This manual was written to provide informal information about the process of child deprivation cases. It is not to be used as the official authority on law and procedure. Please consult your current DFCS policy and procedure manual for official policy.
As a DFCS case manager, you are heavily involved in the juvenile court process in cases involving the abuse or neglect of children. As a result you have the potential to exert an enormous amount of influence on the direction of a child's life. This manual is designed to give DFCS case managers an understanding of Georgia law and juvenile court procedures as they relate to deprivation cases brought by the Division of Family and Children Services. The manual is written in chronological order and will take you through the legal requirements and the expectations of the court in a deprivation case from the first allegation, through the removal of the child from the home, up to and including the possibility of terminating parental rights. The manual discusses the investigation of an allegation by DFCS, preliminary protective custody, 72-hour emergency hearings, the filing of deprivation petitions, adjudicatory and dispositional hearings, judicial review of cases and termination of parental rights. In addition, the manual will discuss what types of evidence from your case record will be admissible in court in each of these hearings. Finally, the manual will provide helpful hints on how to prepare yourself to testify in court. We hope that this manual gives you a basic understanding of Georgia juvenile court procedures. In no way is this manual to be considered the official policy of DFCS or the juvenile court system. This document is simply a short summary of the law as it may apply to your position as a case manager. There is a great deal of information concerning Juvenile Law not included in this material. As part of the ongoing Child Placement Project, similar manuals have been prepared for Special Assistant Attorney Generals, as well as attorneys for parents and attorneys for children.
Jurisdiction is the authority of a court to hear a case. There are two types of jurisdiction. Personal jurisdiction is the authority of the court to hear a case concerning a particular individual. Subject matter jurisdiction is the power of a court to hear certain types of cases such as a juvenile deprivation petition.
In Georgia, the juvenile court has exclusive jurisdiction over a child who is alleged to be deprived. O.C.G.A. § 15-11-28(a)(1)(C). A child is defined under the code for purposes of a deprivation action as anyone under the age of 18. O.C.G.A. § 15-11-2(2)(C). This gives the juvenile court system subject matter jurisdiction over deprivation cases in general as well as personal jurisdiction over the juveniles themselves. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4.2, 4.8. The juvenile courts also have exclusive jurisdiction over proceedings involving the termination of a legal parent-child relationship as well as the rights of a biological father who is not the legal father of a child unless the petition is brought for purposes of an adoption. O.C.G.A. § 15-11-28(a)(2)(C). When the petition is brought for purposes of an adoption, the juvenile courts are granted concurrent jurisdiction with the superior courts to terminate a legal parent-child relationship or the rights of a biological father who is not the child's legal father in connection with an adoption proceeding. O.C.G.A. § 15-11-28(a)(2)(C). The juvenile court is also allowed to hear a legitimation petition either transferred from superior court or filed with respect to a child over whom a deprivation proceeding is pending in that juvenile court. O.C.G.A. § 15-11-28(e). The juvenile courts also have exclusive jurisdiction over proceedings involving the Interstate Compact on Juveniles. O.C.G.A. § 15-11-28(a)(2)(B).
Under the Georgia Constitution, the superior court system has exclusive jurisdiction over all divorce actions. Ga. Const. 1983, Art. VI, §IV, I. As a result, some confusion often arises when deprivation is alleged in a custody battle between the child's parents. Juvenile courts will not accept a deprivation petition filed by one parent against another because it is most likely an attempt to gain custody of the child by bypassing a more stringent standard of proof necessary to modify a custody award. In the Interest of W.W.W., 213 Ga. App. 732 (1994). All deprivation proceedings arising between the child's parents must be originally filed in superior court. If the superior court judge determines that the deprivation proceeding is not a custody dispute in disguise, the judge will transfer the deprivation issues to the juvenile court for adjudication. In the Interest of M.A. et al., Children, 218 Ga. App. 433 (1995). Thus, during the investigation of an allegation of deprivation, it is possible that the caseworker will have some contact with the superior court system as well.
is without a parent, guardian, or custodian.
One important exception is specifically listed in the code. "No child who in good faith is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof, shall, for that reason alone, be considered to be a deprived child." O.C.G.A. § 15-11-2(8). The Juvenile Code seems to allow for the refusal of traditional medical treatments based upon the religious beliefs of that child's parents. A child cannot be classified as deprived solely because his parents choose to forego a standard medical treatment recommended by a child's physician. Although no court has defined the exact boundaries of this statutory exception, some commentators have suggested that if a child's life or long term health are endangered due to a lack of medical care, state intervention is still appropriate regardless of the justification posed by the parents. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-7. This issue has yet to be resolved. However, it is clear that when a parent's refusal is not based upon his/her religious beliefs, the state is authorized to intervene in cases of medical neglect. Bendiburg v. Dempsey, 909 F.2d 463 (11th Cir. 1990).
The first definition of deprivation focusing on whether the child is without proper parental care or control is a general catch-all provision. The vast majority of deprivation petitions are filed on this basis. You may notice that the statutory definition of deprivation is written in broad, non-specific language. This area of the code is to be "liberally construed" by the court in order to assist and protect "children whose well-being is threatened." O.C.G.A. § 15-11-1(1). The definition of deprivation is broad enough to allow "sufficient latitude of discretion for the juvenile court." Moss v. Moss, 135 Ga. App. 401 (1975).
The broad definition given for deprivation is commonly understood to include children who are abused, neglected, and exploited as defined in other sections of the Georgia Code. 1976 Op. Atty Gen. No. 76-131. The Official Code of Georgia § 19-7-5(b)(3)(A) defines "Child Abuse" as physical injury or death inflicted upon a child by a parent... by other than accidental means; provided, however, physical forms of discipline may be used as long as there is no physical injury to the child. The definition also includes the neglect or exploitation of a child by a parent or caretaker as well as sexual assault or exploitation of such a child. O.C.G.A. § 19-7-5(b)(3)(B-D).
Many cases combine not only "moral unfitness, physical abuse and abandonment," but also frequent moves from home to home which can prevent the successful formation of a parent-child relationship. Elrod v. Hall County Dept. of Family and Children Services, 136 Ga. App. 251 (1975). There can be a substantial danger that the child will suffer emotional as well as physical, mental, and moral harm. These cases therefore justify labeling the child as deprived under the catch-all definition given in the Juvenile Code. Id.
A finding of deprivation is not a finding of some sort of "fault" upon the abilities and actions of that child's parents. The definition of a deprived child focuses on the needs and safety of the child regardless of whether the behavior of the child's parents either caused the child's deprivation or could have prevented it. Brown v. Fulton Co. Dept. of Family and Children Services, 136 Ga. App. 308 (1975). In a situation where a child has been sexually abused by her father, the Court of Appeals has held that a juvenile court does not abuse its discretion by removing a child from the care and custody of her mother as well if her mother did not believe that the abuse was occurring and was unwilling to remove the child from danger by leaving the home of the child's father. In the Interest of B.H., 190 Ga. App. 131 (1989).
A finding of deprivation must be based upon the present conditions of the child as opposed to any alleged past deprivation or potential deprivation in the future. The juvenile court system only has jurisdiction over cases in which a child is alleged "to be" deprived as opposed to cases in which a parent alleges that the child was deprived and potentially will be deprived again if returned to the child's other custodial parent. Lewis v. Winzenreid, 263 Ga. 459 (1993).
A finding that a child might be better off in a different environment is insufficient for a finding that the child is deprived. The mere fact that the child's home life is substandard in terms of economics or cleanliness is not necessarily grounds for state intervention. R.C.N. v. State of Georgia, 141 Ga. App. 490 (1977). However, "unfortunate economic and personal circumstances" are not an excuse for parents to ignore the basic hygiene and medical needs of their child. "Even the poorest of the poor can be expected to maintain reasonably clean and hygienic living conditions." Vermilyea v. Dept. of Human Resources, 155 Ga. App. 746 (1980).
Since the main definition of deprivation in the Juvenile Code is purposefully written without specific language, you may have difficulty in certain circumstances determining if a child should be considered deprived. Your DFCS policy manuals can provide you with assistance in these situations. You will often need to refer to the DFCS guidelines for determining who is a deprived child and when it is appropriate to file a petition. (See Child Protective Services Manual).
Placing a child in care or adoption in violation of law is another potential justification for a finding that a child is deprived. This category requires an explanation of Georgia adoption law that is beyond the scope of this manual. There are specific laws and regulations governing the conduct of adoptions and should any questions arise in this area you should consult the SAAG representing your county department or the main DFCS office in Atlanta. Since this definition of deprivation is almost never used at the trial court level, there are no appellate court decisions interpreting this section of the law and the precise meaning of this category remains unclear. However, it is clearly illegal for any individual or organization to hold out inducements to parents to part with their children. O.C.G.A. § 19-8-24(a)(2). The law also forbids any form of advertising that a person or organization will adopt or will arrange for a child to be adopted or placed for adoption. O.C.G.A. § 19-8-24(a)(1).
This justification for a finding of deprivation is also rarely used. Presumably, it means something other than abandonment, such as a lack of a parent or guardian to care for the child due to illness, death, or imprisonment. There is some indication that this standard can include situations in which one parent is deceased and another is incarcerated. In re J.R.T., a Child, 233 Ga. 204 (1974). However, given the large number of deprivation cases involving incarcerated parents that are filed under the general category of a "lack of parental care or control" it seems clear that this category is rarely used for that purpose.
The SAAG representing your county must now consider in which juvenile court to file a deprivation petition. This decision is called venue. A deprivation proceeding may be commenced in any county in which the child resides or in any county where the child is present when action was taken to protect the child. O.C.G.A. § 15-11-29(a). If your county has either a full or part time juvenile court judge to hear deprivation cases, the hearing should occur in your county since that will be where either the child resides or where the child was present when the legal action was commenced. If your county has a superior court judge who periodically hears juvenile court cases, the superior court judge can choose to hear your case in any county within your judicial circuit. O.C.G.A. § 15-11-29(b). In such situations, it may be necessary for you to travel to another county to appear in a deprivation hearing.
The Georgia Juvenile Code allows a law enforcement officer or a duly authorized officer of the court to take a child into custody "if there are reasonable grounds to believe that the child is suffering from illness or injury or is in immediate danger from his or her surroundings and that his or her removal is necessary." O.C.G.A. § 15-11-45(a)(4). A commentator has suggested that a case manager is not authorized by law to remove a child from the home without first obtaining a preliminary protective custody order explained in the next section. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-10. Furthermore, DFCS policy specifically prevents a caseworker from removing a child from the home without first obtaining a court order. See Child Protective Services Manual. Law enforcement officers often encounter situations of child abuse and neglect during their daily interactions with the public. The law allows such an officer to immediately remove a child from the home in these situations and permits the court to determine whether the removal was necessary for the child's protection at a later time.
