Institute of Continuing Legal Education of Georgia
The Nuts and Bolts of a
Georgia Dependency Case
A Practical Handbook for Attorneys
Hearing-practice guidance for lawyers new to juvenile court
Start Reading — Chapter 1 →Faculty
- Hon. Christopher W. Willis, Forsyth County Juvenile Court, Cumming, Georgia
- Hon. Nhan-Ai Du, Gwinnett County Juvenile Court, Lawrenceville, Georgia
- Hon. Heather N. Dunn, Forsyth County Juvenile Court, Cumming, Georgia
- Hon. Jeremy D. Clough, Enotah Judicial Circuit, Dahlonega, Georgia
- Gerald W. “Jerry” Bruce, Office of the Child Advocate, Atlanta, Georgia
- Julia D. Neighbors, ICLE Director, State Bar of Georgia, Atlanta, Georgia
Juvenile courts must always be mindful that, regardless of any perceived authority given to them by Georgia’s Juvenile Code to interfere with a natural parent’s relationship with his or her child, such authority is only authorized if it comports with the long-standing, fundamental principle that parents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children. The liberty interest parents have in familial relations with their children is a natural-law right that has been enshrined in our positive law. It is a right that preexists government and one that we “retain” as a people separate and apart from any statute or constitution. This is why Georgia’s appellate courts have repeatedly emphasized that “the constitutional right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.” Indeed, as our Supreme Court has rightly noted, “there can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to [his or her] offspring.” To be sure, the right of familial relations—like any other constitutional right—is not absolute. But when this fundamental liberty interest is at stake, courts must “give full, fair, and thoughtful consideration to the serious matter at hand.”
* In the Interest of R.S.T., 345 Ga. App. 300, 315 (2018) (internal punctuation and quotations omitted).
How to Use These Materials
This handbook is for Georgia attorneys with little or no experience in juvenile dependency court, written on the assumption that you already know how to practice law — just not this particular corner of it. Dependency practice is not family law wearing a different hat. It runs on compressed timelines, a clear-and-convincing standard at adjudication, a federal overlay (ASFA, CAPTA, Title IV-E), and a working premise that delay itself does harm to a child. Federal law sits outside this handbook’s scope, but it underpins the Georgia statutes you will actually be citing.
Each chapter follows a case the way it actually unfolds — from the first phone call through permanency, and past age eighteen where extended care applies. Georgia statutes are the authority that matters here; the practice notes throughout exist to help you build a record that matches what the Code requires, not just what feels reasonable in the moment. The full text of the principal statutes sits in Appendix D, set in the same type as the rest of the book, so you are never more than a page-flip away from the actual language a judge will be reading.
Four kinds of callout box appear throughout, and the border style tells you which is which even off a black-and-white copier: a solid border is a Nuts & Bolts reminder, a double border is a Caution — something that has actually produced a dismissal, a reversal, or a Title IV-E funding problem — a dashed border is an attorney practice tip, and a dotted border is a hearing-practice note.
Read the callout boxes as if a colleague pulled you aside before your first hearing to tell you the one thing they wish someone had told them.
A note on scope and audience: These materials are written for attorneys who are new to or considering representation in dependency cases. The practical guidance — how to prepare for a hearing, what to ask a witness, where cases tend to bog down — is intended for any lawyer who practices in a Georgia juvenile court. Because this handbook is written for lawyers new to dependency practice, and because the SAAGs representing DFCS are experienced attorneys with their own training, many of the examples and practice tips are addressed to lawyers representing a parent or a child. However, nothing here is offered as a strategy against any party, nor should it be interpreted as a preference for any party in a dependency case. The goal of this handbook is a simple one: that every party in a Georgia dependency case — DFCS, parents, and children — be represented by trained lawyers who can zealously and effectively represent them.
A note on citations: Several Georgia dependency opinions share the same initials, and the short forms are not interchangeable. For example, there is more than one “In the Interest of S.B.” and more than one “In the Interest of S.H.,” each a different case with a different holding. Throughout this handbook, always rely on the full citation, not the initials, and verify subsequent history before relying on any case.
Learning Objectives
- Understand the constitutional right of parents to raise their children, and the narrow circumstances in which the state may interfere with that right to protect a child.
- Identify the statutory purpose, definitions, and best-interests framework that govern every Georgia dependency case.
- Apply the principal timelines from removal through permanency, and know the consequence of missing them.
- Prepare and try a preliminary protective hearing and an adjudication hearing with the correct standard of proof and required findings.
- Scrutinize reasonable efforts, relative searches, family time, and case plans with the specificity appellate courts require.
- Advocate at review and permanency hearings using measurable objectives rather than boilerplate.
- Recognize ICWA, UCCJEA, trauma, substance-use, cultural-competence, and extended-care issues early enough to protect the record.
- Identify the ethical and professionalism duties that apply in a multidisciplinary juvenile courtroom.
These materials are a working handbook for an educational program, not an exhaustive treatise. They track Article 3 and Article 4A of the Georgia Juvenile Code and incorporate hearing-practice principles so that attorneys new to this docket can prepare, try, and preserve a dependency case with the specificity the statutes and the appellate courts require.
Faculty and participants should supplement this handbook with recent Georgia appellate decisions, the Uniform Rules for the Juvenile Courts of Georgia and the official JUV forms, local protocols and preferred order language, DFCS policy relevant to reasonable efforts, relative placement, and extended care youth services, sample orders from the circuit, and discussion of trauma-informed practice.
Statutory citations are current as of the 2026 Code of Georgia. Always verify the most recent Official Code of Georgia Annotated and controlling case law before relying on any provision in a live case.
Copyright & Disclaimer
Copyright © 2026 The Hon. Joshua D. Earwood. Prepared for use by participants in the Institute of Continuing Legal Education of Georgia program “The Nuts and Bolts of a Georgia Dependency Case,” September 24, 2026. Attendees may use and retain these materials for their own professional reference. They may not be commercially republished without the author’s written permission.
These materials are educational. They are not legal advice, not an official statement of any court or agency, and not a substitute for the Official Code of Georgia Annotated or controlling case law. Statutory quotations are educational excerpts set in the same typeface as the rest of the handbook for readability. Always verify the current Code and annotations before relying on any provision in a live case. Model orders and examination outlines are teaching tools, not official forms.
Acknowledgements: Georgia Juvenile Code, Article 3 and Article 4A; Uniform Rules for the Juvenile Courts of Georgia; selected Georgia appellate decisions discussed in Appendix B. Hearing-practice principles in these materials are the author’s educational synthesis and are not attributed to any outside organization’s manual.
Many general practitioners are reluctant to accept a dependency case because juvenile court is unfamiliar. Dependency practice has its own vocabulary, its own clocks, and its own habits, and almost none of it is obvious from the outside. What follows is not a treatise. It is the set of things I wish someone had handed me before I took my first dependency case 25 years ago: how a case actually moves, what a court has to find at each stage, and where these cases tend to go wrong.
Georgia’s juvenile courts need more lawyers who know this work.
I hope this makes it easier to become one.
1. Purpose and Philosophy of Georgia Dependency Proceedings
1.1 The Constitutional Right at the Center of Every Case
Everything else in this handbook begins with one constitutional fact: a parent has a fundamental right to raise his or her own child, and the State or third party does not get to override that right just because a judge, a caseworker, or even a well-meaning relative thinks a different arrangement would work out better. This is not a policy preference this jurisdiction happens to favor. It is a right protected by the Due Process Clause of the Fourteenth Amendment, and Georgia's own courts have independently recognized the same right under the Georgia Constitution.
The United States Supreme Court has said plainly that parents have a fundamental right to make decisions concerning the care, custody, and control of their children, and that a state may not use a freestanding best-interests standard to override a fit parent’s decision.1 That is why the standard in a dependency case is never simply whether some other placement might be better for the child. It is whether the State has actually proved what the Code requires before it may interfere at all.
The clear and convincing evidence standard that runs through this entire handbook — at adjudication, at a non-reunification hearing, and above all at termination — is not a drafting choice the General Assembly could have made differently without consequence. The United States Supreme Court has held that due process itself requires at least clear and convincing evidence before a state may sever the parent-child relationship, precisely because the liberty interest at stake is fundamental and the risk of an erroneous, irreversible decision is too high to tolerate a lower standard.2 A parent does not lose that protection by being a difficult client, an imperfect witness, or someone a caseworker has grown frustrated with. The fundamental liberty interest of a parent in the care, custody, and management of a child does not evaporate simply because the parent has not been a model parent.
That protection is not limited to parents who are married, or who have already established a formal legal relationship with the child. Even an unwed father’s interest in the children he has raised is cognizable and substantial, and the State cannot presume that interest away without a hearing.3 Counsel who treats an unmarried father as an afterthought in the case, rather than as a person whose own constitutional interest is squarely at stake, is missing what the case is actually about – permanency for the child.4
Georgia has not simply adopted these federal holdings as a floor and stopped there. The Georgia Supreme Court has recognized that parents have a fundamental liberty interest and privacy right in raising their children under both the Due Process Clause of the Fourteenth Amendment and the Georgia Constitution, and struck down a Georgia grandparent-visitation statute precisely because it let a court override a fit parent’s decision without first requiring a showing of harm to the child.5
In a later custody dispute between a parent and a relative, the Georgia Supreme Court held that a best-interests standard alone cannot justify taking custody away from a fit parent — the third party has to show, by clear and convincing evidence, that parental custody would actually cause harm to the child.6 Georgia’s appellate courts have described a parent’s right to the custody and control of a child as a right to be fiercely guarded, one that should be infringed only under the most compelling circumstances.7
None of this means a parent’s right is absolute, and dependency law has never pretended otherwise — the Code’s own statement of purpose recognizes that state intervention is sometimes essential to protect a child’s safety and stability. What it means is that intervention is the exception that has to be justified on the record, not the default posture the court starts from. Every specific finding this handbook keeps insisting on — the contrary-to-welfare finding, the reasonable-efforts finding, the parental-unfitness finding, the facts tied to exhibits and testimony rather than a boilerplate recitation — exists because the Constitution requires the State to actually earn its way into a family’s life, one finding at a time, rather than simply asserting that removal would be better.
Hearing-Practice Note
When a hearing starts to drift toward “what would be better for this child,” bring it back to the actual question: has the State proved, by the evidence the Code and the Constitution require, that this parent's fundamental right should yield here? A judge who never loses sight of that distinction issues orders that survive appeal.
1.2 The Paramount Policy
Georgia’s Juvenile Code begins with a statement of legislative intent that is not ceremonial. It is the measuring stick for every order, every continuance, and every placement decision.
O.C.G.A. § 15-11-1
The purpose of this chapter is to secure for each child who comes within the jurisdiction of the juvenile court such care and guidance, preferably in his or her own home, as will secure his or her moral, emotional, mental, and physical welfare as well as the safety of both the child and community. It is the intent of the General Assembly to preserve and strengthen family relationships, countenancing the removal of a child from his or her home only when state intervention is essential to protect such child and enable him or her to live in security and stability. Above all, this chapter shall be liberally construed to reflect that the paramount child welfare policy of this state is to determine and ensure the best interests of its children.
Three ideas drive daily practice: the preferred placement is the child’s own home; removal is authorized only when intervention is essential to safety and stability; and the Code is construed liberally in favor of the child’s best interests — not in favor of agency or adult convenience.
Hearing-Practice Note
Good hearing practice keeps several things in view at once. Keep families together whenever it is safe to do so, and make sure every family actually has access to justice — counsel, interpreters, a real chance to be heard, not just a slot on the docket. Pay attention to a family's culture and community rather than treating an unfamiliar practice as a red flag, and look for chances to resolve disputes cooperatively before litigating them. Keep the child's safety, permanency, and overall well-being in view together, not one at the expense of the others, with family time that is actually adequate and a judge who is engaged rather than rubber-stamping what the parties bring in. None of that works without competent, adequately compensated counsel on every side, and a community with real services to refer families to. The attorney’s job is to make the record show that the court actually applied them, not merely recited them.
1.3 Specific Purpose of Dependency Proceedings
Dependency proceedings exist to assist and protect children whose physical or mental health and welfare is substantially at risk of harm from abuse, neglect, or exploitation; to conduct proceedings expeditiously to avoid delays in permanency; to provide the greatest protection as promptly as possible; and to make the health, safety, and best interests of the child the paramount concern.8 The speed of the docket is part of the statutory purpose. A child who sits in temporary care while adults work out calendars is accumulating harm the Code treats as real.
1.4 Best Interests Factors
Whenever a best-interests determination is required, the court must consider and evaluate all relevant factors affecting the child in the context of age and developmental needs. The Code lists twenty non-exclusive factors.9 The list is a checklist for proposed findings, not simply a slogan. The factors that most often decide hearings are safety and welfare, emotional ties, capacity to provide care, health of the adults, the child’s need for permanence, the uniqueness of the family, the child’s wishes, and the risks of substitute care. Don’t be hesitant to argue the full list when a factor cuts your way.
Practice Tip
Do not argue best interests in the abstract. Tie each factor to a specific exhibit, witness, or admission. Appellate courts reverse boilerplate findings. If you represent a parent, develop evidence on ties, capacity to change, relative resources, and the harm of removal. If you represent the child, distinguish stated wishes from best interests when they diverge.
Nuts & Bolts
Best-interests findings should be specific and grounded in the evidence. Generic language is vulnerable on appeal.
2. Key Definitions — O.C.G.A. § 15-11-2
These definitions are not academic throat-clearing before the real work starts — they are the real work. Whether a child is “dependent,” whether specific conduct counts as “abuse” or “neglect,” and which paragraph of the statute a petition actually rests on will decide the case long before anyone gets to a hearing on the merits. Get the label right, and the rest of the case follows from it.
2.1 Dependent Child
The 2014 recodification replaced “deprived child” with “dependent child.” The focus is the child’s condition and need for protection, not a moral verdict on the parent. When older cases talk about “deprivation,” they are usually talking about “dependency” and therefore those cases may still provide legal guidance in juvenile court dependency cases.
O.C.G.A. § 15-11-2(22)
“Dependent child” means a child who: (A) Has been abused or neglected and is in need of the protection of the court; (B) Has been placed for care or adoption in violation of law; or (C) Is without his or her parent, guardian, or legal custodian.
There is a temptation to consider “dependency” as being only “abuse or neglect.” However, the statutory definition includes other relatively uncommon types of dependency. Do not treat every case as a generic neglect narrative if the facts fit another theory.
The question of dependency relates to the child, not to the parents. That is, the fundamental inquiry is whether a child is a “dependent child,” not whether the child is “dependent as to mother” or “dependent as to father.” It can be helpful to consider the dependency issues relating to each parent, particularly when fashioning an appropriate reunification case plan or for permanency planning, but a child with one unfit parent and one fit parent may not be dependent at all. For example, if the child of a married couple lives with his completely fit father, but his mother has abandoned the family and lives in a tent using a cocktail of drugs daily, the child may not be dependent. Further inquiry is necessary to determine whether the unfit parent’s conduct or anticipated actions might place the child at risk, rendering him “in need of the protection of the court.” If the fit parent is able and willing to protect the child from the misconduct of the unfit parent, court intervention would be unwarranted and the child would not be a “dependent child,” despite the significant concerns about the unfit parent.
2.2 Abuse
“Abuse” is defined by the Code. It is not merely a synonym for a tumultuous home or poor parenting. The Code defines five categories of “abuse”:1 (A) nonaccidental physical injury, or physical injury inconsistent with the explanation given, suffered by the child because of the acts or omissions of a person responsible for the child’s care; (B) emotional abuse; (C) sexual abuse or sexual exploitation; (D) prenatal abuse; or (E) an act of family violence committed in the presence of a child.2 A single act, multiple acts, or a course of conduct can be enough to meet the burden, but each case is fact sensitive. “Presence” means the child was physically there or able to see or hear. If you are alleging abuse or defending a parent accused of abuse, counsel should specify the subsection alleged to be applicable and the court should make specific, detailed findings of the conduct it finds to constitute abuse.
“Physical injury” can be many things. It does not require a fracture, open wound or emergency medical treatment. A bruise on the child’s back may be evidence of physical injury under subsection (A), if additional facts are present. In the Interest of K.R., an investigator testified that a bruise was the only mark she found and the trial court found the child to be dependent due to physical abuse. On appeal, the Court of Appeals said the mark was evidence of physical injury — and then affirmed on the rest of the record, which included allegations of strikes with a wooden spoon, yanked hair, a twisted arm, screaming, and the child pulled off the bed onto a rail.
In Interest of S.C.S., 336 Ga. App. 236 (2016), an eighteen-month-old with a skull fracture, retinal hemorrhaging, and other injuries which the parent alleged to be caused by a fall from a table or a bathtub was found to be dependent.3 A physician testified that such a fall could not explain the injuries. Since only the mother and her boyfriend had been caring for the child, the trial court was authorized to find the child dependent.
Corporal punishment by a parent is lawful under Georgia law, but a claim of corporal punishment does not bar a finding of abuse in certain circumstances. Only reasonable, non-excessive corporal punishment is constitutionally protected. Excessively frequent, painful, mark-leaving “discipline” is not. In Interest of R.D., a finding of physical abuse against a parent who slapped and belted children hard enough to leave marks, hit the children on their heads, slapped their lips, and beat a seven-year-old’s head against a wall was affirmed by the Court of Appeals.4 In Interest of N.C., the trial court found that a mother had slapped her child in the mouth hard enough to bust her lip, spanked her one-year olds with a belt for pulling their diapers off, and hit the children “all over.” The Court found that the conduct constituted physical abuse and the Court of Appeals affirmed.5
These cases turn on their facts more than most, and counsel should focus on facts rather than whether the parental conduct is labeled “discipline.” For a parent, the right to use corporal punishment is where the analysis starts, not where it ends. Georgia protects discipline that is reasonable and not excessive; it does not protect whatever a parent chooses to call discipline. If there is a physical injury, arguing that parents have the right to use corporal punishment answers a question nobody is asking. The issue is no longer whether this parent could use physical discipline at all, but whether what happened remained inside the scope the law allows. To argue that the parent’s conduct was a good-faith exercise of parental discipline and was reasonable in degree requires engaging with the particulars: what the child had done, what physical force was used, how hard, how often, where on the body, and what the parent did afterward.
If you are a petitioner seeking to prove that conduct exceeded the lawful scope of authorized corporal punishment, you should likewise not rest solely on the existence of a physical manifestation. A mark is not, per se, physical abuse rather than lawful corporal punishment. A bruise is evidence of physical injury, but it is not by itself evidence that the injury was non-accidental, or that the discipline behind it was unreasonable or excessive. That distinction matters most when the report is isolated or stale and the child is otherwise healthy, well cared for, and doing fine otherwise.
The court does not have to find that there is other evidence of dependency before it can find dependency based on abuse. But abuse rarely shows up by itself, and in the cases that are affirmed on appeal, other factors are present. Often there is evidence of frequent yelling and threats, an injury the explanation does not fit, or a similar pattern across several children in a family. When the only evidence of dependency is discipline alleged to be excessive, it is much easier for a parent to argue that what was done was purely intended to address misconduct by the child. The lack of other evidence of dependency can support the argument that the conduct was good-faith discipline rather than abuse. In such cases, the court may find the evidence is not clear and convincing or that leaving the child at home under conditions rather than removing him is appropriate under the circumstances.
Emotional abuse is also a defined term that requires subjective application. “Emotional abuse” is acts or omissions by a caregiver that cause mental injury to the child’s intellectual or psychological capacity, shown by an observable and significant impairment in the child’s ability to function in a normal range, or that create a substantial risk of that impairment — and the impairment or risk must be diagnosed and confirmed by a licensed mental health professional or a physician qualified to make the diagnosis.6 In Interest of A.W., the Court of Appeals reversed a finding of dependency based, in part, on alleged emotional abuse. There was evidence that the parents screamed at each other and used derisive language, along with methamphetamine use. The Court of Appeals rejected the finding of emotional abuse:
There is no indication in the record of the extent or nature of the parents’ arguments, which could range from bickering about household issues to screaming and using derisive language toward each other. There is no indication in the record of an “observable and significant impairment” in A.W.’s “ability to function within [her] normal range of performance and behavior.” Neither is there evidence that the mother's use of methamphetamine led to any mental injury of A.W. Moreover, the evidence at the dependency hearing established that the mother had ceased using methamphetamine, intended to continue her disuse, and had taken all the steps asked of her by the Department in order to show that she no longer used the substance. Finally, there is no evidence that the mother's acts of leaving A.W. in the care of K.W. or the grandmother led to any mental injury or that it posed a substantial risk of harm of injury to A.W. Accordingly, the Department failed to carry its burden to present clear and convincing evidence of abuse to support a finding of dependency.
However, although “yelling” at the child in and of itself without the accompanying diagnosis is insufficient to establish emotional abuse, yelling may be evidence that other conduct constitutes physical abuse. For example, in R.D., which was discussed above, the children reported daily yelling, threats, and curses which happened along with the physical abuse. The Court of Appeals cited such evidence in support of the finding of physical abuse.
Family violence in the child’s presence is another form of “abuse.” An act of “family violence” in the presence of a child is per se abuse.78 Presence means the physical presence or the ability to see or hear. “Family violence” itself is a defined term borrowed from Georgia’s protective-order statute: certain offenses — any felony, battery, simple battery, assault, simple assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass — between spouses, co-parents, parents and children, or others living together or formerly living together.9 That same statute carves out reasonable parental discipline — corporal punishment, restraint, or detention — from the definition, which is worth knowing given how often a family-violence allegation and a corporal-punishment defense show up in the same case.10 An example is found in Interest of J.R., where children who heard the fights and then saw bruising on both parents supplied enough evidence of presence to meet the burden.11
However, in Interest of A.W., (discussed above), a single incident of violence that the child did not see or hear, with no injury to the child, was insufficient for a finding of abuse. An assertion that “the home is violent” does not meet the statutory threshold.12
In cases of domestic violence, the non-offending parent is not automatically unfit. Victim parents are sometimes accused of a “failure to protect” children from exposure to domestic violence. When a pattern of domestic violence is present, a victim parent does have an obligation to protect his or her children from exposure when it is within his or her power to do so. However, options besides the protection afforded by a dependency order or removal of custody may be available. Counsel for parents in those cases should consider whether a protective order, a safety plan, or another caregiver can protect the child without a full removal.
Sexual abuse and sexual exploitation are other types of “abuse” as defined by the Code.13 The Code further defines those terms:
(69) “Sexual abuse” means a caregiver or other person responsible for the care of a child employing, using, persuading, inducing, enticing, or coercing any child to engage in any act which involves:
(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) Bestiality;
(C) Masturbation;
(D) Lewd exhibition of the genitals or pubic area of any person;
(E) Flagellation or torture by or upon a person who is nude;
(F) The condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;
(G) Physical contact in an act of apparent sexual stimulation or gratification with any person's clothed or unclothed genitals, pubic area, or buttocks or with a female's clothed or unclothed breasts;
(H) Defecation or urination for the purpose of sexual stimulation; or
(I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure by a licensed health care professional.
(70) “Sexual exploitation” means conduct by a caregiver or other person responsible for the care of a child who allows, permits, encourages, or requires a child to engage in:
(A) Sexual servitude, as defined in Code Section 16-5-46; or
(B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, in violation of Code Section 16-12-100.
A criminal conviction is not required at adjudication. Sexual abuse or exploitation can be proven with facts just like any other kind of abuse. Cases of this nature are more likely to involve child testimony and counsel should become familiar with the “child hearsay statute” before adjudication. Law enforcement is usually involved, or may become involved as a result of the evidence presented in court.
Since criminal charges are often pending or being considered by authorities, parents accused of sexual abuse are often placed in a legally precarious position. While the Fifth Amendment privilege against self-incrimination is absolute, the decision to assert the privilege in dependency cases makes it difficult to avoid an adverse finding against a parent accused of sexual abuse. The use of the Fifth Amendment privilege in a civil matter – like a dependency case – means that the trial court can draw an adverse inference against the witness. If a parent accused of sexual abuse is asked whether he committed an act of abuse, his refusal to answer can support an adverse inference against him in the dependency case. Counsel for parents in such cases should consult with their client’s counsel in the criminal matter, or if unrepresented, explain the privilege and the consequences of its use prior to the client being called as a witness. Many courts will explain this concept to party witnesses known to be facing criminal charges, but they are not obligated to do so.
