Georgia Bar Journal — December 2013
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Georgia’s Juvenile Code: New Law for the New Year

A Collaborative Article

For the first time in more than 40 years, Georgia has a new juvenile code. Not just a warmed up version of the current code, but a comprehensive rewrite that includes the exhaustive research, extensive outreach and pragmatic compromise needed to create the 248-page legislation that the Georgia General Assembly passed unanimously this year and signed into law on May 2, 2013.

Several members of the Child Advocacy and Protection Section have studied the three central articles of the new juvenile code (NJC)2 to highlight the changes that are to take effect on Jan. 1, 2014. Among the contributors to this review are juvenile court prosecutors, juvenile court defense attorneys, special assistant attorneys general (who represent the state in deprivation matters), a parent attorney, a former child attorney and juvenile court judges. Each section benefits from the grouping of traditionally “opposing” points of view. A prosecutor and a defense attorney teamed to highlight the delinquency section; a parent attorney, attorneys for the Division of Family and Children Services (DFCS) and a child attorney (now juvenile court judge) took on the dependency section; and a public defender and a prosecutor tackled the new Children In Need of Services (CHINS) section— all with a goal of highlighting one or two issues in each section, out of many, that make this new legislation so important in our state and a model for change around the country.


The Enhanced Presence of Lawyers
From arrest to disposition, the delinquency section (Article 6) of the NJC contains numerous changes to the way young people alleged to have committed delinquent offenses are treated. However, the most systemic reform of what happens inside the courtroom comes from the enhanced presence of lawyers for both parties.

Traditionally, the role of the prosecutor in juvenile court has been tenuous—the district attorney needed to be invited by the judge to participate in the proceedings3 and petitions initiating the proceedings did not even have to be drafted by a lawyer, let alone a prosecuting attorney.

The uncertainty of the role of a prosecutorial authority in the juvenile court often led to unpredictable results. First, if invited, the district attorney merely conducts the proceedings. This often means that the prosecutor’s first contact with a case is when an assistant district attorney is called to conduct a trial on the merits. That prosecutor is saddled with a petition that was filed by a non-attorney. The petition may have fatal defects or even vary from the evidence of the case.

These uncertainties have led to unfortunate results in individual cases6 and to drastic policy changes for the state. Indeed, the impetus for the creation of exclusive jurisdiction of the superior court for certain serious offenses arose out of a case in which a young person charged with rape was allowed to complete a diversion program without ever appearing before the court.

The NJC creates several procedural mandates intended to create a consistent prosecutorial presence throughout the delinquency process. First, “[a] petition alleging delinquency shall be filed by an attorney.” This was meant to relieve law enforcement officers, probation officers and other court personnel from the responsibility of drafting accusatory documents. It will have the added benefit of allowing for the prosecutor to examine the evidence to determine the sufficiency of the allegation prior to the invocation of the court’s jurisdiction. A prosecutor is also in the best position to make an appropriate charging decision in light of the purpose of the juvenile court11 and in the best interest of justice.

Second, “[a] prosecuting attorney shall conduct delinquency proceedings on behalf of the [S]tate.” The NJC creates a flexible scheme whereby the district attorney is designated as the principal entity tasked with providing representation on behalf of the state in all delinquency proceedings, but allows for local jurisdictions to appoint a juvenile prosecutor under certain circumstances. The statute also created a mechanism by which the district attorney may delegate the duty to appoint a juvenile prosecutor to the county government.

Whether the prosecuting attorney is an assistant district attorney or an appointed independent prosecutor, the law has created a scheme that creates both powers and duties for a specialized prosecutorial entity that will understand the juvenile proceedings code and will be invested in the underlying purpose of the juvenile court.

Defense Attorneys
Much like prosecutors, defense attorneys in Georgia have traditionally needed to be “invited” to the proceedings. This invitation comes when the young person hires his or her own attorney or applies for the services of the public defender. Each year, thousands more waive their right to be represented.

Young people were first provided with the right to counsel in 1967 with the U.S. Supreme Court’s landmark decision in In re Gault. In requiring that every young person in delinquency proceedings be informed of his or her right to counsel and that those who cannot afford counsel be provided with an attorney at no cost, the Supreme Court found that the “[f]ailure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy.”

