a victim, law enforcement, or the community;
(4)
To permit more convenient administrative access to the child;
(5)
To facilitate further interrogation or investigation; or
(6)
Due to a lack of a more appropriate facility.
(c)
Whenever a child cannot be unconditionally released, conditional or supervised
release that results in the least necessary interference with the liberty of the
child shall be favored over more intrusive alternatives.
(d)
Whenever the curtailment of a child's freedom is permitted, the exercise of
authority shall reflect the following values:
(1)
Respect for the privacy, dignity, and individuality of the child and his or her
family;
(2)
Protection of the psychological and physical health of the child;
(3)
Tolerance of the diverse values and preferences among different groups and
individuals;
(4)
Assurance of equality of treatment by race, class, ethnicity, and
sex;
(5)
Avoidance of regimentation and depersonalization of the child;
(6)
Avoidance of stigmatization of the child; and
(7)
Assurance that the child has been informed of his or her right to consult with
an attorney and that, if the child is an indigent person, an attorney will be
provided.
(e)
Before entering an order authorizing detention, the court shall determine
whether continuation in the home is contrary to the child's welfare and whether
there are available services that would prevent or eliminate the need for
detention. The court shall make such determination on a case-by-case basis and
shall make written findings of fact referencing any and all evidence relied upon
in reaching its decision.
(f)
If a child can remain in the custody of his or her parent, guardian, or legal
custodian through the provision of services to prevent the need for removal, the
court shall order that such services shall be provided.
15-11-416.
(a)
A child alleged or found to have committed a status offense may be held in a
secure juvenile detention facility for more than 24 hours if:
(1)
The child is alleged to have violated a valid court order; and
(2)
At the continued custody hearing, the court finds that there is probable cause
to believe that the child violated the court order.
(b)
If there is probable cause to believe that the child violated a valid court
order, the child may be held in a secure juvenile detention facility until a
violation hearing is held but in no event shall a child's detention prior to a
violation hearing exceed 72 hours, excluding weekends and legal
holidays.
(c)
At a violation hearing, the court may order that the child be placed in a secure
juvenile detention facility if the court:
(1)
Affirms that the requirements for a valid court order were met at the time the
original order finding the child to have committed a status offense was
issued;
(2)
Finds that the child was afforded due process rights; and
(3)
Received and reviewed a written report prepared by DFCS that described the
behavior of the child and the circumstances under which the child was brought
before the court and made subject to such order; determined the reasons for the
child's behavior; and determined whether all dispositions other than secure
confinement have been exhausted or are clearly inappropriate.
(d)
A child in need of services who is alleged or found to have violated a valid
court order remains a child in need of services and shall not be considered a
delinquent child by virtue of such conduct.
(e)
If a child is to be held in secure detention under the valid court order
exception, the report prepared by DFCS in accordance with subsection (c) of this
Code section shall be provided to DJJ as the detention agency.
Part
5
15-11-420.
All
proceedings seeking an adjudication that a child is in need of services shall be
initiated by a petition filed by an attorney.
15-11-421.
(a)
If a child is not released from temporary custody at the continued custody
hearing, a petition seeking an adjudication that a child is in need of services
shall be filed within five days of the continued custody hearing.
(b)
If the child was never taken into temporary custody or is released from
temporary custody at the continued custody hearing, the petition seeking an
adjudication that a child is in need of services shall be filed:
(1)
Within 30 days of the juvenile court intake officer's determination that a
mandatory conference would be inappropriate or futile;
(2)
Within 30 days of the child's release from temporary custody if the court
determines that the mandatory conference would be inappropriate or
futile;
(3)
Within 30 days of a court determination that continuing participation in the
informal family services plan procedure would be inappropriate or futile;
or
(4)
Within 30 days of the conclusion of the period governed by the informal family
services plan agreement if the child and family have not achieved the goals set
out in such agreement and there are reasonable grounds to believe that the child
is still in need of services.
(c)
Upon a showing of good cause and notice to all parties, the court may grant a
requested extension of time for filing a petition seeking an adjudication that a
child is in need of services in accordance with the best interests of the child.
The court shall issue a written order reciting the facts justifying the
extension.
(d)
If no petition seeking an adjudication that a child is in need of services is
filed within the required time frame, the complaint may be dismissed without
prejudice.
15-11-422.
(a)
The petition seeking an adjudication that a child is in need of services shall
be verified and may be on information and belief. It shall set forth plainly
and with particularity:
(1)
The facts which bring the child within the jurisdiction of the court, with a
statement that it is in the best interests of the child and the public that the
proceeding be brought;
(2)
The name, date of birth, and residence address of the child on whose behalf such
petition is being brought;
(3)
The name and residence address of the parent, guardian, or legal custodian of
the child; or, if neither the child's parent nor the child's guardian nor the
child's legal custodian resides or can be found within the state or if such
place of residence address is unknown, the name of any known adult relative
residing within the county or, if there is none, the known adult relative
residing nearest to the location of the court;
(4)
The name, age, and residence address of any other family member living within
the child's home;
(5)
Whether all available and appropriate attempts to encourage voluntary use of
community services by the family have been exhausted; and
(6)
Whether any of the matters required by this subsection are unknown.
(b)
If a petition seeking an adjudication that a child is in need of services is
based on a complaint filed by a school official, such petition shall be
dismissed unless it includes information which shows that:
(1)
The legally liable school district has sought to resolve the expressed problem
through available educational approaches; and
(2)
The school district has sought to engage the parent, guardian, or legal
custodian in solving the problem but any such individual has been unwilling or
unable to do so; that the problem remains; and that court intervention is
needed.
(c)
If a petition seeking an adjudication that a child is in need of services is
based on a complaint filed by a school official involving a child who is
eligible or suspected to be eligible for services under the federal Individuals
with Disabilities Education Act or Section 504 of the federal Rehabilitation
Act, such petition shall be dismissed unless it includes information which
demonstrates that the legally liable school district:
(1)
Has determined that the child is eligible or suspected to be eligible under the
federal Individuals with Disabilities Education Act or Section 504 of the
federal Rehabilitation Act; and
(2)
Has reviewed for appropriateness the child's current Individualized Education
Program (IEP) and placement and has made modifications where
appropriate.
15-11-423.
(a)
The court shall direct the issuance of a summons to the child, the child's
parent, guardian, or legal custodian, DFCS and any other public agencies or
institutions providing services, and any other persons who appear to the court
to be proper or necessary parties to the child in need of services proceeding
requiring them to appear before the court at the time fixed to answer the
allegations of the petition seeking an adjudication that a child is in need of
services. A copy of such petition shall accompany the summons.
(b)
The summons shall state that a party is entitled to an attorney in the
proceedings and that the court will appoint an attorney if the party is an
indigent person.
(c)
A party other than the child may waive service of summons by written stipulation
or by voluntary appearance at the hearing.
15-11-424.
(a)
If a party to be served with a summons is within this state and can be found,
the summons shall be served upon him or her personally as soon as possible and
at least 24 hours before the adjudication hearing.
(b)
If a party to be served is within this state and cannot be found but his or her
address is known or can be ascertained with reasonable diligence, the summons
shall be served upon such party at least five days before the adjudication
hearing by mailing him or her a copy by registered or certified mail or
statutory overnight delivery, return receipt requested.
(c)
If a party to be served is outside this state but his or her address is known or
can be ascertained with reasonable diligence, service of the summons shall be
made at least five days before the adjudication hearing either by delivering a
copy to such party personally or by mailing a copy to him or her by registered
or certified mail or statutory overnight delivery, return receipt
requested.
(d)
Service of the summons may be made by any suitable person under the direction of
the court.
(e)
The court may authorize payment from county funds of the costs of service and of
necessary travel expenses incurred by persons summoned or otherwise required to
appear at the hearing on the petition seeking an adjudication that a child is in
need of services.
15-11-425.
(a)
In the event a parent, guardian, or legal custodian of the child willfully fails
to appear personally at a hearing on the petition seeking an adjudication that a
child is in need of services after being ordered to so appear or the parent,
guardian, or legal custodian of the child willfully fails to bring the child to
such hearing after being so directed, the court may issue a rule nisi against
the person directing the person to appear before the court to show cause why he
or she should not be held in contempt of court.
(b)
If the parent, guardian, or legal custodian fails to appear in response to an
order to show cause, the court may issue a bench warrant directing that the
parent, guardian, or legal custodian be brought before the court without delay
to show cause why he or she should not be held in contempt and the court may
enter any order authorized by the provisions of Code Section
15-11-31.
(c)
In the event an agency representative willfully fails to appear at a mandatory
conference or a hearing on the petition seeking an adjudication that a child is
in need of services after being ordered to so appear, the court may direct the
appropriate agency representative to appear before the court to show cause why a
contempt order should not issue.
(d)
If a child 16 years of age or older fails to appear at a hearing on the petition
seeking an adjudication that a child is in need of services after being ordered
to so appear, the court may issue a bench warrant requiring that the child be
brought before the court without delay and the court may enter any order
authorized by and in accordance with the provisions of Code Section
15-11-31.
(e)
If there is sworn testimony that a child 14 years of age but not yet 16 years of
age willfully refuses to appear at a hearing on the petition seeking an
adjudication that a child is in need of services after being ordered to so
appear, the court may issue a bench warrant requiring that the child be brought
before the court and the court may enter any order authorized by and in
accordance with the provisions of Code Section 15-11-31.
Part
6
15-11-440.
The
petitioner has the burden of proving the allegations of a child in need of
services petition beyond a reasonable doubt.
15-11-441.
(a)
If a child is in continued custody but not in secure detention, the adjudication
hearing shall be scheduled to be held no later than ten days after the filing of
the petition seeking an adjudication that a child is in need of services. If
the child is not in continued custody, the adjudication hearing shall be
scheduled to be held no later than 60 days after the filing of such
petition.
(b)
At the conclusion of the adjudication hearing, the court shall determine whether
the child is a child in need of services.
15-11-442.
(a)
If the court finds the child is in need of services, a final disposition hearing
shall be held and completed within 30 days of the conclusion of the adjudication
hearing.
(b)
The court shall order the least restrictive and most appropriate disposition.
Such disposition may include:
(1)
Permitting the child to remain with the child's caregiver without limitations or
conditions;
(2)
Permitting the child to remain with the child's caregiver subject to such
limitations and conditions as the court may prescribe, including ordering the
child, the family, or both to undergo physical examination or treatment, accept
individual or family counseling, or submit to psychiatric examination or
treatment or psychological examination or treatment as determined by the
court;
(3)
Placing the child on probation on such terms and conditions as deemed in the
best interests of the child and the public. An order granting probation to a
child in need of services may be revoked on the ground that the terms and
conditions of the probation have not been observed;
(4)
Requiring that the child perform community service in a manner prescribed by the
court and under the supervision of an individual designated by the
court;
(5)
Requiring that the child make restitution. A restitution order may remain in
force and effect simultaneously with another order of the court. Payment of
funds shall be made by the child or the child's family or employer directly to
the clerk of the juvenile court entering the order or another employee of that
court designated by the judge, and such court shall disburse such funds in the
manner authorized in the order. While an order requiring restitution is in
effect, the court may transfer enforcement of its order to:
(A)
The juvenile court of the county of the child's residence and its probation
staff, if the child changes his or her place of residence; or
(B)
A superior court once the child reaches 18 years of age if the child thereafter
comes under the jurisdiction of the superior court;
(6)
Imposing a fine on a child who has committed an offense which, if committed by
an adult, would be a violation under the criminal laws of this state or has
violated an ordinance or bylaw of a county, city, town, or consolidated
government. Such fine shall not exceed the fine which may be imposed against an
adult for the same offense;
(7)
Requiring the child to attend structured after-school or evening programs or
other court approved programs as well as requiring supervision of the child
during the time of the day in which the child most often used to perform the
acts complained of in the petition alleging that the child is in need of
services;
(8)
Any order authorized for the disposition of a dependent child;
(9)
Assigning the child to the custody of a private or public institution or agency
including committing the child to DJJ. A child shall not be placed in a secure
detention facility designed and operated exclusively for delinquent children,
nor shall such facility accept the child, unless the child has violated a valid
court order; or
(10)
Any combination of the dispositions set forth in paragraphs (1) through (9) of
this subsection as the court deems to be in the best interests of the child and
the public.
(c)
The court may make orders relative to the support and maintenance of the child
during the period after the child's eighteenth birthday as permitted by
law.
(d)
All disposition orders shall include written findings as to the basis for the
disposition and such conditions as the court imposes and a specific plan of the
services to be provided.
15-11-443.
(a)
An order of disposition shall be in effect for the shortest time necessary to
accomplish the purposes of the order and for not more than two years. A written
disposition order shall state the length of time the order is to be in effect.
An order of extension may be made if:
(1)
A hearing is held prior to the expiration of the order upon motion of DFCS, DJJ,
the prosecuting attorney, or on the court's own motion;
(2)
Reasonable notice of the factual basis of the motion and of the hearing and
opportunity to be heard are given to the parties affected;
(3)
The court finds that the extension is necessary to accomplish the purposes of
the order extended; and
(4)
The extension does not exceed two years from the expiration of the prior
order.
(b)
The court may terminate an order of disposition or an extension of such a
disposition order prior to its expiration, on its own motion or an application
of a party, if it appears to the court that the purposes of the order have been
accomplished.
(c)
When a child reaches 18 years of age, all orders affecting him or her then in
force shall terminate and he or she shall be discharged from further obligation
or control.
15-11-444.
(a)
An order granting probation to a child found to be a child in need of services
may be revoked on the ground that the conditions of probation have been
violated.
(b)
Any violation of a condition of probation may be reported to the prosecuting
attorney who may file a motion in court for revocation of probation. A motion
for revocation of probation shall contain specific factual allegations
constituting each violation of a condition of probation.
(c)
The motion shall be served upon the child, his or her attorney, and parent,
guardian, or legal custodian in accordance with the provisions of Code Section
15-11-424.
(d)
If a child is taken into custody because of the alleged violation of probation,
the provisions governing the detention of a child under this article shall
apply.
(e)
A revocation hearing shall be scheduled to be held no later than 30 days after
the filing of a motion to revoke probation or, if the child has been detained as
a result of the filing of the motion for revocation, in accordance with Code
Section 15-11-416.
(f)
If the court finds, beyond a reasonable doubt, that a child violated the terms
and conditions of probation, the court may:
(1)
Extend probation;
(2)
Impose additional conditions of probation;
(3)
Impose the secure probation sanctions program as defined in Code Section
15-11-471; or
(4)
Make any disposition that could have been made at the time probation was
imposed.
15-11-445.
The
court shall review the disposition of a child in need of services at least once
within three months after such disposition and at least every six months
thereafter so long as the order of disposition is in effect.
Part
7
15-11-450.
The
periodic review hearing requirements under Article 3 of this chapter shall apply
to proceedings involving a child alleged or found to be a child in need of
services and placed in foster care.
15-11-451.
(a)
The permanency plan requirements under Article 3 of this chapter shall apply to
proceedings involving a child alleged or found to be a child in need of services
and placed in foster care.
(b)
In addition to those compelling reasons set forth in Code Section 15-11-233, a
compelling reason for determining that filing a termination of parental rights
petition is not in the best interests of a child in need of services may
include, but shall not be limited to:
(1)
The child needs continued out-of-home placement for an additional number of
months and the parent, guardian, or legal custodian has cooperated with
referrals, visitation, and family conferences as well as therapy;
(2)
The child is habitually truant and absconds from the home, the current placement
setting has an on-site school with therapeutic intervention and restricted leave
policies, and the child and parent are cooperative with services and referrals;
or
(3)
The child is uncooperative with services or referrals.
Part
8
15-11-460.
(a)
After determining, in accordance with the provisions of Article 8 of this
chapter, that a child who is alleged to be a child in need of services in a
petition under this article or who has been alleged to have committed a
delinquent act is unrestorably incompetent to proceed and the court makes a
finding that the child is a child in need of services, the court shall appoint a
plan manager, if one has not already been appointed, to direct the development
of a comprehensive services plan for such child.
(b)
A comprehensive services plan shall be developed at a meeting of all relevant
parties convened by the plan manager. The plan manager shall request that the
following persons attend such meeting:
(1)
The parent, guardian, or legal custodian of the child;
(2)
The child's attorney;
(3)
The prosecuting attorney;
(4)
The child's guardian ad litem, if any;
(5)
Mental health or mental retardation representatives;
(6)
The child's caseworker;
(7)
A representative from the child's school; and
(8)
Any family member of the child who has shown an interest and involvement in the
child's well-being.
(c)
The plan manager may request that other relevant persons attend the
comprehensive services plan meeting including but not limited to the
following:
(1)
A representative from the Department of Public Health;
(2)
A DFCS caseworker; and
(3)
Representatives of the public and private resources to be utilized in the
plan.
(d)
The plan manager shall be responsible for collecting all previous histories of
the child, including, but not limited to, previous evaluations, assessments, and
school records and for making such histories available for consideration by the
persons at the comprehensive services plan meeting.
(e)
Unless a time extension is granted by the court, the plan manager shall submit
the comprehensive services plan to the court within 30 days of the entry of the
court's disposition order for a child found to be unrestorably incompetent to
proceed under Article 8 of this chapter. The plan shall include the
following:
(1)
An outline of the specific provisions for supervision of the child for
protection of the community and the child;
(2)
An outline of a plan designed to provide treatment, habilitation, support, or
supervision services in the least restrictive environment;
(3)
If the child's evaluation recommends treatment in a secure environment,
certification by the plan manager that all other appropriate community based
treatment options have been exhausted; and
(4)
Identification of all parties, including the child, agency representatives, and
other persons responsible for each element of the plan.
(f)
The plan manager shall also be responsible for:
(1)
Convening a meeting of all parties and representatives of all agencies prior to
the comprehensive services plan hearing and review hearings;
(2)
Identifying to the court any person who should provide testimony at the
comprehensive services plan hearing; and
(3)
Monitoring the comprehensive services plan, presenting to the court amendments
to the plan as needed, and presenting evidence to the court for the reapproval
of the plan at subsequent review hearings.
15-11-461.
(a)
The court shall hold a comprehensive services plan hearing within 30 days after
the comprehensive services plan has been submitted to the court for the purpose
of approving the plan. Thereafter, the court shall hold a comprehensive
services plan hearing every six months for the purpose of reviewing the child's
condition and approving the comprehensive services plan.
(b)
The persons required to be notified of the comprehensive services plan hearing
and witnesses identified by the plan manager shall be given at least ten days'
prior notice of the hearing and any subsequent hearing to review the child's
condition and shall be afforded an opportunity to be heard at any such hearing.
The victim, if any, of the child's alleged delinquent act shall also be provided
with the same ten days' prior notice and shall be afforded an opportunity to be
heard and to present a victim impact form to the court at the comprehensive
services plan hearing. The judge shall make a determination regarding
sequestration of witnesses in order to protect the privileges and
confidentiality rights of the child.
(c)
At the comprehensive services plan hearing, the court shall enter an order
incorporating a comprehensive services plan as part of the disposition of the
comprehensive services plan hearing. At the time of the disposition, the child
shall be placed in an appropriate treatment setting, as recommended by the
examiner, unless the child has already been placed in an appropriate treatment
setting pursuant to subsection (g) of Code Section 15-11-656.
(d)
If, during the comprehensive services plan hearing or any subsequent review
hearing, the court determines that the child meets criteria for civil
commitment, the child may be committed to a secure treatment
facility.
(e)
At any time, in the event of a change in circumstances regarding the child, the
court on its own motion or on the motion of the attorney representing the child,
any guardian ad litem for the child, the prosecuting attorney, or the plan
manager may set a hearing for review of the comprehensive services plan and any
proposed amendments to such plan. The court may issue an appropriate order
incorporating an amended plan.
(f)
If a child is under a comprehensive services plan when he or she reaches the age
of 18, the plan manager shall make a referral for appropriate adult
services.
ARTICLE
7
Part 1
Part 1
15-11-470.
The
purpose of this article is:
(1)
Consistent with the protection of the public interest, to hold a child
committing delinquent acts accountable for his or her actions, taking into
account the child's age, education, mental and physical condition, background,
and all other relevant factors but to mitigate the adult consequences of
criminal behavior;
(2)
To accord due process of law to each child who is accused of having committed a
delinquent act;
(3)
To provide for a child committing delinquent acts programs of supervision, care,
and rehabilitation which ensure balanced attention to the protection of the
community, the imposition of accountability, and the development of competencies
to enable a child to become a responsible and productive member of the
community;
(4)
To promote a continuum of services for a child and his or her family from
prevention to aftercare, considering, whenever possible, prevention, diversion,
and early intervention, including an emphasis on community based
alternatives;
(5)
To provide effective sanctions to acts of juvenile delinquency; and
(6)
To strengthen families and to successfully reintegrate children into homes and
communities.
15-11-471.
As
used in this article, the term:
(1)
'AIDS transmitting crime' means aggravated child molestation, aggravated sodomy,
child molestation, incest, prostitution, rape, sodomy, solicitation of sodomy,
statutory rape, or any offense involving a violation of Article 2 of Chapter 13
of Title 16 if such offense involves heroin, cocaine, derivatives of either, or
any other controlled substance in Schedule I, II, III, IV, or V and that other
substance is commonly intravenously injected, as determined by the regulations
of the department.
(2)
'Arraignment' means the formal act of calling the child into court, informing
him or her of the allegations of the petition alleging delinquency, and the
entry of a preliminary statement, if any, indicating whether the child shall
admit or deny the allegations of such petition.
(3)
'Behavioral health evaluation' means a court ordered evaluation completed by a
licensed psychologist or psychiatrist of a child alleged to have committed or
adjudicated of a delinquent act so as to provide the juvenile court with
information and recommendations relevant to the behavioral health status and
mental health treatment needs of the child.
(4)
'Community rehabilitation center' means a rehabilitation and custodial center
established within a county for the purpose of assisting in the rehabilitation
of delinquent children and children in need of services in a neighborhood and
family environment in cooperation with community educational, medical, and
social agencies. Such center shall:
(A)
Be located within any county having a juvenile court presided over by at least
one full-time judge exercising jurisdiction exclusively over juvenile matters;
and
(B)
Be operated by a nonprofit corporation organized under Chapter 3 of Title 14,
the 'Georgia Nonprofit Corporation Code,' and have a full-time chief executive
officer. The charter, bylaws, and method of selecting the board of directors
and chief executive officer of such nonprofit corporation shall be subject to
the unanimous approval of the chief judge of the judicial circuit in which the
county is located, the judge or judges of the juvenile court, the superintendent
of the county school district, and the commissioner of juvenile justice, which
approval shall be in writing and shall be appended to the charter and bylaws of
the nonprofit organization. Any amendment of the charter or bylaws of the
nonprofit corporation shall be subject to the same written approval as the
original charter and bylaws.
(5)
'Determined to be infected with HIV' means having a confirmed positive human
immunodeficiency virus ('HIV') test or having been clinically diagnosed as
having AIDS.
(6)
'Graduated sanctions' means:
(A)
Verbal and written warnings;
(B)
Increased restrictions and reporting requirements;
(C)
Community service;
(D)
Referral to treatment and counseling programs in the community;
(E)
Weekend programming;
(F)
Electronic monitoring, as such term is defined in Code Section
42-8-151;
(G)
Curfew;
(H)
An intensive supervision program; or
(I)
A home confinement program.
(7)
'Hearing officer' means a DJJ employee or county juvenile probation office
employee, as applicable, who has been selected and appointed by DJJ or the
county juvenile probation office, as applicable, to hear cases alleging
violations of probation for administrative sanctioning. A hearing officer shall
not be a probation officer who has direct supervision over the child who is the
subject of the hearing.
(8)
'HIV test' means any antibody, antigen, viral particle, viral culture, or other
test to indicate the presence of HIV in the human body, which test has been
approved for such purposes by the regulations of the department.
(9)
'Intensive supervision' means the monitoring of a child's activities on a more
frequent basis than regular aftercare supervision, pursuant to regulations of
the commissioner of juvenile justice.
(10)
'Preadjudication custody' begins when a juvenile court intake officer authorizes
the placement of a child in a regional youth detention center.
(11)
'Probation management program' means a special condition of probation that
includes graduated sanctions.
(12)
'Secure probation sanctions program' means secure confinement of seven, 14, or
30 days.
15-11-472.
(a)
A detention hearing shall be held promptly and no later than:
(1)
Two business days after the child is placed in preadjudication custody if the
child is taken into custody without an arrest warrant; or
(2)
Three business days after the child is placed in preadjudication custody if the
child is taken into custody pursuant to an arrest warrant.
(b)
If a child is placed in preadjudication custody without an arrest warrant and
the detention hearing cannot be held within 48 hours because the expiration of
the 48 hours falls on a weekend or legal holiday, the court shall review the
decision to detain a child and make a finding based on probable cause within 48
hours of the child being placed in preadjudication custody.
(c)
If a child is released from preadjudication custody at the detention hearing or
was never taken into custody, the following time frames apply:
(1)
Any petition alleging delinquency shall be filed within 30 days of the filing of
the complaint or within 30 days of the child's release from preadjudication
custody;
(2)
Summons shall be served at least 72 hours before the adjudication
hearing;
(3)
The arraignment hearing shall be scheduled no later than 30 days after the
filing of the petition alleging delinquency;
(4)
The adjudication hearing shall be held no later than 60 days from the filing of
the petition alleging delinquency; and
(5)
The disposition hearing shall be held within 30 days of the adjudication hearing
unless the court makes written findings of fact explaining the
delay.
(d)
If a child is not released from preadjudication custody at the detention
hearing, the following time frames apply:
(1)
The petition alleging delinquency shall be filed within 72 hours of the
detention hearing;
(2)
Summons shall be served at least 72 hours before the adjudication
hearing;
(3)
The adjudication hearing shall be held no later than ten days after the filing
of the petition alleging delinquency; and
(4)
The disposition hearing shall be held within 30 days of the adjudication hearing
unless the court makes written findings of fact explaining the
delay.
15-11-473.
(a)
A prosecuting attorney shall conduct delinquency proceedings on behalf of the
state.
(b)
Except as provided in Article 10 of this chapter, in any delinquency proceeding,
the prosecuting attorney shall be entitled to complete access to all court
files, probation files, hearing transcripts, delinquency reports, and any other
juvenile court records. It shall be the duty of the clerk, probation officers
of the juvenile court, and DJJ to assist the prosecuting attorney in obtaining
any requested items.
15-11-474.
(a)
The child and the state shall be parties at all stages of delinquency
proceedings.
(b)
The child's parent, guardian, or legal custodian shall have the right to notice,
the right to be present in the courtroom, and the opportunity to be heard at all
stages of delinquency proceedings.
(c)
DJJ shall receive notice of the disposition hearing.
15-11-475.
(a)
A child shall have the right to be represented by an attorney at all proceedings
under this article.
(b)
A child's parent, guardian, or legal custodian shall not waive the child's right
to be represented by an attorney.
(c)
A child may waive the right to an attorney only after consultation with an
attorney.
(d)
Prior to the detention hearing, if any, the court shall appoint a qualified and
competent attorney to represent the child unless an attorney has been retained
and appears on behalf of the child. Nothing in this subsection shall prohibit a
judge from releasing a child from detention prior to appointment of an
attorney.
(e)
Upon a motion by an attorney for the child, together with written permission of
the child, a judge shall issue an order providing that attorney with access to
all dependency, school, hospital, physician, or other health or mental health
care records relating to the child.
15-11-476.
(a)
The court shall appoint a separate guardian ad litem whenever:
(1)
A child appears before the court without a parent, guardian, or legal
custodian;
(2)
It appears to the court that the child's parent, guardian, or legal custodian is
incapable or unwilling to make decisions in the best interests of the child with
respect to proceedings under this article such that there may be a conflict of
interest between the child and his or her parent, guardian, or legal custodian;
or
(3)
The court finds that it is otherwise in the child's best interests to do
so.
(b)
The role of a guardian ad litem in a delinquency proceeding shall be the same
role as provided for in all dependency proceedings under Article 3 of this
chapter.
(c)
Neither the child's attorney nor the child's parent, guardian, or legal
custodian shall prohibit or impede access to the child by the guardian ad
litem.
15-11-477.
(a)
At any time prior to the issuance of a final dispositional order, the court may
order a behavioral health evaluation of the child which may be conducted by
DBHDD or a private psychologist or psychiatrist.
(b)
The court shall order and give consideration to the results of a child's
behavioral health evaluation before ordering any final disposition confining
such child in a secure detention facility; provided, however, that such order
shall not be required if the court has considered the results of a prior
behavioral health evaluation of the child that had been completed in the
preceding six months.