Similar to family violence cases, failure to protect from sexual abuse is often pleaded as neglect as to a non-offending parent, if that parent knew or should have known about the abuse. If the offended parent is incarcerated, the likelihood of additional abuse may be low, but persons facing serious charges are often tempted to make attempts to influence witnesses against them. A parent accused of sexual abuse is no different, and juvenile courts must consider such risk in deciding whether removal is necessary and the guidelines of visitation, if visitation is permitted.
Prenatal abuse is the last form of abuse defined by the Code.14 The Code provides:
(56) “Prenatal abuse” means exposure to chronic or severe use of alcohol or the unlawful use of any controlled substance, as such term is defined in Code Section 16-13-21, which results in:
(A) Symptoms of withdrawal in a newborn or the presence of a controlled substance or a metabolite thereof in a newborn's body, blood, urine, or meconium that is not the result of medical treatment; or
(B) Medically diagnosed and harmful effects in a newborn's physical appearance or functioning.
See Chapter 3, § 3.1.
Prenatal abuse is not a freestanding theory — it is one of the five defined paths into the general abuse definition, and the Court of Appeals has said so directly: prenatal abuse under the definitions section is abuse for purposes of the provision that makes physical injury to a child, including a newborn, a basis for dependency.15 A newborn who tests positive for a controlled substance or its metabolite because of the mother’s prenatal drug use can be adjudicated dependent on that basis.16
The prenatal finding rarely stands alone in the reported cases, and it does not need to. In one case, a newborn tested positive for amphetamines and methamphetamine at birth; the Court of Appeals affirmed dependency and a present-unfitness finding built from that prenatal exposure together with the parents’ recent drug-possession convictions, their failure to complete required substance-abuse treatment, minimal visitation with a medically fragile child, and their failure to complete the medical training the child’s care required.17 The lesson for counsel on either side is the same: build the record on what happened after the positive test, not only the test itself.
Clear and convincing evidence still means something in these cases, and the outcome can go either way on similar-looking facts. Where a mother failed multiple drug screens, missed numerous scheduled screens, and had used drugs for most of her life over a two-year period, the Court of Appeals found the evidence of dependency sufficient.18 By contrast, an isolated allegation with no pattern and no showing of present risk to the child will not carry the State’s burden — counsel defending a parent should press for the same fact-specific record the appellate courts actually look for: how often, how recently, and what changed.
A prenatal-abuse dependency case is often the first chapter of a longer file, not the whole story. If the dependency adjudication is not appealed, it is binding in a later termination case on the fact that the child was dependent at that time — which is one more reason to litigate the prenatal findings carefully the first time, not to treat the 72-hour or adjudication hearing as a formality on the way to a case plan.19 At termination, chronic unrehabilitated substance abuse that leaves a parent unable to provide adequately for the child is itself a factor the court considers in deciding whether a child is without proper parental care and control. See § 2.4.
Practice Tip
In family-violence cases, do not treat the non-offending parent as automatically unfit. Ask whether a safety plan, protective order, or alternative caregiver can protect the child without a full removal.
2.3 Neglect
Most dependency actions are based on alleged neglect by parents. Effective July 1, 2025, the General Assembly amended the definition of “neglect.”20 As currently defined, neglect is the failure to provide necessary parental care or control, subsistence, education as required by law, or other care or control necessary for a child’s physical, mental, or emotional health or safety; the failure to provide adequate supervision; or abandonment. (The prior version of the statute referred to “proper” rather than “necessary” care or control, and to the child’s health or “morals” rather than health or safety — older opinions applying that language remain instructive, but confirm which version of the statute was in force when a cited case was decided.) Poverty alone is not neglect. The question is whether the parent failed to provide care that was within the parent’s power, with or without offered services.
While most people immediately imagine a filthy, dangerous home and dirty, malnourished children when they consider the idea of parental neglect, the concept is much broader. Drug cases – which are ubiquitous in dependency court – fall within the broad umbrella of neglect if substance use or abuse has led to lack of supervision or the failure to provide for children to the minimal level required by law. Substance abuse alone is insufficient to demonstrate neglect, but drug use is often associated with inadequate housing, lack of basic hygiene, school absenteeism and lack of supervision. In order to prove dependency due to substance abuse, a petitioner must show a nexus between the drug activity and lack of parental care, control, subsistence or education.
Lack of supervision may also form the basis for a finding of neglect. This inquiry is fact sensitive and depends in large part on the supervision needs of a child. A child’s age, mental and physical functioning, maturity and living environment are key factors. A toddler wandering alone beside a busy highway may be neglected, whereas a mature teenager walking beside the same road may be properly supervised, depending on the circumstances.
Except in rare circumstances, a single act of “neglect” may be insufficient to prove that a child is “dependent.” As discussed in other sections, to find that a child is a “dependent child,” there must be clear and convincing evidence of present dependency. A finding of dependency must rest on current conditions rather than solely on past acts.21 If the evidence establishes that the single incidence of neglect is unlikely to reoccur, additional evidence would be necessary to meet the burden.
Lack of supervision may also be applicable in cases in which a parent is accused of “failing to protect” a child from misconduct of another person, particularly the conduct of the other parent.22 For example, in a situation in which one parent engages in domestic violence against the other in the presence of a child, the victim parent may be accused of failing to protect the child from exposure to domestic violence. Once again, this theory is fact sensitive. How often did the domestic violence occur and what was the nature of it? What barriers prevented the victim parent from protecting the child? What is the likelihood of reoccurrence with the aggressor parent or a future paramour?
2.4 Lack of Proper Parental Care and Control
The Code lists the circumstances a juvenile court may consider in deciding whether a child is without proper parental care or control. Treat it as a roadmap, not a checklist — the real question at adjudication is whether the child is presently dependent, proved by clear and convincing evidence. The court can look at past conduct, but only so far as it says something about the parent's fitness today and the risk of harm if the child went home right now. See Chapter 11.
The statutory factors are: a medically verified deficiency, physical, mental, or emotional, that leaves the parent unable to provide adequately for the child; chronic, unrehabilitated substance abuse; a felony conviction and imprisonment that has demonstrably damaged the parent-child relationship; egregious conduct or evidence of cruel or abusive treatment; neglect of this child or another child; and a sibling's serious injury or death under circumstances amounting to substantial evidence of parental neglect or abuse. These factors overlap constantly in practice — substance use driving a supervision failure, domestic violence exposure counting under more than one heading — and the court's findings should tie the evidence to the child's actual need for protection, not just catalog parental fault.
When the child is already out of the home at adjudication, present dependency usually comes down to a counterfactual: would this child be dependent if sent home to this parent at the time of the hearing? Evidence that the removal conditions have been fixed, or were an isolated event unlikely to happen again, can decide the case. So can the opposite — ongoing instability, untreated substance use, the same dangerous person still in the house, or safety-plan violations that keep repeating.
The same statute does double duty at termination. For TPR, the court considers whether, for the six months before the termination hearing, the parent failed significantly and without justifiable cause to build or maintain a parental bond, provide support, or comply with a court-ordered reunification plan. That six-month window does not substitute for proving unfitness on its own terms, but it is often the bridge between the adjudication and disposition record and the termination record — evidence of how long the problem has gone on, and how unlikely it is to resolve quickly.
Caution
A parent’s reliance on prayer or other religious nonmedical means for healing, in the exercise of religious beliefs, shall not be the sole basis for a finding of inability to provide adequate care.23
2.5 Other Key Terms
A handful of other terms show up constantly in a dependency file and are worth pinning down early, before a hearing turns into a vocabulary argument:
Child — generally any individual under age 18; special age rules apply for extended care youth services between 18 and 21.24
DFCS — Division of Family and Children Services of the Department of Human Services. The agency is frequently miswritten as “DFACS”; use DFCS in filings and proposed orders.
SAAG — Special Assistant Attorney General. The attorney who represents DFCS in the county.
Fictive kin — a person known to the child as a relative who is not related by blood or marriage and with whom the child has resided or had significant contact.
Foster care — 24-hour substitute care for children placed away from their parents and for whom DFCS has placement and care responsibility.
Reasonable efforts — efforts by DFCS to preserve or reunify families.25
Practice Tip
Ask early who the legal father is, who the putative fathers are, and whether legitimation is pending. An unidentified or unserved father is a later permanency problem waiting to happen.
For worked examples showing how these definitions play out in the appellate case law — organized by concept and by whether dependency was found — see Chapter 3, What Dependency Actually Means.
3. What Dependency Actually Means
CAUTION — READING OLDER CASES
The 2014 recodification replaced “deprived child” with “dependent child.” The two terms describe the same concept, so a case that speaks of “deprivation” is addressing what we now call dependency and can still provide guidance. But confirm which version of the statute was in force when the case was decided, because the operative language has changed over time.
Read older cases for the principle, not as a guarantee of the same result today. Over the past decade the Court of Appeals has increasingly demanded that juvenile courts make specific, evidence-based findings, scrutinize the record with care, and respect the constitutional rights of parents. An older order affirmed on thin findings would not necessarily withstand that scrutiny now, so rely on the reasoning of these cases rather than assuming the outcome would repeat.
The definitions in Chapter 2 tell you what the words mean. This chapter shows how courts apply them. Dependency is proved by facts, judged as of the time of the hearing, and requires clear and convincing evidence of present unfitness and a present need for the protection of the court — not poverty, and not a single bad moment. The cases below are grouped by concept and split into those in which dependency was found and those in which it was not.
3.1 Working Examples — When Courts Have and Have Not Found Dependency
The question at adjudication is whether this child is a dependent child under O.C.G.A. § 15-11-2(22) right now. DFCS has the burden. O.C.G.A. § 15-11-180. The parent does not have to prove fitness. The GAL is there for the child’s best interests, not to fill holes in the State’s proof. Abuse and neglect are disjunctive. Proof of either is enough. Make the court name the paragraph of § 15-11-2(22) it is using, and which kind of abuse or neglect.
The write-ups below are working examples pulled from published Georgia opinions, not a complete citator — treat them as a starting point, not the final word. Read the actual opinion before you rely on one, and check whether it has since been limited or overruled. A few of these still carry the old label, “deprivation,” from before the Code was renamed; where that happens, it's noted.
Dependency Found
Physical Abuse
In the Interest of K.R.1
Facts. DFCS received a school referral about eight-year-old K.R., who had a mark on her and was reportedly being hit with a wooden spoon by her adoptive mother. A supervisor interviewed the children at school. Forensic interviews followed in which the children in the home described the mother regularly hitting K.R. with a wooden spoon, on one occasion hard enough that K.R. fell out of bed, along with pulling her hair and verbally demeaning her. The mother was criminally charged. The juvenile court found K.R. dependent as to that parent, but not the co-parent, based on detailed findings of repeated corporal punishment and verbal abuse. Rather than removing K.R., the court left her in the home under conditions — no corporal punishment, and supervised contact only from that parent — with removal to follow if the conditions were violated.
Holding. Affirmed. Clear and convincing evidence of physical abuse supported the dependency finding. A bruise is physical injury under O.C.G.A. § 15-11-2(2)(A), but it was not the only evidence. The Court of Appeals rejected the argument that the order lacked a parental-unfitness finding. Orders are judged by substance and function, not by whether they use the word “unfit.”
A child can be adjudicated dependent without being removed from the parent’s custody. Removal is a separate question from dependency itself. Georgia law does not clearly require the words “parental unfitness” when the child is not removed. The same abuse findings that supported dependency were findings of unfitness in everything but name.
Abuse and neglect are listed disjunctively in the definition of “dependent child,” so the State did not have to prove both. Because the physical-abuse finding was supported, the Court of Appeals did not reach the claim that neglect was unproven.
In the Interest of S.C.S.2
Facts. Companion appeals by the same mother. S.C.S., then an infant, was hospitalized with a fractured skull, a brain bleed, and compression fractures of the spine, plus numerous old and new bruises, scratches, and marks. The mother offered shifting, medically implausible explanations — night terrors, hitting a bed rail, bumping a table — that did not account for the injuries. Only the mother and her boyfriend had been caring for the child. As to a newborn sibling, the court found dependency based on the mother’s history and the same environment of abuse.
Holding. Affirmed as to both children. Severe, unexplained injuries inconsistent with the mother’s explanations supported dependency and a finding of unfitness. Exclusive care plus medical inconsistency authorized a finding of physical abuse under subsection (A). Certain misstatements in the court’s order about the evidence were not harmful and did not require reversal. The same environment supported dependency as to the newborn sibling.
Mental Health
In the Interest of D.H.(mother)3
Facts. Two boys were in the mother’s custody. In February 2024 she rammed an apartment gate, beat on a door with a loaded firearm, led police on a chase, and nearly drove into Lake Lanier. She told officers the children were “with the devil,” the devil was “everywhere,” and she was doing the Lord’s work. After the arrest a hospital psychologist told her it was a manic episode. She invoked the Fifth Amendment on details of the incident. She testified to blackouts, brain fog, and memory loss going back years, blamed a piece of metal left after a root canal, and had not gone to treatment. She was unemployed, facing felony charges, and had left the children with relatives who had serious criminal histories. No treating doctor testified live.
Holding. Affirmed as to the mother, over a dissent. O.C.G.A. § 15-11-311(a)(1) lets the court consider a medically verified physical, mental, or emotional deficiency of such duration or nature that the parent cannot provide adequately. The statute is disjunctive: duration or nature. The majority held the statute does not require a particular kind of medical proof. The mother’s own testimony that a hospital psychologist diagnosed a manic episode, plus an episode that involved a loaded gun, a chase, and delusions about the children, plus years of untreated blackouts and a refusal to get care, was enough. In a civil case the court may draw adverse inferences from a Fifth Amendment invocation. Contrast V.G., where there was no episode involving the child, no diagnosis even on the parent’s own account, and a well child. Pipkin, J., dissented: “medically verified” means a psychological evaluation, a treating physician, or a medical report in the record, not lay descriptions and an unnamed psychologist the parent says she spoke to. The majority relied on In the Interest of R.E.M.B., 374 Ga. App. 564 (2025), and In the Interest of D.D.B., 263 Ga. App. 325 (2003) — both of which had an actual psychological assessment or treating-psychologist testimony in the record. The dissent relied on In the Interest of D.W., 318 Ga. App. at 730 (3), In the Interest of C.C., 257 Ga. App. 543 (2002), and In the Interest of C.D.E., 248 Ga. App. 756 (2001) — cases reversed for lack of any psychological evaluation, treating-physician report, or medical record. Flag the dissent and know both lists. If DFCS has no evaluator, make the record look like V.G., D.W., C.C., or C.D.E., not like R.E.M.B., D.D.B., or a high-speed chase with a gun and a parent who will not get treated.
Medical Neglect and Prenatal Abuse
In the Interest of H.J.4
Facts. H.J. was born extremely premature — twenty-three weeks — after his mother, who had no prenatal care, delivered him in a car. He required continuous NICU hospitalization. DFCS became involved after the hospital could not reach the parents for several days to obtain consent for a life-saving tracheostomy. The juvenile court issued an ex parte removal order and later, after a multi-day hearing, adjudicated the child dependent as to both parents. The mother argued that a power of attorney she executed shortly before the hearing resolved the dependency and divested the court of jurisdiction.
Holding. Affirmed. Earlier appeals from the PPH and the ex parte order were dismissed as moot once the later dependency adjudication superseded them. Clear and convincing evidence supported present dependency rooted in parental unfitness as to both parents. A controlled-substance metabolite in the newborn that is not from medical treatment is prenatal abuse under O.C.G.A. §§ 15-11-2(2)(D) and 15-11-2(56). Present dependency can be shown by evidence the child would be dependent if returned to the parent at the time of the hearing. The inquiry is parental fitness, not the quality of care the NICU is providing. The court did not abuse its discretion in finding continued removal necessary or in finding that DFCS had made reasonable efforts. The court properly denied the motion to dismiss based on the eleventh-hour power of attorney.
In re T.Z.L. (former Code)5
Facts. Former Code. Four-year-old T.Z.L. came into DFCS custody after being severely beaten by his mother’s boyfriend. The mother failed to seek medical treatment, hid the child’s condition, and was later arrested. The father was incarcerated at the time and had a history of substance abuse and criminal history. DFCS pursued a nonreunification plan aimed at adoption. The court later terminated the father’s parental rights.
Holding. The deprivation adjudication based on the mother’s failure to obtain medical treatment was affirmed in the portion of the case that reached that issue. Failure to seek care after a severe beating is neglect. On the father’s later termination, the Court of Appeals reversed and remanded. The evidence was insufficient to show that the cause of the child’s deprivation as to the father — his incarceration and related issues — was likely to continue and would not likely be remedied. Do not read a medical-neglect adjudication as a TPR holding.
Drugs
In the Interest of T.K.6
Facts. DFCS filed a dependency complaint after the mother tested positive for methamphetamine at a hospital. The children had previously been taken into DFCS custody twice before, in part because of positive drug screens. At the time of removal the mother had informally left the children with their paternal grandmother, who lacked legal guardianship. The mother could not be located after leaving the hospital and was reported to be living in unsafe conditions or in her vehicle. By the hearing she was in residential treatment and could not take physical custody. She argued the children were safe with the grandmother, so they were not dependent as to her.
Holding. Affirmed. Current drug use, an established pattern of prior DFCS involvement for the same reason, unstable or unsafe housing, and the mother’s unavailability supported dependency based on neglect and lack of supervision. That record is distinguishable from cases involving only an isolated period of drug use. Leaving the children with a grandmother is laudable and is also evidence the mother could not provide care. That the grandmother’s home was safe does not make the mother fit.
Abandonment and Sexual Abuse
In the Interest of D.H.(father)7
Facts. The father had almost no contact with the boys from November 2021 to February 2024 — two phone calls. He told the mother she could “have” the older child because he did not want to be his dad. He filed for custody later but still did not visit. Video showed him striking the older child hard enough that the child fell and a picture came off the wall. He had threatened to throw the child from a window. A treating psychologist testified the child consistently said the father put a toy car and fingers in his butt, and the child showed sexualized behavior. There was no outcry in a forensic interview, and police did not charge. Supervised visits after removal were “theme parties” with donuts and gifts. The father lived in a two-bedroom townhouse with two other adults, reported $22,000 a year, and had an old out-of-state sex-offense conviction. The petition alleged no contact for over two years and an unsubstantiated sexual-abuse allegation. It did not use the word “abandonment.”
Holding. Affirmed as to the father. Abandonment is conduct showing an intent to forgo parental duties. O.C.G.A. § 15-11-2(1). Failure to communicate meaningfully, or to maintain regular visitation, for at least six months is enough. Two phone calls and later party-style visits do not reset the clock. The petition does not have to say “abandonment” if it pleads the facts — here, no contact for two years. A child can be found sexually abused even when the forensic interview is silent, if a treating clinician describes a consistent outcry and sexualized behavior. H.B. is the same point. Physical abuse on video plus a threat to throw the child from a window is subsection (A). Housing and income were makeweights on this record. They would not have carried the case alone.
Housing, Supervision, and School
In the Interest of C.E.8
Facts. An eleven-year-old was found delinquent for damaging store windows and was removed from his parents and placed with a maternal aunt. The juvenile court later found he could not be returned because of educational neglect, lack of supervision, and unstable housing, and approved a case plan requiring drug testing, family counseling, and domestic-violence assessments. The mother had tried to stipulate dependency on educational neglect alone. The family moved through motels without notice. The mother challenged the preliminary and adjudication hearings and the sufficiency of the evidence.
Holding. Affirmed. Failure to provide education as required by law is neglect. O.C.G.A. § 15-11-2(48). The petitioner does not have to prove a particular academic harm from the missed school. A late-filed case plan did not harm the mother. She was not bound by an earlier stipulation of dependency in later proceedings. She had adequate notice that housing and supervision would be tried. The court could rely on past evidence of neglect to decide whether dependency currently continued. Clear and convincing evidence supported dependency based on continuing educational neglect and unstable housing.
Condition of the Home (Former Code)
In re H.H. (former Code)9
Facts. Former Code. A termination case that began with a concealed pregnancy. The youngest child was delivered in a car, placed in a plastic bag, and abandoned; he was found about an hour later in shock with a dangerously low body temperature. He was hospitalized and placed in foster care. The parents conceded he was deprived. A reunification plan required a clean, safe home. Conditions remained unsanitary, including a severe lice infestation that caused a sibling to miss thirty-five days of school. The parents did not comply with the plan.
Holding. Affirmed. The evidence supported parental misconduct or inability, that the children’s deprivation was likely to continue in the parents’ care, and that termination was in the children’s best interests. Placement with the paternal grandparents was not in the children’s best interests. Use H.H. with care at adjudication. It is a termination opinion. Pair it with V.G. and D.S. when the live issue is whether a dirty house, standing alone, proves present dependency.
No Dependency Found
Drugs
In the Interest of A.W.10
Facts. The mother had a documented six-week period of methamphetamine use. Five-year-old A.W. was in the care of her uncle’s girlfriend, at that woman’s home, when the mother, high on methamphetamine, threatened to shoot the father. The child did not see or hear it. Subsequent screens were negative. She left the child with caregivers when she used. The record contained no other evidence of neglect, harm to the child, or ongoing impairment of her parenting ability at the time of the hearing. DFCS offered no physical injury, no licensed emotional-abuse diagnosis, and no proof the child witnessed family violence.
Holding. Reversed. An isolated period of drug use, standing alone and without other evidence of neglect or present unfitness, is insufficient to support a dependency finding. Emotional abuse requires an observable, significant impairment or substantial risk diagnosed by a qualified professional. Arguing in front of a child is not that diagnosis. A six-week methamphetamine binge, without proof the child went without food, shelter, supervision, or education, is not clear and convincing neglect. Present dependency is measured at the hearing; by then the mother had negative screens and was willing to treat.
In the Interest of G.M.11
Facts. The mother tested positive for opiates at her younger child’s birth. The newborn briefly showed withdrawal symptoms but recovered. DFCS did not remove the children at first. It referred the mother for assessment and outpatient treatment. She complied. Nearly all later screens were negative except one positive for amphetamine. Months later a therapist found her impaired during a home visit; she admitted taking two Soma pills. A caseworker saw her return from a neighbor’s with the children while apparently under the influence, but conceded the children were not abused, were never left unsupervised, and always had food, clothing, shelter, and medical care. Tooth decay in a region where decay is common was also in the file.
Holding. Reversed. An isolated incident of impairment, without evidence of resulting harm or neglect, does not meet the clear-and-convincing standard. A missed screen plus candor about a relapse is not present unfitness. Tooth decay, without fault and without harm, is not medical neglect. Presiding Judge Doyle dissented.
In the Interest of B.A.12
Facts. DFCS filed an emergency dependency complaint shortly after B.A.’s birth. The petition recited the mother’s cocaine history with other children, unknown whereabouts, an open foster case she was not working, and alleged withdrawal. At the hearing the caseworker had spoken to the mother once, had never met the baby, admitted there was no evidence of current drug use, and admitted the baby had no withdrawal and no physical or mental concerns. The juvenile court found the child dependent and continued custody with DFCS, placed with a grandmother, pending further disposition. The order faulted the mother for not documenting assessments, housing, or support payments.
Holding. Reversed. The juvenile court’s order improperly shifted the burden to the mother to disprove continued dependency, rather than requiring DFCS to prove present dependency by clear and convincing evidence. A DFCS-history recital with no evidence behind it will not support present dependency. Given that error, the Court of Appeals reversed outright rather than vacating and remanding.
Poverty
In the Interest of C.J.V.13
Facts. A mother’s two children were removed based on lack of supervision and repeated moves. Within the year before the termination petition was filed, she had found a job, moved into her own apartment, completed her parenting classes and psychological evaluation, and made child support payments once she had income. She had also been laid off shortly before the termination hearing, though she was confident she would be rehired.
Holding. Reversed. The evidence did not clearly and convincingly show the deprivation was likely to continue — the mother had substantially completed her case plan goals within a short window, and her setbacks traced to an economic downturn rather than any verified incapacity to parent. Poverty alone is not a basis for termination.