Often DFCS will be contacted directly by school officials or other concerned citizens regarding the possibility of abuse or neglect of a child without the involvement of law enforcement. If after an investigation the case manager finds that there is a sufficient basis to remove the child from the home, a deprivation petition may be filed with a juvenile court judge. The contents of this petition will be discussed later in this manual. Some Georgia courts do not require the filing of a petition but will issue a summons upon the filing of a complaint or affidavit or on the basis of sworn testimony. If the judge believes that the circumstances warrant removal of the child, an order will be issued authorizing a law enforcement officer to take the child into custody. O.C.G.A. § 15-11-49.1. While not explicitly authorized by the statute, it is apparently the practice in some jurisdictions for the court to issue a "pick up" order after which the DFCS case manager will take the child into custody. In situations in which you feel a confrontation with the parents or guardian of the child is likely, it is advisable to request the assistance of a law enforcement officer in removing the child from the home. In circumstances where the court feels that removal is unnecessary, the court also has the option of simply issuing a summons directing the parents, guardian, or other custodian of the child to appear at the adjudicatory hearing and to bring the child with him/her. O.C.G.A. § 15-11-39(c).
After removing the child from the home with or without a court order, a law enforcement officer or officer of the court should immediately bring the child before the juvenile court or promptly contact the juvenile court intake officer. O.C.G.A. § 15-11-47(a)(3). Each juvenile or superior court judge must appoint one individual to serve in this capacity during each twenty-four hour period. This individual may be the judge himself, an associate juvenile court judge, a court service worker, or a person employed as a juvenile probation or intake officer designated by the court. O.C.G.A. § 15-11-2(10). If the child is suffering from a serious physical condition or illness which requires medical treatment, the law enforcement officer may take the child to a medical facility prior to contacting the juvenile court intake officer. O.C.G.A. § 15-11-47(a)(2).
an order for his detention or shelter care has been made by the court.
Situation 4 occurs when an order for detention was already ordered by the court and the law enforcement officer was ordered simply to pick up the child as required by the detention order.
a shelter care facility operated by the court.
The actual physical placement of a child requires the approval of the Juvenile Court Judge or his/her designee. O.C.G.A. § 15-11-48(f).
A. When is the hearing required? What must be shown?
An informal detention hearing within 72 hours of the child's removal from the home is required when the juvenile court or the court intake officer has not released the child to the custody of his or her parents after removal from the home. If the 72-hour period expires on a Saturday, Sunday, or legal holiday, the hearing must be held on the next day of business which is not a Saturday, Sunday, or legal holiday. O.C.G.A. § 15-11-49(c)(3). The Georgia Supreme Court has interpreted this time frame to be mandatory and if the hearing is not held within 72 hours of the child's removal, the deprivation action should be dismissed without prejudice. Sanchez v. Walker Co. Dept. of Family and Children Services, 237 Ga. 406 (1976). Dismissal "without prejudice" means that the department may refile a deprivation petition if it has reason to believe that the child is abused or neglected. It would seem that a dismissal of a petition would require returning a child to the custody of his/her parent(s). However, given the court's authority to issue preliminary protective custody orders based on allegations contained in a petition, there seems to be nothing to prevent a juvenile court judge from issuing another "pick up" order to again detain the child should the court feel that the situation warrants such action. If a parent fails to make a timely objection during the informal detention hearing that the statutory time limits have not been observed, this objection is effectively waived and cannot be raised on appeal. Irvin v. Department of Human Resources, 159 Ga. App. 101 (1981). While the procedure allows the case to go forward, the delay associated with beginning the process over again is burdensome for the DFCS caseworker and may result in either returning a child into a potentially harmful home environment or extending the time a child will spend in shelter care. Adequate preparation to make sure that both the SAAG and DFCS caseworker are prepared and ready for the informal detention hearing is essential.
At the 72-hour hearing, the judge will determine if it is safe to return the child or if the child should be detained until a full hearing can be held to determine whether the child is deprived. The hearing provides the child's parents with judicial review of the actions taken by the juvenile court intake officer. Most juvenile courts have interpreted the 72-hour hearing as the equivalent of a probable cause hearing which uses a standard of proof known as preponderance of the evidence. The petitioner must show evidence to indicate that it is "more likely than not" that the child is deprived. This is a much lower burden of proof on DFCS than will be required at the formal adjudicatory hearing (trial) on the merits of the deprivation petition. Remember, if the juvenile court intake officer released the child to the custody of his/her parents, it will not be necessary to hold a 72-hour hearing prior to the adjudicatory hearing if DFCS determines to pursue the matter further.
The person who represents the petitioner in the 72-hour informal detention hearing varies from jurisdiction to jurisdiction. In all other hearings, the petitioner is represented by an attorney. The petitioner is usually the Division of Family and Children Services which is represented by a SAAG (Special Assistant Attorney General). In some counties this is true for the 72-hour hearing as well. However, it is common practice in some jurisdictions to allow a guardian ad litem for the child or even the caseworker him/herself to represent the department's case in this hearing. There is no standard in the Georgia Code or the Uniform Rules of the Juvenile Courts of Georgia endorsing or opposing this practice.
The court is required to provide "reasonable notice" of the informal detention hearing either orally or in writing, stating the time, place, and purpose of the hearing to the child and, if they can be found, to his/her parents, guardian, or other custodian. O.C.G.A. § 15-11-49(c)(4). Notice to the parent of the child is mandatory, and failure to do so can result in a dismissal without prejudice. Sanchez v. Walker Co. Dept. of Family and Children Services, 237 Ga. 406 (1976). If a parent is not notified of the hearing because he/she could not be located and did not appear or waive his/her right to appear at this hearing, the parent can file a motion with the court which will require the rehearing of the matter "without unnecessary delay." O.C.G.A. § 15-11-49(d). A parent who has not received notice of the hearing may file an affidavit with the court stating these facts to cause a 72-hour hearing to be reheld. After such a filing, the child shall be released to such a parent unless it appears that the child's detention or shelter care is required under the standards set forth above. O.C.G.A. § 15-11-49(d). This procedure puts additional burdens on the caseworker and causes more delays for the child prior to the adjudication of his/her case. During your investigation, it is important to find the parents of the child if at all possible so that the court may provide notice of the proceedings as soon as possible.
A party is entitled to legal representation at all stages of any proceeding alleging deprivation. If a party is indigent and cannot afford a lawyer, the court will provide that party with counsel. O.C.G.A. § 15-11-6(b). An "indigent person" is defined under the code as one who is "unable without undue financial hardship" to provide for full payment of legal counsel and all other necessary expenses for representation." O.C.G.A. § 15-11-6(a). Prior to the commencement of the informal detention hearing, the judge is required to inform all parties of their right to counsel. O.C.G.A. § 15-11-49(c)(4). The court may continue (postpone) a proceeding so that a party may obtain a lawyer. O.C.G.A. § 15-11-6(b). The court shall at any stage of the proceedings appoint a guardian ad litem to represent the interests of a child who is a the subject of a deprivation proceeding when there is no parent available to represent the interests of the child or when the child's interests conflict with those of the parent. O.C.G.A. § 15-11-9. In interpreting this section of the code, the Attorney General has issued an opinion stating that in deprivation hearings brought between a child and his/her parent or guardian, an inherent conflict of interest develops which requires the appointment of a guardian ad litem. Op. Atty. Gen. 76-131 (1976).
The Georgia Court of Appeals has held that all parties to a deprivation proceeding, including the child and his/her parents, should be represented individually. In addition, a parent in a deprivation action cannot waive the child's rights to independent legal counsel. The court held that a deprivation action is one in which the interests of the child and her parents are adverse and that the juvenile court could have appointed a guardian ad litem to protect the interests of the child and should have done so. McBurrough v. Dept. of Human Resources, 150 Ga. App. 130 (1979).
In 1974, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA), P.L. 93-247, which required all states receiving federal funds to appoint a guardian ad litem to represent the interest of the child in child abuse or neglect cases which result in a judicial proceeding. 42 U.S.C. § 5106(b)(6). The 1996 reauthorization of this act provides that the guardian ad litem does not have to be an attorney and may be a Court Appointed Special Advocate (CASA) or both. The reauthorization provides that the responsibilities of the guardian ad litem are "to obtain first-hand, a clear understanding of the situation and needs of the child, and to make recommendations to the court concerning the best interests of the child." Federal regulations provide that while the guardian does not have to be an attorney, the guardian must be charged with representing the rights and best interests of the child. 45 C.F.R. Ch. XIII 1340.14(g) (10-1-96 Edition).
In Georgia, the type of representation offered to children in deprivation proceedings varies from jurisdiction to jurisdiction. In some counties, private paid attorneys are appointed to serve as a guardian ad litem while in others they are hired as counsel for the child. Other counties have volunteer guardian ad litem and CASA programs to provide representation for children. These volunteers may not be attorneys with standing to make legal arguments and motions on behalf of the child. In addition, the exact nature of the guardian ad litem's role in the juvenile court process is somewhat unclear due to a lack of statutory explanation of their official duties. Practices seem to vary around the state. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-14. The guardian ad litem does have a duty to investigate, as fully as possible, the allegations contained in the petition as well as the explanation, if any, offered by the parents. The guardian should also meet with or inspect the child prior to the deprivation hearing. In all cases, the guardian ad litem should, at a minimum, provide the court with a recommendation in a closing argument based upon their own out-of-court interviews and investigation. Id. at §4-14.
In order to avoid confusion, for purposes of this manual, the term guardian ad litem (GAL) will refer to private attorneys (called Child Advocates in some jurisdictions) appointed by the court to represents the best interests of the child or to act as counsel for the child. The term Court Appointed Special Advocate (CASA) will refer to the various volunteer guardian ad litem programs that are currently in use around the state.
While some juvenile courts restrict a guardian ad litem to an advisory role, many allow for a guardian to participate equally in the hearing with a SAAG and the attorney for the parents. This may include seeking discovery, as well as calling and cross-examining witnesses. Id. at § 4-14. The Court of Appeals has recently held that in a child custody proceeding, when a judge appointed a guardian ad litem to represent a child, the child was in effect made a party to the proceeding and therefore had standing to appeal the judgement through the GAL. Miller v. Rieser, 213 Ga. App. 683 (1994). The court came to a similar conclusion in a proceeding to terminate parental rights where the statute mandates the appointment of a guardian ad litem. In re G.K.J., 187 Ga. App. 443 (1988).
sure that the child's wishes are known to the court. Ferreira, McGough's Juvenile Practice and Procedure (2nd ed), at § 4-14. However, under Ethical Considerations 7-12 and 7-17 of the Code of Professional Responsibility, an attorney acting as a guardian ad litem is not required to change his/her recommendation to the court based upon the wishes of the child. The GAL's role in the deprivation process is to make a recommendation in the best interests of the child which may mean a recommendation that is contrary to what the child desires. Id. at § 4-14. This differs from the role of an attorney in other proceedings to advocate for the position of his/her client. Some believe that a conflict of interest could develop in a situation where an attorney serves as both as the child's counsel (advocate) as well as guardian ad litem and the attorney's recommendation differs from the wishes of the child. The Court of Appeals has determined that in a deprivation case, an attorney acting as both counsel for the child and guardian ad litem is not a conflict of interest and an attorney can perform both roles with the permission of the court. Dawley v. Butts Co. Dept. of Family and Children Services., 148 Ga. App. 815 (1979).
