Detention Hearing; Time Limitations

1. Law
2. Georgia Code
3. Courts
4. Juvenile Code
5. Delinquency
6. Custody and Release of Child
7. Detention Hearing; Time Limitations

1. A detention hearing shall be held to determine whether preadjudication custody of an alleged delinquent child is required. If such hearing is not held within the time specified, such child shall be released from detention or foster care.
2. If an alleged delinquent child is detained and is not released from preadjudication custody, a detention hearing shall be held promptly and not later than:
   1. Two days after such child is placed in preadjudication custody if such child is taken into custody without an arrest warrant; or
   2. Five days after such child is placed in preadjudication custody if such child is taken into custody pursuant to an arrest warrant.
3. Notwithstanding Code Section 15-11-5, if the detention hearing cannot be held within two days in accordance with paragraph (1) of subsection (b) of this Code section because the date for the hearing falls on a weekend or legal holiday, the court shall review the decision to detain such child and make a finding based on probable cause within 48 hours of such child being placed in preadjudication custody.
4. Reasonable oral or written notice of the detention hearing, stating the time, place, and purpose of the hearing, shall be given to an alleged delinquent child and to his or her parent, guardian, or legal custodian, if he or she can be found. In the event such child's parent, guardian, or legal custodian cannot be found, the court shall forthwith appoint a guardian ad litem for such child.
5. If an alleged delinquent child is not released from preadjudication custody and his or her parent, guardian, or legal custodian or guardian ad litem, if any, has not been notified of the hearing and did not appear or waive appearance at such hearing and thereafter files an affidavit showing such facts, the court shall rehear the matter without unnecessary delay and shall order such child's release unless it appears from such hearing that such child's detention or foster care is warranted or required.
6. At the commencement of the detention hearing, the court shall inform an alleged delinquent child of:
   1. The contents of the complaint or petition;
   2. The nature of the proceedings;
   3. The right to make an application for bail, as provided by Code Section 15-11-507 and Title 17;
   4. The possible consequences or dispositions that may apply to such child's case following adjudication; and
   5. His or her due process rights, including the right to an attorney and to an appointed attorney; the privilege against self-incrimination; that he or she may remain silent and that anything said may be used against him or her; the right to confront anyone who testifies against him or her and to cross-examine any persons who appear to testify against him or her; the right to testify and to compel other witnesses to attend and testify in his or her own behalf; the right to a speedy adjudication hearing; and the right to appeal and be provided with a transcript for such purpose.
7. If an alleged delinquent child can be returned to the custody of his or her parent, guardian, or legal custodian through the provision of services to eliminate the need for removal, the court shall release such child to the physical custody of his or her parent, guardian, or legal custodian and order that those services shall be provided.
8. If an alleged delinquent child cannot be returned to the custody of his or her parent, guardian, or legal custodian, a probation officer or community supervision officer, as applicable, shall provide referrals for services as soon as possible to enable such child's parent, guardian, or legal custodian to obtain any assistance that may be needed to effectively provide the care and control necessary for such child to return home.
9. For purposes of this Code section, preadjudication custody begins when a juvenile court intake officer authorizes the placement of a child in a secure residential facility.

(Code 1981, §15-11-506, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2015, p. 422, § 5-13/HB 310; Ga. L. 2015, p. 540, § 1-11/HB 361.)

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.

Law reviews.

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-1404, pre-2000 Code Section 15-11-21, and pre-2014 Code Section 15-11-49, 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.

Notice and hearing requirements of former Code 1933, §§ 24A-1402 and 24A-1404 (see now O.C.G.A. §§ 15-11-501,15-11-502,15-11-506, and15-11-507) were mandatory and must be adhered to in order for the juvenile court to proceed with the adjudicatory hearing. If for some reason the statutes were not, dismissal of the petition would be without prejudice. 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-1404).

Provisions for detention and prosecution of a juvenile are mandatory, and a failure to comply with the provisions prejudices or injures the due process rights of the juvenile. In re B.A.P., 180 Ga. App. 433, 349 S.E.2d 218 (1986) (decided under former O.C.G.A. § 15-11-21).

Failure to comply with notice and hearing requirements of the Juvenile Code, after an allegedly deprived child has been taken from the parent's custody, prejudices or injures the rights of the parent, primarily the right to possession of the child under former Code 1933, §§ 74-106, 74-108, and 74-203 (see now O.C.G.A. §§ 19-7-1,19-7-25, and19-9-2). 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-1404).

Applicability of provisions of this section.

