C\~. ChildWelfare INSTITUTE Working Together in Georgia's Juvenile Courts A CROSS-TRAINING NOTEBOOK AND REFERENCE MANUAL FOR ATTORNEY AND VOLUNTEER GUARDIANS AD LITEM AND ATTORNEYS REPRESENTING PARENTS Funded by the Georgia Supreme Court Child Placement Project November 1997 The Child Welfare Institute Cross-Training Seminar Sponsored By The Georgia Supreme Court Child Placement Project EVALUATION 1. What is your role in deprivation cases (Check one): _ Judge SAAG _Parent Attorney DFCS GAL CASA Other:- - - - - - - - - What morning Seminar did you attend (Check one): Initial DFCS _Initial Attorney/GAL Advanced 2. Please provide us with an assessment of today's event using a 5 point scale: 5 - High Level 3 - Moderate Level 1 - Lowest Level / > . i ..... Level of ...... ii > ..=.>==. ======== Overall Quality Relevance to My Work Comments: Please share with us what aspects of the seminar you liked the most or least and ways in which you would like to see improvements. Morning Keynote Presentation Morning Video Morning Seminar Luncheon Keynote Mock Hearing Local Planning Opportunity Training Manual Facilities Overall Assessment of the Seminar ! .... -2- 3. As a result of today' s seminar: Ilearned _ I was surprised to find out. _ I plan to _ 4. To assist us in future planning and continual improvement of our training efforts, what topics would you like to see covered in future conferences? 5. Any other comments? Thank You! The Child Welfare Institute Cross-Training Seminar Sponsored By The Georgia Supreme Court Child Placement Project "IfNot Us, Who.lfNot Now When? Working Together In Juvenile Court" Goals To strengthen a multi-disciplinary approach to child abuse and neglect (deprivation) court cases. To enhance the participant's specific knowledge of court procedure as required by Federal and Georgia law. To ensure that all court participants in deprivation cases understand the roles and responsibilities of each participant. To provide participants with role-specific trial manuals to support their role in deprivation cases. To promote CountylLocality specific planning on how to improve court procedure in their local court. Revised Agenda Time Activity 8:00 AM - 8:30 AM Registration 8:30 AM - 9:00 AM Kick-Off Keynote and Video 9:00 AM - 9: 10 AM Break 9:15 AM - 12:00 PM Morning Seminars 12:30 PM - 1:15 PM Lunch and Luncheon Speaker 1:30 PM - 3:15 PM MockHearing 3:15 PM - 3:30 PM Break 3:30 PM - 4:30 PM CountylLocality Specific Planning 4:30 PM - 5:00PM CountylLocality Report-Back Please complete an evaluation form and leave it at the registration desk at day's end. Georgia Supreme Court Child Placement Project Cross-Training Initiative From the perspective of the Special Assistant Attorney General Paula T. Hanington, Albany OUTLINE OF TRAINING OBJECTIVES A) Understand dates/deadline B) Understand reporting requirements to the Court re: reunification or termination decision and therefore, understand importance of plan development and review at all stages C) Changes re: legitimation procedure D) Court presentation DATES Initial placement orders -- one year Renewal (extension) orders -- one year Filing of case plan-- initially, within 30 days of the date of removal of child from home, and at every subsequent review Review of cases within 90 days of children initially entering disposition order, but no later than 6 months following placement in foster care If the report submitted to the court does not contain a plan for reunification, the Court shall within 30 after filing the report, hold a hearing to review the report. REPORTING REQUIREMENTS TO THE COURT At the entry of every order removing child, or continuation of removal, the order MUST include a finding that continuation in the home will be contrary to the welfare of the child, AND that reasonable efforts were made by the agency to prevent or eliminate the need for removal and to make it possible for the child to return to the child'" home. Within thirty (30) days of removal, DFACS must submit written report to the Court with either a plan for reunification or written defined basis for the decision not to reunite. Plan must be developed with the panel. I. Plans that have reunification as goal ---- The Court may accept or modify the plan for reunification, if it contains the following: a) Purpose for which the child was placed in foster care, and statement of the reasons why the child cannot be adequately protected at home; b) Discussion of how the plan is designed to achieve placement in the least restrictive most family-like setting available; c) Clear description of the specific actions to be taken by the parents and the specific actions to be taken by DFACS or other agencies for changes. NOTE: action required by a parent not directly related to removal cannot be a basis for condition for return without further court review (example -- GED, etc); d) Specific time frames in which goals are to be accomplished; e) Person within DFACS directly responsible for ensuring that the plan is implemented, and; t) Reasonable visitation schedule through personal visits, telephone calls, letters, etc. II. Plans that do not have reunification as goal ---- The Court must hold a hearing no later than thirty (30) days following the filing of the report to review the same. Reunification shall be deemed inappropriate IF 1) parent has unjustifiably failed to comply with a previously ordered plan for reunification, 2) the child has been removed from the home on at least 2 prior occasions and reunification services were available on those occasions or 3) any of the statutory grounds for termination exist. a) Purpose for which the child was placed in foster care, and statement of the reasons why the child cannot be adequately protected at home, harm which may occur if the child remains in the home, and description of the services offered/provided to prevent removal; b) Statement of all reasons that reasonable efforts to reunify will be detrimental, and that therefore reunification not appropriate, and SPECIFIC FINDINGS as to whether or not that are any grounds for termination; c) At the hearing, DFACS must notify the Court whether or not it intends to pursue termination. If no intent by DFACS, GAL may be appointed by the Court to explore termination. At every stage of the Court proceedings thereafter, until reunification or termination of rights, the same requirements are in effect. At every stage, DFACS must have a clearly defined position as to whether or not to seek termination of rights, and must be able to defend the same to the Court. DFACS must have clearly defined positions, early on, with very specifically drawn case plans. Remember, the objective is for a child to be safe, not for a parent to "feel good." LEGITIMATION CHANGES Legitimation actions may now be filed in Juvenile Court with regard to any child for which there is a pending action for deprivation in the Juvenile Court. Clear defined position should be announced by ~ach Court as to whether or no the Court will require a legitimation action by putative fathers prior to consideration of placement with said putative father and/or his family. Query -- will Court appoint legal counsel for indigent putative fathers? What funding available for payment of blood testing if indigent putative father files action for legitimation? COURT PRESENTATION Full information on each parent -- name, address, date of birto, place of employment, social security number. Be sure to check eligibility records for information. Medical information -- requires medical professional Full information on all witnesses Assessment of credibility of the witnesses Information sources-Police reports EMS reports Other agency reports (Mental Health, Substance Abuse, Council on Aging) Newspaper stories Photographs Any related case files Organize information -Chronological highlights Key dates Social Summary Reasonable efforts Medicaid records for that child Courtroom Decorum -Apparel/Professional appearance Sir/Ma'am Demeanor/temperament Do not guess Understand the question by listening to it Do not hurry Speak slowly and clearly -- do not nod Do not attempt to justify answer (if did not look for bruises on back because the child had a gash on the head, just say so) Do not joke -- "Yeah, right" If objections are made, stop. Credibility -- rudeness kills it, and curtesy carries it. Ultimate goal -- safety of the child. CROSS-TRAINING MOCK HEARING Court Participants The Mock Hearing focuses on the significant phases of the court process in this case. The participants in the Mock Hearing include: Mother DFCS Worker Parent's Attorney Attorney Guardian Ad Litem SAAG Neighbor (Reporter) Grandmother Drug Counselor Judge Case Overview Mary Johnson Sally Simpson or Sam Simpson Anthony James or Toni James Dorothy Garland or David Garland Patricia Segal or Peter Segal June Parker Carolyn Blake Stanley Kent John Dixon or Jane Dixon The Department of Family and Children Services (DFCS) Child Protective Services received a phone call from June Parker (neighbor to Mary Johnson and her 8 year old daughter Ruthie) expressing concern for the safety of Ruthie. Ms. Parker reports that she has seen Ms. Johnson leave the child at home alone for long periods of time. The morning of the report, Ms. Parker states that Ms. Johnson had left Ruthie alone since early that morning. She also reports that she has witnessed this pattern of behavior since the Johnson family moved into the house next door but tried to avoid getting involved until now. DFCS caseworker Simpson did try to check for any previous referrals on the Johnson family, but the computer system was down when she made the attempt. A subsequent review found that Ms. Johnson had been investigated in Red County 2 years ago and due to neglect Ruthie was placed with her grandmother (Ms. Johnson's mother, Carolyn Blake). Ms. Johnson had completed a 28 day in-patient treatment program for substance abuse and was suppose to maintain participation in out-patient group therapy upon the return home of Ruthie. Recently, Ms. Johnson tested positive for cocaine. Upon investigating the report, the caseworker, finds Ruthie unsupervised at home and the homt in a diIi3' and unsafe condition. Ms. Johnson did not return home and did not immediately contact DFCS to fmd out about her daughter's whereabouts. CROSS-TRAINING MOCK HEARING Page 2 Caseworker: Sally Simpson and Sam Simpson Sally Simpson is a child protective service investigator with the Department of Family and Children Services (DFCS). She has held this job for five year. Ms. Simpson conducts the investigation at the Johnson home, determines that Ruthie Johnson is at risk and makes the initial determination to take Ruthie into custody. During the course 01~ the hearing process, Ms. Simpson will be asked to develop a case plan which outline the steps for Ms. Johnson to regain custody of her child. CPS Report Sally Simpson arrives at the home and finds Ruthie Johnson (8 year old) home alone. Ms. Simpson asked Ruthie where her mother was and Ruthie said that her mother was "at work." She didn't know when her mother left or when she would return. She did not know how to get in touch with her mother. Ms. Simpson asked her if she had someone else to call if she couldn't reach her mother and she said she did not. Ms. Simpson reports that when she arrived at the house that through the window, "I could see...into the living room and it was very dirty. There was just a mattress on the floor. Ruthie was lying on it to watch TV. I could see through to the kitchen and dirty dishes were piled up in the sink. There were bags of trash in the kitchen and in the living room." "I left the house briefly and went to the gas station on the comer to call law enforcement. When the officer arrived, we returned to the house, introduced myself and Ruthie let us in. I checked the rest of the house. There were roaches all over the kitchen....there was no milk or juice, just a six pack of beer and a couple cans of spaghetti. I photographed the refrigerator and was going to take other photos, but the camera broke. There were no bed linens on any of the beds. On the outside, there was debris everywhere, including old scrap lumber with rusted nails and buHding materials that would be very dangerous for a child. Also, ...broken glass from a smashed television set covered the porch." "I left the officer with Ruthie and went to check with the neighbors. Nobody was able to give me a telephone number for the mother or could tell me where she worked. I then called my supervisor and described the situation ~,;d was authorized to rTt) ahead and get a Shelter Care order if the mother did not return. The officer and I waited about an hour before I got the Shelter Care order and we took Ruthie into care. Ms. Johnson still had not returned to the house when we left, so I left her a note. I felt that I had no choice. I couldn't leave the child alone and I had not located any family member to take care of her." CROSS-TRAINING MOCK HEARING Page 3 MotherlMary Johnson Mary Johnson is Ruthie's mother. A deprivation petition has been filed on the basis of substantial neglect. It has It has been reported that Ms. Johnson leaves her eight-year-old daughter Ruthie at home unsupervised for long periods of time. Mary does not contact DFCS until three-days after they placed Ruthie in custody. Ms. Johnson has a previous history with the Red County Family and Children Services office and Ruthie was removed two years ago for nine months. The allegation at that time was that Ms. Johnson had a substance abuse problem. After she completed a 28 day in-patient treatment program and three months in a follow-up out-patient program, Ruthie was returned home. Red County case plan required that Ms. Johnson stay in follow-up treatment for one year, but Ms. Johnson has not regularly attended her sessions. We will learn in testimony provided by Mrs. Blake (Grandmother of Ruthie) that Mary started drinking when she was 13 and that her drug problems got completely out of control when she started to use crack. Ms. Johnson moved to this county (Blue County) approximately two months ago and currently lives alone with just her 8-year-old daughter, Ruthie, who is again the subject ofa deprivation petition. The evidence shows that Ms. Johnson left her eight-year-old girl alone at home for long periods of time without adult supervision. In addition, on the day that the caseworker came to the Johnson household to investigate the situation, the home was filthy and constituted a health hazard for Ruthie. We have also learned that Ms. Johnson often fails to pack Ruthie a lunch or to provide her with lunch money prior to sending her to school. Reportedly, Ruthie attends school un-bathed and in dirty clothes. Ms. Johnson's drug screen -- nine days ago -- tested positive for cocame. Ms. Johnson will admit that she has made mistakes and feels that she will always wrestle with the desire to use drugs. However, she is desperately trying to work her way out of poverty, but the stress often takes its toll. In the past six months, Ms. Johnson has secured housing and holds down ajob. She's renting a small house and repeatedly complains to her landlord about the property conditions. The landlord has left scrap lumber, tools and junk furniture throughout the building as well as outside, which could be dangerous to the child. Additionally, there is an infestation of roaches and other insects which the landlord fails to exterminate. Ms. Johnson states that she failed to attend her group therapy session because she does not have a way to get to the sessions. She doesn't own a car, the bus stop is almost a mile from the service location and DFCS does [If'lt provide transportation to and from her meetings. Ms. Johnson's attorney, will argue that Red County Family and Children Services demanded in their case plan that Ms. Johnson complete drug treatment, secure housing, get a job and continue to attend outpatient therapy. She has completed most of her Case Plan, but she was exhausted from trying to work, pay bills, and care for her child. Then she was expected to get on a bus and walk some miles to a group therapy session, fully participate there, and then get home. With no transportation to attend these sessions, Ms. Johnson was set up to fail. It will be argued that this most recent drug screen is a concern, but we should not over-react and say that she needs to start all over again. Mother's attorney believes that they can show that Ms. Johnson is functioning reasonably well, can be a good mother with a little more departmental support, and that Ruthie is not a deprived child. CROSS-TRAINING MOCK HEARING Page 4 Attorney for Parent: Anthony James or Toni James Anthony James is Ms. Johnson court appointed attorney and argues the position that Ms. Johnson has not relapsed. She has made some mistakes and she will always wrestle with the desire to use drugs. Currently, she is desperately trying to work her way out of poverty, but the stress often takes its toll. In the past 6 months, Ms. Johnson has secured housing and holds down ajob. Many of the problems the SAAG raises are beyond Ms. Johnson's control. She is renting a small house and repeatedly complains to her landlord about the property conditions. The landlord has left scrap lumber, tools and junk furniture throughout the building as well as outside, which could be dangerous to the child. Additionally, there is an infestation of roaches and other insects which the landlord fails to treat or exterminate. Red County Family and Children Services demanded in their case plan that Ms. Johnson complete drug treatment, secure housing, get a job and continue to attend aftercare out-patient services. She has completed most of her Case Plan, but she was exhausted from trying to work, pay bills, and care for her child. Ms. Johnson's failure to attend her group therapy session is due to a lack of transportation. She doesn't own a car, the bus stop is almost a mile from the therapy location and DFCS does not provide transportation to and from her meetings. Then she was expected to get on a bus and walk a mile to a group therapy session, fully participate there, and then get home. With no transportation to attend treatment sessions, Ms. Johnson was basically set up to fail. This most recent drug screen is a concern, but James argues that we should not over-react by saying that she needs to start allover again. He believes that he can show that Ms. Johnson is functioning reasonably well, can be a good mother with a little more departmental support, and that Ruthie is not a deprived child. James will argue to the court that there is no evidence that Ms. Johnson has been regularly using drugs since her arrival here in Blue County. Before we make Ms. Johnson start from the beginning, he argues, we should recognize how far she has come. He asks that another drug screen be done. She is willing to do one immediately. She wants to finish her out-patient drug treatment program, so we would also ask that Ms. Johnson get some assistance in getting into an out-patient program here in Blue County, so that she can maintain her employment. She has held this job for almost four weeks. If she has to go back into in-patient care unnecessarily, then she loses her job. Further he argues, if she is ever going to get on her feet, she needs to develop a steady employment record. Part of her failure in the Getright program is due to her lack of a car and transportation difficulties. Due to the availability of more public transportation here, Ms. Johnson should be given another chance at an out-patient facility before ordering her confinement in a hospital for in-patient care as others are recommending. Also, Ruthie should be returned home as soon as possible while Ms. Johnson undergoes out-patient treatment. The problems witnessed within the Johnson household are not regular occurrences, many of which were the fault of the landlord and the results of poverty. He argues, if we provide some support, we can maintain Ruthie at home. CROSS-TRAINING MOCK HEARING Page 5 Attorney Guardian Ad Litem: Dorothy Garland or David Garland Attorney Garland is Ruthie's court appointed attorney guardian ad litem. She sees Ruthie as anxious and withdrawn and is concerned that she has been left alone a lot. She sees Ruthie as a child that has had to take more responsibility for herself than is appropriate for a young child. Ruthie is wnrried about her mother and wants to go home so that she can take care of her mother. The GAL does not see this as the normal role for an eight-year-old. Garland sees Ruthie as a deprived child. While there are problems at home, the GAL also sees some strengths in the family. Ms. Johnson is clearly trying to the best of her ability to work them out as evidenced by her efforts at seeking out steady employment and working with her landlord to correct the problems at her home. Her recent drug screen is a concern, even tho11gh Ms. Johnson says it was a one-time mistake. The GAL may recommend to the court that Ruthie be returned to the custody of Ms. Johnson, who should be given an opportunity to correct some of these problems on her own before Ruthie is declared to be a deprived child and custody is awarded to Family and Children Services. "Don't make her start allover. She has come too far for that. She just needs a little more support." The GAL recommendation can include that temporary custody be awarded to DFCS while Ms. Johnson enters a short-term in-patient treatment facility where she can be treated for drug and alcohol abuse. Given Ms. Johnson previous experiences with the out-patient facility, Ms. Garland feels that an out-patient program is ill suited to her needs. There are just too many pressures on her to complete another out-patient program. Garland's belief is that Ms. Johnson has just begun to relapse and this is our best opportunity to help her and provide some follow up treatment. Ruthie should be given a psychological evaluation and should begin counseling while in foster care. The GAL sees the following facts for this case: Ruthie is left at home unsupervised for long periods of time and some time overnight. Ruthie often late to school, is generally unclean and arrives without a packed lunch or lunch money. Ruthie has assumed a caretaker's role, crossing the generational boundary. Ms. Johnson has not identified supports or back-up systems to help manage her parenting responsibilities and needs. Ms. Johnson has an apparent substance abuse problems and is in denial. CROSS-TRAINING MOCK HEARING Special Assistant Attorney General: Page 6 Peter Segal or Patricia Segal Special Assistant Attorney General Segal represents the Department of Family and Children Service (DFCS) in this child deprivation case. The scene opens with Mr. Segal requesting that Judge John Dixon hold an detention hearing. This detention hearing is a deprivation complaint (case #018809) on behalf of Ruthie Johnson. Ruthie was taken into custody following an investigation conducted by a DFCS Child Protective Investigator (Sally Simpson). Ms. Blake, Ruthie's grandmother was contacted to assume responsibility for Ruthie but the grandmother stated that she could not take care of Ruthie becaus~ she is in poor hf'alth and she is alr~ady caring for and 8 year old and a 9 year old from her other daughter. Judge Dixon will find that there is reasonable cause to believe that Ruthie is deprived and to hold Ruthie in the custody ofDFCS until an adjudicatory hearing is held. Judge Dixon will set the date for the adjudicatory hearing ten days from today date. At the adjudicatory hearing, Segal requests that Ruthie be removed from the home until Ms. Johnson demonstrates the ability to remain free of alcohol and drugs. The SAAG further argues that Ms. Johnson should complete drug treatment and undergo with weekly drug screens. After program completion, Ruthie should be returned to live with her mother while her mother searches for stable employment. Upon completion of the drug program, Ms. Johnson should remain in their recommended aftercare recovery program, including random drug screens. The SAAG sees the following facts for this case: The neighbor, called DFCS to express concern for the safety of Ruthie because she had seen the girl's mother leave the child at home alone for long periods of time. The morning of the report, the mother had left the child alone since early in the morning. At the Johnson house, DFCS caseworker finds Ruthie alone. When Ruthie is asked where her mother is she says at work, but does not know what time her mother left home or when she will return. Caseworker also reports that the house was very dirty with dirty dishes piled up in the sink, bags of trash in the kitchen, and in the living room roaches were all over the kitchen. In addition she reports, that there was debris on the outside of the house including old scrap lumber and building materials that she considers to be very dangerous for a child. Two-years ago in Red County, Family and Children Services investigated Ms. JOhnSOI.. home and had to place Ruthie with her grandmother. The allegations at the time were that Ms. Johnson had a substance abuse problem. Ms. Johnson was requested to enroll into and complete an in-patient treatment program and aftercare out-patient services as conditions to get her daughter back. At the time of the detention hearing, DFCS had yet to hear from Ms. Johnson. Ms. Johnson will test positive for cocaine. Ms Johnson will also admit to using alcohol and on occasion, "...smoke." She does not see herself as having a substance abuse problem, just slips a little. CROSS-TRAINING MOCK HEARING Page 7 Grandmother/Carolyn Blake Carolyn Blake is Mary Johnson's mother and Ruthie Johnson's grandmother. Ms Blake is in poor health. She is currently caring for her 8 and 9 year-old grandchildren from her other daughter. When asked if she could care for Ruthie, she said that she cannot possibly care for another child. She is frustrated with both of her daughters right now. Though she is upset with her daughter, she points o~t that Mary has made progress in the past and that she is really trying to clean up her act. The move to Blue County in part was to get away from all her bad friends. Mrs. Blake will testify that Mary started to drink when she was 13. She will also testify that her discipline methods had failed and how Mary's life really got out of control when she started to use crack. Mrs. Blake will testify how Mary's life changed when she went to the drug treatment center. " She is so much calmer when she was getting help from the center." However, Mrs. Blake would be concerned for Ruthie' s safety if Mary started to use crack again. CROSS-TRAINING MOCK HEARING Page 8 Neighbor/June Parker June Parker is the Johnson's neighbor. She is also the incident reporter. She called the Department of Family and Children Services (DFCS) after noticing that Ms. Johnson left her house early in the morning and didn't come back. She will also report some unusual behaviors at the Johnson home -- people always coming and going at odd hours. She will claim that they look like the types that do drugs and things. In addition, Ms. Parker will also testify how the Johnson house is dirty and junk is scattered all over the place. Ms. Parker would prefer if the Johnson family would not live in the neighborhood. CROSS-TRAINING MOCK HEARING Page 9 Stanley Kent/Drug Counselor Mr. Kent is a drug counselor with the Getright Rehabilitation Center. He was Mary Johnson's counselor during the time she was in the Center's in-patient and out-patient follow-up services.. Mr. Kent will testify that Ms. Johnson's participation in the program was fairly poor. He believes that Ms. Johnson would attend the meetings only to comply with the court order. "She began arriving late and missing meetings soon after the program started. Her tardiness and absence began to increase as the program continued." He will also report that through-out her stay in the program as well as in her out patient program, Mary always stated that she did not have a drug problem. Mr. Kent questions if Mary is drug free. "Over the last few months she passed two of her drug screens, but that was only after missing four appointment for screening." When asked by the SAAG ifMs Johnson is still in need of treatment for drug and alcohol abuse, Mr. Kent replies, " I'm not sure, but her behavior is typical of a relapse. CROSS-TRAINING MOCK HEARING Page 10 Judge John Dixon Initially, Judge Dixon hears a deprivation complaint filed by the Department of Family and Children Services (DFCS), presented by Special Assistant Attorney General. This is an detention hearing to determine if Ruthie Johnson, (who was taken into custody two- days ago following a neighbor's report that the child had been left alone), is deprived and should remain in the custody of DFCS until an adjudicatory hearing can be held. Judge Dixon will inquire into the whereabouts of the mother (Mary Johnson) and learn she has not called the Department to find out about her child. He also inquires into the Department's rational for placing Ruthie in foster care verses some relatives home such as her grandmother's. Based on the evidence, Judge Dixon grants the hold and sets an adjudicatory hearing in ten days to hear evidence to support the deprivation petition on the basis of substantial neglect on the part of Mary Johnson. At the adjudicatory hearing, Mr. Segal (SAAG), points out that Ms. Johnson has a previous history with Family and Children Services. Ruthie was removed two years ago for neglect. There was also an allegation that Ms. Johnson had substance abuse problems and it is reported that she completed a treatment program and was to be in out patient group therapy. Ms. Johnson nine days ago tested positive for cocaine. The CPS report alleges that Ms. Johnson leaves Ruthie home alone for long periods oftime without adult supervision. The Johnson home was filthy at the time of the investigation and constituted a health hazard for Ruthie. Ms. Johnson often fails to pack Ruthie a lunch or provide her with lunch money prior to sending her to school. She reportedly attends school un-bathed and in dirty clothes. Judge Dixon also learns that Ms. Johnson does not have a support system to help her with Ruthie. At the time of the investigation, Ruthie did not know how to contact her mother or any other adult if needed. He learns that Ms. Johnson works and recently moved to a new community to have access to a better job market and transportation system. Judge Dixon demonstrates an awareness that, in most cases, children do better growing up with their birth parents. In rendering a decision, Judge Dixon considers Ruthie's safety and what would best serve her interest. Judge Dixon previous experience in substantial neglect cases in which substance abuse is involved has him considering a ro~ncurrent plan -- one a"',:,ect of the plan would be to return Ruthie home following Ms. Johnson completion of substance abuse treatment and the provision of other department support including a parenting program for Ms. Johnson. Judge Dixon will consider what employment, transportation and other life skills support Ms. Johnson needs to become a successful parent. The other aspect of the concurrent plan, would include instructing the Department to pursue plans for the termination Ms. Johnson's parental rights. This falls within the guidelines of OCGA 15-11-41 if she does not corr.ply with the treatment plan goals. CROSS-TRAINING MOCK HEARING Page 11 ChildlRuthie Johnson Ruthie Johnson is 8 years old and is in second grade. She has been taken into the custody of the Department of Family and Children Services (DFCS) in Blue County due to an allegation of neglect. This is the second time Ruthie and the Johnson family have been investigated by DFCS. Two years ago Ruthie was removed from her mother (Mary Johnson) by Red County DFCS and placed with her grandmother (Carolyn Blake) for nine months. Ruthie would learn that her mother was on drugs and needed help. Ms. Johnson completed a 28 day treatment program and half year of out-patient recovery service when Ruthie was returned to her. According to the GAL, Ruthie is a bright young girl who misses her mother. She attends school at Richardson Elementary. On a typical day, Ruthie dresses herself, gets her own breakfast and then walks to and from school. She often comes to school wearing dirty cloths. She also comes to school often without lunch or lunch money. When the DFCS caseworker investigates the neighbor's report, she finds Ruthie at home alone. Ruthie states that her mother was at work but she didn't know what time she left nor did she have a telephone number to call her. Ruthie is aware and concerned about what is happening to her and her mother. When asked by the attorney guardian ad item if she knows why she is in foster care, Ruthie says, "cuz mama went to work and left me by m'self. But I told that lady it was alright ... I am a big girl. I don't need mama to stay with me all the time." Ruthie is also aware of why she was placed in her grandmothers home. When asked, Ruthie replied, "Cuz mama was sick. She got sick taking drugs ... but she got better." Ruthie expresses concern for her mother, "I'm worried 'bout mama! ...she needs me to take care of her. She lets me look after her when she's tired. And she gets tired a lot. Ijust know she will be sick again." The Child Welfare Institute Cross-Training Seminar Sponsored By The Georgia Supreme Court Child Placement Project LOCAL PLANNING Based upon the information and ideas shared at the seminar, discuss the court processes in deprivation cases in your local court. Use the following outline to help focus your discussion. I. What do you see as the most pressing issues facing court participants in working more effectively on behalf of children and families? II. What processes, activities and approaches currently in place need to be affirmed and enhanced in your court? Cross-Training Local Planning III. Where is change needed and what change(s) will be required? Page 2 IV. Upon returning to your community what can you do together and each of you do separately to improve court processes in deprivation cases? v. Will you meet again as a local group imolved with court processes to continue this dialogue for improving your efforts? If yes, when? SB 660 - GeorgiaNet Page lof3 1. AbernathyI 38th 1. Walker 22nd 2. Oliver 42nd 3. starr 44th SB 660 98 SENATE BILL 660 SB660/AP By: Sc~ators Abernathy of the 38th, Oliver of the 42nd, Starr of the 44th and Walker of the 22nd A BILL TO BE ENTITLED .AN ACT 1 To amend Article 1 of Chapter 11 of Title 15 of the Official 2 Code of Georgia Annotated, relating to juvenile proceedings, 3 so as to expand the circumstances when the court is 4 authorized to order counseling or counsel and advice; to 5 correct a cross-reference; to provide for custody orders to 6 last until the child's eighteenth birthday in certain 7 circumstances; to provide for periodic reports; to repeal 8 conflicting laws; and for other purposes. 9 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 10 SECTION 1. 11 Article 1 of Chapter 11 of Title 15 of the Official Code of 12 Georgia Annotated, relating to juvenile proceedings, is 13 amended by striking in its entirety Code Section 15-11-36.1, 14 relating to court orders for counseling or counsel and 15 advice, and inserting in its place the following: 16 "15-11-36.1. 17 When any child is before a juvenile court for the first 18 tme and such child is found by the court to have 19 committed a delinquent act, to be a deprived child, to be 20 an unruly child, or to have committed a juvenile traffic 21 offense as defined in ~ode Section 15 11 43 15-11-49, the 22 court shall be authorized, in addition to any other 23 disposition authorized by this article, to order such 24 child and such child's parents or guardian to participate 25 in counseling or in counsel and advice as determined by 26 the court. :Jch counseling and counsel and advice may be 27 provided by the court, court personnel, probation 28 officers, professional counselors or social workers, 29 psychologists, physicians, qualified volunteers, or 30 appropriate public, private, or vJlunteer agencies as 31 directed by the court and shall be designed to assist in 4/16/98 11:13:01 AM SB 660 - GeorgiaNet Page 2 of3 32 deterring future delinquent or unruly acts, conditions of 33 deprivation, or other conduct or conditions which would be 34 harmful to the child or society." 35 S. B. 660 -1- SB660/AP 1 SECTION 2. 2 Said article is further amended in Code Section 15-11-41, 3 relating to disposition orders, by redesignating subsections 4 (j), (k), (1), (m), (n), and (0) as subsections (k), (1), 5 (m), (n), (0), and (p), respectively, and inserting 'a new 6 subsection (j) to read as follows: 7 n(j) If, after a judicial hearing in which the court finds 8 that reunification is not in the best in~erests of the 9 child and custody is granted to a relative, the custody 10 order shall remain in effect until the child's eighteenth 11 birthday unless modified following a petition for 12 modification by a party pursuant to Code Section 15-11-42. 13 Within 36 months of the custody order and every 36 months 14 thereafter, a probation officer, jUdicial citizen review 15 panel established by the court, or other person or agency 16 designated by the court shall, after study or review, 17 submit a report to the court addressing whether the 18 relative with custody continues to be qualified to receive 19 and care for the child. A copy of the report shall be 20 mailed to the parents at their last known address." 21 SECTION 3. 22 All laws and parts of laws in conflict with this Act are 23 repealed. 4116/98 11:13:01 AM SB 660 - GeorgiaNet 24 s. B. 660 -2- Page 3 of3 4/16/98 11:13:02 AM HB 1585 - Children; removal from home; preser... Page 1 of 13 pfevious lie-HI Bill Clef}: of Bepte:sen!"livt.>:S Bouse House BIll Bill Lis! U,e House Listed b9 II ame Commillees Home- Georgia House ofRepresentatives HB 1585 - Children; removal from home; preservation and reunification First Reader Summary A BILL to amend Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating-to juvenile proceedings and parental rights, Chapter 8 of Title 19 of the Official Code of Georgia Annotated, relating to adoption, and Article 1 of Chapter 5 of Title 49 of the Official Code of Georgia Annotated, relating to children and youth services, so as to change provisions relating to court orders removing a child from home and family preservation and reunification efforts; and for other purposes. a as Arnold M Status Summa Page Numbers -1/ Y J./ M~/ j J) ~ 2! 10/11 House Action Senate 2/9/98 Read 1st Time 3/2/98 2/10/98 Read 2nd Time 3/13/98 2/11/98 Favorably Reported 3/13/98 Committee Amend/Sub Sub 2/27/98 ~ead 3rd Time 3/18/98 2/27/98 ~assed/Adopted 3/18/98 tFs Comm/Floor Amend/Sub CS 3/19/98 Amend/Sub Agreed To HB 1585 HB 1585/AP H. B. No. 1585 (AS PASSED HOUSE AND SENATE) By: Representatives Ragas of the 64th, Martin of the 47th and Mobley of the 69th A BILL TO BE ENTITLED AN ACT 1- 1 1- 2 1- 3 1- 4 1- 5 To amend Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to juvenile proceedings and parental rights, so as to change provisions relating to court orders removing a child from home and family preservation and reunification efforts; to provide a 4/10/98 11:08:39 AM HB 1585 - Children; removal from home; preser. .. Page 2 of13 1- 6 1- 7 1- 8 1- 9 1-10 1-11 1-12 1-13 1-14 1-15 1-16 1-17 1-18 1-19 description of circumstances when such efforts are not required; to provide for permanency plans, hearings, and orders; to provide that the safety of the child is paramount; to provide for reporting steps to be taken to find an adoptive family, relative, or guardian; to change a provision relating to the time period that certain disposition orders are effective; to provide for notice and an opportunity to be heard for foster parents, preadoptive parents, and relatives; to provide for circumstanceswhen the division shall seek termination of the parent's rights; to provide for exceptions; to provide for the contents of a permanency plan; to provide for procedural safeguards; to provide an effective date; to repeal conflicting laws; and for other purposes. 1-20 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 1-21 SECTION 1. 1-22 1-23 1-24 1-25 1-26 1-27 1-28 1-29 Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to juvenile proceedings and parental rights, is amended by striking in their entirety subsections (b), (d), (f), (g), (h), (i), (j ), (k), (1), (m), (n), and (0) of Code Section 15-11-41, relating to orders of disposition, determination regarding reunification of family, and supplemental orders, and inserting in lieu thereof the following: 1-30 1-31 1-32 1-33 1-34 1-35 neb) A court's order removing a child from the child's home shall be based upon a finding by that court that continuation in the home would be contrary to the welfare of the child. The court shall also determine as a finding of fact whether reasonable efforts were made by the Division of Family and Children Services of the Department -1-. 2- 1 2- 2 2- 3 2- 4 2- 5 2- 6 2- 7 2- 8 2- 9 2-10 2-11 of Human Resources and any other appropriate agencies to preserve and reunify families prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from that child's home, and to make it possible for the child to return safely to the child's home. Such findings shall also be made at every subsequent review of the court's order under this chapter. (1) In determining reasonable efforts to be made with respect to a child, as described in this subsection, and in making such reasonable efforts, the child's health and safety shall be the paramount concern; 4/16/98 11:08:44 AM HB 1585 - Children; removal from home; preser. .. Page 3 of13 2-12 2-13 2-14 (2) Except as provided in paragraph (4) of this subsection, reasonable efforts shall be made to preserve and reunify families: 2-15 2-16 2-17 (A) Prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home; and 2-18 2-19 (B) To make it possible for a child to return safely to the child's home; 2-20 2-21 2-22 2-23 2-24 2-25 2-26 2-27 (3) If continuation of reasonable efforts of the type described in paragraph (2) of this subsection is determined to be inconsistent with the permanency plen for the child, 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; 2-28 2-29 2-30 2-31 (4) Reasonable efforts of the type described in paragraph (2) of this subsection shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that: 2-32 2-33 2-34 2-35 (A) The parent has subjected the child to aggravated circumstances which may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse; 2-36 (B) The parent has: 2-37 (i) Committed murder of another child of the parent; 2-38 2-39 (ii) Committed voluntary manslaughter of another child of the parent; 3- 1 3- 2 3- 3 3- 4 3- 5 3- 6 3- 7 4i16/98 -2-11 (iii) Aided or abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of another child of the parent; or (iv) Committed a felony assault that results in serious bodily injury to the child or another child of the parent; or (C) The parental rights of the parent to a sibling 11:08:44 AM HB 1585 - Children; removal from home; preser... rage't U1 1::J 3- 8 3- 9 3-10 3-11 3-12 3-13 3-14 3-15 have been terminated involuntarily; (5) If reasonable efforts of the type described in paragraph (2) of this subsection are not made with respect to a child as a result of a determination made by a court of competent jurisdiction in accordance with paragraph (4) of this subsection: (A) A permanency hearing shall be held for the child within 30 days after such determination; and 3-16 3-17 3-18 3-19 3-20 3-21 3-22 3-23 3-24 (B) 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; and (6) Reasonable ~fforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts of the type described in paragraph (2) of this subsection." 3-25 3-26 3-27 3-28 3-29 3-30 3-31 3-32 3-33 3-34 3-35 3-36 "(d) If the report contains a plan for reunification services, such plan if adopted by the court shall be in effect until modification by the court. The plan 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 protected at home and the harm which may occur if the child remains in the home and shall also include a description of the services offered and the services provided to prevent removal of the child from the home; 3-37 3-38 3-39 3-40 (2) A discussion of how the plan is designed to achieve a placement in a safe setting that is the least restrictive, most family-like, and most appropriate setting available and in close proximity to the home of -3-. 4- 1 4- 2 4- 3 4- 4 4/16/98 the parents, consistent with the best interests and special needs of the child; (3) A clear description of the specific actions to be taken by the parents and the specific services to be 11:08:45 AM HB 1585 - Children~ removal trom home; preser. .. J. a5'"' ..I VJ. .L.J 4- 5 4- 6 4- 7 4- 8 4- 9 4-10 4-11 4-12 4-13 provided by the Division of Family and Children Services of the Department of Human Resources or other appropriate agencies in order to bring about the identified changes that must be made in order for the child to be safely returned home; provided, however, that all services and actions required of the parents which are not directly related to the circumstances necessitating separation cannot be made conditions of the return of the child without further court review; 4-14 4-15 4-16 (4) Specific time frames in which the goals of the-plan are to be accomplished to fulfill the purpose of the reunification plan; 4-17 4-18 4-19 4-20 (5) The person within the Division of Family and Children Services of the Department of Human Resources or other agency which is directly responsible for ensuring that the plan is implemented; and 4-21 4-22 4-23 4-24 (6) Consideration of the advisability of a reasonable visitation schedule which allows the parents to maintain meaningful contact with their children through personal visits, telephone calls, and letters." 4-25 4-26 4-27 4-28 4-29 4-30 4-31 n(f) If the report submitted to the court does not contain a plan for reunification services, upon proper notice being provided to the parents, the court shall, no later than 30 days following the filing of the report, hold a permanency hearing to review the report and the determination that a plan for reunification servicp.s is not appropriate. 4-32 4-33 4-34 4-35 (g) When a recommendation is made that reunification services are not appropriate and should not be allowed, the report shall address each reason requiring removal and shall contain at least the following: 4-36 4-37 4-38 4-39 4-40 4-41 4-42 (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; and -4-11 5- 1 5- 2 4/16/98 (2) A clear statement describing all of the reasons supporting a finding that reasonable efforts to reunify 11:08:46 AM lIB 1585 - Children; removal from home; preser. .. 5- 3 a child with the child's family will be detrimental to 5- 4 the child, and that reunification services therefore 5- 5 5- 6 need not be provided, including specific findings as to whether any of the grounds for terminating parental ,/ ~-\. ) 5- 7 rights exist, as set forth in subsection (b) of Code 5- 8 Section 15-11-81 or paragraph 4 of subsection (b) of 5- 9 this Code section. 5-10 5-11 5-12 5-13 5-14 5-15 5-16 5-17 5-18 5-19 5-20 5-21 5-22 (h) At the permanency hearing held for the purpose of reviewing the determination by the Division of Family and Ch~ldren Services of the Department of Human Resources that a reunification plan is not appropriate, the representative of the Division of Family and Children Services shall notify the court whether and when it intends to proceed with termination of parental rights at that time. If the Division of Family and Children Services indicates that it does not intend to petition for the termination of parental rights, the court may appoint a guardian ad litem and charge such guardian with the duty of determining whether termination p~oceedings should be conunenced. 5-23 5-24 5-25 5-26 5-27 5-28 5-29 5-30 5-31 5-32 (i) When reviewing the determination by the Division of Family and Children Services of the Department of Human Resources that a reunification plan is not appropriate, the court shall determine by clear and convincing evidence whether reasonable efforts to reunify a child with his or her family will be detrimental to the child and that reunification services, therefore, should not be provided or should be terminated. There shall be a presumption that reunification services should not be provided if the court finds by clear and convincing evidence that: 5-33 5-34 (1) The parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family; 5-35 5-36 5-37 (2) A child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions; eT 5-38 5-39 5-40 (3) Any of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-81.; or 5-41 5-42 5-43 (4) Any of the circumstances set out in paragraph (4) of subsection (b) of this Code section exist, making it unnecessary to provide reasonable efforts to reunify. -5-11 4/16/98 11:08:47 AM 1il:S 1)(:S) - L-IDluren; remOVal 110111 llUlll~, Pl~;,)~l ..... ....0 - , _"'.Ao_ 6- 1 E- 2 6- 3 6- 4 6- 5 6- 6 6- 7 6- 8 6- 9 6-10 6-11 6-12 6-13 (j) Whenever the permanency plan is adoption or placement in another permanent home, the report submitted to the court shall document the steps to be taken by the Division of Family and Children Services of the Department of Human Resources to find an adoptive family or other permanent living arrangement for the child; to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement; and to finalize the adoption or legal guardianship. At a minimum, such documentation shall include child specific recruitment efforts such as the use of state, regional, and national adoption exchanges including electronic exchange systems. 6-14 6-15 6-16 6-17 6-18 6-19 6-20 6-21 6-22 6-23 6-24 6-25 6-26 6-27 6-28 6-29 6-30 6-31 6-32 6-33 6-34 6-35 6-36 6-37 6-38 6-39 6-40 6-41 6-42 6-43 6-44 6-45 +jtk Except as otherwise provided by law, an order of disposition placing a deprived child in foster care under the supervision of the Division of Family and Children Services of the Department of Human Resources shall continue in force for 12 months after the date of original placement Hith the department the child is considered to have entered foster care or until sooner terminated by the court. For the purposes of this subsection, 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 the home, whichever is earlier. All cases of children in foster care in the custody of the Division of Family and Children Services of the Department of Human Resources shall be initially reviewed within 90 days of the entering of the dispositional order but no later than six months following the child's placement and shall be conducted by the juvenile court judge, by an associate juvenile court judge or judge pro tempore, or by judicial citizen review panels established by the court, as the court directs, meeting such standards and using such procedures as shall be est&blished by court rule by the Supreme Court of Georgia, with the advice and consent of the Council of Juvenile Court Judges. At the time of each review of every case of a child in foster care in the custody of the Division of Family and Children Services of the Department of Human Resources, a representative of the Division of Family and Children Services shall notify the court whether ~ such division intends to proceed with the termination of parental rights at that time. If ~ such division indicates that it does not intend to -6-11 4/16/98 11:08:47 AM HB 1585 - Children; removal tram nome; preser. .. .&.1.6-0..... - _ ... .-- 7- 1 petition for the termination of parental rights at that 7- 2 time, the court may appoint a guardian ad litem and charge 7- 3 7- 4 7- 5 such guardian with the duty of determining whether termination proceedings should be commenced. In the event the review is conducted by citizen review panels, the , , ..... J -- ,'" 7- 6 panel shall transmit its report, including its findings 7- 7 and recommendations and those of the department such 7- 8 division, along with the department's such divisIOn's 7- 9 proposed revised plan for reunification or other 7-10 permanency plan, if necessary, to the court and the 7-11 parents within five days after the review. Any party may 7-12 request a hearing on the proposed revised plan in writing 7-13 within five days after receiving a copy of such plan. 7-14 Following such initial review, additional periodic reviews 7-15 shall be held at six-month intervals. The foster parents, 7-16 if any, of a child and any preadoptive parent or relative 7-17 providing care for the child shall be provided with notice 7-18 of and an opportunity to be heard in any review or hearing 7-19 to be held with respect to the child, except that this 7-20 provision shall not be construed to require that any 7-21 foster parent, preadoptive parent, or relative providing 7-22 care for the child be made a party to such a review or 7-23 hearing solely on the basis of such notice and opportunity 7-24 to be heard. 7-25 7-26 7-27 7-28 7-29 7-30 7-31 7-32 7-33 7-34 7-35 7-36 +*+l 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 a 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. The judge's supplemental order shall be entered within a reasonable time from the conclusion of the hearing or expiration of the time for the hearing to be requested and shall also provide one of the following: 7-37 7-38 7-39 (1) That the child return to the home of his or her parents, legal guardian, or custodian with or without court imposed conditions; 7-40 7-41 7-42 (2) That the child continue in the current custodial placement and that the current placement is appropriate for the child's needs; or 7-43 7-44 (3) That the child continue in the current custodial placement but that the current placement plan is no -7-11 4/16/98 11:08:47 AM t1.tS 1 ::>0::> - L-mlUn;~ll, lti1l1UYC11 HUlll UVIU,"" pn,...,,,,~ ... 8- 1 8- 2 8- 3 8- 4 8- 5 8- 6 8- 7 8- 8 8- 9 8-10 8-11 8-12 8-13 8-14 8-15 8-16 8-17 8-18 8-19 8-20 8-21 8-22 8-23 8-24 8-25 8-26 8-27 8-28 8-29 8-30 8-31 8-32 8-33 8-34 8-35 8-36 8-37 8-38 8-39 8-40 8-41 8-42 8-43 8-44 8-45 longer appropriate for the child's needs and direct the department to devise another plan within available resources. The new plan must be submitted within ten days for court approval. Copies of any court approved revised plan shall be furnished to all parties. In the event that the citizen review panel determines that the parents have 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 the guardian ad litem of the child, the department Division of Family and Children Services of the Department of Human Resources, and the intake officer of the court that a petition for termination of parental rights should be prepared. Any such party or officer of the court shall file a petition if, upon examination, they find sufficient evidence. In the event that no guardian ad litem has been appointed when the citizen review panel recommends that a petition to terminate parental rights be filed, the court shall have the authority to appoint a guardian ad litem who shall have the duty to determine whether termination proceedings should be commenced. (m) In the event that a child has been in foster care under the responsibility of the Division of Family and Children Services of the Department of Human Resources for 15 of the most recent 22 months, or, if the court has determined a child to be an abandoned infant, as set forth in subsection (b) of Code Section 15-11-81, or has made a determination that the parent has committed murder of another child of the parent; committed voluntary manslaughter of another child of the parent; aided or abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of another child of the parent, or committed felony assault that has resulted in serious bodily injury to the child or to another child of the parent, the department shall file a petition to terminate the parental rights of the child's parents 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, unless, at the option of the Division of Family and Children Services of the Department of Human Resources, 'the child is being cared for by a relative; the case plan documents a compelling reason for determining that filing such a petition would -8-11 4/1<5/98 11:08:48 AM HB 1585 - Children; removal trom nome; preser. .. 9- 1 9- 2 9- 3 9- 4 9- 5 9- 6 9- 7 9- 8 9- 9 9-10 9-11 9-12 9-13 9-14 9-15 9-16 9-17 9-18 9-19 9-20 9-21 9-22 9-23 9-24 9-25 9-26 9-27 9-28 9-29 9-30 9-31 9-32 9-33 9-34 9-35 9-36 9-37 9-38 9-39 9..,.40 9-41 9-42 9-43 9-44 9-45 not be in the best interests of the child; or the Division of Family and Children Services of the Department of Human Resources has not provided to the family of the child, consistent with the specific time frames for the accomplishment of the case plan goals, such services deemed necessary for the safe return of the child to the child's home. ++~ The court which made the order may extend its duration for not more than 12 months if: (1) A hearing is held upon motion of the Division of Family and Children Services of the Department of Human Resources prior to the expiration of the order, which hearing shall, after the making of appropriate findings of fact, determine the future status of the child including, but not limited to, whether the child should be returned to the parent or parents, should be continued in foster care for a specified period, should be placed for adoption, or should, because of the child's special needs or circumstances, be continued in foster care on a permanent or long term basis permanency plan for the child. Such a permanency plan shall state whether and, if applicable, when the child shall be returned to the parent or referred for termination of parental rights and placed for adoption or referred for legal guardianship. In cases where the Division of Family and Children Services of the Department of Human Resources has documented to the court a compelling reason for determining that it would not be in the best interest of the child to return home, be referred for termination of parental rights, be placed for adoption, or be placed with a fit and willing relative or with a legal guardian, the permanency plan shall state that the child shall be placed in another planned permanent living arrangement. aftd The permanency plan shall also state whether reunification services, if in effect, should be continuedr . With respect to a child placed out of state, procedural safeguards shall be applied as to whether the out-of-state placement continues to be appropriate and in the best interest of the child, and, in the case of a child who has attained age 16, the services needed to assist the child to make a transition from foster care to independent living. and procedural Procedural safeguards shall also be applied with respect to parental rights pertaining to the removal of the child from the home of his or her parents, to a change -9-&1 4/16/98 11:08:48 AM HB 1585 - Children; removal rrom nome; pre:scl. .. ~ -0- - - -- -- 10- 1 10- 2 10- 3 10- 4 10- 5 10- 6 10- 7 10- 8 10- 9 10-10 10-11 10-12 10-13 10-14 10-15 10-16 10-17 10-18 10-19 10-20 10-21 10-22 10-23 10-24 10-25 10-26 10-27 10-28 10-29 10-30 10-31 10-32 10-33 10-34 10-35 10-36 10-37 1.0-38 10-39 10-40 10-41 in the child's placement, and to any determination affecting visitation privileges of parents; (2) Reasonable notice of the factual basis of the motion and of the hearing and opportunity to be heard are given to the parties affectedT , including foster parents, if any, of a child and any preadoptive parent or relative providing care for the child except that this provision shall not be construed to require that any foster ~~rent, preadoptive parent, or relative providing care for the child be made a party to such a review or hearing solely on the basis of such notice and opportunity to be heard; and (3) The court finds that the extension is necessary to accomplish the purposes of the order extended. +mt(o) Except as otherwise provided by law, any other order of disposition in a proceeding involving delinquency, unruliness, or deprivation, except in an order involving the appointment of a guardian of the person or property of a child, continues in force for not more than two years. The court may sooner terminate its order or extend its duration for further periods. An order of extension may be made if: (1) A hearing is held prior to the expiration of the order upon motion of a ~arty 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. ~(p) Except as provided in subsection (a) of this Code section, the court may terminate an order of disposition or extension prior to its expiration, on or without an application of a party, if it appears to the court that the purposes of the order have been accomplished. +e+(0\ Unless otherwise provided by law, when the 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." 4/16/98 11:08:48 AM HB 1585 - Children; removal from home~ preser... -10-. 11- 1 SECTION 2. 11- 2 This Act shall become effective on July 1, 1998. 11- 3 SECTION 3. 11- 4 All laws and parts of laws in conflict with this Act are 11- 5 repealed. 4/16/98 11:08:49 AM HE 15~5 - Ctuldren; removal ITom nome; prl;j:s~:a ... -11-. Clerk ofthe House Robert E. Rivers, Jr., Clerk Last Updated on 03/31/98 4/16/98 11:08:49 AM '".. Working with Child Deprivation Cases in Georgia's Juvenile Courts A REFERENCE MANUAL FOR ATTORNEY AND VOLUNTEER GUARDIANS AD LITEM Principal Developers Steven J. Matz, Child Advocate Attorney, Juvenile Court of DeKalb County Dorothy V. Murphy, Child Advocate Attorney, Juvenile Court of DeKalb County Chris Harris, Research Assistant, Georgia Supreme Court Child Placement Project Contributor Jennifer King, Training and Affiliate Services Director, Georgia Court Appointed Special Advocates With Special Thanks To: The Honorable Edward D. Wheeler This manual was written to provide informal information about the process of child deprivation cases. It is not to be used as the official authority on law and procedure. Funded by the Georgia Supreme Court Child Placement Project November 1997 Revised January 1998 Table of Contents SECTION PAGE I. INTRODUCTION 1 II. ROLES AND RESPONSIBILITIES OF THE LAW GUARDIAN/CASA TEAM .......................... 3 A. Role Definition 3 B. The National Trend 5 III. JURISDICTION OF THE JUVENILE COURT SYSTEM .............. 8 A. Jurisdiction of the Court 8 B. Definition of Deprivation 11 C. Venue 18 IV. REMOVING A DEPRIVED CHILD FROM THE HOME 20 A. Protective Custody 20 B. Preliminary Protective Custody Orders 21 C. Procedures for Taking the Child into Custody 22 D. Responsibilities of the Law Guardian/CASA Team When a Deprivation Petition Has Been Filed 25 V. 72HOUR INFORMAL DETENTION HEARING ......................... 27 A. When Is the Hearing Required? What Must be Shown? 27 B. Notice to Parties 29 C. Right to Counsel 29 VI. FILING OF A DEPRIVATION PETITION ................................ 37 A. When Must the Petition Be Filed? B. What Must the Petition Contain? 37 ..39 VII. ADJUDICATORY HEARING ON THE DEPRIVATION PETITION 42 A. Pretrial Discovery 44 B. Summons and Necessary Parties to the Proceedings 47 C. Conduct of the Hearing and the Standard of Evidence .:19 D. Reasonable Efforts Requirements 56 VIII. DISPOSITION OF A DEPRIVED CHILD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 62 A. Evidence 64 B. Dispositional Alternatives 65 C. Interstate Compact on the Placement of Children 73 IX. PERMANENCY PLANNING ...................... 79 A. 30-day Case Plans 79 B. Non-reunification Plans 83 C. Judicial and Citizen Review 84 D. Motions to Extend 93 X. TERMINATION OF PARENTAL RIGHTS 98 A. Overview 98 B. Standards of Proof and Requirements of Parental Rights 99 C. Grounds for Termination 101 D. Notice of Proceedings and Summons 111 E. Right to Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 F. Placement of the Child Following a Termination Order 116 XI. MOTIONS FOR RECONSIDERATION AND APPEALS 118 XII. PARENTAL NOTIFICATION BYPASS HEARINGS 123 [ilJl::::~~r~::~:==: ~:::~::l~~::::VilY abuse or neglect of children. In the representation of children, the lack of a commonly accepted defInition is confusing, the titles include: child advocate attorney, guardian ad litem, volunteer guardian ad litem, etc. In Georgia, volunteer guardians ad litem are trained by Georgia CASA, which stands for Court Appointed Special Advocates. For the sake of this manual, we will be referring to attorney guardians ad litem as law guardians and volunteer guardian ad litems as CASAs. This manual is designed to give you an in depth understanding of Georgia deprivation law and juvenile court procedures. The manual is written in procedural chronological order and will take the reader through the legal requirements and the expectations of the court in a deprivation case from the fIrst allegations of abuse and neglect, through the removal of the child from the home, up to and including family reunifIcation or termination of parental rights. Issues discussed in the manual include: the investigation of an allegation by DFCS, Preliminary Custody, 72-hour emergency hearings, the f1ling of deprivation petitions, adjudicatory and dispositional hearings, judicial review of cases and the termination of parental rights. The Juvenile Code of Georgia can be found at Title 15, Chapter 11 of the Official Code of Georgia Annotated. O.C.G.A. 15-11-4 provides that the Council of Juvenile Court Judges can promulgate rules and forms governing the procedures and practice ofjuvenile courts throughout the state. The Council is composed of all juvenile court judges Guardian Ad Litem Court Procedures Reference Manual Section I / Page 1 within the state. This mirrors a provision in the state constitution, which allows for the Supreme Court to adopt and publish uniform court rules with the advice and consent of the council ofjudges in the affected class. Ga. Const. Art. VI, IX, eI. The Supreme Court took such action with the publication of the Uniform Rules for the Juvenile Courts of Georgia. We will be referring to the rules periodically throughout this manual. Guardian Ad Litem Court Procedures Reference Manual Section I / Page 2 A. ROLE DEFINITION Over the years, defining the role of the guardian ad litem (GAL) has generated much debate. Until recently, there has been little guidance for GALs appointed to represent children in deprivation cases partly due to the lack of a common definition. In 1996, the American Bar Association promulgated its Standards of Practice for Lawyers who Represent Children. These standards state a preference for the traditional attorney/client relationship, but recognize that the GAL is an "officer of the court" appointed to represent the child's interests without being bound by the child's expressed preferences. American Bar Association, Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (Adopted February 5, 1996). Guardians ad litem may and should ascertain the child's position in a "developmentally appropriate" manner and present the child's stated wishes in court. However, the GAL's recommendation is ultimately formulated after information has been collected from all sources, such as a CASA, the caseworker, the parents or legal guardian and their attorney, the child, other family members, witnesses and any other evidence to be presented during the hearing. Under this model, the law guardian can remain an independent legal representative of the Guardian Ad Litem Court Procedures Reference Manual Section II / Page 3 child's interests and can make objective recommendations to the court. The law guardian should work to provide the maximwn amount of representation and services for each child in the system, focussing on the child's best interests. The ABA recognizes that even when acting solely as attorney for the child, advocating for the child's preferences should not result in action that would be "seriously injurious to the child." Id. In striving to provide competent, ethical law guardian representation, the attorney must be willing to seek out multidisciplinary training opportunities, particularly in the field of child development. The law guardian has an ethical duty to give voice to the child's stated position, while ultimately rendering to the court a recommendation "in the child's best interest." Sadly, given the realities of the child welfare and judicial systems (too may cases, too few resources), the law guardian may not have any hope of achieving the truly best alternative for his/her client (e.g, "fixing" the abusive or neglectful situation so that the child can return home), and may be forced to seek the "least detrimental alternative." Goldstein, Solnit and Freud, In the Best Interests of the Child (1986). Further complicating the work for the GAL is the over burdened child welfare system and unrealistic caseloads. Often, law guardians carry prohibitively high caseloads that prevent them from even meeting all of their clients, let alone developing an ongoing advocacy relationship with them. An effective way our court addressed this last problem is to team the law guardians with trained CASA volunteers. While we recognize that many courts use either law guardians or CASAs, we strongly urge courts to use both as a team. The law guardian provides a legally trained voice for the child, and can enter the litigation arena with the license and skills to subpoena and examine witnesses (including the CASA), present evidence, formulate legal argwnents, and explain to the child client the legal consequences of the court's actions. Again, this asswnes that the law guardian has taken the time to become well versed in child development and skilled in communicating with child clients at various stages of development. Guardian Ad Litem Court Procedures Reference Manual Section II / Page 4 Vasquez, Rosemary, L.C.S.W., Interviewing Children (National CASA presentation 1995)(Appendix 4). The trained CASA, who is generally assigned to one or two cases, will have more time to devote to develop rapport with the child, and thoroughly investigate the case. Bringing volunteers into the child welfare system allows the community to see their tax dollars at work, sheds light on the system, and keeps the system honest. It helps the other players rise above the bureaucracy for the sake of a child. In making decisions about the representation, the law guardian/CASA should ask him or herself the following seven questions: I) Am I seeing the case, as much as I can, from my client's point of view, rather than from an adult's point of view? 2) Does the child understand as much as I can explain about what is happening in his/her case? 3) If my client were an adult, would I be taking the same actions, making the same decisions and treating him/her in the same way? 4) If I decide to treat my client differently from the way I would treat an adult in a similar situation, in what ways will my client concretely benefit from that deviation? Is that benefit one which I can explain to my client? 