(c)
Statements made by the child during a behavioral health evaluation shall only be
admissible into evidence as provided in Code Section 15-11-479.
15-11-478.
A
continuance shall be granted only upon a showing of good cause and only for that
period of time shown to be necessary by the moving party at the hearing on the
motion. Whenever any continuance is granted, the facts which require the
continuance shall be entered into the court record.
15-11-479.
Voluntary
statements made in the course of intake screening of a child or in the course of
treatment, any evaluation, or any other related services shall be inadmissible
in any adjudication hearing in which the child is the accused and shall not be
considered by the court except such statement shall be admissible as rebuttal or
impeachment evidence.
15-11-480.
(a)
When a child enters a denial to the petition alleging delinquency, jeopardy
attaches when the first witness is sworn at the adjudication
hearing.
(b)
When a child enters an admission to the petition alleging delinquency, jeopardy
attaches when the court accepts the admission.
15-11-481.
(a)
When a child is adjudicated delinquent and is placed in foster care, DJJ shall
develop and complete the child's case plan. When the child is in DFCS custody,
DJJ shall cooperate with DFCS in developing and completing the child's case
plan.
(b)
In addition to the case plan requirements of Code Section 15-11-201, the case
plan for a child in delinquency proceedings shall include:
(1)
A description of the child's strengths and needs;
(2)
A description of specific parental strengths and needs;
(3)
A description of other personal, family, or environmental problems that
contribute to the child's delinquent behaviors;
(4)
A description of the safety, physical, and mental health needs of the
child;
(5)
Identification of the least restrictive placement to safeguard the child's best
interests and protect the community;
(6)
An assessment of the availability of community resources to address the child's
and family's needs;
(7)
An assessment of the availability of court diversion services; and
(8)
An assessment of the availability of other preventive measures.
15-11-482.
(a)
In any delinquency proceeding in which a petition has been filed, the juvenile
court shall notify any victim of a delinquent child's alleged delinquent act
that the victim may submit a victim impact form as provided in Code Section
17-10-1.1 if:
(1)
The allegedly delinquent child, in conduct which would constitute a felony if
committed by an adult, caused physical, psychological, or economic injury to the
victim; or
(2)
The allegedly delinquent child, in conduct which would constitute a misdemeanor
if committed by an adult, caused serious physical injury or death to the
victim.
(b)
The provisions of subsection (e) of Code Section 17-10-1.1 shall apply to the
use and disclosure of the victim impact form.
(c)
The victim may complete the victim impact form and submit such form to the
juvenile court. If the victim is unable to do so because of such victim's
mental, emotional, or physical incapacity, or because of such victim's age, the
victim's attorney or a family member may complete the victim impact form on
behalf of the victim.
(d)
Prior to the imposition of a dispositional order for an allegedly delinquent
child, the juvenile court shall permit the victim to address the juvenile court
and present any information or opinions that concern the victim or the victim's
family, including the impact of the delinquent act on the victim, the harm
caused by the allegedly delinquent child and the delinquent act, the need for
restitution, or the terms of the disposition order. Such statement shall be
given in the presence of the allegedly delinquent child and shall be subject to
cross-examination. The prosecuting attorney and the allegedly delinquent child
shall be afforded the opportunity to explain, support, or deny the victim's
statement. It shall be the duty of the juvenile court to advise the victim of
the right to address the court prior to the entry of a dispositional order for a
delinquent child. The victim shall have the discretion to exercise the right to
be present and be heard at the dispositional hearing. If the victim is
voluntarily absent from the dispositional hearing, such absence shall constitute
a waiver of the rights provided by this subsection.
(e)
Except as provided in subsection (d) of this Code section, no disposition of the
child shall be invalidated because of failure to comply with the provisions of
this Code section. This Code section shall not be construed to create any cause
of action or any right of appeal on behalf of the victim, the state, or the
accused; provided, however, that if the court intentionally fails to comply with
this Code section, the victim may file a complaint with the Judicial
Qualifications Commission.
Part
2
15-11-490.
(a)
A proceeding under this article may be commenced:
(1)
In the county in which the child legally resides; or
(2)
In any county in which the alleged delinquent acts occurred.
(b)
If the adjudicating court finds that a nonresident child has committed a
delinquent act, the adjudicating court may retain jurisdiction over the
disposition of the nonresident child or may transfer the proceeding to the
county of the child's residence for disposition. Like transfer may be made if
the residence of the child changes pending the proceeding.
(c)
If the adjudicating court retains jurisdiction, prior to making any order for
disposition of the nonresident child, the adjudicating court shall communicate
to the court of the county of the child's residence the fact that the child has
been found to have committed a delinquent act. Such communication shall state
the date upon which the adjudicating court plans to enter an order for
disposition of the nonresident child and shall request any information or
recommendations relevant to the disposition of the nonresident child. Any such
recommendation shall be considered by but shall not be binding upon the
adjudicating court in making its order for disposition.
(d)
When any case is transferred, certified copies of all documents and records
pertaining to the case on file with the clerk of the court shall accompany the
transfer order. Compliance with this subsection shall terminate jurisdiction in
the transferring court and initiate jurisdiction in the receiving
court.
Part
3
15-11-500.
If
it appears from a filed affidavit or from sworn testimony before the court that
the conduct, condition, or surroundings of the child are endangering the child's
health or welfare or those of others or that the child may abscond or be removed
from the jurisdiction of the court or will not be brought before the court,
notwithstanding the service of the summons, the court may endorse upon the
summons an order that a law enforcement officer shall serve the summons and take
the child into immediate custody and bring the child forthwith before the
court.
15-11-501.
(a)
A child may be taken into custody:
(1)
Pursuant to an order of the court under this article, including an order to a
DJJ employee to apprehend:
(A)
A child who has escaped from an institution or facility operated by DJJ;
or
(B)
A child who has been placed under supervision and who has violated its
conditions;
(2)
Pursuant to the laws of arrest; or
(3)
By a law enforcement officer or duly authorized officer of the court if there
are reasonable grounds to believe that the child has committed a delinquent
act.
(b)
A law enforcement officer taking a child into custody shall promptly give notice
together with a statement of the reasons for taking the child into custody to a
parent, guardian, or legal custodian and to the court.
(c)
When a child who is taken into custody has committed an act which would
constitute a felony if committed by an adult, the juvenile court, within 48
hours after it learns of the child having been taken into custody, shall notify
the prosecuting attorney of the judicial circuit in which the juvenile
proceedings are to be instituted.
15-11-502.
(a)
A person taking a child into custody, with all reasonable speed and without
first taking the child elsewhere, shall:
(1)
Immediately release the child, without bond, to the child's parent, guardian, or
legal custodian upon such person's promise to bring the child before the court
when requested by the court;
(2)
Immediately deliver the child to a medical facility if the child is believed to
suffer from a serious physical condition or illness which requires prompt
treatment and, upon delivery, shall promptly contact a juvenile court intake
officer. Immediately upon being notified by the person taking a child into
custody, the juvenile court intake officer shall determine if the child should
be released, remain in protective custody, or be brought before the court;
or
(3)
Bring the child immediately before the juvenile court or promptly contact a
juvenile court intake officer. The court or juvenile court intake officer shall
determine if the child should be released or detained. All determinations and
court orders regarding detention shall comply with the requirements of this
article and shall be based on an individual assessment of the child and the
child's circumstances. Such assessment shall include completion and review of a
detention assessment instrument developed by the Governor's Office for Children
and Families in consultation with DJJ and the Council of Juvenile Court
Judges.
(b)
Notwithstanding subsection (a) of this Code section, a law enforcement officer
may detain a child for a reasonable period of time sufficient to conduct
interrogations and perform routine law enforcement procedures including, but not
limited to, fingerprinting, photographing, and the preparation of any necessary
records.
(c)
Prior to a detention hearing, a child shall be placed in detention, if
necessary, only in such places as are authorized by Code Section
15-11-504.
15-11-503.
(a)
Restraints on the freedom of a child prior to adjudication shall be imposed only
when there is probable cause to believe that the child committed the act of
which he or she is accused, that there is clear and convincing evidence that the
child's freedom should be restrained, that no less restrictive alternatives will
suffice, and that:
(1)
The child's detention or care is required to reduce the likelihood that the
child may inflict serious bodily harm on others during the interim
period;
(2)
The child has a demonstrated pattern of theft or destruction of property such
that detention is required to protect the property of others;
(3)
The child's detention is necessary to secure the child's presence in court to
protect the jurisdiction and processes of the court; or
(4)
An order for the child's detention has been made by the court.
(b)
All children who are detained shall be informed of their right to bail as
provided by Code Section 15-11-507.
(c)
A child shall not be detained:
(1)
To punish, treat, or rehabilitate the child;
(2)
To allow a parent to avoid his or her legal responsibilities;
(3)
To satisfy demands by a victim, law enforcement, or the community;
(4)
To permit more convenient administrative access to the child;
(5)
To facilitate further interrogation or investigation; or
(6)
Due to a lack of a more appropriate facility.
(d)
Whenever a child cannot be unconditionally released, conditional or supervised
release that results in the least necessary interference with the liberty of the
child shall be favored over more intrusive alternatives.
(e)
Whenever the curtailment of a child's freedom is permitted, the exercise of
authority shall reflect the following values:
(1)
Respect for the privacy, dignity, and individuality of the child and his or her
family;
(2)
Protection of the psychological and physical health of the child;
(3)
Tolerance of the diverse values and preferences among different groups and
individuals;
(4)
Assurance of equality of treatment by race, class, ethnicity, and
sex;
(5)
Avoidance of regimentation and depersonalization of the child;
(6)
Avoidance of stigmatization of the child; and
(7)
Assurance that the child has been informed of his or her right to consult with
an attorney and that, if the child is an indigent person, an attorney will be
provided.
(f)
Before entering an order authorizing detention, the court shall determine
whether continuation in the home is contrary to the child's welfare and whether
there are available services that would prevent or eliminate the need for
detention. The court shall make that determination on a case-by-case basis and
shall make written findings of fact referencing any and all evidence relied upon
in reaching its decision.
(g)
If the child can remain in the custody of his or her parent, guardian, or legal
custodian, through the provision of services to prevent the need for removal,
the court shall order that such services shall be provided.
15-11-504.
(a)
A child alleged to be delinquent may be detained only in:
(1)
A licensed foster home;
(2)
A home approved by the court which may be a public or private home;
(3)
The home of a noncustodial parent or of a relative;
(4)
A facility operated by a licensed child welfare agency; or
(5)
A detention home or center for delinquent children which is under the direction
or supervision of the court or other public authority or of a private agency
approved by the court.
(b)
Placement shall be made in the least restrictive facility available consistent
with the best interests of the child.
(c)
A child 15 years of age or older and alleged to be delinquent may be held in a
jail or other facility for the detention of adults for identification or
processing procedures or while awaiting transportation only as long as necessary
to complete such activities for up to six hours, or for up to 24 hours in
nonmetropolitan areas, if all of the following apply:
(1)
The child is detained for the commission of a crime that would constitute a
designated felony or a serious violent felony as defined in Code Section
17-10-6.1;
(2)
The child is awaiting a detention hearing;
(3)
The child's detention hearing is scheduled within 24 hours after being taken
into custody, excluding weekends and legal holidays;
(4)
There is no existing acceptable alternative placement for the child;
and
(5)
The jail or other facility for the detention of adults provides sight and sound
separation for juveniles which includes:
(A)
Total separation between juveniles and adult facility spatial areas such that
there is no verbal, visual, or physical contact and there could be no haphazard
or accidental contact between juvenile and adult residents in the respective
facilities;
(B)
Total separation in all juvenile and adult program activities within the
facilities, including recreation, education, counseling, health care, dining,
sleeping, and general living activities;
(C)
Continuous visual supervision of the child; and
(D)
Separate juvenile and adult staff, specifically direct care staff such as
recreation, education, and counseling, although specialized services staff, such
as cooks, bookkeepers, and medical professionals who are not normally in contact
with detainees or whose infrequent contacts occur under conditions of separation
of juvenile and adults, can serve both.
(d)
A child shall not be transported with adults who have been charged with or
convicted of a crime. DJJ may transport a child with children who have been
charged with or convicted of a crime in superior court.
(e)
The official in charge of a jail or other facility for the detention of adult
offenders or persons charged with crime shall inform the court or the juvenile
court intake officer immediately when a child, who appears to be under the age
of 17 years, is received at such facility and shall deliver the child to the
court upon request or transfer the child to the facility designated by the
juvenile court intake officer or the court.
(f)
All facilities shall maintain data on each child detained and such data shall be
recorded and retained by the facility for three years and shall be made
available for inspection during normal business hours by any court exercising
juvenile court jurisdiction, by DJJ, and by the Council of Juvenile Court
Judges. The required data are:
(1)
Name;
(2)
Date of birth;
(3)
Sex;
(4)
Race;
(5)
Offense or offenses for which being detained;
(6)
Date of and authority for confinement;
(7)
Date of and authority for release or transfer; and
(8)
Where transferred or to whom released.
15-11-505.
If
a child is brought before the court or delivered to a detention or foster care
facility designated by the court, the juvenile court intake officer shall
immediately make an investigation and release the child unless it appears that
the child's detention is warranted.
15-11-506.
(a)
A detention hearing shall be held to determine whether preadjudication custody
of a child is required. If such hearing is not held within the time specified,
the child shall be released from detention or foster care.
(b)
If a child is detained and is not released from preadjudication custody, a
detention hearing shall be held promptly and not later than:
(1)
Two business days after the child is placed in preadjudication custody if the
child is taken into custody without an arrest warrant; or
(2)
Three business days after the child is placed in preadjudication custody if the
child is taken into custody pursuant to an arrest warrant.
(c)
If the detention hearing cannot be held within two business days, in accordance
with paragraph (1) of subsection (b) of this Code section, because the date for
the hearing falls on a weekend or legal holiday, the court shall review the
decision to detain a child and make a finding based on probable cause within 48
hours of the child being placed in preadjudication custody.
(d)
Reasonable oral or written notice of the detention hearing, stating the time,
place, and purpose of the hearing, shall be given to the child and to the
child's parent, guardian, or legal custodian, if he or she can be found. In the
event the child's parent, guardian, or legal custodian cannot be found, the
court shall forthwith appoint a guardian ad litem for the child.
(e)
If the child alleged to be delinquent is not released from preadjudication
custody and a parent, guardian, or legal custodian or guardian ad litem, if any,
has not been notified of the hearing and did not appear or waive appearance at
the hearing and thereafter files the affidavit showing such party was not
notified of such hearing, the court shall rehear the matter without unnecessary
delay and shall order the child's release unless it appears from the hearing
that the child's detention or foster care is required.
(f)
At the commencement of the detention hearing, the court shall inform the child
of:
(1)
The contents of the complaint or petition;
(2)
The nature of the proceedings;
(3)
The right to make an application for bail, as provided by Code Section 15-11-507
and Title 17;
(4)
The possible consequences or dispositions that may apply to the child's case
following adjudication; and
(5)
Due process rights, including the right to an attorney and to an appointed
attorney; the privilege against self-incrimination; that the child may remain
silent and that anything said may be used against the child; the right to
confront anyone who testifies against the child and to cross-examine any persons
who appear against the child; the right of the child to testify and to compel
other witnesses to attend and testify in his or her own behalf; the right of the
child to a speedy adjudication hearing; and the right to appeal and be provided
with a transcript for such purpose.
(g)
If the child can be returned to the custody of his or her parent, guardian, or
legal custodian through the provision of services to eliminate the need for
removal, the court shall release the child to the physical custody of the
parent, guardian, or legal custodian and order that those services shall be
provided.
(h)
If the child cannot be returned to the custody of the parent, guardian, or legal
custodian, the court shall state the facts upon which the detention is based.
The court shall make the following findings of fact referencing any and all
evidence relied upon to make its determinations:
(1)
Whether continuation in the home of the parent, guardian, or legal custodian is
contrary to the child's welfare; and
(2)
Whether reasonable efforts have been made to safely maintain the child in the
home of his or her parent, guardian, or legal custodian and to prevent the need
for removal. Such finding shall be made at the detention hearing if possible
but in no case later than 60 days following the child's removal from the
home.
(i)
If the child cannot be returned to the custody of the parent, guardian, or legal
custodian, the probation officer shall provide referrals for services as soon as
possible to enable the child's parent, guardian, or legal custodian to obtain
any assistance that may be needed to effectively provide the care and control
necessary for the child to return home.
15-11-507.
(a)
All children alleged to be delinquent shall have the same right to bail as
adults.
(b)
The judge shall admit to bail all children in the same manner and under the same
circumstances and procedures as are applicable to adults accused of the
commission of crimes, with the exception that applying for, holding a hearing on
the application, and granting bail for children alleged to have committed a
delinquent offense may only occur:
(1)
At intake in accordance with Code Section 15-11-503; or
(2)
At the detention hearing in accordance with Code Section 15-11-506.
(c)
A court shall be authorized to release a child on bail if the court finds that
the child:
(1)
Poses no significant risk of fleeing from the jurisdiction of the court or
failing to appear in court when required;
(2)
Poses no significant threat or danger to any person, to the community, or to any
property in the community;
(3)
Poses no significant risk of committing any felony pending trial;
and
(4)
Poses no significant risk of intimidating witnesses or otherwise obstructing the
administration of justice.
(d)
If the child is accused of committing an offense that would be a serious violent
felony, as defined in Code Section 17-10-6.1, if committed by an adult and the
child has previously been adjudicated delinquent for committing an act that
would be a serious violent felony if committed by an adult, there shall be a
rebuttable presumption that no condition or combination of conditions will
reasonably assure the appearance of the child as required or assure the safety
of any other person or the community.
(e)
Any person having legal custody or an adult blood relative or stepparent shall
be entitled to post bail but shall be required immediately to return the child
to the individual or entity having legal custody of the child.
(f)
For the purposes of this Code section, the term 'bail' shall include the
releasing of a person on such person's own recognizance.
15-11-508.
(a)
As used in this Code section, the term:
(1)
'Notice' shall have the same meaning as set forth in Code Section
17-17-3.
(2)
'Victim' shall have the same meaning as set forth in Code Section
17-17-3.
(3)
'Violent delinquent act' means the commission, attempt to commit, conspiracy to
commit, or solicitation of another to commit a delinquent act which if committed
by an adult would constitute:
(A)
A serious violent felony as defined by Code Section 17-10-6.1;
(B)
A designated felony act;
(C)
Stalking or aggravated stalking as provided by Article 7 of Chapter 5 of Title
16; or
(D)
Any attempt to commit, conspiracy to commit, or solicitation of another to
commit an offense enumerated in subparagraphs (A) through (C) of this
paragraph.
(b)
If a child accused of a violent delinquent act is detained pending adjudication,
the juvenile court intake officer shall provide notice to the victim, whenever
practicable, that such child is to be released from detention not less than 24
hours prior to such child's release from detention.
(c)
Not less than 48 hours prior to the release from detention of a child who has
been adjudicated to have committed a violent delinquent act, the juvenile court
intake officer shall, whenever practicable, provide notice to the victim of such
pending release.
(d)
Notification need not be given unless the victim has expressed a desire for such
notification and has provided the juvenile court intake officer with a current
address and telephone number. It shall be the duty of the juvenile court intake
officer to advise the victim of his or her right to notification and of the
requirement of the victim's providing a primary and personal telephone number to
which such notification shall be directed.
Part
4
15-11-510.
(a)
If a child has not been detained after the filing of a complaint, he or she
shall be promptly referred to intake or given a date for
arraignment.
(b)
At intake, the court, the juvenile court intake officer, or other officer
designated by the court shall inform the child of:
(1)
The contents of the complaint;
(2)
The nature of the proceedings;
(3)
The possible consequences or dispositions that may apply to the child's case
following adjudication; and
(4)
Due process rights, including the right to an attorney and to an appointed
attorney; the privilege against self-incrimination; that the child may remain
silent and that anything said may be used against the child; the right to
confront anyone who testifies against the child and to cross-examine any persons
who appear against the child; the right of the child to testify and to compel
other witnesses to attend and testify in his or her own behalf; the right of the
child to a speedy adjudication hearing; and the right to appeal and be provided
with a transcript for such purpose.
(c)
A juvenile court intake officer may elect to pursue a case through informal
adjustment or other nonadjudicatory procedure in accordance with the provisions
of Code Section 15-11-515.
(d)
If a case is to be prosecuted further and handled other than by informal
adjustment or other nonadjudicatory procedure, a referral shall be made to the
prosecuting attorney and a petition for delinquency shall be filed within 30
days of the filing of a complaint.
15-11-511.
(a)
At arraignment, the court shall inform the child of:
(1)
The contents of the petition for delinquency;
(2)
The nature of the proceedings;
(3)
The possible consequences or dispositions that may apply to the child's case
following adjudication; and
(4)
Due process rights, including the right to an attorney and to an appointed
attorney; the privilege against self-incrimination; that the child may remain
silent and that anything said may be used against the child; the right to
confront anyone who testifies against the child and to cross-examine any persons
who appear against the child; the right of the child to testify and to compel
other witnesses to attend and testify in his or her own behalf; the right of the
child to a speedy adjudication hearing; and the right to appeal and be provided
with a transcript for such purpose.
(b)
If a child is represented by counsel at arraignment or if a child has waived the
right to counsel after consultation with an attorney as to the wisdom of making
an admission or denial at arraignment, the child may make a preliminary
statement indicating whether he or she plans to admit or deny the allegations of
the complaint at the adjudication hearing; otherwise, the court shall not accept
an admission from a child at arraignment.
Part
5
15-11-515.
(a)
Before a petition for informal adjustment is filed, a probation officer or other
officer designated by the court, subject to the court's direction, may inform
the parties of informal adjustment if it appears that:
(1)
The admitted facts bring the case within the jurisdiction of the
court;
(2)
Counsel and advice without an adjudication would be in the best interests of the
public and the child, taking into account at least the following
factors:
(A)
The nature of the alleged offense;
(B)
The age and individual circumstances of the child;
(C)
The child's prior record, if any;
(D)
Recommendations for informal adjustment made by the complainant or the victim;
and
(E)
Services to meet the child's needs and problems may be unavailable within the
formal court system or may be provided more effectively by alternative community
programs; and
(3)
The child and the child's parent, guardian, or legal custodian consent with
knowledge that consent is not obligatory.
(b)
The giving of counsel and advice shall not extend beyond three months unless
extended by the court for an additional period not to exceed three months and
shall not authorize the detention of the child if not otherwise permitted by
this article.
(c)
An incriminating statement made by a participant to the person giving counsel or
advice and in the discussion or conferences incident thereto shall not be used
against the declarant over objection in any hearing except in a hearing on
disposition in a juvenile court proceeding or in a criminal proceeding upon
conviction for the purpose of a presentence investigation.
(d)
If a child is alleged to have committed a felony, the case shall not be subject
to informal adjustment, counsel, or advice without the prior consent of the
district attorney or his or her authorized representative.
Part
6
15-11-520.
A
petition alleging delinquency shall be filed only by the prosecuting
attorney.
15-11-521.
(a)
If a child is in detention prior to adjudication, the petition alleging
delinquency shall be filed not later than 72 hours after the detention hearing.
If no petition alleging delinquency is filed within the applicable time, the
child shall be released.
(b)
If the child is not in detention prior to adjudication, the petition alleging
delinquency shall be filed within 30 days of the filing of the complaint
alleging violation of a criminal law or within 30 days of the child's release
pursuant to a determination that detention is not warranted.
15-11-522.
(a)
The petition alleging delinquency shall be verified and may be on information
and belief. It shall set forth plainly and with particularity:
(1)
The facts which bring the child within the jurisdiction of the court, with a
statement that it is in the best interests of the child and the public that the
proceeding be brought and that the child is in need of supervision, treatment,
or rehabilitation, as the case may be;
(2)
The name, age, and residence address of the child on whose behalf such petition
is brought;
(3)
The name and residence address of the parent, guardian, or legal custodian of
the child; or, if neither the child's parent nor the child's guardian nor the
child's legal custodian resides or can be found within the state or if such
place of residence address is unknown, the name of any known adult relative
residing within the county or, if there is none, the known adult relative
residing nearest to the location of the court;
(4)
If the child is in custody and, if so, the place of his or her detention and the
time the child was taken into custody; and
(5)
If the child is being charged with a designated felony act.
(b)
The petition alleging delinquency shall indicate if any of the matters required
in this Code section are unknown.
15-11-523.
(a)
The prosecuting attorney may amend the petition alleging delinquency at any time
prior to the commencement of the adjudication hearing. However, if an amendment
is made, the child may request a continuance of the adjudication hearing. A
continuance may be granted by the court for such period as required in the
interest of justice.
(b)
When a petition alleging delinquency is amended to include material changes to
the allegations or new charges of delinquency for adjudication, the petition
shall be served in accordance with Code Sections 15-11-530 and
15-11-531.
(c)
After jeopardy attaches, a petition alleging delinquency shall not be amended to
include new charges of delinquency.
Part
7
15-11-530.
(a)
The court shall direct the issuance of a summons to a child and the child's
parent, guardian, or legal custodian requiring them to appear before the court
at the time fixed to answer the allegations of the petition. A copy of the
petition shall accompany the summons.
(b)
The summons shall state that a party shall be entitled to have an attorney in
the proceedings and that the court will appoint an attorney if the party is an
indigent person.
15-11-531.
(a)
If a party to be served with a summons is within this state and can be found,
the summons shall be served upon him or her personally as soon as possible and
at least 24 hours before the adjudication hearing.
(b)
If a party to be served is within this state and cannot be found but his or her
address is known or can be ascertained with reasonable diligence, the summons
shall be served upon such party at least five days before the adjudication
hearing by mailing him or her a copy by registered or certified mail or
statutory overnight delivery, return receipt requested.
(c)
If an individual to be served is outside this state but his or her address is
known or can be ascertained with reasonable diligence, notice of the summons
shall be made at least five days before the adjudication hearing either by
delivering a copy to such party personally or by mailing a copy to him or her by
registered or certified mail or statutory overnight delivery, return receipt
requested.
(d)
Service of the summons may be made by any suitable person under the direction of
the court.
(e)
The court may authorize payment from county funds of the costs of service and of
necessary travel expenses incurred by persons summoned or otherwise required to
appear at the hearing.
15-11-532.
(a)
In the event a parent, guardian, or other legal custodian of a child willfully
fails to appear personally at a hearing after being ordered to so appear or the
parent, guardian, or other legal custodian of the child willfully fails to bring
the child to a hearing after being so directed, the court may issue a rule nisi
against the person directing the person to appear before the court to show cause
why he or she should not be held in contempt of court.
(b)
If the parent, guardian, or legal custodian fails to appear in response to an
order to show cause, the court may issue a bench warrant directing that the
parent, guardian, or legal custodian be brought before the court without delay
to show cause why he or she should not be held in contempt and the court may
enter any order authorized by and in accordance with the provisions of Code
Section 15-11-31.
(c)
If a child 16 years of age or older fails to appear at a hearing after being
ordered to so appear, the court may issue a bench warrant requiring that the
child be brought before the court without delay and the court may enter any
order authorized by and in accordance with the provisions of Code Section
15-11-31.
(d)
If there is sworn testimony that a child 14 years of age but not yet 16 years of
age willfully refuses to appear at a hearing after being ordered to so appear,
the court may issue a bench warrant requiring that the child be brought before
the court and the court may enter any order authorized by and in accordance with
the provisions of Code Section 15-11-31.
Part
8
15-11-540.
A
delinquency petition shall be dismissed by the court upon the motion of the
prosecuting attorney setting forth that there is not sufficient evidence to
warrant further proceedings.
15-11-541.
(a)
Except as limited by subsection (d) of Code Section 15-11-542, in all cases in
which a child is charged with having committed a delinquent act, the child
shall, upon filing a motion for discovery with the court and serving a copy of
the motion to the prosecuting attorney, have full access to the following for
inspection, copying, or photographing:
(1)
A copy of the complaint;
(2)
A copy of the petition for delinquency;
(3)
The names and last known addresses and telephone numbers of each witness to the
occurrence which forms the basis of the charge;
(4)
A copy of any written statement made by the child or any witness that relates to
the testimony of a person whom the prosecuting attorney intends to call as a
witness;
(5)
A copy of any written statement made by any alleged coparticipant which the
prosecuting attorney intends to use at a hearing;
(6)
Transcriptions, recordings, and summaries of any oral statement of the child or
of any witness, except attorney work product;
(7)
Any scientific or other report which is intended to be introduced at the hearing
or that pertains to physical evidence which is intended to be
introduced;
(8)
Photographs and any physical evidence which are intended to be introduced at the
hearing; and
(9)
Copies of the police incident report and supplemental report, if any, regarding
the occurrence which forms the basis of the charge.
