(1) Consistent with the protection of the public interest, to hold a child committing delinquent acts accountable for his or her actions, taking into account the child’s age, education, mental and physical condition, background and all other relevant factors, but mitigate the adult consequences of criminal behavior;

(2) To accord due process of law to each child who is accused of having committed a delinquent act;

(3) To provide for a child committing delinquent acts programs of supervision, care, and rehabilitation which ensure balanced attention to the protection of the community, the imposition of accountability, and the development of competencies to enable a child to become a responsible and productive member of the community;

(4) To promote a continuum of services for a child and his or her family from prevention to aftercare, considering whenever possible, prevention, diversion, and early intervention, including an emphasis on community-based alternatives;

(5) To provide effective deterrents to acts of juvenile delinquency; and

(6) To strengthen families and to successfully reintegrate children into homes and communities.

Comments

This provision identifies the overarching principals governing delinquency proceedings. It is a compilation of purpose statements from Alabama, New Mexico and Pennsylvania. Ala. Code § 12-15-1.1; N.M. Rev. Stat. Ann. § 32A-2-2; 42 Pa. Cons. Stat. Ann. § 6301.

15-11-702. Definitions

(1) “AIDS transmitting crime” means aggravated child molestation, aggravated sodomy, child molestation, incest, prostitution, rape, sodomy, solicitation of sodomy, statutory rape or any offense involving a violation of article 2 of Chapter 13 of Title 16 regarding controlled substances.

(2) "Delinquent act" means:

(A) An act designated a crime by the laws of this state, or by the laws of another state if the act occurred in that state, under federal laws, or by local ordinance, and the crime is not an offense applicable only to a child or a juvenile traffic offense;

(B) The act of disobeying the terms of supervision contained in a court order which has been directed to a child who has been adjudged to have committed a delinquent act; or

(C) Failing to appear as required by a citation issued with regard to a violation of Code section 3-3-23 regarding the prohibition of the purchase of alcoholic beverages by a person under the age of 21.

(3) "Delinquent child" means a child who has committed a delinquent act and is in need of treatment or rehabilitation.

(4) “Department,” as used in this article, means the Department of Juvenile Justice.

(5) “Designated felony act” means an act committed by a child 14 years of age or older which, if committed by an adult, would be one or more of the following crimes:

(A) Aggravated assault;

(B) Aggravated battery or battery in violation of Code section 16-5-23.1 if the victim is a teacher or other school personnel;

(D) Aggravated sexual battery;

(E) Aggravated sodomy;

(F) Armed robbery;

(G) Arson in the first or second degree;

(H) Attempted murder;

(I) Carrying or possession of a weapon in violation of subsection (b) of Code section 16-11-127.1;

(J) Conspiracy in violation of Code section 16-7-86;

(K) Escape in violation of Code section 16-10-52 if the child has previously been adjudicated to have committed a designated felony;

(L) Hijacking a motor vehicle;

(M) Kidnapping or attempted kidnapping;

(N) Murder;

(O) Possession, manufacture, distribution of destructive devices, and any other violation of Code sections 16-7-82 or 16-7-84;

(P) Racketeering in violation of Code section 16-14-4;

(Q) Rape;

(R) Robbery;

(S) Trafficking of certain controlled substances in violation of Code section 16-13-31;

(T) Voluntary manslaughter;

(U) Any violation of Code section 16-15-4 relating to criminal street gangs;

(V) Any subsequent violation of Code sections 16-8-2 to 16-8-9, relating to theft, if the property which was the subject of the theft was a motor vehicle and the child committing the violation has had one or more separate, prior adjudications of delinquency based upon a violation of Code sections 16-8-2 to 16-8-9; provided, the prior adjudications of delinquency shall not have arisen out of the same transaction or occurrence or series of events related in time and location;

(W) Any subsequent violation of Code sections 16-7-85 or 16-7-87 relating to destructive devices, if the child committing the violation has had one or more separate, prior adjudications of delinquency based upon a violation of Code sections 16-7-85 or 16-7-87; provided, the prior adjudications of delinquency shall not have arisen out of the same transaction or occurrence or series of events related in time and location;

(X) Any subsequent violation of subsection (b) of Code section 16-11-132 relating to possession of a pistol or revolver, if the child committing the violation has had one or more separate, prior adjudications of delinquency based upon a violation of subsection (b) of Code section 16-11-132; provided the prior adjudications of delinquency shall not have arisen out of the same transaction or occurrence or series of events related in time and location;

(Y) Any other act which, if committed by an adult, would be a felony, if the child committing the act has three times previously been adjudicated delinquent for acts which, if committed by an adult, would have been felonies; provided the prior adjudications of delinquency shall not have arisen out of the same transaction or occurrence or series of events related in time and location.

(6) "Determined to be infected with HIV" means having a confirmed positive human immunodeficiency virus (“HIV”) test or having been clinically diagnosed as having AIDS.

(7) “Division,” as used in this article, means the Division of Family and Children Services.

(8) “Electronic recording” includes motion picture, audiotape, videotape, or digital recording.

(9) "HIV test" means any antibody, antigen, viral particle, viral culture, or other test to indicate the presence of HIV in the human body, which test has been approved for such purposes by the regulations of the Department of Human Resources.

(10) "Intensive supervision" means the monitoring of a child's activities on a more frequent basis than regular aftercare supervision, pursuant to regulations of the commissioner of juvenile justice.

(11) “Restitution” means any property, lump sum, or periodic payment ordered to be made to any victim. Restitution may also be in the form of services ordered to be performed by a child.

Comments

This provision compiles the definitions relevant to delinquency proceedings.

1. This term is current O.C.G.A. § 15-11-63(a) and is revised for clarity.

2. This term is current O.C.G.A. § 15-11-2(6) and is revised for clarity.

3. This term is current O.C.G.A. § 15-11-2(7) and remains substantively unchanged.

4. This term is included for clarity.

5. This term is current O.C.G.A. § 15-11-63(a)(2) and is revised and reorganized for clarity. The age of the child to which this provision may apply is raised to 14 to reflect the findings of the MacArthur competency study that children under the age of 14 are likely not competent to stand trial. Laurence Steinberg, MacArthur Foundation Study Calls Competency into Question, 18 Criminal Justice 20 (Fall 2003). The language added to paragraphs (V) – (Y) is intended to eliminate any ambiguities regarding what constitutes prior adjudications.

6. This term is current O.C.G.A. § 31-22-9.1(7) and is included for clarity.

7. This term is included for clarity.

8. This term appears in P.M.C. § 15-11-709 regarding custodial interrogations and is modeled after the Illinois statute. See 725 Ill. Comp. Stat. Ann. 5/103-2.1(a).

9. This term is current O.C.G.A. § 31-22-9.1(12) and remains substantively unchanged.

10. This term is current O.C.G.A. § 15-11-63(a) and remains substantively unchanged.

11. This term is current O.C.G.A. § 17-14-2(7) and remains substantively unchanged. It is included for clarity.

15-11-703. Delinquency case timeline

The following timeline is applicable to all delinquency cases.

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

(1) 48 hours after the child is placed in preadjudication custody if the child is taken into custody without an arrest warrant; or

(2) 72 hours after the child is placed in preadjudication custody if the child is taken into custody pursuant to an arrest warrant.

(b) If the child is released from preadjudication custody at the detention hearing or was never taken into custody, the following timelines apply:

(1) The petition shall be filed within 30 days of arraignment or intake but no later than 45 days of the filing of the complaint or within 30 days of the child’s release from preadjudication custody.

(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 from the filing of the petition.

(4) The disposition hearing shall be held within 30 days of the adjudication hearing unless the court makes written findings of fact explaining the delay.

(1) The petition shall be filed within 72 hours of the detention 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 disposition hearing shall be held within 30 days of the adjudication hearing unless the court makes written findings of fact explaining the delay.

Comments

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

15-11-704. Conduct of delinquency proceeding by prosecuting attorney

(a) The prosecuting attorney shall conduct the proceedings on behalf of the state.

(b) Notwithstanding any other provisions of law to the contrary, in any delinquency proceeding, the prosecuting attorney shall be entitled to complete access to all court files, probation files, hearing transcripts, delinquency reports, and any other juvenile court records which may be of assistance to him or her in the conduct of such delinquency proceedings. It shall be the duty of the clerk and probation officers of the juvenile court to assist the prosecuting attorney in obtaining any requested items.

Comments

This provisions is drawn from current O.C.G.A. § 15-11-64.1 and has been revised for clarity and consistency in keeping with the rest of the proposed model code.

To avoid redundancies, the term “district attorney” has been replaced by the term “prosecuting attorney” which is defined in P.M.C. § 15-11-105(23) and includes the district attorney within its definition. This does not relieve the district attorney of the duty of conducting proceedings on behalf of the state upon the court’s request. The original language regarding the dismissal of a petition upon motion of the district attorney has been stricken from this provision because it addresses separate subject matter. This language has been moved to its own provision and is now P.M.C. § 15-11-731.

15-11-705. Parties in a delinquency proceeding

(a) At the adjudication stage of a delinquency proceeding, the parties to the proceeding are the child and the state, represented by the prosecuting attorney.

(b) The child’s parent, guardian, or legal custodian are parties only at the disposition stage of a delinquency proceeding.

Comments

This provision is modeled after Oregon’s law defining parties in delinquency proceedings. See ORS 419C.285(1)(a). The Georgia Court of Appeals held in In the Interest of J.L.B., 634 S.E.2d 514 (Ga. App. 2006) that parents are necessary parties to a delinquency case in part because the consequences of complying with a dispositional order fall upon the child’s parents. This proposed provision still allows parents to participate at the disposition stage but preempts the conflict that may arise if parents are granted party rights during the adjudication stage. Where there is a conflict of interest between the child and the parent, a parent with full party rights at the adjudication stage could prove an additional and formidable opponent to the child. See e.g., In the Interest of A.H., 549 N.W.2d 824, 827 (Iowa 1996).

15-11-706. Right to counsel

(a) A child shall have the right to be represented by counsel at all stages of the proceedings under this article.

(b) Neither a child nor his parent, guardian, or legal custodian may waive the child’s right to be represented by counsel.

(c) A child charged with an act that would be a felony if committed by an adult, shall be represented by counsel during any custodial interrogation of the child.

(d) Prior to the detention hearing, if any, the court shall appoint a qualified and competent attorney to represent the child unless an attorney has been retained and appears on behalf of the child. Nothing in this subsection shall prohibit a judge from releasing a child from detention prior to appointment of counsel.

(e) Upon presentation by counsel for the child of the order of appointment or a court order specifically allowing such access, any state or local agency, department, authority or institution and any school, hospital, physician or other health or mental health care provider shall permit counsel for the child to inspect and copy, without the consent of the child or the child’s parent, guardian, or legal custodian, any records relating to the child involved in the case.

Comments

Children have an unambiguous constitutional right to be represented by an attorney in delinquency proceedings. In re Gault, 387 U.S. 1 (1967). A 2001 report on the access to counsel in Georgia delinquency proceedings described a disturbing and haphazard system. See American Bar Ass’n. and Southern Ctr. for Human Rights, Georgia: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings (Patricia Puritz and Tammy Sun, eds. 2001). Among the many problems illustrated in this report, the incredibly high number of children who waived their right to counsel and the indiscriminate manner in which these waivers were obtained were particularly troubling. Id., at 19-22. States are encouraged to protect a child’s right to counsel by prohibiting the waiver of counsel. Center For Policy Alternatives, Juvenile Waiver of Counsel (2007) available at http://www.stateaction.org/issues/issue.cfm/issue/JuvenileWaiver.xml. Accordingly, this provision prohibits the waiver of this right.

The Institute of Judicial Administration and the American Bar Association’s Juvenile Justice Standards (hereinafter “IJA-ABA Juvenile Justice Standards”) state that a child’s right to counsel may not be waived. IJA-ABA Juvenile Justice Standards, Standards Relating to Pretrial Court Proceedings, § 6.1(A). The constitutionality of prohibiting waivers may come into question because an adult has a constitutional right to waive counsel. Faretta v. California, 95 Sup. Ct. 2525 (1975). However, the prohibition in these cases can be distinguished because Faretta relies on the Sixth Amendment right to counsel while Gault relies on the due process protections of the Fourteenth Amendment. See IJA-ABA Juvenile Justice Standards, Standards Relating to Adjudication, § 1.2, cmnts. (further noting that this position is reinforced by the Supreme Court’s decision in McKeiver v. Pennsylvania, 403 U.S. 528 (1971) which holds that the Sixth Amendment right to jury trial does not apply in juvenile cases). See also Robert E. Shepherd, Jr., Juveniles’ Waiver of the Right to Counsel, 13 Am. Bar Assoc. Criminal Justice Magazine 1 (Spring 1998).