5) Is it possible that I am making decisions in the case for the gratification of the adults in the case, and not for the child? 6) Is it possible that I am making decisions in the case for my own gratification, and not for that of my client? 7) Does the representation, seen as a whole, reflect what is unique and idiosyncratically characteristic of this child? Haralambie, Ann M., The Child's Attorney, supra at 37. B. THE NATIONAL TREND Several writers are offering an innovative approach to understanding the roles and responsibilities in representing children. One approach is authored by Guardian Ad Litem Court Procedures Reference Manual Section 11 / Page 5 Professor Koh Peters who addresses the ''wisheslbest interest" dichotomy by offering what she calls "contextual/child-centered lawyering." Peters, Jean Koh, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions at 2.3 (b), n.17 (Michie 1997). Professor Peters argues that the polarizing debate between representing best interests and representing the child's expressed wishes should be set aside. Rather than divided, these two missions are complementary. She asserts that the law guardian is to reflect on the child's point of view by entering and understanding the world of the child client along with respecting him/her as a unique and subjective individual. She calls upon the attorney to maintain this approach from the point of initial client contact until closure ofthe attorney/client relationship. The "Peters Model" is as follows: 1. Determine the child's unique circumstances through a full and efficient investigation; 2. Assess the child at the moment of determination; 3. Determine the alternative options for the client; 4. Examine each option in light of the 2 child welfare paradigms: psychological parent (primary caretaker) and family network (extended family resources) (NOTE: The 2 paradigms are fully discussed in the Peters article, infra); 5. Utilize mental health and social work experts if the analysis becomes too complex; and 6. Present the best option or options. The author Marv Ventrell further endorses this model of the law guardian's role by explaining that, optimally, the law guardianiCASA team should apply a synthesis of beneficence ("best interest") and autonomy (child's expressed position) in advocating for their child clients. See Ventrell, Marv, Models of Child Advocacy, supra at 135-142. Debate surrounding this "synthesis" approach has suggested that a "hybrid" role may be the best framework within which to advocate for children, Guardian Ad Litem Court Procedures Reference Manual Section II / Page 6 however, current ethical rules (i.e., the ABA Standards) may in fact hinder this approach. The law guardian is cautioned to not perceive the approach as permitting "relaxed representation", but as providing an alternative to serving as a "robotic mouthpiece" for clients who may not be entirely capable of protecting their own best interests. These three authors, Peters, Haralambie anr! Ventrell, will assist any child advocate who has struggled with the confusion of role ambiguity. For additional reading on the roles and responsibilities of the GAL, please see: Child Advocacy at a Crossroads: The Development and Direction of Children's Law in America, NACC Children'~ Law Manual Series (1996 Edition) (can be obtained by contacting the Nat'! Assoc. Of Counsel for Children, 1205 Oneida Street, Denver, Colorado 80220; (303)322-2260), Perry and Teply, Interviewing, Counseling and In-Court Examination of Children: Practical Approaches for Attorneys, 18 Creighton L.Rev. 1369 (1985), Walker, Anne Graffam, Ph.D., Handbook on Questioning Children: A Linguistic Perspective (1994); Rich, John, Interviewing Children and Adolescents (1986) Guardian Ad Litem Court Procedures Reference Manual Section II / Page 7 A. JURISDICTION OF THE COURT In Georgia, the juvenile court has exclusive original jurisdiction over a child who is alleged to be deprived; it is the sole court in which a deprivation petition should be filed. a.C.G.A. 15-11-59(a)(I)(c). This gives the juvenile court system subject matter jurisdiction over deprivation cases in general as well as personal jurisdiction over the juveniles themselves. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), 4.2, 4.8. A child is defined by the code for purposes of a deprivation action as anyone under the age of 18. D.C.G.A. 15-11-2(2)(C). This differs from a situation in which a juvenile is charged with a delinquent act. In delinquency cases, a child is defined as anyone under the age of 17. a.C.G.A. 15-11-2(2)(B). The Juvenile Court also has exclusive jurisdiction over children alleged to be unruly, delinquent, or in need of treatment or commitment because they are mentally ill, as well as matters involving the Interstate Compact on the Placement of Juveniles. a.c.G.A. 15-11-5(a)(l)(A, B, D); D.C.G.A. 15-11-5(a)(2)(B). In addition, the Juvenile Court has exclusive jurisdiction over petitions for the termination of parental rights outside of those filed in connection with adoption proceedings. Previously, if such a petition was in connection with an adoption, it would properly be filed in Superior Court, which had exclusive Guardian Ad Litem Court Procedures Reference Manual Section III / Page 8 jurisdiction over such matters. However, in 1997, the General Assembly amended this statute to provide that the Juvenile Court system will now have concurrent jurisdiction with Superior Courts to hear a petition to terminate parental rights filed in connection with an adoption proceeding. a.c.G.A. 15-11-5(a)(2)(C). Another 1997 amendment provides the Juvenile Court with concurrent jurisdiction with the Superior Courts to hear legitimation petitions either transferred to the Juvenile Court from Superior Court or involving a child with respect to whom a deprivation proceeding is pending. a.C.G.A. 15-11-5(e). Juvenile Courts are of limited jurisdiction and possess only the powers that are specifically granted by the General Assembly. In re J.a., 191 Ga. App. 520 (1989). Juvenile court judgment must recite the specific facts, which formed the basis of the court's determination that it had jurisdiction over the person and subject matter alleged. If a court order fails to recite jurisdictional facts in any court order, the order can be declared void on appeal. Williams v. Dept. of Human Resources, 150 Ga. App.610 (1979). Under the Georgia Constitution, the Superior Court system has original jurisdiction over divorce actions. Ga. Const. 1983, Art. VI, IV, e1. The Juvenile Court has concurrent jurisdiction with the Superior Court of that circuit to determine child support and custody issues only when the case is transferred by a proper order of the Superior Court. a.C.G.A. 15-11-5(c). The Juvenile Court does not retain jurisdiction to hear a petition for custody filed by a child's paternal grandparents after making a finding that the child is deprived and transferring temporary legal custody of the child to DFCS. This petition was not in the nature of a deprivation petition and did not request a change in custody because the children were deprived. There was no proper transfer of such a case from Superior to Juvenile Court to allow the court to consider this request. In the Interest of C.C., et al., Children, 193 Ga. App. 120 (1989). Some confusion arises when deprivation is alleged in a custody battle between the child's parents or third parties. It was not the intention of the General Guardian Ad Litem Court Procedures Reference Manual Section III / Page 9 Assembly to grant the juvenile courts original jurisdiction over the custody of a child when there is a dispute between the parents. Bartlett v. Bartlett, 99 Ga. App. 770 (1959). Juvenile courts should not accept a deprivation petition filed by one parent against another because it is a prima facie custody matter, and most likely an attempt to gain custody of the child by bypassing a more stringent standard of proof necessary to modify a custody award. In the Interest ofW.W.W., 213 Ga. App. 732 (1994). All deprivation proceedings arising between the child's parents should be filed originally in superior court. If the superior court judge determines that the deprivation proceeding is not a custody dispute in disguise, the judge will transfer the deprivation issues to the juvenile court for adjudication. In the Interest ofM.A. et al., Children, 218 Ga. App. 433 (1995). Thus, during the investigation of an allegation of deprivation, the law guardian should first and foremost ascertain that the complaint filed with the juvenile court is NOT a custody "battle," disguised as allegations of deprivation. In another case, the Court of Appeals has held that an order of a juvenile court changing the custody of a child was not a modification on a determination that the children were deprived in their current environment. In the Interest of A.L.L., 211 Ga. App. 767 (1994). In many jurisdictions, a superior court judge holds the dual position of a juvenile court judge for each of the counties within his/her judicial circuit. The Georgia Supreme Court has held that in such situations the trial judge could arguably exercise authority as both a superior and juvenile court judge simultaneously. However, in a final hearing on custody in a divorce action in a superior court, a trial judge may not make a finding that neither parent is fit and transfer custody of the child to DFCS with no notice to the parents that this issue would be raised or that they might possibly come under the jurisdiction of the Juvenile Court during this hearing. Watkins v. Watkins, 266 Ga. 269 (1996). In that case, no deprivation petition had been filed with the court and no notice was given to the parents about the potential ramifications of this hearing had the judge chosen to exercise his powers as a Juvenile Ccurt Judge during the hearing. While Guardian Ad Litem Court Procedures Reference Manual Section III / Page 10. the judge can exercise the power of both courts at once, due process requires the notice and hearing requirements of the Juvenile Court to be adhered to. Id. at 272, 273. These requirements will be discussed in later chapters. The authority of the Juvenile Court to appoint a guardian ad litem, which can be an attorney or volunteer, is provided for in a.C.G.A. 15-11-55. That section states that the court shall appoint a guardian ad litem (GAL) for a child where there is "no parent, guardian, or custodian appearing on his behalf or if their interests conflict with his or in any other case in which the interests of the child require a guardian." The section further states that the court shall not appoint a party to the proceeding, his employee, or representative as guardian ad litem. B. DEFINITION OF DEPRIVATION As the law guardianiCASA, your appointment and duties will usually commence once a deprivation petition or complaint has been filed with the juvenile court. You should be aware of the statutory definition of deprivation. The code lists four circumstances in which a child can be considered deprived. When the child: (1) is without proper parental care or control necessary for his physical, mental, or emotional health or morals; (2) has been placed for care or adoption in violation of the law; (3) has been abandoned by his parents or other legal custodian; or (4) is without a parent, guardian, or custodian. a.C.G.A. 15-11-2 (8)(A-D). 1. Without Proper Care or Control The first provision is a general catchall definition of deprivation and most petitions are filed on this basis. You may notice that the statutory definition of deprivation is written in broad, non-specific language. This area of the code is to be "liberally construed" by the court in order to assist and protect "children whose well-being is threatened." a.c.G.A. 15-11-1 (l). The definition of deprivation is broad enough to allow "sufficient latitude of discretion for the juvenile court." Guardian Ad Litem Court Procedures Reference Manual Section 1lI / Page 11 Moss v. Moss, 135 Ga. App. 401 (1975). The Court of Appeals has held that this definition of deprivation is not unconstitutional on the grounds of vagueness. Jones et at v. Dep't of Human Resources, 168 Ga. App. 915 (1983). The law was meant to be read broadly to allow the state to take action to protect the child in cases of abuse and neglect without restraint by precise definitions that may not be applicable to all situations which could constitute deprivation. The Attorney General has interpreted this definition to include children who are abused, neglected, and exploited as defmed in other sections of the Georgia Code. 1976 Op. Att'y Gen. No. 76-131. O.C.G.A. 19-7-5(b)(3)(A) defines "Child Abuse" as physical injury or death inflicted upon a child by a parent...by other than accidental means; provided, however, physical forms of discipline may be used as long as there is no physical injury to the child. The definition also includes the neglect or exploitation of such a child. O.C.G.A. 197-5(b)(3)(B-D). One large restriction to the catchall provision is that a child should not be declared "deprived" simply because the child might be considered "better off' in a different environment. Ferreira, McGough's, supra, 4-3. "While the state may not sit idly by as a child suffers an unconscionable hardship, neither may it blithely intercede simply because the child's lot is substandard. A mother's failure to live up to societal norms of productivity, morality, cleanliness, and responsibility does not rob her of her right to raise her own children...." R.C.N. v. State of Georgia, 141 Ga. App. 490 (1977). In that case, the record indicates that the trailer in which the mother was living was "on occasion unclean." In addition, the mother was heard using profanity, lived at several different addresses in a short period of time leading up to the hearing, had no reliable source of income, and recently aided and abetted in the escape of a prisoner. Id. at 491. In contrast, the court again addressed this issue in Vermilyea v. Dep't. Of Human Resources, 155 Ga. App. 746 (1980). The court held that "unfortunate economic and personal circumstances" are not an excuse for parents to ignore the basic hygiene and Guardian Ad Litem Court Procedures Reference Manual Section III / Page 12 medical needs of their children. The condition of the subjects of the petition in this case shocked the conscience of the court. "Even the poorest of the poor can be expected to maintain reasonably clean and hygienic living conditions." Id. at 750. Given the broad range of interpretation in this area, the law guardianiCASA should be mindful of the need to ensure presentation of clear, specific, tangible evidence in neglect cases (e.g., photographs, eyewitnesses giving vivid descriptions based on direct, continuous observation). Many cases not only combine moral unfitness, physical abuse and abandonment, but also reflect the belief that frequent moves from home to home 'can prevent the successful formation of a parent-child relationship. A child can thus be deprived of a sound environment built upon love and nurture. There can be a substantial danger that the child will suffer emotional as well as physical, mental, and moral harm. Elrod v. Department of Family and Children Services, 136 Ga. App. 251 (1975). Again, because emotional abuse cases are among the most difficult to prove, the law guardian should ensure that comprehensive evidence is presented on behalf of the child, including expert testimony based on evaluation of the child and his/her parent(s). Haralambie, The Child's Attorney, supra at pp. 183-184. The Georgia Court of Appeals has held that a finding of deprivation is not a finding of some sort of "fault" upon the abilities and actions of that child's parents. The definition of a deprived child focuses on the needs of the child regardless of whether the behavior of the child's parents either caused the child's deprivation or could have prevented it. Brown v. Fulton County Department of Family and Children Services, 136 Ga. App. 308 (1975). In a situation where a child has been sexually abused by her father, the Court of Appeals has held that a juvenile court does not abuse its discretion by removing a child from the care and custody of her mother as well if her mother did not believe that the abuse was occurring and was unwilling to shield the child from danger by leaving the home ofthe father. In the Interest of B.H., 190 Ga. App.131 (1989). Guardian Ad Litem Court Procedures Reference Manual Section III / Page 13 The general rule is that a finding of deprivation must be based upon the present condition of the child as opposed to any alleged past deprivation or potential deprivation in the future. The juvenile court system only has jurisdiction over cases in which a child is alleged "to be" deprived as opposed to cases in which a parent alleges that the child was deprived and potentially will be deprived again if returned to the child's other custodial parem. Lewis v. Winzenreid,263 Ga. 459 (1993). The reader should note, however, that once allegations of deprivation exist for one child in the home, other siblings may be removed simultaneously from the home, even without a showing that these other children were actually harmed, neglected or themselves personally deprived. A line of cases has been relied upon by the Juvenile Courts which state that past acts of deprivation are certainly stronger proof and more convincing evidence upon which to decide the issue. But there is no reason why a determination of deprivation may not be made on proof that the conditions under which the child would be raised in the parent's home strongly indicated that the deprivation will occur in the future. Roberts v. State of Georgia, 141 Ga. App. 268, 1977, and Jones v. Department of Human Resources, 155 Ga. App. 371, 1980. Essentially, one need not wait for a child to be harmed before removing that child, it conditions of deprivation already exist in the home, or if another child in the home has already been personally harmed. Many cases involve the filing of deprivation petitions when one or both of the child's parents are incarcerated. The Court of Appeals has previously rejected an argument by a father in jail for killing his wife that his children cannot be considered deprived because they are living with temporary guardians. The statutory definition of deprivation is based upon an absence of proper parental care and control. In the Interest of J.L.M. et aI., Children, 204 Ga. App. 46 (1992). 2. Illegal Adoption The General Assembly has established three other very specific areas in which a child can be considered deprived. Private adoptions are legal in Georgia Guardian Ad Litem Court Procedures Reference Manual Section III / Page 14 so long as the appropriate procedural requirements are followed. O.C.G.A. 19-84, O.C.G.A. 19-8-5, Ferreira, McGough's, supra, 4-4. Several acts are clearly prohibited by law, the violation ofwhich might be grounds to consider the child deprived under this defInition. Id., 4-4. Any contract in which a mother agrees to the adoption of her child by another in exchange for monetary consideration is void on the grounds of public policy. Here, the moiller agreed to the adoption of her child in exchange for an airline ticket to another state. Her consent to the adoption was not freely and voluntarily given and she was allowed to withdraw from the agreement. Downs et al. v. Wortman et aI., 288 Ga. 315 (1971). However, if the monetary consideration goes to the child instead ofthe parent, any such agreement is not void for public policy reasons and is presumably enforceable. Id., at 317. The Georgia Adoption Code also prohibits any individual or organization from directly or indirectly holding out inducements to parents to part with their children. O.C.G.A. 19-8-24(a)(2). Offering a child's services as payment for a debt of the parents is also illegal. The Georgia Supreme Court ruled another contract void on the grounds of public policy because it attempted to transfer the custody of the child to a creditor ofthe parents, who was to use the services of the child until the debt was paid. The creditor was given full control over their son as though he was the child's parent and could hire the boy out to whomever he chose. Kidd v. Brown, et aI., 136 Ga. 85 (1911). The Georgia Juvenile Code also forbids any form of advertising that a person or organization will adopt or will arrange for a child to be adopted or placed for adoption. O.C.G.A. 19-8-24(a)(1). There are no appellate court decisions interpreting this section of the juvenile code due to its lack of use at the trial court level. Given the recent proliferation ofjust this type of advertising in the print media and over the Internet, some judicial interpretation of this statutory provision may be expected in the near future. Guardian Ad Litem Court Procedures Reference Manual Section III / Page 15 3. Abandonment Abandonment clearly seems to cover intentional parental desertion. Ferreira, McGough's, supra, 4-6. Abandonment is also used as a basis for the termination of parental rights. In termination hearings, the question of abandonment is settled by a finding of clear and convincing evidence of "actual desertion, accompanied by the intention to sever entirely, so far as possible to do so, the parental relation and throw off all obligations growing out of the same, and forego all parental duties and claims." Thrasher v. Glynn County Dept of Family and Children Services, 162 Ga. App. 702 (1982). Since a finding of deprivation can at worst only suspend a parent's rights to custody and control of his/her child as opposed to a motion to terminate where those rights can be severed, presumably the standard of proof necessary for a finding of abandonment in a deprivation case would be lower. Ferreira, McGough's, supra, 4-6. 4. Without a Parent, Guardian, or Custodian A child is also deprived ifhe/she is without a parent, guardian, or custodian. This ground for deprivation is also rarely used, so its precise meaning is unclear. Presumably, it means something other than abandonment, such as lack of parent or guardian to care for the child due to illness or death. One instance when a child might be alleged to be deprived because he/she is without a parent, guardian, or custodian would be when a child is informally placed in the jurisdiction with a relative and his/her parent is outside of the jurisdiction. If a petition is filed on such a child, it should be filed under this code section. Under such circumstances, a child can be returned to the parent or if such placement is found to be inappropriate a petition for custody can be filed. There is also some indication that this standard can include situations in which one parent is deceased and another is incarcerated. In re l.R.T., a Child, 233 Ga. 204 (1974). However, the larger number of deprivation cases involving incarcerated parents are filed under the general category of "lack of proper parental care or control," thus it seems clear that this category is rarely used for this purpose. Guardian Ad Litem Court Procedures Reference Manual Section III / Page 16 One important exception to the four deprivation categories is specifically listed in the code. ''No child who in good faith is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof, shall, for that reason alone, be considered to be a deprived child." O.C.G.A. 15-11-2 (8). The juvenile code seems to allow for the refusal of traditional medical treatments based upon the religious beliefs of that child's parents. A child cannot be classified as deprived solely because his parents choose to forego a standard medical treatment recommended by a child's physician. Although no court has defmed the exact boundaries of this statutory exception, some commentators have suggested that if a child's life or long term health is endangered due to a lack of medical care, state intervention is still appropriate regardless of the justification posed by the parents. Ferreira, McGough's, supra, 4-7. This issue has yet to be resolved. However, it is clear that when a parent's refusal is not based upon his/her religious beliefs, the state is authorized to intervene in cases of medical neglect. Bendiburg v. Dempsey, 909 F.2d 463 (lIth Cir. 1990). In Jessie Mae Jefferson v. Griffm Spalding Cty. Hospital Authority, et aI., 247 Ga. 86 (l981), the Supreme Court denied an appeal from a combined order of the Butts County Juvenile and Superior Courts transferring temporary custody of an unborn child to the Department of Human Resources. Here, the court also ordered the mother to undergo an emergency cesarean section after she had refused to do so on religious grounds in a situation where the child and quite possibly the mother would have died during natural delivery. Id. at 87. The mother was due to give birth at any moment. Id. at 88. Testimony given during the hearing indicated that both the mother and unborn child had a possibility of survival at nearly 100% if the cesarean were performed. Id. at 86. One of Georgia's Juvenile Court judges has commented on the subject, in a precedent setting ruling that has become a standard by which to measure the state's interests against the parents' First Amendment rights, regarding religious Guardian Ad Litem Court Procedures Reference Manual Section III / Page 17. decisions for their minor children. In a case involving the juvenile court's authorization to a hospital to perform a life saving blood transfusion to a child whose parents refused the treatment on religious grounds, Judge Edward D. Wheeler held that ''the state has a vital interest in preserving the lives and health of its citizens." He also recognized, however, that "The First Amendment right to freedom of religion must be recognized and respected when its practice is not contrary to the best interests of the citizens of the State." In authorizing the blood transfusion over the objections of the natural parents, the Court cited a Supreme Court case on the subject, which held that" the family itself is not beyond regulation in the public interest, as against a claim of religious freedom, and neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in a youth's well being, the State as parens patriae may restrict the parent's controL.the right to practice religion freely does not include liberty to expose the ...child to ill health or death." Prince v. Massachusetts, 321 U.S. 158 (1944). Finally, the Court held that a.C.G.A. 15-11-1 itself, must be construed to allow such state intervention: "15-11-1. Construction and Purpose. This chapter shall be liberally construed to the end: (3) That when a child is removed from the control of his parents, the court shall secure for him care as nearly as possible equivalent to that which his parents should have given him." In the blood transfusion case, the Court ruled that the parents refused to give their child the care they should have given him, and because the court granted consent for the procedure, the child's life was saved. In the Interest ofL.a.L. (DeKalb County Juvenile Court, April 19, 1984). C. VENUE A deprivation proceeding may be commenced in the county in which the child resides or in any county where the child is present when the proceeding in commenced. a.C.G.A. 15-11-15(a). In Georgia civil cases, proper venue exists in the county in which the defendant resides. However, the Georgia Constitution specifically allows the General Assembly to adopt differing venue rules in the Guardian Ad Litem Court Procedures Reference Manual Section III / Page 18 Juvenile Code of Georgia. Ga. Const. 1983, Art VI, II, eVI. The "presence" option to allow the filing of a petition in any county in which the child is present was specifically upheld by the Georgia Court of Appeals. In the Interest of C.R., 160 Ga. App. 873 (1982). If the county has either a full or part time juvenile court judge to hear deprivation cases, the hearing should occur in that county since that will be where the child either resides or was present when the action was commenced. If the county has a superior court judge who hears juvenile court cases, the superior court judge can choose to hear the case in any county within that judicial circuit. a.c.G.A. 15-11-15(b). In such situations, it may be necessary to travel to another county within the judicial circuit to appear in a deprivation hearing. A party to the proceeding can waive an objection to a particular venue if venue was changed pursuant to a motion filed by that party. In the Interest of M.J.G. et at Children, 203 Ga. App. 452 (1992). The court found that the child's father was estopped from raising the issue of improper venue when the venue was changed per his request from one county to another. Id., at 454. Guardian Ad Litem Court Procedures Reference Manual Section III / Page 19. I" I I I . stated previously, the responsibilities ofthe law i .guardian/CASA will begin after appointment and a deprivation complaint is filed. But some familiarity with the procedures for removal is helpfuL A. PROTECTIVE CUSTODY The Georgia Juvenile Code allows a law enforcement officer or a duly authorized officer of the court to take a child into custody "if there are reasonable grounds to believe that the child is suffering from illness or injury or is in immediate danger from his or her surroundings and that his or her removal is necessary." O.e.G.A. 15-11-17(a)(4). This can be done without a warrant, summons, or other judicial authorization prior to detaining the child. F~rreira, McGough's, supra, 4-10. Law enforcement officers often encounter situations of child abuse and neglect during their daily interactions with the public. This law allows that officer to immediately remove a child from the home so that the court can later determine whether the removal was necessary for the child's protection. Whether a "duly authorized officer of the court" includes a DFCS caseworker is unclear. However, one commentator has suggested that a caseworker might not be Guardian Ad Litem Court Procedures Reference Manual Section IV / Page 20 authorized by law to remove a child from the home without fIrst obtaining a preliminary protective custody order. Id., at 4-10. B. PRELIMINARY PROTECTIVE CUSTODY ORDERS Often DFCS will be contacted directly by school officials or other concerned citizens regarding the possibility of abuse or neglect of a child without the involvement of law enforcement. DFCS caseworkers do not necessarily need to remove the child from the home themselves; they can do so with the assjc;tance of law enforcement personnel. If, after an investigation, the caseworker fInds that there is a sufficient basis to remove the child from the home, a complaint and deprivation petition may be flled with a juvenile court judge. The contents vf this petition will be discussed later in this manual. If the judge agrees that the circumstances warrant removal of the child, a summons will be issued authorizing a law enforcement offIcer to immediately take the child into custody. O.C.G.A. 15-11-26(d). This decision should be based upon an affidavit or sworn testimony that: 1. "'the conduct, condition, or surroundings of the child are endangering his health or welfare or those of others,"or 2. "'he/she may abscond or be removed from the jurisdiction of the court or that he will not be brought before the court notwithstanding the service of the summons." O.C.G.A. 15-11-26(d). If the judge fInds that immediate removal is unnecessary in a given case, the court may simply issue a summons directing the parents, guardian, or other custodian of the child to appear at the adjudicatory hearing and to bring the child with him/her. O.C.G.A. 15-11-26(c). Ifthe parent willfully fails to appear or fails to bring the child before the court at the designated time, the court is authorized to punish such a person for contempt of court pursuant to O.C.G.A. 15-11-62. O.C.G.A. 15-11-26(c). Some Georgia courts do not require the fIling Guardian Ad Litem Court Procedures Reference Manual Section IV I Page 21 of a petition but will issue a summons upon the filing of a complaint or affidavit. These cases can initially be heard ex parte if the circumstances require immediate action by the court. Preliminary protective custody orders authorized by a juvenile court are not entitled to enforcement outside of the state of Georgia. The Georgia Court of Appeals has refused to reverse an order of a juvenile court when a social worker traveled to a hospital in Chattanooga, Tennessee to take custody of the child after the judge authorized the petition. Sanchez v. Walker County Dep't. ofF. and C. Serv., 138 Ga. App. 49 (1976), rev'd on other grounds 237 Ga. 406 (1976). There was no order from a court of competent jurisdiction in Tennessee allowing the caseworker to take custody of the child. The mother was a resident of Georgia and service upon her there was valid. Since jurisdiction over the child was otherwise completely proper, the Court of Appeals declined to reverse the order on that basis. Any private citizen or government employee may report a case of suspected abuse, neglect, or exploitation to DFCS, law enforcement personnel, or the district attorney's office. a.c.G.A. 19-7-5 (d) and (e). Some individuals are required by law to make these reports if they have reasonable cause to believe that the child has been abused, neglected, or exploited. a.c.G.A. 19-7-5 (c)(1). Such individuals include physicians, hospital and medical personnel, dentists, psychologists, podiatrists, nurses, counselors, social workers, school teachers, administrators and guidance counselors, child welfare agency personnel, and law enforcement personnel. (The Mandated Reporting Statutes) a.c.G.A. 19-75(c)(1)(A-N). Any individual or organization reporting in good faith under this article, will be immune for any civil or criminal liability regardless of whether the report was required. a.c.G.A. 19-7-5(t). C. PROCEDURES FOR TAKING THE CHILD INTO CUSTODY After removing the child from the home, a law enforcement officer or an appropriate officer of the court should immediately bring the child before the Guardian Ad Litem Court Procedures Reference Manual Section IV / Page 22 juvenile court or promptly contact the juvenile court intake officer. a.C.G.A. 15-11-19(a)(3). If the child is suffering from a serious physical condition or illness requiring medical treatment, the law enforcement officer may take the child to a medical facility prior to contacting the juvenile court intake officer. a.C.G.A. 15-11-19(a)(2). The person taking the child into custody shall promptly notify the parent, guardian or other custodian and the court that the child has been detained and must state the reasons for doing so. URJC, 8.2. After the child's removal from the home, the intake officer should immediately begin an investigation to determine whether it is necessary to detain the child or if the child can be released to his/her parents. a.C.G.A. 15-11-21(a). The purpose of this review is "to make certain that ajuvenile's rights are protected when he/she is taken into custody or placed in detention." Paxton v. State, 159 Ga. App. 175 (1981). Each juvenile court judge must appoint one individual to serve in this capacity during each twenty four-hour period. This individual may be the judge him or herself, an associate juvenile court judge, court service worker, juvenile probation officer or intake officer designated by the court. a.C.G.A. 15-11-2(10). In some of the larger jurisdictions, the juvenile court may have an "intake section," staffed by personnel familiar with the drafting of complaints. Protective and/or holding orders are then routed to the judge for signature. The Georgia Constitution requires that the legislative, judicial, and executive powers shall "forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others..." Ga. Const. Art. 1, 2, e3. The Attorney General's office has unofficially interpreted this to mean that an officer of the Sheriff's department is not statutorily permitted to serve in the capacity of intake officer if a county has not provided for such a position. 1983 apinion of the Att'y Gen. U83-66. The Georgia Supreme Court recently addressed the issue holding that police officers are per se disqualified from acting as intake officers for the juvenile court since Guardian Ad Litem Court Procedures Reference Manual Section IV / Page 23 the police department is part of the executive branch and the role of intake officer is judicial in nature. Brown v. Scott, 266 Ga. 44 (1995). This presumably means that the juvenile court must provide separately for the appointment of intake officers from outside of the county's law enforcement community. Uniform Rule for the Juvenile Courts of Georgia 2.5 requires that intake officers shall only be court-employed intake or probation officers, court service workers, or other Department of Children and Youth Services (now Department of Juvenile Justice) staff designated by the judge exercising juvenile court jurisdiction. A child can be detained or placed in shelter care prior to an informal detentional hearing in four situations. When: 1) the child's detention or care is required to protect the person or property of others or of the child; 2) the child may abscond or be removed from the jurisdiction of the court; 3) the child has no parent, guardian, or custodian or other person able to provide supervision and care for him and return him to the court when required; or 4) an order for the child's detention or shelter care has been made by the court. a.C.G.A. 15-11-18(1-4). Situation 4 occurs when the court already ordered an order for detention and the law enforcement officer was ordered to simply pick up the child as required by the summons. If the intake officer determines it is not necessary to detain the child under these standards, the child will be released to his parents or legal guardian. a.C.G.A. 15-11-21(a). If the DFCS caseworker, represented by the Special Assistant Attorney General (SAAG), wishes to pursue the matter further regardless of the intake officer's decision, a deprivation petition should be filed with the court within 30 days of the child's release. a.C.G.A. 15-11-21(b). If the Guardian Ad Litem Court Procedures Reference Manual Section IV / Page 24 intake officer determines that the detention or shelter care placement of the child is necessary, an informal detention hearing before a juvenile court should be scheduled and held within 72 hours of removing the child from the parents' custody. a.CG.A. 15-11-21(c)(3). If the child is not released prior to an informal detention hearing, he/she can only be placed in: 1) a licensed 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 shelter care facility operated by the court. a.C.G.A. 15-l1-20(a)(1 and 2), and a.C.G.A. 15-11-20(t). The term "shelter care" is used frequently throughout the Juvenile Code. The term is defined in the detentional section of the Juvenile Code at a.C.G.A. 15-11-2(10.1) as "a licensed foster home or home approved by the court which may be a public or private home or the home of the non-custodial parent or relative, or a facility operated by a licensed child welfare agency." The temporary physical placement of the child anywhere other than in one of these facilities or foster care homes requires the approval of the juvenile court judge or his/her designated appointee. D. RESPONSIBILITIES OF THE LAW GUARDIAN/CASA TEAM WHEN A DEPRIVATION COMPLAINT HAS BEEN FILED ance a child has been removed from the home and a deprivation complaint has been filed, that child's case should immediately come to the attention of the Child Advocacy Unit, (if one operates in your jurisdiction) or to the law guardianiCASA appointed to the case. A law guardian, like an attorney representing a private client, should not wait until the first court hearing to begin advocating for the child or investigating the case. Just as a private attorney handling a criminal or civil matter begins to represent the client as soon as any kind of notice of potential legal action is served, so too should the law guardian Guardian Ad Litem Court Procedures Reference Manual Section IV / Page 25 begin to represent the child either when he/she is removed from the home, or when a deprivation complaint is filed. Although there may be difficulties locating the child at such an early stage in the proceedings, the law guardianiCASA should be prepared to go to the place where the child is located as soon a possible after removal and interview the child. An early interview with the child is in the best interest of that child as well as the family, as it allows for the development of a positive relationship between the law guardianiCASA and the child. At the initial interview, the law guardianiCASA should attempt to "ascertain the wishes of the child, to determine the psychological state of the child and the reaction of the child to the incidents that have occurred, and to develop some feeling for the appropriateness or inappropriateness of the current placement." These concerns must be addressed in the context of considering and understanding child development issues related to separation. Lawyers for Children ABA Center for Children and the Law (1990) at 296-304. The law guardianiCASA should also attempt to meet with or talk to members of the family from which the child was removed, the social worker or workers responsible for the case, and any other parties who may have important information about the case. This will help the law guardianiCASA determine what course of action is in the child's best interest and will also facilitate the development of a strategy for any future hearings. Guardian Ad Litem Court Procedures Reference Manual Section IV / Page 26 A. WHEN Is THE HEARING REQUIRED? WHAT MUST BE SHOWN? An informal detention hearing within 72 hours of the child's removal from the home is required when the juvenile court intake officer has determined that the child should not be released to the custody of his or her parents. This hearing serves two purposes. One is to determine whether a child who has been taken into custody shall be released or detained pending further court proceedings, and the second is to determine if reasonable grounds exist to believe that the allegations in the complaint or petition are true. Uniform Rules for the Juvenile Courts of Georgia 8.1. The rules also provide that the hearing shall be of an informal nature in which hearsay testimony will be allowed. URJC, 8.1. If the 72-hour period expires on a Saturday, Sunday, or legal holiday, the hearing must be held on the next day of business which is not a Saturday, Sunday, or legal holiday. O.C.G.A. 15-11-2l(c)(3). However, URJC, 8.6 allows the court to grant a continuance in a detention hearing for a "reasonable period" to obtain reports and other evidence bearing on the need to detain the child. During the continuance, the judge may order that the child remain detained or release him/her to the custody of his/her parent(s). URJC, 8.6. Guardian Ad Litem Court Procedures Reference Manual Section V / Page 27 Courts have interpreted this time frame to be mandatory and if the hearing is not scheduled within 72 hours of the child's removal, the deprivation action will be dismissed "without prejudice." Sanchez v. Walker County Department of Family and Children Services, 237 Ga. 406 (1976). This means that the department may refile a deprivation petition without delay if it has reason to believe that the child is abused or neglected. Id, at 411. It would seem that a dismissal of a petition would require returning a child to the custody of his/her parent(s). However, given the court's authority to issue preliminary protective custody orders based on allegations contained in a petition, there seems to be nothing to prevent a juvenile court judge from issuing another "pick up" order to again detain the child should the court feel that the situation warrants such action. While these procedures allow the case to go forward, the delay associated with beginning the process over again is burdensome for the DFCS caseworker, and may needlessly extend the time a child must spend in shelter care. If a parent fails to make a timely objection during the informal detention hearing based on noncompliance with statutory time limits, the objection is effectively waived and cannot be raised on appeal. Irwin v. Dept of Human Resources, 159 Ga. App. 101 (1981). At the 72-hour hearing the judge will detemline if the child's detention is required under the standards set forth in a.C.G.A. 15-11-18(1-4). The hearing provides the child's parents with judicial review of the actions taken by the juvenile court intake officer. Most juvenile courts have interpreted 72-hour hearings as the equivalent of a "probable cause" hearing which uses a standard of proof known as "preponderance of the evidence." Kipling Louise McVay, Deprivation and Termination, Children in Court: A Systems Approach. (1989), p. 14,15. The petitioner, who more often than not will be the county division of DFCS, sometimes represented by a Special Assistant Attorney General (SAAG), must show through evidence that it is "more likely than not" that the child is deprived. This is a much lower burden of proof than will be required at the formal Guardian Ad Litem Court Procedures Reference Manual Section V / Page 28 adjudicatory hearing (trial) on the merits ofthe deprivation petition. Not all agree on the proper standard of proof in the 72-hour hearing since the statute is silent on the issue. The 1996 Georgia Juvenile Court Benchbook notes that ''the burden is on the petitioner to prove the need for detention; there is no indication from the code that a 'probable cause' standard is all that is necessary." B. NOTICE TO PARTIES The court is required to provide "reasonable notice" of the informal detention hearing either orally or in writing, stating the time, place, and purpose of the hearing to the child and to hislher parents, guardian, or other custodian if they can be found. a.c.G.A. 15-11-21(c)(4). The Sanchez case also makes notice to the parent of the child mandatory and failure to do so can again result in a dismissal without prejudice. Sanchez v. Walker Cty. Dep't ofF. and C. Serv., 237 Ga. 66 (1976). If a parent is not notified of the hearing because he/she could not be located and did not waive hislher right to appear at this hearing, the parent can file a motion with the court which will require the rehearing of the matter without unnecessary delay. In such situations, the child shall be released unless it appears that the child's detention or shelter care is required under the standards set forth above. a.C.G.A. 15-11-21(d). A parent who has not received notice of the hearing may file an affidavit with the court stating these facts to cause a 72-hour hearing to be reheld. This places additional procedural burdens on the SAAG and DFCS caseworker, and creates further delays for the child prior to the adjudication ofhislher case. During the investigation, it is critical to find the parents of the child so that the court may provide notice of the proceedings as soon as possible. C. RIGHT TO COUNSEL A participant is entitled to legal representation at all stages of any proceeding alleging deprivation. If a party is indigent and cannot afford a lawyer, the court will provide that party with counsel. a.C.G.A. 15-11-30(b). An "indigent person" is defined under the code as one who is "unable without undue Guardian Ad Litem Court Procedures Reference Manual Section V / Page 29 financial hardship to provide for full payment of legal counsel and all other necessary expenses for representation." O.C.G.A. 15-11-30(a). Prior to commencement of the informal detention hearing, the judge is required to inform all parties of their right to counsel. O.C.G.A. 15-11-21(c)(4). The court may grant a continuance (postpone the proceeding) so that a party can obtain a lawyer. O.C.G.A. 15-11-30(b). The juvenile court will appoint a guardian ad litem to represent the interest of a child who is a party to all deprivation proceedings, and in cases where Ce interests of the child and hislher parents conflict. O.C.G.A. 15-11-21(c)(4) and O.C.G.A. 15-11-55. In interpreting 15-11-55, the Attorney General has issued the opinion that in deprivation hearings brought between a child and hislher parent or guardian, an inherent conflict of interest arises which requires the appointment ofa guardian ad litem. Op. Atty. Gen. 76131 (1976). The O.C.G.A. 15-11-30(b) also requires the appointment of representation for the child in these two situations but uses the term "counsel" instead of guardian ad litem. The Georgia Court of Appeals has held that all parties to a deprivation proceeding, including the child and hislher parents should be represented individually by counsel. In addition, a parent in a deprivation action cannot waive the child's right to independent legal counsel. The court held that a deprivation action is one in which the interests of the child and her parents are adverse and that the juvenile court could have appointed a guardian ad litem to protect the interests of the child and should have done so. McBurrough v. Dept. of Human Resources, 150 Ga. App. 130 (1978). The person who represents the petitioner in the 72-hour informal detention hearing varies from jurisdiction to jurisdiction. In some counties, the petitioner, usually DFCS, is represented by the SAAG assigned to that county. In other counties, it is common practice to allow a law guardian for the child or the DFCS caseworker to represent the department's case at the 72-hour hearing. This would appear to be an obvious conflict of interest given specific statutory and judicial Guardian Ad Litem Court Procedures Reference Manual Section V / Page 30 mandates that the guardian ad litem not be a party to the proceedings. See O.C.G.A. 15-11-55; In re J.S.C., 182 Ga. App. 721 at 723 (1987). In all other deprivation hearings, the petitioner, who again is usually DFCS, is represented by an attorney. In 1974, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA), P.L. 93-247, which requi1"ed that all states receiving federal funds appoint a guardian ad litem (GAL) to represent the interest of the child in abuse or neglect cases which result in a judicial proceeding. 42 U.S.C. 5106(b)(6). The act does not require that the guardian ad litem be an attorney, and is silent on the roles and responsibilities ofthe GAL in judicial proceedings, mandating only that the GAL is charged with representing the rights and best interest of the child. 45 C.F.R. Ch. XIII, 1340.14(g)(10-1-96 ed. The purpose of the guardian ad litem is to protect the interests of the child in all matters relating to the litigation. In re J.S.C., Ga. App. 721 (1987). The type of representation offered to children in deprivation proceedings varies from jurisdiction to jurisdiction, and it has long been a goal of child welfare professionals and concerned members of the bar to develop a greater sense of uniformity in representation, one of the primary goals of this manual. In some counties, attorneys in private practice are appointed to serve as a guardian ad litem while in others staff attorneys are hired as advocates for the child. Other counties have volunteer guardian ad litem and CASA programs to provide representation for children. These volunteers are often not attorneys and lack standing to make legal arguments and motions on behalf of the child. In recent decades, child welfare professionals and the public have become increasingly determined that existing child protective procedures be improved. Pursuant to CAPTA, states began adopting legislation that required representation for the child's best interests during judicial proceedings. In 1996, CAPTA was reauthorized and now reads: "...a guardian ad litem, who may be an attorney or a court appointed special advocate (or the preferred mudel of both), shall be Guardian Ad Litem Court Procedures Reference Manual Section V / Page 31 appointed" to represent children in abuse and neglect cases. Georgia CASA Publications: Legal Proceedings in the Juvenile Court, at 5. The appointment of both a volunteer and an attorney to juvenile deprivation cases ensures a stronger fonn of representation for abused and neglected children. CASA volunteers have the time and commitment to f:nni.liarize themselves with the facts of each case, establish a relationship with the child and monitor the case until pennanency is achieved (e.g., family reunification or termination and adoption). The attorneys' legal expertise is essential to move cases through the system, and to ensure that a child's interests are promoted and legal rights protected throughout the duration of the case. A national study commissioned by the U.S. Department of Health and Human Services found that the ''team approach" of using law guardians teamed with lay or CASA volunteers was "highly recommended." The study found that this model tended to promote: (1) thorough case investigation, (2) highly involved advocates for the child, (3) frequent child contact, (4) extensive post-dispositional monitoring, (5) the more likely obtaining of appropriate services for the child, (6) more frequent case reviews, and (7) improved monitoring of the child's case plan. Under such a model, the study found, children whose original case goal was reunification with their natural families were more likely to have this goal maintained, than when they were represented by a lay guardian or CASA alone. Lawyers For Children, supra, at 21, 22. In jurisdictions where an attorney/CASA team program has been implemented, the co-appointment process works as follows: 1. Community volunteers are recruited, screened and trained in accordance with nationally promulgated standards, and are sworn in as Court Appointed Special Advocates (CASAs). Guardian Ad Litem Court Procedures Reference Manual Section V / Page 32 2. The CASA program director keeps judges and/or law guardians informed about the availability of CASA volunteers. 3. The law guardian, child advocacy unit, or in some smaller jurisdictions, the judge evaluates the complexity of each deprivation case and, on the basis of availability, may decide to assign a CASA volunteer to work with the law guardian. A court order is prepared, usually at the 72 hour hearing, which co-appoints a volunteer and an attorney to the case. The program director assigns the case to an individual CASA volunteer. 4. The CASA, working with the law guardian, makes a thorough assessment of the circumstances surrounding the case, by interviewing the child and all involved parties, reviewing records, etc. The law guardian is continually consulted for advice on legal issues. With guidance from the law guardian and the CASA program director, the CASA formulates tentative recommendations. 5. Prior to court hearings, the law guardian and CASA meet to share information and discuss recommendations. The CASA also prepares a written report for presentation to the judge, summarizing the facts of the case and making recommendations. In most cases, there will be an agreement on what constitutes the best interests of the child. However, in the event that there is a disagreement, two sets of recommendations should be presented to the judge. 6. Both the CASA and the law guardian are present for all court hearings. The law guardian directs the case and is responsible for protecting the legal rights of the child. The CASA may be called upon to testify by the law guardian. Guardian Ad Litem Court Procedures Reference Manual Section V / Page 33 7. After the judge's ruling at the various stages of the proceedings, the CASA is responsible for monitoring the case, with guidance from the law guardian and the program director, for its duration in the system. The CASA may also prepare a written report for presentation to the judge summarizing the facts of the case and making recommendations. Georgia CASA Publications, supra. Another helpful tool for law guardians is use of student interns. Student interns from various disciplines (e.g., social work, law, psychology, nursing, pediatrics, education) can bring a unique and invaluable perspective to the law guardian's caseload, often providing additional levels of case investigation, preparation and assistance. Representation of children is inherently multidisciplinary in character. The students get the opportunity to learn skills not taught in classrooms or by reading textbooks, while gaining respect for one another's professional perspectives. Forming a relationship with a school can offer a student credit hours, stipends, or both. All interns should receive training and direct law guardian supervision, and can be sworn in as officers of the court. In Georgia, the Supreme Court has expanded the Third Year Practice Act enabling law students who have completed their second year to present evidence and arguments in court under the direct supervision of the attorney. Utilizing students can also potentially recruit needed attorneys as law guardians. A list of the role of the law guardianiCASA, summarized from the Roles and Responsibilities section of this manual, is as follows: 1. Fact Finderllnvestigator As fact fmder, the law guardianiCASA must independently investigate the allegations of deprivation, apart from any investigation conducted by DFCS or the defense attorneys. Proficient investigative skills are a must for the law guardian, so that he or she may obtain important information concerning the child's wellbeing. Duquette, Advocating for the Child in Protection Proceedings, (1990), at 38. Guardian Ad Litem Court Procedures Reference Manual Section V / Page 34 2. Legal Representative As legal representative, the law guardian counsels child clients regarding the legal process, advises them of recommendations for court action, and provides them with legal representation in court Id, at 36. 3. Case Monitor "As case monitor, the [law guardian] takes active steps to ensure that the case is moving swiftly through the court process while properly serving the best interests of the child" Duquette, supra at 36. The law guardian should make sure that parties are given timely notice, documents are filed, hearings fall within statutory limits and all information pertinent to the case has been filed. If the child is adjudicated deprived, the law guardian should track until permanency is achieved. 4. Mediator/Conciliator "As mediator-conciliator, the [law guardian] facilitates a collaborative working relationship among all parties so that problems can be resolved and a generally acceptable agreement can be presented to the court." Duquette, at 36. Serving in this capacity, the law guardianJCASA team attempts to resolve a case as soon as possible, even before the adjudicatory hearing; common thought is that although it is a parent/guardian's right to contest the petition alleging deprivation, and have a full hearing on the allegations, a full-blown trial may not always be in the best interest of the child. Often these hearings require that a child testify against a parent, (not the best of situations for eventual reunification where the parent-child relationship may already be strained), or may require a child to be in the courtroom with the alleged perpetrator, causing further trauma to the child. But see ABA Standards, infra. In order to resolve the case, the law guardianJCASA should hold conferences with parties based on independently gained information, interviews, viewing of videotaped testimony, and other information the team has gathered, and may encourage pre-trial amendment of a deprivation petition in order to facilitate settlement. The CASA coordinator, Guardian Ad Litem Court Procedures Reference Manual Section V / Page 35 CASA volunteers, and legal interns playa crucial role in pre-trial negotiations, by providing infonnation regarding home evaluations, psychological/psychiatric reports, relative placement analyses and proposed testimony from witnesses - all invaluable to the law guardian if there is to be a positive resolution. The parents' attorneys must be included in pre-trial discussions. Many of these hearings are unique and quite unlike typical adversarial trials in State or Superior Courts. These civil cases do not necessarily look towards an assignation of blame or culpability. While the law guardian is certainly mindful that parent/guardian's attorneys are required to zealously represent their clients, the law guardian should seek to work with them in order to reach a resolution that serves the best interest of the child. Parents' attorneys and law guardians should explore options other than full hearings, and should openly discuss placement recommendations. They should consider fonnulating consent orders that may more expeditiously facilitate family reunification, following the completion of realistic and appropriate goals by parents. 5. Information and Resource Broker "[A]s infonnation and resource broker, the [law guardian/CASA] identifies resource people and support services available in the community to assist the child and family in assessing problems, resolving conflicts, and strengthening family relationships." Duquette, supra, at 36. Guardian Ad Litem Court Procedures Reference Manual Section V / Page 36 A. WHEN MUST THE PETITION BE FILED? In cases where the juvenile court intake officer has chosen to release the child into the custody of his/her parents, a deprivation petition has to be filed with the court within 30 days of the child's release ifDFCS wishes to pursue the case further. D.C.G.A. 15-11-21 (b). If the child has not been released be either the intake officer after the child's removal or the juvenile court judge in the 72-hour hearing, a deprivation petition must be submitted within five days of that hearing. D.C.G.A. 15-11-21(e). The petition may have already been filed ifDFCS has gone directly to the juvenile court judge asking that the child be taken into protective custody. D.C.G.A. 15-11-26(d). The filing of the petition starts the time table for scheduling the formal adjudicatory hearing on the deprivation petition's merits. This period is shortened considerably when the child is in detention or shelter care. Under these circumstances, the petition must be filed within five days of the detention hearing and the adjudicatory hearing must be held within ten days after the petition is filed. D.C.G.A. 15-11-26(a). Therefore, if the child is not released, there is a possible fifteen day wait between the informal detention hearing and the adjudicatory hearing on the petition. If the child has been released to his/her parents, the hearing must be held within sixty days of the filing of the deprivation petition. D.C.G.A. 15-11-26(a). Thus, if the intake officer or the juvenile court . Guardian Ad Litem Court Procedures Reference Manual Section VI I Page 37 judge detennines that the child's detention is not warranted and the child is released to his/her parentes), there is a potential ninety day wait between the detention hearing and the adjudicatory hearing. In addition, a judge can continue such a proceeding for good cause. URJC, 11.3. As law guardianiCASA, it is likely that the majority of your cases will be those in which a 72 hour detention hearing has been held, the judge has found "probable cause" that deprivation exists, and has ordered a petition to be filed by DFCS within 5 days. In all proceedings over which the juvenile court has jurisdiction (including deprivation cases), proceedings can only be initiated upon receipt of a written complaint fonn or a petition. The intake officer does not have the authority t J refuse a complaint, which only the judge can do. However, the intake officer must screen the complaint before a petition is filed and make a recommendation to the court for: 1. Dismissal; 2. Referral to another agency for services; 3. Infonnal adjustment (not available in deprivation cases); 4. Approval to file a petition, or "other appropriate action." URJC 4.2. In screening the complaint, the intake officer should consider: 1. Whether the complaint is one over which the court has jurisdiction; 2. Whether the complaint is frivolous; 3. Whether the child should be detained pending a hearing, and if so where; 4. Whether the child's case can be infonnally adjusted (not available in deprivation actions); 5. Whether the child should he diverted to an agency that meets his or her needs; and 6. If a petition should be filed with the court. URJC,4.2. Guardian Ad Litem Court Procedures Reference Manual Section VI / Page 38 Before a petition alleging deprivation may be filed with the court, the juvenile court judge or a person authorized by the court must determine and endorse upon the petition that the filing is in the best interest of both the public and the child. a.C.G.A. 15-11-23; URJC, 4.2. A failure at the trial court level to make such an endorsement is not reversible error when the juvenile court judge has impliedly endorsed the filing of the petition by issuing an order ~o detain the juvenile to protect both the child and society. J.G.B., et at v. State of Georgi~ 136 Ga. App. 75 (1975). The court does not officially take jurisdiction over the case until the petition has been filed. The petition itself is what officially commences a deprivation proceeding. Even though the judge may have already issued a detention order in a previous hearing, the deprivation case does not officially begin until this document is accepted and filed. Longshore v. State, 239 Ga. 437 (1977). The petition alleging deprivation may be made by any person, including a law enforcement officer, who has knowledge of the facts alleged and believes that they are true. a.C.G.A. 15-11-24. This person is called the petitioner and is usually the DFCS caseworker represented by the SAAG. If the petitioner is a private party without the benefit of counsel, the juvenile court judge may request the assistance of the District Attorney or a member of hislher staffto represent the petitioner. If for any reason the District Attorney is unable to assist, the judge is authorized to appoint legal counsel to represent the petitioner. a.C.G.A. 15-1128(d). B. WHAT MUST THE PETITION CONTAIN? The Georgia Juvenile Code provides that a deprivation petition must plainly set forth: 1) the facts which bring the child within the jurisdiction of the court, with a statement that it is in the best interest of the child and the public that the proceeding be brought...; Guardian Ad Litem Court Procedures Reference Manual Section VI / Page 39 2) the name, age, and residence address, if any, of the child on whose behalf the petition is brought; 3) the names and residence addresses, if known to petitioner, of the parents, guardian, or custodian ofthe child and of the child's parents, or if neither his parents, his guardian, nor his custodian reside or can be found within the state or if their respective places of residence addresses are 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; and 4) if the child is in custody, and if so, the place of his detention and the time he was taken into custody. a.C.G.A. 15-11-25(1-4). The information contained in the petition must satisfy the due process requirement of the right of an accused to know the nature of the allegations filed against him/her. This means that the petition must provide the parent in "ordinary and concise language the facts demonstrating the nature of the parent's alleged failure to provide proper parental care or control in order to enable the parent to have sufficient information to prepare a defense." In re D.R.C., 191 Ga. App. 278 (1989). The court held that a petition that simply stated that the parent had violated the standards set forth in law without providing any details violated the parent's due process rights. Id., at 278. The petition must be specific enough so that the parent will have at least some idea of what he/she is being accused of. The petition can be amended at any time prior to the adjudication provided that the court shall grant all other parties the necessary additional time to prepare to ensure a full and fair hearing. URJC, 6.6. If a child is detained, the amendments shall not delay the hearing more than ten days beyond the time originally set for the hearing unless a continuance is requested by the child or his/her attorney. URJC, 6.6. Guardian Ad Litem Court Procedures Reference Manual Section VI / Page 40 Once a petition has been filed, it should immediately come to the attention of the appointed law guardianiCASA. At this stage of the deprivation proceeding, the law guardianiCASA should read and review the petition and ensure that all of the information that has been gathered (e.g., police reports, interview notes, affidavits of effort), and is accurately reflected in the allegations enumerated in the petition. The law guardianiCASA should begin an independent investigation of the complaint, formulating preliminary position as to what is in the child's best interest. Questions that should be answered at this stage include the following: 1. Should the court authorize or deny the filling of a petition or delay for a period of time? 2. Where should the child be placed? 