The purpose of this Code is to secure for each child who comes within the jurisdiction of the juvenile courts of this state such care and guidance, preferably in his or her own home, as will secure the child’s moral, emotional, mental and physical welfare as well as the safety of both the child and community. It is the intent of the General Assembly to promote a juvenile justice system that will protect the community, impose accountability for violations of law and equip juvenile offenders with competencies to live responsibly and productively. It is the intent of the General Assembly to preserve and strengthen family relationships, countenancing the removal of a child from his or her home only when state intervention is essential to protect the child and enable him or her to live in security and stability. In every proceeding, this Code seeks to guarantee due process of law, as required by the Constitutions of the United States and the State of Georgia, through which every child and parent and all other interested parties are assured fair hearings at which legal rights are recognized and enforced. Above all, this Code shall be liberally construed to reflect that the paramount child welfare policy of this state is to determine and ensure the best interests of its children.

Comments

This is a new provision applicable to the juvenile code in its entirety. As will be noted in later articles, one of the revisions made to the current code is the addition of individual purpose statements to significant substantive articles such as deprivation and delinquency. However, this statement is general, all encompassing, and it highlights the principles that should be at the forefront in all juvenile court proceedings.

15-11-102. Direct calendaring

Through direct calendaring, whenever possible, a single judge shall hear all successive cases or proceedings involving a child or family.

Comments

This provision was included to ensure stability and continuity for families through direct calendaring. This encourages the practice, particularly in deprivation cases, of having a single judge follow a child’s case to its conclusion and thereby allow that judge to become familiar with the needs of that child and/or family. See Publication Dev. Comm., Nat’l Council of Juvenile and Family Court Judges, Resource Guidelines: Improving Court Practice in Child Abuse and Neglect Cases, 19 (1995) [hereinafter Resource Guidelines]. See also N.M. Stat. Ann. § 32A-1-3(F) (West 2007); Or. Rev. Stat. § 3.414 (2007).

15-11-103. Applicability of general law

Where procedures are not provided in the Juvenile Code, or otherwise by law, the court shall proceed in accordance with:

(a) The Code of Criminal Procedure in a delinquency proceeding; and

(b) The Civil Practice Act in all other matters.

Comments

This is a new provision that lists the alternate sources of general law that apply in the rare instance in which the juvenile code is silent.

15-11-103. Computation of Time

(a) When a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted; and, if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise it.

(b) When the last day prescribed for the exercise of any privilege or the discharge of any duty falls on a public and legal holiday as set forth in Code section 1-4-1, the party having the privilege or duty shall have through the next business day to exercise the privilege or to discharge the duty.

(c) When the period of time prescribed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

Comments

The language in this provision is drawn from O.C.G.A. § 1-3-1(d)(3). This provision was included to limit the number of cross-references within the code.

15-11-105. Definitions

As used in the Juvenile Code, the term:

“Adult” means any individual who is not a child under the definition in paragraph (3) of this Code section

“Biological father” means the male who impregnated the biological mother resulting in the birth of the child.

“Business day” means Mondays through Fridays and shall not include Saturdays, Sundays, or legal holidays.

“Caregiver” means any person providing a residence for the child or any person legally obligated to provide or secure adequate care for a child, including a parent, guardian, or legal custodian.

“Child” means any individual who is:

(A) Under the age of 18 years;

(B) Under the age of 21 years, who committed an act of delinquency before reaching the age of 18 years, and who has been placed under the supervision of the court or on probation to the court.

“Community rehabilitation center” means a rehabilitation and custodial center established within a county for the purpose of assisting in the rehabilitation of a delinquent child and children in need of services in a neighborhood and family environment in cooperation with community educational, medical, and social agencies. The center shall meet the following requirements:

(A) Is located within any county having a juvenile court presided over by at least one full-time judge exercising jurisdiction exclusively over juvenile matters; and

(B) Is operated by a nonprofit corporation organized under Chapter 3 of Title 14, the “Georgia Nonprofit Corporation Code,” and has a full-time chief executive officer. The charter, bylaws, and method of selecting the board of directors and chief executive officer of such nonprofit corporation shall be subject to the unanimous approval of the chief judge of the judicial circuit in which the county is located, the judge or judges of the juvenile court, the superintendent of the county school district, and the commissioner of corrections, which approval shall be in writing and shall be appended to the charter and bylaws of the nonprofit organization. Any amendment of the charter or bylaws of the nonprofit corporation shall be subject to the same written approval as the original charter and bylaws.

"Court" means the juvenile court or the court exercising jurisdiction over juvenile matters.

"Criminal justice purposes" means the performance of any activity directly involving the investigation, detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of children or adults who are accused of, convicted of, or charged with crimes or the collection, storage, and dissemination of criminal history record information.

"Custodian" means a person, other than a parent or legal guardian, who stands in loco parentis to the child.

“Eligible shelter care placement” means placement in foster family homes or child care institutions as defined in 42 U.S.C. §§ 672(b) and (c) and other applicable federal and state statutes, regulations, and policies. This definition excludes any detention facility or other facility operated primarily for the purpose of detention of a child adjudicated delinquent.

“Emancipation” means termination of the rights of a parent to the custody, control, services, and earnings of a child.

"Identification data" means the fingerprints, name, race, sex, date of birth, and any other unique identifiers of the child.

“Indigent person” means a person who, at the time of requesting counsel, is unable without undue financial hardship to provide for full payment of legal counsel and all other necessary expenses for representation. To determine indigence, the court shall follow the Standards for Determining Indigence of the Georgia Public Defender Standards Council.

"Judge" means judge or judges of the court exercising jurisdiction over juvenile matters.

"Juvenile court intake officer" means the juvenile court judge, associate juvenile court judge, court service worker, or person employed as a juvenile probation or intake officer designated by the juvenile court judge or, where there is none, the superior court judge, which person is on duty for the purpose of determining whether any child taken into custody should be released or detained and, if detained, the appropriate place of detention. Each superior or juvenile court judge shall provide for one intake officer to be on duty or on call during each 24 hour period.

“Legal custodian” means:

(A) A person to whom legal custody of the child has been given by order of a court; or

(B) A public or private agency or other private organization licensed or otherwise authorized by law to receive and provide care for a child to which legal custody of the child has been given by order of a court.

