(Code 1981, §15-11-390, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2014, p. 780, § 1-24/SB 364; Ga. L. 2015, p. 540, § 2-1/HB 361.)
Cross references.- Definition of grandparent and securing of rights, § 19-7-3.
U.S. Code.- The Individuals with Disabilities Education Act, referred to in this Code section, is codified at 20 U.S.C. § 1400 et seq.
Section 504 of the federal Rehabilitation Act of 1973, referred to in this Code section, is codified at 29 U.S.C. § 794.
Law reviews.- For article discussing due process in juvenile court procedures in California and Georgia, in light of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), see 8 Ga. St. B. J. 9 (1971). For article, "Child Custody - Jurisdiction and Procedure," see 35 Emory L. J. 291 (1986). 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 note criticizing jurisdiction of juvenile justice system over runaways and advocating alternative legal approaches, see 24 Emory L. J. 1075 (1975). For comment on grandparents' visitation rights in Georgia, see 29 Emory L. J. 1083 (1980).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under pre-2000 Code Section 15-11-24, former Code 1933, § 24A-1603, pre-2000 Code Section 15-11-25 and pre-2014 Code Section 15-11-38.1, which were subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.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.
Construction with former provisions.
- Nonprofit advocacy organization was authorized to file a deprivation petition which was separate and distinct from the initial deprivation adjudication since there is no statutory requirement that a petition for modification must be filed under former O.C.G.A. § 15-11-42 (see now O.C.G.A. § 15-11-312), instead of a deprivation petition under former O.C.G.A. § 15-11-24 (see now O.C.G.A. §§ 15-11-150,15-11-390, and15-11-420). In re A.V.B., 222 Ga. App. 241, 474 S.E.2d 114 (1996) (decided under former O.C.G.A. § 15-11-24).
Great aunt and uncle.
- Child's great aunt and uncle had standing to bring a petition to terminate the parental rights of the child's father and mother. In re J.J., 225 Ga. App. 682, 484 S.E.2d 681 (1997) (decided under former O.C.G.A. § 15-11-24).
Juvenile petition must satisfy "due process."
- Although a juvenile petition does not have to be drafted with the exactitude of a criminal accusation, the petition must satisfy "due process." T.L.T. v. State, 133 Ga. App. 895, 212 S.E.2d 650 (1975) (decided under former Code 1933, § 24A-1603).
Since the state's petition failed to set forth in ordinary and concise language the facts demonstrating the nature of the parent's alleged failure to provide proper parental care or control, the parent lacked sufficient information to enable the parent to prepare a defense, and this amounted to a denial of due process. In re D.R.C., 191 Ga. App. 278, 381 S.E.2d 426 (1989) (decided under former O.C.G.A. § 15-11-25).
To meet constitutional requirement of due process the language of a juvenile petition must pass two tests: (1) the petition must contain sufficient factual details to inform the juvenile of the nature of the offense; and (2) the petition must provide data adequate to enable the accused to prepare a defense. T.L.T. v. State, 133 Ga. App. 895, 212 S.E.2d 650 (1975) (decided under former Code 1933, § 24A-1603).
Allege with particularity.
- Due process requires that the petition alleging delinquency must set forth with specificity the alleged violation of law either in the language of the particular section, or so plainly that the nature of the offense charged may be easily understood by the child and the child's parents or guardian. D.P. v. State, 129 Ga. App. 680, 200 S.E.2d 499 (1973) (decided under former Code 1933, § 24A-1603).
Petition filed alleging delinquency, deprivation, or unruliness must set forth alleged misconduct with particularity. A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974) (decided under former Code 1933, § 24A-1603).
Insufficient notice to juvenile of alleged offense.
- If a juvenile is brought to trial on a petition alleging delinquency based on a violation of former Code 1933, § 26-1601 (see now O.C.G.A. § 16-7-1) but was adjudicated delinquent for violating former Code 1933, § 26-1806 (see now O.C.G.A. § 16-8-7), there was insufficient notice to the juvenile of the offense alleged to be the basis of the juvenile's delinquency and the trial court must be reversed. D.P. v. State, 129 Ga. App. 680, 200 S.E.2d 499 (1973) (decided under former Code 1933, § 24A-1603).
Statement of custody irrelevant if jurisdiction otherwise exists.
- If jurisdiction otherwise existed, such as if the action was brought in the county of the residence of both mother and son, then the requirement in paragraph (4) of former Code 1933, § 24A-1603 had no relevancy to the right of the trial court to handle the case. Sanchez v. Walker County Dep't of Family & Children Servs., 138 Ga. App. 49, 225 S.E.2d 441, rev'd on other grounds, 237 Ga. 406, 229 S.E.2d 66 (1976) (decided under former Code 1933, § 24A-1603).
Assumption of jurisdiction linked to authorized petition.
- An order for detention clearly did not meet the requirements of a petition filed pursuant to former Code 1933, § 24A-1603 (see now O.C.G.A. §§ 15-11-152,15-11-280,15-11-390,15-11-420,15-11-422, and15-11-522) to commence proceedings under former Code 1933, § 24A-1601 (see now O.C.G.A. § 15-11-420), and the assumption of jurisdiction by the juvenile court is linked to the authorized petition. Hartley v. Clack, 239 Ga. 113, 236 S.E.2d 63 (1977) (decided under former Code 1933, § 24A-1603).
In a hearing on parental custody in a divorce action, the trial court erred in awarding custody of the parties' minor children to the Department of Family and Children Services based upon findings that the children were deprived and the parents unfit because the mother had no notice that the superior court judge might award custody of the children to a third party based upon standards of deprivation. Watkins v. Watkins, 266 Ga. 269, 466 S.E.2d 860 (1996) (decided under former O.C.G.A. § 15-11-25).
Preparation and verification.