Concurrence — Dillard, J. Judge Dillard’s concurrence here is worth reading in full, not just summarizing — it is one of a series of opinions in which he has argued that juvenile courts routinely conflate poverty with unfitness. He pointed out the height of irony in a state founded to give a fresh start to people without means now severing the parental rights of its poorest citizens simply because they cannot keep pace financially. He drew the line explicitly: wanting to care for a child but lacking the financial means or emotional capacity to do so is one thing; willfully disregarding or abandoning a parental duty is another. Only the second is a constitutionally sound basis for termination — hardship, by itself, is not. He also argued the State has no business moving a child toward adoption unless and until a parent has, through her own actions or inaction, forfeited the constitutional right to a familial relationship, and that the real question at termination is not whether the child has a model parent — few parents anywhere would survive that test — but whether the relationship has been irretrievably damaged by the parent’s unwillingness or inability to care for the child.
Dissent — Andrews, P.J. Presiding Judge Andrews argued the majority owed more deference to the juvenile court’s own fact-finding and credibility calls. In his reading, the mother’s compliance had waned as the case went on, and the record supported the juvenile court’s conclusion that the deprivation was likely to continue and that termination served the children’s best interests. Reading the majority, the concurrence, and the dissent side by side is the fastest way to see exactly where the two approaches to a poverty-driven record actually diverge.
Housing, Poverty, and Mental Health
In the Interest of V.G.14
Facts. DFCS filed a petition as to two-year-old V.G. citing the mother’s lack of stable housing and an alleged mental-health diagnosis. The mother had asked a community agency for housing help. The agency referred her to DFCS, which placed her in a shelter. She lost the bed after a late bus, went to a hospital social worker, and was reported to DFCS. The complaint also cited an unconfirmed childhood “bipolar schizophrenia” label and a comment that she felt overwhelmed. The child was current on shots, appropriately clothed, well-nourished, and bonded with the mother. The sister was willing to house them. DFCS had not followed up. There was no expert testimony or diagnostic evidence of a mental-health disorder. The court found dependency, gave DFCS custody, and ordered no reunification plan.
Holding. Reversed. Parental unfitness is essential to a dependency finding and must be shown by clear and convincing evidence. Housing instability was not neglect on this record — the mother had sought help and had a sister willing to take them in. An unconfirmed childhood label is not a medically verifiable deficiency. Poverty and homelessness alone cannot support a dependency finding. The Department must show present, not past or hypothetical, harm. Presiding Judge Dillard’s special concurrence emphasized the constitutional dimension of parental rights and criticized DFCS for penalizing a mother for asking for help.
In the Interest of A.M.B.15
Facts. DFCS became involved after the mother’s then-boyfriend allegedly threw her through a wall. Under a safety plan, the mother and her three young children were to live with her great-aunt. She did so for several months, then left. She then lived with the children in hotels and at her brother’s house for about forty-five days. After losing contact, DFCS had police locate her; she was arrested for a probation violation. When the great-aunt retrieved the children they were in wet diapers and smelled of urine. A GAL report noted a new boyfriend believed to use methamphetamine, with a record for child molestation, and that the mother lacked stable housing or employment.
Holding. Reversed. Notwithstanding the concerning circumstances, the record did not show by clear and convincing evidence that the children were without proper parental care or control at the time of the hearing. There was no evidence the mother lacked parenting skills or that the children’s present health and care were inadequate. Even the Department’s own psychologist found no “red flags.” Past housing problems plus a guess about the next living arrangement are not present dependency.
In the Interest of D.S. (former Code)16
Facts. Former Code. Three young children were found in a filthy home with a strong odor of animal waste and no hot water for bathing or cleaning. On a prior appeal the first order had been held legally insufficient and remanded. On remand the trial court again found deprivation and awarded temporary custody to DFCS, based substantially on the same unsanitary housing conditions.
Holding. Reversed. Filthy housing conditions alone — the odor of animal waste, lack of hot water — did not amount to clear and convincing evidence of deprivation sufficient to overcome the presumption that a child’s interest is served by remaining with a natural parent, absent a further showing of parental unfitness. Photographs of a bad house are not enough if no witness ties those conditions to the children’s health or safety.
Prenatal Abuse — What the Statute Does Not Cover
C.W. v. Department of Human Services17
Facts. DFCS placed a mother’s name on the state’s central child-abuse registry for “prenatal abuse” based on her marijuana use while pregnant, after her newborn’s meconium tested positive for THC. An ALJ ordered her name removed. The superior court reversed the ALJ and reinstated the listing. The mother sought discretionary review, arguing marijuana is not a “controlled substance” under the governing statutes. DFCS conceded she was correct.
Holding. Reversed. Marijuana is not a “controlled substance” as that term is used in the relevant statutes, so prenatal marijuana use alone cannot support a “prenatal abuse” listing on the central child-abuse registry. This was a registry appeal. The definition is the same one used at adjudication. Check the current schedules before conceding the paragraph. Do not let a registry case overwrite H.J. on a meth-positive newborn.
Sibling Harm and the Non-Offending Parent
In the Interest of La. K.18
Facts. DFCS filed petitions as to two children based on the mother’s unrehabilitated drug addiction. After a protective order as to the mother, DFCS amended to add the father, alleging he failed to protect the children by leaving them in the mother’s care despite knowing of her active addiction, and failed to provide adequate supervision. The father had left the children with the mother after she returned from detox, believing she had stopped using. The children were not harmed in her care.
Holding. Reversed as to the father. The evidence did not clearly and convincingly show that the father failed to protect or properly supervise the children. Dependency as to one parent’s conduct does not automatically establish dependency as to the other, absent evidence tying that parent to the harm. Ask what the parent knew, what the parent did, and whether these children were harmed.
In the Interest of K.M.19
Facts. The mother’s two-month-old child was found dead after her partner, who had been caring for the infant overnight, placed him in a bouncer chair and fell asleep. The infant did not survive despite the mother’s attempted CPR. DFCS’s investigation surfaced two prior, apparently minor incidents — an accidental iron burn promptly treated, and a bruise the Department’s own investigator attributed to a plausible accidental cause, with no evidence of foul play. DFCS also cited the parents’ admitted marijuana use. The juvenile court adjudicated all six of the mother’s living children dependent.
Holding. Reversed. Marijuana use alone did not support dependency. The two isolated injury incidents, evaluated as accidental by DFCS’s own investigator, did not support dependency. The death of the infant — attributable to the partner’s supervision decisions, not the mother’s conduct — did not establish that the mother’s other children were presently dependent. Sibling death is a statutory factor only when the circumstances are substantial evidence that this parent’s neglect or abuse caused it. O.C.G.A. § 15-11-311(a)(6). It is not a directed verdict.
In the Interest of K.K.20
Facts. A child witnessed his three-year-old brother fatally shoot himself with a loaded, unsecured handgun in the home. DFCS filed a dependency complaint as to the surviving child. The juvenile court denied the mother’s motion to dismiss and entered a dependency finding, along with a supervised-visitation order.
Holding. Vacated and remanded. The order contained insufficient findings and reasoning to permit meaningful appellate review of the sufficiency of the evidence or the legal standard applied. Do not cite K.K. as a merits holding on sibling death. Present dependency is measured at the hearing. If the child is already out of the home, the question is whether the child would be dependent if returned that day.
Present Dependency, Not Past Dependency
In the Interest of M.S.21
Facts. DFCS filed a petition citing the mother’s other children being in foster care, the whereabouts of one putative father being unknown, a positive hair-follicle screen for methamphetamine, cocaine, and benzodiazepine, concerns about the cleanliness of her apartment, a recent eviction, and a domestic-violence protective order against the child’s father. By the hearing the mother had a clean, furnished apartment with a crib, a job, later negative hair follicles, and a daycare-plus-grandmother plan. The one-year-old was placed with paternal grandparents. The child was happy and well there.
Holding. Reversed. None of the individual grounds, nor their combination, was supported by clear and convincing evidence of present dependency. A history with DFCS is not current proof. Cleanliness concerns were not clearly established. Present drug use was not proven. A history of domestic violence did not clearly show present danger. Grandparents who keep a child on weekends are not proof the parent is unfit. If the child is already out of the home, the question is whether the child would be dependent if returned to the parent at the time of the hearing.
In the Interest of A.B. (former Code)22
Facts. Former Code. A.B. was born three months premature to a fifteen-year-old mother and had serious medical needs. Citing depression, the mother stopped visiting the baby in the hospital and disappeared, having no contact from February until mid-August. The maternal grandmother took custody on discharge. When DFCS learned of the situation it sought a deprivation finding based on abandonment. At the hearing DFCS showed the mother had not bonded with the child, had no housing or income, had not returned to school, and had not sought treatment for her depression. The mother argued the child was not deprived because the grandmother was doing a good job.
Holding. Affirmed. The evidence supported findings both that the mother had abandoned the child and that she was incapable of caring for the child. The fact that the grandmother was providing good care did not excuse the mother’s own abandonment and incapacity. The dependency inquiry centers on the parent’s fitness and conduct, not the child’s temporary location or the quality of care a third party is providing.
In-home and removal are different orders. Parental unfitness is essential to dependency. The Court of Appeals has said Georgia law does not explicitly require a separate unfitness finding when the child stays with the parent.23
Removal is what triggers the extra sentence: the dependency resulted from unfitness — intentional or unintentional misconduct, or physical or mental incapability to care for the child. Any order that keeps the child out of the home also needs a finding that return would be contrary to the child’s welfare. O.C.G.A. § 15-11-134(b).24
If the child stays home, DFCS still has to prove present need for court protection, and the order still needs facts and conclusions of law. Do not let the court drop a throwaway line that the child is at risk if left with the parent unless the record supports it. That sentence gets used in the next case.25
This record is also the first half of a termination case. O.C.G.A. § 15-11-310(a)(5) needs a dependent child due to lack of proper parental care or control, unsuccessful or excused reasonable efforts, a cause likely to continue, and likely serious harm from return or from continuing the relationship. A stipulated adjudication is binding later on the fact of dependency at that time. It does not prove harm. See Chapter 26.
Nuts & Bolts
Start with the petition. Which kind of dependency is actually alleged — abuse, neglect, illegal placement, no legal caregiver? Those are four different cases with four different sets of proof, and the answer shapes everything counsel does next. Do not expect much from the document itself: a petition is notice pleading, and it will read thin. It still has to state the facts plainly and with particularity, enough that a parent can prepare a defense, so a petition that says nothing beyond the statutory language is worth a challenge. But the real work is at the hearing, making sure the evidence the Department actually puts on matches the dependency it pled and proves it in the present tense. What has to be established is that this child is a dependent child now, at the time of the hearing. Past dependency is not a substitute for it. A prior case, an old report, a referral history, a period the parent has since come through: all of that may be relevant background, and none of it establishes that the child needs the protection of the court today. And a parent has no duty to prove that she is fit. The burden sits with the State or the petitioner throughout, and what must be proved is that the child is dependent in this parent’s care. Whatever the court finds, the order has to identify which facts support the conclusion. 26 A recital that merely tracks the statute is not a finding.
Practice Tip
The most useful thing to explain to a client early is that the first
hearing and the adjudication are not the same contest. Probable cause is
a low bar, and it is not the standard the case is decided on. When the
child is in care the adjudication follows quickly, and at that hearing
the Department has to prove present dependency by clear and convincing
evidence — which the same facts may well not carry. A client who does
not understand the difference may view the preliminary protective
hearing as the verdict and stop fighting, or will read a favorable
ruling there as the end of the case. Neither is right, and both could
cost the parent something later. Explain it out loud, more than once, in
words the client can repeat back. It’s important to remember that not
every “bad fact” for a parent is a safety risk. A history with the
Department, a missed pay stub, a cluttered apartment, an eviction — none
of those is a safety threat on its own, and the Department should be
made to say what specifically this child needs protecting from right now
and what evidence shows it. Poverty is not neglect, but circumstances
that lead a parent to place a child at risk could be.
Finally, while stipulations can be useful and avoid unnecessary hearings
about facts not in dispute, it’s important that counsel clearly
understand the contours of any stipulation, and seek their clients’
assent for the stipulation to be made. It can be tempting to agree to
generalities to avoid a hearing that might expand the scope of
dependency concerns or in the interests of expediency. However, an
admission made at the adjudication hearing will remain throughout the
rest of the case. A poorly worded or vague admission runs the risk of a
parent objecting to the basis of the case later, when little can be done
about it. A parent who agreed to a finding of “substance abuse” or
“domestic violence” but does not believe he or she really has such a
problem, will rarely be cooperative with services designed to address
them.
4. Jurisdiction and Venue
4.1 Exclusive Original Jurisdiction
The juvenile court has exclusive original jurisdiction over dependency proceedings.1 Superior court is not the starting point for an alleged dependent child, and if the paper styled as a dependency petition is in substance a private custody fight between parents, the juvenile court lacks subject-matter jurisdiction.2
Superior court never loses its underlying jurisdiction over custody between the parents. What happens instead is temporary suspension, not displacement.3 While a dependency case is pending, any placement the juvenile court orders overrides an existing superior court custody order or parenting plan for as long as the dependency case stays open. The juvenile court itself cannot award final custody between two parents; it can only place a child with a parent as a temporary dispositional option. Once the child is no longer dependent, custody reverts automatically to whatever the superior court order already says, unless someone goes back to superior court to change it.4
A child without a parent, guardian, or legal custodian is a dependent child,5 and the juvenile court cannot decline that case for want of jurisdiction.6
Practice Tip
A noncustodial parent does not have to wait for the dependency case to end to pursue custody. Superior court can hear a parallel custody modification while the dependency case is pending, so long as the order specifies that any custody change does not take effect until the juvenile court releases the child from its jurisdiction. This can matter even for a parent who currently has no legal rights at all: a biological father who has never legitimated can still be a placement option in the dependency case itself, and can use that window to legitimate and obtain custody in superior court. If that custody protects the child from the other parent’s unresolved issues, it can end the dependency case entirely, because the court’s protective concern is resolved even though the other parent’s problems were never fixed. That is the key drafting point: the receiving parent’s custody order has to actually give him complete protective authority over the child. If the superior court awards custody to the father but still allows the mother unsupervised visitation, he has no way to shield the child from her unresolved issues without violating his own custody order, and the child may remain dependent regardless of who holds custody on paper. Push for an order that gives the custodial parent real, complete authority to protect the child, or the dependency case will not resolve.
Practice Tip
If you represent a non-custodial parent without dependency concerns, the juvenile court has authority to place temporary custody with your client pursuant to O.C.G.A. § 15-11-212. Do not let a client grow complacent if that happens. That custody order lasts only as long as the child remains dependent. Since there is no appointed counsel for the separate superior court custody fight, it is easy for a parent to sit on that right for years while the dependency case quietly runs its course. If the other parent later resolves her own issues, custody can revert to her by operation of law, regardless of how long the child has actually lived with the other parent, forcing a disruptive last-minute scramble back to superior court. Counsel for the parent who stands to benefit from becoming the underlying legal custodian should drive that point home early and often, not after years have already passed.
4.2 Concurrent Jurisdiction
The juvenile court has concurrent jurisdiction to hear legitimation petitions concerning a child alleged to be dependent.7 It cannot decide custody as between the parents. If the real fight is parent-versus-parent custody, that issue belongs in superior court even if a dependency case is pending.
Legitimation when the child already has a legal father. O.C.G.A. § 19-7-22 (e) provides for limited, concurrent jurisdiction in the superior court and in the juvenile court, if a dependency case is pending. Pursuant to the statute:
A legitimation petition may be filed, pursuant to Code Section 15-11-11, in the juvenile court of the county in which a dependency proceeding regarding the child is pending; provided, however, that if either parent has demanded a jury trial as to child support, that issue of the case shall be transferred to superior court for a jury trial. Such petition shall contain the same information and require the same service and opportunity to be heard as set forth in subsection (c) of this Code section. After a hearing, the juvenile court may issue the same orders as set forth in subsection (d) of this Code section.
Thus, the juvenile court’s authority is limited to that which may be ordered pursuant to O.C.G.A. § 19-7-22 (d), which provides, inter alia:
… the court may issue an order declaring the biological father’s relationship with the child to be legitimate, provided that such order is in the best interests of the child. If such order is issued, the biological father and child shall be capable of inheriting from each other in the same manner as if the child was born in lawful wedlock, … Such order shall specify the name by which the child shall be known.
In order to terminate the legal rights of the existing legal father — which would be required in order to make another man the “legal father” — the juvenile court would also need authority to enter an order pursuant to O.C.G.A. § 19-7-22 (g), which provides, inter alia:
(g) A legitimation petition may also include claims for visitation, parenting time, or custody. If such claims are raised in the legitimation action, the court may order, in addition to legitimation, visitation, parenting time, or custody based on the best interests of the child standard. In a case involving allegations of family violence, the provisions of paragraph (4) of subsection (a) of Code Section 19-9-3 shall also apply.
It is clear, therefore, that the juvenile courts do not share concurrent jurisdiction for all matters related to legitimation with superior court, even when a dependency case is pending. This is made clearer by consideration of O.C.G.A. § 15-11-10 (3) (D), which provides, inter alia, that juvenile courts have exclusive jurisdiction for the termination of the legal rights pursuant to the juvenile code, “provided, however, that such jurisdiction shall not affect the superior court’s exclusive jurisdiction to terminate the legal parent-child relationship and the rights of a biological father who is not the legal father of the child as set forth in Chapters 6 through 9 of Title 19.”
No clear case law addresses this question, but the superior court's authority to delegitimate a legal father in a Georgia legitimation case seems to rest on its exclusive statutory jurisdiction pursuant to O.C.G.A. §§ 19-7-22 and 15-11-10(3)(D), exercised through the best-interests-of-the-child standard rather than the more demanding statutory grounds required in dependency or adoption proceedings.8
Caution
No Georgia appellate decision has squarely addressed the juvenile court’s authority over an existing legal father in a legitimation brought under § 19-7-22(e). What is above is an argument from the statutory text, not settled law. The counterargument, if you are on the other side of it, is that O.C.G.A. § 15-11-11(1) grants concurrent jurisdiction over any legitimation petition concerning a child alleged to be dependent, without qualification. Brief it rather than assume it, and check the current subsequent history of both Code sections before you rely on either.
4.3 Venue
A proceeding may be commenced in the county in which the child legally resides, or in the county in which the child is present when the proceeding is commenced if the child is present without a parent, guardian, or legal custodian, or if the acts underlying the allegation occurred in that county.9
For the convenience of the parties, the court may transfer the proceeding to the county where the child legally resides, even when venue was proper where the case was filed.10 If it does, certified copies of everything on file with the clerk — every legal and social document and record — have to accompany the transfer. Do not let the case restart from a blank file in the new county; confirm the full record actually made the trip.
Nuts & Bolts
If a child is removed in one county but resides in another, coordinate quickly with the county of legal residence.
4.4 One Family–One Judge
Whenever possible, a single judge shall hear all successive cases involving the same child or family. 11 Most Georgia courts do this as a matter of course, and in the ordinary case it never comes up. The provision is worth knowing anyway. If a case is reassigned partway through, and the change would put the family in front of a judge with no history of it at a point where that history matters — a contested adjudication, a nonreunification hearing, a termination — counsel can object and cite the Code section rather than treating the reassignment as a purely administrative event.
4.5 Interstate Jurisdiction — The UCCJEA
Georgia adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in 2001, codified at O.C.G.A. § 19-9-40 et seq. It exists to stop two states from entering conflicting custody orders for the same child, to shut down forum shopping, and to keep interstate custody fights from dragging on indefinitely while courts in different states each think they have the case.12 It comes up more often in dependency practice than the name suggests — not just in divorce cases. The UCCJEA governs jurisdiction in any “child custody proceeding,” a term that expressly includes dependency, guardianship, termination, and paternity actions alongside divorce and protective-order cases.13 If a family in your case has any out-of-state history — a parent who just moved here, a child who spent the last school year somewhere else, an existing custody order from another state — ask the UCCJEA questions before the petition is filed, not after.
Initial jurisdiction — the home state rule. A Georgia court can make an initial custody determination only if the statutory conditions are met, and in practice that almost always comes down to whether Georgia is the child’s “home state.”14 Home state means the state where the child lived with a parent, or a person acting as a parent, for at least six consecutive months immediately before the proceeding started.15 “Lived” means physically present, not legally resident — a parent cannot manufacture Georgia jurisdiction by pointing to where the child is supposedly domiciled if the child was actually living somewhere else for the six months that matter.16 Physical presence of a party or the child in Georgia is neither necessary nor sufficient to establish jurisdiction on its own, and a parent’s residence is not itself a factor in the home-state analysis — it is where the child lived that controls.17
Exclusive, continuing jurisdiction — once Georgia has it, Georgia keeps it. Once a Georgia court makes a custody determination, Georgia retains exclusive, continuing jurisdiction over it until a court — Georgia’s or another state’s — determines that neither the child, nor either parent, nor anyone acting as a parent still lives in Georgia.18 That happened in one Georgia case where a mother tried to enforce a Bibb County custody order after she and the child had moved to Florida: because a Florida court had already found that both parents and the child lived in Florida and not Georgia, the Georgia court had lost its exclusive, continuing jurisdiction, and the Georgia court properly dismissed her enforcement petition.19 A Georgia court that has made a custody determination but no longer has exclusive, continuing jurisdiction over it may still modify that determination — but only if Georgia would independently qualify to make an initial determination at that point.20
Modifying another state’s order. Georgia cannot modify another state’s custody determination unless Georgia would have jurisdiction to make an initial determination and one of two things is also true: the other state’s court has determined it no longer has exclusive, continuing jurisdiction (or that Georgia would be the more convenient forum), or a court has determined that neither the child nor either parent still lives in the other state.21 Do not assume a long-standing Georgia residence is enough by itself. A parent and child can live in Georgia for years and a Georgia court can still lack subject-matter jurisdiction to modify an out-of-state order if the other parent still lives in the issuing state and that state’s court has never given up its jurisdiction. Confirm the current status of the foreign order — and get the issuing court’s own relinquishment on the record if you are relying on it — before you file a modification petition here.
Temporary emergency jurisdiction. A Georgia court can exercise temporary emergency jurisdiction if the child is physically present in Georgia and has been abandoned, or if emergency protection is necessary because the child, a sibling, or a parent is subjected to or threatened with mistreatment or abuse.22 This is the provision that lets a 72-hour hearing happen even when the family’s connection to Georgia is brand new. It is ordinarily a stopgap, not a permanent fix: if there is no existing custody order entitled to enforcement and no proceeding already pending in a state with proper jurisdiction, an emergency order can become the final determination only if it says so and Georgia goes on to become the child’s home state.23 If another state’s proceeding is already pending, or another state’s order already exists, the Georgia emergency order is temporary by design — flag the interstate posture early so the disposition order does not overreach.
Inconvenient forum and simultaneous proceedings. A Georgia court with jurisdiction can still decline to exercise it if it finds Georgia an inconvenient forum and another state’s court more appropriate — raised by motion, by the court on its own, or at another court’s request.24 And where two states’ courts are proceeding at the same time, Georgia may not exercise jurisdiction once it learns of the other proceeding unless that proceeding has been terminated or stayed because Georgia is the more convenient forum — Georgia is generally required to stay its own case and communicate with the other court, not race to a ruling.25
Practice Tip
Ask the UCCJEA questions at intake, not at the first hearing: where has the child actually lived for the last six months, does any other state have a custody order or a pending case involving this child, and is any parent or person acting as a parent still living in another state. If the answer to any of those is not clearly “no,” flag it for the court immediately — a jurisdictional defect found on appeal unwinds everything that happened below it, and a UCCJEA problem caught at intake is a phone call between judges, not a reversal.
5. Parties, Right to Counsel, Guardians ad Litem, and the SAAG
5.1 Right to Counsel
A child and any other party has the right to an attorney at all stages.1 Parents who are indigent are entitled to appointed counsel. The court shall appoint an attorney for an alleged dependent child, and for a child receiving extended care youth services from DFCS, as soon as practicable and in any event before the first hearing that may substantially affect the child’s interests.
