(1) To assist and protect children whose physical or mental health and welfare is substantially at risk of harm by abuse, neglect, or exploitation and who may be further threatened by the conduct of others, by providing for the resolution of deprivation proceedings in juvenile court;

(2) To ensure that deprivation proceedings are conducted expeditiously to avoid delays in permanency for children;

(3) To provide the greatest protection as promptly as possible for children; and

(4) To ensure that the health, safety, and best interests of the child be the paramount concern in all deprivation proceedings.

Comments

This is a new provision intended to highlight the overriding principles in deprivation proceedings. All states have general purpose statements but a few states have purpose statements specific to the most significant substantive areas such as child abuse and neglect or delinquency. This provision is modeled after Louisiana Children’s Code Art. 601. See also 10 Okla. Rev. Stat. Ann. § 7001-1.2; New York McKinney’s Family Court Act § 1011.

15-11-302. Definitions

(1) “Abandonment” or “Abandoned” means any conduct on the part of the parent, guardian or other legal custodian showing an intent to forego parental duties or relinquish parental claims. The intent may be evidenced by:

(A) Failure, for a period of at least 6 months, to communicate meaningfully with the child;

(B) Failure, for a period of at least 6 months, to maintain regular visitation with the child;

(D) Failure, for a period of at least 6 months, to participate in any plan or program designed to reunite the parent or other legal custodian with the child;

(E) Leaving the child without affording means of identifying the child or the parent, guardian, or legal custodian and the identity of the parent, guardian, or legal custodian cannot be ascertained despite diligent searching and he or she has not come forward to claim the child within three months following the finding of the child;

(F) Being absent from the home for a period of time that creates a substantial risk of serious harm to a child left in the home;

(G) Failure to respond to notice of child protective proceedings; or

(H) Any other conduct indicating an intent to forego parental duties or relinquish parental claims.

(2) “Abuse” means:

(A) Any nonaccidental physical injury, or physical injury which is at variance with the history given of it, suffered by a child as the result of the acts or omissions of a person responsible for the care of the child;

(B) Emotional abuse;

(D) The commission of an act of family violence as defined in Code section 19-13-1 in the presence of a child. An act includes a single act, multiple acts, or a continuing course of conduct. Presence means physically present or able to see or hear.

(3) “Affiliate court appointed special advocate program” means a locally-operated program operating with the approval of the local juvenile court which screens, trains, and supervises volunteers to advocate for the best interests of an abused and neglected child in deprivation proceedings.

(4) “Aggravated circumstances” means the parent has:

(A) Abandoned an infant;

(B) Attempted, conspired to attempt, or has subjected the child or a sibling of the child to great bodily harm;

(D) Committed the murder of the other parent of the child.

(5) “Case plan” means the plan which is designed to achieve placement in the most appropriate, least restrictive, and most family-like setting available and in close proximity to the parent's home, consistent with the best interests and special needs of the child, and which considers the placement's proximity to the school in which the child is enrolled at the time of placement. The plan shall be developed by the department or agency involved and the child's parent or guardian. The plan shall include but not be limited to all of the following:

(A) A description of the circumstances that resulted in the child being placed under the jurisdiction of the court and in shelter care;

(B) An assessment of the child's and family's strengths and needs and the type of placement best equipped to meet those needs;

(C) A description of the type of home or institution in which the child is to be placed, including a discussion of the safety and appropriateness of the placement;

(D) Specific time-limited goals and related activities designed to enable the safe return of the child to his or her home, or in the event that return to his or her home is not possible, activities designed to result in permanent placement or emancipation.

(E) Assignment of specific responsibility for accomplishing the planned activities;

(F) The projected date of completion of the case plan objectives;

(G) The date time-limited services will be terminated;

(H) A schedule of visits between the child and his or her family and an explanation if no visits are made;

(I) When placement is made in a foster family home, group home, or other child care institution that is either a substantial distance from the home of the child's parent or legal guardian or out-of-state, the case plan shall specify the reasons why the placement is the most appropriate and is in the best interests of the child;

(J) When an out-of-state group home placement is recommended or made, the case plan shall comply with the Interstate Compact on the Placement of Children. In addition, documentation of the recommendation of the multidisciplinary team and the rationale for this particular placement shall be included. The case plan shall also address what in-state services or facilities were used or considered and why they were not recommended;

(K) If applicable, a summary of efforts made to place siblings together, unless it has been determined that placement together is not in the best interests of one or more siblings;

(L) An account of health and education information about the child, school records, immunizations, known medical problems, any known medications the child may be taking, names and addresses of the child's health and educational providers; the child's grade level performance; assurances that the child's placement in foster care takes into account proximity to the school in which the child was enrolled at the time of placement; and other relevant health and educational information;

(M) A recommendation for a permanent plan for the child. If, after considering reunification, adoptive placement, or permanent guardianship the Division recommends placement in another planned permanent living arrangement, the case plan shall include documentation of a compelling reason or reasons why termination of parental rights is not in the child's best interests. For purposes of this subdivision, a "compelling reason" shall have the same meaning as in Code section 15-11-357(b)(2);

(N) A statement that the parent, guardian, or legal custodian and the child have had an opportunity to participate in the development of the case plan, to review the case plan, to sign the case plan, and to receive a copy of the plan, or an explanation about why he or she was not able to participate or sign the case plan;

(O) For a child in out-of-home care who is 14 years of age or older, a written description of the programs and services which will help the child prepare for the transition from foster care to independent living; and

(P) The identity of the person within the Division or other agency who is directly responsible for ensuring that the plan is implemented.

(6) “Court appointed special advocate” or “CASA” means a community volunteer who:

(A) Has been screened and trained regarding deprivation, child development, and juvenile court proceedings;

(B) Has met all the requirements of an affiliate court appointed special advocate program;

(D) Has been appointed as a guardian ad litem by the court in a deprivation proceeding.

(7) “Date the child is considered to have entered foster care” means the date of the first judicial finding that the child has been subjected to child abuse or neglect, or the date that is 60 days after the date on which the child is removed from his or her home, whichever is earlier.

(8) “Deprived child” means a child who:

(A) Has been abused or neglected:

(B) Has been placed for care or adoption in violation of law; or

(9) “Developmental level” is a term addressing the ability to understand and communicate, taking into account such factors as age, mental capacity, level of education, cultural background, and degree of language acquisition.

(10) “Division” means the “Division of Family and Children Services of the Department of Human Resources.”

(11) “Department,” as used in this article, means the Department of Human Resources.

(12) “Emotional abuse” means any mental injury to a child's intellectual or psychological capacity as evidenced by an observable and substantial impairment in the child's ability to function within the child's normal range of performance and behavior as the result of the acts or omissions of a person responsible for the care of the child, if the impairment is diagnosed and confirmed by a licensed physician or qualified mental health professional.

(13) “Guardian ad litem” means an individual, not functioning as an attorney, appointed to assist the court in determining the best interests of a child.

(14) “Guardianship order” means the court judgment that establishes a permanent guardianship and enumerates a permanent guardian's rights and responsibilities concerning the care, custody, and control of the child.

(15) “Neglect” means:

(A) The failure to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals;

(B) The abandonment of a child by his or her parent, guardian or other legal custodian; and

(16) “Other persons who have demonstrated an ongoing commitment to the child” includes but is not limited to:

(A) “Fictive kin,” meaning a person who is known to the child as a relative, but is not, in fact, related by blood or marriage to the child and with whom the child has resided or had significant contact;

(B) “Significant Other,” meaning a person who has established a parent-like relationship with the child and a spouse-like relationship with the parent of the child;

(C) “Other individuals,” including but not limited to, neighbors, teachers, scout masters, or parents of friends of the child and with whom the child has resided or had significant contact.

(17) “Permanency plan” means a specific written plan prepared by the Division designed to ensure that a child is reunified with his or her family or ensure that the child quickly attains a substitute long-term home when return to the child’s family is not possible or is not in the child’s best interests.

(18) “Permanent placement” means:

(A) Return of the legal custody of a child to the child’s parent;

(B) Placement of the child with an adoptive parent pursuant to a final order of adoption; or

(19) “Preliminary protective hearing” means the hearing held within 72 hours after a child is placed in shelter care.

(20) “Prenatal neglect” means exposure to chronic or severe use of alcohol or the unlawful use of any controlled substance, as defined by Code section 16-13-21, which results in:

(A) Symptoms of withdrawal in a newborn or the presence of a controlled substance or a metabolic thereof in the newborn’s body, blood, urine, or meconium that is not the result of medical treatment; or

(B) Observable and harmful effects in the newborn’s physical appearance or functioning.

(21) “Reasonably diligent search” means the efforts of the Division to identify and locate a parent whose identity or location is unknown, or a relative, or other person who has demonstrated an ongoing commitment to the child. The search must be initiated at the outset of a case under this article and shall be conducted throughout the duration of a case, when appropriate. A reasonably diligent search shall include at a minimum:

(A) Interviews with the child’s parent during the course of an investigation, while child protective services are provided, and while the child is in care;

(B) Interviews with the child;

(D) Interviews with any other persons who are likely to have information about the identity or location of the person being sought;

(E) Comprehensive database searches including, but not limited to, searches of employment, residence, utilities, Armed Forces, vehicle registration, child support enforcement, law enforcement, corrections records, and any other records likely to result in identifying and locating the person being sought;

(F) Appropriate inquiry during the course of hearings in the case;

(G) Any other reasonable means that are likely to identify relatives or other persons who have demonstrated an ongoing commitment to the child.

(22) "Reasonable efforts to finalize a permanency plan for the child" means due diligence and the provision of appropriate services by the Division to:

(A) Reunify the child with the parent, guardian, or legal custodian from whom the child was removed;

(B) Assess a noncustodial parent's ability to provide day-to-day care for the child and, when appropriate, provide services necessary to enable the noncustodial parent to safely provide care;

(D) When parental rights have not been terminated, facilitate and arrange for appropriate visits with parents and siblings, consistent with the safety and well-being of the child; and

(E) When the child cannot return to the parent, guardian, or legal custodian from whom the child was removed, to plan for and finalize a safe and legally permanent alternative home for the child, including if appropriate, through an interstate placement, and preferably through adoption or guardianship of the child.

(23) “Relative” means a person related to the child by blood, marriage, or adoption, including the spouse of any of those persons even if the marriage was terminated by death or dissolution.

(24) “Sibling” means a child related to another person by blood, adoption, or affinity through a common legal or biological parent.

(25) “Sexual abuse” means a person's employing, using, persuading, inducing, enticing, or coercing any child who is not that person's spouse to engage in any act which involves:

(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(B) Bestiality;

(D) Lewd exhibition of the genitals or pubic area of any person;

(E) Flagellation or torture by or upon a person who is nude;

(F) Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;

(G) Physical contact in an act of apparent sexual stimulation or gratification with any person's clothed or unclothed genitals, pubic area, or buttocks or with a female's clothed or unclothed breasts;

(H) Defecation or urination for the purpose of sexual stimulation; or

(I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.

"Sexual abuse" shall not include consensual sex acts involving persons of the opposite sex when the sex acts are between children or between a child and an adult who is not more than three years older than the child. This definition shall not be deemed or construed to repeal any law concerning the age or capacity to consent.

(26) "Sexual exploitation" means conduct by a child's parent, guardian, or custodian who allows, permits, encourages, or requires that child to engage in:

(A) Prostitution, as defined in Code section 16-6-9; or

(B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, as defined in Code section 16-12-100.

(27) "Shelter care" means:

(A) A licensed foster home or home approved by the court which may be a public or private home or the home of the noncustodial parent or a relative; or

(B) A facility operated by a licensed child welfare agency.

Comments

This provision compiles definitions relevant to deprivation proceedings.

1. There are 18 states that include the definition of abandonment in their definitions of neglect while 13 states provide separate definitions for abandonment. Child Welfare Information Gateway, Definitions of Child Abuse and Neglect: Summary of State Laws 3 (current through Apr. 2007) http://www.childwelfare.gov/systemwide/laws_policies/statutes/defineall.pdf. The definition of abandonment in this provision is modeled after several states that provide separate definitions including Alaska, Maine, New York, and North Dakota. Alaska Stat. § 47.10.013; Me. Rev. Stat. Ann. tit. 22 § 4002(1-A); New York Soc. Serv. Law § 384-b(5)(a); N.D. Cent. Code § 27-20-02(1).

