As used in this chapter, the term:
(G.1) Home invasion in the first degree;
(F.1) Home invasion in the second degree;
(13.1) "Community supervision officer" means an individual employed by the Department of Community Supervision who supervises probationers who were adjudicated for committing a Class A designated felony act or Class B designated felony act, placed in restrictive custody, and released from such custody.
(32.1) "Family and permanency team" shall consist of all appropriate biological family members, relatives, and fictive kin of the child, as well as, as appropriate, professionals who are a resource to the family of the child, such as teachers, medical or mental health providers who have treated the child, or clergy, and not more than two members of the case planning team or permanency planning team selected by a child who is age 14 or older. The two members selected by the child shall not be a foster parent of, or caseworker for, the child. DFCS may reject an individual selected by the child if DFCS has good cause to believe that the individual would not act in the best interest of the child.
(60.1) "Qualified individual" means a trained professional or licensed clinician who is not an employee of the department and who is not connected to, or affiliated with, any placement setting in which children are placed by the department.
(60.2) "Qualified residential treatment program" means a program that:
(73.1) "Temporary alternatives to foster care" means measures that a juvenile court may order in lieu of removal of or placement of a child or children alleged to be dependent in protective custody which will prevent or reduce the trauma or removal; allow a child to be cared for by persons with whom the child has an existing bond or attachment; or that ensure the safety of the child pending further action by the court on the dependency complaint or petition.
(Code 1981, §15-11-2, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2014, p. 426, §§ 1, 2/HB 770; Ga. L. 2014, p. 432, § 2-1/HB 826; Ga. L. 2014, p. 441, §§ 2, 3/HB 911; Ga. L. 2014, p. 780, § 1-1/SB 364; Ga. L. 2015, p. 422, § 5-8/HB 310; Ga. L. 2015, p. 540, § 1-1/HB 361; Ga. L. 2015, p. 805, § 1/HB 492; Ga. L. 2016, p. 219, § 1/SB 331; Ga. L. 2016, p. 304, § 1/SB 64; Ga. L. 2017, p. 417, § 2-1/SB 104; Ga. L. 2017, p. 500, § 2-1/SB 160; Ga. L. 2018, p. 927, § 1-1/HB 906; Ga. L. 2019, p. 67, § 1/HB 472; Ga. L. 2019, p. 893, § 1/SB 225; Ga. L. 2020, p. 493, § 15/SB 429.)
The 2018 amendment, effective July 1, 2020, substituted the present provisions of paragraph (10) for the former provisions, which read: "'Child' means any individual who is:
"(A) Under the age of 18 years;
"(B) Under the age of 17 years when alleged to have committed a delinquent act;
"(C) Under the age of 22 years and in the care of DFCS as a result of being adjudicated dependent before reaching 18 years of age;
"(D) Under the age of 23 years and eligible for and receiving independent living services through DFCS as a result of being adjudicated dependent before reaching 18 years of age; or
"(E) Under the age of 21 years who committed an act of delinquency before reaching the age of 17 years and who has been placed under the supervision of the court or on probation to the court for the purpose of enforcing orders of the court."
The 2019 amendments. The first 2019 amendment, effective April 18, 2019, substituted the present provisions of paragraph (33) for the former provisions, which read: " 'Fictive kin' means a person who is known to a child as a relative, but is not, in fact, related by blood or marriage to such child and with whom such child has resided or had significant contact."; and added paragraph (73.1). The second 2019 amendment, effective May 7, 2019, added paragraphs (32.1), (60.1), and (60.2).
The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, substituted "family based" for "family-based" in subparagraph (60.2)(G).
Cross references.- Rights of minors, § 1-2-8.
Sale of alcoholic beverages to or by underage persons generally, § 3-3-23 et seq.
Minors, contracts for property or valuable consideration; contracts for necessaries, § 13-3-20.
Officers of the court and court personnel, Uniform Rules for the Juvenile Courts of Georgia, Rule 2.1 et seq.
Editor's notes.- Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides, in part, that the amendment by this Act shall apply to sentences entered on or after July 1, 2015.
Ga. L. 2016, p. 304, § 18/SB 64, not codified by the General Assembly, provides that: "This Act shall not be construed to affect a voluntary acknowledgement of legitimation that was valid under the former provisions of Code Section 19-7-21.1, nor any of the rights or responsibilities flowing therefrom, if it was executed on or before June 30, 2016."
Ga. L. 2017, p. 417, § 2-1/SB 104, which amended this Code section, purported to amend subparagraph (a)(12)(G) but actually amended subparagraph (12)(G).
Ga. L. 2017, p. 500, § 1-1/SB 160, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Back the Badge Act of 2017.' "
For application of this statute in 2020, see Executive Orders 04.23.20.02, 05.12.20.02, 05.28.20.02, 06.11.20.01, 06.29.20.02, 07.15.20.01, 07.31.20.02, 08.15.20.01, and 08.31.20.02.
A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.
Law reviews.- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B. J. 189 (1969). For article, "An Outline of Juvenile Court Jurisdiction with Focus on Child Custody," see 10 Ga. St. B. J. 275 (1973). For article, "'Committable for Mental Illness,': Is This a True Challenge to Transfer?," see 4 Ga. St. B. J. 32 (1998). For article, "A Child's Right to Legal Representation in Georgia Abuse and Neglect Proceedings," see 10 Ga. St. B. J. 12 (2004). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005); 58 Mercer L. Rev. 133 (2006). For article, "The Next Generation of Child Advocacy: Protecting the Best Interest of Children by Promoting a Child's Right to Counsel in Abuse and Neglect Proceedings," see 13 Ga. St. B. J. 22 (2007). For annual survey on criminal law, see 66 Mercer L. Rev. 37 (2014). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015). For article, "See No Evil, Speak No Evil: Georgia Supreme Court Narrows Requirements for Mandatory Reporters in May v. State," see 66 Mercer L. Rev. 837 (2015). For annual survey of criminal law, see 67 Mercer L. Rev. 31 (2015). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 127 (2016). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 61 (2017). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 89 (2017). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For annual survey on domestic relations, see 69 Mercer L. Rev. 83 (2017). For note criticizing jurisdiction of juvenile justice system over runaways and advocating alternative legal approaches, see 24 Emory L. J. 1075 (1975). For comment on Stanton v. Stanton, 213 Ga. 545, 100 S.E.2d 289 (1957), holding that parents cannot by contract restrict the discretion of the court in awarding custody and provision regulating the religious upbringing of the child may be entirely disregarded by the court, see 20 Ga. B. J. 546 (1958). For comment, "Seen But Not Heard: Advocating for the Legal Representation of a Child's Expressed Wish in Protection Proceedings and Recommendations for New Standards in Georgia," see 48 Emory L. J. 1431 (1999).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 24A-401 and 24A-2701, pre-2000 Code Sections 15-11-37, 15-11-41, 15-11-55, and pre-2014 Code Sections 15-11-2, 15-11-58(a), and 15-11-63(a), which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section. See the Editor's notes at the beginning of the chapter.