3. What visitation should be arranged or ordered? 4. Are additional medical and psychological exams necessary? 5. What other matters can be dealt with at this hearing? Realistically, time does not always permit a thorough investigation at such an early stage of the proceeding. Thus, the law guardianiCASA should be mindful that, at this stage, all facts may not have been presented to the court, and one should make recommendations accordingly, even if they are tentative ones. In fact, throughout the entire process, the law guardianiCASA will constantly refine his/her perspective on the case. It may be appropriate to ask that the detention hearing be continued if crucial data has not been provided and an extension of time would permit a thorough and exhaustive compilation of relevant evidence. However, continuances can delay the process of permanency for a child. Finally, a law guardianiCASA should take the time to thoroughly think through a case in order to effectively present it. For example, if a child has pending delinquent charges, contact with the child's probation officer and/or public defender is necessary. Remember, each case will have a different set of facts and players that will require careful consideration in order to determine the best course of action to take on the child's behalf. Guardian Ad Litem Court Procedures Reference Manual Section VI / Page 41 11II!1::~:ti:o;~:::t::=j~::: ::::::~:a dispositional hearing. The fIrst part, the adjudicatory hearing, is used to determine whether the allegations contained in the complaint are true. This is basically a review of the evidence to determine whether or not the child is currently deprived under the standards set forth in the Georgia Juvenile Code. The adjudicatory hearing must be held within ten days of the fIling of the deprivation petition if the child is in shelter care and within sixty days or the fIling of the petition if the child was released to the custody of his/her parents by the juvenile court intake offIcer or the judge at the 72-hour hearing. O.C.G.A. 15-11-26(a). The courts have held that the time frame for this hearing is mandatory like the time frame for the 72-hour hearing, the violation of which can result in dismissal without prejudice. Sanchez v. Walker County Dep't of Family and Children Services., 237 Ga. 406 (1976). This practice was specifIcally endorsed by the court in Sanchez. If the parent or guardian of the child does not specifically object to a violation of the statutory time frame without a continuance, the issue will be considered waived on appeal. Id., at 409. The court has come to a similar conclusion for adjudicatory hearings involving minors who are not removed from Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 42 the home. The parents of the minor not in state custody did not object to a hearing beyond the sixty day time limit either at the hearing or in a motion for a new trial and the issue was therefore effectively waived. E.S. v State, 134 Ga. App. 724 (1975). The Uniform Rules for the Juvenile Courts of Georgia allow a judge to continue an adjudicatory hearing for a reasonable time for "good cause shown" despite these statutory time limits. In deprivation cases, the granting of a continuance beyond the statutory time limitations must be by written order stating the specific reason for the continuance. URJC, 11.3. No specific definition of what constitutes "good cause" for a continuance has been given. This leaves the juvenile court judge with a great deal of discretion in adjusting the statutory time frame for holding an adjudicatory hearing. What one judge may consider an adequate basis for a continuance may differ substantially from that of another. It should be remembered that an excessive number of continuances can result in the child remaining in foster care for an extended period of time. It is important for the DFCS caseworker to consult with the SAAG representing the department, as well as the law guardianiCASA prior to the hearing, to make sure that all documents and necessary witnesses will be available at the start of the hearing in order to prevent unnecessary continuances. The law guardianiCASA plays a major role at this stage of the proceedings. Pre-trial negotiation is one of the most critical phases of advocacy because a full-blown trial may not be in a child's best interest. A child may have to testify against a parent in a trial causing anxiety and trauma for the child. The experience could further alienate the child from the parent and can create a dynamic that is not conducive to successful family reunification. ABA Standards, supra at C-6, D-6. The law guardian should make all practical attempts to resolve a case prior to the adjudicatory hearing. This would include holding conferences with parties based on independently gained information, interviews, viewing of videotaped testimony and other information the team has gathered. The CASA Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 43 can playa crucial role in these pretrial negotiations, bringing to the table home evaluations, psychological/psychiatric reports, relative placement analysis and proposed testimony from witnesses, all invaluable to the attorneys if there is to be a successful resolution. Bross and Michaels, at 90. It should be noted that all agreements, including proposed stipulations or admissions, amended language or other consensual proposals must have the approvRl of the law guardianiCASA. Pursuant to pre-trial negotiations, the CASA can and should bring to the table information about the family members and family history; relevant historical data; information on reasonable efforts regarding services provided, if appropriate, available or refused; summaries of persons interviewed and documents reviewed; and a summary of the facts which justify his or her recommendations. Georgia CASA Publications: The Role of the CASA Volunteer in Court Proceedings, (1989). It is here that the mediator role of the law guardianiCASA is most visibly seen. In most cases it would most definitely serve the child's best interests in having all adversarial parties agree on a plan that seeks family reunification (or an alternative permanent plan) prior to entering the courtroom. If, however, an amicable stipulated agreement cannot be reached, the next phase of the process is the adjudicatory hearing, which resembles in all aspects, a full trial. A. PRETRIAL DISCOVERY The Georgia Supreme Court has ruled that the provisions of the Civil Practice Act are not applicable to the Juvenile Court system. English v. Milby, 233 Ga. 7 (1974). In addition, neither the Fourteenth Amendment to the United States Constitution nor the Georgia Constitution require pretrial discovery in proceedings to terminate parental rights. In the Interest ofL.L.W., et aI., 141 Ga. App. 32 (1977). The Georgia Juvenile Code does not specifically mention the use of discovery in deprivation proceedings. However, the Uniform Rules for the Juvenile Courts of Georgia state that discovery may be allowed in all cases where deprivation is alleged. URJC, 7.1. Guardian Ad Litem Court Procedures Reference Manual Section VII / Page 44 Any discovery pennitted under this rule will be at the discretion of the presiding juvenile court judge. Requests for discovery must be made in writing and state the type of discovery requested which can include interrogatories, depositions, admissions of a party to the proceeding, requests for production of documents, and requests for physical and mental examinations of a parent, guardian, custodian, or child. URJC, 7.2. All such requests must include a Rule Nisi spelling out a time and place for a hearing on the request to determine what discovery will be allowed and a time frame for completion. URJC, 7.2(a); URJC, 7.4. Any and all objections to any such request shall be made at the hearing or else the objection is waived, unless otherwise allowed at the discretion of the court. URJC,7.2(b). The discovery motion and notice of a hearing shall not be served later than three days, excluding weekends and holidays, before the time specified for the hearing, unless specifically ordered by the court on ex parte application for good cause shown. Service must be performed upon all parties, including the parents, the child or his/her legal custodian or their legal counsel, if so represented. URJC, 7.2(c). If the child has been removed from the home, the discovery request must be filed within forty-eight hours of the filing of the petition. Otherwise, the request should be filed within fifteen days of the filing of the petition. If the child is in shelter or foster care, discovery must be completed within fifteen days of an approval order, but in all other cases it must be completed within thirty days. URJC, 7.3. In addition, if the child is in foster or shelter care, a discovery request by any party acts as a request for continuance of the time period for the adjudicatory hearing which shall then be reset to within seven days, excluding weekends and holidays, of the date that such discovery is ordered to be completed by the court. URJC, 7.3. Responsive pleadings are encouraged in deprivation matters but they are not required by the rules. URJC, 7.6. There are several issues related to discovery of which one should be aware. The Court of Appeals has overturned a trial court ruling authorizing an Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 45 attorney for a father involved in a termination proceeding to interview the child alone without supervision by DFCS or a guardian ad litem. The court held that an attorney could not interview an adverse party without the presence of counsel. In the Interest ofL.L.W., et aI., 141 Ga. App. 32 (1977). The father's ability to call witnesses, introduce evidence, and cross-examine witnesses for the state was enough to protect his interests under the constitution. Id., at 33. A source of occasional controversy in the area of pretrial discovery, is a request for the production of documents from the DFCS caseworker's file. The Child Abuse and Deprivation Records Act, a.c.G.A. 49-5-40(b) states that "each and every record concerning the report of child abuse" is confidential and access to such records is prohibited. The Georgia Code allows for a judge to access these records by subpoena when access to such records is necessary "for the determination of an issue" before the court. a.c.G.A. 49-5-41(a)(2). The juvenile court judge is required to review the file independently and release only the information necessary for the resolution of this issue. a.c.G.A. 49-5- 41(a)(2). In reviewing the DFCS case file, the judge will take into account the appropriate evidentiary rules to determine if the document is admissible. a.c.G.A. 49-5-41(a)(2). The law guardianiCASA's relationship with DFCS workers may be such that caseworkers will readily and voluntarily share information, understanding that each player's role is not necessarily adversarial, but that it involves gathering as much information as possible to formulate a recommendation to help the child. However, the relationship can be somewhat guarded requiring diligent and assertive efforts to get the necessary information. For parent attorneys, the Georgia Court of Appeals previously overturned a juvenile court order because the trial judge in that case said that the father and his attorney had no right of access to the Department of Human Resource's records. The court found that the legislature intended to allow pretrial discovery of department records within the discretion of the juvenile court judge, except where specifically barred by statute. The court specifically looked at the code Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 46 section O.C.G.A. 49-5-41(a)(2). Ray v. Department of Human Resources, 155 Ga. App. 81 (1980). The Court of Appeals later held that the right to know the nature of the evidence against a person is fundamental to our system ofjustice. There the juvenile court also made the mistake of denying the parents any access to departmental records and files. The court said that if the files contained a matter which should have remained confidential, those records could have been removed from the casefile prior to providing it to the parents' attorney. In Re M.M.A., 166 Ga. App. 620 (1983). This ability to access DFCS records in a deprivation action, only goes so far. The Georgia Court of Appeals has held that a trial judge acted within his power in refusing to allow discovery of "caseworker notes, memorandum, and other caseworker generated documents" that were not intended to be used by the department at the hearing. Discovery is applicable to juvenile court proceedings within the confines set by the trial court judge. There was no evidence in this case that the child's parent was denied access to documents that were favorable or material to his case. In Re C.M., 179 Ga. App. 508 (1986). One should remember that discovery requests are granted at the discretion of the juvenile court judge. What one judge may consider relevant for the determination of an issue before the court may differ from that of another judge. B. SUMMONS AND NECESSARY PARTIES TO THE PROCEEDINGS Once an adjudicatory hearing date has been scheduled pursuant to the required time frame discussed above, the judge will issue a summons to all individuals "who appear to the court to be proper or necessary parties to the proceeding." O.C.G.A. 15-11-26(b). These parties will include the parents, guardian, custodians, law guardian, Court Appointed Special Advocates, DFCS caseworkers, and any other persons who appear to be necessary parties. a.C.G.A. 15-11-26(b). The parents of a child born in wedlock or legitimated are proper parties and entitled to the substantive and procedural protections of the Georgia Juvenile Code. Id., Ch. VI, p. 2. The mother of a child born out of wedlock is a necessary party and must be provided with a summons and a copy of the petition. Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 47 a.C.G.A. 15-11-83, to be discussed later in the chapter on Tennination of Parental Rights, has often been interpreted to give the father of an illegitimate child the same procedural protections in a deprivation action. The summons will require them to appear before the court at a fixed time to answer the allegations listed in the petition. A copy of the deprivation petition will accompany the summons. a.c.G.A. 15-11-26(b). Service of the summons may be made by any "suitable person" under the direction of the court. a.C.G.A. 15-11-27(c). Presumably, this includes the DFCS caseworker and this is common practice in many jurisdictions throughout the state. If a party lives within the state and can be found; the summons may be personally served upon him/her within twenty-four hours of the hearing. If a party lives within the state but cannot be found, the summons may be mailed to the party by registered or certified mail at least five days prior to the hearing. A party who lives outside of the state can be personally served or served by mail at least five days prior to the start of the hearing. a.C.G.A. 15-11-27(a). An objection to a service of process in a deprivation hearing can be waived by that party's voluntary appearance at the proceeding. In the Interest ofW.J.G., a child., 216 Ga. App. 168 (1995). In this case, the mother had abandoned the home and her location was unknown, but as soon as she made contact with the court, she was provided with an attorney and served notice of each subsequent hearing and review. Id., at 171. It is apparently common practice throughout the state for service of the summons and the petition to occur at the 72-hour hearing itself. There does not appear to be anything in the code to prevent this procedure, but one must remember that the summons must include a date for the adjudicatory hearing. The judge will have to schedule the adjudicatory hearing at the 72-hour hearing and issue the summons immediately. A copy of the petition must be attached to the summons. Therefore, if this procedure is followed, the petition must be completed before the 72-hour hearing. Guardian Ad Litem Court Procedures Reference Manual Section VII I Page 48 If, after reasonable effort, a party cannot be found, the court may resort to service by publication, which usually means public notice in a local newspaper. O.C.G.A. 15-11-27(b). The adjudicatory hearing cannot be held until five days after the date of the last publication. O.C.G.A. 15-11-27(b). If a party is provided notice by publication, a provisional hearing may be conducted on the allegations of a petition alleging deprivation. The summons served upon any other party must state that prior to the fmal hearing a provisional hearing will be held at a specific time and place. All other parties who are not served by publication must appear at this hearing to answer the allegations contained in the petition. O.C.G.A. 15-11-29(a). The court may enter a temporary order pending the final h{'aring in juvenile court. The findings of fact and the dispositional order made at the provisional hearing will become permanent at the final hearing unless the party served by publication appears. The child in question must be before the court at the provisional hearing. O.C.G.A. 15-11-29(a). If the party served by publication does appear at the final hearing, the findings from the provisional hearing shall be vacated and the court would proceed normally into an adjudicatory hearing on the merits of the petition. O.C.G.A. 15-11-29(c). C. CONDUCT OF THE HEARING AND THE STANDARD OF EVIDENCE One of the main features of the juvenile court system is the use of confidentiality for the purpose of protecting the child from any later stigmatization from the public. For this reason, there are no jury trials used in juvenile court and all judicial decisions are rendered by the juvenile court judge. O.C.G.A. 15-11-28(a). The general public is also excluded from observing deprivation hearings. Only the parties to the proceeding, their lawyers, witnesses, or any other person the court finds having a "proper interest" in the proceeding are allowed to attend. O.C.G.A. 15-11-28(c). This differs considerably from a dispositional hearing, where the judge has discretion to admit the general public under a 1997 amendment by the Georgia General Assembly. O.C.G.A. 15-1128(c.l)(5). Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 49 The Georgia Supreme Court has held that a state may create a rule that deprivation hearings in juvenile court are presumed closed to the press and public. For constitutional reasons, this presumption is not binding and the press or plaintiff must be given an opportunity to show that the neither the state's interest nor the juvenile's interest in a closed hearing is overriding in comparison to the public's interest in a public hearing. The burden is en tte press or the public to formally request that the hearing be opened and the court must then allow that party to present evidence and argue that the presumption should be lifted in a particular case. Florida Publishing Company v. Morgan, 253 Ga. 467 (1984). Ifa party fails to object to the presence of reporters in the courtroom during an adjudicatory hearing, that party waives the right to raise this issue on appeal. Heath v. McGuire, 167 Ga. App. 489 (1983). A party is entitled to introduce evidence and call witnesses on hislher behalf as well as cross examine adverse witnesses under the Georgia Juvenile Code. O.C.G.A. 15-11-31(a). In addition, all parties have the right to counsel and the right to testify at all stages of the proceedings. All of these rights are guaranteed by the due process clause ofthe Fourteenth Amendment. In re L.L.W., 141 Ga. App. 32 (1977). In addition, the court itself has several rights under the code as well as by common law during the hearing. The court may, in its discretion, exclude the child from all or part of a deprivation hearing to shield the child from unnecessary stress and conflict. D.C.G.A. 15-11-28(c). The judge also has the discretionary right to question any witness called by any party for the purpose of determining the truth so long as the court does not appear to take sides in the dispute prior to a ruling. T.L.T. V. State, 133 Ga. App. 895 (1975). The Court of Appeals has held that a trial judge was allowed to question a minor in chambers without the presence of counsel in a deprivation hearing when such an interview was conducted on the record and no objection was made by any party to the procedure. In re R.R.M.R., 169 Ga. App. 373 (1983). The Court of Appeals has also held that Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 50 when examining the child's preferences in the matter, the trial court may exclude the parent from the proceedings so long as his or her attorney is present and has the ability to cross-examine the child. Spence v. Levi, 133 Ga. App. 581 (1974). Bear in mind that anytime a child is interviewed, even by the court itself, the law guardian should request to also be present or to have the CASA be present. The acmal hearing itself is preserved by the court reporter using stenography or a recording device should it become necessary to review the case on appeal. O.C.G.A. 15-11-28(b). Ifa trial court fails to record the hearing without an express waiver by the juvenile, hislher parent, or attorney, the findings of the court can be reversed on appeal. In re R.L.M., 171 Ga. App. 940 (1984). The Court of Appeals has held that the admission of some hearsay testimony during the adjudicatory hearing is not alone grounds for a reversal on appeal. In a situation where a judge assumes the role of the trier of fact in the absence of the jury, the judge is presumed to sift through the evidence and only consider admissible portions of witness testimony in making a determination in the case. As long as there is some other evidence other than the hearsay statements which can independently support the judicial finding, the admission of hearsay testimony does not justify a reversal of a juvenile court ruling on appeal. Moss v. Moss, 135 Ga. App. 401 (1975). Other evidence presented at trial must support a finding of deprivation or termination by clear and convincing evidence outside of the hearsay statements. In the Interest of J.T.S., et aI., 185 Ga. App. 772 (1988). Only after making a finding of deprivation maya court consider hearsay for issues relating to the disposition of the case. There must be specific findings of fact which the judge relies on in ruling a child to be deprived outside of any hearsay statements made at trial in order to avoid a reversal on appeal. These findings of fact must be clear, and not merely a recitation of the legal requirements for a finding of deprivation. In the Interest ofD.S., 212 Ga. App. 203 (1994). The Georgia Evidence Code provides a special hearsay exception to a child's description of sexual contact or sexual abuse: Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 51 A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons that whom made if the child is available to testify in the proceedings and the court fmds that the circumstances of the statement provide sufficient indicia of reliability. O.C.G.A. 24-3-16. The major question to be decided in each case in which this hearsay exception is used is to determine whether the statements provide a "sufficient indicia of reliability" to allow them to be admissible. In making such a determination, there are several factors to be considered: 1. The atmosphere and circumstances under which the statement was made (including the time, place, and people present there; 2. The spontaneity of the child's statement to the person present; 3. The child's age; 4. The child's general demeanor; 5. The child's condition (physical or emotional); 6. The presence or absence of threats or promise of benefits; 7. The presence or absence of drugs or alcohol; 8. The child's general credibility; 9. The presence or absence of any coaching by parents or other third parties before or at the time of the child's statement, and the type of coaching and circumstances surrounding :he same; and, the nature of the child's statement and typical language used therein; 10. The consistency between repeated out-of-court statements by the child. Gentry v. State, 213 Ga. App. 24 (1994). It is not necessary to hold a separate hearing on potential hearsay statements at trial to see if they contain the required "indicia of reliability" prior to hearing them in court. The Georgia Supreme Court ultimately found no error in not doing so since by later admitting such statements into evidence the judge ultimately found the statements reliable just as he surely would have done Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 52 following a separate evidentiary hearing. Robinson v. State, 257 Ga. 725 (1988). The trial judge is presumed to know the law and in any ruling using hearsay statements as a basis for a decision, the judge is presumed to have found them admissible. In the Interest ofD.R.C., a child., 198 Ga. App. 348 (1991); and In the Interest ofT.M.H., et al., children., 197 Ga. App. 416 (1990). The term "available to testify" in this code section refers to the child's competency to testify under O.C.G.A. 24-9-5. Hunnicutt v. State, 194 Ga. App. 714 (1990). In order to testify as a competent witness, a child must normally be able to understand the "nature" of the oath to tell the truth, the whole truth, and nothing but the truth. O.C.G.A. 24-9-5(a). However, in all cases in which a child is involved in a deprivation action, that child is deemed competent to testify in court. O.C.G.A. 24-9-5(b). It is NOT necessary to establish competency and/or credibility of the child who is the subject of the proceedings. Any other child witnesses that are not the subject of a deprivation petition must meet normal competency requirements. After hearing the evidence on any petition alleging deprivation, the court shall make and file its findings as to whether the child is deprived. If the court does not find that the child is deprived under the Juvenile Code by clear and convincing evidence, it shall dismiss the petition and order the child discharged from any detention or other restriction previously ordered in the proceeding. O.C.G.A. 15-11-33(a). If the court finds by clear and convincing evidence that the child is deprived, it shall sustain the petition and proceed immediately into a disposition hearing or continue such a hearing until another date. O.C.G.A. 1511-33(b). The court may order the child to remain in detention or shelter care during the period before the continued dispositional hearing. Such a continuance to another date within a "reasonable period" of time may be granted in order to receive reports and other evidence bearing on the disposition of the case. O.C.G.A. 15-11-33(e). A common third option used by many juvenile courts but not provided for in the Juvenile Code is to suspend the proceedings for a given Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 53 period of time during which the child's caretaker is permitted to carry out the court's stated objectives. The Georgia Juvenile Code authorizes the use of protective orders restraining or controlling the conduct of a person on the motion of a party or by the court's own motion if an order of disposition has been made or is about to be made. The party against whom such an order i~ issued must be given notice of the application, the grounds therefore, and the opportunity to be heard prior to approval of the order by the court. The order may require a person: (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, his parent, or any person to whom custody of the child is awarded; (4) to give proper attention to the care ofthe 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. O.e.G.A. 15-11-57(a)(1-9). These orders may be enforced by a contempt order of the court and when necessary a warrant to take the alleged violator into custody and bring him before the court. O.C.G.A. 15-11-57(c). Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 54 The law guardian may want to be aware of some practice tips to aid in the most effective representation of the child's interests at this stage of the process. As a fully participating litigant, the law guardian has the same rights and powers at trial as do the attorney for DFCS and counsel for the parents/guardians (if any). While the order of cross examinations and the presentation of evidence may vary depending on the jurisdiction, the law guardian will have the opportunity to cross examine each and every witness called by other parties, and will additionally have the opportunity to present independent evidence and witnesses, including the CASA. The law guardian will be held to the same standards of courtroom procedure, etiquette and substantive knowledge of the law as all other party attorneys. The law guardian may have statements, information from interviews with the children and photographs or other physical evidence which will need to be presented. The child's statements to the law guardianiCASA may be admissible under the hearsay rule regarding such. Regarding the possible confidentiality of such statements made by the child, many jurisdictions consider statements made by a child to their guardian ad litem (or law guardian) to be outside the scope of attorney-client privilege, that is, in acting as attorney for the child's interest and not as the child's attorney, the usual rules of privilege may not apply, allowing the law guardian to disclose information revealed in the course of the investigation, as long as the child's best interests are served by doing so. The law guardianiCASA should always disclose to the child this possibility during the initial interview. One of the most critical roles of the law guardian is ensuring that any preliminary agreements, stipulated or amended petitions and litigated findings of fact not only comport with the initial allegations of deprivation, but more importantly, can be accurately and comprehensively addressed in a subsequent case plan for reunification or other permanent plan for the child. The reunification or other permanent plan may only contain goals and steps that are strictly tied to the specific findings of fact found at the adjudicatory hearing (this will be Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 55 discussed in greater detail in the disposition hearing section). The law guardian should make certain that ambiguities in findings are kept to a minimum. For example, in a case of sexual abuse, a finding that "the child stated s/he was molested" does not indicate that the child was, in fact, molested, and without some assignation of culpability, it may be that reunification and therapeutic efforts will be hindered or unsuccessful. Moreover, a parent may be less likely to protect the child from any future abuse if there is no finding that a named individual actually caused harm to the child. Finally, such language may prove useless to the District Attorney's office in concurrent or subsequent criminal prosecutions against the perpetrators of the sexual abuse. Another area to watch for is in petitions where physical abuse is alleged; findings of fact that hold the child was either intentionally injured by a party or that the injury was the result of negligence may also prove problematic. Remember, the ultimate goal ofthe adjudicatory hearing is to produce findings of fact that can be adequately addressed in a permanent plan for the child. D. REASONABLE EFFORTS REQUIREMENTS One of the most difficult and confusing issues for all participants in deprivation hearings are the requirements of the federal Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272). All states receive foster care maintenance payments for each child in foster care under the Title IV-E of the Social Security Act. In order to maintain these payments, P.L. 96-272 now requires that in each case of a deprived child in state custody, "reasonable efforts" have to be made to work with the family to prevent the necessity of removing the child from the home. In addition, if removal was necessary to protect the health and safety of the child, reasonable efforts must be made to allow for the reunification of the child with his family. The burden on the social service agency to provide preventative and reunification services applies to every step of the deprivation process. A judicial determination of whether reasonable efforts were made by the department to Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 56 prevent the removal of the child from the home will be made at the 72-hour informal detention hearing as well as the adjudicatory hearing on the formal deprivation petition. The juvenile court judge must find that DFCS attempted to work with the family to alleviate whatever problems existed in the home prior to asking the court to remove the child from the home and filing a deprivation petition. If the child has been removed from the heme, DFCS must work with the child's parents, custodian, or guardian to enable the return of the child to the home. The juvenile court judge will again review the actions of DFCS to determine if reasonable efforts were made to provide "reunification services" to the child's parents during the judicial review of the disposition of the depr~vation case, which should occur at least once every six months. If at any point the judge fmds that reasonable efforts have not been made, under P.L. 96-272, the State of Georgia can lose the federal foster care maintenance payments provided for that child under Title IV-E of the Social Security Act. There are emergency situations in which the child's health and safety are in imminent danger which will require the immediate removal of the child from the home. In such instances it would not be reasonable to make an effort to prevent removal. This is recognized in the Georgia's DFCS Child Protective Services Manual Chapter 4, Section XX, Page 16. Federal guidelines also recognize the need for immediate removal and as long as DFCS adequately documents the emergency nature of the situation for the juvenile court judge, the state is still eligible to receive federal funding of a share of the foster care costs for this child. A 1996 amendment to the Georgia Code contains a list of situations in which DFCS should not be required to submit a reunification plan to the court as part of its 30 day case plan. a.c.G.A. 15-11-41(1). In such circumstances it will not be necessary for DFCS to make reasonable efforts to provide reunification services to the family. These situations will be discussed at length in the following chapter on Disposition of a Deprived Child. Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 57 Often court participants find it very confusing to work with P.L. 96-272 because of a lack of any clear standard as to the meaning of "reasonable efforts." The Adoption Assistance and Child Welfare Act of 1980 provided no definition of this term, only a requirement that reasonable efforts had to be made by the department. Federal regulations established pursuant to this act require each state to submit a Title IV-B plan which specifies which f:t.i.eplncement preventative and reunification services are available to children and families in need. 45 C.F.R. Ch. XIII, 1357.15(e)(1)(IO-I-95 Edition). The regulations provide a list of services which may be provided as part of this plan but these are merely suggestions not requirements. The following is a list of those services: 1. 24-hour emergency caretakers; 2. homemaker services; 3. day care; 4. crisis counseling; 5. individual and family counseling; 6. emergency shelters; 7. procedures and arrangements for access to available emergency fmancial assistance; 8. temporary child care to provide respite to the family for a brief period; 9. home-based family services; 10. self-help groups; 11. services to unmarried parents; 12. provision of or arrangements for mental health, drug and alcohol abuse counseling; 13. vocational counseling or rehabilitation; 14. other services the agency identifies as necessary or appropriate. 45 C.F.R. Ch. XIII, 1357.15(e)(2) (10-1-95 Edition). Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 58 Another source of insight into the meaning of the term "reasonable efforts" can be found in a widely read book, Making Reasonable Efforts: Steps for Keeping Families Together. This book was published with the cooperation of several groups including the National Council of Juvenile and Family Court Judges. Included in this publication is a list of recommended services written in broad terminology to be made available under the state's reasonable efforts requirements. That list follows. 1. family preservation services; 2. generic family based/family centered services; 3. cash payments; (a) to meet emergency needs; (b) to provide ongoing financial support; 4. noncash services to meet basic needs; a. food and clothing; b. housing (emergency shelter and permanent housing); 5. noncash services to address specific problems; a. in home respite care; b. out of home respite care; c. child day care; d. treatment for substance abuse/chemical addiction; e. treatment for sexual abusers and victims; f. mental health counseling/psychotherapy; g. parental training; h. life skills training; 1. household management; 6. facilitative services a. visitation (to prepare both parent and child for their eventual reunification); b. transportation (when services are geographically Guardian Ad Litem Court Procedures Reference Manual Section VII / Page 59 inaccessible). (p. 81-90). Many of these suggested services are similar to those contained in the federal regulations. However, as of now, there are no formal requirements at the federal or state level as to what must be contained in Georgia's Title IV-E plan. One should consult the DFCS manual periodically to see what preplacement preventative and reunification services am available in his/her county. Since there is no formal definition of reasonable efforts, juvenile court judges in a given county or circuit may interpret this requirement more stringently than do the department or law guardianiCASA, and reject recommendations if he/she feels that more intensive efforts are needed to prevent the removal of the child or to provide for the reunification of the family. The above lists of services can be useful to the law guardianiCASA as a guideline in researching exactly what resources are available in one's own jurisdiction, and can serve as a checklist as to what services have been provided, and what may be needed to remove the risk to the child and to facilitate reunification, if possible. At court hearings, the CASA, through the law guardian, should provide a report that addresses the reasonable efforts made for preventing removal. The report should include what problems necessitated initial removal of the child, what services are targeting this and each problem, whether those services are adequate, and whether the parents can reasonably take advantage of the services offered by the Divison of Family and Children Services. Georgia CASA Publications: "The Role ofa CASA Volunteer in Court Proceedings" 1997. Recent developments in Georgia law indicate further interpretations of the reasonable efforts requirements - for example, Senate Bill 611, presented in the 1996-97 legislative session and codified in O.C.G.A. 15-11-41, broke new ground in the area of deprivation by allowing an initial finding as early as the dispositional phase, that reasonable efforts to reunify not be required, and a "nonreunification" plan be submitted in lieu of a reunification case plan. O.C.G.A. Guardian Ad Litem Court Procedures Reference Manual Section VII/Page 61 15-11-41 (t), which is discussed in the next chapter. Further legislative changes seem to indicate a trend away from reunification efforts "at all costs"; effective July 1, 1997, extensions of custody to the Department of Family and Children Services were shortened in maximum duration from 18 months to 12 months, illustrating the prevailing thought that permanency planning is increasingly the goal for many children in foster care. Some critics of these new laws have asserted that they are contrary to the federal regulations that the state make all reasonable efforts to reunify with the family from which the children were removed. This has been countered with the argument that reasonable efforts requirements are not being at all circumvented, but that the legislative changes are merely seeking to more adequately define what is meant by "reasonable efforts," and in so doing, pragmatically and more expeditiously move children out of the foster care system and into more stable, permanent homes. It should be noted a Congressional Committee is currently re-evaluating these issues, and is considering amendments to PL 96-272 to reflect a more balanced approach to permanency planning than the current reunification mandate. Guardian Ad Litem Court Procedures Reference Manual Section VII I Page 62 1'-1he main focus ofthe dispositional hearing is what sh~uld be done <.1;< . to lffiprove the sItuatIOn of the child now that he/she IS found to be deprived in the adjudicatory hearing. The dual hearing procedure is sometimes called a bifurcated system, that is, a system with one hearing on the merits of the deprivation petition, and a separate hearing to detennine the pennanency plan for the child. If a child is found to be deprived, the court may go immediately into the dispositional phase of the proceedings, or the dispositional hearing may be postponed, upon motion by any party to the adjudicatory hearing, for a reasonable time. O.C.G.A. 15-11-34. Some reasons to continue the dispositional hearing may include the research and development of special resources for a particular case; rapid progress and complian(;e on the part of the parent or guardian that may obviate the necessity for a full 12-month custody award to DFCS; sufficient time for Interstate Compact for the Placement of Children evaluations to be completed; sufficient time for psychological evaluations, home/placement evaluations, or drug/alcohol tests to be completed; and other considerations as deemed appropriate. Once a child has been adjudicated as deprived, the court has detennined that it has the power to suspend the privacy interests of the parents and the child, and intervene in the family life for the protection of the child and possible Guardian Ad Litem Court Procedures Reference Manual Section VIII / Page 63 court ordered, and which must be complied with by the parent or guardian if custody of the children is to be eventually returned to them. Be aware, however, that courts are increasingly looking at dispositional alternatives, as permanency planning is taking precedence over often futile or improbable attempts to reunify with natural parents. A. EVIDENCE The types of information that can be presented to the judge are expanded in the dispositional hearings, and most of the constraints on evidence from the adjudicatory hearing are not present. In these hearings the court is authorized to receive "all information helpful in determining the questions presented" even if this information would not have been admissible during the adjudicatory hearing because of evidentiary problems such as hearsay. a.C.G.A. 15-11-33(d). The opposing counsel is still entitled to examine these reports prior to the dispositional hearing and to cross examine any witnesses put forth by the opposing counsel. a.c.G.A. 15- I I -33(d). However, confidential sources of information need not be disclosed. a.C.G.A. 15-11-33(d). The judge may direct that a social study and report be made to the court concerning "the child, his family, his environment, and other matters." However, the court may not take this information into consideration until after the adjudicatory hearing finding that the child is deprived. These reports are only admissible for purposes of decisions which must be made in the dispositional hearing. a.C.G.A. 15 - 11-32(a). The Georgia Supreme Court has held that the admission of such a report prior to the conclusion of an adjudicatory hearing was more than a technical violation of the law but did not constitute grounds for reversible error. The caseworker who wrote the report was a witness and available for cross examination and the appeals court assumed that the trial court did not consider only hearsay statements contained in the report. In the Interest of J.C I. et aI, 242 Ga. 747 (1978). Judges in some jurisdictions may require that the 30-day Guardian Ad Litem Court Procedures Reference Manual !II Section VIII / Page 65 II case plan be completed and submitted to the court prior to the dispositional hearing. B. DISPOSITIONAL ALTERNATIVES If a child is found to be deprived, the court may make any of several possible dispositions is best suited to the protection and physical, mental, and moral welfare of the child: 1) Permit the child to remain with his or her parents, guardian, or other custodian, including a putative father, subject to any conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child; 2) Subject to conditions and limitations as the court prescribes, transfer temporary legal custody to any of the persons or entities described in this paragraph. The court may approve or direct the retransfer of the physical custody of the child back to the parents, guardian or other custodian either upon the occurrence of specified circumstances or in the discretion of the court. Any such return can be made subject to further conditions prescribed by the court including continued supervision of the case by the Court and DFCS for the protection of the child. The persons or entities to whom or which temporary legal custody may be transferred include the following: a. any individual including a putative father 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; Guardian Ad Litem Court Procedures Reference Manual II Section VIII / Page 66 c. any Public agency authorized by law to receive and provide care for the child; or d. an individual in another state with or without supervision by an appropriate officer under O.C.G.A. 15-11-46 (a). The court is also authorized in all dispositional hearings to order the child and/or the child's parents or guardian to participate in counseling. O.C.G.A. 1511-36-1. The Georgia Juvenile Code provides the court with the power to punish a person for contempt of court for disobeying an order of the court, obstructing or , interfering with the proceedings of the court, or the enforcement of its ordt:rs. O.C.G.A. 15-11-62. The court may also order the parent(s) or guardian ofthe child to compensate the county or the Department of Human Resources for the following expenses: (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 and individual or a public or private agency; (3) reasonable compensation for services and related expenses of counsel appointed by the court, where 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 expenses 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 article; and (6) the cost of counseling and advice required or provided under O.C.G.A. 15-11-36.1, O.C.G.A. 15-11-56 (b). The court is Guardian Ad Litem Court Procedures Reference Manual II Section VIII / Page 67 authorized to require payment from a parent or guardian for these items after providing such a person with an opportunity to be heard and finding that he/she is financially able to make such payments. a.C.G.A., 15-11-56. Special rules exist for the disposition of a mentally ill or mentally retarded child. a.C.G.A. 15-11-40. If at any time the evidence indicates to the court that a child may be suffering from one ofthese conditions, the court may commit the child to an appropriate institution, agency, or individual for study and report on the child's mental condition. a.c.G.A. 15-11-40(a). Ifit appears from the study and report that the child is committable under the laws of this state, the court shall order that the child shall be detained and shall proceed to commit the child within 10 days to the Division of Mental Health, Mental Retardation, and Substance Abuse of the Department of Human Resources. a.C.G.A. 15-11-40(c). atherwise, the child's case disposition should be made as otherwise provided by this section. a.C.G.A. 15-11-40(d). A cour"s order removing a child from the child's home shall be based upon a finding by the court that leaving such a child in the home "would be contrary to the welfare of the child"; a.C.G.A. 15-11-41(b). At this point the court will also make a determination as to whether reasonable efforts were made to prevent or eliminate the need for the removal and to make it possible for the child to return to the home of his parent(s) or guardian. a.c.G.A. 15-11-41 (b). The statute allows for the transfer of temporary legal custody to the Division of Family and Children Services or to other qualified individuals or organizations. a.C.G.A. 15-11-34(a). The custodian to whom legal custody of the child is given by the court has several rights under the law: 1. The right to physical custody of the child; 2. The right to determine the nature of the care and treatment of the child, including ordinary medical care; Guardian Ad Litem Court Procedures Reference Manual Section VIII / Page 68 III 3. The right and duty to provide for the care, protection, training, and education as well as the physical, mental, and moral welfare of the child. D.C.G.A. 15-11-43. These rights are subject to the conditions and limitations imposed on the custodian by the dispositional order as well as the remaining rights and duties of the child's parents or guardian. D.C.G.A. 15-11-43. "Legal Custody" is defmed elsewhere under Georgia law as a legal status which embodies the following rights and responsibilities: 1. The right to have the physical possession of the child or youth; 2. The right and duty to protect, train, and discipline him; 3. The responsibility to provide him with food, clothing, shelter, education, and ordinary medical care; and 4. The right to determine where and with whom he shall live. D.C.G.A. 49-5-3(12). The code notes that these aspects of legal custody are subject to any residual parental rights and responsibilities. D.C.G.A. 49-5-3(13). These residual rights include the right to visitation of the child by his parents. A juvenile court judge can order an end to visitation; however, the parent(s) are entitled to a hearing on a termination of visitation rights if the issue was not formally addressed by the court in the adjudicatory or dispositional hearings. In the Interest ofK.B., 188 Ga. App. 199 (1988). Another residual right remaining with a parent whose child has been temporarily transferred to the custody ofDFCS is the authority to consent to the child's adoption. The Georgia Supreme Court has held that a mother retains the authority to place her child up for adoption with the chil' s grandparents prior to a hearing on the termination of her parental rights. At that point her parental rights remained in force and the termination proceedings were no longer necessary since the mother had voluntarily terminated her rights by placing the child for adoption. The court retained the authority to deny the adoption petition by the child's Guardian Ad Litem Court Procedures Reference Manual .. Section VIII / Page 69 .. grandparents if such a decision would be in the best interests of the child. Skipper v. Smith, 239 Ga. 854 (1977). In awarding temporary legal custody, the juvenile court has several options. The court is not required to place the child with a non-custodial parent simply because the custodial parents' parental rights have been temporarily suspended. The judge may in his/her discretion choose to place the child with DFCS instead of the non-custodial parent based on a review of the suitability of the other parent as a temporary guardian of the child. In the Interest of A.S. 185 Ga. App. 11 (1987). The juvenile court judge has the power to place conditions and limitations prior to the transfer oftemporary legal custody of a child to another individual or agency. a.c.G.A. 15-11-34(a)(2). This authority includes the ability to condition the return of the child to his parent(s) or guardian on the achievement of certain goals by the parent or guardian. The judge can also order continued supervision by DFCS after the child has been returned to the home. a.c.G.A. 15-11-34(a)(2). IfDFCS is attempting to obtain temporary legal custody ofa child, it is important to determine what conditions the caseworker would like to see imposed upon the parent in order to regain custody of the child. There are many possibilities and the needs of each child may differ. However, almost every case will require the parent to cooperate with the case plan as adopted by the court, to keep his/her address known to DFCS, and to visit the child, and pay child support to the Department. Kipling, Louise McVay, Deprivation and Termination, Children in Court: A Systems Approach, p. 22 (1989). The rights of foster parents who have temporary custody of a child via placement from DFCS is an area that has not been explored extensively. A panel of the Fifth Circuit Court of Appeals has held that while a state court may establish a rule that foster parents have no protectable property rights in regards to the children in their care under the due process clause, whether or not they have a protectable liberty interest is a federal constitutional question. Drummond v. Guardian Ad Litem Court Procedures Reference Manual Section VIII / Page 70 II Fulton Cty. DFCS, 547 F.2d 835 (5th Cir, 1977). The court held that the foster parents in this case were entitled to a due process hearing prior to having a child who had been in their care since infancy removed to another foster home and their request for the adoption of the child denied. Id., at 855. The court also found that the child himself had a protectable liberty interest in a "right to a stable environment" which authorized the child to intervene in the suit through his guardian ad litem. Id., at 856, 857. The Fifth Circuit later reheard this case en bane later that year and reached the opposite conclusion. Drummond v. Fulton Cty. Dept. of Family and Children Services, 547 F.2d 835 (5th Cir. 1977) The court here found no protectable liberty interest not to be moved from home to home without a prior hearing and rejected a "right to a stable environment." Id., at 1208. The court found that under Georgia Law, foster care is temporary arrangement which gives rise to no protectable rights on behalf of the child's temporary guardians. This is a state-created interest and not a liberty interest under the 14th amendment. Id., at 1207. A dispositional order transferring the temporary legal custody of a child is not equivalent toa termination of parental rights. The transfer of legal custody to DFCS or any other organization or individual only suspends the rights of the child's parents. These rights are not severed on a permanent basis. Rodgers et al. V. Department of Human Resources, 157 Ga. App. 235 (1981). The Court of Appeals has held that the statute does not authorize the separation of legal and physical custody of a deprived child between two separate organizations or individuals. In Re R.R.M.R. 169 Ga. App. 373 (1983). A juvenile court has no authority to transfer temporary legal custody to DFCS and then order the child be placed in foster care. IfDFCS is given legal custody, the department has the authority to decide where and with whom the child will live. In Re R.L.M., 171 Ga. App. 940 (1984). In addition, the juvenile court cannot award joint custody between the DFCS and an umelated third party ifDFCS objects to this Guardian Ad Litem Court Procedures Reference Manual Section VIII / Page 71 arrangement. In a typical deprivation case, the child is adjudicated as deprived and then temporary legal custody is transferred to DFCS during the dispositional hearing. From that point on, DFCS has the authority as the party with "legal custody" ofthe child under a.C.G.A. 49-5-3(12) to determine where and with whom the child shall live. The court may not award temporary legal custody to DFCS and then give physical custody of the c}1ild to an individual of its own choosing. The court re-emphasized that physical aud legal custody cannot be separated. In the Interest of J.N.T., a child, 212 Ga. App.498 (1994). Traditionally, dispositional orders involving the placing of a child in shelter or foster care remained in effect for 18 months after the order was issued. A 1996 amendment to this law shortened the enforceability of the order to 12 months after the date of the original placement with the department unless it is terminated by the court before that time. a.C.G.A. 15-11-41 0). All other dispositional orders continue in effect for not more than one year, following a 1997 change in the law shortening the traditional two year custodial extensions to one year. Uniform Rilles for the Juvenile Courts of Georgia, 15.2. The court may terminate an order of disposition prior to its expiration if it appears that the purposes of the order have been completed. a.C.G.A 15-11-41(m). A dispositional order is also terminated automatically once the child reaches the age of twenty-one (21 ). a.C.G.A. 15-11-41(0). The law guardianJCASA needs to ensure that the case plan is specific, and addresses the needs of the family and the child. In order for a rehabilitative step or goal to be court ordered, it must be substantively tied to a specific finding of fact. For example, the court cannot order a parent to attend a drug rehabilitation program unless it was specifically found by the court that substance abuse was a factor contributing to the deprivation of the child. Case plans, which will be discussed in greater detail in the following section, serve to integrate the legal and social aspects of the case, and provide the basis upon which the case is reviewed at all subsequent hearings. Duquette, at 80. As at all other stages of the Guardian Ad Litem Court Procedures Reference Manual II Section VIII / Page 72 II proceedings, the law guardianiCASA may asswne the role of "mediator" at disposition, as a cooperative settlement remains a priority. Often the law guardian plays a role in achieving cooperative and non-adversarial agreement on the case plan and dispositional order. Id., at 80. In representing the child's interests in the dispositional hearing, the law guardian should have sufficient information from the DFCS worker, CASA and others involved in the case to make a recommendation to the court. It is entirely appropriate to request a continuance if relevant and pertinent information has not yet been revealed. The law guardian is not a "rubber stamp" of the efforts and actions of the DFCS. Of course, it is ethical and generally advantageous to maintain an professional and amicable relationship with all caseworkers. However, the law guardianiCASA may sometimes disagree with the DFCS worker on appropriate placements, necessary or appropriate reunification goals or other facets of the case. In these circwnstances, the law guardianiCASA would be remiss in not making his/her concerns known to the court. There will be nwnerous instances when law guardianiCASA recommendations mirror those of the caseworker, or only slightly differ, yet the fundamental role of the law guardianiCASA is to ensure the child is receives the best possible plan for permanency, and this may involve, at times, contradicting the recommendations of other parties. With their overwhelming caseloads, DFCS workers may not always have completed permanent plans for children as expeditiously as the law guardianiCASA or the court would like, and may fail to address permanency issues. "Most social workers asswne that eventual, not immediate, reunification of the family and the long term provision of services is the correct plan in every case, and that consideration of other permanent plans is premature." Lawyers For Children, ABA Center for Children and the Law, (1990), at 317. This certainly is not always the case, a primary responsibility of the law guardianiCASA is to ensure that permanent plans for the child are developed from the very earliest point possible. Guardian Ad Litem Court Procedures Reference Manual Section VIII / Page 73 II C.INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN In advocating toward a pennanent plan for the child, the law guardian/CASA's investigation may reveal that the best placement for a child is with an individual who resides outside of Georgia. While a child in the temporary custody ofDFCS cannot automatically be sent to live with that individual, regardless of how appropriate the placement seems, there is a mechanism for evaluating and approving the out of state placement. There are, however, several strict rules of regarding these placements. The juvenile court system only has authority to place a child in institutional or foster care within the confmes of the State of Georgia. A juvenile court cannot make an order of disposition placing a child outside of the State of Georgia without the cooperation and approval of the state where the child will reside. In order to address the inherent difficulties of placing a child in a facility or foster care situation across state lines, the Interstate Compact on the Placement of Children (JCPC) was fonned in the 1950s. This compact has been ratified and is in force in all fifty states. The tenn "placements" for purposes of the compact include a foster family, boarding home, child-caring agency or institution located in another state. This definition does not include any institution for the mentally ill, any hospital or other medical facility or any institution that is primarily educational in character. ICPC Article lIed). In addition, Article VIII of the ICPC lists two situations in which the tenns of the ICPC shall not apply: 1. the sending or bringing of a child into a receiving state by his parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or non-agency guardian in the receiving state. 2. Any placement, sending or bringing of a child into a receiving state pursuant to a..'1y other interstate compact to which both parties are a party to. Guardian Ad Litem Court Procedures Reference Manual 1& Section VIII / Page 74 This second restriction applies to minors who are covered by other compacts such as the Interstate Compact on Juveniles and the Interstate Compact on Mental Health which cover the interstate transfer and supervision ofjuvenile delinquents and the mentally ill. Article III(b) of the ICPC requires that prior to "sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to possible adoption," the sending state shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state. The notice must at least contain at least the following: 1. The name, date, and place of birth of the child. 2. The identity and address or addresses of the parents or legal guardian. 3. The name and address of the person, agency or institution to or with which the sending agency proposes to send, bring, or place the child. 4. A full statement of the reasons for such a proposed action and evidence of the authority to which the placement is proposed to be made. ICPC, Article III(b)(1-4). In practicality this means that the caseworker or the judge who has made a proposed order for disposition in another state, will need to complete ICPC Form 100A and send it, along with the social history of the child, to the Compact Administrator for the State of Georgia as defined in Article VII of the ICPC. You should consult the Division of Family and Children Services to get the name and address for this person. The administrator is responsible for reviewing the information and forwarding it to the Compact Administrator in the receiving state. The appropriate child welfare agency in the receiving state will conduct a study of the proposed Guardian Ad Litem Court Procedures Reference Manual 18 Section VIII / Page 75 II placement site and record their fmdings in a report to the receiving state's Compact Administrator. The child welfare agency of the receiving state may request the sending agency to provide any supporting or additional information that is necessary under the circumstances in order to evaluate the proposed placement. ICPC, Article III(c). The child will not be "sent, brought, or cause to be sent or brought into the receiving state" until the Compact Administrator in the receiving state has notified the sending state in writing that the proposed placement does not appear to be contrary to the interests of the child. ICPC, Article III(d). The National Association for the Administrators of the Interstate Compact recommends that it should take no longer than 30 working days (6 weeks) to process such a request in the receiving state from the time that the Compact Administrator receives the request until the date that the proposed placement is approved or denied. Guide to the Administration of the Interstate Compact on the Placement of Children, p. 7. These procedures allow the fulfillment of two important purposes of the Interstate Compact on the Placement of Children. First, the state from which the child is sent is provided with the most complete information on which to evaluate a proposed placement before it is made. Second opportunity to ascertain the circumstances of the proposed placement in order to assure adequate protection for the child. ICPC Article I, (c and d). The length of time required to approve an interstate transfer under the Compact has sparked a great deal of debate about reforming this procedure in recent years. Article VII of the ICPC allows the Compact Administrators in each state, acting jointly to establish rules and regulations to allow for the purposes of the act to be carried out more effectively. In 1996, The Association of Administrators for the ICPC, in coordination with the National Council of Juvenile and Family Court Judges and other groups, established Regulation 7 which provides for the "Priority Placement" of children across state lines in certain circumstances. Priority Placement procedures are now applicable if the Guardian Ad Litem Court Procedures Reference Manual Section VIII / Page 76 proposed placement is with a parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt and: 1. the child is under two; or 2. the child is in an emergency shelter; or 3. the court finds the child has spent a substantial amount of time in the home of the proposed placement. ICPC Regulation 7. 