“Legal father” means a male who:

(D) Was married to the biological mother of that child at the time the child was conceived or was born, unless such paternity was disproved by a final order pursuant to article 3 of Chapter 7 of Title 19;

(E) Married the legal mother of the child after the child was born and recognized the child as his own, unless such paternity was disproved by a final order pursuant to article 3 of Chapter 7 of Title 19;

(F) Has been determined to be the father by a final paternity order pursuant to article 3 of Chapter 7 of Title 19; or

(G) Has legitimated the child by a final order pursuant to Code section 19-7-22 or by voluntary acknowledgment pursuant to Code section 19-7-22(g)(2); and

Who has not surrendered or had terminated his rights to the child.

"Legal mother" means the female who is the biological or adoptive mother of the child and who has not surrendered or had terminated her rights to the child.

“Party” means a child, parent, guardian, legal custodian, or other person subject to any judicial proceeding under this chapter.

"Parent" means either the legal father or the legal mother of the child.

“Probation and intake employees” means any probation officer and any personnel of a juvenile court to whom are delegated the duties of an intake officer under this chapter, other than a juvenile court judge, associate juvenile court judge, or court service worker.

“Probation and intake services” means those services provided by the probation and intake employees for the juvenile court of a county.

“Prosecuting attorney” means the district attorney of the judicial circuit or county in which juvenile proceedings are instituted or the solicitor of the juvenile court in which the juvenile proceedings are instituted or those individuals’ designees.

"Putative father registry" means the registry established and maintained pursuant to subsections (d) and (e) of Code section 19-11-9.

Comments

The definitions in article 1 include terms that appear throughout the proposed model code.

1. This term is current O.C.G.A. § 15-11-2(1) and remains substantively unchanged.

2. This term is current O.C.G.A. § 15-11-2(1.1) and remains substantively unchanged.

3. This term is included for clarity.

4. This term is new and is modeled after Louisiana Children’s Code art. 728.

5. This term is current O.C.G.A. § 15-11-2(2) and is revised to raise the age of juvenile jurisdiction to include any child under the age of 18. The reporters recognize that this change requires additional resources and that it affects various agencies, service providers, and communities. However, this proposed change is consistent with best practices and brings Georgia in line with the 38 other states that treat an individual under the age of 18 as a child. Significantly, the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005) acknowledged the developmental differences between a child and an adult and reiterated that society has drawn the line of demarcation between a child and an adult at 18 years of age for many purposes. See Roper, 543 U.S. at 553-554. Further support for this change is generated by recent scientific evidence demonstrating that adolescents are less culpable for their acts than adults and are not competent to stand trial in the same manner as adults. See MacArthur Found. Research Network on Adolescent Dev. and Juvenile Justice, Issue Brief 3: Less Guilty by Reason of Adolescence, available at http://www.adjj.org/downloads/6093issue_brief_3.pdf; MacArthur Found. Research Network on Adolescent Dev. and Juvenile Justice, Adolescent Development and Criminal Blameworthiness, http://www.adjj.org/downloads/3030PPT-%20Adolescent%20Development%20and%20Criminal%20Blameworthiness.pdf (2007); See also A.A. Baird, et al., What Were You Thinking? A Neural Signature Associated with Reasoning in Adolescence, http://www.theteenbrain.com/research/projects/goodidea2.php (2005).

6. This term is current O.C.G.A. § 15-11-2(3) and remains substantively unchanged. The minor revisions made are for consistency in keeping with the rest of the proposed model code.

7. This term is current O.C.G.A. § 15-11-2(4) and is revised for consistency in keeping with the rest of the proposed model code.

8. This term is current O.C.G.A. § 15-11-2(4.1) and remains substantively unchanged.

9. The term “custodian,” O.C.G.A. § 15-11-2(5), was divided to include a separate definition for a “legal custodian.” This differentiation is made to emphasize the distinction of the legal custodian as an individual with specific and enumerated legal rights.

10. This term is included to distinguish between the definition of a shelter care placement under current Georgia law which includes the home of a noncustodial parent with the federal definition of a foster home in the Adoption and Safe Families Act of 1997 [hereinafter “ASFA”]. The definition of an eligible shelter care placement under federal law is found in 42 U.S.C. §§ 672(b) and (c).

11. This term is current O.C.G.A. § 15-11-200(1) and remains substantively unchanged. It has been moved to this provision to reflect the new organizational structure of the proposed model code.

12. This term is current O.C.G.A. § 15-11-2(8.1) and remains substantively unchanged.

13. This term is current O.C.G.A. § 15-11-6(a). Language regarding the Standards for Determining Indigence from the Georgia Public Defender Standards Council was included to ensure uniformity in determining indigence.

14. This term is current O.C.G.A. § 15-11-2(9) and is streamlined and revised for clarity.

15. This term is O.C.G.A. § 15-11-2(10) and remains substantively unchanged. The minor revision made is for clarity.

16. This term is drawn from O.C.G.A. § 15-11-2(5). See comment # 9 above.

17. This term is current O.C.G.A. § 15-11-2(10.1) and is revised to include legitimation by voluntary acknowledgement.

18. This term is current O.C.G.A. § 15-11-2(10.2) and remains substantively unchanged.

19. This term is new and unambiguously recognizes the child as a party to proceedings. See Kenny A. v. Perdue, 356 F. Supp.2d 1353, 1358 (N.D. Ga. 2005)(citing McBurrough v. Dept. of Human Resources, 257 S.E.2d 35 (1979) and O.C.G.A. § 15-11-9(b)); See also Fla. Rev. Stat. § 39.01(50).

20. This term is current O.C.G.A. § 15-11-2(10.3) and remains substantively unchanged.

21. This term is current O.C.G.A. § 15-11-24.3(a)(2) and remains substantively unchanged. It has been moved to this provision to reflect the new organizational structure of the proposed model code.

22. This term is current O.C.G.A. § 15-11-24.3(a)(3) and remains substantively unchanged. It has been moved to this provision to reflect the new organizational structure of the proposed model code.