Appointment of an interested party as a child's guardian ad litem conflicted with the legislative aim of safeguarding a child's interest by providing the child with representation separate from any other interest in the litigation. In re J.S.C., 182 Ga. App. 721, 356 S.E.2d 754 (1987) (decided under former O.C.G.A. § 15-11-55).
Stated purpose of the juvenile code to protect and restore children whose well-being was threatened supported a finding that the term "subsistence ", as used in former O.C.G.A. § 15-11-8 (see now O.C.G.A. § 15-11-36), included expenses that might be incurred due to the need for emergency medical treatment of a child in the physical custody of the Department of Juvenile Justice. In the Interest of J.S., 282 Ga. 623, 652 S.E.2d 547 (2007) (decided under O.C.G.A. § 15-11-2).
Jurisdiction.
- Superior court properly declined jurisdiction in a custody action brought by grandparents because once a juvenile court took jurisdiction of a deprivation action concerning the child and, later, a termination action of parental rights, the court took jurisdiction of the entire case of the minor child including the issues of disposition and custody. Segars v. State, 309 Ga. App. 732, 710 S.E.2d 916 (2011) (decided under former O.C.G.A. § 15-11-58).
Serious injury not required for state intervention.
- Georgia law does not require a child to suffer serious injury before state intervention. In the Interest of T. S., 348 Ga. App. 263, 820 S.E.2d 773 (2018).
Foster children.
- Former O.C.G.A. §§ 15-11-13 and15-11-58 (see now O.C.G.A. §§ 15-11-2,15-11-30,15-11-134, and15-11-200 et seq.),20-2-690.1, and49-5-12 were not too vague and amorphous to be enforced by the judiciary and impose specific duties on the state defendants; thus, the federal regulatory scheme embodied in the CSFR process did not relieve the state defendants of the defendants obligation to fulfill the defendants statutory duties to the foster children, nor did the former statute provide a legal excuse for the defendants failure to do so. Kenny A. v. Perdue, F. Supp. 2d (N.D. Ga. Dec. 11, 2004) (decided under former O.C.G.A. § 15-11-58).
No equal protection violation.
- Treating deprived children who were placed in the legal custody of the Department of Families and Children Services because there was no relative committed to the child who was available for immediate placement differently from deprived children who did have a committed parent or guardian available for immediate placement did not violate the equal protection clause or Ga. Const. 1983, Art. I, Sec. I, Para. II. as the classes were not similarly situated and the laws were rationally related to the goal of minimizing government intervention while ensuring that children were reared in a familial environment. In the Interest of A.N., 281 Ga. 58, 636 S.E.2d 496 (2006) (decided under former O.C.G.A. § 15-11-58).
Juvenile proceeding to destination certain not unruly.
- Juvenile was not unruly, since the court rejected the notion that a juvenile returning home or proceeding to a destination certain would be "wandering" within the meaning of former O.C.G.A. § 15-11-2(12)(E) (see now O.C.G.A. §§ 15-11-2(ii)(A)(v),15-11-381, and15-11-471), as the section only applied to juveniles who were wandering or loitering on the streets, highways, or public places between those hours. In re T.H., 258 Ga. App. 416, 574 S.E.2d 461 (2002) (decided under former O.C.G.A. § 15-11-2).
Desert defined.
- "Desert," in its most common verb form, is defined as "to withdraw from or leave usually without intent to return;" accordingly, in order for a child to "desert" the child's home within the meaning of former O.C.G.A. § 15-11-2(12)(D) (see now O.C.G.A. §§ 15-11-2,15-11-381, and15-11-471), the child must leave the home without an intent to return to the home. Thus, when the defendant, a juvenile, left home for nearly two days but then returned voluntarily, the defendant's delinquency adjudication for being an unruly child had to be reversed. In the Interest of D.B., 284 Ga. App. 445, 644 S.E.2d 305 (2007) (decided under former O.C.G.A. § 15-11-2).
Unruliness based on habitual disobedience.
- Parent's testimony that on successive occasions the defendant, a juvenile, disobeyed the parent's instructions to return home at a specific time was sufficient to support the adjudication of the defendant as unruly based on habitual disobedience. In the Interest of B.B., 298 Ga. App. 432, 680 S.E.2d 497 (2009) (decided under former O.C.G.A. § 15-11-2).
Unruliness based on running away.
- Defendant, a juvenile, was properly found unruly based on running away when the defendant went to a grandparent's house without the parent's permission and did not return of the defendant's own volition. In the Interest of B.B., 298 Ga. App. 432, 680 S.E.2d 497 (2009) (decided under former O.C.G.A. § 15-11-2).
Question in proceeding for termination of parental rights is not that parents must be punished by termination of their parental rights because of their misconduct, though parental misconduct is an essential consideration, but whether children were without proper parental care or control, subsistence, or education as required by law, or other care or control necessary for their physical, mental or emotional health, or morals. Vermilyea v. Department of Human Resources, 155 Ga. App. 746, 272 S.E.2d 588 (1980) (decided under former Code 1933, § 24A-401).