1(a). The Priority Placement procedures can also be invoked if the receiving state Compact Administrator has a properly completed ICPC-IOOA and the necessary supporting documentation for over thirty (30) business days but has not provided notice as to whether the placement will be approved or denied. ICPC, Regulation 7.1(b). Regulation 7 establishes a strict time table for the completion of each step in the process of placing a child in a facility or foster care family across state lines. If a juvenile court judge determines that the circumstances warrant a priority placement, he/she should within two (2) business days notify the sending agency (the local county DFCS office). The county department has three (3) business days to transmit the order along with a completed ICPC-IOOA and the, supporting documentation to the Georgia Compact Administrator. Within two (2) business days the Compact Administrator should send the priority placement request and supporting documentation to the receiving state's Compact Administrator by overnight mail. The receiving state's child welfare department has twenty (20) business days from this date to send to Compact Administrator for that state the evaluation of the proposed placement. The Compact Administrator in the receiving state will return the necessary documentation with a notice of approval or denial to the sending state's Compact Administrator by fax. The Georgia Compact Administrator will then notify DFCS and the juvenile court judge of the decision of the receiving state. Regulation 7, ICPC. The priority placement request and home study requires additional forms which are attached at the end of this chapter. Under Article V of the ICPC, the sending state will retain Guardian Ad Litem Court Procedures Reference Manual Section VIII / Page 77 jurisdiction over the child once an out of state placement has been made. This means that the juvenile court acting through DFCS will make all decisions in regards to custody, supervision, care, treatment and disposition of the child. The sending state will also continue to have fmanciaI responsibility to the child and DFCS will have to make foster care payments just as it would in an in state placement until the child is adopted, emancipated, or reaches the age of majority. ICPC, Article Yea). O.C.G.A. 15-11-46 and O.C.G.A. 15-11-47 are the basic statutory enactments of the Interstate Compact for the Placement of Children which Georgia has adopted. In addition to these procedures, if the court determines that a child who has been adjudicated deprived is or is about to become a resident of another state, the court may defer the dispositional hearing and request by any appropriate means that the juvenile court of the child's new or prospective residence to accept jurisdiction over the child. O.C.G.A. 15-1144(a). If the child becomes a resident of another state while under the protective supervision of the court, the court may request that the juvenile court of the child's new residence accept jurisdiction and continue his protective supervision. O.C.G.A. 15-11-44(b). If the receiving court approves the request, the sending juvenile court will transfer custody of the juvenile as well as a certified copy of the order adjudging the child to be deprived as well as the order of disposition if one has already been filed. The juvenile court of the sending state will also provide a statement of the facts of the case as well as any recommendations and other information it considers of assistance to the accepting court in making a disposition. O.C.G.A. 15-11-44(c). If a Georgia juvenile court receives a similar request from an out of state court to accept jurisdiction over a deprived child and the court finds that the child is in fact deprived and is or is about to become a resident of the county in which the court presides, the court shall notify, the requesting court of its acceptance of the child not later than 14 days after the request is received. O.C.G.A. 15-11-45(a). The court is authorized to make its own order of disposition or to enforce the order entered by the out of state juvenile court. a.C.G.A. 15-11-45(c). Guardian Ad Litem Court Procedures Reference Manual II Section VIII / Page 78 II The law guardianiCASA must ensure that the DFCS worker provides him/her with copies of all ICPC transmittals and forms. In representing the child's interests, the law guardianiCASA has the right and responsibility to review the documentation, and to analyze the reports, letters and evaluations from the proposed receiving state's agency, as these will form the basis of his/her ultimate placement recommendation. Often times, the law guardianiCASA may be the party bringing the out of state resource to the attention of the caseworker, having learned of the potential placement through interviews and investigation. While not under the purview of the Interstate Compact for the Placement of Children, the CASA organization can and often does playa major role in facilitating stable placements for children outside of Georgia. There are occasions where children have been placed with relatives in other states pursuant to the ICPC, yet the juvenile court in Georgia where the child was adjudicated has retained jurisdiction. Obviously, with subsequent panel reviews and hearings such as custody extensions, the law guardian will need to assess the living situation of the child and evaluated the continued appropriateness of the placement, the child's educational, emotional and medical status, etc. Because CASA is a national organization with branches throughout the United States, you may be able to call upon the CASA program director in the area where the child in question has been placed, to conduct a courtesy evaluation and interview, and/or serve as a liaison between the law guardianiCASA and the child protective services worker in the state serving the child. For an excellent discussion of problems involving the ICPC, and recommendations for improvement, see Joint Committee on ICPC Improvement (May 8, 1996) (A copy can be obtained by writing to: American Public Welfare Association, 810 First Street, NE, Suite 500, Washington, DC 20002-4267), contained in Child Advocacy at the Crossroads: The Development and Direction of Children's Law in America, National Association of Counsel for Children, Children's Law Manual Series (1996 Edition). Guardian Ad Litem Court Procedures Reference Manual ,. Section VIII / Page 79 III A. 30-DAY CASE PLANS Within thirty (30) days of the child's removal from the home and at each subsequent review of the dispositional order, DFCS must submit a written report which shall either include a case plan for the reunification of the family or the basis for its determination that a plan for reunification is not appropriate. The contents of the report shall be based upon a meeting held between DFCS, in consultation with the citizen review panel (if such a panel operates within your county), and the parents and children if available. O.C.G.A. 15-11-41(c). The parents shall be given written notice of the meeting at least five days in advance and shall be advised that the report to be discussed at this meeting will be submitted to the judge to become an order of the court. O.e.G.A. 15-11-41 (c). The final report will become part of the formal case record and will be made available to the parents or guardian of the child upon request. The report must contain any dissenting recommendations of the citizen review panel and any recommendations made by the parents. O.C.G.A. 15-11-41(c). The adjudicatory and dispositional hearings will often have already been held before the end of the thirty day time period. Be aware that courts in some jurisdictions require the 30day case plan to be completed before the dispositional hearing is held. In many cases, the citizen review panel will NOT have met prior to the dispositional hearing on a case, and the DFCS caseworker will have authored the case plan, sometimes in conjunction with his or her supervisor and the parents. Guardian Ad Litem Court Procedures Reference Manual II Section IX I Page 79 III The law guardian/CASA must carefully scrutinize the plan, as the goals contained therein serve as a baseline from which to measure progress on the part of the depriving party, and to see if the conditions of deprivation are continuing. Depending upon the allegations, typical goals might include the completion of parenting skills classes; attendance at counseling sessions; the production of negative drug and/or alcohol screens; completion of substance abuse rehabilitation programs; verification to DFCS of adequate child care plans; regular visitation with the children in care; periodic contact with DFCS; attendance at all panel reviews and any other goals that are specifically tied to findings of fact. If a 30-day case plan is submitted to the court which contains a plan for reunification services, it must also address each of the following items: 1. Each reason requiring the removal of the child; 2. the purpose for which the child was placed in foster care, including a statement of the reason why the child cannot be adequately protected at home and the harm which may occur if the child remains in the home; 3. the services offered and provided to prevent the removal of the child from the home; 4. a discussion of how the plan is designed to achieve a placement in the least restrictive, most family-like setting available and in close proximity to the home of the parents, consistent with the best interests and special needs of the child; 5. a clear description of the specific actions taken by the parents and specific services provided by DFCS or other appropriate agencies in order to bring about the identified changes that must be made in order to return the child to the home. (all services and actions required of the parents not directly related to the circumstances necessitating separation cannot be made conditions for the return of the child without further court review). Guardian Ad Litem Court Procedures Reference Manual III Section IX / Page 80 III 6. specific time frames in which the goals of the plan are to be accomplished to fulfill the purpose of the reunification plan; 7. the person within DFCS who is directly responsible for ensuring that the plan is implemented; 8. consideration of the advisability of reasonable visitation schedules which allow parent(s) to maintain meaningful contact with their children through personal visits, telephone calls, and letters. a.C.G.A. A. 15-11-41(d). If the report contains a proposed plan for reunification services, the report must be transmitted to the parents at the time it is filed with the court, along with written notice that the report will be the order of the court unless, within five days from the receipt of the report, the parents request a court hearing to review the contents of the report. If no hearing is requested, the court shall enter a disposition order or supplemental order adopting the parts ofthe plan for reunification services which the court finds essential, and specifying what must be accomplished by all parties before reunification ofthe family can be granted. a.C.G.A. 15-11-41(c). In assisting in the development of, or in reviewing a previously prepared case plan, the law guardianiCASA should analyze several factors to ensure that an appropriate plan is being presented to the court for an order. The law guardian should ask the following questions: 1. Have any significant new developments occurred since the last hearing? This would include: new or additional allegations of deprivation that have surfaced which were not originally addressed; results of psychological evaluations revealing relevant factors that may affect compliance with the plan; concurrent criminal investigations or prosecutions that have caused a parent or guardian to be incarcerated; or a putative father's legitimation of the child since the case was last before the juvenile court. Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 81 2. What is the level of cooperation between the parents/guardians, and the DFCS workers who will be primarily responsible for enforcing the case plan? Are the parties on the same "wave length," or does continuing animosity indicate trouble ahead for successful plan compliance? 3. Do the experts and professionals involved in the case feel that the proposed steps and goals are appropriate? For example, are doctors and health care providers satisfied that a child in their care will be best served by the proposed plan? 4. Has there been sufficient information presented to adequately assess the physical and emotional status of the children? Are there special services that you deem necessary that may not have been included or overlooked by others? The law guardianiCASA will have conducted an independent investigation and may have additional relevant information. 5. Are there appropriate family members who can provide care for the child rather than a foster parent? If so, can that relative adequately protect the child from further harm? Bear in mind that many extended family members may NOT be suitable for placement, as some may not appreciate the severity of an order of deprivation, and the attendant responsibility of preventing contact from the perpetrators especially if the perpetrator is a son, daughter or other relative. 6. Will the child's educational needs be adequately met in the new placement? Can the child remain in his or her home school? 7. What are the child's preferences about his or her placement? Does the child want to visit with his or her parent? What special items does the child need from the home from which they were removed? Guardian Ad Litem Court Procedures Reference Manual ill Section IX / Page 82 II Once the preceding questions have been addressed and answered the law guardian/CASA may then recommend that the court adopt the proposed plan as its order of disposition. Duquette, 84-86. B. NON-REUNIFICATION PLANS As stated earlier, recent legislative changes have enabled more expeditious development and implementation of a permanent plan for a child who has been adjudicated deprived. Reunification services are no longer required in each and ever every case before the court. The court may now consider a motion that reunification services not be required, and order an alternative permanent plan for the child as part of the case disposition. If the report to the court does not contain a plan for reunification services, the court, after proper notice to the child's parent(s), shall hald a hearing within 30 days following the filing of the report. O.C.G.A. 15-11-41(t). A case plan with a non-reunification recommendation must address each of the following issues: 1. each reason requiring the removal of the child; 2. the purpose behind placing the child in foster care, the reasons why the child cannot be adequately protected at home, and the harm which may occur if the child remains in the home; 3. a description of the services offered and provided to prevent the removal of the child from the home, 4. a description of all of the reasons behind not submitting a plan for reunification due to a potentially detrimental effect on the child and whether any of the grounds for termination of parental rights exists. O.C.G.A. 15-11-41(g). Atthis hearing, DFCS will be expected to inform the judge whether ar i when it intends to proceed with the termination of parental rights. IfDFCS has no such intention, the judge may appoint a guardian at litem (if one has not already been appointed) to review the report and determine whether termination proceedings should be commenced independently on behalf of the child. Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 83 III D.C.G.A. 15-11-41(h). Remember though, that if the law guardian for a child files any further actions on hislher behalf another law guardian will need to be appointed; by filing such motions, the law guardian has essentially become the attorney for the child, and is no longer able to independently and objectively represent the child's best interests in future proceedings. D.C.G.A. 15-11-55, and In re J.S.C., infra. In order to accept a recommendation by DFCS that a reunification plan for a particular family is not appropriate, the court must determine by clear and convincing evidence that reasonable efforts to reunify a child with hislher family will be detrimental to the child. D.C.G.A. 15-11-41(1). There is a presumption that reunification services should not be provided ifthe court finds by clear and convincing evidence that: (l) 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; or (3) any ofthe grounds for terminating parental rights exists. (these grounds will be discussed in the following chapter on Termination of Parental Rights). D.C.G.A. 15-11-41(1)(1-3). C. JUDICIAL AND CITIZEN REVIEW The law guardianiCASA's job is NDT done after the adjudicatory and dispositional hearings. There is overwhelming evidence that the child's need for an advocate is often greatest following his or her placement in foster care or institutional settings. IJamers For Children, ABA Center for Children and the Law, (1990). The law guardian/CASA's primary goal following the placement of a child in foster care should be to ensure that the child's out of home placement is as short as possible. If family reunification is the goal, the law guardianiCASA has a role in monitoring the steps each party - DFCS and the parent/guardians - is Guardian Ad Litem Court Procedures Reference Manual .. Section IX / Page 84 II taking to achieve the child's return. home. If termination of parental rights and adoption, or some other goal, is pursued as the permanency plan for the child, then the law guardianiCASA has a role in monitoring how the agency is implementing that plan. Foster care is not a panacea for an abused or neglected child, providing at best a temporary safe haven. There has been litigation filed in this and other jurisdictions higWighting deficiencies in the foster care system: given the overwhelming number of children coming into care and the usually severe budgetary constraints, some of the children's basic needs may not be adequately met at all times (eyeglasses, dental care, appropriate counseling, medications, etc.). For most children, foster care provides little stability. Children are frequently moved from one placement to another, sometimes spending only a single or a few nights in a home before the placement disrupts for various reasons. Also, while in foster care, many children lose contact with their siblings as these visits are often hard to facilitate. Grimm, After Disposition: The Need for Advocacy and the Role of Child's Counsel, National Center for Youth Law, (1990). There are many good foster homes available for children, and in most cases, the basic needs of children are met in these placements. However, foster care is NOT viewed as a permanent plan for a child, and the law guardianiCASA's role is to ensure that permanency always remains the primary goal for the child. Again, this requires that continued advocacy for the child's best interests for what may be long after the initial court hearings In Georgia, thousands of children come into the temporary custody of DFCS each year, and are placed in foster care. Studies have shown that children who remain in temporary foster care for 18 months have an 80 percent chance of remaining in foster care until their 18th birthday. Murphy, Matz, Cheever, Norwood, The Team Approach to Child Advocacy: D, July, 1993. Our state legislature has responded to federal mandates of developing permanency for children by implementing a review system of the cases of all children in out-ofhome placements. (See detailed statutory requirements and case law, infra.) Some Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 85 II jurisdictions, particularly the smaller ones, generally have the juvenile court judge periodically review the case plan for the child, whereas a growing number of counties in Georgia have implemented Citizen Review Panel Programs to ensure that permanency is being pursued. These programs were established in response to the Adoption Assistance and Child Welfare Act of 1980. The impetus behind passage of the law was the belief of Congress, supported by child welfare administrators, practitioners and extensive research, that the public child welfare system, responsible for serving abused and neglected children, had become a "holding system." Children were languishing in foster homes too long, and being moved too many times. One of the fIrst requirements was to establish a system of case review at least every six months for each child in foster care. Panel programs use local volunteers selected by the juvenile court judge; they represent a wide cross section of racial, social-economic and religious sectors of the community. Many are employed, others are retired, students over the age of 18 or homemakers. They have a variety of skills and expertise. Panel members must submit to a criminal records check and be sworn in by the judge of the juvenile court before they can begin reviewing these confIdential cases. Ongoing training is provided regularly so volunteers can learn more about pertinent child welfare issues, laws and new resources to help families. In Georgia, the cases of all children in foster care under the supervision of DFCS shall be initially reviewed within 90 days of a disposition order but no later than six months following the child's placement. A 1997 amendment to this statute provides that these cases will continue to be periodically reviewed every six months thereafter. O.C.G.A. 15-11-41 0). At these periodic reviews, the reunifIcation plan proposed by DFCS may be revised and adjusted over time in order to meet the needs of the child and to react to the changing conditions of hislher parents. The law guardianiCASA should review the progress (or lack of progress) made on the goals, and always scrutinize whether the goals that remain as part of the plan are appropriate for ultimately arriving at permanency for the Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 86 II child. All review subsequent to the dispositional hearing should be conducted by the juvenile court judge or the citizen review panel if such an organization is active in a given county. At the time of each review, DFCS will be expected to inform the court whether it intends to proceed with the termination of parental rights. While it may not be feasible for the law guardian to personally attend each and every review, (although that would be the ideal circumstance), the law guardian can conduct his or her independent analysis of the progress on and appropriateness of the permanent plan's goals and steps. Any CASA appointed to a case should attend and participate in Citizen Panel or Judicial Reviews of the case. If attendance is not possible, the CASA should submit a report to the law guardian to be reviewed by him/her and then submitted to the review panel and the court. Each panel review of a foster care case shall make findings and submit recommendations to the court which should address the following issues: 1. the necessity and appropriateness of the current placement; 2. whether reasonable efforts have been made by the local DFCS office to obtain permanency for the child; 3. the degree of compliance with the specific goals and objectives set out in the case plan of all appropriate parties and their level of participation: 4. whether any progress has been made in improving the conditions that caused the child's removal from the home; 5. any specific changes that need to be made in the case plan, including a change in the permanency goal and the projected date when permanency for the child is likely to be achieved. URJC, 24.7 There are specific guidelines for foster care reviews by Citizen Review Panels contained in Rule 24 of the Uniform Rules for the Juvenile Courts of Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 87 II Georgia. Three panel members constitute a quorum and no action may be taken and no review made in the absence of a quorum. URJC, 24.6(b) The panel can choose to hear from any person who formally requests to be heard as long as they have specific knowledge of the case and can assist with the review process. Parents and children may bring a representative of their choice who is authorized to provide the panel with information. URJC, 24. 13(a). Often, clergy members, foster parents, children's therapists, the CASA or intern and the law guardian will attend the review. The chairperson may excuse any person from the review at the request of any participant if the chairperson determines that such exclusion is necessary to proper review of the case. URJC, 24.13(e). Each participant in the review must affirm by oath to keep all information disclosed in the review confidential. URJC, 24. 13(t). The panel may meet privately with the child if it will serve to improve the child's ability to communicate. URCJ, 24. 13(b). The parents, child, DFCS staff and foster parents should all receive written notice of a review. URJC, 24. 13(c). As law guardianiCASA, it is vital to keep abreast of the case, and ensure receipt of timely notice of all reviews. If the Citizen Review Panel conducts the review, the panel will transmit its report, including its findings and recommendations along with those of DFCS and the department's proposed revised plan for reunification or nonreunification to the court and the parents within 5 days. Any party to this proceeding may request a hearing on the proposed revised plan within five days after receiving a copy of the report. O.C.G.A. 15-11-410). If no hearing is requested, the juvenile court judge will review the proposed revised plan and enter a supplemental order incorporating the revised plan as part of its disposition of the case. It should be emphasized that this supplemental order of disposition has the same legal effect as did the original disposition and plan for the child; therefore, it is obviously important for the law guardianiCASA to have as much input at this stage of the proceedings and he or she did at the onset. Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 88 II If a hearing is held, the court will review the evidence presented by all parties and enter a supplemental order incorporating the elements of the revised plan the court fmds appropriate. The supplemental order shall be entered by the judge within a "reasonable time" after the hearing and shall provide for one of the following: (1) that the child return to the home of his or her parents, legal guardian, or custodian with or without court imposed conditions; (2) that the child continue in the current custodial placement and that the current placement is appropriate for the child's needs; or (3) that the child continue in the current custodial placement but that the current placement plan is no longer appropriate for the child's needs and direct the department to devise lli."1.other plan. O.C.G.A. 15-11-41(k). The law guardianiCASA should be mindful that in many cases, visitation between parent/guardian and the children who have been removed is a "barometer" for the ultimate success of reunification. Visitation is absolutely critical to maintaining the bond between parent and child, yet frequent visitation may not often occur. Of course, the failure of a parent to make visitation appointments and/or keep them is beyond the control of the law guardianiCASA and most other parties. A parent's lack of visits with the child is one of the most important factors the court will weigh in future custody extensions or in termination of parental rights proceedings. Because of their budgetary constraints, DFCS is only required to provide at least a monthly visit with parents, yet child welfare experts agree this is insufficient for the formation and/or maintenance of a solid familial bond. See Haralambie, The Child's Attorney, supra at 154-169. The law guardianiCASA may be able to assist; often CASAs are granted permission by the court to facilitate visits, and help the overburdened caseworkers set up and (if required) supervise visits between parents and children. Finally, there are several facts the law guardianiCASA should together Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 89 11II ascertain in their review ofthe ongoing status of a particular case. If the plan does not appear to look toward permanency, they should approach the court with appropriate motions and petitions (eg., protective orders, motions for additional findings of fact, placement reviews -discussed infra, petitions to modify custody, or judicial reviews ofpanel recommendations and DFCS requests for retransfer of physical custody or requests to be relieved of custody). 1. Use the case plan as a checklist; inquire as to significant new developments since the last hearing or review. 2. Ascertain what progress (if any) has been made in the home toward alleviating the conditions that cause the child to remain undel the supervision ofthe court and in his or her out of home placement (or if placed back into the home, what conditions still warrant continued DFCS custody and supervision.) 3. Determine if any goals have been fully achieved, and ask whether such compliance and completion warrants unsupervised visitations, placement back into the home or a return of full legal custody to the parents. 4. Review the frequency and nature of visitations. 5. Review the level of contact and cooperation by the parents with their DFCS worker. 6. Determine if the counseling that has been arranged for the parents and the children is adequately addressing the issues that necessitated the out of home placement. 7. Remember that goals cannot just be surreptitiously added if statements or comments made in the panel review, or pursuant to your own post dispositional investigation reveal additional "depriving conduct" on the part of the parents or guardian that was not originally addressed. (For example, if a child who has been removed because of the parent's substance abuse problem reveals Guardian Ad Litem Court Procedures Reference Manual Section IX / Page 90 II to a foster parent or teacher that he or she was also sexually molested). If appropriate, the DFCS worker should be notified, and in conjunction with the SAAG, a motion for additional fmdings of fact should be brought before the court (in essence, it amounts to a new deprivation complaint with the new allegations, on a child who has already been adjudicated as deprived.) The law guardianiCASA may assume several other responsibilities in the quest to achieve ultimate permanency for the child whose interests he or she represents. Often, the CASA will be either required or requested to assist the law guardian in making recommendations regarding the placement of children back into the home from which they were removed. Prior to legislation that went into effect July 1, 1993, the Division of Family and Children Services had unfettered discretion to place a child back into the home he/she was removed from, upon the caseworker's information and belief that there had been sufficient compliance with the case plan minimizing any future risk of harm to the child. Tragically, following several incidents whereby children (possibly prematurely) placed home were injured and even killed by parents, the legislature felt compelled to reduce some of the discretion ofDFCS and under a.C.G.A. 15-11-34, placement back into the home from which the child was removed requires a separate judicial order. "The court shall approve or direct the retransfer ofthe physical custody of the child back to the parents, guardian or other custodian either upon the occurrence of specified circumstances or in the discretion ofthe court." a.C.G.A. 15-11-34 (a)(2). Many courts require that the requests be made in writing, and that an investigation and analysis be conducted to ensure (as best as possible) that there has, in fact, been sufficient case plan compliance and risk elimination to warrant the placement of the child back into the home. If possible, such requests should be reviewed by the law guardianiCASA and/or the citizen review panel, giving the court additional information and input in deciding whether to grant approval. Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 91 II Depending on the guidelines in a particular jurisdiction and juvenile court, the law guardianiCASA may be called upon to make similar recommendations regarding DFCS requests for unsupervised visitation (that is, visits between parent and child unsupervised by a caseworker or other professional.) The law guardianiCASA will need to become familiar with the requirements of the individual court in which they advocate. For example, in DeKalb County, the court considers any proposed visit with a parent that will take place overnight, or over a weekend, and which is not going to be supervised by a third party, to come under the purview of 15-11-34, and requires that ajudicial order authorize the , visit. Prior to presentation to the judge, the request is evaluated by the law guardian for a recommendation, similar to those for the retransfer of physical custody. Another recent legislative change in the laws governing case disposition and permanency planning for children is the provision that "notwithstanding any other provisions of law, the court after transferring temporary legal custody of a child to the Division of Family and Children Services...may at any time conduct sua sponte a judicial review of the current placement plan being provided to said child. After its review the court may order [DFCS] to comply with the current placement plan,... to devise a new placement plan within [it]s available resources, or make any other order relative to placement or custody outside the Department of Human Resources as the court finds to be in the best interest of the child." a.c.G.A. 15-11-34 (c). It is often the responsibility of the law guardianiCASA, who acts independently of DFCS, to bring questionable placement circumstances to the attention of the court, so that the sua sponte review may be held. Circumstances which have warranted such review in the past have included the discovery of a foster parent's conviction record for prior crimes, problems involving children in institutional care and issues surrounding the level of protection afforded children who may have been placed with relatives. Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 92 II D. MOTIONS TO EXTEND As previously mentioned, the current trend in the law is to expedite permanency for children, and this is reflected in legislation shortening the length of time children are placed in the state's custody, and giving parents and guardians stricter time constraints within which to achieve reunification goals. The situation may arise, however, where DFCS wishes to extend custody of a child, usually to continue working with the parents or guardians who have made some progress on their goals, but have not completed them. Other reasons that DFCS may desire to maintain custody arise in cases where a special needs child requires placement in a residential treatment facility, and DFCS custody is necessary to financially maintain the placement. It may also be appropriate to extend custody for children whose permanent plan is participation in Independent Living Programs or Job Corps, or placement under long term foster care agreements. As with all other stages in the deprived proceedings, the law guardianiCASA, should remain an integral player in the hearings to extend custody. The law guardianiCASA must conduct a review of the case file, and prepare for the hearing as one would in the same manner as for an adjudicatory hearing. In most cases, preparation for a custody extension will necessarily involve a new interview with the child, to ascertain the child's wishes, the appropriateness of the current placements, the effect of visitations with parents or lack thereof, the child's therapeutic progress (if applicable), and other relevant information. In the law guardianiCASA's review of the case, additional information of tantamount importance to be considered prior to custody extensions are the goals, reports and recommendations submitted by the citizen review panels (or judicial reviews). Progress made on the goals is noted and analyzed. The law guardianiCASA should also review all supporting documentation indicating the level of compliance with the various goals, including, but not limited to Guardian Ad Litem Court Procedures Reference Manual Section IX / Page 93 certificates of completion of parenting skills classes, documentation from mental health professionals, mental health professionals, medical reports, drug screens (tests), reports from rehabilitative facilities, documentation from the Interstate Compact for the Placement of Children (ICPC), child interviews and home studies and evaluations. Here again, pre-trial negotiations may be advantageous over a full trial on the allegations in the motion to extend, and any negotiations resulting in agreements or the amendment of language contained in the motion may not take place without the full participation and consent of the law guardian! CASA. The custody extension hearings are conducted in the same manner as other adjudicatory hearings, and the law guardians/CASAs will ultimately offer a recommendation to the court as to whether continued custody of the child with the Division of Family and Children Services is in his or her best interest. As in the adjudicatory hearings, the law guardian will make known to the court any information or reports conducted by the CASA assigned to the case, and may choose to elicit in-court testimony from the CASA. Until recently, a court which made a disposition or supplemental order could extend its duration for two years ifDFCS, represented by the SAAG, filed a motion with the court prior to the expiration of the order and a hearing is held to determine the child's future status. A 1997 amendment by the General Assembly shortened this extension oftemporary custody to twelve (12) months. O.C.G.A. 15-11-41(1). This amendment (also known as HB 126) became effective on April 21, 1997. To determine the future status of the child, the hearing on a motion to extend custody addresses the following issues: 1. Whether the child should be returned to his/her parentes), 2. Whether the child should be temporarily continue in foster care; 3. Whether because of special needs or circumstances, the child should continue in foster care either temporarily or on a long term or permanent basis; Guardian Ad Litem Court Procedures Reference Manual .. Section IX / Page 94 4. Whether parental rights should be tennmated and the child placed for adoption; 5. Whether reunification services should continue; and 6. What procedural safeguards should be applied to the following: (a) parental rights with respect to the removal of the child from the home of his/her parents; (b) a change in the child's placement; (c) any determination affecting visitation privileges of the parents. a.c.G.A. 15-11-41(1)(1). The parents of the child must be given an opportunity to be heard at this hearing prior to the judge's decision. a.C.G.A. 15-11-41 (1)(2). In order to grant an extension of temporary custody over the child to DFCS, the court must find that the extension is necessary to accomplish the purposes of the original order. a.C.G.A. 15-11-41 (1)(3). Ifthe desire to keep the child in temporary custody with DFCS is based upon new circumstances not previously addressed in the deprivation proceeding, the appropriate procedure would be to file a new deprivation petition. The motion to extend temporary custody and the hearing thereon should be filed and held prior to the expiration of the original dispositional order removing the child from the home. a.C.G.A. 15-11-41(1). Failure to do so can result in a reversal on appeal of a decision to extend temporary custody. However, the parents or guardians must object to the failure to properly file the motion on time during the extension hearing or they will lose the right to object to the state's mistake on appeal. Page v. Shuff, 160 Ga. App. 866 (1982). A dispositional order which is allowed to expire before a proper extension is given by the juvenile court would seem to require the return of the child to his parents or guardian. However, nothing at this point would prevent DFCS from filing a new deprivation petition requesting that the child once again be removed from the home. Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 95 II The Court of Appeals has refused to overturn a judgment of the trial court temporarily extending custody with DFCS on the last day before a dispositional order was set to expire until another deprivation petition could be filed. In that case, the court held an emergency hearing to extend custody without notifying the child's mother. By the time the case reached the Court of Appeals, the trial court held an adjudicatory hearing on the merits of the new deprivation petition and once again ordered the child removed from the home. The court declined to reverse an improper extension order because the lower court had found once again by clear and convincing evidence that the child was deprived. In the Interest of P.M. et al..children, 201 Ga App. 100 (1991). In order to prevent unnecessary trauma to the child as well as the need to again start the deprivation process, it is important for the SAAG and caseworker to coordinate with each other so that motions to extend custody are filed in plenty of time to allow for a hearing prior to the expiration of the original order. The repeated use of motions to extend temporary custody without attempting to terminate parental rights have caused some to criticize this practice as promoting "foster care drift." This is the movement of a child from one temporary foster home to another while waiting (sometimes in vain) for the parents to comply with the court ordered reunification plan. The law guardianiCASA may question whether petitions to terminate rights should be pursued rather than custody extensions, and should make these concerns known to the court. Prior to the natural expiration of a custody award to DFCS, the agency may (usually upon the completion of case goals, or when another permanency option has occurred, such as a third party being granted guardianship of a child) petition the court to modify custody back to the parents or guardian from whom the child was originally removed. However, DFCS is not always the petitioner asking for a custody modification. Often, the parents or guardians file these petitions, either with the assistance of counselor pro se, alleging that the case plan Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 96 has been complied with, that the conditions of deprivation no longer exist, and that there is no risk to the child if custody is awarded back to them. The burden of proof falls upon the petitioner; in this case, the parent must prove full compliance with the case plan, and have supporting documentation and evidence to present in court ifhe/she is to prevail. The parents (or any party for that matter) can petition the court at any time for a modification of custody. "A deprivation order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child..." O.C.G.A. 15-1142(b). In cases where DFCS asks to be relieved of custody, some jurisdictions may not require a full hearing be held, provided that the request to be relieved is consented to by all parties, including the law guardianiCASA. Requests by DFCS to be relieved of custody may be handled much in the same manner as the requests for retransfer of physical custody, and involve the same high level of case analysis, investigation and scrutiny of compliance by the parents or guardian before a recommendation issues from the law guardian. If the law guardianiCASA, the parents (alone or through their attorneys) and DFCS agree that custody should be returned to the parents, a consent order will issue, and the case will be closed. The law guardianiCASA may, however, disagree with a request that DFCS be relieved of custody. Perhaps independent investigation or recent interviews with the child have revealed that there are unresolved issues in the home, and that further DFCS intervention and/or supervision is necessary to ensure the child's safety. In these cases, the request to be relieved of custody is not consensual, and the SAAG will have to file a petition to modify custody should DFCS wish to pursue it. A full hearing will ensue, the burden falling on the Department to prove case plan compliance and removal of risk to the child. For the law guardianiCASA, the same responsibilities exist at this hearing as for adjudicatory and custody extension hearings. Guardian Ad Litem Court Procedures Reference Manual II Section IX / Page 97 /I A. OVERVIEW A petition for the termination of parental rights is often filed by the DFCS when it appears that efforts to reunite the family will either be futile, or potentially endanger the child emotionally and physically. A term~nation petition can also be filed on behalf ofthe child by his or her guardian ad litem. a.c.G.A. 15-1182(b). However, an outside law guardian appointed to represent the child's interests if the original law guardian becomes the petitioner. An order terminating parental rights has the effect of ending all rights and obligations of the parent with respect to the child and the child to the parent including the right of inheritance. The parent will have no right to notice of or to object to the future adoption of that child into another home. a.C.G.A. 15-11-80. The termination of one parent's rights with respect to the child has no effect on the legal rights of another child. a.C.G.A. 15-11-92. ance a parent's rights have been terminated, all obligations to support the child end and the state may not require the parent to support a child now in custody ofDFCS. Dept. of Human Resources v. Ammons, 206 Ga. App. 805 (1992). In addition, a juvenile court may not reserve inheritance rights for a child in an order terminating parental rights. Spence v. Levi, 133 Ga. App. 581 (1974). The venue requirements for a petition to terminate parental rights mirror those of a petition alleging the child to be deprived. a.c.G.A. 15-11-15. The Court of Appeals has held that in a proceeding to terminate parental rights, a petition can Guardian Ad Litem Court Procedures Reference Manual !II Section X / Page 98 II also be filed in the county in which the child resides in a foster home if that location is different from the county in which the first action concerning the child was filed. Cain v. Department of Human Resources, 166 Ga. App. 801 (1983). For the law guardian, the termination of parental rights may be the fmal chapter in a case on which he or she has been the child's advocate for a number of months or even years. The same level of participation in the hearings and the same degree of preparation is required of the law guardian as in prior hearings. If this action ends the involvement of the law guardianiCASA with the child, or whoever the relationship ceases, it is important for the law guardian/CASA to discuss with the child, in a developmentally appropriate manner, the end of the representation. It is also crucial to determine what future contacts, if any, the child and the law guardianiCASA will have. ABA Standards, supra F-5. B. STANDARDS OF PROOF AND REQUIREMENTS OF PARENTAL RIGHTS The Georgia Juvenile Code has set forth four basic situations where a petition for the termination of parental rights is clearly appropriate: 1. the parent has given written consent, acknowledged before the court, to the termination ofhislher parental rights with respect to the child, such as in a case where the parent places the child for adoption; 2. a decree has been entered by a court ordering the parent to support the child and the parent has wantonly and willfully failed to comply with the order for a period of 12 months or longer; 3. the parent has either abandoned the child or left the child in a situation that the identity of the parent cannot be determined afLr a diligent search and the parent has not come forward to claim the child within three months of hislher finding; 4. the court makes a finding of parental misconduct or inability. a.c.G.A. 15-11-81(b)(l-4). Guardian Ad Litem Court Procedures Reference Manual II Section X / Page 99 III According to the Georgia Juvenile Code, the court can only order the tenmnation of parental rights by fmding by clear and convincing evidence that the parent in question falls into one of the categories above set forth. a.C.G.A. I5-II-8I(a). Even if the court finds justification for tennination because the parent falls into one of these four categories, the court cannot tenninate a parent's rights over the care and control of the child unless the tennination would be in the best interest of the child. This is decided by the court after considering the physical, mental, emotional, and moral condition and needs ofthe child who is the subject of the proceeding, including the need of that child for a secure and stable home. a.C.G.A. I5-II-8I(a). This is a high standard for the petitioner to meet. It is not sufficient by itself for tennination to be in the "best interest" of the child or that the child might be better off in another environment. A finding of unfitness must be based on a review of whether the parent can care for the child alone without the necessity of state intervention. It is not enough that the child might find better "financial, education or even moral advantages elsewhere." Carvalho v. Lewis 247 Ga. 94 (1981). The court must still find by clear and convincing evidence a case of parental misconduct or inability. Ferreira, McGough's Ga. Juvenile Practice and Procedure, (2nd ed.), 5-6. In a deprivation hearing, a decision is reached based on the needs of the child without regard to any "fault" on the part of the parents in causing or failing to prevent the causes of the child's condition. See Brown v. Fulton County Dep't of Family and Children Services, 136 Ga. App. 308 (1975). However, a petition to tenninate parental rights can only be approved upon findings of some sort of "parental misconduct or unfitness resulting in the abuse of neglect of the child." Chancey v. Dep't of Human Resources, 156 Ga. App. 338 (1980). A decision to tenninate cannot be based upon the "best interests" or "welfare of the child" alone. Id., at 340. A decision to approve a petition to tenninate parental rights under any of the standards must be made by a finding of clear and convincing evidence. a.c.G.A. 15-11-81(a). In a termination order, the judge must Guardian Ad Litem Court Procedures Reference Manual iliIII Section X / Page 100 II1II specifically state that hislher decision is supported by clear and convincing evidence. Failure to do so will result in a reversal upon appeal. In re R.L.Y, et aI., 181 Ga. App. 14 (1986). A simple recitation of the statutory requirements followed by a statement that these minimum standards ofparental conduct have not been met in a given case also will not be considered sufficient on appeal. In the interest ofM.H.F. a child., 201 Ga App. 56 1991), and In the Interest ofH.T., a child, 198 Ga. App. 463 (1991). A decision to terminate parental rights is held to a very high standard which is taken very seriously by the appellate courts. "Seldom does the state wield so awesome a power as when it permanently ends the family ties between parent and child." R.C.N. v. State of Ga., 141 Ga.App. 490,491 (1977). C. GROUNDS FOR TERMINATION 1. Voluntary Relinquishment of Parental Rights The code contains a ground for termination applicable when the parent consents to the termination of hislher parental rights in writing and acknowledges this fact before the court. a.C.G.A. 15-11-81(b)(1). That acknowledgment is not necessary when the parent voluntarily surrenders the child for adoption. a.C.G.A. 15-11-81(b)(1). This section does not authorize a parent to file a motion in juvenile court to terminate hislher own parental rights. This section was meant to be used in situations where a third party, such as DFCS, requests a termination and the parent consents to this outcome. The Court of Appeals has held in a case where a mother filed a request to terminate her own rights to her daughter for fear of criminal prosecution for parental abandonment, such a motion had to be rejected. In re K.L.S., 180 Ga. App. 688 (1986). In this case, the mother had rarely seen her child in eight years and the maternal grandmother had threatened to swear out a warrant for her arrest. Id., at 689. 2. Failure to Comply with a Child Support Order The Juvenile Code also authorizes the termination of parental rights when a parent has wantonly and willfully failed to comply with a child support order for Guardian Ad Litem Court Procedures Reference Manual III Section X / Page 10111 a period of one year or longer. D.C.G.A. 15-11-81(b)(2). Any complaint or petition alleging a failure to comply with a previous court order as a basis for termination should include a copy of that previous order attached to the complaint or petition. URJC, 4.1. The Court of Appeals has found that a mother's failure to provide child support for over one year did not justify termination when there was no request for child support and no court order mandating such action. Uniroyal Goodrich Tire Co.,et al. v. Adams el aI., 221 Ga. App. 706 (1996). The key to this standard appears to be whether the parent "wantonly and willfully" failed to comply with the court order. The Court of Appeals has upheld a decision by a juvenile court rejecting a termination petition where the trial judge defined "wantonly and willfully" based on precedence as "without reasonable excuse, with a conscious disregard for duty, willingly, voluntarily. and intentionally." In re H.B. and K.B.,174 Ga. App. 435 (1985). In that case the court found that the mother did not intentionally violate the court order for one year or longer when evidence showed that she had an extremely low income, tried to send $100 to the child's father and provided health insurance for the children by borrowing money and cashing in her retirement fund. Id, at 435. In another case, the Court of Appeals found that a father's failure to follow a child support order was not wanton or willful when he was laid off from his job and unable to pay child support. In re S.G.T., 175 Ga. App. 475 (1985). These cases were decided under D.C.G.A. 15-11-51(a)(4) which was repealed when the General Assembly enacted Article II of the current Juvenile Code dealing with the Termination of Parental Rights in 1986. However, the language used in defining this particular ground for termination remains the same. D.C.G.A. 15-11-1(b)(2). 3. Parental Abandonment The Court of Appeals addressed the issue of abandonment in Thrasher v. Glynn County DFCS, 162 Ga. App. 702 (1982). The facts of an abandonment case must be construed in favor of the parent and against a finding of abandonment. In order to make such a finding there must be sufficient evidence of Guardian Ad Litem Court Procedures Reference Manual Section X / Page 102 "actual desertion, accompanied by the intention to sever entirely, so far as possible to do so, the parental relation and throw off all obligations growing out of the same, and forego all parental duties and claims." Id., at 702. The court noticed that the father had failed to attempt to legitimate the child, establish any familial relationship with the child, or contribute to the support of the child or of the mother (including medical care) during or after her pregnancy and hospitalization. Id., at 702. Note that these are the same factors considered in determining whether a putative father whose address is not known should have his parental rights terminated even in the absence of his presence at the hearing. Merely turning over the custody of a child to another is not alone grounds for termination of parental rights. Here, custody of a child was provided temporarily to one of the mother's adult children. The mother had entered into an agreement whereby she reserved the right to reacquire custody by filing a petition with the probate court. This was not sufficient to constitute abandonment since there was no intent to entirely sever the parent-child relationship. Uniroyal Goodrich Tire Co., et al. v. Adams et al., 221 Ga. App. 705 (1996). In addition, the court found that the mother's failure to provide child support for over one year did not justify termination in this case because there was no request for child support and no court order mandating such action. Id., at 706. 4. Parental Misconduct or Inability 1. Parental misconduct or inability is a catchall category under which most petitions to terminate parental rights are filed. To approve such a petition the court will need to find that: a. the child is deprived under the definition given in the Juvenile Code (as explained in a previous chapter); b. the lack of proper parental care or control by the parent in question is the cause of the child's deprivation; c. the cause of the child's deprivation is likely to continue or will not likely be remedied; and Guardian Ad Litem Court Procedures Reference Manual II Section X / Page 10311 d. the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. O.C.G.A. 15-11-81(b)(4)(A)(l-iv). The Juvenile Court is required to make specific [mdings of fact as to each of the statutory elements prior to approving a petition to terminate parental rights. Failure to specifically find that the deprivation experienced was likely to cause the child serious "'physical, mental, moral or emotional harm" constitutes grounds for reversal on appeal. Caldwell v. Boone et al.. 166 Ga. App. 250 (1983). In ruling on the question of deprivation, the juvenile court is allowed to take judicial notice of a previously unappealed ruling finding the child to be deprived if such an order is still in effect. In the Interest of J.R., a child., 202 Ga. App. 418 (1992). The records of previous hearings concerning the child who is the subject of the petition are admissible in any subsequent deprivation or termination proceedings in regards to that child. O.C.G.A. 15-11-88. This last type of termination petition is by far the most common. The key to this standard is whether the child lacked proper parental care and control. The Juvenile Code states that the court may consider any and all of the following factors in determining whether the parent has exhibited proper care and control over the child for purposes of a termination petition: 1. a medically verifiable deficiency in the parent's physical, mental, or emotional health that exists to such a degree and for such a length of time as to render the parent unable to provide properly for the physical, mental, emotional, or moral conditions and needs of the child; Guardian Ad Litem Court Procedures Reference Manual III Section X / Page 104 III 2. the excessive use or history of chronic unrehabilitated abuse of drugs or alcohol which renders the parent incapable of providing properly for the physical, moral, emotional or mental conditions and needs of the child; 3. the conviction of the parent of a felony and the parent's subsequent imprisonment which has a clearly negu.~~ve effect on the quality of the parent-child relationship; 4. the egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature; 5. the physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent in question; 6. the injury or death of a sibling of the child under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse. O.C.G.A. 15-11-81 (b)(4)(B)(I-vi). In addition, if the child has already been removed from the home prior to a petition to terminate parental rights, the court can consider whether the parent, without a justifiable cause, has failed significantly for a period of one year or longer prior to the filing of the termination petition: a. to communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; b. to provide for the care and support of the child as required by law or judicial decree; and c. to comply with a court ordered plan designed to reunite the child with the parent or parents. D.C.G.A. 15-1181 (b)(4)(C)(l-iii). Guardian Ad Litem Court Procedures Reference Manual II Section X / Page 105 II Courts generally consider a two-step analysis in deciding whether to terminate a parent's rights. First, the court determines whether there is clear and convincing evidence of parental misconduct or unfitness. Second, whether termination of parental rights is in the best interests of the child. In the Interest of B.J.H., 194 Ga, App. 282 (1990). If the court finds by clear and convincing evidence that these standards have been met and the petition to terminate parental rights is justified, there is no burden on the court to find by clear and convinr~ng evidence that a lesser alternative disposition, such a transferring temporary legal custody to DFCS, would be less appropriate for the child. In the Interest ofP.F.J.. 184 Ga. App. 47 (1985). In most cases of parental misconduct or unfitness, tile court must determine that the child is deprived, that lack of proper parental care and control is responsible for the child's condition and it is likely to continue in the future resulting in harm to the child. a.C.G.A. 15-1 1-81 (b)(4)(A)(I-iv). Past deprivation alone will not be considered sufficient to prove present deprivation but can be used as evidence as to whether such conditions are likely to continue into the future. In the interest of A.M.B. et al, children. 219 Ga. App. 133 (1995), In the Interest ofB.J., 220 Ga. App. 144 (1996). However, the fact that the termination statute uses the term "is deprived" instead of "will be" deprived does not mean that DFCS must wait for deprivation to occur before taking action. It is largely a question of the quality of the evidence. DFCS is authorized to take action to terminate parental rights when evidence shows that the conditions under which the child will be raised in the parents home strongly indicate that deprivation will occur in the future. In one case, a mother who was 14 years old, borderline retarded, and living with her elderly grandparents was found to be unable to assist in caring for the child. Roberts v. State of Georgiili 141 Ga. App. 268 (1977). It is not necessary for the state to provide a parents with an opportunity to rehabilitate themselves prior to filing a motion to terminate their parental rights. The state is authorized to proceed immediately with such a motion once the deprivation action has commenced. In the Interest ofB.R.S., a child., 198 Guardian Ad Litem Court Procedures Reference Manual Section X / Page 106 Ga. App. 561 (1991). Parental "misconduct or unfitness" authorizing a termination under the statute can be caused by either intentional or unintentional misconduct causing the abuse or neglect of a child or by what is tantamount to physical or mental incapacity to care for the child. A parent's failure to comply with requirements to attend mental health and parenting counseling can be considered in determining that the cause of the child's deprivation is likely to continue into the future. In the Interest of G.L.H., et aI., children., 209 Ga. App. 146 (1993). Evidence of the living and economic conditions of foster parents who wish to adopt a child is not evidence as to the fIre of whether termination would be in the "best interest" ofthe child by providing the court with potential alternative living arrangements. However, standing alone, the availability of an alternative living arrangement or a lack of wealth on the part of the natural parents is not enough to justify a termination of parental rights. In the Interest of J.M.G., a child. 