(b)
The prosecuting attorney shall disclose all evidence, known or that may become
known to him or her, favorable to the child and material either to guilt or
punishment.
(c)
If the child requests disclosure of information pursuant to subsection (a) of
this Code section, it shall be the duty of the child to promptly make the
following available for inspection, copying, or photographing to the prosecuting
attorney:
(1)
The names and last known addresses and telephone numbers of each witness to the
occurrence which forms the basis of the defense;
(2)
Any scientific or other report which is intended to be introduced at the hearing
or that pertains to physical evidence which is intended to be
introduced;
(3)
Photographs and any physical evidence which are intended to be introduced at the
hearing; and
(4)
A copy of any written statement made by any witness that relates to the
testimony of a person whom the child intends to call as a witness.
(d)
A request for discovery or reciprocal discovery shall be complied with promptly
and not later than 48 hours prior to the adjudication hearing, except when later
compliance is made necessary by the timing of the request. If the request for
discovery is made fewer than 48 hours prior to the adjudication hearing, the
discovery response shall be produced in a timely manner.
(e)
Any material or information furnished to the child pursuant to a discovery
request shall remain in the exclusive custody of the child and shall only be
used during the pendency of the case and shall be subject to such other terms
and conditions as the court may provide.
15-11-542.
(a)
If a request for discovery is refused, application may be made to the court for
a written order granting discovery.
(b)
Motions to compel discovery shall certify that a request for discovery was made
and was refused.
(c)
An order granting discovery shall require reciprocal discovery.
(d)
The court may deny, in whole or in part, or otherwise limit or set conditions
concerning discovery upon sufficient showing by a person or entity to whom a
request for discovery is made that disclosure of the information
would:
(1)
Jeopardize the safety of a party, witness, or confidential
informant;
(2)
Create a substantial threat of physical or economic harm to a witness or other
person;
(3)
Endanger the existence of physical evidence;
(4)
Disclose privileged information; or
(5)
Impede the criminal prosecution of a child who is being prosecuted as an adult
or the prosecution of an adult charged with an offense arising from the same
transaction or occurrence.
15-11-543.
(a)
Upon written request by the prosecuting attorney stating the time, date, and
place at which the alleged delinquent act was committed, the child shall serve
upon the prosecuting attorney a written notice of the child's intention to offer
a defense of alibi.
(b)
The notice shall state the specific place or places at which the child claims to
have been at the time of the alleged delinquent act and the names, addresses,
dates of birth, and telephone numbers of the witnesses, if known to the child,
upon whom the child intends to rely to establish the child's alibi, unless
previously supplied.
(c)
A request for alibi evidence shall be complied with promptly and not later than
48 hours prior to the adjudication hearing, except when later compliance is made
necessary by the timing of the request. If the request for alibi evidence is
made fewer than 48 hours prior to the adjudication hearing, the alibi evidence
shall be produced in a timely manner.
(d)
If the defendant withdraws the notice of intention to rely upon an alibi
defense, the notice and intention to rely upon an alibi defense shall not be
admissible; provided, however, that the prosecuting attorney or entity
prosecuting the case may offer any other evidence regarding alibi.
(e)
The prosecuting attorney shall serve upon the child a written notice stating the
names, addresses, dates of birth, and telephone numbers of the witnesses, if
known to the state, upon whom the state intends to rely to rebut the child's
evidence of alibi, unless previously supplied.
15-11-544.
If,
subsequent to providing a discovery response, the existence of additional
evidence is found, it shall be promptly provided to the state or child making
the discovery request.
15-11-545.
Nothing
contained in the provisions governing discovery procedure under this part shall
prohibit the court from ordering the disclosure of any information that the
court deems necessary and appropriate for proper adjudication.
15-11-546.
If
at any time during the course of the proceedings it is brought to the attention
of the court that a person or entity has failed to comply with a discovery
request, the court may grant a continuance, prohibit the party from introducing
in evidence the information not disclosed, or enter such other order as the
court deems just under the circumstances.
Part
9
15-11-560.
(a)
Except as provided in subsection (b) of this Code section, the court shall have
concurrent jurisdiction with the superior court over a child who is alleged to
have committed a delinquent act which would be considered a crime if tried in a
superior court and for which an adult may be punished by loss of life,
imprisonment for life without possibility of parole, or confinement for life in
a penal institution.
(b)
The superior court shall have exclusive original jurisdiction over the trial of
any child 13 to 17 years of age who is alleged to have committed any of the
following offenses:
(1)
Murder;
(2)
Voluntary manslaughter;
(3)
Rape;
(4)
Aggravated sodomy;
(5)
Aggravated child molestation;
(6)
Aggravated sexual battery; or
(7)
Armed robbery if committed with a firearm.
(c)
The granting of bail or pretrial release of a child charged with an offense
enumerated in subsection (b) of this Code section shall be governed by the
provisions of Code Section 17-6-1.
(d)
At any time before indictment, the district attorney may, after investigation
and for cause, decline prosecution in the superior court of a child 13 to 17
years of age alleged to have committed an offense specified in subsection (b) of
this Code section. Upon declining such prosecution in the superior court, the
district attorney shall immediately cause a petition to be filed in the
appropriate juvenile court for adjudication. Any case transferred by the
district attorney to the juvenile court pursuant to this subsection shall be
subject to the designated felony provisions of Code Section 15-11-602 and the
transfer of the case from superior court to juvenile court shall constitute
notice to the child that such case is subject to the designated felony
provisions of Code Section 15-11-602.
(e)
After indictment, the superior court may after investigation and for
extraordinary cause transfer any case involving a child 13 to 17 years of age
alleged to have committed any offense enumerated in paragraph (2), (4), (5), or
(6) of subsection (b) of this Code section. Any such transfer shall be
appealable by the State of Georgia pursuant to Code Section 5-7-1. Upon such a
transfer by the superior court, jurisdiction shall vest in the juvenile court
and jurisdiction of the superior court shall terminate. Any case transferred by
the superior court to the juvenile court pursuant to this subsection shall be
subject to the designated felony provisions of Code Section 15-11-602 and the
transfer of the case from superior court to juvenile court shall constitute
notice to the child that such case is subject to the designated felony
provisions of Code Section 15-11-602.
(f)
The superior court may transfer any case involving a child 13 to 17 years of age
alleged to have committed any offense enumerated in subsection (b) of this Code
section and convicted of a lesser included offense not included in subsection
(b) of this Code section to the juvenile court of the county of the child's
residence for disposition. Upon such a transfer by the superior court,
jurisdiction shall vest in the juvenile court and jurisdiction of the superior
court shall terminate.
(g)
Within 30 days of any proceeding in which a child 13 to 17 years of age is
convicted of certain offenses over which the superior court has original
jurisdiction as provided in subsection (b) of this Code section or adjudicated
delinquent on the basis of conduct which if committed by an adult would
constitute such offenses, the superior court shall provide written notice to the
school superintendent or his or her designee of the school in which such child
is enrolled or, if the information is known, of the school in which such child
plans to be enrolled at a future date. Such notice shall include the specific
criminal offense that such child committed. A local school system to which the
child is assigned may request further information from the court's
file.
15-11-561.
(a)
After a petition alleging delinquency has been filed but before the adjudication
hearing, on its own motion or on a motion by the prosecuting attorney, the court
may convene a hearing to determine whether to transfer the offense to the
appropriate superior court for criminal trial if the court determines
that:
(1)
There is probable cause to believe that the child committed the alleged
offense;
(2)
The child is not committable to an institution for the developmentally disabled
or mentally ill; and
(3)
The petition alleges that the child:
(A)
Was at least 15 years of age at the time of the commission of the offense and
committed an act which would be a felony if committed by an adult;
or
(B)
Was 13 or 14 years of age and either committed an act for which the punishment
is loss of life or confinement for life in a penal institution or committed
aggravated battery resulting in serious bodily injury to a victim.
(b)
At least three days prior to the scheduled transfer hearing, written notice
shall be given to the child and the child's parent, guardian, or legal
custodian. The notice shall contain a statement that the purpose of the hearing
is to determine whether the child is to be tried in the juvenile court or
transferred for trial as an adult in superior court. The child may request and
the court shall grant a continuance to prepare for the transfer
hearing.
(c)
After consideration of a probation report and any other evidence the court deems
relevant, including any evidence offered by the child, the court may determine
that because of the seriousness of the offense or the child's prior record, the
welfare of the community requires that criminal proceedings against the child be
instituted.
(d)
No child, either before or after reaching age 17 years of age shall be
prosecuted in superior court for an offense committed before the child turned
17, unless the case has been transferred as provided in this part. In addition,
no child shall be subject to criminal prosecution at any time for an offense
arising out of a criminal transaction for which the juvenile court retained
jurisdiction in its transfer order.
15-11-562.
(a)
The criteria which the court shall consider in determining whether to transfer
the child to superior court includes, but shall not be limited to:
(1)
The age of the child;
(2)
The seriousness of the alleged offense, especially if personal injury
resulted;
(3)
Whether the protection of the community requires transfer of
jurisdiction;
(4)
Whether the alleged offense involved violence or was committed in an aggressive
or premeditated manner;
(5)
The culpability of the child including the child's level of planning and
participation in the alleged offense;
(6)
Whether the alleged offense is a part of a repetitive pattern of offenses which
indicates that the child may be beyond rehabilitation in the juvenile justice
system;
(7)
The record and history of the child, including experience with the juvenile
justice system, other courts, supervision, commitments to juvenile institutions,
and other placements;
(8)
The sophistication and maturity of the child as determined by consideration of
the child's home and environmental situation, emotional condition, and pattern
of living;
(9)
The program and facilities available to the juvenile court in considering
disposition; and
(10)
Whether or not the child can benefit from the treatment or rehabilitative
programs available to the juvenile court.
(b)
The probation officer shall prepare a written report developing fully all
available information relevant to the transfer criteria. The probation officer
shall submit such report to the parties and the court as soon as practicable but
not later than 24 hours before the scheduled hearing. The child and the
prosecuting attorney shall have the right to review such report and
cross-examine the individual making such report.
(c)
The court may order a transfer evaluation of the child's clinical status as it
may impact the criteria in subsection (a) of this Code section. The transfer
evaluation shall be completed by DBHDD or by a licensed psychologist or
psychiatrist. If ordered to be performed by DBHDD, the transfer evaluation
shall be completed by a DBHDD forensic evaluator. Statements made by the child
in a transfer evaluation shall only be admissible into evidence in an
adjudication hearing or in a criminal proceeding as provided by Code Sections
15-11-479 and 15-11-563.
15-11-563.
Statements
made by the child at the transfer hearing shall not be admissible against the
child over objection in the criminal proceedings if transfer is ordered except
as impeachment or rebuttal evidence.
15-11-564.
(a)
The decision of the court regarding transfer of the case shall only be an
interlocutory judgment which either the child or the prosecuting attorney, or
both, have the right to have reviewed by the Court of Appeals.
(b)
The pendency of an interlocutory appeal shall stay criminal proceedings in
superior court. A child transferred for trial as an adult in superior court
shall be detained only in those places authorized for the preadjudication
detention of a child.
15-11-565.
(a)
Prior to the entry of a judgment ordering a child's transfer or during the
pendency of an appeal of a judgment ordering a child's transfer, the child shall
be detained only in those places authorized for the preadjudication detention of
a child.
(b)
After the entry of a judgment ordering transfer, a child shall be detained only
in those places authorized for the detention of a child until the child reaches
17 years of age.
15-11-566.
(a)
If the court decides to transfer the child for trial in superior court, it shall
dismiss the juvenile court petition alleging delinquency, set forth the offense
or offenses which are being transferred, and make the following findings of fact
in its dismissal order:
(1)
That the court had jurisdiction of the cause and the parties;
(2)
That the child was represented by an attorney; and
(3)
That the hearing was held in the presence of the child and the child's
attorney.
(b)
The dismissal order shall also recount the reasons underlying the decision to
transfer jurisdiction.
(c)
A dismissal of the petition alleging delinquency terminates the jurisdiction of
the juvenile court over the child as to those offenses which are transferred.
If the petition alleging delinquency alleges multiple offenses that constitute a
single criminal transaction, the court shall either retain or transfer all
offenses relating to a single criminal transaction.
(d)
Once juvenile court jurisdiction is terminated, the superior court shall retain
jurisdiction even though, thereafter, the child pleads guilty to, or is
convicted of, a lesser included offense. The plea to, or conviction of, a
lesser included offense shall not revest juvenile jurisdiction over the
child.
(e)
A copy of the petition alleging delinquency and order of dismissal shall be sent
to the district attorney of the judicial circuit in which the proceeding is
taking place.
(f)
If the court decides not to transfer the child for trial in superior court, it
shall set a date for an adjudication hearing in juvenile court on the petition
alleging delinquency.
15-11-567.
(a)
Except in those cases in which the superior court has exclusive original
jurisdiction or juvenile court jurisdiction has been terminated and the child
has been transferred to superior court, if it appears to any court in a criminal
proceeding or a quasi-criminal proceeding that the accused is a child, the case
shall forthwith be transferred to the juvenile court together with a copy of the
accusatory pleading and all other papers, documents, and transcripts of
testimony relating to the case.
(b)
The transferring court shall order that the child be taken forthwith to the
juvenile court or to a place of detention designated by the court or shall
release him or her to the custody of his or her parent, guardian, legal
custodian, or other person legally responsible for him or her to be brought
before the juvenile court at a time designated by that court. The accusatory
pleading may not serve in lieu of a petition alleging delinquency in the
juvenile court.
Part
10
15-11-580.
(a)
At the commencement of the adjudication hearing, the court shall address the
child, in language understandable to the child, and determine whether the child
is capable of understanding statements about his or her rights under this
chapter.
(b)
If a child is capable, the court shall inquire how the child responds to the
allegations of the delinquency petition. The child may:
(1)
Deny the allegations of such petition, in which case the court shall proceed to
hear evidence on such petition; or
(2)
Admit the allegations of such petition, in which case the court shall further
inquire to determine whether there is a factual basis for adjudication. If so,
the court may then adjudge the child to have committed a delinquent
act.
(c)
If the child stands mute, refuses to answer, or answers evasively, the court
shall enter a denial of the allegations.
15-11-581.
The
state shall have the burden of proving the allegations of a delinquency petition
beyond a reasonable doubt.
15-11-582.
(a)
The court shall fix a time for the adjudication hearing. If the child is in
detention, the hearing shall be scheduled to be held no later than ten days
after the filing of the delinquency petition. If the child is not in detention,
the hearing shall be scheduled to be held no later than 60 days after the filing
of such petition.
(b)
Adjudication hearings shall be conducted:
(1)
By the court without a jury;
(2)
In accordance with Title 24 and Title 17; and
(3)
In language understandable to the child and participants, to the fullest extent
practicable.
(c)
The court shall determine if the allegations of the petition alleging
delinquency are admitted or denied in accordance with the provisions of Code
Section 15-11-580.
(d)
After hearing all of the evidence, the court shall make and record its findings
on whether the delinquent acts ascribed to the child were committed by the
child. If the court finds that the allegations of delinquency have not been
established, it shall dismiss the delinquency petition and order the child
released from any detention or legal custody imposed in connection with the
proceedings.
(e)
The court shall make a finding that the child has committed a delinquent act
based on a valid admission made in open court of the allegations of the
delinquency petition or on the basis of proof beyond a reasonable doubt. If the
court finds that the child has committed a delinquent act, the court may proceed
immediately or at a postponed hearing to make disposition of the
case.
Part
11
15-11-590.
(a)
After an adjudication that the child has committed a delinquent act, the court
may direct that a written predisposition investigation report be prepared by the
probation officer or other person designated by the court.
(b)
The predisposition investigation report shall contain information about the
child's characteristics, family, environment, and the circumstances affecting
the child's behavior as may be helpful in determining the need for treatment or
rehabilitation and a proper disposition of the case, including but not limited
to:
(1)
A summary of the facts with respect to the conduct of the child that led to the
adjudication;
(2)
The sophistication and maturity of the child;
(3)
A summary of the child's home environment, family relationships, and
background;
(4)
A summary of the child's prior contacts with the juvenile court and law
enforcement agencies, including the disposition following each contact and the
reasons therefor;
(5)
A summary of the child's educational status, including, but not limited to, the
child's strengths, abilities, and special educational needs. The report shall
identify appropriate educational and vocational goals for the child. Examples
of appropriate goals include:
(A)
Attainment of a high school diploma or its equivalent;
(B)
Successful completion of literacy courses;
(C)
Successful completion of vocational courses;
(D)
Successful attendance and completion of the child's current grade if enrolled in
school; or
(E)
Enrollment in an apprenticeship or a similar program;
(6)
A summary of the results and recommendations of any significant physical and
mental examinations;
(7)
The seriousness of the offense to the community;
(8)
The nature of the offense; and
(9)
Whether the offense was against persons or against property with greater weight
being given to offenses against persons.
(c)
If the court has ordered a physical or mental examination to be conducted, the
report shall include a copy of the results of the examination.
(d)
All information shall be presented in a concise and factual manner. The report
shall indicate the sources of information in the report.
(e)
The original report and any other material to be disclosed shall be furnished to
the court, and copies shall be furnished to the child's attorney and to the
prosecuting attorney at least five days prior to the disposition
hearing.
Part
12
15-11-600.
(a)
After a finding that a child has committed a delinquent act, the court shall
conduct a hearing for the purpose of hearing evidence as to whether the child is
in need of treatment, rehabilitation, or supervision and shall make and file its
findings thereon.
(b)
The court may proceed immediately to the disposition hearing after the
adjudication hearing or conduct the disposition hearing within 30 days of the
adjudication hearing. The hearing may occur later than 30 days after the
adjudication hearing only if the court makes and files written findings of fact
explaining the need for delay.
(c)
In the absence of evidence to the contrary, evidence sufficient to warrant a
finding that acts have been committed which constitute a felony shall also be
sufficient to sustain a finding that the child is in need of treatment or
rehabilitation.
(d)
If the court finds that the child is not in need of treatment, rehabilitation,
or supervision, it shall dismiss the proceeding and discharge the child from any
detention or other restriction previously ordered.
(e)
If the court finds that the child is in need of supervision but not of treatment
or rehabilitation, it shall find that the child is a child in need of services
and enter any disposition authorized by Code Section 15-11-442.
(f)
The court may consider any evidence, including hearsay evidence, that the court
finds to be relevant, reliable, and necessary to determine the needs of the
child and the most appropriate disposition.
(g)(1)
Prior to the disposition hearing, and upon request, the parties and their
attorneys shall be afforded an opportunity to examine any written reports
received by the court.
(2)
Portions of such reports not relied on by the court in reaching its decision
which, if revealed would be prejudicial to the interests of the child or any
party to the proceeding, may be withheld in the court's discretion.
Confidential sources of information need not be disclosed.
(3)
Parties and their attorneys shall be given the opportunity to controvert written
reports received by the court and to cross-examine individuals making such
reports.
(h)
In scheduling investigations and hearings, the court shall give priority to
proceedings in which a child is in detention or has otherwise been removed from
his or her home.
15-11-601.
(a)
At the conclusion of the disposition hearing, if the child is determined to be
in need of treatment or rehabilitation, the court shall enter the least
restrictive disposition order appropriate in view of the seriousness of the
delinquent act, the child's culpability as indicated by the circumstances of the
particular case, the age of the child, the child's prior record, and the child's
strengths and needs. The court may make any of the following orders of
disposition, or combination of them, best suited to the child's treatment,
rehabilitation, and welfare:
(1)
Any order authorized for the disposition of a dependent child other than
placement in the temporary custody of DFCS unless the child is also found to be
a dependent child;
(2)
An order requiring the child and the child's parent, guardian, or legal
custodian to participate in counseling or in counsel and advice. Such
counseling and counsel and advice may be provided by the court, court personnel,
probation officers, professional counselors or social workers, psychologists,
physicians, qualified volunteers, or appropriate public, private, or volunteer
agencies and shall be designed to assist in deterring future delinquent acts or
other conduct or conditions which would be harmful to the child or
society;
(3)
An order placing the child on probation under conditions and limitations the
court prescribes and which may include the probation management program. The
court may place a child on probation under the supervision of:
(A)
The probation officer of the court or the court of another state;
(B)
Any public agency authorized by law to receive and provide care for the child;
or
(C)
Any community rehabilitation center if its chief executive officer has
acknowledged in writing its willingness to accept the responsibility for the
supervision of the child;
(4)
In any case in which a child who has not achieved a high school diploma or the
equivalent is placed on probation, the court shall consider and may order as a
condition of probation that the child pursue a course of study designed to lead
to achieving a high school diploma or the equivalent;
(5)
An order requiring that the child perform community service in a manner
prescribed by the court and under the supervision of an individual designated by
the court;
(6)
An order requiring that the child make restitution. Such order may remain in
force and effect simultaneously with another order of the court, including, but
not limited to an order of commitment to DJJ. However, no order of restitution
shall be enforced while the child is in placement at a youth development center
unless the commissioner of juvenile justice certifies that a restitution program
is available at such center. Payment of funds shall be made by the child or the
child's family or employer directly to the clerk of the juvenile court entering
the order or to another employee of such court designated by the judge, and that
court shall disburse such funds in the manner authorized in the order. While an
order requiring restitution is in effect, the court may transfer enforcement of
its order to:
(A)
DJJ;
(B)
The juvenile court of the county of the child's residence and its probation
staff, if the child changes his or her place of residence; or
(C)
The superior court once the child reaches 17 years of age if the child
thereafter comes under the jurisdiction of such court;
(7)
An order requiring the child remit to the general fund of the county a sum not
to exceed the maximum fine applicable to an adult for commission of any of the
following offenses:
(A)
Any felony in the commission of which a motor vehicle is used;
(B)
Driving under the influence of alcohol or drugs;
(C)
Driving without proof of minimum required motor vehicle insurance;
(D)
Fraudulent or fictitious use of a driver's license;
(E)
Hit and run or leaving the scene of an accident;
(F)
Homicide by vehicle;
(G)
Manslaughter resulting from the operation of a motor vehicle;
(H)
Possession of controlled substances or marijuana;
(I)
Racing on highways or streets;
(J)
Using a motor vehicle in fleeing or attempting to elude an officer;
or
(K)
Any violation of the provisions contained in Title 40 which is properly
adjudicated as a delinquent act;
(8)
An order suspending the child's driver's license for a period not to exceed the
date on which the child reaches 18 years of age or, in the case of a child who
does not have a driver's license, an order prohibiting the issuance of a
driver's license to the child for a period not to exceed the date on which the
child reaches 18 years of age. The court shall retain the driver's license
during such period of suspension and return it to the child at the end of such
period. The court shall notify the Department of Driver Services of any actions
taken pursuant to this paragraph;
(9)
An order placing the child in an institution, camp, or other facility for
delinquent children operated under the direction of the court or other local
public authority; or
(10)
An order committing the child to DJJ.
(b)(1)
This subsection shall apply to cases involving:
(A)
An offense that would be a felony if committed by an adult; or
(B)
An offense that would be a misdemeanor of a high and aggravated nature if
committed by an adult and involving bodily injury or harm or substantial
likelihood of bodily injury or harm.
(2)
In addition to any other treatment or rehabilitation, the court may order the
child to serve up to a maximum of 30 days in a youth development center or,
after assessment and with the court's approval, in a treatment program provided
by DJJ or the juvenile court.
(3)
On and after July 1, 2013, the maximum number of days that the court may order a
child to serve in a youth development center under this subsection shall be
increased to 60 days.
(c)
A child ordered to a youth development center under subsection (b) of this Code
section and detained after the adjudication hearing in a secure facility pending
placement in a youth development center shall be given credit for time served in
the secured facility awaiting placement.
(d)
Notwithstanding the provisions of subsections (a) and (b) of this Code section,
if a child is found to have committed the offense of driving under the
influence, the court may make an order of disposition which, for purposes of the
child's rehabilitation, imposes the same penalty, period of confinement, and
period of community service which are applicable to an adult convicted of
violating Code Section 40-6-391. The child shall serve any period of
confinement in an institution, camp, or other facility for delinquent children
operated under the direction of the court or other local public authority or, if
no such facility is available, in a regional youth detention center. A previous
finding that the child committed the offense of driving under the influence
shall be deemed a previous conviction for purposes of this subsection. The
court shall have the same authority and discretion regarding allowing service of
confinement on weekends or during nonworking hours as is provided under
subsection (a) of Code Section 17-10-3.1.
(e)
The child shall be given adequate information concerning the obligations and
conditions imposed upon him or her by the disposition ordered by the court and
the consequences of failure to meet such obligations and conditions. Such
information shall be given in terms understandable to the child to enable the
child to conform his or her conduct to the requirements of the
disposition.
15-11-602.
(a)
When a child is found to have committed a designated felony act, the order of
disposition shall be made within 20 days of the conclusion of the disposition
hearing. The court may make one of the following orders of disposition best
suited to provide for the rehabilitation of the child and the protection of the
community:
(1)
Any order authorized by Code Section 15-11-601 if the court finds that
restrictive custody is not required; or
(2)
An order placing the child in restrictive custody.
(b)
Every order shall include a finding, based on a preponderance of the evidence,
of whether the child requires restrictive custody. In determining whether
restrictive custody is required, the court shall consider and make specific
written findings of fact as to each of the following factors:
(1)
The age and maturity of the child;
(2)
The needs and best interests of the child;
(3)
The record and background of the child including but not limited to information
disclosed in the probation investigation, diagnostic assessment, school records,
and dependency records;
(4)
The nature and circumstances of the offense, including whether any injury
involved was inflicted by the child or another participant, the culpability of
the child or another participant in planning and carrying out of the offense,
and the existence of any aggravating or mitigating factors;
(5)
The need for protection of the community; and
(6)
The age and physical condition of the victim.
(c)
A restrictive custody order may provide that:
(1)
The child be placed in DJJ custody for an initial period of up to five
years;
(2)
The child be confined in a youth development center for a period set by the
order, not to be less than six months nor to exceed 60 months. All time spent
in secure detention subsequent to the date of the disposition hearing and prior
to placement in a youth development center shall be counted toward the period
set by the order;
(3)
After a period of confinement set by the court, the child may be placed under
intensive supervision not to exceed 12 months; and
(4)
If the child is confined in a youth development center, the child may not be
released or transferred to a nonsecure facility unless by court order pursuant
to Code Section 15-11-32. Such child may not be released from intensive
supervision unless by court order and with the written approval of the
commissioner of juvenile justice or a designated deputy. All home visits shall
be carefully arranged and monitored while a child is confined in a youth
development center.
(d)
During the child's placement order or any extension of the restrictive custody
order:
(1)
While in a youth development center, the child shall be permitted to participate
in all youth development center services and programs and shall be eligible to
receive special medical and treatment services, regardless of the time of
confinement in the youth development center. A child may be eligible to
participate in programs sponsored by the youth development center including
community work programs and sheltered workshops under the general supervision of
a youth development center staff outside of the youth development center. In
cooperation and coordination with the department, the child shall be allowed to
participate in state sponsored programs for evaluation and services under the
Division of Rehabilitation Services of the Department of Labor and
DBHDD;
(2)(A)
A child adjudicated to have committed a designated felony act shall not be
discharged from restrictive custody prior to the period of time provided in the
court's order unless a motion therefor is granted by the court. After a court
order denying a motion to discharge a child from restrictive custody, a
subsequent such motion shall not be filed until at least six months have
elapsed. Notwithstanding Code Section 15-11-32, DJJ or any party may file a
motion with the court seeking the child's release from restrictive custody, an
order modifying the court's order requiring restrictive custody, or termination
of an order of disposition for a child committed for a designated felony
act.
(B)
All motions filed under this paragraph shall be accompanied by a written
recommendation for release, modification, or termination from the child's DJJ
counselor or placement supervisor, filed in the court that committed the child
to DJJ, and served on the prosecuting attorney for such
jurisdiction.
(C)
At least 14 days prior to the date of the hearing on the motion, the moving
party shall serve a copy of the motion, by first-class mail, upon the victim of
the designated felony act, if any, at the victim's last known address, the
child's attorney, if any, the child's parents or guardian, and the law
enforcement agency that investigated the designated felony act. In addition to
the parties to the motion, the prosecuting attorney and the victim, if any,
shall have a right to be heard and to present evidence to the court relative to
any motion filed pursuant to this paragraph.