Order for termination need not be explicit when facts can be derived.
- With regard to an order for termination of parental rights, it is not always necessary to state explicitly that lack of parental care is serious or egregious when the found facts are expressive of that state and conclusions are of deprivation and probable continuation of that condition. Vermilyea v. Department of Human Resources, 155 Ga. App. 746, 272 S.E.2d 588 (1980) (decided under former Code 1933, § 24A-401).
Evidentiary standards.
- Termination of parental rights is a severe measure. If a third party sues the custodial parent to obtain custody of a child and to terminate the parent's custodial rights in the child, the parent is entitled to custody of the child unless the third party shows by "clear and convincing evidence" that the parent is unfit or otherwise not entitled to custody under O.C.G.A. §§ 19-7-1 and19-7-4. Former O.C.G.A. § 15-11-33(b) required the court after a hearing to find "clear and convincing evidence" of "deprivation" before an order of deprivation may be entered. Heath v. McGuire, 167 Ga. App. 489, 306 S.E.2d 741 (1983) (decided under former Code 1933, § 24A-401).
Evidence of deprivation sufficient.
- Evidence that over the course of about two years after the child was born the mother failed multiple drug tests and missed numerous drug screenings was sufficient to support the juvenile court's findings that the child was deprived and the mother's lack of proper parental care caused the deprivation. In the Interest of S. O. C., 332 Ga. App. 738, 774 S.E.2d 785 (2015) (decided under former Code 1933, § 24A-401).
Evidence sufficient to support dependency finding.
- Order finding two children dependent as to their mother was affirmed because sufficient evidence supported the juvenile court's finding of abuse or neglect due in part to the mother's knowing violation of the terms of the safety plan on multiple occasions by failing to keep the children away from the mother's boyfriend, who had shot the children with a toy BB gun. In the Interest of T. S., 348 Ga. App. 263, 820 S.E.2d 773 (2018).
Evidence was sufficient to show by clear and convincing evidence that the child was dependent due to the mother's unfitness and abandonment at the time the juvenile court entered the court's order as the evidence showed that the mother was mentally and economically unstable, lacked stable housing, abused illegal drugs, and actually abandoned the child. In the Interest of A. B., 350 Ga. App. 575, 829 S.E.2d 842 (2019).
Insufficient evidence of dependency.
- Juvenile court lacked clear and convincing evidence to support the court's finding of dependency in that the juveniles had been abused or neglected because the evidence showed that the parent had passed all but one of the parent's drug screens, the parent was forthcoming and compliant in the parent's outpatient treatment, and there was no evidence that the parent's probation violations resulted in abuse or neglect of the children. In the Interest of G. M., 347 Ga. App. 487, 819 S.E.2d 909 (2018).
Juvenile court's dependency determination was not supported by clear and convincing evidence because no evidence or testimony was proffered regarding other children in foster care, and any concerns about the mother's residence and the evidence of drug use through two positive hair follicle drug screenings was controverted by the mother presenting three negative hair follicle drug screenings covering the same time period. In the Interest of M. S., 352 Ga. App. 249, 834 S.E.2d 343 (2019).
Juvenile court's conclusion that the child was dependent based on neglect was not supported by clear and convincing evidence in the record that the mother neglected the child or that the mother was unfit, rather the evidence showed that the mother had, at least temporarily, located suitable housing and the evidence did not support a finding of unfitness but rather showed that the mother was taking care of the child, the child was current on vaccinations, appropriately clothed, not underweight or malnourished, and appropriately bonded with the mother. In the Interest of V G., 352 Ga. App. 404, 834 S.E.2d 901 (2019).
Juvenile court erred in concluding there was clear and convincing evidence to support a finding that the father failed to protect and properly supervise the children and that the children were dependent as the trial court indicated that there was no evidence the children had been harmed by the father's actions and the father had been working from home and not left the children alone with the mother, who had a substance abuse problem. In the Interest of L. K., 353 Ga. App. 855, 840 S.E.2d 76 (2020).
Evidence sufficient to support dependency finding.
- Evidence that the mother routinely yelled at and threatened the children, disciplined the younger children by striking the children with a hand or belt so hard it left a mark, and frequently bit the children's heads or slapped their lips was sufficient to support a finding that the children were dependent. In the Interest of R. D., 346 Ga. App. 257, 816 S.E.2d 132 (2018).
Poverty and instability did not demonstrate profoundly detrimental parental conduct.
- Although evidence showed poverty and instability in the mother's living arrangements, the evidence did not demonstrate the profoundly detrimental and egregious parental conduct which led to termination of rights in previous cases. R.C.N. v. State, 141 Ga. App. 490, 233 S.E.2d 866 (1977) (decided under former Code 1933, § 24A-401).
Improvements in housing and employment.
- In determining whether the parent's current situation is stable, the juvenile court may consider the parent's past conduct and decide what weight, if any, is to be given to recent improvements in the parent's housing and employment circumstance. In the Interest of T. S., 348 Ga. App. 263, 820 S.E.2d 773 (2018).
Lack of housing and support caused by irregular employment.
- Lack of stable housing and lack of support due to a parent's unstable or irregular employment are appropriate factors in determining deprivation. In the Interest of T. S., 348 Ga. App. 263, 820 S.E.2d 773 (2018).
Failure to address child's special immigrant juvenile status.
- In a deprivation proceeding, a juvenile court erred by failing to address the child's special immigrant juvenile status under 8 U.S.C. § 1101(a)(27)(J)(ii) and a remand was necessary since the juvenile court had to determine whether the evidence supported the findings so that the federal government could address the issue in separate deportation proceedings. In the Interest of J. J. X. C., 318 Ga. App. 420, 734 S.E.2d 120 (2012) (decided under former O.C.G.A. § 15-11-2).
Non-accidental injuries.
