(a) To acknowledge that certain behaviors or conditions occurring within a family or school environment indicate that a child is experiencing serious difficulties and is in need of services and corrective action in order to protect the child from the irreversibility of certain choices, and to protect the integrity of the family;

(b) To make other family members aware of their contributions to their family’s problems and to encourage family members to accept the responsibility to participate in any program of care ordered by the court;

(c) To provide a child with a program of treatment, care, guidance, counseling, discipline, supervision, and rehabilitation which the child needs to assist him or her in becoming a responsible and productive member of society;

(d) To ensure the cooperation and coordination of all agencies having responsibility to supply services to any member of the family referred to the court.

Comments

Article 6 governing a child in need of services is entirely new. It was included in this proposed model code to create a new statutory framework for the treatment of children who do not fit precisely within the categories of delinquency and deprivation. Included in this new framework are status offenders, delinquent children who are in need of supervision but not treatment or rehabilitation, and children who have been adjudicated unrestorably incompetent to stand trial.

The largest category of children within this framework is children who have been alleged or adjudicated to have committed a status offense. One of the aims in creating this framework is to distance these children from the delinquency model, and align them more closely with the deprivation model. The focus is thereby shifted to recognizing these children are in need of care and providing appropriate services. Another aim is to create an informal process by which families can receive services and reach resolutions before formal court involvement.

Several statutes were reviewed in drafting these provisions including Connecticut, Florida, Louisiana, Massachusetts, New Hampshire, New York, and Washington. See Conn. Gen. Stat. § 46b-120 et seq.; Fla. Rev. Stat. § 984.04 et seq.; La. Children’s Code Ann. art. 726 et seq.; Mass. Gen. Laws Ann. ch. 119 § 39E et seq.; N.H. Rev. Stat. Ann. § 169-D:1 et seq.; N.Y. Family Law § 711 et seq.; Wash. Rev. Code. § 13.32A.202 et seq.

The purpose provision in this article is modeled after the Louisiana and New Hampshire statutes. La. Children’s Code Ann. art. 726; N.H. Rev. Stat. Ann. § 169-D:1. It specifically mentions a child’s family to acknowledge that the child is not always solely responsible for problematic behaviors.

15-11-602. Definitions

(1) “Child in need of services” means:

(A) A child who is found to be in need of care, guidance, counseling, discipline, supervision, treatment, or rehabilitation and who is found to be:

(i) Subject to compulsory school attendance, and who is habitually, willfully, and without good and sufficient cause, truant from school;

(ii) Habitually disobedient of the reasonable and lawful commands of his or her parent, guardian, or legal custodian and is ungovernable or places himself or others in unsafe circumstances;

(iii) A runaway;

(iv) A child who has committed an offense applicable only to a child;

(v) A child who wanders or loiters about the streets of any city, or in or about any highway or any public place, between the hours of 12:00 Midnight and 5:00 A.M.;

(vi) A child who disobeys the terms of supervision contained in a court order which has been directed to such child, who has been adjudicated a child in need of services;

(vii) A child who patronizes any bar where alcoholic beverages are being sold, unaccompanied by his or her parent, guardian, or legal custodian, or who possesses alcoholic beverages.

(B) A child who has committed a delinquent act and is found to be in need of supervision, but not of treatment or rehabilitation; or

(2) “Division,” as used in this article, means the Division of Family and Children Services of the Department of Human Resources.

(3) “Habilitation” means the process by which a child is helped to acquire and maintain those life skills which will enable him or her to cope more effectively with the demands of his or her own person and of his or her environment and to raise the level of his or her physical, mental, social, and vocational abilities.

(4) “Home detention” means court-ordered confinement of a child with his or her parent, guardian, legal custodian, or in some other specified home for 24 hours a day unless otherwise prescribed by written court order, under which the child is permitted out of the residence only at such hours and in the company of persons specified in the court order establishing the home detention.

(5) “Mental health plan” means an interagency treatment, habilitation, support, or supervision plan developed at an interagency meeting of state or local agency representatives, parties, and other interested persons following a court’s finding that a child is not mentally competent to stand trial. The plan shall be submitted to the court for approval as part of the disposition of the child’s case.

(6) “Nonsecure facility” means a public or private facility which does not include construction fixtures such as locked rooms and buildings, fences, or other physical structures designed to physically restrict the movements and activities of a child in custody.

(7) “Plan manager” means a person who is under the supervision of the court and is appointed by the court to convene a meeting of all relevant parties for the purpose of developing a mental health plan. The plan manager is responsible for collecting all previous histories of the child including but not limited to, evaluations, assessments, treatment summaries, and school records.

(8) “Runaway” means a child who without just cause and without the consent of his or her parent, guardian, or legal custodian deserts his or her home or place of abode.