- Because counsel for the Department of Children & Family Services stated to the court that counsel prepared the termination petition, that the petition was reviewed, verified, and then signed by counsel the next day, this was sufficient to comply with the requirements of former O.C.G.A. § 15-11-25 (see now O.C.G.A. §§ 15-11-152,15-11-280,15-11-390,15-11-422, and15-11-522). In re A.K.M., 235 Ga. App. 853, 510 S.E.2d 611 (1998) (decided under former O.C.G.A. § 15-11-25).
Service by correctional officer upon incarcerated father.
- Personal service of a summons and a petition of deprivation by a correctional officer upon an incarcerated father was sufficient as the service procedures in the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., were not adopted nor were binding on the juvenile court, and the correctional officer was acting under the direction of the court for the purposes of former O.C.G.A. § 15-11-39.1(c) (see now O.C.G.A. §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531). In the Interest of A.J.M., 277 Ga. App. 646, 627 S.E.2d 399 (2006) (decided under former O.C.G.A. § 15-11-38.1)
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 24-2403, which was subsequently repealed but was 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.
School official not liable for investigative referral of deprivation.- School official would not be held liable in a legal action founded upon the official's good faith referral of a child neglect, abuse, or abandonment situation to a county department of family and children services for investigation. 1963-65 Op. Att'y Gen. p. 746 (decided under former Code 1933, § 24-2403).
RESEARCH REFERENCES
Am. Jur. 2d.
- 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, § 75 et seq.
C.J.S.- 43 C.J.S., Infants, §§ 184 et seq., 191 et seq.
U.L.A.- Uniform Juvenile Court Act (U.L.A.) § 20.
PART 3 FORMAL COURT PROCEDURES
15-11-400. Child in need of services; time limitations for continued custody or temporary custody hearings.
(Code 1981, §15-11-400, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2014, p. 780, § 1-25/SB 364.)
Cross references.- Amendment to Juvenile Court petition, Uniform Rules for the Juvenile Courts of Georgia, Rule 6.6.
Continuance of adjudicatory hearing in Juvenile Court, Uniform Rules for the Juvenile Courts of Georgia, Rule 11.3.
Law reviews.- For article discussing due process in juvenile court procedures in California and Georgia, in light of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), see 8 Ga. St. B. J. 9 (1971). For article, "The Child as a Party in Interest in Custody Proceedings," see 10 Ga. St. B. J. 577 (1974). For article surveying Georgia cases in the area of juvenile court practice and procedure from June 1979 through May 1980, see 32 Mercer L. Rev. 113 (1980). For article, "Termination of Parental Rights: Recent Judicial and Legislative Trends," see 30 Emory L. J. 1065 (1981). For article, "Georgia's Juvenile Code: New Law for the New Year," see 19 Ga. St. B. J. 13 (Dec. 2013). For note criticizing jurisdiction of juvenile justice system over runaways and advocating alternative legal approaches, see 24 Emory L. J. 1075 (1975). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 81 (1994).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 24-2406, 24A-1403, 24A-1701, 24A-1702, and 24A-2201, pre-2000 Code Sections 15-11-20, 15-11-26, 15-11-27, and 15-11-33, pre-2014 Code Sections 15-11-39, 15-11-39.1, 15-11-48, and 15-11-65, 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.
There was no equal protection violation in framework of this former Code section since similarly situated residents and nonresidents were accorded equal treatment and it was only in cases when laws were applied differently to different persons under the same or similar circumstances that the equal protection of the law was denied. In re M.A.C., 244 Ga. 645, 261 S.E.2d 590 (1979) (decided under former Code 1933, § 24A-1702).
Time limits set forth in the former statute were jurisdictional and the adjudicatory hearing must be set for a time not later than that prescribed by statute. J.T.G. v. State, 141 Ga. App. 184, 233 S.E.2d 40 (1977) (decided under former Code 1933, § 24A-1701).
Time limits established by the General Assembly in the Juvenile Code are jurisdictional and must be strictly adhered to. Crews v. Brantley County Dep't of Family & Children Servs., 146 Ga. App. 408, 246 S.E.2d 426 (1978) (decided under former Code 1933, § 24A-1701).
Language of former statute was mandatory and the time for the hearing must be set for a time not later than ten days after the petition was filed. J.B.H. v. State, 139 Ga. App. 199, 228 S.E.2d 189 (1976) (decided under former Code 1933, § 24A-1701); Crews v. Brantley County Dep't of Family & Children Servs., 146 Ga. App. 408, 246 S.E.2d 426 (1978); Irvin v. Department of Human Resources, 159 Ga. App. 101, 282 S.E.2d 664 (1981) (decided under former Code 1933, § 24A-1701);(decided under former Code 1933, § 24A-1701).
Language of former subsection (a) of this section was mandatory and the adjudicatory hearing must be set for a time not later than that prescribed. Sanchez v. Walker County Dep't of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976) (decided under former Code 1933, § 24A-1701).
Goal sought to be accomplished by the ten-day hearing requirement for detained children was the same goal for the 60-day hearing requirement for non-detained children and, thus, the latter requirement was mandatory, rather than directory. In re R.D.F., 266 Ga. 294, 466 S.E.2d 572 (1996) (decided under former O.C.G.A. § 15-11-26).
Time limits for speedy trial must be strictly adhered to.
- If a legislative body has defined the right to speedy trial in terms of days, then the time limits must be strictly complied with. J.B.H. v. State, 139 Ga. App. 199, 228 S.E.2d 189 (1976) (decided under former Code 1933, § 24A-1701).
Trial court erred in setting the date for a hearing twelve days, rather than ten days, from the date of the filing of a petition charging a juvenile with the commission of the delinquent act of burglary. In re M.D.C., 214 Ga. App. 59, 447 S.E.2d 143 (1994) (decided under former O.C.G.A. § 15-11-26).