The right is not discharged by telling a parent to go find a lawyer. Before proceeding against an unrepresented parent, the court must determine on the record whether the parent is an indigent person and, if so, whether the parent knowingly, intelligently, and voluntarily waived the right to appointed counsel. Waiver will not be lightly presumed, and the court should indulge every reasonable presumption against it. If the parent is not indigent, the right to retained counsel is predicated on the parent’s own diligence — but the court still has an affirmative duty to delay the proceedings long enough to find out whether the parent acted with reasonable diligence in obtaining an attorney and whether the absence of one is attributable to reasons beyond the parent’s control.2
In the Interest of S.H., 361 Ga. App. 788 (2021), vacated a termination order on exactly that record. The juvenile court had told the father more than once that retaining counsel or re-qualifying for appointed counsel was his responsibility, but it never took a waiver colloquy, never inquired into indigency even after he said on cross-examination that he could not afford a lawyer, and made no diligence findings. The remedy is structured rather than automatic: on remand, if the parent had a right to counsel he did not waive, the court appoints counsel and holds a new hearing; if he waived it, or was not indigent and failed to act with reasonable diligence, the court may reenter its original judgment. Chief Judge Rickman dissented, reading O.C.G.A. § 15-11-262(j) to require only that a parent be informed of the right and given the opportunity to retain counsel, seek appointment, or waive — not an express on-the-record waiver, suggesting that issues relating to the right to counsel are not always clear cut. To avoid reversal on procedural grounds, trial court should carefully investigate a party’s waiver of his or her right to counsel on the record. Other parties should not sit quietly if a trial court fails to do so (as to another unrepresented party.) Appellate reversals and remands delay permanency, regardless of the ultimate outcome in the case.
Hearing-Practice Note
Dependency cases run on statutory clocks, and delay is not neutral — the child is living with uncertainty until permanency is obtained. Treat a continuance as something to be justified rather than something to be asked for as a matter of routine. That said, the deadlines are not absolute. On a showing of good cause the court can recess or continue a case, and a court is generally more receptive when the request comes from the parent or the child than when it comes from the moving party. A last-minute appointment as counsel is exactly the situation the good-cause standard exists. If counsel has not had time to interview the client, read the petition, locate a witness, obtain records, or do whatever else effective representation at this hearing actually requires, ask — and say specifically why additional time is needed A continuance sought to prepare a defense is a different request from a continuance sought because no one was ready, and it should be framed that way on the record.
5.2 Who the Players Are
DFCS and the SAAG
The moving party in most dependency cases is the local DFCS office. DFCS is represented in each county by one or more Special Assistant Attorneys General, universally called SAAGs. The SAAG is not “the State” in the criminal-law sense and is not the child’s lawyer. The SAAG’s client is the agency. The SAAG’s job includes presenting legally sufficient evidence, not merely a caseworker’s narrative. The SAAG also typically drafts the proposed order for the judge’s signature, since DFCS is usually the moving party — parent’s counsel and the GAL are not expected to draft competing orders as a matter of course, though either may do so in an unusual case where it is genuinely necessary. What both are expected to do is read the SAAG’s draft closely before it is signed and object on the record to anything it gets wrong.
Parent’s attorney
The parent’s attorney represents the parent — not the family as a unit, not the child, and not counsel’s own view of how the case ought to come out. That distinction sounds obvious until the first case where the client wants something counsel would not choose. The client sets the objective. Counsel supplies the judgment about how to pursue it, and says plainly when an objective is not achievable on the facts. A parent who is told only what counsel thinks they should want has not been represented.
Most parents arrive in dependency court during the worst week of their lives, and the child has usually already been removed by the time counsel is appointed. The qualities that make a client difficult in the hallway — anger at the caseworker, defensiveness, a version of events that shifts between the first telling and the second — are often symptoms of the very things that brought the case to court: substance use, untreated mental illness, and distrust or even hatred of the legal system. A parent in that condition may not absorb what happened in a hearing they sat through. Judging a parent at the beginning of a dependency case as an uncooperative client is sometimes a misreading. Effective advocacy requires all attorneys to patiently explain the process and relevant laws to enable a client to understand what is happening and to communicate his goals for representation. This is especially true in juvenile court dependency cases, where many clients have significant trauma, low levels of education, and often undiagnosed mental health issues.
The largest single difference between good and poor representation in this practice is when counsel first meets the client. A quick first meeting in the hallway before the preliminary protective hearing means the earliest substantive decisions in the case get made on the agency’s account of the facts, because no one has developed any other account. Though it is often difficult under the circumstances to investigate the case prior to the PPH, do what you can to find out what contact the family has had with DFCS before this case, who decided to bring it to court and why, what specific harm removal is meant to prevent, and what was considered short of removal. The answers to those four questions are vital to efforts to prevent removal, minimize family disruption, or to get the client positioned to begin reunification efforts quickly.
Communication with clients is often unglamorous and can be stressful, but it matters more than any single cross-examination or eloquent argument made in the courtroom. A client who understands what to expect will usually be more cooperative. Explain what each hearing actually decides, because a client who does not understand what is being determined cannot make an informed decision about it. Prepare the client for the fact that what they say to a caseworker, a service provider, or a family team meeting can often be presented as evidence.
Never let a client agree to a case plan they cannot perform — an unperformable plan is not a compromise. The juvenile code contemplates collaboration between DFCS and parents in fashioning a reunification case plan. In practice, many case plans look similar: submit to a substance abuse assessment and follow recommendations; obtain and maintain safe, stable housing; obtain and maintain employment; etc. The fact that they look similar does not mean that they are wrong. However, each case is different, and counsel for parents should review the case plan to make sure it addresses the parent’s individual dependency issues and doesn’t demand additional “hoops” to jump through which are unrelated to the particular case. Parent attorneys should also ensure that services are available and accessible in the community. This is especially true as to clients with mental or physical impairments or language or cultural barriers. The goal is not to make the plan as easy as possible; it should be to fashion the plan that will most effectively result in the child returning home as soon as possible.
Most importantly, parent attorneys must advocate for their clients, who are sometimes obstreperous, offensive, or even accused of horrible things. A foundation of our legal system is the belief that all people are entitled to be represented by an attorney, and without lawyers who are willing to represent even difficult clients, it would be inoperable. Correct the record when a report mischaracterizes what the parent has done, because those characterizations harden into findings and follow the family for the life of the case. Stay in contact between hearings, and stay on the case through disposition, review, permanency, and any appeal. Continuity in representation is important. Things happen that require withdrawal– attorneys may retire, become ill, move or begin work in a different legal capacity. However, substituted counsel will never have all of the insight you gleaned, if you were appointed at the outset of the case. If you accept an appointment to represent a parent, do whatever you can to see the case through to the end.
Child’s attorney
The child is a party to the case and has a lawyer. A child lawyer’s assignment is to advocate for the child’s expressed interests — what this child actually wants. In many cases, this is not the same assignment as advocating for what would be best for the child. Just as a lawyer cannot represent adverse parties in a matter, a single lawyer cannot advocate, at the same time, for a child’s stated interest and the best interests of the child, if those are two different things. For that reason, our Code contemplates that those interests may be represented by two different people: an attorney for the child’s stated position, and a guardian ad litem. (Where one person holds both roles, the tension between them is structural rather than occasional, and it is taken up separately in § 5.3.)
The attorney for the child should be made as soon as practicable. However, appointments are made only after a case is filed, so it would be rare for a child to have an attorney appointed prior to the PPH. (It can happen, for example, if there is other court involvement such as a CHINs or delinquent case.) This results in a short window of opportunity for a child’s attorney to prepare for court. For that reason, an attorney appointed to represent a child must act quickly to make contact. If the child is in the custody of DFCS pursuant to a removal order, contact the SAAG to make arrangements to meet the child before court or to at least talk to him by phone. The duty to communicate is ongoing. After the PPH, meet the child before every significant hearing, somewhere the child can actually speak, rather than in a hallway five minutes before court with a caseworker or foster parent within earshot. A child who has met their lawyer once, in passing, has a lawyer in name only.
Age does not remove the obligation to find out what the child thinks. A four-year-old will not articulate a permanency preference, but a four-year-old has views about where they sleep, who they miss, and what frightens them, and those views are obtainable in an age-appropriate conversation. The reason the child has counsel at all is so that the child’s own account reaches the court instead of arriving entirely filtered through adults describing the child. Counsel who substitutes his own judgment for the client’s stated position — however sound that judgment — has quietly changed roles and become a second GAL in a case that already has one.
The Bar rules apply. The ethical duties of loyalty, confidentiality, competence and communication apply to child attorneys, just like parent attorneys. Although a single attorney often serves in a dual capacity as a child’s “stated interest” attorney and GAL, ethical duties may require withdrawal as GAL if there is a conflict. (This is discussed more in the next section.) In that case, an ethical issue of significance is worth noting: what a child tells their attorney is privileged, and what a child tells a GAL is not, because the GAL is required to report it. Counsel serving only as the child’s attorney can offer confidentiality within the ordinary limits. Counsel serving in both roles cannot, and should say so to the child before the conversation rather than after it.
5.3 Guardian ad Litem and CASA
The code is clear: a court shall appoint a GAL for an alleged dependent child.3 An attorney representing the child’s stated interests may serve as GAL unless a conflict arises between that duty and the attorney’s own view of the child’s best interests.4 Though the GAL is often an attorney, certain non-lawyers may serve in that role. A CASA volunteer is a layperson who receives special training, who is sworn by the court and who may serve as GAL. A CASA may be appointed in addition to an attorney, not instead of one, if a party or the court thinks the case needs both, and this is a standard practice in counties with a vigorous CASA program.5 However, there is a key difference between a lay GAL and an attorney GAL. An attorney GAL may examine witnesses, present evidence, and make legal argument. A CASA volunteer may report and be heard but may not practice law.
A GAL’s recommendation is supposed to be built on the same best-interests factors the court itself has to weigh — safety, bonds with parents and siblings, the child’s need for permanence, the home environment, community and cultural ties, the child’s own wishes, and the rest of the statutory list.6 A GAL report that jumps straight to a recommendation without walking through what was actually considered is not doing the job the statute describes. If unclear, ask the GAL, on the record, which factors drove the recommendation and what evidence supports each one — the same discipline counsel is expected to bring to a best-interests argument applies to the GAL’s own analysis.
A GAL is not technically a “party” to the case. The dependency code defines a “Party” as the state, a parent, guardian, legal custodian, or other person subject to the proceeding7 — and a party cannot be appointed as the GAL in the same case.8 The GAL has no rights of his own at stake in the outcome, which is exactly what makes the role useful: every other participant in the room is advocating from some interest in a result, while the GAL is the one participant expected to act and reach a recommendation without a predetermined stake in what it turns out to be.
The GAL's statutory duties are extensive and cannot be trimmed by the court absent circumstances that make a specific duty unreasonable for this child.9 At minimum, expect a GAL to maintain regular in-person contact with the child, interview the child before each major hearing in an age-appropriate way, conduct an independent factual assessment rather than relying on DFCS's narrative, consult with the child's attorney when one is separately appointed, review the case file and any relevant medical, psychological, or educational records, attend every hearing, contact the child before and after any placement change, and file written reports addressing the child's best interests — not just a bottom-line recommendation. In many courts, attorney GAL’s actively participate in the hearing rather than entering a written report. This is permissible if the court finds the necessity of a written report to be unreasonable due to the GAL’s involvement in the trial. However, a GAL who shows up only for the hearing itself, without the contact and review the statute requires, has not done the job the Code describes, and that gap is worth raising on the record.
It is sometimes said that the GAL is “the eyes and ears of the court,” but this claim betrays a misunderstanding of our law. The court's only eyes and ears are the evidence actually admitted at a hearing, and a GAL who treats the role as license to bring the court facts outside that record misunderstands the GAL role. Ex parte communication with the court — by the GAL or by anyone else — is prohibited outright.10 A GAL's reports, requests for hearings, and other communications with the court must be provided to every party at the same time they go to the judge. If a GAL is quietly relaying impressions to chambers between hearings, that is a due-process problem for whichever party did not hear about it.
The dual appointment of one person as both the child's attorney and the GAL is lawful,11 and it is common practice in Georgia. It is also worth examining the structural tension it creates before it surfaces mid-case. Communications between a child and their attorney are privileged; communications between a child and a GAL are not — the GAL is statutorily required to report what the child says. A dually appointed attorney-GAL has to somehow honor both rules with the same conversations, and the State Bar has weighed in that a dually appointed attorney must withdraw as GAL the moment an actual conflict between those two roles appears.12 There is a second, easier-to-miss cost: a party normally has the right to cross-examine the GAL about the factual basis for a report, but that right disappears when the GAL and the child's attorney are the same person. If you represent a parent or the agency, know going in whether you have that cross-examination available to you, because it depends entirely on whether this court has made a dual appointment.
A GAL is an advocate, not a fact witness, and the difference matters on the stand. The Code lets a party compel a GAL who fails to appear to attend and testify as to the proper disposition13 — that provision exists to secure the recommendation, not to open the GAL up as a source of new facts. Separately, a GAL who is not also serving as the child's attorney can be called for cross-examination on the report itself, even without being listed as a witness in advance.14 Though arguments can be made either way, Georgia State Child Advocate Jerry Bruce has argued that the better reading of that provision, consistent with how Georgia treats advocate-witnesses generally, is that cross-examination on the report is the full extent of a GAL's sworn testimony — not an opening to question the GAL as though they personally witnessed the events in the case. A GAL who ends up testifying to facts within their own personal knowledge has stepped outside the advocate's role the statute assigns them. That risk is usually created by assignment rather than by choice. A GAL — a CASA volunteer especially — who is asked to observe family time, and who ends up as the only person who watched it, has been placed in the position of sole percipient witness to a contested fact. Whatever recommendation follows will rest in part on the GAL's own observation, which is exactly what impartiality is supposed to exclude. A GAL is not a service provider and should not be the only observer of family time, or of anything else likely to be disputed. 15
Anyone taking on a GAL appointment — attorney or CASA volunteer — should get a copy of the guardian ad litem manual prepared by the Supreme Court of Georgia Committee on Justice for Children and Georgia CASA. It is free, available online, and goes considerably deeper into best-interest advocacy than this handbook.16
5.4 Notice to Caregivers and Foster Parents
DFCS shall give written notice of every review or hearing, including the right to be heard, to the caregiver, foster parent, pre-adoptive parent, or relative providing care. They have a right to be heard, but they are not parties unless the court makes them parties.17
At placement, DFCS shall give the caregiver, in writing, a description of financial assistance for which the caregiver may be eligible, including childcare, and a description of the reasonable and prudent parenting standard. If that information is not in hand at placement, DFCS shall request it within fifteen days of the child entering foster care and then give it to the caregiver. At a TPR hearing, the court shall make written findings on whether the caregiver was noticed and whether the caregiver asked to be heard.18
The Foster Placements Bill of Rights supports notice, information, and the reasonable and prudent parent standard.19 It does not give a foster parent a right to adopt. The remedy for a violation is an administrative grievance with the agency, not a substantive right enforceable in the dependency case itself20.
Practice Tip
Foster parents and relative caregivers often have the most current information about the child’s daily functioning. Engage them professionally rather than adversarially. Many foster parents offer great support and encouragement to parents who are working hard towards reunification. Sometimes, even after custody is returned, foster parents remain friends of the family and support parents even after the case has closed and DFCS is no longer involved. Avoiding unnecessary hostility is often in the best interests of the client of parent attorneys, though there may be times when the duties of representation might antagonize foster parents even when counsel seeks not to.
5.5 Legal Father vs. Biological Father
Georgia law draws a sharp line between a “biological father” and a “legal father,” and the difference is not academic — only a legal father counts as a “parent” and therefore a party as a matter of right. The dependency code defines both terms, mirroring the definitions used throughout Georgia’s domestic relations law.21
A man becomes a legal father through exactly one of four routes, and no others:
Adoption. A man who has legally adopted the child is a legal father, regardless of any biological connection.22
Marriage at birth. A man married to the mother when the child was born, or within the usual period of gestation afterward, is a legal father unless paternity was disproved by a final court order.23 This presumption of legitimacy is one of the strongest in Georgia law, rebuttable only by clear and convincing evidence — and once the presumption is actually rebutted, the presumed father can lose standing to object to someone else’s legitimation petition entirely.24
Marriage after birth, with recognition. A man who married the mother after the child was born and recognized the child as his own is also a legal father, again unless paternity was later disproved by final court order. That marriage and recognition together render the child legitimate, and the child immediately takes the father’s surname.25
Legitimation by court order. A biological father may petition the superior court of the county where the mother or other custodian resides — or his own county or the child’s county if she cannot be found — to legitimate the child.26 A petition may also be filed in the juvenile court if the child is subject of a dependency case. The court applies a best-interests standard, and a biological father does not have an unqualified right to legitimate simply by asking — the court still has to weigh the benefit to the child.27
Note that Georgia permitted administrative legitimation of children born out of wedlock through a statutory process that existed for a defined window of time, beginning in 2005 and ending with the repeal of the primary governing statute in 2016. Georgia's administrative legitimation process has its roots in a 2005 legislative enactment. OCGA § 19-7-22(g)(2) was enacted in 2005 to provide for legitimation by a voluntary acknowledgment of paternity in certain circumstances. This provision allowed for non-judicial or administrative legitimation as an alternative to the traditional court-based process under OCGA § 19-7-22.
The administrative legitimation process was significantly expanded and formalized when the Georgia General Assembly enacted OCGA § 19-7-21.1, which became effective on July 1, 2008. This new code section provided for rights and remedies in the administrative legitimation process similar to those that applied to acknowledgments of paternity, and also added new limitations on administrative legitimation. For example, under OCGA § 19-7-21.1, the acknowledgment of legitimation had to be made before the child's first birthday, and the legitimation would not be recognized if certain conditions were present. The statute also expressly provided that voluntary acknowledgment of legitimation shall not authorize the father to receive custody or visitation until there is a judicial determination of custody or visitation
Georgia courts repeatedly noted significant concerns about the administrative legitimation process during the period it was in effect. The process circumvented the safeguards inherent in OCGA § 19-7-22, which requires a petition in Superior Court and a finding that legitimation is in the best interest of the child OCGA § 19-7-21.1 was repealed in its entirety in 2016. However, the repeal was not retroactive and did not affect a voluntary acknowledgment of legitimation that was valid under the former provisions of OCGA § 19-7-21.1, if it was executed on or before June 30, 2016. Accordingly, the operative window for executing a valid administrative legitimation under OCGA § 19-7-21.1 ran from July 1, 2008 through June 30, 2016. For any child born in Georgia during this time, it’s important to look into the possibility of an administrative legitimation and the possibility of a legal father.
Administrative legitimation must be distinguished, however, from a “paternity acknowledgement.” A bare voluntary acknowledgment of paternity — mother and father signing before a notary, filed with the State Office of Vital Records — establishes the biological relationship but does not, by itself, make a man a legal father. During the time that administrative legitimation was available in Georgia, paternity acknowledgement was also an option, which often created confusion. Most lay person are unaware of the distinction, but the legal difference is significant. If a mother states that a man “signed a document making him the father at the hospital,” the actual signed document needs to be located to determine what legal effect was created.28
Only the mother of a child born out of wedlock is entitled to custody unless and until the father legitimates.29 Only legal father’s by virtue of marriage have an automatic right of custody. A man who legitimates administratively or through court order must also obtain custodial rights in superior court in the same or a subsequent action. The practical stake for a dependency case? A biological father who has not established legal rights via one of the four routes above is not automatically a party to a dependency case, is not automatically entitled to notice as a parent, and is not automatically entitled to appointed counsel as a parent — though the putative father registry and due-process protections discussed elsewhere in this handbook still apply to him.
One term often used in dependency cases but is not defined anywhere in the dependency code is “putative father.” The Code defines a “putative father registry,”30 but never independently defines the term “putative father.” In practice, treat a putative father as anyone who is not yet a legal father but who has been named as, or is believed to be, the biological father — a status that is more a working label for counsel and the court than a term the statute actually assigns rights to. Until he clears one of the four routes above, his process is what this handbook describes for a biological father, not a legal father.
That is not the end of the story, though. A biological father who has not legitimated can still become a party before he becomes a legal father, through a separate route: the court may summon “any other persons who appear to the court to be proper or necessary parties to the proceeding.”31 Other parties can advocate for exactly that. DFCS may see him as a suitable placement if the mother has dependency concerns of her own. The mother herself may be in a stable relationship with him despite never marrying. If the child’s attorney is aware of a biological father with a genuine, positive bond with the child, advocating for party status before legitimation is often the right call rather than waiting on a separate proceeding to catch up.
The same cuts the other way. A biological father with little or no involvement in the family and no real interest in a relationship with the child may not be a “proper or necessary” party at all — his inclusion can just as easily complicate scheduling or create service delays that serve no one. Any party, including the GAL, can argue against giving him party status on exactly that basis.
5.6 Access to Hearings and Closing the Courtroom — O.C.G.A. § 15-11-700
O.C.G.A. § 15-11-700 answers two questions that often arise: who may sit in the room while the case is heard, and who may look at the file once the hearing is over?
5.6.1 The Default Rules
Many people wrongly assume that juvenile court proceedings are all closed to the public. However, However, in reality, most dependency proceedings are open to the public. Whether a hearing starts open or closed depends on what hearing is being held and, in some circumstances, the nature of the evidence being presented.
The general rule is that the “general public shall be admitted to … [a]ny hearing in a dependency proceeding….”32 O.C.G.A. § 15-11-700(a) defines a “dependency proceeding” as “a court proceeding stemming from a petition alleging that a child is a dependent child.” For this reason, a preliminary protective hearing held on a complaint is not an open hearing: no petition has been filed yet, so the case is not yet a dependency proceeding, and the open-hearing rule is not in effect.
Since a preliminary protective hearing is closed by statute, there is no need for anyone to make a motion to close it. The PPH statute sets out who may be there. 33 The parent, the parent’s lawyer, the child unless being present would harm the child, the child’s lawyer and guardian ad litem, the caseworker, and the SAAG all have the right to participate. Anyone else — relatives, other Department staff, a parent’s advocate, someone with knowledge of the child — comes in only if the court finds it is in the child’s best interests. Oftentimes, parents may want relatives or friendly supporters to remain in the courtroom, and counsel may request that the court allow them to remain.
Once a dependency petition is filed, the posture reverses. The case becomes a dependency proceeding, 34 and the general public is admitted to any hearing in it unless the court closes some or all of that hearing. 35 Adjudication, disposition, review, permanency, nonreunification, and termination in a dependency case all presumptively open to the public. That is a deliberate choice rather than an oversight: hearings held in public tend to be conducted more carefully, and the public has a real interest in how these cases are handled. Open courtrooms build confidence in our legal system, while closed courtrooms are often viewed with suspicion.
5.6.2 How to Close a Dependency Hearing
Some or all of a dependency hearing can be closed, but only on findings and only on one of two grounds. The court has to state its reason on the record and enter a signed order saying which ground applies and why. 36
The first ground is narrow: the proceeding involves an allegation of an act that would be a sexual offense under Chapter 6 of Title 16 if an adult had committed it. 37
The second is the one that comes up in practice — closure is in the child’s best interests — and it is not a conclusion the court can simply announce. Four factors must be considered and should appear in the order: the age of the child; the nature of the allegations; the effect an open proceeding would have on the court’s ability to reunite and rehabilitate the family; and whether closing the hearing is necessary to protect the privacy of the child, a foster parent or other caretaker, or a victim of domestic violence. 38
Closure does not have to be all or nothing, and usually should not be. Clearing the gallery for the child’s testimony, or while a forensic interviewer is on the stand, is frequently the whole remedy the situation calls for. Ask for the narrowest closure that solves the actual problem. A blanket order emptying the room for the whole hearing is harder to justify and easier to reverse.
The court can act on its own motion, on a party’s motion, or on a motion by the child, the child’s attorney, or the guardian ad litem. 39 Put the request in writing when the timing allows it. And whether the request is written or made from the bench, do not leave without a signed order that tracks the statute. A judge simply waving the gallery out is not a finding and would be problematic on appeal.