- Eighteen-month-old child was properly found to be a dependent child because the child was a victim of abuse under O.C.G.A. § 15-11-2(2)(A) based on multiple bruises, a skull fracture, and other non-accidental injuries the child suffered while in the care of the mother and her boyfriend, who both acknowledged that no other person had been caring for the child. In the Interest of S. C. S., 336 Ga. App. 236, 784 S.E.2d 83 (2016).
Evidence of deprived child.
- Juvenile court did not err in concluding that the child was a deprived child and that the father was the reason for that deprivation because the evidence showing the father's lack of involvement in the child's welfare, leaving the child vulnerable to neglect inflicted by the mother, supported a finding that the father's failure to exercise proper care and control caused the child's deprivation; at the time of the February 2014 deprivation hearing, the father had been unemployed for almost a year, had no source of income, relied on the father's mother for financial support and housing, and was not actively seeking employment; and the father refused to submit to the required home evaluation, which included a drug test. In the Interest of M. R., 333 Ga. App. 30, 775 S.E.2d 281 (2015) (decided under former O.C.G.A. § 15-11-2(8)(A)).
Hearing in juvenile court seeking termination of probation must be treated as delinquency trial. K.E.S. v. State, 134 Ga. App. 843, 216 S.E.2d 670 (1975) (decided under former Code 1933, § 24A-401).
One becomes of full age on day preceding anniversary of one's birth, on the first moment of that day. Edmonds v. State, 154 Ga. App. 650, 269 S.E.2d 512 (1980) (decided under former Code 1933, § 24A-401).
Age of child at time of arrest.
- Delinquency petition against a juvenile was properly transferred to the state court on the ground that the juvenile was arrested for possessing marijuana on the day before the juvenile's seventeenth birthday; pursuant to former O.C.G.A. §§ 15-11-2 and15-11-28 (see now O.C.G.A. §§ 15-11-2 and15-11-10), the juvenile was deemed to have been 17 at the earliest moment of the day before the juvenile's birthday, which was the day the juvenile was arrested. In the Interest of A.P.S., 304 Ga. App. 513, 696 S.E.2d 483 (2010) (decided under former O.C.G.A. § 15-11-2).
Former O.C.G.A. § 15-11-2 was inapplicable to an unborn fetus who was facing almost certain death because of complications in pregnancy. Jefferson v. Griffin Spalding County Hosp. Auth., 247 Ga. 86, 274 S.E.2d 457 (1981) (decided under former O.C.G.A. § 15-11-2).
Statement of 17-year old admissible as not child.
- Fact that the defendant was 17 did not affect the admissibility of the defendant's statement. The defendant was not a "child" under former O.C.G.A. § 15-11-2. Robertson v. State, 297 Ga. App. 228, 676 S.E.2d 871 (2009), cert. denied, No. S09C1300, 2009 Ga. LEXIS 406 (Ga. 2009) (decided under former O.C.G.A. § 15-11-2).
Carrying weapon on school grounds Class B felony.
- Juvenile court erred by modifying the juvenile's disposition after determining that the disposition was void on the ground that the juvenile's conduct did not qualify as a Class-B felony because carrying a weapon in a school zone qualified as a Class-B designated felony under O.C.G.A. § 15-11-2 and "firearm" included "handguns" under O.C.G.A. § 16-11-131. In the Interest of D. B., 341 Ga. App. 559, 802 S.E.2d 19 (2017).
Third party must show grounds for custody by clear and convincing evidence.
- As between a natural parent and a third party (grandparent), the parent can be deprived of custody only if one of the conditions specified in O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4, or some other legal grounds is found to exist by clear and convincing evidence. Brant v. Bazemore, 159 Ga. App. 659, 284 S.E.2d 674 (1981) (decided under former O.C.G.A. § 15-11-2).
Admissibility of juvenile's confession.
- Issue of whether officer to whom juvenile was taken and to whom the juvenile made confession was a "juvenile court intake officer" did not affect admissibility of the statement when Miranda warnings were given and the juvenile's mother was present. Houser v. State, 173 Ga. App. 378, 326 S.E.2d 513 (1985) (decided under former O.C.G.A. § 15-11-2).
Violation of safety plan.
- When evidence shows that a parent violates a safety plan by placing a child in an abusive environment, a court may find dependency and order loss of custody. In the Interest of T. S., 348 Ga. App. 263, 820 S.E.2d 773 (2018).
Cited in In the Interest of H. J. C., 331 Ga. App. 506, 771 S.E.2d 184 (2015); In the Interest of G. R. B., 330 Ga. App. 693, 769 S.E.2d 119 (2015); In the Interest of C. M., 331 Ga. App. 16, 769 S.E.2d 737 (2015); In the Interest of S. P., 336 Ga. App. 488, 784 S.E.2d 846 (2016); In the Interest of M.D.H., 300 Ga. 46, 793 S.E.2d 49 (2016); In the Interest of J. N., 344 Ga. App. 409, 810 S.E.2d 191 (2018); In the Interest of K. D., 344 Ga. App. 423, 810 S.E.2d 193 (2018); In the Interest of I. L. M., 304 Ga. 114, 816 S.E.2d 620 (2018); In the Interest of M. F., 305 Ga. 820, 828 S.E.2d 350 (2019); In the Interest of A. L. S., 350 Ga. App. 636, 829 S.E.2d 900 (2019).
Jurisdiction of Court
Jurisdiction.
- Under former O.C.G.A. §§ 15-11-2(2)(B) and15-11-28(a)(1)(F) (see now O.C.G.A. §§ 15-11-2,15-11-381, and15-11-471), a juvenile court lacked jurisdiction over the defendant, who was over 17 when a probation violation occurred; thus, the defendant's commitment under O.C.G.A. § 15-11-63 (see now O.C.G.A. §§ 15-11-2,15-11-471, and15-11-602) was void. The state had not filed a petition for probation revocation, but only for a violation of probation. In the Interest of T.F., 314 Ga. App. 606, 724 S.E.2d 892 (2012) (decided under former O.C.G.A. § 15-11-63).