23. This term is new and is included for clarity and to ensure consistency throughout the proposed model code.

24. This term is current O.C.G.A. § 15-11-2(10.4) and remains substantively unchanged.

15-11-104. Court of inquiry

(a) The juvenile court shall have jurisdiction to act as a court of inquiry with all the powers and rights allowed courts of inquiry in this state and to examine or investigate into the circumstances or causes of any conduct or acts of any person 18 years of age or over that may be in violation of the laws of this state whenever the person is brought before the court in the course of any proceeding instituted under this chapter. The court shall cause the person to be apprehended and brought before it upon either a writ of summons, a warrant duly issued, or by arrest.

(b) When, after hearing evidence, the court has reasonably ascertained that there is probable cause to believe that the person has committed a misdemeanor or felony as prescribed under the laws of this state, the court shall commit, bind over to the court of proper jurisdiction in this state, or discharge the person. When justice shall require, the court shall cause the person to make the bond or bail as the court shall deem proper under the circumstances, to cause the person to appear before the court of proper jurisdiction in this state to be acted upon as provided by law.

Comments

O.C.G.A. § 15-11-4(a) was made a stand-alone provision but otherwise remains unchanged. The minor revisions were made for consistency in keeping with the proposed model code.

15-11-107. Court of Record

The juvenile court is a court of record, having a seal. The judge and the judge's duly appointed representatives shall each have power to administer oaths and affirmations.

Comments

O.C.G.A. § 15-11-4(b) was made a stand-alone provision but otherwise remains unchanged.

15-11-108. Issuance of Warrants

The juvenile court judge, associate juvenile court judge, and judge pro tempore shall have authority to issue a warrant for the arrest of any child for an offense committed against the laws of this state, based either on personal knowledge or the information of others given under oath.

Comments

O.C.G.A. § 15-11-4(c) was made a stand-alone provision. The addition of a judge pro tempore was made for consistency.

15-11-109. Exclusive original jurisdiction

The court shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action:

(1) Concerning any child:

(A) Who is alleged to be delinquent;

(B) Who is alleged to be a child in need of services;

(D) Who is alleged to be in need of treatment or commitment as a mentally ill or mentally retarded child;

(E) Who is alleged to have committed a juvenile traffic offense as defined in Code section 15-11-760; or

(F) Who has been placed under the supervision of the court or on probation to the court; provided, however, that such jurisdiction shall be for the sole purpose of completing, effectuating, and enforcing such supervision or a probation begun prior to the child's eighteenth birthday; or

(2) Involving any proceedings:

(A) For obtaining judicial consent to the marriage, employment, or enlistment in the armed services of any child if such consent is required by law;

(B) For permanent guardianship brought pursuant to the provisions of article 3 of this chapter;

(D) For the termination of the legal parent-child relationship and the rights of the biological father who is not the legal father of the child, other than that in connection with adoption proceedings under Chapter 8 of Title 19, in which the superior courts shall have concurrent jurisdiction to terminate the legal parent-child relationship and the rights of the biological father who is not the legal father of the child;

(E) For emancipation brought pursuant to the provisions of article 11 of this chapter;

(F) Under article 9 of this chapter, relating to prior notice to a parent or guardian relative to an unemancipated minor's decision to seek an abortion; or

(G) Brought by a local board of education pursuant to Code section 20-2-766.1 relating to court orders requiring that a parent attend a conference or participate in programs or treatment to improve a student’s behavior.

Comments

The revisions in this section create a stand-alone provision for exclusive jurisdiction to accomplish two main goals of the code project: ease of use and clarity. Paragraph 1(B) was revised to reflect the change in terminology from “unruly” to a “child in need of services.” Paragraph 2(B) was added to grant courts the jurisdiction to establish permanent guardianships under article 3. Finally, descriptive language was added to Paragraph 2(G) for clarity. Subsection (d) of § 15-11-28 was stricken as redundant.

The provisions on concurrent jurisdiction were moved to a stand-alone provision and are now P.M.C. § 15-11-110.

15-11-110. Concurrent jurisdiction; concurrent jurisdiction by transfer

(a) The juvenile court shall have concurrent jurisdiction to hear:

(1) Adoption proceedings following the termination of the legal parent-child relationship and the rights of the biological father who is not the legal father of the child if the termination of parental rights was initiated and concluded in juvenile court;

(2) Any legitimation petition filed pursuant to Code section 19-7-22 concerning a child who is the subject of a deprivation proceeding;

(3) Any legitimation petition transferred to the court by proper order of the superior court;

(4) The issue of custody and support when the issue is transferred by proper order of the superior court;

(5) Any petition for the establishment or termination of a temporary guardianship transferred to the court by proper order of the probate court.

(b) If a demand for a jury trial as to support has been properly filed by either parent, then the case shall be transferred to superior court for the jury trial.

Comments

There are two additions to the cases in which the juvenile court has concurrent jurisdiction with superior court. The first incorporates language granting courts jurisdiction to hear issues transferred from the probate court pursuant to O.C.G.A. §§ 29-2-6(f) and 29-2-8(b). The second allows juvenile court judges to hear adoption proceedings in those cases which initiated in juvenile court. Following the best practice of the one child/one judge model, this allows a judge to hear a case to completion. See Resource Guidelines.

15-11-111. Dual jurisdiction; finding of deprivation and delinquency

(a) Nothing in this chapter shall be construed to prevent a child from being found both deprived and delinquent if there exists a factual basis for such a finding.

(b) If a child alleged or found to be delinquent is also alleged or found to be deprived, deprivation proceedings may be consolidated with delinquency proceedings to the extent consistent with due process of law.

(c) Unless otherwise provided by law, the timelines and requirements of article 3 shall apply to cases in which a child alleged or found to be delinquent is placed in an eligible shelter care placement and has also been alleged or found to be deprived.