(D)
A court hearing a motion filed under this paragraph shall determine the
disposition of the child based upon a preponderance of the evidence. In
determining whether a motion for release from custody, modification of a
restrictive custody order, or termination of an order of disposition should be
granted or denied due to changed circumstances, the court shall be required to
find that the child has been rehabilitated and shall consider and make specific
findings of fact as to each of the following factors:
(i)
The needs and best interests of the child;
(ii)
The record and background of the child, including the disciplinary history of
the child during the period of restrictive custody and subsequent offense
history;
(iii)
The academic progress of the child during the period of restrictive custody,
including, if the child is receiving services under the federal Individuals with
Disabilities Education Act, a review of the child's Individualized Education
Program (IEP) and the child's progress toward IEP goals;
(iv)
The victim's impact statement submitted for purposes of a hearing conducted
pursuant to this paragraph;
(v)
The safety risk to the community if the child is released; and
(vi)
The child's acknowledgment to the court and victim, if any, of his or her
conduct being the cause of harm to others; and
(3)
Unless otherwise specified in the order, DJJ shall report in writing to the
court not less than once every six months during the placement on the status,
adjustment, and progress of the child.
(e)
The period of placement in a youth development center may be extended on motion
by DJJ, after a disposition hearing, for two additional periods not to exceed 12
months each, provided that no placement or extension of custody may continue
beyond the child's twenty-first birthday.
(f)
The court shall identify the school last attended by the child and the school
which the child intends to attend and shall transmit a copy of the adjudication
to the principals of both schools within 15 days of the adjudication. Such
information shall be subject to notification, distribution, and requirements as
provided in Code Section 20-2-671.
15-11-603.
(a)
As part of any order of disposition regarding a child adjudged to have committed
a delinquent act constituting an AIDS transmitting crime, the court may in its
discretion and after conferring with the director of the health district, order
that the child submit to an HIV test within 45 days following the adjudication
of delinquency. The court shall mail DJJ a copy of the order within three days
following its issuance.
(b)
Within 30 days following receipt of the copy of the order, DJJ shall arrange for
the HIV test for the child.
(c)
Any child placed in the custody and control of DJJ shall be HIV tested in
accordance with DJJ's policies and procedures.
(d)
If a child is determined to be infected with HIV, that determination and the
name of the child shall be deemed to be AIDS confidential information and shall
only be reported to:
(1)
DJJ or the Department of Corrections, as the case may be, and the Department of
Public Health, which may disclose the name of the child if necessary to provide
counseling and which shall provide counseling to each victim of the AIDS
transmitting crime or to any parent, guardian, or legal custodian of any victim
who is a minor or incompetent person, if DJJ or the Department of Corrections
believes the crime posed a reasonable risk of transmitting HIV to the victim.
Counseling shall include providing the person with information and explanations
medically appropriate for such person which may include all or part of the
following: accurate information regarding AIDS and HIV; an explanation of
behaviors that reduce the risk of transmitting AIDS and HIV; an explanation of
the confidentiality of information relating to AIDS diagnoses and HIV tests; an
explanation of information regarding both social and medical implications of HIV
tests; and disclosure of commonly recognized treatment or treatments for AIDS
and HIV;
(2)
The court which ordered the HIV test; and
(3)
Those persons in charge of any facility to which the child has been confined by
order of the court. In addition to any other restrictions regarding the
confinement of a child, a child determined to be an HIV infected person may be
confined separately from any other children in that facility other than those
who have been determined to be infected with HIV if:
(A)
That child is reasonably believed to be sexually active while
confined;
(B)
That child is reasonably believed to be sexually predatory either during or
prior to detention; or
(C)
The commissioner of juvenile justice reasonably determines that other
circumstances or conditions exist which indicate that separate confinement would
be warranted.
15-11-604.
(a)
A child found to have committed a delinquent act shall be given credit for each
day spent in secure confinement awaiting adjudication and for each day spent in
secure confinement, in connection with and resulting from a court order entered
in the proceedings for which the disposition was imposed, and in any institution
or facility for treatment or examination of a physical or mental disability.
Such credit shall be applied toward the child's disposition.
(b)
Subsection (a) of this Code section shall apply to dispositions for all
offenses, whether classified as violations, misdemeanors, or
felonies.
15-11-605.
(a)
In addition to any other terms or conditions of probation provided for under
this article, the court may require that children who receive a disposition of
probation:
(1)
Be ordered to a probation management program; or
(2)
Be ordered to a secure probation sanctions program by a probation officer or
hearing officer.
(b)
Where a child has been ordered to a probation management program or secure
probation sanctions program, the court shall retain jurisdiction throughout the
period of the probated sentence and may modify or revoke any part of a probated
sentence as provided in Code Section 15-11-32.
(c)(1)
DJJ in jurisdictions where DJJ is authorized to provide probation supervision,
or the county juvenile probation office in jurisdictions where probation
supervision is provided directly by the county, as applicable, shall be
authorized to establish rules and regulations for graduated sanctions as an
alternative to judicial modifications or revocations for probationers who
violate the terms and conditions of a probation management program.
(2)
DJJ or the county juvenile probation office, as applicable, shall not sanction
probationers for violations of conditions of probation if the court has
expressed an intention in a written order that such violations be heard by the
court.
(d)
DJJ or the county juvenile probation office, as applicable, shall impose only
those restrictions equal to or less restrictive than the maximum sanction
established by the court.
(e)
The secure probation sanctions program shall be established by DJJ. Exclusion
of a child from a secure probation sanctions program otherwise authorized by
this Code section to enter such program shall be mutually agreed upon by the
Council of Juvenile Court Judges and DJJ. The secure probation sanctions
program shall be available to the juvenile courts to the extent that each secure
facility has capacity for such offenders within its facilities. Prior to
reaching full capacity, DJJ shall inform the various juvenile courts of its
capacity constraints.
(f)(1)
When requesting the secure probation sanctions program, probation officers
supervising a child under a probation management program shall provide an
affidavit to the court specifying:
(A)
The elements of the child's probation program;
(B)
The child's failures to respond to graduated sanctions in the community;
and
(C)
The child's number of violations and the nature of each violation.
(2)
If a probation officer fails to document the violations and specify how the
child has failed to complete a probation management program, such child shall be
ineligible to enter the secure probation sanctions program.
(3)
A child may enter the secure probation sanctions program if ordered by the court
and:
(A)
The probation officer has complied with the provisions of paragraph (1) of this
subsection and the criteria set by the department for entrance into such program
and the child has had three or more violations of probation; or
(B)
A child in a probation management program and his or her parent or guardian, or
a child in such program and his or her attorney, admit to three or more
violations of such program and sign a waiver accepting the sanction proposed by
the probation officer.
(4)
Each new violation of a condition of a probated sentence may result in a child
being sentenced to the secure probation sanctions program; provided, however,
that if a child is sentenced to the secure probation sanctions program and
completes all program components in the seven, 14, and 30 day programs, such
child shall be ineligible to attend the secure probation sanctions program for a
future violation of a condition of the same probated sentence.
(g)(1)
When a violation of a condition of probation occurs, a child may have an
administrative hearing conducted by a hearing officer. If the hearing officer
determines by a preponderance of the evidence that such child violated the
conditions of probation, the probation officer shall be authorized to impose
graduated sanctions. A child's failure to comply with a sanction imposed under
this paragraph shall constitute another violation of probation.
(2)
The hearing officer's decision shall be final unless such child files, within
five days of the service of such decision, a written demand with the hearing
officer for review of such decision. Such demand shall not stay the sanction
decision. The hearing officer shall issue a response to such demand within five
days of receiving such demand.
(3)
If the hearing officer insists on the sanction, such decision shall be final
unless the child files an appeal in the court that originally adjudicated the
child. Such appeal shall be filed within ten days of the date of the decision
of the hearing officer.
(4)
The appeal shall first be reviewed by the court upon the record. At the court's
discretion, a de novo hearing may be held on the decision. The filing of the
appeal shall not stay the sanction decision.
(5)
Where the court does not act on the appeal within 15 days of the date of the
filing of the appeal, the sanction decision shall be affirmed by operation of
law.
15-11-606.
An
order of disposition or adjudication shall not be a conviction of a crime and
shall not impose any civil disability ordinarily resulting from a conviction nor
operate to disqualify the child in any civil service application or
appointment.
15-11-607.
(a)
Except as otherwise provided in Code Section 15-11-602, an order of disposition
committing a child adjudicated delinquent to DJJ shall continue in force for two
years or until the child is sooner discharged by DJJ. The court which made the
order may extend its duration for a period not to exceed two years subject to
like discharge, if:
(1)
A hearing is held upon DJJ's motion prior to the expiration of the
order;
(2)
Reasonable notice of the factual basis of the motion and of the hearing and an
opportunity to be heard are given to the child and the parent, guardian, or
legal custodian; and
(3)
The court finds that the extension is necessary for the treatment or
rehabilitation of the child.
(b)
Any other order of disposition except an order of restitution as allowed by
paragraph (6) or (7) of subsection (a) of Code Section 15-11-601 shall continue
in force for not more than two years. An order of extension may be made
if:
(1)
A hearing is held prior to the expiration of the order upon motion of DJJ, the
prosecuting attorney, or on the court's own motion;
(2)
Reasonable notice of the factual basis of the motion and of the hearing and
opportunity to be heard are given to the parties affected;
(3)
The court finds that the extension is necessary to accomplish the purposes of
the order extended; and
(4)
The extension does not exceed two years from the expiration of the prior
order.
(c)
The court may terminate an order of disposition or an extension of such a
disposition order prior to its expiration, on its own motion or an application
of a party, if it appears to the court that the purposes of the order have been
accomplished.
(d)
When a child reaches 21 years of age, all orders affecting him or her then in
force terminate and he or she is discharged from further obligation or
control.
15-11-608.
(a)
An order granting probation to a child found to be delinquent may be revoked on
the ground that the conditions of probation have been violated.
(b)
Any violation of a condition of probation may be reported to the prosecuting
attorney who may file a motion in the court for revocation of probation. A
motion for revocation of probation shall contain specific factual allegations
constituting each violation of a condition of probation.
(c)
The motion for revocation of probation shall be served upon the child, his or
her attorney, and his or her parent, guardian, or legal custodian in accordance
with the provisions of Code Section 15-11-531.
(d)
If a child is taken into custody because of an alleged violation of probation,
the provisions governing the detention of a child shall apply.
(e)
A revocation hearing shall be scheduled to be held no later than 30 days after
the filing of such motion or, if the child has been detained as a result of the
filing of such motion for revocation, no later than ten days after the filing of
the motion.
(f)
If the court finds, beyond a reasonable doubt, that the child violated the terms
and conditions of probation, the court may:
(1)
Extend probation;
(2)
Impose additional conditions of probation;
(3)
Make any disposition that could have been made at the time probation was
imposed; or
(4)
Upon finding that graduated alternative sanctions have failed, order the child
to serve up to a maximum of 60 days in a youth development center or, after
assessment and with the court's approval, in a treatment program provided by DJJ
or the juvenile court.
(g)
In the case of a designated felony, if the court finds that the child violated
the terms and conditions of probation, the court shall reconsider and make
specific findings of fact as to each of the factors in subsection (b) of Code
Section 15-11-602 to determine whether restrictive custody is
required.
(h)
In the case of a designated felony, if the court finds, beyond a reasonable
doubt, that the child violated the terms and conditions of probation and that
the order granting probation to the child shall be revoked, the child shall be
given credit for time served on probation.
Part
13
15-11-620.
(a)
When a child is alleged to be both delinquent and dependent, the date the child
is considered to have entered foster care shall be the date of the first
judicial finding that the child has been subjected to child abuse or neglect or
the date that is 60 days after the date on which the child is removed from his
or her home, whichever is earlier.
(b)
If a child alleged or adjudicated to be delinquent is first placed in a
noneligible placement but is later placed in foster care within 60 days of the
child's removal from the home, then the date of entry into foster care shall be
60 days from the date of removal.
(c)
If a child is detained in a facility operated primarily for the detention of a
child determined to be delinquent pending placement in foster care and remains
detained for more than 60 days, then the date of entry into foster care shall be
the date the child is placed in foster care.
15-11-621.
The
periodic review hearing requirements under Code Sections 15-11-216, 15-11-217,
and 15-11-218 shall apply to proceedings involving a child alleged or
adjudicated to be delinquent and placed in foster care.
15-11-622.
(a)
The permanency plan requirements under Code Sections 15-11-230, 15-11-231, and
15-11-232 shall apply to proceedings involving a child alleged or adjudicated to
be delinquent and placed in foster care.
(b)
In addition to the compelling reasons set forth in Code Section 15-11-233 under
Article 3 of this chapter, a compelling reason for determining that filing
a termination of parental rights petition is not in the best interests of a
child alleged or adjudicated to be delinquent may include but shall not be
limited to:
(1)
The child's developmental needs require continued out-of-home placement for an
additional number of months, and the parent, guardian, or legal custodian has
cooperated with referrals, visitation, and family conferences, as well as
therapy;
(2)
The child is uncooperative with services or referrals; and
(3)
The length of the delinquency disposition affects the permanency
plan.
Part
14
15-11-630.
(a)
A juvenile traffic offense consists of a violation by a child of:
(1)
A law or local ordinance governing the operation of a moving motor vehicle upon
the streets or highways of this state or upon the waterways within or adjoining
this state; or
(2)
Any other motor vehicle traffic law or local ordinance if the child is taken
into custody and detained for its violation or is transferred to the juvenile
court by the court hearing the charge.
(b)
The following offenses shall be acts of delinquency and shall not be handled as
juvenile traffic offenses: aggressive driving, reckless driving, a four-point
speeding offense, homicide by vehicle, manslaughter resulting from the operation
of a vehicle, any felony in the commission of which a motor vehicle is used,
racing on highways and streets, using a motor vehicle in fleeing or attempting
to elude an officer, fraudulent or fictitious use of a driver's license, hit and
run or leaving the scene of an accident, driving under the influence of alcohol
or drugs, and any offense committed by an unlicensed driver under 16 years of
age.
(c)
A juvenile traffic offense shall not be an act of delinquency unless the case is
transferred to the delinquency calendar.
(d)
The summons, notice to appear, or other designation of a citation accusing a
child of committing a juvenile traffic offense constitutes the commencement of
the proceedings in the court of the county in which the alleged violation
occurred and serves in place of a summons and petition under this article.
These cases shall be filed and heard separately from other proceedings of the
court. If the child is taken into custody on the charge, Code Sections
15-11-503 and 15-11-505 shall apply. If the child is, or after commencement of
the proceedings becomes, a resident of another county of this state, the court
in the county where the alleged traffic offense occurred may retain jurisdiction
over the entire case.
(e)
The court shall fix a time for a hearing and shall give reasonable notice
thereof to the child and, if his or her address is known, to the parent,
guardian, or legal custodian. If the accusation made in the summons, notice to
appear, or other designation of a citation is denied, a hearing shall be held at
which the parties shall have the right to subpoena witnesses, present evidence,
cross-examine witnesses, and appear by their attorney. The hearing shall be
open to the public.
(f)
If the court finds on the admission of the child or upon the evidence that the
child committed the offense charged, it may make one or more of the following
orders:
(1)
Reprimand, counsel, or warn the child and the child's parent, guardian, or legal
custodian; provided, however, that this disposition order shall not be available
for any act of delinquency;
(2)
As a matter of probation or if the child is committed to the custody of the
state, order the Department of Driver Services to suspend the child's privilege
to drive under stated conditions and limitations for a period not to exceed 12
months;
(3)
Require the child to attend a traffic school approved by the Department of
Driver Services or a substance abuse clinic or program approved by either DBHDD
or the Council of Juvenile Court Judges for a reasonable period of
time;
(4)
Assess a fine and order the child to remit to the general fund of the county a
sum not exceeding the maximum applicable to an adult for a like offense. The
fine shall be subject to all additions and penalties as specified under this
title and Title 47;
(5)
Require the child to participate in a program of community service as specified
by the court;
(6)
Impose any sanction authorized by Code Section 15-11-442 or 15-11-601;
or
(7)
Place the child on probation subject to the conditions and limitations imposed
by Title 40 governing probation granted to adults for like offenses, but such
probation shall be supervised by the court.
(g)
In lieu of the preceding orders, if the evidence warrants, the court may
transfer the case to the delinquency calendar of the court and direct the filing
and service of a summons and delinquency petition.
(h)
Upon finding that the child has committed a juvenile traffic offense or an act
of delinquency which would be a violation of Title 40 if committed by an adult,
the court shall forward, within ten days, a report of the final adjudication and
disposition of the charge to the Department of Driver Services; provided,
however, that this procedure shall not be applicable to those cases which have
been dismissed or in which the child and the child's parent, guardian, or legal
custodian have been reprimanded, counseled, or warned by the court. The
Department of Driver Services shall record the adjudication and disposition of
the offense on the child's permanent record, and such adjudication and
disposition shall be deemed a conviction for the purpose of suspending or
revoking the individual's driver's license. Such record shall also be available
to law enforcement agencies and courts as are the permanent traffic records of
adults.
ARTICLE
8
15-11-650.
The
purpose of this article is to:
(1)
Set forth procedures for a determination of whether a child is incompetent to
proceed; and
(2)
Provide a mechanism for the development and implementation of competency
remediation services, when appropriate, including treatment, habilitation,
support, or supervision services.
15-11-651.
As
used in this article, the term:
(1)
'Competency remediation services' means outpatient interventions directed only
at facilitating the attainment of competence to proceed for a child found to be
incompetent to proceed. Such term may include mental health treatment to reduce
interfering symptoms, specialized psychoeducational programming, or a
combination of these interventions.
(2)
'Comprehensive services plan' shall have the same meaning as set forth in Code
Section 15-11-381.
(3)
'Developmental disability' shall have the same meaning as set forth in Code
Section 37-1-1.
(4)
'Incompetent to proceed' means lacking sufficient present ability to understand
the nature and object of the proceedings, to comprehend his or her own situation
in relation to the proceedings, and to assist his or her attorney in the
preparation and presentation of his or her case in all adjudication,
disposition, or transfer hearings. The child's age or immaturity may be used as
the basis for determining a child's competency.
(5)
'Mental competency proceedings' means hearings conducted to determine whether a
child is incompetent to proceed in adjudication, a disposition hearing, or a
transfer proceeding.
(6)
'Plan manager' shall have the same meaning as set forth in Code Section
15-11-381.
(7)
'Treatment facility' means a facility that receives patients for psychiatric
treatment as provided in Code Sections 37-3-80 through 37-3-84 and shall not
include a secure detention facility.
15-11-652.
(a)
If at any time after the filing of a petition alleging delinquency or that the
child is a child in need of services the court has reason to believe that the
child named in the petition may be incompetent to proceed, the court on its own
motion or on the motion of the attorney representing the child, any guardian ad
litem for the child, the child's parent, guardian, or legal custodian, or the
prosecuting attorney shall stay all proceedings relating to such petition and,
unless the court accepts a stipulation by the parties as to the child's
incompetency, shall order a competency evaluation of and report on the child's
mental condition.
(b)
When a delinquency petition is filed alleging a child under the age of 13 has
committed a serious violent felony, as defined in Code Section 17-10-6.1, the
court shall stay all delinquency proceedings relating to such petition and,
unless the court accepts a stipulation by the parties as to the child's
incompetency, shall order a competency evaluation and report concerning the
child's mental condition.
(c)
Any motion, notice of hearing, order, or other pleading relating to a child's
incompetency to proceed shall be served upon the child, the child's attorney,
the child's guardian ad litem, if any, the child's parent, guardian, or legal
custodian and the prosecuting attorney.
(d)
Prior to the administration of any evaluation, the court shall appoint an
attorney to represent a child if the child is not yet represented by an
attorney.
(e)
All time limits set forth in Articles 6 and 7 of this chapter for adjudication
and disposition of a delinquency or child in need of services proceeding shall
be tolled during the evaluation, adjudication, and disposition phases of the
mental competency proceeding and during provision of competency remediation
services.
15-11-653.
(a)
The court ordered evaluation and report shall be conducted by an examiner who
shall consider whether a child is incompetent to proceed. The court shall
provide the examiner with any law enforcement or court records necessary for
understanding the petition alleging delinquency. The attorney for the child and
the prosecuting attorney shall provide the examiner with any records from any
other available sources that are deemed necessary for the competency
evaluation.
(b)
The competency evaluation shall be performed on an outpatient basis; provided,
however, that if the child is in an out of home placement, the evaluation shall
be performed at the child's location.
(c)
An examiner who conducts the evaluation shall submit a written report to the
court within 30 days from receipt of the court order for evaluation. The court
may, in its discretion, grant the examiner an extension in filing such report.
The report shall contain the following:
(1)
The specific reason for the evaluation, as provided by the court or the party
requesting the evaluation;
(2)
The evaluation procedures used, including any psychometric instruments
administered, any records reviewed, and the identity of any persons
interviewed;
(3)
Any available pertinent background information;
(4)
The results of a mental status exam, including the diagnosis if any and
description of any psychiatric symptoms, cognitive deficiency, or
both;
(5)
A description of the child's abilities and deficits in the following mental
competency functions:
(A)
The ability to understand and appreciate the nature and object of the
proceedings;
(B)
The ability to comprehend his or her situation in relation to the proceedings;
and
(C)
The ability to assist his or her attorney in the preparation and presentation of
his or her case;
(6)
An opinion regarding the potential significance of the child's mental
competency, strengths, and deficits;
(7)
An opinion regarding whether or not the child should be considered incompetent
to proceed; and
(8)
A specific statement explaining the reasoning supporting the examiner's final
determination.
(d)
If, in the opinion of the examiner, the child should be considered incompetent
to proceed, the report shall also include the following:
(1)
An opinion as to whether the primary cause of incompetency to proceed is
immaturity, mental illness, developmental disability, or combination of mental
illness and developmental disability;
(2)
An opinion as to whether there is a substantial probability that the child will
attain the mental competency necessary to participate in adjudication, a
disposition hearing, or a transfer hearing in the foreseeable
future;
(3)
If the examiner believes that the child will attain mental competency,
recommendations for the general level and type of competency remediation
services necessary for significant deficits;
(4)
A recommendation as to the appropriate treatment or services;
(5)
When appropriate, recommendations for modifications of court procedure which may
help compensate for mental competency weaknesses; and
(6)
Any relevant medication history.
(e)
If the examiner determines that the child is currently competent because of
ongoing treatment with medication or other services, the report shall address
the necessity of continuing such treatment and shall include a description of
any limitation such treatment may have on competency.
(f)
Copies of the written evaluation report shall be provided by the court to the
attorney representing the child, the prosecuting attorney or a member of his or
her staff, and any guardian ad litem for the child no later than five days after
receipt of the report by the court.
(g)
Upon a showing of good cause by any party or upon the court's own motion, the
court may order additional evaluations by other licensed psychologists or
psychiatrists. In no event shall more than one evaluation be conducted by an
examiner employed by DBHDD.
15-11-654.
(a)
If at any time following a finding that a child is incompetent to proceed, the
court determines that the child is a resident of a county of this state other
than the county in which the court sits, the court may transfer the proceeding
to the county of the child's residence.
(b)
When any case is transferred, certified copies of all legal, social history,
health, or mental health records pertaining to the case on file with the clerk
of the court shall accompany the transfer. Compliance with this subsection
shall terminate jurisdiction in the transferring court and initiate jurisdiction
in the receiving court.
(c)
If the child's competency is remediated, jurisdiction of the case may be
returned to the transferring court for the adjudication hearing and any
subsequent proceedings.
15-11-655.
(a)
A hearing to determine if a child is incompetent to proceed shall be conducted
within 60 days after the initial court order for evaluation. The hearing may be
continued by the court for good cause shown.
(b)
Written notice shall be given to all parties and the victim at least ten days
prior to such hearing.
(c)
The burden of proving that the child is incompetent to proceed shall be on the
child. The standard of proof necessary for proving mental competency shall be a
preponderance of the evidence.
(d)
At the hearing to determine incompetency to proceed, the child's attorney and
the prosecuting attorney shall have the right to:
(1)
Present evidence;
(2)
Call and examine witnesses;
(3)
Cross-examine witnesses; and
(4)
Present arguments.
(e)
The examiner appointed by the court shall be considered the court's witness and
shall be subject to cross-examination by both the child's attorney and the
prosecuting attorney.
(f)
The court's findings of fact shall be based on any evaluations of the child's
mental condition conducted by licensed psychologists or psychiatrists appointed
by the court, any evaluations of the child's mental condition conducted by
independent licensed psychologists or psychiatrists hired by the parties, and
any additional evidence presented.
(g)
If the court finds that the child is not incompetent to proceed, the proceedings
which have been suspended shall be resumed. The time limits under Article 6 or
7 of this chapter for adjudication and disposition of the petition shall begin
to run from the date of the order finding the child mentally
competent.
(h)
Copies of the court's findings shall be given to the parties within ten days
following the issuance of such findings.
15-11-656.
(a)
If the court finds that the child is incompetent to proceed but the child's
incompetence may be remediated, the court may order competency remediation
services for the child.
(b)
In determining whether to order competency remediation services, the court shall
consider:
(1)
Whether there is probable cause to believe the allegations in the petition are
true;
(2)
The nature of the incompetency;
(3)
The child's age; and
(4)
The nature of the act alleged to have been committed by the child, in particular
whether the act is a serious violent felony as such term is defined in Code
Section 17-10-6.1.
(c)
If a child is determined to be incompetent to proceed, the court has ordered
that competency remediation services should be provided, and:
(1)
The child is alleged to have committed an act that would be a felony if
committed by an adult, the court may retain jurisdiction of the child for up to
two years after the date of the order of incompetency, with review hearings at
least every six months to redetermine competency or proceed as provided in
subsection (f) of this Code section; or
(2)
The child is alleged to be a child in need of services or to have committed an
act that would be a misdemeanor if committed by an adult, the court may retain
jurisdiction of the child for up to 120 days after the date of the order of
incompetency or proceed as provided in subsection (f) of this Code
section.
(d)
All court orders determining incompetency shall include specific written
findings by the court as to the nature of the incompetency and the mandated
outpatient competency remediation services. If the child is in an out of home
placement, the court shall specify the type of competency remediation services
to be performed at the child's location. A child may be placed in a secure
treatment facility or program, not to include DJJ facilities, if the court makes
a finding by clear and convincing evidence that:
(1)
The child is mentally ill or developmentally disabled and meets the requirements
for civil commitment pursuant to Chapters 3 and 4 of Title 37; and
(2)
All available less restrictive alternatives, including treatment in community
residential facilities or community settings which would offer an opportunity
for improvement of the child's condition, are inappropriate.
(e)
A child who is incompetent to proceed shall not be subject to transfer to
superior court, adjudication, disposition, or modification of disposition so
long as the mental incompetency exists.
(f)
If the court determines that a child is incompetent to proceed, the court may
dismiss the petition without prejudice.
(g)
If a child is detained in a secure detention facility and the court determines
that the child is incompetent to proceed, within five days of such determination
the court shall issue an order to immediately release the child to the
appropriate parent, guardian, or legal custodian.
15-11-657.
(a)
All competency remediation service orders issued by the court shall
contain:
(1)
The name of the competency remediation service program provider and the location
of the program;
(2)
A statement of the arrangements for the child's transportation to the program
site;
(3)
The length of the competency remediation service program;
(4)
A statement of the arrangements for the child's transportation after the program
ends; and
(5)
A direction concerning the frequency of reports required by the
court.
(b)
DBHDD or a licensed psychologist or psychiatrist shall file a written report
with the court:
(1)
Not later than six months after the date the court orders that competency
remediation be attempted but prior to the first review hearing;
(2)
Every six months after the first review hearing if the child remains incompetent
to proceed and under an order for remediation;
(3)
At any time DBHDD or a licensed psychologist or psychiatrist opines the child
has attained competency; or
(4)
At shorter intervals designated by the court in its competency remediation
order.
(c)
DBHDD or the licensed psychologist or psychiatrist written report shall include,
but shall not be limited to:
(1)
Whether the child's competency can be remediated or whether the child is likely
to remain incompetent to proceed for the foreseeable future;
(2)
Whether additional time is needed to remediate the child's competency;
and
(3)
If the child has attained competency, the effect, if any, of any limitations
that are imposed by any medication or other treatment used in the effort to
remediate competency.
15-11-658.
(a)
If the court initially finds that a child is unrestorably incompetent to
proceed, the court shall dismiss the petition, appoint a plan manager, and order
that procedures for a comprehensive services plan be initiated under Article 6
of this chapter. When appropriate, the court may:
(1)
Order that the child be referred for civil commitment pursuant to Chapters 3 and
4 of Title 37. Such proceedings shall be instituted not less than 60 days prior
to the dismissal of the delinquency or child in need of services petition;
or
(2)
Order that referral be made for appropriate adult services if the child has
reached the age of 18 years at the time of the competency
determination.