Another potential court participant is the Court Appointed Special Advocate, or CASA. CASA is an organization operating in many counties within our state in which trained volunteers take an in-depth look at an alleged case of deprivation and provide a report to the court at the adjudicatory and dispositional hearings. Often the CASA and guardian ad litem work as a team, with the CASA having more time to do an in-depth study of the family due to their relatively small caseload (they are usually limited to two cases at a time). The CASA volunteer will, if possible, interview the child and his/her parents and make an oral or written report of his/her observations to the court and any recommendation for disposition. CASA volunteers are usually restricted to an advisory role for the court and do not call witnesses or present evidence. However, if the CASA volunteer is also an attorney or if there is no attorney appointed to represent the child, some courts will allow the volunteer to take a more active role in the proceedings.
A. When must the petition be filed?
In cases where the juvenile court intake officer found it necessary to release the child into the custody of his/her parents, a deprivation petition has to be filed with the court within 30 days of the child's release if DFCS wishes to pursue the case further. O.C.G.A. § 15-11-49(b). If the child was not released either by the intake officer after the child's removal or the juvenile court judge in the 72-hour hearing, a deprivation petition must be submitted within 5 days of that hearing. O.C.G.A. § 15-11-49(e). The petition may have already been filed if DFCS had gone directly to the juvenile court judge asking that the child be taken into protective custody. O.C.G.A. § 15-11-49(d).
The filing of the petition starts the time table for the scheduling of the formal adjudicatory hearing on the merits of the deprivation petition. This period is shortened considerably when the child is in detention or shelter care. If the child is in detention, the adjudicatory hearing must be set within 10 days after the filing of the petition. If the child was released to his parents or if DFCS felt it was unnecessary to request the removal of the child, the hearing must be set within sixty (60) days of the filing of the deprivation petition. O.C.G.A. § 15-11-39(a). This creates the possibility of at most an 18-day wait between the removal of the child from the home and the adjudicatory hearing on the petition if the child has not been released to his/her parent(s). This contrasts considerably with the potential 90-day wait in cases where the intake officer and/or the juvenile court judge determined that the child's detention was not warranted. You should be aware that a judge has the power to grant a continuance (postponement) in an adjudicatory hearing for "good cause." URJC, 11.3.
If a deprivation action is initiated by other than a complaint (such as with a petition), a copy of the complaint form (JUV-2) must be completed and attached to the petition (JUV-4). A copy of these forms are attached at the end of this chapter. However, before a petition alleging deprivation may be filed with the court, the juvenile court judge or a person authorized by the court must determine and endorse upon the petition that the filing is in the best interests of both the public and the child. O.C.G.A. § 15-11-37, URJC, 6.3. The court does not officially take jurisdiction over the case until the petition has been filed. The petition itself is what officially commences a deprivation proceeding. Even though the judge may have already issued a detention order in a previous hearing, the deprivation case does not officially begin until this document is accepted and filed. Longshore v. State, 239 Ga. 437 (1977). The petition alleging deprivation may be made by any person, including a law enforcement officer, who has knowledge of the facts alleged and believes that they are true. O.C.G.A. § 15-11-38. This person or organization is called the petitioner and is usually the county division of DFCS represented by a SAAG.
B. What must the petition contain?
whether the child is in custody, and if so, the place of his detention and the time he was taken into custody.
The information contained in the petition must satisfy a constitutional requirement known as due process, which includes the right of an individual to know the nature of what has been alleged against him/her by the government. This means that the petition must provide the parent in "ordinary and concise language the facts demonstrating the nature of the parent's alleged failure to provide proper parental care or control in order to enable a parent to have sufficient information to prepare a defense." In re D.R.C., 191 Ga. App. 278 (1989). The court held that a petition simply stating that the parent had violated the standards set forth in law without providing any details violated the parent's due process rights. The petition must be specific enough so that the parent will have at least some idea of what facts have been alleged by DFCS in recommending to the court that the child is deprived. Id. at 278.
The petition can be amended at any time prior to the adjudication provided that the court shall grant all other parties the necessary additional time to prepare to ensure a full and fair hearing. URJC, 6.6. If a child is detained, the amendments shall not delay the hearing more than ten days beyond the time originally set for the hearing unless a continuance is requested by the child or his/her attorney. URJC, 6.6.
There are two distinct parts to a hearing on a deprivation petition. At an adjudicatory hearing, the court determines whether the allegations contained in the complaint are true. This is basically a hearing to determine whether or not the child is deprived under the standards set forth in the Georgia Juvenile Code. At the dispositional hearing the court determines what will be done once the child has been found to be deprived. The adjudicatory hearing must be set within ten (10) days of the filing of the deprivation petition if the child is in shelter care or within sixty (60) days from the filing if the child was released by the juvenile court intake officer or the judge at the 72-hour hearing or was never taken into custody at all. O.C.G.A. § 15-11-39(a). The Court of Appeals has held that the time frame for this hearing is mandatory, just as it is for the 72-hour hearing. Although the hearing must be set within ten days, the court has authority to grant a continuance to another date. Sanchez v. Walker Co. Dept. of Family and Children Servs., 237 Ga. 406 (1976). If the parent or guardian of the child does not object to the violation of the statutory time frame without a continuance at the trial court level, the issue will not be heard on appeal. Id. at 408. The Court of Appeals came to a similar conclusion for the adjudicatory hearings of minors who have not been removed from the home. The parents of the minor not in state custody did not object to a hearing beyond the 60 day limit either at the hearing or in a motion for a new trial and therefore the issue was effectively waived. E.S. v. State, 134 Ga. App. 724 (1975). Rule 11.3 of the Uniform Rules for the Juvenile Courts of Georgia allows a judge to continue (postpone) a hearing for a reasonable time for "good cause shown." If this procedure continues a hearing beyond the statutory time limits, the granting of the continuance must be in writing with the specific reason stated therein. URJC, 11.3. This is important because it creates a record of why the child remained in foster care beyond the period authorized by law and why so much time passed before an adjudicatory hearing was granted in the case.
No specific definition of "good cause" is given. This leaves to the discretion of the juvenile court judge when to adjust the statutory time frame for holding an adjudicatory hearing. You should be mindful that any continuance extends the length of time a child remains in foster care, often unnecessarily. It is important for the DFCS case manager to consult with the SAAG (Special Assistant Attorney General) representing the department prior to the hearing to make sure that all documents and necessary witnesses will be available at the start of the hearing in order to prevent unnecessary continuances.
Discovery is the process prior to a court hearing whereby an attorney representing one client must turn over documents and other evidence in his possession to the attorney of the opposing party. The Georgia Juvenile Code does not specifically mention the use of discovery in deprivation proceedings. However, Rule 7.1 of the Uniform Rules for the Juvenile Courts states that discovery may be allowed in all cases where deprivation is alleged. Any discovery permitted under this rule will be at the discretion of the presiding juvenile court judge. URJC, 7.1. Discovery can include interrogatories, which are written questions directed at an opposing party (usually the DFCS case manager), depositions, which are oral interviews before the opposing party's attorney taken under oath, requests for production of documents, and requests for physical or mental examinations of a parent, guardian, custodian, or a child. URJC, 7.2. The SAAG representing your county will determine how to respond to any discovery requests made by the attorney representing the child's parent(s) or any other party to the proceeding. You should never turn over any documentation in the custody of the Division of Family and Children Services without consulting your SAAG first.
A source of occasional controversy in the area of pretrial discovery is a request for the production of documents from the DFCS caseworker's file. The Child Abuse and Deprivation Records Act, O.C.G.A. § 49-5-40(b) states that "each and every record concerning the report of child abuse" is confidential and access to such records is prohibited. The Georgia Code allows for a judge to access these records by subpoena on behalf of an attorney representing a parent when access to such records is necessary "for the determination of an issue" before the court. The juvenile court judge is required to review the file independently and release only the information necessary for the resolution of the issue then before the court. O.C.G.A. § 49-5-41(a)(2). This is commonly referred to as an "in camera inspection." In reviewing the DFCS case file, the judge will take into account the evidentiary issues (to be discussed in a later chapter) to determine if the evidence is admissible or should be excluded.
The concept of confidentiality is difficult to overcome in attempting to open up DFCS records for review by attorneys for parents or children. The Court of Appeals has held that the "intent of the legislature was to interpret O.C.G.A. § 49-5-40 broadly to provide for the maximum protection to records and reports of child abuse and neglect and to construe O.C.G.A. § 49-5-41 strictly to limit the scope of statutory exceptions." Horne et al. v. The State, 192 Ga. App. 528 (1989). However, the confidentiality of DFCS records regarding reports of child abuse and neglect is not absolute. The Georgia Court of Appeals overturned a juvenile court order stating that a father and his attorney had no right of access to Department of Human Resources records. The court found that the legislature intended to allow pre-trial discovery of Department records except where specifically barred in the statute. Ray v. Department of Human Resources, 155 Ga. App. 81 (1980). In a later case, the Court of Appeals held that the right of a parent accused of misconduct to know the nature of the evidence against the parent is fundamental to our system of justice. In re M.M.A., 166 Ga. App. 620 (1983). There the juvenile court also denied the parents any access to departmental records and files. The court said that if the files contained a matter which should have remained confidential, those records could have been removed from the case file prior to providing it to the parents' attorney. Id. at 625. The ability of a party to access DFCS records in a deprivation action is limited. The Georgia Court of Appeals has held that a trial judge acted within his power in refusing to allow discovery of "caseworker notes, memoranda, and other caseworker generated documents" that were not intended to be used by the department at the hearing. In re C.M., 179 Ga. App. 508 (1986). You should remember that discovery requests are granted at the discretion of the juvenile court judge. What one judge may consider relevant for the determination of an issue before the court may differ from that of another judge.
Once an adjudicatory hearing date has been scheduled under the required time frame discussed above, the judge will issue a summons to all individuals "who appear to the court to be proper or necessary parties to the proceeding." O.C.G.A. § 15-11-39(b). These parties can include the parents, guardian, or other custodian, a guardian ad litem, and any other persons who appear to be necessary parties. The summons will require them to appear before the court at a fixed time to answer the allegations listed in the petition. A copy of the deprivation petition will accompany the summons. O.C.G.A. § 15-11-39(b).