- Subsection (c) of former Code 1933, § 24A-1404 (see now O.C.G.A. § 15-11-506) had no application unless a juvenile was taken into custody, not released under former Code 1933, § 24A-1402 (see now O.C.G.A. § 15-11-58), but instead brought before the juvenile court or delivered to a detention or shelter care facility designated by the court and then released after an investigation under subsection (a) of former Code 1933, § 24A-1404. D.C. v. State, 145 Ga. App. 868, 245 S.E.2d 26 (1978) (decided under former Code 1933, § 24A-1404).

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. § 15-11-506) 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, said court properly prevented the juvenile from presenting evidence regarding the same. In the Interest of K.C., 290 Ga. App. 416, 659 S.E.2d 821 (2008) (decided under former O.C.G.A. § 15-11-49).

Section inapplicable.

- Former O.C.G.A. § 15-11-21 (see now O.C.G.A. § 15-11-506) did not apply because the juvenile was released to the juvenile's parents after being taken to the police station. In re C.W., 227 Ga. App. 763, 490 S.E.2d 442 (1997) (decided under former O.C.G.A. § 15-11-21).

Failure to comply with time limits requires dismissal.

- Time limits established by the General Assembly in the Juvenile Code are jurisdictional and must be strictly adhered to. A failure to comply with the time periods set out in the statute requires dismissal. R.A.S. v. State, 156 Ga. App. 366, 274 S.E.2d 752 (1980), overruled on other grounds, In re R.D.F., 66 Ga. 294, 466 S.E.2d 572 (1996) (decided under former Code 1933, § 24A-1404).

Dismissal without prejudice for violating five day time limit.

- In dismissing a deprivation petition because the petition was filed outside of the five-day limit of former O.C.G.A. § 15-11-49(e) (see now O.C.G.A. § 15-11-506), the trial court properly made the dismissal without prejudice. The Georgia Supreme Court had stated that in such a case any dismissal for failure to follow one of the procedural rules was without prejudice. In the Interest of E.C., 291 Ga. App. 440, 662 S.E.2d 252 (2008) (decided under former O.C.G.A. § 15-11-49).

Running of time limit for holding hearing.

- If juvenile was originally under the jurisdiction of the superior court, the time limit for holding a juvenile detention hearing did not begin running when the Attorney General mailed a letter to the juvenile court declining prosecution as an adult, but began to run when all the requirements for transfer were met and a petition for delinquency was filed. In re T.C.S., 220 Ga. App. 545, 469 S.E.2d 802 (1996) (decided under former O.C.G.A. § 15-11-21).

Importance of procedural due process in juvenile proceedings.

- Safeguarding of the child's procedural rights take on the same importance that procedural due process has in an adult criminal proceeding context. R.A.S. v. State, 156 Ga. App. 366, 274 S.E.2d 752 (1980), overruled on other grounds, In re R.D.F., 66 Ga. 294, 466 S.E.2d 572 (1996) (decided under former Code 1933, § 24A-1404).

Waiver of requirements of former section.

- Although the procedural requirements of former O.C.G.A. § 15-11-21 (see now O.C.G.A. § 15-11-506 have been held to be mandatory, such requirements can be waived. Irvin v. Department of Human Resources, 159 Ga. App. 101, 282 S.E.2d 664 (1981) (decided under former O.C.G.A. § 15-11-21).

Right to counsel of accused juvenile.

- An accused juvenile is entitled to counsel at an "informal detention hearing,", or at any of the other stages of any proceedings alleging delinquency, unruliness, and deprivation. A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974) (decided under former Code 1933, § 24A-1404).

Jurisdiction linked to petition.

- Former statute indicated that assumption of jurisdiction by a juvenile court was linked to an authorized petition. Hartley v. Clack, 239 Ga. 113, 236 S.E.2d 63 (1977) (decided under former Code 1933, § 24A-1404).

No acquisition of jurisdiction by juvenile court ordering place of detention.

- Juvenile court's order for detention was merely a designation of the place of detention as required by former statute, the juvenile court did not acquire jurisdiction by the court's order for detention. Hartley v. Clack, 239 Ga. 113, 236 S.E.2d 63 (1977) (decided under former Code 1933, § 24A-1404).

Former Juvenile Code recognized that parent was "party" to proceedings involving the parent's child. 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-1404).

Definition of "day."

- Word "day," not being qualified, means a calendar or civil day consisting of 24 hours from midnight to midnight. 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 Code 1933, § 24A-1404).

Charging petition "logged" in by clerk deemed "presented to the court."