Comments

This provision is modeled in part after Washington Code § 13.04.300 and affirms the connection between child maltreatment and delinquency. See John A. Tuell, Promoting a Coordinated and Integrated Child Welfare and Juvenile Justice System: An Action Strategy for Improved Outcomes, Child Welfare League of America (2003) Subsection (b) addresses efficacy in case management and subsection (c) is one of the many instances throughout the proposed model code in which language is included to ensure compliance with ASFA requirements in delinquency cases. ASFA applies in any case in which a child is placed in an eligible shelter care placement. 42 U.S.C. §§ 672(b), (c); See American Bar Ass’n, Making Sense of the ASFA Regulations, 139-162 (Diane Boyd Rauber ed., 2001). Whenever a child involved in delinquency proceedings or a child alleged to have committed a status offense is placed in an eligible shelter care placement, the Division of Family and Children Services or other appropriate agency and the court must fulfill all federal and state laws, regulations, and policies that apply to the receipt of federal foster care moneys or administrative matching funds, including but not limited to:

(1) Providing timely and complete reports and case plans;

(2) Providing findings of reasonable efforts to prevent or eliminate the need for

removing the child from the child’s home;

(3) Conducting timely periodic review and permanency planning hearings;

(4) Providing findings of reasonable efforts to finalize a permanency plan;

(5) Initiating and hearing termination of parental rights proceedings when

required; and

(6) Providing notice and the opportunity to be heard to foster parents, preadoptive

parents, and relative caregivers.

15-11-112. Appointment of guardian of the person and conservator of the property of a child

The court shall have jurisdiction to appoint a guardian of the person or conservator of the property of any child in any proceeding authorized by this chapter. Any such appointment shall be made pursuant to the same requirements of notice and hearing as are provided for appointments of guardians of the persons and conservators of the properties of any child by the probate court.

Comments

This provision is revised for clarity and to include the term “conservator of the property of a child” which is the appropriate term now commonly used. O.C.G.A. § 15-11-30.1(b) has been moved to its own provision, P.M.C. § 15-11-114, because it is a separate subject matter.

15-11-113. Transfers from probate court

(a) The court shall hold a hearing within 30 days of receipt of a case transferred from the probate court pursuant to Code section 29-2-6(f) relating to the establishment of a temporary guardianship or the selection of a temporary guardian, or Code section 29-2-8(b) relating to the termination of a temporary guardianship.

(b) After notice and hearing, the court may make one of the following orders:

(1) That the temporary guardianship be established or continued if the court determines that the temporary guardianship is in the best interests of the child. The order is thereafter subject to modification only as provided in Code section 15-11-126.

(2) That the temporary guardianship be terminated if the court determines it is in the best interests of the child. Unless the court determines that there is probable cause to believe the child would be deprived in the custody of the child’s parent, the child shall be returned to the parent.

(c) A case shall proceed as a deprivation matter pursuant to the provisions of article 3 if, after notice and hearing, the court determines:

(1) That it is in the best interests of the child that the temporary guardianship not be established or that the temporary guardianship be terminated but there is probable cause to believe the child would be deprived if returned to the parent; or

(2) That it is in the best interests of the child that the temporary guardianship be continued over the parent’s objection.

The court may refer the matter to the Division of Family and Children Services for further investigation.

Comments

There has previously been an absence of direction with regard to how cases transferred by the probate court pursuant to O.C.G.A. §§ 29-2-6(f) and 29-2-8(b) were to be handled by the juvenile court. This provision remedies this unique problem by establishing a uniform procedure for courts to follow. If a transferred case must proceed as a deprivation matter, the court may advise the temporary guardian, when appropriate, of his or her obligation to file a deprivation petition and initiate the deprivation proceedings in a timely manner and in accordance with the provisions of article 3.

15-11-114. Transfers from superior court

(a) In handling divorce, alimony, habeas corpus, or other cases involving the custody of a child, a superior court may transfer the question of the determination of custody, support, or custody and support to the juvenile court either for investigation and a report back to the superior court or for investigation and determination.

(b) If the referral is for investigation and determination, then the juvenile court shall proceed to handle the matter in the same manner as though the action originated under this chapter in compliance with the order of the superior court, except that the parties shall not be entitled to obtain appointed counsel through the juvenile court.

(c) At any time prior to the determination of any such question, the juvenile court may transfer the jurisdiction of the question back to the referring superior court.

Comments

This provision is drawn from O.C.G.A. § 15-11-30.1(b). It is restructured by dividing the single paragraph into several paragraphs for clarity. Subsection (b) is revised to emphasize that the court need not appoint counsel in these instances as they would not be entitled to appointed counsel in superior court.

15-11-115. Commencement of proceedings

A proceeding under this chapter may be commenced:

(1) By an order of transfer of a case from another court as provided in Code section 15-11-744;

(2) By the summons, notice to appear, or other citation in a proceeding charging a juvenile traffic offense;

(3) In other cases of alleged delinquency, deprivation or cases of children in need of services, by the filing of a complaint or a petition as provided in articles 3, 4, 6, and 7. The petition and all other documents in the proceeding shall be entitled "In the interest of _____, a child," except upon appeal, in which event the anonymity of the child shall be preserved by appropriate use of the child’s initials; or

(4) In other cases as provided by law.

Comments

In general, this provision has remained unchanged. The revisions reflect the new numerical scheme applied in the proposed model code, the addition of article 4 Termination of Parental Rights, article 6 Children in Need of Services, and the repeal of article 1 Part 9 Interstate Proceedings. Paragraph 2 lists the ways a proceeding may be initiated as stated in O.C.G.A. § 15-11-73 to avoid a cross-reference.

15-11-116. Conduct of hearings

(a) All hearings under this chapter shall be conducted by the court without a jury. Any hearing may be adjourned from time to time within the discretion of the court.

(b) Except as otherwise provided, all hearings shall be conducted in accordance with the Georgia Rules of Evidence.

(d) In any proceeding, the court, upon its own motion may request the assistance of the district attorney or a member of the district attorney's staff to conduct the proceedings on behalf of the petitioner. If for any reason the district attorney is unable to assist, the court may appoint legal counsel for such purpose.

(e) A juvenile court judge, an associate juvenile court judge, a judge pro tempore of the juvenile court, or any person sitting as a juvenile court judge may conduct hearings in connection with any proceeding under this chapter in any county within the judicial circuit. When a superior court judge sits as a juvenile court judge, hearings in connection with any proceeding under this chapter may be heard before the judge in any county within the judicial circuit over which the judge presides.