Provision of former O.C.G.A. § 15-11-26 (see now O.C.G.A. §§ 15-11-181,15-11-400,15-11-421,15-11-441, and15-11-582) that the time for a hearing shall not be later than ten days after filing of the petition if the child was in custody was the equivalent of a speedy trial demand which did not require a specific demand by the child. However, the statute's protection could be waived if not properly raised and, furthermore, the trial court had discretion to grant a continuance of a hearing properly set for a date within ten days from the filing of the petition. In re M.D.C., 214 Ga. App. 59, 447 S.E.2d 143 (1994) (decided under former O.C.G.A. § 15-11-26).
Former O.C.G.A. § 15-11-26 (see now O.C.G.A. § 15-11-181,15-11-400,15-11-421,15-11-441, and15-11-582) did not constitute a speedy trial demand and, therefore, the failure to comply with the former statute's provisions resulted in dismissal of the petition without prejudice. In re R.D.F., 266 Ga. 294, 466 S.E.2d 572 (1996) (decided under former O.C.G.A. § 15-11-26).
Construction with other law.
- Because a juvenile's allegations that the state failed to comply with the procedural requirements under former O.C.G.A. § 15-11-49(c)(1) and (e) (see now O.C.G.A. §§ 15-11-102,15-11-145,15-11-151,15-11-472, and15-11-521) should have been raised in the superior court, and had no bearing on the validity of the delinquency petitions or the substantive charges against the juvenile in juvenile court, the court properly denied the presentation of evidence regarding the delinquency and substantive issues. In the Interest of K.C., 290 Ga. App. 416, 659 S.E.2d 821 (2008) (decided under former O.C.G.A. § 15-11-39).
Hearing requirement applicable when child in detention when petition filed.
- Ten-day hearing requirement was applicable when a child was "in detention" on the date the petition was filed in court. Sanchez v. Walker County Dep't of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976) (decided under former Code 1933, § 24A-1701).
Continuance requested by parent did not violate time limit.
- When a hearing on a deprivation petition was held within ten days of the petition's filing, but the case was continued for eight days because the mother's counsel had a scheduling conflict, there was no violation of former O.C.G.A. § 15-11-39(a)'s (see now O.C.G.A. §§ 15-11-18115-11-400,15-11-421,15-11-441, and15-11-582) ten-day time limit. In the Interest of C.R., 292 Ga. App. 346, 665 S.E.2d 39 (2008) (decided under former O.C.G.A. § 15-11-39).
Failure to follow mandated procedures warrants dismissal without prejudice of a petition alleging deprivation of a child. Another petition can be filed without delay if there is reason to believe the child is being neglected or abused. Sanchez v. Walker County Dep't of Family & Children Servs., 140 Ga. App. 175, 230 S.E.2d 139 (1976) (decided under former Code 1933, § 24A-1701).
Motion to dismiss necessary if no provision for automatic dismissal.
- If there is no provision in the statute for automatic dismissal, there should be a motion to dismiss directed to the trial judge and it should appear that the delay is not due to the actions of the defendant. E.S. v. State, 134 Ga. App. 724, 215 S.E.2d 732 (1975) (decided under former Code 1933, § 24A-1701).
Violation of ten-day mandate does not deprive jurisdiction.
- Violation of the statutory mandate to set the hearing date not later than ten days after filing of the petition if the child is in detention would not deprive the court of jurisdiction that would otherwise exist. Sanchez v. Walker County Dep't of Family & Children Servs., 138 Ga. App. 49, 225 S.E.2d 441, rev'd on other grounds, 237 Ga. 406, 229 S.E.2d 66 (1976) (decided under former Code 1933, § 24A-1701).
Legislature intended incarceration be limited according to calendar days.
- General Assembly intended that a juvenile who is incarcerated after the court has had a preliminary detention hearing should have the juvenile's incarceration limited and the juvenile's fate determined according to calendar days, not "working days." J.B.H. v. State, 139 Ga. App. 199, 228 S.E.2d 189 (1976), overruled on other grounds, In re R.D.F., 266 Ga. 294, 466 S.E.2d 572 (1996) (decided under former O.C.G.A. § 15-11-26).
No habeas corpus if compliance with statutory requirements.
- Habeas corpus will not lie if the juvenile court, after notice and hearing, enters an order pursuant to former Code 1933, § 24-2409 (see now O.C.G.A. §§ 15-11-211,15-11-212, and15-11-215). Chaffins v. Lowndes County Dep't of Family & Children Servs., 243 Ga. 528, 255 S.E.2d 360 (1979) (decided under former Code 1933, § 24A-1701).
Effect of failure to show compliance with hearing requirement.
- If the parents, in their petition seeking return of their children, allege that there has been no hearing as required by statute, and the record of prior juvenile court proceedings is silent as to whether such a hearing was ever set, continued, or held, and since the hearing requirement was mandatory, the defendant County Family and Children Services Department did not show compliance with the hearing requirement, and the parents stated claims for habeas relief which may be granted. Chaffins v. Lowndes County Dep't of Family & Children Servs., 243 Ga. 528, 255 S.E.2d 360 (1979) (decided under former Code 1933, § 24A-1701).
Permitting state's mid-trial amendment of petition to change the charge against the juvenile from a misdemeanor to a felony was error since the amendment was done without notice and provision of a continuance to allow additional time for preparation of a defense. In re D.W, 232 Ga. App. 777, 503 S.E.2d 647 (1998) (decided under former O.C.G.A. § 15-11-26).
Illegal detention.
- If a petition was not presented within 72 hours of a detention hearing as required by former O.C.G.A. § 15-11-21(e) (see now O.C.G.A. §§ 15-11-145,15-11-400,15-11-413,15-11-414, and15-11-472), the state cannot thus illegally detain the child and then render such a jurisdictional defect harmless by setting the adjudication hearing within 13 days (72 hours plus 10 days) of the detention hearing under subsection (a) of former O.C.G.A. § 15-11-26 (see now O.C.G.A. §§ 15-11-181,15-11-400,15-11-421,15-11-441, and15-11-582). In re B.A.P., 180 Ga. App. 433, 349 S.E.2d 218 (1986) (decided under former O.C.G.A. § 15-11-26).