(b)
If at any time after the child is ordered to undergo competency remediation
services DBHDD or a licensed psychologist or psychiatrist opines that the child
is likely to remain incompetent to proceed for the foreseeable future, DBHDD or
the licensed psychologist or psychiatrist shall submit a report to the court so
stating.
(c)
Upon receipt of the report specified in subsection (b) of this Code section, the
court shall make a competency determination and shall dismiss the delinquency
petition, appoint a plan manager, and order that procedures for a comprehensive
services plan be initiated under Article 6 of this chapter. When appropriate,
the court may:
(1)
Order that the child be referred for civil commitment pursuant to Chapters 3 and
4 of Title 37. Such proceedings shall be instituted not less than 60 days prior
to the dismissal of the delinquency or child in need of services petition;
or
(2)
Order that referral be made for appropriate adult services if the child has
reached the age of 18 years at the time of the competency
determination.
15-11-659.
If
at any time after a child is found to be incompetent to proceed due to age,
immaturity, or for any reason other than mental illness or developmental
disability and is ordered to undergo competency remediation services and DBHDD
determines that the child is likely to remain incompetent to proceed for the
foreseeable future, DBHDD shall submit a report and its conclusions to the
court. Upon receipt of such report, the court shall:
(1)
Make a competency determination;
(2)
Order that the petition be dismissed; and
(3)
Order that a plan manager be appointed and that the procedures for a
comprehensive services plan be initiated under Article 6 of this
chapter.
15-11-660.
(a)
The court shall hold a hearing to review a child's progress toward
competency:
(1)
At least every six months;
(2)
At any time, on its own motion or on the motion of the prosecuting attorney, the
child's attorney, or the child's guardian ad litem, if any;
(3)
On receipt of a report submitted by DBHDD; or
(4)
Not less than three months before the child's eighteenth birthday.
(b)
If at a review hearing the court finds that the child has attained competency,
the suspended proceedings shall be resumed and the time limits as applicable
under Article 6 or 7 of this chapter shall begin to run from the date of the
order finding the child mentally competent.
(c)
If at a review hearing held following the court's receipt of a DBHDD or licensed
psychologist or psychiatrist's report the court finds that the child's
incompetency has not been remediated but that the child has made substantial
progress toward remediation, the court may extend the competency remediation
program period for an additional 60 days if the court determines by clear and
convincing evidence that further participation is likely to lead to remediation
of competency.
(d)
If at a review hearing the court finds that the child's competency is not
remediated and is not likely to be remediated within the time left before the
child's eighteenth birthday, the court shall dismiss the petition with prejudice
if the child is alleged to be a child in need of services or to have committed a
delinquent act which would be a misdemeanor if committed by an
adult.
(e)
At each review hearing, the court shall also consider whether the petition
alleging delinquency or that a child is in need of services should be withdrawn,
maintained, or dismissed, without prejudice, upon grounds other than the child's
being incompetent to proceed. If the court dismisses the petition, the
prosecuting attorney may seek to refile a petition alleging a delinquent act
which would be a felony if committed by an adult if the child is later
determined to be mentally competent. The prosecuting attorney may also seek
transfer to superior court if the child is later determined to be mentally
competent and otherwise meets all the requirements for transfer under Article 7
of this chapter.
ARTICLE
9
15-11-680.
This
article shall be known and may be cited as the 'Parental Notification
Act.'
15-11-681.
As
used in this article, the term:
(1)
'Abortion' means the use or prescription of any instrument, medicine, drug, or
any other substance or device with the intent to terminate the pregnancy of a
female known to be pregnant. The term 'abortion' shall not include the use or
prescription of any instrument, medicine, drug, or any other substance or device
employed solely to increase the probability of a live birth, to preserve the
life or health of the child after live birth, or to remove a dead unborn child
who died as a result of a spontaneous abortion. The term 'abortion' also shall
not include the prescription or use of contraceptives.
(2)
'Proper identification' means any document issued by a governmental agency
containing a description of the person, the person's photograph, or both,
including, but not limited to, a driver's license, an identification card
authorized under Code Sections 40-5-100 through 40-5-104 or similar
identification card issued by another state, a military identification card, a
passport, or an appropriate work authorization issued by the United States
Immigration and Customs Enforcement Division of the Department of Homeland
Security.
(3)
'Unemancipated minor' means any person under the age of 18 who is not or has not
been married or who is under the care, custody, and control of such person's
parent or parents, guardian, or the juvenile court of competent
jurisdiction.
15-11-682.
(a)
No physician or other person shall perform an abortion upon an unemancipated
minor under the age of 18 years unless:
(1)(A)
The minor seeking an abortion shall be accompanied by a parent or guardian who
shall show proper identification and state that the parent or guardian is the
lawful parent or guardian of the minor and that the parent or guardian has been
notified that an abortion is to be performed on the minor;
(B)
The physician or the physician's qualified agent gives at least 24 hours' actual
notice, in person or by telephone, to a parent or guardian of the pending
abortion and the name and address of the place where the abortion is to be
performed; provided, however, that, if the person so notified indicates that he
or she has been previously informed that the minor was seeking an abortion or if
the person so notified has not been previously informed and he or she clearly
expresses that he or she does not wish to consult with the minor, then in either
event the abortion may proceed in accordance with Chapter 9A of Title 31;
or
(C)
The physician or a physician's qualified agent gives written notice of the
pending abortion and the address of the place where the abortion is to be
performed, sent by registered or certified mail or statutory overnight delivery,
return receipt requested with delivery confirmation, addressed to a parent or
guardian at the usual place of abode of the parent or guardian. Unless proof of
delivery is otherwise sooner established, such notice shall be deemed delivered
48 hours after mailing. The time of mailing shall be recorded by the physician
or agent in the minor's file. The abortion may be performed 24 hours after the
delivery of the notice; provided, however, that, if the person so notified
certifies in writing that he or she has been previously informed that the minor
was seeking an abortion or if the person so notified has not been previously
informed and he or she certifies in writing that he or she does not wish to
consult with the minor, then in either event the abortion may proceed in
accordance with Chapter 9A of Title 31; and
(2)
The minor signs a consent form stating that she consents, freely and without
coercion, to the abortion.
(b)
If the unemancipated minor or the physician or a physician's qualified agent, as
the case may be, elects not to comply with any one of the requirements of
subparagraph (a)(1)(A), (a)(1)(B), or (a)(1)(C) of this Code section, or if the
parent or legal guardian of the minor cannot be located, the minor may petition,
on the minor's own behalf or by next friend, any juvenile court in the state for
a waiver of such requirement pursuant to the procedures provided for in Code
Section 15-11-684. The juvenile court shall assist the minor or next friend in
preparing the petition and notices required pursuant to this Code section.
Venue shall be lawful in any county, notwithstanding Code Section
15-11-30.
(c)
No abortion shall be performed unless the requirements of subparagraph
(a)(1)(A), (a)(1)(B), or (a)(1)(C) of this Code section have been met or the
minor has obtained a court order waiving such requirements.
15-11-683.
Notwithstanding
Code Sections 15-11-40, 15-11-150, 15-11-152, 15-11-160, 15-11-281, 15-11-424,
and 15-11-531, the unemancipated minor or next friend shall be notified of the
date, time, and place of the hearing in such proceedings at the time of filing
the petition. The hearing shall be held within three days of the date of
filing, excluding weekends and legal holidays. The parent, guardian, or legal
custodian of the unemancipated minor shall not be served with the petition or
with a summons or otherwise notified of the proceeding. If a hearing is not
held within the time prescribed in this Code section, the petition shall be
deemed granted.
15-11-684.
(a)
An unemancipated minor may participate in proceedings in the court on such
minor's own behalf and the court shall advise such minor of the right to court
appointed counsel and shall provide such minor with such counsel upon request or
if such minor is not already adequately represented.
(b)
All court proceedings under this Code section shall be conducted in a manner to
preserve the complete anonymity of the parties and shall be given such
precedence over other pending matters as is necessary to ensure that a decision
is reached by the court as expeditiously as is possible under the circumstances
of the case. In no event shall the name, address, birth date, or social
security number of such minor be disclosed.
(c)
The requirement of subparagraph (a)(1)(A), (a)(1)(B), or (a)(1)(C) of Code
Section 15-11-682 shall be waived if the court finds either:
(1)
That the unemancipated minor is mature enough and well enough informed to make
the abortion decision in consultation with her physician, independently of the
wishes of such minor's parent or guardian; or
(2)
That the notice to a parent or, if the minor is subject to guardianship, the
legal guardian pursuant to Code Section 15-11-682 would not be in the best
interests of the minor.
(d)
A court that conducts proceedings under this Code section shall issue written
and specific factual findings and legal conclusions supporting its decision and
shall order that a record of the evidence be maintained. The juvenile court
shall render its decision within 24 hours of the conclusion of the hearing and a
certified copy of same shall be furnished immediately to the minor. If the
juvenile court fails to render its decision within 24 hours after the conclusion
of the hearing, then the petition shall be deemed granted. All juvenile court
records shall be sealed in a manner which will preserve anonymity.
(e)
An expedited appeal completely preserving the anonymity of the parties shall be
available to any unemancipated minor to whom the court denies a waiver of
notice. The appellate courts are authorized and requested to issue promptly
such rules as are necessary to preserve anonymity and to ensure the expeditious
disposition of procedures provided by this Code section. In no event shall the
name, address, birth date, or social security number of such minor be disclosed
during the expedited appeal or thereafter.
(f)
No filing fees shall be required of any unemancipated minor who uses the
procedures provided by this Code section.
15-11-685.
The
requirements and procedures of this article shall apply to all unemancipated
minors within this state whether or not such persons are residents of this
state.
15-11-686.
This
article shall not apply when, in the best clinical judgment of the attending
physician on the facts of the case before him or her, a medical emergency exists
that so complicates the condition of the minor as to require an immediate
abortion. A person who performs an abortion as a medical emergency under the
provisions of this Code section shall certify in writing the medical indications
on which this judgment was based when filing such reports as are required by
law.
15-11-687.
Any
physician or any person employed or connected with a physician, hospital, or
health care facility performing abortions who acts in good faith shall be
justified in relying on the representations of the unemancipated minor or of any
other person providing the information required under this article. No
physician or other person who furnishes professional services related to an act
authorized or required by this article and who relies upon the information
furnished pursuant to this article shall be held to have violated any criminal
law or to be civilly liable for such reliance, provided that the physician or
other person acted in good faith.
15-11-688.
Any
person who violates the provisions of this article shall be guilty of a
misdemeanor and any person who intentionally encourages another to provide false
information pursuant to this article shall be guilty of a
misdemeanor.
ARTICLE
10
15-11-700.
(a)
As used in this Code section, the term 'dependency proceeding' means a court
proceeding stemming from a petition alleging that a child is a dependent
child.
(b)
The general public shall be admitted to:
(1)
An adjudicatory hearing involving an allegation of a designated
felony;
(2)
An adjudicatory hearing involving an allegation of delinquency brought in the
interest of any child who has previously been adjudicated delinquent; provided,
however, the court shall close any delinquency hearing on an allegation of
sexual assault or any delinquency hearing at which any party expects to
introduce substantial evidence related to matters of dependency;
(3)
Any child support hearing;
(4)
Any hearing in a legitimation action filed pursuant to Code Section
19-7-22;
(5)
At the court's discretion, any dispositional hearing involving any proceeding
under this article; or
(6)
Any hearing in a dependency proceeding, except as otherwise provided in
subsection (c) of this Code section.
(c)
The court may close the hearing in a dependency proceeding only upon making a
finding upon the record and issuing a signed order as to the reason or reasons
for closing all or part of a hearing in such proceeding and stating
that:
(A)
The proceeding involves an allegation of an act which, if done by an adult,
would constitute a sexual offense under Chapter 6 of Title 16; or
(B)
It is in the best interests of the child. In making such a determination, the
court shall consider such factors as:
(i)
The age of the child;
(ii)
The nature of the allegations;
(iii)
The effect that an open court proceeding will have on the court's ability to
reunite and rehabilitate the family unit; and
(iv)
Whether the closure is necessary to protect the privacy of a child, of a foster
parent or other caretaker of a child, or of a victim of domestic
violence.
(d)
The court may close a hearing or exclude a person from a hearing in any
proceeding on its own motion, by motion of a party to the proceeding, or by
motion of a child who is the subject of the proceeding or the child's attorney
or guardian ad litem.
(e)
Only the parties, their counsel, witnesses, persons accompanying a party for his
or her assistance, the victim, and any other persons as the court finds have a
proper interest in the proceeding or in the work of the court may be admitted by
the court to hearings from which the public is excluded; provided, however, that
when the conduct alleged in the dependency proceeding could give rise to a
criminal or delinquent prosecution, attorneys for the prosecution and the
defense shall be admitted.
(f)
The court may refuse to admit a person to a hearing in any proceeding upon
making a finding upon the record and issuing a signed order that the person's
presence at the hearing would:
(1)
Be detrimental to the best interests of a child who is a party to the
proceeding;
(2)
Impair the fact-finding process; or
(3)
Be otherwise contrary to the interest of justice.
(g)
The court may temporarily exclude any child from a termination of parental
rights hearing except while allegations of his or her delinquency or unruly
conduct are being heard.
(h)
Any request for installation and use of electronic recording, transmission,
videotaping, or motion picture or still photography of any judicial proceeding
shall be made to the court at least two days in advance of the hearing. The
request shall be evaluated by the court pursuant to the standards set forth in
Code Section 15-1-10.1.
(i)
The judge may order the media not to release identifying information concerning
any child or family members or foster parent or other caretaker of a child
involved in hearings open to the public.
(j)
The general public shall be excluded from proceedings in juvenile court unless
such hearing has been specified as one in which the general public shall be
admitted to pursuant to this Code section.
15-11-701.
(a)
Upon dismissal of a petition or complaint alleging delinquency or that a child
is a child in need of services or completion of the process in a case handled
through informal adjustment, mediation, or other nonadjudicatory procedure, the
court shall order the sealing of the files and records in the case.
(b)
On application of a person who has been adjudicated delinquent or a child in
need of services or on the court's own motion, and after a hearing, the court
shall order the sealing of the files and records in the proceeding if the court
finds that:
(1)
Two years have elapsed since the final discharge of the person;
(2)
Since the final discharge of the person he or she has not been convicted of a
felony or of a misdemeanor involving moral turpitude or adjudicated a delinquent
child or a child in need of services and no proceeding seeking conviction or
adjudication is pending against the person; and
(3)
The person has been rehabilitated.
(c)
Reasonable notice of the hearing required by subsection (b) of this Code section
shall be given to:
(1)
The district attorney;
(2)
DJJ, when appropriate;
(3)
The authority granting the discharge if the final discharge was from an
institution or from parole; and
(4)
The law enforcement officers or department having custody of the files and
records if the files and records specified in Code Sections 15-11-702 and
15-11-708 are included in the application or motion.
(d)
Upon the entry of the order the proceeding shall be treated as if it had never
occurred. All index references shall be deleted and the person, the court, the
law enforcement officers, and the departments shall properly reply that no
record exists with respect to the person upon inquiry in any matter. Copies of
the order shall be sent to each agency or designated official and shall also be
sent to the deputy director of the Georgia Crime Information Center. Inspection
of the sealed files and records thereafter may be permitted by an order of the
court upon petition by the person who is the subject of the records and
otherwise only by those persons named in the order or to criminal justice
officials upon petition to the court for official judicial enforcement or
criminal justice purposes.
(e)
The court may seal any record containing information identifying a victim of an
act which, if done by an adult, would constitute a sexual offense under Chapter
6 of Title 16.
15-11-702.
(a)(1)
Every child charged with an offense which would be a felony if committed by an
adult, shall be fingerprinted and photographed upon being taken into
custody.
(2)
Fingerprints and photographs of children shall be taken and filed separately
from those of adults by law enforcement officials to be used in investigating
the commission of crimes and to be made available as provided in this article
and as may be directed by the court.
(b)
Fingerprint files and photographs of children may be inspected by law
enforcement officers when necessary for criminal justice purposes and for the
discharge of their official duties. Other inspections may be authorized by the
court in individual cases upon a showing that it is necessary in the public
interest.
(c)
If a child has been charged with an offense that if committed by an adult would
be a felony or if the case is transferred to another court for prosecution, the
child's fingerprints, personal identification data, and other pertinent
information shall be forwarded to the Georgia Crime Information Center of the
Georgia Bureau of Investigation. The center shall create a juvenile fingerprint
file and enter the data into the computerized criminal history files. The
Georgia Bureau of Investigation shall act as the official state repository for
juvenile history data and shall be authorized to disseminate such data for the
purposes specified in Code Section 15-11-708.
(d)
Upon application of a child, fingerprints and photographs of the child shall be
removed from the file and destroyed if a petition alleging delinquency is not
filed or the proceedings are dismissed after either such petition is filed or
the case is transferred to the juvenile court or the child is adjudicated not to
be a delinquent child. The court shall notify the deputy director of the
Georgia Crime Information Center when fingerprints and photographs are
destroyed, and the Georgia Bureau of Investigation shall treat such records in
the same manner as expunged records pursuant to subsection (c) of Code Section
35-3-37.
(e)
Except as provided in subsection (a) of this Code section, without the consent
of the judge, a child shall not be photographed after he or she is taken into
custody unless the case is transferred to another court for
prosecution.
(f)
Upon request, the judge or his or her designee shall release the name of any
child with regard to whom a petition has been filed alleging the child committed
a designated felony or alleging the child committed a delinquent act if the
child has previously been adjudicated delinquent or if the child has previously
been before the court on a delinquency charge and adjudication was
withheld.
15-11-703.
Except
as provided in subsection (d) of Code Section 24-6-609, the disposition of a
child and evidence adduced in a hearing in the juvenile court may not be used
against such child in any proceeding in any court other than for a proceeding
for delinquency or a child in need of services, whether before or after reaching
majority, except in the establishment of conditions of bail, plea negotiations,
and sentencing in felony offenses; and, in such excepted cases, such records of
dispositions and evidence shall be available to prosecuting attorneys and
superior court judges and the accused and may be used in the same manner as
adult records.
15-11-704.
(a)
Except as provided in subsection (b) of this Code section and Code Sections
15-11-705 and 15-11-706, all files and records of the court in a proceeding
under this chapter shall be open to inspection only upon order of the
court.
(b)
The general public shall be allowed to inspect court files and records for any
proceeding that was open to the public pursuant to paragraphs (1) through (5) of
subsection (b) of Code Section 15-11-700.
(c)
The judge may permit authorized representatives of recognized organizations
compiling statistics for proper purposes to inspect and make abstracts from
official records under whatever conditions upon their use and distribution the
judge may deem proper and may punish by contempt any violation of those
conditions.
(d)
The judge shall permit authorized representatives of DJJ, the Governor's Office
for Children and Families, and the Council of Juvenile Court Judges to inspect
and extract data from any court files and records for the purpose of obtaining
statistics on children and to make copies pursuant to the order of the
court.
(e)
Except as otherwise provided in Code Sections 15-11-701 and 15-11-703, the
complaint, petition, order of adjudication, and order of disposition in any
delinquency case shall be disclosed upon request of the prosecuting attorney or
the accused for use preliminarily to or in conjunction with a subsequent
juvenile or criminal proceeding in a court of record.
15-11-705.
(a)
Notwithstanding other provisions of this article, the court records of
proceedings under Article 6 of this chapter shall be withheld from public
inspection but shall be open to inspection by the child, juvenile probation and
parole officers, a parent, guardian, or legal custodian, the child's attorney,
and others entrusted with the supervision of the child. Additional access to
court records may be granted by court order.
(b)
It shall be unlawful for any person to disclose court records, or any part
thereof, to persons other than those entitled to access under subsection (a) of
this Code section, except by court order. Any person who knowingly violates
this subsection shall be guilty of contempt and the court may enter any order
authorized by the provisions of Code Section 15-11-31.
15-11-706.
(a)
When a decision is made to handle a case through informal adjustment, mediation,
or other nonadjudicatory procedure, the juvenile court intake officer shall file
with the court in the county in which the child legally resides all of the
following information:
(1)
The child's name, address, and date of birth;
(2)
The act or offense for which the child was apprehended;
(3)
The diversion decision made;
(4)
The nature of the child's compliance with an informal adjustment agreement;
and
(5)
If an informal adjustment agreement is revoked, the fact of and reasons for the
revocation.
(b)
Notwithstanding subsection (a) of Code Section 15-11-701, the court in the
county in which the child resides shall keep a separate record for that child
which shall be open to the court, the prosecuting attorney, or an officer
designated by the court only for the purpose of deciding whether to handle a
subsequent case through informal adjustment, mediation, or other nonadjudicatory
procedure or for use in disposition of a subsequent proceeding. Any person who
knowingly violates this subsection shall be guilty of contempt and the court may
enter any order authorized by the provisions of Code Section
15-11-31.
15-11-707.
Within
30 days of any proceeding in which a child is adjudicated delinquent for a
second or subsequent time or is found to have committed a designated felony act,
the court shall provide written notice to the school superintendent of the
school in which the child is enrolled or his or her designee or, if the
information is known, of the school in which such child plans to be enrolled at
a future date. Such notice shall include the specific delinquent act or
designated felony that the child committed.
15-11-708.
(a)
Law enforcement records and files concerning a child shall be kept separate from
the records and files of arrests of adults.
(b)
Unless a charge of delinquency is transferred for criminal prosecution or the
interest of national security requires or the case is one in which the general
public may not be excluded from the hearings or the court otherwise orders in
the best interests of the child, the records and files shall not be open to
public inspection nor shall their contents be disclosed to the
public.
(c)
Inspection of the records and files shall be permitted by:
(1)
A juvenile court having the child before it in any proceeding;
(2)
The attorney for a party to the proceedings, with the consent of the
court;
(3)
The officers of public institutions or agencies to whom the child is
committed;
(4)
Law enforcement officers of this state, the United States, or any other
jurisdiction when necessary for the discharge of their official
duties;
(5)
A court in which the child is convicted of a criminal offense, for the purpose
of a presentence report or other disposition proceeding;
(6)
Officials of penal institutions and other penal facilities to which the child is
committed; or
(7)
A parole board in considering the child's parole or discharge or in exercising
supervision over the child.
(d)
The court shall allow authorized representatives of DJJ, the Governor's Office
for Children and Families, and the Council of Juvenile Court Judges to inspect
and copy law enforcement records for the purpose of obtaining statistics on
children.
(e)
Access to fingerprint records submitted to the Georgia Bureau of Investigation
shall be limited to the administration of criminal justice purposes as defined
in Code Section 15-11-2.
15-11-709.
(a)
Subject to the earlier sealing of certain records pursuant to Code Section
15-11-701, the juvenile court shall make and keep records of all cases brought
before it and shall preserve the records pertaining to a child in accordance
with the common records retention schedules for courts approved by the State
Records Committee pursuant to Code Section 50-18-92.
(b)
Thereafter, the court may destroy such records, except that the records of cases
in which a court terminates the parental rights of a parent and the records of
cases involving a petition for legitimation of a child shall be preserved
permanently.
(c)
The juvenile court shall make official minutes consisting of all petitions and
orders filed in a case and any other pleadings, certificates, proofs of
publication, summonses, warrants, and other writs which may be filed and shall
make social records consisting of records of investigation and treatment and
other confidential information.
(d)
Identification data shall be maintained and shall be disseminated to criminal
justice officials for official judicial enforcement or criminal justice purposes
as provided in Code Section 35-3-33.
(e)
Nothing in this chapter shall restrict or otherwise prohibit a juvenile court
clerk from electing to store for computer retrieval any or all records, dockets,
indexes, or files; nor shall a juvenile court clerk be prohibited from combining
or consolidating any books, dockets, files, or indexes in connection with the
filing for record of papers of the kind specified in this chapter or any other
law, provided that any automated or computerized record-keeping method or system
shall provide for the systematic and safe preservation and retrieval of all
books, dockets, records, or indexes. When the clerk of a juvenile court elects
to store for computer retrieval any or all records, the same data elements used
in a manual system shall be used, and the same integrity and security shall be
maintained.
15-11-710.
(a)
As used in this Code section, the term 'governmental entity' shall mean the
court, superior court, the DJJ, DBHDD, DFACS, county departments of family and
children services, or public school, as such term is defined in Code Section
16-11-35.
(b)
Governmental entities and state, county, municipal, or consolidated government
departments, boards, or agencies shall exchange with each other all information
not held as confidential pursuant to federal law and relating to a child which
may aid a governmental entity in the assessment, treatment, intervention, or
rehabilitation of a child, notwithstanding Code Section 15-1-15, 15-11-40,
15-11-105, 15-11-170, 15-11-264, 15-11-541, 15-11-542, 15-11-603, 15-11-708,
15-11-709, 15-11-744, 20-2-751.2, 20-14-40, 24-12-10, 24-12-11, 24-12-20,
26-4-5, 26-4-80, 26-5-17, 31-5-5, 31-33-6, 37-1-53, 37-2-9.1, 42-5-36, 42-8-40,
42-8-106, 49-5-40, 49-5-41, 49-5-41.1, 49-5-44, 49-5-45, 49-5-183, 49-5-184,
49-5-185, or 49-5-186, in order to serve the best interests of the child.
Information which is shared pursuant to this subsection shall not be utilized to
assist in the prosecution of the child in juvenile court or superior court or
utilized to the detriment of the child.
(c)
Information released pursuant to this Code section shall not change or rescind
the confidential nature of such information and such information shall not be
subject to public disclosure or inspection unless otherwise provided by
law.
ARTICLE
11
15-11-720.
(a)
Emancipation may occur by operation of law or pursuant to a petition filed with
the court as provided in this article by a child who is at least 16 years of
age.
(b)
An emancipation occurs by operation of law:
(1)
When a child is validly married;
(2)
When a child reaches the age of 18 years; or
(3)
During the period when the child is on active duty with the armed forces of the
United States.
(c)
An emancipation occurs by court order pursuant to a petition filed by a child
with the juvenile court.
15-11-721.
A
child seeking emancipation shall file a petition for emancipation in the
juvenile court in the county where the child resides. The petition shall be
signed and verified by the child, and shall include:
(1)
The child's full name and birth date and the county and state where the child
was born;
(2)
A certified copy of the child's birth certificate;
(3)
The name and last known address of the child's parent, guardian, or legal
custodian and, if no parent, guardian, or legal custodian can be found, the name
and address of the child's nearest living relative residing within this
state;
(4)
The child's present address and length of residency at that
address;
(5)
A declaration by the child demonstrating the ability to manage his or her
financial affairs together with any information necessary to support the
declaration;
(6)
A declaration by the child demonstrating the ability to manage his or her
personal and social affairs together with any information necessary to support
the declaration; and
(7)
The names of individuals who have personal knowledge of the child's
circumstances and believe that under those circumstances emancipation is in the
best interests of the child. Such individuals may include any of the
following:
(A)
A licensed physician or osteopath;
(B)
A registered professional nurse or licensed practical nurse;
(C)
A licensed psychologist;
(D)
A licensed professional counselor, social worker, or marriage and family
therapist;
(E)
A school guidance counselor, school social worker, or school
psychologist;
(F)
A school administrator, school principal, or school teacher;
(G)
A member of the clergy;
(H)
A law enforcement officer; or
(I)
An attorney.
15-11-722.
(a)
Upon filing the petition, a copy of the petition for emancipation and a summons
to appear at the hearing shall be served on all persons named in the petition
and upon any individual who provided an affidavit for the
emancipation.
(b)
A person served with a petition may file an answer in the juvenile court in
which the petition was filed within 30 days of being served.
15-11-723.
(a)
After a petition for emancipation is filed, the court may:
(1)
Appoint a guardian ad litem to investigate the allegations of the petition and
to file a report with the court, including a recommendation as to whether it is
in the best interests of the child that the petition for emancipation be
granted;
(2)
Appoint an attorney for the child; and
(3)
Appoint an attorney for the child's parent, guardian, or legal custodian if he
or she is an indigent person and if he or she opposes the petition.
(b)
After a petition for emancipation is filed, the court shall seek an affidavit
from each person identified in the petition pursuant to paragraph (7) of Code
Section 15-11-721 which describes why that person believes the child should be
emancipated.
15-11-724.
A
child who petitions the court for emancipation shall have the burden of showing
that emancipation should be ordered by a preponderance of evidence.
15-11-725.