The Georgia Code mandates that a parent of an allegedly deprived child must receive adequate notice of the time, place, and purpose of the adjudicatory hearing. O.C.G.A. § 15-11-39.1. Service of the summons may be made by any "suitable person" under the direction of the court. O.C.G.A. § 15-11-39.1(c). Presumably, this includes the DFCS case manager. Apparently this is common practice in many juvenile courts throughout the state, however, in situations where you believe a confrontation may develop, you may wish to request a law enforcement officer to perform service on behalf of the court. If a party lives within the state and can be found, the summons may be personally served upon him/her within 24 hours of the hearing. If a party lives within the state but cannot be found, the summons may be mailed to the party by registered or certified mail at least five days prior to the hearing. A party who lives outside the state can be personally served or served by mail at least five days prior to the start of the hearing. O.C.G.A. § 15-11-39.1(a). If a party, after reasonable effort cannot be found, the court may resort to service by publication, which usually means public notice in a local newspaper. The adjudicatory hearing cannot be held until five days after the date of the last publication. O.C.G.A. § 15-11-39.1(b).
If a party is provided notice by publication, a provisional hearing may be conducted on the allegations of a petition alleging deprivation. O.C.G.A. § 15-11-39.2(a). The summons served upon any party must state that prior to the final hearing a provisional hearing will be held at a specific time and place. O.C.G.A. § 15-11-39.2(a)(2)(A). All other parties who are not served by publication must appear at this hearing to answer the allegations contained in the petition. O.C.G.A. § 15-11-39.2(a)(2)(B). The court may enter a temporary order pending the final hearing in juvenile court. The findings of fact and order of disposition made at the provisional hearing will become final at the final hearing unless the party served by publication appears. The child in question must be before the court at the provisional hearing. O.C.G.A. § 15-11-39.2(a). If the party served by publication does appear at the final hearing, the findings and orders from the provisional hearing shall be vacated and the court will proceed normally into an adjudicatory hearing on the merits of the petition. O.C.G.A. § 15-11-39.2(c).
It is apparently common practice throughout the state for service of the summons and the petition to occur at the 72-hour hearing itself. There does not appear to be anything in the Code to prevent this procedure, but you must remember that the summons must include a date for the adjudicatory hearing. The judge will have to schedule the adjudicatory hearing at the 72-hour hearing and issue the summons immediately at that time. Also, a copy of the petition will have to be attached to the summons, so if this procedure is followed the petition will have to be completed before the 72-hour hearing.
One of the main features of the juvenile court system is the use of confidentiality for the purpose of protecting the child from any later stigmatization from the public. For this reason, there are no jury trials used in juvenile court and all judicial decisions are rendered by the juvenile court judge. O.C.G.A. § 15-11-41(a). The general public is excluded from observing detention and adjudicatory hearings in deprivation cases. Only the parties to the proceeding, their lawyers, witnesses, or any other person the court finds having a "proper interest" in the proceeding are allowed to attend. O.C.G.A. § 15-11-78(c). This differs from a dispositional hearing, where the judge has discretion to admit the general public. O.C.G.A. § 15-11-78(b)(5). Many juvenile courts will exclude a witness from the hearing except when they are testifying. It is possible that you may find yourself waiting outside of the court except when you are actually giving your testimony. The actual hearing itself is preserved by the court reporter using stenography or a recording device should it become necessary to review the case on appeal. O.C.G.A. § 15-11-41(b).
The adjudicatory hearing is a review of the admissible evidence which will include documents, reports, witness testimony, and possibly other items, to determine whether the child is deprived for purposes of the Georgia Juvenile Code. The court may order that the child be examined by a physician or psychologist during the course of a deprivation proceeding as well as order necessary medical treatment of the child. O.C.G.A. § 15-11-12(b). There are specific evidentiary rules to determine what type of information is admissible (what evidence is appropriate to place into consideration). These rules will be discussed in the chapter on Evidence later in this manual.
A party is entitled to introduce evidence and call witnesses on his/her behalf as well as cross-examine adverse witnesses. O.C.G.A. § 15-11-7(a). Witness testimony involves a process you have probably heard of called direct and cross-examination. In direct examination, an attorney will call a witness to the stand who is favorable to his/her case and ask a series of questions designed to give the judge the necessary information on the case in order to prove and support his/her claim that the child is or is not deprived. The opposing party will then have the opportunity to cross-examine the witness. This involves questioning the witness about his/her professional qualifications and the methods used during an investigation. The purpose of the cross-examination is to attempt to bring a sense of doubt concerning the accuracy or trustworthiness of the witness' testimony. In most of these cases, the child will be represented separately by a guardian ad litem who may be authorized to cross examine the caseworker as well. Many case managers find the cross-examination process difficult. There are helpful hints on preparing to testify in court in the final chapter of this manual.
After hearing the evidence, the court shall make and file its findings as to whether the child is a deprived child. The standard of proof in a deprivation case is clear and convincing evidence. O.C.G.A. § 15-11-54(c). This means that the judge must find, based upon the evidence presented, that it is highly probable that the child is deprived. If the court finds that the child is not deprived, it shall dismiss the petition and order the child discharged from any detention or other restriction previously ordered in the proceeding. O.C.G.A. § 15-11-54(a). If the court finds that the child is deprived, the court shall proceed immediately into a dispositional hearing or continue (postpone) such a hearing until another date. O.C.G.A. § 15-11-54(c). Such a continuance to another date within a "reasonable period" of time may be granted in order to receive reports and other evidence bearing on the disposition of the case. O.C.G.A. § 15-11-56(b).
To enter into and complete successfully a substance abuse program approved by the court.
One of the most difficult and confusing issues for all participants in deprivation hearings are the requirements of the federal Adoption Assistance and Child Welfare Act of 1980 (Public Law 96-272), 42 U.S.C. §670 et seq. All states receive foster care maintenance payments for each child in foster care under Title IV-E of the Social Security Act. In order to maintain these payments, Public Law 96-272 requires that in each case of a deprived child in state custody, "reasonable efforts" have to be made to work with the family to prevent the necessity of removing the child from the home. 42 U.S.C. § 671(a)(15)(A). In addition, if removal is necessary to protect the health and safety of the child, reasonable efforts must be made to allow for the reunification of the child with his/her family. 42 U.S.C. § (a)(15)(B).
Since the passage of Public Law 96-272, the focus of the child welfare system has shifted toward providing for and protecting the individual needs of the children over the needs of the family unit. This shift has culminated in the passage of the federal Adoption and Safe Families Act of 1997 (Public Law 105-89), in November 1997. In Georgia, Senate Bill 611 and House Bill 1572 were passed to bring the Georgia Juvenile Code into compliance with this Act. This law modifies existing federal legislation regarding foster care so that reasonable efforts to reunify families are not always required and the provision of reunification services is limited. Additionally, if a child has been in foster care 15 out of the most recent 22 months, states are directed to file petitions to terminate parental rights unless the state has placed the child with a relative; the state has documented a compelling reason for determining that terminating parental rights would not be in the best interests of the child; or the state has not provided appropriate reunification services, if such services were warranted. Finally, the law requires a permanency hearing to be held within 12 months after a child has entered foster care.
The burden on the department to provide preventative and reunification services applies, in most instances, to every step of the deprivation process beginning with the 72-hour informal detention hearing. In such cases, the juvenile court judge will review the actions of DFCS to determine if reasonable efforts were made to provide "reunification services" to the child's parents at every judicial review of the disposition of the case. O.C.G.A. § 15-11-58(a). Specifically, reasonable efforts must be made to preserve and reunify families prior to the placement of a child in foster care, to prevent or eliminate the need for removal, and where removal was deemed necessary, to make it possible for a child to return safely to his/her home. O.C.G.A. § 15-11-58(a)(2)(A-B). Additionally, if continuation of reasonable efforts of this kind is determined to be inconsistent with the child's permanency plan, DFCS must make reasonable efforts to place the child in a timely manner in accordance with the child's permanency plan and to complete whatever steps are necessary to finalize that plan for the child. O.C.G.A. § 15-11-58(a)(3).
There are emergency situations in which the child's health and safety are in imminent danger thus requiring the immediate removal of the child from the home. In such instances it would not be reasonable to make an effort to prevent removal. This is recognized in the Child Protective Services Manual. Moreover, the Adoption and Safe Families Act makes clear that the safety and health of the child are to be the paramount concerns throughout the case. O.C.G.A. § 15-11-58(a)(1). Thus, under certain egregious circumstances, reasonable efforts will not be considered. As identified in O.C.G.A. § 15-11-58(a)(4), reasonable efforts are not required with respect to a parent of a child who has subjected the child to aggravated circumstances including abandonment, torture, chronic abuse or sexual abuse, who has committed the murder or voluntary manslaughter of another child of the parent or aided or abetted, attempted, conspired or solicited to do the same, or who has committed a felony assault that results in serious bodily injury to the child or another child. Reasonable efforts are similarly not required where the parental rights of another sibling of the child have been terminated involuntarily. O.C.G.A. § 15-11-58(a)(4). In these situations, DFCS is not required to submit a reunification plan to the court as part of its 30-day case plan. O.C.G.A. § 15-11-58(b).
Where reunification is the permanency goal, federal regulations require that the case plan for each child must include a description of services offered and provided to prevent the removal of the child from the home and to reunify the family after removal. 45 C.F.R. Ch. XIII, § 1356.21(d)(4), (10-1-96 Edition). Alternatively, when appropriate, the case plan may state clearly all of the reasons supporting a finding that reasonable efforts to reunify are detrimental to the child and therefore, that reunification services need not be provided. O.C.G.A. § 15-11-58(f). Periodic reviews by a judge or a Citizen Review Panel should occur at least once every six months. O.C.G.A. § 15-11-58(k). Except where justified by the circumstances mentioned, if at any point the judge finds that reasonable efforts have not been made, under Public Law 96-272, the State of Georgia will lose the federal foster care maintenance payments provided for that child under Title IV-E of the Social Security Act. 42 U.S.C. § 671(a)(15) and § 672 (a)(1).
other services the agency identifies as necessary or appropriate.
45 C.F.R. Ch. XIII, §1357.15(e)(2) (10-1-95 Edition).
transportation (when services are geographically inaccessible).
Many of these suggested services are similar to those contained in the federal regulations. However, as of now there are no formal requirements at the federal or state level as to what must be contained in Georgia's Title IV-E plan. You should consult your supervisor periodically to see what preplacement preventative and reunification services are available in your county. Since there is no formal definition of reasonable efforts, the juvenile court judge for your district may interpret this requirement more broadly than the Department does and reject your recommendations if he/she feels that more efforts are needed to prevent the removal of the child or to provide for the reunification of the family. It will be helpful for your office try and develop some idea of what your juvenile court judge considers reasonable in this context.
The main focus of the dispositional hearing is to determine the permanency plan for the child once he/she has been adjudicated deprived. This two-step process is sometimes called a bifurcated system, that is, a system with one hearing for factual determinations on the merits of the deprivation petition and a separate hearing to determine what should be done to improve the life of the child.