When service by publication sufficient in adoption proceeding.
- Service by publication was sufficient to bestow jurisdiction over putative fathers of children whose natural mothers wish to give the children up for adoption. In re J.B., 140 Ga. App. 668, 231 S.E.2d 821 (1976) (decided under former Code 1933, § 24A-1702).
Service of summons and termination petition was ineffective since, even though the summons was left at the mother's residence, there was no evidence that the summons was left with a statutorily appropriate person, and service of the petition the day before the hearing was not timely. In re D.R.W., 229 Ga. App. 571, 494 S.E.2d 379 (1997) (decided under former O.C.G.A. § 15-11-27).
Order terminating an out-of-state incarcerated parent's parental rights was reversed as: (1) service of the termination petition and summons upon the parent via certified mail was insufficient under both O.C.G.A. §§ 9-11-4 and former O.C.G.A. § 15-11-96(c) (see now O.C.G.A. §§ 15-11-281 and15-11-282); (2) a correctional officer who personally delivered the documents to the parent did not amount to sufficient and lawful personal service as the officer lacked the inherent authority to perfect service under O.C.G.A. § 9-11-4(c) and no court order existed to grant the authority; and (3) the trial court's reliance on the service provisions of former O.C.G.A. § 15-11-39.1 (see now §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531), a statute dealing with service in juvenile court proceedings generally, was misplaced. In the Interest of C.S., 282 Ga. 7, 644 S.E.2d 812 (2007) (decided under former O.C.G.A. § 15-11-39.1)
Service by publication in termination proceeding.
- Juvenile court may order service of process by publication in a termination proceeding if, after reasonable effort, a party cannot be found and the party's address cannot be ascertained. In re M.J.B., 238 Ga. App. 833, 520 S.E.2d 497 (1999) (decided under former O.C.G.A. § 15-11-39.1)
Service by publication in deprivation proceeding.
- Juvenile court erred in granting service by publication of the paternal grandparents' petition alleging that the mother's children were deprived because the grandparents failed to exercise reasonable diligence to find the mother, the juvenile court concluded that the mother could not be found with due diligence within the State of Georgia without any competent evidence to support that finding, and the juvenile court failed to place any burden on the grandparents to determine what notice the grandparents had given to the mother of the grandparents' deprivation petition and simply relied on evidence about the father's efforts to contact her; the grandparents did not file a written motion for service by publication and supporting affidavit as required by O.C.G.A. § 9-11-4(f)(1)(A), the grandparents had some means of communicating with the mother because the father had the mother's telephone number and was able to notify the mother by phone of the 72-hour hearing, the grandparents could have contacted the mother's relatives to ascertain the mother's whereabouts, and the grandparents could have attempted to serve the mother personally or by registered or certified mail at the mother's prior address. Taylor v. Padgett, 300 Ga. App. 314, 684 S.E.2d 434 (2009) (decided under former O.C.G.A. § 15-11-39.1)
Service by correctional officer on incarcerated parent.
- Personal service of a summons and a petition of deprivation, by a correctional officer upon an incarcerated parent, was sufficient as the service procedures in the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., were not adopted nor were binding on the juvenile court, and the correctional officer was acting under the direction of the court for the purposes of former O.C.G.A. § 15-11-39.1(c) (see now O.C.G.A. §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531). In the Interest of A.J.M., 277 Ga. App. 646, 627 S.E.2d 399 (2006) (decided under former O.C.G.A. § 15-11-39.1)
Service not perfected on incarcerated person.
- Deprivation order had to be vacated and the case remanded because service of the deprivation petition on the parent in question, who was incarcerated, was not perfected in accordance with former O.C.G.A. § 15-11-39.1(a) (see now O.C.G.A. §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531). The parent had not waived personal service and personal service was not waived simply by actual notice having been achieved. In the Interest of A. R., 296 Ga. App. 62, 673 S.E.2d 586 (2009) (decided under former O.C.G.A. § 15-11-39.1)
Requirement of "reasonable effort" to find party.
- Former statute required a showing by the department that a "reasonable effort" had been made to find a putative father or ascertain his address. In re J.B., 140 Ga. App. 668, 231 S.E.2d 821 (1976) (decided under former O.C.G.A. § 15-11-39.1)
Permissibility of publication notice dependent upon investigation.
- Whether publication notice is permissible necessarily depends upon an investigation of whether the whereabouts of putative fathers were unknown and whether the fathers could be found with reasonable diligence. In re J.B., 140 Ga. App. 668, 231 S.E.2d 821 (1976) (decided under former O.C.G.A. § 15-11-39.1)
If there was no service of process and notice as required by the former provisions and there was no valid waiver of notice of the pending charge by service of process or otherwise, the entire hearing is a nullity. In re W.M.F., 180 Ga. App. 397, 349 S.E.2d 265 (1986) (decided under former O.C.G.A. § 15-11-39.1)
Timeliness of petition.
- Juvenile was entitled to a copy of the delinquency petition filed against the juvenile, and pursuant to former O.C.G.A. § 15-11-39.1 (see now O.C.G.A. §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531), the juvenile had a right to receive the petition at least 24 hours prior to the adjudicatory hearing; however, the juvenile waived any objection the juvenile had on the grounds of improper service since the juvenile received the petition right before the hearing as the juvenile did not make an objection or request a continuance on the basis that the juvenile was unprepared. In the Interest of E.S., 262 Ga. App. 768, 586 S.E.2d 691 (2003) (decided under former O.C.G.A. § 15-11-39.1)
Permitting state's mid-trial amendment of petition to change the charge against the juvenile from a misdemeanor to a felony was error since the amendment was done without notice and provision of a continuance to allow additional time for preparation of a defense. In re D.W, 232 Ga. App. 777, 503 S.E.2d 647 (1998) (decided under former O.C.G.A. § 15-11-39.1)
Reliance on section by trial court misplaced.