(a)
The court shall issue an emancipation order if, after a hearing, it determines
that emancipation is in the best interests of the child and the child has
established:
(1)
That the child's parent, guardian, or legal custodian does not object to the
petition; or, if a parent, guardian, or legal custodian objects to the petition,
that the best interests of the child are served by allowing the emancipation to
occur by court order;
(2)
That the child is a resident of this state;
(3)
That the child has demonstrated the ability to manage his or her financial
affairs, including proof of employment or other means of support. 'Other means
of support' shall not include general assistance or aid received from
means-tested public assistance programs such as Temporary Assistance for Needy
Families as provided in Article 9 of Chapter 4 of Title 49 or similar programs
under Title IV-A of the federal Social Security Act;
(4)
That the child has the ability to manage his or her personal and social affairs,
including, but not limited to, proof of housing; and
(5)
That the child understands his or her rights and responsibilities under this
article as an emancipated child.
(b)
If the court issues an emancipation order, the court shall retain a copy of the
order until the emancipated child becomes 25 years of age.
(c)
An emancipation obtained by fraud is voidable. Voiding an emancipation order
shall not affect an obligation, responsibility, right, or interest that arose
during the period of time the order was in effect.
(d)
The child or the child's parent, guardian, or legal custodian may appeal the
court's grant or denial of an emancipation petition.
15-11-726.
(a)
A child emancipated by court order may petition the juvenile court that issued
the emancipation order to rescind such order.
(b)
A copy of the petition for rescission and a summons shall be served on the
child's parent, guardian, or legal custodian.
(c)
The court shall grant the petition and rescind the order of emancipation if it
finds:
(1)
That the child is an indigent person and has no means of support;
(2)
That the child and the child's parent, guardian, or legal custodian agree that
the order should be rescinded; or
(3)
That there is a resumption of family relations inconsistent with the existing
emancipation order.
(d)
If a petition for rescission is granted, the court shall issue an order
rescinding the emancipation order and retain a copy of the order until the child
becomes 25 years of age.
(e)
Rescission of an emancipation order shall not alter any contractual obligations
or rights or any property rights or interests that arose during the period of
time that the emancipation order was in effect.
(f)
The child or a parent, guardian, or legal custodian of the child may appeal the
court's grant or denial of a petition for rescission of an emancipation order.
The appeal shall be filed in the Court of Appeals.
15-11-727.
(a)
A child emancipated by operation of law or by court order shall be considered to
have the rights and responsibilities of an adult, except for those specific
constitutional and statutory age requirements regarding voting, use of alcoholic
beverages, and other health and safety regulations relevant to the child because
of his or her age. The rights of a child to receive any transfer of property or
money pursuant to 'The Georgia Transfers to Minors Act' under Article 5 of
Chapter 5 of Title 44; under the Uniform Transfers to Minors Act, the Uniform
Gift to Minors Act, or other substantially similar act of another state; or
pursuant to a trust agreement shall not be affected by a declaration of an
emancipation under this article.
(b)
A child shall be considered emancipated for the purposes of, but not limited
to:
(1)
The right to enter into enforceable contracts, including apartment
leases;
(2)
The right to sue or be sued in his or her own name;
(3)
The right to retain his or her own earnings;
(4)
The right to establish a separate domicile;
(5)
The right to act autonomously, and with the rights and responsibilities of an
adult, in all business relationships, including, but not limited to, property
transactions and obtaining accounts for utilities, except for those estate or
property matters that the court determines may require a conservator or guardian
ad litem;
(6)
The right to earn a living, subject only to the health and safety regulations
designed to protect those under the age of 18 regardless of their legal
status;
(7)
The right to authorize his or her own preventive health care, medical care,
dental care, and mental health care, without parental knowledge or
liability;
(8)
The right to apply for a driver's license or other state licenses for which he
or she might be eligible;
(9)
The right to register for school;
(10)
The right to apply for medical assistance programs and for other welfare
assistance, if needed;
(11)
The right, if a parent, to make decisions and give authority in caring for his
or her own minor child; and
(12)
The right to make a will.
(c)
The parent, guardian, or legal custodian of a child emancipated by court order
shall not be liable for any debts incurred by the child during the period of
emancipation.
15-11-728.
(a)
The duty to provide support for a child shall continue until an emancipation
order is granted.
(b)
A child emancipated under this article shall not be considered a dependent
child.
(c)
The provisions set forth in Code Section 19-3-2 regarding age limitations to
contract for marriage shall apply to a child who has become emancipated under
this article.
ARTICLE
12
15-11-740.
(a)
This article shall be known and may be cited as the 'Georgia Child Advocate for
the Protection of Children Act.'
(b)
In keeping with this article's purpose of assisting, protecting, and restoring
the security of children whose well-being is threatened, it is the intent of the
General Assembly that the mission of protection of the children of this state
should have the greatest legislative and executive priority. Recognizing that
the needs of children must be attended to in a timely manner and that more
aggressive action should be taken to protect children from abuse and neglect,
the General Assembly creates the Office of the Child Advocate for the Protection
of Children to provide independent oversight of persons, organizations, and
agencies responsible for providing services to or caring for children who are
victims of child abuse and neglect, or whose domestic situation requires
intervention by the state. The Office of the Child Advocate for the Protection
of Children will provide children with an avenue through which to seek relief
when their rights are violated by state officials and agents entrusted with
their protection and care.
15-11-741.
As
used in this article, the term:
(1)
'Advocate' or 'child advocate' means the Child Advocate for the Protection of
Children established under Code Section 15-11-742.
(2)
'Agency' shall have the same meaning and application as provided for in
paragraph (1) of subsection (a) of Code Section 50-14-1.
(3)
'Child' or 'children' means an individual receiving protective services from
DFCS, for whom DFCS has an open case file, or who has been, or whose siblings,
parents, or other caretakers have been the subject of a report to DFCS within
the previous five years.
15-11-742.
(a)
There is created the Office of the Child Advocate for the Protection of
Children. The Governor, by executive order, shall create a nominating committee
which shall consider nominees for the position of the advocate and shall make a
recommendation to the Governor. Such person shall have knowledge of the child
welfare system, the juvenile justice system, and the legal system and shall be
qualified by training and experience to perform the duties of the office as set
forth in this article.
(b)
The advocate shall be appointed by the Governor from a list of at least three
names submitted by the nominating committee for a term of three years and until
his or her successor is appointed and qualified and may be reappointed. The
salary of the advocate shall not be less than $60,000.00 per year, shall be
fixed by the Governor, and shall come from funds appropriated for the purposes
of the advocate.
(c)
The Office of the Child Advocate for the Protection of Children shall be
assigned to the Office of Planning and Budget for administrative purposes only,
as described in Code Section 50-4-3.
(d)
The advocate may appoint such staff as may be deemed necessary to effectively
fulfill the purposes of this article, within the limitations of the funds
available for the purposes of the advocate. The duties of the staff may include
the duties and powers of the advocate if performed under the direction of the
advocate. The advocate and his or her staff shall receive such reimbursement
for travel and other expenses as is normally allowed to state employees from
funds appropriated for the purposes of the advocate.
(e)
The advocate shall have the authority to contract with experts in fields
including but not limited to medicine, psychology, education, child development,
juvenile justice, mental health, and child welfare, as needed to support the
work of the advocate, utilizing funds appropriated for the purposes of the
advocate.
(f)
Notwithstanding any other provision of state law, the advocate shall act
independently of any state official, department, or agency in the performance of
his or her duties.
(g)
The advocate or his or her designee shall be an ex officio member of the
State-wide Child Abuse Prevention Panel.
15-11-743.
The
advocate shall perform the following duties:
(1)
Identify, receive, investigate, and seek the resolution or referral of
complaints made by or on behalf of children concerning any act, omission to act,
practice, policy, or procedure of an agency or any contractor or agent thereof
that may adversely affect the health, safety, or welfare of the
children;
(2)
Refer complaints involving abused children to appropriate regulatory and law
enforcement agencies;
(3)
Coordinate and supervise the work of the Georgia Child Fatality Review Panel
created by Code Section 19-15-4 and provide such staffing and administrative
support to the panel as may be necessary to enable the panel to carry out its
statutory duties;
(4)
Report the death of any child to the chairperson of the child fatality review
subcommittee of the county in which such child resided at the time of death,
unless the advocate has knowledge that such death has been reported by the
county medical examiner or coroner, pursuant to Code Section 19-15-3, and to
provide such subcommittee access to any records of the advocate relating to such
child;
(5)
Provide periodic reports on the work of the Office of the Child Advocate for the
Protection of Children, including but not limited to an annual written report
for the Governor and the General Assembly and other persons, agencies, and
organizations deemed appropriate. Such reports shall include recommendations
for changes in policies and procedures to improve the health, safety, and
welfare of children and shall be made expeditiously in order to timely influence
public policy;
(6)
Establish policies and procedures necessary for the Office of the Child Advocate
for the Protection of Children to accomplish the purposes of this article
including without limitation providing DFCS with a form of notice of
availability of the Office of the Child Advocate for the Protection of Children.
Such notice shall be posted prominently, by DFCS, in DFCS offices and in
facilities receiving public moneys for the care and placement of children and
shall include information describing the Office of the Child Advocate for the
Protection of Children and procedures for contacting that office;
and
(7)
Convene quarterly meetings with organizations, agencies, and individuals who
work in the area of child protection to seek opportunities to collaborate and
improve the status of children in Georgia.
15-11-744.
(a)
The advocate shall have the following rights and powers:
(1)
To communicate privately, by mail or orally, with any child and with each
child's parent, guardian, or legal custodian;
(2)
To have access to all records and files of DFCS concerning or relating to a
child, and to have access, including the right to inspect, copy, and subpoena
records held by clerks of the various courts, law enforcement agencies, service
providers, including medical and mental health, and institutions, public or
private, with whom a particular child has been either voluntarily or otherwise
placed for care or from whom the child has received treatment within the state.
To the extent any such information provides the names and addresses of
individuals who are the subject of any confidential proceeding or statutory
confidentiality provisions, such names and addresses or related information
which has the effect of identifying such individuals shall not be released to
the public without the consent of such individuals. The Office of the Child
Advocate for the Protection of Children shall be bound by all confidentiality
safeguards provided in Code Sections 49-5-40 and 49-5-44. Anyone wishing to
obtain records held by the Office of the Child Advocate shall petition the
original agency of record where such records exist;
(3)
To enter and inspect any and all institutions, facilities, and residences,
public and private, where a child has been placed by a court or DFCS and is
currently residing. Upon entering such a place, the advocate shall notify the
administrator or, in the absence of the administrator, the person in charge of
the facility, before speaking to any children. After notifying the
administrator or the person in charge of the facility, the advocate may
communicate privately and confidentially with children in the facility,
individually or in groups, or the advocate may inspect the physical plant. To
the extent possible, entry and investigation provided by this Code section shall
be conducted in a manner which will not significantly disrupt the provision of
services to children;
(4)
To apply to the Governor to bring legal action in the nature of a writ of
mandamus or application for injunction pursuant to Code Section 45-15-18 to
require an agency to take or refrain from taking any action required or
prohibited by law involving the protection of children;
(5)
To apply for and accept grants, gifts, and bequests of funds from other states,
federal and interstate agencies, independent authorities, private firms,
individuals, and foundations for the purpose of carrying out the lawful
responsibilities of the Office of the Child Advocate for the Protection of
Children;
(6)
When less formal means of resolution do not achieve appropriate results, to
pursue remedies provided by this article on behalf of children for the purpose
of effectively carrying out the provisions of this article; and
(7)
To engage in programs of public education and legislative advocacy concerning
the needs of children requiring the intervention, protection, and supervision of
courts and state and county agencies.
(b)(1)
Upon issuance by the advocate of a subpoena in accordance with this article for
law enforcement investigative records concerning an ongoing investigation, the
subpoenaed party may move a court with appropriate jurisdiction to quash said
subpoena.
(2)
The court shall order a hearing on the motion to quash within five days of the
filing of the motion to quash, which hearing may be continued for good cause
shown by any party or by the court on its own motion. Subject to any right to
an open hearing in contempt proceedings, such hearing shall be closed to the
extent necessary to prevent disclosure of the identity of a confidential source;
disclosure of confidential investigative or prosecution material which would
endanger the life or physical safety of any person or persons; or disclosure of
the existence of confidential surveillance, investigation, or grand jury
materials or testimony in an ongoing criminal investigation or prosecution.
Records, motions, and orders relating to a motion to quash shall be kept sealed
by the court to the extent and for the time necessary to prevent public
disclosure of such matters, materials, evidence, or testimony.
(c)
The court shall, at or before the time specified in the subpoena for compliance
therewith, enter an order:
(1)
Enforcing the subpoena as issued;
(2)
Quashing or modifying the subpoena if it is unreasonable and oppressive;
or
(3)
Conditioning enforcement of the subpoena on the advocate maintaining
confidential any evidence, testimony, or other information obtained from law
enforcement or prosecution sources pursuant to the subpoena until the time the
criminal investigation and prosecution are concluded. Unless otherwise ordered
by the court, an investigation or prosecution shall be deemed to be concluded
when the information becomes subject to public inspection pursuant to Code
Section 50-18-72. The court shall include in its order written findings of fact
and conclusions of law.
15-11-745.
(a)
No person shall discriminate or retaliate in any manner against any child,
parent, guardian, or legal custodian of a child, employee of a facility, agency,
institution or other type of provider, or any other person because of the making
of a complaint or providing of information in good faith to the advocate or
willfully interfere with the advocate in the performance of his or her official
duties.
(b)
Any person violating subsection (a) of this Code section shall be guilty of a
misdemeanor.
15-11-746.
The
advocate shall be authorized to request an investigation by the Georgia Bureau
of Investigation of any complaint of criminal misconduct involving a
child.
15-11-747.
(a)
There is established a Child Advocate Advisory Committee. The advisory
committee shall consist of:
(1)
One representative of a not for profit children's agency appointed by the
Governor;
(2)
One representative of a for profit children's agency appointed by the Lieutenant
Governor;
(3)
One pediatrician appointed by the Speaker of the House of
Representatives;
(4)
One social worker with experience and knowledge of child protective services who
is not employed by the state appointed by the Governor;
(5)
One psychologist appointed by the Lieutenant Governor;
(6)
One attorney appointed by the Speaker of the House of Representatives from the
Children and the Courts Committee of the State Bar of Georgia; and
(7)
One juvenile court judge appointed by the Chief Justice of the Supreme Court of
Georgia.
Each
member of the advisory committee shall serve a two-year term and until the
appointment and qualification of such member's successor. Appointments to fill
vacancies in such offices shall be filled in the same manner as the original
appointment.
(b)
The advisory committee shall meet a minimum of three times a year with the
advocate and his or her staff to review and assess the following:
(1)
Patterns of treatment and service for children;
(2)
Policy implications; and
(3)
Necessary systemic improvements.
The
advisory committee shall also provide for an annual evaluation of the
effectiveness of the Office of the Child Advocate for the Protection of
Children.
ARTICLE
13
15-11-760.
(a)
There is created the Georgia Juvenile Code Commission for the purpose of
conducting periodic comprehensive reviews of this chapter. The Georgia Juvenile
Code Commission shall be responsible for studying and collecting information and
data relating to the efficacy of this chapter, current best practices in the
field of juvenile law, and all matters relevant to maintaining an effective and
efficient Juvenile Code that will promote public safety and serve the best
interests of Georgia's children.
(b)
As used in this article, the term 'commission' means the Georgia Juvenile Code
Commission.
15-11-761.
(a)
The commission shall be composed of 13 members, as follows:
(1)
The Governor shall appoint five members as follows:
(A)
One member who shall be a judge in a superior court;
(B)
Two members who shall be judges in a juvenile court;
(C)
One member who shall be a Justice of the Supreme Court or a Judge of the Court
of Appeals or the Justice's or Judge's designee; and
(D)
One other member;
(2)
The Lieutenant Governor shall appoint one member who shall be a member of the
Senate;
(3)
The Speaker of the House of Representatives shall appoint one member who shall
be a member of the House of Representatives;
(4)
The commissioner of juvenile justice or his or her designee;
(5)
The commissioner of human services or his or her designee;
(6)
The commissioner of behavioral health and developmental disabilities or his or
her designee;
(7)
The director of the Division of Family and Children Services within the
Department of Human Services or his or her designee;
(8)
The director of the Georgia Public Defender Standards Council shall appoint one
member who shall be a criminal defense attorney who routinely defends juvenile
offenders; and
(9)
The chairperson of the Prosecuting Attorneys' Council of the State of Georgia
shall appoint a prosecuting attorney who routinely prosecutes juvenile
offenders.
(b)
Each member of the commission shall be appointed to serve for a term of four
years or until his or her successor is duly appointed, except the members of the
General Assembly, who shall serve until completion of their current terms of
office. A member may be appointed to succeed himself or herself on the
commission. If a member of the commission is an elected or appointed official,
the member, or his or her designee, shall be removed from the commission if the
member no longer serves as such elected or appointed official.
(c)
The Governor shall designate the chairperson of the commission. The commission
may elect other officers as it deems necessary. The chairperson of the
commission may designate and appoint committees from among the membership of the
commission as well as appoint other persons to perform such functions as he or
she may determine to be necessary as relevant to and consistent with this
article. The chairperson shall only vote to break a tie.
(d)
The commission shall be attached for administrative purposes only to the
Governor's Office for Children and Family Services. The Governor's Office for
Children and Family Services shall provide staff support for the commission.
The Governor's Office for Children and Family Services shall use any funds
specifically appropriated to it to support the work of the
commission.
15-11-762.
(a)
The commission may conduct such meetings at such places and at such times as it
may deem necessary or convenient to enable it to exercise fully and effectively
its powers, perform its duties, and accomplish the objectives and purposes of
this article. The commission shall hold meetings at the call of the chairperson.
The commission shall meet not less than once every year.
(b)
A quorum for transacting business shall be a majority of the members of the
commission.
(c)
Any legislative members of the commission shall receive the allowances provided
for in Code Section 28-1-8. Citizen members shall receive a daily expense
allowance in the amount specified in subsection (b) of Code Section 45-7-21 as
well as the mileage or transportation allowance authorized for state employees.
Members of the commission who are state officials, other than legislative
members, or state employees shall receive no compensation for their services on
the commission, but they shall be reimbursed for expenses incurred by them in
the performance of their duties as members of the commission in the same manner
as they are reimbursed for expenses in their capacities as state officials or
state employees. The funds necessary for the reimbursement of the expenses of
state officials, other than legislative members, and state employees shall come
from funds appropriated to or otherwise available to their respective
departments. All other funds necessary to carry out the provisions of this
article shall come from funds appropriated to the House of Representatives and
the Senate.
15-11-763.
(a)
The commission shall have the following duties:
(1)
To periodically, and at least every two years, review the conditions, needs,
issues, and problems related to this chapter; issue a report on the same to the
Executive Council of the Governor, the Governor's Office of Planning and Budget,
and the chairpersons of the House Committee on Appropriations, the Senate
Appropriations Committee, the House Committee on Judiciary, and the Senate
Judiciary Committee; and recommend any action or proposed legislation which the
commission deems necessary or appropriate. Nothing contained in the commission's
report shall be considered to authorize or require a change in this chapter or
any law affecting juveniles without action by the General Assembly;
(2)
To evaluate and consider the best practices, experiences, and results of
legislation in other states with regard to children and families involved in the
juvenile court or equivalent systems; and
(3)
To identify and recommend whether and when this chapter or any other state law
should be modified to conform, whenever desirable, to federal legislation
regarding juvenile law.
(b)
The commission shall have the following powers:
(1)
To evaluate how the laws and programs contained in this chapter are
working;
(2)
To request and receive data from and review the records of appropriate agencies
to the greatest extent allowed by state and federal law;
(3)
To accept public or private grants, devises, and bequests;
(4)
To authorize entering into contracts or agreements through the commission's
chairperson necessary or incidental to the performance of its
duties;
(5)
To establish rules and procedures for conducting the business of the commission;
and
(6)
To conduct studies, hold public meetings, collect data, or take any other action
the commission deems necessary to fulfill its responsibilities.
(c)
The commission shall be authorized to retain the services of attorneys,
consultants, subject matter experts, economists, budget analysts, data analysts,
statisticians, and other individuals or firms as determined appropriate by the
commission.
15-11-764.
This
article shall be repealed effective June 30, 2024, unless continued in effect by
the General Assembly prior to that
date."
PART
II
CHILDREN AND YOUTH SERVICES
SECTION 2-1.
CHILDREN AND YOUTH SERVICES
SECTION 2-1.
Article
1 of Chapter 5 of Title 49 of the Official Code of Georgia Annotated, relating
to children and youth services, is amended by adding two new Code sections to
read as follows:
"49-5-24.
(a)
The department shall adopt a procedure by which a child or young adult as such
terms are defined in Code Sections 15-11-2 and 15-11-351, respectively, formerly
in foster care may appeal an eligibility determination or the failure of the
Division of Family and Children Services of the department to provide aftercare
or transitional support services, as set forth in Article 5 Chapter 11 of Title
15, or the termination of such services.
(b)
The appeal procedure developed by the department shall be readily available to a
child or a young adult formerly in foster care, shall provide timely decisions,
and shall provide for an administrative appeal and judicial review of the
administrative decision.
49-5-25.
The
department shall develop outcome and other performance measures for the
independent living skills program, as set forth in Article 5 Chapter 11 of Title
15, in order to maintain oversight of such
program."
PART
III
CROSS REFERENCES
SECTION 3-1.
CROSS REFERENCES
SECTION 3-1.
Code
Section 1-2-8 of the Official Code of Georgia Annotated, relating to rights of
minors, is revised as follows:
"1-2-8.
The
law prescribes certain ages at which persons shall be considered of sufficient
maturity to discharge certain civil functions, to make contracts, and to dispose
of property. Prior to those ages they are minors and are, on account of that
disability, unable to exercise these rights as citizens unless such minor
becomes emancipated by operation of law or pursuant to Article
6
11
of Chapter 11 of Title 15."
SECTION
3-2.
Code
Section 5-7-1 of the Official Code of Georgia Annotated, relating to orders,
decisions, or judgments appealable by the state, is amended by revising
paragraph (6) of subsection (a) as follows:
"(6)
From an order, decision, or judgment of a superior court transferring a case to
the juvenile court pursuant to
subparagraph
(b)(2)(B) of Code Section
15-11-28
15-11-567;"
SECTION
3-3.
Code
Section 13-3-20 of the Official Code of Georgia Annotated, relating to minors
and contracts for property or valuable consideration and contracts for
necessities, is revised as follows:
"13-3-20.
(a)
Generally the contract of a minor is voidable. If in a contractual transaction
a minor receives property or other valuable consideration and, after arrival at
the age of 18, retains possession of such property or continues to enjoy the
benefit of such other valuable consideration, the minor shall have thereby
ratified or affirmed the contract and it shall be binding on him or her. Such
contractual transaction shall also be binding upon any minor who becomes
emancipated by operation of law or pursuant to Article
6
11
of Chapter 11 of Title 15.
(b)
The contract of a minor for necessaries shall be binding on the minor as if the
minor were 18 years of age except that the party furnishing them to the minor
shall prove that the parent or guardian of such minor had failed or refused to
supply sufficient necessaries for the minor, that the minor was emancipated by
operation of law, or the minor was emancipated pursuant to Article
6
11
of Chapter 11 of Title 15."
SECTION
3-4.
Title
15 of the Official Code of Georgia Annotated, relating to courts, is amended by
revising subsection (e) of Code Section 15-23-7, relating to collection of
additional legal costs in civil actions for purposes of providing
court-connected or court-referred alternative dispute resolution programs, as
follows:
"(e)
Juvenile court supervision fees collected pursuant to Code Section
15-11-71
15-11-37
may be used for mediation services provided by court programs pursuant to this
chapter."
SECTION
3-5.
Said
title is further amended by revising Code Section 15-23-10, relating to the
determination of need as prerequisite to establishment of program, as
follows:
"15-23-10.
No
alternative dispute resolution program shall be established for any court unless
the judge or a majority of the judges of such court determine that there is a
need for such program in that court. The funding mechanism set forth in this
chapter shall be available to any
court,
including the juvenile court, which,
having determined that a court-annexed or court-referred alternative dispute
resolution program would make a positive contribution to the ends of justice in
that court, has developed a program meeting the standards of the Georgia Supreme
Court's Uniform Rule for Alternative Dispute Resolution Programs. Pursuant to
the standards set forth in the Georgia Supreme Court's Uniform Rule for
Alternative Dispute Resolutions Programs, the funding mechanism set forth in
this chapter shall be available to court programs in which cases are screened by
the judge or by the program director under the supervision of the judge on a
case-by-case basis to determine whether:
(1)
The case is appropriate for the process;
(2)
The parties are able to compensate the neutral if compensation is required;
and
(3)
A need for emergency relief makes referral inappropriate until the request for
relief is heard by the court."
SECTION
3-6.
Title
16 of the Official Code of Georgia Annotated, relating to crimes and offenses,
is amended by revising paragraphs (1) and (3) of subsection (a) of Code Section
16-5-45, relating to interference with custody, as follows:
"(1)
'Child' means any individual who is under the age of 17 years or any individual
who is under the age of 18 years who is alleged to be a
deprived
dependent
child or an
unruly child
a child in
need of services as such terms are defined
in Code Section 15-11-2."
"(3)
'Lawful custody' means that custody inherent in the natural parents, that
custody awarded by proper authority as provided in Code Section
15-11-45
15-11-133,
or that custody awarded to a parent, guardian, or other person by a court of
competent jurisdiction."
SECTION
3-7.
Said
title is further amended by revising paragraph (3) of subsection (a) of Code
Section 16-10-52, relating to escape, as follows:
"(3)
Having been adjudicated of a delinquent
or
unruly act or a juvenile traffic offense,
or as a child
in need of services subject to lawful custody or lawful
confinement, intentionally escapes from
lawful custody or from any place of lawful confinement;"
SECTION
3-8.
Said
title is further amended by revising paragraph (3) of subsection (c) of Code
Section 16-11-101.1, relating to furnishing a pistol or revolver to a person
under the age of 18 years, as follows:
"(3)
In addition to any other act which violates this subsection, a parent or legal
guardian shall be deemed to have violated this subsection if such parent or
legal guardian furnishes to or permits possession of a pistol or revolver by any
minor who has been convicted of a forcible felony or forcible misdemeanor, as
defined in Code Section 16-1-3, or who has been adjudicated delinquent under the
provisions of Article
1
7
of Chapter 11 of Title 15 for an offense which would constitute a forcible
felony or forcible misdemeanor, as defined in Code Section 16-1-3, if such minor
were an adult."
SECTION
3-9.
Said
title is further amended by revising subsection (b) of Code Section 16-11-127.1,
relating to carrying weapons within school safety zones, at school functions, or
on school property, as follows:
"(b)(1)
Except as otherwise provided in subsection (c) of this Code section, it shall be
unlawful for any person to carry to or to possess or have under such person's
control while within a school safety zone or at a school building, school
function, or school property or on a bus or other transportation furnished by
the school any weapon or explosive compound, other than fireworks the possession
of which is regulated by Chapter 10 of Title 25.
(2)
Any license holder who violates this subsection shall be guilty of a
misdemeanor. Any person who is not a license holder who violates this
subsection shall be guilty of a felony and, upon conviction thereof, be punished
by a fine of not more than $10,000.00, by imprisonment for not less than two nor
more than ten years, or both.
(3)
Any person convicted of a violation of this subsection involving a dangerous
weapon or machine gun, as such terms are defined in Code Section 16-11-121,
shall be punished by a fine of not more than $10,000.00 or by imprisonment for a
period of not less than five nor more than ten years, or both.
(4)
A child who violates this subsection may be subject to the provisions of Code
Section
15-11-63
15-11-601."
SECTION
3-10.
Said
title is further amended by revising subsection (d) of Code Section 16-11-132,
relating to possession of a pistol or revolver by a person under the age of 18
years, as follows:
"(d)
Subsection (c) of this Code section shall not apply to any person under the age
of 18 years who has been convicted of a forcible felony or forcible misdemeanor,
as defined in Code Section 16-1-3, or who has been adjudicated delinquent under
the provisions of Article
1
7
of Chapter 11 of Title 15 for an offense which would constitute a forcible
felony or forcible misdemeanor, as defined in Code Section 16-1-3, if such
person were an adult."
SECTION
3-11.