The rules of evidence that apply to "traditional" hearings, including adjudicatory hearings, do not apply to dispositional hearings. These rules will be discussed in a later chapter of this manual. In dispositional hearings the court is authorized to receive "all information helpful in determining the questions presented," even if this information would not have been admissible during the adjudicatory hearing. The judge may direct that a social study and report be made to the court concerning "the child, his family, his environment, and other matters." O.C.G.A. § 15-11-12(a). However, the court may not take this information into consideration until after the adjudicatory hearing finding that the child is deprived. These reports are only admissible for purposes of the child placement decisions which must be made in the dispositional hearing. O.C.G.A. § 15-11-12(a). Also your juvenile court judge may require that the 30-day case plan to be discussed below be completed prior to the dispositional hearing. The attorney for the child's parent(s) is entitled to examine reports submitted to the court prior to the dispositional hearing and to cross-examine the authors and any witnesses put forth by the state. O.C.G.A. § 15-11-65(d).
an individual in another state with or without supervision by an appropriate officer under O.C.G.A. § 15-11-89.
Transfer custody of the child to the court of another state exercising jurisdiction over juveniles if authorized by and in accordance with O.C.G.A. § 15-11-87 if the child is or is about to become a resident of that state.
The court is also authorized in all dispositional hearings to order the child and/or the child's parents or guardian to participate in counseling. O.C.G.A. § 15-11-68.
The right and duty to provide for the care, protection, training, and education as well as the physical, mental, and moral welfare of the child.
The right to determine where and with whom he shall live.
This code section also notes that these aspects of legal custody are subject to any residual parental rights and responsibilities. O.C.G.A. § 49-5-3(13). The Court of Appeals has determined that one of these residual rights is the right of visitation with a child in the custody of DFCS. While a juvenile court can order an end to visitation, there must be compelling facts to do so, and the parents are entitled to a hearing on the issue before such an order is issued. In the Interest of K.B., 188 Ga. App. 199 (1988). A parent who has had his/her parental rights temporarily suspended after a finding of deprivation also maintains the residual authority to consent to the child's adoption. Skipper v. Smith, 239 Ga. 854 (1977).
The juvenile court judge has the power to place conditions and limitations prior to the transfer of temporary legal custody of a child to another individual or agency. O.C.G.A. § 15-11-55(a)(2). This authority includes the ability to condition the return of the child to his parent(s) or guardian on the achievement of certain goals by such person. The judge can also order continued supervision by DFCS after the child has been returned to the home. O.C.G.A. § 15-11-55(a)(2). If DFCS is attempting to obtain temporary legal custody of a child, it is important to communicate to the SAAG representing the Department in this hearing what conditions you would like to see imposed upon the parent in order to regain custody of the child. There are many possibilities and the needs of each child may differ. However, almost every case will require the parent to cooperate with the case plan as adopted by the court, to keep his/her address known to DFCS, to visit the child, and to pay child support the Department. Kipling Louise McVay, Deprivation and Termination. Children in Court: A Systems Approach, p. 22 (1989).
The Court of Appeals has held that the statute does not authorize the separation of legal and physical custody of a deprived child between two separate organizations or individuals. In re R.R.M.R., 169 Ga. App. 373 (1983). A juvenile court has no authority to transfer temporary legal custody to DFCS and then order the child be placed in foster care. If DFCS is given legal custody, the department has the authority to decide where and with whom the child will live. In re R.L.M., 171 Ga. App. 940 (1984). In addition, the juvenile court cannot award joint custody between the Department of Human Resources and an unrelated third party if DHR objects to this arrangement. In the Interest of J.N.T., a child., 212 Ga. App. 498 (1994). In a typical deprivation case, the child is adjudicated as deprived and then temporary legal custody is transferred to DFCS during the dispositional hearing. >From that point on, DFCS has the authority as the party with "legal custody" of the child under O.C.G.A. § 49-5-3(12) to determine where and with whom the child shall live. Id. at 499.
A dispositional order transferring temporary legal custody to DFCS only suspends and does not sever the rights of the child's parents. A permanent severance of the parent's legal rights with respect to a child can only be accomplished in a proceeding to terminate parental rights. Rodgers et al. v. Department of Human Resources, 157 Ga. App. 235 (1981). A court's order removing a child from the child's home shall be based upon a finding by that court that continuation in the home would be "contrary to the welfare of the child." O.C.G.A. § 15-11-58(a). The order will also contain a finding as to whether reasonable efforts were made to prevent or eliminate the need for the removal and to make it possible for the child to return to the home of his parent(s) or guardian. O.C.G.A. § 15-11-58(a).
A dispositional order removing the child from the home remains in effect for 12 months after the date of the original placement with the department. O.C.G.A. § 15-11-58(k). All other dispositional orders not requiring the removal of the child remain in effect for two years. O.C.G.A. § 15-11-58.1(a). URJC, 15.2. The court may terminate a dispositional order prior to its expiration if it appears that the purposes of the order have been completed. O.C.G.A. § 15-11-58.1(b), URJC, 15.3.
The sending or bringing of a child into a receiving state by his parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or non-agency guardian in the receiving state.
Any placement, sending or bringing of a child into a receiving state pursuant to any other interstate compact to which both states are a party.
This second restriction applies to minors who are covered by other compacts such as the Interstate Compact on Juveniles and the Interstate Compact on Mental Health which cover the interstate transfer and supervision of juvenile delinquents and the mentally ill.
The name, date, and place of birth of the child.
The identity and address or addresses of the parents or legal guardian.
The name and address of the person, agency or institution to or with which the sending agency proposes to send, bring, or place the child.
A full statement of the reasons for such a proposed action and evidence of the authority by which the placement is proposed to be made.
The administrator is responsible for reviewing the information and forwarding it to the Compact Administrator in the receiving state. The appropriate child welfare agency in the receiving state will conduct a study of the proposed placement site and record their findings in a report to the receiving state's Compact Administrator. The child welfare agency of the receiving state may request the sending agency to provide any supporting or additional information that is necessary under the circumstances in order to evaluate the proposed placement. ICPC, Article III(c). The child will not be "sent, brought, or cause to be sent or brought into the receiving state" until the Compact Administrator in the receiving state has notified the sending state in writing that the proposed placement does not appear to be contrary to the interests of the child. ICPC, Article III(d). The National Association of the Administrators of the Interstate Compact recommends that it should take no longer than 30 working days (6 weeks) to process such a request in the receiving state from the time that the Compact Administrator receives the request until the date that the proposed placement is approved or denied. Guide to the Administration of the Interstate Compact on the Placement of Children, p. 7.
These procedures allow the fulfillment of two important purposes of the Interstate Compact on the Placement of Children. First, the state from which the child is sent is provided with the most complete information on which to evaluate a proposed placement before it is made. Second, the state to which the child is sent will have a full opportunity to ascertain the circumstances of the proposed placement in order to assure adequate protection for the child. ICPC, Article I.
the court finds the child has spent a substantial amount of time in the home of the proposed placement.
The Priority Placement procedures can also be invoked if the receiving state Compact Administrator has a properly completed ICPC-100A and the necessary supporting documentation for over thirty (30) business days but has not provided notice as to whether the placement will be approved or denied. ICPC, Regulation 7.1(b).
Regulation 7 establishes a strict time table for the completion of each step in the process of placing a child in a facility or foster care home across state lines. If a juvenile court judge determines that the circumstances warrant a priority placement, he/she should sign an order to that effect and forward it within two (2) business days to the sending agency (the local county DFCS office). The county department has three (3) business days to transmit the order along with a completed ICPC-100A and the supporting documentation to the Georgia Compact Administrators. Within two (2) business days the Compact Administrator should send the priority placement request and supporting documentation to the receiving state's Compact Administrator by overnight mail. The receiving state's child welfare department has (20) business days from this date to send to the Compact Administrator for the receiving state the evaluation of the proposed placement. The Compact Administrator in the receiving state will return the necessary documentation with a notice of approval or denial to the sending state's Compact Administrator by fax. The Georgia Compact Administrator will then notify DFCS of the decision of the receiving state. Regulation 7, ICPC. The priority placement request and home study requires additional forms that can by obtained through the Georgia Compact Administrator and are included at the end of this manual.
Under Article V of the ICPC, the sending state will retain jurisdiction over the child once an out of state placement has been made. This jurisdiction continues until the child reaches the age of majority, becomes self-supporting, is adopted, or until the child case is cleared with the concurrence of the compact administrator in the receiving. This means that the juvenile court will retain jurisdiction over all decisions in regard to custody, supervision, care, treatment and disposition of the child. The sending state will also continue to have financial responsibility for the child just as it would in an in-state placement.
An order of disposition placing a deprived child in foster care under the supervision of the Division of Family and Children Services is in effect for up to 12 months after the original placement unless it is terminated sooner by the court. O.C.G.A. § 15-11-58(k). All other dispositional orders will remain in force for two years unless sooner terminated by the court. O.C.G.A. § 15-11-58.1(a). Within 30 days of the date of the removal of the child where the child has not already been returned to his/her parent(s), DFCS must submit a written report to the court which shall either include a case plan for the reunification of the family or the basis for its determination that a plan for reunification is not appropriate. O.C.G.A. § 15-11-58(b).
Consideration of the availability of reasonable visitation schedules which allow parent(s) to maintain meaningful contact with their children through personal visits, telephone calls, and letters.
If the report contains a proposed plan for reunification services, the report must be transmitted to the parents at the time it is filed with the court, along with written notice that the report will be the order of the court unless, within five days from the receipt of the report, the parents request a hearing before the juvenile court to review the contents of the report. If no hearing is requested the court shall enter a disposition order or supplemental order adopting the parts of the plan for reunification services which the court finds appropriate and specifying what must be accomplished by all parties before reunification of the family can be granted. O.C.G.A. § 15-11-58(l).
A clear statement describing all of the reasons supporting a finding that reasonable efforts to reunify a child with the child's family will be detrimental to the child, and that reunification services therefore need not be provided, including specific findings as to whether any of the grounds for terminating parental rights exist, as set forth in O.C.G.A. § 15-11-94(b) or paragraph (4) of subsection (a) of this Code section.
Reasonable efforts are not required to be made to reunify a child with a parent who has subjected the child to aggravated circumstances including abandonment, torture, chronic abuse, and sexual abuse or who has committed murder or voluntary manslaughter of another child of the parent or has aided or abetted, attempted, conspired, or solicited to do the same or who has committed a felony assault that results in serious bodily injury to the child or another child of the parent. Finally, reasonable efforts are not required if the parental rights of the parent to a sibling have been terminated involuntarily. O.C.G.A. § 15-11-58 (a)(4).