Juvenile may receive restrictive custody for the designated felony act of aggravated assault alone. C.P. v. State, 167 Ga. App. 374, 306 S.E.2d 688 (1983) (decided under former Code 1933, § 24A-401).
If the juvenile court made all the factual findings required by former O.C.G.A. § 15-11-37 and (see now O.C.G.A. §§ 15-11-2,15-11-471,15-11-602) and specifically found "the child is in need of restrictive custody" in the juvenile court's order of commitment, there was no error in confining the child in a youth development center. In re T.T., 236 Ga. App. 46, 510 S.E.2d 901 (1999) (decided under former O.C.G.A. § 15-11-37).
Trial court did not err in placing the defendants, both juveniles, in restrictive custody, as the aggravated assault that the defendants committed was a designated felony under former O.C.G.A. § 15-11-63(a) (see now O.C.G.A. § 15-11-2) that required a finding under O.C.G.A. § 15-11-63(b) (see now O.C.G.A. § 15-11-62) as to whether defendants required restrictive custody; the circumstances under former O.C.G.A. § 15-11-63(c) (see now O.C.G.A. § 15-11-62) supported the imposition of restrictive custody since the crime was severe, the crime was premeditated, and the crime had a devastating impact on the victim's life. In the Interest of T.K.L., 277 Ga. App. 461, 627 S.E.2d 98 (2006) (decided under former O.C.G.A. § 15-11-63).
Juvenile's sentence of four years in custody was proper on six counts of aggravated assault and one count of possession of a handgun by an underage person because the juvenile was not subject to one of the most severe punishments allowed by law, but was sentenced under former O.C.G.A. § 15-11-63 (see now O.C.G.A. §§ 15-11-2 and15-11-602), which had the central purpose of rehabilitation and treatment of the child and not punishment. In the Interest of T. D. J., 325 Ga. App. 786, 755 S.E.2d 29 (2014) (decided under former O.C.G.A. § 15-11-63).
Petition necessary to revoke probation.
- Juvenile court cannot sua sponte revoke probation and order a disposition as for a "designated felony act " after conducting a hearing on a petition which alleges only delinquency by reason of the commission of an act not within the ambit of former O.C.G.A. § 15-11-37 (see now O.C.G.A. §§ 15-11-2 and15-11-602). Before a juvenile court may revoke an order granting probation, a petition must be filed requesting such relief. In re B.C., 169 Ga. App. 200, 311 S.E.2d 857 (1983) (decided under former O.C.G.A. § 15-11-37).
No age requirement for previous designated felony acts.
- Juvenile court did not err in finding that the defendant committed a designated felony act under subparagraph (a)(2)(D) of former O.C.G.A. § 15-11-37 (see now O.C.G.A. §§ 15-11-2 and15-11-602), although the previous adjudicated delinquent acts were not committed when the defendant was 13 or more years of age. The previous act of burglary to which former subparagraph (a)(2)(D) referred carried no age requirement. The only requirement was that the juvenile commit a felonious act after three previous adjudications for acts which would have been felonies if committed by an adult. In re K.A.B., 188 Ga. App. 515, 373 S.E.2d 395 (1988) (decided under O.C.G.A. § 15-11-37).
Child molestation.
- Because child molestation was not an offense listed in former O.C.G.A. § 15-11-28(b)(2)(A) (see now O.C.G.A. §§ 15-11-401 and15-11-490), the trial court erred in using former O.C.G.A. § 15-11-63(a)(2)(D) (see now O.C.G.A. §§ 15-11-2 and15-11-602) to classify the offense as a designated felony act when the court sentenced a juvenile. In the Interest of M. S., 277 Ga. App. 706, 627 S.E.2d 422 (2006) (decided under former O.C.G.A. § 15-11-63).
Sentence vacated.
- Although the state argued that a juvenile had been adjudicated on five separate petitions setting out five separate felonies, because the record revealed that adjudication had occurred on only two prior occasions for acts which, if done by an adult, would have been felonies, the juvenile's sentence under former O.C.G.A. § 15-11-63(a)(2)(B)(vii) (see now O.C.G.A. § 15-11-2) was vacated, and the case was remanded for resentencing. In the Interest of P.R., 282 Ga. App. 480, 638 S.E.2d 898 (2006) (decided under former O.C.G.A. § 15-11-63).
No exclusive original jurisdiction over certain youthful offenders.
- Ga. L. 1971, p. 709, § 1 does not vest exclusive original jurisdiction in the juvenile court over the following class of youthful offenders: persons between the ages of 17 and 21 years, who have committed noncapital felonies, and who are under the supervision of or are on probation to a juvenile court for acts of delinquency committed before reaching the age of 17 years. State v. Crankshaw, 243 Ga. 183, 253 S.E.2d 69 (1979) (decided under former Code 1933, § 24A-401).
Former Code 1933, § 24A-401 was intended merely as a device for extending jurisdiction of juvenile courts to take actions against persons between the age of 17 and 21 years authorized under Ga. L. 1971, p. 709, § 1. State v. Crankshaw, 243 Ga. 183, 253 S.E.2d 69 (1979) (decided under former Code 1933, § 24A-401).
Noncapital felonies committed by persons over 17 years.
- Former statute should not be construed as giving the juvenile courts jurisdiction over noncapital felonies committed by persons after those people have reached the age of 17 years. State v. Crankshaw, 243 Ga. 183, 253 S.E.2d 69 (1979) (decided under former Code 1933, § 24A-401).
Age at time of offense controls.
- Although a juvenile no longer qualified as a child under former O.C.G.A. § 15-11-2(2)(A) and (B) after the juvenile's seventeenth birthday, it was the juvenile's age at the time of the offense which controls; therefore, because the juvenile was under the age of 17 at the time the act of delinquency occurred, the juvenile court properly exercised exclusive original jurisdiction over the juvenile's case. In the Interest of J.T.D., 242 Ga. App. 243, 529 S.E.2d 377 (2000) (decided under former O.C.G.A. § 15-11-2).
Violation of probation.