(9) “Services” means care, guidance, counseling, discipline, supervision, treatment and rehabilitation or any combination thereof.

(10) “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.

(11) “Status offense” means an act prohibited by law which would not be an offense if committed by an adult.

(12) “Valid court order” means a court order issued by a judge to a child alleged or found to have committed a status offense and:

(A) Who was brought before the court and made subject to the order;

(B) Whose future conduct was regulated by the order;

(C) Who was given verbal and written warning of the consequences of violating the order at the time the order was issued and whose attorney, parent, guardian, or legal custodian was also provided with written notice of the consequences of violating the order, and the notice is reflected in the court record; and

(D) Who was afforded due process prior to the issuance of the order.

Comments

This provision compiles definitions relevant to child in need of services proceedings.

1. One of the most significant changes made with the addition of article 6 is the elimination of the term “unruly” and the adoption of the term “child in need of services.” This term incorporates the definition of an “unruly” child from O.C.G.A. § 15-11-2(12). It also includes a child who is unrestorably incompetent to stand trial.

2. This term is included for clarity.

3. This term is current O.C.G.A. § 37-4-2(8).

4. This term is modeled after New Hampshire Rev. Stat. Ann. § 169-D:2(VII).

5. This term is current O.C.G.A. § 15-11-151(3) and is revised for clarity. The original language regarding the goal of a mental competency plan is stricken to reflect the difference between a mental health plan as outlined in article 6 with the new restoration to competency provisions of article 8 governing competency in delinquency proceedings.

6. This term is modeled after the definition of a nonsecure facility in Office of Juvenile Justice and Delinquency Prevention, Guidance Manual for Monitoring Facilities Under the Juvenile Justice and Delinquency Prevention Act of 2002, 9 (2007). See also N.H. Rev. Stat. Ann. § 169-D:9-b.

7. This term is current O.C.G.A. § 15-11-151(8) and is revised for clarity.

8. This term is included for clarity and is drawn from current O.C.G.A. § 15-11-2(12).

9. This term is included for clarity and is modeled after New Hampshire Rev. Stat. Ann. § 169-D:2(II).

10. This term is current O.C.G.A. § 15-11-2(10.5).

11. This term is included for clarity and is modeled after Virginia Code Ann. § 16.1-228.

12. This term is drawn from the Juvenile Justice and Delinquency Prevention Act. 28 CFR § 31.303(f)(3). It is modeled after Kentucky Rev. Stat. Ann. § 600.020(60).

15-11-603. Child in need of services case timeline

The following timeline is applicable to all cases involving a child in need of services.

(a) The continued custody hearing shall be held promptly and no later than:

(1) 24 hours after the child is taken into temporary custody if the child is being held in a secure juvenile detention facility; or

(2) 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 was never taken into temporary custody or is released from temporary custody at the continued custody hearing, the following timelines apply:

(1) The petition shall be filed:

(A) Within 30 days of the intake officer’s determination that a mandatory conference would be inappropriate or futile;

(B) Within 30 days of the child’s release from temporary custody if the court determines that the mandatory conference would be inappropriate or futile;

(C) Within 30 days of a court determination that continuing participation in the informal family services plan procedure would be inappropriate or futile; or

(D) Within 30 days of the conclusion of the period governed by the informal family services plan agreement if the child and family have not achieved the goals set out in the agreement and there are reasonable grounds to believe that the child is still in need of services.

(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 5 days of the continued custody 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) 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.

Comments

This is a new provision intended to create a quick reference that users can easily turn to for basic procedural information in child in need of services proceedings.

15-11-604. Venue

(a) A proceeding under this article may be commenced in the county in which the act complained of took place.

(b) If a 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 new and addresses only child in need of services proceedings. It is included to avoid cross-referencing to other parts of the proposed model code.

15-11-605. Complaint

(a) A complaint alleging a child is in need of services may be filed by a parent, guardian, legal custodian, the Division, a school official, law enforcement officer, counsel, guardian ad litem, or prosecuting attorney who has knowledge of the facts alleged or is informed and believes that they are true.

(b) The complaint shall set forth plainly and with specificity:

(1) The name, age, residence address, and present location of the child;

(2) The name, age, and sex of the parent, guardian, legal custodian or any other family members living within the child’s home; and

(3) The name of any public institution or agency having the responsibility or ability to supply services alleged to be needed by the child.

(d) The intake officer will be responsible for receiving complaints alleging that a child is in need of services.

Comments

A complaint is needed to initiate the informal family services plan procedures of the mandatory conference and the informal plan agreement which are detailed later in this article. The complaint differs from the petition which initiates formal court involvement and can only be filed by a prosecuting attorney.

15-11-606. Right to counsel

(a) A child shall have the right to qualified and independent counsel at all stages of the proceedings under this article.

(b) Absent a valid waiver, the court shall appoint counsel for an indigent party at the time of the continued custody hearing.