Comments

The addition of language to subsection (a) was made for clarity and the reference to O.C.G.A. § 15-11-56 was stricken to remove redundancies, in keeping with the rest of the proposed model code. Subsection (b) was added to include a reference to the applicability of the Rules of Evidence. The language regarding waiver in subsection (c) was stricken to prevent waiver of recordation. We recognize that in certain extraordinary circumstances, such as a power outage, recordation may not be possible but, in general, all proceedings must be recorded.

O.C.G.A. § 15-11-29(a) was added as subsection (e) because the authorization was more appropriate as a general provision within this section than attached to the venue provisions.

15-11-117. Subpoenas

Upon application of a party, the court, or any authorized officer of the court, the clerk of the court shall issue or the court on its own motion may issue subpoenas requiring attendance and testimony of witnesses and production of papers at any hearing under this chapter.

Comments

This provision remains substantively unchanged. The minor modification made reflects the new organizational structure of the proposed model code.

15-11-118. Rights of parties to proceedings

(a) A party has the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records, and to appeal the orders of the court. However, the court shall retain the discretion to exclude a child from any part or parts of any proceeding under articles 3 or 4 if the court determines that it is not in the child’s best interests to be present. Counsel for the child may not be excluded.

(b) A person afforded rights under this chapter shall be advised of those rights at that person's first appearance before the court.

Comments

This provision is modeled in part after the Illinois juvenile code provision on rights of parties to proceedings. See 705 ILCS 405/1-5. While a child as a party to a proceeding has the right to be present at a proceeding, there are times when it is clearly inappropriate for a child to be present. Therefore, the court is expressly given the discretion to exclude a child only in deprivation or termination of parental rights proceedings if it is determined to be in the child’s best interests. Subsection (b) of this provision has been included to ensure parties are properly informed of their basic rights in a timely manner.

15-11-119. Referral for mediation

(a) At any time during a proceeding under this chapter, the court may refer the case for mediation except for those proceedings brought pursuant to a protective order or informal family services plan procedure.

(b) The referral order shall recite that while the parties must attend a scheduled mediation session and must attempt to mediate in good faith, they are not required to reach an agreement.

Comments

This is a new provision modeled after Louisiana Children’s Code Art. 437. Proceedings brought pursuant to a protective order have been exempted because of the potential power imbalance between the parties. The article 6 informal family services plan procedure has been exempted because it is a form of mediation. Lucy McGough and Kerry Trichie, Louisiana Children’s Code Handbook, 88 (2004).

15-11-120. Best interests of the child

Whenever a best interests determination is required, the court shall consider and evaluate all of the factors affecting the best interests of the child in the context of the child’s age and developmental needs. These factors shall include:

(1) The physical safety and welfare of the child, including food, shelter, health, and clothing;

(2) The mental and physical health of all individuals involved;

(3) Evidence of domestic violence;

(4) The child's background and ties, including familial, cultural, and religious;

(5) The child's sense of attachments, including the child's sense of security, the child's sense of familiarity, and continuity of affection for the child;

(6) The least disruptive placement alternative for the child;

(7) The child's wishes and long-term goals;

(8) The child's community ties, including church, school, and friends;

(9) The child's need for permanence which includes the child's need for stability and continuity of relationships with a parent, siblings and other relatives;

(10) The uniqueness of every family and child;

(11) The risks attendant to entering and being in substitute care;

(12) The preferences of the persons available to care for the child; and

(13) Any other factors considered by the court to be relevant and proper to its determination.

Comments

All states require that the best interests of a child be considered when making determinations on their behalf. U.S. Dept. of Human Resources, National Clearinghouse on Child Abuse and Neglect Information, Determining Best Interests of the Child (2005) (last visited Dec. 14, 2007) http://www.childwelfare.gov/systemwide/laws_policies/statutes/best_interestall.pdf. Several states include specific factors to consider in determining best interests. See e.g. Ky. Rev. Stat. Ann. § 620.023 (2007); Md. Code Ann., Fam. Law § 5-525(e)(1) (2007); N.D. Cent. Code § 14-09-06.2(1) (2007); Ohio Rev. Code Ann. § 2151.414 (West 2007); Vt. Stat. Ann. tit. 15A, § 3-504(c) (2007). This provision is intended to assist the court in making a best interests determination and is modeled after the Illinois provision. See 705 Ill. Comp. Stat. 405/1-3 (West 2007).

15-11-121. Physical and mental examinations

(a) During the pendency of any proceeding under this chapter, the court may order the child to be examined at a suitable place by a physician or psychologist.

(b) In addition, the court may order medical or surgical treatment of a child who is suffering from a serious physical condition or illness which, in the opinion of a licensed physician, requires prompt treatment, even if the parent, guardian, or other legal custodian has not been given notice of a hearing, is not available, or without good cause informs the court of his or her refusal to consent to the treatment.

Comments

This provision is revised to create a stand-alone provision for the court’s discretion to order examinations and treatments. The language remains unchanged with the exception of minor stylistic revisions in keeping with the rest of the proposed model code.

15-11-122. Privilege against self-incrimination; screening, evaluation, and treatment

(a) No statement, admission or confession, or incriminating information obtained from a child in the course of any screening that is undertaken in conjunction with proceedings under this chapter, including but not limited to that which is court-ordered, shall be admitted into evidence in any proceeding under this chapter.

(b) No statement, admission or confession, or incriminating information obtained from a child in the course of any assessment or evaluation, or any treatment that is undertaken in conjunction with proceedings under this chapter, including but not limited to that which is court-ordered, shall be admitted into evidence against the child, or used as a basis for such evidence, in any future adjudication or disposition hearings or criminal proceeding.

Comments

This provision is drawn from the model law developed by the Juvenile Law Center in 2007. The goal of this provision is to ensure a comprehensive prohibition against the use of incriminating statements obtained during screening, assessment, or treatment during any and all points in the juvenile court process. See Lourdes M. Rosado & Riya S. Shah, Juvenile Law Ctr., Protecting Youth from Self-Incrimination when Undergoing Screening, Assessment and Treatment within the Juvenile Justice System (2007).