Illinois follows the recommendations of the IJA-ABA Juvenile Justice Standards and prohibits waivers of counsel in all cases. See 705 Ill. Comp. Stat. § 405/5-170. Iowa prohibits waiver in the majority of delinquency proceedings. See Iowa Code Ann. § 232.11. Texas prohibits waiver for certain major offenses. See Tex. Family Court Act § 51.10. Louisiana prohibits waivers in all but misdemeanor cases. See La. Children’s Code. Ann. art. 810(D).

15-11-707. Appointment of guardian ad litem

(a) The court shall appoint a separate guardian ad litem:

(1) Whenever a child appears before the court without a parent, guardian, or other legal custodian;

(2) Whenever it appears to the court that the child’s parent, guardian, or other legal custodian is incapable or unwilling to make decisions in the best interests of the child with respect to proceedings under this article such that there may be a conflict of interest between the child and his or her parent, guardian, or other legal custodian; or

(3) Whenever the court finds that it is otherwise in the child’s best interests to do so.

(b) Neither the child’s attorney nor the child’s parent, guardian, or other legal custodian shall prohibit or impede access to the child by the guardian ad litem.

Comments

This provision is modeled after IJA-ABA Juvenile Justice Standards, Standards Relating to Pretrial Court Proceedings, § 6.7(A) regarding the appointment of guardians ad litem. Subsection (a)(3) is included to account for instances in which a parent is present and there is no conflict of interest but the parent is incompetent, disinterested or otherwise unable to provide positive support and guidance to the child. See § 6.7 cmnts.

15-11-708. Continuance of a hearing in delinquency 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 movant will be prepared to proceed within that time.

Comments

This provision is included to encourage effective judicial management of continuances and thereby promote a timely delinquency process. See National Council of Juvenile and Family Court Judges, Delinquency Guidelines, 26 (2005). It is modeled after California Welf. & Inst. Code § 682. “Speedy” justice has been part of the Anglo-American common law tradition since the Magna Carta and is guaranteed by the Sixth Amendment. Though the Supreme Court has not explicitly held that the speedy trial guarantee applies to juvenile proceedings, its decisions leave little to doubt their applicability. In re Gault, 367 U.S. 1 (1967).

15-11-709. Admissibility of statements by a child during a custodial interrogation; required warnings; electronic recording of custodial interrogation

(a) A custodial interrogation is any interrogation during which:

(1) A reasonable person in the child's position would consider himself or herself to be unable to terminate the encounter; and

(2) A question is asked, or its functional equivalent occurs, that the law enforcement officer knew or should have known is reasonably likely to elicit an incriminating response.

(b) An oral, written, or sign language statement of a child made as a result of a custodial interrogation shall be presumed to be inadmissible as evidence against the child in any delinquency or criminal proceedings unless the child has been cautioned:

(1) That the child has the right to remain silent;

(2) That anything the child says can and will be used against him or her in court;

(3) That the child has the right to consult with an attorney before questioning and to have an attorney present during any questioning if he or she desires; and

(4) That the child has a right to have an attorney represent him at trial. If the child’s family cannot afford an attorney to represent the child, an attorney will be appointed to represent him or her and be paid for by the state.

(c) An oral, written, or sign language statement of a child made as a result of a custodial interrogation shall be presumed to be inadmissible as evidence against the child in any delinquency or criminal proceedings, for an act that if committed by an adult would be a felony unless:

(1) An electronic recording is made of the custodial interrogation; and

(2) The recording is accurate and not intentionally altered.

(d) Every electronic recording required under this Code section shall be preserved until such time as the child’s adjudication for any offenses relating to the statement is final and all direct and habeas corpus appeals are exhausted, or the prosecution of such offenses is barred by law.

(e) If the court finds, by a preponderance of the evidence, that the child was subjected to a custodial interrogation in violation of this article, then any statements made by the child during or following that non-recorded custodial interrogation, even if otherwise in compliance with this code section, are presumed to be inadmissible in any superior court or juvenile court proceeding against the child except for the purposes of impeachment.

(f) Subsection (c) shall not preclude the admission of:

(1) A statement made by the child in open court in any juvenile court or superior court proceeding, before a grand jury, or at a preliminary hearing;

(2) A voluntary statement, whether or not the result of a custodial interrogation, that has a bearing on the veracity of the accused as a witness;

(3) A spontaneous statement that is not made in response to a question;

(4) A statement made after questioning that is routinely asked during the processing of the arrest of the child; or

(5) A statement made during a custodial interrogation that is conducted out-of-state.

(g) The state shall bear the burden of proving, by a preponderance of the evidence, that one of the exceptions to the recordation requirement applies.

(h) Any electronic recording of any statement made by a child during a custodial interrogation shall be confidential and exempt from public inspection and copying, as provided under Code section 50-18-72, and the information shall not be transmitted to anyone except as needed to comply with Code section 50-18-72.

(i) Statements or other evidence derived directly or indirectly from statements which a child makes during a custodial interrogation without the presence of an attorney and in violation of subsections (b) and (c) of this Code section are inadmissible and shall not be considered by the court. In addition, before permitting any child’s statement to be introduced into evidence, the court must find that the state has proved that the statement was voluntarily and knowingly given by the child, taking into account these and any other relevant factors:

(1) Opportunity for the child to consult with a parent, guardian, legal custodian, attorney or other adult;

(2) The age of the child;

(3) The child's level of education;

(4) The child's level of intelligence;

(5) Whether the child was advised of and understood his or her constitutional rights;

(6) Length of time the child was held in shelter care or detention before making the statement in question;

(7) The nature of the questioning which elicited the statement;

(8) Whether physical punishment such as deprivation of food or sleep was used upon the child during the shelter care, detention, or questioning.

Comments

This provision is new and governs the admissibility of a child’s statement made during a custodial interrogation.

Subsection (a) provides substantive limitations through its description of a custodial interrogation. Subsection (a) is drawn from Miranda v. Arizona, 384 U.S. 436 (1966), Rhode Island v. Innis, 446 U.S. 291 (1980) and Florida v. Bostick, 501 U.S. 429 (1991). In Innis, the court held that the Miranda rules come into play “whenever a person in custody is subjected to either express questioning or its functional equivalent [meaning] any words, or actions on the part of the police…that the police should know are reasonably likely to elicit an incriminating response.” Innis, 446 U.S. at 300-301. In Bostick, the court held that, generally, determining whether a seizure of a person occurs requires questioning whether the reasonable person would feel that he or she could leave or terminate an encounter. Bostick, 501 U.S. at 434-436.

Subsection (b) is a restatement of the required Miranda warnings which provide the procedural safeguards necessary to secure the privilege against self incrimination. Miranda, 384 U.S. at 444.

This code section also requires that an accurate electronic recording be made of the child’s custodial interrogation if the child is accused of an offense that would be a felony-grade delinquent act. Subsections (c) – (h) set the parameters for the recordation of these custodial interrogations. Children are particularly vulnerable to pressure by law enforcement officers to secure confessions and have thus been found to be more likely to give false confessions. The Justice Project, Electronic Recording of Custodial Interrogations: A Policy Review, 6-7 (2007). Recording custodial interrogations is a powerful tool to ensure efficiency, reliability and to increase confidence in the delinquency system. See Id. at 8; See also Thomas P. Sullivan, Northwestern Univ. Sch. of Law Ctr. on Wrongful Convictions, Police Experiences with Recording Custodial Interrogations (2004).

Jurisdictions that, by statute, require recordation include Illinois, the District of Columbia, Maine (requiring that law enforcement agencies develop and adopt procedures to record), New Mexico and Wisconsin. D.C. Code Ann. § 5-116.01; Maine Rev. Stat. Ann. tit. § 2803-B; N.M. Stat. § 29-1-16; Wis. Stat. Ann. § 968.073. Case law in Alaska and Minnesota requires the same. See Stephen v. State, 711 P.2d 1156 (Alaska 1985); State v. Scales, 518 N.W.2d 587 (Minn. 1994). New Jersey adopted the recommendations of the Supreme Court Special Committee on Recordation of Custodial Interrogations which was set up in accord with the ruling in State v. Cook, 847 A.2d 530 (N.J. 2004), and began recording in 2006. See Supreme Court of N. J. Administrative Determination, Re: Report of the Special Committee on Recordation of Custodial Interrogations (2005) available at http://www.judiciary.state.nj.us/notices/reports/recordation.pdf. The language in this provision addressing recordation of custodial interrogations is modeled in part after Illinois. 705 Ill. Comp. Stat. § 405/5-401.5.

Subsection (i) addresses the overall admissibility of statements made by a child during a custodial interrogation and is modeled after Iowa Code Ann. § 232.47. The court must find that a child knowingly waived his or her privilege against self incrimination using a totality of the circumstances. The factors are drawn from West v. U.S., 399 F.2d 467, 469 (5th Cir. 1968).

In order for a confession to be admissible as evidence used to convict an accused, law enforcement agents must honor the suspect’s right not to be compelled to incriminate himself in violation of the 5^th and 14^th amendments. In re Gault, 387 U.S. 1 (1967). This means that the court must find that the statement was freely and voluntarily given. In criminal prosecutions, “voluntariness” means that the statement must have been given without “police coercion.” Colorado v. Connelly, 479 U.S. 157 (1986). In juvenile proceedings, the traditional totality of the circumstances test is used to assess the voluntariness of the child’s confession. As the Supreme Court observed in Haley v. Ohio, 332. U.S. 596, 599 (1948), a case involving a fifteen-year-old accused of murder, “[W]hen as here, a mere child – an easy victim of the law – is before us, special care in scrutinizing the record must be used.”

The state must also demonstrate that the accused’s confession was knowingly given, that is, with full knowledge of the constitutional protections that he or she is waiving by election to talk about the offense. If the accused has been subjected to pretrial interrogation, then the state must prove that the suspect was informed of the 5^th and 6^th amendment rights required by Miranda v. Arizona, 384 U.S. 436 (1966). Although the Supreme Court has never explicitly held that the Miranda warnings must be administered to a juvenile suspect, the inexperience and vulnerability of children and adolescents certainly suggests that these cautions are even more needed to ensure that the child understands the importance of giving up his or her right to remain silent and to have the assistance of counsel. Indeed, the celebrated MacArthur Study found that many accused juveniles were seriously mentally compromised. See Thomas Grisso et al., Juveniles’ and Adults’ Competence as Trial Defendants, 27 Law & Human Behavior 33 (2002).

Thus, in order for any child’s confession to be admissible in an adjudication hearing, the court must make three findings of fact:

(1) That if the confession resulted from a custodial interrogation, the Miranda warnings were given;

(2) That if the confession resulted from a custodial interrogation concerning a felony-grade offense, an electronic recording was made; and

(3) That the statement is otherwise voluntary, assessing the totality of the circumstances set out in subsection (i).

15-11-710. When jeopardy begins

(a) When a child enters a denial to the petition, jeopardy begins when the first witness is sworn at the adjudication hearing.

(b) When a child enters an admission to the petition, jeopardy begins when the court accepts the admission.

Comments

This provision is new and is included to clearly define the times at which jeopardy begins. The Supreme Court’s decision in Breed v. Jones, 421 U.S. 519 (1975) extends the protection against double jeopardy to a child. Breed, 421 U.S. at 540. The Georgia Constitution also provides protection against double jeopardy. Ga. Const. art. 1, § 1 para. XVIII.

15-11-711. Placement in eligible shelter care; case plan for a child in the custody of the Division

(a) When a child is alleged to be delinquent and is placed in an eligible shelter care placement, the Department shall develop and complete the child’s case plan. When the child is in the custody of the Division, the Department shall cooperate with the Division in developing and completing the child’s case plan.

(b) 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 in delinquency proceedings 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 contribute to the child’s delinquent 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

This provision is new and is included to ensure compliance with ASFA case plan requirements for those children who are alleged or adjudicated to be delinquent and placed in an eligible shelter care placement as defined in P.M.C. § 15-11-105. The additional requirements for a case plan in subsection (b) are drawn from Veronica Hemrich, American Bar Ass’n, Applying ASFA to Juvenile Delinquency Cases: A Guide for Iowa Juvenile Court Officers, 10 (Michelle Peña ed. 2002).

15-11-712. Victim impact statement in delinquency proceeding s

(a) In any delinquency proceeding, the juvenile court shall notify any victim of the alleged delinquent act that the victim may submit a victim impact statement if:

(1) The child’s alleged conduct would constitute a felony if committed by an adult, and caused physical, psychological, or economic injury to the victim; or

(2) The child’s alleged conduct would constitute a misdemeanor if committed by an adult, and caused serious physical injury or death to the victim.