At the hearing on the nonreunification plan, DFCS must inform the judge whether and when it intends to proceed with the termination of parental rights. If DFCS has no such intention, the judge may appoint a guardian ad litem (if one has not already been appointed) to review the report and determine whether termination proceedings should be commenced independently on behalf of the child. O.C.G.A. § 15-11-58(g).
any of the grounds for terminating parental rights exists. (these grounds will be discussed in the following chapter on Termination of Parental Rights).
any of the circumstances set out in paragraph (4) of subsection (a) of this Code section exist, making it unnecessary to provide reasonable efforts to reunify.
Any specific changes that need to be made in the case plan, including a change in the permanency goal and the projected date when permanency for the child is likely to be achieved.
The reunification plan proposed by DFCS should be revised and adjusted over time in order to meet the needs of the child and to reflect the changing conditions of his/her parents. At the time of each review, DFCS must inform the court whether it intends to proceed with the termination of parental rights. O.C.G.A. § 15-11-58(k). If a Citizen Review Panel conducts the review, the panel will transmit its report, including its findings and recommendations, along with those of DFCS and the department's proposed revisal (if necessary) to the plan for reunification or nonreunification to the court and the parents within five (5) days. Any party to a review where DFCS has submitted a revised plan may request a hearing on the proposed revised plan within five (5) days after receiving a copy of the report. O.C.G.A. § 15-11-58(k).
That the child continue in the current custodial placement but that the current placement plan is no longer appropriate for the child's needs, and direct the department to devise another plan.
any determination affecting visitation privileges of the parents.
The parents of the child must be given reasonable notice of the factual basis for the petition and an opportunity to be heard at this hearing prior to the judge's decision. O.C.G.A. § 15-11-58(o)(2). To grant an extension of temporary custody over the child to DFCS, the court must find that the extension is necessary to accomplish the purposes of the original order. O.C.G.A. § 15-11-58(n)(3). If the desire to keep the child in temporary custody with DFCS is based upon new circumstances not previously addressed in the deprivation proceeding, the appropriate procedure would be to file a new deprivation petition. An extension of temporary custody cannot be justified on new circumstances not previously addressed in a formal adjudicatory hearing.
The motion to extend temporary custody should be filed and a hearing must be held prior to the expiration of the original dispositional order removing the child from the home. O.C.G.A. § 15-11-58(n)(1). Failure to do so can result in a reversal on appeal of a decision to extend temporary custody. However, the parent or guardian must object to the failure to properly file the motion on time during the extension hearing or he/she will lose the right to object to the state's mistake on appeal. Page v. Shuff, 160 Ga. App. 866 (1982). A dispositional order which is allowed to expire before a proper extension is given by the juvenile court would seem to require the return of the child to his parent(s) or guardian. However, nothing at this point would permit DFCS from filing a new deprivation petition requesting that the child be removed from the home once again. The Court of Appeals has previously refused to overturn a judgement of the trial court temporarily extending custody with DFCS on the last day before a dispositional order was set to expire until another deprivation petition could be filed. In the Interest of P.M., et al., children., 201 Ga. App. 100 (1991). In that case, the court held an emergency hearing to extend custody without providing notice to the child's mother. By the time the case reached the Court of Appeals, the trial court had held an adjudicatory hearing on the merits of the new deprivation petition and had once again ordered the child removed from the home. The court declined to reverse an improper extension order because the trial court had found once again by clear and convincing evidence that the child was deprived and therefore the issue was not reviewable because of the new adjudicatory hearing. Id. at 100. It would seem that a juvenile court judge could issue an emergency (shelter care) order if the child is in danger and the prior order granting DFCS temporary custody expires without an extension. However, in order to prevent unnecessary trauma to the child as well as having to start the deprivation proceeding all over again, it is important for the case manager to coordinate with the SAAG to ensure that motions to extend custody are filed with in plenty of time to allow for a hearing prior to the expiration of the original order.
The repeated use of motions to extend temporary custody without attempting to terminate parental rights has caused some to criticize this practice as promoting "foster care drift". This is the movement of a child from one temporary foster home to another while waiting (sometimes in vain) for the parent(s) to comply with the court ordered reunification plan. Some observers have questioned whether motions to terminate should be pursued sooner in order to provide the child with a more permanent arrangement. In a survey of DFCS case managers conducted by the Child Placement Project, over forty percent (40%) of the respondents reported that motions to extend temporary custody were filed in more than half of all deprivation cases.
A petition for the termination of parental rights is often made by the Division of Family and Children Services when it appears that efforts to reunify the family will either be futile, or will potentially harm the child. A termination petition can also be filed on behalf of the child by any other party who knows the facts contained in the petition and believes that they are true just as with a deprivation petition. O.C.G.A. § 15-11-95(b). An order terminating parental rights has the effect of ending all rights and obligations of the parent with respect to the child and/or the child to the parent, including the right of inheritance. The parent will have no right to notice of or the right to object to the future adoption of that child into another home. O.C.G.A. § 15-11-93. The termination of one parent's rights with respect to the child has no effect on the rights of another legal parent to the care and control of that child. O.C.G.A. § 15-11-105.
The court makes a finding of parental misconduct or inability.
According to the Georgia Juvenile Code, the court can only order the termination of parental rights by finding with clear and convincing evidence that the parent in question falls into one of the four categories set forth in O.C.G.A. § 15-11-94(b)(1-4). O.C.G.A. § 15-11-94(a). Even if the court finds justification for termination because the parent falls into one of these four categories, the court cannot terminate a parent's rights over the care and control of the child unless the termination would be in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need of that child for a secure and stable home. O.C.G.A. § 15-11-94(a). However, it is not sufficient by itself for termination to be in the "best interest" of the child. It is not enough that the child might be better off in another environment. The court must determine that the child is deprived due to a lack of proper parental care or control and that this deprivation is likely to continue in the future causing serious harm to the child if a petition to terminate is to be granted. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 5-6.
the injury or death of a sibling of the child under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse.
to comply with a court ordered plan designed to reunite the child with the parent or parents.
Georgia courts must conduct a two-step analysis in deciding whether to terminate a parent's rights. First, in most cases the court determines whether there is clear and convincing evidence of parental misconduct or unfitness, and second, if termination of parental rights is in the best interests of the child. In the Interest of B.J.H., 197 Ga. App. 282 (1990). It is not necessary for the court to give a parent an opportunity to rehabilitate him/herself prior to proceeding with the termination of her parental rights so long as the statutory requirements set forth above are met. The state is authorized to proceed immediately with a motion to terminate parental rights once the deprivation action has commenced. In the Interests of B.R.S., a child., 198 Ga. App. 561 (1991).
Past deprivation alone is insufficient to prove present deprivation but can be used as evidence that such conditions are likely to continue into the future. In the Interest of A.M.B. et al., children., 219 Ga. App. 133 (1995).
Under the statute, the court is authorized to look at a parent's imprisonment on a felony conviction as evidence of a lack of proper parental care or control if the situation has "a clearly negative effect on the quality of the parent-child relationship." O.C.G.A. § 15-11-94(b)(4)(B)(iii). However, imprisonment alone does not automatically result in a termination of that parent's rights. In the Interest of R.L.H., a child., 188 Ga. App. 596 (1988).
Parental misconduct or unfitness can be caused by either intentional or unintentional misconduct causing the abuse or neglect of a child or by what is tantamount to physical or mental incapacity to care for the child. In the Interest of G.L.H., et al., children., 209 Ga. App. 146 (1993).
The fact that a parent is staying with a relative or friend who provides support and assistance does not preclude a finding of deprivation justifying termination.. This standard is based on a lack of proper parental care or control. The test is whether the parent, standing alone, is ultimately capable of mastering proper parental skills. In re S.R.J., a child., 176 Ga. App. 685 (1985).
Evidence of the living and economic conditions of foster parents who wish to adopt a child cannot be considered for the purpose of determining whether there is present deprivation caused by parental misconduct or inability that will likely continue into the future causing serious harm to the child as required by the first part of the test. However, this information can be considered by the court in determining whether termination is in the best interests of the child. In the Interest of J.M.G., a child., 214 Ga. App. 738 (1994).
Remember, there must not only be a finding of deprivation, but there must also be clear and convincing evidence that this condition will continue into the future. A termination can be authorized with expert testimony that father's failure to admit to his abuse means it is likely that this abuse will continue into the future. In the Interest of T.M.H., et al., children., 197 Ga. App. 416 (1990). A termination of a father's parental rights were also justified when he failed to protect his children from an abusive mother even though he knew that she was prone to violence and had harmed the child before. In that situation, the father was mentally retarded and incapable of protecting his children and therefore the danger to the children was likely to continue into the future. In the Interest of M.C.A.B., a child., 207 Ga. App. 325 (1993). In a termination proceeding, the court may consider past deprivation in determining whether deprivation is likely to continue in the future as required by the statute. In the Interest of B.J., 220 Ga. App. 144 (1996).
The voluntary relinquishment of parental rights in writing and acknowledged before the court appears to refer to situations in which a third party has filed at petition to terminate a parent's legal rights with respect to the child and the parent consents to this outcome. O.C.G.A. § 15-11-94(b)(1). This code section does not appear to authorize a parent to initiate a motion to terminate their own parental rights without the involvement of outside parties.
The Juvenile Code authorizes the termination of parental rights when a parent has wantonly and willfully failed to comply with a child support order for a period of one year or longer. O.C.G.A. § 15-11-94(b)(2). The key to this standard appears to be the requirement that the failure to comply be "wanton and willful" which the Court of Appeals has defined as "without reasonable excuse, with a conscious disregard for duty, willingly, voluntarily, and intentionally." In re H.B. and K.B., 174 Ga. App. 435 (1985). The failure to comply with a support order is not wanton and willful when a parent was laid off from his job and unable to pay child support. In re S.G.T., 175 Ga. App. 475 (1985). The Court of Appeals has held that termination of the mother's rights was not justified by her failure to provide child support for a period of one year since no court order was issued requiring her to do so and no request for child support was made by the child's father during his six year custody of the child. Uniroyal Goodrich Tire, Co. et al. v. Adams et al., 221 Ga. App. 705 (1996).
A termination petition can also be based upon an instance of parental abandonment. In order to make a finding of abandonment, there must be sufficient evidence of "actual desertion, accompanied by the intention to sever entirely, so far as possible to do so, the parental relation and throw off all obligations growing out of the same, and forego all parental duties and claims." Thrasher v. Glynn Co. Dept. of Family and Children Services, 162 Ga. App. 702 (1982). The court noted that the father had failed to attempt to legitimate the child, establish any familial relationship with the child, or contribute to the support of the child or of the mother during her pregnancy or hospitalization. You should note that these are the same factors taken into consideration by the court in determining whether notice is required prior to terminating a putative father's parental rights. O.C.G.A. § 15-11-96(e)(1-4). In addition, merely turning over the custody of a child to another is not alone grounds for termination of parental rights. Here, custody of a child was provided temporarily to one of the mother's adult children. The mother entered into an agreement where she reserved the right to reacquire custody by filing a petition with the probate court. This is not sufficient to constitute abandonment since there was no intent to entirely severe the relationship. Uniroyal Goodrich Tire, Co. et al. v. Adams et al., 221 Ga. App. 705 (1996). In addition, the court held that termination of the mother's rights was not justified by her failure to provide child support for a period of one year since no court order was issued requiring her to do so and no request for child support was made by the child's father during his six year custody of the child. Id.