Comments

This provision is included in keeping with the right to counsel provisions throughout the proposed model code and to avoid cross-referencing to other parts of the code.

15-11-607. Continuance of a hearing in child in need of services proceedings

(a) A continuance shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the moving party at the hearing on the motion. Neither stipulation of the parties nor convenience of the parties is good cause. Whenever any continuance is granted, the facts which require the continuance shall be entered into the court record.

(b) If counsel for the child makes no objection to a continuance beyond the time limit within which the hearing is otherwise required to be held, the absence of such an objection shall be deemed a consent to the continuance.

(c) When any hearing is continued, the hearing shall commence on the date to which it was continued or within seven days thereafter whenever the court is satisfied that good cause exists and the moving party will be prepared to proceed within that time.

Comments

This provision is drawn from the new provision regarding continuances in deprivation proceedings and included to avoid cross-referencing to other parts of the proposed model code.

15-11-608. Case plan for a child alleged or found to have committed a status offense

In addition to the case plan requirements of Code section 15-11-340 and paragraph (5) of Code section 15-11-302, the case plan for a child alleged or found to have committed a status offense and placed in an eligible shelter care placement shall include:

(1) A description of the child’s problems or deficiencies;

(2) A description of specific parental problems or deficiencies;

(3) A description of other personal, family, or environmental problems that may contribute to the child’s behaviors;

(4) A description of the safety, physical, and mental health needs of the child;

(5) Identification of the least restrictive placement to safeguard the child’s best interests and protect the community;

(6) An assessment of the availability of community resources to address the child’s and family’s needs;

(7) An assessment of the availability of court diversion services;

(8) An assessment of the availability of other preventive measures.

Comments

As mentioned previously, the requirements of ASFA also apply to children who are alleged or adjudicated to have committed a status offense. This is one of several provisions included in this article to ensure ASFA compliance. Other provisions include P.M.C. §§ 15-11-612(b), 15-11-615(e), 15-11-628, and 15-11-629.

The expanded list of required issues to be addressed in a child’s case plan is drawn from Veronica Hemrich, American Bar Assoc., Applying ASFA to Juvenile Delinquency Cases: A Guide for Iowa Juvenile Court Officers, 10 (Michelle Peña ed. 2002), and modified to address non-delinquent children.

15-11-609. Termination of proceedings relating to a runaway child

Any proceeding or other processes or actions alleging for the first time that the child is a runaway shall be terminated or dismissed upon the request of the parent, guardian, or legal custodian of the child.

Comments

This provision is current O.C.G.A. § 15-11-64 and remains substantively unchanged but it is revised to reflect the inclusion of a separate definition for a runaway in P.M.C. § 15-11-602 for consistency in keeping with the rest of the proposed model code.

Informal Procedures

15-11-610. Mandatory conference

Upon the filing of a complaint alleging that a child is in need of services, and except in emergencies or when the court or the intake officer determines it to be inappropriate or futile, the intake officer shall convene a multidisciplinary conference to be attended by the child, the child’s parent, guardian, or legal custodian, the Division, and any other agency or public institution having legal responsibility or discretionary authority to supply services to the family.

Comments

This provision and the following provision regarding the informal family services plan agreement are modeled after the informal procedures adopted by Louisiana in its Families in Need of Services statute. This provision is modeled after Louisiana Children’s Code Ann. art. 743.

15-11-611. Informal family services plan agreement

(a) After the mandatory multidisciplinary conference, the child, the child’s parent, guardian, or legal custodian, the Division, and any other member of the conference may effect an informal family services plan agreement.

(b) An informal family services plan agreement shall include:

(1) The identification of the conduct of the child, the child’s parent, guardian, or legal custodian, or any family member which is causing serious harm to the child and the services needed by that individual to mitigate or eliminate the problems within the family;

(2) A description of the services which are needed for the child, the child’s parent, guardian, or legal custodian, or other family members, the availability of such services within the community, and a plan for ensuring that any such services that are available will be secured and delivered;

(3) A description of all expected action to be taken by the child, the child’s parent, guardian, or legal custodian, or other family members;

(4) The identification of the Division caseworker assigned to the case and who is directly responsible for assuring that the informal family services plan agreement is implemented; and

(5) An estimate of the time anticipated to be necessary in order to accomplish the goals set out in the agreement.

(c) The agreement shall set forth in writing the terms and conditions agreed to by the parties as evidenced by their signature thereto.

(d) The agreement must demonstrate that the child, the child’s parent, guardian, or legal custodian understand their right to an adjudication hearing on their need for services. It must also demonstrate that they consent to its terms with knowledge that their consent is not obligatory and with knowledge of the effect of the agreement.

(e) The duration of the informal family services plan agreement shall not exceed 6 months; however, the court may extend the agreement for one additional period not to exceed 6 months.

