The petitioner, or prosecuting attorney when representing the state, has the burden of proving the allegations of a child in need of services petition by clear and convincing evidence.
(Code 1981, §15-11-440, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2015, p. 540, § 2-4/HB 361.)
Law reviews.- 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 note criticizing jurisdiction of juvenile justice system over runaways and advocating alternative legal approaches, see 24 Emory L. J. 1075 (1975).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-2201, pre-2000 Code Section 15-11-33, and pre-2014 Code Section 15-11-65, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.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.
Standard of proof on question of delinquency or termination.
- An "any evidence" standard or "preponderance of the evidence" standard is inadequate in dealing with a finding of deprivation of a child or termination of parental rights and would violate U.S. Const., amend. 14. In re Suggs, 249 Ga. 365, 291 S.E.2d 233 (1982) (decided under former O.C.G.A. § 15-11-33); In re J.K.D., 211 Ga. App. 776, 440 S.E.2d 524 (1994);(decided under former O.C.G.A. § 15-11-33).
Standard of proof on charges of criminal nature against juvenile is the same as that used in criminal proceedings against adults; proof must be beyond a reasonable doubt. M.W.W. v. State, 136 Ga. App. 472, 221 S.E.2d 669 (1975) (decided under former Code 1933 § 24A-2201); In re M.M., 235 Ga. App. 109, 508 S.E.2d 484 (1998);(decided under former O.C.G.A. § 15-11-33).
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. 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. § 15-11-65).
Clear and convincing evidence required for termination of parental rights.
- 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. Subsection (b) of former O.C.G.A. § 15-11-33 (see now O.C.G.A. §§ 15-11-440 and15-11-581) 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 O.C.G.A. § 15-11-33).
Clear and convincing evidence required for deprivation.
- If deprivation formed the predicate upon which a third party sought a temporary transfer of the child's legal custody, in order to support such a disposition the child must first be adjudicated to be a deprived child. By statute, that finding of deprivation must be made by "clear and convincing evidence." In re J.C.P., 167 Ga. App. 572, 307 S.E.2d 1 (1983) (decided under former O.C.G.A. § 15-11-33); In re J.T.M., 200 Ga. App. 636, 409 S.E.2d 256 (1991); In re A.W., 240 Ga. App. 259, 523 S.E.2d 88 (1999) (decided under former O.C.G.A. § 15-11-33);but see.
Delinquency found when delinquent acts corroborated by confession.
- Child's confession out of court corroborated by evidence that the stolen items were found in the child's possession within a few hours of the theft constituted sufficient proof to support 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).
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).
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).
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. §§ 15-11-400,15-11-440,15-11-581,15-11-582, 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).
Record must show clear and convincing evidence which authorized finding.
- Just as former statute did not require the court to include a specific statement as to the standard of proof of delinquency in the adjudication order, no such explicit finding is required as to the need for treatment or rehabilitation as long as the record showed that there was clear and convincing evidence which authorized the judge's implicit finding. A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974) (decided under former Code 1933, § 24A-2201).
Explicit statutory findings required by former Code 1933, § 24A-2201 (see now O.C.G.A. §§ 15-11-440,15-11-581, and15-11-600) should be made in accordance with former Code 1933, § 81A-152 (see now O.C.G.A. § 9-11-52). Crook v. Georgia Dep't of Human Resources, 137 Ga. App 817, 224 S.E.2d 806 (1976) (decided under former Code 1933, § 24A-2201).
In ruling on deprivation petitions, findings of fact should be made in accordance with former Code 1933, § 81A-152 (see now O.C.G.A. § 9-11-52). W.R.G. v. State, 142 Ga. App. 81, 235 S.E.2d 43 (1977) (decided under former Code 1933, § 24A-2201); In re A.A.G., 143 Ga. App. 648, 239 S.E.2d 697 (1977);(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).
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).
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).
RESEARCH REFERENCES
Am. Jur. 2d.
- 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, § 110 et seq.
C.J.S.- 43 C.J.S., Infants, § 199 et seq.
U.L.A.- Uniform Juvenile Court Act (U.L.A.) § 29.
ALR.- Applicability of rules of evidence in juvenile delinquency proceeding, 43 A.L.R.2d 1128.
Applicability of double jeopardy to juvenile court proceedings, 5 A.L.R.4th 234.
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.