Said
title is further amended by revising paragraph (3) of subsection (a) and
subsections (b) and (c) of Code Section 16-12-1, relating to contributing to the
delinquency, unruliness, or deprivation of a minor, as follows:
"(3)
'Minor' means any individual who is under the age of 17 years
who is alleged
to have committed a delinquent act or any
individual under the age of 18
years who
is alleged to be a deprived child or an unruly child as such terms are defined
in Code Section
15-11-2."
"(b)
A person commits the offense of contributing to the
delinquency,
unruliness, or
deprivation
dependancy
of a minor or
causing a child to be in need of services
when such person:
(1)
Knowingly and willfully encourages, causes, abets, connives, or aids a minor in
committing a delinquent act;
(2)
Knowingly and willfully encourages, causes, abets, connives, or aids a minor in
committing an act which would cause such minor to be
found to be
an unruly
a
child in need
of services as such
term
is defined in Code Section 15-11-2; provided, however, that this paragraph shall
not apply to a service provider that notifies the minor's parent, guardian, or
legal custodian of the minor's location and general state of
well
being
well-being
as soon as possible but not later than 72 hours after the minor's acceptance of
services; provided, further, that such notification shall not be required
if:
(A)
The service provider has reasonable cause to believe that the minor has been
abused or neglected and makes a child abuse report pursuant to Code Section
19-7-5;
(B)
The minor will not disclose the name of the minor's parent, guardian, or legal
custodian, and the Division of Family and Children Services within the
Department of Human Services is notified within 72 hours of the minor's
acceptance of services; or
(C)
The minor's parent, guardian, or legal custodian cannot be reached, and the
Division of Family and Children Services within the Department of Human Services
is notified within 72 hours of the minor's acceptance of services;
(3)
Willfully commits an act or acts or willfully fails to act when such act or
omission would cause a minor to be found to be a
deprived
dependant
child as such
term
is defined in Code Section 15-11-2;
(4)
Knowingly and willfully hires, solicits, engages, contracts with, conspires
with, encourages, abets, or directs any minor to commit any felony which
encompasses force or violence as an element of the offense or delinquent act
which would constitute a felony which encompasses force or violence as an
element of the offense if committed by an adult;
(5)
Knowingly and willfully provides to a minor any weapon as defined in paragraph
(2) of subsection (a) of Code Section 16-11-127.1 or any weapon as defined in
Code Section 16-11-121 to commit any felony which encompasses force or violence
as an element of the offense or delinquent act which would constitute a felony
which encompasses force or violence as an element of the offense if committed by
an adult; or
(6)
Knowingly and willfully hires, solicits, engages, contracts with, conspires
with, encourages, abets, or directs any minor to commit any smash and grab
burglary which would constitute a felony if committed by an adult.
(c)
It shall not be a defense to the offense provided for in this Code section that
the minor has not been formally adjudged to have committed a delinquent act or
has not been found to be
unruly or
deprived
dependent or a
child in need of
services."
SECTION
3-12.
Said
title is further amended by revising subsections (c), (e), and (g) of Code
Section 16-12-141.1, relating to disposal of aborted fetuses, as
follows:
"(c)
Within 90 days after May 10, 2005, the Department of Human Resources (now known
as the Department of Public Health for these purposes) shall prepare a reporting
form for physicians which shall include:
(1)
The number of females whose parent or guardian was provided the notice required
in paragraph (1) of subsection (a) of Code Section
15-11-112
15-11-682
by the physician or such physician's agent; of that number, the number of
notices provided personally under subparagraphs (a)(1)(A) and (a)(1)(B) of Code
Section
15-11-112
15-11-682
and the number of notices provided by mail under subparagraph (a)(1)(C) of Code
Section
15-11-112
15-11-682;
and, of each of those numbers, the number of females who, to the best of the
reporting physician's information and belief, went on to obtain the
abortion;
(2)
The number of females upon whom the physician performed an abortion without
providing to the parent or guardian of a minor the notice required by subsection
(a) of Code Section
15-11-112
15-11-682;
and of that number, the number of females for which subsection (b) of Code
Section
15-11-112
15-11-682
and Code Section
15-11-116
15-11-686
were applicable;
(3)
The number of abortions performed upon a female by the physician after receiving
judicial authorization pursuant to subsection (b) of Code Section
15-11-112
15-11-682
and Code Section
15-11-114
15-11-684;
and
(4)
The same information described in paragraphs (1), (2), and (3) of this
subsection with respect to females for whom a guardian or conservator has been
appointed."
"(e)
By February 28 of each year following a calendar year in any part of which this
subsection was in effect, each physician who provided, or whose agent provided,
the notice described in subsection (a) of Code Section
15-11-112
15-11-682
and any physician who knowingly performed an abortion upon a female or upon a
female for whom a guardian or conservator had been appointed because of a
finding of incompetency during the previous calendar year shall submit to the
Department of Public Health a copy of the form described in subsection (c) of
this Code section with the requested data entered accurately and
completely."
"(g)
By June 30 of each year, the Department of Public Health shall issue a public
report providing statistics for the previous calendar year compiled from all the
reports covering that year submitted in accordance with this Code section for
each of the items listed in subsection (c) of this Code section. The report
shall also include statistics which shall be obtained by the Administrative
Office of the Courts giving the total number of petitions or motions filed under
subsection (b) of Code Section
15-11-112
15-11-682
and, of that number, the number in which the court appointed a guardian ad
litem, the number in which the court appointed counsel, the number in which the
judge issued an order authorizing an abortion without notification, the number
in which the judge denied such an order, and, of the last, the number of denials
from which an appeal was filed, the number of such appeals that resulted in the
denials being affirmed, and the number of such appeals that resulted in
reversals of such denials. Each report shall also provide the statistics for
all previous calendar years for which such a public statistical report was
required to be issued, adjusted to reflect any additional information from late
or corrected reports. The Department of Public Health shall ensure that none of
the information included in the public reports could reasonably lead to the
identification of any individual female or of any female for whom a guardian or
conservator has been appointed."
SECTION
3-13.
Title
17 of the Official Code of Georgia Annotated, relating to criminal procedure, is
amended by revising subsection (a) of Code Section 17-7-50.1, relating to time
for presentment of child's case to a grand jury, as follows:
"(a)
Any child who is charged with a crime that is within the jurisdiction of the
superior court, as provided in Code Section
15-11-28
15-11-560
or
15-11-30.2
15-11-561,
who is detained shall within 180 days of the date of detention be entitled to
have the charge against him or her presented to the grand jury. The superior
court shall, upon motion for an extension of time and after a hearing and good
cause shown, grant one extension to the original 180 day period, not to exceed
90 additional days."
SECTION
3-14.
Said
title is further amended by revising paragraph (1) of subsection (a) of Code
Section 17-7-130, relating to proceedings upon a plea of mental incompetency to
stand trial, as follows:
"(1)
'Child' means an accused person under the jurisdiction of the superior court
pursuant to Code Section
15-11-28
15-11-560."
SECTION
3-15.
Said
title is further amended by revising subsection (e) of Code Section 17-10-1,
relating to fixing of sentence, as follows:
"(e)
In any case involving a felony in which the defendant previously appeared before
a juvenile court, the records of the dispositions of the defendant as well as
any evidence used in any juvenile court hearing shall be available to the
district attorney, the defendant, and the superior court judge in determining
sentencing as provided in Code Section
15-11-79.1
15-11-703."
SECTION
3-16.
Said
title is further amended by revising Code Section 17-10-14, relating to
committal of person under 17 convicted of a felony, as follows:
"17-10-14.
(a)
Notwithstanding any other provisions of this article and except as otherwise
provided in
subsections
(b) and (c)
subsection
(b) of this Code section, in any case
where a person under the age of 17 years is convicted of a felony and sentenced
as an adult to life imprisonment or to a certain term of imprisonment, such
person shall be committed to the Department of Juvenile Justice to serve such
sentence in a detention center of such department until such person is 17 years
of age at which time such person shall be transferred to the Department of
Corrections to serve the remainder of the sentence. This Code section shall
apply to any person convicted on or after July 1, 1987, and to any person
convicted prior to such date who has not been committed to an institution
operated by the Department of Corrections.
(b)
If a child is transferred to superior court according to subsection (b) of Code
Section
15-11-30.2
15-11-561
and convicted of aggravated assault as defined in Chapter 5 of Title 16, the
court may sentence such child to the Department of Corrections. Such child
shall be housed in a designated youth confinement unit until such person is 17
years of age, at which time such person may be housed in any other unit
designated by the Department of Corrections.
(c)
In any case where a child 13 to 17 years of age is convicted of a felony
provided under subparagraph (b)(2)(A) of Code Section 15-11-28, such child shall
be committed to the custody of the Department of Corrections and shall be housed
in a designated youth confinement unit until such person is 17 years of age, at
which time such person may be housed in any other unit designated by the
Department of
Corrections."
SECTION
3-17.
Said
title is further amended by revising paragraph (5) of Code Section 17-14-2,
relating to definitions regarding restitution, as follows:
"(5)
'Parent' means a person who is the legal mother as defined in
paragraph
(10.2) of Code Section 15-11-2, the legal
father as defined in
paragraph
(10.1) of Code Section 15-11-2, or the
legal guardian. Such term shall not include a foster parent."
SECTION
3-18.
Said
title is further amended by revising subsection (d) of Code Section 17-15-13,
relating to debt to state created, as follows:
"(d)
When a child is adjudicated delinquent in a juvenile court proceeding involving
a crime upon which a claim under this chapter can be made, the juvenile court in
its discretion may order that the child pay the debt to the state as an adult
would have to pay had an adult committed the crime. Any assessments so ordered
may be made a condition of probation as provided in
paragraph
(2) of subsection (a) of Code Section
15-11-66
15-11-601."
SECTION
3-19.
Said
title is further amended by revising subsection (c) of Code Section 17-16-2,
relating to applicability of rules of discovery, as follows:
"(c)
This article shall be deemed to have been automatically invoked, without the
written notice provided for in subsection (a) of this Code section, when a
defendant has sought discovery pursuant to Chapter 11 of Title 9, the 'Georgia
Civil Practice Act,' pursuant to
Code
Section 15-11-75
Part 8 of
Article 7 of Chapter 11 of Title 15, or
pursuant to the Uniform Rules for the Juvenile Courts of Georgia where such
discovery material is the same as the discovery material that may be provided
under this article when a written notice is filed pursuant to subsection (a) of
this Code section."
SECTION
3-20.
Said
title is further amended by revising subsection (d) of Code Section 19-7-22,
relating to petition for legitimation of a child, as follows:
"(d)
A legitimation petition may be filed, pursuant to
paragraph
(2) of subsection (e) of Code Section
15-11-28
15-11-11,
in the juvenile court of the county in which a
deprivation
dependency
proceeding regarding the child is pending."
SECTION
3-21.
Said
title is further amended by revising paragraph (4) of subsection (a) of Code
Section 19-8-10, relating to when surrender or termination of parental rights
not required, as follows:
"(4)
Parent has failed to exercise proper parental care or control due to misconduct
or inability, as set out in paragraph
(2),
(3),
or
(4), or
(5) of subsection
(b)
(a)
of Code Section
15-11-94
15-11-310,"
SECTION
3-22.
Said
title is further amended by revising subparagraph (a)(3)(D) of Code Section
19-8-11, relating to petitioning superior court to terminate parental rights, as
follows:
"(D)
Parent has failed to exercise proper parental care or control due to misconduct
or inability, as set out in paragraph
(2),
(3),
or
(4), or
(5) of subsection
(b)
(a)
of Code Section
15-11-94
15-11-310,"
SECTION
3-23.
Said
title is further amended by revising subsection (g) of Code Section 19-8-13,
relating to petition for adoption, as follows:
"(g)
Notwithstanding the provisions of Code Sections 19-8-5 and 19-8-7 and this Code
section which require obtaining and attaching a written voluntary surrender and
acknowledgment thereof and affidavits of the legal mother and a representative
of the petitioner, where the adoption is sought under subsection (a) of Code
Section 19-8-5 or 19-8-7 following the termination of parental rights and the
placement of the child by the juvenile court pursuant to
paragraph
(1) of subsection (a) of Code Section
15-11-103
15-11-321,
obtaining and attaching to the petition a certified copy of the order
terminating parental rights of the parent shall take the place of obtaining and
attaching those otherwise required surrenders, acknowledgments, and
affidavits."
SECTION
3-24.
Said
title is further amended by revising Code Section 19-10A-4, relating to no
criminal prosecution for leaving a child in the custody of a medical facility,
as follows:
"19-10A-4.
A
mother shall not be prosecuted for
the crimes
of cruelty to a child,
violating
Code Section
16-5-70;
contributing to the delinquency, unruliness, or deprivation of a
child,
Code
Section
16-12-1; or
abandonment of a dependent child,
or
Code
Section
19-10-1,
because of the act of leaving her newborn child in the physical custody of an
employee, agent, or member of the staff of a medical facility who is on duty,
whether there in a paid or volunteer position, provided that the newborn child
is no more than one week old and the mother shows proof of her identity, if
available, to the person with whom the newborn is left and provides her name and
address."
SECTION
3-25.
Said
title is further amended by revising Code Section 19-10A-6, relating to
reimbursement of medical costs, as follows:
"19-10A-6.
A
medical facility which accepts for inpatient admission a child left pursuant to
Code Section 19-10A-4 shall be reimbursed by the Department of Human Services
for all reasonable medical and other reasonable costs associated with the child
prior to the child being placed in the care of the department. A medical
facility shall notify the Department of Human Services at such time as the child
is left and at the time the child is medically ready for discharge. Upon
notification that the child is medically ready for discharge, the Department of
Human Services shall take physical custody of the child within six hours. The
Department of Human Services upon taking physical custody shall promptly bring
the child before the juvenile court as required by Code Section
15-11-47
15-11-145."
SECTION
3-26.
Said
title is further amended by revising Code Section 19-13-20, relating to
definitions regarding family violence shelters, as follows:
"(5)
'Family violence shelter' means a facility approved by the department for the
purpose of receiving, on a temporary basis, persons who are subject to family
violence. Family violence shelters are distinguished from shelters operated for
detention or placement of children only, as provided in subsection (a) of Code
Section
15-11-48
15-11-504 and
subsection (c) of Code Section
15-11-135."
SECTION
3-27.
Title
20 of the Official Code of Georgia Annotated, relating to education, is amended
by revising paragraph (3) of Code Section 20-1A-30, relating to definitions for
background checks, as follows:
"(3)
'Crime' means any felony; a violation of Code Section
16-5-23,
relating to simple battery, when the
victim is a minor; a violation of Code Section
16-12-1,
relating to contributing to the delinquency of a
minor; a violation of Chapter 6 of Title
16,
relating to sexual offenses; a violation
of Code Section
16-4-1,
relating to criminal attempt when the
crime attempted is any of the crimes specified by this paragraph; or any other
offenses committed in another jurisdiction which, if committed in this state,
would be one of the enumerated crimes listed in this
paragraph."
SECTION
3-28.
Said
title is further amended by revising subsection (b) of Code Section 20-2-670,
relating to requirements for transferring students beyond sixth grade, as
follows:
"(b)
In lieu of complying with the provision of subsection (a) of this Code section,
a transferring student may be admitted on a conditional basis if he or she and
his or her parent or legal guardian executes a document providing the name and
address of the school last attended and authorizing the release of all academic
and disciplinary records to the school administration. The parent or guardian
shall be notified of the transfer of such records and shall, upon written
request made within ten days of such notice, be entitled to receive a copy of
such records. Within five days of the receipt of a copy of such records, the
parent or guardian may make a written request for and shall be entitled to a
hearing before the principal of the school or his or her designee which is the
custodian of such records for the purpose of challenging the content of the
records. The student or his or her parent or legal guardian shall also disclose
on the same document as the release whether the child has ever been adjudicated
guilty of the commission of a designated felony act as defined in Code Section
15-11-63
15-11-2
and, if so, the date of such adjudication, the offense committed, the
jurisdiction in which such adjudication was made, and the sentence imposed. Any
form document to authorize the release of records which is provided by a school
to a transferring student or such student's parent or legal guardian shall
include a list of designated felony acts. The student or his or her parent or
legal guardian shall also disclose on the document whether the student is
currently serving a suspension or expulsion from another school, the reason for
such discipline, and the term of such discipline. If a student so conditionally
admitted is found to be ineligible for enrollment pursuant to the provisions of
Code Section 20-2-751.2, or is subsequently found to be so ineligible, he or she
shall be dismissed from enrollment until such time as he or she becomes so
eligible."
SECTION
3-29.
Said
title is further amended by revising Code Section 20-2-671, relating to transfer
students who have committed felony acts, as follows:
"20-2-671.
If
any school administrator determines from the information obtained pursuant to
Code Section
15-11-63
15-11-602
or 20-2-670 or from any other source that a student has committed a designated
felony act, such administrator shall so inform all teachers to whom the student
is assigned that they may review the information in the student's file provided
pursuant to subsection (b) of Code Section 20-2-670 received from other schools
or from the juvenile courts. Such information shall be kept
confidential."
SECTION
3-30.
Said
title is further amended by revising paragraph (14) of subsection (c) and
subsection (g) of Code Section 20-2-690.2, relating to establishment of student
attendance protocol committee, membership and protocol, summary of penalties for
failure to comply, and reporting, as follows:
"(14)
The court approved community based risk reduction program established by the
juvenile court in accordance with Code Section
15-11-10
15-11-38,
if such a program has been established."
"(g)
The committee shall write the summary of possible consequences and penalties for
failing to comply with compulsory attendance under Code Section 20-2-690.1 for
children and their parents, guardians, or other persons who have control or
charge of children for distribution by schools in accordance with Code Section
20-2-690.1. The summary of possible consequences for children shall include
possible dispositions for
unruly
children in
need of services and possible denial or
suspension of a driver's license for a child in accordance with Code Section
40-5-22."
SECTION
3-31.
Said
title is further amended by revising Code Section 20-2-699, relating to the
disposition of children taken into custody, as follows:
"20-2-699.
Any
person assuming temporary custody of a child pursuant to Code Section 20-2-698
shall immediately deliver the child either to the parent, guardian, or other
person having control or charge of the child or to the school from which the
child is absent, or if the child is found to have been adjudged a delinquent or
unruly
in need of
services,
he
the person
shall cause the child to be brought before
the probation officer of the county having jurisdiction over such
child."
SECTION
3-32.
Said
title is further amended by revising subsection (d) of Code Section 20-2-751.2,
relating to students subject to disciplinary orders of other school systems, as
follows:
"(d)
If any school administrator determines from the information obtained pursuant to
this Code section or from Code Section
15-11-28 or
15-11-80
15-11-599,
15-11-602, or 15-11-707 that a student has
been convicted of or has been adjudicated to have committed an offense which is
a designated felony act under Code Section
15-11-63
15-11-2,
such administrator shall so inform all teachers to whom the student is assigned
and other school personnel to whom the student is assigned. Such teachers and
other certificated professional personnel as the administrator deems appropriate
may review the information in the student's file provided pursuant to this Code
section that has been received from other schools or from the juvenile courts or
superior courts. Such information shall be kept
confidential."
SECTION
3-33.
Said
title is further amended by revising Code Section 20-2-766.1, relating to
proceeding against parents for failure to cooperate in educational programs, as
follows:
"20-2-766.1.
The
local board of education may, by petition to the juvenile court, proceed against
a parent or guardian as provided in this Code section. If the court finds that
the parent or guardian has willfully and unreasonably failed to attend a
conference requested by a principal pursuant to Code Section 20-2-765 or
20-2-766, the court may order the parent or guardian to attend such a
conference, order the parent or guardian to participate in such programs or such
treatment as the court deems appropriate to improve the student's behavior, or
both. After notice and opportunity for hearing, the court may impose a fine,
not to exceed $500.00, on a parent or guardian who willfully disobeys an order
of the court entered under this Code section. The court may use its contempt
and other powers specified in Code Section
15-11-5
15-11-31
to enforce any order entered under this Code section."
SECTION
3-34.
Said
title is further amended by revising subsection (a) of Code Section 20-2-768,
relating to expulsion or suspension of students for felonies, as
follows:
"(a)
Each local board of education is authorized to refuse to readmit or enroll any
student who has been suspended or expelled for being convicted of, being
adjudicated to have committed, being indicted for, or having information filed
for the commission of any felony or any delinquent act under Code
Section
15-11-28
Sections
15-11-602 and 15-11-707 which would be a
felony if committed by an adult. If refused readmission or enrollment, the
student or the student's parent or legal guardian has the right to request a
hearing pursuant to the procedures provided for in Code Section
20-2-754."
SECTION
3-35.
Said
title is further amended by revising subparagraph (B) of paragraph (1) of Code
Section 20-3-660, relating to program of grants for foster children created, as
follows:
"(B)
The student is currently committed to the Division of Family and Children
Services within the Department of Human Services under Code Section
15-11-55
15-11-212
and placed in a family foster home or is placed in accordance with
subparagraph
(a)(2)(C) of Code Section
15-11-2
15-11-212;"
SECTION
3-36.
Title
24 of the Official Code of Georgia Annotated, relating to evidence, is amended
by revising subsection (b) of Code Section 24-6-603, relating to oath or
affirmation, as follows:
"(b)
Notwithstanding the provisions of subsection (a) of this Code section, in all
proceedings involving
deprivation
dependency
as defined by Code Section 15-11-2 and in all criminal proceedings in which a
child was a victim of or witness to any crime, the child shall be competent to
testify, and the child's credibility shall be determined as provided in this
chapter."
SECTION
3-37.
Said
title is further amended by revising subsection (q) of Code Section 24-12-21,
relating to disclosure of AIDS confidential information, as
follows:
"(q)
A public safety agency or prosecuting attorney may obtain the results from an
HIV test to which the person named in the request has submitted under Code
Section
15-11-66.1
15-11-603,
17-10-15, 42-5-52.1, or 42-9-42.1, notwithstanding that the results may be
contained in a sealed record."
SECTION
3-38.
Code
Section 31-22-9.2 of the Official Code of Georgia Annotated, relating to HIV
tests and reports of positive results, is amended by revising subsection (c) as
follows:
"(c)
Unless exempted under this Code section, each health care provider who orders an
HIV test for any person shall do so only after counseling the person to be
tested. Unless exempted under this subsection, the person to be tested shall
have the opportunity to refuse the test. The provisions of this subsection
shall not be required if the person is required to submit to an HIV test
pursuant to Code Section
15-11-66.1
15-11-603,
17-10-15, 31-17-4.2, 31-17A-3, 42-5-52.1, or 42-9-42.1. The provisions of this
subsection shall not be required if the person is a minor or incompetent and the
parent or guardian thereof permits the test after compliance with this
subsection. The provisions of this subsection shall not be required if the
person is unconscious, temporarily incompetent, or comatose and the next of kin
permits the test after compliance with this subsection. The provisions of this
subsection shall not apply to emergency or life-threatening situations. The
provisions of this subsection shall not apply if the physician ordering the test
is of the opinion that the person to be tested is in such a medical or emotional
state that disclosure of the test would be injurious to the person's health.
The provisions of this subsection shall only be required prior to drawing the
body fluids required for the HIV test and shall not be required for each test
performed upon that fluid sample."
SECTION
3-39.
Title
35 of the Official Code of Georgia Annotated, relating to law enforcement
officers and agencies, is amended by revising subsection (c) of Code Section
35-3-33, relating to powers and duties of the Georgia Crime Information Center,
as follows:
"(c)
The provisions of this article notwithstanding, information and records of
children shall only be inspected and disclosed as provided in Code Sections
15-11-82
15-11-702
and
15-11-83
15-11-708.
Such records and information shall be
sealed
or destroyed according to the procedures
outlined in Code Sections
15-11-79.2
15-11-701
and
15-11-81
15-11-709."
SECTION
3-40.
Said
title is further amended by revising subparagraph (B) of paragraph (7) of Code
Section 35-8-2, relating to definitions regarding peace officers, as
follows:
"(B)
The Office of Permits and Enforcement of the Department of Transportation, the
Department of Juvenile Justice and its institutions and facilities for the
purpose of personnel who are authorized to exercise the power of arrest and who
are employed or appointed by said department or institutions, and the office or
section in the Department of Juvenile Justice in which persons are assigned who
have been designated by the commissioner to investigate and apprehend
unruly
and delinquent children
and any child
with a pending juvenile court case alleging the child to be in need of
services; and"
SECTION
3-41.
Code
Section 36-32-10 of the Official Code of Georgia Annotated, relating to
jurisdiction in cases of furnishing alcoholic beverages, is amended by revising
subsection (e) as follows:
"(e)
Nothing in this Code section shall affect the original and exclusive
jurisdiction of the juvenile court as set forth in Code Section
15-11-28
15-11-10."
SECTION
3-42.
Title
40 of the Official Code of Georgia Annotated, relating to motor vehicles and
traffic, is amended by revising subsection (g) of Code Section 40-5-75, relating
to suspension of licenses by operation of law, as follows:
"(g)
Notwithstanding the provisions of Code Section
15-11-72
15-11-606
and except as provided in subsection (c) of this Code section, an adjudication
of a minor child as a delinquent child
or an
unruly child for any offense listed in
subsection (a) of this Code section shall be deemed a conviction for purposes of
this Code section."
SECTION
3-43.
Said
title is further amended by revising subsection (l) of Code Section 40-6-391,
relating to driving under the influence of alcohol, drugs, or other intoxicating
substances, as follows:
"(l)
A person who violates this Code section while transporting in a motor vehicle a
child under the age of 14 years is guilty of the separate offense of endangering
a child by driving under the influence of alcohol or drugs. The offense of
endangering a child by driving under the influence of alcohol or drugs shall not
be merged with the offense of driving under the influence of alcohol or drugs
for the purposes of prosecution and sentencing. An offender who is convicted of
a violation of this subsection shall be punished in accordance with the
provisions of subsection (d) of Code Section
16-12-1,
relating to the offense of contributing to the delinquency, unruliness, or
deprivation of a child."
SECTION
3-44.
Code
Section 44-5-41 of the Official Code of Georgia Annotated, relating to voidance
and ratification of conveyance to or by a minor, is revised as
follows:
"44-5-41.
A
deed, security deed, bill of sale to secure debt, or any other conveyance of
property or interest in property to or by a minor is voidable unless such minor
has become emancipated by operation of law or pursuant to Article
6
11
of Chapter 11 of Title 15. If a minor has conveyed property or an interest in
property, the minor may void the conveyance upon arrival at the age of 18; and,
if the minor makes another conveyance at that time, it will void the first
conveyance without reentry or repossession. If property or an interest in
property has been conveyed to a minor and, after arrival at the age of 18, the
minor retains the possession or benefit of the property or interest in property,
the minor shall have thereby ratified or affirmed the
conveyance."
SECTION
3-45.
Title
45 of the Official Code of Georgia Annotated, relating to public officers and
employees, is amended by revising paragraph (7) of Code Section 45-9-81,
relating to definitions regarding certain indemnification, as
follows:
"(7)
'Law enforcement officer' means any agent or officer of this state, a political
subdivision or municipality of this state, or an authority of this state or a
political subdivision of this state who, as a full-time or part-time employee,
is vested either expressly by law or by virtue of public employment or service
with authority to enforce the criminal or traffic laws with the power of arrest
and whose duties include the preservation of public order, the protection of
life and property, or the prevention, detection, or investigation of crime.
Such term also includes the employees designated by the commissioner of juvenile
justice of
the Department of Juvenile Justice
pursuant to paragraph (2) of subsection (i) of Code Section 49-4A-8, which
employees have the duty to investigate and apprehend delinquent
and
unruly children
and any child
with a pending juvenile court case alleging the child to be in need of
services who
have
has
escaped from a facility under the jurisdiction of the Department of Juvenile
Justice or who
have
has
broken the conditions of supervision. Such term also includes members of the
Georgia National Guard, the composition of which is set forth in Code Section
38-2-3, who have been called into active state service by the
Governor."
SECTION
3-46.
Said
title is further amended by revising paragraph (7) of Code Section 45-9-101,
relating to definitions regarding certain compensation, as follows:
"(7)
'Law enforcement officer' means any agent or officer of this state, or a
political subdivision or municipality thereof, who, as a full-time or part-time
employee, is vested either expressly by law or by virtue of public employment or
service with authority to enforce the criminal or traffic laws and whose duties
include the preservation of public order, the protection of life and property,
or the prevention, detection, or investigation of crime. Such term also
includes the employees designated by the commissioner of juvenile justice
of the
Department of Juvenile Justice pursuant to
paragraph (2) of subsection (i) of Code Section 49-4A-8, which employees have
the duty to investigate and apprehend delinquent
and
unruly children
and any child
with a pending juvenile court case alleging the child to be in need of
services who
have
has
escaped from a facility under the jurisdiction of the Department of Juvenile
Justice or who
have
has
broken the conditions of supervision. Such term also includes members of the
Georgia National Guard, the composition of which is set forth in Code Section
38-2-3, who have been called into active state service by the
Governor."