- Because former O.C.G.A. § 15-11-96(c) (see now O.C.G.A. §§ 15-11-281 and15-11-282) related specifically to service in termi- nation-of-parental-rights proceedings, the trial court's reliance on the service provisions of former O.C.G.A. § 15-11-39.1 (see now §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531), a statute dealing with service in juvenile court proceedings generally, was misplaced; moreover, for purposes of statutory interpretation, a specific statute prevailed over a general statute, absent any indication of a contrary legislative intent. In the Interest of C.S., 282 Ga. 7, 644 S.E.2d 812 (2007) (decided under former O.C.G.A. § 15-11-39.1)
Applicability.
- Contrary to the defendant's claims, neither former O.C.G.A. § 15-11-67 (see now O.C.G.A. § 15-11-442) nor former O.C.G.A. § 15-11-48(e) (see now O.C.G.A. §§ 15-11-135,15-11-400, and15-11-412) applied to the defendant's case because both provisions applied when the child was found "unruly," and the defendant was adjudicated delinquent, not unruly. 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. § 15-11-48).
Suspect may first be booked if rights are observed.
- There was no violation of former O.C.G.A. § 15-11-20 (see now O.C.G.A. §§ 15-11-155,15-11-400,15-11-412, and15-11-504) because a juvenile suspect was first taken to a police station for booking purposes, if the juvenile was advised of the juvenile's rights under that section to be questioned elsewhere; the juvenile signed a waiver of these rights on an "advice to juveniles" form and was detained at a youth development center. Marshall v. State, 248 Ga. 227, 282 S.E.2d 301 (1981) (decided under former Code 1933, § 24A-1403).
Confession admissible if juvenile taken before county police.
- Juvenile defendant's confession was admissible despite the fact that the juvenile was not taken before an impartial juvenile intake officer but a member of the county police department since the defendant's mother was present during the juvenile's interrogation and it was not alleged that the officer failed to perform any duty imposed upon the officer. Worthy v. State, 253 Ga. 661, 324 S.E.2d 431 (1985) (decided under former O.C.G.A. § 15-11-20).
All detention facilities not supervised and controlled by juvenile courts.
- Juvenile courts are not granted the power and authority to supervise and control all the various detention facilities. Jones v. State, 134 Ga. App. 611, 215 S.E.2d 483 (1975) (decided under former Code 1933, § 24A-1403).
No guarantee of all bed space desired by courts.
- Subsection (a) of former section contemplated otherwise than that the Department of Human Resources guarantee all bed space desired by the juvenile courts. Jones v. State, 134 Ga. App. 611, 215 S.E.2d 483 (1975) (decided under former Code 1933, § 24A-1403).
Confinement designation not exercise of court's jurisdiction.
- Juvenile court's order for detention was merely an order pursuant to the former statute; designating the place of confinement was not an exercise of jurisdiction by that court. Hartley v. Clack, 239 Ga. 113, 236 S.E.2d 63 (1977) (decided under former Code 1933, § 24A-1403).
Foster relationship gives rise to no state-created rights.
- Children are placed in foster homes as an alternative to institutional care for what is clearly designed as a transitional phase in the child's life. Therefore, in the eyes of the state, which creates the foster relationship, the relationship is considered temporary at the outset and gives rise to no state-created rights in the foster parents. Drummond v. Fulton County Dep't of Family & Children's Servs., 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978) (decided under former Code 1933, § 24A-1403).
Limited restraining order appropriate disposition.
- After a juvenile attacked a store detective, and subsequently displayed violent behavior and threatened another store employee, the court's conclusion that the juvenile was in need of treatment and rehabilitation, and the court's limited restraining order preventing the juvenile from entering any store owned by the company in Fulton County, except in the immediate presence of a parent or adult relative, was an appropriate disposition and justified by the evidence. In re J.M., 237 Ga. App. 298, 513 S.E.2d 742 (1999) (decided under former O.C.G.A. § 15-11-33).
Purpose of division of juvenile trials into two phases.
- In dividing juvenile trials into two phases lawmakers intended to give the juvenile judge an opportunity to conduct the "functional equivalent" of a regular trial (the adjudicatory hearing) in a manner which would satisfy the required constitutional procedures concomitant with the usual legal rules, such as those dealing with admissibility of evidence, proof beyond a reasonable doubt, and similar requirements applicable to adults. Thereafter, at the dispositional phase, the judge was to explore all available additional avenues, including psychiatric and sociological studies, which would enable the judge to provide a solution for the youngster and the family aimed at making the child a secure law-abiding member of society. D.C.A. v. State, 135 Ga. App. 234, 217 S.E.2d 470 (1975) (decided under former Code 1933, § 24A-2201).
During adjudicatory phase, rules of evidence generally prevail. In the second (dispositional) phase, the court hears virtually all evidence which is material and relevant to the issue of disposition. J.B. v. State, 139 Ga. App. 545, 228 S.E.2d 712 (1976) (decided under former Code 1933, § 24A-2201).
Access to confidential records.
- Nonprofit advocacy corporation mandated under federal law to investigate incidents of abuse and neglect of individuals with mental illness should have been given reasonable access to confidential county and juvenile court records in connection with investigations relating to the corporation's filing of a deprivation petition. In re A.V.B., 222 Ga. App. 241, 474 S.E.2d 114 (1996) (decided under former O.C.G.A. § 15-11-33).
Right to cross-examine afforded upon request.
- Right to cross-examine adverse witnesses guaranteed by former Code 1933, § 24A-2002 (see now O.C.G.A. §§ 15-11-19 and15-11-28) was afforded upon request according to former Code 1933, § 24A-2201 (see now O.C.G.A. §§ 15-11-400,5-11-440,15-11-581,15-11-582, and15-11-600). A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974) (decided under former Code 1933, § 24A-2201).