(b) A victim impact statement shall be attached to the case file and may be used by the district attorney or the judge during any stage of the proceedings against the child involving predisposition, disposition, or determination of restitution.

(1) Identify the victim of the offense and the perpetrator;

(2) Itemize any economic loss suffered by the victim as a result of the offense;

(3) Identify any physical injury suffered by the victim as a result of the offense, along with its seriousness and permanence;

(4) Describe any change in the victim's personal welfare or familial relationships as a result of the offense;

(5) Identify any request for physical or psychological services initiated by the victim or the victim's family as a result of the offense; and

(6) Contain any other information related to the impact of the offense upon the victim that the court requires.

(d) The victim may complete the victim impact statement form and submit it to the juvenile court. If the victim is unable to do so because of the victim's mental, emotional, or physical incapacity, or because of the victim's age, the victim's attorney or a family member may complete the victim impact statement form on behalf of the victim.

(e) In the manner prescribed by rule of court, the court shall provide the child with a copy of the victim impact statement within a reasonable time prior to any hearing at which it is to be considered and allow the child to have the opportunity to rebut the victim's written statements.

(f) No disposition of the child shall be invalidated because of failure to comply with the provisions of this code section. This code section shall not be construed to create any cause of action or any right of appeal on behalf of any person.

Comments

This provision is current O.C.G.A. § 15-11-64.2 and remains substantively unchanged. It has been revised only for clarity and consistency in keeping with the rest of the proposed model code.

Venue

15-11-713. Venue; transfers between juvenile courts

(a) A proceeding under this article shall be commenced in the county in which the alleged delinquent acts occurred.

(b) If the adjudicating court finds that a nonresident child has committed a delinquent act, the adjudicating court may retain jurisdiction over the disposition of the nonresident child or may transfer the proceeding to the county of the child's residence for disposition. Like transfer may be made if the residence of the child changes pending the proceeding.

(c) If the adjudicating court retains jurisdiction, prior to making any order for disposition of the nonresident child, the adjudicating court shall communicate to the court of the county of the child's residence the fact that the child has been found to have committed a delinquent act. This communication shall state the date upon which the adjudicating court plans to enter an order for disposition of the nonresident child and shall request any information or recommendations relevant to the disposition of the nonresident child. Any such recommendation shall be considered by but shall not be binding upon the adjudicating court in making its order for disposition.

(d) When any case is transferred, certified copies of all legal and social documents and records pertaining to the case on file with the clerk of the court shall accompany the transfer.

Comments

This provision is new and, for ease of use, incorporates all the provisions addressing venue in delinquency proceedings. Subsection (a) is the general statement regarding venue. Subsections (b) – (d) incorporate current O.C.G.A. § 15-11-30(b). The remaining original language from O.C.G.A. § 15-11-30 was stricken as redundant.

Custody and Release of Child

15-11-714. Order to take child into immediate custody

If it appears from a filed affidavit or from sworn testimony before the court that the conduct, condition, or surroundings of the child are endangering the child's health or welfare or those of others 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 the first of the provisions governing the custody of a child in delinquency proceedings. This provision is current O.C.G.A. § 15-11-49.1 and remains unchanged.

15-11-715. Taking a child into custody; notice to custodian; notification of district attorney

(a) A child may be taken into custody:

(1) Pursuant to an order of the court under this article, including an order to an employee of the Department to apprehend:

(A) A child who has escaped from an institution or facility operated by the Department; or

(B) A child who has been placed under supervision and who has violated its conditions;

(2) Pursuant to the laws of arrest;

(3) By a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to believe that the child has committed a delinquent act.

(b) A law enforcement officer taking a child into custody shall promptly give notice together with a statement of the reasons for taking the child into custody, to a parent, guardian, or other custodian and to the court.

(c) When a child who is taken into custody has committed an act which would constitute a felony if committed by an adult, the juvenile court, within 48 hours after it learns of the taking into custody, shall notify the district attorney or duly authorized assistant district attorney of the judicial circuit in which the juvenile proceedings are to be instituted.

Comments

This provision is current O.C.G.A. § 15-11-45 and includes only language relevant to delinquency proceedings. The original language regarding the Department of Corrections is stricken to reflect the elimination of the option to place a child with the Department of Corrections. See P.M.C. § 15-11-128 and accompanying comments.

15-11-716. Procedure after taking a child into custody; detention

(a) A person taking a child into custody, with all reasonable speed and without first taking the child elsewhere, shall:

(1) Forthwith release the child, without bond, to the child’s parent, guardian, or other custodian upon their promise to bring the child before the court when requested by the court;

(2) 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 a juvenile court intake officer. Immediately upon being notified by the person taking a child into custody, the intake officer shall determine if the child should be released, remain in protective custody, or be brought before the court; or

(3) 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 detained. All determinations and court orders regarding detention shall comply with the requirements of this article and shall be based on a risk assessment of the child. The risk assessment shall include completion and review of a detention assessment instrument developed by the Children and Youth Coordinating Council in consultation with the Department and the Council of Juvenile Court Judges.

(b) Prior to a detention hearing, the child shall be placed in detention, if necessary, only in such places as are authorized by Code section 15-11-718.

Comments

This provision is drawn from current O.C.G.A. § 15-11-47. The original language in O.C.G.A. §§ 15-11-47(b) and (c) is stricken as redundant: the requirement to notify a parent is in P.M.C. § 15-11-715(b) and P.M.C. § 15-11-730 addresses an individual’s failure to appear.

Subsection (a)(3) includes new language requiring the use of a detention risk assessment instrument (“DAI”) prior to making a decision on whether to detain a child. This is an effective tool in reducing the number of children unnecessarily detained and in reducing disproportionate minority confinement through more objective decision-making. See James Austin et al., Alternatives to Secure Detention and Confinement of Juvenile Offenders, OJJDP Juvenile Justice Bulletin, 4-5 (2005) (listing the development of objective risk assessment instruments as one key reform) available at http://www.ncjrs.gov/pdffiles1/ojjdp/208804.pdf; See also Georgia Supreme Court Commission on Racial and Ethnic Bias in the Court System, Let Justice Be Done: Equally, Fairly, and Impartially, 12 Ga. St. U. L. Rev. 687 (1996); Heidi M. Hsia et al., U.S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Disproportionate Minority Confinement 2002 Update, 15 (2004).

Although the Department has a current DAI, there is no legislative mandate requiring its use. The inclusion of language codifying this requirement is intended to implement uniform, state-wide use of this assessment instrument but is not intended to replace judicial discretion. This language was modeled after states that have codified the use of risk assessment instruments, particularly, Florida and New Mexico. See Fla. Stat. Ann. § 985.213; N.M. Stat. Ann. § 32A-2-11. See also Neb. Rev. Stat. § 43-260.01.

15-11-717. Detention decision; findings; probation services

(a) Restraints on the freedom of a child prior to adjudication shall be imposed only when there is probable cause to believe that the child committed the act of which he or she is accused, there is clear and convincing evidence that the child's freedom should be restrained, that no less restrictive alternatives will suffice, and:

(1) The child’s detention or care is required to protect the person or property of others or of the child;

(2) The child may abscond or be removed from the jurisdiction of the court;

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

(4) An order for the child’s detention has been made by the court.

(b) A child shall not be detained:

(1) To punish, treat, or rehabilitate the child;

(2) To allow a parent to avoid his or her legal responsibilities;

(3) To satisfy demands by a victim, the police, or the community;

(4) To permit more convenient administrative access to the child;

(5) To facilitate further interrogation or investigation; or

(6) Due to a lack of a more appropriate facility.

(c) Whenever a child cannot be unconditionally released, conditional or supervised release that results in the least necessary interference with the liberty of the child shall be favored over more intrusive alternatives.

(d) Whenever the curtailment of a child's freedom is permitted, the exercise of authority shall reflect the following values:

(1) Respect for the privacy, dignity, and individuality of the child and his or her family;

(2) Protection of the psychological and physical health of the child;

(3) Tolerance of the diverse values and preferences among different groups and individuals;

(4) Assurance of equality of treatment by race, class, ethnicity, and sex;

(5) Avoidance of regimentation and depersonalization of the child;

(6) Avoidance of stigmatization of the child; and

(7) Assurance that the child has been informed of his or her right to consult with an attorney and that if the child cannot afford an attorney, one will be provided.

(e) Before entering an order authorizing detention, 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 or eliminate the need for detention. 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.

(f) If the child can remain in the custody of his or her parent, guardian, or legal custodian, through the provision of services to prevent the need for removal, the court shall order that those services shall be provided.

Comments

This provision is a combination of current O.C.G.A. §§ 15-11-46 and 15-11-46.1 which address the same subject matter. Current O.C.G.A. § 15-11-46.1 is a restatement of the IJA-ABA Juvenile Justice Standards, Standards Relating to Interim Status: The Release, Control and Detention of Accused Juvenile Offenders Between Arrest and Disposition, §§ 3.1 - 3.5. Subsection (a) is revised to incorporate the current language of O.C.G.A. § 15-11-46.

Subsection (b)(6) is drawn from § 3.3 of the Standards Relating to Interim Status and Florida Stat. Ann. § 985.24(2)(d). It is included to encourage the development of community-based alternatives to detention which have proven to be more effective in stemming recidivism. See Richard A. Mendel, Annie E. Casey Found., 14. Pathways to Juvenile Detention Reform: Beyond Detention – System Transformation Through Juvenile Detention Reform, 42-56 (2007). Subsection (e) is included to ensure compliance with ASFA for children placed in an eligible shelter care placement. Additional services or efforts which could allow the child to safely remain in the home may include but not be limited to:

(1) Assessing the need for, and when needed, the provision of special education services;

(2) Assessing the need for, and when needed, the provision of specific therapeutic services;

(3) Utilizing mediation or any other alternative methods of dispute resolution; and

(4) Exploring alternatives to detention including treatment centers, substance abuse centers, special schools, job corps or other programs.

See Veronica Hemrich, American Bar Ass’n, Applying ASFA to Juvenile Delinquency Cases: A Guide for Iowa Juvenile Court Officers (Michelle Peña ed. 2002).

15-11-718. Place of detention; data on child detained

(a) A child alleged to be delinquent may be detained only in:

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

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

(3) A detention home or center for delinquent children which is under the direction or supervision of the court or other public authority or of a private agency approved by the court.

(b) Placement shall be made in the least restrictive facility available consistent with the best interests and special needs of the child.

(c) A child 15 years of age or older and alleged to be delinquent may be held in a jail or other facility for the detention of adults for identification or processing procedures or while awaiting transportation only as long as necessary to complete these activities for up to six hours, or for up to 24 hours in nonmetropolitan areas, if all of the following apply:

(1) The child is detained for the commission of a crime that would constitute a designated felony or a serious violent felony as defined in Code section 17-10-6.1;

(2) The child is awaiting a detention hearing; and

(3) The child's detention hearing is scheduled within 24 hours after being taken into custody, excluding weekends and holidays;

(4) There is no existing acceptable alternative placement for the child; and

(5) The jail or other facility for the detention of adults provides sight and sound separation for juveniles which includes:

(A) Total separation between juveniles and adult facility spatial areas such that there is no verbal, visual, or physical contact and there could be no haphazard or accidental contact between juvenile and adult residents in the respective facilities;

(B) Total separation in all juvenile and adult program activities within the facilities, including recreation, education, counseling, health care, dining, sleeping and general living activities;

(D) Separate juvenile and adult staff, specifically direct care staff such as recreation, education and counseling, although specialized services staff, such as cooks, bookkeepers, and medical professionals who are not normally in contact with detainees or whose infrequent contacts occur under conditions of separation of juvenile and adults can serve both.

(d) A child may not be transported with adults who have been charged with or convicted of a crime.

(e) The official in charge of a jail or other facility for the detention of adult offenders or persons charged with crime shall inform the court or the intake officer immediately when a child, who appears to be under the age of 18 years, is received at the facility and shall deliver the child to the court upon request or transfer the child to the facility designated by the intake officer or the court.

(f) All facilities shall maintain data on each child detained and such data shall be recorded and retained by the facility for three years and shall be made available for inspection during normal business hours by any court exercising juvenile court jurisdiction, by the Department, and by the Georgia Council of Juvenile Court Judges. The required data are:

(1) Name;

(2) Date of birth;

(3) Sex;

(4) Race;

(5) Offense or offenses for which being detained;

(6) Date of and authority for confinement;

(7) Date of and authority for release or transfer; and

(8) Where transferred or to whom released.

Such data shall be recorded and retained by the facility for three years and shall be made available for inspection during normal business hours by any court exercising juvenile court jurisdiction, by the Department, and by the Georgia Council of Juvenile Court Judges.