Prior to this overhaul of the Georgia juvenile code, state law contained limited protections against the waiver of counsel in delinquency proceedings. As a result, Georgia’s young people regularly waive this right with nothing more than a series of “yes ma’am” responses to a series of questions posed by the judge. Although the creation of a statewide indigent defense system has decreased this practice somewhat since a finding in 2001 that an estimated 90 percent of children facing delinquent charges in many Georgia counties waived their right to counsel before ever speaking to an attorney, countless young people across Georgia continue to waive their right to representation. Cognitively, however, children often cannot process abstract decisions such as a waiver of counsel in the manner adults do. Instead, children base their decisions upon an inherent desire to please their peers and adults or the impulse just to be done with it. Even more troubling, parents often waive their child’s rights in anger over the child’s behavior or in the belief that they, as parents, can handle all court matters as well as any attorney. This often results in waiving a right neither the child nor the parent fully understands.

The NJC addresses this practice in several ways. First, the bill makes clear that only the young person, not his or her parent, may waive the right to counsel. Most importantly, though, it standardizes legal representation across counties by limiting a judge’s exercise of personal discretion by mandating that the child cannot waive his right to counsel if his liberty is in jeopardy.

Although there are still many questions about how the NJC will work in practice, at a minimum, children in Georgia will no longer be sent to detention without a meaningful review of the case by a prosecutor and representation at the proceedings by a defense attorney.


Article 3—Surprising Changes
Article 3 of the NJC governs dependency proceedings (formerly deprivation proceedings) and sets forth its four-part purpose as follows: “(1) To assist and protect children whose physical or mental health and welfare is substantially at risk of harm from abuse, neglect or exploitation and who may be further threatened by the conduct of others by providing for the resolution of dependency proceedings in juvenile court; (2) to ensure that dependency proceedings are conducted expeditiously to avoid delays in permanency plans for children; (3) to provide the greatest protection as promptly as possible for children; and (4) to ensure that the health, safety and best interests of a child be the paramount concern in all dependency proceedings.” With regard to dependency, the NJC expands the definition of a child to include as any individual who is under the age of 18 years; under the age of 22 years and in the care of DFCS; or under the age of 23 years and eligible for and receiving independent living services through DFCS.

Under the current juvenile code (CJC), the court is mandated to appoint an attorney to represent the child only in proceedings involving the termination of parental rights. Furthermore, it is not clear in the CJC whether a child is a party to a deprivation proceeding. Surprisingly, it has taken the passage of the NJC to confer upon a child unqualified status as “a party” in his or her judicial proceedings in the juvenile court.

The NJC mandates that the court shall appoint an attorney and a guardian ad litem (GAL) for an alleged dependent child, however, the appointed attorney may serve as the child’s GAL unless or until there is a conflict between the attorney’s duty to such child as child’s attorney and the attorney’s considered opinion of such child’s best interests as GAL.28 The NJC requires the court to appoint a Court Appointed Special Advocate (CASA) to act as GAL whenever possible, and provides that a CASA may be appointed in addition to an attorney who is serving as a GAL. The NJC provides an exhaustive list of 13 factors the GAL and CASA shall consider and evaluate in determining the child’s best interests, as well as 17 minimum duties and responsibilities the GAL and CASA shall perform. The NJC permits the court to remove a GAL or CASA when the court finds that the GAL or CASA has acted in a manner contrary to a child’s best interests, has not appropriately participated in the case or if the court deems continued service as inappropriate or unnecessary.

The NJC provides clear practice guideline for courts and child welfare practitioners by codifying best practices identified in the longstanding Resource Guidelines published by the National Council of Juvenile and Family Court Judges and already implemented in many juvenile courts around the state and around the country. Among these is the “one judge, one family” policy by which all cases and hearings concerning the same child or family are heard by the same judge. The NJC also mandates that the court review the cases of dependent children sooner and more often than is required by the CJC, specifying that the first periodic review hearing be held within 75 days of the child’s removal from his or her home and every four months thereafter. Recognizing the harmful effects of prolonged temporary placements and the importance of moving children quickly toward permanency, the NJC limits the court’s ability to grant continuances of required hearings beyond their statutory time limits. A continuance can only be granted when the continuance is not contrary to the interests of the child and upon a showing of good cause.36 The NJC specifically states that neither a stipulation between attorneys nor the convenience of the parties constitutes good cause.

Under the NJC, visits between a child who has been removed from the home and his or her parents will be less restrictive and less expensive for the department to facilitate. These visits are presumed to be unsupervised unless the court finds that unsupervised visits are not in the child’s best interest. In cases where the permanency plan for the child is reunification, this provision will provide parents and children with the opportunity to engage in more meaningful visitation and to maintain familial bonds during the reunification process.