- Under former O.C.G.A. §§ 15-11-2(2)(B) and15-11-28(a)(1)(F (see now O.C.G.A. §§ 15-11-2 and15-11-10), a juvenile court lacked jurisdiction over the defendant, who was over 17 when a probation violation occurred; thus, the defendant's commitment under former O.C.G.A. § 15-11-63 ( In the Interest of T.F., 314 Ga. App. 606, 724 S.E.2d 892 (2012) (decided under former O.C.G.A. § 15-11-2).
Court without original jurisdiction of custody and support contest.
- Jurisdiction of a custody and support contest between parents, in the nature of habeas corpus, alleging that the children were deprived as defined by former Code 1933, § 24A-401 was governed by former Code 1933, § 50-103 (see now O.C.G.A. § 9-14-4). The juvenile court did not have original jurisdiction of such a contest. Griggs v. Griggs, 233 Ga. 752, 213 S.E.2d 649 (1975) (decided under former Code 1933, § 24A-401).
Juvenile court erred by granting custody of child to grandparents instead of father, after mother died, since the petition was not a deprivation action but a custody dispute as the juvenile court had no jurisdiction. In the Interest of K.R.S., 253 Ga. App. 678, 560 S.E.2d 292 (2002) (decided under former O.C.G.A. § 15-11-2).
Juvenile court jurisdiction over both adoption and parental termination proceedings.
- Trial court did not err in concluding that the court had jurisdiction over adoption and termination of parental rights proceeding as statutory law granted the trial court jurisdiction over adoption proceedings and other proceedings that were not granted exclusively to the juvenile courts; since the juvenile courts were granted exclusive jurisdiction over deprivation proceedings, those types of matters were to be heard by the juvenile courts, but the trial court had the authority to hear adoption and other matters, such as the adoptive parents' adoption petition filed to adopt the biological parents' minor child. Snyder v. Carter, 276 Ga. App. 426, 623 S.E.2d 241 (2005) (decided under former O.C.G.A. § 15-11-2).
Jurisdiction of juvenile court in transferred custody proceeding.
- Georgia Supreme Court affirmed the transfer of a father's petition for custody from Gwinnett County, Georgia, to Douglas County, Georgia because the "complaint for custody" that the father filed in Gwinnett County fairly was read as a petition to modify, vacate, or revoke the permanent guardianship, a petition over which the Juvenile Court of Douglas County had exclusive jurisdiction under the circumstances. In the Interest of M. F., 298 Ga. 138, 780 S.E.2d 291 (2015).
Jurisdiction over legitimation petition and for placement.
- Contrary to a mother's contention, the custody order showed on the order's face such facts as were necessary to give the juvenile court jurisdiction of the person and subject matter because the order referenced and incorporated the legitimation order entered days earlier, reflected on the order's face that all parties were served with a copy of the pleadings and were present, along with their counsel, and the mother did not contest the juvenile court's personal jurisdiction. In the Interest of B. H.-W., 332 Ga. App. 269, 772 S.E.2d 66 (2015).
Transfer from Superior Court needed for permanent custody order.
- In a private deprivation action brought by the maternal grandmother of a 9-year-old child, the juvenile court lacked authority to grant the grandmother permanent custody over the child for purposes of adoption because the case was not commenced in the Georgia Superior Court, which had jurisdiction over issues of permanent child custody; therefore, without a transfer order from the Superior Court under O.C.G.A. § 15-11-28, the custody award could not stand. In the Interest of C. A. J., 331 Ga. App. 788, 771 S.E.2d 457 (2015).
Delinquency
"Delinquent act" is one designated crime by state or federal law. Hartley v. Clack, 239 Ga. 113, 236 S.E.2d 63 (1977) (decided under former Code 1933, § 24A-401).
Probation violation included in justification of delinquency petition.
- Juvenile court erred when the court dismissed the state's petition alleging that a child had committed the delinquent act of violating probation as O.C.G.A. § 15-11-2(19)(B) plainly included a probation violation in the category of actions that may give rise to a new delinquency petition and O.C.G.A. § 15-11-608(b) plainly permitted the filing of a motion for revocation of probation, and no court is authorized to ignore either a petition brought under the first or a motion brought under the second. In the Interest of H. J. C., 331 Ga. App. 506, 771 S.E.2d 184 (2015).
Crime may be delinquent act when committed by juvenile.
- Juvenile court might well find that any act which is designated a crime under Georgia law is a delinquent act when committed by a juvenile. In order to do this, it is not necessary that the juvenile be considered or found guilty of a crime. K.M.S. v. State, 129 Ga. App. 683, 200 S.E.2d 916 (1973) (decided under former Code 1933, § 24A-401).
Crime committed even though child not yet 13 years.
- Juvenile court may adjudicate a child a delinquent based upon a petition alleging that the child committed an act designated a crime under Georgia law when the child has not yet attained the age of 13 years. K.M.S. v. State, 129 Ga. App. 683, 200 S.E.2d 916 (1973) (decided under former Code 1933, § 24A-401).
Delinquent act ceases to be "crime" only for proceedings in juvenile court and the resultant effects of its adjudication. A petition designating the act by another name does not destroy the act's essence so as to preclude legitimate proceedings elsewhere. J.E. v. State, 127 Ga. App. 589, 194 S.E.2d 288 (1972) (decided under former Code 1933, § 24A-401).
Delinquent acts including another or coincident crimes.
- It is necessary to an adjudication of a "delinquent act" that the act be one which is defined as, and would be, a "crime" if the act were committed by an adult, and this includes "delinquent acts" which would include another or coincident "crime" if committed by an adult, such as the crime of "possession of a firearm during the commission of a felony." In re D.T.C., 226 Ga. App. 364, 487 S.E.2d 21 (1997) (decided under former O.C.G.A. § 15-11-2).
Possession of alcohol as delinquent act.
- Possession of alcohol by a minor may be either a delinquent or an unruly offense, and, since it may be a delinquent act, violating a court-ordered probation imposed for such an offense may likewise be a delinquent act. In re C.P., 217 Ga. App. 505, 458 S.E.2d 166 (1995) (decided under former O.C.G.A. § 15-11-2).