214 Ga App. 738 (1994). The court has held that evidence of "foster care drift" alone is no reason to terminate parental rights, but the adoptability of a child and the child's need for a stable home and potential negative effects of long term foster care are factors in the determination of deprivation. In the Interest of J.C.l, a child., 207 Ga. App. 599 (1993); In re G.M.N. and D.M.N., 183 Ga. App. 458 (1987). A common situation in which a termination is sought is when a parent is imprisoned after a conviction of a felony and this has a "clearly negative effect on the quality of the parent-child relationship." a.C.G.A. 15-11-81(b)(4)(B)(iii). The Juvenile Code specifIcally allows the court to consider this as evidence of a lack of proper "parental care or control" in determining if the child is deprived and whether the cause of that deprivation is likely to continue causing harm to fIe child. a.C.G.A. 15-11-84(b)(4)(B)(iii). Imprisonment alone does not automatically result in a termination of that parent's fights to the care and control ofhislher child. In the Interest ofR.L.H., a child. I, 188 Ga. App. 596 (1988). In that case the Court of Appeals affIrmed a tennination when the father did not Guardian Ad Litem Court Procedures Reference Manual Section X I Page 107. attempt to contact DFCS or his children when he was released from prison for six weeks, refrain from criminal activity as required by the case plan, and had no present prospects for employment, a steady income, or a stable home. Id. The Court ofAppeals has also held that a "clearly negative effect on the parent child relationship" can be shown by direct or circumstantial evidence. In the Interest ofL.F., a child., 203 Ga. App.522 (1992). In that case the negative effect was shown by the father's repeated incarceration of criminal offenses and parole violations. The court held this to be an additional factor to determine if the child is presently deprived and will likely continue to be deprived in the future. In addition, the murder of one parent by another does not automatically result in the termination of the surviving parent's rights. In the Interest of J.M.R, et aI, children, 218 Ga. App. 490 (1995). If malice is shown by the murder of one's spouse, this is sufficient to imply moral unfitness authorizing termination since this is likely to continue resulting in harm to the child. Heath v. McGuire, 167 Ga. App. 489 (1983). In another case, the Court of Appeals reversed a decision to terminate the parental rights of a man convicted of the voluntary manslaughter of his wife. The court noted that no malice is required in a manslaughter conviction and the statute's requirement of mitigating circumstances surrounding the homicide. The father was about to be released on parole at the time of the petition and had a home and job waiting for him. There was no other evidence of parental misconduct or failure to provide for his children and he had attempted to maintain contact with the children throughout his incarceration. In the Interest ofH.L.T., 164 Ga. App. 517 (1982). However, in the presence of other factors which indicate parental misconduct or inability to care for the child, a decision to terminate the paternal rights of a father convicted of the voluntary manslaughter of his wife was upheld. Brown v. Dept. Of Human Resources, 157 Ga. App. 106 (1981 ). Guardian Ad Litem Court Procedures Reference Manual II Section X / Page 108 II The court is also authorized to consider a deficiency in the parent's physical, mental, or emotional health that renders the parent unable to provide properly for the needs of the child in determining if the child lacks proper parental care or control. a.C.G.A. 15-11-81 (b)(4)(B)(I). It should be remembered that a fmding of present deprivation likely to be continued in the future causing harm to the child is based upon a fmding of a lack of "proper parental care and control." The fact that a mother is living with the child's grandparents who provide the mother with support does preclude a finding of deprivation which is likely to continue into the future. The Court of Appeals affirmed a termination in a case where the mother was unable to retain more than the simplest parenting skills and needed constant supervision from her parents. The test is whether the parent, standing alone, is ultimately capable of mastering proper parental skills. In re S.R.J., a child., 176 Ga. App. 685 (1985). Another case involving the mental inability to properly care for a child involved a mother who was released from parenting classes because she could not meet her own needs let alone those of her child. In addition, she only attended 15 Alcoholic Anonymous meetings in a two year period, met with two psychiatrists but failed to show up for follow up appointments, failed to pay child support, find steady employment, or refit her house to make it fit for a child to live in. In the Interest of A.S.M., a child., 214 Ga. App. 668 (1994). The Court of Appeals has come to similar conclusions in situations where the mother was mentally ill and mildly retarded and thereby incapable of caring for the child without assistance, as well as situations when a parent would require twenty four hour supervision to avoid injuring the child. See Griffm v. Dept of Human Resources 159 Ga App. 649 (1981); and Maynard v. Berrien County DFCS, 162 Ga App. 618 (1982). Termination ofa father's parental rights was also justified when he failed to protect his child from her abusive mother even though he knew that she was prone to violence and had harmed the child in the past. The father was mentally retarded and his lack of care was likely to continue and not be Guardian Ad Litem Court Procedures Reference Manual II Section X / Page 109 II reamed. The Georgia Supreme Court has rejected an equal protection argument by parents who had their parental rights terminated for mental incapacity to care for their children. The welfare of the child was the compelling government interest which justified the removal of the children from their home and the infringement upon their fundamental right to care for and raise their child. In the Interest of J.C.. et al.. 242 Ga. 737 (1978). Another common situation listed under the statute as evidence of a lack of proper parental care and control is the failure of a parent for over one year to comply with a case plan designed to reunite a family. a.C.G.A. 15-1181 (b)(4)(C)(iii). This one year period appears to include the time period in which the parent and DFCS have entered into an agreement prior to the order having been filed by the Juvenile Court Judge. The Court of Appeals has held that a trial judge did not err in considering noncompliance with the plan even though not one year had passed since the plan was included in a supplemental dispositional order, since the plan was in effect by agreement of the parties for over a year and the purpose of the statute was served. The Court did note that this was not the dispositive factor in the termination. In the Interest ofC.D.P., a child., 211 Ca. App. 42 (1993). Be careful not to confuse this ground for the termination of parental rights with the failure to provide court ordered child support for period of one year or longer. When the child in already in DFCS custody, the court should also consider whether the parent has failed without justifiable cause for a period of one year or more to communicate with the child, provide for the care and support of the child, and to comply with a court ordered plan designed to reunite the family. a.C.G.A. 15-11-81(b)(4)(C)(I-iii). The Court of Appeals has upheld an order to terminate parental rights when the trial court made specific findings as to the first two factors, but not the third. The parent had not failed to comply with a reunification plan because one was not entered into by the parent. The court found that factor irrelevant to the case and held that while the first two factors alone would not be Guardian Ad Litem Court Procedures Reference Manual Section X / Page 110 II grounds for termination in and of themselves, in conjunction with other issues, they could provide a justification for the termination of parental rights. In the Interest of A.a.S., II., 189 Ga. App. 860 (1989). D. NOTICE OF PROCEEDINGS AND SUMMONS The process of terminating a parent's rights begins with a petition similar to the one filed in a deprivation action. ance again this petition must set forth the facts alleged in ordinary and concise language and relate them to the terms of the statute. a.C.G.A. 15-11-82(c). When the petition is filed, a summons notifying all relevant parties of the termination hearing should be sent to the child's parents, guardian, lawful custodian, current physical custodian, and law guardianJCASA. See a.C.G.A. 15-11-83(a). A copy of the termination petition will be sent together with the summons so that all parties will be adequately prepared for the hearing. a.C.G.A. 15-11-83(b). The summons will be served upon all parties at least thirty (30) days prior to the date of the termination hearing. a.C.G.A. 1511-83(c). Many of the difficulties and much confusion surrounding preparing for a termination hearing involve notification to the fathers of the children born out of wedlock. The 1997 General Assembly has made several changes in this area. The procedures discussed below become effective on January 1, 1998. When the petition seeks to terminate the parental rights of a biological father who is not the legal father of the child, a certificate must be included from the putative father registry identifying any registrant acknowledging paternity of the child or the possibility of paternity of a child during the two years prior to the child's birth. a.c.G.A. 15-11-82(d). The General Assembly amended this statute in 1997, defining a legal father as a male who: 1. has legally adopted a child; 2. was married to the biological mother of that child at the time the child was conceived or born unles3 his paternity was disproved in C:\. court hearing; Guardian Ad Litem Court Procedures Reference Manual III Section X / Page 111 II 3. married the legal mother of the child after the child was born and recognized the child as his own, unless paternity was disproved in a court hearing; 4. has been determined to be the father in a paternity hearing; 5. has legitimated the child. All of these constitute a legal father so long as he has not surrendered or had his parental rights previously terminated. D.C.G.A. 15-11-2( 10.1 )(A-E). If there is a biological father who is not the legal father of the child and he has not surrendered his parental rights, he must be notified of the termination proceedings in the following circumstances: 1. If his identity is known to the petitioner or the petitioner's attorney; 2. If he is a registrant on the putative father registry who has acknowledged paternity of the child; 3. Ifhe is a registrant on the putative father registry who has indicated possible paternity of the child during a period of two years immediately prior to the child's date of birth; or 4. If the court fmds from the evidence, including but not limited to an affidavit of the child's mother that the biological father who is not the legal father has performed any of the following acts: a. lived with the child; b. contributed to the child's support; c. made any attempt to legitimate the child; or d. provided support or medical care for the mother either during her pregnancy or during her hospitalization for the birth of the child. O.C.G.A. 15-11-83(e)(1-4). A biological father who is not the legal father of a child that is listed in one of the above categories must be notified of a proceeding to terminate his parental rights by one of the following methods: Guardian Ad Litem Court Procedures Reference Manual Section X / Page 112 II 1. registered or certified mail, return receipt requested, at his last known address, which notice shall be deemed received upon the date of delivery shown on the return receipt; 2. personal service; or 3. publication once a week for three weeks in the official organ of the county where the petition has been file~ and of the county of his last known address, which notice shall be deemed received upon the date of the last publication. If possible, the father should be notified by methods 1 and 2 prior to resorting to notice by publication. a.C.G.A. 15-11-83(f)(l-3). If there is a biological father who is not the legal father of the child and his address is not known either to the petitioner or the petitioner's attorney, then the court should request an affidavit from the mother as to whether the biological father has performed any of the following acts: 1. lived with the child; 2. contributed to the child's support; 3. made any attempt to legitimate the child; or 4. provided support or medical care for the mother either during her pregnancy or her hospitalization for the birth of the child. a.C.G.A. 15-11-82(g)(l-4). If the court finds from the evidence that such a father has not performed any of these acts and the petitioner provides a certificate from the putative father registry that there is no listing for such an individual, then it shall be "rebuttably presumed" that the biological father who is not the legal father of the child is not entitled to notice of the proceedings to terminate his parental rights. Unless evidence exists to rebut this presumption, the court shall enter an order terminating this father's parental rights to the child. a.c.G.A. 15-l1-82(g). This section of the statute has undergone radical changes in the 1997 General Guardian Ad Litem Court Procedures Reference Manual II Section X / Page 113 II Assembly. The legislature has deleted the section of the statute requiring that if the father has taken any ofthe four above listed actions, the court had to determine if this was enough to establish a "familial bond" with the child in order to determine if notice of the proceedings was necessary. Now, it appears that if the biological father who is not the legal father of the child has performed any of those acts then he is at the very least automatically entitled to notice by publication even if his location or last known address are unknown. O.C.G.A. 15-11-83(e) and (g). If notice of a proceeding to terminate parental rights must be provided to a biological father who is not the legal father, such a father must be advised that he will lose all rights to the child and will not be entitled to object to the termination unless within (30) days of receipt of his notice he files: 1. a petition to legitimate the child; and 2. notice of the filing of the petition with the court in which the action is pending. O.C.G.A. 15-11-83(h). A biological father who is not the legal father of a child will lose all rights to such a child and the court must enter an order terminating those rights if within thirty days from the receipt of his notice he: a. does not file a legitimation petition and gives notice as required in subsection (h); b. files a legitimation petition which is subsequently dismissed for failure to prosecute; or c. files a legitimation petition and the action is subsequently concluded without a court order declaring that he is the legal father of the child. O.C.G.A. 15-11-83(1). E. RIGHT TO COUNSEL In a hearing on the termination of parental rights the juvenile court is required to appoint a separate attorney to act as counsel for the child and may Guardian Ad Litem Court Procedures Reference Manual II Section X / Page 11411 choose to appoint a guardian ad litem to represent the best interests ofthe child. The attorney representing the child and the guardian ad litem may be and often are the same person. D.C.G.A. 15-11-85(a), URJC, 11.8. Be aware however, that in these cases, counsel for the child is required, and a law guardian may both roles (GAL and attorney for the child) only in the absence of any present of foreseeable conflict, the wishes ofthe client should comport fully with your recommendation as to what is in the child's best interest. The issue may be somewhat legally theoretical regarding infants or non-verbal children, they would obviously lack the capacity to communicate their desires to their attorney; given this lack of capacity, it has been suggested that you may ethically serve as the "attorney for the child's interests," thus satisfYing the requirements for representation of the child. Rodatus, Hon. Robert V., Legal, Ethical and Professional Concerns When Representing Children in Abuse Cases in Juvenile Court (ICLE of GA, Juvenile Law Program Materials, 3/29/96) at 16008 through 16-012. But see ABA Standards, supra at B-3. The failure of a trial court to appoint an attorney to represent the interests of a child in a termination hearings constitutes grounds for a vacation of the judgment and a remand to the juvenile court for a rehearing. In re J.D.H., 188 Ga. App. 466 (1988). In addition, indigent parents are also guaranteed appointed counsel in proceedings to terminate parental rights. D.C.G.A. 15-11 -85(b). The Georgia Supreme Court has held that a man claiming to be the putative father to a child born to a married woman is entitled to appointed counsel in a proceeding to terminate parental rights. The putative father of a child born out of wedlock is clearly a party to a termination of parental rights. His failure to perform any parental duties previously does not affect his right to appointed counsel. Wilkins v. Georgia Dept of Human Resources, 255 Ga. 230 (1985). The Court of Appeals has held that a guardian ad litem who represented a child in a deprivation action and subsequently filed a motion to terminate parental rights on behalf of the child may not represent that child in the future termination Guardian Ad Litem Court Procedures Reference Manual Section X / Page 115 III hearing. The purpose of the guardian is to protect the interests ofthe child in all matters relating to the litigation. Although the guardian here has no personal stake in the outcome of this litigation, ifhe/she advocates from the outset for the termination motion, the child is denied separate legal counsel. The child is to have independent legal representation separate from any other interest in the proceeding. In re J.S.C., 182 Ga. App. 721 (1987). F. PLACEMENT OF THE CHILD FOLLOWING A TERMINATION ORDER If after a termination order is entered, the child has no remaining legal parent, the court shall attempt to fIrst place the child with hislher extended family or with a person related to the child by blood or marriage. "An exhaustive and thorough" search for such a family member will have begun at the beginning of any deprivation case by the court and the Department of Human Resources. A located relative will be required to abide by the terms and conditions of the order of the court. D.C.G.A. 15-11-90(a)(l). If the court in cooperation with the department cannot fInd a suitable placement for the child within hislher own family, the court may make anyone of the following dispositions: 1. commit the child to the custody of the Department of Human Resources or to a licensed child-placing agency willing to accept custody for the purpose of placing the child for adoption or, 2. in the absence of an adoption, in a foster home, or take other suitable measures for the care and welfare of the child. D.C.G.A. 15-11-90(a)(2). In awarding custody after terminating parental rights, the Juvenile Court may not place a child directly with a potential adoptive family. The court should fIrst attempt to place the child with DFCS, then with a licenced child placement agency, then in a foster home or some other "undesignated receiver." The agency or individual who receives the child is only a temporary guardian and will have the authority to consent to the future adoption of the child into another family. The grandparents of a child with no remaining legal parents may petition to adopt Guardian Ad Litem Court Procedures Reference Manual III Section X / Page 116 II the child through the nonnal adoption procedures but they have no right to intervene in a tennination hearing seeking custody of the child. Dept. of Human Resources v. Ledbetter, 153 Ga. App.416 (l980).The court will send a copy of every fmal termination order to the DPCS Adoption Unit within 15 days of the filing of such an order. a.C.G.A. 15-11-90(b). Ifno petition to adopt the child is filed, the court will at least once every year review the circumstances of the child to detennine what efforts have been made to assure that the child will be adopted. a.c.G.A. 15-11-90(d). During this time, the custodian of the child has the authority to consent to the adoption of the child, his enlistment in the armed forces as well as surgical and medical treatment for the child. a.C.G.A. 15-11-90(c). In a 1995 amendment to the Georgia Juvenile Code. the General Assembly required that all termination hearings should be conducted in an expedited manner and an order of disposition in a tennination case should be filed no later than one year after the filing ofthe petition unless just cause is shown for delay. a.C.G.A. 15-11-93. Guardian Ad Litem Court Procedures Reference Manual ill Section X / Page 117 II ",;,::t [I.I: e juvenile code provides that a petition to m~dify or vacate a previous . . .. ........ order of the court may be filed In partIcular cIrcumstances after the disposition has been handed down. 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. O.C.G.A. 15-11-42(a)(l3). A dispositional order in a deprivation case may also be "changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child." O.e.G.A. 15-11-42(b). Such a petition may be brought by any party to the proceeding, the probation officer, or any other person having supervision or legal custody of the child. The petition should set forth in clear and concise language the grounds on which the petition is based. O.C.G.A. 15-11-42(c). After filing of the petition, the court must fix a time for the hearing and cause notice to be served as provided by O.C.G.A. 15-11-27. The hearing Guardian Ad Litem Court Procedures Reference Manual Section XI / Page 118 II may be of an informal nature and the court shall grant or deny relief as the evidence warrants. a.C.G.A. 15-11-42(d). The situations provided in the code for a petition to modify or vacate an order of the court are very specific. There is no authority provided by the Juvenile Code for a general Motion for Reconsideration based upon the evidence presented at the previous hearings. The Court of Appeals has ruled that the juvenile court has an inherent power to modify its own judgments within the statutory time frame for a notice of appeal to be filed. In re P.S.C., 143 Ga. App. 887 (1977). Such notice must be filed within 30 days after the entry of final judgment. The Court of Appeals has also held that a trial court can grant a rehearing on a decision to terminate parental rights. Since the code provides that the court can modify, or vacate its previous ruling in this area, the court may take the less drastic step of ordering a rehearing to see if the original decision was correct. No hearing on a motion to rehear a case needed to be held before granting the relief requested. In re P.S.C., et al. 143 Ga. App. 887 (1977). The Court has also held that the petition will be looked at substantively to determine if it meets the criteria for modification or revocation under a.c.G.A. 15-11-42. The fact that the appellant mislabeled the petition as a motion for a new trial and the court considered it a request for reconsideration is immaterial. The attorney requesting a new trial failed to make such a petition within the 30 day period provided. However, since the petition met the requirements for modification or revocation provided for in the statute, the trial court had authority to review the request regardless of the label. Historically, a motion for a new trial could not be used to attack an order of the juvenile court. However, the Supreme Court recently held that a juvenile court was authorized to grant new trials. In re T.A.W., a child., 265 Ga. 106 (1995). The state constitution provides that "Each superior court, state court, and other courts of record may grant new trials on legal grounds." Ga. Const. Art. VI, Guardian Ad Litem Court Procedures Reference Manual .. Section XI/Page 119 II I, ~ IV. The Juvenile Courts of Georgia are "courts of record" under a.C.G.A. 15-11-65(b) and therefore have the right to grant new trials as do other courts provided for in the constitution. Id. at 107. The court here overturned several previous decisions of the Georgia Court of Appeals. An appeal from a decision of the Juvenile Court is provided for in a.e.G.A. 15-11-64. The code directs that appeals can be taken from the juvenile court to the Court of Appeals or the Supreme Court in the same manner as appeals from the Superior Court. An appeal from the juvenile court cannot be filed in the Superior Court Circuit in which the juvenile court is located. Such a procedure is not provided for in the statute. Rossi v. Prince, 237 Ga. 651 (1976). However, an appeal from a decision of an Associate Juvenile Court judge made under a.e.G.A. 15-11-10 (d) will be by review of the Juvenile Court Judge of that county. URJC, 19.2. Such a review by the Juvenile Court judge should be a de novo review of the evidence presented to the Associate juvenile Court judge (formerly called a "referee"). A simple review of the associate judge's fmdings and recommendations is insufficient, however, a full de novo evidentiary hearing is not necessary. In the Interest ofM.E.T. Jr., a child., 197 Ga. App. 255 (1990). The judgment or order shall not be superseded and shall stand until it is revised or modified by the reviewing court. A trial court order can only be superseded at the discretion of the juvenile court judge. a.c.G.A. 15-11-64. This is very different from an order of the Superior Court which is automatically superseded or suspended upon the filing of a timely appeal. Walker v. Walker, 239 Ga. 175 (1977). Only parties to the original proceeding have standing to appeal the judgment of the juvenile court. Appeals asserting a federal or state constitutional challenge must be taken to the Georgia Supreme Court and all other appeals will be heard by the Georgia Court of Appeals. Ga. Const. Art. VI, VI, I] 11 and Art. VI, V, ~11I. This Guardian Ad Litem Court Procedures Reference Manual Section XI / Page 120 II means that in effect most appeals from the Juvenile Court will be heard at the Court of Appeals. In the Interest of J.E.P., 252 Ga. 520 (1984). An indigent parent whose parental rights have been terminated has a right to a pauper transcript of the previous proceedings for use in appealing that decision. Nix v. Department of Human Resources, 236 Ga. 794 (1976). An adjudicatory order alone is not a fInal appealable judgment from which an appeal can be taken. Only after a dispositional hearing is held and an appeal issued can an order transferring temporary legal custody of a child be appealed. M.K.H. v. State ofGeorgi~ 132 Ga. App. 143 (1974). No application is necessary prior to fIling an appeal of a deprivation order is required as opposed to an appeal of a custody order which is discretionary. In the Interest of A.L.L., et al., children., 211 Ga. App. 767 (1994). The Court of Appeals later held that a fmal order in a deprivation case is not a child custody or domestic relations case which requires an application for a discretionary appeal under a.C.G.A. 5-635(a)(2). In the Interest of J.C.H., 224 Ga. App.708 (1992). The standard of review to be exercised by the appellate court in reviewing a decision to terminate parental rights is "whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost." In the Interest of J.M.K., et aI., 189 Ga. App. 140 (1988). In reviewing a decision fInding a child to be deprived, the Court of Appeals has used a similar standard of review. Sanchez v. Walker Cry. DFCS, 138 Ga. App. 49 (1976), rec'd. on other grounds 237 Ga. 406 (1979). "When the trial judge, sitting as the trier of facts, hears the evidence, his fIndings based on conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it." Id, at 56. The appellate court is to defer to the juvenile court's decision unless this standard of review has not been met. In re G.T.S., 207 Ga. App. 187 (1993). "The juvenile court is vested with a broad Guardian Ad Litem Court Procedures Reference Manual Section XI / Page 121 II discretion which will not be controlled in the absence of manifest abuse. The trial court had the opportunity to question and observe the parties and possesses a wide discretion in determining the issues before him and if the judgment is supported by any evidence and is not clearly erroneous, an appellate court is not authorized to set is aside." In re H.B. and K.B., 174 Ga.App. 435 (1985). Guardian Ad Litem Court Procedures Reference Manual II Section XI/Page 122 III Il'i'.':'ijn guardian additional responsibility ofa law does NOT . . necessarily address itself to permanency planning of abused or neglected children; however, as an attorney representing the best interests of children, a law guardian may be appointed on a parental notification judicial bypass hearing for a pregnant minor female. Under O.C.G.A. 15-11-110 et seq., any minor female in Georgia wishing to terminate a pregnancy, must provide written documentation to the medical personnel, from her parent or guardian, that the parent/guardian is aware the child is seeking an abortion. The law does not require parental consent, only notification. There are, however, cases where pregnant minors may not wish to tell their parent or guardian, and these minors may seek a judicial bypass of the parental notification requirement. When the minor (or her attorney) files the complaint for the bypass hearing, a law guardian will be appointed to represent the minor's best interest and make a recommendation to the court. There are two grounds that may be plead in the minor's complaint: that notification to the parent or guardian of the minor's desire to terminate her pregnancy would not be in the child's best interest; or that the child is mature enough and well enough informed about the abortion procedures and alternatives Guarclian Ad Litem Court Procedures Reference Manual Section XII/Page 123 II to make the decision in consult with her physician and without notification to her parent or guardian. Regardless of personal stance on the termination of unwanted pregnancies the law guardian electing to represent the interest of the child has an ethical duty to represent those interests in court. This will, of course, necessitate an investigation into the reasons the child has petitioned the court for the bypass. In some cases, the minor appears at the juvenile court accompanied by an attorney, possibly through a legal network created by Planned Parenthood, or other community organizations. This attorney serves as the child's legal counsel. In these situations, the law guardian will serve solely as the child's "attorney guardian ad litem," and represent her interests in court. If a minor files a motion for a judicial bypass pro se, the law guardian will consult with, interview and present the case in court on behalf of the child as the child's attorney AND guardian ad litem, both roles. If the law guardian does perceive or anticipate any conflict in representing the child AND her interests, the attorney will move the court to appoint an outside law guardian, and will remain as the child's counsel. Guardian Ad Litem Court Procedures Reference Manual II Section XII / Page 124 .. Table of Cases Bartlett v. Bartlett, 99 Ga. App. 770 (1959) 10 Bendiburg v. Dempsey, 909 F.2d 463 (11th Cir. 1990) 17 Brown v. Dept. Of Human Resources, 157 Ga. App. 106 (1981) 108 ~.r~~ ~: ~~~t~~. ~~~~ ~~~~~~~ ~~:.~i.l~ .~~. ~~l~~~ .S.e~~~e.s: ~~~.~~'. ~~~: ?.o.8. ~1.~~5{3 Brown v. Fulton County Dep't of Family and Children Services, 136 Ga. App. 308 (1975) .. 100 Brown v. Scott, 266 Ga. 44 (1995) 24 Cain v. Department of Human Resources, 166 Ga. App. 801 (1983) 99 Caldwell v. Boone et al., 166 Ga. App. 250 (1983) 104 Carvalho v. Lewis 247, Ga. 94 (1981) 100 Chancey v. Dep't of Human Resources, 156 Ga. App. 338 (1980) 100 Dept. of Human Resources v. Ammons, 206 Ga. App. 805 (1992) 98 Dept. of Human Resources v. Ledbetter, 153 Ga. App.416 (1980) 117 Downs et al. v. Wortman et aI., 288 Ga. 315 (1971) 15 Drummond v. Fulton Cty. DFCS, 547 F.2d 835 (5th Cir, 1977) 69, 70 E.S. v State, 134 Ga. App. 724 (1975) 43 Elrod v. Department of Family and Children Services, 136 Ga. App. 251 (1975) 13 English v. Milby, 233 Ga. 7 (1974) 44 Florida Publishing Company v. Morgan, 253 Ga. 467 (1984) 50 Gentry v. State, 213 Ga. App. 24 (1994) 52 Griffm v. Dept of Human Resources, 159 Ga App. 649 (1981) 109 Heath v. McGuire, 167 Ga. App. 489 (1983). . 50, 108 Hunnicutt v. State, 194 Ga. App. 714 (1990) 53 In Re C.M., 179 Ga. App. 508 (1986) 47 In Re M.M.A., 166 Ga. App. 620 (1983) 47 In Re R.L.M., 171 Ga. App. 940 (1984) 70 In Re R.R.M.R. 169 Ga. App. 373 (1983) 70 In re D.R.C., 191 Ga. App. 278 (1989) 40 Guardian Ad Litem Court Procedures Reference Manual References / Page 126 In re G.M.N. and D.M.N., 183 Ga. App. 458 (1987) 107 In re G.T.S., 207 Ga. App. 187 (1993) 121 In re H.B. and K.B., 174 Ga.App. 435 (1985) 122 In re H.B. and K.B.,174 Ga. App. 435 (1985) 102 In re J.D.H., 188 Ga. App. 466 (1988) 115 In re J.a., 191 Ga. App. 520 (1989) 9 In re J.RT., a Child, 233 Ga. 204 (1974) 16 In re J.S.C., 182 Ga. App. 721 (1987) 116 In re J.S.c., Ga. App. 721 (1987) 31 In re K.L.S., 180 Ga. App. 688 (1986) 101 In re P.S.C., 143 Ga. App. 887 (1977) 119 In re P.S.C., et al..143 Ga. App. 887 (1977) 119 In re RL.M., 171 Ga. App. 940 (1984) 51 In re RL.Y, et aI., 181 Ga. App. 14 (1986) 101 In re RRM.R, 169 Ga. App. 373 (1983) 50 In re S.G.T., 175 Ga. App. 475 (1985) 102 In re S.RJ., a child., 176 Ga. App. 685 (1985) 109 In re T.A.W., a child., 265 Ga. 106 (1995) 119 In the Interest of A.L.L., 211 Ga. App. 767 (1994) 10 In the Interest of A.L.L., et al., children., 211 Ga. App. 767 (1994) 121 In the Interest of A.a.S., II., 189 Ga. App. 860 (1989). . 111 In the Interest of A.S. 185, Ga. App. 11 (1987). . 69 In the Interest of A.S.M., a child., 214 Ga. App. 668 (1994) 109 In the Interest ofB.H., 190 Ga. App.131 (1989) 13 In the Interest ofB.J., 220 Ga. App. 144 (1996) 106 In the Interest ofB.J.H., 194 Ga, App. 282 (1990) 106 In the Interest ofB.R.S., a child., 198 Ga. App. 561 (1991) 106 In the Interest of C.C., et al., Children, 193 Ga. App. 120 (1989). . 9 In the Interest ofC.D.P., a child., 211 Ca. App. 42 (1993) 110 Guardian Ad Litem Court Procedures Reference Manual References / Page 127 In the Interest of C.R., 160 Ga. App. 873 (1982) In the Interest ofD.R.C., a child., 198 Ga. App. 348 (1991) In the Interest ofD.S., 212 Ga. App. 203 (1994) In the Interest ofG.L.H., et al., children., 209 Ga. App. 146 (1993) In the Interest ofH.L.T., 164 Ga. App. 517 (1982) In the Interest ofH.T., a child, 198 Ga. App. 463 (1991) In the Interest of J.C I. et aI, 242 Ga. 747 (1978) In the Interest of J.C.. et aI., 242 Ga. 737 (1978) In the Interest of J.C.H., 224 Ga. App.708 (1992) In the Interest of J.C.J., a child., 207 Ga. App. 599 (1993) In the Interest of J.E.P., 252 Ga. 520 (1984) In the Interest of J.L.M. et aI., Children, 204 Ga. App. 46 (1992) . . . . .. . In the Interest of J.M.G., a child., 214 Ga App. 738 (1994) In the Interest of J.M.K., et aI., 189 Ga. App. 140 (1988) In the Interest of J.M.R, et at children, 218 Ga. App. 490 (1995) In the Interest of J.N.T., a child, 212 Ga. App.498 (1994) In the Interest of J.R., a child., 202 Ga. App. 418 (1992) In the Interest of J.T.S., et aI., 185 Ga. App. 772 (1988) In the Interest ofK.B., 188 Ga. App. 199 (1988) In the Interest ofL.F., a child., 203 Ga. App.522 (1992) In the Interest ofL.L.W., et aI., 141 Ga. App. 32 (1977). . In the Interest ofL.O.L. (DeKalb County Juvenile Court, April 19, 1984) In the Interest of M.A. et al., Children, 218 Ga. App. 433 (1995) In the Interest ofM.E.T. Jr., a child., 197 Ga. App. 255 (1990) In the Interest ofM.J.G. et aI, Children, 203 Ga. App. 452 (1992) In the Interest ofP.F.J., 184 Ga. App. 47 (1985) In the Interest of P.M. et aI.,children, 201 Ga App. 100 (1991) In the Interest ofR.L.H., a child. I, 188 Ga. App. 596 (1988) In the Interest ofT.M.H., et aI., children., 197 Ga. App. 416 (1990) 19 53 51 107 108 101 64 110 121 107 121 14 107 121 108 71 104 51 68 108 44,46,50 18 10 120 19 106 96 107 53 Guardian Ad Litem Court Procedures Reference Manual References / Page 128 In the Interest ofW.J.G., a child., 216 Ga. App. 168 (1995) 48 In the Interest ofW.W.W., 213 Ga. App. 732 (1994) 10 In the interest of A.M.B. et ai, children. 219 Ga. App. 133 (1995) 106 In the interest ofM.H.F. a child., 201 Ga App. 56 1991) 101 Irwin v. Dept of Human Resources, 159 Ga. App. 101 (1981). . 28 lG.B.. et ai. v. State of Georgia, 136 Ga. App. 75 (1975) 39 Jessie Mae Jefferson v. Griffin Spalding Cty. Hospital Authority, et aI., 247 Ga. 86 (1981) 17 Jones et ai. v. Dep't of Human Resources, 168 Ga. App. 915 (1983) 12 Jones v. Department of Human Resources, 155 Ga. App. 371, 1980 14 Kidd v. Brown, et aI., 136 Ga. 85 (1911) 15 Lewis v. Winzenreid, 263 Ga. 459 (1993) 14 Longshore v. St~t~, 239 Ga. 437 (1977) 39 M.K.H. v. State ofGeorgi~ 132 Ga. App. 143 (1974) 121 Maynard v. Berrien County DFCS, 162 Ga App. 618 (1982) 109 McBurrough v. Dept. of Human Resources, 150 Ga. App. 130 (1978). . 30 Moss v. Moss, 135 Ga. App. 401 (1975) 12,51 Nix v. Department of Human Resources, 236 Ga. 794 (1976) 121 Paxton v. State, 159 Ga. App. 175 (1981) 23 Prince v. Massachusetts, 321 U.S. 158 (1944) 18 R.C.N. v. State of Ga., 141 Ga.App. 490,491 (1977) 101 R.C.N. v. State of Georgia, 141 Ga. App. 490 (1977) 12 Ray v. Department of Human Resources, 155 Ga. App. 81 (1980) 47 Roberts v. State of Georgia , 141 Ga. App. 268, 1977 14 Roberts v. State of Georgia, 141 Ga. App. 268 (1977) 106 Robinson v. State, 257 Ga. 725 (1988) 53 Rodgers et ai. V. Department of Human Resources, 157 Ga. App. 235 (1981) 70 Rossi v. Prince, 237 Ga. 651 (1976) 120 Sanchez v. Walker County Department of Family and Children Services, 237 Ga. 406 (1976) ............................................................................ 28 Sanchez v. Walker County Dep't of Family and Children Services., 237 Ga. 406 (1976) ..... 42 Guardian Ad Litem Court Procedures Reference Manual References / Page 129 Sanchez v. Walker County Dep't. ofF. and C. Serv., 138 Ga. App. 49 (1976) 22 Sanchez v. Walker Cry. DFCS, 138 Ga. App. 49 (1976) 121 Sanchez v. Walker Cty. Dep't ofF. and C. Serv., 237 Ga. 66 (1976) 29 Skipper v. Smith, 239 Ga. 854 (1977) 69 Spence v. Levi, 133 Ga. App. 581 (1974) 51,98 T.L.T. V. State, 133 Ga. App. 895 (1975) 50 Thrasher v. Glynn County Dept of Family and Children Services, 162 Ga. App. 702 (1982) .. 16 Thrasher v. Glynn County DFCS, 162 Ga. App. 702 (1982) 102 Uniroyal Goodrich Tire Co., et ai. v. Adams et al., 221 Ga. App. 705 (1996) 103 Uniroyal Goodrich Tire Co.,et al. v. Adams el aI., 221 Ga. App. 706 (1996) 102 Vermilyea v. Dep't. afHuman Resources, 155 Ga. App. 746 (1980) 12 Walker v. Walker, 239 Ga. 175 (1977) 120 Watkinsv. Watkins, 266 Ga. 269(1996) 10 Wilkins v. Georgia Dept of Human Resources, 255 Ga. 230 (1985) 115 Williams v. Dept. of Human Resources, 150 Ga. App.610 (1979). . 9 Official Code of Georgia Annotated a.C.G.A. 15-11-30(b) 30 a.C.G.A 15-11-41(m) 71 a.C.G.A. 15-11-82(g)(1-4) 113 a.e.G.A. A. 15-11-41(d) 81 a.c.G.A. 15 - 11-32(a) 64 a.c.G.A. 15- II -33(d) 64 a.C.G.A. 15-11 -85(b) 115 a.C.G.A. 15-11-1 18 a.C.G.A. 15-11-1 (1) 11 a.C.G.A. 15-11-1(b)(2) 102 a.C.G.A. 15-11-10 (d) 120 a.C.G.A. 15-11-110 et seq. . 123 Guardian Ad Litem Court Procedures Reference Manual References / Page 130 a.C.G.A. 15-11-15 a.C.G.A. 15-11-18(1-4) a.C.G.A. 15-11-19(a)(2) a.C.G.A. 15-11-19(a)(3) a.C.G.A. 15-11-2 (8) a.C.G.A. 15-11-2 (8)(A-D) a.c.G.A. 15-11-2( 10.1 )(A-E) a.C.G.A. 15-11-2(10.1) a.C.G.A. 15-11-2(10) a.C.G.A. 15-11-2(2)(C) a.C.G.A. 15-11-20(a)(1 and 2) a.C.G.A. 15-11-20(f) a.C.G.A. 15-11-21(a) a.C.G.A. 15-11-21(b) a.C.G.A. 15-11-21(c)(3) a.C.G.A. 15-11-21(c)(4) a.C.G.A. 15-11-21(d) a.C.G.A. 15-11-21(e) a.C.G.A. 15-11-23 a.C.G.A. 15-11-24 a.e.G.A. 15-11-25(1-4) a.C.G.A. 15-11-26(a) a.C.G.A. 15-11-26(b) a.e.G.A. 15-11-26(c) a.C.G.A. 15-11-26(d) . . . . . . . . .. . a.c.G.A. 15-11-26(d) a.C.G.A. 15-11-27 a.e.G.A. 15-11-27(a) a.c.G.A. 15-11-27(b) Guardian Ad Litem Court Procedures Reference Manual 98 24, 28 23 23 17 11 112 25 23 8 25 25 23,24 24,37 25,27 29,30 29 37 39 39 40 37, 85 47,48 21 21 37 118 48 49 References / Page 131 a.C.G.A. 15-11-27(c) a.C.G.A. 15-11-28(a) a.C.G.A. 15-11-28(b) a.C.G.A. 15-11-28(c.l)(5) a.C.G.A. 15-11-28(c) a.C.G.A. 15-11-28(c) a.C.G.A. 15-11-28(d) a.C.G.A. 15-11-29(a) a.C.G.A. 15-11-29(c) a.C.G.A. 15-11-30(a) a.C.G.A. 15-11-30(b) a.C.G.A. 15-11-31(a) a.C.G.A. 15-11-33(a) a.c.G.A. 15-11-33(b) a.C.G.A. 15-11-33(e) a.C.G.A. 15-11-34 a.c.G.A. 15-11-34 (a)(2) a.C.G.A. 15-11-34 (c) a.C.G.A. 15-11-34 a.C.G.A. 15-11-34(a) a.C.G.A. 15-11-34(a)(2) a.C.G.A. 15-11-36.1 a.C.G.A. 15-11-36-1 a.C.G.A. 15-11-4 a.C.G.A. 15-11-40 a.e.G.A. 15-11-40(a) a.C.G.A. 15-11-40(c) a.C.G.A. 15-11-41 a.c.G.A. 15-11-41 (f) Guardian Ad Litem Court Procedures Reference Manual 48 49 51 49 49 50 39 49 49 30 29,30 50 53 53 53 91 91 92 62 67 69 66 66 1 67 67 67 60 60, 83 References / Page 132 a.C.G.A. 15-11-41 G) a.C.G.A. 15-11-41 G) a.C.G.A. 15-11-41 (1)(2) a.C.G.A. 15-11-41 (1)(3) a.C.G.A. 15-11-41(b) a.C.G.A. 15-11-41(c) a.C.G.A. 15-11-41(c) a.c.G.A. 15-11-41(g) a.C.G.A. 15-11-41(h) a.C.G.A. 15-11-41(1) a.C.G.A. 15-11-41(1) a.C.G.A. 15-11-41(1)(1-3) a.C.G.A. 15-11-41(k) a.C.G.A. 15-11-41(1) a.C.G.A. 15-11-41(1) a.C.G.A. 15-11-41(1)(1) a.C.G.A. 15-11-41(0) a.C.G.A. 15-11-42 a.e.G.A. 15-11-42(a)(l-3) a.C.G.A. 15-11-42(b) a.C.G.A. 15-11-42(b) a.c.G.A. 15-11-42(c). . a.C.G.A. 15-11-42(d) a.C.G.A. 15-11-43 a.C.G.A. 15-11-44(b) a.C.G.A. 15-11-44(c) a.C.G.A. 15-11-45(a) a.C.G.A. 15-11-45(c). . a.C.G.A. 15-11-46 Guardian Ad Litem Court Procedures Reference Manual 71 86, 88 95 95 67 79 81 83 84 57 84 84 89 94 95 95 71 119 118 118 97 118 119 68 77 77 77 77 77 References / Page 133 a.C.G.A. 15-11-46 (a) a.C.G.A. 15-11-47 a.C.G.A. 15-11-5(a)(l)(A, B, D) a.C.G.A. 15-11-5(a)(2)(B) a.C.G.A. 15-11-5(a)(2)(C) a.C.G.A. 15-11-5(c) a.C.G.A. 15-11-5(e) a.C.G.A. 15-11-51(a)(4) a.C.G.A. 15-11-55 a.C.G.A. 15-11-56 (b) a.C.G.A. 15-11-57(a)(1-9) a.C.G.A. 15-11-57(c) a.C.G.A. 15-11-59(a)(1)(c) a.C.G.A. 15-11-62 a.C.G.A. 15-11-64 a.C.G.A. 15-11-65(b) a.C.G.A. 15-11-80 a.C.G.A. 15-11-81 (b)(4)(B)(I) a.C.G.A. 15-11-81 (b)(4)(B)(l-vi) a.C.G.A. 15-11-81(a) a.c.G.A. 15-11-81(b)(l) a.C.G.A. 15-11-81(b)(l-4) a.e.G.A. 15-11-81(b)(2) a.c.G.A. 15-11-81(b)(4)(A)(I-iv) a.C.G.A. 15-11-81(b)(4)(A)(l-iv) a.C.G.A. 15-11-81(b)(4)(B)(iii) a.C.G.A. 15-11-81(b)(4)(C)(I-iii) a.c.G.A. 15-11-81(b)(4)(C)(iii) a.c.G.A. 15-11-81(b)(4)(C)(l-iii) Guardian Ad Litem Court Procedures Reference Manual 66 77 8 8 9 9 9 102 11,30,31,84 66 54 54 8 21 120 120 98 109 105 100 101 99 102 106 104 107 110 110 105 References / Page 134 a.C.G.A. 15-11-82(b) a.C.G.A. 15-11-82(c) a.C.G.A. 15-11-82(d) a.C.G.A. 15-11-82(g) a.C.G.A. 15-11-83 a.C.G.A. 15-11-83(a) a.C.G.A. 15-11-83(b) a.c.G.A. 15-11-83(c). . a.C.G.A. 15-11-83(e) and (g) a.C.G.A. 15-11-83(e)(1-4) a.C.G.A. 15-11-83(f)(1-3) a.C.G.A. 15-11-83(h) a.C.G.A. 15-11-83(1) a.c.G.A. 15-11-84(b)(4)(B)(iii) a.C.G.A. 15-11-85(a) a.C.G.A. 15-11-88 a.C.G.A. 15-11-90(a)(2) a.c.G.A. 15-11-90(a)(l) a.c.G.A. 15-11-90(b) a.C.G.A. 15-11-90(c) a.c.G.A. 15-11-90(d) a.C.G.A. 15-11-92 a.C.G.A. 15-11-93 a.c.G.A. 19-7-5 (c)(I) a.c.G.A. 19-7-5 (d) and (e) a.c.G.A. 19-7-5(b)(3)(A) a.C.G.A. 19-7-5(b)(3)(B-D) a.C.G.A. 19-7-5(c)(I)(A-N) a.C.G.A. 19-7-5(f) Guardian Ad Litem Court Procedures Reference Manual 98 111 111 113 48 111 111 111 114 112 113 114 114 107 115 104 116 116 117 117 117 98 117 22 22 12 12 22 22 References / Page 135 a.C.G.A. 19-8-24(a)(1) a.e.G.A. 19-8-24(a)(2) a.C.G.A. 19-8-4 a.C.G.A. 19-8-5 a.C.G.A. 24-3-16 a.C.G.A. 24-9-5 a.C.G.A. 24-9-5(a) a.C.G.A. 24-9-5(b) a.C.G.A. 49-5-3(12) a.C.G.A. 49-5-3(13) a.C.G.A. 49-5-40(b) a.C.G.A. 49-5-41(a)(2) < a.C.G.A. 5-6-35(a)(2) a.C.G.A. 15-11-15(a) a.C.G.A. 15-11-15(b) a.C.G.A. 15-11-17(a)(4) a.C.G.A. 15-11-2(2)(B) a.C.G.A., 15-11-56. . a.c.G.A. 15-11-44(a) a.C.G.A. 15-11-62 URCJ,24.13(b) URJC 4.2 URJC, 11.3 URJC, 11.8 URJC,19.2 URJC,24.13(a) URJC,24.13(c) URJC,24.13(e) Uniform Rules of the Juvenile Court 15 15 15 15 52 53 53 53 68, 71 68 46 46 121 18 19 20 8 67 77 66 88 38, 39 38,43 115 120 88 88 88 Guardian Ad Litem Court Procedures Reference Manual References / Page 136 URJC, 24.13(f) 88 URJC, 24.6(b) 88 URJC, 24.7 87 URJC,4.1 102 URJC, 6.6. . 40 URJC,7.1 44 URJC,7.2 45 URJC,7.2(a) 45 URJC,7.2(b) 45 URJC,7.2(c) 45 URJC,7.3 45 URJC,7.4 45 URJC,7.6 45 URJC,8.1 27 URJC, 8.2 23 URJC, 8.6 27 Georgia Constitution Ga. Const. 1983, Art VI, II, eVI 19 Ga. Const. 1983, Art. VI, IV, eI 9 Ga. Const. Art. 1, 2, e3 23 Ga. Const. Art. VI, I, ~ IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Ga. Const. Art. VI, IX, eI 2 Ga. Const. Art. VI, VI, I] 11 and Art. VI, V, ~11I. 120 Guardian Ad Litem Court Procedures Reference Manual References / Page 137 Attorney General's Opinions 1976 Op. Att'y Gen. No. 76-131. 12 1983 Opinion of the Att'y Gen. U83-66 23 Resource Books American Bar Association, Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (Adopted February 5, 1996) 3 Child Advocacy at a Crossroads: The Development and Direction of Children's Law in America, NACC Children's Law Manual Series (1996 Edition) 7 Duquette, Advocating for the Child in Protection Proceedings, (1990), at 38 34 Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), 4.2, 4.8 8, 100 Georgia CASA Publications: Legal Proceedings in the Juvenile Court, at 5 32 Georgia CASA Publications: The Role of the CASA Volunteer in Court Proceedings, (1989). ............................................................................ 44 Georgia CASA Publications: "The Role ofa CASA Volunteer in Court Proceedings" 1997... 60 Goldstein, Solnit and Freud, In the Best Interests of the Child (1986) 4 Grimm, After Disposition: The Need for Advocacy and the Role of Child's Counsel, National Center for Youth Law, (1990) 85 Haralambie, Ann M., The Child's Attorney, supra at 37 5 Haralambie, The Child's Attorney, supra at pp. 183-184 13 Hardin and Shalleck, "Children Living Apart From Their Parents,"Legal Rights of Children, Horowitz and Davidson (eds.) (1984) at 371-373 63 Kipling, Louise McVay, Deprivation and Termination, Children in Court: A Systems Approach. (1989), p. 14,15 28,69 Lawyers For Children, ABA Center for Children and the Law, (1990), at 317 72, 84 Lawyers For Children, ABA Center for Children and the Law, (1990), at 313. . 63 Lawyers For Children, supra, at 21,22 32 Lawyers for Children ABA Center for Children and the Law (1990) 3..t 296-304 26 Making Reasonable Efforts: Steps for Keeping Families Together. 59 Guardian Ad Litem Court Procedures Reference Manual References / Page 137. Murphy, Matz, Cheever, Norwood, The Team Approach to Child Advocacy: D, July, 1993... 85 National Council of Juvenile and Family Court Judges 59 Perry and Teply, Interviewing, Counseling and In-Court Examination of Children: Practical Approaches for Attorneys, 18 Creighton L.Rev. 1369 (1985) 7 Peters, Jean Koh, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions at 2.3 (b), n.17 (Michie 1997). . 6 Rich, John, Interviewing Children and Adolescents (1986) 7 Rodatus, Hon. Robert V., Legal, Ethical and Professional Concerns When Representing Children in Abuse Cases in Juvenile Court (ICLE of GA, Juvenile Law Program Materials, 3/29/96) at 16- 008 through 16-012 115 Vasquez, Rosemary, L.C.S.W., Interviewing Children (National CASA presentation 1995)(Appendix 4) 5 Ventrell, Marv, Models of Child Advocacy, supra at 135-142 6 Walker, Anne Graffam, Ph.D., Handbook on Questioning Children: A Linguistic Perspective (1994) 7 U.S. Code/Federal Regulations 42 U.S.C. 5106(b)(6) 31 45 C.F.R. Ch. XIII, 1357.1 5(e)(1)(10-1-95 Edition) 58 45 C.F.R. Ch. XIII, 1357.15(e)(2) (10-1-95 Edition) 58 Adoption Assistance and Child Welfare Act of 1980 86 Child Abuse Prevention and Treatment Act (CAPTA), P.L. 93-247 31 P.L.96-272, , 57 Index Abandonment 13, 16, 101-103 Adjudicatory hearing 2,21,29,35,37,38,42,85,43-45,47-51,55-57,85,62, 64, 93, 96 Adoption 8,9,11,14,15,32,56,58,68,70,74,85, 86, 95, 98,99,101,116,117 Adoption proceedings 8 Adoption Unit 117 Amendment of 35, 94 Appeals ... 3, 10, 12-14, 19,22,30,45-47,50,51,64,69, 70, 96, 98, 101, 102, 107-110, 115, 118- 121 Guardian Ad Litem Court Procedures Reference Manual References / Page 138 Best Interests 4,6, 7, 18,31,33,35,44,55,69,80,84,85, 106, 115,85 By publication 49, 113, 114 By school officials 21 CAPTA 31 CASA. 2,85,3-6, 11, 13,85,25,26,31-36,38,41,43,44,51,55,60,63, 71, 72, 78,80-89,91-94, 96, 97, 99, 111 Child Abuse 20, 31, 46 Child Abuse Prevention and Treatment Act 31 Child Protective Services Manual 57 Child's wishes 93 Compensation 66 Competency 53 Concurrent 9, 56, 81 Confidentiality 49, 55 Contents 2,21, 79, 81 Continuance 27,30,40,42,43,45,53, 72 Counseling 7, 54, 58, 59, 66, 80, 85, 90, 107 Court Appointed Special Advocates 1,85,32,47 Custody .. 2, 1,9, 10, 13, 15-17,20-23,25,27,28,37,40,85,43,54,56,61,62, 64-71, 73, 77, 78, 85,89-98,103,106,110,116-118,121 Definition 2,85,3, 11-15,43,58,60, 73, 103 Delinquency 8 Department of Family and Children Services 13,28 Department of Human Resources 66,92, 116 Deprivation .. 1,2,85, 1,3,8-14, 16-19,85,21,24-26,28-35,37-39,41,42,85,43-51, 53,55-57, 60,85,63,69, 71, 80-82,91,95-97, 100, 103, 104, 106, 107, 109, 111, 115, 116, 118, 121 Deprivation action 8,28,30,47,48,53, 106, 111, 115 Deprivation hearings 30, 31, 49,50,56 Dept. of Family and Children Services 70 Detentional hearing 24 DFCS .. 1,9,10,20-22,24,28-31,34,37-39,43,46-48,55,57,60, 62, 65, 68-73, 76-98,101,102, 106, 108-110, 116, 117, 121 Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 44-47, 92 Dismissal 28, 29, 38, 42 Disposition 3,51,53,54,56,57,62,63,67, 71-74, 77, 81, 83, 85, 86, 88, 92, 94, 106, 117,85 Dispositional Alternatives 3, 64, 65 Dispositional hearing 85,49,53,85,62,64,65, 71, 72, 77, 79, 87, 121 District Attorney 39 Division of Family and Children Services 60,61, 74, 91, 92, 94 Division of Mental Health 67 Divorce actions 9 Due Process 11,40,50,69, 70 Evidence .. 2-4,13,14, 16,27,28,34,41,85,46,47,49-53,55,64,67, 74,84,89,96,97,100-102, 105-108, 110, 112, 113, 118-122 Failure to Comply with a Child Support Order 101 Guardian Ad Litem Court Procedures Reference Manual References / Page 139 For discovery 45 For good cause 38,45 Foster Care 25,43,45,56,57,61,63, 70, 71, 73, 74, 76, 77, 80, 83-87, 93, 94, 107 Foster care reviews 87 Fourteenth Amendment 44, 50 Georgia Court of Appeals 13, 19,22,30,46,47, 120 Georgia Supreme Court 1, 10, 15,23,44,50,52,64,68, 110, 115, 120 Grounds for 3,51,64,83, 84, 101, 103, 104, 111, 115 Guardian ad Litem 85,3, 11,30,31,46,55,66, 70, 98, 115, 124 Hearing ... 2,3, 10-12, 17, 19,21,24,25,27-30,33,35,37-42,35,42-45,47-53, 55-57, 85, 62, 64, 65,68,70-72,77,79,81,83,87-90,93-97,100,103,111, 112, 114, 116-121,85, 123 Hearsay 27,51-53,55,64 Hearsay exception 51, 52 In chambers 50 In foster care 43,56,61, 70, 74, 80, 83-86,94 Incarcerated parents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Indigent parents 115 Intake Officer 23-25,27,28, 37, 38, 85 Interstate Compact on the Placement of Juveniles 8 Interview 26, 41, 46,50,55, 78, 93, 124 Investigation 1,6, 10,21,23,29,32,34,41,55, 73, 78, 82, 90, 91, 97, 124 Jurisdiction 2,8-10, 14, 16,21,22,24,25,30,31,38,39,55,60, 77, 78, 92, 118 Juvenile court. .. 1,2,85, 1,8-11, 13, 14, 17-19,21-25,27-30,32,37-39,85,43-47,49-51,57,60, 68-70,73,76-78,81,86-88,92,95,98,101,102,104, 110, 114-116, 119-121, 124, 135 Law Enforcement Officer 20-24,39 Legitimation petitions 9 Making Reasonable Efforts: 59 Medical Neglect 17 Mental Retardation 67 Motions for Reconsideration and Appeals 3, 118 Notice ... 2,3, 10, 11,25,29,35,45,48,49,54, 74, 76, 79, 81, 83, 88, 98, 104, 111, 113, 114, 118, 119 Of appeal 119 Of child 1,4,6,20,31,46,63 Parental Abandonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 102 Parental care and control 14, 104, 106, 109, 110 Parental Misconduct or Inability 99, 100, 103, 108 Parents .. 3,9-18,21,23,24,27-30,36,37,40,85,43,45,47,52,55,57,58,60,62-66,68-70,74, 79-82,86,88-91,93,95-97,100,105-107,109-111,115,116 Permanency Planning 3,61,64, 79, 92, 85 Personal 8, 12,81, 113, 116, 124 Petition. 2, 8-11, 13, 16, 19,21,22,24,27-29,35,37-42,85,45,47-49,53,57,85, 68, 95-100, 102- 106, 108, 111, 113, 114, 116, 117,85, 118, 119 Presence of Counsel 46, 50 Pretrial discovery 2, 44, 46 Guardian Ad Litem Court Procedures Reference Manual References / Page 140. Probate Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Proceeding ..... 9-11, 18, 19,29-31,38,39,41,45-49,53,88,95,98, 100, 112, 114-116, 118, 120 Production of documents 45, 46 Proper Care and Control 104 Protective Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 20-22, 28, 37 Provisional Hearing 49 Purpose 16, 18,23,29,31,49,50,80,81,83, 110, 116 Purpose of 23, 29, 31, 49,50,81, 110, 116 Religious beliefs 17 Reports 22,27,36,41,44,53,64, 78, 93, 94 Request for 45,46, 70, 102, 103, 119 Reunification 3,85,32,35,36,43,44,55-61,63, 72, 79-81,83,84,86,88,89,93,95,96,110 Reunification services 56-58,60,80,81,83,84,95 Reversal 51,95, 101, 104 Review 3, 1,23,28,41,85,46,48,51,57,69, 78-81, 83-93, 100, 117, 119-121 Right to Counsel 2, 3, 29, 30, 50, 114 Service of summons 66 Shelter Care 24, 25, 28, 29, 37, 85,45,53 Standard of Proof 10, 16,28,29 Statutory definition 11, 14 Steps for Keeping Families Together 59 Subject matter 8,9, 118 Summons 2,3,20-22,24,47-49,66, 111 Superior court 8-10, 19, 119, 120 Supplemental Order 81, 88, 89, 94 Temporary 9,14,17,25,49,58,63,65,67,69-71,73,85,92,94-96, 106, 116, 121 Temporary Order 49 Termination hearing 111, 116, 117 Termination of parental rights. 3,85, 1,8, 16,48,63, 70, 83-85, 87, 89, 98-103, 106, 107, 110, 111, 114, 115 Testimony 13, 17,21,27,35,36,43,44,51,52,94 Transfer of 9,67,69, 70 \lenue 2, 18, 19,98 Visitation 41,59,68,80,81,89,92,95 Voluntary Relinquishment of Parental Rights 101 Without a Parent, Guardian, or Custodian 11, 16 "Available to testify" 53 "Reasonable efforts" 56, 59 Guardian Ad Litem Court Procedures Reference Manual References I Page 141. (1) If the child is in state custody, petition must be filed within 5 days of detention hearing (2) If the child is not in custody, petition must be filed within 30 days of detention hearing. (3) Failure to comply with these time limits shall result in dismissal without prejudice. f) No petition may be filed without endorsement by the court vr the court's designee. The court or the court's designee must determine that "the filing of a petition is in the best interest of the public and the child," before a petition may be filed. 67 g) Amendments: "A petition may be amended at any time prior to adjudication, provided that the court Sllall grant the parties such additional time to prepare as may be required to ensure a full and fair hearing.,,68 67 a.C.G.A. 15-11-23; URJC 4.2. 68 U.R.J.C. 6.6. Parent Attorney Court Procedures Reference Manual Section IV / Page 47 Working with Child Deprivation Cases in Georgia's Juvenile Courts A REFERENCE MANUAL FOR ATTORNEYS REPRESENTING PARENTS Principal Developer Karen L. Worthington, Staff Attorney, Juvenile Advocacy Division, Georgia Indigent Defense Council Contributors Chris Harris, Research Assistant, Georgia Supreme Court Child Placement Project Dan Terner, Student Intern, Juvenile Advocacy Division, Georgia Indigent Defense Council Jan Wheeler, Staff Attorney, Juvenile Advocacy Division, Georgia Indigent Defense Council This manual was written to provide informal information about the process of child deprivation cases. It is not to be used as the official authority on law and procedure. Funded by the Georgia Supreme Court Child Placement Project November 1997 Revised January 1998 Table of Contents SECTION PAGE I. INTRODUCTION 1 II. OVERVIEW OF CHILD ABUSE AND NEGLECT PROCEEDINGS ............... 2 A. Progress of a Georgia Deprivation Case 2 B. Juvenile Court System of Georgia 8 C. Related Proceedings in Other Forums 9 D. Philosophy of Juvenile Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9 E. Federal Legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11 III. JUVENILE COURT PARTICIPANTS ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15 A. Judge 15 B. Child 17 C. Attorneys for Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19 D. Guardians Ad Litem (GAL) 24 E. Parents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 26 F. Attorney(s) for Parent(s) 29 G. Department of Family and Children Services Caseworkers 30 H. Special Assistant Attorney General (SAAG) 33 1. Other Family Members/Private Petitioners . . . . . . . . . . . . . . . . . . . . . . . . .. 34 J. Other People. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 36 IV. JUVENILE COURT PROCEDURES ...................................... 38 1. Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 38 2. Venue 40 3. Notice and Service 41 4. Time Limits 43 5. Removal of the Child from the Home 44 6. Pleadings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 45 V. JUVENILE COURT PRACTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 48 A. Official Code of Georgia Annotated 48 B. Uniform Rules of Juvenile Court 49 C. Client Interviews 49 D. Discovery 52 E. Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 54 VI. JUVENILE COURT PROCEEDINGS .............................. 59 A. 72-hour Hearing 60 B. Pre-trial Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 C. Adjudicatory Hearing 66 D. Provisional Hearing 74 E. Disposition 76 F. Permanency Planning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 1. Case Plans 87 2. Recommended Elements of a Reunification Plan 88 3. Nonreunification Plan 89 4. Presumption ofNonreunification 91 5. Reasonable Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 G. Extension of Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 H. Modifications and Other Proceedings 103 1. Modification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 2. Judicial Review of Placement 104 1. Termination of Parental Rights 104 J. Appeals 114 IIIIIJI~:g:::l:::::::~e::c::'ee:::: :t;:::;::::~:~aw designed to serve as a checklist and reference guide rather than as an authority on the law. This manual will provide attorneys with an outline of how a "typical" case may progress from start to finish, including what decisions need to be made at each proceeding, what participants should be involved at each stage, suggestions on effective advocacy, and where to find more information. This area of the law is changing rapidly, so detailed discussion of statutory or case law is limited; lawyers are advised to review the law every time they work on a case. Parent Attorney Court Procedures Reference Manual Section I / Page 1 !1II;!lms~haPterH:: :=::~rivation case moves throughthe court sy~em in Georgia; B. How the juvenile court system is organized in Georgia; C. How juvenile court cases are related to cases in other courts; D. The history and philosophy ofjuvenile courts; E. and the relationship of federal legislation to state legislation. A. PROGRESS OF A GEORGIA DEPRIVATION CASE An incident of child abuse or neglect officially becomes a juvenile court case when the petition is filed. This is not the first action that occurs, however; a deprivation case starts long before the court obtains jurisdiction over the matter. A "typical"l deprivation case begins with a call to the county Department of Family and Children Services (DFCS). This call may be made by a neighbor, police officer, mandated reporter (see a.c.G.A. 19-7-5), or any person having knowledge of or information about mistreatment of the child.2 I Throughout this manual the phrase '''typical' deprivation case" is used to describe a deprivation proceeding in which DFCS is the petitioner and the parents are the respondents. This term is used as shorthand for the type of case to which the code and rules can most easily be applied. 2 a.e.G.A. 15-11-24. Parent Attorney Court Procedures Reference Manual Section II / Page 2 The call to DFCS is directed to the Child Protective Services (CPS) Unit, which is charged with investigating allegations of abuse and neglect. A decision is made within that unit whether to further investigate the allegation. If further investigation is needed, a CPS worker will be assigned to investigate and determine whether the allegation is confirmed, unconfirmed, or unfounded. If it is confirmed or unconfirmed, CPS may provide support ~ervices to the family to prevent the problem from escalating to a level necessitating removal of the child from the home. If there is an immediate threat of harm to the child, a law enforcement officer or a duly authorized officer of the court has authority to remove the child from the home. As soon as possible after removal (if court authorization was not obtained in advance), an intake officer of the juvenile court must be contacted. The intake officer will make the determination (usually over the phone), based on the facts presented, whether the child should be detained or released. If the child is removed from the home and the intake officer approves the removal, a court hearing must be held within 72 hours of the time the child is removed, unless the 72 hours ends on a week-end or legal holiday, in which case the hearing will be held on the next business day. The purpose of this hearing is to determine whether the child can be safely placed back in the home and whether reasonable grounds exist to believe that the allegations in the complaint or petition are true. If, at the 72-hour hearing, the court decides that the child must remain out of the home, a deprivation petition must be filed within five days ofthe 72-hour hearing. The petition is the formal commencement of the deprivation proceeding. If the court decides that it is safe for the child to be released to his or her parent or guardian, but DFCS believes there is a need to file a deprivation petition, the petition must be filed within 30 days of the 72-hour hearing. Before a petition can be filed, an authorized officer of the court must determine that filing a petition is in the best interest of the public and the child. In Parent Attorney Court Procedures Reference Manual Section II / Page 3 most cases the petitioner files a "complaint" and the court accepts the complaint and "approves" the filing of a petition. Once a petition is filed, an adjudicatory hearing must be set within ten days. Juvenile court "trials" occur in two phases: the adjudication is the fact-finding phase (the "trial") and the disposition is the phase in which the placement and plan for the child are decided ("sentencing"). Although the code requires the adjudication to be set Vv ~thin ten days, it does not require the case to actually be heard within ten days. A continuation may be granted at the judge's discretion. The adjudicatory hearing can only be held after proper notice to all necessary parties. If, at the adjudicatory hearing, the court determines by clear and convincing evidence that the child is deprived, the court will hold a dispositional hearing. As a practical matter, this hearing is usually held within the same proceeding as the adjudication, but it can be held separately for a variety of reasons. If the court does not find that the child is deprived, the case is dismissed. Even with a dismissal, CPS may continue to maintain an open CPS case on the family, providing services and monitoring the family. Even before the court hearing, DFCS and the family are supposed to be working together to resolve whatever problems may have precipitated the petition. Within 30 days of taking the child out of the home, DFCS must file a case plan with the court which describes what the problems are, how they will be addressed by the parents and by DFCS, and what the plan for the child is (short-term placement, long-term placement, services to be provided, etc.). If the disposition occurs before the 30 days has expired, DFCS may present a case plan at the dispositional hearing or may be ordered to develop one. Some courts set the date for the case plan meeting at the court hearing and order the parents to attend. DFCS may decide that the situation is so aggregious that the child can never be placed back in the home, regardless of what services may be provided or what actions may be taken by the parents. In that situation DFCS will file a non- Parent Attorney Court Procedures Reference Manual Section II / Page 4 reunification plan instead of a case plan.3 The non-reunification plan must describe what the problems are, why the problems will never be resolved, and what the short-term and permanent plans for the child are. If a non-reunification plan is filed, a hearing must be held on the plan within 30 days of the date it is filed, regardless of the timing of the adjudicatory hearing. Assuming that deprivation is found and a case plan is presented at the disposition hearing, the court may decide to give custody of the child to the parents, to DFCS, or to any other custodian of the child. a.C.G.A. 15-11-34. If the court gives custody to anyone other than DFCS, the court may do so subject to conditions or limitations ordered by the court. If the court gives custody to DFCS, the court may not tell DFCS where to place the child, but the court may at any time review the placement DFCS has chosen and may order DFCS to change the placement. a.c.G.A. 15-11-34(c). If the child is placed in the custody ofDFCS, the order awarding such custody will expire 12 months from the date the child was removed from the home. The court, or a Citizen Review Panel, must review the child's case within 90 days of the dispositional order, but not later than 6 months from the time the child was originally taken out of the home. Such reviews must occur every six months thereafter, as long as the child remains in foster care and is not free for adoption. If the parents' rights to the child are terminated, such reviews are only required annually and are conducted by the judge. As the 12 month order nears expiration, DFCS must decide whether the conditions in the home have been remedied to the point at which it is safe to return the child to the home. If DFCS thinks the parents are not yet able to safely care for the child, but that more time and more services will lead to the return of the child to the home, DFCS may file a motion to extend custody. DFCS may also file a motion to extend custody along with a non-reunification plan ifDFCS 3 a.C.G.A. 15-11-41, commonly referred to as Senate Bill 611, the legislative bill that amended this code section to allow the filing of non-reunification plans. Parent Attorney Court Procedures Reference Manual Section II / Page 5 believes that nothing will lead to the return of the child to the home, but also believes that termination of the parents' rights is not appropriate at the current time. In the alternative, DFCS may file a petition to terminate the parents' rights to the child. Laws and policies are changing to focus on placing children in permanent homes as quickly as possible. This is obvious in the statutory changes providing for time-limited orders and frequent court reviews, and is becoming more noticeable in practice. Courts want to know early in the process what the longterm permanent plan for a child is, and are allowing parents less and less time to demonstrate their willingness and ability to properly parent their children. When parents cannot demonstrate substantial progress toward responsible parenthood within a year or less, courts are becoming more willing to free children for adoption so that they can grow up in a permanent home. Participants in these proceedings should keep in mind that a "permanent" home for a child is not limited to the birth home or an adoptive home; a permanent placement may take many forms, including: with parents, with a guardian, in long-term foster care while maintaining a relationship with the parents, in an independent living program, with an adoptive family. "Permanency" is a misleading word in the deprivation context because even though permanency for the child may be achieved, the court case may remain open for years. This can cause confusion regarding the f'xtent of an attorney's involvement in these cases. Actual closure is achieved in a few situations. If the child is returned to the home, the juvenile court case is closed (although it may continue with some supervision for a period of time before being closed). If the child is adopted, the case is closed. If a temporary custody order is allowed to expire, the case is technically closed because the court loses jurisdiction. When a child ages turns 18 without requesting continued services, the case is closed. Most other outcomes mean that the case continues as an ongoing case within the juvenile court system. Parent Attorney Court Procedures Reference Manual Section II / Page 6 There are countless variations on the "basic deprivation case" fact scenario described above. The above fact pattern, however, describes the flow of a deprivation case as shown on the following flow chart: Flow Chart of a Deprivation Case If child is removed, 3D-day DFCS caseplan or non-reunifkation plan must be f-.Jed within 30 days with the court Authorization to Remove Child If necessary, "Safekeeping" Order may be issued by the judge Child stays in home with services to the family from DFCS If child is removed, detention hearing must be held within 72 hours (excluding weekends and holidays) and adjudicatory hearing must be set within 10 days after the petition is filed If a non-reunification plan is ever filed, a court hearing must be held within 30 days of ruing plan Court may still order CPS or protective order BDismissed Adjudicatory H:aring at Juvenile Court requires Oear and Convincing Evidence .< .. O - - - - - - . ' - - - - - - - r - - - - \ Custody returned to parent. Court may still order CPS or Protective Order Custody Returned (Parent) Judge approves or di<;approves caseplan If child is returned to custodians at probable cause hearing, petition must be filed within 30 days of that hearing If child is removed, petition must be rued within 5 days of detentional hearing and an adjudicatory hearing set within 10 days of the filing. If child is not removed, hearing is is set within 60 days of filing of petition Adjudicatory Hearing Continued to Allow for Provision of Services from DFCS A May be held in the same or separate proceeding Custody Extension (generally with DFCS or relative) Case may be dismissed or custody may be returned to parent with continued DCFS supervision Termination of Parental Rights Proceeding may begin by a Petition filed with the clerk followed by a TPR Hearing Parent Attorney Court Procedures Reference Manual Section II / Page 7 B. JUVENILE COURT SYSTEM OF GEORGIA Just as there are many variations of a basic deprivation case, there are many variations of the forum in which these cases are brought. This manual attempts to address issues applicable to all juvenile courts in Georgia, while respecting the fact that practice varies widely with each court. Georgia does not have a unified court system and currently does not provide state funds for the operation ofjuvenile courts. OCGA 15-11-3 provides for the establishment of a juvenile court in each county and calculates the amount the state shall contribute toward the juvenile court judges' salaries. However, funds for the state contribution to these courts have never been appropriated. As a result, the burden of providing for the protection of children through the court system has rested on the individual counties. Each of the 159 counties in Georgia has addressed this challenge in a manner best suited to that jurisdiction, resulting in 22 counties with cases heard by full-time juvenile court judges, 42 counties with cases heard by part-time juvenile court judges, 37 counties with cases heard by an associate juvenile court judge or other designee under the supervision of a superior court judge, and 58 counties in which the cases are heard by a superior courtjudge.4 As expected, local procedures (DFCS and court) vary considerably depending on the jurisdiction. The juvenile courts, the Supreme Court of Georgia, and various state agencies are working to improve consistency in the way deprivation cases are handled. This manual is one result ofthose efforts. See the resource section ofthe manual for more information on initiatives to improve juvenile court practice. 4 This information was obtained from the Georgia Courts Directory, August 1997-1998, Judicial Council of Georgia. Parent Attorney Court Procedures Reference Manual Section II / Page 8 C. RELATED PROCEEDINGS IN OTHER FORUMS In addition to knowing how the juvenile court system is configured, it is important to know how juvenile court cases are related to cases in other courts. The following is a list of actions in the juvenile court or other courts which may be related to ongoing juvenile court deprivation cases. 