Comments

This provision is modeled after Louisiana Children’s Code Ann. art. 744.

Preadjudication Custody and Release of Children

15-11-612. Taking a child into temporary custody

(a) A child may be taken into temporary custody under this article:

(1) Pursuant to a court order; or

(2) By a law enforcement officer when there are reasonable grounds to believe that child has run away from his or her parent, guardian, or other legal custodian; or the circumstances are such as to endanger the child’s health or welfare unless immediate action is taken.

(b) Before entering an order authorizing temporary custody, the court shall determine whether continuation in the home is contrary to the child's welfare and whether there are available services that would prevent the need for custody. The court shall make that determination on a case-by-case basis and shall make written findings of fact referencing any and all evidence relied upon in reaching its decision.

(c) In the event a child alleged to be a child in need of services comes within the purview of the Interstate Compact on Juveniles, and the proper authorities of a demanding state have made an official return request to the proper authorities of this state, the Interstate Compact on Juveniles shall apply to the child.

Comments

Subsection (a) of this provision is modeled after New Hampshire Rev. Stat. Ann. § 169-D:8. Subsection (b) is included to ensure ASFA compliance. See comments to P.M.C. § 15-11-608. Subsection (c) is drawn from O.C.G.A. § 15-11-47(e).

15-11-613. Temporary custody; time limitations; place of temporary custody

(a) A person taking a child into temporary custody shall not exercise custody over the child except for a period of 12 hours. A child taken into custody may be placed in a nonsecure facility for a child in need of services.

(b) Counties and municipalities are authorized to establish nonsecure facilities where a child who is suspected of being a child in need of services may be placed until the parent, guardian, or legal custodian assumes custody of the child. Immediately after a child is brought into such a facility, every effort shall be made to contact the parent, guardian, or legal custodian of the child.

(c) If a parent, guardian, or legal custodian has not assumed custody of the child at the end of the 12-hour period, the court shall be notified and shall place the child in the least restrictive placement consistent with the child’s needs for protection or control, in the following order of priority:

(1) The home of a fit and willing relative, subject to the supervision of the court;

(2) The home of a person who has demonstrated an ongoing commitment to the child, subject to the supervision of the court;

(3) In the custody of the Division which shall promptly arrange for shelter care placement of the child.

(d) A child may be held in a secure juvenile detention facility, until the continued custody hearing is held, if the child can be detained separately from children who have been adjudicated delinquent and any of the following apply:

(1) It is alleged that the child is a runaway;

(2) It is alleged that the child is habitually disobedient of the reasonable and lawful commands of his or her parent, guardian, or legal custodian and is ungovernable; or

(3) The child has previously failed to appear at a scheduled hearing.

In no case shall a child in custody be detained in a jail, adult lock-up or other adult detention facility.

(e) Notwithstanding Code section, 15-11-606(b), a child placed in a secure detention facility pursuant to subsection (d) shall be appointed counsel upon placement in a secure facility.

Comments

This provision is drawn from O.C.G.A. § 15-11-47(e). It is revised to state that a child in need of services may only be placed in a previously defined nonsecure facility unless the exceptions in subsection (d) apply. As stated in P.M.C. § 15-11-614 and as allowed by federal law, a child may be held in a secure facility for a maximum of 24 hours prior to the continued custody hearing. See 28 C.F.R. § 31.303(f)(2). Subsections (c) and (d) are modeled after Louisiana Children’s Code Ann. art. 737 and federal law prohibits the detention of status offenders in adult facilities. 42 U.S.C. § 5633(13).

15-11-614. Continued custody hearing

(a) If the child is being held in a secure juvenile detention facility, a continued custody hearing shall be held within 24 hours.

(b) If the child is not being held in a secure juvenile detention facility and has not been released to the custody of the child’s parent, guardian, or legal custodian, a 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.

If the hearing is not held within the time specified, the child shall be released from temporary custody.

(1) The nature of the allegations;

(2) The nature of the proceedings;

(3) The possible consequences or dispositions that may apply to the child’s case following adjudication;

(4) Due process rights, including the right to counsel and to appointed counsel; the privilege against self-incrimination; that the child may remain silent and that anything said may be used against the child; the right to confront anyone who testifies against the child and to cross-examine any persons who appear against the child; the right of the child to testify and to compel other witnesses to attend and testify in his or her own behalf; the right of the child to a speedy adjudication hearing; and the right to appeal and be provided with a transcript for such purpose.

Comments

This provision sets out the timelines for the continued custody hearing. Subsection (a) requires that the hearing be held within 24 hours of the child’s secure detention pursuant to 28 CFR § 31.303(f)(2). Subsection (b) applies to children who were placed in shelter care and, therefore, mirrors the timing requirements of the deprivation provisions. Subsection (c) is modeled after Louisiana Children’s Code Ann. art. 740.