2. Paragraph 2 includes a revision of the term “abuse” to include a more complete definition of physical injury and to include emotional abuse which is later defined in paragraph 12. The revised term also includes instances of domestic violence in the presence of a child. See Mark Ells et al., Unraveling the Labyrinth: A Proposed Revision of the Nebraska Juvenile Code, 82 Neb. L. Rev. 4 1126, 1137-1141 n. 4 (2004)(explaining the reasoning behind and the implications of expanding Nebraska’s definition of abuse to include exposure to domestic violence).

3. This term is current O.C.G.A. § 15-11-9.1 and is revised for clarity and consistency with the rest of the proposed model code but remains substantively unchanged.

4. Reasonable efforts are not required when the court determines that aggravated circumstances exist. 42 U.S.C. § 671(a)(15)(D). Federal law does not define aggravated circumstances beyond the vague terms of torture, chronic, or sexual abuse and it is up to individual states to define the term. 65 Fed. Reg. 4020-01, 4053 (2000). The ABA strongly recommends further defining this term for clarity. See Making Sense of the ASFA Regulations, at 55. This definition is drawn from the handful of states that more precisely define “aggravated circumstances” including Arkansas, New Mexico, and North Dakota. Ark. Code Ann. § 9-27-341(ix)(a)(3B); N.M. Stat. Ann. § 32A-4-2(C); N.D. Cent. Code 27-20-02(3). Paragraph 4(D) is taken from current O.C.G.A. § 15-11-58(a)(4)(B)(i) and placed within the definition of aggravated circumstances to preserve the current use of the term “committed” which allows for findings of fact in a civil proceeding without having to wait for a criminal conviction. Federal regulations state that reasonable efforts need not be made and that a termination of parental rights petition must be filed if a parent has been “convicted” of certain crimes. 45 CFR §§ 1356.21(b)(3)(ii), (i)(1)(iii).

5. This term is modeled after California, Florida, Oklahoma, Texas, and Utah. Cal. Welf. & Inst. Code § 16501.1; Fla. Stat. Ann. § 39.601; Okla. Stat. tit. 10 § 7003-5.3; Tex. Fam. Code Ann. § 263.102; Utah Code Ann. § 62A-4a-205.

6. This term is current O.C.G.A. § 15-11-9.1 and remains unchanged.

7. This term is taken from O.C.G.A. § 15-11-58(k) and remains unchanged.

8. This term is taken from O.C.G.A. § 15-11-2(8) and is revised to incorporate the expanded definitions of abuse and neglect. The language regarding treatment by spiritual means has been moved to a stand-alone provision and is now P.M.C. § 15-11-312.

9. This term has been included in accordance with the new provisions on right to counsel in deprivation proceedings. Its source is the Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act. See National Conference of Commissioners on Uniform State Laws, Uniform Representation Act of Children in Abuse, Neglect, and Custody Proceedings Act, Section 2(6) (last revised or amended in 2007) available at http://www.law.upenn.edu/bll/archives/ulc/rarccda/2007_final.htm [hereinafter Uniform Representation Act].

10. This term is included for clarity.

11. This term is included for clarity.

12. Georgia and Washington are the only two states that do not include emotional maltreatment in their definitions of abuse. Child Welfare Information Gateway, Definitions of Child Abuse and Neglect: Summary of State Laws 3 (Children’s Bureau/ACYF current through April 2007) http://www.childwelfare.gov/systemwide/laws_policies/statutes/defineall.pdf. The addition of this term expands the definition of abuse to include emotional abuse and is modeled after Iowa Code Ann. 232.68(2)(b).

13. This term has been included in accordance with the new provisions on right to counsel in deprivation proceedings. It is modeled after the Uniform Representation Act, Section 2(2).

14. This term has been added in accordance with the inclusion of the permanent guardianship provisions in this article. It is drawn from the District of Columbia’s permanent guardianship statute. D.C. Code Ann. § 16-2382(2) (2007).

15. This term is drawn in part from the definition of a deprived child in O.C.G.A. § 15-11-2(8). It has been made its own definitional term for clarity and is expanded to include prenatal neglect. The Keeping Children Safe and Families Act of 2003 amended The Child Abuse Prevention and Treatment Act by requiring states to amend their reporting laws to ensure procedures are in place to address the needs of infants born experiencing complications from prenatal drug exposure. 42 U.S.C. 5101 et seq.; Child Welfare Information Gateway, Prenatal Drug Use as Child Abuse: Summary of State Laws¸2 (Children’s Bureau/ACYF current through August 2006) http://www.childwelfare.gov/systemwide/laws_policies/statutes/drugexposedall.pdf. Accordingly, the definition of neglect is revised for jurisdictional purposes. 14 other states include prenatal neglect in their definition of neglect: Arkansas, Colorado, Florida, Illinois, Indiana, Louisiana, Massachusetts, Minnesota, North Dakota, South Carolina, South Dakota, Texas, Virginia, and Wisconsin.

16. This term refers to the relative search provision originally found in O.C.G.A. § 15-11-55(a)(2). The relative search provision was made a stand-alone provision and is now P.M.C. § 15-11-345. This definition was drawn from the Guide to the Implementation of Senate Bill 236. SB 236 Workgroup, Guide to the Implementation of Senate Bill 236 14 (Nov. 2003) http://www.georgiacourts.org/councils/cjcj/PDF/Guide%20to%20SB236.pdf.

17. This term has been included for clarity and is modeled after Wisconsin Code Ann. § 48.38(1)(b).

18. This term has been included for clarity and includes the new permanent placement options resulting from the addition of the permanent guardianship statute and the removal of placement with a fit and willing relative as a permanency option.

19. This term has been included for clarity.

20. This term is modeled after Louisiana Children’s Code Art. 603(16.1). See also Comment # 15 above.

21. This term is modeled after Florida, Missouri, and includes recommendations from the SB 236 Workgroup. Fla. Stat. Ann. § 39.01(23); Mo. Ann. Stat. §210.127(2); Guide to the Implementation of Senate Bill 236, 15.

22. This term appears in P.M.C. §§ 15-11-355 and 15-11-356 and is modeled after Minnesota Stat. Ann. 260.012(e).

23. This term is modeled after California Welf. & Inst. Code § 366.21(k).

24. This term reflects a broad definition of a sibling and is modeled after California Welf. & Inst. Code § 362.1(c). This definition includes half-siblings which are already recognized under Georgia intestate laws. See O.C.G.A. § 53-2-1(b)(2) (“The half-blood, whether on the maternal or paternal side, are considered equally with the whole-blood, so that children of any common parent are treated as brothers and sisters to each other.”). Washington also broadly defines siblings. See Wash. Rev. Code. § 13.34.030(14).

25. This term is current O.C.G.A. § 19-15-1(11) and remains unchanged. It is included to avoid a cross-reference.

26. This term is current O.C.G.A. § 19-15-1(12) and remains unchanged. It is included to avoid a cross-reference.

27. This term is current O.C.G.A. § 15-11-2(10.5) and remains unchanged.

15-11-303. Entry orders

(a) If in the course of an investigation of a report of abuse or neglect, admission cannot be obtained to the home, school, or any other place where the child may be found, the investigator shall apply to the court for an order authorizing an entry for the purposes of interviewing the child and other members of the household, for the visual inspection of the child, and for an inspection of the home to the extent such an inspection is essential to the investigation of specific allegations. The affidavit of the applicant must demonstrate:

(1) That reasonable suspicion exists that the child has been abused or neglected; and

(2) That entry has been denied.

(b) The court may grant such an order on an ex parte application and may also order a law enforcement officer to accompany the applicant in executing the entry order.

Comments

This is a new provision modeled after Louisiana Children’s Code Art. 613. Fourth Amendment issues arise because this provision authorizes the issuance of an entry order (a warrant) on less than probable cause. However, in the context of a child protection hearing by an administrative agency, the Supreme Court would call for a balancing between the rights of parent-suspects to be free from invasions by state agents and the state’s parens patriae concern to ensure the safety of children who have been reported as endangered. See Illinois v. Lidster, 540 U.S. 419 (2004); New Jersey v. T.L.O., 469 U.S. 325 (1985). Furthermore, the narrow scope of the authorized investigation under this section distinguishes it from a search warrant. This section permits only entry, upon refusal, to interview family members, for visual inspection of the child, and a limited inspection of the household. In contrast, a search warrant authorizes an extremely intrusive and wide-ranging search limited only by the objects of the search. See, e.g., Horton v. California, 496 U.S. 128 (1990). For a careful analysis and conclusion of constitutionality of such entry orders, see Laure Culbertson, Article 613 of the Louisiana Children’s Code: Child Abuse Investigations in the Twilight of the Fourth Amendment, 55 La. L. Rev. 361 (1994).

15-11-304. Evaluation orders

(a) If necessary, the investigator of a report of child abuse and neglect may apply to the court for certain medical examinations and evaluations of the child or other children in the household.

(b) Upon a showing of good cause in an affidavit executed by the applicant, the court may order a physical examination and evaluation of the child or other children in the household by a physician. The order may be granted ex parte.

(c) Upon a showing of good cause in an affidavit executed by the applicant and after a hearing, the court may order a psychological or psychiatric examination and evaluation of the child or other children in the household by a psychologist or psychiatrist.

(d) Upon a showing of good cause in an affidavit executed by the applicant and after a hearing, the court may order a physical, psychological, or psychiatric examination of the parent, guardian, or legal custodian.

Comments

This is a new provision modeled after Louisiana Children’s Code Art. 614. This section continues the authority of the juvenile court to order evaluation absent parental consent or an emergency. See O.C.G.A. § 15-11-12(b)(P.M.C. § 15-11-121). Subsections (b) and (c) permit the court to order an evaluation of any child in the household under investigation in order to ensure the safety of all children when one is at risk. The distinction between these two paragraphs is that a hearing is required before a psychological or psychiatric evaluation may be ordered, due to the fact that endangerment of the mental or emotional health of a child involves consideration of more subtle indicators and thus, a higher risk of improper assessment than an diagnosis of physical symptoms. Subsection (d) authorizes the court to order medical evaluations of a parent or caretaker after hearing evidence. As a general expression of public policy, Code section 9-11-26 of the Georgia Code of Civil Procedure authorizes the examination of a party in civil litigation in which the mental or physical condition of the individual sought to be examined is in controversy. In Baltimore City Dept. Social Services v. Bouknight, 493 U.S. 549 (1990), the Supreme Court held that a child protection investigation can override a Fifth Amendment claim by a parent.

15-11-305. Deprivation case timeline

The following timeline is applicable to all deprivation cases.

(a) The preliminary protective hearing shall be held promptly and no later than 72 hours after the child is placed in shelter care, provided that, if the 72 hour time period expires on a Saturday, Sunday, or legal holiday, the hearing shall be held on the next day which is not a Saturday, Sunday, or legal holiday.

(b) If the child is released from shelter care at the preliminary protective hearing, the following timelines apply:

(1) The petition shall be filed within 30 days of the child’s release.

(2) Summons shall be served at least 72 hours before the adjudication hearing.

(3) The adjudication hearing shall be held no later than 60 days after the filing of the petition.

(4) If not held in conjunction with the adjudication hearing, the disposition hearing shall be held and completed within 30 days after the conclusion of the adjudication hearing.

(1) The petition shall be filed within five days of the preliminary protective hearing.

(2) Summons shall be served at least 72 hours before the adjudication hearing

(3) The adjudication hearing shall be held no later than 10 days after the filing of the petition

(4) The Division shall submit to the court its written report within 30 days of the date a child who is placed in the custody of the Division is removed from the home and at each subsequent review of the disposition order. If the Division’s report does not contain a plan for reunification services, the non-reunification hearing shall be held no later than 30 days from the time the report is filed.

(5) If not held in conjunction with the adjudication hearing, the disposition hearing shall be held and completed within 30 days after the conclusion of the adjudication hearing.

(d) An initial periodic review hearing shall be held within three months of the entry of the disposition order but no later than six months following the child’s placement. Following such initial review, additional periodic reviews shall be held at three-month intervals.