1) superior court custody matters 2) probate court guardianship proceedings 3) superior court adoption proceedings 4) superior court domestic matters 5) state court or superior court domestic violence proceedings 6) superior court criminal prosecution 7) administrative law proceedings related to benefits, disabilities, or educational services 8) juvenile court delinquency or unruly proceedings O.C.G.A. 15-11-6. D. PHILOSOPHY OF JUVENILE COURT The development of the juvenile court, from the first child abuse "case" brought by the Society for the Prevention of Cruelty to Animals, to the "first" juvenile court in Chicago, to the current debate surrounding the abolishment of the juvenile court altogether, is the subject of many excellent articles and books, some of which can be found in the resource section of this manual. For this introductory section, a brief explanation of why children are handled in separate courts will suffice. Readers are encouraged to explore this topic more fully on their own. The original juvenile courts were developed along what has come to be called a "treatment model." The belief underlying this model is that children committing improper acts are not "criminals" but are children with problems who need "treatment and rehabilitation." The juvenile court was established so that children could receive services toward this end under the "supervision" of the Parent Attorney Court Procedures Reference Manual Section II / Page 9 court using its power as parens patriae to order such intervention. The juvenile court's involvement in the lives of children who are abused and neglected has gone through several phases just as the court itself has. The overarching purpose of the court has remained constant: the protection of children. However, the court's approach to protecting children has shifted. For many years the goal of child protective agencies has been to put families back together (reunification). Courts were trying to treat and rehabilitate entire families, not just individual children. In recent years the focus of courts, social service agencies, and child advocates has shifted toward providing for the individual needs of the children over the needs of the family unit. This shift has culminated in the passage of the federal Adoption and Safe Families Act of 1997 (P.L. 105-89), in November 1997. This law modifies existing federal legislation regarding foster care so that reasonable efforts to reunify families are not always required and the provision of reunification services is limited to the 15 months following the child's placement in foster care. Additionally, if a child has been in foster care 15 out of the most recent 22 months, states are directed to file petitions to terminate parental rights unless the state has placed the child with a relative; the state has documented a compelling reason for determining that terminating parental rights would not be in the best interests of the child; or the state has not provided appropriate reunification services, if such services were warranted. Finally, the law requires a permanency hearing to be held after a child has been in foster care for 12 months. In recent years, and particularly since the appropriation of federal funds to examine this issue,5 there has been increased involvement in the national movement to improve court practice in child abuse and neglect cases. Toward this end, the National Council of Juvenile Court and Family Court Judges has developed and published RESOURCE GUIDELINES, Improving Court Practice in Child Abuse and Neglect Cases, a manual describing procedures and resources which can assist judges in making the critical determinations necessary in these 5 Omnibus Budget Reconciliation Act of 1993, P.L. 203-66. Parent Attorney Court Procedures Reference Manual Section II / Page 10 types of cases.6 Throughout this manual the RESOURCE GUIDELINES will be referenced as GUIDELINES. The key principles underlying the guidelines are: 1) the need for comprehensive and timely judicial action in child welfare cases; 2) the need to assure safe and permanent homes of abused or neglected children; 3) the prominent role of the judiciary in this process; 4) the avoidance of unnecessary separation of children and families; 5) the need to make reasonable efforts to safely reunify families that have been separated; 6) the need to quickly find permanent homes for children when reunification is not feasible; 7) the need to make timely decisions in child abuse and neglect litigation; 8) the special obligations on juvenile and family court judges to oversee case progress. GUIDELINES, pp. 12-14. E. FEDERAL LEGISLATION As independent as Georgia's juvenile court system may appear to be, state laws addressing deprivation cases are heavily influenced by federal law. The Adoption Assistance and Child Welfare Act of 1980 imposed many requirements on state juvenile courts receiving federal money.7 These requirements include evaluations of social services agencies' reasonable efforts to prevent removal of children and to reunite families; periodic reviews of foster care cases; adherence to timelines for permanency planning decisions; procedural safeguards for 6 RESOURCE GUIDELINES--Improving Practice in Child Abuse and Neglect Cases, published by the National Council of Juvenile and Family Court Judges, Reno, Nevada. 7 Public Law 96-272. Parent Attorney Court Procedures Reference Manual Section II / Page 11 placement and visitation.8 The Child Abuse Prevention and Treatment Act of 1974 also heavily influences state handling of child abuse and neglect cases. This law requires states receiving federal funds for the prevention of child abuse and neglect to provide a GAL for every child involved in such proceedings. In 1993 Congress passed additional legislation affecting juvenile courts. In the Omnibus Budget Reconciliation Act of 1993, Congress allocated funds for grants to states that agreed to study how their courts handled abuse and neglect cases and to implement improvements in the process.9 Georgia is participating in this national project, referred to as the Court Improvement Project. The Supreme Court of Georgia created the Child Placement Project within the Administrative Office of the Courts to conduct the study and implement the resulting recommendations. This manual and th~ collaborative cross-training are both products of this project. A new piece of federal legislation which will again reshape some of Georgia's laws was enacted in November 1997. The federal Adoption and Safe Families Act of 1997 (P.L. 105-89), changes some of the primary requirements of P.L. 96-272. The first major change contained in (P.L. 105-89) eases requirements that social service agencies make reasonable efforts to preserve and reunify families. Reasonable efforts no longer need to be made in certain instances, including when a parent has subjected the child to "aggravated circumstances" and when the parent's rights to another child have been previously terminated. If reunification is the initial goal, family reunification services are to be provided, but they are now called "time-limited family reunification services" and only need to be provided for the IS-month period following the child's placement in foster care. If a state determines that reasonable efforts need not be made, a permanency hearing must be held within 30 days. Another major change is a shift in philosophy regarding the most appropriate placement for a child. Previously, the statute required reunification 8 GUIDELINES, p. 11. 9 P.L. 203-66; 45 C.F.R. Part 92. Parent Attorney Court Procedures Reference Manual Section II / Page 12 efforts to the greatest extent possible before grounds for tennination would be found to exist. The emphasis is now on fmding a pennanent home for the child as early in the process as possible. Toward this goal, the statute now requires states to file for tennination or join in a tennination action unless certain circumstances exist. The statute provides that if a child has been in agency foster care for 15 of the most recent 22 months, if the child is an abandoned infant, if the parent has killed another child or has seriously injured the child or a sibling, the state shall file a petition to tenninate the parental rights unless: (1) the state has placed the child with a relative, (2) the state has documented a compelling reason for detennining that tenninating parental rights would not be in the best interests of the child, or (3) the state has not provided appropriate reunification services, if such services were warranted. A third major change is the way time in foster care is measured. The old statute measured time from the child's initial placement. The statute now reads that a child is "considered to have entered foster care on the earlier of the date of the first judicial finding that the child [is deprived (i.e. adjudication)], or the date 60 days after the date on which the child is removed from the home." A fourth change is a new requirement that foster parents, preadoptive parents, or relatives providing care for a child must be provided with notice of, and an opportunity to be heard in, any reviews or hearings concerning the child. Such notice does not mean that any of these people become a party to the proceeding solely on the basis of having notice and an opportunity to be heard. Another change reflects the shift in emphasis from reunification to pennanency. The law previously provided for a dispositional hearing after a child was in foster care for 18 months. The purpose of this hearing was to detennine the final disposition of the case. The law now requires a pennanency hearing after the child has been in foster care for 12 months (using the new calculation for time Parent Attorney Court Procedures Reference Manual Section II / Page 13 in foster care). The purpose of the permanency hearing is to finalize the permanency plan for the child. In addition to child welfare legislation, there are many federal laws which affect juveniles in deprivation cases, including but not limited to: Individuals with Disabilities Education Act, 20 U.S.C. 1400(c); Section 504 of the Rehabilitation Act of 1973,29 U.S.C. 794(a); Americans With Disabilities Act, P.L. 101-336; Personal Responsibility and Work Opportunity Act of 1996; and Supplemental Security Income laws (42 U.S.C. 1382 and 20 C.F.R. 416.900 et. seq.). While each of these pieces of legislation is a specialized area of practice in itself, lawyers in juvenile court should, at a minimum, know when these federal laws are implicated in a juvenile court case. Recognizing that a federal law may be applicable in a situation, knowing where to find the law, and knowing who specializes in that area are useful tools for effective advocacy. Parent Attorney Court Procedures Reference Manual Section II / Page 14 I-tiS chapter will provide an outline ofthe procedural aspects ofhow a deprivation case comes to court, including jurisdiction, venue, notice and service, time limits, removal of the child from the home, and filing of pleadings. A more complete discussion ofjuvenile court procedure can be found in the Law Guardian Manual. 1. JURISDICTION a) Juvenile courts have exclusive jurisdiction over: (1) Deprivation actions involving children under 18 (2) Proceedings for obtaining judicial consent for marriage, employment, or enlistment in armed forces (3) Actions for termination of parental rights, as well as actions for termination of the rights of the biological father who is not the legal father of the child (other than in connection with adoption proceedings...in which the superior courts have concurrent jurisdiction to terminate).44 (4) Actions involving children who are under court's supervision or on probation 44 See O.e.G.A. 15-11-5(a)(2)(C). Parent Attorney Court Procedures Reference Manual Section IV / Page 38 (5) Proceedings related to prior notice of parent or guardian of a minor seeking an abortion b) Juvenile Courts have concurrent jurisdiction with superior courts over: (1) Custody and support cases transferred from Superior Court (O.C.G.A.15-11-5 (c. This includes cases under the Uniform Child Custody Jurisdiction Act (O.C.G.A. 19-940, et. seq.). (2) Legitimation petitions transferred from superior court (3) Legitimation petitions filed in juvenile court regarding a child who is the subject of a pending deprivation proceeding in that court at the time the legitimation petition is filed. (4) Guardianships (5) Name changes in conjunction with legitimation c) Juvenile Courts have NO JURISDICTION over deprivation allegations brought by one parent against another parent. Deprivation proceedings between parents are prima facie custody matters which must be brought in the superior COurt.45 The superior court may transfer the case to juvenile court, but the case may not originate in juvenile court. d) A Superior Court proceeding cannot "change into" a juvenile court proceeding in the midst of a hearing. In a parental custody action in superior court, the judge may not declare both parents unfit, turn the case into a juvenile court deprivation proceeding, award custody to DFCS, and incorporate a case plan into the custody order, without prior notification to the parties that deprivation 45 In the Interest ofW.W.W., 213 Ga. App. 732 (1994); In the Interest ofMA and M.A., 218 Ga. App. 433 (1995). Parent Attorney Court Procedures Reference Manual Section N / Page 39 would be at issue and insuring that subject matter jurisdiction over deprivation is lodged in the juvenile court. This is true even in counties where the superior court judge also presides in juvenile COurt.46 e) Juvenile Court can obtain emergency jurisdiction over nonresidents: the court can exercise emergency jurisdiction over a chilJ whose home state is not Georgia under 19-9-43(a)(3)(B) when such an exercise "is necessary...to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.,,47 t) Unless otherwise provided by law, all orders affecting a deprived jGvenile terminate when the child reaches age 21; any orders affecting a deprived child after age 18 are in effect through the voluntary continuation of the juvenile in DFCS custody or other programs. 48 2. VENUE Places where a deprivation action may be commenced:49 a) County in which the child is present when the action is commenced. b) County in which the child resides. c) A child need not be physically present in the county in which that child resides on the date of filing. 46 Watkins v. Watkins, 222 Ga.App. 313,474 S.E.2d 53 (1996). 47 In the Interest ofM.M., (A96A0651) (6/24/96), 96 FCDR 2626.474 SE2d 53. 48 O.C.G.A. 15-11-41(1). 49 O.C.G.A. 15-11-15. Parent Attorney Court Procedures Reference Manual Section IV / Page 40 d) If superior court judge sits as juvenile court judge, hearings may be held in any county within the judicial circuit over which the judge presides. 3. NOTICE AND SERVICE a) For 72-hour detention hearing:5o (1) Reasonable notice, either oral or written, must be given to the child, and, if they can be found parents, guardian, or custodian (2) Notice must state time, place, and purpose of hearing (3) If parent, guardian, or custodian cannot be found, court shall appoint a guardian ad litem b) For other hearings (for service in TPR hearings, see section X in Law Guardian Manual): 1) Summon shall be issued to: (a) Parents (b) Anyone with physical custody of child (c) Child if the child is 14 years old or older (d) Guardian (e) Guardian ad litem, and (f) Any other persons who appear to the court to be proper or necessary parties. 2) If served by means other than publication, a copy of the petition shall accompany the summons.51 50 a.C.G.A. 15-11-21(c)(4). 51 a.e.G.A. 15-11-26(b). Parent Attorney Court Procedures Reference Manual Section IV / Page 41 3) Personal service within Georgia: A resident parent is entitled to be served personally at least 24 hours before the hearing unless the parent cannot be found. 52 4) Service by mail within Georgia: If the parents' address is known or can be ascertained, the summons may be served by mailing or by registered or certified mail at least 5 days before the hearing. 5) Nonresident service: non-residents are entitled to be served personally or by registered or by certified mail at least 5 days before the hearing.53 6) UCCJA mandates that notice of a proceeding under that act shall be served, mailed, delivered, or last published at least 30 days before any hearing.54 7) Publication: (a) If, after reasonable effort, a party cannot be found and a current address cannot be ascertained, service may be made by publication, in which case the hearing shall not be held earlier than 5 days after the date of the last publication.55 (b) Published summons shall indicate the general nature of the allegations and where a copy of the petition can be obtained.56 See a.e.G.A. 9-11-4 and 9- 11-5. 52 a.C.G.A. 15-11-27(a). 53 a.e.G.A. 15-11-27. 54 a.e.G.A. 19-9-45(b). 55 a.e.G.A. 15-11-27(d). 56 a.e.G.A. 15-11-26(b). Parent Attorney Court Procedures Reference Manual Section IV / Page 42 (c) Notice requirements and time limits must be strictly complied with. If notice and hearing requirements are not adhered to, the petition shall be dismissed without prejudice.57 4. TIME LIMITS a) 72 hours from removal to initial court hearing (except when time expires on week-end or holiday) b) 5 days from initial 72-hour hearing to filing of petition (when child is removed) c) 30 days from initial 72-hour hearing to filing of petition (when child is placed back in home) d) 10 days from filing of petition to adjudicatory hearing (when child is removed) e) 60 days from filing of petition to adjudicatory hearing (when child is in home) f) 30 days from initial removal to filing of 30-day case plan g) 30 days from filing of non-reunification plan to non-reunification hearing h) 90 days from entering of dispositional order to first periodic review (but cannot be held later than 6 months after initial removal) I) 6 months from first periodic review second periodic review must occur j) 12 months from initial removal until court order expires 57 Sanchez v. Walker County DFCS, 140 Ga. App. 175,230 S.E.2d 139 (1976). Parent Attorney Court Procedures Reference Manual Section IV / Page 43 5. REMOVAL OF THE CHILD FROM THE HOME58 a) If an initial allegation of deprivation is made directly to DFCS, DFCS may contact the police to facilitate an investigation and the preparation of an investigative report. Note that the investigative report should be included in subsequent petitions and complaints to provide a factual basis for removal. b) DFCS or the police must notify the court (or court designee) who must make a determination based on the facts presented as to whether the child should be removed from the home. c) The court may issue a verbal authorization for the child to be taken into protective custody if the court finds: (l) there are reasonable grounds to believe the child is suffering from illness or injury, or (2) the child is in immediate danger from his or her surroundings, and (3) removal from the home is necessary. This authorization is often referred to as an emergency shelter care order. 59 d) Practical note: The removal of a child from the home usually occurs prior to the verbal authorization to do so. If DFCS or the police feel that a child is in immediate danger they will remove the child to a safe place and "with all reasonable speed" "promptly contact a juvenile court intake officer.,,60 58 O.e.G.A. 15-11-17, 15-11-19. 59 O.C.G.A. 15-11-17(a)(4). 60 O.e.G.A. 15-11-19. Parent Attorney Court Procedures Reference Manual Section IV / Page 44 e) Place of Detention (O.C.G.A. 15-11-20): (l) A licensed foster home or home approved by court (2) A facility operated by a licensed child welfare agency or (3) A shelter care facility operated by the court (4) In a hospital, with relatives, or in other court-approved settings 6. PLEADINGS a) There are no filing fees in juvenile court. b) Complaint: The filing of a complaint is the most common way to initiate a deprivation action. URJC 4.1 states, "... [all] proceedings shall be initiated in the juvenile court upon the receipt of a written juvenile complaint form, petition, transfer from another court ... which shall be submitted to the court and shall be referred to an intake officer of the court ... in all cases in which a proceeding is initiated by other than a complaint, the form JUV-2 shall be completed by the person bringing the action and shall accompany the initiating document." c) Petition: Deprivation petitions may be filed by anyone who has knowledge of the facts alleged or is informed and believes they are true. The person filing the petition need not be a relative of the child, nor must their knowledge be first-hand.61 In In the Interest of A.V.B., the Georgia Supreme Court held a deprivation petition was properly filed against Dougherty County DFCS by the Georgia Advocacy Office, despite the fact that the GAO was not a parent, relative, or guardian ad litem.62 The court also held that the petition 61 a.e.G.A. 15-11-24. 62 221 Ga. app. 241, 474 S.E.2d 114 (1997). Parent Attorney Court Procedures Reference Manual Section N / Page 45 was not barred by sovereign immunity, since the relief sought was similar to injunctive relief and no damages were sought. The court does not officially take jurisdiction over the case until the petition has been filed. The petition itself is what officially commences a deprivation proceeding.63 d) The deprivation petition must contain the following: 64 (1) ordinary and concise language stating the facts demonstrating the basis for the parents' or custodians' alleged failure to provide proper parental care and control (merely reciting the statutory requirements is insufficient because it lacks adequate information to enable the parent to prepare a defense).65 (2) a statement that it is in the best interest of the child and the public that the proceeding be brought; (3) the name, age, and residence address, if any, of the child on whose behalf the petition is brought; (4) the names and residence addresses, if known to the petitioner, of the parents, guardian, or custodian of the child and of the child's spouse, ifany; or similar information of relatives; (5) whether the child is in custody, the place of detention, and the time the child was taken into custody. e) Time limits to file petition:66 63 See Longshore v. State, 239 Ga. 437 (1977). 64 a.C.G.A. 15-11-25. 65 In re D.R.C., 191 Ga. App. 278 (1989). 66 a.C.G.A. 15-II-2l(e); URJC 6.8. Parent Attorney Court Procedures Reference Manual Section N / Page 46 t!IIII:~:=::~:::s::r::f:O:::U::::~ in deprivation Who is this person? What is his or her purpose in a juvenile court case? What rights or duties does this person have with respect to the proceedings? The juvenile court is similar to other courts in that each case involves "parties." However, the definition of "parties" goes beyond the "traditional" black letter definition which generally includes only plaintiff and defendant. Proper parties to a deprivation action include the child, parents, guardians, legal caretaker or other custodian ofchild, guardian ad litem, other "proper and necessary parties" including CASA, DFCS and DHR workers, as well as counsel for the above. 10 A. JUDGE Who is this person? As in other courts, the judge is the person who presides over the proceedings and issues the rulings. However, the judge in deprivation proceedings is much more than that. The judge is considered the gatekeeper of the deprivation 10 Georgia Juvenile Court Benchbook, VI. C. 5., CJCJ 1996; and see O.e.G.A. 15-11-26(b) Parent Attorney Court Procedures Reference Manual Section III / Page 15 process because "juvenile and family court judges, the gatekeepers of our nation's foster care system, must ultimately decide whether families in crisis will be broken apart and children placed in foster care or placement can be safely avoided..." 11 What is his or her purpose in ajuvenile court case? The judge has many purposes in addition to presiding over the court proceedings. Unlike other courts, in juvenile court the judge may be involved in a case for years, and during those years the judge serves as the "case manager," in the sense that the judge makes the decisions regarding what is happening in each stage of the case. As a "case manager," the judge must ensure that DFCS complies with state and federal requirements and that cases are processed within the appropriate time frames. Most importantly, final responsibility for the protection of each child rests with the judge making the decisions. What rights or duties does this person have with respect to the proceedings? Juvenile court judges have broad discretion in performance of their many duties, some of which are listed below: (a) review and confirm fmdings and recommendations of associate juvenile court judges12 (b) question any witness called by any party for the purpose of determining the truth13 (c) determine who may be admitted to or excluded from a proceeding, including the child14 11 Endorsement of RESOURCE GUIDELINES by the Conference of Chief Judges, August 3, 1995. 12 O.e.G.A. 15-11-10 13 T.L.T. v. State, 133 Ga. App. 895 (1975). 14 O.e.G.A. 15-11-28 Parent Attorney Court Procedures Reference Manual Section III / Page 16 (d) question a child in chambers without the presence of counsel if there are no objections15 One note about the judge: Juvenile court has a tendency to be less formal than other courts. This informality can be misleading because attorneys may be less rigid in curtailing their discussions of cases. Attorneys should be especially conscious that they do not violate any client confidences in discussions (with other parties or the judge) to "work out a plan" or in any other situation, and that casual conversation with judges does not amount to ex parte communications about any pending case matters. B. CHILD Who is this person? The child is the central figure in a deprivation case and is often referred to as "the subject of the proceedings." The involvement of the child in the court proceedings depends in part on the age and developmental abilities of the child. It also depends on the nature of the allegations and the litigiousness of the proceedings. What is his or her purpose in a juvenile court case? It is difficult to describe the child's "purpose" in a case other than to say the child is to be protected. The child is involved because everything that happens is directed toward the court ordering a 'solution' that is in the best interests of the child, including protection from physical and emotional harm, and placement in a permanent home. What rights or duties does this person have with respect to the proceedings? A child is generally considered a "party" to a deprivation proceeding, although debate continues to surround this issue. 16 When the child is considered a 15 See e.g., In re R.R.M.R., 169 Ga. App. 373 (1983). 16 See O.e.G.A. 15-11-30 and O.C.G.A. 15-11-55. Parent Attorney Court Procedures Reference Manual III Section III / Page 1711I party to the proceedings, the child has the same rights with respect to deprivation proceedings as other parties, including those listed below: The right to representation: Every child in a deprivation case in Georgia is entitled to representation.17 Neither federal nor state law requires that such representation be by a lawyer. a.C.G.A. 15-11-30(b) states that "counsel must be provided for a child not represented by his parent, guardian, or custodian," emphasis added and a.C.G.A. 15-11-55 states that the "court...shall appoint a guardian ad litem for a child who is a party to the proceeding if he has no parent, guardian, or custodian appearing on his behalf...," emphasis added. Both statutes provide for the appointment of counselor a guardian when the interests ofthe child conflict with the interests of any guardian, custodian, or parent i:1Volved. The office of the Attorney General has issued an opinion stating that in a deprivation proceeding, the child's interests and a parent's interests are always adverse because of the nature of the proceedings; therefore appointment of a guardian is always necessary. 18 The statutes appear to allow the court discretion regarding whether the guardian will be an attorney guardian ad litem, a non-attorney guardian ad litem, or an attorney as counsel. An exception to this discretion is stated in a.c.G.A. 15-11-85, "In any proceeding for terminating parental rights or any rehearing or appeal thereon, the court shall appoint an attorney to represent the child as his counsel and may appoint a separate guardian ad litem or a guardian ad litem who may be the same person as his counsel," (emphasis added). 17 a.C.G.A. 15-11-21(c)(4); 15-11-30(b); 15-11-55; 76 ap. Arty Gen. 131 (1976). Child Abuse and Prevention Act of 1974 (PL 93-247). . 18 76 ap. Arty Gen. 131 (1976). Parent Attorney Court Procedures Reference Manual Section III / Page 18 II The right to introduce evidence and call witnesses on his/her behalf as well as cross examine adverse witnesses. 19 The right to testify at all stages of the proceedings.20 The rights of parties are guaranteed by the due process clause of the Fourteenth Amendment.21 When children are involved, their rights must be upheld with respect for their developmental age lliid abilities. C. ATTORNEYS FOR CHILDREN Who is this person? In the majority of Georgia jurisdictions, attorneys who represent children are appointed from lists of attorneys willing and qualified to take such appointments. MOle and more juvenile courts are requiring that attorneys provide certification of training in juvenile court proceedings as a qualification for appointment to this list. Attorneys should check with individual courts on this matter. In some counties the juvenile court may enter into a contract with a firm or individual attorneys to represent all children in deprivation proceedings. A few counties have attorney guardians ad litem who work for the court full-time, representing all the children in deprivation proceedings. What is his or her purpose in ajuvenile court case? When an attorney is appointed to represent a child in a deprivation case in Georgia, the attorney is usually serving as a guardian ad litem for that child, in which case the attorney is appointed as an officer of the court to represent the best interests of the child.22 However, there is a general understanding in most courts 19 a.e.G.A. 15-11-31(a). 20 A.C.G. v. State, 131 Ga. App. 156 (1974). These rights are guaranteed by the due process clause of the Fourteenth Amendment. In re L.L.W., 141 Ga. App. 32 (1977). 21 In re L.L.W., 141 Ga. App. 32 (1977). 22 See a.e.G.A. 15-11-55. Parent Attorney Court Procedures Reference Manual Section III / Page 19 that even if the attorney is representing the best interests of the child, the attorney will convey the child's wishes to the court, or will provide for the child to do so him/herself. The role of the guardian ad litem, hereinafter "GAL," is addressed extensively in the Attorney and Volunteer Guardian Ad Litem Manual in Section II. This section addresses a different role of the attorney: that of attorney as counsel. Attorneys are rarely asked to perform this role in deprivation proceedings. An attorney serving as counsel for a child advocates for the client's wishes rather than for what is in the best interest of the child. This can be a difficult role for many attorneys who may believe that what the child wants is not the best thing for the child in the long run. A comprehensive guide to the duties of an attorney representing a child client can be found in the ABA Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases.23 The standards define a child's attorney as "a lawyer who provides legal services for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult client.,,24 One item emphasized in the ABA Standards and in other practice manuals is that attorneys must provide "developmentally appropriate" representation, meaning "that the child's attorney should ensure the child's ability to provide client-based directions by structuring all communications to account for the individual child's age, level of education, cultural context, and degree of language acquisition."25 The two situations in Georgia that require an attorney serving as counsel both arise with regard to termination of parental rights hearings. First, O.C.G.A. 15-11-85 requires the appointment of an attorney as counsel "in any proceeding for terminating parenta~ rights...." Second, O.C.G.A. 15-11-41(k) indicates that 23 Hereinafter cited as Standards, adopted by the ABA in 1996. 24 Standard A-I. 25Standard A-3. Parent Attorney Court Procedures Reference Manual Section III / Page 20 when DFCS has not filed a petition for tennination of parental rights but the guardian ad litem detennines that termination of parental rights is appropriate, the GAL is authorized to file such a petition. In re J.S.C. clarifies that once the petition is filed the GAL becomes the attorney for the child and a new GAL must be appointed.26 A usual occurrence in Georgia is for an attorney to be appointed to serve as both GAL and counsel for the child. Opinions vary as to whether this dual role is an inherent conflict. Attorneys serving in this dual capacity should remain mindful of the possibility of a conflict, and should remember that if they foresee a conflict, they may step into the role of attorney as counsel and may request the appointment of a separate GALY When an attorney requests the appointment of a separate guardian ad litem the attorney need not disclose the facts supporting the request for an appointment; a statement that a conflict will arise if the attorney continues to represent the child in a dual capacity, or that there is a need for the child to be represented by both an attorney and a guardian ad litem, should suffice. What rights or duties does this person have with respect to the proceedings? The following list of duties applies to all attorneys representing clients in juvenile COurt.28 This list contains common-sense elements of the practice oflaw in most subject areas, but is worth including in this manual because the less formal environment of the juvenile court and the age of the clients tend to mislead attorneys into thinking that their obligations as attorneys representing juvenile court clients are substantially different than their obligations as attorneys representing clients in other forums. Some of the duties may apply only to 26 182 Ga. App. 721 (1987). 27 See Dawley v. Butts Co. DFCS, 148 Ga. app. 815,253 SE2d 235 (1979) (Court of Appeals said there was no conflict between the roles of GAL and attorney because the fiduciary duties of GAL and of counsel are the same); Gates v. Rutledge, 151 GA App. 844, 261 SE2d 757 (1979) (describes duties of GAL); see also, EC 7-12 and 7-17 of the Georgia Code of Professional Responsibility. 28This list is compiled from a variety of sources including RESOURCE GUIDELINES, ABA Standards . Parent Attorney Court Procedures Reference Manual Section III / Page 21 children or only to parents, but in the interest of space, this list is only printed once in this manual. 1) Actively participate in every critical stage of the proceedings, including negotiations, discovery, pretrial conferences, reviews, and hearings. 2) Conduct a full interview with the client 3) Counsel the client (if a child, in an age-appropriate manner) concerning the subject matter of the proceedings, the client's rights, the court system, the proceedings, the lawyer's role, and what to expect in the legal process. 4) Inform other parties and their representatives that you are representing the child and expect reasonable notification prior to case conferences, changes of placement, and other changes of circumstances affecting the child and the child's family. 5) Thoroughly investigate the case at every stage of the proceedings. 6) If the child has been removed from the home determine: (a) what contacts DFCS has made with the parents and the child since the initial placement (b) what effvrts were made to prevent the removal (c) what alternative placements (i.e. relatives, friends) were explored (d) what efforts have been made to reunify the family since the child was taken. 7) Interview key witnesses, including DFCS workers, key service providers to the child and family, representatives of other key agencies, and others with knowledge of the case. Such witnesses Parent Attorney Court Procedures Reference Manual Section III / Page 22 may include neighbors, school personnel, clergy, doctors, employers, and relatives. 8) Review all documents that have been submitted to the court. 9) Review the agency's file (if possible) and any pertinent law enforcement agency reports to evaluate the case and to ensure that the agency has complied with its own procedures and regulations. 10) When necessary to protect your client's interests, introduce and cross-examine witnesses, file and argue motions, develop dispositional proposals for the court and file appeals. 11) Obtain or subpoena necessary records, such as school reports, medical records, and DFCS records. 12) If allegations involve sexual abuse, find out whether the child participated in a videotaped interview. If so, obtain a copy and transcribe it. 13) If allegations involve physical abuse, find out if photographs of the injuries exist, where they are located, and what the chain of custody is. If possible, obtain copies. 14) When necessary, arrange for independent evaluations of children or parents. 15) Identify appropriate resources for the child and the family, including any relatives or friends who may be willing to care for the child. 16) Develop a theory and strategy of the case to implement at hearings, including factual and legal issues. 17) If at all possible, attend treatment, placement, administrative hearings, other proceedings involving legal issues, and school case conferences or staffings concerning the child. 18) Attempt to reduce case delays and ensure that the court recognizes the need to quickly achieve permanency for the child. Parent Attorney Court Procedures Reference Manual Section III / Page 23 19) Stay in regular contact with clients, writing letters and making telephone calls when necessary and using tickler files. 20) If at all possible, meet with the client prior to each court proceeding. 21) Continue to remain in contact with the agency and monitor case progress between court hearings. 22) Discuss options related to an appeal if appropriate and represent the client on appeal. For additional guidance on the role of attorneys, see IJA-ABA Juvenile Justice Standards Annotated: A Balanced Approach, Standards Relating to Counsel for Private Parties; ABA Standards of Practice for Attorneys Who Represent Children in Child Abuse and Neglect Cases; Ann Haralambie's The Child's Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases; and Jean Koh Peters' Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions.29 Also, the Code of Professional Responsibility found at the back of the State Bar Directory and Manual are applicable to attorneys in juvenile court in the same way that they are applicable to attorneys in other courts. It is wise to review these standards and cannons periodically. D. GUARDIAN AD LITEM (GAL) Who is this person? In the majority of Georgia jurisdictions, attorney guardians ad litem are appointed from lists of attorneys willing and qualified to take such appointments. More and more juvenile courts are requiring that attorneys provide certification of training in juvenile court proceedings as a qualification for appointment to this list. Attorneys should check with individual courts on this matter. In some counties the juvenile court may enter into a contract with a firm or individual 29 Full citations for these books can be found in the Resource Material Section of this book. Parent Attorney Court Procedures Reference Manual Section III / Page 24 attorneys to represent all children in deprivation proceedings. A few counties have attorney guardians ad litem who work for the court full time, representing all the children in deprivation proceedings. A guardian ad litem may also be a lay person (non-attorney) who is appointed as an officer of the court to represent the best interests of the child. GALs may also be non-lawyers. Georgia CASA oversees 23 Court Appointed Special Advocate (CASA) Programs which serve 36 counties.30 CASA is a national program in which volunteer citizens are specially trained to represent the best interests of children in juvenile court abuse and neglect proceedings. After completing 40 hours of training, CASAs become sworn officers of the court. A complete discussion of the role of CASAs and the role of GALs can be found in the law guardian section of this manual. The structure of CASA programs varies in each county. In some courts CASAs participate in court as witnesses; in some courts CASAs are represented by counsel; in some courts CASAs work closely with the GAL attorney and submit a written report to the court but do not participate in court proceedings; and in some courts CASAs actively participate in the court process. What is his or her purpose in ajuvenile court case? The Guardian ad Litem or CASA is "an officer of the court who is appointed to protect the child's interests without being bound by the child's expressed preferences.,,31 What rights or duties does this person have with respect to the proceedings? A complete discussion of the duties of a Guardian Ad Litem or a CASA are found in the Guardian Ad Litem Manual at Section II. The list of duties found under "Child's Attorney" is applicable, with modification, to attorney guardians ad litem just as it is to other attorneys injuvenile court. Also see the resource section for books designed specifically for GALs. 30 Georgia CASA, October 1997. 31 ABA Standard A-2. Parent Attorney Court Procedures Reference Manual Section III / Page 25 E. PARENTS Who is this person? In deprivation cases the tenns "mother" and "father" become much more complicated than in everyday life. There are fewer mutations of mother than of father. A biological mother is the female who gives birth to a child. A "legal mother" is the female who is either the biological or adoptive mother of the child and who has not surrendered or otherwise lost her parental rights to the child.-C Fathers can be legal fathers, biological fathers, or putative fathers. The words attached to "father" are more than merely descriptive; they define the rights of the father with regard to custody of the child. A biological father is the man who is genetically linked to the child. Following the Georgia 1997 legislative session, a man whose sole connection to a child is genetics no longer has legal rights to the child. The biological father must take action to become a legal father before his rights to custody (including notice of related proceedings) take effect. A biological father has the right to notice of tennination proceedings, but only under certain circumstances, discussed under "tennination of parental rights," at pp. 105-115 and in the law guardian manual at pp.98-1I6. If the father does not pursue his legitimation petition to finality or if the court concludes the biological father is not really the biological father, the man will lose all rights to the child. At the same time the legislature placed more responsibility upon biological fathers, it made the process of legitimating a deprived child less complicated. a.c.G.A. I5-II-5(e) was amended to provide the juvenile courts with concurrent jurisdiction with the superior courts to hear legitimation proceedings if the matter is transferred to the juvenile court or if there is a pending deprivation proceeding involving the child in question. 32 a.C.G.A. 15-11-2(10.2). Parent Attorney Court Procedures Reference Manual Section III / Page 26 A "legal father" is a male who: 1) has legally adopted a child; 2) was married to the biological mother of that child at the time the child was conceived or born unless his paternity was disproved in a court hearing; 3) married the legal mother of the child after the child was born and recognized the child as his own, unless paternity was disproved in a court hearing; 4) has been determined to be the father in a paternity hearing; 5) has legitimated the child. O.C.G.A. 15-11-2( 10.1 )(A-E). All of these constit'.lte a legal father so long as he has not surrendered or had his parental rights previously terminated. A "putative father" is a male who is named as the father of a child by the biological mother, or who declares himself the biological father of a child, but for whom paternity has not conclusively been established. Once paternity is established, the putative father becomes the biological father. It is possible for a single child to have more than one putative father, or even to have a legal father and a putative or biological father. As can be seen in the definition above, a legal father does not need to prove paternity to obtain the status of "legal father." Each of the fathers who is entitled to receive notice of deprivation proceedings is also entitled to court-appointed counsel if he is indigent. Juvenile courtrooms can get crowded when the parentage of a child is in dispute. What is his or her purpose in ajuvenile court case? Most parents in deprivation proceedings would probably say that their goal in juvenile court proceedings is to get their children back. The job of the attorney representing the parent is to help the parent achieve this goal. As the client, the parent's job is to actively assist the attorney in representing the parent. Parent Attorney Court Procedures Reference Manual Section III / Page 27 What rights or duties does this person have with respect to the proceedings? In addition to the rights parents have as parties listed under rights of children at pp. 17-19, parents have constitutionally protected rights to parent their children, some of which are mentioned below. (a) "The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state. Even when blood relationships. are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.,,33 The Supreme Court has held, however, that "the family itself is not beyond regulation in the public interest, as against a claim of religious freedom, and neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth's well being, the State as parens patriae may restrict the parent's controL.the right to practice religion freely does not include liberty to expose the ...child to ill health or death."34 (b) Indigent parents have a right to court-appointed counsel at all proceedings, including appeals, and a right to a paupered transcript on appeal ifindigent.35 The Georgia Juvenile Code defines an indigent person as "one who at the time of requesting counsel is 33 Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95 (1982); and see Griswold v. Connecticut, 381 U.S. 479 (1965) (parents hav~ a constitutionally protected right to raise their children.); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (government may only interfere with parents' right to raise children if parents are unwilling or unable to care for their children). 34 Prince v. Massachusetts, 321 U.S. 158 (1944); and see Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526 (1972) (parents' power may be limited if it appears that parents' decisions will jeopardize the child's health or safety or may rf>sult in significant social burdens). 35 O.C.G.A. 15-11-30(b); Nix v. DHR, 236 Ga. 794, 225 S.E.2d 306 (1976); In re RC.P, A97AI079, A97A 1164(11/3/97). Parent Attorney Court Procedures Reference Manual Section III / Page 28 unable without undue financial hardship to provide for full payment of legal counsel and all other necessary expenses for representation. ,,36 (c) Authority to consent to the child's adoption, even if the child has been temporarily transferred to the custody ofDFCS.37 F. ATTORNEY(S) FOR PARENT(S) Each parent, guardian, and custodian, may have his or her own attorney. "If the interests of two or more parties conflict, separate counsel shall be provided for each of them.,,38 Who is this person? In the majority of Georgia jurisdictions, attorneys who represent parents are appointed from lists of attorneys willing and qualified to take such appointments. More and more juvenile courts are requiring that attorneys provide certification of training in juvenile court proceedings as a qualification for appointment to this list. Attorneys should check with individual courts on this matter. In some counties the juvenile court may enter into a contract with a firm or individual attorneys to represent all parents in deprivation proceedings. Less frequently, parents may be represented by public defenders. What is his or her purpose in a juvenile court case? The first rule for an attorney in juvenile court is to know who the attorney represents. This sounds basic, but there are many misconceptions about the purpose ofjuvenile court and about the parties in juvenile court. An attorney for a parent is bound to zealously advocate for the rights and interests of the parent. Some attorneys have difficulty with this role because they believe the purpose of juvenile court is to protect children and that all attorneys are in court to serve that 36 a.C.G.A. l5-ll-30(a). 37 Skipper v. Smith, 239 Ga. 854 (1977) (mother retains the authority to place her child up for adoption with the child's grandparents prior to a hearing on the termination of her parental rights). 38 a.e.G.A. l5-ll-30(b). Parent Attorney Court Procedures Reference Manual Section III / Page 29 ultimate purpose. It may help to remember that the juvenile court is a forum in the adversarial system. "In the final analysis, if you work to ensure the integrity of the judicial process, you ultimately safeguard the interests of the child.,,39 No matter how casual the proceedings may seem, or how easy it may appear to ''work things out" for the best interests of the child, the ultimate sanction the parent faces is the permanent dissolution of his or her parental relationship with his or her child. The parent may also face criminal charges with severe penalties. Even a "simple case" of neglect may lead to serious consequences which cannot be predicted. What rights or duties does this person have with respect to the proceedings? A list of duties of the attorney can be found at pages 22-24. With some modification this list is applicable to all attorneys representing clients in juvenile court. Attorneys representing parents should be aware of the potential for conflicts when representing parents. Sometimes, in what appears to be a "simple case," one attorney is asked to represent both parents in a deprivation proceeding. Keep in mind that even when the parents appear to be a unit (i.e. both named in a single petition, both have same "story"), they are separate individuals being named as individual respondents and although the case may appear to be "simple," you are, in effect, agreeing to represent co-defendants. Before accepting representation of two individuals review the Code of Professional Responsibility for the Georgia State Bar, especially those discussing "Interests of Multiple Clients." Also see IJA-ABA Juvenile Justice Standards Relating to Counsel for Private Parties, 3.2 Adversity of interests. G. DEPARTMENT OF FAMILY CHILDREN SERVICES CASEWORKERS Who is this person? The DFCS caseworker, in consultation with a supervisor, is the person who makes the determination whether to file a deprivation petition. The allegations are reviewed by DFCS' attorney to ensure that they are legally 39 Lisa A. Granik, Representing Parents in Child Protection Cases, page 4, ABA 1988. Parent Attorney Court Procedures Reference Manual Section III / Page 30 sufficient to support a claim. The DFCS worker involved in the case may be a Child Protective Services (CPS) worker who made the initial home visit, s/he may be the placement worker who was assigned to the case after the child was removed from the home, or s/he may be a supervisor. Several different case workers may be involved in a single deprivation case because the expertise of each is necessary at different proceedings. For example, the CPS worker who assessed the conditions in the home and made the decision that they were unsafe for the child is the appropriate worker to testify at the 72-hour hearing to determine whether the child should remain out of the home until the full hearing. However, the CPS worker may be unnecessary in the review process because that worker may not have had contact with the child after the initial emergency placement. Sometimes the appropriate DFCS worker cannot be in court at the time of the hearing and another worker is sent instead so that a DFCS representative is available. If this worker does not have personal knowledge of the child or the family, this worker may not be able to testify regarding the case. What is his or her purpose in ajuvenile court case? DFCS workers are involved in juvenile court proceedings because they are state agents charged with protecting children who are abused or neglected. The DFCS worker's goal is to find a safe, permanent placement for the child as quickly as possible. This goal is not as clear as it sounds, however, because to achieve this goal, DFCS must be making reasonable efforts to provide services to the family, and, at the same time, must be "collecting evidence" to support termination of parental rights, should that become necessary. What rights or duties does this person have with respect to the proceedings? The rights and duties of DFCS workers with regard to court proceedings are similar to those of other parties. The following information regarding the duties ofDFCS workers in general may be helpful to attorneys representing parents or children. Parent Attorney Court Procedures Reference Manual Section III I Page 31 The role ofDFCS workers as a whole is currently in flux as Temporary Assistance to Needy Families (TANF) policies are being implemented. TANF is Georgia's plan for implementing the provisions of the Personal Responsibility and Work Opportunity Act of 1996.40 There will probably be less change in the roles of workers assigned to deprivation cases than in other areas, but the responsibilities of these workers will change as the services they are able to provide change based on TANF. Child Protective Services (CPS) is the unit charged with investigating allegations of child abuse and neglect. When a report is made to DFCS, a CPS worker is assigned to investigate the allegations. The CPS worker may decide whether the allegation is confirmed, unconfmned, or unfounded. The CPS worker may visit the home directly or may visit the child(ren) at school. In most counties, if the decision is made to take the child into protective custody, the case is assigned to a placement worker. This worker is responsible for developing a 30day case plan with the parent(s). The role of this caseworker is becoming more critical because decisions regarding the permanent placement of the child are being made more quickly. O.C.G.A. 15-11-41 now authorizes DFCS to submit a nonreunification plan at the start of a deprivation case. DFCS workers must be higWy skilled to make a decision this serious and this permanent so early in the process. The placement worker is most likely the person who will develop the case plan and will work with the family to provide needed services to the parent (s) and child(ren). This worker will participate in periodic reviews of the case and, with the assistance of a supervisor, will ultimately make the decision whether the parents' rights should be terminated. DFCS is currently modifying the duties of caseworkers. Structured decision making, a method by which DFCS workers will determine what services can and should be provided to a family, may be implemented in the future. Courts and attorneys need to be aware of internal 40 P.L. 104-193. Parent Attorney Court Procedures Reference Manual Section III / Page 32 DFCS policies because those policies establish the parameters ofDFCS services and of workers' duties. For example, it would not be a wise use of time for an attorney for a parent to develop a case plan to present to DFCS that requires the provision of certain services if DFCS policy no longer allows or requires such services to be provided. It is to an attorney's advantage to know the roles and responsibilities of DFCS workers. Knowing which worker to ask for what information will increase the efficiency of the attorney and the provision of services or answers to the client. Knowing which workers are the keepers of which information also assists with trial preparation. A CPS worker's knowledge will rarely extend beyond the time the child was placed in foster care, and since that worker made the initial determination that the child was at risk, that worker may not provide any information that is favorable to immediate reunification of the child with the parents. A supervisor may be called as a witness when the attorney is trying to show that a particular worker acted outside DFCS protocol, or to establish the outer parameters of what may be considered "reasonable" in terms of provision of services in a given county. Attorneys should also be aware that county DFCS offices may have a high turnover rate among caseworkers, or that an understaffed office may not assign alternate workers to cover caseloads of workers who are out of the office on vacation, sick leave, or conferences. This means that an attorney should find out the extent of a caseworker's involvement in a case before questioning that caseworker on the stand. H. SPECIAL ASSISTANT ATTORNEY GENERAL (SAAG) Who is this person? A SAAG is an attorney in private practice who has been appointed by the Office of the Attorney General to represent a state agency (DFCS) injuvenile court matters. In most juvenile courts there are only one or two SAAGs, although in some larger counties there may be more. Parent Attorney Court Procedures Reference Manual Section III / Page 33 What is his or her purpose in ajuvenile court case? The SAAG is responsible for representing the interests of the state in civil child abuse and neglect proceedings. The SAAG ultimately answers to the Office of the Attorney General, but represents the county DFCS office. What rights or duties does this person have with respect to the proceedings? Much of the list on pages 22-24 applies to the SAAG as well, recognizing that the SAAG does not just represent an individual client, the SAAG represer's a state agency. In addition to the duties listed above, the SAAG is responsible for working closely with DFCS to ensure that all DFCS work is properly documented and to ensure that cases are moving in a timely manner toward a permanent disposition. The SAAG works with individual DFCS workers to prepare them for court when necessary and assists county DFCS offices with implementing state laws and DHR-DFCS policies. The SAAG is responsible for timely filings of all petitions and motions for DFCS and for preparing and presenting cases in court. In most counties the SAAG does not participate in 72-hour hearings, in case planning sessions, or in periodic reviews. There does not appear to be a prohibition on the SAAG's involvement in these proceedings, however. I. OTHER FAMILY MEMBERSI PRIVATE PETITIONERS Who is this person? O.e.G.A. 15-11-24 allows any person "who has knowledge ofthe facts alleged or is informed and believes they are true" to file a deprivation petition. In some counties when a private citizen files a deprivation petition the court will not allow the case to proceed without DFCS involvement. Once DFCS becomes involved they often become the petitioner. In other counties, private deprivations, (often called "granny petitions" because they are often filed by grandmothers who are already caring for the children) are regular occurrences. Parent Attorney Court Procedures Reference Manual Section III / Page 34 Sometimes a relative or family friend will file a petition when DFCS has already done so because the relative or friend wishes to obtain custody of the child. In these situations the court often dismisses the private petition, proceeds on the DFCS petition (probably on the theory that the "interest" of the petition is the protection of the child and this interest is protected by DFCS), and allows the friend or relative to participate as a party. What is his or her pUipose in ajuvenile court case? There are as many purposes behind the filing of private deprivations as there are individuals, but a common reason is that a relative is already caring for a child and wants to provide some stability to that arrangement (i.e. prevent mother from taking the child) or needs to have legal authority to enroll the child in school. Courts are r~luctant to appoint counsel for relatives filing private petitions, but under Georgia law all indigent parties are entitled to court-appointed counsel at all stages ofproceedings.41 The law does not limit the right to counsel to those proceedings in which DFCS is a party. One type of private petition is not allowed in juvenile court. The Court of Appeals has held that deprivation proceedings between parents are prima facie custody matters which must be brought in the superior COurt.42 In many instances private deprivation petitions appear to be a means of ensuring stability for a child without having to utilize DFCS resources. The court's jurisdiction over these cases, however, is limited to 2 years, and if no further action is taken there is not "permanency" in the arrangement.43 If a private petitioner wishes to maintain custody beyond the initial two year period, that person must file a Motion to Extend Custody. A hearing must be held on the 41 a.C.G.A. 15-11-30 42In re W.W.W., 213 Ga. app. 732 (1994) 43 a.e.G.A. 15-11-41(m). Parent Attorney Court Procedures Reference Manual Section III / Page 35 motion prior to the expiration of the initial court order. The hearing is handled in the same manner regardless of whether DFCS or another person is the petitioner (see description ofMTE at pp. 100-103). In most courts there is no trigger to remind the relative that the order will expire so these orders often do expire without further action. By law, when the order expires, the parent once again has legal custody of the child because the juvenile court no longer has jurisdiction over the case. One concern about private petitions is that court oversight is limited. When custody is given to DFCS the law requires periodic reviews of the case and limits the order to one year. These requirements promote actions to locate a permanent placement for the child. The law does not appear to require judicial review of deprivation cases in which DFCS is not involved, although the judge could order such reviews. Similarly, a home study is required before a child is placed by DFCS, but a similar study is not required in private deprivations. Some courts will not place a child without a study though, so ifDFCS is not involved in a case the court has to have someone conduct the home study. Readers representing petitioners in private deprivation actions should note that the suggestions in this manual are generally designed for defendants and not petitioners. What rights or duties does this person have with respect to the proceedings? The rights of a private party filing a deprivation petition are the same as those of other parties, as discussed above. J. OTHER PEOPLE Brief mention should be made of other participants in the process: 1) court clerk-responsible for keeping the court records and often the calendar; in larger courts the clerk provides a docket for calendar call 2) judge's secretary-if the clerk does not schedule hearings,. the secretary probably does Parent Attorney Court Procedures Reference Manual Section III / Page 36 3) citizen review panel-specially trained citizen volunteers who conduct periodic reviews of the cases of children in foster care in lieu of the judge. They present a report to the judge after each review with a summary of findings and recommendations. 4) Court services workers - court personnel who may handle intake when a child is removed from the home or who may act as court investigators or court caseworkers in deprivation cases (rarely used in deprivation matters). Parent Attorney Court Procedures Reference Manual Section III / Page 37 IDI:l:v::::o~::::::~::::::::h::t:~:e:e many differences between advocacy in a superior court setting and advocacy in a juvenile court setting, not the least of which is the fact that the central figure is a child. Subsequent chapters will discuss each proceeding which may be encountered in juvenile court. Information in this chapter is applicable to each of the subsequent chapters. The following "tools" ofjuvenile court practice will be mentioned or discussed: A. Official Code of Georgia Annotated B. Uniform Rules of Juvenile Court C. Client Interviews D. Discovery E. Evidence A. OFFICIAL CODE OF GEORGIA ANNOTATED (O.C.G.A.) The first source of information for every attorney is Title 15 of the Georgia Code. This area of the law is being revised each year, so the statutes should be reviewed every time an attorney works on a juvenile court case. The other three primary Titles attorneys will use are Title 19, "Domestic Relations," Title 16, "Crimes and Offenses," and Title 49, "Social Services." Parent Attorney Court Procedures Reference Manual Section V / Page 48 B. UNIFORM RULES OF JUVENILE COURT (U.R.J.C.) The second source of information is the Uniform Rules of Juvenile Court; these rules address practice and procedure in juvenile court and contain samples of most of the forms and documents used in juvenile court proceedings. C. CLIENT INTERVIEWS The next source of information is the client. What follows is a list of information to obtain from the client that will be helpful in developing a case strategy. The lists below are to be used as a supplement to the list of attorney's duties on pages 22-24. If your client is a child, the following information will be helpful to know: 1) Are the child's physical and emotional needs being met (i.e. how is the child dealing with the situation)? 2) What the child wants to happen 3) What the child's perception of the events is 4) Whether the child has any religious or cultural needs that are not being met in the current placement 5) Whether there are any relatives or friends who could care for the child (get as much information on relatives and putative fathers as possible) 6) What the living situation in the parent's home is, including the size of the house, who lives there, who comes around on a regular basis 7) Who the primary caretaker (i.e. responsible for children, helping with homework, housekeeping, grocery shopping, etc.) in the home is (it may be the child) 8) The parents' past and present marital (and other relationships) status 9) Information on other children of both parents; if the child is older, whether s/he has children Parent Attorney Court Procedures Reference Manual Section V / Page 49 10) The family's financial situation (what the sources of income are and in whose name they are obtained {Le. TANF or SSI checks may come to the child and not the parent}) 11) The parents' employment record (present and past); this may also apply to older children 12) What transportation is available for the family 13) The child's educational situation, including what school and grade the child is in, what arrangements have been made or need to be made if the child has had to change schools because of placement, whether the child has any special educational needs, including any possible disabilities that have not been documented 14) The parents' educational background 15) The child's physical and mental health, including medical history, immediate needs, etc. 16) What involvement, if any, any child welfare agencies have had with the parent or child 17) what other court contacts the child has had (Le. delinquency hearings) Keep in mind that all interactions with a child-client must be age-appropriate. There are many excellent sources of information on interviewing children, some of which are identified in the resource section of this manual, Also remember that the above information may not be available from the child directly. If your client is a parent, the following information will be helpful to know: 1) What the parent wants to happen 2) What the parent's perception of the events is 3) Accepting that the child will remain out of the home at least temporarily, whether the client has any preference about placement of the child (i.e. based on medical, religious, cultural, or other needs) Parent Attorney Court Procedures Reference Manual Section V I Page 50 4) Whether there are any relatives or friends who could care for the child (get as much information on relatives and putative fathers as possible) 5) What the living situation in the parent's home is, including the size of the house, who lives there, who comes around on a regular basis 6) Who the primary caretaker (i.e. responsible for children, helping with homework, housekeeping, grocery shopping, etc.) in the home IS 7) The parents' past and present marital (and other relationships) status 8) Information on other children of both parents 9) The family's financial situation (what are the sources of income and in whose name are they obtained (i.e., TANF or SSI checks may come to the child and not the parent) 10) The parents' employment record (present and past) and potential for employment 11) What transportation is available for the family 12) The parents' educational background 13) The child's educational situation, including what school and grade the child is in, what special educational needs the child may have, What the parent's involvement in the child's education has been, including what contacts the parent has had with any school personnel (potential witnesses) 14) The parents' physical and mental health, including medical history, psychiatric treatment, immediate needs, etc. 15) The child's physical and mental health, including medical history, immediate needs, etc. 16) What involvement, if any, any child welfare agencies have had with the parent or child Parent Attorney Court Procedures Reference Manual Section V / Page 51 17) What services the parent believes would be helpful. 