Comments

This provision is drawn from current O.C.G.A. § 15-11-48 and is revised for clarity and consistency in keeping with the rest of the proposed model code. The original language from subsections (b) – (d) is stricken to reflect the repeal of SB440 and the elimination of the option of placing children with the Department of Corrections. However, subsections (c) – (e) are included to provide specific guidelines regarding the pretrial detention of a child over 15 years of age in those rare instances in which the child may need to be detained in an adult facility for processing.

The JJDPA provides a “rural exception” which allows the temporary detention of an alleged delinquent child in an adult facility not to exceed 48 hours (the detention hearing must be held within 48 hours). 42 U.S.C. § 5633(a)(13)(B). This provision limits the rural exception to 24 hours. Regulations require that states receive prior approval from the OJJDP to use the rural exception. 28 CFR 31.303(f)(4)(i)(v); See also Office of Juvenile Justice and Delinquency Prevention, Guidance Manual for Monitoring Facilities Under the Juvenile Justice and Delinquency Prevention Act of 2002, 13 (2007). In addition, these subsections provide greater detail regarding sight and sound separation than the current language in O.C.G.A. § 15-11-48(b) to ensure compliance with this requirement of the Juvenile Justice and Delinquency Prevention Act. They are modeled in part after Oklahoma Stat. Ann. tit. 10, § 7304-1.1.

15-11-719. Release from detention; time limitations for filing petition

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

(b) If a child is so released and the case is to be prosecuted further other than by informal adjustment or other non-adjudicatory procedure, a petition shall be filed within 30 days.

Comments

This provision is drawn from current O.C.G.A. § 15-11-49 and includes only language relevant to delinquency proceedings.

15-11-720. Detention hearing; time limitations

(a) A detention hearing shall be held to determine whether preadjudication custody of a child is required. If the hearing is not held within the time specified, the child shall be released from detention or shelter care.

(b) If a child is detained and is not released from preadjudication custody, a detention hearing shall be held promptly and not later than:

(1) 48 hours after the child is placed in preadjudication custody if the child is taken into custody without an arrest warrant; or

(2) 72 hours after the child is placed in preadjudication custody if the child is taken into custody pursuant to an arrest warrant.

(c) Reasonable oral or written notice of the detention 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. In the event the child’s parent, guardian, or other legal custodian cannot be found, the court shall forthwith appoint a guardian ad litem for the child.

(d) If the child alleged to be delinquent is not released from preadjudication custody and a parent, guardian, or legal custodian, or guardian ad litem has not been notified of the hearing and did not appear or waive appearance at the hearing and thereafter files the 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 detention or shelter care is required.

(e) At the commencement of the hearing, the court shall inform the child of:

(1) The contents of the complaint or petition;

(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.

(f) If the child can be returned to the custody of his or her parent, guardian, or legal custodian through the provision of services to eliminate the need for removal, the court shall release the child to the physical custody of the parent, guardian, or legal custodian and order that those services shall be provided.

(g) If the child cannot be returned to the custody of the parent, guardian, or legal custodian, the court shall state the facts upon which the detention 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 the need for removal. This finding shall be made at the detention hearing if possible, but in no case later than 60 days following the child’s removal from the home.

(h) If the child cannot be returned to the custody of the parent, guardian, or legal custodian, the probation officer shall provide referrals for services as soon as possible to enable the child’s parent, guardian, or legal custodian to obtain any assistance that may be needed to effectively provide the care and control necessary for the child to return home.

Comments

This provision is new and sets the parameters for a detention hearing. Subsection (b)(1) codifies the Court of Appeals holding in A.M. v. Jay Martin (N.D. Ga. 1998) that a hearing must be held within 48 hours if a child is taken into custody without an arrest warrant. Subsections (c) and (d) are drawn from current O.C.G.A. § 15-11-49. Subsection (e) is drawn from recommendations in the Delinquency Guidelines regarding information the child should have at the detention hearing. See Delinquency Guidelines, at 92.

Subsections (f) – (h) are included to ensure compliance with ASFA requirements. These subsections are modeled after California and Iowa. Cal. Welf. & Inst. Code § 636(d); Iowa Code Ann. §§ 232.22(2) and 232.52.

15-11-721. Bail

All children alleged to be delinquent shall have the same right to bail as adults. The judge shall admit to bail all children in the same manner and under the same circumstances and procedures as are applicable to adults accused of the commission of crimes. Any person having legal custody or an adult blood relative or stepparent shall be entitled to post bail but shall be required immediately to return the child to the individual or entity having legal custody of the child.

Comments

This provision is current O.C.G.A. § 15-11-47(d) and is made a stand-alone provision. It remains substantively unchanged but minor revisions have been made to ensure consistency with the rest of the proposed model code.

In Schall v. Martin, 467 U.S. 253 (1984), the Supreme Court implicitly approved the denial of pre-adjudication bail because it approved the use of “preventive” pretrial detention for accused delinquents, provided it was not imposed merely for punishment. When there is an expedited trial of any detained child, immediate review by habeus corpus in the state supreme court and, absent exceptional circumstances, when the child will not be jailed or exposed to adult criminals pending trial, the child’s liberty interests are adequately protected. In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court similarly ruled in a criminal case involving an adult defendant that a trial court could properly consider his “dangerousness” in its pretrial release decision.

Intake or Arraignment

15-11-722. Intake or Arraignment

(a) If a child has not been detained after the filing of a complaint, he or she shall be promptly referred to intake or given a date for arraignment.

(b) At intake or arraignment, the court, the intake officer, or other officer designated by the court shall inform the child of:

(1) The contents of the complaint;

(2) The nature of the proceedings;

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

(c) The intake officer may elect to pursue a case through informal adjustment or other non-adjudicatory procedure in accordance with the provisions of Code section 15-11-723.

(d) The court shall appoint a qualified and competent attorney to represent the child at arraignment unless an attorney has been retained and appears on the child’s behalf.

(e) At arraignment the child may make a preliminary statement indicating whether he or she shall admit or deny the allegations of the complaint at the adjudication hearing but the court shall not accept an admission at arraignment.

(f) If a case is to be prosecuted further and handled other than by informal adjustment or other non-adjudicatory procedure, a petition shall be filed within 30 days of intake or arraignment but no later than 45 days of the filing of a complaint.

Comments

This provision is new and provides procedural guidance for cases initially handled through intake or arraignment. Subsection (b) ensures the child is provided information about the allegations of the complaint and the nature of the proceedings, and is advised of his or her constitutional rights. Subsection (c) permits the handling of a child’s case through informal adjustment or other non-adjudicatory procedure such as mediation. Subsection (f) follows the time limitations for filing a petition set forth in P.M.C. § 15-11-725.

Subsection (e) allows the child to make a preliminary statement admitting or denying the allegations of the complaint at arraignment but prohibits a child from entering a guilty plea at this early stage in the proceedings because a child may not have had adequate opportunity to meet or consult with his or her attorney, particularly in the case of a child who is appointed counsel at arraignment. Nor will the appointed attorney have had the opportunity to investigate and prepare for resolution of the child’s case which is a central component of the right to representation. See Powell v. Alabama, 287 U.S. 45, 57-58 (1932); IJA-ABA Juvenile Justice Standards, Standards Relating to Counsel For Private Parties, §§ 4.2 and 4.3.

Informal Adjustment

15-11-723. Informal adjustment

(a) Before a petition is filed, the probation officer or other officer designated by the court, subject to the court’s direction, may give counsel and advice to the parties with a view to an informal adjustment if it appears that:

(1) The admitted facts bring the case within the jurisdiction of the court;

(2) Counsel and advice without an adjudication would be in the best interests of the public and the child, taking into account at least the following factors:

(A) The nature of the alleged offense;

(B) The age and individual circumstances of the child;

(D) Recommendations for informal adjustment made by the complainant or the victim;

(E) Services to meet the child’s needs and problems may be unavailable within the formal court system or may be provided more effectively by alternative community programs; and

(3) The child and the child’s parent, guardian, or legal custodian consent with knowledge that consent is not obligatory.

(b) The giving of counsel and advice cannot extend beyond three months unless extended by the court for an additional period not to exceed three months and does not authorize the detention of the child if not otherwise permitted by this article.

(c) An incriminating statement made by a participant to the person giving counsel or advice and in the discussion or conferences incident thereto shall not be used against the declarant over objection in any hearing except in a hearing on disposition in a juvenile court proceeding or in a criminal proceeding upon conviction for the purpose of a presentence investigation.

(d) If a child is alleged to have committed a serious violent felony as is defined by Code section 17-10-6.1, the case shall not be subject to informal adjustment, counsel, or advice without the prior written notification of the district attorney or his or her authorized representative.

Comments

This provision is current O.C.G.A. § 15-11-69. Subsection (a)(2) is revised to include factors that should be considered in the initial determination. See Mich. Comp. Laws § 722.824; N.J. Stat. Ann. § 2A:4A-71(b). The notice requirement in subsection (d) is changed to serious violent felonies to encourage intake officers to consider the option of informal adjustment for all but the most serious crimes. See Delinquency Guidelines, at 67.

Petition

15-11-724. Authority to file petition

A petition alleging delinquency shall only be filed by the prosecuting attorney.

Comments

The provisions regarding petitions, P.M.C. §§ 15-11-723 through 15-11-726 are included to create a self-contained article to the extent possible. They largely mirror the provisions regarding petitions in articles 3 and 4 but the comments indicate where any differences appear.

This provision is new and requires that petitions only be filed by a prosecuting attorney as defined in P.M.C. § 15-11-105(22). This is to ensure an effective and efficient system to determine legal sufficiency of complaints. See Delinquency Guidelines, at 66-67.

15-11-725. Time limitations for filing petition

(a) If a child is in detention prior to adjudication, the petition shall be filed within 72 hours of the detention hearing. If no petition is filed within the applicable time, the child shall be released.

(b) If the child is not in detention prior to adjudication, the petition shall be filed within 30 days of arraignment or intake but no later than 45 days of the filing of the complaint alleging violation of a criminal law, or within 30 days of the child’s release pursuant to a determination that detention is not warranted.

Comments

Subsection (a) of this provision is drawn from current O.C.G.A. § 15-11-49(e). Subsection (b) incorporates O.C.G.A. § 15-11-49(b) but provides additional guidance for cases in which the child is not in detention.

15-11-726. 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 interest of the child and the public that the proceeding be brought and that the child is in need of supervision, treatment, or rehabilitation, as the case may be;

(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 legal custodian of the child; or, if neither the child's parent, nor the child's guardian, nor the child's legal 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;

(4) If the child is in custody and, if so, the place of his or her detention and the time the child was taken into custody; and

(5) Whether or not the child is being charged with a designated felony act.

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

Comments

Subsection (a)(5) is added to ensure the child receives adequate notice regarding the severity of the charges.

15-11-727. Amendment of petition

(a) The prosecuting attorney may amend the petition at any time to cure defects of form.

(b) Prior to the adjudication hearing, the prosecuting attorney may amend the petition to include new charges of delinquency. However, if an amendment is made, the child may request a continuance of the adjudication hearing. A continuance may be granted by the court for such period as required in the interest of justice.

(c) When the petition is amended to include new charges of delinquency for adjudication, the petition shall be served in accordance with Code sections 15-11-728 and 15-11-729.

(d) After jeopardy begins, a petition shall not be amended to include new charges of delinquency.

Comments

This provision is new and reflects only language relevant to delinquency proceedings.

Summons and Service

15-11-728. Issuance of summons

(a) The court shall direct the issuance of a summons to the child, the child’s parent, guardian, or legal custodian 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) If a parent, guardian, or legal custodian of any child cannot be found, the court, in its discretion, may proceed with the case without the presence of the parent, guardian, or legal custodian and a guardian ad litem shall be appointed for the child.

(c) 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.

(d) Service may be waived by any person by written stipulation or by voluntary appearance at the hearing. 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 includes language only relevant to delinquency proceedings. Subsection (b) is included to ensure the timeliness of proceedings and is modeled after Colorado Rev. Stat. § 19-2-514(3).

15-11-729. 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.

15-11-730. 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.

(c) If a child 16 years of age or older fails to appear at a hearing after being ordered to so appear, the court may issue a bench warrant requiring that the child be brought before the court without delay and the court may enter any order authorized by and in accordance with the provisions of Code section 15-11-125.

(d) If there is sworn testimony that a child 14 years of age but not yet 16 years of age willfully refuses to appear at a hearing after being ordered to so appear, the court may issue a bench warrant requiring that the child be brought before the court 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) governing failure to appear and the court’s contempt powers. The process is defined and codified for clarity and to ensure uniformity in proceedings. Subsections (c) and (d) are included to provide the court a mechanism by which to secure the appearance of a child who has willfully refused to comply with a court order to appear.