Unnecessary to find adult intent.
- In order to find a juvenile defendant guilty of the delinquent act of attempted aggravated child molestation, the court must find that the defendant attempted aggravated child molestation with an intent to satisfy the defendant's own desires. Whether the juvenile defendant had the sexual intent or knowledge of an adult would be irrelevant. In re W.S.S., 266 Ga. 685, 470 S.E.2d 429 (1996) (decided under former O.C.G.A. § 15-11-2).
Driving without a license.
- Although the juvenile court could find that the juvenile was delinquent for driving without a license, the state did not prove that the juvenile was wandering or loitering in violation of former O.C.G.A. § 15-11-2(12)(E) since the juvenile was proceeding to a destination certain. In the Interest of T. H., 258 Ga. App. 416, 574 S.E.2d 461 (2002) (decided under former O.C.G.A. § 15-11-2).
Probation violation a delinquent act.
- Juvenile defendant's commitment to the Department of Juvenile Justice (DJJ) was proper because the defendant's violation of probation terms was a delinquent act and the defendant was found in need of treatment or rehabilitation under former O.C.G.A. § 15-11-66(a)(4) (see now O.C.G.A. § 15-11-601). In the Interest of B. Q. L. E., 297 Ga. App. 273, 676 S.E.2d 742, cert. denied, No. S09C1197, 2009 Ga. LEXIS 787 (Ga. 2009) (decided under former O.C.G.A. § 15-11-2).
Juvenile court had jurisdiction to hear and decide the state's petition alleging that the defendant, a juvenile, had committed the new delinquent act of violating probation, irrespective of whether the one-year terms of the defendant's probation ended after the commencement of the new delinquency proceedings. In the Interest of J. M. A., 340 Ga. App. 155, 796 S.E.2d 773 (2017).
Petition insufficient to charge juvenile as unruly.
- Juvenile court erred in denying the defendant juvenile's special demurrer to a petition accusing the defendant of being unruly pursuant to former O.C.G.A. §§ 15-11-2 and15-11-67 (see now O.C.G.A. §§ 15-11-2 and15-11-442) because the petition did not allege the defendant's misconduct with particularity, and the defendant was unable to determine what acts of disobedience supported the allegation that the defendant was unruly; although the petition alleged the date the defendant was disobedient, the petition provided no factual details, and the petition merely mirrored the language of former O.C.G.A. § 15-11-2(12)(B). In the Interest of C.H., 306 Ga. App. 834, 703 S.E.2d 407 (2010) (decided under former O.C.G.A. § 15-11-2).
Evidence insufficient to support adjudication of delinquency.
- Adjudication of children as delinquent for being outside their residence past their probationary curfew was error in the absence of competent proof that either child was subject to court-ordered probation and to a defined curfew as a term of that probation. In re B.K., 239 Ga. App. 822, 522 S.E.2d 255 (1999) (decided under former O.C.G.A. § 15-11-2).
Defendant's adjudication of juvenile delinquency based on a charge that the defendant was violating the terms of probation by associating with gang members was reversed; the state failed to prove the predicate acts of a count charging the defendant with participation in criminal street gang activity, and the state admitted that the probation violation count did not contain sufficient factual details to inform the defendant of the nature of the offense charged. In the Interest of L.J.L., 284 Ga. App. 801, 645 S.E.2d 371 (2007) (decided under former O.C.G.A. § 15-11-2).
Evidence sufficient to support adjudication of delinquency.
- When juvenile defendants confessed to entering a vacant home and causing damage therein, and a police officer testified to the condition of the home and the damage the officer found upon investigation, together with witnesses' statements from people who were with the defendants prior to and after the acts, wherein the witnesses' testified that the defendants indicated their intent to damage the house, there was sufficient evidence to support an adjudication of delinquency pursuant to former O.C.G.A. § 15-11-2. In the Interest of Q.D., 263 Ga. App. 293, 587 S.E.2d 336 (2003) (decided under former O.C.G.A. § 15-11-2).
Officer's testimony that the officer encountered a group of juveniles, including the appellant, at 1:30 A.M., the juveniles could not explain their presence in the area, the juveniles did not have identification, and the juveniles gave conflicting stories about the owner of a vehicle the juveniles were standing around was sufficient to prove the offenses of curfew violation, loitering, and prowling beyond a reasonable doubt. It was immaterial that the appellant did not attempt to flee from the officer, refuse to identify himself, or attempt to conceal himself. In the Interest of R.F., 279 Ga. App. 708, 632 S.E.2d 452 (2006) (decided under former O.C.G.A. § 15-11-2).
Trial court did not err in adjudicating the defendant juvenile delinquent for a violation of the Anti-Mask Act, O.C.G.A. § 16-11-38, and a violation of O.C.G.A. § 16-11-36 for loitering or prowling because there was sufficient evidence to permit a rational trier of fact to conclude beyond a reasonable doubt that the defendant intended to conceal the defendant's identity and to threaten, intimidate, or provoke the apprehension of violence; the circumstances and the defendant's actions, together with a friend's actions, supported the conclusion that a justifiable and reasonable alarm or immediate concern for the safety of the occupants of a house was warranted. In the Interest of I.M.W., 313 Ga. App. 624, 722 S.E.2d 586 (2012) (decided under former O.C.G.A. § 15-11-2).
Evidence that the defendant received $775 a month in Supplemental Security Income benefits, was physically able to work from the adjudication of delinquency until a foot injury but failed to try to obtain work, failed to pay the $75 supervision fee, and failed to complete community service hours despite the flexibility afforded by the probation officer was sufficient to support the adjudication as delinquent for violating probation. In the Interest of J. M. A., 340 Ga. App. 155, 796 S.E.2d 773 (2017).
Delinquency adjudication for burglary.