15-11-123. Protective orders

(a) In any proceeding under the Juvenile Code, either on application of a party or on the court's own motion, the court may make an order restraining or otherwise controlling the conduct of a person if due notice of the application or motion and the grounds therefor and an opportunity to be heard thereon have been given to the person against whom the order is directed. Such an order may require any such person:

(1) To stay away from the home or the child;

(2) To permit a parent to visit the child at stated periods;

(3) To abstain from offensive conduct against the child, the child's parent, or any person to whom custody of the child is awarded;

(4) To give proper attention to the care of the home;

(5) To cooperate in good faith with an agency to which custody of a child is entrusted by the court or with an agency or association to which the child is referred by the court;

(6) To refrain from acts of commission or omission that tend to make the home not a proper place for the child;

(7) To ensure that the child attends school pursuant to any valid law relating to compulsory attendance;

(8) To participate with the child in any counseling or treatment deemed necessary after consideration of employment and other family needs; and

(9) To enter into and complete successfully a substance abuse program approved by the court.

(b) After notice and opportunity for hearing afforded to a person subject to a protective order, the order may be modified or extended for a further specified period, or both, or may be terminated if the court finds that the best interests of the child and the public will be served thereby.

(c) Protective orders may be enforced by citation to show cause for contempt of court by reason of any violation thereof and, where protection of the welfare of the child so requires, by the issuance of a warrant to take the alleged violator into custody and bring him or her before the court.

Comments

Paragraph (a) of this provision was revised to broaden the court’s protective powers.

15-11-124. Rights and duties of legal custodian

A legal custodian has the right to physical custody of the child, the right to determine the nature of the care and treatment of the child, including ordinary medical care, and the right and duty to provide for the care, protection, training, and education and the physical, mental, and moral welfare of the child, subject to the conditions and limitations of the order and to the remaining rights and duties of the child's parent or guardian.

Comments

This provision was revised for clarity and consistency with the rest of the proposed model code but remains substantively unchanged.

15-11-125. Contempt powers; other sanctions

(a) In addition to all other inherent powers of the court to enforce its lawful orders, the court may punish a person for contempt of court, by imprisonment for not more than 20 days or a fine not to exceed $1,000.00, for willfully disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders.

(b) The court shall restrict and limit the use of contempt powers with respect to commitment of a child to a secure facility and in no event may a child solely alleged or adjudicated to be deprived be placed in a secure facility.

(1) He or she is found in contempt of court;

(2) Less restrictive alternatives have been considered and are unavailable or inappropriate, or if the child has already been ordered to serve a less restrictive alternative sanction but failed to comply with the sanction; and

(3) For a child in need of services, the requirements of Code section 15-11-616 regarding the valid court order exception have been met.

(d) In addition or as an alternative to the punishment provided in subsection (a), after notice and opportunity to be heard, the court may impose any or all of the following sanctions when a parent, guardian, or other custodian willfully violates any order issued by the court directed to him or her:

(1) Require the parent, guardian, or legal custodian of the child to make restitution in an amount not to exceed $2,500.00 for any damage or loss caused by the child's wrongful act;

(2) Reimburse the state for the costs of detention, treatment, or rehabilitation of the child;

(3) Require the parent, guardian, or legal custodian of the child to participate in a court approved educational or counseling program designed to contribute to the ability to provide proper parental care and supervision of the child, including, but not limited to, parenting classes; or

(4) Require the parent, guardian, or legal custodian of the child to enter into a contract or plan as a part of the disposition of any charges against the child, so as to provide for the supervision and control of the child by the parent, guardian, or legal custodian and reunification with the child.

Comments

This provision specifies the limited use of a court’s contempt power to detain a child in a secure facility; subsections (b) and (c), have been included to ensure this power is restricted and not abused. The court’s power to imprison an adult for contempt for not more than 20 days is expressly stated in accordance with the superior court’s statutory limitations. See O.C.G.A. § 15-6-8.

15-11-126. Modification or vacation of orders

(a) An order of the court shall be set aside if:

(1) It appears that it was obtained by fraud or mistake sufficient therefore in a civil action;

(2) The court lacked jurisdiction over a necessary party or of the subject matter; or

(3) Newly discovered evidence so requires.

(b) An order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child, except:

(1) An order committing a delinquent child to the Department of Juvenile Justice, after the child has been transferred to the physical custody of the Department of Juvenile Justice; or

(2) An order of dismissal.

(c) Any party to the proceeding, the probation officer, or any other person having supervision or legal custody of or an interest in the child may petition the court for the relief provided in this Code section. The petition shall set forth in clear and concise language the grounds upon which the relief is requested.

(d) After the petition is filed, the court shall fix a time for hearing and shall cause notice to be served on the parties to the proceeding or those affected by the relief sought. After the hearing, the court shall deny or grant relief as the evidence warrants.

Comments

This provision has been revised for clarity but remains otherwise unchanged. The language regarding revocation of a probation order has been moved to a stand-alone provision in article 7 and is now P.M.C. § 15-11-756.

15-11-127. Transfers when disposition incorporates reunification plan

(a) Whenever an order of disposition incorporates a reunification plan and the residence of the parent is not in the county of the court with jurisdiction or the residence of the parent changes to a county other than the county of the court with jurisdiction, the court may transfer jurisdiction to the juvenile court of the residence of the parent to whom the reunification plan is directed.

(b) Within 30 days of the filing of the transfer order, the transferring court shall provide the receiving court with certified copies of the adjudication order, the order of disposition, the order of transfer, the case plan, and any other court documents deemed necessary by the sending court to enable the receiving court to assume jurisdiction over the matter.

(c) Compliance with this Code section shall terminate jurisdiction in the transferring court and confer jurisdiction in the receiving court.

Comments

This provision has been revised for clarity but remains otherwise unchanged.

15-11-128. Commitment to penal institution prohibited

A child shall not be committed to a penal institution or other facility used primarily for the execution of sentences of persons convicted of a crime.