The process of terminating a parent's parental rights begins with a petition similar to the one filed in a deprivation action. Once again this petition must set forth the facts alleged in ordinary and concise language and how they relate to the terms of the statute. O.C.G.A. § 15-11-95(c). When the petition is filed, a summons notifying all relevant parties of the termination hearing should be sent to the child's parents, guardian, lawful custodian, and the person who presently has physical custody of the child. O.C.G.A. § 15-11-96(a). A copy of the termination petition will be sent together with the summons so that all parties will be adequately prepared for the hearing. O.C.G.A. § 15-11-96(b). A parent in a termination hearing may be served by publication if the notice indicates the general nature of the allegations and where a copy of the petition may be obtained. The court should provide to the child's parent(s), guardian, or legal custodian a free copy of the petition during business hours or to mail the a copy of the petition upon request. O.C.G.A. § 15-11-96(b). The summons must be served upon all parties at least 30 days prior to the date of the termination hearing. O.C.G.A. § 15-11-96(c).
All of these constitute a legal father so long as he has not surrendered or had his parental rights previously terminated. O.C.G.A. § 15-11-2(10.1)(A-E).
Provided support or medical care for the mother either during her pregnancy or during her hospitalization for the birth of the child.
Publication once a week for three weeks in the official legal newspaper of the county where the petition has been filed and of the county of his last known address, which notice shall be deemed received upon the date of the last publication.
If possible, the father should be notified by the methods 1 and 2 prior to resorting to notice by publication. O.C.G.A. § 15-11-96(f)(1-3).
If the court finds from the evidence that such a father has not performed any of these acts and the petitioner provides a certificate from the putative father registry that there is no listing for such an individual, then it shall be "rebuttably presumed" that the biological father who is not the legal father of the child is not entitled to notice of the proceedings to terminate his parental rights. Unless evidence exists to rebut this presumption, the court shall enter an order terminating the father's parental rights to the child. O.C.G.A. § 15-11-96(g). If the biological father who is not the legal father of the child has performed any of those listed activities then he is at the very least automatically entitled to notice by publication, even if his location or last known address are unknown. O.C.G.A. § 15-11-96(e) and (g).
notice of the filing of the petition with the court in which the action is pending.
Files a legitimation petition and the action is subsequently concluded without a court order declaring that he is the legal father of the child.
In a hearing on the termination of parental rights, the juvenile court is required to appoint a separate attorney to act as counsel for the child and may choose to appoint a guardian ad litem to represent the best interests of the child. The attorney representing the child and the guardian ad litem may be and often are the same person. O.C.G.A. § 15-11-98(a), URJC, 11.8. A failure to appoint an attorney to represent the interests of a child in a proceeding to terminate parental rights requires a reversal by the appellate courts. In re J.D.H., 188 Ga. App. 466 (1988). An indigent putative father of a child born out of wedlock also has a right to appointed counsel in a proceeding to terminate his parental rights. His failure to perform any parental duties prior to this time does not affect his right to appointed counsel. Wilkins v. Georgia Department of Natural Resources, 255 Ga. 230 (1985). The Supreme Court held that in such circumstances the putative father is a "party" under O.C.G.A. § 15-11-6(b) with a right to counsel. Id.
If, after a termination order is entered, the child has no remaining legal parent to whom custody can be granted by the court, the court shall attempt to first place the child with his/her extended family or with a person related to the child by blood or marriage. Such a relative will be required to abide by the terms and conditions of the order of the court. O.C.G.A. § 15-11-103(a)(1). The court will only make such an intra-family placement if it is in the best interest of the child.
in the absence of an adoption, place the child in a foster home, or take other suitable measures for the care and welfare of the child.
If no petition to adopt the child is filed, the court will review at least once every year the circumstances of the child to determine what efforts have been made to assure that the child will be adopted. O.C.G.A. § 15-11-103(d). The court can enter additional necessary orders to further an adoption which includes moving the child to another placement. O.C.G.A. § 15-11-103(d).
In order for a termination of parental rights to move smoothly, it is important for the DFCS case manager to identify blood relatives and the putative father of the child as soon as possible after the child comes into temporary custody with the department. This will prevent unnecessary delays once the termination petition is filed as well as preventing the placement of a child with another "stranger" after a long period in foster care simply because that person is related to the child by birth.
When testifying in court, case managers will often witness evidentiary arguments between lawyers for which they have not been prepared. This chapter is an effort to give you a very basic understanding of evidence law as applied in juvenile court. The manual covers only the topics which we feel you may encounter during your career and is not an authoritative review of Georgia evidence law. We hope that you will find it useful in understanding what information is admissible in court.
There are three main types of evidence. Testimonial Evidence basically involves an attorney (such as a SAAG) calling a witness (such as a DFCS case manager) to the stand to ask him/her questions. This is called direct examination. The opposing attorney (usually representing the parents), will have an opportunity to cross examine the witness. Documentary Evidence basically covers written materials such as case reports, letters, memos, hospital and school records, etc. Demonstrative Evidence includes what you would consider "pieces of evidence" such as objects, photographs, etc, as well as charts, graphs, and other visual aides.
One important restriction on evidence is that it must be "relevant." The Georgia Court of Appeals has held that evidence is relevant if it logically tends to prove or disprove any material fact which is at issue in the case. Kelly v. Floor Bazaar, Inc., 153 Ga. App. 163,165 (1980). In addition, if evidence has any tendency to advance a party's position at trial, it is relevant. It is for the fact finder (the judge) to decide how credible this evidence is. Daniels v. State, 184 Ga. App. 689 (1987). As you can probably see, it is fairly easy to find some justification to call a piece of evidence relevant and most objections on this basis fail for that reason.
In the area of testimonial evidence, competence is another restriction that must be dealt with when calling child witnesses to the stand. In deprivation hearings, the child on whose behalf the petition is filed can in some situations be a key witness. O.C.G.A. § 24-9-5(a) provides that children who do not understand the oath (to tell the truth, the whole truth, and nothing but the truth) shall be incompetent witnesses who will not be allowed to testify. However, if a child witness is the subject of a deprivation hearing, such a child is automatically competent to testify by law. O.C.G.A. § 24-9-5(b). If other children are called to the stand who are not subject to the deprivation petition, it will be necessary to determine if they can understand the oath prior to placing them on the witness list. The SAAG will determine who will testify in the hearing.
The requirement that evidence must be reliable in order to be admissible is where most of the arguments arise. The first reliability problem we will focus on is the question of opinion testimony. Ordinarily, witnesses who have not been qualified as "experts" by the court should testify as to the facts they observed.
Under Georgia law, a witness may provide the court with his or her opinion if such an opinion is requested in the question, however, if the question relates to the existence of a fact, the opinions of a witness are generally not accepted by the court. O.C.G.A. § 24-9-65. Statements as to your opinions should be avoided as much as possible. Observations of facts and events should be made without any judgment or editorializing, and a detailed description of what you observed is all that should be given. Opinions about observations, on the other hand, offer conclusions about what your observations mean or indicate. It is not possible to totally remove all opinion from your testimony. Most courts will allow you to give some descriptive opinions of what you observed during your investigation. Paul S. Millich, Georgia Rules of Evidence, §15.2, p.210. However, as a practical matter, your testimony will appear much more professional and competent to the judge if you avoid opinion statements such as "the house was messy" and focus on the actual factual basis of the opinion (such as garbage overflowing, dirty dishes, insects, etc). Lucy S. McGough, The Social Worker and the Legal Process in Georgia: A Handbook for Caseworkers, December 1981, p. 93.
One exception to this general prohibition of opinion testimony is the use of expert witnesses. Georgia law provides that "the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." O.C.G.A. § 24-9-67. On rare occasions, a DFCS case manager will be called to the stand as an expert witness. If the decision is made to try and qualify you as an expert, the SAAG will ask you a series of questions pertaining to your background in order to prove your qualifications to the judge. An attorney representing the parents or the child's guardian ad litem may also ask questions concerning your experience if they wish to challenge your credentials to testify in this regard. It is entirely within the discretion of the judge to decide whether to certify a case managers an "expert witness" in a deprivation hearing. Georgia courts often allow a witness to testify as an expert when his background, education, training, or other expertise might assist the trier of fact (the judge). Paul S. Milich, Georgia Rules of Evidence, § 15.4. Status as an expert allows a witness to offer opinions to the court within the area of his/her expertise. The witness must be qualified to testify as to the kinds of opinions being offered. Id. at §15.4. For example, a foster care worker called to the stand to testify as an expert in a deprivation hearing will only be allowed to offer opinions to the court in regards to the foster care placement and needs of the child. He/she may not offer opinions as to the child protective services investigation and findings in regards to this child unless the witness also has the experience necessary to qualify as a witness in this regard as well. Id. at § 15.4.
An expert's testimony must add some information the trier of fact (the judge) otherwise could not develop on his own from the facts because of a lack of training or experience in this area.
The testimony must be relevant and cannot violate any other rules of evidence.
The opinions are based on principles, methods, or techniques that have proven reliability.
An expert's factual bases must be clear to the trier of fact (the judge). Expressing an opinion to the court without relaying the factual basis of that opinion is not "helpful" for purposes of expert testimony.
Paul S. Milich, Georgia Rules of Evidence, § 15.3.
The second reliability problem we will focus on is the evidentiary issue you will encounter the most when you testify in juvenile court: hearsay. Defining hearsay has always been a difficult matter. Hearsay is an out of court statement which can either be oral (by conversation in person or over the phone) or written in the form of a document or letter. Hearsay is basically second-hand information from someone who did not actually observe the incidents described or hear the statements that are related. Child Protective Services: A Supervisor's Guide, V-8, p. 1. A hearsay statement is submitted to the court to prove the truth of the matters contained within the statements, or in other words to prove that the statement itself is true. The traditional prohibition against hearsay statements is that out of court statements by witnesses who are not testifying at trial are less reliable because the declarant (the person making the statement) is not subject to cross-examination at trial. Milich § 16.4-p.250. In Georgia, a prior out of court statement by a witness who will testify at trial is admissible because the declarant will be available to be cross-examined about this statement. Shelton v. Long, 177 Ga.App. 534 (1986).