15-11-615. Continued custody hearing; findings

(a) At the continued custody hearing, the court shall determine whether there is probable cause to believe that the child has committed a status offense or is otherwise a child in need of services and that continued custody is necessary.

(b) The court may order that the child:

(1) Be released to the custody of a parent, guardian, or legal custodian; or

(2) Be placed in the least restrictive pre-adjudication placement consistent with the child’s need for protection and control as authorized by Code section 15-11-613.

(c) If the court determines there is probable cause to believe that the child has committed a status offense or is otherwise in need of services, the court shall:

(1) Refer the child and the child’s family for a mandatory conference. The court shall order that a petition be filed and set a date for an adjudication hearing if the court determines that continuing participation in the informal family services plan procedures would be inappropriate or futile; or

(2) Order that a petition be filed and set a date for an adjudication hearing if the court determines that a mandatory conference would be inappropriate or futile.

(d) Following the continued custody hearing, the court may detain a child in a secure juvenile detention facility for up to 24 hours, excluding weekends and legal holidays, only for the purpose of providing adequate time to arrange for an appropriate alternative placement pending the adjudication hearing.

(e) All orders shall contain written findings as to the form or conditions of release. If the child cannot be returned to the custody of his or her parent, guardian, or legal custodian at the hearing, the court shall state the facts upon which the continued custody is based. The court shall make the following findings of fact referencing any and all evidence relied upon to make its determinations:

(1) Whether continuation in the home of the parent, guardian or legal custodian is contrary to the child's welfare.

(2) Whether reasonable efforts have been made to safely maintain the child in the home of his or her parent, guardian, or legal custodian and to prevent or eliminate the need for removal. This finding shall be made at the continued custody hearing if possible, but in no case later than 60 days following the child’s removal from the home.

Comments

This provision creates a stand-alone provision for the determinations and required findings at the continued custody hearing. Subsection (d) allows for secure detention for a limited amount of time pursuant to federal law. 28 C.F.R. § 31.303(f)(2); See also Office of Juvenile Justice and Delinquency Prevention, Guidance Manual for Monitoring Facilities Under the Juvenile Justice and Delinquency Prevention Act of 2002 21-22 (2007)(explaining that detention may “be necessary in order to arrange for appropriate shelter care placement.”).

Subsection (e) is included to ensure compliance with ASFA requirements. It is modeled after California and Iowa statutes. Cal. Welf. & Inst. Code § 636(d)(2); Iowa Code Ann. § 232.22(g)(2).

15-11-616. Secure detention; valid court order exception

(a) A child alleged or found to have committed a status offense may be held in a secure juvenile detention facility for more than 24 hours if:

(1) The child is alleged to have violated a valid court order; and

(2) At the continued custody hearing, the court finds that there is probable cause to believe that the child violated the court order.

(b) If there is probable cause to believe that the child violated a valid court order, the child may be held in a secure juvenile detention facility until a violation hearing is held but in no event shall a child’s detention prior to a violation hearing exceed 72 hours, excluding weekends and legal holidays,

(c) At the violation hearing, the court may order that the child be placed in a secure juvenile detention facility if the court:

(1) Affirms that the requirements for a valid court order were met at the time of the original order finding the child to have committed a status offense was issued;

(2) Finds that the child was afforded due process rights;

(3) Received and reviewed a written report prepared by the Division that described the behavior of the child and the circumstances under which the child was brought before the court and made subject to such order; determined the reasons for the child’s behavior; and determined whether all dispositions other than secure confinement have been exhausted or are clearly inappropriate.

(d) A child in need of services who is alleged or found to have violated a valid court order remains a child in need of services and shall not be considered a delinquent child by virtue of this conduct.

Comments

This provision is included to comply with the valid court order exception requirements of the Juvenile Justice Delinquency Prevention Act. 28 C.F.R. § 31.303(f)(3). It is modeled after the requirements of federal law and Kentucky Rev. Stat. Ann. § 630.080. Subsection (d) is included to prevent bootstrapping a child who is alleged or found to have violated a valid court order into the delinquency system. See Jessica R. Kendall, ABA Center on Children and the Law, Families in Need of Critical Assistance: Legislation and Policy Aiding Youth Who Engage in Noncriminal Behavior, viii (2007). See also Jan C. Costello and Nancy L. Worthington, Incarcerating Status Offenders: Attempts to Circumvent the Juvenile Justice and Delinquency Prevention Act, 16 Harv. C.R.-C.L. L. Rev. 41 (1981). It is modeled after Kentucky Rev. Stat. Ann. § 630.010(5).

Petition and Summons

15-11-617. Authority to file petition

All proceedings seeking an adjudication that a child is in need of services shall be initiated by a petition filed by the prosecuting attorney.