Comments

The original language in the second half of O.C.G.A. § 15-11-50 was stricken in accordance with the repeal of O.C.G.A. § 15-11-62 allowing for commitment of a child to the Department of Corrections. Juvenile populations housed in adult institutions are particularly vulnerable to depression, sexual exploitation, and physical assault. Coalition for Juvenile Justice, See Childhood on Trial: The Failure of Trying and Sentencing Youth in Adult Criminal Court, 45-47 (2005); Bureau of Justice Assistance, Juveniles in Adult Prisons and Jails (2000). Even when a child is housed in a separate facility specifically designated for youth, true separation of the populations is often not achieved placing children housed in these facilities at further risk. Childhood on Trial, at 45-46.; See also Tina Susman, Growing Up in Jail: Law Requires Juveniles to Face Adult Penalties and Prison, Newsday, Aug. 20, 2002; Inside Alto: Fighting to Survive Is the Way of Life at Alto, Newsday, Aug. 20, 2002; Stephanie Guilloud, Juvenile Justice in Georgia: SB 440 and the Criminalization of Youth, 11 As the South Goes… (Spring 2003). In addition, this practice has proved to be costly and ineffective; there is no evidence of a deterrent effect and adult corrections are unable to provide the requisite juvenile services. See Campaign For Youth Justice, Jailing Juveniles: The Dangers of Incarcerating Youth in Adult Jails in America (2007).

15-11-129. Appeals

(a) In all cases of final judgments of the juvenile court, appeals shall be taken to the Court of Appeals or the Supreme Court in the same manner as appeals from the superior court. However, no such judgment or order shall be superseded except in the discretion of the trial court; rather, the judgment or order of the court shall stand until reversed or modified by the reviewing court.

(b) Appeals of final judgments made under articles 3 and 4 of this chapter shall be given precedence on the calendar of the appellate court over all other matters.

Comments

O.C.G.A. § 5-6-35(12) already permits appeal by application in termination of parental rights cases but this provision adds subsection (b) to include language emphasizing the significance of ensuring quick and timely appeals in deprivation and termination of parental rights cases. These cases often involve children in unstable situations and the goal is to ensure permanency is reached without unnecessary delays in the appellate process. See Anne L. Keith and Carol R. Flango, Expediting Dependency Appeals: Strategies to Reduce Delays, Nat’l Ctr. for State Courts (2002); See also National Council of Juvenile and Family Court Judges, Resource Guidelines: Improving Court Practice in Child Abuse & Neglect Cases, 88-89 (1995)(advocating the need for appellate courts to prioritize dependency cases on their calendars to ensure speedy resolutions).

While many states provide for expedited appeals in court rules, subsection (b) is modeled after the few states that explicitly state this policy by statute. See Ala. Code § 12-15-120 (stating that appeals from dependency cases “shall take precedence over all other business of the court to which the appeal is taken.”) See also Colo. Rev. Stat. § 19-2-903 (2007)(stating that “[a]ppeals shall be advanced on the calendar of the appellate court and shall be decided at the earliest practical time”); Tex. Fam. Code Ann. § 56.01(h) (West 2007)(stating that appeals of juvenile orders in which a parent loses custody of a child have precedence over all other cases).

15-11-130. Expenses charged to county; payment by parent on court order

(a) The following expenses shall be a charge upon the funds of the county upon certification thereof by the court:

(1) The cost of medical and other examinations and treatment of a child ordered by the court;

(2) The cost of care and support of a child committed by the court to the legal custody of an individual or a public or private agency other than the Department of Juvenile Justice, but the court may order supplemental payments, if such are necessary or desirable for services;

(3) Reasonable compensation for services and related expenses of counsel appointed by the court, when appointed by the court to represent the child and when appointed by the court to conduct the proceedings;

(4) Reasonable compensation for a guardian ad litem;

(5) The expense of service of summons, notices, and subpoenas, travel expenses of witnesses, transportation, subsistence, and detention of the child, and other like expenses incurred in the proceedings under this chapter; and

(6) The cost of counseling and counsel and advice required or provided under the provisions of Code sections 15-11-346 and 15-11-750.

(b) If, after due notice to the parent or other person legally obligated to care for and support the child and after affording them an opportunity to be heard, the court finds that they are financially able to pay all or part of the costs and expenses stated in subsection (a) of this Code section, the court may order them to pay the same and prescribe the manner of payment. In addition, the court may order payment from the parent or other legally obligated person to reimburse all or part of the costs and expenses of the Department of Human Resources for treatment, care, and support of the child. Unless otherwise ordered, payment shall be made to the clerk of the court for remittance to the person or agency, including the Department of Human Resources, to whom compensation is due or, if the costs and expenses have been paid by the county, to the appropriate officer of the county.

Comments

This provision has been revised for clarity but remains otherwise unchanged.

15-11-131. Supervision fees

(a) The court may collect supervision fees from those who are placed under the court’s formal or informal supervision in order that the court may use those fees to expand the provision of the following types of ancillary services:

(1) Housing in nonsecure facilities;

(2) Educational services, tutorial services, or both;

(3) Counseling and diagnostic testing;

(4) Mediation;

(5) Transportation to and from court ordered services;

(6) Truancy intervention services;

(7) Restitution programs;

(8) Job development or work experience programs; and

(9) Community service.

(b) The juvenile court may order each delinquent child or child in need of services who receives supervision to pay to the clerk of the court:

(1) An initial court supervision user's fee of not less than $10.00 nor more than $200.00; and

(2) A court supervision user's fee of not less than $2.00 nor more than $30.00 for each month that the child receives supervision. The child and each parent, guardian, or legal custodian of the child may be jointly and severally liable for the payment of the fee and shall be subject to the enforcement procedure stated in Code section 15-11-130(b). The judge shall provide that any such fees shall be imposed on such terms and conditions as shall assure that the funds for the payment are from moneys earned by the child. All moneys collected by the clerk under this subsection shall be transferred to the county treasurer, or such other county official or employee who performs duties previously performed by the treasurer, who shall deposit the moneys into a county supplemental juvenile services fund. The governing authority of the county shall appropriate moneys from the county supplemental juvenile services fund to the juvenile court for the court's discretionary use in providing supplemental community based services described in subsection (a) to child offenders. These funds shall be administered by the county and the court may draw upon them by submitting invoices to the county. The county supplemental juvenile services fund may be used only for these services. Any moneys remaining in the fund at the end of the county fiscal year shall not revert to any other fund but shall continue in the county supplemental juvenile services fund. The county supplemental juvenile services fund may not be used to replace other funding of services.