As a general rule, hearsay is not admissible and no document containing hearsay statements may be admitted into evidence, nor can any witness repeat a previous hearsay statement while on the stand. However, there are numerous exceptions to this rule. O.C.G.A. § 24-3-1. If you relate a hearsay statement to the court during your testimony and an objection is made to the statement, the SAAG representing the department will attempt to make it fit within one of the following exceptions. This is an incomplete listing of the exceptions; and it contains only the ones you will likely encounter in court as a DFCS case manager.
Admission by a Party to the Record: Any previous statement by a party to a deprivation case (such as the child's parent, guardian, or custodian) is admissible under this exception. O.C.G.A. § 24-3-31. Such an admission must be a statement by a party that is contrary to that party's statements or contentions at trial. Petty v. Folson, 229 Ga. 477 (1972).
Child Abuse Hearsay Exception: O.C.G.A. § 24-3-16 allows for the court to accept a hearsay statement of a child under the age of 14 that describes an act of sexual conduct or physical abuse performed with or on that child or in the presence of the child if the statement is repeated in court by the person to whom the statement is made. This child must be available to testify in court should the need arise and the court must find that the circumstances of the statement provide sufficient assurances of reliability.
Former Testimony: The court may accept a hearsay statement of a witness who is deceased, disqualified, or inaccessible for any cause, as long as the statement was made under oath at a previous proceeding. This previous proceeding must involve substantially the same parties and issues as the current deprivation hearing. O.C.G.A. § 24-3-14.
Public Records-Documents Made and Kept by Public Agencies and Business Records: Here we are talking about the case files and reports made by and to DFCS case managers during an investigation of alleged child abuse or neglect. There is no express statute authorizing the admission of these documents into evidence. However, contents of the case file may fall within the Business Records Exception of O.C.G.A. § 24-3-14 "if the court finds that they were prepared in the ordinary course of the agency's business, at or near the time of the events or transactions described." Milich, § 19.19. Documents under the business records exception are normally inadmissible if they are prepared in anticipation of litigation (such as a DFCS report on an alleged case of deprivation). However, public records under this exception are admissible even if they are prepared in anticipation of litigation so long as the public authority has no stake or role in the controversy. Paul S. Milich, Courtroom Handbook on Georgia Evidence, p. 51. Whether or not the state has a role in the proceedings here that would make documents prepared by DFCS inadmissible is unclear. The sources of such information in documents prepared by DFCS must be the observations of agency personnel (DFCS caseworkers) and not private citizens. While the contents of a report made by DFCS can only include the observations and knowledge of agency personnel, documents prepared by others such as medical reports by a physician are admissible separately under the business records exception.
This exception requires that the person who authored the business record be available to be cross-examined about their contents. The Court of Appeals has held that a trial court should not have admitted reports from doctors, teachers, and other specialists if their authors were unable to testify in court. In the Interest of GDS., et al., 185 Ga. App. 772 (1988). Also, any business record admitted may not contain statements that are opinions or conclusions. These issues raise the possibility that parts of your case file may be admissible in court while other parts are not. Portions of a document containing opinion statements may have to be blacked out before the document is submitted to the court. However, if these private citizen comments are made by parties to the proceeding, then they might come in anyway under the Admissions exception. Depending on what is being introduced at trial from your case file, the item might be admissible under this exception. Milich, §19.19.
Testifying in juvenile court in a deprivation case is a common occurrence for all DFCS case managers. However, case managers are provided very little training in how to prepare for their court duties. This chapter is designed to give you a few helpful hints to make the process less stressful as well as explaining the procedural rules of the court.
Taking the time to be well prepared for your testimony will make your experience on the stand much easier. You may wish to start by thoroughly reviewing your case file prior to any hearing in which you are scheduled to appear. You should be generally familiar with the entire case even if you were only involved with one phase or time period of the case. If possible, try to meet with the SAAG (Special Assistant Attorney General) who will act as the attorney for DFCS in this case. The SAAG is the attorney who will call you as a witness in the hearing. You are likely to be the person most familiar with the case, having conducted the investigation of or provided services to this family. However, often it is the foster care worker who is called to testify and not the CPS worker who conducted the investigation. Reviewing the case file with the SAAG and making a list of what evidence is available and necessary for the deprivation hearing will minimize the risk of confusion during the proceedings and the possibility that a continuance will have to be requested.
It is important to prepare your case file from the moment the case is opened as though you were going to use the information in a court proceeding. You will be using this file later to prepare yourself to testify in court. Your testimony will be far more effective if you can answer the questions posed as specifically as possible. When recording information in the case file, try to use as much detail as can reasonably be provided. As you record each event, occurrence, report, or any other information in your file, be sure you have answered the basic questions: who, what, when, where, how, and why in as much detail as possible. Detailed testimony in a deprivation hearing is far more persuasive to a judge than generalizations or estimates. When recording your opinions of certain issues in the case file, be sure that they are marked separately as such in case this document or portions thereof must be turned over to the judge during discovery.
Never be late for court. Judges have extremely busy court calenders and this is a very easy way to make him/her angry. Try to arrive at the courthouse at least 10 to 15 minutes before the hearing. You should note that often the nature of these cases causes them to run late and you may be forced to wait for a time before you are called into court. You may wish to bring something to court to work on to make good use of your time while you wait. However, you still must arrive at court at the designated time since the judge may be ready for your case at the time appointed on the calendar.
Always give spoken answers to the questions. Never answer a question with a nod or a shrug, always give a verbal response which the court reporter can record.
Speak clearly and distinctly so that all of the court participants can hear and understand you. If the witness stand in your courtroom has a microphone you should speak into it.
Use ordinary language which can be understood by anyone. Try to avoid professional jargon or lingo which will only be understood by those working in the field of child welfare or child protective services.
Listen carefully to the question that is asked and answer only that question. Do not discuss anything that you have not yet been asked about by the attorney questioning you.
If you cannot hear a question, ask the lawyer to repeat it. If you do not understand the wording of a question, say so and the judge will ask the attorney to rephrase the question. Do not attempt to guess what the attorney is asking if it is not clearly apparent to you.
Expect to feel anxious but be confident and professional in your answers. A good way to express confidence in your testimony is to maintain eye contact with the judge when answering a question.
Be as exact as possible in answering the question. This is where a detailed case file can add to the effectiveness of your testimony during a deprivation hearing. Do not exaggerate or understate any facts in your answers.
If an objection is made to a certain question, stop your answer and wait for the judge to rule on the objection before you continue.
Always be polite and maintain your composure. Never argue with an attorney or a judge. Simply answer the question that was asked of you.
If the question has two parts requiring different answers, then answer the question in two parts or ask that the question be rephrased.
If you are testifying as an expert, be prepared to reconcile or distinguish your opinion from opposing schools of thought.
Know your testimony before taking the stand and avoid bringing notes with you to assist you in testifying. Whatever information is contained in the documents you take with you to the stand to assist you in testifying may be subject to review by the attorneys for the parent(s) and the guardian ad litem. You may be called upon to testify as to the work of another caseworker who has retired or moved on to another job. You should still attempt, if possible, to review the case file beforehand and testify from memory.
Always address the Judge as "Your Honor" throughout the hearing.
McGough, Lucy S., The Social Worker and the Legal Process in Georgia: A Handbook for Caseworkers, p. 130, (1981) and Child Protective Services: A Supervisor's Guide, V-20, p. 2.
Number 13 above is an area of the law that remains unsettled. O.C.G.A. § 24-9-69 states that a witness "may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper." In criminal cases, the attorney for the opposing party generally has a right to view any notes in the possession of the witness used during testimony. This practice has been extended to civil cases by some trial courts. The Court of Appeals has given mixed signals about whether an attorney in a civil case may view the notes used by a witness for the opposing party. Paul S. Milich, Georgia Rules on Evidence, §13.5. In Kilgore v. Department of Human Resources, 151 Ga. App. 19 (1979), the Court of Appeals held that an attorney representing a mother in a hearing to terminate her parental rights did not have an absolute right to view the notes used by a DFCS caseworker during her testimony. However, the court noted that these were simply notes and not the case file which had already been presented to the court for review. In another civil case, the court held that the cross-examiner has the right to question the witness concerning the contents of the document which is assisting in his/her testimony. Lester v. S.J. Alexander, Jr., 127 Ga. App. 470 (1972). Given the somewhat unsettled nature of the law in this area as well as the tendency of many trial judges to require that documents used to refresh a witness' recollection be submitted for inspection by opposing counsel, DFCS case managers would be well advised to consult your supervisor and/or SAAG to see if the case file should be taken to court and if the juvenile court judge in your jurisdiction allows a DFCS case manager to bring their own handwritten notes to the stand without them being subject to review by an attorney representing the child's parents.
Cross-examination is the process whereby the attorney for the child's parents, or possibly the guardian ad litem representing the child will have the opportunity to ask you questions. This is the part of the process which most case managers find the most stressful. It may seem to the case manager that the attorney is trying to undermine the credibility of your testimony in the eyes of the judge. What the attorney is doing is fulfilling his/her professional obligation to advocate for his or her client. The attorney's job is to make sure the state meets its burden of proving by clear and convincing evidence that the child is deprived. This process may come across as a personal attack on the DFCS case manager and it may appear that the attorney does not care about the welfare of the child. It may help all parties to keep in mind that every party to a case has a right to present his or her side and that every attorney present has an ethical obligation to vigorously represent his or her client. It is the judge's job to decide on which side the weight of the evidence falls.
One way the opposing attorneys try to show that the state has not met its burden of proof is by attempting to reveal falsehoods, mistakes, incorrect procedures, etc. on your part during the investigation of these allegations. The attorney is likely to focus questions on your competency, whether the agency has offered and provided adequate or appropriate services to the family, whether you are hostile or biased towards the parents, and whether there are any discrepancies between your case file and your testimony on the stand as well as prior statements to the parents before the hearing. The attorney's job is to present the parent's case, which is usually attempting to convince the judge that the most appropriate placement is back at home with the parent(s). Their attorney will try and bring out all of the ways that the parent(s) have complied with the case plan and the reasons behind noncompliance. This might be accomplished by attempting to show that DFCS is partially or completely responsible for noncompliance (i.e. DFCS did not provide appropriate services or did not make these service available). The goal and responsibility of the parent's attorney is to cast his/her client's case in the best possible light and highlight any negatives about the state's position.
Remain calm. Try not to get offended at any of the questions posed to you and never argue with an attorney or with the judge.
Listen to the question carefully. Do not provide any information in your answer that was not asked for in the question but you should give as thorough an answer as you can in order to avoid your answer being misinterpreted by the judge.
Do not let yourself be rushed along by the attorney. This is a technique to try and throw you off balance by interrupting your answer with another question. Try to finish your answer to the first question before moving on. You may wish to ask the judge for permission to finish your answer if you feel you were cut off.
Do not answer a question you do not understand or to which you do not know the answer.
If the SAAG feels that you did not have the opportunity to adequately explain your answers, the SAAG may request the opportunity to redirect or ask additional questions of you before you leave the stand.