(e) Permanency planning hearings shall be held no later than 30 days after the Division has submitted a written report to the court which does not provide a plan for reunification services, or

(1) For children under 7 years of age at the time a petition is filed, no later than 9 months after the child is considered to have entered foster care, whichever comes first. Thereafter a permanency planning hearing shall be held every 6 months while the child continues in the Division’s custody, or more frequently as deemed necessary by the court until the court determines that the child’s permanency plan and goal have been achieved; and

(2) For children 7 years of age and older at the time a petition is filed, no later than 12 months after the child is considered to have entered foster care, whichever comes first. Thereafter a permanency planning hearing shall be held every 6 months while the child continues in the Division’s custody, or more frequently as deemed necessary by the court until the court determines that the child’s permanency plan and goal have been achieved.

(f) A supplemental order of the court adopting a child’s permanency plan must be entered within 30 days after the court has determined that reunification efforts need not be made by the Division.

Comments

This is a new provision included to achieve one of the main goals of the revision project. The intent was to create a quick reference that users can easily turn to for basic procedural information.

15-11-306. Right to Counsel

(a) The child and any other party to a proceeding under this article shall have the right to qualified and independent counsel at all stages of the proceedings under this article.

(b) The court shall appoint counsel for the child identified in the petition as the subject of the deprivation proceeding. The appointment shall be made as soon as practicable to ensure adequate representation of the child and, in any event, before the first court hearing that may substantially affect the interests of the child. If counsel and a guardian ad litem have previously been appointed for the child in a proceeding under this chapter, the court, when possible, shall appoint the same counsel and guardian ad litem.

(c) Unless excused by the court, an attorney appointed to represent the child in a deprivation proceeding shall continue the representation in any subsequent appeals.

(d) Neither the child nor a representative of the child may waive the right to counsel in a deprivation proceeding.

(e) A party shall be informed of his or her right to counsel prior to the adjudication hearing and prior to a hearing at which a party could be subjected to the loss of residual parental rights. A party shall be given an opportunity to:

(1) Obtain and employ counsel of the party’s own choice; or

(2) To obtain court-appointed counsel if the court determines that the party is indigent; or

(3) Waive the right to representation by counsel.

Comments

A child has a constitutional right to counsel in deprivation proceedings. Kenny A. ex rel. Winn v. Perdue, 356 F. Supp.2d 1353 (N.D. Ga. 2005). However, the role counsel plays and the model of representation that should be followed remains unsettled. The ABA and the National Association of Counsel for Children (“NACC”) have well-established standards for the representation of children. The ABA’s standards encourage a traditional attorney-client model with the attorney serving as the child’s zealous advocate. American Bar Ass’n, Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1995) http://www.afccnet.org/pdfs/AbuseNeglectStandards.pdf.

While the NACC standards also call for an attorney in a traditional role, the NACC’s revised version of the ABA’s standards allow for substitution of judgment when necessary. National Ass’n of Counsel for Children, Am. Bar Ass’n Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (NACC Revised Version) (1997) available at http://www.naccchildlaw.org/training/standards.html; See also David Katner et al., Nat’l Ass’n of Counsel for Children, NACC Recommendations for Representation of Children in Abuse and Neglect Cases (2001). Still others advocate different models of representation. See e.g., Mich. Comp. Laws §§ 712A.13a(1)(b), 712A.17(d)(creating the “two distinct roles” model which establishes the role of an attorney [best interests or traditional] based on the age of the child); National Conference of Comm’rs on Unif. State Laws, Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act (last revised or amended in 2007) available at http://www.law.upenn.edu/bll/archives/ulc/rarccda/2007_final.pdf (allowing the court to determine at the outset of a case whether to appoint a traditional attorney or a best interests attorney). For a detailed summary and analysis of the efforts to identify an appropriate model of representation for children see Donald N. Duquette and Marvin Ventrell, Nat’l Ass’n of Counsel for Children, The Role and Duties of the Child’s Lawyer, Child Welfare Law and Practice, 493-513 (Marvin Ventrell & Donald N. Duquette eds., 2005).

The right to counsel model in the following provisions requires the mandatory appointment of a child’s attorney serving as a zealous advocate, and when appropriate, the appointment of a lay guardian ad litem to assist in determining best interests. An attorney may not serve as a child’s attorney and guardian ad litem at the same time because of the inherent conflict. See National Conference of Comm’rs on Unif. State Laws, Uniform Representation Act, Section 9 cmt. at 26. The provisions governing the appointments of counsel and guardians ad litem can be found in P.M.C. §§ 15-11-306 through 15-11-311. They clarify the duties, rights, and responsibilities of both attorneys and guardians ad litem.

This provision is new and unambiguously codifies the child’s right to counsel. This provision also emphasizes that counsel must be independent and qualified in accordance with federal requirements. See 42 U.S.C. § 5106a(b)(2)(A)(xiii) (requiring that trained individuals be appointed as guardians). Subsection (c) serves to ensure the child receives continuous representation. See Whytni Kernodle Frederick and Deborah L. Sams, A Child’s Right to Counsel: First Star’s National Report Card on Legal Representation for Children (2006)(urging Georgia to require that appointed counsel serve through the appellate process).

15-11-307. Duties of a child’s attorney

(a) A child’s attorney owes to the child the duties imposed by the law of this state in an attorney-client relationship.

(b) The duties of a child’s attorney shall include but not be limited to:

(1) In a manner appropriate to the child’s developmental level, explaining the nature of the attorney-client relationship to the child, including the requirements of confidentiality;

(2) Participating in all proceedings under this code to the full extent necessary to represent the child;

(3) Advocating any objectives of representation expressed by the child unless they are prohibited by law or without factual foundation;

(4) Meeting with the child and ascertaining, in a manner appropriate to the child’s developmental level, the child’s needs, circumstances, and views;

(5) Consulting with any guardian ad litem appointed for the child;

(6) Investigating the facts relevant to the proceedings to the extent the child’s attorney considers appropriate, including interviewing persons with significant knowledge of the child’s history and condition and reviewing copies of relevant records;

(7) Providing counsel and advice to the child;

(8) Informing the child of the status of the proceedings and the opportunity to participate, and, if appropriate, facilitating the child’s participation in the proceedings;

(9) Reviewing and accepting or declining to accept any proposed stipulation for an order affecting the child and explaining to the court the basis for any opposition; and

(10) Taking action the attorney considers appropriate, encouraging settlement and the use of alternative forms of dispute resolution and participating in such processes to the extent permitted.

(c) If the child’s attorney determines that the child lacks the capacity or refuses to direct the attorney with respect to a particular issue, the attorney shall:

(1) Present to the court a position that the attorney determines will serve the child’s best interests if the position is not inconsistent with the child’s expressed objectives; or

(2) Request the appointment of a guardian ad litem.

(d) If, despite appropriate legal counseling, the child expresses objectives of representation that the attorney reasonably believes would place the child at risk of substantial harm, the attorney shall request the appointment of a guardian ad litem.

(e) A child’s attorney may not disclose the reasons for requesting a guardian ad litem except as permitted by the Georgia Rules of Professional Conduct.

Comments

This provision is new and is modeled after the National Conference of Comm’rs on Unif. State Laws, Uniform Representation Act, §§ 11 and 12. See also Mich. Comp. Laws. § 712A.17d.

15-11-308. Appointment of guardian ad litem

(a) The court shall appoint a guardian ad litem for the child identified in the petition as the subject of the deprivation proceeding:

(1) At the request of the child’s attorney; or

(2) Upon the court’s own motion if it determines that a guardian ad litem is necessary to assist the court in determining the best interests of the child.

(b) A party to the proceeding or the employee or representative of a party to the proceeding shall not be appointed as guardian ad litem.

(c) An attorney appointed as a guardian ad litem may only take those actions that may be taken by a guardian ad litem who is not an attorney.

(d) Before the appointment, a person appointed as a child’s guardian ad litem must have received training appropriate to the role that is administered or approved by the Office of the Child Advocate. For attorneys, this preappointment training shall be satisfied within their existing continuing legal education obligations and shall not require them to complete additional training hours in addition to those currently required by the State of Georgia. The Office of the Child Advocate shall exempt from the training requirement attorneys who have practiced as guardians ad litem in juvenile court deprivation proceedings for three or more years and, when such a determination is made by the court, have demonstrated a proficiency in child representation.

Comments

The Child Abuse and Prevention Act (“CAPTA”) requires the appointment of a guardian ad litem in every deprivation proceeding. 42 U.S.C. § 5106a(b)(2)(A)(xiii). Although the mandatory appointment of a child’s attorney will likely satisfy CAPTA’s requirement, there are instances in which a separate best interests determination will be necessary. This provision allows for the appointment of a guardian ad litem to make that determination and is drawn from the National Conference of Comm’rs on Unif. State Laws, Uniform Representation Act, § 5. This provision further clarifies that the guardian ad litem serves as a lay guardian even when he or she is an attorney. This provision does not conflict with the provision governing court appointed special advocates and the appointment of a CASA as a guardian ad litem is encouraged.

Subsection (d) is taken from O.C.G.A. § 15-11-9(b) and is revised to reflect the new counsel/guardian ad litem provisions of the proposed model code and to include minor stylistic revisions.

15-11-309. Guardian ad litem; powers and duties

(a) A guardian ad litem shall represent the child's best interests in the proceeding for which the guardian ad litem has been appointed.

(b) Unless excused by a court, a guardian ad litem appointed to represent a child's best interests shall continue the representation in any subsequent appeals.

(c) Unless a child's circumstances render the following duties and responsibilities unreasonable, a guardian ad litem shall at a minimum:

(1) In a manner appropriate to the child’s developmental level, meet with and interview the child prior to custody hearings, adjudication hearings, disposition hearings, judicial reviews and any other hearings scheduled in accordance with the provisions of this chapter;

(2) In a manner appropriate to the child’s developmental level, ascertain the child’s needs, circumstances, and views;

(3) Consult with the child’s attorney regarding the issues in the proceeding;

(4) Communicate with health care, mental health care and other professionals involved with the child's case;

(5) Review medical and psychological reports relating to the child and the respondents;

(6) Present the child’s expressed objectives to the court, if the child desires;

(7) Consider the child’s expressed objectives in the proceeding without being bound by them;

(8) Represent and protect the cultural needs of the child;

(9) Contact the child prior to any proposed change in the child's placement;

(10) Contact the child after changes in the child's placement;

(11) Attend citizen panel review hearings concerning the child and if unable to attend the hearings, forward to the panel a letter setting forth the child's status during the period since the last citizen panel review and include an assessment of the Division's permanency and treatment plans;

(12) Provide written reports to the court on the child’s best interests which shall include, but not be limited to, recommendations regarding placement of the child, updates on the child's adjustment to placement, the Division's and respondent's compliance with prior court orders and treatment plans, the child's degree of participation during visitations, and any other recommendations based on the best interests of the child;

(13) When appropriate, encourage settlement and the use of any alternative forms of dispute resolution and participate in such processes to the extent permitted.

(d) In the event of a change of venue, the original guardian ad litem shall, as soon as possible, communicate with the appointed guardian ad litem in the new venue and shall forward all pertinent information to the new guardian ad litem.

(e) A guardian ad litem shall receive notices, pleadings or other documents required to be provided to or served upon a party.

(f) A guardian ad litem shall not also serve as the child's attorney.

Comments

This provision is new and is modeled in part after South Carolina Code Ann. § 20-7-122 and the National Conference of Comm’rs on Unif. State Laws, Uniform Representation Act, § 14. Subsection (f) is modeled after Minnesota and New Mexico and reinforces the separate roles of a child’s attorney and his or her guardian ad litem. Minn. Stat. Ann. § 260C.163(Subd. 3d); N.M. Stat. Ann § 32A-1-7(I).

15-11-310. Court appointed special advocate (“CASA”)

(a) The court may appoint a court appointed special advocate (“CASA”) to act as guardian ad litem.

(b) Before executing duties as a CASA, and upon completion of all the requirements of an affiliate court appointed special advocate program, a CASA shall be sworn in by a judge of the juvenile court in the court or circuit in which he or she wishes to serve. A CASA shall not be assigned a case prior to being sworn in.

(c) If a juvenile court judge determines that a child involved in a deprivation proceeding needs a CASA, the judge shall have the authority to appoint a CASA, and in such circumstance shall sign an appointment order at the earliest possible stage of the proceedings. Such order shall impose on the CASA all the duties, rights, and responsibilities set forth in this Code section.

(d) The role of a CASA in juvenile court deprivation proceedings shall be to advocate for the best interests of the child.