Comments

The provisions governing petitions and summons, P.M.C. §§ 15-11-617 through 15-11-622, have been included to avoid cross-referencing to other articles within the proposed model code.

This provision initiates formal court involvement and requires that a petition be filed by an attorney.

15-11-618. Time limitations for filing petition

(a) If the child is not released from temporary custody at the continued custody hearing, the petition shall be filed within 5 days of the continued custody hearing.

(b) If the child was never taken into temporary custody or is released from temporary custody at the continued custody hearing, the petition shall be filed:

(1) Within 30 days of the intake officer’s determination that a mandatory conference would be inappropriate or futile;

(2) Within 30 days of the child’s release from temporary custody if the court determines that the mandatory conference would be inappropriate or futile;

(3) Within 30 days of a court determination that continuing participation in the informal family services plan procedure would be inappropriate or futile;

(4) Within 30 days of the conclusion of the period governed by the informal family services plan agreement if the child and family have not achieved the goals set out in the agreement and there are reasonable grounds to believe that the child is still in need of services.

(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.

15-11-619. 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 being brought;

(3) The names and residence addresses of the parent, guardian, or legal 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, 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;

(4) The name, age, sex, and residence address of any other family member living within the child’s home; and

(5) Whether all available and appropriate attempts to encourage voluntary use of community services by the family have been exhausted.

(b) The petition shall indicate if any of the information required in the petition is unknown.

(1) The legally liable school district has sought to resolve the expressed problem through available educational approaches; and

(2) The school district has sought to engage the parent, guardian, or legal custodian in solving the problem but they have been unwilling or unable to do so; that the problem remains, and that court intervention is needed.

(d) When a school official is filing a complaint involving a child determined to be educationally disabled, information shall be included which demonstrates that the legally liable school district:

(1) Has determined that the child is educationally disabled; and

(2) Has reviewed for appropriateness the child's current individualized education program (IEP) and placement, and has made modifications where appropriate.

Comments

Subsection (c) and (d) are additional requirements that reflect the inclusion of school officials among the individuals authorized to file a complaint alleging that a child is in need of services. See P.M.C. § 15-11-605. These subsections are modeled after New Hampshire Rev. Stat. Ann. § 169-D:5. A child is determined to be educationally disabled pursuant to chapter 2, title 20 of the Georgia Code or rules promulgated by the Georgia Department of Education.

15-11-620. Issuance of summons

(a) The court shall direct the issuance of a summons to the child, the child’s parent, guardian, or other legal custodian, the Division and any other public agencies or institutions providing services, 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.

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

(d) If the child 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.

15-11-621. 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) Service of the summons may be made by any suitable person under the direction of the court.

(e) The court may authorize 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 mirrors the service of summons provisions throughout the proposed model code with the exception of the elimination of publication as a method of service to avoid further delays.

15-11-622. 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 the provisions of Code section 15-11-125.

Adjudication, Disposition, and Reviews

15-11-623. Standard of proof

The petitioner has the burden of proving the allegations of a child in need of services petition beyond a reasonable doubt.

Comments

This provision is included to create a self-contained article to the extent possible and in keeping with the rest of the proposed model code. It is drawn from Massachusetts Gen. Laws ch. 119 § 39G.

15-11-624. Adjudication Hearing

(a) If the child is in continued custody, the adjudication hearing shall be held no later than 10 days after the filing of the petition. If the child is not in continued custody, the adjudication hearing shall be held no later than 60 days after the filing of the petition.

(b) At the conclusion of the adjudication hearing, the court shall determine whether the child is a child in need of services.

Comments

This provision mirrors the adjudication hearing timeline of deprivation proceedings.

15-11-625. Disposition hearing; time limitations; disposition of a child in need of services

(a) If the court finds the child is in need of services, a final disposition hearing shall be held and completed within 30 days of the conclusion of the adjudication hearing.

(b) The court shall order the least restrictive and most appropriate disposition. Such disposition may include:

(1) Permitting the child to remain with the child’s caregiver without limitations or conditions;

(2) Permitting the child to remain with the child’s caregiver subject to such limitations and conditions as the court may prescribe, including ordering the child, the family, or both to undergo physical examination or treatment, accept individual or family counseling, or submit to psychiatric examination or treatment or psychological examination or treatment as determined by the court;

(3) Placing the child on probation on such terms and conditions as deemed in the best interests of the child and the public. An order granting probation to a child in need of services may be revoked on the ground that the terms and conditions of the probation have not been observed;

(4) Requiring that the child perform community service in a manner prescribed by the court and under the supervision of an individual designated by the court;

(5) Requiring that the child make restitution. This order may remain in force and effect simultaneously with another order of the court. Payment of funds shall be made by the child or the child’s family or employer directly to the clerk of the juvenile court entering the order or another employee of that court designated by the judge, and that court shall disburse such funds in the manner authorized in the order; While an order requiring restitution is in effect, the court may transfer enforcement of its order to:

(A) The juvenile court of the county of the child’s residence and its probation staff, if the child changes his or her place of residence.