Preadjudication Procedures

15-11-731. Motion for dismissal

A delinquency petition shall be dismissed by the court upon the motion of the prosecuting attorney setting forth that there is not sufficient evidence to warrant further proceedings.

Comments

This provision is taken from current O.C.G.A. §15-11-64.1. It was made a stand-alone provision because the subject matter is entirely different than the rest of O.C.G.A. § 15-11-64.1.

15-11-732. Discovery procedures

(a) Except as limited by Code section 15-11-733(d), in all cases in which a child is charged with having committed a delinquent act, the child shall, upon written request to the prosecuting attorney having actual custody, control, or possession of the material to be produced, have full access to the following for inspection, copying, or photographing:

(1) A copy of the complaint;

(2) A copy of the petition;

(3) The names and last known addresses and telephone numbers of each witness to the occurrence which forms the basis of the charge;

(4) A copy of any written statement made by the child or any witness that relates to the testimony of a person whom the prosecuting attorney intends to call as a witness;

(5) A copy of any written statement made by any alleged coparticipant which the prosecuting attorney intends to use at a hearing, unless a severance has been ordered by the court;

(6) Transcriptions, recordings, and summaries of any oral statement of the child or of any witness, except counsel’s work product;

(7) Any scientific or other report which is intended to be introduced at the hearing or that pertains to physical evidence which is intended to be introduced;

(8) Photographs and any physical evidence which are intended to be introduced at the hearing; and

(9) Copies of the police incident report and supplemental report, if any, regarding the occurrence which forms the basis of the charge.

(b) The prosecuting attorney shall disclose all evidence, known or that may become known to him or her, favorable to the child and material either to guilt or punishment.

(c) If the child requests disclosure of information pursuant to subsection (a) of this Code section, it shall be the duty of the child to promptly make the following available for inspection, copying, or photographing to the prosecuting attorney:

(1) The names and last known addresses and telephone numbers of each witness to the occurrence which forms the basis of the defense;

(2) Any scientific or other report which is intended to be introduced at the hearing or that pertains to physical evidence which is intended to be introduced;

(3) Photographs and any physical evidence which are intended to be introduced at the hearing; and

(4) A copy of any written statement made by any witness that relates to the testimony of a person whom the child intends to call as a witness.

(d) A request for discovery or reciprocal discovery shall be complied with promptly and not later than 48 hours prior to the adjudication hearing, except when later compliance is made necessary by the timing of the request. If the request for discovery is made fewer than 48 hours prior to the adjudication hearing, the discovery response shall be produced in a timely manner.

(e) Any material or information furnished to the child pursuant to a discovery request shall remain in the exclusive custody of the child and shall only be used during the pendency of the case and shall be subject to such other terms and conditions as the court may provide.

Comments

This provision is the first of the several provisions governing discovery in delinquency proceedings. The discovery provisions are drawn from current O.C.G.A. § 15-11-75 and restructured for clarity and consistency with the rest of the proposed code.

This provision is drawn from O.C.G.A. § 15-11-75(a)-(c), (h) and is revised for clarity. Subsections (a)(5) and (b) are included to more closely mirror the discovery procedures in criminal cases. See O.C.G.A. § 17-16-4. Subsection (b) is added to reflect the holding in Brady v. Maryland, 373 U.S. 83 (1963) which states that the withholding of exculpatory material is a violation of due process. Brady, 373 U.S. at 87. See also Kyles v. Whitley, 514 U.S. 419, 438-439 (1995)(summarizing the Brady line of cases and further holding that the prosecutor has a continuing duty to disclose evidence that should be known to be favorable and material).

15-11-733. Motion for discovery; limitations; sanctions

(a) If a request for discovery is refused, application may be made to the court for a written order granting discovery.

(b) Motions for discovery shall certify that a request for discovery was made and was refused.

(d) Notwithstanding Code section 15-11-732(a), the court may deny, in whole or in part, or otherwise limit or set conditions concerning the discovery response upon sufficient showing by a person or entity to whom a request for discovery is made that disclosure of the information would:

(1) Jeopardize the safety of a party, witness, or confidential informant;

(2) Create a substantial threat of physical or economic harm to a witness or other person;

(3) Endanger the existence of physical evidence;

(4) Disclose privileged information; or

(5) Impede the criminal prosecution of a child who is being prosecuted as an adult or the prosecution of an adult charged with an offense arising from the same transaction or occurrence.

Comments

This provision is current O.C.G.A. § 15-11-75(e) and remains substantively unchanged. It has been reorganized for consistency in keeping with the rest of the proposed model code.

15-11-734. Notice of alibi defense

(a) Upon written request by the prosecuting attorney stating the time, date, and place at which the alleged delinquent act was committed, the child shall serve upon the prosecuting attorney a written notice of the child's intention to offer a defense of alibi.

(b) The notice shall state the specific place or places at which the child claims to have been at the time of the alleged delinquent act and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the child, upon whom the child intends to rely to establish the child’s alibi, unless previously supplied.

(c) A request for alibi evidence shall be complied with promptly and not later than 48 hours prior to the adjudication hearing, except when later compliance is made necessary by the timing of the request. If the request for alibi evidence is made fewer than 48 hours prior to the adjudication hearing, the alibi evidence shall be produced in a timely manner.

(d) If the defendant withdraws the notice of intention to rely upon an alibi defense, the notice and intention to rely upon an alibi defense are not admissible. However the prosecuting attorney or entity prosecuting the case may offer any other evidence regarding alibi.

(e) The prosecuting attorney shall serve upon the child a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the state, upon whom the state intends to rely to rebut the child's evidence of alibi, unless previously supplied.

Comments

This provision is current O.C.G.A. § 15-11-75(d) and remains substantively unchanged. It has been revised for clarity and consistency in keeping with the rest of the proposed model code.

15-11-735. Continuing duty to disclose

If, subsequent to providing a discovery response, the existence of additional evidence is found, it shall be promptly provided to the state or child making the discovery request.

Comments

The original language regarding the continuing duty to disclose is taken from O.C.G.A. § 15-11-75(c) and made a stand-alone provision. It has been revised for consistency with the rest of the proposed model code but remains substantively unchanged.

15-11-736. Court discretion to order disclosure

Nothing contained in the provisions governing discovery procedure under this article shall prohibit the court from ordering the disclosure of any information that the court deems necessary and appropriate for proper adjudication.

Comments

This provision is current O.C.G.A. § 15-11-75(g) and remains substantively unchanged. It has been revised for clarity and consistency in keeping with the rest of the proposed model code.

15-11-737. Failure to comply with discovery request

If at any time during the course of the proceedings it is brought to the attention of the court that a person or entity has failed to comply with a discovery request, the court may grant a continuance, prohibit the party from introducing in evidence the information not disclosed, or enter such other order as the court deems just under the circumstances.

Comments

This provision is current O.C.G.A. § 15-11-75(f) and remains substantively unchanged. It has been revised for clarity and consistency in keeping with the rest of the proposed model code.

Transfers

15-11-738. Waiver of juvenile court jurisdiction and transfer to superior court

(a) After a petition has been filed but before the adjudication hearing, on its own motion or on a motion by the prosecuting attorney, the court may convene a hearing to determine whether to transfer the offense to the appropriate superior court for criminal trial if:

(1) The petition alleges that the child has committed an offense which would be a felony if committed by an adult and the child was at least 15 years of age at the time of the commission of the offense;

(2) The petition alleges that the child has committed an offense that is either punishable by loss of life or confinement for life in a penal institution or the offense is aggravated battery resulting in serious bodily injury to the victim and the child was at least 14 years of age at the time of the commission of the offense;

(3) The court determines that there is probable cause to believe that the child committed the alleged offense.

(b) At least three days prior to the scheduled transfer hearing, written notice shall be given to the child, the child’s parent, guardian, or legal custodian. The notice shall contain a statement that the purpose of the hearing is to determine whether the child is to be tried in the juvenile court or transferred for trial as an adult in superior court. The child may request and the court shall grant a continuance to prepare for the transfer hearing.

(c) After consideration of the report prepared by the Department and any other evidence the court deems relevant, including any evidence offered by the child, the court may determine that because of the seriousness of the offense or the child’s prior record, the welfare of the community requires that criminal proceedings against the child be instituted.

(d) No child, either before or after reaching age 18 years of age shall be prosecuted in superior court for an offense committed before the child turned 18, unless the case has been transferred as provided in this article. In addition, no child is subject to criminal prosecution at any time for an offense arising out of a criminal transaction for which the juvenile court retained jurisdiction in its transfer order.

Comments

The decision to send a child to superior court has serious and profound consequences. The automatic transfer laws, O.C.G.A. § 15-11-28(b) (known in Georgia as “SB440”), and O.C.G.A. § 15-11-30.3 mandating the automatic transfer of a child 15 years of age or older committing a designated felony, provide for automatic transfer by statutory exclusion and thereby strip the juvenile court of its authority to make individualized, case-by-case determinations of whether jurisdiction should be waived. While there may be some children for which transfer is appropriate, the decision should remain the province of the juvenile court judges who have the requisite experience and ability to evaluate all relevant factors. Delinquency Guidelines, at 102 (affirming the “policy that waiver and transfer decisions should only be made on an individual, case by case basis, and not on the basis of the statute allegedly violated….”).

The transfer of children to criminal court has been remarkably ineffective. See Campaign For Youth Justice, The Consequences Aren’t Minor: The Impact of Trying Youth as Adults and Strategies for Reform 14 (2007)(emphasizing that laws sending children to adult court have not been proven to reduce crime); See also Robert Hahn et al., Cntrs. for Disease Control and Prevention, Effects on Violence of Laws and Policies Facilitating the Transfer of Youth From the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services (Nov. 30, 2007)(concluding that “the use of transfer laws and strengthened transfer policies is counterproductive for the purpose of reducing juvenile violence and enhancing public safety.”). Studies show that children who have been transferred are more likely to reoffend, reoffend more quickly, and at a higher rate. See Coalition for Juvenile Justice, Childhood on Trial: The Failure of Trying and Sentencing Youth in Adult Criminal Court, 23 (2005); See also Building Blocks For Youth, Youth Crime/Adult Time, Key Studies on Transferring Youth to Criminal Court (summarizing studies on the impact of transfer to criminal court showing increased recidivism and failure to provide effective punishment) available at http://www.buildingblocksforyouth.org/ycat/studies.html; Jeffrey A. Butts and Ojmarrh Mitchell, Brick by Brick: Dismantling the Border Between Juvenile and Adult Justice, 2 Boundary Changes in Criminal Justice Organizations: Criminal Justice 2000 at 198-199 (2000)(summarizing the results of a 1998 study by Risler, Sweatman, and Nackerud on the effects of Georgia’s transfer laws and finding that there was no general deterrent effect).

While individual parts of the current waiver of jurisdiction provision, O.C.G.A. § 15-11-30.2, are incorporated, the provisions governing the waiver of juvenile court jurisdiction and transfer to superior court are new and can be found at P.M.C. §§ 15-11-738 through 15-11-743. They are intended to provide a clear deliberative process for transfer proceedings and return all decisions regarding waiver and transfer to the able hands of the juvenile court as contemplated by Kent v. U.S., 383 U.S. 541, 557 (1966) (holding that Kent “was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court’s decision.”).

This provision provides a general preview of the transfer process. Subsection (a) includes two current categories of children eligible for transfer: a child who is at least 15 years old and has been alleged to have committed an offense that would be a felony and the child who is at least 14 years old and is alleged to have committed an offense punishable by loss of life or life imprisonment. See O.C.G.A. § 15-11-30.2(4). Under this new provision, the 13 year-old child is no longer eligible for transfer. This reflects the findings of the MacArthur competency study that children under the age of 14 were likely not competent to stand trial. Laurence Steinberg, MacArthur Foundation Study Calls Competency into Question, 18 Criminal Justice 20 (Fall 2003).

Subsection (b) includes the notice requirements from O.C.G.A. § 15-11-30.2(a)(2) and further specifies that a continuance can be requested and granted (in accordance with the provisions of P.M.C. § 15-11-708) in recognition that three days does not provide much time to prepare for so significant a proceeding. Subsection (d) clarifies when offenses remain under juvenile court jurisdiction. Subsection (d) incorporates language from O.C.G.A. § 15-11-30.2(d) and from Texas Fam. Code Ann. § 54.02(g).