(e) In all cases to which a CASA is assigned, except as otherwise ordered by the judge, a CASA shall:

(1) Conduct an independent assessment to determine the facts and circumstances surrounding the case;

(2) Maintain regular and sufficient in-person contact with the child;

(3) Submit written reports to the court regarding the child's best interests;

(4) Advocate for timely court hearings to obtain permanency for the child;

(5) Request judicial citizen review panel or judicial review of the case;

(6) Collaborate with the child's attorney;

(7) Attend all court hearings and other proceedings to advocate for the child's best interests;

(8) Monitor compliance with the case plan and all court orders; and

(9) Review all court related documents.

(f) As a lay guardian ad litem, a CASA shall not be required to:

(1) Engage in activities which could reasonably be construed as the practice of law; or

(2) Obtain legal counsel or other professional services for a child.

(g) Except as provided in article 12 of this chapter, the "Georgia Child Advocate for the Protection of Children Act," a CASA shall be notified of all court hearings, judicial reviews, judicial citizen panel reviews, and other significant changes of circumstances in the child's case including, but not limited to, the formulation of any case plan and may be given the opportunity to be heard by the court about such plans.

(h) Upon presentation of an order appointing a CASA as a guardian ad litem, such CASA shall have access to all records and information relevant to the child's case when such records and information are not otherwise protected from disclosure pursuant to Code Section 19-7-5. Such records and information shall not include records and information provided under article 12 of this chapter, or provided under Chapter 4A of Title 49. The CASA's right to access such records shall also be as otherwise authorized by law.

(i) All records and information acquired, reviewed, or produced by a CASA during the course of his or her appointment shall be deemed confidential and shall not be disclosed except as ordered by the court.

(j) Except as provided in Code section 49-5-41, any CASA who discloses confidential information obtained during the course of his or her appointment shall be guilty of a misdemeanor. A CASA shall maintain all information and records regarding mental health, developmental disability, and substance abuse according to the confidentiality requirements contained in Code sections 37-3-166, 37-4-125, or 37-7-166, as applicable.

(k) Any CASA authorized and acting in good faith, in the absence of fraud or malice, and in accordance with the duties required by this Code section, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as a result of taking or failing to take any action pursuant to this Code section. This Code section shall not be construed as imposing any additional duty on a CASA which is not already otherwise imposed by law.

(l) The court may remove a CASA from a case upon finding that the CASA has acted in a manner contrary to the child's best interests, or if the court otherwise deems continued service as unwanted or unnecessary.

(m) The court may discharge a CASA for nonparticipation in a case or upon finding that the CASA has acted in a manner contrary to the mission and purpose of the affiliate court appointed special advocate program.

Comments

This provision is currently O.C.G.A. § 15-11-9.1 and remains substantively unchanged. The definitions in the original subsection (a) were moved to the definitions section of article 1 but remain substantively unchanged. The remaining changes are stylistic revisions in keeping with the rest of the proposed model code.

15-11-311. Participation of child’s attorney or guardian ad litem in proceedings

(a) A child’s attorney or guardian ad litem is entitled to:

(1) Receive a copy of each pleading or other record filed with the court in the proceedings; and

(2) Receive notice of and attend each hearing in the proceedings and participate and receive copies of all records in any appeal that may be filed.

(b) A child’s attorney or guardian ad litem may not engage in ex parte contact with the court except as otherwise authorized by law.

(c) A guardian ad litem may not take any action that may be taken only by an attorney licensed in this state, including making opening and closing statements, examining witnesses in court and engaging in discovery.

(d) The court or a child’s attorney may compel a guardian ad litem for a child to attend a trial or hearing relating to the child and to testify as necessary for the proper disposition of a proceeding.

(e) The court shall ensure that any guardian ad litem for a child has the opportunity to testify or, if present at the hearing and available for cross-examination, submit a report setting forth:

(1) The guardian ad litem’s recommendations regarding the best interests of the child; and

(2) The reasons for the guardian ad litem’s recommendations.

(f) A guardian ad litem for the child may be called as a witness for the purpose of cross-examination regarding the guardian ad litem’s report even if the guardian ad litem is not listed as a witness by a party.

Comments

This provision is new and is modeled after the National Conference of Comm’rs on Unif. State Laws, Uniform Representation Act, § 16. This provision is not intended to be limiting with respect to calling witnesses. A party’s right to call any witnesses deemed necessary remains intact.

15-11-312. Treatment by spiritual means; life threatening condition or disability exception

(a) 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. However, the religious rights of a parent, guardian, or legal custodian shall not limit the access of a child to medical care in a life-threatening situation or when the condition will result in serious disability.

(b) In order to make a determination as to whether the child is in a life-threatening situation or that the child's condition will result in serious disability, the court may order a medical evaluation of the child.

(c) If the court determines, on the basis of any relevant evidence before the court, including the court-ordered medical evaluation and the affidavit of the attending physician, that the child is in a life-threatening situation or that the child's condition will result in serious disability, the court may order that medical treatment be provided for the child.

(d) A child whose parent, guardian, or legal custodian inhibits or interferes with the provision of medical treatment in accordance with a court order shall be considered to be deprived and the court may find the parent, guardian, or legal custodian in contempt and enter any order authorized by and in accordance with the provisions of Code section 15-11-125.

Comments

This provision is drawn in part from O.C.G.A. §15-11-2(8). It is expanded to include an exception for a child in a life-threatening situation or in the case of a serious disability. This provision is modeled after Colorado Rev. Stat. § 19-3-103(1).

15-11-313. Notice of hearings to specified nonparties

(a) In advance of each review or hearing, the Division shall give written notice of the date, time, place, and purpose of the review or hearing to the custodian of the child, the foster parent of the child, any preadoptive parent or relative providing care for the child, including the right to be heard.

(b) This provision shall not be construed to require a custodian, foster parent, preadoptive parent, or relative caring for the child to be made a party to the hearing solely on the basis of such notice and opportunity to be heard.

Comments

This provision is drawn from O.C.G.A. § 15-11-58(p) and is revised for clarity, in part, by specifying what kind of notice nonparties should receive. This provision is repeated in article 4 in keeping with the new organizational structure of the proposed model code and to accomplish the goal of creating stand-alone articles to the extent possible.

15-11-314. Continuance of a hearing in deprivation proceedings

(a) Upon request of counsel for the parent, guardian, legal custodian, child, or petitioner, the court may continue any hearing under this article beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interests of the child. In considering the child's interests, the court shall give substantial weight to a child's need for prompt resolution of his or her custody status, the need to provide a child with a stable environment, and the damage to a child of prolonged temporary placements.

(b) Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion. Whenever any continuance is granted, the facts proved which require the continuance shall be entered in the court record.

(1) A stipulation between counsel or the convenience of the parties is not good cause.

(2) A pending criminal prosecution or family law matter is not good cause.

(3) The need for discovery is not good cause.

(c) Written notice of a motion for continuance shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.

(d) In any case in which the parent, guardian, legal custodian, or child is represented by counsel and no objection is made to an order continuing any such hearing beyond the time limit, the absence of such an objection shall be deemed a consent to the continuance. However, even with consent, the court shall decide whether to grant the continuance in accordance with subsection (a).

Comments

This provision is new and is modeled after California’s provision which reflects strong judicial control over continuances in deprivation proceedings. Cal. Welf. & Inst. Code § 352. It discourages unnecessary continuances by highlighting instances that do not constitute good cause. See Resource Guidelines, at 21 (advocating court control over continuances and emphasizing that continuances should not be granted based on convenience or stipulation of the parties).

15-11-315. Court orders

(a) At any hearing held with respect to a child, the court in its discretion, and based upon the evidence, may enter an order:

(1) Accepting or rejecting any report of the Division;

(2) Ordering an additional evaluation ; or

(3) Undertaking such other review as it deems necessary and appropriate to determine the disposition that is in the child's best interests.

(b) The court's order:

(1) May incorporate all or part of the report of the Division;

(2) Shall include findings of fact which reflect the court's consideration of the oral and written testimony offered by the parent, the guardian or legal custodian of the child, the foster parents of the child, any preadoptive parents or relatives providing care for the child who are required to be provided with notice and a right to be heard in any hearing to be held with respect to the child, and the Division.

Comments

This provision is drawn from O.C.G.A. § 15-11-58(p) and remains substantively unchanged. The language regarding court orders was separated from the notice requirements to make each a stand-alone provision. The original language regarding the appointment of a guardian ad litem in subsection (a)(2) was stricken to reflect the mandatory appointment of counsel in all deprivation proceedings. The remaining revisions made are stylistic in keeping with the rest of the proposed model code.

Venue

15-11-316. Venue

(a) A proceeding under this article may be commenced:

(1) In the county in which the child legally resides; or

(2) In the county in which the child is present when the proceeding is commenced if deprivation is alleged to have occurred in that county.

(b) For the convenience of the parties, the court may transfer the proceeding to the county in which the child legally resides. If the proceeding is transferred, certified copies of all legal and social documents and records pertaining to the proceeding on file with the clerk of court shall accompany the transfer.

Comments

This provision is drawn from O.C.G.A. § 15-11-29 but the language is narrowed to address only deprivation proceedings. O.C.G.A. § 15-11-29(b) was stricken because it is a different subject matter but it was incorporated into the general provision regarding conduct of hearings and is now P.M.C. § 15-11-116(e).

Taking into Care

15-11-317. Emergency care and supervision of child without court order

(a) Notwithstanding Code section 15-11-321 or any other provision of law, the Division is authorized to provide emergency care and supervision to any child without seeking a court order for a period not to exceed seven days when:

(1) As a result of an emergency or illness, the person who has physical and legal custody of the child is unable to provide for the care and supervision of the child, and such person or a law enforcement officer, emergency personnel employed by a licensed ambulance provider, fire rescue personnel, or a hospital administrator or his or her designee requests that the Division exercise such emergency custody; and

(2) The child is not at imminent risk of abuse or neglect, other than the risks arising from being without a caretaker.

(b) During the period when a child is in the temporary care and supervision of the Division, the Division shall endeavor to place the child with a relative of the parent, guardian, or legal custodian in shelter care, or in emergency foster care or shall make other appropriate placement arrangements. The Division shall have the same rights and powers with regard to the child as does the custodial parent or other legal custodian including the right to consent to medical treatment.

(c) Immediately upon receiving custody of the child, the Division shall begin a diligent search for a relative or other designee of the parent who can provide for the care and supervision of the child.

(d) At any time during such seven-day period, and upon notification to the Division that the parent, guardian, or legal custodian or a relative or designee thereof, is able to provide care to and exercise control over the child, the Division shall release the child to the person having custody of the child at the time the child was taken into the custody of the Division or to such person's relative or designee.

(e) Upon the expiration of such seven-day period, if the child has not been released or if the Division determines that there is an issue of neglect, abandonment, or abuse, the Division shall promptly contact a juvenile court intake officer or bring the child before the juvenile court. If, upon making an investigation, the intake or other authorized officer of the court finds that shelter care is warranted for the child, then, for purposes of this chapter, the child shall be deemed to have been placed in shelter care at the time such finding was made. The Division may file a deprivation petition.

(f) The Division and its successors, agents, assigns, and employees shall be immune from any and all liability for providing care and supervision in accordance with this Code section, for consenting to medical treatment for the child, and for releasing the child.

Comments

This provision is current O.C.G.A. § 15-11-14 and remains substantively unchanged. O.C.G.A. § 15-11-14(e) was stricken but it was otherwise incorporated into subsection (b) of this new provision. The remaining revisions are stylistic in keeping with the rest of the proposed model code. The plural “children” was stricken for consistency in keeping with the rest of the proposed model code where the singular is used throughout to include the plural.

15-11-318. Temporary protective custody of child by physician without court order and without parental consent

(a) Notwithstanding any other provision of law, a physician, licensed to practice medicine in the State of Georgia who is treating a child may take or retain temporary protective custody of the child, without a court order and without the consent of a parent, guardian, or legal custodian, provided that:

(1) The physician has reasonable cause to believe that the child is in a circumstance or condition that presents an imminent danger to the child's life or health as a result of suspected abuse or neglect; and

(2) There is not sufficient time for a court order to be obtained for temporary custody of the child before the child may be removed from the presence of the physician.