(B) Superior court once the child reaches 18 years of age if the child thereafter comes under the jurisdiction of the court.

(6) Imposing a fine on a child who has committed an offense which, if committed by an adult, would be a violation under the criminal code of this state; or has violated an ordinance or bylaw of a city or town. Such fine shall not exceed the fine which may be imposed against an adult for the same offense;

(7) Requiring the child to attend structured after-school or evening programs or other court approved programs, as well as supervise the child during the time of the day in which the child most often used to perform the acts complained of in the petition;

(8) Any order authorized for the disposition of a deprived child;

(9) Assigning the child to the custody of a private or public institution or agency including committing the child to the Department of Juvenile Justice. A child shall not be placed in a correctional facility designed and operated exclusively for delinquent children, nor shall such facility accept the child, unless the child has violated a valid court order;

(10) Any combination of the above dispositions as the court deems to be in the best interests of the child and the public.

(c) The court shall make orders relative to the support and maintenance of the child during the period after the child's eighteenth birthday as permitted by law.

(d) All disposition orders shall include written findings as to the basis for the disposition and such conditions as the court imposes, and a specific plan of the services to be provided.

Comments

This provision creates a stand-alone provision for disposition hearings and incorporates the disposition options of current O.C.G.A. § 15-11-67. It is further revised for clarity in keeping with the rest of the proposed model code.

15-11-626. Duration of disposition orders

(a) An order of disposition continues in force for not more than two years. An order of extension may be made if:

(1) A hearing is held prior to the expiration of the order upon motion of the Division, Department of Juvenile Justice, the prosecuting attorney, or on the court's own motion;

(2) Reasonable notice of the factual basis of the motion and of the hearing and opportunity to be heard are given to the parties affected;

(3) The court finds that the extension is necessary to accomplish the purposes of the order extended; and

(4) The extension does not exceed two years from the expiration of the prior order.

(b) The court may terminate an order of disposition or an extension of such a disposition order prior to its expiration, on its own motion or an application of a party, if it appears to the court that the purposes of the order have been accomplished.

(c) When a child reaches 18 years of age, all orders affecting him or her then in force terminate and he or she is discharged from further obligation or control except that if the child is enrolled as a full-time student when he or she reaches 18 years of age, the court shall retain jurisdiction until the child ceases to be enrolled as a full-time student or upon reaching the age of 21, whichever shall occur first.

Comments

Subsection (c) of this provision is modeled after New Hampshire Rev. Stat. Ann. § 169-D:3(III).

15-11-627. Case reviews

The court shall review the disposition of a child in need of services at least once within three months after such disposition and at least every six months thereafter so long as the order of disposition is in effect.

Comments

The timelines in this provision are drawn in part from Washington Rev. Code. § 13.32A.198.

Permanency Planning

15-11-628. Periodic review hearings

The periodic review hearing requirements under article 3 shall apply to proceedings involving a child alleged or found to be a child in need of services and placed in an eligible shelter care placement.

Comments

This provision and P.M.C. § 15-11-629 regarding permanency planning requirements in article 6 proceedings are included to ensure compliance with the requirements of ASFA.

15-11-629. Permanency planning requirements

(a) The permanency planning requirements under article 3 shall apply to proceedings involving a child alleged or found to be a child in need of services and placed in an eligible shelter care placement.

(b) In addition to those compelling reasons set forth in Code section 15-11-357, a compelling reason for determining that filing a termination of parental rights petition is not in the best interests of a child in need of services may include but not be limited to:

(1) The child needs continued out-of-home placement for an additional number of months, and the parent, guardian, or legal custodian has cooperated with referrals, visitation, and family conferences, as well as therapy;

(2) The child is habitually truant and absconds from the home, the current placement setting has an on-site school with therapeutic intervention and restricted leave policies, and the child and parent are cooperative with services and referrals; or

(3) The child is uncooperative with services or referrals.

Comments

This provision is included to ensure compliance with the requirements of ASFA. The expanded list of “compelling reasons” in subsection (b) is drawn from American Bar Ass’n, Making Sense of the ASFA Regulations, 156-157 (Diane Boyd Rauber ed., 2001).

Mental Health

15-11-630. Mental health plan for child found unrestorably incompetent to stand trial; plan manager

(a) After determining that a child who has been alleged to have committed a delinquent act is unrestorably incompetent to stand trial and a child in need of services petition is filed, the court shall appoint a plan manager, if one has not already been appointed, to direct the development of a mental health plan for the child.