Termination hearings carry a separate wrinkle. Quite apart from whether the courtroom is closed to the public, the court may temporarily exclude the child from the hearing itself. 40 The reason is obvious once you have sat through one: a termination hearing can involve detailed testimony about a parent’s unfitness, graphic abuse allegations, and a caseworker’s unvarnished assessment of the family — none of which a child gains anything from hearing, and some of which does real damage. It is not automatic. The guardian ad litem or the child’s attorney has to ask, and should ask before the witness is called rather than partway through the answer.
5.6.3 Who Stays If the Hearing Is Closed
Closing a hearing to the public does not empty the room. The court may still admit the parties and their lawyers, witnesses, someone accompanying a party for assistance, the victim, and anyone else the court finds has a proper interest in the proceeding or in the work of the court. 41 If the conduct alleged could support a criminal or delinquency prosecution, counsel for the prosecution and the defense are admitted as of right.
The statute also expressly contemplates someone accompanying a party for assistance, and gives the court discretion to admit anyone it finds has a proper interest in the proceeding. In practice the question usually turns on whether any party objects, and where no one does, most courts will let a parent’s supporters remain.
That is worth thinking about before the hearing rather than during it. A parent facing the possible loss of a child is frequently the person in the room least able to take in what is happening, and the people who might steady them — a grandmother, an aunt, a pastor, a sponsor, the friend who drove them — are often sitting in the hallway because everyone assumed a closed hearing meant no one else comes in. Counsel for a parent or for a child should know in advance whether the client wants someone there, and should ask on the record instead of waiting to see whether anybody notices. Sometimes the answer is no: the supporter is a witness, or is the safety concern, or is someone the child is afraid of, and counsel needs to have thought that through first. But where a familiar face would help a client get through what may be the worst hour of their life, asking for it is part of representing them.
There is also a narrower tool for the narrower problem. The court may refuse to admit one particular person, without closing the hearing at all, on a finding stated on the record and in a signed order that the person’s presence would harm the child’s best interests, interfere with fact-finding, or otherwise be contrary to the interest of justice. 42 Reach for that when the problem is a single spectator — an angry relative or someone the child is frightened of — rather than the fact that the courtroom is open.
5.6.4 Media and Identifying Information
Anyone wanting to record, transmit, videotape, or photograph a hearing has to ask at least two days ahead. 43 The judge can also order the media not to publish information identifying the child, family members, or a foster parent or other caretaker, even when the hearing itself stays open. 44 An open hearing is not the same thing as a nameless one. If the hearing is going to remain open, ask for that restriction on the front end if the case if appropriate.
Nuts & Bolts
A preliminary protective hearing is closed, and the statute itself says who may attend. After the petition is filed, hearings are open unless the court closes some or all of one, on the record and by signed order, either because the case involves a sexual-offense allegation or because closure is in the child’s best interests under the four statutory factors. Partial closure is allowed and may be granted more readily than a more restrictive closure.
Caution
Do not assume the courtroom is closed just because it is juvenile court. Once the petition is filed, it is not. If the hearing needs to be closed, say so before testimony starts and put the statutory factors on the record. If the court clears the gallery without entering an order, object and make sure the objection is ruled on. And closure does not carry forward — the next hearing in the same case starts open again unless a new order says otherwise.
Practice Tip
For parent’s counsel, an open courtroom cuts both ways. It allows public scrutiny of the Department and the court, but it can also put a client’s mental-health history, a child’s outcry, or a foster home address in front of whoever happens to be sitting there. Decide which way it cuts in this case before the calendar call, and move to close only the portion that needs closing. For the guardian ad litem, the child’s privacy is the statutory hook, and the order must recite the factors — age, the nature of the allegations, the effect on reunification, and privacy of the child, a caretaker, or a domestic-violence victim. Whichever side you are on, do not rely on local habit. Get an order that tracks the statute.
5.6.5 Court files and records
An open courtroom and an open file are different things, but many people confuse the two. Hearings in a dependency proceeding start open; the file does not. Except where the Code provides otherwise, the court’s files and records in a dependency proceeding may be inspected only by order of the court. 45
6. Protective Custody and Removal from the Home
Removal is the most consequential thing that happens early in a case, and it is also the moment most likely to happen in a rush — a phone call at midnight, a form filled out under pressure, a placement decided before anyone has really looked at the options. The rules in this chapter exist to slow that moment down just enough to get it right.
6.1 How a Removal Actually Starts
A removal in a dependency case begins with a complaint and a request by a moving party. In the ordinary case that moving party is the local DFCS office, appearing through the county SAAG. Rule 6 of the Uniform Rules for the Juvenile Courts requires the prescribed forms for the dependency complaint and the removal order.
If DFCS receives information that a child is at serious, immediate risk of harm or injury, DFCS may contact the court at any hour, twenty-four hours a day, and request removal. The agency explains the situation and submits a complaint alleging the emergency grounds. If the court agrees that the facts support an emergency removal, the court may authorize taking the child into protective custody. That order is an extraordinary step, not the default response to a substantiated investigation. Authority to take a child into protective custody is limited.1 Once the child is removed and not returned home, the seventy-two-hour clock starts.
When the order is relayed orally — including by phone, in the middle of the night — the law does not treat that as good enough on its own. An affidavit or sworn complaint containing what was said must be filed with the clerk by the next business day, and a written order must follow if one was not already issued.2 An oral order that never gets reduced to writing is a gap in the record, not a formality, so counsel should ensure that one was filed by the court.
Though unusual in practice, a child can also be removed without a prior court order at all, by a law enforcement officer or authorized court officer, if the child is in imminent danger of abuse or neglect — or is a victim of labor or sex trafficking.3 The same dependency procedures must be followed after removal even in those cases. The same seventy-two-hour clock still applies from the moment the child is taken into care.
6.2 Required Findings for Any Removal Order
Any order that authorizes removal must be based on a finding that continuation in the home would be contrary to the child’s welfare.4 At every hearing, the court must consider the facts relating to the child and his family and determine whether continued foster care is necessary for the safety and welfare of the child. At the PPH the court must also make written findings on whether DFCS made reasonable efforts to prevent or eliminate the need for removal, including a brief description of what efforts were actually made. If no services were provided, the court must explain why reasonable services would not have eliminated the need for protective custody.5
Note: a finding that DFCS did not make reasonable efforts has consequences for the Department, but it does not, by itself, invalidate the removal or require dismissal of the complaint or return to the parents. Ask for the finding anyway when the facts support it. It becomes part of the record DFCS has to answer for at every hearing that follows, and it is often the only real leverage counsel has to push the agency toward better practice, in this case and the next one.
Hearing-Practice Note
Insist on a description of efforts were made to prevent removal — safety plans, in-home services, relative placement, domestic-violence interventions — not simply a conclusion that reasonable efforts were made.
6.3 Placement Preferences and Who Controls Placement
An alleged dependent child may be placed only in a licensed or approved foster home or court-approved home; the home of the noncustodial parent; the home of a relative; the home of fictive kin; a facility operated by a licensed child welfare agency; or a shelter care facility approved by the court. No alleged or adjudicated dependent child shall be detained in a jail or adult lockup unless also alleged or adjudicated delinquent and detention criteria are met.6 A child should never been detained in the RYDC simply for the convenience of DFCS or a parent.
Custody and placement are two different decisions, and the difference controls what counsel can usefully ask for. If the court grants temporary custody to DFCS, the court has no authority to then direct where inside that custody the child lives. It cannot place custody with the Department and separately order the Department to put the child with a named grandmother or named fictive kin. Placement within the Department’s custody is made under its own guidelines and protocols, and an order telling DFCS to pull a child from a particular home is exhortatory rather than binding. 7
This is not to say that the juvenile court has no role in ensuring that the child is in a suitable placement. Before the hearing on the petition, the actual physical placement of a child requires the approval of the juvenile court judge or the judge’s designee. 8 And once temporary custody is with DFCS, the court may on its own motion review the placement plan at any time, order the Department to comply with it, order the Department to devise a new one, or make any other order relative to placement or custody outside DFCS that the court finds to be in the child’s best interests. 9 However, the court can never choose a home inside the Department’s custody and demand that the Agency comply. The court’s role is oversight, not direction, and the judge can review the plan and if deemed in the best interests of the child, remove custody from DFCS and place with a parent, relative or third party pursuant to O.C.G.A. § 15-11-212.
Often the cleaner route is not to place custody with the Department at all. At the preliminary protective hearing, and again at disposition, the court may leave the child with a parent under conditions, or transfer temporary legal custody to a qualified individual, a licensed child-placing agency, or a public agency — and the statute directs that priority go to an adult who is a relative or fictive kin. 10 Oftentimes, DFCS will have an idea who the Agency will place with if granted custody, but custody decisions by DFCS are made by supervisory and management staff of the Agency in accordance with Agency guidelines, and not by investigators or case workers. Early in the case, a relative or fictive kin may look promising to the Department, but a background check may reveal a disqualifying criminal conviction or DFCS history. The court is not bound by DFCS’s approval or denial of such a person, and if the judge finds that placement is in the best interests of the child, he could make a direct placement while still ordering DFCS to provide reunification services. If a suitable relative is available, counsel can ask the court to place the child there directly rather than routing custody through DFCS and hoping the Department picks the same home.
Relative placement is worth pressing beyond the statutory preference. Children placed with kin tend to move fewer times, keep more of their family, cultural, and community connections, and lose less to the removal itself, and supervised family time in a relative’s home is usually less logistically fraught than family time arranged around an agency’s schedule. Relatives are sometimes ruled out more easily than might be expected. Kinship caregivers are more often older, poorer, single, or unemployed than licensed foster parents, but these factors do not always affect their ability to provide a safe home. Nor is an old criminal charge or a distant history with the child welfare system automatically disqualifying for a judicial placement, even if it would be for a DFCS placement. Counsel should inquire what was actually looked into about the relative’s present circumstances, whether any waiver process was considered, and what help was offered — school enrollment, Medicaid, relative caregiver funds, benefits the relative may not know exist. A relative who gave up because nobody walked them through the paperwork has not really been ruled out.
Nuts & Bolts
A diligent search is DFCS’s effort to identify and locate a parent whose identity or location is unknown, or a relative or other person who has shown an ongoing commitment to the child.11 The search and notice must be completed in writing and filed within thirty days of removal and at each periodic review.12 Interviews with people who are likely to know where the missing person is are a minimum requirement for completion of the report, not a ceiling.13 When the court decides whether DFCS made reasonable efforts to finalize an alternative permanent home, it shall consider whether that search was done and whether the people found were contacted or given notice of the proceeding.14 At the 75-Day Hearing, counsel should who was called, who was noticed, and who was ruled out. Counsel for parents and children should also discuss possible relative and fictive kin candidates and, if necessary, provide information about the same to DFCS. Leads should include information for the Agency to follow up on in a reasonable way. A voicemail that says “there is an aunt somewhere” with no name or number is not a useful lead to DFCS. Under the former Code, a TPR placement with the Department with no relative search at all was vacated and remanded.15 Under the current code, some evidence of a search generally may be sufficient, but counsel should still ensure that the relative search has been thorough and complete.16
6.4 Temporary Alternatives to Foster Care
In appropriate cases the court may order a temporary alternative to foster care, such as a safety plan with a relative or fictive kin under a voluntary arrangement.17 In practice, this provision is rarely used due to the uncertainty that accompanies most emergency removals. However, DFCS often arranges for a voluntary safety plan placement with relatives if the parents are in agreement and the Agency, provisionally, believes that home to be suitable. Note that safety plans do not give formal custody to anyone, and DFCS agreement with a parent for a child to remain with a relative temporarily does not necessarily mean that the Agency will ultimately approve that same relative as a placement if the Department gets custody. This is because safety plans do not involve the level of investigation required for formal placement, and sometimes disqualifying factors are not readily apparent.
Practice Tip
At the first hearing, discuss placement options with parents or children. If possible, have a list of relatives and fictive kin with phone numbers rather than waiting for DFCS to invent the family tree.
6.5 Placement Changes — O.C.G.A. § 15-11-215
While the child is in DFCS custody, DFCS shall give at least five days’ written notice of a placement change to the court; a child fourteen or older; the parent, guardian, or legal custodian; the person or agency with physical custody; the child’s attorney; the GAL, if any; and any other attorney of record. Email is enough if the recipient has agreed to email. If delay would endanger the child’s health or welfare, notify the court and all attorneys of record within twenty-four hours after the move.18
A placement change is not a weekend at grandma’s, a hospital stay, respite when the child is coming back, camp, travel with the foster family, a court-approved trial home visit, or a runaway episode. Do not treat any of those as a placement change.
The child fourteen or older, the parent, the physical custodian, the child’s attorney, the GAL, and any attorney of record may request a hearing on the case plan or permanency plan so the court can consider the new location. That hearing shall be held within five days of notice of the change and before the move, unless delay would endanger the child. The court shall consider DFCS’s recommendation, make findings of fact on why it accepts or rejects the plan, and consider objections and evidence from the child and the foster parent, relative, or caregiver.19
Objecting does not require drafting a motion from scratch. A standard objection form exists and is available in every county, and a person entitled to notice — including one without a lawyer — can file it electronically with the clerk. Once filed, it goes out to every party and everyone else entitled to notice. 20 That matters most for foster parents and relative caregivers, who are the people most likely to see a proposed move coming and least likely to have counsel.
What the court can do at that hearing is narrower than people expect in one direction and considerably wider in another. It cannot order DFCS to keep a child in a particular home; placement inside the Department’s custody stays with the Department. What it can do is decline to accept the recommendation. If the court rejects the plan it has to show that it considered the recommendations and explain why it did not follow them, and it may then order DFCS to devise a new case plan and permanency plan recommendation, including a new recommendation about where the child will live — which usually means a further hearing on the new plan. Or, and this is the part that gets overlooked, the court may make any other order relative to placement or custody outside the Department that it finds to be in the child’s best interests. 21 That is the route to a direct placement. If the child is in a foster home, the parties want the child to stay, and DFCS intends to move the child, the court cannot order the Department to leave the child where the child is — but it can take custody out of the Department and place the child directly with those foster parents. Custody placed outside DFCS relieves the Department of further responsibility for the child, except for services the court orders so that reunification work continues. 22
One presumption is worth knowing before the hearing. If the court finds the child has lived in a stable home environment with the current caregivers for the past twelve months, and that removing the child from them would be detrimental to the child’s emotional well-being, the court may presume that continuing that placement is in the child’s best interests — and shall enter a finding that the change of placement is a failure by DFCS to make reasonable efforts to finalize the permanency plan then in effect. The presumption does not apply to prevent returning a child to a parent, guardian, or legal custodian. 23
Caution
A placement change hearing is not a grant of placement authority to the court. Once DFCS has temporary legal custody, the Department decides where the child lives inside that custody, and an order directing DFCS to keep this child in this home is not enforceable. The court should issue a ruling only on what the statute actually provides: rejection of the recommendation with findings, a new plan, or placement or custody outside the Department. Counsel should tailor their arguments with that reality in mind, even if their clients want a result that the court cannot lawfully order.
6.6 Interstate Compact on the Placement of Children
Georgia has adopted the Interstate Compact on the Placement of Children.24 In a dependency case, the compact is not optional paperwork. It is the statute that controls whether a child may be sent to another state for foster care, relative care, fictive-kin care, or return to a parent who now lives somewhere else.
The compact applies when a sending agency sends, brings, or causes a child to be brought into another compact state for placement in foster care or as a preliminary to a possible adoption. Sending agencies include DFCS. They also include the court. A direct placement with an out-of-state relative is still an ICPC placement if the child has been adjudicated dependent. Who filed the petition does not change that.
The compact does not apply to a visit of thirty days or less that has a definite end date, is a brief social or cultural stay or falls inside a school vacation and is not paired with a request for a home study or supervision. A Christmas week at an out-of-state grandmother’s house can be a visit. An open-ended “she’ll stay until the home study comes back” is a placement.
Border-county agreements sometimes let a nearby out-of-state home start before the full study is done. Ask whether one exists. Do not assume it does.
Regulation 7 is the expedited track. It is available only for a parent, stepparent, grandparent, adult aunt or uncle, adult sibling, or legal guardian, and only if at least one listed hardship is present: unexpected dependency from a sudden incarceration or death; a child four or younger, including older siblings sought for the same home; a substantial relationship between any sibling and the proposed placement; or an emergency placement now. Cousins, great-grandparents, and great-aunts are not on that list. The signed expedited order has to leave the courtroom within two business days. The receiving state has thirty calendar days.
A parent who lives in another state is not an exception just because the parent is a parent. In a Georgia dependency case, the court retains jurisdiction until the dependency ends. The Court of Appeals has treated compact compliance as necessary before returning a dependent child to a parent who has left the state. Regulation 3’s parent exception requires the court to take no evidence of unfitness and to dismiss jurisdiction immediately. That is not how a Georgia dependency case works.
If the foster family itself is moving out of state with the child, that is a Regulation 1 relocation of an existing placement, not a brand-new relative study. Temporary moves of ninety days or less can start without prior approval. Longer moves can start provisionally. The receiving state is supposed to see the home within thirty days.
An approval is not an order to move the child. When the receiving state approves a placement resource, the sending court and agency keep the final say over whether to use it, and the approval stays good for six months from the date the receiving state signed it. If no placement has been made by then, the home has to be reevaluated before the child can go. 25 That is why asking early costs so little. It puts an option on the table without committing anyone to take it.
Whether to take it is a different question, and it deserves to be thought about separately. An out-of-state placement can cut hard against reunification. Distance makes family time harder to schedule, more expensive to arrange, and easier to let slide — and family time is usually what carries a reunification case. The child changes schools, changes doctors, and leaves whatever else is familiar. None of that is a reason to skip the request. It is a reason to keep the two decisions apart: whether to get the approval, and whether to use it once it is in hand.
Until the compact case closes, Georgia keeps legal and financial responsibility. Closing usually requires the receiving state’s written concurrence when the plan is adoption, guardianship, or return of legal custody to a parent. Returning the child to Georgia, withdrawal of the request, or the child’s majority do not.
Nuts & Bolts
Ask for out-of-state names at the first hearing. If an ICPC request
has been ordered, At every review, ask whether the state office has the
confirmation email showing the packet was received — not whether it is
“pending.”
A visit of thirty days or less is not a placement.
A court order sending a child to live in another state without approval
is a violation in both states.
Caution
A child may not be placed first, then the home studied second. The receiving state may demand the child be returned to Georgia and is not required to finish the study. ICPC runs through the Compact Office in each state, so approval must work through that office rather than contacting the other state directly.
Practice Tip
The most useful thing counsel can do on an interstate placement is
start it early. If there is any realistic chance this case ends with the
child living out of state — a grandmother in Alabama, an aunt in
Florida, a father who moved to Tennessee — raise it at the first hearing
and ask the court to order the ICPC request then, while nothing is
urgent. The compact is slow by design. A home study runs on the
receiving state’s schedule, not Georgia’s, and nothing counsel does
later makes it faster. A request made in the first month is often the
difference between a relative placement and a child who stays in foster
care because the study did not come back in time.
Timing matters even more when the expedited track is in play. The
Regulation 7 grounds are themselves time-limited — a sudden
incarceration or death, a very young child, an emergency placement
needed now — and the longer everyone waits, the less the situation reads
as the emergency the regulation was written for. The signed order also
has to be out the door within two business days. A request that could
have been expedited in week one is frequently just an ordinary request
by week six, so if the facts fit Regulation 7, say so on the record and
ask for the expedited order while they still fit. After that, treat
“ICPC pending” as a fact that has to be proved: date submitted, date the
state office emailed receipt, date the receiving county got the file. If
the only holdup is a packet that never left the county, that is a
reasonable-efforts problem as much as a compact problem.
7. The Preliminary Protective Hearing (72-Hour Hearing)
The 72-hour hearing moves fast by design, which is exactly why it is easy to treat as a formality on the way to adjudication. It is not. Every finding made here follows the case forward, and a hearing rushed through without them is a hearing that will have to be redone later, one way or another.
7.1 Timing
If an alleged dependent child is removed and not returned home, the preliminary protective hearing shall be held promptly and not later than seventy-two hours after the child is placed in foster care. If that period expires on a weekend or legal holiday, the hearing is held on the next day that is not a weekend or legal holiday.1
7.2 The Two Questions
The PPH answers two questions, not one. First: is there probable cause to believe the child is a dependent child?2 That can rest on abuse, neglect, abandonment, illegal placement, or the absence of a parent, guardian, or legal custodian. Second: is protective custody necessary to prevent abuse or neglect pending the hearing on the petition?3 Probable cause that a child is dependent does not automatically mean the child must remain in foster care.
7.3 Possible Outcomes
Neither element proved — dismiss and return the child.
Probable cause exists but protective custody is not necessary — return the child pending adjudication or order a temporary alternative to foster care.
Both elements proved — temporary custody to DFCS pending adjudication, with relative or fictive-kin priority, or direct placement with a parent, relative, or third party as the Code allows.
7.4 Required Written Findings
If the court finds probable cause, it may keep the child out of the home only if it also finds that continuation in the home would be contrary to the child’s welfare, or that removal is in the child’s best interests.4 Any order that continues placement outside the parent, guardian, or legal custodian shall be based on a finding that return would be contrary to the child’s welfare.5 The court shall make written findings on whether DFCS made reasonable efforts to prevent or eliminate the need for removal and to make it possible for the child to return home safely, with a brief description of the efforts.6 Every removal order shall say why removal or continued foster care is in the child’s best interests. At the PPH, DFCS has the burden of showing reasonable efforts to prevent placement.7
A missing reasonable-efforts finding is a statutory defect, though not by itself a ground for reversing a custody order where the court separately found that placement with DFCS was necessary to protect the child. 8 That is a reason to insist on the finding, not a reason to shrug at its absence. It is the baseline every later reasonable-efforts determination gets measured against, and it is far easier to make on the day, while the people who know what was tried are still in the room, than to reconstruct months later from a cold record.
An appeal from a preliminary protective order is not necessarily moot if the case is dismissed. The dependency finding (even under a probable cause standard) carries collateral consequences — among them its potential use against the parent in a later custody proceeding. 9 In the Interest of D. H. is the illustration. A child who lived in Georgia was taken into protective custody while visiting Alabama; an Alabama court adjudicated him dependent on the parties’ stipulation and transferred the case here; and the mother then moved in the Georgia court to vacate the Alabama dependency finding for want of subject-matter jurisdiction. By the time the appeal was heard the child was back with his mother and the case was closed, and the Court of Appeals reached the merits anyway. It held that the mother’s stipulation could not confer subject-matter jurisdiction that did not otherwise exist; that full faith and credit did not require Georgia to honor the Alabama order, which was interlocutory and revisable; and that while Alabama had temporary emergency jurisdiction to place the child in protective custody, that jurisdiction did not reach adjudicating him dependent once he was safe and the emergency had passed. The denial of the motion to vacate was reversed. 10 If a preliminary protective order contains findings adverse to a client and the case is dismissed at adjudication, that party may move to vacate it rather than assuming the dismissal took care of it.
Caution
The preliminary protective hearing sets the tone for the rest of the
case. The findings entered here — contrary to welfare, reasonable
efforts, the basis for removal — follow the parent into every hearing
that comes after. Reasonable efforts in particular should be
scrutinized, and not checked off as a formality. If nobody has put on
evidence of what the Department actually did to prevent this removal,
ask.
This is not to say that a stipulation to a finding of probable cause is
never appropriate. If the facts are known and would easily provable,
there is not necessarily a need to demand testimony in lieu of a
stipulation. Stipulations can be judicially efficient and tactically
advantageous to every party to the case for varying reasons. However, no
attorney should ever feel coerced into a stipulation for mere
convenience, a desire to “get along” with opposing counsel, or fear of
annoying the judge.
7.5 Evidence, Advisement, and Counsel
The court may consider any evidence, including hearsay, that it finds relevant, reliable, and necessary.11 That relaxation is limited to this hearing. Do not assume the same hearsay will come in at adjudication. At the start of the hearing the court must inform the parties of the contents of the complaint, the nature of the proceedings, and due-process rights. Challenges to what came in at the PPH — including a court-called witness or sibling-dependency evidence — are moot after a full adjudication.12 If you have a tactical reason to lodge a good faith objection, object at the PPH anyway. A PPH order is not automatically vacated if the case is dismissed at the next hearing.13
The PPH is not a public hearing. The Code lists who has a right to participate and who the court may allow in.14 The general public is excluded, but others not included in the code provision may remain in the courtroom at the request of a party with the approval of the judge. See § 5.6.