15-11-739. Transfer criteria; Department of Juvenile Justice report; contents

(a) The criteria which the court shall consider in determining whether to transfer the child to superior court includes but is not limited to:

(1) The age of the child;

(2) The seriousness of the alleged offense and whether the protection of the community requires waiver of jurisdiction;

(3) Whether the alleged offense involved violence or was committed in an aggressive or premeditated manner;

(4) Whether the alleged offense was against persons or property with greater weight being given to the offense against persons, especially if personal injury resulted;

(5) The culpability of the child including the level of planning and participation in the alleged offense

(6) Whether the alleged offense is a part of a repetitive pattern of offenses which indicates that the child may be beyond rehabilitation in the juvenile justice system;

(7) The desirability of trial and disposition of the entire offense in one court when the child’s associates in the alleged offense are adults who will be charged with a crime;

(8) The record and history of the child, including experience with the juvenile justice system, other courts, supervision, commitments to juvenile institutions and other placements;

(9) The sophistication and maturity of the child as determined by consideration of his home and environmental situation, emotional condition and pattern of living;

(10) The program and facilities available to the juvenile court in considering disposition; and

(11) Whether or not the child can benefit from the treatment or rehabilitative programs available to the juvenile court.

(b) The Department shall prepare a written report developing fully all available information relevant to the transfer criteria.

(c) The Department shall submit the report to the court as soon as practicable but not later than 24 hours before the scheduled hearing.

(d) The child shall have the right to review the report prepared by the Department and cross-examine the individual making the report.

Comments

This provision is new and addresses the factors the court shall consider in determining whether transfer is appropriate. The Department is charged with preparing a report developing these factors. This provision is modeled after the transfer statutes of Hawaii, Missouri, and New Hampshire. Haw. Rev. Stat. § 571-22(c)(4); Mo. Rev. Stat. § 211.071(6); N.H. Rev. Stat. Ann. § 169-B:24. Subsection (c) reflects the policy that the child should have access to all evidence available to the court which could be used in its determination. IJA-ABA Juvenile Justice Standards, Standards Relating to Transfer Between Courts, Standard 2.3(D); See also Kent v. U.S.,383 U.S. at 562.

15-11-740. Conduct of transfer hearing

(a) The transfer hearing shall be conducted in accordance with the provisions of Code section 15-11-747 relating to adjudication hearings, except that only such evidence which pertains to the transfer criteria set out in Code section 15-11-739 may be introduced.

(b) Statements made by the child at the hearing are not admissible against the child over objection in the criminal proceedings, if transfer is ordered.

Comments

This provision limits the evidence introduced at the hearing to only that which is relevant to the transfer criteria. Subsection (b) is intended to eliminate the fear that statements will be used in a possible criminal proceeding and thereby encourages candor which may result in a better-informed decision by the court. See IJA-ABA Juvenile Justice Standards, Standards Relating to Transfer Between Courts, Standard 2.3(I).

15-11-741. Appeal of transfer order

(a) The decision of the court regarding transfer of the case is only an interlocutory judgment which either the child or the prosecuting attorney, or both, have the right to have reviewed by the court of appeals.

(b) The pendency of an interlocutory appeal shall stay criminal proceedings in superior court. A child transferred for trial as an adult in superior court shall be detained only in those places authorized for the preadjudication detention of a child.

Comments

This provision permits an interlocutory appeal of the court’s order because of the potentially serious consequences resulting from the court’s decision. Delinquency Guidelines, at 107. § 2.4 of the Standards Relating to Transfer Between Courts advocates that the right to appeal be exercised within 7 days of the court’s decision and emphasizes the need to allow for immediate appeal to avoid “the reconstructed waiver hearing.” See IJA-ABA Juvenile Justice Standards, Standards Relating to Transfer Between Courts, § 2.4, cmts.; See also D.C. Code Ann. § 16-2328 (requiring that a child’s appeal be filed within 2 days of the court’s decision to transfer and providing additional detailed timelines for interlocutory appeals in transfer cases).

15-11-742. Detention of child before and after waiver of juvenile court jurisdiction

(a) Prior to the entry of a judgment ordering a child’s transfer or during the pendency of an appeal of a judgment ordering a child’s transfer, the child shall be detained only in those places authorized for the preadjudication detention of a child.

(b) After the entry of a judgment ordering transfer, a child shall be detained only in those places authorized for the detention of a child until the child reaches 18 years of age.

Comments

This provision reiterates that a child may only be detained in juvenile detention facilities. See comments to P.M.C. § 15-11-128. There is no requirement that a child transferred to adult court be placed in an adult facility. See Delinquency Guidelines, at 84 (noting further that “waiver and transfer do not transform a child into an adult.”).

15-11-743. Orders of court; transfer; dismissal

(a) If the court decides to transfer the child for trial in superior court, it shall dismiss the juvenile court petition, set forth the offense or offenses which are being transferred, and make these findings of fact in its dismissal order:

(1) That the court had jurisdiction of the cause and the parties;

(2) That the child was represented by an attorney; and

(3) That the hearing was held in the presence of the child and the child’s attorney.

(b) The dismissal order shall also recount the reasons underlying the decision to transfer jurisdiction.

(c) A dismissal of the petition terminates the jurisdiction of the juvenile court over the child as to those offenses which are transferred. If the petition alleges multiple offenses that constitute more than a single criminal transaction, the court shall either retain or transfer all offenses relating to a single criminal transaction.

(d) Once juvenile court jurisdiction is waived, the superior court shall retain jurisdiction even though, thereafter, the child pleads guilty to, or is convicted of, a lesser included offense. The plea to, or conviction of, a lesser included offense shall not revest juvenile jurisdiction over the child.

(e) A copy of the petition and order of dismissal shall be sent to the district attorney of the judicial circuit in which the proceeding is taking place.

(f) If the court decides not to transfer the child for trial in superior court, it shall set a date for an adjudication hearing in juvenile court on the petition.

Comments

This provision requires detailed written findings to support the court’s decision. It also explains the effect of a transfer order and provides procedural guidance. Subsections (c) and (d) are modeled after Hawaii Rev. Stat. § 571-22(j) and Louisiana Children’s Code Ann. art. 863(A).

15-11-744. Criminal court transfers to juvenile court

(a) Except in those cases in which juvenile court jurisdiction has been waived and the child has been transferred to superior court, if it appears to any court in a criminal proceeding or a quasi-criminal proceeding that the defendant is a child, the case shall forthwith be transferred to the juvenile court together with a copy of the accusatory pleading and all other papers, documents, and transcripts of testimony relating to the case.

(b) The transferring court shall order that the child be taken forthwith to the juvenile court or to a place of detention designated by the court or shall release him or her to the custody of his or her parent, guardian, legal custodian, or other person legally responsible for him or her, to be brought before the juvenile court at a time designated by that court. The accusatory pleading may not serve in lieu of a petition in the juvenile court.

Comments

This provision is current O.C.G.A. § 15-11-30.4. It is revised to reflect the repeal of superior court jurisdiction pursuant to O.C.G.A. § 15-11-28(b) and it has been restructured for consistency in keeping with the rest of the proposed model code.

Adjudication

15-11-745. Admission or denial of the allegations of a petition

(a) At the commencement of the adjudication hearing, the court shall address the child, in language understandable to the child, and determine whether the child is capable of understanding statements about his or her rights under this chapter.

(b) If the child is capable, the court shall inquire how the child responds to the allegations of the petition. The child may:

(1) Deny the allegations of the petition, in which case the court shall proceed to hear evidence on the petition.

(2) Admit the allegations of the petition, in which case the court shall further inquire to determine whether there is a factual basis for adjudication. If so, the court may then adjudge the child to have committed a delinquent act.

(c) If the child stands mute, refuses to answer, or answers evasively, the court shall enter a denial of the allegations.

Comments

This provision is new and governs pleas in juvenile proceedings. It is modeled, in part, after Louisiana Children’s Code Ann. §§ 855 and 866. Plea-bargaining is widely overused and abused in the juvenile justice system. Elizabeth Calvin et. al, Nat’l Juvenile Defender Ctr., Juvenile Defender Delinquency Notebook, 173 (2d ed. 2006). One way to protect against the abuse of the plea-bargaining process is to regulate it by setting clear standards to determine when a plea is a “voluntary and intelligent act” on the part of the child. See IJA-ABA Juvenile Justice Standards, Standards Relating to Adjudication, Part III: Gen. Mat’l. To receive a child’s admission of guilt, the court must first ensure that the child responds voluntarily and with full knowledge of the consequences of the admission. Boykin v. Alabama, 395 U.S. 238, 242 (1969). A child will have been informed of his or her constitutional rights as well as the possible consequences of an adjudication of guilt at intake, arraignment, or the detention hearing. See P.M.C. §§ 15-11-7 and 15-11-7. The court’s inquiry in subsection (a) ensures that the Boykin constitutional mandate is met. If the court determines that the child appears incapable of understanding, the court can proceed in accordance with the provisions of article 8 governing competency in delinquency proceedings.

15-11-746. Standard of proof

The state shall have the burden of proving the allegations of a delinquency petition beyond a reasonable doubt.

Comments

This provision is new and included to reflect the organizational structure of the proposed model code. In In re Winship, 397 U.S. 358 (1970), the Supreme Court held that the state’s due process burden in juvenile delinquency cases was proof beyond a reasonable doubt. The standard of beyond a reasonable doubt is current law. O.C.G.A. § 15-11-65(a).

15-11-747. Adjudication hearing

(a) The court shall fix a time for the adjudication hearing. If the child is in detention, the hearing shall be held no later than ten days after the filing of the petition. If the child is not in detention, the hearing shall be held no later than 60 days after the filing of the petition.

(b) Adjudication hearings shall be conducted:

(1) By the court, without a jury;

(2) In accordance with the Georgia Rules of Evidence and the Georgia Rules of Criminal Procedure; and

(3) In language understandable to the child before the court, to the fullest extent practicable.

(c) The court shall determine if the allegations of the petition are admitted or denied in accordance with the provisions of Code section 15-11-745.

(d) After hearing all of the evidence, the court shall make and record its findings on whether the delinquent acts ascribed to the child were committed by the child. If the court finds that the allegations of delinquency have not been established, it shall dismiss the petition and order the child released from any detention or legal custody imposed in connection with the proceedings.

(e) The court shall make a finding that the child has committed a delinquent act based on a valid admission made in open court of the allegations of the petition or on the basis of proof beyond a reasonable doubt. If the court finds that the child has committed a delinquent act, the court may proceed immediately or at a postponed hearing to make disposition of the case.

Comments

This provision is new and provides procedural guidance for adjudication hearings.

Predisposition Investigation

15-11-748. Predisposition investigation and report

(a) After an adjudication that the child has committed a delinquent act, the court shall direct that a written predisposition investigation report be prepared by the probation officer or other person designated by the court.

(b) The predisposition report need not be prepared if the court finds that adequate and current information is available from a previous investigation, report, or other sources.

(c) The predisposition investigation report shall contain information about the child's characteristics, family, environment and the circumstances affecting the child's behavior as may be helpful in determining the need for treatment or rehabilitation and a proper disposition of the case, including but not limited to:

(1) A summary of the facts with respect to the conduct of the child that led to the adjudication;

(2) The sophistication and maturity of the child;

(3) A summary of the child’s home environment, family relationships, and background;

(4) A summary of the child’s prior contacts with the juvenile court and law enforcement agencies, including the disposition following each contact and the reasons therefore;

(5) A summary of the child's educational status, including, but not limited to, the child's strengths, abilities, and special educational needs. The report shall identify appropriate educational and vocational goals for the child. Examples of appropriate goals include:

(A) Attainment of a high school diploma or its equivalent;

(B) Successful completion of literacy course(s);

(D) Successful attendance and completion of the child's current grade if enrolled in school; or

(E) Enrollment in an apprenticeship or a similar program.

(6) A summary of the results and recommendations of any significant physical and mental examinations;

(7) The seriousness of the offense to the community;

(8) Whether the delinquent act was committed in an aggressive, violent, premeditated, or willful manner;

(9) Whether the offense was against persons or against property, greater weight being given to offenses against persons; and

(10) An evaluation of the foregoing information, a recommendation as to disposition, and a suggested postdisposition plan of care, and treatment or rehabilitation.

(d) If the court has ordered a physical or mental examination to be conducted, the report shall include a copy of the results of the examination.

(e) The report shall contain only information that is relevant to the court’s disposition, and all information shall be presented in a concise, factual, and unbiased manner. The report shall indicate the sources of information in the report.

(f) The original report and any other material to be disclosed shall be furnished to the court, and copies shall be furnished to counsel for the child and to the prosecuting attorney at least five days prior to the disposition hearing.

Comments

Current O.C.G.A. § 15-11-12 allows for the development of a social study report. This new provision expands on that basic mandate but is relevant only to delinquency proceedings. It retains the requirement that a report can only be developed after an admission or after a finding that the child has committed a delinquent act. See also, IJA-ABA Juvenile Justice Standards, Standards Relating to the Juvenile Probation Function: Intake and Predisposition Investigative Services, § 3.4(A). It also provides additional guidance on the contents of the report and is modeled after Florida Rev. Stat. § 985.433(6). Subsections (e) and (f) are modeled after § 3.3(F), (G) of the Standards Relating to the Juvenile Probation Function: Intake and Predisposition Investigative Services; See also Delinquency Guidelines, at 139.