18) What changes in the parent's life the parent feels are necessary and what changes the parent is willing to make 19) What services are currently being provided 20) What progress the parents have made toward remedying the circumstances resulting in allegations of deprivation 21) Who made the decision to file a petition 22) The basis for DFCS involvement, including the specific harm resulting in DFCS involvement 23) What prior contacts both parents have had with any of the courts or law enforcement. The information listed above will provide the basis for developing a theory of the case and a "trial" strategy. Of course, one of the skills of an advocate is evaluating the credibility and relevance of information provided. D. DISCOVERY Title 15 of the Georgia Code is silent on the use of discovery in juvenile court matters. The Uniform Rules of Juvenile Court, however, state that discovery may be allowed in all cases where deprivation is alleged.69 While the Georgia Supreme Court has held that the provisions of the Georgia Civil Practice Act are not applicable to the juvenile court, U.RJ.C. 7.1 states that any discovery in juvenile court shall be made in conformance with Article V of the Civil Practice Act, O.C.G.A. 9-11-26 through 9-11-37.70 All discovery in deprivation cases is conducted at the discretion of the judge, and in conformance with strict time limits that can be modified by the judge. Parties wishing to conduct discovery must submit to the court a written request to proceed with formal discovery. The request must state in particularity 69 V.R.le. 7.1. 70 English v. Milby, 233 Ga. 7 (1974). Parent Attorney Court Procedures Reference Manual Section V / Page 52 the type of discovery requested and shall include a Rule Nisi order stating the time and place of a hearing on the motion for discovery.71 The time limits for discovery are stated below. If the child has been removed from the home: 1) Any request for discovery must be filed within 48 hours of the filing of the petition. 2) Written motion and notice of the hearing must be served no later than 3 days before the hearing (excluding weekends and holidays). 3) Any permitted discovery must be completed within 15 days of the date of the order permitting such discovery. 4) A request for discovery extends the time limits for adjudication in 15-11-26(a). The adjudicatory hearing shall be set no later than 7 days after discovery ends, excluding weekends and holidays. If the child remains in the home: 1) Any request for discovery must be filed within 15 days of the filing of the petition. 2) Any permitted discovery must be completed within 30 days of the date of the order permitting such discovery. All tools of discovery are permissible in juvenile court (at the judge's discretion), including depositions, interrogatories, and subpoenas duces tecum. Attorneys practicing in juvenile court must continuously balance zealous advocacy using all tools available in an adversarial system with the reality of a close-knit system that is designed to be less litigious and more cooperative. In most juvenile courts one or two judges hear all juvenile court matters and there are a limited number of "opposing parties" (DFCS workers and their SAAGs). Attorneys must make practical decisions about which advocacy tools and 71 U.R.J.C. 7.2. Parent Attorney Court Procedures Reference Manual Section V / Page 53 techniques will realistically work within their juvenile court system. Participants in a deprivation case will usually be interacting for one or more years, and every decision which escalates the adversariness of the proceedings potentially decreases the level of cooperation among the participants. One discovery tool that is not often used but is useful to know about, especially in cases involving government agencies, is the Georgia Open Records Act.72 The usefulness of this tool is limited in the deprivation context because of the short time frames. When time is available, it can be used when information is needed from DFCS and responses to less formal requests are not forthcoming. Sometimes information which the county DFCS office may be objecting to produce is actually available from the state DHR/DFCS office ifthe appropriate request is submitted. E. EVIDENCE A common misconception about juvenile court is that formal rules of evidence do not apply. Formal rules of evidence are applicable, but not to all proceedings. Because the delineation between proceedings such as the adjudicatory hearing and the dispositional hearing is often not distinct, it may appear that formal rules of evidence are not applied. Formal rules of evidence apply to the formal fact-finding proceedings but at other proceedings (i.e. 72-hour hearing, disposition, periodic reviews) the rules of evidence are relaxed and hearsay is allowed. Even when hearsay is not allowed, allowing inadmissible evidence is not necessarily prejudicial. The error may be considered harmless, depending on the entirety of the record. If other evidence supports the court's finding of deprivation the error will not be grounds for reversal.73 72 O.C.G.A. 50-18-70 et. seq.; and see Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987). 73 See Moss v. Moss, 135 Ga. App. 401 (1975) (when judge is trier of fact, judge is presumed to only consider admissible evidence in making determinations); In re IT.S., et. ai, 185 Ga. App. 772 (1988) (evidence other than inadmissable hearsay statements must support fmdings). Parent Attorney Court Procedures Reference Manual Section V / Page 54 A full discussion of evidence in juvenile court proceedings is beyond the scope of this manual. Attorneys are directed to the resource material section for more information. A primary source of information on this subject as it applies to Georgia is McGough's Georgia Juvenile Practice and Procedure.74 This book contains a fairly detailed discussion of evidence in Georgia juvenile courts. One piece of evidence that is a vital component to every deprivation case and the subject of continuing controversy regarding its confidentiality is the DFCS records. The Child Abuse and Deprivation Records Act prohibits access to records concerning reports of child abuse and neglect except by court order.75 DFCS interprets this code section quite broadly, asserting that all DFCS information, including case files, memos, etc., is confidential. The Court of Appeals, however, has said that a juvenile court may, in its discretion, release relevant information from DFCS records.76 In Ray v. D.H.R., the Court held that denial of access to DFCS files interfered with the parents' constitutional right to cross-examination. In a later decision the Court of Appeals again found that denying parents access to DFCS files interferes with parent's fundamental rights and that a judge should remove privileged materials from files after an in camera review rather than completely denying access.77 Information from DFCS files such as case narratives, summary reports, court records, service plans, goals, and objectives, can be obtained directly from DFCS. A request must be filed directly with DFCS and they have ten days upon receipt of the request to provide copies of the documents to the parents. DFCS 74 Ferreira, McGough's Ga. Juvenile Practice and Procedure (2d ed.). 75 O.C.G.A. 49-5-40 et. seq. 76 Ray v. Department of Human Resources, 155 Ga. App. 81, 270 S.E.2d 303 (1980). 77 In re M.M.A., 166 Ga App. 620, 305 S.E.2d 139 (1983). Parent Attorney Court Procedures Reference Manual Section V / Page 55 may impose a $.25 per page copying fee for certain documents.78 IfDFCS claims that files are confidential, the judge can be asked to review the files and only release information pertinent to the case. The judge has wide latitude in determining what is relevant. Remember that the judge who is deciding the case is probably the one who will be determining what to release from the DFCS records, and in so doing, will review the complete DFCS file prior to the adjudication. Attorneys must balance the critical nature of the information they are seeking with the fact that the judge may see all DFCS information on the child during the in camera review. Another piece of evidence often used in deprivation proceedings is a court-ordered physical or mental examination of the parent or the child. O.C.G.A. 15-11-32(b) provides for the court to order a physical or mental evaluation ofa child during the pendency of any proceeding and O.C.G.A. 15-11-87 allows the court to order a physical or mental evaluation of any parent, step-parent, guardian, or child involved in a proceeding under Article 2 of the Juvenile Code. Article 2 is limited to proceedings to terminate parental rights so it is appears that while a child can be evaluated at any time after the filing of a deprivation petition, a parent can only be ordered to submit to an evaluation when a termination of parental rights petition has been filed. 79 When a child is being evaluated upon the request of petitioners, the child's attorney and the parent's attorney should take steps to ensure that the examiner is qualified and independent. One way to protect the "independence" of the evaluation is to request a court order restricting all parties from having contact 78 Vicky o. Kimbrell, "Juvenile Court Deprivation Proceedings: Representing the Parent," pp. 14-15, reproduced in GIDC training materials. 79 Kimbrell at 16-17. Parent Attorney Court Procedures Reference Manual Section V / Page 56 with the examiner other than what is necessary to arrange the evaluation. This would include prohibiting any parties from providing the examiner with a "background summary" containing potentially prejudicial information about the family or parents.80 Attorneys should obtain copies of evaluations and reports at the earliest possible opportunity so strategic decisions regarding arranging for a private evaluation or deposing the examiner can be made. While funds for experts may not be provided to indigent parents, there is no prohibition on obtaining a private evaluation separate from the court-ordered evaluation. A decision regarding whether the expert's report or testimony will be used in the proceedings can be made after the evaluation is completed. If an attorney submits a request to the court for funds for an expert (of any type), the request should contain recommendations for suggested experts. The use of experts in relation to juvenile court proceedings is an area attorneys should be familiar with, but which is beyond the scope of this manual. Many deprivation proceedings hinge on the testimony of a psychiatrist or doctor, so the art of examining, cross-examing, and even deposing such witnesses should be studied. See the resource section for more information. In the dispositional hearing held after a child is adjudicated deprived, reports and studies containing hearsay are considered by the court. This is permitted under D.C.G.A. 15-11-32(a). If the two hearings are held within one proceeding, attorneys can request that the judge clearly distinguish when the adjudicatory phase has ended to clarify when social studies and other reports are admissible. Attorneys are advised to review law and advocacy relating to child witnesses, including the child hearsay exception which permits a witness to testify "as to a statement made to the witness by a child under the age of 14 describing an act of sexual contact or physical abuse performed on the child or in the child's presence if the child is available to testify and the court finds the circumstances of 80 Kimbrell at 16. Parent Attorney Court Procedures Reference Manual Section V / Page 57 the statement provide sufficient indicia ofreliability."81 All children who are the subject of deprivation actions are deemed competent to testify in COurt.82 All other child witnesses must meet the requirements of competency.83 Please refer to Section VII in the Law Guardian Manual and the resource material section at the end of this manual for more information on child witnesses. 81 a.C.G.A. 24-3-16. 82 a.C.G.A. 24-9-5(b). 83 a.C.G.A. 24-9-5. Parent Attorney Court Procedures Reference Manual Section V / Page 58 !'. .._ . . . bi~1 chapter discusses each ofthe primary proceedings attorneys ..Ii> wIll encounter In Juverule court. The dIScuSSIon of each type of proceeding will describe: The type of proceeding, including the burden of proof When the proceeding will occur Who is usually involved in the proceeding What the purpose of the proceeding is and what will occur during the proceeding Suggestions for effective advocacy In each type of proceeding The following provisions apply to all juvenile court hearings. Juvenile court has historically been a closed court, and as such, there is no jury and the public is excluded from the proceedings. The law is evolving toward a more open process so the code should be consulted when this issues arises. One settled fact is that the judge has wide discretion regarding who may be present in the courtroom. Deprivation cases are almost always closed, although dispositional hearings are technically open.84 A party to a deprivation proceeding may request the exclusion of all 84 O.C.G.A. 15-11-28(c.l(5). Parent Attorney Court Procedures Reference Manual Section VI / Page 59 unnecessary persons from the courtroom.85 Witnesses may be sequestered upon request. All proceedings shall be recorded by appropriate means (stenographic, electronic, mechanical, or other) unless the recordation is waived by the juvenile and his parent, guardian, or attorney.86 Waiver of recordation is not recommended, as it greatly affects the ability to effectively appeal a decision. The time limits on holding ~earings may be waived. The court has discretion tn continue a hearing for a reasonable time for good cause shown. If the granting of a continuance extends the date of the hearing beyond the statutory limits ofO.C.G.A. 15-11-26(a), the court shall enter a written order stating the specific reason for the continuance and in whose custody the child is placed.87 A. 72-HOUR HEARING (O.C.G.A. 15-11-21) The type ofproceeding, including the burden ofproof The 72-hour hearing is first court hearing in a deprivation case in which the child has been removed from the home. It is also called the emergency shelter care hearing, probable cause hearing, or informal detention hearing. Rules of evidence are relaxed and hearsay is admissible. When the proceeding will occur The 72-hour hearing must be held within 72 hours after placement in shelter care.88 If the 72-hour limit expires on Saturday, Sunday, or a legal holiday, the hearing must be held the following business day.89 Requirements of this code section may be waived, but failure to adhere to the time limits of O.C.G.A. 15-11-21 85 a.C.G.A. 15-11-28(a). 86 a.e.G.A. 15-11-28(b). 87 U.R.J.C. 11.3. 88When the child is initially removed from the home. The court (Judge or designated intake officer) must approve the removal. Authorization is usually given over the phone and then formalized in a form order called an emergency shelter care order. 89 a.e.G.A. 15-11-21; U.R.J.e. 6.8. Parent Attorney Court Procedures Reference Manual Section VI / Page 60 without a waiver shall result in dismissal without prejudice.90 "Without prejudice" means that the department may refile a deprivation petition without delay if it has reason to believe that the child is abused or neglected. Technically the dismissal of a petition would require returning a child to the custody of hislher parent(s). However, given the court's authority to issue preliminary protective custody orders based on allegations contained in a petition, there seems to be nothing to prevent a juvenile court judge fr('m issuing a "pick up" order to immediately detain the child, should the court believe the situation warrants such action. Realistically, movingto dismiss a petition based on failure to adhere to the statutory time limits only results in further delays in the case and it is usually in all parties' best interest to move the case to resolution as quickly as possible. However, if DFCS has a particularly weak case or if the parents have greatly improved their situation since the petition was filed, DFCS may not refile the petition if it is dismissed on technical grounds. The fact that a petition could be dismissed also may be used as leverage in reaching an agreement on the matter. Another reason attorneys may want to move for dismissal is to "reset" the clock in a case. Court orders date from the time the child is initially taken from the home.91 With the current atmosphere toward permanent placements as soon as possible, it will become more common for DFCS to only provide reunification services for 12 months, and then file a non-reunification plan.92 Since custody technically reverts back to the parent when a petition is dismissed, even if the child is kept out of the home on an emergency "pick-up" order, all times for the new petition should date from the pick-up order rather than from the earlier removal. This issue has not been brought before the Court of Appeals so it is unclear how case law will interpret these actions. 90 Irvin v. DHR, 159 Ga. App. 101,282 S.E.2d 664 (1981); Sanchez v. Walker County DFCS, 140 Ga. App. 175,230 S.E.2d 139 (1976). 91 The Federal Adoption and Safe Families Act of 1997 now calculates time in foster care from" the earliest of the date of the first judicial fmding that the child [is deprived], or the date 60 days after the date on which the child is removed from the home."(P.L. 105-89). 92 See O.e.G.A. 15-11-41. Parent Attorney Court Procedures Reference Manual Section VI / Page 61 Most juvenile courts have interpreted 72-hour hearings as the equivalent of a "probable cause" hearing which uses a standard ofproofknown as "preponderance of the evidence.,>93 The petitioner must show through evidence that it is "more likely than not" that the child is deprived. This is a much lower burden of proof than will be required at the formal adjudicatory hearing (trial) on the merits of the deprivation petition. There is not consensus in Georgia on the proper standard of proof in the 72hour hearing since the code is silent on the issue. The Georgia Juvenile Court Benchbook notes that "the burden is on the petitioner to prove the need for detention; there is no indication from the code that a 'probable cause' standard is all that is necessary.,,94 Who is usually involved in the proceeding In reality the only people present at most 72-hour hearings are the judge, the caseworker bringing the deprivation action, and the parents. Recommendations for "best practice" techniques advise that all parties and their attorneys participate in . the initial proceeding so that cases that can be worked out or diverted can be dismissed without keeping the child out of the home any longer than is necessary. The GUIDELINES recommend that the following persons should ALWAYS be present at the 72-hour hearing:95 1) judge or judicial officer 2) parents whose rights have not been terminated, including putative fathers 3) relatives with legal standing or other custodial adults96 93 Kipling Louise McVay, Deprivation and Tennination, Children in Court: A Systems Approach (1989), pp. 14-15. 94 Georgia Juvenile Court Benchbook, CJCJ, Ch. VI, p. 3. 95A list of recommended participants is included for each hearing. These lists are based on a model and are intended as suggested considerations to be balanced with real-world constraints on resources, time, and money. 96 The GUIDELINES recommend the presence of all parents and adult full-time caretakers because even if the child cannot be returned to the home from which he or she was taken, the child may be placed with someone other than DFCS. Counsel for all parties is recommended because this hearing is a critical event that is strategically Parent Attorney Court Procedures Reference Manual Section VI / Page 62 4) assigned caseworker 5) agency attorney 6) attorney for parents (separate attorneys if conflict warrants) 7) legal advocate for the child and/or GAL/CASA 8) court reporter or suitable technology 9) security personnel GUIDELINES, p. 33. In some counties caseworkers on other cases, court personnel, witnesses for other cases, etc., remain in the courtroom after calendar call. At the 72-hour hearing and in all proceedings, attorneys should remember that any party can request exclusion of unnecessary persons such as these. What the purpose ofthe proceeding is and what will occur during the proceeding The purpose of the 72-hour hearing is twofold: first, to determine whether a child who has been removed from the home shall be released to his or her parents or detained pending further court proceedings; and second, to determine whether reasonable grounds exist to believe that the allegations in the complaint or petition are true. The statutory grounds for detention are: 1) to protect the child, 2) to prevent the child from being removed from the jurisdiction, or 3) to provide for the child's care or supervision ~ecause no parent, guardian or custodian is able to do until the full hearing can be held.97 The following critical questions need to be addressed at this hearing: 1) Have all parties been advised of their rights? 2) Has a GAL or CASA been appointed for the child? 3) Has an attorney been retained by or appointed for the parents? important to subsequent court actions. GUIDELINES, pp.33-34. 97 O.e.G.A. 15-11-18. Parent Attorney Court Procedures Reference Manual Section VI / Page 63 4) Should the child be returned home immediately, placed with a guardian or relative, or kept in foster care until the adjudication? 5) What services would allow the child to remain safely at home? 6) Will the parties voluntarily agree to participate in such services? 7) Has DFCS made reasonable efforts to avoid removing the child from the home? 8) Are responsible relatives or other responsible adults available as placement options or as support for the family? 9) Is the placement proposed by the agency the least disruptive and most family-like setting that meets the needs of the child? 10) Has a recommendation been made for non-reunification? 11) Are restraining orders, or orders expelling an allegedly abusive parent from the home appropriate?98 12) Are orders needed for examinations, evaluations, or immediate services? 13) What are the terms and conditions for parental and sibling visitation? 14) What consideration has been given to financial support ofthe child? 15) Should the court authorize the filing of a petition, or should the case be continued for a period oftime to allow DFCS to work with the family before deciding to commence a full deprivation proceeding? 16) If a petition has been filed has a copy been served to each party? 17) Has a date been set for the adjudicatory hearing and has notice been given? GUIDELINES, P. 37. 98 a.C.G.A. 15-11-57 gives the court authority to issues protective orders pending or after disposition in a case. Given the specific language "if an order of disposition of a child has been or is about to be made in a proceeding under this article... ," there is currently discussion among attorneys and judges in Georgia regarding whether such orders can be issued at any time before adjudication. Parent Attorney Court Procedures Reference Manual Section VI / Page 64 The 72-hour hearing should end with a decision regarding the temporary placement of the child and a recommendation regarding the filing of a petition.99 Suggestions for effective advocacy The 72-hour hearing should be treated as a critical stage in the proceedings, and as such, attorneys should fully participate if possible. It is common for attorneys to be appointed to cases after this hearing but parents and children have a right to representation at the hearing. This hearing may be continued for appointment of counsel; this increases the length of time a child spends out of the home, however. The initial hearing can be a useful discovery tool as it provides responding parties with information about the evidence supporting the allegations against them. B. PRE-TRIAL CONFERENCE The type ofproceeding, including the burden ofproof The pre-trial conference in juvenile court is similar to pre-trial conferences in superior court. It is not a common proceeding in many courts, but it is used regularly in others; it can be especially useful prior to a contested termination of parental rights. The pre-trial conference may address issues such as evidence to be presented, issues which have been resolved, and witnesses who may need to be subpoenaed. If the attorneys are having disputes about any evidentiary matters or time frames, these may be resolved through a pre-trial conference. When the proceeding will occur A pre-trial conference may be held upon the motion of any party or 0n the order of the court at a time compatible with the statutory time limits for related actions. Who is usually involved in the proceeding Participants in the pre-trial conference should include the attorneys for the parties. 100 Although the rule is silent on this matter, if a party is unrepresented or if 99 O.C.G.A. 15-11-23 provides that no petition should be filed without authorization of the court. This authorization is often included in the court order from the 72-hour hearing. 100 U.RJ.C. 7.5. Palent Attorney Court Procedures Reference Manual Section VI / Page 65 a child is represented by someone other than counsel, the unrepresented party and the child's representative would preswnably be included in the pre-trial conference. The petitioning caseworker is often included. What the purpose ofthe proceeding is and what will occur during the proceeding The pre-trial conference is an informal forwn for resolving issues prior to trial that provides for a more effective use of in-eourt time. Issues to be considered at the conference include: (a) the simplification of the issues (b) the necessity or desirability of amendments to the pleadings (c) the possibility of obtaining admissions of fact and of docwnents (d) the limitation of the nwnber of expert witnesses and (e) such other matters as may aid in the disposition of the action. 101 After the conference the court should issue an order reciting the actions taken at the conference, the agreements made by the parties, and the issues to be addressed at trial (limited to those not already disposed of). This order will then "control" the subsequent course of the action unless modified at the trial to prevent manifest injustice. 102 C. ADJUDICATORY HEARING (O.C.G.A. 15-11-28) The type ofproceeding, including the burden ofproof The adjudicatory hearing is the formal fact-finding proceeding at which a determination is made whether there is clear and convincing evidence to support a finding that a child is deprived. If there is not, the case should be dismissed (although DFCS may maintain an open CPS case on the family). If there is, a dispositional hearing must be held. m U.R.J.C. 7.5. 102 U.R.J.C. 7.5. Parent Attorney Court Procedures Reference Manual Section VI / Page 66 When the proceeding will occur If the child has been removed from the home the adjudicatory hearing must be set not later than ten days after the petition is filed. If the child is still in the home the adjudicatory hearing must be set within 60 days after the petition is filed. The hearing may be continued to a later date but there should be an order in the file stating the cause for the continuance and setting the ::~w hearing date. The time limits may be waived. 103 Who is usually involved in the proceeding The GUIDELINES recommend that the following persons should ALWAYS be present at the adjudicatory hearing: (a) judge or judicial officer (b) parents whose rights have not been terminated, including putative fathers (c) relatives with legal standing or other custodial adults (d) assigned caseworker (e) agency attorney (f) attorney for parents (separate attorneys if necessary due to potential conflict) (g) legal advocate for the child and/or GAL/CASA (h) court reporter or suitable technology (i) security personnel GUIDELINES, p. 48. The following people may also be needed at the adjudicatory hearing: 1) child (if appropriate based on age and circumstances) 2) siblings 3) extended family members 4) juvenile court staff 5) law enforcement officers 103 O.e.G.A. 15-11-26; U.R.J.e. 6.8. Parent Attorney Court Procedures Reference Manual Section VI / Page 67. 6) service providers 7) teachers 8) therapists 9) family friends 10) other witnesses What the purpose ofthe proceeding is and what wiil uccur during the proceeding The purpose ofthe adjudication is to determine whether the child is presp-ntly deprived. a.c.G.A. 15-11-2 describes the following bases for finding deprivation: (a) Child is without proper parental care, control, subsistence, education as required by law, or other care or c~atrol necessary for mental, physical or emotional health or morals (b) Child has been placed for adoption or care in violation of law (c) Abandonment (d) Child is without a parent, guardian, or custodian There is extensive case law regarding what circumstances constitute deprivation. The following general holdings can serve as a basis for building a case, but each issue will require independent research. A general rule is that deprivation must be based on present conditions and not on past circumstances or potential future deprivation. 104 However, evidence ofpast deprivation, especially if the circumstances are very similar to present conditions, can be considered sufficient for a finding of deprivation. Likewise, present deprivation of one child may allow for removal of siblings even without a showing of actual harm against the siblings, and past deprivation of a child may provide sufficient evidence of current deprivation of a sibling in a similar situation. 105 Each decision is fact specific and the judge has broad discretion in making such determinations. Attorneys representing parents who have 104 See e.g. Lewis v. Winzenreid, 263 Ga. 459 (1993). 105 For a broader view of the seemingly contradictory case law on this subject see Roberts v. State of Georgia, 141 Ga. app. 268, 1977, and Jones v. Department of Human Resources, 155 Ga. app. 371,1980 and cases citing those cases. Parent Attorney Court Procedures Reference Manual Section VI / Page 68. past histories with social service agencies should make every effort to distinguish the parent's current situation from any past circumstances resulting in intervention. "Deprivation" encompasses a wide range of actions and inactions, including emotional deprivation. 106 In some counties truancy charges against children are paired with deprivation proceedings alleging educational neglect. Failure to provide adequate medical care amounts to medical neglect, althvugh lhere are exceptions for religious beliefs regarding medical treatment. See pages 17 and 18 of the Law Guardian manual. Even with the breadth of situations amounting to deprivation, a child CANNOT be declared "deprived" simply because the child might be considered "better off' in a different environment. 107 The Court of Appeals has said, "while the state may not sit idly by as a child suffers an unconscionable hardship, neither may it blithely intercede simply because the child's lot is substandard. A mother's failure to live up to societal norms of productivity, morality, cleanliness, and responsibility does not rob her of her right to raise her own children...."108 In the case just cited, the record indicates that the trailer in which the mother was living was "on occasion unclean." In addition, the mother was heard using profanity, lived at several different addresses in a short period of time leading up to the hearing, had no reliable source of income, and had recently aided and abetted in the escape of a prisoner. In contrast, when the Court addressed this issue in Vermilyea v. Dep't. of Human Resources, the Court held that "unfortunate economic and personal circumstances" are not an excuse for parents to ignore the basic hygiene and medical needs of their children. 109 The Court stated, "even the poorest of the poor can be expected to maintain reasonably clean and hygienic living conditions." I10 106 Elrod v. DFCS, 136 Ga. App. 251 (1975). 107 See McGough's Juvenile Practice & Procedure (2nd ed.), 4-3. 108 R.C.N. v. State of Georgii!, 141 Ga. App. 490 (1977). 109 155 Ga. App. 746 (1980). 110 rd. at 750. Parent Attorney Court Procedures Reference Manual Section VI / Page 69 A final rule to note is that a finding ofdeprivation is based on the needs ofthe child without regard to any "fault" on the part of the parents in causing or failing to prevent the causes of the child's condition. III The key issues to be addressed at this hearing include: I) Which allegations of the petition have been proved or admitted, if any? 2) Whether there is a legal basis for continued court and agency intervention. 3) Whether reasonable efforts have been made to prevent the need for placement or to safely reunify the family. 4) Whether any mental or psychological evaluations need to be ordered. 5) Whether any social studies or home evaluations need to be ordered. 6) Whether any protective orders need to be issued. 7) Whether court assistance is needed in locating or notifying potential placements such as relatives and putative fathers. GUIDELINES, p. 49-50. After the conclusion ofthe adjudication hearing the court must issue a written order with findings of fact and conclusions of law which includes: 1) recitation of findings of fact which support its jurisdiction over subject matter and all necessary parties 2) specific findings of fact and conclusions of law in accordance with a.C.G.A. 9-11-52 dealing with findings by the court (the order cannot merely recite the statutory definition of deprivation and state that the court has found those conditions to exist) 3) determination whether reasonable efforts have been made to prevent or eliminate the need for placement. 4) sufficiently detailed information to justify DFCS and court choices for treatment and services III See Brown v. Fulton County DFCS, 136 Ga. App. 308 (1975). Parent Attorney Court Procedures Reference Manual Section VI / Page 70 5) a defensible basis for refusing to return a child home or terminating parental rights if parents fail to improve 6) easily understandable language so that all parties know the court's fmdings 7) the date and time of the next hearing, if appropriate. GUIDELINES, p. 52 The court usually moves directly from the adjudication into the disposition, sometimes without clearly delineating the change. A single order is issued encompassing both proceedings. An alternative to proceeding directly into the disposition that is ''used by many juvenile courts but not provided for in the Juvenile Code is to suspend the proceedings for a given period of time during which the child's caretaker is permitted to carry out the court's stated objectives."112 Suggestions for effective advocacy The adjudicatory hearing is the "trial" of juvenile court proceedings and attorneys should acknowledge the importance of this proceeding. A finding of deprivation can provide the underlying basis for a later decision to terminate parental rights. In fact, the Court of Appeals recently said, in a termination proceeding, "this deprivation order was extended in 1995 and has not been appealed by appellant. Therefore, appellant is bound by this fmding of deprivation and the first factor [present clear and convincing evidence of parental misconduct or inability] IS satisfied." 113 In preparing for the adjudication, many strategic decisions must be made in consultation with the client. For a complete discussion of trial strategies and preparation see Trial Manual for Defense Attorneys in Juvenile Court and other resources listed in the resource material section of this manual. 114 112 Georgia Juvenile Court Benchbook, CJCJ, Ch. VI., p. 4. 113 In re E.C., 225 Ga. App. 12,482 S.E.2d 522 (1997). 114 Randy Hertz, Martin Guggenheim, Anthony Amsterdam, Trial Manual for Defense Attorneys in Juvenile Court, ALI-ABA 1991. Parent Attorney Court Procedures Reference Manual Section VI / Page 71 One of the major decisions the parent needs to make is whether s/he is going to admit to the allegations. In the past, courts would readily accept a stipulation of deprivation from the parties which vaguely indicated the nature of the allegations but was far short of an admission. This was considered a win-win agreement because DFCS could ensure protection of the child and the parents could "save face" and avoid "admitting" to abusive behaviors. Over time the many problems with these stipulations have become evident and courts are becoming more reluctant to accept such agreements. One difficulty with stipulations is that they technically render the court order finding deprivation invalid. The final order must contain specific findings of fact to support the conclusion of law, but no specific factual findings can be made when the stipulation is vague. I15 Another problem is that stipulations limit DFCS' s ability to address the causes of deprivation. A case plan cannot require any actions unrelated to the cause of deprivation and the findings of the court. Consequently, DFCS may be unable to require services necessary to address the true problem. For example, if DFCS believes that sexual abuse occurred but the parent stipulated to neglect involving allegations of a sexual nature by the child, counseling and treatment for sexual abuse cannot be required of that parent. In situations such as this, it is not improbable that DFCS would file a motion for modification of the case plan, and at the modification hearing would present information to support the modification. In addition to the difficulties discussed above, more consideration is being given to the detrimental effects of stipulations upon children who disclose. Negative messages are conveyed to children when they are subjected to the drastic action of being taken out of the home without the court clearly validating their allegations. Attorneys should be mindful that the nature of stipulations and agreements in deprivation proceedings is changing, and parents who may have agreed to stipulations in the past must be informed about the changes. 115 a.e.G.A. 15-11-33(a). Parent Attorney Court Procedures Reference Manual Section VI / Page 72 One expert has said the following about the decision to contest allegations: "Deciding whether to contest depends on whether there is a reasonable chance of prevailing, and, if parents are likely to lose, whether the impact on the parents' relationship with the social welfare agency would be so damaging as to not be in the parents' interest to contest."116 One way to approach this discussion with the parents is to ask them their ultimate goal - i.e. to get the child back - and to help them realize that ultimately achieving that goal may be more important than winning the smaller battles against DFCS. Once the decision is made to contest, "do so vigorously." Prepare the case for trial; raise objections to inadmissible evidence, ensure all relevant issues are raised to be preserved for appeal, make the state prove every element of its case, ensure that the hearing is recorded, and request specific fmdings offact. ll7 With that just said, the following must also be pointed out. There is a common perception that juvenile court judges do not like attorneys who come into court with a "superior court" mentality and who approach cases in an adversarial manner. There is also a common understanding among child welfare specialists and social scientists that children and families benefit more from a cooperative approach to addressing problems than from the win-lose approach typical of an adversarial court system. Attorneys who demonstrate a knowledge of and respect for the distinct forum ofjuvenile court can advocate zealously in the manner just discussed without being abrasive. Successful juvenile court attorneys remain mindful of the differences between a bench trial and a jury trial and are always conscious of the ongoing nature of juvenile court cases. Remembering these points helps attorneys when assessing cases and counseling clients regarding their options and the likely outcome of each option. 116 G ran ik, p. 7 , 117 Gram'k, p. 7. Pa:ent Attorney Court Procedures Reference Manual Section VI / Page 73 Other strategic decisions include whether to request a continuance and whether the parent should testify. For a more complete discussion of these issues as they relate to representing parents in Georgia, see articles by Vicky O. Kimbrell of Georgia Legal Services. Regarding continuances, Kimbrell states, "[a] request for a continuance should be carefully discussed with the parent-client if the child is in detention. The prolonged separation ofthe parent from the child, especially an infant or young child, can be both emotionally and legally detrimental for the parent and the child. If a continuance of more than two weeks is necessary, the attorney should attempt to obtain some visitation or other form of contact by the parent with the child, either informally or by order of the court. DFCS regulations state that an initial visitation should occur within the fIrst week after a child is removed from the home and regularly thereafter."118 Even if a continuance is requested, it may only delay the hearing a few days. If a continuance is necessary, request it at earliest possible date and specifically detail justifIcation for it. The court should enter an order resetting the hearing with an explanation for the continuance. 119 D. PROVISIONAL HEARING (O.C.G.A. 15-11-29) The type ofproceeding, including the burden ofproof A provisional hearing is a formal court proceeding that is basically an adjudicatory hearing conducted in the absence of a party who must be served by publication. All the rules and provisions concerning adjudicatory hearings apply. When the proceeding will occur A provisional hearing occurs within the statutory time frame allowed for adjudicatory hearings. 118 Vicky O. Kimbrell, "Juvenile Court Deprivation Proceedings: Representing the Parent," GIDC training materials, citing Georgia DHR, Social Services manual Ch. 1000, Section 10.2; See also, 42 U.S.C. 675(1)(B). I 19U.R.J.c. 7.7. Parent Attorney Court Procedures Reference Manual Section VI / Page 74 Who is usually involved in the proceeding Participants in the provisional hearing should include all persons recommended for participation in the adjudication (see pp. 67-68) with two changes. First, the child must be personally before the court at the provisional hearing. 120 Second, the party who must be served by publication cannot be present. What the purpose ofthe proceeding is and what will c::cur during the proceeding The purpose of a provisional hearing is to move forward with a case (i.e. provide the child with a permanent plan) within statutory time limits even though a party must be served by publication (which may take months). The primary difference between an adjudication and disposition and a provisional hearing is that the order from a provisional hearing is only an interlocutory order. 121 After the provisional hearing on the allegations of the petition the court enters an interlocutory order which remains in effect until the date of the final hearing. If the party served by publication fails to appear at the final hearing, the fmdings of fact and interlocutory orders become final without further evidence. If, however, the party served by publication appears at the final hearing, all interlocutory findings and orders are to be vacated and a new hearing on the petition must be held. 122 Service for the provisional hearing must state: (a) the time and place of the provisional hearing (b) requirement that any party served by means other than publication must appear at the provisional hearing (c) that fmdings and orders made at the provisional hearing will become final at the final hearing unless the party served by publication appears at the final hearing 120 a.C.G.A. 15-11-29(a)(3). 121 a.e.G.A. 15-11-29(b). 122 a.e.G.A. 15-11-29(c). Parent Attorney Court Procedures Reference Manual Section VI/Page 75 E. DISPOSITION (O.C.G.A. 15-11-34) The type ofproceeding, including the burden ofproof The disposition is a court proceeding held to determine what should be done to improve the situation of a child and the child's family after a fmding that a child is deprived. The disposition hearing is usually held within the same proceeding as the adjudication but once the adjudicatory phase is completed the rules of evidence are relaxed and the court may consider "all information helpful in determinin~ the questions presented.,,123 Notwithstanding the relaxed evidentiary rules, opposing counsel is still entitled to examine social histories and home study reports prior to the dispositional hearing and to cross examine any witnesses put forth by the opr- Jsing counsel. Confidential sources of information need not be disclosed, however. 124 When the proceeding will occur The dispositional hearing may be held separately from the adjudication to allow time for reports or evaluations to be completed. If held separately, the dispositional hearing should take place within a reasonable time from the adjudicatory hearing. 125 Who is usually involved in the proceeding Participants in the disposition include all those recommended to participate in the adjudication (see pp. 67-68). What the purpose ofthe proceeding is and what will occur during the proceeding The purpose of the disposition is to determine the plan "best suited to the protection and physical, mental, and moral welfare of the child now that the child has been found to be deprived."126 The key issues to be addressed at this hearing include: 123 a.e.G.A. 15-11-33(d). 124 a.C.G.A. 15- 1 I -33(d). 125 aCGA 15-11-33. 126 aCGA 15-11-34(a). Parent Attorney Court Procedures Reference Manual Section VI I Page 76 1) What is the appropriate statutory disposition of the case and longterm plan for the child? 2) Where should the child be placed? 3) What services would allow the child to remain safely at home? 4) Has DFCS made reasonable efforts to avoid protective placement of the child? (this determination mU8~ be ~ade at every review of the case) 5) Are responsible relatives or other responsible adults available as placement options or as support for the family? 6) Is the placement proposed by the agency the least disruptive and most family-like setting that meets the needs of the child? 7) Does the proposed case plan reasonably address the problems and needs of the child and the parents? 8) Is the case plan specific enough? (see discussion of case plans) 9) Has a recommendation been made for non-reunification? 10) Are restraining or protective orders necessary? 11) Are orders needed for examinations, evaluations, or immediate services? 12) What are the terms and conditions for parental visitation? 13) What are the terms and conditions for sibling visitation, if applicable? 14) What consideration has been given to fmancial support ofthe child? 15) Has a date been set for the next review of the case and notice been given? GUIDELINES, P. 37,63. The statutory list of disposition options includes: 127 1) placement with the child's parents, guardian, or other custodian, including a putative father, subject to conditions and limitations as 127 OCGA 15-11-34(a). Parent Attorney Court Procedures Reference Manual Section VI / Page 77 the court prescribes, including supervision as directed by the court for the protection of the child 2) any individual including a putative father 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 3) an agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child; 4) any public agency authorized by law to receive and provide care for the child 5) an individual in another state with or without supervision by an appropriate officer under D.C.G.A. 15-11-46 6) transfer of custody to the court of another state exercising jurisdiction over juveniles if authorized by and in accordance with D.e.G.A. 15-11-44 if the child is or is about to become a resident of that state 7) in addition, if the child is before the court for the first time, the court may order the child and the child's parents or guardian to participate in counseling designed to prevent future conditions of deprivation. 128 The law specifically prohibits the placement of a deprived child in an institution or other facility designed or operated for the benefit of delinquent children unless the child is also adjudicated delinquent. 129 Other limitations on dispositional options include a prohibition against ordering joint custody to DFCS and another entity outside the Department of Human Resources (DHR). If joint custody is ordered, DFCS shall be relieved of further responsibility for the child. 130 128 OCGA 15-11-36.1. 129 OCGA 15-11-34(b). 130 OCGA 15-11-34(c). Parent Attorney Court Procedures Reference Manual Section VI / Page 78 1bis code section was enacted when the Department of Juvenile Justice (Hereinafter DJJ, fonnerly Department of Children and Youth Services) was a division ofDHR. The purpose of the code section was to limit the liability of DHR for children not wholly within their custody. The code section has not been amended since DJJ was made an agency separate from DHR. When a child is adjudicated both delinquent and deprived, judges often order joint custody to DJJ and DFCS. Both agencies tend to object to such an order, each claiming that the child is the responsibility of the other agency. Although the agencies will object at the local level, particularly since such multi-needs children are difficult and expensive to place, there appears to be an infonnal policy at the state level against appealing such orders. Attorneys should be aware that until the Court of Appeals addresses this issue or the statute is changed, judges are willing to issue such joint custody orders. Joint custody to DHR-DFCS and any person or entity other than DJJ, however, remains impermissible. In the same way that a judge cannot order custody to DFCS and a third party, a judge cannot order custody to DFCS and physically place the child elsewhereYI Once custody is given to DFCS, placement of the child is within the sole discretion of the agency. 1bis discretion does have limits, though. DFCS cannot place a child back with his or her parents without court approval. 132 The "approval" can take several fonns. Some orders contain a list of conditions, satisfaction of which automatically allows for the return of the child to the ho~e. A better practice is for DFCS to notify the court by letter when the conditions have been met so the court file has documentation of the return. Any party who objects to the return of custody may request a hearing on the issue. 131 ~e~ In re R.R.M.R., 169 Ga. App. 373 (1983); In re R.L.M., 171 Ga. App. 940 (1984), In re J.N.T., 212 Ga. App. 498 (1994). 132 OCGA 15-11-34(a)(2). Parent Attorney Court Procedures Reference Manual Section VI / Page 79 The other limitation is the court's authority to review the placement at any time. a.c.G.A. 15-11-34 (c) states that after placement ofa child with DFCS the court: "may at any time conduct sua sponte a judicial review of the current placement plan being provided to said child. After its review the court may order the division to comply with the current placement plan, order the division to devise a new placement plan within available division resources, or make any other order relative to placement or custody outside the Department of Human Resources as the court finds to be in the best interest of the child." This code section indicates that although the court cannot direct placement of a child in DFCS custody, the court retains veto power over DFCS's placement choices. Attorneys for parents and children can use this provision to their advantage if they feel that a particular placement is inappropriate for the child. Any party (and probably any person) can bring concerns about a placement to the attention of the court and request that the court conduct a review of the placement. DFCS has internal policies regarding time limits on responding to a court order for revision of a placement plan and the court may set its own time frame on this issue. 133 Before issuing a dispositional order, the court may direct that a social study or home evaluation be conducted and a written report be presented to the court. A home evaluation is common practice in DFCS cases, although the report is often presented through testimony rather than as a written report. In private deprivation cases DFCS may be directed to conduct a home evaluation or the court may designate someone else to do the evaluation. 134 For more information on the rights and duties of legal custodians, see a.c.G.A. 15-11-43 and 49-5-3. See pages 54-56 of GAL manual for a 133 a.e.G.A. 15-11-41 (k) provides that when the court fmds that a placement is no longer appropriate in the context of periodic review hearings, OFCS has 10 days to submit a revised plan for court approval. It is likely that this time frame is applicable to a similar determination under a.C.G.A. 15-11-34(c). 134 a.e.G.A. 15-11-32(a). Parent Attorney Court Procedures Reference Manual Section VI / Page 80 discussion of protective orders authorized by O.C.G.A. 15-11-57. Protective orders which restrain or otherwise control the conduct of a person may be issued if proper notice and opportunity for hearing have been made.135 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, his 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 ofa 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. O.C.G.A 15-11-57. While the imposition of protective orders can be used to pave the way for the return of a child to the home because they assure the court of a concrete safety plan for the child, attorneys for parents should ensure that protective orders do not infringe upon the constitutional or statutory rights of parents. If DFCS is amenable to reunification if certain changes are made, further court action can be avoided if the court order states the protective actions that must 135 O.C.G.A. 15-11-57. Parent Attorney Court Procedures Reference Manual Section VI / Page 81 be taken before the child can be returned home, and orders the return of the child upon completion ofthose actions. Although they can be used to a client's advantage, in this manner, protective orders can also be damaging ifthey are not complied with. Juvenile courts are authorized to punish a person for contempt for disobeying a court order. 136 The court's written findings of fact and conclusions of law issued at the conclusion of the disposition hearing should: 137 1) Determine the legal disposition of the case, including the custody.of the child, based upon the statutory options provided under Georgia law. 2) State the long-term plan for the child. 3) When applicable, state why placing the child in the home would be contrary to the child's welfare. 4) Approve, disapprove, or recommend modification of the proposed case plan. 5) Determine whether there is a plan for monitoring the implementation of the case plan and identify who is responsible for that. 6) Determine whether the GAL or CASA is available to assist with monitoring the implementation of the case plan and issue related orders as necessary (i.e., appoint the GAL/CASA for the pendency of the case). 7) When placement or services are ordered that are contrary to those agreed upon by the parties, specify the evidence or legal basis upon which the order is made. 8) Specify whether reasonable efforts have been made to prevent or eliminate the need for placement. 136 a.e.G.A. 15-11-62. 137 Since the adjudication and disposition usually occur within a single proceeding, the court only issues one order which encompasses both the adjudication and the disposition. Parent Attorney Court Procedures Reference Manual Section VI / Page 82 9) Specify the tenns of parental visitation. 10) Specify the tenns of sibling visitation. 11) Specify parental responsibilities for child support. 12) Be written in easily understandable language so that parents and all parties fully understand the court's order. 13) Set date and time of next hearing, if nt:",Jed. GUIDELINES, p. 64. The time limits on orders are: 1) An initial award of custody to DFCS shall remain in effect for 12 months from the time the child was first placed in custody. 138 2) An extension of custody to DFCS can remain in effect for up to 12 months after the expiration of the initial custody order. 139 3) All other orders of custody in a deprivation proceeding (i.e., to someone other than DFCS) shall remain in effect for not more than two years. 140 4) Orders extending custody to persons other than DFCS remain in effect for not more than two years. 141 5) All custody orders may be tenninated by the court prior to its expiration if the purposes of the order have been accomplished. 142 6) All orders affecting a child tenninate when the child reaches the age of21. 143 138 a.e.G.A. 15-11-410). 139 a.e.GA 15-11-41(1). 140 a.e.G.A. 15-11-41(m). 141 a.C.G.A. 15-11-41(m)(4). 142 a.C.G.A. 15-11-41(n). a 143 .C.G.A. 15-11-41(0). Parent Attorney Court Procedures Reference Manual Section VI / Page 83 Suggestions for effective advocacy Although the dispositional hearing is generally held at the same time as the adjudication, if a parent denies the allegations and the child is still adjudicated deprived, attorneys may want to consider postponing the disposition. Parents may not have been willing to discuss disposition options or to work with DFCS prior to the adjudication. Postponing the disposition may allow the parties time to work out an agreeable case plan after the parent has had a "cooling down" period. l44 True; will also allow the attorney time to draft a proposed order incorporating the case plan. The disposition hearing and subsequent order can be used to set the framework for future reviews. Ensure that the proceeding is recorded and establish a clear record that can be referred to in later reviews. The parent should not be held accountable for things that are not clearly addressed at the disposition hearing. F. PERMANENCY PLANNING (O.C.G.A. 15-11-41) Permanency Planning is the process ofdeciding upon a permanent placement for a child. The detrimental effects of multiple placements on children is becoming more widely recognized, and as a result, child advocates in the social service arena and the legal arena are working to limit the number of placements in which children reside. "Permanency planning" is an overarching term used to describe all the elements involved in developing case plans for children and parents, reviewing the case periodically, revising the case plan as necessary, and deciding where the child will be permanently placed. Permanency planning should begin with the family's initial contact with DFCS. Discussion about "reducing the number of children in foster care" usually focuses heavily on ways to increase the number of children who are adopted. Another way to reduce the number of children in care is to reduce the number of children who enter foster care. Many deprivation cases result from situations that might be prevented by early intervention into a family by DFCS or another service 144 Gram'k p. 8. Parent Attorney Court Procedures Reference Manual Section VI / PC'.ge 84 provider. Attorneys generally do not become involved in cases until there are allegations that deprivation has occurred, but every attorney should find out (as soon as possible after agreeing to represent a parent or child) what actions have occurred since the family's very fIrst contact with DFCS. WhIle this section is set apart from the sections on other distinct court proceedings, permanency planning is not something that occurs at a particular proceeding; it is something that flows through every proceeding in a deprivation case. Because permanency planning does not occur at one distinct proceeding this section will not follow the format of other sections discussing court proceedings and will instead discuss each element of permanency planning. Two terms essential to discussions of permanency planning are "case plan" and "reasonable efforts." The case plan is the central element of permanency planning. It is a document developed by DFCS with input from the parents which states the problems resulting in deprivation, how they will be addressed, who will address them, the date by which they will be addressed, and the long-term goals for the child and family. The case plan defmes the parameters of the ongoing case because all future decisions regarding reunifIcation of the family (or termination of parental rights) will be based on progress toward the goals established in the case plan. For that reason, participation of the parents, the child, and their advocates in the development of the case plan is critical. This is said with knowledge that as a practical matter, case plans are often developed by a caseworker with little or no input from a parent or anyone else. To emphasize the importance of appropriate case plans, attorneys should note that many termination of parental rights cases are decided based upon compliance with a case plan. "Reasonable efforts" is a description of the affIrmative duty of DFCS to limit the number of children in foster care and the length of a child's stay in foster care. This obligation is placed on every state that receives federal money to assist with the cost of keeping children in foster care. 145 The duty imposed upon DFCS is 145 P.L. 96-272. See pp. 10 and 12-14, describing P.L. 105-89; modifies P.L. 96-272. Parent Attorney Court Procedures Reference Manual Section VI / Page 85 to make "reasonable efforts" to prevent a child from coming into care (Le. provide preventive services to a family to eliminate the need for removing the child), and to make "reasonable efforts" to reunify the family after the child has been removed (i.e. provide support and rehabilitative services to remedy the situation that led to the removal of the child). The judge is required to make a determination regarding whether DFCS has made "reasonable efforts" at every stage of the proceedings (72hour hearing, adjudication, disposition, reviews, etc.)The Federal Adoption and Safe Families Act of 1997 (P.L. 105-89), discussed at pp. 10 and 12-14, lists circumstances in which reasonable efforts toward reunification do not need to be made. Reasonable efforts and case plans will be discussed in more detail below. Although permanency planning is a component of every proceeding, there are some distinct proceedings that are designed solely for permanency planning, especially periodic reviews and hearings on non-reunification plans. These will be discussed below. One misconception about permanency planning is that it has only two possible outcomes: reunification of a family or termination of parental rights and adoption. A "permanent placement" for a child can actually be one of a variety of settings, and the goal is to fmd the one that is best for the child. "Permanent" options may include: 1) reunification (return to birth home) 2) termination of parental rights and adoption 3) long-term foster care 4) independent living program (for older teens) 5) placement in a group home 6) guardianship to a relative or family friend The primary statute addressing permanency planning is O.C.G.A. 15-1141. This statute should be read every time an attorney looks at a case. This statute is quite detailed and has been revised every year for the last several years. Parent Attorney Court Procedures Reference Manual Section VI / Page 86 Case Plans As soon as a child is taken into DFCS custody DFCS is to begin developing a case plan for that child and the family. This case plan is usually referred to as a "30-day case plan" because it must be submitted to the court in writing within 30 days after DFCS takes custody of the child. DFCS may submit a non-reunification plan instead of a 30-day case plan if DFCS does not think reunification is appropriate (see discussion below). Either the case plan or the non-reunification plan is submitted to the judge as part of a report. 146 The report must contain any dissenting recommendations of the citizen review panel (if the panel was involved in developing the plan) and any recommendation made by the parents. The case plan should be developed with the parents. In fact, DFCS must provide five days written notice of the meeting to the parents and must advise the parents that the report will be submitted to be an order of the court. If the county has a Citizen Review Panel, the panel is to be included in the development of the case plan. (In practice, this generally does not happen). The parents must understand that the case plan contains the key to getting the child back in the home, and that not complying with the case plan may lead to termination of their parental rights. Parents should ALWAYS participate in the development of the case plan. An attorney is probably not aware of the case at the time the 30-day case plan is being developed, but should become involved in developing the permanent case plan. 147 This is not commonly done and may be met with resistance from other participants in the process. However, development of the case plan is a critical step in the deprivation process and nothing prohibits the parents' attorney, the child's attorney, or the GAL or CASA from participating in this process. Ifreunification is recommended, the parents have five days to request a hearing on the case plan; if a request is not made the case plan 146 O.C.GA 15-11-41(c). 147 The involvement of attorneys in any setting where they have not previously been involved may increase the adversarial nature of the proceedings-- if one party has an attorney the other parties will want their attorneys present and an otherwise informal, cooperative meeting may be transformed into a formal, and possibly hostile, proceeding. Also, the presence of attorneys may lead people to think that someone is hiding something. Parent Attorney Court Procedures Reference Manual Section VI / Page 87 becomes a court order. If reunification is not recommended, the court will hold a hearing with in 30 days. Cooperative efforts in developing case plans will be enhanced if all participants are aware of the options available and the limitations imposed on each participant. One way to foster a cooperative relationship is to maintain ongoing communications within the county about changes in DFCS policies, perhaps through an informal monthly breakfast or lunch. Recommended Elements of a Reunification Plan A reunification plan shall address each reason requiring removal and shall contain at least the following: 148 1) The purpose for which the child was placed in foster care 2) A statement of the reasons why the child cannot be adequately protected at home 3) A statement of the harm which may occur if the child remains in the home 4) A description of the services offered and the services provided to prevent removal of the child from the home; 5) A discussion of how the plan is designed to achieve a placement in the least restrictive, most family-like setting available and in close proximity to the home of the parents, consistent with the best interests and speciel needs of the child; 6) A clear description of the specific actions to be taken by the parents 7) A clear description of the specific services to be provided by DFCS or other appropriate agencies 8) Specific time frames in which the goals of the plan are to be accomplished 148 a.C.G.A. 15-11-41(d). Parent Attorney Court Procedures Reference Manual Section VI / Page 88 9) The person within DFCS or other agency who is directly responsible for ensuring that the plan is implemented; 10) Consideration ofa reasonable visitation schedule which allows the parents to maintain meaningful contact with their children through personal visits, telephone calls, and letters. The case plan cannot condition the return of the child on parents' performance of actions (or receipt of services) that are not directly related to the circumstances necessitating separation unless there is court review and approval of the conditions, or the parents consent to the case plan. Ifthere is a disagreement, this issue should be raised before the plan becomes part of the court's disposition order. Nonreunification Plan Ifreunification is not recommended, the court must hold a hearing within 30 days of the recommendation to determine whether reunification is appropriate (if DFCS files a nonreunification plan at any time during the pendency of the case the court must hold a hearing within 30 days). 149 A plain reading of the statute indicates that the court must schedule the hearing upon receipt of a nonreunification plan (not upon a motion by a party), and that there is no discretion to waive or continue this hearing to a time beyond the 30 days. At the hearing on the non-reunification plan DFCS must indicate whether and when the Department will proceed with termination of parental rights (TPR). If DFCS does not recommend TPR, the court may appoint a GAL to determine whether TPR should be filed. 150 When a recommendation is made that reunification services are not appropriate and should not be provided, the report shall address each reason requiring removal and shall contain at least the following: lSI 149 a.c.GA 15-11-41(f) (1996 amendment). ISO a.e.G.A. 15-11-41(h). lSI a.e.G.A. 15-11-41(g). Parent Attorney Court Procedures Reference Manual Section VI / Page 89 1) the purpose for which the child was placed in foster care 2) a statement of the reasons why the child cannot be adequately protected at home 3) a statement of the harm which may occur if the child remains in the home 4) a description of the services offered and the services provided to prevent removal of the child from the home 5) a clear statement describing all of the reasons supporting a fInding that reasonable efforts to reunify a child with the child's family will be detrimental to the child, and that reunifIcation services therefore need not be provided 6) a statement of specifIc fIndings as to whether any of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-81. At the hearing on the non-reunifIcation plan the court must determine by clear and convincing evidence that reunifIcation of the child with his or her family will be detrimental to the child. 