Parents are entitled to be represented. The child is entitled to a guardian ad litem and to an attorney who will argue for his stated interests. Often the same lawyer serves in a dual role as GAL and child’s attorney. That dual role is workable only until the child’s stated wishes diverge from the child’s best interests. The court should appoint counsel at this first hearing.
A parent who was not notified of the PPH, and who did not appear or waive appearance, may seek a rehearing under the Code. If that parent files an affidavit showing the missed notice, the court has to rehear the matter without unnecessary delay and order the child released — unless, following the hearing, the court finds that foster care is still warranted.15
Stipulations deserve more thought than they usually get. Nothing requires a parent to stipulate to anything, and the burden never moves off the Department. But where a fact is genuinely not in dispute, and counsel has read the file, talked to the other lawyers and the likely witnesses, and concluded the Department can prove it, a stipulation is sometimes the better tactical choice. It shortens a hearing the client gains nothing from sitting through. More importantly, contested hearing usually means the parent testifies — the Department will frequently call the parent as its own witness — and testimony provides a way to gather additional information about the case. A hearing convened to prove one allegation can end up producing evidence of three, and the new information may result in additional allegations being included in the petition. Counsel are newly appointed may be doing the client a genuine service by conceding the provable fact and rather than opening the door to the unknown. For the same reason, petitioners, SAAGs and GALs may wish to present or elicit testimony even if parents wish to waive the hearing if they believe that the information would be necessary for the court to adequately resolve the hearing. As always, the ultimate decision to stipulate to a fact or waive any right belongs to the client, after advice, and it should be an actual calculation rather than a reflex in either direction. The same analysis runs at adjudication, where the findings are harder to undo. See § 11.2 and § 26.2.
When a stipulation is appopriate, make it clean. State it on the record in specific terms, or reduce it to writing and have every party sign. A vague stipulation is worse than none: months later nobody agrees on what was conceded, and whoever benefits from the broadest reading will argue for it. Say which facts are admitted and, where it matters, which are not. Confirm on the record that every party consents. And remember the court is not required to accept a stipulation. It usually will when the terms are clear and all parties have signed off, but the judge remains entitled to hear evidence, and a stipulation that would paper over a finding the court has to make for itself is one the court may well decline.
7.6 Petition Deadline After PPH
If the child is not released, a petition alleging dependency must be made and presented to the court within five days of the hearing.16 Calendar that deadline on the record before anyone leaves the courtroom.
7.7 ICWA and UCCJEA at the First Hearing
Two questions get asked at the first hearing that have nothing to do with the facts of the case, and both of them are easy to skip when the room is full and the docket is behind. The first is whether anyone has reason to know the child is an Indian child. Ask it out loud, ask every adult in the room, and put the answers in the order. If the answer is yes, or even maybe, a different set of rules takes over: notice to the tribe, placement preferences, a higher evidentiary standard, and the tribe’s own right to intervene or take the case. A missed inquiry is not a clerical problem that gets cleaned up later. It is the kind of defect that can undo an adoption years after everyone thought the case was closed, which is why it belongs at the front of the first hearing rather than somewhere in the middle of the third.
The second question is which state is supposed to be hearing this case at all. Every dependency case is also a UCCJEA case, and the fact that DFCS removed a child in this county does not by itself put jurisdiction here. Ask where the child has actually lived for the past six months, whether any other state has entered a custody order, and whether a parent or the child arrived from somewhere else recently. If Georgia is not the home state, that needs to surface now rather than after a year of orders.
Two points cause recurring trouble. An emergency custody order from another state is not the same as that state taking jurisdiction to adjudicate dependency, and full faith and credit does not stop a Georgia court from looking behind the order to satisfy itself that the issuing court had subject-matter jurisdiction. 17 And inconvenient forum is its own analysis under its own statute, not a shortcut for declining a case that looks like a headache. 18 Once jurisdiction is properly here, it lasts until the dependency is resolved or the child turns eighteen, 19 and the eighteenth birthday is a hard stop: jurisdiction ends that day, whatever remains unfinished. 20
Practice Tip
Go in with an outline, in this order. First, test probable cause if the facts are thin. Second, whatever the answer to that, put a concrete alternative to foster care in front of the court — a written safety plan, a named relative, a person removed from the home rather than the child — because the question is not only whether the allegations are true but whether removal is necessary. Third, if the child does stay out, settle placement, family time, and services before anyone leaves the room; each one is harder to move later. Fourth, calendar the petition deadline and the adjudication date before you walk out. And do not put the client on the stand at a probable-cause hearing without a reason — anything said there is available at adjudication and in any criminal case running alongside it.
Hearing-Practice Note
A preliminary protective hearing done well answers more than the two statutory questions. Identify every parent, including the ones who did not appear, and ask what has been done to find them. Ask about Indian heritage before anyone forgets to. Separate a present safety threat from a lower-level risk a plan could manage, and make the agency say what specifically prevents this child from going home today and what service would answer that specific threat. Get relatives’ names into the record while the people who know them are still in the room. Ask whether the parents understood what just happened, in a language they are comfortable in, and whether they had a real chance to talk to counsel before the hearing rather than during it. Nobody should leave without a family-time schedule and the next hearing date already set.
Attorney checklist — preliminary protective hearing
Obtain the complaint (JUV-2) and any available DFCS documents before the hearing if possible.
Confirm counsel for the child and for indigent parents.
Confirm jurisdiction, venue, and the identity and whereabouts of every parent and putative parent, and what search has been done for the ones who are missing.
Ask the ICWA question on the record and ask the UCCJEA questions.
Separate the two statutory questions: probable cause of dependency versus necessity of protective custody.
Interview the client about safety plans and relatives without putting unprepared testimony on the stand.
Propose a written safety plan or relative placement as an alternative to foster care.
If custody will go to DFCS, remember the court cannot direct the Department’s internal placement. If a named relative is the right home, ask the court to place with that person directly.
Address family time: frequency, duration, location, transportation, and whether it is supervised — and if it is, what safety concern the supervision answers.
Demand written contrary-to-welfare and reasonable-efforts findings with a description of efforts.
Ask what specifically prevents this child from going home today, and what service or condition would answer that.
Ask whether siblings are placed together, and if not, what was done to try.
Confirm the parents understood the hearing and had a real opportunity to consult counsel before it, and that an interpreter was provided if needed.
Confirm relatives were notified of the removal and of their option to be considered as a placement.
8. The Dependency Petition
8.1 Who May File and When
The complaint starts the emergency process. The petition is the pleading that frames adjudication. After a PPH at which the child is not released, the moving party — typically DFCS through the SAAG — must file a dependency petition within five days.1 That five-day clock is not the only clock, though. If the child was never removed, or was removed and then released at the PPH, the deadline is thirty days, not five — do not import the tighter deadline into a case where it does not apply.2 Either deadline can be extended for good cause, with notice to all parties and a written order explaining why.3
A DFCS employee, a law-enforcement officer, or any person with actual knowledge of abuse, neglect, or abandonment may file. The court or a person authorized by the court shall determine and endorse on the petition that filing is in the best interests of the public and the child.4 The petition shall be verified and may rely on information and belief. It shall set forth plainly and with particularity the facts that bring the child within the court’s jurisdiction, and the child’s name, date of birth, and residence, or state that a required item is unknown.5 “Mother is unfit” is a conclusion. The facts have to be specific enough that a parent can prepare a defense.6
8.2 Verification
A petition signed only by DFCS counsel, even with a court designee’s endorsement that filing is in the children’s best interests, is not verified. An employee representing DFCS must swear before a notary, magistrate, judge, or other officer authorized to administer oaths that the facts are, on information and belief, true and correct.7
8.3 Curing Defects by Amendment
Defects may be cured by amendment at any time while the case is pending.8 That includes after the PPH. The court does not have to dismiss for lack of verification if the case is still pending and the petition can be amended. An amendment shall be served on the parties and given to attorneys of record.9 Serving only the mother’s lawyer, and not the mother, does not comply. That failure is not harmless when the order uses the new allegation — there, incarceration — and the rest of the evidence is thin.
8.4 The Sixty-Day Adjudication Clock
If adjudication is not completed within sixty days from the date the child was taken into protective custody, the petition may be dismissed without prejudice.10 A continuance that does not meet the statutory standard does not save the petition.11 Dismissal is also required when the court misses the hearing clock and the parent was not given proper notice. The safeguards are mandatory. Dismissal is without prejudice; another petition can be filed without delay if there is still reason to believe the child is abused or neglected.12
Nuts & Bolts
Who may file. Endorsement. Verification by a DFCS employee under oath — not the SAAG’s signature. Particular facts. Serve every amendment on the parent, not only on counsel. Miss the adjudication clock and the petition goes, without prejudice.
9. Summons, Service, and Failure to Appear
Service is not a box to check before the real work starts — an order entered against a parent who was never properly served is an order that can come apart later, sometimes years later, when that parent resurfaces. Get it right the first time.
Every parent, guardian, or legal custodian named in the petition must be served. An unidentified or unserved father will return as a permanency problem. If a parent fails to appear after proper service, the court may proceed. That is not a license to skip the required findings. An empty chair does not lower the standard of proof at adjudication. An amended petition is served the same way. Service on counsel alone is not service on the parent.1
The Code sets real clocks on service, not just a general expectation of promptness. A party who can be found in the state has to be personally served at least seventy-two hours before adjudication.2 If the party cannot be found but an address is known or can be found with diligence, mailed service — registered or certified, return receipt requested — has to go out at least five days before the hearing.3 Count backward from the adjudication date before assuming there is still time to serve someone the ordinary way.
9.1 Methods of Service
A parent who can be found should be served personally, either by the sheriff, a private process server, or by acknowledgment of service signed by the parent. If a parent's whereabouts are unknown after a diligent search, service by publication is available, but publication is a last resort, not a shortcut around effort. Document who was called, which relatives were asked, which last known addresses were tried, and when. An affidavit that says only "unable to locate" invites a challenge later, either from the parent who resurfaces or from an appellate court asked to review whether notice was adequate.
9.2 When a Parent Does Not Appear
Proper service lets the hearing go forward without the parent, but it does not lower what the court must find or how it must find it. The evidence still has to support each required finding, on the record, from an admissible source, not from the fact that the chair is empty. If a parent surfaces after a hearing was held in their absence, address promptly whether service was adequate and whether relief from the resulting order is warranted before the case moves further. A parent who was never properly served has a strong argument that findings made without them cannot stand.
Hearing-Practice Note
Finding an absent parent is casework, not paperwork. A grandmother, an older sibling, or a family friend often has a working phone number or a current address long before a database search turns one up. Ask the caseworker at every hearing what has been done since the last hearing to locate the missing parent, and what is planned before the next one. A search that goes cold after the petition is filed is not diligence.
Nuts & Bolts
Confirm who has been served and how. Confirm an amended petition went to the parent, not just to counsel. If publication is used, confirm the diligent-search affidavit is in the file before the hearing, not promised for later.
9.3 When a Parent Willfully Refuses to Come
A parent who was properly served and simply will not show up is a different problem from a parent who could not be found. If a parent willfully fails to appear after being ordered to, or willfully fails to bring the child after being directed to, the court can order that parent to appear and show cause why they should not be held in contempt.4 A parent who then ignores that show-cause order can be met with a bench warrant.5 That is a meaningfully different tool from simply proceeding in the parent’s absence — use it when the pattern looks like willful avoidance rather than a parent who genuinely cannot get to court.
There is a second consequence, and it is heavier than contempt. Abandonment is defined as conduct showing an intent to forgo parental duties or relinquish parental claims, and the Code lists failure to respond to notice of child protective proceedings for at least six months as evidence of exactly that. 6 Failing to communicate meaningfully with the child, failing to maintain regular visitation, and failing to participate in a court-ordered plan designed to reunite the family all carry the same six-month marker, and the definition closes with a catch-all for any other conduct showing the same intent. A parent who has been served, knows about the case, and stays away is building that record whether or not anyone in the courtroom uses the word.
That matters because abandonment is itself an aggravated circumstance, and aggravated circumstances are among the grounds on which a court may direct that reasonable efforts to reunify are not required. See § 13.8. In other words, a parent’s continued absence can move the case toward nonreunification and a thirty-day permanency hearing far earlier than the ordinary schedule would. For a parent’s lawyer, that is the argument for getting a disengaged client into the courtroom, or at least onto the record, well before month six. For everyone else, it is a reason to date the absence precisely rather than describing the parent as generally uninvolved.
Practice Tip
Ask early for a diligent search affidavit as to any missing parent. Put the search dates, last known addresses, and putative-father registry results on the record.
10. Discovery
Juvenile court is not the discovery vacuum some caseworkers and even some lawyers assume it is. The Code gives a party a real list of things to ask for, and Georgia courts have twice reversed judges who treated discovery as something juvenile court simply does not do.
The need for discovery is generally not good cause for a continuance unless someone has failed to comply with a discovery order.1 The Code lists what a party is entitled to on written request, and it is a real list: witness names and phone numbers, formal written statements from the child or any witness, scientific and other reports meant to come into evidence, any drug screen concerning the child or a parent, the case plan, the visitation schedule, photographs and physical evidence, and police incident reports behind the petition.2 Ask for all of it promptly and in writing, by name, rather than a general request for “the file” that DFCS gets to interpret. Do not wait for the morning of adjudication to learn that the court report quotes a neighbor and a hotel clerk.
Child-abuse records in the DFCS file are confidential.3 A parent does not walk in and copy the file. A party files a subpoena and a motion for in-camera inspection. Serve the parties, DFCS, and the prosecutor if a criminal case is pending. After the inspection the court may release what appears reasonably calculated to lead to admissible evidence, and it shall issue a protective order.4 The court cannot order that production on its own. In the Interest of M.R., the juvenile court, over the objection of both DFCS and the mother, ordered the entire file produced for an in-camera look after the PPH. Reversed. The statute requires a party’s motion. Discovery still exists in juvenile court. A blanket “no depositions, no DHR file” order, entered on the theory that juvenile court has no discovery, is the error identified in Ray v. Department of Human Resources — former Code, yellow-flagged, still the discovery holding.5 The GAL’s file is not automatically off limits. There is no absolute privilege just because the papers sit in the GAL’s cabinet. The court has to decide privilege piece by piece, not quash first and think later. The Court of Appeals has so held.6 Discovery motions are excepted from the three-day filing clock in Uniform Juvenile Court Rule 9.3.7
Practice Tip
Discovery in juvenile court is as much a local question as a legal one. In many circuits the SAAG and the county office hand over what they have as a matter of course, lawyers who appear before the same judge every week simply ask each other for things, and nobody files anything. Some courts go further and have standing orders setting out what gets exchanged and when. Before taking appointments in a county, find out which standing orders apply there and ask the lawyers already practicing in front of that judge how the exchange actually works. Where the informal route produces what the case needs, take it — a motion for documents that a phone call would have produced spends a court-appointed lawyer’s hours and the court’s calendar for nothing. But the obligation is to the client, not to the local custom. When a request goes unanswered, when there is a genuine dispute over what has to be produced, or when what the case turns on sits in the confidential child-abuse records, file the motion and do not apologize for it. Those records take a motion and an in-camera inspection no matter how cooperative the county is.
11. The Adjudication Hearing
Adjudication is where the allegations get proved or they do not — not a formality between the PPH and disposition, and not a hearing that runs on the relaxed rules that applied earlier in the case. Everything about who can testify, what the parent's silence means, and what the order has to say exists to keep that line clear.
11.1 Timing and Burden of Proof
Adjudication is a hearing in a dependency proceeding. It is open to the public unless the court closes all or part of it. See § 5.6.
If the alleged dependent child is in foster care, the adjudication hearing shall be scheduled for no later than ten days after the filing of the petition. If the child is not in foster care, the hearing shall be held no later than sixty days after filing. If adjudication is not completed within sixty days from the date the child was taken into protective custody, the petition may be dismissed without prejudice.1
The petitioner has the burden of proving the allegations by clear and convincing evidence.2 That is an intermediate standard — higher than preponderance, lower than beyond a reasonable doubt. It is a real standard.
It is also a burden that can be missed. If the petitioner does not carry it, the petition is dismissed and the child goes back — the court does not hold the case open to see whether the evidence improves. That is worth saying out loud to a client who assumes the outcome is foreordained, and worth remembering on the other side of the table before a case is set down for a contested hearing it is not ready for.
11.2 Evidence at Adjudication
At adjudication, the ordinary rules of evidence apply. The hearsay that came in at the PPH does not automatically come in here. The stipulation calculus described at § 7.5 applies here with more force, because these findings are the ones a later termination case inherits.
Evidence at adjudication is not the PPH. A child is competent to testify in a dependency or TPR case. Credibility is the question, not competency.3 A statement by a child under sixteen describing sexual contact or physical abuse is admissible through the person who heard it if the proponent gives notice, the child testifies unless that testimony is forfeited or waived, and the recipient is subject to cross-examination.4 A forensic interview can come in under that statute when those conditions are met.5 It cannot if the child was sixteen or older when the outcry or interview happened.6 The Court of Appeals has said the juvenile court may consider hearsay under those circumstances.7 Disposition is the hearing that expressly invites relevant, reliable, necessary hearsay.8 Do not treat a PPH transcript as a trial exhibit. A prior consistent statement is not a free pass to play the interview again. It comes in only if the witness’s trial testimony has been attacked as a recent fabrication or the product of improper influence or motive.9 Waiver of a hearsay objection will be used against the parent.10
Adjudication is also the hearing where a parent may admit the allegations rather than contest them, and the facts actually admitted matter more than the fact of the admission. What the court finds here defines the problem the case plan is supposed to solve. An admission negotiated down to something vague — the home was unsanitary, there were concerns about supervision — buys a short hearing and then leaves everyone arguing for the next year about which services are rationally related to it.
That cuts both directions, and counsel on each side should think it through before agreeing to language. A parent who admits more than the Department could have proved has enlarged the case plan for no return. A Department that accepts a watered-down admission has lost the findings it needs to justify the services it intends to require, and a parent will later be told to complete a program that answers to nothing in the order. Draft the admission the way you would draft a finding, because that is what it becomes.
11.3 The Fifth Amendment at a Dependency Hearing
A dependency case is a civil case. The Fifth Amendment still applies. What it does in this courtroom is not what it does in a criminal courtroom.
In a criminal case the accused may refuse to testify, and the fact of that silence may not be used against him. In a civil case the witness may still refuse to answer a question that would tend to incriminate him. The court, however, may treat that refusal as an implied admission that a truthful answer would tend to prove the witness committed the act.11
The inference is permitted. It is not required. It is not irrefutable. Other evidence may rebut it. The trial court decides whether to draw it and how much weight it gets.12
The privilege is invoked question by question. The witness answers the questions that are safe and claims the privilege on the ones that are not. If a party moves to compel, the court decides whether the privilege was validly raised to that question.13
The same rule applies at adjudication, disposition, review, nonreunification, and TPR. A parent who is also a defendant in a pending criminal case will meet this problem. So will a boyfriend, a roommate, or a relative who is asked about drugs, violence, or the night the child was hurt.
Nuts & Bolts
In a criminal courtroom a defendant’s silence proves nothing. In this one it can. When a witness refuses to answer on Fifth Amendment grounds, the court is permitted to infer that a truthful answer would have tended to prove the act asked about — permitted, not required, and the inference can be outweighed by other evidence. The privilege itself survives intact. What changes is what the factfinder is allowed to make of it.
Practice Tip
Do not leave the inference unspoken. When a witness claims the privilege, state on the record the specific inference you are asking the court to draw — if the question was whether the parent used methamphetamine on the day of removal, ask the court to infer that she did. A silence sitting in the transcript is not an argument. A parent’s lawyer answers it the same way, from the other side: put on the evidence that rebuts the inference, and remind the court that drawing it is discretionary and that it settles nothing by itself. And keep the privilege where it belongs. It is claimed question by question, so one valid invocation does not excuse a witness from being asked anything else.
Caution
A parent’s Fifth Amendment problem is also a case-plan problem. A plan that requires the parent to admit the allegations, or to complete a treatment program built around disclosure, can be impossible to perform while an indictment is pending — and the failure to perform it will read later as noncompliance rather than as the constitutional bind it actually was. Raise the conflict when the plan is being written, and ask the court to tailor or sequence the task. Finding the problem at a nonreunification hearing is finding it too late.
11.4 Who May Be Present
If it is in the child’s best interests, the court may allow relatives or other persons who have shown an ongoing commitment to the child, and with whom the child might be placed, to be present at the adjudication hearing.14 That is presence, not party status. A legal custodian — including a nonparent custodian — is entitled to notice, counsel, and a real opportunity to appear and participate. Failure to advise that person of those rights is a due-process problem and is not cured by silence at a later hearing.15
11.5 Proving Present Dependency and Reasonable Efforts
The question is present dependency, proved by clear and convincing evidence. The inquiry centers on the parent’s fitness and conduct, not on where the child is living at the moment or how well a grandmother or other third party is filling the gap.16 If the child is already out of the home, present dependency can be shown by evidence that the child would be dependent if returned to the parent at the time of the hearing.17 Parental unfitness is essential to an adjudication of dependency. Georgia law does not, however, explicitly require a separate unfitness finding when the child is not removed from the parent’s custody.18
At the adjudication hearing DFCS has the burden of demonstrating that reasonable efforts to prevent placement and to reunify were made, or that those efforts are not required because a statutory exception exists.19 Dates, providers, wait times, and results belong in this record, not only at review.
Nuts & Bolts
The Department has to prove present unfitness or present neglect, and it has to do it with evidence that would be admissible at any other civil trial. Poverty is not unfitness. Working outside the home is not unfitness. A house that would not pass anyone’s inspection is not, without more, unfitness. Watch for the burden sliding sideways: an order written as though the parent had the job of documenting her own fitness gets reversed, and the record will show whose burden the court thought it was. 20
11.6 What the Adjudication Order Must Say
The adjudication order must find the facts specially and state the conclusions of law separately.21 When the child is out of the home, the order must contain a finding of parental unfitness. Without that finding the Court of Appeals cannot review sufficiency and will vacate and remand.22 The order must also identify which facts support the conclusion of dependency. A narrative followed by a bare statutory conclusion is not enough.23
If the court adjudicates the child dependent, it shall also make and file a finding whether that dependency is the result of substance abuse by the parent, guardian, or legal custodian.24 Make the record support a yes or a no. Do not let the finding appear as boilerplate.
If the court adjudicates the child dependent, it shall proceed immediately or at a postponed hearing to disposition. If disposition is not held with adjudication, it shall be held and completed within thirty days after the adjudication hearing concludes. The two hearings may be held together. Disposition is still a different hearing. See Chapter 14.
Practice Tip
The SAAG typically drafts the proposed order, since DFCS is usually the moving party — parent’s counsel and the GAL are not expected to draft it themselves except in unusual circumstances. But whoever is not drafting still has work to do: know before the hearing which specific findings you need on the record, tied to a witness or an exhibit, and say so out loud if the SAAG’s draft is thin. An oral ruling that never makes it into a specific written finding is an invitation to remand, and that risk does not go away just because you were not the one holding the pen.
Caution
Do not leave with a form order that recites the statutory definition and nothing else. When the child is out of the home, an order with no unfitness finding, or a fact dump that never says which facts support dependency, will be vacated.25 An in-home order is not a free pass on findings. An unsupported “at risk if left with the parent” sentence can be vacated and will follow the parent.26
Hearing-Practice Note
Calendar disposition before anyone leaves. If it will not be heard with adjudication, the thirty-day clock starts when adjudication ends.
12. Social Study and Case Planning
A case plan built from a template is easy to write and easy to fail. The plan and the study behind it are supposed to be built around this specific family — what actually brought them to court, what this child needs, and what this parent can realistically do — not a standing packet of classes handed to whoever walks through the door.