(b) A physician detaining a child in temporary custody shall:

(1) Make reasonable and diligent efforts to inform the parents, guardian, or legal custodian of the child of the whereabouts of the child;

(2) As soon as possible, make a report of the suspected abuse or neglect which caused him or her to take temporary custody of the child and inform the Division that the child has been detained in temporary custody; and

(3) Not later than 24 hours after the child is detained in temporary custody:

(A) Contact a juvenile court intake officer, and inform such intake officer that the child is in imminent danger to his or her life or health as a result of suspected abuse or neglect; or

(B) Contact a law enforcement officer who shall take the child into custody and promptly bring the child before a juvenile court intake officer.

(c) A child who meets the requirements for inpatient admission shall be retained in the hospital or institution until such time as the child is medically ready for discharge. Upon notification by the hospital or institution to the Division that a child who is not eligible for inpatient admission or who is medically ready for discharge has been taken into custody by a physician and the child has been placed in the custody of the Division, the Division shall take physical custody of the child within six hours of being notified.

(d) If the intake officer determines that the child is to be detained and the court orders that the child be detained in the legal custody of the Division, then:

(1) If the child remains in the physical care of the physician, the Division shall take physical possession of the child within six hours of being notified by the physician, unless the child meets the criteria for admission to a hospital, or other medical institution or facility; or

(2) If the child has been brought before the court by a law enforcement officer, the Division shall promptly take physical possession of the child.

(e) If the child is not released, then the court shall notify the child's parents, guardian, or other legal custodian, the physician, and the Division of the preliminary protective hearing which is to be held within 72 hours.

(f) If the intake officer determines that the child should not be detained, the child shall be released.

(g) If after the preliminary protective hearing the child is not released, the physician shall file a petition in accordance with this article, provided that such physician continues to believe that the child's life or health is in danger as a result of suspected abuse or neglect.

(h) Any hospital or physician authorized and acting in good faith and in accordance with acceptable medical practice in the treatment of a child under this code section shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as a result of taking or failing to take any action, pursuant to this code section. This code section shall not be construed as imposing any additional duty not already otherwise imposed by law.

Comments

This provision is current O.C.G.A. § 15-11-15 and remains substantively unchanged. The minor revisions made are stylistic in keeping with the rest of the proposed model code.

15-11-319. Order to take child into immediate custody

If it appears from an affidavit or from testimony before the court that the condition or surroundings of the child are endangering the child's health or welfare or that the child may abscond or be removed from the jurisdiction of the court or will not be brought before the court, notwithstanding the service of the summons, the court may endorse upon the summons an order that a law enforcement officer shall serve the summons and take the child into immediate custody and bring the child forthwith before the court.

Comments

This provision is current O.C.G.A. § 15-11-49.1. The term “conduct” and the phrase “those of others or” were stricken to keep this provision relevant only to deprivation cases. The stricken language appears in the parallel provision in article 7, P.M.C. § 15-11-714. The terms “filed” and “sworn” were stricken as redundant: all affidavits are filed if they are part of the record and all testimony is sworn.

15-11-320. Verbal custody order

(a) In exceptional circumstances, the facts supporting the issuance of an order of removal and the exceptional circumstances may be relayed orally, including telephonically, to the judge, and the order directing that a child be taken into custody may be issued orally or electronically.

(b) In such cases, an affidavit or sworn complaint containing the information previously relayed orally, including telephonically, shall be filed with the clerk of the court the next business day, and a written order shall be issued if not previously issued. The written order shall include the court's findings of fact supporting the necessity for the child's removal in order to safeguard the child’s welfare and shall designate the child's custodian.

(c) The affidavit or sworn complaint filed after the child has been placed shall indicate whether the child was released to the child’s parent, guardian, or legal custodian or remains removed.

(d) The Division shall promptly notify the parent, guardian, or legal custodian of the nature of the allegations and, if the child is not released, of the time and place of the preliminary protective hearing.

Comments

This provision is new and is modeled after Louisiana Children’s Code Art. 620. The court was given the option of issuing an order electronically to account for technological advances that enhance the court’s responsiveness to an emergency.

15-11-321. Removal of child from the home; protective custody

(a) A child may be removed from his or her home, without the consent of the child’s parents, guardian, or legal custodian:

(1) Pursuant to an order of the court under this article; or

(2) By a law enforcement officer or duly authorized officer of the court 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 the child’s removal is necessary.

(b) Upon removing a child from his or her home, the officer shall:

(1) Forthwith deliver the child to a medical facility if the child is believed to suffer from a serious physical condition or illness which requires prompt treatment, and, upon delivery, shall promptly contact the Division. Upon being notified, the Division shall promptly contact a juvenile court intake officer who shall immediately determine if the child should be released, remain in protective custody, or be brought before the court.

(2) Bring the child immediately before the juvenile court or promptly contact a juvenile court intake officer. The intake officer shall determine if the child should be released or if the child should remain in protective custody;

(3) Promptly give notice to the court and the child’s parents, guardian, or legal custodian that the child is in protective custody, together with a statement of the reasons for taking the child into protective custody.

(d) A law enforcement officer removing a child from his or her home has all the privileges and immunities of a law enforcement officer making an arrest.

Comments

This provision is drawn from O.C.G.A. § 15-11-45 but it only includes language relevant to deprivation cases. Subsections (c) and (d) are modeled after Oregon Rev. Stat. § 419B.155.

15-11-322. Contrary to the welfare findings justifying removal

(a) Any order authorizing the removal of a child from his or her home must be based on a finding by the court that:

(1) Continuation in the home would be contrary to the child’s welfare; and

(2) Removal is in the child’s best interests.

(b) These findings must be made on an individualized case-by-case basis and shall be documented in the court’s written order.

Comments

ASFA requires that certain findings be made on an individualized basis and documented in the court’s order. 45 C.F.R. 1356.21(d). This new provision was added to ensure the uniform inclusion of these findings.

15-11-323. Placement in shelter care

(a) A child taken into custody shall not be placed in shelter care prior to the hearing on the petition unless:

(1) Shelter care is required to protect the person of the child;

(2) The child has no parent, guardian, or custodian, or other person able to provide supervision and care and return him or her to the court when required; or

(3) An order for the child’s shelter care has been made by the court.

(b) No child alleged or adjudicated to be deprived shall be detained in any jail, adult lockup, or adult detention facility, nor shall a child be detained in a regional youth detention center or youth development campus unless the child is also alleged or adjudicated to be delinquent, and the court determines that the requirements for detention under article 7 are met.

(1) A licensed foster home or a home approved by the court which may be a public or private home or the home of the noncustodial parent or of a relative;

(2) A facility operated by a licensed child welfare agency; or

(3) A licensed shelter care facility approved by the court.

(d) The actual physical placement of a child pursuant to this subsection shall require the approval of the judge of the juvenile court or his or her designee.

(e) To the extent that it is practical and appropriate, in any case in which a child is taken into protective custody, the child shall be placed together with any siblings who are also in protective custody or the Division shall include a statement in its report and case plan of continuing efforts to place the siblings together or why those efforts are not appropriate.

Comments

This provision is drawn from O.C.G.A. § 15-11-48 but it only includes language relevant to deprivation cases. Subsection (e) is new and modeled after California Welf. & Inst. Code. § 16002. The addition of this language recognizes the importance of keeping siblings together, when appropriate, to preserve and strengthen family ties. See Child Welfare Information Gateway, Sibling Issues in Foster Care and Adoption, (Children’s Bureau/ACYF, Dec. 2006) http://www.childwelfare.gov/pubs/siblingissues/siblingissues.pdf (discussing the importance of sibling relationships and the benefits of placing siblings together); Edmund S. Muskie School of Public Service, Youth Leadership Advisory Team, Position Paper: Siblings in Foster Care and Adoption, http://www.ylat.org/leadership/policy/siblingposition.htm (2002); Jennifer M. M. Schwartz, Siblings Torn Apart No More, 32 McGeorge L. Rev. 704 (2001) (discussing California’s efforts to address sibling issues through detailed legislation).

15-11-324. Release from shelter care

(a) If a child is brought before the court or delivered to a shelter care facility designated by the court, the intake or other authorized officer of the court shall immediately make an investigation and release the child unless it appears that shelter care is warranted or required.

(b) If a child is so released and the case is to be prosecuted further, a petition shall be made and presented to the court within 30 days.

(c) If the child is not so released, the preliminary protective hearing shall be held pursuant to Code section 15-11-325(a).

Comments

This provision is drawn from O.C.G.A. § 15-11-49 but it only includes language relevant to deprivation cases.

Preliminary Protective Hearing

15-11-325. Preliminary protective hearing

(a) If a child alleged to be deprived is removed from his or her home and is not released, the preliminary protective hearing shall be held promptly and not later than 72 hours after the child is placed in shelter care, provided that, if the 72 hour time period expires on a Saturday, Sunday, or legal holiday, the hearing shall be held on the next day which is not a Saturday, Sunday, or legal holiday.

(b) Reasonable oral or written notice of the preliminary protective hearing, stating the time, place, and purpose of the hearing, shall be given to the child and, if they can be found, to the child's parent, guardian, or other legal custodian.

(c) If a parent, guardian, or legal custodian has not been notified of the hearing and did not appear or waive appearance at the hearing and thereafter files an affidavit showing these facts, the court shall rehear the matter without unnecessary delay and shall order the child's release unless it appears from the hearing that the child's shelter care is warranted or required.

(d) The following persons shall be present at the preliminary protective hearing:

(1) The child’s parent, guardian, or legal custodian, unless they cannot be located, or they fail to appear in response to the notice;

(2) The child’s attorney and guardian ad litem if a guardian ad litem has been appointed;

(3) Counsel for the parents if one has been retained or appointed;

(4) The assigned Division caseworker;

(5) Counsel for the Division.

(e) If the court finds it is in the best interests of the child, the court may allow the following to be present at the preliminary protective hearing:

(1) The child;

(2) Any relative or other person who has demonstrated an ongoing commitment to the child with whom the child might be placed;

(3) An advocate as requested by the parent, guardian or legal custodian;

(4) Other persons who have knowledge of or an interest in the welfare of the child.

(f) At the commencement of the hearing, the court shall inform the parties of:

(1) The contents of the complaint in terms understandable to the child, parent, guardian, or legal custodian;

(2) The nature of the proceedings in terms understandable to the child, parent, guardian, or legal custodian;

(3) Their due process rights including their right to counsel and to appointed counsel if they are indigent persons, the right to call witnesses and the right to cross-examine all witnesses who are called to testify against the parent, guardian, or legal custodian, the right to present evidence, and the right to a trial by the court on the allegations in the complaint or petition.

(g) If the child is not released at the preliminary protective hearing, a petition shall be made and presented to the court within five days of the hearing.

Comments

This provision is drawn from O.C.G.A. § 15-11-49 but modified to clearly define the parameters of the preliminary protective hearing in a deprivation case which was formerly known as the “informal detention hearing.” The introduction of this new terminology serves to better delineate the different substantive areas of the code.

Subsections (d) – (f) are modeled after the Resource Guidelines. They encourage the hearing to be as thorough and complete as possible to help ensure the parties have a clear understanding of the proceedings. See Resource Guidelines, p. 29-44. Subsection (e) states that a child “may” be present to account for the court’s discretion to exclude the child when there is evidence to suggest that it is in the child’s best interests not to be present. However, the child, as a party to the deprivation proceeding, has a right to be present at hearings and this provision does not intend to suggest that the child should generally be excluded.

15-11-326. Preliminary protective hearing; findings

(a) At the preliminary protective hearing, the court shall determine whether there is probable cause to believe the child is deprived and that protective custody of the child is necessary to prevent abuse or neglect pending the hearing on the deprivation petition.

(b) The court:

(1) On finding that the petitioner has not proved both of the required elements prescribed in paragraph (a) shall dismiss the case and shall return the child to the child’s parent, guardian, or legal custodian.

(2) On finding that the petitioner has not met the burden of proving that protective custody is necessary, shall return the child to the child’s parent, guardian, or legal custodian pending the hearing on the deprivation petition.

(3) On finding that the petitioner has met the burden prescribed in paragraph (a) of this Code section, may place the child in the temporary custody of the Division pending the hearing on the deprivation petition.

(c) A court’s order removing a child from the child’s home shall be based upon a finding that continuation in the home would be contrary to the child’s welfare and that removal of the child from his or her home is in the child’s best interests.