Article 4—Reforming Termination of Parental Rights
Article 4 of the NJC governs termination of parental rights (TPR) proceedings and sets forth its fivepart purpose as follows: “(1) To protect a child who has been adjudicated as a dependent child from his or her parent who is unwilling or unable to provide safety and care adequate to meet such child’s physical, emotional and mental health needs by providing a judicial process for the termination of all parental rights and responsibilities; (2) to eliminate the need for a child who has been adjudicated as a dependent child to wait unreasonable periods of time for his or her parent to correct the conditions which prevent his or her return to the home; (3) to ensure that the continuing needs of a child who has been alleged or adjudged to be a dependent child for proper physical, mental and emotional growth and development are the decisive considerations in all proceedings; (4) to ensure that the constitutional rights of all parties are recognized and enforced in all proceedings conducted pursuant to this article while ensuring that the fundamental needs of a child are not subjugated to the interests of others; and (5) to encourage stability in the life of a child who has been adjudicated as a dependent child and has been removed from his or her home by ensuring that all proceedings are conducted expeditiously to avoid delays in resolving the status of the parent and in achieving permanence for such child.” Further, “[n]othing in this article shall be construed as affecting the rights of a parent who is not the subject of the proceedings.”

Currently, once an order terminating parental rights is entered, the relationship between the child, parent and other family members, including siblings is effectively severed. A TPR case has been called the “civil death penalty” because it causes the “death” of a family from the child’s point of view. Indeed, under the CJC, the child’s rights within the family and the parent’s responsibilities, powers, duties and privileges are all extinguished. Under the NJC, however, until an adoption of the child is finalized, the following rights of the child remain intact: to receive child support and to inherit from and through the parent. Further, the relationship between the child and his or her siblings remains intact and is only terminated by a final order of adoption. Even after the child is adopted, the NJC gives the child the right to pursue any civil action against the parent. The CJC provides the parents one year or longer to work with DFCS prior to the filing of a termination petition; in contrast, the NJC gives the parents only six months. This modification is designed to place a child in a permanent family much more quickly and to prevent the child from suffering the consequences of “foster care drift.”

Under the CJC, no statutory provision permits reunification between a parent and child once the legal relationship is severed. In an important reform of the current law, the NJC provides that if a child has not been adopted within three years from the date the termination order has been entered, and the court has determined that adoption is no longer the permanent plan for the child, the child may petition the court to reinstate parental rights. If it appears that the best interests of a child may be promoted by reinstatement of parental rights, the court, after a hearing, shall grant the petition if it finds that adoption is not likely and reinstatement is in the child’s best interest. The petition is subject to dismissal if the parent objects to the reinstatement. This reform takes into account the realities of one of the most pervasive forms of neglect— that arising from the substance abuse of the parent—and the reality that the parent may have to go through several relapses over time before securing the kind of recovery that would allow that parent to resume parenting responsibilities. For such a parent and child, and in the absence of another permanent family opportunity, reunification might be in the child’s best interest. For the first time in Georgia, the NJC makes reunification following termination an option for a child in long term foster care.

Children In Need of Services
One of the primary features of the NJC is the creation of a classification of young people called Children In Need of Services (CHINS) found in the new Article 5. CHINS changes how young people charged with status offenses, acts that are only offenses because of the status of the actor as a child, are treated in the juvenile court setting, primarily by attempting interventions before going to court for resolution. Under the CJC, these young people are treated similarly to young people charged with delinquency offenses. The most common status offenses seen in juvenile court are truancy, runaway and unruly.

The purpose of the CHINS Article is to acknowledge that certain immature behaviors seen at home and school should not be treated as delinquent behaviors.51 Instead, the NJC envisions these children and their families receiv ing coordinated community services that will enable them to make choices that enable the child to become a responsible and productive member of society, while protecting the integrity of the family.

A complaint alleging that a young person is “a child in need of services” may be filed by the child’s parent or anyone who is informed and believes that the alleged facts are true. Specific requirements are set out for school officials to seek resolution of problems by working with the child and family within the educational framework before bringing a complaint in juvenile court.

Once a complaint is received by the juvenile court intake officer, the court is required to appoint an attorney for the child, as well as a CASA, when possible, to work with the child and family. The NJC also envisions that, at certain times, it may be necessary for the court to appoint an attorney to act as a GAL for the child. This attorney may be the same person as the child’s attorney unless and until a conflict arises between the two roles.

The CHINS Article contains some inconsistencies with respect to the point at which a child is entitled to appointed counsel, particularly in cases in which the child is detained. Also, it is not clear as to whether or not financial eligibility is an issue to be determined prior to the court’s appointing a lawyer to represent the child. It is clear, however, that the intent of the law is that a child shall be represented by an attorney at every hearing.

Consistent with the focus of CHINS cases as being family treatment- oriented, pre-adjudication secure or non-secure residential detention of the child is authorized only as necessary to protect the child’s health or welfare, and then, only for brief periods of time and after completion of a detention assessment that has determined that there are no available alternatives that would prevent the need for such detention.