- When the chief deputy clerk and calendar clerk received a petition charging a minor with commission of various delinquent acts and "logged" the petition in, the petition was "presented to the court" within the meaning of subsection (e) of former O.C.G.A. § 15-11-21 (see now O.C.G.A. § 15-11-506). P.L.A. v. State, 172 Ga. App. 820, 324 S.E.2d 781 (1984) (decided under former O.C.G.A. § 15-11-21).

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). 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. § 15-11-49).

Illegal detention.

- When the petition on the charge on which a juvenile was detained had not been presented within 72 hours of the detention hearing, the state was not at liberty to hold the juvenile until the state developed evidence of other crimes or discovered the juvenile had committed other crimes, although if the charge upon which the juvenile had been detained was properly petitioned within 72 hours and the juvenile was then lawfully detained, the state could have prosecuted the juvenile at the subsequent adjudicatory hearing within ten days under former O.C.G.A. § 15-11-26(a) (see now O.C.G.A. §§ 15-11-181,15-11-400,15-11-421,15-11-441, and15-11-522) for any offenses the state uncovered in the meantime, including one upon a petition filed the day of the adjudicatory hearing. In re B.A.P., 180 Ga. App. 433, 349 S.E.2d 218 (1986) (decided under former O.C.G.A. § 15-11-21).

Since the petition was not presented within 72 hours of a detention hearing as required by subsection (e) of former O.C.G.A. § 15-11-21 (see now O.C.G.A. § 15-11-506), 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 former O.C.G.A. § 15-11-26(a) (see now O.C.G.A. §§ 15-11-181,15-11-400,15-11-421,15-11-441, and15-11-522). In re B.A.P., 180 Ga. App. 433, 349 S.E.2d 218 (1986) (decided under former O.C.G.A. § 15-11-21).

Return of a child to custody following the child's escape was not an "informal detention" pursuant to subsection (c) of former O.C.G.A. § 15-11-21 (see now O.C.G.A. § 15-11-506) so as to require a hearing within 72 hours of the child's recapture. In re J.L.P., 226 Ga. App. 160, 486 S.E.2d 387 (1997) (decided under former O.C.G.A. § 15-11-21).

Dismissal of depravation complaint.

- Because a child's mother and stepfather tested negative for chlamydia and were cooperating with authorities, pursuant to Ga. Unif. Juv. Ct. R. 8.1 and former O.C.G.A. § 15-11-49 (see now O.C.G.A. § 15-11-506), the trial court properly dismissed a depravation complaint for lack of reasonable grounds showing intentional or unintentional misconduct resulting in abuse or neglect of the child. In the Interest of J. F., 310 Ga. App. 807, 714 S.E.2d 399 (2011) (decided under former O.C.G.A. § 15-11-49).

Additional charges.

- Since a child remained in custody continually from the child's arrest on December 31, 1990, and a detention hearing was held on January 2, 1991, and the 72-hour period following that hearing did not expire until January 5, the state was authorized to bring additional charges at a detention hearing on January 7, 1991, and the additional charges constituted compliance with subsection (c) of former O.C.G.A. § 15-11-21 (see now O.C.G.A. § 15-11-506). In re S.E.M., 201 Ga. App. 454, 411 S.E.2d 350 (1991) (decided under former O.C.G.A. § 15-11-21).

Timely hearing.

- When the defendant was arrested in the early hours of Friday, a hearing conducted at 9:00 a.m. the following Monday was timely. Livingston v. State, 266 Ga. 501, 467 S.E.2d 886 (1996) (decided under former O.C.G.A. § 15-11-21).

Findings made in unrecorded hearing reversed.

- Because the juvenile court primarily based the juvenile court's decision that a parent's two children were deprived, awarding temporary custody of the children to the county, on evidence received at an unrecorded hearing, and a waiver requiring a transcript of that hearing was not in evidence, those findings were reversed, and the case was remanded. In the Interest of D.P., 284 Ga. App. 453, 644 S.E.2d 299 (2007) (decided under former O.C.G.A. § 15-11-49).

Consideration of evidence from detention hearing at adjudication.

- Although evidence presented at a juvenile detention hearing was for the purpose of determining whether preadjudication custody of the child was required, a juvenile court did not err in considering evidence presented at the detention hearing during the adjudication hearing; any error was harmless as the same judge, counsel, and witnesses participated in both hearings and the evidence was substantially the same. In the Interest of C. S., 334 Ga. App. 153, 778 S.E.2d 396 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, § 66 et seq.

C.J.S.

- 43 C.J.S., Infants, §§ 140 et seq., 226 et seq., 239.

U.L.A.

- Uniform Juvenile Court Act (U.L.A.) § 17.

ALR.

- Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights, 80 A.L.R.3d 1141.

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