(d) The court shall make written findings as to whether the Division has made reasonable efforts to prevent or eliminate the need for removal of the child from the home and to make it possible for the child to safely return home. When the court finds that no services were provided but that reasonable services would not have eliminated the need for protective custody, the court shall consider the Division to have made reasonable efforts to prevent or eliminate the need for protective custody. The court shall include in the written findings a brief description of what preventive and reunification efforts were made by the Division.

(e) In determining whether a child shall be removed or continued out of the home, the court shall consider whether the provision of reasonable services can prevent or eliminate the need to separate the family. The court shall make a written finding in every order of removal that describes why it is in the best interests of the child that the child be removed from the home or continued in care.

(f) To aid the court in making the required written findings, the Division shall present written documentation to the court outlining the reasonable efforts made to prevent taking the child into protective custody and to provide services to make it possible for the child to safely return home and why protective custody is in the best interests of the child.

Comments

This provision is new and is modeled after Oregon and Utah. Ore. Rev. Stat. § 419B.185; Utah Code Ann. § 78-3a-306. It provides a clear list of what is required in the written findings and thereby promotes uniformity. See Resource Guidelines, p. 29-44. Subsection (c) once again highlights the federal requirement to include contrary to the welfare findings. 45 CFR §1356.21(c).

Petition

15-11-327. Authority to file petition

(a) A petition alleging deprivation may be made by any person, including a law enforcement officer, who has knowledge of the facts alleged or is informed and believes that they are true.

(b) A petition alleging deprivation of a child shall not be filed unless the court or a person authorized by the court has determined and endorsed upon the petition that the filing of the petition is in the best interest of the public and the child.

Comments

This provision is drawn from O.C.G.A. § 15-11-38 and is revised to only include language relevant to deprivation proceedings.

15-11-328. Time limitations for filing petition

(a) If the child was removed from his or her home, the petition shall be filed within five days of the preliminary protective hearing.

(b) If the child was removed from his or her home but was released from protective custody at the preliminary protective hearing, the petition shall be filed within 30 days of the child’s release.

(c) Upon a showing of good cause and notice to all parties, the court may grant a requested extension of time for filing a petition in accordance with the best interests of the child. The court shall issue a written order reciting the facts justifying the extension.

(d) If no petition is filed within the required time period, the complaint shall be dismissed without prejudice.

Comments

This is a new provision and is included for clarity. It is modeled after Louisiana Children’s Code Art. 632.

15-11-329. Contents of petition

(a) The petition shall be verified and may be on information and belief. It shall set forth plainly and with particularity:

(1) The facts which bring the child within the jurisdiction of the court, with a statement that it is in the best interests of the child and the public that the proceeding be brought;

(2) The name, age, and residence address of the child on whose behalf the petition is brought;

(3) The names and residence addresses of the parent, guardian, or custodian of the child; or, if neither the child's parent, nor the child's guardian, nor the child's custodian resides or can be found within the state or if their respective places of residence address are unknown, the name of any known adult relative residing within the county or, if there is none, the known adult relative residing nearest to the location of the court; and

(4) If the child is in protective custody and, if so, the place of his or her shelter care and the time the child was taken into protective custody.

(b) The petition shall indicate if any of the matters required herein are unknown.

Comments

This provision is drawn from O.C.G.A. § 15-11-38.1. It is revised for clarity and to only include language relevant to deprivation proceedings.

15-11-330. Amendment of petition

(a) The petitioner may amend the petition at any time:

(1) To cure defects of form;

(2) Prior to the adjudication hearing, to include new allegations of fact or requests for adjudication.

(b) When the petition is amended to include new allegations of fact or requests for adjudication, the petition shall be served in accordance with Code sections 15-11-331 and 15-11-332.

Comments

This is a new provision and is included for clarity. It is modeled after Louisiana Children’s Code Art. 635.

Summons and Service

15-11-331. Issuance of summons

(a) The court shall direct the issuance of a summons to the child if the child is 14 years of age or older, the child’s parents, guardian, or other legal custodian, a guardian ad litem, and any other persons who appear to the court to be proper or necessary parties to the proceeding, requiring them to appear before the court at the time fixed to answer the allegations of the petition. A copy of the petition shall accompany the summons unless the summons is served by publication, in which case the published summons shall indicate the general nature of the allegations and where a copy of the petition can be obtained.

(b) The summons shall state that a party is entitled to counsel in the proceedings and that the court will appoint counsel if the party is unable without undue financial hardship to employ counsel.

(c) The court may endorse upon the summons an order directing the parents, guardian, or other legal custodian of the child to appear personally at the hearing and directing the person having the physical custody or control of the child to bring the child to the hearing. The court may excuse the presence of the child if it deems it is in the child’s best interests that he or she not be brought before the court.

(d) A party other than the child may waive service of summons by written stipulation or by voluntary appearance at the hearing.

(e) If the child is present at the hearing and is 14 years of age or older, the child may waive service of summons only if the child has consulted with counsel and the court finds such waiver to be knowing and voluntary and in the child’s best interests. The court shall personally address the child and the child’s counsel before making such a finding.

Comments

This provision is drawn from O.C.G.A. § 15-11-39 and is revised for clarity. The last sentence in subsection (c) is included to reiterate the court’s discretion in excusing the presence of a child in those circumstances where it is not appropriate for the child to be present in court. See comments to P.M.C. § 15-11-118. Subsection (e) is included in recognition of a child’s participation in proceedings when appropriate and is modeled after Nebraska Proposed Code Sec. 80(a). Mark Ells et al., Unraveling the Labyrinth: A Proposed Revision of the Nebraska Juvenile Code, 82 Neb. L. Rev. 4 1126, 1207 (2004).

15-11-332. Service of summons

(a) If a party to be served with a summons is within this state and can be found, the summons shall be served upon him or her personally as soon as possible and at least 72 hours before the adjudication hearing.

(b) If a party to be served is within this state and cannot be found but his or her address is known or can be ascertained with reasonable diligence, the summons shall be served upon such party at least five days before the adjudication hearing by mailing him or her a copy by registered or certified mail or statutory overnight delivery with a return receipt to be signed by the addressee only.

(c) If a party to be served is outside this state but his or her address is known or can be ascertained with reasonable diligence, service of the summons shall be made at least five days before the adjudication hearing either by delivering a copy to such party personally or by mailing a copy to him or her by registered or certified mail or statutory overnight delivery with a return receipt to be signed by the addressee only.

(d) If, after reasonable effort, a party to be served with a summons cannot be found and such party’s address cannot be ascertained, whether he or she is within or outside this state, the court may order service of the summons upon him or her by publication. The adjudication hearing shall not be earlier than five days after the date of the last publication.

(1) Service by publication shall be made once a week for four consecutive weeks in the official organ of the county where the petition has been filed. Service shall be deemed complete upon the date of the last publication

(2) When served by publication, the notice shall contain the names of the parties, except that the anonymity of the child shall be preserved by the use of appropriate initials, and the date the petition was filed. The notice shall indicate the general nature of the allegations, where a copy of the petition can be obtained, and require the party to be served by publication to appear before the court at the time fixed to answer the allegations of the petition.

(3) Within 15 days after the filing of the order of service by publication, the clerk of court shall mail a copy of the notice, a copy of the order of service by publication, and a copy of the petition to the last known address of the party being served by publication.

(e) Service of the summons may be made by any suitable person under the direction of the court.

(f) The court may authorize the payment from county funds of the costs of service and of necessary travel expenses incurred by persons summoned or otherwise required to appear at the hearing.

Comments

This provision is drawn from O.C.G.A. § 15-11-39.1 and is revised for clarity and to remove any ambiguities with regard to the requirements of service. Subsection (d) includes a new publication process and thereby avoids cross-references to other parts of the Georgia Code. This process is drawn from current O.C.G.A § 15-11-96.

15-11-333. Sanctions for failure to obey summons

(a) In the event a parent, guardian, or other legal custodian of the child willfully fails to appear personally at a hearing after being ordered to so appear, or the parent, guardian, or other legal custodian of the child willfully fails to bring the child to a hearing after being so directed, the court may issue a rule nisi against the person, directing the person to appear before the court to show cause why he or she should not be held in contempt of court.

(b) If the parent, guardian, or legal custodian fails to appear in response to an order to show cause, the court may issue a bench warrant directing that the parent, guardian, or legal custodian be brought before the court without delay to show cause why he or she should not be held in contempt and the court may enter any order authorized by and in accordance with the provisions of Code section 15-11-125.

Comments

This new provision is an expansion of the language in current O.C.G.A. § 15-11-39(c) regarding failure to appear and the court’s contempt powers. The process is defined and codified for clarity and to ensure uniformity in proceedings.

15-11-334. Interlocutory order of disposition when summons served by publication

(a) If service of summons upon a party is made by publication, the court may conduct a provisional hearing upon the allegations of the petition and enter an interlocutory order of disposition if:

(1) The petition alleges deprivation of the child;

(2) The summons served upon any party other than the child:

(A) States that prior to the final hearing on the petition a provisional hearing will be held at a specified time and place;

(B) Requires the party who is served other than by publication to appear and answer the allegations of the petition at the provisional hearing;

(C) States further that findings of fact and orders of disposition made pursuant to the provisional hearing will become final at the final hearing unless the party served by publication appears at the final hearing; and

(D) Otherwise conforms to the requirements of Code section 15-11-331; and

(3) The child is personally before the court at the provisional hearing.

(b) Findings of fact and orders of disposition shall have only interlocutory effect pending final hearing on the petition.

(c) If the party served by publication fails to appear at the final hearing on the petition, the findings of fact and interlocutory orders made shall become final without further evidence. If the party appears at the final hearing, the findings and orders shall be vacated and disregarded and the hearing shall proceed upon the allegations of the petition without regard to this Code section.

Comments

This provision is current O.C.G.A. § 15-11-39.2. It is revised for clarity and for stylistic purposes in keeping with the rest of the proposed model code.

Preadjudication Procedures

15-11-335. Discovery

The Civil Practice Act and the Georgia Rules of Civil Procedure govern discovery in proceedings except that:

(1) Upon presentation by the child’s attorney and guardian ad litem, if any, of the order of appointment any state or local agency, department, authority or institution and any school, hospital, physician or other health or mental health care provider shall permit the child’s attorney and guardian ad litem to inspect and copy any records relating to the child involved in the case without the consent of the child or the child’s parent, guardian, or legal custodian;

(2) Unless a shorter time period is ordered by the court, a party receiving a written request for discovery shall comply with the written request within ten days or provide a written explanation of the reasons for non-compliance to the parties and the court; and

(3) No deposition shall be taken of a child unless the court orders the deposition, under such conditions as the court may order, on the ground that the deposition would further the purposes of this chapter.

Comments

This provision is new and is modeled after Alaska Child in Need of Aid R. P. 8, Illinois Circuit Court of Cook County R. 19A.12; Virginia Sup. Ct. R. 8:15(C); and Vermont Children in Need of Care and Supervision R. 2(d)(5). Paragraph 1 is modeled after Virginia Code Ann. § 16.1-266(G). Paragraph 3 is modeled after Alaska and Vermont. See Comments to Vermont Rule 2(d)(5)(noting that depositions may traumatize a child and that the needs of the parties are balanced by requiring a court order to depose a child).

Adjudication

15-11-336. Standard of proof

The petitioner shall have the burden of proving the allegations of a deprivation petition by clear and convincing evidence.

Comments

This provision is new and included to reflect the new organizational structure of the proposed model code. The standard of clear and convincing evidence is current law. In re R.R.M.R., 312 S.E.2d 832 (Ga. App. 1983).

15-11-337. Adjudication Hearing

(a) The court shall fix a time for the adjudication hearing. If the child is in shelter care, the hearing shall be held no later than ten days after the filing of the petition. If the child is not in shelter care, the adjudication hearing shall be held no later than 60 days after the filing of the petition. If adjudication is not completed within 60 days from the date the child was taken into protective custody, the petition may be dismissed without prejudice.

(b) The following persons shall be present at the adjudication hearing:

(1) The child’s parent, guardian, or legal custodian, unless they cannot be located, or they fail to appear in response to the notice;

(2) The child’s attorney and guardian ad litem, if a guardian ad litem has been appointed;

(3) Counsel for the parents if one has been retained or appointed;

(4) The assigned Division caseworker; and

(5) Counsel for the Division.