A CHINS child who is a runaway, is habitually unruly, or has previously failed to appear at a scheduled hearing can be held for no more than 24 hours without a continued custody hearing to determine probable cause. Without explanation of the distinction, children with other CHINS allegations can be held for up to 72 hours prior to a hearing. It is unclear whether this distinction is an oversight or intentional, but the discrepancy will likely be addressed in the next legislative session. A child placed out-of-the home in foster care must have a hearing within five days. Regardless of the exact time of the continued custody hearing, it is clear that the intention of the CHINS Article is to avoid lengthy, if any, detention periods.

Following a determination of probable cause, the child may be detained an additional 72 hours, excluding weekends and legal holidays, only for the purpose of providing time to locate an alternative placement pending adjudication. Furthermore, the court must determine by clear and convincing evidence that no less restrictive alternative will suffice and that detention is required to protect the child or secure his or her appearance in court. Detention may not be used to punish or even to treat or rehabilitate the child, to allow a guardian to avoid his or her legal responsibilities or to unnecessarily curtail the child’s freedom.

If a child is detained, the NJC requires that a petition be filed within five days, with the adjudicatory hearing held within 10 days of that date. Otherwise, the petition must be filed within 30 days, with adjudication held within 60 days. If the court finds a child to be in need of services, the disposition hearing shall be within 60 days of adjudication. This expanded continuance of disposition is likely authorized in anticipation of efforts to organize an effective and workable community-based treatment plan.

It remains unclear as to who is responsible for filing the CHINS petition. At the time of the writing of this article, district attorneys’ offices vary in their stated positions about their responsibility for handling CHINS cases because the cases under the NJC are clearly not delinquencies. Some jurisdictions are considering solving this problem by requiring the complainant to also file the petition. This responsibility will undoubtedly be addressed in the “clean-up bill.”

Disposition of a CHINS case may include any order authorized for the disposition of a dependent or delinquent child, except that a CHINS child may not be placed in a secure or non-secure residential facility. The court may place the child on probation, order compliance by the child and/or caretakers with recommended treatment, require community service, order restitution be paid or order any other appropriate measure, as long as the disposition is the least restrictive and most appropriate disposition for the child. The disposition shall be in effect for the shortest time necessary to accomplish the purposes of the order and is to be reviewed within three months, and at least every six months afterwards. It is anticipated that attorneys will continue in the representation of their CHINS clients throughout the pendency of the order.

Violations of valid CHINS court orders must be proven beyond a reasonable doubt. Upon such finding, the judge may make any disposition that could have been made at the time of the original order was entered. Because detention was not an option at that time, it appears that detention could not be used in the disposition of a violation either. This issue will likely be a matter of discussion in the future also.

The CHINS Article contains provisions for disposition of an unrestorably incompetent CHINS child similar to provisions for delinquent children, utilizing a comprehensive services plan. If a child is subject to a comprehensive services plan when he or she reaches the age of 18, proper referral for adult services shall be made.

It should be noted that, because there is no statewide, fully funded uniform juvenile court system, juvenile courts are reliant on their local counties for funding. Consequently, there may be insufficient resources in many jurisdictions to support all of the laws comprising the new juvenile code. This is particularly true of the appointment of counsel in a timely and continuing manner. Lack of funding within the courts and independent resources available within the local communities will also determine the extent of services available to work toward achieving the goals of CHINS court orders. Persuasive data was provided to the governor’s Special Council on Criminal Justice Reform about the potential for significant savings through reduced detention for low-risk offenders and the potential for increased funding, based on those savings, for the needed alternatives to detention and community intervention programming that are essential for this new approach to work throughout the state. All stakeholders understand that the initial infusion of $5 million for such alternatives is intended to be the jumpstart for the generation of the savings that will in turn fund additional interventions, much the same way as was experienced in Ohio under a similar program. For this new program to work in Georgia, significant patience will be required of the many jurisdictions around the state that do not have sufficient resources.

The NJC brings a new tone and vision to juvenile justice and child neglect and welfare in Georgia. The highlights above are only a sampling of the reforms that are smart, progressive and intended to increase justice and public safety for Georgia’s children and youth, families and communities. Those closest to the rewrite efforts know that the signing of HB 242 into law was only the “end of the beginning.” Technical corrections to a bill more than 200 pages long are to be expected and are anticipated to be introduced in the 2014 legislative session. Even when those corrections are made, implementation issues will take time to be sorted out and new practices will take some time to become familiar practices. Nevertheless, much progress has been made on behalf of the citizens of Georgia, some of whom are our most vulnerable, and all stakeholders who took the time to be part of the solution have much to point to in the NJC as signs that Georgia, as a state, is very much on the right track.