SECTION
3-47.
Said
title is further amended by revising subsection (a) of Code Section 45-20-1,
relating to purposes and principles of personnel administration, as
follows:
"(a)
It is the purpose of this article to establish in the state a system of
personnel administration which will attract, select, and retain the best
employees based on merit, free from coercive political influences, with
incentives in the form of equal opportunities for all; which will provide
technically competent and loyal personnel to render impartial service to the
public at all times and to render such service according to the dictates of
ethics and morality; and which will remove unnecessary and inefficient
employees. It is specifically the intent of the General Assembly to promote
this purpose by allowing agencies greater flexibility in personnel management so
as to promote the overall effectiveness and efficiency of state government. To
this end, and in accordance with Code Sections 45-20-2 and 45-20-6, all
positions filled after July 1, 1996, shall be included in the unclassified
service of the State Personnel Administration, except as provided in Code
Section
15-11-24.3
15-11-68.
It is also specifically the intent of the General Assembly that employees in the
classified service prior to July 1, 1996, shall continue to be employees in the
classified service so long as they remain in classified positions or as
otherwise provided by law. It is further specifically the intent of the General
Assembly that state government operate within a framework of consistent core
personnel policies and practices across all state agencies and entities and that
the state's most valued resource, its employees, be managed in a manner to
promote work force productivity and sound business practices."
SECTION
3-48.
Said
title is further amended by revising subsection (a) of Code Section 45-20-6,
relating to composition of classified and unclassified service, as
follows:
"(a)
The classified service as defined by Code Section 45-20-2 shall consist of only
those employees who were in the classified service on June 30, 1996, and who
have remained in a classified position without a break in service since that
date. Any officer or employee who occupies a classified position under the
State Personnel Administration prior to July 1, 1996, or as provided in Code
Section
15-11-24.3
15-11-68
shall remain in the classified service so long as such officer or employee shall
remain in a classified position or as otherwise provided by law. Employees in
the classified service shall have, upon completing a working test period, appeal
rights as provided in Code Sections 45-20-8 and 45-20-9."
SECTION
3-49.
Title
49 of the Official Code of Georgia Annotated, relating to social services, is
amended by revising paragraph (3) of Code Section 49-4A-1, relating to
definitions regarding the Department of Juvenile Justice, as
follows:
"(3)
'Delinquent
or
unruly child or youth
or a child in
need of services' means any person so
adjudged under Article
1
6 or
7 of Chapter 11 of Title
15."
SECTION
3-50.
Said
title is further amended by revising subsection (b) of Code Section 49-4A-2,
relating to the creation of the Board of Juvenile Justice, as
follows:
"(b)
The board shall provide leadership in developing programs to successfully
rehabilitate
juvenile
delinquents and unruly children
adjudicated
delinquent or in need of services
committed to the state's custody and to provide technical assistance to private
and public entities for prevention programs for children at
risk."
SECTION
3-51.
Said
title is further amended by revising Code Section 49-4A-4, relating to purpose
of chapter, as follows:
"49-4A-4.
It
is the purpose of this chapter to establish the department as the agency to
administer, supervise, and manage juvenile detention facilities. Except for the
purposes of administration, supervision, and management as provided in this
chapter, juvenile detention facilities shall continue to be detention care
facilities for delinquent
and
unruly children and youth
and children
in need of services who have violated a valid court
order for the purposes of Article
1
6 or
7 of Chapter 11 of Title
15,
relating to juvenile courts and juvenile
proceedings."
SECTION
3-52.
Said
title is further amended by revising paragraphs (1) and (2) of subsection (a)
and the introductory language of subsection (b) of Code Section 49-4A-7,
relating to powers and duties of the department, as follows:
"(1)
Accept for detention in a youth development center or other juvenile detention
facility any child who is committed to the department under Article
1
7
of Chapter 11 of Title 15;
(2)
Provide probation and parole and other court services for children and youth
pursuant to a request from a court under Article
1
7
of Chapter 11 of Title 15;"
"(b)
When given legal custody over a child or youth for detention in a youth
development center or other facility under court order under Article
1
7
of Chapter 11 of Title 15, the department shall have:"
SECTION
3-53.
Said
title is further amended by revising Code Section 49-4A-8, relating to
commitment of delinquent or unruly children, as follows:
"49-4A-8.
(a)
When any child or youth is adjudged to be in a state of delinquency
or
unruliness
or a child in
need of services who has violated a valid court
order under Article
1
6 or
7 of Chapter 11 of Title 15 and the court
does not release such child or youth unconditionally or place him or her on
probation or in a suitable public or private institution or agency, the court
may commit
him
such
child to the department as provided in
said Article
1
6 or
7 of Chapter 11 of Title 15; provided,
however, that no delinquent
or
unruly child or youth
or child in
need of services who has violated a valid court
order shall be committed to the department
until the department certifies to the Governor that it has facilities available
and personnel ready to assume responsibility for delinquent
or
unruly children and youths
and children
in need of services who have violated a valid court
order.
(b)
When the court commits a delinquent
or
unruly child
or a child in
need of services who has violated a valid court
order to the department, it may order the
child conveyed forthwith to any facility designated by the department or direct
that the child be left at liberty until otherwise ordered by the department
under such conditions as will ensure his
or
her availability and submission to any
orders of the department. If such delinquent
or
unruly child
or child in
need of services who has violated a valid court
order is ordered conveyed to the
department, the court shall assign an officer or other suitable person to convey
such child to any facility designated by the department, provided that the
person assigned to convey a girl must be a female. The cost of conveying such
child committed to the department to the facility designated by the department
shall be paid by the county from which such child is committed, provided that no
compensation shall be allowed beyond the actual and necessary expenses of the
party conveying and the child conveyed.
(c)
When a court commits a delinquent
or
unruly child
or a child in
need of services who has violated a valid court
order to the department, the court shall
at once forward to the department a certified copy of the order of commitment
and the court, the probation officer, the prosecuting and police authorities,
the school authorities, and other public officials shall make available to the
department all pertinent information in their possession with respect to the
case. Such reports shall, if the department so requests, be made upon forms
furnished by the department or according to an outline provided by the
department.
(d)(1)
When a delinquent
or
unruly child
or a child in
need of services who has violated a valid court
order has been committed to the
department, the department shall, under rules and regulations established by the
board, forthwith examine and study the child and investigate all pertinent
circumstances of his
or
her life and behavior. The department
shall make periodic reexaminations of all
delinquent
or unruly
such
children within its control, except those on release under supervision of the
department. Such reexaminations may be made as frequently as the department
considers desirable and shall be made with respect to every child at intervals
not exceeding one year. Failure of the department to examine
a
delinquent or unruly child
such a
child committed to it or to reexamine him
or
her within one year of a previous
examination shall not of itself entitle the child to discharge from control of
the department but shall entitle the child to petition the committing court for
an order of discharge; and the court shall discharge him
or
her unless the department, upon due
notice, satisfies the court of the necessity of further control.
(2)
The department shall keep written records of all examinations and
reexaminations, of conclusions based thereon, and of all orders concerning the
disposition or treatment of every delinquent
or
unruly child
and every
child in need of services who has violated a valid court
order subject to its control. Records as
may be maintained by the department with respect to a delinquent
or
unruly child
or a child in
need of services who has violated a valid court
order committed to the department shall
not be public records but shall be privileged records and may be disclosed by
direction of the commissioner pursuant to federal law in regard to disseminating
juvenile criminal history records only to those persons having a legitimate
interest therein; provided, however, that the commissioner shall permit the
Council of Juvenile Court Judges to inspect and copy such records for the
purposes of obtaining statistics on juveniles.
(e)
Except as provided by subsection (e.1) of this Code section and subsection
(b)
(c)
of Code Section
15-11-70
15-11-602,
when a delinquent
or
unruly child
or a child in
need of services who has violated a valid court
order has been committed to the department
for detention and a diagnostic study for the purpose of determining the most
satisfactory plan for the child's care and treatment has been completed, the
department may:
(1)
Permit the child liberty under supervision and upon such conditions as the
department may believe conducive to acceptable behavior;
(2)
Order the child's confinement under such conditions as the department may
believe best designed to serve the child's welfare and as may be in the best
interest of the public;
(3)
Order reconfinement or renewed release as often as conditions indicate to be
desirable;
(4)
Revoke or modify any order of the department affecting the child, except an
order of final discharge, as often as conditions indicate to be desirable;
or
(5)
Discharge the child from control of the department pursuant to
Code Section
15-11-32 and subsection
(a)
(c)
of Code Section
15-11-70
15-11-607
when it is satisfied that such discharge will best serve the child's welfare and
the protection of the public.
(e.1)(1)
When a child who has been adjudicated delinquent for the commission of a
designated felony act as defined in Code Section
15-11-63
15-11-2
is released from confinement or custody of the department, it shall be the
responsibility of the department to provide notice to any person who was the
victim of the child's delinquent acts that the child is being released from
confinement or custody.
(2)
As long as a good faith attempt to comply with paragraph (1) of this subsection
has been made, the department and employees of the department shall not be
liable for damages incurred by reason of the department's failure to provide the
notice required by paragraph (1) of this subsection.
(3)
When a child convicted of a felony offense in a superior court is released from
confinement or custody of the department, the department shall provide written
notice, including the delinquent or designated felony act committed, to the
superintendent of the school system in which such child was enrolled or, if the
information is known, the school in which such child was enrolled or plans to be
enrolled.
(4)
As long as a good faith attempt to comply with paragraph (3) of this subsection
has been made, the department and employees of the department shall not be
liable for damages incurred by reason of the department's failure to provide
notice required by paragraph (3) of this subsection.
(f)
As a means of correcting the socially harmful tendencies of a delinquent
or
unruly child
or a child in
need of services who has violated a valid court
order committed to it, the department
may:
(1)
Require participation by youth in moral, academic, vocational, physical, and
correctional training and activities, and provide youth the opportunity for
religious activities where practicable in the institutions under the control and
supervision of the department;
(2)
Require such modes of life and conduct as may seem best adapted to fit and equip
him or
her for return to full liberty without
danger to the public;
(3)
Provide such medical, psychiatric, or casework treatment as is necessary;
or
(4)
Place him or
her, if physically fit, in a park,
maintenance camp, or forestry camp or on a ranch owned by the state or by the
United States and require any child so housed to perform suitable conservation
and maintenance work, provided that the children shall not be exploited and that
the dominant purpose of such activities shall be to benefit and rehabilitate the
children rather than to make the camps self-sustaining.
(g)
When funds are available, the department may:
(1)
Establish and operate places for detention and diagnosis of all delinquent
or
unruly children
or children in
need of services who have violated a valid court
order committed to it;
(2)
Establish and operate additional treatment and training facilities, including
parks, forestry camps, maintenance camps, ranches, and group residences
necessary to classify and handle juvenile delinquents of different ages and
habits and different mental and physical conditions, according to their needs;
and
(3)
Establish parole or aftercare supervision to aid children given conditional
release to find homes and employment and otherwise to assist them to become
reestablished in the community and to lead socially acceptable
lives.
(h)
Whenever the department finds that any
delinquent
or unruly child committed to the
department is mentally ill or
mentally
retarded
developmentally
disabled, the department shall have the
power to return such
delinquent
or unruly child to the court of original
jurisdiction for appropriate disposition by that court or may, if it so desires,
request the court having jurisdiction in the county in which the youth
development center or other facility is located to take such action as the
condition of the child may require.
(i)(1)
A child who has been committed to the department
as a
delinquent or unruly child for detention
in a youth development center or who has been otherwise taken into custody and
who has escaped therefrom or who has been placed under supervision and broken
the conditions thereof may be taken into custody without a warrant by a sheriff,
deputy sheriff, constable, police officer, probation officer, parole officer, or
any other officer of this state authorized to serve criminal process, upon a
written request made by an employee of the department having knowledge of the
escape or of the violation of conditions of supervision. Before a child may be
taken into custody for violation of the conditions of supervision, the written
request mentioned above must be reviewed by the commissioner or his
or
her designee. If the commissioner or his
or
her designee finds that probable cause
exists to believe that the child has violated his
or
her conditions of supervision, he
or
she may issue an order directing that the
child be picked up and returned to custody.
(2)
The commissioner may designate as a peace officer who is authorized to exercise
the power of arrest any employee of the department whose full-time duties
include the preservation of public order, the protection of life and property,
the detection of crime, or the supervision of delinquent
and
unruly children
or children in
need of services who have violated a valid court
order in its institutions, facilities, or
programs, or any employee who is a line supervisor of any such employee. The
commissioner also may designate as a peace officer who is authorized to exercise
the power of arrest any employee of a person or organization which contracts
with the department pertaining to the management, custody, care, and control of
delinquent children
or children in
need of services who have violated a valid court
order retained by the person or
organization, if that employee's full-time duties include the preservation of
public order, the protection of life and property, the detection of crime, or
the supervision of delinquent
and
unruly children
or children in
need of services who have violated a valid court
order in the department's institutions,
facilities, or programs, or any employee who is a line supervisor of such
employee. The commissioner may designate one or more employees of the
department to investigate and apprehend delinquent
and
unruly children
or children in
need of services who have violated a valid court
order who have escaped from an institution
or facility or who have broken the conditions of supervision; provided, however,
that the employees so designated shall only be those with primary responsibility
for the security functions of youth development centers or whose primary duty
consists of the apprehension of youths who have escaped from such institutions
or facilities or who have broken the conditions of supervision. An employee of
the department so designated shall have the police power to investigate, to
apprehend such children, and to arrest any person physically interfering with
the proper apprehension of such children. An employee of the department so
designated in the investigative section of the department shall have the power
to obtain a search warrant for the purpose of locating and apprehending such
children. Additionally, such employee, while on the grounds or in the buildings
of the department's institutions or facilities, shall have the same law
enforcement powers, including the power of arrest, as a law enforcement officer
of the local government with police jurisdiction over such institutions or
facilities. Such employee shall be authorized to carry weapons, upon written
approval of the commissioner, notwithstanding Code Sections 16-11-126 and
16-11-129. The commissioner shall also be authorized to designate any person or
organization with whom the department contracts for services pertaining to the
management, custody, care, and control of delinquent
and
unruly children
or children in
need of services who have violated a valid court
order detained by the person or
organization as a law enforcement unit under paragraph (7) of Code Section
35-8-2. Any employee or person designated under this subsection shall be
considered to be a peace officer within the meaning of Chapter 8 of Title 35 and
must be certified under that chapter.
(3)
For the purposes of investigation of delinquent
or
unruly children
or children in
need of services who have violated a valid court
order who have escaped from institutions
or facilities of the department or of delinquent
or
unruly children
or children in
need of services who have violated a valid court
order who are alleged to have broken the
conditions of supervision, the department is empowered and authorized to request
and receive from the Georgia Crime Information Center, established by Chapter 3
of Title 35, any information in the files of the Georgia Crime Information
Center which will aid in the apprehension of such children.
(4)
An employee designated pursuant to paragraph (2) of this subsection may take a
child into custody without a warrant upon personal knowledge or written request
of a person having knowledge of the escape or violation of conditions of
supervision, or a child may be taken into custody pursuant to Code Section
15-11-45
15-11-501.
When taking a child into custody pursuant to this paragraph, a designated
employee of the department shall have the power to use all force reasonably
necessary to take the child into custody.
(5)
The child shall be kept in custody in a suitable place designated by the
department and there detained until such child may be returned to the custody of
the department.
(6)
Such taking into custody shall not be termed an arrest; provided, however, that
any person taking a child into custody pursuant to this subsection shall have
the same immunity from civil and criminal liability as a peace officer making an
arrest pursuant to a valid warrant.
(j)
The department shall ensure that each delinquent
or
unruly child
or child in
need of services who has violated a valid court
order it releases under supervision or
otherwise has suitable clothing, transportation to his
or
her home or to the county in which a
suitable home or employment has been found for him
or
her, and such an amount of money as the
rules and regulations of the board may authorize. The expenditure for clothing
and for transportation and the payment of money to a delinquent
or
unruly child
or a child in
need of services who has violated a valid court
order released may be made from funds for
support and maintenance appropriated by the General Assembly to the department
or to the institution from which such child is released or from local
funds.
(k)
Every child committed to the department as delinquent
or
unruly, if not already discharged, shall
be discharged from custody of the department when he reaches his
or
her twenty-first birthday.
(l)
Commitment of a
delinquent
or unruly child to the custody of the
department shall not operate to disqualify such child in any future examination,
appointment, or application for public service under the government either of
the state or of any political subdivision thereof.
(m)
A commitment to the department shall not be received in evidence or used in any
way in any proceedings in any court, except in subsequent proceedings for
delinquency or
unruliness
being in need
of services involving the same child and
except in imposing sentence in any criminal proceeding against the same
person.
(n)
The department shall conduct a continuing inquiry into the effectiveness of
treatment methods it employs in seeking the rehabilitation of maladjusted
children. To this end, the department shall maintain a statistical record of
arrests and commitments of its wards subsequent to their discharge from the
jurisdiction and control of the department and shall tabulate, analyze, and
publish in print or electronically annually these data so that they may be used
to evaluate the relative merits of methods of treatment. The department shall
cooperate with courts and public and private agencies in the collection of
statistics and information regarding juvenile delinquency; arrests made;
complaints, informations, and petitions filed; the disposition made thereof; and
other information useful in determining the amount and causes of juvenile
delinquency in this state. In order to facilitate the collection of such
information, the department shall be authorized to inspect and copy all records
of the court and law enforcement agencies pertaining to juveniles.
(o)
When a child who is committed to the department is under court order to make
certain restitution as a part of his
or
her treatment by the court, the
requirement that the restitution be paid in full shall not cease with the order
of commitment. The provision of the order requiring restitution shall remain in
force and effect during the period of commitment and the department is empowered
to enforce said restitution requirement and to direct that payment of funds or
notification of service completed be made to the clerk of the juvenile court or
another employee of that court designated by the judge."
SECTION
3-54.
Said
title is further amended by revising subsection (b) of Code Section 49-4A-9,
relating to sentence of youthful offenders, as follows:
"(b)
Any final order of judgment by the court in the case of any such child shall be
subject to such modification from time to time as the court may consider to be
for the welfare of such child. No commitment of any child to any institution or
other custodial agency shall deprive the court of jurisdiction to change the
form of the commitment or transfer the custody of the child to some other
institution or agency on such conditions as the court may see fit to impose, the
duty being constant upon the court to give to all children subject to its
jurisdiction such oversight and control in the premises as will be conducive to
the welfare of the child and the best interests of the state; provided, however,
that the release or parole of any child committed to the department for
detention in any of its institutions under the terms of this chapter during the
period of one year from the date of commitment shall be had only with the
concurrence and recommendation of the commissioner or the commissioner's
designated representative; provided, further, that upon releasing or paroling
any child adjudicated delinquent for the commission of a designated felony act
as defined in Code Section
15-11-63
15-11-2
and committed to the department for detention in any of its institutions under
the terms of this chapter, the department shall provide notice to any person who
was the victim of the child's delinquent acts that the child is being released
or paroled. As long as a good faith attempt to comply with the notice
requirement of this subsection has been made, the department and employees of
the department shall not be liable for damages incurred by reason of the
department's failure to provide the notice required by this
subsection."
SECTION
3-55.
Said
title is further amended by revising paragraphs (3), (5), (12), and (16) of Code
Section 49-5-3, relating to definitions regarding services for children and
youth, as follows:
"(3)
'Child welfare and youth services' means duties and functions authorized or
required by this article to be provided by the department with respect
to:
(A)
Establishment and enforcement of standards for social services and facilities
for children and youths which supplement or substitute for parental care and
supervision for the purpose of preventing or remedying or assisting in the
solution of problems which may result in neglect, abuse, exploitation, or
delinquency of children and youths;
(B)
Protecting and caring for
deprived
dependent
children and youths;
(C)
Protecting and promoting the welfare of children of working
mothers;
(D)
Providing social services to children and youths and their parents and care for
children and youths born out of wedlock and their mothers;
(E)
Promotion of coordination and cooperation among organizations, agencies, and
citizen groups in community planning, organization, development, and
implementation of such services; and
(F)
Otherwise protecting and promoting the welfare of children and youths, including
the strengthening of their homes where possible or, where needed, the provision
of adequate care of children and youths away from their homes in foster family
homes or day-care or other child care facilities."
"(5)
'Deprived
Dependent
child or youth' means any person so adjudged under Chapter 11 of Title
15."
"(12)
'Legal custody' means a legal status created by court order embodying the
following rights and responsibilities:
(A)
The right to have the physical possession of the child;
(B)
The right and the duty to protect, train, and discipline the child;
(C)
The responsibility to provide the child with food, clothing, shelter, education,
and ordinary medical care; and
(D)
The right to determine where and with whom the child shall live,
provided
that these rights and responsibilities shall be exercised subject to the powers,
rights, duties, and responsibilities of the guardian of the person of the child
and subject to any residual parental rights and responsibilities. These rights
shall be subject to judicial oversight and review pursuant to Code Section
15-11-55
15-11-212."
"(16)
'Protective supervision' means a legal status created by court order following
adjudication in a
deprivation
dependency
case, whereby a child's place of abode is not changed but assistance directed at
correcting the
deprivation
dependency
is provided through the court or an agency designated by the
court."
SECTION
3-56.
Said
title is further amended by revising paragraphs (1) and (2) of subsection (a) of
Code Section 49-5-8, relating to powers and duties of the department, as
follows:
"(1)
Preventive services as follows:
(A)
Collecting and disseminating information about the problems of children and
youths and providing consultative assistance to groups, public and private,
interested in developing programs and services for the prevention, control, and
treatment of
dependency,
deprivation, and delinquency among the
children of this state; and
(B)
Research and demonstration projects designed to add to the store of information
about the social and emotional problems of children and youths and improve the
methods for dealing with these problems;
(2)
Child welfare services as follows:
(A)
Casework services for children and youths and for mothers bearing children out
of wedlock, whether living in their own homes or elsewhere, to help overcome
problems that result in
dependency,
deprivation, or delinquency;
(B)
Protective services that will investigate complaints of
deprivation,
abuse,
or abandonment of children and youths by parents, guardians, custodians, or
persons serving in loco parentis and, on the basis of the findings of such
investigation, offer social services to such parents, guardians, custodians, or
persons serving in loco parentis in relation to the problem or bring the
situation to the attention of a law enforcement agency, an appropriate court, or
another community agency;
(C)
Supervising and providing required services and care involved in the interstate
placement of children;
(D)
Homemaker service, or payment of the cost of such service, when needed due to
the absence or incapacity of the mother;
(E)
Boarding care, or payment of maintenance costs, in foster family homes or in
group-care facilities for children and youths who cannot be adequately cared for
in their own homes;
(F)
Boarding care or payment of maintenance costs for mothers bearing children out
of wedlock prior to, during, and for a reasonable period after childbirth;
and
(G)
Day-care services for the care and protection of children whose parents are
absent from the home or unable for other reasons to provide parental
supervision;"
SECTION
3-57.
Said
title is further amended by revising subsection (e) of Code Section 49-5-41,
relating to persons and agencies permitted access to records, as
follows:
"(e)
Notwithstanding any other provisions of law, with the exception of medical and
mental health records made confidential by other provisions of law, child abuse
and
deprivation
dependency
records applicable to a child who at the time of his or her fatality or near
fatality was:
(1)
In the custody of a state department or agency or foster parent;
(2)
A child as defined in paragraph (3) of Code Section
15-11-171
15-11-741;
or
(3)
The subject of an investigation, report, referral, or complaint under Code
Section
15-11-173
15-11-743
shall
not be confidential and shall be subject to Article 4 of Chapter 18 of Title 50,
relating to open records; provided, however, that any identifying information,
including but not limited to the child or caretaker's name, race, ethnicity,
address, or telephone numbers and any other information that is privileged or
confidential, shall be redacted to preserve the confidentiality of the child,
other children in the household, and the child's parents, guardians, custodians,
or caretakers. Upon the release of documents pursuant to this subsection, the
department may comment publicly on the case."
SECTION
3-58.
Said
title is further amended by revising paragraph (3) of Code Section 49-5-60,
relating to definitions for employee record checks for day-care centers, as
follows:
"(3)
'Crime' means any felony; a violation of Code Section
16-5-23,
relating to simple battery, when the
victim is a minor; a violation of Code Section
16-12-1,
relating to contributing to the delinquency of a
minor; a violation of Chapter 6 of Title
16,
relating to
sexual offenses, excluding the offenses of
bigamy or marrying a bigamist; a violation of Code Section
16-4-1,
relating to criminal attempt when the
crime attempted is any of the crimes specified by this paragraph; or any other
offenses committed in another jurisdiction which, if committed in this state,
would be one of the enumerated crimes listed in this
paragraph."
SECTION
3-59.
Said
title is further amended by revising paragraph (2) of Code Section 49-5-110,
relating to definitions for record checks for persons supervising children, as
follows:
"(2)
'Crime' means a violation of Code Section
16-5-23,
relating to simple battery, when the
victim is a minor; a violation of Code Section
16-5-24,
relating to aggravated battery, when the
victim is a minor; a violation of Code Section
16-5-70,
relating to cruelty to children; a
violation of Code Section
16-12-1,
relating to contributing to the delinquency of a
minor; a violation of Chapter 6 of Title
16,
relating to
sexual offenses, excluding the offenses of
bigamy or marrying a bigamist; a felony violation of Chapter 13 of Title 16; a
violation of Code Section
16-5-1,
relating to murder and felony murder; a
violation of Code Section
16-4-1,
relating to criminal attempt as it
concerns attempted murder; or any other offense committed in another
jurisdiction which, if committed in this state, would be deemed to be one of the
enumerated crimes listed in this paragraph."
SECTION
3-60.
Said
title is further amended by revising paragraph (2) of Code Section 49-5-131,
relating to definitions, as follows:
"(2)
'Child' means a person under the age of 17 years
who is alleged
to have committed a delinquent act or a
person under the age of 18 years who is alleged to be
deprived
dependent
or is alleged to be a
status
offender
child in need
of services as those terms are defined by
Code Section 15-11-2."
SECTION
3-61.
Said
title is further amended by revising paragraphs (15) and (18) of subsection (a)
of Code Section 49-5-281, relating to bill of rights for foster parents, as
follows:
"(15)
The right to participate in the case planning and decision-making process with
the Division of Family and Children Services regarding the child as provided in
Code Section
15-11-58
15-11-201;"
"(18)
The right to be notified in advance, in writing, by the Division of Family and
Children Services or the court of any hearing or review where the case plan or
permanency of the child is an issue, including
initial
and periodic reviews held by the court
in accordance
with Code Section 15-11-216 or by the
Judicial Citizen Review Panel
in accordance
with Code Section 15-11-217, hearings
following revocation of the license of an agency which has permanent custody of
a child in
accordance with Code Section 31-2-6,
and
permanency
plan
hearings,
and motions to extend custody, in accordance with Code Section
15-11-58
in accordance
with Code Section
15-11-230;"
SECTION
3-62.
Code
Section 52-7-12 of the Official Code of Georgia Annotated, relating to operation
of watercraft while under the influence of alcohol or drugs, is amended by
revising subsection (l) as follows:
"(l)
A person who violates this Code section while transporting in a moving vessel or
personal watercraft or towing on water skis, an aquaplane, a surfboard or
similar device a child under the age of 14 years is guilty of the separate
offense of endangering a child by operating a moving vessel or personal
watercraft under the influence of alcohol or drugs. The offense of endangering
a child by operating a moving vessel or personal watercraft under the influence
of alcohol or drugs shall not be merged with the offense of operating a vessel
under the influence of alcohol or drugs for the purposes of prosecution and
sentencing. An offender who is convicted of a violation of this subsection
shall be punished in accordance with the provisions of subsection (d) of Code
Section
16-12-1,
relating to the offense of contributing to the delinquency, unruliness, or
deprivation of a child."
PART
IV
EFFECTIVE DATE, APPLICABILITY, AND REPEALER
SECTION 4-1.
EFFECTIVE DATE, APPLICABILITY, AND REPEALER
SECTION 4-1.
This
Act shall become effective on July 1, 2013, and shall apply to all juvenile
proceedings commenced on and after such date. The enactment of this Act shall
not affect any prosecutions for acts occurring before July 1, 2013, and shall
not act as an abatement of any such prosecutions.
SECTION
4-2.
All
laws and parts of laws in conflict with this Act are repealed.