(c) If the court finds it is in the best interests of the child, the court may allow the following to be present at the adjudication hearing:

(1) The child;

(2) Any relative or other person who has demonstrated an ongoing commitment to the child with whom the child might be placed;

(3) An advocate as requested by the parent, guardian or legal custodian;

(4) Other persons who have knowledge of or an interest in the welfare of the child.

(d) Except as otherwise provided, the adjudication hearing shall be conducted in accordance with the Georgia Rules of Evidence. Testimony or other evidence relevant to the deprivation of a child or the cause of such condition may not be excluded on any ground of privilege, except in the case of:

(1) Communications between a party and his or her attorney; and

(2) Confessions or communications between a priest, rabbi, or duly ordained minister and his or her confidential communicant.

(e) After hearing the evidence, the court shall make and file written findings as to whether the child is a deprived child.

(f) If the court finds that the child is not a deprived child, it shall dismiss the petition and order the child discharged from shelter care or other restriction previously ordered in the proceeding.

(g) If the court finds that the child is deprived, the court shall proceed immediately or at a postponed hearing to make a proper disposition of the case.

(h) If the court finds that a child is deprived, the court shall also make and file a finding whether such deprivation is the result of alcohol abuse or drug abuse by a parent, guardian or legal custodian.

(i) If the disposition hearing is held on the same day as the adjudication hearing, the court shall schedule the dates and times for the first periodic review hearing and for the permanency planning hearing.

Comments

This provision is new but includes language from O.C.G.A. § 15-11-54. It provides clear guidance on the requirements and process of an adjudication hearing. Subsections (b) and (c) are modeled from the recommendations in the Resource Guidelines. See p. 48-49.

Subsection (d) specifies that the Rules of Evidence apply and makes an exception for communications that are not to be excluded on the ground of privilege. Subsection (d) is modeled after Louisiana Children’s Code Art. 663(D).

Subsection (g) is currently O.C.G.A. § 15-11-54(b) and remains substantively unchanged. The minor revision made is in keeping with the rest of the proposed model code.

Subsection (h) reflects the best practice of advance calendaring. See Corrine Wolf Children’s Law Center, Child Protection Best Practices Bulletin: Advance Calendaring, available at http://www.cyfd.org/bestpractices/Best_Practices_Bulletin-Advance_Calendaring.pdf; See also Resource Guidelines, p. 52 (noting that setting a date for the next hearing is part of the court’s responsibilities at the conclusion of an adjudication hearing).

Predisposition Social Study

15-11-338. Social study

If the allegations of the petition are admitted, or after an adjudication hearing the court has found the child to be deprived, the court may direct that a written social study and report be made by the Division.

Comments

This provision is drawn from O.C.G.A. § 15-11-12 but is revised to only include language relevant to pre-disposition social studies in deprivation proceedings. Subsection (b) of O.C.G.A. § 15-11-12 was made a stand-alone provision and is now P.M.C. § 15-11-121.

15-11-339. Contents of social study

Each social study shall include, but not be limited to, a factual discussion of each of these subjects:

(a) What plan, if any, for the return of the child to his or her parent and for achieving legal permanency for the child if efforts to reunify fail, is recommended to the court;

(b) Whether the best interests of the child will be served by granting reasonable visitation rights to his or her grandparents or other relatives, in order to maintain and strengthen the child's family relationships;

(1) The nature of the relationship between the child and his or her sibling;

(2) Whether the siblings were raised together in the same home, whether the siblings have shared significant common experiences or have existing close and strong bonds;

(3) Whether the child expresses a desire to visit or live with his or her sibling and whether ongoing contact is in the child’s best interests;

(4) The appropriateness of developing or maintaining the sibling relationships;

(5) If the siblings are not placed together in the same home, why the siblings are not placed together and what efforts are being made to place the siblings together or why those efforts are not appropriate;

(6) If the siblings are not placed together, the frequency and nature of the visits between siblings;

(7) The impact of the sibling relationship on the child’s placement and planning for legal permanence.

(d) The appropriateness of any relative placement;

(e) Whether the caregiver desires and is willing to provide legal permanency for the child if reunification is unsuccessful.

Comments

This provision is new and specifies what is to be included in a social study report. It is modeled after California Welf. & Inst. Code § 358.1.

Family Reunification Determination

15-11-340. Division of Family and Children Services report and case plan

(a) Within 30 days of the date a child who is placed in the custody of the Division is removed from the home and at each subsequent review of the disposition order, the Division must submit a written report to the court which shall either:

(1) Include a case plan for a reunification of the family or

(2) Include a statement of the factual basis for determining that a plan for reunification is not appropriate.

(b) The report submitted by the Division shall become a discrete part of the case record in a format determined by the Division and shall be made available to the parent, guardian, or legal custodian of the child. The contents of the report shall be determined at a meeting to be held by the Division in consultation with the judicial citizen review panel, if one is designated by the court for such purpose, and the parent and child, when available. The parent shall be given written notice of the meeting at least five days in advance and shall be advised that the report will be submitted to the court for consideration as an order of the court. The report submitted to the court shall also contain any dissenting recommendations of the judicial citizen review panel, if applicable, and any recommendations of the parent, if such are available.

(c) If the court adopts a report that contains a case plan for reunification services, it shall be in effect until modification by the court. The case plan shall address each reason requiring removal and shall, at a minimum, comply with the requirements of Code section 15-11-302(5).

(d) If the submitted report contains a proposed case plan for reunification services:

(1) The Division shall provide the custodian of the child, the foster parent of the child, and any preadoptive parent or relative providing care for the child with a copy of those portions of the court approved case plan that involve the permanency goal and the services to be provided to the child.

(2) A copy of the report and case plan shall be transmitted to the parent of the child at the same time the report and case plan are transmitted to the court, along with written notice that the report will be considered by the court without a hearing unless, within five days from the date the copy of the report and case plan were received, the parent requests a hearing before the court to review the report and case plan.

(3) If no hearing is requested, the court shall enter a disposition order or supplemental order incorporating all elements of the case plan for reunification services which the court finds essential to reunification, specifying what must be accomplished by all parties before reunification of the family can be achieved.

(e) When a recommendation is made that reunification services are not appropriate and should not be allowed, the report submitted by the Division shall address each reason requiring removal and shall contain at least the following:

(1) The purpose for which the child was placed in foster care, including a statement of the reasons why the child cannot be adequately and safely protected at home and the harm which may occur if the child remains in the home and a description of the services offered and the services provided to prevent removal of the child from the home; and

(2) A clear statement describing all of the reasons supporting a finding that reunification of a child with the child's parent 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.

Comments

As can be seen throughout article 3, O.C.G.A. § 15-11-58 has been broken up, for clarity, into several substantive provisions based on the different subject matters identified in O.C.G.A. § 15-11-58. This provision is drawn from O.C.G.A. § 15-11-58(b) – (d) and includes only language relevant to DFCS reports and case plans. This provision includes stylistic revisions and revisions to its organizational structure in keeping with the rest of the proposed model code.

15-11-341. Reasonable efforts by the Division to preserve or reunify families

(a) Except as provided in subsection (a) of Code section 15-11-342, reasonable efforts shall be made to preserve or reunify families:

(1) Prior to the placement of a child in the custody of the Division to prevent the need for removing the child from the child’s home; or

(2) To eliminate the need for removal and make it possible for a child to return safely to the child’s home at the earliest possible time.

(b) In determining reasonable efforts to be made with respect to a child and in making such reasonable efforts, the child's health and safety shall be the paramount concern.

(c) Reasonable efforts are made upon the exercise of due diligence by the Division to use appropriate and available services to meet the needs of the child and the child's family. Services may include those provided by the Division and other services available in the community.

(d) At each stage of the proceedings, the court is required to review the appropriateness of the Division’s reasonable efforts.

(1) At the preliminary protective hearing, the Division has the burden of demonstrating that:

(A) It has made reasonable efforts to prevent placement of the child in shelter care; or

(B) Given the particular circumstances of the child and family at the time of the child’s removal, there are no appropriate services or efforts which could allow the child to safely remain in the home; or

(C) Reasonable efforts to prevent placement and to reunify the child with the child’s family are not required because of the existence of one or more of the circumstances enumerated in Code section 15-11-342(a).

(2) At the adjudication hearing, the Division has the burden of demonstrating that:

(A) It has made reasonable efforts to eliminate the need for removal of the child from the child's home and to reunify the child with the child's family at the earliest possible time; or

(B) Reasonable efforts to prevent placement and to reunify the child with the child’s family are not required because of the existence of one or more of the circumstances enumerated in Code section 15-11-342(a).

(3) At every other hearing, the Division has the burden of demonstrating that:

(A) It has made reasonable efforts to eliminate the need for removal of the child from the child's home and to reunify the child with the child's family at the earliest possible time; and/or

(B) It has made reasonable efforts to finalize an alternative permanent home for the child.

(e) When determining whether reasonable efforts have been made, the court shall consider whether services to the child and family were:

(1) Relevant to the safety and protection of the child;

(2) Adequate to meet the needs of the child and family;

(3) Culturally appropriate;

(4) Available and accessible;

(5) Consistent and timely; and

(6) Realistic under the circumstances.

(f) A finding that reasonable efforts have not been made shall not preclude the entry of an order authorizing the child's placement when the court finds that placement is necessary for the protection of the child. When efforts to prevent the need for the child's placement were precluded by an immediate threat of harm to the child, the court may find that the placement of the child in the absence of such efforts was reasonable.

(g) Reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts to reunify. When the Division decides to concurrently make reasonable efforts for both reunification and permanent placement away from the parent, guardian, or legal custodian, the Division shall disclose its decision and both plans to all parties and the court. When the Division discloses its decision to proceed on both plans, the court's review of reasonable efforts shall include efforts under both plans.

(h) An order placing or continuing the placement of a child in the custody of the Division shall contain but not be limited to:

(1) A finding that the child’s continuation in or return to the child’s own home would be contrary to the child’s welfare;

(2) Findings as to whether reasonable efforts have been made to prevent or eliminate the need for placement of the child, unless the court has determined that such efforts are not required or shall cease;

(3) Findings as to whether reasonable efforts should continue to be made to prevent or eliminate the need for placement, unless the court has previously determined that such efforts are not required or shall cease.

Comments

This provision includes some language from O.C.G.A. §15-11-58(a)(1)-(6) but it represents a substantial expansion of the current language regarding reasonable efforts. P.M.C. §§ 15-11-302(22) and 15-11-342 also address reasonable efforts requirements. This provision addresses the efforts required to preserve or reunify families and is modeled in part after Minnesota Stat. Ann. § 260.012. See also Youth Law Center, Making Reasonable Efforts: A Permanent Home for Every Child (2000).

15-11-342. Reasonable efforts by the Division not required

(a) The court may direct that reasonable efforts to eliminate the need for placement of the child shall not be required or shall cease if the court determines and makes written findings of fact that:

(1) The parent has subjected the child to aggravated circumstances;

(2) The parent has been convicted of the murder of another child of the parent;

(3) The parent has been convicted of the voluntary manslaughter of another child of the parent;

(4) The parent has been convicted of the voluntary manslaughter of the other parent of the child;

(5) The parent has been convicted of aiding or abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of the parent;

(6) The parent has been convicted of aiding or abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of the other parent of the child;

(7) The parent has been convicted of committing a felony assault that results in serious bodily injury to the child or another child of the parent; or

(8) The parental rights of the parent to a sibling have been terminated involuntarily.

(b) If the court determines that one or more of the circumstances enumerated in subsection (a) of this Code section exist or the Division has submitted a written report to the court which does not contain a plan for reunification services:

(1) A permanency planning hearing shall be held for the child within 30 days; and

(2) Reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.

Comments

This is a new stand-alone provision for instances in which reasonable efforts are not required. It includes the current list from O.C.G.A. § 15-11-58(a)(4) and subsection (b) specifies next steps. The new also listing clarifies that the parent must have been convicted of these crimes as required by federal law. 45 CFR § 1356.21(b)(3)(ii).

15-11-343. Non-reunification hearing

(a) If the Division’s report does not contain a plan for reunification services, the court shall hold a non-reunification hearing to review the report and the determination that a plan for reunification services is not appropriate.

(b) The non-reunification hearing shall be held no later than 30 days from the time the report is filed. Notice of the non-reunification hearing shall be provided, by summons, to the child if the child is14 years of age or older and the child’s parent.