(b) The mental health plan shall be developed at a meeting of all relevant parties convened by the plan manager. The plan manager shall request that the following persons attend the meeting:

(1) The parent, guardian, or other legal custodian of the child;

(2) Counsel for the child;

(3) Counsel for the state;

(4) The child’s guardian ad litem;

(5) Mental health or mental retardation representatives;

(6) The child’s caseworker;

(7) A representative from the child's school; and

(8) Any family member of the child who has shown an interest and involvement in the child’s well-being.

(c) The plan manager may request that other relevant persons attend the mental health plan meeting including but not limited to the following:

(1) A representative from the Division of Public Health;

(2) A Division caseworker; and

(3) Representatives of the public and private resources to be utilized in the plan.

(d) The plan manager shall be responsible for collecting all previous histories of the child, including but not limited to previous evaluations, assessments, and school records, and for making such histories available for consideration by the persons at the mental health plan meeting.

(e) Unless a time extension is granted by the court, the plan manager shall submit the mental health plan to the court within 30 days of the entry of the court’s article 8 disposition order. The plan shall include the following:

(1) An outline of the specific provisions for supervision of the child for protection of the community and the child;

(2) An outline of a plan designed to provide treatment, habilitation, support, or supervision services in the least restrictive environment;

(3) If the child’s evaluation recommends treatment in a secure environment, certification by the plan manager that all other appropriate community based treatment options have been exhausted; and

(4) Identification of all parties, including the child, agency representatives, and other persons responsible for each element of the plan.

(f) The plan manager shall also be responsible for:

(1) Convening a meeting of all parties and representatives of all agencies prior to the mental health plan hearing and review hearings;

(2) Identifying to the court any person who should provide testimony at the mental health plan hearing; and

(3) Monitoring the mental health plan, presenting to the court amendments to the plan as needed, and presenting evidence to the court for the reapproval of the plan at subsequent review hearings.

Comments

This provision is current O.C.G.A. § 15-11-154 and is revised for clarity and to reflect the new organizational structure of the proposed model code. As will be seen, the new article 8 regarding competency in delinquency proceedings provides procedures for competency restoration or remediation, when appropriate. The goal in article 8 is clear: to restore or remediate competency so that a child can be found mentally competent to stand trial. However, when this is not possible, article 8 includes initiating child in need of services proceedings as a disposition option for a child found unrestorably incompetent to stand trial so that the child is ensured receipt of services. See P.M.C. § 15-11-809(c).

This provision, along with P.M.C. § 15-11-631 regarding the hearing on the mental health plan were placed within the provisions of article 6 to ensure the child receives appropriate services within this new collaborative framework. Accordingly, the original language regarding a mental “competency” plan has been changed to a mental “health” plan to reflect the distinction with the provisions of article 8. In general, however, the original language regarding plan managers and mental health plan hearings remains substantively unchanged. The language in subsection (e) of this provision is current O.C.G.A. § 15-11-154(a) which was revised for clarity.

15-11-631. Hearing on mental health plan; time limitations

(a) The court shall hold a hearing within 30 days after the mental health plan has been submitted to the court for the purpose of approving the plan. Thereafter, the court shall hold a hearing every 6 months for the purpose of reviewing the child's condition and approving the mental health plan.

(b) The persons required to be notified of the hearing and witnesses identified by the plan manager shall be given at least ten days prior notice of the hearing and any subsequent hearing to review the child's condition and shall be afforded an opportunity to be heard at any such hearing. The victim, if any, of the child's alleged delinquent act shall also be provided with the same ten days prior notice and shall be afforded an opportunity to be heard and to present a victim impact statement to the court at the hearing. The judge shall make a determination regarding sequestration of witnesses in order to protect the privileges and confidentiality rights of the child.

(c) At the hearing, the court shall enter an order incorporating a mental health plan as part of the disposition. At the time of the disposition, the child shall be placed in an appropriate treatment setting, as recommended by the examiner, unless the child has already been placed in an appropriate treatment setting pursuant to Code section 15-11-807(h).

(d) If, during the mental health plan hearing or any subsequent review hearing, the court determines that the child meets criteria for civil commitment and that services are available under the relevant laws for commitment to any agency or agencies for treatment, habilitation, support, or supervision, the court may commit the child to the Division of Mental Health, Developmental Disabilities and Addictive Diseases.

(e) At any time, in the event of a change in circumstances regarding the child, the court on its own motion or on the motion of the attorney representing the child, any guardian ad litem for the child, the attorney for the state, or the plan manager may set a hearing for review of the mental health plan and any proposed amendments to that plan. The court may issue an appropriate order incorporating an amended plan.

(f) If a child is under a mental health plan when the he or she reaches the age of 18, the plan manager shall make a referral for appropriate adult services.

Comments

This provision is drawn from current O.C.G.A.§ 15-11-155 and is revised for clarity and to reflect the new organizational structure of the proposed model code.