(c) For the purpose of this Code section, the term "guardian" or "legal custodian" shall not be interpreted or construed to include the Department of Human Resources or the Department of Juvenile Justice.

Comments

This provision was revised for clarity and to include community service as an ancillary service but remains otherwise unchanged.

15-11-132. Community based risk reduction programs

(a) Any court may order the establishment of a community based risk reduction program, within the geographical jurisdiction of the court, for the purpose of utilizing available community resources in assessment and intervention in cases of delinquency, deprivation, or children in need of services. Subject to the procedures, requirements, and supervision established in the order creating such program, any individual and any public or private agency or entity may participate in the program.

(b) As part of a risk reduction program, a court may implement or adopt an early intervention program designed to identify children and families who are at risk of becoming involved with the court. Such early intervention program shall be for the purpose of developing and implementing intervention actions or plans to divert the children and their families from becoming involved in future cases in the court. The court’s involvement shall be for the limited purpose of facilitating the development of the program and for the purpose of protecting the confidentiality of the children and families participating in the program.

(c) As part of an early intervention program, the court may enter into protocol agreements with school systems within the court's jurisdiction, the county Division of Family and Children Services, the county Department of Health, any state or local department or agency, any mental health agency or institution, local physicians or health care providers, licensed counselors and social workers, and any other social service, charitable, or other entity or any other agency or individual providing educational or treatment services to families and children within the jurisdiction of the court. Such protocol agreements shall authorize the exchange of confidential information in the same manner and subject to the same restrictions, conditions, and penalties as provided in Code section 15-11-134.

(d) When any agency or entity participating in a protocol agreement identifies a child who is at risk of becoming delinquent, deprived, or a child in need of services, the agency or entity shall refer the case to a multiagency staffing panel. The panel shall develop a multiagency intervention plan for the child. The child or the parent, or both, may be present during any review of the child's case by the panel. The parent, guardian, or legal custodian of the child shall be notified of the plan by the agency making the referral or by a person or entity designated by the panel to administer the program. The staff of the court, but not the judge, shall work with the other agencies involved to educate the parent and the child on the importance of following the plan and on the consequences if either the parent or the child is referred to the court. If an intervention plan is developed for a child and the parent or parents or guardian consents to the plan, the failure to comply with the plan or any portion thereof may constitute the basis for a referral to the Division of Family and Children Services.

Comments

This provision, along with P.M.C. §§ 15-11-133 and 15-11-134, are all part of O.C.G.A. § 15-11-10 Community based risk reduction programs. They have been divided into three separate provisions and otherwise revised for clarity. The substance of the O.C.G.A. § 15-11-10 remains the same.

15-11-133. Community based risk reduction programs; assessments and case plans

(a) In any jurisdiction within which a risk reduction program has been established, when a child comes before the court for disposition, the court may order that an assessment be made of the child and the circumstances resulting in the child being before the court.

(b) The assessment shall be developed by assembling existing information and individualized plans of the agencies involved in providing services to the child and his or her family. If the assessment demonstrates a need for a case plan, the court may order that a case plan be developed by a panel representing community agencies as authorized by the court. The case plan shall contain the proposed actions and alternatives for the proper and efficient use of available community resources to assist the child.

(c) The case plan shall be served on the child and the child's parent, guardian, or legal custodian. The case plan shall also include a cover letter which contains the following information:

(1) Sources to explain the process, procedures, and penalties for not responding to the court order in the prescribed time period; and

(2) The deadline for responding to the court order and stating objections to the case plan or any portion thereof is ten days from the date of service.

(d) If no objection is made or if the child, parent, guardian, or legal custodian consents to the case plan, the case plan shall be incorporated into and made a part of the disposition order entered in the case by entry of a supplemental order. The case plan may be modified by the court at any time the child is under the jurisdiction of the court.

(e) If a child or a parent, guardian, or legal custodian objects to the case plan, the court shall conduct a hearing. The court may decline to adopt the case plan or may confirm or modify the case plan. In implementing a case plan, the court shall have available all of the protective powers set forth in Code section 15-11-123, without the necessity of a show cause hearing, unless objection is made to the case plan.

15-11-134. Community based risk reduction programs; information sharing

(a) Notwithstanding any provision contained in this chapter, in this Code, or in any rule or regulation adopted by any department, board, or agency of the state to the contrary, the court and any individual, public or private agency, or other entity participating in a community based risk reduction program may exchange, as necessary, information, medical records, school records, records of adjudication, treatment records, and any other records or information which may aid in the assessment of and intervention with the children and families in the program. Such information shall be used by such individuals and agencies only for the purposes provided in these code sections and as authorized by the court for the purpose of implementing the case plan and for the purposes permitted under each agency's own rules and regulations. Such information shall not be released to any other individual or agency except as may be necessary to effect the appropriate treatment or intervention as provided in the case plan. Such information shall otherwise remain confidential and the court may punish any violations of confidentiality as contempt of court.

(b) Any person who authorizes or permits any unauthorized person or agency to have access to confidential records or reports of child abuse shall be guilty of a misdemeanor. Any person who knowingly and under false pretenses obtains or attempts to obtain confidential records or reports of child abuse or information contained therein shall be guilty of a misdemeanor.

(c) Confidential records or reports of child abuse and information obtained from such records may not be made a part of any record which is open to the public except that a district attorney may use and make public that record or information in the course of any criminal prosecution for any offense which constitutes or results from child abuse.

(d) This code section shall not abridge the provisions relating to confidentiality of patient or client records and shall not serve to destroy or in any way abridge the confidential or privileged character thereof.

Comments

This provision was further revised to eliminate the numerous cross-references that clutter these paragraphs. Eliminating these cross-references also alleviates the risk of inadvertently leaving a statute out in the listing. Records or reports of child abuse are declared confidential by O.C.G.A. § 49-5-41 which lists the individuals or agencies allowed access to these records and O.C.G.A. § 19-7-5 is Georgia’s mandatory reporting statute. O.C.G.A. §§ 37-3-166, 37-4-125, and 37-7-166 relate to the confidentiality of patient or client records.