(1) The Division shall notify the court whether and when it intends to proceed with termination of parental rights. If the Division indicates that it does not intend to petition for the termination of parental rights, the court may charge the child’s attorney or guardian ad litem with the duty of determining whether termination proceedings should be commenced.

(2) The court shall also hold a permanency planning hearing, at which the court shall consider in-state and out-of-state permanent placement options for the child, and shall incorporate a permanency plan for the child in its order.

(d) The Division shall have the burden of demonstrating by clear and convincing evidence that a reunification plan is not appropriate considering the health and safety of the child and the child’s need for permanence. There shall be a presumption that reunification services should not be provided if the court finds by clear and convincing evidence that:

(1) The parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family;

(2) A child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions;

(3) A ground for terminating parental rights exists; or

(4) Any of the circumstances set out in Code section 15-11-342(a) exist, making it unnecessary to provide reasonable efforts to reunify.

(e) If the court has entered an order finding that reasonable efforts to reunify a child with his or her family are not required but the court finds further that referral for termination of parental rights and adoption is not in the best interests of the child, the court may, upon proper petition, enter a custody order which shall remain in effect until the child's eighteenth birthday:

(1) Placing the child in the custody of a permanent guardian pursuant to the provisions of article 3; or

(2) If the court has found a compelling reason that placement with a permanent guardian is not in the child's best interests, it may place the child in the custody of an agency or organization licensed or otherwise authorized by law to receive and provide care for the child which is operated in a manner that provides such care, guidance, and control as would be provided in a family home as defined in the court's order.

(A) At a minimum, before granting custody to an eligible agency, the court shall make a finding that the agency is a family home to the extent that:

(i) It is a family-like environment;

(ii) The persons responsible for the care of the child are stable and intend to care for the child for the duration of the child’s stay in placement;

(iii) The placement is intended to be permanent; and

(iv) The placement has the capacity to meet the ongoing life-long developmental and special needs of the child.

(B) The agency or organization shall be charged with the responsibility of notifying the court within ten working days if its license is placed on probation, suspended, revoked, or surrendered. The court shall conduct a judicial review within ten working days of such notification to determine whether another placement should be made for the child.

(f) A judicial citizen review panel established by the court, or other person or agency designated by the court shall, after review, submit a report to the court addressing whether the legal custodian continues to be qualified to receive and care for the child within 12 months of a custody order pursuant to subsection (e)(2) of this code section and every 12 months thereafter.

Comments

This provision is taken from O.C.G.A. § 15-11-58(e) - (j) and identifies the hearing as the non-reunification hearing for clarity and consistency. Subsection (b) clarifies that summons shall be provided to the child as a party to the proceeding if the child is 14 years of age or older in keeping with the summons provisions throughout the deprivation proceedings.

Subsection (c)(2) includes language requiring the consideration of in-state and out-of-state permanent placement options in accordance with the requirements of the Safe and Timely Interstate Placement of Foster Children Act of 2006, P.L. 109-239.

Current O.C.G.A. § 15-11-58(i) allows for temporary custody to be given to a relative or nonrelative without adoption or legal guardianship and are, therefore, not true permanency options. The 36 month review schedule provided for these placements in current O.C.G.A. § 15-11-58(i)(2)(A) is not complaint with federal law and has been repealed accordingly. See Cecilia Fiermonte and Jennifer L. Renne, Making it Permanent: Reasonable Efforts to Finalize Permanency Plans for Children, p. (noting that placement with a fit and willing relative without adoption or legal guardianship requires maintaining the periodic review schedule). Additionally, this new provision removes the first three placement options under O.C.G.A. § 15-11-58(i) in accordance with the addition of the new permanent guardianship provisions. Subsection (f) reiterates that the review of the permanent placements made under Subsection (e)(2) are every 12 months in compliance with federal law.

Disposition

15-11-344. Disposition hearing

(a) If not held in conjunction with the adjudication hearing, the disposition hearing shall be held and completed within 30 days after the conclusion of the adjudication hearing.

(b) The court may consider any evidence, including hearsay evidence, that the court finds to be relevant, reliable, and necessary to determine the needs of the child and the most appropriate disposition.

(1) The social study report, if applicable, made by the Division and the child’s proposed written case plan. The social study report and case plan shall be filed with the court not less than 48 hours before the disposition hearing;

(2) Any study or evaluation made by a guardian ad litem appointed by the court;

(3) Any psychological, medical, developmental, or educational study or evaluation of the child; and

(4) Other relevant and material evidence as may be offered, including, but not limited to, the willingness of the caregiver to provide legal permanency for the child if reunification is unsuccessful.

(d) In any judgment and order of disposition, the court shall specifically state what studies or evaluations have been read and considered by the court in arriving at its judgment and order of disposition.

(e) Prior to the disposition hearing, and upon request, the parties and their counsel shall be afforded an opportunity to examine any written reports received by the court.

(1) Portions of such reports not relied on by the court in reaching its decision which, if revealed would be prejudicial to the interests of the child or any party to the proceeding, may be withheld in the court’s discretion. Confidential sources of information need not be disclosed.

(2) Parties and their counsel shall be given the opportunity to controvert written reports received by the court and to cross-examine individuals making the reports.

(f) At the conclusion of the disposition hearing, the court shall set the time and date for the first periodic review hearing and the permanency planning hearing.

Comments

This provision is new and includes language from O.C.G.A. § 15-11-56. It has been revised to reflect the new organizational structure of the proposed model code.

Subsection (a) is based on timing recommendations of disposition hearings in the Resource Guidelines. See Resource Guidelines, p. 55. Subsection (c) is modeled after California Welf. & Inst. Code § 358(b). Subsection (f) reflects the best practice of advance calendaring.

15-11-345. Relative search by the Division

(a) Before transferring temporary legal custody to the Division, a reasonably diligent search for a parent or relative of the child or other persons who have demonstrated an ongoing commitment to the child shall be conducted by the Division.

(b) The search shall be completed, documented in writing, and filed with the court within 60 days from the date on which the child was removed from the home.

(c) After the completion of this initial search, unless excused by the court, the Division shall have a continuing duty to search for relatives or other persons who have demonstrated an ongoing commitment to the child and with whom it may be appropriate to place the child until such relatives or persons are found or until the child is placed for adoption.

Comments

This provision is drawn from O.C.G.A. § 15-11-55 and is made a stand-alone provision. It is further revised to reflect stylistic changes in keeping with the rest of the proposed model code. The revision in subsection (b), changing from 90 to 60 days the timeframe within which the search must be completed, reflects Division policy to complete and file a relative search report no later than 60 days except in rare and unusual circumstances. See Georgia Depart. of Human Resources, Child Protective Services: Juvenile Court Placement Issues, Social Services Manual, § 2102.3a (March 2006) available at http://www.childwelfare.net/DHR/policies/3030_pdf/2102.3a.pdf. Codification of this policy further highlights the importance of locating appropriate relatives as possible caretakers. See Barbara Seibel, Nat’l Council of Juvenile and Family Court Judges, Adoption and Permanency Guidelines: Improving Court Practice in Child Abuse and Neglect Cases, 10-11 (2000). Subsection (c) is drawn from Florida Stat. Ann. § 984.03(22).

15-11-346. Disposition of deprived child

(a) The court may make any of the following orders of disposition or a combination of those best suited to the protection and physical, emotional, mental, and moral welfare of the child:

(1) Permit the child to remain with his or her parent, guardian, or other legal custodian subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child;

(2) Grant or transfer temporary legal custody to any of these persons or entities:

(A) Any individual, including a biological father, who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child;

(B) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child;

(C) Any public agency authorized by law to receive and provide care for the child; provided, however, that for the purpose of this Code section, the term “public agency” shall not include the Department of Juvenile Justice; or

(D) An individual in another state with or without supervision by an appropriate officer pursuant to the requirements of the Interstate Compact on the Placement of Children.

(3) Transfer jurisdiction over the child in accordance with the requirements of the Interstate Compact on the Placement of Children;

(4) Order the child and such child's parent, guardian, or legal custodian to participate in counseling or in counsel and advice as determined by the court. Such counseling and counsel and advice may be provided by the court, court personnel, probation officers, professional counselors or social workers, psychologists, physicians, qualified volunteers, or appropriate public, private, or volunteer agencies as directed by the court and shall be designed to assist in deterring future conditions of deprivation, or other conduct or conditions which would be harmful to the child or society;

(5) Order 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 of the parent, guardian, or legal custodian to provide proper parental care and supervision of the child, including, but not limited to, parenting classes;

(6) Order the Division to implement, and the child’s parent, guardian, or legal custodian to cooperate with any plan approved by the court;

(7) Order temporary child support for a child to be paid by that person or those persons determined to be legally obligated to support the child. In determining such temporary child support, the court shall apply the child support guidelines provided in Code section 19-6-15. Where there is an existing order of a superior court or other court of competent jurisdiction, the court may order the child support obligor in the existing order to make payments to the child’s caretaker on a temporary basis but shall not otherwise modify the terms of the existing order. A copy of the juvenile court's order shall be filed in the clerk's office of the court that entered the existing order. Temporary child support orders entered pursuant to this paragraph shall be enforceable by the court’s contempt powers so long as the court is entitled to exercise jurisdiction over the deprivation case.

(b) The transfer of temporary legal custody may be subject to conditions and limitations the court may prescribe. These conditions and limitations shall include a provision that the court shall approve or direct the return of the physical custody of the child to the child’s parent, guardian, or legal custodian either upon the occurrence of specified circumstances or at the direction of the court. The return of physical custody of the child to the child’s parent, guardian, or legal custodian may be made subject to conditions and limitations the court may prescribe including, but not limited to, supervision for the protection of the child.

(c) A child found to be deprived shall not be committed to or confined in an institution or other facility designed or operated for the benefit of delinquent children unless the child is also found to be delinquent and the child’s detention is warranted under the requirements of article 7.

(d) Notwithstanding any other provision of law, the court after transferring temporary legal custody of a child to the Division may at any time conduct sua sponte a judicial review of the current placement plan being provided to the child. After its review, the court may order the Division to comply with the current placement plan, order the Division to devise a new placement plan, or make any other order relative to placement or custody outside the Division as the court finds to be in the best interests of the child. Placement or a change of custody by the court outside the Division shall relieve the Division of further responsibility for the child except for any provision of services ordered by the court to ensure the continuation of reunification services to the family when appropriate.

(e) A court shall not be required to make an order of disposition regarding a child who is discharged from a facility in which the child was hospitalized or habilitated pursuant to Chapter 3, 4, or 7 of Title 37 unless the child is to be discharged into the physical custody of any person who had such custody when the court made its most recent finding that the child was deprived.

(f) If a child is found to be a deprived child and the deprivation is found to have been the result of alcohol or other drug abuse by a parent, guardian, or legal custodian and the court orders transfer of temporary legal custody of the child, the court is authorized to further order that legal custody of the child may not be transferred back to the child’s parent, guardian, or legal custodian unless the parent, guardian, or legal custodian undergoes substance abuse treatment and random substance abuse screenings, and those screenings remain negative for a period of no less than six consecutive months.

(g) If the court finds that the Division’s preventive or reunification efforts have not been reasonable but that further efforts could not permit the child to safely remain at home, the court may nevertheless authorize or continue the removal of the child.

(h) If the child has been identified as the subject of concurrent permanency planning, the court shall review the reasonable efforts of the Division to recruit, identify, and make a placement in a home in which a relative, foster parent, or other person who has demonstrated an ongoing commitment to the child has agreed to provide a legally permanent home for the child in the event reunification efforts are not successful.

Comments

This provision is drawn from O.C.G.A.§ 15-11-55 and has been restructured and revised in keeping with the rest of the proposed model code. O.C.G.A. §§ 15-11-57 and 15-11-28(A) and (B) were incorporated as Subsection (a)(4) and (7) because they are disposition options available to the court.

Current O.C.G.A. § 15-11-55(d) was stricken because it has been made a stand-alone provision and is now P.M.C. § 15-11-350. Subsections (g) and (h) are modeled after Minnesota Stat. Ann. § 260C.201(Subd. 2)(b),(c).

15-11-347. Disposition orders

Any order of disposition shall contain written findings of fact to support the disposition and case plan ordered. Before making an order of disposition, the court shall consider the following:

(1)