12.1 What the Plan Must Contain
After adjudication, DFCS prepares a social study and a case plan. The plan is supposed to be a set of measurable tasks tied to the reasons the child came into care, not a boilerplate packet of classes. “Mother shall address substance abuse” is not an objective. “Mother shall complete intake at [provider] within fourteen days of referral, attend as directed, and provide screens as ordered” is an objective. Do not let the client sign a plan the client cannot perform. The social study, if required, and the proposed written case plan shall be filed with the court not less than forty-eight hours before the disposition hearing.1 A plan that arrives the morning of court is not what the Code requires.
12.2 What the Social Study Should Show
The social study is more than a case history. Done well, it lays out the family's circumstances, the specific safety concerns that brought the case to court, the child's developmental and medical needs, the relatives and other supports who were contacted, and what has already been tried. A study that recites the removal narrative and stops there is not useful to the court and is not useful to counsel trying to figure out what has to change before the child can go home.
The Code is specific about what the study has to cover, and sibling relationships get far more attention than a single line item: whether the child has siblings under the court’s jurisdiction, the nature of that relationship, whether they were raised together and share real bonds, whether the child wants ongoing contact, and — if the siblings are not placed together — why not, what is being done about it, and how often they actually see each other.2 A study that lists the sibling’s name and nothing else has not done what the Code asks. The same study also has to address whether relatives should get visitation to preserve family relationships, and whether the current caregiver is willing to provide permanency if reunification does not happen — both are supposed to be affirmatively discussed, not left for someone to ask about later.
12.3 Building a Case Plan the Client Can Actually Perform
A case plan is supposed to be built around the specific reasons this family is in court, not assembled from a standing menu of classes. Two cases with the same case-plan boilerplate --- parenting class, substance-abuse assessment, stable housing --- are not the same case if one involves a single missed supervision and the other involves ongoing intimate-partner violence. Match the referral to the actual problem: a batterer-intervention program for domestic violence, not generic anger management; a trauma-informed provider for a parent who is himself a survivor of the conduct DFCS is now worried about.
Ask what will get in the way before the plan is signed. A single mother working the night shift cannot attend a Tuesday-morning parenting class without a plan for the children and the job. A parent without a car cannot get to a provider three bus transfers away on a schedule DFCS controls. Name the barrier in the room --- transportation, childcare, a language other than English, a work schedule, a disability --- and get it addressed in the plan itself, in writing, rather than leaving the parent to solve it alone and then be found noncompliant.
12.4 The Plan Is Not Fixed in Stone
A case plan should change when the facts change. A waitlist, a provider who closes, a new diagnosis, or a parent who completes one task and reveals a different underlying problem are all reasons to revisit the plan, not reasons to let it go stale until the next scheduled review. Compliance with an outdated or mismatched plan proves little; the question at every hearing is whether the plan still addresses the reasons the child is in care.
Caution
A plan that lists tasks the client cannot physically perform --- a treatment slot that conflicts with the parent's only job, a provider with no evening hours and no childcare offered, an assessment nobody has scheduled --- is not a fair test of the parent and is not evidence of the parent's unwillingness to comply. If DFCS created the obstacle, say so on the record before it hardens into a finding against your client.
Hearing-Practice Note
A plan drafted without asking the parent, and the child when the child is old enough, what they think the real barriers are tends to miss the point and invites passive resistance. Family and child input at the planning stage is not a courtesy; it is how the plan ends up addressing what actually needs to change. The same is true of matching a provider to the family's language and community --- a referral the family cannot understand or will not trust is not a service that was reasonably offered.
Practice Tip
Do not let "working on it" survive a hearing. For each task, ask the caseworker: what was referred, on what date, what is the documented wait time, and what has the parent actually done since the last hearing. Vague progress language is easy to write into an order and hard to hold anyone accountable to.
13. Reasonable Efforts, Reunification, and Nonreunification
Reasonable efforts is not jargon for “DFCS opened a file.” It is the agency’s duty, before and after removal, to try to keep the child safely at home or to return the child home at the earliest safe time.1 The child’s health and safety are the paramount concern in deciding what efforts to make.2 The court shall review the appropriateness of those efforts at each stage of the case.3
13.1 When the duty attaches
The duty is not limited to cases in which DFCS asked for custody. It is triggered when the child is placed in DFCS custody. Once that happens, the court asks whether DFCS could have provided services that might have prevented the removal. DFCS is not required to exhaust every conceivable or theoretical effort. If a service could have prevented removal and was not provided, the question is whether that failure was reasonable under the circumstances of this family at the time.
At the preliminary protective hearing, DFCS has the burden of showing one of three things: it made reasonable efforts to prevent placement in foster care; there were no appropriate services that could have let the child stay home safely, so the absence of efforts was justifiable; or reasonable efforts are not required because a statutory circumstance exists.4
At adjudication the burden shifts forward. DFCS must show that it made reasonable efforts to eliminate the need for removal and to reunify the child with the family at the earliest possible time, or that those efforts are not required under a statutory exception.5 A list of things DFCS did after the child was already in care does not answer the prevention question.
13.2 The court’s role — and what it is not
The juvenile court is a court. It is not a social-welfare agency, and it is not the general overseer of DFCS investigations. Other offices — including the Office of the Child Advocate — are charged with investigating complaints about how the agency handles reports. Failure to work up a CPS referral the way counsel would have liked it worked up does not, standing alone, support a “no reasonable efforts” finding.
Judicial oversight of reasonable efforts is not a courtesy to the agency and it is not a funding ritual. Congress put the finding in the court’s mouth so that a child is not removed unless removal is necessary, and so that the agency is held to the work the statute required. A checked box with no facts is not the finding.
A finding that DFCS failed to make reasonable efforts to prevent removal has a federal-funding consequence for that episode in care that cannot be repaired later. A finding that DFCS failed to make reasonable efforts to reunify can be repaired by later work. That is not a reason to ignore either finding. It is a reason to get the prevention finding right the first time.
The standard has to be the same case to case. The court should be able to say what it will look at: danger, whether the service matches the risk, diligence, and whether the service was adequate, appropriate, and available. Ask DFCS, on the record, what has been provided since the last hearing and whether those services match the reason the child is in care. If the answer is a list of gift cards and a referral that no one followed, the box does not get checked.
The question the Code actually asks is narrower. Could removal have been prevented. Not: should the child have come into care sooner. An investigation that, if done better, would only have produced an earlier removal is not a failure of reasonable efforts to prevent removal. An investigation that never offered the services that might have kept the child home is.
Hindsight is twenty-twenty. The legislature still gave the court the duty to scrutinize the agency’s work after the child is in care. That scrutiny is not a comment on any one caseworker. It is the statutory check on whether the family was given a realistic chance to stay together before the State took the child.
There can be more than one reasonable plan, and DFCS has the discretion to craft a plan from available options. While DFCS must identify the problems that may cost the family custody, offer services designed to remedy those problems without removal, and make reasonable efforts to help the parent where compliance proves difficult, the course selected by DFCS need not be the preferred option of the court. As long as the work of DFCS to prevent removal was “reasonable,” the court should make a reasonable efforts made finding, even if the judge might have chosen a different path.
13.3 The six statutory factors
When the court decides whether reasonable efforts were made, it shall consider whether the services were: (A) relevant to the safety and protection of the child; (B) adequate to meet the needs of the child and the family; (C) culturally and linguistically appropriate; (D) available and accessible; (E) consistent and timely; and (F) realistic under the circumstances.6
Walk the six factors on the record. A service that is relevant but not timely is not enough. A service that is available in the county but never offered to this parent is not enough. A service offered once, then dropped when the parent missed a call, is not consistent. The test is not whether the efforts succeeded. The test is whether efforts that meet those six criteria were made.
13.4 What a service actually is
A phone number is not a service. A referral sent on day forty to a provider with a forty-seven-day waitlist is not a service the parent could use. Counsel should make the record show dates, providers, wait times, transportation, and results — not a conclusion that reasonable efforts were made.
A safety plan is not a service unless it actually structures safety. If the plan says a relative will “help with supervision,” ask who signed it, who was in the home, whether the relative ever supervised, and when DFCS checked. A plan that is terminated while the parent has not started the very treatment the plan required is not a plan that prevented removal. It is a plan that ended.
Follow-up is part of the effort. DFCS cannot physically march a parent into an assessment. It can set a deadline, offer a ride, use the prospect of a filing to motivate a parent who wants to keep the child, and come back to see whether the parent took a concrete step. A referral with no follow-up places DFCS at risk of a “no reasonable efforts” finding if the child is later removed because the same problem got worse.
Reasonable efforts made to one parent are not reasonable efforts made to the family. A noncustodial or absent parent — the father who was never married to the mother, the parent who moved out before removal, the parent DFCS finds harder to reach — is still owed the same inquiry into what would let this child go home safely. A case plan built entirely around the parent who showed up to the first meeting, with nothing offered to the parent who did not, has not actually asked the prevention question as to both of them.
13.5 Substance-use cases
In a substance-use case it is difficult to imagine reasonable efforts that do not include regular, random, unannounced screens and a time-sensitive plan for bona fide treatment. One screen scheduled days in advance tells the court almost nothing. People with a serious use disorder can stay abstinent for a few days if they know the date. Random screens do two jobs: they tell DFCS whether the parent has used, and they give a parent in early recovery a reason not to use.
A refused screen is not proof of use. It is a fact. It can justify a longer look, more unannounced visits, and a closer watch on school and the child’s presentation. It does not, by itself, require removal. Closing the file days after a refused screen, against a history of the same allegation, is hard to defend under the “consistent and timely” factor.
Treatment has to be real treatment, not a list of phone numbers. Ask whether DFCS discussed Family Treatment Court, connected the parent to the coordinator if the parent was interested, and filed promptly enough for the parent to enter the program. Ask whether anyone called an inpatient program that houses a parent and a young child together. Space is scarce. The phone call is still often a reasonable effort.
The Code lets DFCS ask the court, after notice and a hearing and on probable cause, to order a physical examination of a parent.7 That can include a screen. It is a tool. It is not automatically a required effort in every case. If DFCS never even asked the parent to screen, do not let the agency skip to “the parent would have refused anyway.” The threshold to ask is low. Screens are available, inexpensive, and realistic in almost any investigation.
13.6 Court involvement is not the same as removal
DFCS can file or DFCS can try services first. If the parent shows a pattern of non-compliance, prompt court involvement is itself a reasonable effort. Court involvement does not have to mean a request for custody. A non-emergency petition can produce a protective order that requires screens, sets a date for an assessment, and puts the parent on notice that the next missed step is a custody hearing. Delay in filing can be delay in treatment. Delay in treatment can be the difference between a child who stays home and a child who does not.
The problem in a “no reasonable efforts” case is rarely that DFCS tried to avoid removal. Avoiding removal is what the Code asks the agency to try. The problem is a plan that was not sufficient to keep the child safe while the parent started the work. Identify the problem. Offer a service that actually addresses that problem. Help the parent over the barrier. Follow up. If that sequence is not on the record, say so before the court checks the reasonable-efforts box.
13.7 After a “no reasonable efforts” finding
A finding that DFCS failed to make reasonable efforts to prevent removal does not send the child home by itself. The court has still found dependency, or probable cause, on a different record. What the finding does is require DFCS to begin, immediately, making reasonable efforts to eliminate the need for placement and to reunify at the earliest possible time. Put that directive in the order. Use it at the next review. The finding is not a score-settling exercise. It is the start of the work the statute required before the child came in.
Nuts & Bolts
Duty attaches when the child is placed, not when DFCS asked for custody. PPH burden: prevent placement, justify no services, or prove a statutory exception. Adjudication burden: eliminate the need for removal and reunify, or prove the exception. Score the work on the six statutory factors. Success is not the test. A better investigation that would only have produced an earlier removal is not a failed reasonable-efforts case.
Caution
Do not argue that DFCS should have taken the child sooner and call it reasonable efforts. That is the opposite question. Do not treat a “no reasonable efforts” finding as a custody remedy. It is a finding about the agency’s work, and an order that the work start now.
Practice Tip
Parent counsel and the GAL: build a timeline. Date of first report. Date of first screen requested. Date of first real treatment appointment. Date the safety plan was signed — and by whom. Date it was dropped. If the root problem is substance use, housing, or violence, ask what DFCS did about that problem, not what gift cards were handed out for a different problem. Walk the six factors out loud. If the box is about to get checked on a thin record, object before the order is signed.
13.8 When reasonable efforts to reunify are not required
The Code lists the circumstances in which the court may direct that reasonable efforts to reunify are not required.8 The list is specific, not a vibe: aggravated circumstances9; a murder or voluntary manslaughter conviction as to another child of the parent, or aiding, attempting, or conspiring to commit one; a felony assault causing serious bodily injury to this child or a sibling; rape, sodomy, child molestation, incest, or sexual battery against this child or a sibling; a sex-offender registration requirement where preserving the relationship is not in the child’s best interests; or an involuntary termination as to a sibling where the circumstances that caused it were never resolved. If the court finds one of those, or if DFCS has filed a written report with no reunification plan, a permanency hearing shall be held within thirty days and efforts shift to timely placement under the permanency plan.10 Reasonable efforts toward adoption or guardianship may run at the same time as reasonable efforts to reunify. If DFCS decides to work both plans, it shall disclose that decision and both plans to all parties and obtain court approval.11 In an abandonment case, whether reasonable efforts are required is for the trial court. A presumption that reunification is detrimental is rebuttable.12
13.9 Ending reunification — O.C.G.A. § 15-11-204
Ending reunification is a different hearing.13 DFCS shall file a written report. The hearing shall be held no later than thirty days after that report is filed. Notice is by summons to the child if fourteen or older, the parent, guardian, or legal custodian, the attorney, the guardian ad litem, and the other persons the statute names.14 A review that was noticed as a review is not a 204 hearing.15
When the report recommends that reunification is not appropriate, it shall address each reason the child was removed, why the child cannot be adequately and safely protected at home, the harm if the child stays, and the services offered and provided to prevent removal.16 A motion filed before the custodians ever received a compliant written case plan will not support nonreunification on the theory that they failed to work a plan they were never given.17
At the hearing DFCS has the burden of demonstrating by clear and convincing evidence that a reunification plan is not appropriate.18 DFCS shall also tell the court whether and when it intends to proceed with termination of parental rights. A presumption that reunification is detrimental arises if DFCS proves, by clear and convincing evidence, that the parent unjustifiably failed to comply with a previously ordered plan. That failure has to be proved. It is not assumed from a thin report.19 The 15-of-22 filing duty is its own Code section — easy to confuse with two neighboring sections that govern different things.20 Except as provided in subsection (b), DFCS shall file a TPR petition — or join one — and concurrently recruit an adoptive family if a dependent child has been in foster care under DFCS responsibility for 15 of the most recent 22 months. The clock is a floor, not a ceiling. DFCS may file earlier.21 Subsection (b) excuses the filing when TPR may not be in the child’s best interests: a kinship caregiver is providing a permanent home and removal would be detrimental; the case plan documents a compelling reason not to file; or DFCS has not given the family the services needed for a safe return on the plan’s time frames. Compelling reasons include a parent who is successfully in services that can make return safe, or a relative home that will not adopt but is stable and permanent and removal would harm the child. At least 30 days before month 15, the court shall review a DFCS decision not to file. The court may appoint a GAL who may file.22 There is no published opinion that reverses a dependency or permanency order solely because the compelling-reason paragraph is missing from the plan. Write it. Count the months. Ask at month 14 whether a petition or an exception is coming.
The order shall find the facts specially and state the conclusions of law separately. A nonreunification hearing is a civil proceeding. The court may draw an adverse inference from a parent’s invocation of the privilege against self-incrimination. See § 11.3.
Caution
Do not let a review, a permanency hearing, or a "substantial progress" finding do the work of a formal nonreunification hearing. Look for the report, the summons, and the burden.23
Nuts & Bolts
Report. Summons. Thirty days. Clear and convincing evidence. Findings of fact. TPR-intent on the record.
14. Disposition of a Dependent Child
Disposition decides where a child actually lives, and the Code treats that decision as more than a formality tacked onto adjudication — it comes with its own findings, its own placement hierarchy, and its own protections for the child's stability that are easy to skip when a hearing is running long.
14.1 What Disposition Decides
Disposition is the hearing at which the court decides where the child will live and under what conditions after adjudication. It is not a replay of adjudication.1 The court may permit the child to remain with a parent subject to conditions, or grant temporary legal custody to a qualified individual (with priority to a relative or fictive kin), a licensed agency, or a public agency authorized to receive the child. If disposition is not held with adjudication, it shall be held and completed within thirty days after the adjudication hearing concludes.2 If the child was not released from foster care at the preliminary protective hearing, that same thirty-day clock applies.3
14.2 Who Controls Placement
The same placement-authority point that matters at the PPH matters here. If the court grants temporary legal custody to DFCS, the court does not then micro-manage which foster home DFCS uses. If the right home is a grandmother or a fictive kin who has been studied and is safe, ask the court to place custody with that person rather than with the Department. Written findings must support the disposition and case plan.4
14.3 What the Court Must Review Before Deciding
Before the court decides disposition it shall receive the social study report, if applicable, and the proposed written case plan; any psychological, medical, developmental, or educational evaluation of the child; and other relevant evidence, including whether the current caregiver is willing to provide legal permanency if reunification fails.5 The case plan shall be developed by DFCS and the parent, guardian, or legal custodian and, when appropriate, the child. It shall include a permanency recommendation. If, after considering reunification, adoption, permanent guardianship, or placement with a fit and willing relative, DFCS recommends APPLA for a child who has turned sixteen, the plan has additional required content.6 If siblings were removed, the case plan shall include a statement that reasonable efforts have been made, and shall be made while the child is in DFCS custody, to place them together unless DFCS documents that a joint placement would be contrary to any sibling’s safety or well-being; and if they are not placed together, for frequent visitation or other ongoing contact unless DFCS documents that contact would be contrary to any sibling’s safety or well-being.7 Document the split. Do not separate children because a foster home asked.8 Sibling placement is a best-interest factor after TPR. It is not an automatic right if the children have never met.9 Keeping siblings together has been a lawful reason to leave children in a foster home rather than send one child to a grandparent.10 There is no published current-Code opinion that reverses a dependency order solely because the plan omitted the sibling paragraph. Write the paragraph anyway.
14.4 The Court's Dispositional Authority
The court may enter any disposition, or combination of dispositions, best suited to the child’s protection and physical, emotional, mental, and moral welfare.11 That includes ordering a parent into a court-approved educational or counseling program, ordering DFCS to implement the plan the court actually approves, and transferring temporary legal custody. The court is not bound by the parties’ recommended disposition.12 Argue the order you want. Do not treat the DFCS recommendation as the default.
14.5 How Long the Order Lasts
A disposition order continues in force until its purposes have been accomplished or the child reaches eighteen. Eighteen is not an automatic finish line if extended care is in play. See Chapter 18.
Within thirty days of the date a child placed in DFCS custody is removed from the home, and at each later review of the disposition order, DFCS shall submit a written report that either contains a reunification case plan or states the factual basis for determining that a reunification plan is not appropriate.13
14.6 Educational Stability
A case plan is supposed to place the child in the least restrictive, most family-like setting available, and specifically weigh proximity to the child’s current school.14 That is not a courtesy — the plan has to affirmatively address whether the placement lets the child stay in the school they are already enrolled in, and if not, DFCS has to show it coordinated with the local school system to get the child enrolled somewhere new immediately, with the records to go with them.15 A placement that solves the housing problem but drops a child out of their school mid-semester, with no plan for how records and enrollment will follow, has not actually met the standard the Code sets.
14.7 The Case Plan Is the Youth's Plan Too
For a youth fourteen or older, the case plan itself — not just the later permanency plan — has to be developed and revised in consultation with the youth, who may choose up to two people, not a foster parent or caseworker, to sit on the case planning team.16 One of those people can be designated as the youth’s own advisor on how the reasonable-and-prudent-parent standard gets applied to them — whether they can go to a sleepover, join a sports team, get a driver’s permit, the ordinary stuff of adolescence that a foster placement can otherwise make needlessly hard.
That same youth is also entitled to their own written statement of rights — covering education, health, visitation, court participation, the right to a free credit report, and the right to stay safe from exploitation — explained to them in age-appropriate language, with a signed acknowledgment that they actually received and understood it.17 Confirm that document actually exists in the file and was actually explained, not just signed in a stack of other paperwork at intake.
Nuts & Bolts
Ask a fourteen-or-older client directly whether anyone has ever walked them through their rights document, and whether they know they can name someone — a mentor, a relative, a former foster parent — to sit on their own case planning team. Most never have. That is the gap to close first.
Practice Tip
Read the plan against the reasons the child came into care. Strike anything the client cannot perform. If the concurrent plan is adoption by a non-relative while a fit relative is sitting in the gallery, put that conflict on the record.
Nuts & Bolts
Disposition findings are about placement, services, family time, and the plan. Do not use this order to paper over a thin adjudication. If the court is also finding continued dependency, that finding still requires present dependency and parental unfitness, proved by clear and convincing evidence. A vacated adjudication takes the disposition with it.18
Hearing-Practice Note
Caregivers have a right to be heard. Ask whether the current caregiver will provide legal permanency if reunification fails. That answer belongs in the disposition record.
15. Periodic Review Hearings
A periodic review is not a status conference where everyone confirms things are “going okay” and moves on. It is the checkpoint where a case either keeps moving toward permanency or quietly stalls, and the Code gives the court a specific, detailed job to do at every single one — not a general invitation to check in.
15.1 The Statutory Checklist
The first periodic review is due within seventy-five days of a child’s placement in foster care.1 The review is not a status conference in which everyone reports that things are “going okay.” At that initial review the court shall approve completion of the relative search, schedule the next four-month review to be conducted by the court or a judicial citizen review panel, and determine whether appropriate progress is being made on the permanency plan.2
The Code requires the court to issue written findings at the conclusion of every review. The court must address: why the child is still dependent; whether the case plan is still the right one; how much of it has actually been completed; the basis for any placement change; whether visitation is still appropriate; progress toward the permanency goal; whether every legally required service is being provided; the transition-to-independence services for a youth fourteen or older; and whether reasonable efforts continue.3 That is a checklist, not a vibe — a review order that never touches most of these points has not done what the Code requires, whatever it says about “progress.”
At the conclusion of the review, the court must order one of four things: return the child home; continue the current placement because it still fits; continue the placement while directing DFCS to submit a better plan within ten days; or make additional orders to protect the child if DFCS is not actually doing what the plan says.4 A modification under the Code still requires present dependency.5 The statute is not a shortcut around that proof.6
Practice Tip
Some judges’ approach: the parties’ attorneys typically negotiate a proffer in advance, and if everyone agrees on it, that proffer becomes the basis for the court’s findings. Even so, it helps to put everyone under oath and ask a few direct questions on the record — whether DFCS is satisfied with the parents’ cooperation, whether the parents are satisfied with the quality, availability, and accessibility of the services DFCS is offering, and whether the guardian ad litem is satisfied with DFCS’s services and the parents’ compliance, and believes the child’s needs are being met. None of that is required by statute, but it turns a paper review into a real one. Parents benefit from being in court and seeing the judge, even if the facts are not in dispute, and putting stipulations on the record in front of their client protects attorneys from grievances if clients later change their mind.
Hearing-Practice Note
Reviews are where family time either grows or calcifies. All parties should use the review to develop strategies to move the case forward to permanency.
15.2 The Parts of a Child's Life the Case Plan Doesn't Show
A review is also the natural checkpoint for the parts of a child's life that do not show up in a case-plan compliance chart: whether the child is still in the same school, whether overdue medical, dental, and vision care has actually happened, whether a mental-health need identified at removal has been followed up on, and whether siblings placed apart are seeing each other. These questions rarely change the permanency goal by themselves, but a case that is silent on them at every review is missing part of the record the court is supposed to be building.
15.3 Hearsay and the Relaxed Standard
At each periodic review the court may consider any evidence, including hearsay, that it finds relevant, reliable, and necessary to determine the needs of the child and the most appropriate case plan and permanency plan.7 That relaxation is for this hearing. It does not reopen the adjudication.