Disposition

15-11-749. Disposition hearing

(a) The court may proceed immediately to the disposition hearing after the adjudication hearing or conduct the disposition hearing within 30 days of the adjudication hearing. The hearing may occur later only if the court makes and files written findings of fact explaining the need for delay.

(b) In the absence of evidence to the contrary, evidence sufficient to warrant a finding that acts have been committed which constitute a felony is also sufficient to sustain a finding that the child is in need of treatment or rehabilitation.

(c) If the court finds that the child is not in need of treatment, rehabilitation, or supervision, it shall dismiss the proceeding and discharge the child from any detention or other restriction previously ordered.

(d) If the court finds that the child is in need of supervision but not of treatment or rehabilitation, it shall find that the child is a child in need of services and enter any disposition authorized by Code section 15-11-625.

(e) 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.

(f) 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.

(g) In scheduling investigations and hearings, the court shall give priority to proceedings in which a child is in detention or has otherwise been removed from his or her home.

Comments

This provision incorporates O.C.G.A. § 15-11-65(a) and (b). It has been restructured for consistency in keeping with the rest of the proposed model code. Subsection (d) reflects the addition of article 6 and the availability of child in need of services proceedings for this category of children. Subsection (f) is modeled after Maine Rev. Stat. Ann. tit. 15 § 3312(3)(C).

15-11-750. Disposition of delinquent child

(a) At the conclusion of the disposition hearing, if the child is determined to be in need of treatment or rehabilitation, the court shall enter the least restrictive disposition order appropriate in view of the seriousness of the delinquent act, the child’s culpability as indicated by the circumstances of the particular case, the age of the child, and the child’s prior record. The court may make any of the following orders of disposition, or combination of them, best suited to the child's treatment, rehabilitation, and welfare:

(1) Any order authorized for the disposition of a deprived child other than placement in the temporary custody of the Division of Family and Children Services unless the child is also found to be a deprived child;

(2) An order requiring the child and the child's parent, guardian, or legal custodian to participate in counseling or in counsel and advice. 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 and shall be designed to assist in deterring future delinquent acts or other conduct or conditions which would be harmful to the child or society.

(3) An order placing the child on probation under conditions and limitations the court prescribes. In any case in which a child who has not achieved a high school diploma or the equivalent is placed on probation, the court shall consider and may require as a condition of probation that the child pursue a course of study designed to lead to achieving a high school diploma or the equivalent. The court may place a child on probation under the supervision of:

(A) The probation officer of the court or the court of another state;

(B) Any public agency authorized by law to receive and provide care for the child; or

(C) Any community rehabilitation center if its chief executive officer has acknowledged in writing its willingness to accept the responsibility for the supervision of the child;

(4) An order 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) An order requiring that the child make restitution. This order may remain in force and effect simultaneously with another order of the court, including, but not limited to an order of commitment to the Department. However, no order of restitution shall be enforced while the child is in placement at a youth development center unless the Commissioner of Juvenile Justice certifies that a restitution program is available at the facility. 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 to 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 Department;

(B) 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;

(C) The superior court once the child reaches 18 years of age if the child thereafter comes under the jurisdiction of the court;

(6) An order requiring the child remit to the general fund of the county a sum not to exceed the maximum fine applicable to an adult for commission of any of the following offenses:

(A) Any felony in the commission of which a motor vehicle is used;

(B) Driving under the influence of alcohol or drugs;

(D) Fraudulent or fictitious use of a license;

(E) Hit and run or leaving the scene of an accident;

(F) Homicide by vehicle;

(G) Manslaughter resulting from the operation of a motor vehicle;

(H) Possession of controlled substances or marijuana;

(I) Racing on highways or streets;

(J) Using a motor vehicle in fleeing or attempting to elude an officer; or

(K) Any violation of the code sections contained in Title 40 which is properly adjudicated as a delinquent act.

(7) An order suspending the child’s driver’s license for a period not to exceed the date on which the child reaches 18 years of age or, in the case of a child who does not have a driver’s license, an order prohibiting the issuance of a driver’s license to the child for a period not to exceed the date on which the child reaches 18 years of age. The court shall retain the driver’s license during the period of suspension and return it to the child at the end of the period. The court shall notify the Department of Driver Services of any actions taken pursuant to this subsection;

(8) An order placing the child in an institution, camp, or other facility for delinquent children operated under the direction of the court or other local public authority;

(9) An order committing the child to the Department.

(b) In addition to any other treatment or rehabilitation, the court may order the child to serve up to a maximum of 60 days in a youth development center, or after assessment and with the court's approval, in a treatment program provided by the Department or the juvenile court. This subsection applies in those cases involving:

(1) An offense that would be a felony if committed by an adult;

(2) An offense that would be a misdemeanor of a high and aggravated nature if committed by an adult and involving bodily injury or harm or substantial likelihood of bodily injury or harm; or

(3) A violation of probation involving another adjudicated delinquent act and upon the court making a finding of fact that the child has failed to respond to graduated alternative sanctions;

(c) Notwithstanding the provisions of subsections (a) and (b) of this Code section, if a child is found to have committed the offense of driving under the influence, the court shall make an order of disposition which, for purposes of the child's rehabilitation, imposes the same penalty, period of confinement, and period of community service which are applicable to an adult convicted of the offense. The child shall serve any period of confinement in an institution, camp, or other facility for delinquent children operated under the direction of the court or other local public authority or, if no such facility is available, in a regional youth detention center, provided that the child is kept segregated from all children other than those confined for committing this offense. A previous finding that the child committed the offense of driving under the influence shall be deemed a previous conviction for purposes of this subsection. The court shall have the same authority and discretion regarding allowing service of confinement on weekends or during non-working hours as is provided under Code section 17-10-3.1(a).

(d) The child shall be given adequate information concerning the obligations and conditions imposed upon him or her by the disposition ordered by the court and the consequences of failure to meet such obligations and conditions. This information shall be given in terms understandable to the child to enable the child to conform his or her conduct to the requirements of the disposition.

(e) The court shall accompany the imposition of a particular disposition with a statement of facts relied on in support of the disposition and the reasons for selecting the disposition and rejecting less restrictive alternatives.

Comments

This provision is drawn from O.C.G.A. § 15-11-66. It retains the current disposition options available for a child determined to be in need of treatment or rehabilitation but they have been reorganized for clarity and consistency in keeping with the rest of the proposed model code. In addition the reorganization of the disposition options aims to incorporate all the possible options within a single provision. Accordingly, current O.C.G.A. § 15-11-68 is brought in as subsection (a)(3) and remains substantively unchanged. Because O.C.G.A. § 15-11-68 is also a disposition option for a deprived child, it is also included as a disposition option in article 3.

Subsection (a) highlights the policy that appropriate dispositions should be the least restrictive in type and duration that the court determines will best serve the community and the child. Delinquency Guidelines, at 136, 143. This language was modeled after § 2.1 of the Standards Relating to Dispositions and Iowa Code Ann. § 232.52(1). See IJA-ABA Juvenile Justice Standards, Standards Relating to Dispositions, § 2.1 (stating that “[i]n choosing among statutorily permissible dispositions, the court should employ the least restrictive category and duration of disposition that is appropriate to the seriousness of the offense, as modified by the degree of culpability indicated by the circumstances of the particular case, and by the age and prior record of the child”).

The offense of driving under the influence is a violation of O.C.G.A. § 40-6-391(k). Numerical references to other titles of the Georgia Code were replaced by descriptive phrases to avoid cross-references. Subsection (d) highlights the policy that a child should receive adequate information regarding the disposition in clear unambiguous terms. Delinquency Guidelines, at 145. Subsection (e) is also modeled after § 2.1 of the Standards Relating to Dispositions.

15-11-751. Disposition; designated felony act

(a) When a child is found to have committed a designated felony act, the order of disposition shall be made within 20 days of the conclusion of the disposition hearing. The court may make one of the following orders of disposition best suited to provide for the rehabilitation of the child and the protection of the community:

(1) Any order authorized by Code section 15-11-750 if the court finds that restrictive custody is not required; or

(2) An order placing the child in restrictive custody.

(b) Every order shall include a finding, based on a preponderance of the evidence, of whether the child requires restrictive custody. In determining whether restrictive custody is required, the court shall consider and make specific written findings of fact as to each of the following factors:

(1) The age of the child;

(2) The needs and best interests of the child;

(3) The record and background of the child;

(4) The nature and circumstances of the offense, including whether any injury involved was inflicted by the child or another participant;

(5) The need for protection of the community; and

(6) The age and physical condition of the victim.

(1) The child be placed in the custody of the Department for an initial period of five years;

(2) The child be confined in a youth development center for a period set by the order, not to exceed 60 months. Time spent in secure detention subsequent to the date of the order and prior to placement in a youth development center shall be counted toward the period set by the order;

(3) After a period of confinement set by the court, the child may be placed under intensive supervision not to exceed 12 months; and

(4) If the child is confined in a youth development center, the child may not be released or transferred to a nonsecure facility unless by court order pursuant to Code section 15-11-126. The child may not be released from intensive supervision unless by court order and with the written approval of the Commissioner of Juvenile Justice or a designated deputy. All home visits shall be carefully arranged and monitored while a child is confined in a youth development center.

(d) During the child’s placement or any extension of the restrictive custody order:

(1) While in a youth development center, the child shall be permitted to participate in all youth development center services and programs and shall be eligible to receive special medical and treatment services, regardless of the time of confinement in the youth development center. A child may be eligible to participate in programs sponsored by the youth development center including community work programs and sheltered workshops under the general supervision of a youth development center staff outside of the youth development center. In cooperation and coordination with the Department of Human Resources, the child shall be allowed to participate in state-sponsored programs for evaluation and services under the Division of Rehabilitation Services of the Department of Labor and the Division of Mental Health, Developmental Disabilities, and Addictive Diseases.

(2) The child shall not be discharged from the custody of the Department unless a motion therefor is granted by the court. A motion to discharge a child from the custody of the Department shall be filed not more than once every six months and must be accompanied by a written recommendation for discharge from the child’s counselor, placement supervisor, or the Department. Notwithstanding Code section 15-11-126, the court may grant the motion if it finds that the goals of rehabilitation have been met.

(3) Unless otherwise specified in the order, the Department shall report in writing to the court not less than once every six months during the placement on the status, adjustment, and progress of the child.

(e) The period of placement in a youth development center may be extended on motion by the Department, after a disposition hearing, for two additional periods not to exceed 12 months each, provided that no placement or extension of custody may continue beyond the child’s twenty-first birthday.

(f) The court shall identify the school last attended by the child and the school which the child intends to attend and shall transmit a copy of the adjudication to the principals of both schools within 15 days of the adjudication. Such information shall be subject to notification, distribution, and requirements as provided in Code section 20-2-671.

Comments

This provision is drawn from the current designated felony statute, O.C.G.A. § 15-11-63. It has been revised and restructured for clarity and consistency in keeping with the rest of the proposed model code.

Subsection (b) clarifies that written findings on whether a child requires restrictive custody are required in every order regardless of whether the child is placed in restrictive custody. Subsection (b) also adds the age of the child to the factors the court must consider. See O.C.G.A. § 15-11-63(c).

O.C.G.A. § 15-11-63(d) regarding mandatory restrictive custody for cases involving a person 62 or more years of age is stricken to restore judicial discretion and allow the court to make a decision based on an individualized, case-by-case examination. Similarly, all references to mandatory sentencing and conditions have been revised to restore judicial discretion. Mandatory minimum sentences undermine a basic premise of the juvenile justice system: to provide individualized attention so that the court can consider the individual characteristics and needs of the child. Gloria Danziger, Delinquency Jurisdiction in a Unified Family Court: Balancing Prevention, Intervention, and Adjudication, 37 Fam. L. Q. 381, 400 (2003); Jeffrey A. Butts, Can We Do Without Juvenile Justice, 15 Am. Bar Ass’n Criminal Justice Magazine 1 (2000); Heidi Treiber, Juvenile Justice: Rehabilitating the System After the Introduction of Mandatory Minimum Sentences, 3 Suffolk J. Trial & App. Advoc. 175, 182-183, 189-190 (1998).