Exception if petition alleged only deprivation.
- If the petition by the county department alleged only deprivation, it was unnecessary to make an explicit finding of deprivation. Moss v. Moss, 135 Ga. App. 401, 218 S.E.2d 93 (1975) (decided under former Code 1933, § 24A-2201).
Explicit finding for petition alleging multiple conditions.
- Patent reason for explicit finding of deprivation in petition alleging multiple conditions was to indicate the necessity for and to authorize dispositions of the deprived child or children under the statute or statutes deemed applicable by the court. Moss v. Moss, 135 Ga. App. 401, 218 S.E.2d 93 (1975) (decided under former Code 1933, § 24A-2201).
Disposition made following finding of delinquency.
- Decision that the child is in need of treatment or rehabilitation, based upon clear and convincing evidence, is made following a finding of delinquency. A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974) (decided under former Code 1933, § 24A-2201).
French-speaking parent's stipulation to certain facts presented in a deprivation petition was sufficient evidence to support a finding that the parent's children were deprived and the parent's argument that the parent did not "understand" the meaning or significance of the stipulation was properly rejected. In re M.O., 233 Ga. App. 125, 503 S.E.2d 362 (1998) (decided under former O.C.G.A. § 15-11-478).
Waiver of Time Limit
Waiver of procedural requirements.
- Time limits on setting juvenile hearings are mandatory, but procedural requirements can be waived. J.T.G. v. State, 141 Ga. App. 184, 233 S.E.2d 40 (1977) (decided under former O.C.G.A. § 15-11-26); Cox v. Department of Human Resources, 148 Ga. App. 338, 250 S.E.2d 728 (1978), overruled on other grounds, 156 Ga. App. 338, 274 S.E.2d 728 (1980) (decided under former O.C.G.A. § 15-11-26).
With regard to a juvenile's adjudication of delinquency for acts which, if committed by an adult, would have constituted the offense of child molestation, the juvenile court did not err by denying the juvenile's motion to dismiss, which was based on an extended pre-trial detention as the juvenile and defense counsel agreed to a continuance and acquiesced in a hearing date delaying the adjudication for at least 48 days following the filing of the delinquency petition, which caused the juvenile to waive the right to complain that the adjudication hearing date was not set to occur in compliance with former O.C.G.A. § 15-11-39 (see now O.C.G.A. §§ 15-11-181,15-11-400,15-11-421,15-11-441, and15-11-582). However, the adjudication was reversed and the case was remanded to the juvenile court since the juvenile court erroneously applied a clear and convincing standard of proof and the standard of proof on charges of a criminal nature was the same as that used in criminal proceedings against adults, namely proof beyond a reasonable doubt. In the Interest of A.S., 293 Ga. App. 710, 667 S.E.2d 701 (2008) (decided under former O.C.G.A. § 15-11-39).
Juvenile waived the right under former O.C.G.A. § 15-11-39(a) (see now O.C.G.A. §§ 15-11-181,15-11-400,15-11-421,15-11-441, and15-11-582) to have an adjudicatory hearing within 10 days of the delinquency petition being filed by failing to object to the date proposed for the adjudicatory hearing, which was one month after the filing of the petition. In re A. T., 302 Ga. App. 713, 691 S.E.2d 642 (2010), overruled in part by Worthen v. State, 304 Ga. 862, 823 S.E.2d 291 (2019) (decided under former O.C.G.A. § 15-11-39).
Trial court did not err in denying the defendant's motion to dismiss for failure to comply with former O.C.G.A. § 15-11-39(a) (see now O.C.G.A. §§ 15-11-181,15-11-400,15-11-421,15-11-441, and15-11-582) because the defendant's parent, the defendant's representative, and an attorney acknowledged that the parent did not object when, at the arraignment hearing, it was announced that the adjudicatory hearing would be set outside of the 60-day window; the parent also did not object within the statutorily prescribed 60-day-time period, and the motion to dismiss was filed outside of the 60-day requirement. In the Interest of I.M.W., 313 Ga. App. 624, 722 S.E.2d 586 (2012) (decided under former O.C.G.A. § 15-11-39).
Hearing time limit can be waived.
- If the party does not enter an objection during the course of the trial the party will not be heard to complain on appeal and if a hearing is set within the statutory time limit, the court may in the court's discretion grant a continuance. Sanchez v. Walker County Dep't of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976) (decided under former Code § 24A-1701); In re J.B., 183 Ga. App. 229, 358 S.E.2d 620, cert. denied, 183 Ga. App. 906, 358 S.E.2d 620 (1987) (decided under former O.C.G.A. § 15-11-26).
Juvenile was entitled to a copy of the delinquency petition filed against the juvenile, and pursuant to former O.C.G.A. § 15-11-39.1 (see now O.C.G.A. §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531), the juvenile had a right to receive the petition at least 24 hours prior to the adjudicatory hearing; however, the juvenile waived any objection based on the grounds of improper service since the juvenile received notice right before the hearing as the juvenile did not make an objection or request a continuance on the basis that the juvenile was unprepared. In the Interest of E.S., 262 Ga. App. 768, 586 S.E.2d 691 (2003) (decided under former O.C.G.A. § 15-11-39).
Delay negotiated by defendant waives time limit.
- If the statute does not require dismissal as a matter of law regardless of the reason for the delay, it is clear that a delay negotiated and obtained by the defendant personally would constitute a waiver of the 60-day requirement. E.S. v. State, 134 Ga. App. 724, 215 S.E.2d 732 (1975) (decided under former Code 1933, § 24A-1701).
Proceeding null when no waiver of rights nor proper service.