- Evidence was sufficient for any rational trier of fact to find the juvenile delinquent due to the juvenile's involvement in the burglary of a pharmacy because an accomplice's testimony that the juvenile participated in the burglary was corroborated; the extraneous evidence, even if slight and entirely circumstantial, connected the juvenile to the burglary. In the Interest of R.W., 315 Ga. App. 227, 726 S.E.2d 708 (2012) (decided under former O.C.G.A. § 15-11-2).
Delinquency adjudication for criminal damage to property.
- Juvenile court did not err in finding the defendant juvenile delinquent for committing the offense of criminal damage to property in violation of O.C.G.A. § 16-7-23(a)(1) because the evidence presented including the extent of the damage and the defendant's admission that the defendant and others kicked and pushed on the door to a rental home was sufficient. In the Interest of C.H., 306 Ga. App. 834, 703 S.E.2d 407 (2010) (decided under former O.C.G.A. § 15-11-2).
Delinquency adjudication for gang activity.
- There was sufficient evidence to support the defendant juvenile's adjudication of delinquency for participation in criminal street gang activity in violation of O.C.G.A. § 16-15-4 because the evidence established that the defendant was a gang member and that there was a nexus between the shooting and an intent to further gang activity; the defendant admitted that the defendant was a member of the gang, and a police detective, who was qualified as an expert in gang investigations, testified that the defendant was a known member of the gang, that the defendant had previously admitted to the detective that the defendant was a member of that gang, that a black bandana was attire associated with the gang, and that wearing such a bandana during a shooting was particularly significant because the bandana proclaimed to the world that the defendant was a member and that the shooting was a gang act. In the Interest of D. M., 307 Ga. App. 751, 706 S.E.2d 683 (2011) (decided under former O.C.G.A. § 15-11-2).
Mental Instability
Evidence of deprived child.
- Evidence established that a child was deprived due to parental unfitness under former O.C.G.A. § 15-11-2(8)(A) (see now O.C.G.A. §§ 15-11-2 and15-11-107) because the mother was unable to care for the child from birth due to mental instability, the father was intentionally absent for the first two months of the child's life, and although the parents had married, neither had a job or stable housing, and the mother's mental instability had not been addressed. In re V.D., 303 Ga. App. 155, 692 S.E.2d 780 (2010) (decided under former O.C.G.A. § 15-11-2).
Parent unable to independently parent child due to cognitive deficits.
- Judgment of the trial court terminating a mother's parental rights was affirmed because although the mother met most case plan goals, the evidence of parental inability was sufficient to support the termination based on the mother's significant cognitive deficits which left the mother unable to independently parent the child, who, because of developmental issues, presented extraordinary parenting challenges. In the Interest of T. A., 331 Ga. App. 92, 769 S.E.2d 797 (2015).
Sexual Abuse
Evidence of deprived child.
- Evidence supported the juvenile court's finding that a father's son and daughter were deprived because, although there was testimony from witnesses stating that the witnesses never saw any problems with the children, the court of appeals neither weighed the evidence nor determined the credibility of witnesses but instead deferred to the juvenile court's factfinding and affirmed unless the appellate standard was not met; the evidence that the father physically abused the son, sexually abused the daughter, and neglected the children's hygiene was sufficient to meet that standard. In the Interest of R. C. H., 307 Ga. App. 774, 706 S.E.2d 686 (2011) (decided under former O.C.G.A. § 15-11-2).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 24A-401, 24A-2301A, 24A-2302A, and 24A-3301, and pre-2000 Code Section 15-11-37, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.
Statutory rape and the combined offenses of statutory rape and criminal trespass may not be considered designated felony acts under paragraph (a)(2) of former O.C.G.A. § 15-11-37 (see now O.C.G.A. §§ 15-11-2 and15-11-602). 1983 Op. Att'y Gen. No. 83-17 (decided under former O.C.G.A. § 15-11-37).
Designated felony act.
- Unless a juvenile had been adjudicated a delinquent in prior court appearances for acts of burglary, a multiple count petition was not sufficient to fall within former subparagraph (a)(2)(D) of former O.C.G.A. § 15-11-37 (see O.C.G.A. § 15-11-63). 1983 Op. Att'y Gen. No. U83-10 (decided under former O.C.G.A. § 15-11-37).
Custody of Department of Human Resources may not terminate at age 18.
- Under the provisions of the juvenile code, the Department of Human Resources' custody of a child is not necessarily terminated when the child reaches the child's eighteenth birthday; former Code 1933, § 74-104 (see O.C.G.A. § 39-1-1), relating to age of majority, had no effect on the termination of the department's custody. 1974 Op. Att'y Gen. No. 74-139 (decided under former Code 1933, § 24A-401).
Department of Human Resources' rule for committed child.- Even if the child is committed to the Department of Human Resources before the child's seventeenth birthday, the department cannot confine the child beyond that date and the department's legal responsibility for the child terminates on that day; prior to a committed child's seventeenth birthday the department should notify the sentencing court that a further disposition or a release must be made. 1974 Op. Att'y Gen. No. 74-139 (decided under former Code 1933, § 24A-401).
RESEARCH REFERENCES
Am. Jur. 2d.
- 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, §§ 7, 10 et seq., 49, 56.
Defendant's Competency to Stand Trial, 40 POF2d 171.
C.J.S.- 43 C.J.S., Infants, § 224 et seq. 67A C.J.S., Parent and Child, §§ 38 et seq., 63 et seq., 73 et seq., 90 et seq.
U.L.A.- Uniform Juvenile Court Act (U.L.A.) § 2.
ALR.- Age of child at time of alleged offense or delinquency, or at time of legal proceedings, as criterion of jurisdiction of juvenile court, 89 A.L.R.2d 506.
Truancy as indicative of delinquency or incorrigibility, justifying commitment of infant or juvenile, 5 A.L.R.4th 1211.
Power of court or other public agency to order medical treatment over parental religious objections for child whose life is not immediately endangered, 21 A.L.R.5th 248.
Validity and efficacy of minor's waiver of right to counsel - cases decided since application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), 101 A.L.R.5th 351.