Professor Barry Feld has discussed the mandatory sentences in Georgia’s designated felony statute as an example of laws passed to ensure children who have committed serious offenses are restricted for a significant amount of time and states that “…mandatory minimum sentences based on youths' serious or persistent offending preclude individualized consideration of their real needs. Moreover, mandating extended minimum terms of confinement for serious offenders increases the average length of stay, increases institutional populations, and exacerbates overcrowding.” Barry Feld, Juvenile and Criminal Justice Systems’ Responses to Youth Violence, 24 Crime and Just. 189, 227 (1998) (citing Krisberg and Austin 1993).

Subsection (e)(2) is revised to clarify the modification procedure for a motion for early discharge. In In re J.V., 638 S.E.2d 757 (Ga. App. 2006) a child moved to modify his custody order based on a claim of rehabilitation. The court held that this was, in effect, an argument that the motion to modify should be granted based on the best interests of the child which is prohibited by O.C.G.A. § 15-11-40. In re J.V., at 759-760. These revisions allow for modification when there is evidence that the goals of rehabilitation have been met and the motion is supported by the child’s counselor or placement supervisor or the Department.

15-11-752. Disposition of child adjudged to have committed a delinquent act constituting AIDS transmitting crime; HIV testing; reports

(a) As part of any order of disposition regarding a child adjudged to have committed a delinquent act constituting an AIDS transmitting crime, the court may in its discretion and after conferring with the director of the health district, order that the child submit to an HIV test within 45 days following the adjudication of delinquency. The court shall mail the Department a copy of the order within three days following its issuance.

(b) Within 30 days following receipt of the copy of the order, the Department shall arrange for the HIV test for the child.

(c) Any child sentenced to the custody and control of the Department shall be HIV-tested in accordance with the Department’s policies and procedures.

(d) If a child is determined to be infected with HIV, that determination and the name of the child shall be deemed to be AIDS confidential information and shall only be reported to:

(1) The Department and the Department of Human Resources, which may disclose the name of the child if necessary to provide counseling. The Department of Human Resources shall provide counseling to each victim of the AIDS transmitting crime or to any parent, guardian, or legal custodian of any victim who is a minor or incompetent person, if the Department believes the crime posed a reasonable risk of transmitting HIV to the victim. Counseling shall include providing the person with information and explanations medically appropriate for that person which may include all or part of the following: accurate information regarding AIDS and HIV; an explanation of behaviors that reduce the risk of transmitting AIDS and HIV; an explanation of the confidentiality of information relating to AIDS diagnoses and HIV tests; an explanation of information regarding both social and medical implications of HIV tests; and disclosure of commonly recognized treatment or treatments for AIDS and HIV.

(2) The court which ordered the HIV test; and

(3) Those persons in charge of any facility to which the child has been confined by order of the court. In addition to any other restrictions regarding the confinement of a child, a child determined to be an HIV-infected person may be confined separately from any other children in that facility other than those who have been determined to be infected with HIV if:

(A) That child is reasonably believed to be sexually active while confined;

(B) That child is reasonably believed to be sexually predatory either during or prior to detention; or

(C) The Commissioner of Juvenile Justice reasonably determines that other circumstances or conditions exist which indicate that separate confinement would be warranted.

Comments

This provision is current O.C.G.A. § 15-11-66.1. It has been revised for clarity and consistency in keeping with the rest of the proposed model code. Subsection (d)(1) is expanded to include the descriptive language regarding counseling to avoid a cross-reference to O.C.G.A. § 31-22-9.1(6). All references to the Department of Corrections have been stricken to reflect the elimination of the option of placing a child in an adult facility.

15-11-753. Graduated sanctions

The Department, in conjunction with the Council of Juvenile Court Judges, shall establish and monitor a graduated alternative sanctions program for children on probation. The graduated alternative sanctions program shall be implemented in each judicial circuit in consultation with the judge of the juvenile court. The graduated alternative sanctions program may include, but shall not be limited to, community service, electronic monitoring, increased reporting or intensive supervision, home confinement, day or evening reporting centers, or treatment intervention.

Comments

This provision is current O.C.G.A. § 15-11-66(b)(2) and remains substantively unchanged.

15-11-754. Order of disposition not conviction of a crime

An order of disposition or other adjudication is not a conviction of a crime and does not impose any civil disability ordinarily resulting from a conviction nor operate to disqualify the child in any civil service application or appointment.

Comments

This provision is current O.C.G.A. § 15-11-72 and remains substantively unchanged. The minor revision is made for consistency in keeping with the rest of the proposed model code.

15-11-755. Duration of orders of disposition

(a) Except as otherwise provided by law, an order of disposition committing a child adjudicated delinquent to the Department continues in force for two years or until the child is sooner discharged by the Department. The court which made the order may extend its duration for an additional two years subject to like discharge, if:

(1) A hearing is held upon motion of the Department prior to the expiration of the order;

(2) Reasonable notice of the factual basis of the motion and of the hearing and an opportunity to be heard are given to the child and the parent, guardian, or legal custodian; and

(3) The court finds that the extension is necessary for the treatment or rehabilitation of the child.

(b) With the exception of an order of probation for a child found to have committed a designated felony offense which may continue in force for not more than five years, any other 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 Department, 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.

(c) 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.

(d) Unless otherwise provided by law, when a child reaches 21 years of age, all orders affecting him or her then in force terminate and he or she is discharged from further obligation or control.

Comments

This provision is drawn from O.C.G.A. § 15-11-70 and has been revised for clarity and consistency in keeping with the rest of the proposed model code. Current O.C.G.A. § 15-11-70(c) has been revised to include language regarding the option of placing a child adjudicated of having committed a designated felony on probation for not more than five years. The intent of current O.C.G.A. § 15-11-70(b), also known as “Amy’s Law,” is incorporated in the revisions made to the designated felony statute which permits the court to place a child found to have committed any of the most serious offenses in restrictive custody for an initial period of five years with the possibility of two additional extensions of custody. See P.M.C. § 15-11-751.

15-11-756. Probation revocation

(a) An order granting probation to a child found to be delinquent may be revoked on the ground that the conditions of probation have been violated.

(b) Any violation of a condition of probation may be reported to the prosecuting attorney who may initiate a petition in the court for revocation of probation. A petition for revocation of probation shall contain specific factual allegations constituting each violation of a condition of probation.

(c) The petition shall be served upon the child, his or her attorney, parent, guardian, or legal custodian in accordance with the provisions of Code section 15-11-729.

(d) If a child is taken into custody because of the alleged violation, the provisions governing the detention of a child shall apply.

(e) A revocation hearing shall be held no later than 30 days after the filing of the petition, or if the child has been detained as a result of the filing of the petition for revocation, no later than 10 days after the filing of the petition.

(f) If the court finds, beyond a reasonable doubt, that the child violated the terms and conditions of probation, the court may:

(1) Extend probation;

(2) Impose additional conditions of probation; or

(3) Make any disposition that could have been made at the time probation was imposed.

(g) In the case of a designated felony, if the court finds that the child violated the terms and conditions of probation, the court shall reconsider and make specific findings of fact as to each of the factors in Code section 15-11-751(b) to determine whether restrictive custody is required.

Comments

The language regarding probation revocation was taken from O.C.G.A. § 15-11-40(b) and made a stand-alone provision. This provision provides procedural guidance for a revocation hearing and is modeled after Arkansas Code Ann. § 9-27-339 and Colorado Rev. Stat. § 19-2-925(c). Subsection (f) specifies that the court must make new written findings of fact addressing the factors for restrictive custody in designated felony cases.

Permanency Planning

15-11-757. Date of entry into foster care

(a) When a child is alleged to be both delinquent and deprived, the date of entry into foster care shall be 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.

(b) If a child alleged or adjudicated to be delinquent is first placed in a non-eligible placement but is later placed in an eligible shelter care placement within 60 days of the child’s removal from the home, then the date of entry into foster care shall be 60 days from the date of removal.

(c) If the child is detained in a facility operated primarily for the detention of a child determined to be delinquent pending eligible shelter care placement, and remains detained for more than 60 days, then the date of entry into foster care shall be the date the child is placed in eligible shelter care.

Comments

This provision is included to assist in compliance with ASFA requirements when a child is placed in eligible shelter care. Subsection (a) is drawn from O.C.G.A. § 15-11-58(k). Subsections (b) and (c) are drawn from federal regulations regarding initial removal into non-eligible care. 45 CFR § 1356.21(g)(2), (k)(1); See also American Bar Ass’n, Making Sense of the ASFA Regulations, 146-148 (Diane Boyd Rauber ed., 2001); Cal. Welf. & Inst. Code § 727.4(d)(4).

15-11-758. Periodic review hearings

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

Comments

This provision is included to ensure compliance with the requirements of ASFA.

15-11-759. Permanency planning requirements

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

(b) In addition to the compelling reasons set forth in Code section 15-11-352 under article 3, a compelling reason for determining that filing a termination of parental rights petition is not in the best interests of a child alleged or adjudicated to be delinquent may include but not be limited to:

(1) The child’s developmental needs require 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 uncooperative with services or referrals; and

(3) The length of the delinquency disposition affects the permanency plan.

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).

Traffic Offenses

15-11-760. Juvenile traffic offenses

(a) A juvenile traffic offense consists of a violation by a child of:

(1) A law or local ordinance governing the operation of a moving motor vehicle upon the streets or highways of this state or upon the waterways within or adjoining this state; or

(2) Any other motor vehicle traffic law or local ordinance if the child is taken into custody and detained for its violation or is transferred to the juvenile court by the court hearing the charge.

(b) The following offenses shall be acts of delinquency and shall not be handled as juvenile traffic offenses: homicide by vehicle, manslaughter resulting from the operation of a vehicle, any felony in the commission of which a motor vehicle is used, racing on highways and streets, using a motor vehicle in fleeing or attempting to elude an officer, fraudulent or fictitious use of a license, hit and run or leaving the scene of an accident, driving under the influence of alcohol or drugs, possession of a controlled substance or marijuana, and any other offense for which driving privileges may be suspended or revoked for an adult.

(d) The summons, notice to appear, or other designation of a citation accusing a child of committing a juvenile traffic offense constitutes the commencement of the proceedings in the court of the county in which the alleged violation occurred and serves in place of a summons and petition under this article. These cases shall be filed and heard separately from other proceedings of the court. If the child is taken into custody on the charge, Code sections 15-11-717 and 15-11-15-11-719 shall apply. If the child is, or after commencement of the proceedings becomes, a resident of another county of this state, the court in the county where the alleged traffic offense occurred may retain jurisdiction over the entire case.

(e) The court shall fix a time for a hearing and shall give reasonable notice thereof to the child and, if their address is known, to the parent, guardian, or legal custodian. If the accusation made in the summons, notice to appear, or other designation of a citation is denied, a hearing shall be held at which the parties shall have the right to subpoena witnesses, present evidence, cross-examine witnesses, and appear by counsel. The hearing shall be open to the public.

(f) If the court finds on the admission of the child or upon the evidence that the child committed the offense charged, it may make one or more of the following orders:

(1) Reprimand, counsel, or warn the child and the child's parent; provided, however, that this disposition order is not available for any act of delinquency;

(2) As a matter of probation or if the child is committed to the custody of the state, order the Department of Driver Services to suspend the child's privilege to drive under stated conditions and limitations for a period not to exceed 12 months;

(3) Require the child to attend a traffic school approved by the Department of Driver Services or a substance abuse clinic or program approved by either the Department of Human Resources or the Council of Juvenile Court Judges for a reasonable period of time;

(4) Assess a fine and order the child to remit to the general fund of the county a sum not exceeding the maximum applicable to an adult for a like offense. The fine shall be subject to all additions and penalties as specified under this title and Title 47;

(5) Require the child to participate in a program of community service as specified by the court;

(6) Impose any sanction authorized by Code section 15-11-750 or 15-11-625; or

(7) Place the child on probation subject to the conditions and limitations imposed by Title 40 governing probation granted to adults for like offenses, but such probation shall be supervised by the court.

(g) In lieu of the preceding orders, if the evidence warrants, the court may transfer the case to the delinquency calendar of the court and direct the filing and service of a summons and petition.

(h) Upon finding that the child has committed a juvenile traffic offense or an act of delinquency which would be a violation of Title 40 if committed by an adult, the court shall forward, within ten days, a report of the final adjudication and disposition of the charge to the Department of Driver Services; provided, however, that this procedure shall not be applicable to those cases which have been dismissed or in which the child and the child's parent have been reprimanded, counseled, or warned by the court. The Department of Driver Services shall record the adjudication and disposition of the offense on the child's permanent record, and such adjudication and disposition shall be deemed a conviction for the purpose of suspending or revoking the individual's driver's license. Such record shall also be available to law enforcement agencies and courts as are the permanent traffic records of adults.

Comments

This provision is drawn from O.C.G.A. § 15-11-73. It has been revised for clarity and consistency in keeping with the rest of the proposed model code.