- If, in a juvenile court proceeding, there was neither waiver of the right of a mother, nor proper service upon the parties and if the hearing is not taken under oath, or waived by any of the parties, the proceeding is an absolute nullity. McBurrough v. Dep't of Human Resources, 150 Ga. App. 130, 257 S.E.2d 35 (1979) (decided under former Code 1933, § 24A-1701).
Waiver of right to notice.
- If neither the juvenile nor the juvenile's mother were represented by counsel at the dispositional hearing, neither party knew the nature of the charge filed against the minor, and neither party knew of the serious consequences which may result in the case of an adverse adjudication of the petition filed against the juvenile, it is highly unlikely that the parties understood the significance of waiving the parties right to prior notice of the pending charge. In re W.M.F., 180 Ga. App. 397, 349 S.E.2d 265 (1986) (decided under former O.C.G.A. § 15-11-39.1)
Adjudicatory Hearings
Time limits satisfied by hearing adjudicatory in nature.
- When a juvenile and the juvenile's parents were summoned to appear at a hearing to defend against charges and to show cause why the juvenile should not be dealt with according to law, were instructed to remain in attendance at the hearing until final adjudication of the petition, were informed of the possibility of a continuance, and were told that the state would seek transfer to the superior court, the hearing was adjudicatory in nature and satisfied the requirements of former O.C.G.A. § 15-11-26. In re L.A.E., 265 Ga. 698, 462 S.E.2d 148 (1995) (decided under former O.C.G.A. § 15-11-26).
Arraignment during adjudicatory hearing.
- In the absence of a transcript, a juvenile failed to establish that former O.C.G.A. § 15-11-26 (see now O.C.G.A. §§ 15-11-181,15-11-400,15-11-421,15-11-441, and15-11-582) was violated since a hearing was timely scheduled and held, an arraignment was conducted at the beginning, the juvenile requested legal counsel and was found eligible to receive counsel, and a continuance was granted so counsel could be secured; conducting an arraignment was not inconsistent with an adjudicatory hearing. In re R.D.F., 266 Ga. 294, 466 S.E.2d 572 (1996), reversing In re R.D.F., 216 Ga. App. 563, 455 S.E.2d 77 (1995) (decided under former O.C.G.A. § 15-11-26).
Arraignment hearing scheduled within the 60-day time period is not sufficient to satisfy the requirement that an adjudicatory hearing must be set within that period. In re R.O.B., 216 Ga. App. 181, 453 S.E.2d 776 (1995) (decided under former O.C.G.A. § 15-11-26).
Time for adjudicatory hearing is not mandatory.
- Former O.C.G.A. § 15-11-26 (see now O.C.G.A. §§ 15-11-181,15-11-400,15-11-421,15-11-441 and15-11-582) required that an adjudicatory hearing date be set within ten days after a filing of a petition charging a minor with commission of delinquent acts, but does not require that a hearing be actually held within ten days after the filing of the petition. P.L.A. v. State, 172 Ga. App. 820, 324 S.E.2d 781 (1984) (decided under former O.C.G.A. § 15-11-26); Johnson v. State, 183 Ga. App. 168, 358 S.E.2d 313 (1987) (decided under former O.C.G.A. § 15-11-26); In re L.T.W., 211 Ga. App. 441, 439 S.E.2d 716 (1993) (decided under former O.C.G.A. § 15-11-26); In re B.W.S., 265 Ga. 567, 458 S.E.2d 847 (1995) (decided under former O.C.G.A. § 15-11-26).
Ten-day hearing rule was not absolute, and a continuance could be granted in the sound discretion of the trial court. Johnson v. State, 183 Ga. App. 168, 358 S.E.2d 313 (1987) (decided under former O.C.G.A. § 15-11-26).
Adjudicatory hearing timely.
- Juvenile court did not err in denying the defendant juvenile's motion to dismiss a petition because the adjudicatory hearing was set and held within ten days of the filing of the petition pursuant to former O.C.G.A. § 15-11-39(a) (see now O.C.G.A. §§ 15-11-181,15-11-400,15-11-421,15-11-441, and15-11-582), although the hearing was then continued, which was an action that was within the juvenile court's discretion. In the Interest of C.H., 306 Ga. App. 834, 703 S.E.2d 407 (2010) (decided under former O.C.G.A. § 15-11-39).
Adjudication hearing required after an initial hearing.
- By restraining the child at an initial hearing, the juvenile court implicitly found probable cause, pursuant to former O.C.G.A. § 15-11-46.1 (see now O.C.G.A. §§ 15-11-415 and15-11-503). The juvenile court therefore erred in later deciding that a 10-day adjudication hearing was actually a detention hearing and in resetting the 10-day adjudication hearing. In the Interest of K.L., 303 Ga. App. 679, 694 S.E.2d 372 (2010) (decided under former O.C.G.A. § 15-11-39).
Dispositional Hearings
Dispositional hearing not necessary for termination due to deprivation.
- If a petition for the termination of parental rights alleged only that the children were deprived, not delinquent or unruly, it was not necessary for the juvenile judge to hold a dispositional hearing. In re J.C., 242 Ga. 737, 251 S.E.2d 299 (1978), appeal dismissed, 441 U.S. 929, 99 S. Ct. 2046, 60 L. Ed. 2d 657 (1979) (decided under former Code 1933, § 24A-2201).
Dispositional hearing not needed for disposition order.
- Trial court may enter order of disposition without first holding dispositional hearing if there is an implicit finding that termination of the parental rights of both parties is authorized, leaving the court with only the alternatives provided in former Code 1933, § 24A-3204 (see now O.C.G.A. §§ 15-11-180 and15-11-181). Moss v. Moss, 135 Ga. App. 401, 218 S.E.2d 93 (1975) (decided under former Code 1933, § 24A-2201).
Probative evidence admissible in disposition hearing.