152 After such a fmding DFCS no longer needs to provide reunifIcation services to the family. Until parental rights have been terminated, however, parents continue to have rights with respect to the child, including the right to reasonable visitation (unless the court has found visitation to be harmful to the child). Attorneys for parents and children may request that DFCS continue to facilitate the parent-child relationship and that DFCS continue to provide services to the child. While DFCS no longer has an affIrmative duty to provide reunifIcation services, the code is silent as to what specifIc services (other than "reunifIcation services") DFCS may provide or may refuse to provide. 152 O.C.G.A. 15-11-410). Parent Attorney Court Procedures Reference Manual Section VI / Page 90 Presumption of Nonreunification There shall be a presumption against reunification ifthe court finds by clear and convincing evidence that: 153 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; or 3) Any of the grotmds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-81. Attorneys for parents should remember that a presumption shifts the burden of proof on that issue. This means that when one of the above situations exists, the burden is on the parent to prove why reunification should occur, rather than a burden upon DFCS to show why reunification should not occur. A full discussion of ways to rebut these presumptions is beyond the scope of this manual and attorneys are encouraged to consult some of the advocacy resources indicated in the reference section. Information provided at pp. 104-114 on termination of parental rights may also provide guidance. Reasonable Efforts (O.C.G.A. 15-11-41(b As stated above, reasonable efforts is the term used to describe what DFCS must be doing to prevent the need for removal of a child from the home and to safely place the child back in the home. Federallaw requires that at every stage of the proceedings the court must make a finding as to whether or not reasonable efforts were made by DFCS and any other appropriate agencies to: 1) prevent or eliminate the need for removal AND 2) make it possible for the child to return to the child's home. 154 153 a.C.G.A. 15-11-41(1). 154 See pp. 10 and 12-14 for summary of the federal Adoption and Safe Families Act of 1997, identifying circumstances in which reasonable efforts need not be made. Parent Attorney Court Procedures Reference Manual Section VI / Page 91 lfthe judge finds that reasonable efforts have not been made, Georgia will lose the federal foster care maintenance payments provided for that child under Title lV-E of the Social Security Act. Georgia law requires a finding by the court regarding whether continuation in the home would be contrary to the welfare of the child and implies that this finding must be made at every review of the case by the court. 155 The paragraphs ofO.C.G.A. 15-11-41 that discuss nonreunification plans {(t), (g), and (h)} imply that the reasonable efforts findings required by O.C.G.A. '.5-11- 41 (b) would not be necessary once a nonreunification plan is approved by the court, but the language requiring findings of fact regarding reasonable efforts to be made at every subsequent review of the court's order has not been modified {last line of O.C.G.A. 15-11-41(b). This appears to mean that an examination of reasonable efforts is still required at every court proceeding regardless of whether the plan is for reunification or for nonreunification. Although they both require that "reasonable efforts" be made, the federal laws and the state laws are silent on what constitutes "reasonable efforts." One commonly accepted guideline is that "reasonable" refers to what is available within a particular area, given the area's resources. However, difficultly in obtaining necessary resources, including fmancial constraints, is not an adequate justification for failing to provide such resources. For a thorough explanation of "reasonable efforts," including the philosophy behind the requirement and concrete descriptions of what qualifies as "reasonable efforts," see Making Reasonable Efforts: Steps for Keeping Families Together. The following list is a summary of recommended services to be made available under the Georgia's reasonable efforts requirements: 156 1) family preservation services; 2) generic family based/family centered services; 155 a.C.G.A. 15-11-41(b); but see footnote 154. 156 Making Reasonable Efforts, pp. 81-90; 45 C.F.R. Ch. XIII, 1357.15(e)(2) (10-1-95 Edition). Parent Attorney Court Procedures Reference Manual III Section VI / Page 92 .. 3) cash payments; (a) to meet emergency needs; (b) to provide ongoing financial support; 4) noncash services to meet basic needs; (a) food and clothing; (b) housing (emergency shelter and permanent housing); 5) noncash services to address specific problems; (a) in home respite care; (b) out of home respite care; (c) child day care; (d) treatment for substance abuse/chemical addiction; (e) homemaker services; (f) crisis counseling; (g) self-help groups; (h) vocational counseling or rehabilitation; (i) job training and placement CD treatment for sexual abusers and victims; (k) mental health counseling/psychotherapy; (1) parent training; (m) life skills training; (n) household management assistance; 6) facilitative services (a) visitation (to prepare both parent and child for their eventual reunification); (b) transportation (when servIces are geographinlly inaccessible). Readers should note that this list was developed prior to "welfare reform" and the federal Adoption and Safe Families Act of 1997 (P.L. 105-89), and under the new provisions ofTANF and P.L. 105-89, DFCS may no longer be required to Parent Attorney Court Procedures Reference Manual Section VI / Page 93 provide some of the services listed above. This list can be used as a guide for parents, DFCS, and attorneys, when working to develop a case plan. If any of the above services cannot be provided, the participants should question why the services are not available, and what alternatives are available. Effective advocates should identify alternative service providers. This task is becoming easier in Georgia; many service providers are now listed on the World Wide Web with information including whether they accept low-income clients and current availability of the services.157 See the resource material section for web sites listing such resources. After a case plan has been developed and incorporated into the court's disposition order, the case must be monitored by the court. Reviews can be conducted by the judge or by a citizen review panel made up of specially trained volunteers who are sworn officers of the court. The first periodic review must be held within 90 days of the entry of the dispositional order but not later than 6 months after the child initially entered care. 158 These reviews must continue to be held at six month intervals as long as the child remains in DFCS custody and is not available for adoption. 159 The purpose and frequency ofperiodic reviews is changing as the laws in this area change. Since initial orders of custody to DFCS now expire after 12 months, the law may only require one periodic review during that period. In practice, however, many judges are ordering more frequent reviews of cases so that a citizen review panel may review a case 60 or 90 days after the dispositional order is entered, six months after than, and again prior to a hearing on a motion to extend custody if the child is not to be returned home at the end of one year. 157 Two searchable web sites containing this type of information are: Georgia Association of Permanent Homes and Services for Children at http://www.gahsc.org/ and the United Way Help Book Searchable Database at http://www.unitedwayatl.org/211-Database 158 O.C.G.A. 15-11-41(j). See page 13 discussing federal change in <:alculation of time in foster care. 159 Ifa petition seeking the adoption of the child is not filed within one year following the dispositional order, the court shall conduct annual reviews to determine what efforts have been taken so that the child will be adopted. O.e.G.A. 15-11-90(d). Parent Attorney Court Procedures Reference Manual Section VI / Page 94 In practice, participants in review hearings, especially if conducted by a citizen review panel, have not included attorneys for any party. However, after each review of a case, the court enters a supplemental order of disposition incorporating the case plan into the order. TIris supplemental order has the same legal effect as the original order of disposition, so all participants and their representatives should be as involved at this stage as they would at any other critical stage of the proceedings. In counties where there is a citizen review panel, the panel coordinator will schedule the review and will notify DFCS and the parents. Attorneys mayor may not be notified. DFCS is responsible for bringing the child, and the decision whether the child attends is generally based on the age of the child. The Uniform Rules of Juvenile Court discuss the Citizen Review Panel program (formally called the Permanent Homes Project) and list the issues to be addressed at each review.160 The following list includes those plus additional issues recommended as best practice techniques. The key issues to be addressed at each review of the case include: 1) Whether there is a need for continued placement of a child 2) The appropriateness of the current placement for the child 3) What degree of progress has been made by each participant toward the specific goals and objectives of the case plan 4) What degree of compliance there has been to court orders and directives or agreements between the participants 5) Whether any significant new developments have occurred since the last review (including allegations of deprivation that have been made since the adjudication; results of psychological or medical tests; concurrent criminal investigations or prosecutions which have resulted in incarceration of a parent; legitimation of the child by a putative father; identification of a potential relative placement) 160 U.R.J.C. 24.7. Parent Attorney Court Procedures Reference Manual Section VI / Page 95 6) Whether the court-approved, long-term, permanent plan for the child remains the best plan for the child 7) Whether the agency is making reasonable efforts to rehabilitate the family and eliminate the need for placement of the child 8) Whether the relationship between the caseworker, the family, and the foster family is cooperative and productive or whether changes need to made to enhance the family's ability to achieve the goals of the case plan 9) Whether services set forth in the case plan and the responsibilities of the parties need to be clarified or modified due to the availability of additional information or changed circumstances 10) Whether the child is in an appropriate placement which adequately meets all physical, emotional, and educational needs 11) Whether the child feels his or her needs are being met 12) Whether experts who are involved in the case (i.e therapists, physicians) feel the placement is appropriate for the child 13) Whether the terms of visitation need to be modified 14) Whether terms of child support need to be set or adjusted 15) Whether any additional court orders need to be made to move the case toward successful completion 16) What time frame sho'lld be followed to achieve reunification or other permanent plan for the child 17) Whether DFCS intends to file a petition to terminate parental rights and if so, when they intend to do so 18) Whether a GAL needs to be appointed for the purpose ofdetermining whether a petition for termination of parental rights should be filed, if no current parties have filed one Parent Attorney Court Procedures Reference Manual Section VI/Page 96 19) Whether the panel recommends that termination of parental rights would be a more appropriate plan that the one agreed upon by the participants GUIDELINES, p. 75; Duquette, pp. 84-86; a.C.G.A. 15-11-41(j), (k). In addition to the above questions, if long-term foster care is proposed as the permanent plan, the following information should be addressed at each review: 1) The facts and circumstances refuting the grounds for termination of parental rights (demonstrating the fitness of the parents) or showing that although the child cannot be placed with parents, termination is not in the best interests of the child 2) The facts and circumstances explaining why custody to the parents is not practical or appropriate 3) Facts and circumstances demonstrating the appropriateness of the foster parents and the foster parents' commitment to permanently caring for the child 4) A plan to ensure the stability of the placement 5) Whether arrangements will be made for visitation with the parents, and if so, what those arrangements will be 6) Whether arrangements will be made for visitation with the siblings or other relatives, and if so, what those arrangements will be. GUIDELINES, p. 86. If the review is conducted by a Citizen Review Panel, the following actions will occur: 161 1) The panel's report, fmdings, and recommendation, along with DFCS' revised permanency plan, shall be submitted to the court and the parents within five days after the review. 16\ a.e.G.A. 15-11-410), (k). Parent Attorney Court Procedures Reference Manual Section VI / Page 97 2) Any party has five days after receipt of the plan to request a hearing by the judge. 3) 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 a revised plan as part of its disposition in the case. 4) If a hearing is held, the court shall hear evidence and then enter a supplemental order incorporating all elements ofthe revised case plan that the court fmds essential. 5) The supplemental order shall be entered within a "reasonable time" from the conclusion of the hearing or the time allowed to schedule a hearing. In addition to incorporating the terms of the case plan, the court's supplemental order shall provide one of the following: 1) That the child return to the home of his or her parents, legal guardian, or custodian with or without court imposed conditions; 2) That the child continue in the current custodial placement and that the current placement is appropriate for the child's needs; or 3) That the child continue in the current custodial placement but that the current placement plan is no longer appropriate for the child's needs and direct the department to devise another plan within available resources. If the department is directed to develop a new plan, the new plan must be submitted within ten days for court approval. Copies of any court-approved revised plan shall be furnished to all parties. Attorneys for parents should use each review hearing as an opportunity to move the parent toward their ultimate goal, which is usually to have the child placed back in the home. If the parent disagrees with the recommendation of the citizen review panel, a request for a judicial review should be made. If the parent has Parent Attorney Court Procedures Reference Manual Section VI / Page 98 partially or fully complied with any of the goals on the case plan, appropriate changes should be requested to allow the parent to demonstrate his or her newly acquired abilities. For example, if a parent has completed parenting classes, the frequency and duration of visitation should be increased. If an abusive resident of the house has moved out, a request should be made for unsupervised visitation or for overnight visitation. It is also appropriate to request that the child be returned to the horne if compliance with the case plan warrants the return. There is no requirement that custody must remain with DFCS for the duration of the order; the court may modify its orders at any time with cause. Changes in the case plan goals may need to be made to assist the parent with progress. For example, if a parent has completed a substance abuse rehabilitation program, but feels that he or she is still at risk of relapsing, DFCS should be asked to provide support services to alleviate conditions which may result in a relapse. Similarly, the parent may need to be in individual therapy or may need homemaker or child care services until the parent is better able to be fully self-sufficient. If proposals are made to revise any of the case plan goals, all participants should remain mindful that all elements of the case plan must be based on the original finding of deprivation. If not, a court review of the case plan may be necessary. This fact may get "lost" in discussions in the case review process regarding what the family "needs" or what is "best" for the family, but it may not be in the parent's best interest to have items in a case plan that are not related to the original order finding deprivation. Remember that it is not necessary to wait until a scheduled review to request modifications to a case plan or to custody and visitation orders. See pages 80 and 104 for further discussion of modifications. If a primary goal of advocacy on behalf of a parent is to reunify the family, one way to achieve this goal is to get the parent to comply with the case plan. The likelihood of compliance is greater when the case plan is designed to be "compliable." The parent and the attorney can ensure that appropriate case plans are developed by participating in case plan meetings and review hearings. Attorneys Parent Attorney Court Procedures Reference Manual Section VI / Page 99 should note that these are not adversarial proceedings so their presence may not be welcome (the SAAG and GAL almost never attend), and may actually be detrimental to the parent's position. 162 However, there no prohibitions against participating in these proceedings. The court may question billing for participation in these proceedings because they are not considered "necessary proceedings," but attorneys can respond that reviews are a component of case preparation, particularly since failure to comply with a case plan can lead to termination of parental rights. Furthermore, attendance at review proceedings can be a useful discovery tool. Attorneys who do attend review proceedings should try to review the current DFCS case plan in advance. Attorneys who do not attend reviews may wish to m.-et with the parents before and after the proceedings. IfDFCS is not adhering to their requirements under the case plan, filing a motion for contempt to force the provision of services is an option. Another option is to request a hearing on the recommendations of the citizen review panel in hope that involving the judge directly in the discussion of the case plan will force DFCS into compliance. As one advocate delicately stated, "...while avoiding any antagonism, you will, of course, also emphasize the gaps in agency services and assistance to the parents.,,163 G. EXTENSION OF CUSTODY (O.C.G.A. 15-11-41 (L The type ofproceeding, including the burden ofproof A hearing on a motion to extend custody is a court proceeding to decide whether the current placement of a child should be maintained although the order placing the child is due to expire. Any person with temporary custody of a child may, with appropriate factual basis, petition the court for an extension of custody. 162See FN 139(a), p. 53 163 Granik, p. 11. Parent Attorney Court Procedures Reference Manual Section VI / Page 100 If petitioner is DFCS, custody can be extended for up to one year; any other petitioner may have custody extended for up to two years. When the proceeding will occur A hearing on a petition (motion) to extend custody must be held prior to the expiration of the current order of custody (i.e. the petition must be filed in sufficient time for a hearing to be held on the matter). Failure to do so can result in a reversal on app~al of a decision to extend temporary custody. The parents or guardians must object to the failure to properly file the motion on time during the extension hearing or they will lose the right to object to the state's mistake on appeal. 164 A dispositional order which is allowed to expire before a proper extension is given by the juvenile court would seem to require the return of the child to his parents or guardian. However, DFCS could file a new deprivation petition requesting that the child be placed in DFCS custody and the judge could issue an emergency order to keep the child out of the home. Who is usually involved in the proceeding Participants at a hearing on a motion to extend custody should include those listed as participants in the adjudicatory hearing (see pp. 67-68), noting that different witnesses may be used at the extension hearing. What the purpose ofthe proceeding is and what will occur during the proceeding A hearing is held on a motion for extension of custody to determine the future status of the child. The petitioner need not establish present deprivation; the court is to determine whether "extension of custody is necessary to accomplish the purposes of the order extended."165 The implication is that if the causes of the original deprivation have not been remedied (i.e. the requirements of the case plan have not been fulfilled), then an extension will be granted. Similarly, if the desire to keep the child in DFCS custody is based upon circumstances which were not 164 Page v. Shuff, 160 Ga. App. 866 (1982). 165 a.e.G.A. 15-11-41(d) Parent Attorney Court Procedures Reference Manual Section VI / Page 101 addressed in the original petition, the appropriate procedure would be to file a new deprivation petition, rather than a motion to extend custody. The key issues to be addressed at a hearing on a custody extension include those which are to be addressed at each review of the case (see pp. 95-97) as well as the following: 1) Have the purposes of the disposition order been accomplished? 2) Is continuing the child in an out-of-home placement in the child's best interests? 3) Has enough progress been made toward the goals of the case plan to remedy the conditions resulting in deprivation such that it is safe for the child to be placed back in the home? 4) Is the relationship between DFCS and the family cooperative so that if the child is placed back in the home the family would continue to work with DFCS toward achieving the goals of the case plan if not already achieved? As the trend to move children to permanent placements more quickly continues, the nature of motions to extend custody will change. It has been common practice in the past to continue placement with DFCS for several years while the parent works toward accomplishing the goals of the case plan. Critical questions being asked in Georgia and across the country are, "How long should it take for a parent to remedy conditions resulting in deprivation? How long should the court allow a parent to 'work on' becoming a safe, adequate parent? How long is it fair to leave a c;hild in a 'temporary' placement?" The federal government has provided guidance in answenng these questions in The federal Adoption and Safe Families Act of 1997 (P.L. 105-89). This law requires a rermanency hearing to be held after a child has been in foster care for one year. The law requires DFCS to file a petition to terminate parental rights when a child has been in foster care for 15 of the previous 22 months, unless: (1) the state has placed the child with a relative, Parent Attorney Court Procedures Reference Manual Section VI / Page 102 (2) the state has documented a compelling reason for determining that terminating parental rights would not be in the best interests of the child, or (3) the state has not provided appropriate reunification services, if such services were warranted. Georgia law is already in substantial compliance with these new federal requirements. As Georgia becomes fully aligned with federal laws, motions to extend custody will be reserved for cases where the permanent plan for a child is long-term foster care or independent living, or for private deprivation cases. H. MODIFICATIONS AND OTHER PROCEEDINGS During the pendency of a deprivation case, hearings other than those already described may take place. Two additional proceedings attorneys may encounter are mentioned below. 1. Modification If any party or person having an interest in the child wishes to modify the terms of the orders of the court, the party may put that request in the form of a motion and request a hearing on the matter. "An [deprivation] order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child ...."166 The most common type of motion is a motion to modify custody or visitation (i.e. to change from supervised visitation to unsupervised visitation). Another type of modification is a return of physical custody. If a deprived child is in the custody ofDFCS and DFCS wants to return custody to the parent, the court must approve this return of custody and may impose conditions and limitations necessary for the protection of the child. The court may recite the conditions which must occur before the child can be returned home - ---_ ..._-----;>;f\;" 15-11-57 G *** CODE SECTION *** 08/08/97 15-11-57. (a) 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 ~erson if an order of disposition of a child ~as been or is about to be made in a proceeding under this article and 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, his 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 speclfied period, or both, or may be terminated if the court finds that the best lnterests 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 before the court. 9/22/97 7:35:52 PM GeorgiaNet - Official Code 15-11-81 Page 1 of2 -----_._----..... N E\ r . 15-11-81 G *** CODE SECTION *** 08/08/97 15-11-81. (a) In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of this Code section. If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the sUbject of the proceeding, including the need for a secure and stable home. (b) Except as provided in subsections (e) through (h) of Code Section 15-11-83, the court by order may terminate the parental rights of a parent wit~ respect to the parent's child if: (1) The written consent of the parent, acknowledged before the court, has been given; provided, however, that acknowledgment before the court is not necessary where the parent or parents voluntarily surrender the child for adoption as provided by subsection (e) of Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7; (2) A decree has been entered by a court of competent jurisdiction of this or any other state ordering the parent, guardian, or other custodian to support the child, and the parent, guardian, or other custodian has wantonly and willfully failed to comply with the order for a period of 12 months or longer; (3) The parent has abandoned the child or the child was left under circumstances that the identity of the parent is unknown and cannot be ascertained despite diligent searching, and the parent has not come forward to claim the child within three months following the finding of the child; or (4) (A) The CO\1rt determines parental misconduct or inability by finding that: (i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child's status as dr~rived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. (B) In deterffilning whether the child is without proper parental care and control, the court shall consider, without being llmited to, the followlng: (i) A medically verlfiable deflclency of the parent's 9/22/97 7:36:09 PM GeorgiaNet - Official Code 15-11-81 Page 2 of2 physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child; (ii) Excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child; (iii) Conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship; (iv) Egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature; (v) Physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent; and (vi) Injury or death of a sibling under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse. (C) In addition to the considerations in subparagraph (B) of this paragraph, where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To communicate or to make a bona fide attempt to communicate with the child in a meaningfUl, supportive, parental manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents. (c) If the court does not make an order of termination of parental rights, it may grant an order under Code Section 15-11-34 if the court finds from clear and convincing evidence that the child is a deprived child. ---- ~EXT .. 9/22/97 7:36:09 PM GeorgiaNet - Official Code 15-11-90 ~~,. r.".,l\.1, \ ( .,"' 1 Page 1 of 1 ----- NE\';' .... 15-11-90 G *** CODE SECTION *** 08/08/97 15-11-90. (a) (1) If, upon the entering of an order terminating the parental rights of a parent, there is no parent having parental rights, the court shall first attempt to place the child with the child's extended family or with a person related to the child by blood or marriage. An exhaustive and thorough search for a suitable family member shall be made by the court and the Department of Human Resources in attempting to effect this placement. A placement effected under this paragraph shall be conditioned upon the family member who is given permanent custody or who is granted an adoption of the child agreeing to abide by the terms and conditions of the order of the court. A placement shall be made under the terms of this paragraph only if such a placement is in the best interest of the child. (2) If no placement of the child is effected under paragraph (1) of this subsection, the court may make any of the following dispositions: commit the child to the custody of the Department of Human Resources or to a licensed child-placing agency willing to accept custody for the purpose of placing the child for adoption or, in the absence of an adoption, in a foster home, or take other suitable measures for the care and welfare of the child. (b) The court shall transmit a copy of every final order terminating the parental rights of a parent to the Division of Family and Children Services Adoption Unit of the Department of Human Resources within 15 days of the filing of such order. (c) The custodian has authority to consent to the adoption of the child, his marriage, his enlistment in the armed forces of the United States, and surgical and other medical treatment for the child. (d) If a petition seeking the adoption of the child is not filed within one year after the date of the disposition order, the court shall then, and at least yearly thereafter as long as the child remains unadopted, review the circumstances of the child to determine what efforts have been made to assure that the child will be adopted. The court may then enter such orders as it deems necessary to further the adoption, including but not limited to another placement. >- NEXT 9/22/97 7:36:24 PM GeorgiaNet - Official Code 19-8-10 Page 1 of2 >- --~-----:'4~":' 19-8-10 G *** CODE SECTION *** 08/08/97 19-8-10. (a) Surrender or termination of rights of a parent pursuant to subsection (a) of Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7 shall not be required as a prerequisite to the filing of a petition for adoption of a child of that parent pursuant to Code SeCL~on 19-8-13 where: (1) That child has been abandoned by that parent; (2) That parent cannot be found after a diligent search has been made; or (3) That parent is insane or otherwise incapacitated from surrendering such rights, and the court is of the opinion that the adoption is in the best interests of that child. (b) Surrender of rights of a parent pursuant to subsection (a) of Code Section 19-8-6 or 19-8-7 shall not be required as a prerequisite to the filing of a petition for adoption of a child of that parent pursuant to Code Section 19-8-13, if that parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) To communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) To provide for the care and support of that child as required by law or judicial decree, and the court is of the opinion that the adoption is for the best interests of that child. (c) Whenever it is alleged by any petitioner that surrender or termination of rights of a parent is not a prerequisite to the filing of a petition for adoption of a child of that parent in accordance with subsection (a) or (b) of this Code section, that parent shall be personally served with a conformed copy of the adoption petition, together with a copy of the court's order thereon specified in Code Section 19-8-14, or, if personal service cannot be perfected, by registered or certified mail, return receipt requested, at his last known address. If service cannot be made by either of these methods that parent shall be given notice by pUblication once a week tor three weeks in the official organ of the county where the petition has been filed and of the county of his last known address. A parent who receives notification pursuant to this paragraph may appear in the pending adoption action and show cause why such parent's rights to the child sought to be adopted in that actlon should not be terminated by that adoption. Notice shall be deemed to have been recelved the date: (~) ?ersonal serVlce is perfected; 9/22/97 7:36:41 PM GeorgiaNet - Official Code 19-8-10 (2) Of delivery shown on the return receipt of registered or certified mail; or (3) Of the last publication. ..c. I' ~'i \, I \ II " Page 2 of2 >- ----_.NU r 9/22/97 7:36:42 PM GeorgiaNet - Official Code 19-8-11 Page 1 of2 >- - - - - NE\ r 19-8-11 G *** CODE SECTION *** 08/08/97 19-8-11. (a) (1) In those cases where the department or a child-placing agency has either obtained: (A) The voluntary written surrender of all parental rights from one of the parents or the guardian of a child; or (B) An order of a court of competent jurisdiction terminating all of the rights of one of the parents or the guardian of a child, the department or child-placing agency may in contemplation of the placement of such child for adoption petition the superior court of the county where the child resides to terminate the parental rights of the remaining parent pursuant to this Code section. (2) In those cases where a pp.rson who is the resident of another state has obtained the voluntary written surrender of all parental rights from one of the parents or the guardian of a child, each such person to whom the child has been surrendered may in contemplation of the adoption of such child in such other state petition the superior court of the county where the child resides to terminate the parental rights of the remaining parent pursuant to this Code section. (3) Parental rights may be terminated pursuant to paragraph (1) or (2) of this subsection where: (A) The child has been abandoned by that parent; (B) That parent of the child cannot be found after a diligent search has been made; (C) That parent is insane or otherwise incapacitated from surrendering such rights; or (D) That parent does not have physical custody of the child and, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has slgnificantly failed to communicate with the child in a meaningful, supportive, parental manner, and the court shall set the matter down to be heard in chambers not less than 30 and not more than 60 days following the receipt by such remaining parent of the notice under subsection (b) of this Code sectlon and shall enter an order terminating such parental rights if it so finds and if it is of the opinion that adoption is in the best interests of the child. (b) Whenever a petition is filed pursuant to subsection (a; of this Code section, the parent whose rights the petitioner is seeklng to terffilnate shall be personally served with a conformed copy of the petitlon, and a copy of the court's order setting forth the date upon whlch the petitlon shall be consldered or, if personal serVlce cannot be perfected, by reglstered or certified mail, return receipt 9/22/97 7:36:~~8 PM GeorgiaNet - Official Code 19-8-11 Page 2 of2 requested, at his last known address. If service cannot be made by either of these methods, that parent shall be given notice by publication once a week for three weeks in the official organ of the county where the petition has been filed and of the county of his last known address. A parent who receives notification pursuant to this subsection may appear and show cause why such parentIs rights to the child sought to be placed for adoption should not be terminated. Notice shall be deemed to have been received the date: (1) Personal service is perfected; (2) Of delivery shown on the return receipt of registered or certified mail; or (3) Of the last publication. "'f':;J \, ,,~ '-, --- NEXT. 9/22/97 7:36:58 PM SENATE BILL 26 Full Text of the Bill Code Sections Amended by the Bill SB 26 - GeorgiaNet Page 1 of6 1. Oliver 42nd 2. Land 16th 3. Starr 44th SB 26 97 SENATE BILL 26 SB 26/AP By: Senators Oliver of the 42nd, Land of the 16th, Starr of the 44th and others A BILL TO BE ENTITLED AN ACT 1 To amend Article 1 of Chapter 11 of Title 15 of the Official 2 Code of Georgia Annotated, relating to juvenile proceedings, 3 and Article 1 of Chapter 7 of Title 19 of the Official Code 4 of Georgia Annotated, relating to legitimacy, so as to 5 change provisions relating to the jurisdiction for 6 termination of the legal parent-child relationship and the 7 rights of the biological father who is not the legal father 8 of the child; to provide for concurrent jurisdiction in the 9 juvenile court regarding such matters in connection with 10 adoption proceedings; to ~rovide for concurrent jurisdiction 11 in the juvenile court and superior court for petitions for 12 legitimation; to provide for a jury trial regarding support 13 if a demand for such is properly filed by either parent; to 14 provide for admittance of the general public to child 15 support and legitimation hearings; to provide for public 16 inspection of files and records in legitimation cases; to 17 provide for permanent records of legitimation cases; to 18 provide an effective date; to repeal conflicting laws; and 19 for other purposes. 20 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 21 SECTION 1. 22 Article 1 of Chapter 11 of Title 15 of the Official Code of 23 Georgia Annotated, relating to juvenile proceedings, is 24 amended in Code Section 15-11-5, relating to the 25 jurisdiction of the juvenlle court, by striking in its 26 entirety subsection (a), inserting in lieu thereof a new 27 subsection (a), and inserting a new subsection to be 28 designated subsection (e) to read as follows: 29 "(a) Exclusive original jurisdiction. Except as provided 30 in subsection (b) of this Code section, the court shall 31 have excluslve nriginal jurisdiction over juvenile matters 32 and shall be ~he sole court for initiating action: 33 (1) Concerning any chlld: 34 (A) Who is alleged to be delinquent; 35 s. B. 26 -1- 1 (B) Who lS alleged to be unruly; SB 26/AP 9/22/97 7:40:20 PM SB 26 - GeorgiaNet 2 (C) Who is alleged to be deprived; 3 (D) Who is alleged to be in need of treatment or 4 commitment as a mentally ill or mentally retarded 5 child; 6 (E) Who is alleged to have committed a juvenile 7 traffic offense as defined in Code Section 15-11-49; 8 or 9 (F) Who has been placed under the supervision of the 10 co~~t or on probation to the court; provided, hc~ever, 11 that such jurisdiction shall be for the sole purpose 12 of completing, effectuating, and enforcing such 13 supervision or a probation begun prior to the 14 individual's seventeenth birthday; or 15 (2) Involving any proceedings: 16 (A) For obtaining judicial consent to the marriage, 17 employment, or enlistment in the armed services of any 18 person if such consent is required by law; 19 (8) Under the Interstate Compact on Juveniles, or any 20 comparable law, if enacted or adopted in this state; 21 (C) For the termination of the legal parent-child 22 relationship and the rights of the biological father 23 who is not the legal father of the child, other than 24 that in connection with adoption proceedings under 25 Chapter 8 of Title 19, in which the superior courts 26 shall have enclusive concurrent jurisdiction to 27 terminate the legal parent-child relationship and the 28 rights of the biological father who is not the legal 29 father of the child; or 30 (D) Under Article 3 of this chapter, relating to prior 31 notice to a parent or guardian relative to an 32 unemancipated minor's decision to seek an abortion." 33 "(e) Concurrent jurisdiction as to legitimation petitions. 34 (1) The juvenile court shall have concurrent 35 jurisdiction to hear any legitimation petition 36 transferred to the Juvenile court by proper order of the 37 superior court. 38 (2) The juvenile court shall have jurisdiction to hear 39 any legitimation petition filed pursuant to Code Section 40 19-7-22 as to a child with respect to whom a deprivation 41 S. B. 26 -2- SB 26/AP 1 proceeding is pending in the juvenile court at the time 2 the legitlmation petitlon is filed. 3 (3) Notwithstanding the provisions of paragraphs (1) and 4 (2) of thlS subsectlon, after a petition for 5 legitimatlon is granted, if a demand for a Jury trial as 6 to support has been properly filed by elther parent, 9/22/97 Page 2 of6 7:40:20 PM SB 26 - GeorgiaNet 7 then the case shall be transferred to superior court for 8 such jury trial. It 9 SECTION 2. 10 Said article is further amended by striking in its entirety 11 subsection (c.1) of Code Section 15-11-28, relating to 12 hearings, and inserting in lieu thereof the following: 13 "(c.l) The general public shall be admitted to: 14 (1) An adjudicatory hearing involving an allegation of a 15 designated felony pursuant to Code Section 15-11-37; 16 (2) An adjudicatory hearing involving an allegation of 17 delinquency brought in the interest of any child who has 18 previously been adjudicated delinquent; provided, 19 however, the court shall close any delinquency hearing 20 on an allegation of sexual assault or any delinquency 21 hearing at which any party expects to introduce 22 substantial evidence related to matters of deprivation; 23 &f 24 (3) Any child support hearing; 25 (4) Any hearing in a legitimation action filed pursuant 26 to Code Section 19-7-22; or 27 (5) At the court's discretion, any dispositional hearing 28 involving any proceeding under this article." 29 SECTION 3. 30 Said article is further amended by striking in its entirety 31 Code Section 15-11-58, relating to inspection of court files 32 and records, and inserting in lieu thereof the following: 33 "15-11-58. 34 (a) Except in cases arising under Code Section 15 11 49, 35 and subject to the requirements of subsection (dl of Code 36 Section 15 11 33 and Code Section 15 11 61, and 'dith the 37 elEception of any complaint, petition, and order from any 38 case that ""as open to the public pursuant to subsection 39 (c.1) of Code Section 15 11 28, as provided in subsection 40 S. B. 26 -3- SB 26/AP 1 (b) of this Code section, all files and records of the 2 court in a proceeding under this article are open to 3 inspection only upon order of the court. 4 (b) Subject to the requirements of subsection (d) of Code 5 Section 15-11-33 and Code Sectiun 15-11-61, the general 6 public shall be allowed to inspect court files and records 7 for cases arislng under Code Section 15-11-49 or any 8 complaint, petltlon, or order from any case that was open 9 to the publlc pursuant to subsectlon (c.1) of Code Section 10 15-11-28. The general publlc shall be allowed to inspect 11 court files and records for proceedings involvlng a 9/22/97 Page 3 of6 7:40:20 PM SB 26 - GeorgiaNet 12 legitimation petition under the jurisdiction of the 13 juvenile court pursuant to paragraph (1) or (2) of 14 subsection (e) of Code Section 15-11-5. 15 (c) (1) The jUdge may permit authorized representatives 16 of recognized organizations compiling statistics for 17 proper purposes to inspect and make abstracts from 18 official records under whatever conditions upon their 19 use and distribution the jUdge may deem proper and may 20 punish by contempt any violation of those conditions. 21 (2) The judge may permit any school principal or any 22 s~hool guidance counselor, school social worker, or 23 school psychologist who is certified under Chapter 2 of 24 Title 20 and who is counseling a student as a part of 25 such counseling person's school employment duties to 26 review official records of the court in any proceeding 27 under this chapter concerning that student, including 28 but not limited to records of that child's controlled 29 substance or marijuana abuse, which records are 30 protected by Code Section 49-5-41.1, under whatever 31 conditions that the judge may deem proper and may punish 32 by contempt any violation of those conditions. 33 (d) The jUdge shall permit authorized representatives of 34 the Department of Children and Youth Services, the 35 Department of Corrections, the Children and Youth 36 Coordinating Council, and the Council of Juvenile Court 37 JUdges to inspect and extract data from any court files 38 and records for the purpose of obtaining statistics on 39 juveniles and to make copies pursuant to the order of the 40 court." 41 SECTION 4. 42 Said article is further amended by striking in its entirety 43 subsection (c) of Code Section 15-11-65, relating to 44 S. B. 26 -4- SB 26/AP 1 juvenile court as a court of inquiry and court of record, 2 and warrants, and inserting in lieu thereof the following: 3 "(c) Records. Subject to the earlier sealing of certain 4 records pursuant to Code Section 15-11-61, the juvenile 5 court shall make and keep records of all cases brought 6 before it and shall preserve the records pertaining to a 7 child until ten years after the last entry was made. 8 Thereafter, the court may destroy such records, except 9 that records of cases where orders were entered 10 permanently depriving a parent of the custody of a child 11 and records of cases involving a petition for legitimation 12 of a Chlld filed pursuant to Code Section 19-7-22 shall be 13 preserved permanently. The Juvenile court shall make 14 official minutes consisting of all petitions and orders 15 filed in a case and any other pleadings, certificates, 16 proofs of pUblicat~on, summonses, warrants, and other 17 writs which may be filed therein and shall make social 13 records conslstlng of records of investlgation and 19 treatment and other confldential lnformation." 9/22/97 Page 4 of6 7:40:20 PM sa 26 - GeorgiaNet 20 SECTION 5. 21 Article 1 of Chapter 7 of Title 19 of the Official Code of 22 Georgia Annotated, relating to legitimacy, is amended by 23 striking in its entirety Code Section 19-7-22, relating to 24 petitions for legitimation, and inserting in its place the 25 following: 26 "19-7-22. 27 ~ A father of a child born out of wedlock may render the 28 same legitimate by petitioning the superior court of the 29 county of his residence, the county of residence of the 30 ~hild, or, if a petition for the adoption of the child is 31 pending, the county in which the adoption petition is 32 filed for legitimation of the child. 33 (b) The petition shall set forth the name, age, and sex of 34 the child, the name of the mother, and, if the father 35 desires the name of the chiid to be changed, the new name. 36 If the mother is alive, she shall have notice of the 37 petition for legitimation. 38 (c) Upon the presentation and filing of the petition, the 39 court may pass an order declaring the child to be 40 legitimate and to be capable of inheriting from the father 41 in the same manner as if born in lawful wedlock and 42 specifying the name by which the child shall be known. 43 S. B. 26 -5- SB 26/AP 1 (d) A legitimation petition may be filed, pursuant to 2 paragraph (2) of subsection (e) of Code Section 15-11-5, 3 in the juvenile court of the county in which a deprivation 4 proceeding regarding the child is pending. 5 ~ In addition, Except as provided by subsection (fl of 6 this Code section, the court shall upon notice to the 7 mother further establish such duty as the father may have 8 to support the child, considering the facts and 9 circumstances of Lhe mother's obligation of support and 10 the needs of the child. 11 (fl After a petition for legitimation is granted, if a 12 demand for a Jury trial as to support has been properly 13 filed by either parent, then the case shall be transferred 14 to superior court for such Jury trial." 15 SECTION 6. 16 Notwithstanding the provisions of Code Section 1-3-4.1 of 17 the Official Code of Georgia Annotated to the contrary, this 18 Act shall become effective on July 1, 1997. 19 SECTION 7. 20 ~~l laws and parts of laws l~ conflict wlth this Act are 21 repealed. 9/22/97 Page 5 of6 7:40:20 PM SB 26 - GeorgiaNet Page 6 of6 22 S. B. 26 -6- 9/22/97 7:40:20 PM SB 26 - GeorgiaNet . Page 1 of 1 Previous full text revisions: 01121197, 01/13/97, 02/11197, 02/14/97 ,03/07/97, 03/24/97 SB 26 Petitions for Legitimation jurisdiction, juvenile court 1. Oliver 42nd 2. Land 16th 3. Starr 44th Senate Corom: Judy / House Corom: Judy / Senate Vote: Yeas 54 Nays 0 Senate Action House 1/14/97 2/11/97 Sub 2/13/97 2/14/97 2/14/97 CS 3/28/97 4/4/97 5/5/97 493 7/1/97 Read 1st time Favorably Reported Committee Amend/Sub Read 2nd Time Read 3rd Time passed/Adopted Corom/Floor Amend/Sub Amend/Sub Agreed To Sent To Governor Signed by Governor Act/Veto Number Effective Date 2/17/97 3/7/97 Sub 2/18/97 3/24/97 3/24/97 CS/FA Code Sections amended: 15-11-5, 15-11-28, 15-11-58, 15-11-65, 19-7-22 9/22/97 7:4221 PM GeorgiaNet - Official Code 15-11-5 ,( ~"'1' ...... t . , '. I I>t ,.... Page 1 of3 > ....~-~-- ........ --- N E\ r 15-11-5 G *** CODE SECTION *** 08/08/97 15-11-5. (a) Exclusive original jurisdiction. Except as provided in subsection Ib) of this Code section, the court shall have exclusive original jurisdiction ove~ juvenile matters and shall be the sole court for initiating action: (1) Concerning any child: (A) Who is alleged to be delinquent; (B) Who is alleged to be unruly; (C) Who is alleged to be deprived; (D) Who is alleged to be in need of treatment or commitment as a mentally ill or mentally retarded child; (E) Who is alleged to have committed a juvenile traffic offense as defined in Code Section 15-11-49; or (F) Who has been placed under the supervision of the court or on probation to the court; provided, however, that such jurisdiction shall be for the sole purpose of completing, effectuating, and enforcing such supervision or a probation begun prior to the individual's seventeenth birthday; or (2) Involving any proceedings: (A) For obtaining jUdicial consent to the marriage, employment, or enlistment in the armed services of any person if such consent is required by law; (B) Under the Interstate compact on Juveniles, or any comparable law, if enacted or adopted in this state; (C) 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 Chapter 8 of Title 19, in which the superior courts shall have co~current Jurisdiction to terminate the legal parent-child relatlonship and the rights of the biological father who is not the leg2 1 father of the child; or (D) Under Article 3 of th-_s chapter, relati~g to prior notice to a parent or guardian relative to an unemancipated minor's declsion to seek an abortion. (b) criminal Jurisdiction. (1) Except as provided in paragraph (2) of this subsection, the court shall have concurrent jllrisdiction with the superior court over a child who is alleged to have committed a dellnquent act whlch would be considered a crime if trled in a superior court and for whlch the child may be punished by loss of Ilfe, imprlsonment for life without possibllity of parole, or conflnement for Ilfe in a penal institutlon. 9/22/97 7:42:30 PM GeorgiaNet - Official Code 15-11-5 (2) (A) The superior court shall have exclusive jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed any of the following offenses: (i) Murder; (ii) Voluntary manslaughter; (iii) Rape; (iv) Aggravated sodomy; (v) Aggravated child molestation; (vi) Aggravated sexual battery; or (vii) Armed robbery if committed with a firearm. (A.l) The granting of bailor" pretrial release of a juvenile charged with an offense enumerated in SUbparagraph (A) of this paragraph shall be governed by the provisions of Code Section 17-6-1. (B) 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 subparagraph (A) of this paragraph which is not punishable by loss of life, imprisonment for life without possibility of parole, or confinement for life in a penal institution. 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 subparagraph shall be SUbject to the designated felony provisions of Code Section 15-11-37 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 15-11-37. (C) Before indictment, the district attorney may, after investigation and for extraordinary cause, decline prosecution in the superior court of a child 13 to 17 years of age alleged to have committed an offense specified in subparagraph (A) of this paragraph. Upon declining such prosecution in the superior court, the district attorney shall immediately withdraw the case and lodge it in the appropriate Juvenile court for adjudication. Any case transferred by the district attorney to the juvenile court pursuant to this SUbparagraph shall be subject to the deslgnated felony provisions of Code Section 15-11-37 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 felcy provisions of Code Section 15-11-37. (D) The superior court may transfer any case involving a child 13 to 17 years of age alleged to have committed any offense enumerated in subparagraph (A) of this paragraph and convicted of a lesser included offense not included in subparagraph (A) of this paragraph to the juvenile court of the county ~f the child's resldence for disposition. Upon such a transfer by the superior court, Jurisdiction shall vest in the juvenile court and Jurisdlction of the superlor court shall terminate. (E) Within 30 days of any proceedlng in which a child 13 to 17 years of age ~s convicted of certain offenses over which the Page 2 of3 9/22/97 7:42:30 PM GeorgiaNet - Official Code 15-11-5 Page 3 of3 superior court has exclusive jurisdiction as provided in sUbparagraph (A) of this paragraph 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 student is assigned may request further information from the court's file. (c) Concur~~nt custody and support jurisdiction. Where~~stody is the subject of controversy, except in those cases where the law gives the superior courts exclusive jurisdiction, in the consideration of these cases the juvenile court shall have concurrent jurisdiction to hear and determine the issue of custody and support when the issue is transferred by proper order of the superior court. (d) Age limit for new actions. The juvenile court shall not have jurisdiction to initiate any new action against an individual for acts committed after he or she has reached the age of 17 years. This subsection does not affect the court's jurisdiction to enter extension orders pursuant to Code Section 15-11-41. 15-11-5(e) (e) Concurrent jurisdiction as to legitimation petitions. (1) The juvenile court shall have concurrent jurisdiction to hear any legitimation petition transferred to the juvenile court by proper order of the superior court. (2) The juvenile court shall have jurisdiction to hear any legitimation petition filed pursuant to Code section 19-7-22 as to a child with respect to whom a deprivation proceeding is pending in the juvenile court at the time the legitimation petition is filed. (3) Notwithstanding the provisions of paragraphs (1) and (2) of this subsection, after a petition for legitimation is granted, 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 such jury trial. -- NEXT )r. 9/22/97 7:42:31 PM GeorgiaNet - Official Code 15-11-28 ~~t '" ''.'\j \.,'I l;,,>'-", Page 1 of3 - - - - -~. ..-....- -~-~- ~ EX;' .. 15-11-28 G *** CODE SECTION *** 08/08/97 15-11-28. (a) All hearings shall be conducted by the court without a jury. Any heariny may be adjourned from time to time within the discretion of the court as set forth in subsection (e) of Code Section 15-11-33. (b) Unless waived by the juvenile and his parent, guardian, or attorney, the proceedings shall be recorded by stenographic notes or by electronic, mechanical, or other appropriate means. (c) Except as otherwise provided by subsection (c.1) of this Code section, the general public shall be excluded from hearings involving delinquency, deprivation, or unruliness. Only the parties, their counsel, witnesses, persons accompanying a party for his or her assistance, and any other persons as the court finds have a proper interest in the proceeding or in the work of the court may be admitted by the court. The court may temporarily exclude the child from the hearing except while allegations of his or her delinquency or unruly conduct are being heard. (c.1) The general public shall be admitted to: (1) An adjudicatory hearing involving an allegation of a designated felony pursuant to Code section 15-11-37; (2) An adjudicatory hearing involving an allegation of delinquency brought in the interest of any child who has previously been adjudicated delinquent; provided, however, the court shall close any delinquency hearing on an allegation of sexual assault or any delinquency hearing at which any party expects to introduce substantial evidence related to matters of deprivation; (3) Any child support hearlng; (4) Any hearing in a legitimation action filed pursuant to Code Section 19-7-22; or (5) At the court's discretion, any dispositional hearing involving any proceeding under this article. (d) In any proceeding before the juvenile court, the Judge, upon his own motion, may request the assistance of the district attorney or a member of t~s staff to conduct the proceedings on ber.alf of the petitioner. If for any reason the district attorney is unable to assist, the judge may appoint legal counsel for such purpose. (e) In any delinquency proceeding in which a petition has been filed, the district attorney or a member of his staff shall conduct the proceedings on behalf of the state if requested to do so by the juvenile court if the state is not otherwise represented by a sollcltor of the Juvenlle court. Notwlthstanding any other provlslons of law to the contrary, in any delinquency proceedings conducted by the distrlc: attorney or a member of DlS staff, the distrlct attorney or sta:: member shall be entitled to complet~ access to all court flIes, probation flIes, hearing transcripts, 9/22/97 7:42:44 PM GeorgiaNet - Official Code 15-11-28 delinquency reports, and any other juvenile court records which may be of assistance to the district attorney or staff member in the conduct of such delinquency proceedings. It shall be the duty of the clerk and probation officers of the juvenile court to assist the district attorney or staff member in obtaining any such files, transcripts, reports, or records, or copies thereof, as may be requested by the district attorney or staff member. In any such case, the petition shall be dismissed by the court upon the motion of the district attorney setting forth that there is not sufficient evidence to warrant the further conduct of the proceeding. (f) (1) In any delinquency proceeding in which a petition has been filed, the juvenile court shall notify any victim of a delinquent child's alleged offense that the victim may submit a victim impact statement if: (A) The delinquent child, in committing a fe'.ony, caused physical, psychological, or economic injury to the victim; or (B) The delinquent child, in committing a misdemeanor, caused serious physical injury or death to the victim. (2) A victim impact statement submitted by a victim shall be attached to the case file and may be used by the district attorney or the jUdge during any stage of the proceedings against the child involving predisposition, disposition, or determination of restitution. (3) A victim impact statement shall: (A) Identify the victim of the offense and the perpetrator; (B) Itemize any economic loss suffered by the victim as a result of the offense; (C) Identify any physical injury suffered by the victim as a result of the offense along with its seriousness and permanence; (D) Describe any change in the victim's personal welfare or familial relationships as a result of the offense; (E) Identify any request for psychological services initiated by the victim or the victim's family as a result of the offense; and (F) Contain any other information related to the impact of the offense upon the victim that the court requires. (4) The victim may complete the victim impact statement 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 statement form on behalf of the victlffi. (5) The court shall, in the manner prescribed by rule of court, provide the child with a copy of the victim impact statement within a reasonable time prior to any hearing at which it is to be considered and allow the child to have the opportunity to rebut the victim;s wrltten statements. (6) No dlsposltlon 0: the child shall be invalldated because of fallure to comply wlth the provisions of this Code section. This Code sectlon shall net be construed to create any cause of action Page 2 of3 9/22/97 7:42:45 PM GeorgiaNet - Official Code 15-11-28 or any right of appeal on behalf of any person. -- ~~'r;ll, l' It, Page 3 of3 ~ M~ ~f:\ l' . . 9/22/97 7:42:45 PM GeorgiaNet - Official Code 15-11-58 Page 1 of 1 ----N E.\ j' . . 15-11-58 G *** CODE SECTION *** 08/08/97 15-11-58. (a) Except as provided in subsection (b) of this Code section, all files and records of the court in a proceeding under this article are open to inspection only upon order of the court. (b) Subject to the requirements of subsection (d) of Code Section 15-11-33 and Code Section 15-11-61, the general public shall be allowed to inspect court files and records for cases arising under Code Section 15-11-49 or any complaint, petition, or order from any case that was open to the public pursuant to subsection (c.1) of Code Section 15-11-28. The general public shall be allowed to inspect court files and records for proceedings involving a legitimation petition under the jurisdiction of the juvenile court pursuant to paragraph (1) or (2) of subsection (e) of Code Section 15-11-5. (c) (1) 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. (2) The judge may permit any school principal or any school guidance counselor, school social worker, or school psychologist who is certified under Chapter 2 of Title 20 and who is counseling a student as a part of such counseling person's school employment duties to review official records of the court in any proceeding under this chapter concerning that student, including but not limited to records of that child's controlled substance or marijuana abuse, which records are protected by Code Section 49-5-41.1, under whatever conditions that the judge may deem proper and may punish by contempt any violation of those conditions. (d) The jUdge shall permit authorized representatives of the Department of Juvenile Justice, the Department of Corrections, the Children and Youth coordinating Council, 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 juveniles and to make copies pursuant to the order of the court. (e) Notwithstanding any other provision of law, the complaint, petition, order of adJudicatlon, and order of disposition in any delinquency case in which the child has been adjudicated to be delinquent for a violation of the criminal laws of this state shall be disclosed upon request of counsel for the state or the accused for use prelimlnarily to or In conjunctlon with a subsequent Juvenlle or crlminal proceeding in a court of record. : NEXT" 9/22/97 7:42:58 PM GeorgiaNet - Official Code 15-11-65 Page 1 of2 _ _ _ ~w .NE\ I ~~ .. 15-11-65 G *** CODE SECTION *** 08/08/97 15-11-65. (a) Court of inquiry. The juvenile court shall have jurisdiction to act as a court of inquiry with all the powers and right~ 31lowed 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 years of age or over that may be in violation of the laws of this state whenever the person is brought before the court in the course of any proceeding instituted under this article. 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. Where, 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 the bond or bail as the court shall deem proper under the circumstances, to cause the person to appear before the court of proper jurisdiction in this state to be acted upon as provided by law. (b) Court of record. The juvenile court is a court of record, having a seal. The judge and his duly appointed representatives shall each have power to administer oaths and affirmations. (c) Records. Subject to the earlier sealing of certain records pursuant to Code Section 15-11-61, the juvenile court shall make and keep records of all cases brought before it and shall preserve the records pertaining to a child until ten years after the last entry was made. Thereafter, the court may destroy such records, except that records of cases where orders were entered permanently depriving a parent of the custody of a child and records of cases involving a petition for legitimation of a child filed pursuant to Code Section 19-7-22 shall be preserved permanently. 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 therein and shall make social records consisting of records of investigation and treatment and other confidential information. (c.1) Records, dockets, indexes, files. Nothing in this chapter shall restrict or otherwise prohibit a juvenile cour~ 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 thls 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 maintained. (d) Issuance of warrants by Juvenlle court judge. The Juvenile court Judge and assoclate juvenile court Judge shall have authority to 9/22/97 7:43 12 PM GeorgiaNet - Official Code 15-11-65 Page 2 of2 issue a warrant for the arrest of any juvenile offender against the law of this state, based either on personal knowledge or the information of others given under oath. ..._-_._.. :-1'\ ";' ).. 9/22/97 7:43: 12 PM GeorgiaNet - Official Code 19-7-22 ----- ...(fTI \ :< 'l , Page 1 of 1 > -- .'--- - ~- -- -...- --"E\] 19-7-22 G *** CODE SECTION *** 08/08/97 19-7-22. (a) A father of a child born out of wedlock may render the same legitimat~ by petitioning the superior COurt of the cou~ty of his residence, the county of residence of the child, or, if a petition for the adoption of the child is pending, the county in which the adoption petition is filed fer legitimation of the child. (b) The petition shall set forth the name, age, and sex of the child, the name of the mother, and, if the father desires the name of the child to be changed, the new name. If the mother is alive, she shall have notice of the petition for legitimation. (c) Upon the presentation and filing of the petition, the court may pass an order declaring the child to be legitimate and to be capable of inheriting from the father in the same manner as if born in lawful wedlock and specifying the name by which the child shall be known. (d) A legitimation petition may be filed, pursuant to paragraph (2) of subsection (e) of Code Section 15-11-5, in the juvenile court of the county in which a deprivation proceeding regarding the child is pending. (e) Except as provided by subsection (f) of this Code section, the court shall upon notice to the mother further establish such duty as the father may have to support the child, considering the facts and circumstances of the mother's obligation of support and the needs of the child. (f) After a petition for legitimation is granted, 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 such jury trial. (g) Consistent with the purpose of subsection (a) of this Code section, whenever the Department of Human Resources petitions the superior court or other authorized trier of fact to establish paternity, the father may intervene to petition for the legitimation of the child born out of wedlock if the mother of the child consents to the filing of such legltimation petitlon. Upon the determination of paternity or if a voluntary acknowledgment of paternity has been made and has not been rescinded pursuant to Code Section 19-7-46.1, L,c court or trier vf fact as a matter of law and pursuant to the provislons of Code Sectlon 19-7-51 may enter an order or decree legitimating a child born out of wedlock, provided that such is in the best interest of the child. Issues of name change, visitation, and custody shall not be determined by the court until such time as a separate petitlon is filed by one of the parents or by the legal guardian of the child. Custody of the child shall rem~~n in the mother untll a court order lS entered addressing the issue of custody. 9/22/97 - NEXT)o: 7:4325 PM