- Juvenile court can consider a juvenile's prior record in aggravation of disposition even though the record has not been presented to the juvenile prior to trial. O.C.G.A. § 17-10-2 (felony sentencing of adults) is not applicable to juvenile disposition hearings as the General Assembly has not made it so. To the contrary, subsection (a) of that section authorizes in dispositional hearings the receipt and consideration of all helpful information to the extent of its probative value, even though not otherwise competent evidence, in a hearing on criminal responsibility. C.P. v. State, 167 Ga. App. 374, 306 S.E.2d 688 (1983) (decided under former O.C.G.A. § 15-11-33).
Continuation of a dispositional hearing should have been allowed when the probation officer notified the court that the officer was not prepared to make a recommendation regarding disposition. In re M.D., 233 Ga. App. 261, 503 S.E.2d 888 (1998) (decided under former O.C.G.A. § 15-11-33).
Dispositional hearing was held, albeit briefly, since, at the conclusion of the trial, the court found that the juvenile had committed the offense charged and questioned the juvenile with regard to whether the juvenile had been in court before and whether the juvenile had ever been charged with similar conduct. In re B.J.G., 234 Ga. App. 285, 506 S.E.2d 449 (1998) (decided under former O.C.G.A. § 15-11-33).
Timing of dispositional hearing.
- When a juvenile court, having concluded the adjudicatory hearing and having found a juvenile defendant guilty of contempt, proceeded immediately to a dispositional hearing at which the defendant had the opportunity to be heard and to give evidence, the defendant waived any assertion of error by not objecting to this proceeding. In the Interest of P.W., 289 Ga. App. 323, 657 S.E.2d 270 (2008) (decided under former O.C.G.A. § 15-11-65).
Dispositional hearings held in county of juvenile's residence.
- Dispositional hearings must be held in the county of the juvenile's residence to meet state constitutional requirements. C.L.A. v. State, 137 Ga. App. 511, 224 S.E.2d 491 (1976) (decided under former Code 1933, § 24A-2201).
No need to repeat evidence presented during adjudicatory portion.
- There was no error in refusing to have the dispositional phase include a repetition of the same evidence and witnesses previously presented during the adjudicatory portion. D.C.A. v. State, 135 Ga. App. 234, 217 S.E.2d 470 (1975) (decided under former Code 1933, § 24A-2201).
Appeals
Parent's right to appeal delinquency adjudication.
- As parties to their child's delinquency action pursuant to former O.C.G.A. § 15-11-39(b) (see now O.C.G.A. §§ 15-11-160,15-11-423, and15-11-530), the child's parents had the right to appeal the juvenile court's judgment and to participate in the appellate process. In the Interest of J.L.B., 280 Ga. App. 556, 634 S.E.2d 514 (2006) (decided under former O.C.G.A. § 15-11-39).
Allegation of failure to comply with time requirements not appealable.
- If the defendant, prior to a hearing to determine the defendant's delinquency, appealed from the juvenile court's denial of the defendant's motion to dismiss based solely upon an alleged failure to comply with the time requirements of subsection (a) of former O.C.G.A. § 15-11-26 (see now O.C.G.A. §§ 15-11-181,15-11-400,15-11-421,15-11-441, and15-11-582), the Court of Appeals dismissed the appeal since a motion under that Code section cannot be analogized to the denial of a O.C.G.A. § 17-7-170 motion and did not involve a question of speedy trial rights which would be directly appealable. In re M.O.B., 190 Ga. App. 474, 378 S.E.2d 898 (1989) (decided under former O.C.G.A. § 15-11-26).
Order for transfer for further disposition is not final appealable judgment.
- When, pursuant to former Code 1933, § 24A-2201 (see now O.C.G.A. §§ 15-11-400,15-11-440,15-11-478,15-11-581,15-11-582, and15-11-600), an order was entered adjudicating a juvenile guilty of an offense and, under the authority of former Code 1933, § 24A-1201 (see now O.C.G.A. §§ 15-11-401 and15-11-490) jurisdiction was transferred to the county of the residence for further disposition, that order was not a final judgment appealable under former Code 1933, § 6-701 (see now O.C.G.A. §§ 5-6-34 and5-6-35). D.C.E. v. State, 130 Ga. App. 724, 204 S.E.2d 481 (1974) (decided under former Code 1933, § 24A-2201).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 24A-1403, which was subsequently repealed but was 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.
Juvenile intake officer to locate appropriate juvenile facility.- Juvenile intake officer should make all reasonable efforts to locate an appropriate juvenile facility for the detention of an allegedly delinquent child before determining that such a facility was "not available" for purposes of the former statute. 1978 Op. Att'y Gen. No. U78-13 (decided under former Code 1933, § 24A-1403).
RESEARCH REFERENCES
Am. Jur. 2d.
- 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, §§ 47 et seq., 53 et seq., 66 et seq., 110 et seq.
C.J.S.- 43 C.J.S., Infants, §§ 140 et seq., 195 et seq., 226 et seq., 239.
U.L.A.- Uniform Juvenile Court Act (U.L.A.) §§ 16, 22, 23, 29.
ALR.
- What constitutes delinquency or incorrigibility, justifying commitment of infant, 45 A.L.R. 1533; 85 A.L.R. 1099.
Omission of signature of issuing officer on civil process or summons as affecting jurisdiction of the person, 37 A.L.R.2d 928.
Applicability of rules of evidence in juvenile delinquency proceeding, 43 A.L.R.2d 1128.
Authority of court to order juvenile delinquent incarcerated in adult penal institution, 95 A.L.R.3d 568.
Applicability of double jeopardy to juvenile court proceedings, 5 A.L.R.4th 234.
Truancy as indicative of delinquency or incorrigibility, justifying commitment of infant or juvenile, 5 A.L.R.4th 1211.
Foster parent's right to immunity from foster child's negligence claims, 55 A.L.R.4th 778.
Defense of infancy in juvenile delinquency proceedings, 83 A.L.R.4th 1135.
Applicability of rules of evidence to juvenile transfer, waiver, or certification hearings, 37 A.L.R.5th 703.