15.4 The TPR Question
At each review of a child in DFCS custody, DFCS shall notify the court whether and when it intends to proceed with termination of parental rights.8 Get that answer on the record. A worker who “hasn’t decided” is a fact about reasonable efforts and about the concurrent plan. DFCS should have made a decision by the time of a permanency hearing, but if there is ambiguity, counsel or the court should inquire why a decision has not been reached, the barriers to a decision being made, and the timeframe in which a decision will be made.
The Agency may, of course, change course and delay filing if a change of circumstances warrant. It is possible that an adoptive placement may disrupt or other factors might case doubt on the wisdom of the filing. Since filing of the petition is a reasonable effort for an adoption permanency plan, the decision not to file will be reviewed by the court at the next permanency hearing. Similarly, the Agency is not barred from filing a TPR petition after the permanency hearing if circumstances warrant, even if that was not contemplated as the plan at the permanency hearing. For example, if a parent leaves treatment and abandons reunification efforts and the child, DFCS may wish to proceed with the filing of a petition and does not require the approval of the court to do so.
15.5 When a Judicial Citizen Review Panel Handles It
If the review is conducted by a judicial citizen review panel rather than by the court, the panel shall transmit its report and DFCS’s report — findings, recommendations, and any proposed revised reunification or other permanency plan — to the court and to the parent within five days after the review.9 If the panel determines that a parent has unjustifiably failed to comply with the ordered reunification plan and that the failure is significant enough to warrant considering TPR, the panel may recommend to DFCS and to the child’s attorney that a termination petition be prepared.10 A panel recommendation is not an adjudication and is not a TPR.
15.6 Qualified Residential Treatment Program Placements
A congregate placement is not a review afterthought. Before a child goes into a qualified residential treatment program, a qualified individual has to assess the child’s strengths and needs and document why a foster family home cannot meet them — that assessment has to happen within thirty days of the placement starting, at the latest.11 The court then has its own independent job, no later than sixty days into the placement: check that assessment, decide whether a family placement could actually work instead, and confirm the QRTP is genuinely the least restrictive option that fits the child’s permanency plan.12 Do not let this become a rubber stamp on DFCS’s own paperwork — the whole point of the court’s separate review is that a congregate setting is supposed to be hard to justify, not the default answer to a placement that is hard to find.
Practice Tip
A direct appeal from an order relieving DFCS of reunification also allows a challenge to earlier orders in the same case, including judicial review orders that were not separately appealed.13 Try the review as if it will be in the record, because it will be.
16. Permanency Planning
A permanency hearing is where the case stops circling and picks a direction. Everything about timing, notice, and required findings in this chapter exists to keep that decision from drifting — and one piece of it, the child's own voice in the plan, is easy to skip and required by name in the Code.
16.1 What a Permanency Hearing Decides
The permanency hearing determines the child’s future permanent legal status.1 A permanency plan is a specific written plan prepared by DFCS to reunify the child with the family or, when return is not possible or is not in the child’s best interests, to move the child quickly into a substitute long-term home.2 The hearing considers in-state and out-of-state placement options.3
16.2 Timing
The first permanency hearing runs on the child’s age at the time the dependency petition was filed. If the child was under seven, the hearing shall be held no later than nine months after the child is considered to have entered foster care.4 If the child was seven or older, no later than twelve months after the child is considered to have entered foster care.5 Those age clocks yield if DFCS has already filed a written report with no reunification plan. In that event the permanency hearing shall be held no later than thirty days after the report, whichever comes first.6 After the initial hearing, a permanency hearing shall be held not less frequently than every six months while the child remains in DFCS custody, or sooner if the court orders it, until the court finds that the permanency plan and goal have been achieved.7
If DFCS files a report with no reunification plan, or the court finds that a statutory circumstance makes reasonable efforts to reunify unnecessary, a permanency hearing shall be held within thirty days.8 Do not wait on the nine- or twelve-month clock. The thirty-day date and the age-based date are “whichever comes first.”9
16.3 The Five-Day Report and Notice
At least five days before the hearing DFCS shall submit a report recommending a permanency plan. The report shall document the steps DFCS will take to finalize the permanent placement and shall include the items listed in the statute. If the child remains in a qualified residential treatment program, that documentation is mandatory.10 Written notice of the hearing shall go, at least five days in advance, to the child; the parent, guardian, or legal custodian; the attorney; the guardian ad litem; foster parents; any preadoptive parent or relatives providing care; and other parties. The notice shall advise that the permanency plan recommended by DFCS will be submitted to the court for consideration as the order of the court.11 Foster parents also have an independent written-notice right when the case plan or permanency is at issue.12
16.4 Substantial Progress Is Not Nonreunification
At a review held more than seventy-five days after removal, a finding that the parent failed to make substantial progress on the case plan authorizes the court to order DFCS to develop a nonreunification plan or a concurrent plan that contemplates nonreunification. It does not, standing alone, authorize the court to relieve DFCS of the reunification services already required by the governing plan.13 If DFCS has not filed a nonreunification report, and the parent has not been given notice that the hearing will be a nonreunification hearing, do not let a substantial-progress finding do the work of the nonreunification statute.14
Caution
Do not let a review or a permanency hearing become a silent nonreunification hearing. A substantial-progress finding can force a new plan. It cannot, by itself, end the reunification duty. Look for the nonreunification report and the notice.15
16.5 The Menu of Permanency Goals
The court considers reunification, adoption, permanent guardianship, and APPLA. APPLA is a last-resort goal for older youth and requires consultation with the youth. For youth within ninety days of age eighteen, transition planning must address housing, education, employment, health insurance, documents, and adult connections. That conversation is the on-ramp to extended care youth services, but a formal APPLA permanency plan during the age of minority is not a requirement for extended youth services. In many cases, the permanency plan remained reunification or even adoption, but neither was able to be completed prior to the child’s 18th birthday.
16.6 Concurrent Planning
Working toward reunification does not mean waiting until reunification fails before anyone thinks about the alternative. A concurrent plan — identifying and preparing a possible relative or other placement that could become permanent if reunification does not happen — should be developing in parallel from early in the case, not assembled from scratch at the permanency hearing after months have already passed. A relative who has been engaged and kept informed from the start is a realistic concurrent option; a relative first contacted at the permanency hearing is not, whatever the report says.
Caution
A permanency goal is a finding. Reciting “reunification” or “adoption” without the date, the steps, and the evidence is the same boilerplate problem that undoes other orders. It is often difficult to pinpoint a timeline, but strive to put the actual projected date in the order instead of placeholders.
16.7 The Child's Own Voice in the Plan
The Code does not say to consider the child’s wishes as one factor among many at a permanency hearing — it requires the court to ask the child directly what permanency outcome the child actually wants, and to make a finding about the answer.16 That is not the same question as what is in the child’s best interests, and the record should show both answers even when they point in different directions.
For a youth fourteen or older, the plan itself has to be developed in consultation with the youth — and the youth gets to pick up to two people, who are not a foster parent or caseworker, to sit on the planning team.17 That could be a mentor, a former foster parent, a relative, a coach — whoever the youth actually trusts. Ask the youth who that person is well before the hearing, not as a formality on the day of. A plan built without that person in the room is missing a voice the Code specifically made room for.
Hearing-Practice Note
Ask whether the five-day report actually documents steps to finalize a placement or merely repeats last hearing’s paragraph. Out-of-state options are part of the statutory question. So is the fourteen-and-older transition plan. Treat the recommended plan as a proposed order. If you do not object to it, it can become the order.
17. Permanent Guardianship
17.1 The Four Required Findings
Permanent guardianship is not TPR with a nicer name. Parental rights survive. The court may appoint a permanent guardian for an adjudicated dependent child only after four findings: reasonable efforts to reunify would be detrimental to the child, or the living parents have consented; TPR and adoption are not in the child’s best interests; the proposed guardian can provide a safe and permanent home; and the appointment is in the child’s best interests and the person chosen is the most appropriate guardian. If the child is fourteen or older, the court shall also find that the person the child chose is the most appropriate, considering best interests.1 Those findings are not optional.2
17.2 Filing the Petition and Giving Notice
File a petition that actually complies with the statute.3 If the parent has not consented, list the relatives the statute names — adult siblings, or if none, up to three grandparents — with addresses. A petition that skips that list cannot be granted.4 Serve a summons at least fourteen days before the hearing on any party who can be found in the state. If a party cannot be found after diligence, use publication and do not hold the hearing earlier than fifteen days after the last publication.5 Serve a known or established biological father unless he has surrendered parental rights.6
A child fourteen or older gets their own notice and their own copy of the petition, not just a mention in someone else’s testimony about what the child wants.7 That is not a formality — it is the same principle that requires the court to find the child’s own choice of guardian is the most appropriate one, and a child who was never actually served cannot meaningfully be said to have made that choice. And a parent whose rights have already been terminated or voluntarily surrendered does not need to be served at all; do not waste a diligent search on someone the case has already legally moved past.8
Do not invent a guardianship from the bench. No petition, no consent, no notice that a guardianship hearing would occur, and no finding that reunification efforts would be detrimental — vacated.9 A missing permanency-plan paragraph does not undo notice when DFCS filed and served a guardianship petition, counsel confirmed the plan on the record, and the parent testified that she understood the grandmother was the proposed guardian.10
17.3 Visitation and How Guardianship Ends
The order shall set a reasonable visitation schedule so the child can keep meaningful contact with the parents, or it shall state the restriction.11 The guardianship lasts until eighteen or emancipation. It is not reviewed like a foster-care case. Modification, vacation, or revocation requires a petition and clear and convincing evidence of a material change in the circumstances of the child or the guardian, plus best interests and appointment of a new guardian.12 Superior court has concurrent jurisdiction to enforce or modify child support or visitation entered under this authority. Once the juvenile court returns full custody to a parent, the guardianship is over. The court then has no jurisdiction to give the former guardian visitation.13
Nuts & Bolts
The statutory findings required for a guardianship are similar to what is required for grant of a termination of parental rights, but with an additional burden to prove that termination followed by adoption would not be more appropriate. All parties should give serious consideration to this question. The SAAG should consult with the Agency to gather information about funding differences, if any, which might ease the financial strain on the proposed guardians and/or adoptive parents. GALs and CAAs should patiently explain the differences to their clients in an age-appropriate manner to ascertain their wishes and to ensure that they has a clear understanding, as much as possible.
Caution
If the real plan is adoption, do not use permanent guardianship to avoid proving TPR. The statute requires a finding that TPR and adoption are not in the child’s best interests. That finding will be used later.
17.4 Who may file and what the order must find
Anyone may file the juvenile-court petition. The petitioner need not be the proposed guardian. DFCS, the GAL, a parent, or the person who wants the child may file. The court still has to make every statutory finding: the child is dependent; reasonable efforts to reunify would be detrimental, or the parents have consented; termination of parental rights and adoption are not in the child’s best interests; the proposed guardian can provide a safe and permanent home; the appointment is in the child’s best interests; and this person is the most appropriate guardian for the child.
Once entered, the order stays in effect until the child turns eighteen or the juvenile court terminates it. It is presumptively permanent. Parental power sits with the guardian indefinitely. A person who wants it changed must prove a material change by clear and convincing evidence. The court administers the oath. The guardian files the reports Title 29 requires — within sixty days and every twelve months after that. The juvenile court keeps exclusive jurisdiction to modify.
17.5 Temporary guardianship transferred from probate court
A petition to establish a temporary guardianship may be transferred to the juvenile court.14 The probate court may transfer even if a parent objects. After transfer the juvenile court shall notice the parties and hold a hearing within thirty days. The court may refer the matter to DFCS for investigation.
A petition to terminate a temporary guardianship is different. If the temporary guardian does not object, the probate court shall terminate. If the guardian objects within ten days, the probate court may hear the objection or transfer it. Permanent-guardianship petitions filed in probate court under Title 29 have no transfer statute. A child with no natural guardian may still be a dependent child. If a dependency petition is filed and the child is adjudicated dependent, the permanent-guardianship path becomes available.
The Code lets the juvenile court appoint a temporary guardian in any proceeding authorized by the Juvenile Code, including delinquency and CHINS.15 The Title 29 procedures for temporary guardians still apply.
17.6 Custody questions transferred from superior court
In a divorce, alimony, habeas, or other case involving custody, the superior court may send the custody or support question to the juvenile court for investigation and a report back, or for investigation and determination.16 Those are different jobs. Get the transfer order to say which one it is.
Investigation and determination means the juvenile court hears the evidence, finds the facts, and enters the custody order. The superior court does not have to sign again. Investigation and report means the juvenile court hears the evidence and sends findings — with or without a recommendation — back to the superior court, which may adopt or reject them. The juvenile court may send the case back at any time before it determines an issue.
There is no right to appointed counsel in this posture.17 There is no statutory hook to order a DFCS investigation, though a separate dependency concern can still be referred. The case proceeds in the manner of other juvenile-court cases, including the juvenile court’s rules on how a child’s interview is handled. If the court is determining custody, the order must include a parenting plan.18 If the court is setting child support, the guidelines apply.
A superior court may enforce a juvenile-court permanent guardianship. It may not take that guardianship and award permanent custody of the child to someone who is not the guardian.
17.7 Why This Option Exists
Permanent guardianship is Georgia's answer to a real gap: some children have a relative or another committed adult who can give them a safe, stable, permanent home, but terminating the parents' rights entirely is not necessary and is not in the child's best interests — particularly when the child already knows and loves that parent, however unable that parent is to resume custody. It lets a child keep two things at once that TPR and adoption force apart: a legally secure, permanent home with the guardian, and continued legal contact with the parent through visitation. That is not a compromise position. For a child who wants both stability and their parent in their life, it can be the outcome that actually reflects what permanency means to them.
This is also why the relative-notice list at filing matters as much as it does. A grandparent or adult sibling is often the person best positioned to be exactly this kind of guardian — someone the child already trusts, in a home the child already knows. Do not let that list become paperwork to clear. Ask early, and ask directly, whether one of the people on it is willing and able to be considered.
18. Extended Care Youth Services
Foster care does not always end at the eighteenth birthday. Georgia provides a voluntary program — in the Code, extended care youth services; in DFCS practice, often called Extended Youth Support Services or EYSS — for young adults who remain in or return to DFCS care between ages eighteen and twenty-one. The statutory home is Article 4A.1 The definition of “child” includes a person between eighteen and twenty-one who is receiving those services.2
This is not a continuation of the original dependency case by inertia. When a dependent child turns eighteen, every order in that dependency case terminates.3 The youth signs a voluntary placement agreement. That starts Article 4A. DFCS shall file a written report no later than 120 days after the agreement is signed: eligibility facts, why the services are in the youth’s best interests, a copy of the agreement, and a transition plan.4 Within thirty days of that filing the court shall hold a review, make written findings, and approve or reject the plan. So long as the youth remains eligible, the court shall hold periodic reviews no later than twelve months after the last hearing. The date the youth is considered to have entered foster care is sixty days after the agreement is signed.5
Jurisdiction is limited: review the case, find that the services are in the youth’s best interests, adopt a transition plan, see that developmentally appropriate services are provided, and decide whether reasonable efforts are being made toward independent living or another planned permanent adult living arrangement.6 The court shall appoint counsel for a youth receiving these services, before the first hearing that may substantially affect the youth’s interests.7
18.1 Who Is Eligible
A young person may receive extended care youth services if the person is between eighteen and twenty-one, signs a voluntary placement agreement with DFCS, and meets objective eligibility criteria established by DFCS, listed below.8 A person within twelve months of turning twenty-one may not sign a new agreement.9 The youth may end the agreement at any time. Every twelve months DFCS shall redetermine eligibility. If DFCS ends the agreement, it shall give written or electronic notice to the youth and to the court that approved the services.10 A “child” for this article includes a person eighteen to twenty-one who is receiving these services.
The list is a menu, not a hurdle course — a youth only has to fit one of these, not all of them, and DFCS is supposed to work with whichever one actually matches where the youth is in life:
Completing secondary education or a program leading to an equivalent credential.
Enrolled in an institution that provides postsecondary or vocational education.
Participating in a program or activity designed to promote or remove barriers to employment.
Employed at least 120 hours per month.
Employed 80 hours per month, if also engaged in education, training, or an employment-barrier program, or if a medical condition limits the youth to 80 hours.
Incapable of doing any of the above because of a medical condition.
DFCS policy adds practical gates. The typical Independent Living Program path requires that the youth was adjudicated dependent or CHINS by a Georgia juvenile court and was in foster care for at least six months before turning eighteen. A youth who exits at eighteen may usually request to return within six months; requests after that window are subject to DFCS approval. A youth within twelve months of turning twenty-one may not newly sign a voluntary placement agreement.
18.2 What the Youth Actually Gets
A placement — a foster home, group home, independent-living or scattered-site housing, or college housing — rather than an abrupt discharge to nowhere.
A personalized transition plan, completed within thirty days of the youth agreeing to services, directed by the youth, covering housing, health insurance, education, mentors, workforce services, and a health-care power of attorney option.11
Independent Living Program services, including life-skills training and, where the youth qualifies, education and training voucher assistance.
Health coverage. Youth who were in foster care and on Medicaid at eighteen generally keep Medicaid through the former-foster-care group to age twenty-six, whether or not they remain in extended care. Remaining in care preserves case management and placement on top of that coverage.
A case manager and, in many regions, an Independent Living Specialist, with monthly check-ins tied to the written transitional living plan.
18.3 Court Review and Counsel
No later than 120 days after the voluntary placement agreement is signed, DFCS must file a written report with the court. Within thirty days of that filing the court holds a review hearing and makes written findings on whether extended care youth services are in the youth’s best interests. DFCS redetermines eligibility at least every twelve months and may terminate the agreement if the youth is no longer eligible, with notice to the youth and to the court. The youth may terminate the agreement at any time.
The court shall appoint counsel for a child receiving extended care youth services from DFCS in dependency proceedings. In the extended-care article itself, the court may appoint an attorney with the youth’s consent.12
Practice Tip
Do not wait until the week of the eighteenth birthday. By age sixteen there should be a transition plan. In the ninety days before eighteen, confirm documents, housing, Medicaid, and whether the youth will sign the voluntary placement agreement. If the youth wants to leave, document that the youth was told how to come back. A client who ages out angry on a Friday still has a six-month window in most cases.
Nuts & Bolts
Begin thinking about extended youth care for any older teenager. A GAL or CAA should begin the conversation with his or her client before the final hearing before the child turns 18. Extended care is a great option for most children who age out of the system while in foster care but they are often skeptical when introduced to the idea by a DFCS case worker. If you are a GAL or CAA and you have established a relationship of trust over the course of representation, your client may consider their options with more of an open mind, even if you are unable to provide all of the details of the program.
Caution
Do not wait until the week of the eighteenth birthday to start the agreement. Do not ask the dependency court, after the birthday, to order rent or services as a sanction. The dependency file is closed. Open Article 4A.
The court cannot keep the old dependency case alive past the eighteenth birthday in order to force DFCS into extended care. Six days before K.A.V. turned eighteen, the GAL moved on reasonable efforts. The court held a hearing the day before the birthday, then — after she turned eighteen — said it could not order extended care because she was not a qualified immigrant and, as a sanction, ordered DFCS to pay the foster mother six months of rent. Vacated. Once she turned eighteen, the court had no jurisdiction over the dependency case and no power to enter that order.13 A youth who wants these services signs the agreement and proceeds under Article 4A. There is no published Georgia opinion that orders DFCS to sign a voluntary placement agreement it has refused.
18.4 What Actually Keeps a Youth Engaged
Services on paper are not the same thing as a young person who trusts the process enough to use them. The youths who stay engaged in extended care are, overwhelmingly, the ones who had a real say in the transition plan rather than one handed to them — the plan they helped write is the plan they actually follow. Ask what the youth wants before drafting anything, and revisit it as the answer changes, because it will change: a plan built around a nineteen-year-old's goals at eighteen is often out of date within a year.
Relationships matter as much as housing and health insurance, and they get less attention than either. A former foster parent who stays in a youth's life after the placement ends, a mentor, a sibling maintained through contact that does not stop just because a case number closed — these are not extras on top of the statutory services. For many youths they are the actual safety net that keeps a hard month from becoming a lost year. Ask about these relationships specifically when building or revisiting the transition plan, not only about housing and school.
A youth who leaves extended care angry, or simply overwhelmed, and comes back six months later is not a failure of the program. Leaving and returning is common enough that the Code builds a return window around it on purpose. Frame that option as a normal part of becoming an adult, not as a last resort for a youth who could not make it — a young person is far more likely to actually use the return window if nobody made them feel ashamed of needing it.
Hearing-Practice Note
At every extended care review, ask the youth directly — not the case manager, not the attorney — what is working and what is not. A transition plan that reads well on paper but that the youth has never actually seen in full is not a youth-directed plan. It is a plan directed at a youth.
19. Comprehensive Timeline Reference Chart
These are the clocks that actually dismiss cases and reverse orders. Confirm the current Code before a hearing.
| Event | Clock |
|---|---|
| Preliminary protective hearing | Not later than 72 hours after the child is placed in foster care; next business day if the deadline falls on a weekend or legal holiday. |
| Dependency petition after PPH if child not released | Within 5 days of the PPH. |
| Adjudication if child is in foster care | Scheduled no later than 10 days after the petition is filed. |
| Adjudication if child is not in foster care | No later than 60 days after the petition is filed. |
| Outside adjudication window after protective custody | If adjudication is not completed within 60 days of protective custody, the petition may be dismissed without prejudice. |
| Disposition if not heard with adjudication | Held and completed within 30 days after the adjudication hearing concludes.1 |
| First periodic review | Within 75 days of removal. |
| Subsequent periodic review | Scheduled at the first review for four months later.2 |
| Permanency hearing | Child under 7 at filing: no later than 9 months after the child is considered to have entered foster care. Child 7 or older: no later than 12 months. Or within 30 days of a DFCS report with no reunification plan, whichever comes first. Then at least every 6 months.3 |
| Permanency report and notice | DFCS report and written notice at least 5 days before the permanency hearing.4 |
| Continuance | Only for good cause, only for the time shown necessary, never contrary to the child’s interests.5 |
| Voluntary placement agreement for extended care | Signed by the youth (typically within 5 business days after the 18th birthday under DFCS policy). |
| DFCS report to court on extended care | No later than 120 days after the agreement is signed. |
| Court review of extended care | Within 30 days of that report. |
| New extended-care agreement | Not available within 12 months of the 21st birthday. |
| Diligent relative search | Completed, written up, and filed within 30 days of removal, and updated at each periodic review.6 |
| Placement change notice | At least 5 days’ written notice to the court, child (if 14+), parent, and attorneys; 24 hours after the move if delay would endanger the child.7 |
| Case plan and social study filed | Not less than 48 hours before the disposition hearing.8 |
| Nonreunification hearing | No later than 30 days after DFCS files the written report.9 |
| 15-of-22-month TPR filing duty | DFCS shall file, or join, a TPR petition once a child has been in foster care 15 of the most recent 22 months; the court reviews a decision not to file at least 30 days before month 15.10 |
| QRTP pre-placement assessment | Completed no later than 30 days after the placement starts.11 |
| QRTP court review | No later than 60 days into the placement.12 |
| ICPC Regulation 7 expedited order | Signed order leaves the courtroom within 2 business days; the receiving state has 30 calendar days. |
| Extended care return window | A youth who exits extended care at 18 may typically request to return within 6 months; later requests are subject to DFCS approval. |
| Notice of appeal | Due within 30 days of the order being appealed; the clock runs from the order itself, not the end of the case.13 |
20. Practical Checklists
Run down the relevant list before the hearing starts, not during it. Each one tracks a stage of the case where a missed step is the difference between an order that holds up and one that comes back on remand.
20.1 Preliminary Protective Hearing
Complaint and removal order in hand.
Counsel appointed for parent and child.
Two questions isolated: probable cause, then necessity of custody.
Relatives identified with phone numbers.
Family time proposed in writing.
ICWA and UCCJEA asked on the record.
Contrary-to-welfare and reasonable-efforts findings with a description of efforts.
Petition deadline and adjudication date calendared.
20.2 Adjudication
Service perfected.
Hearsay in the court report isolated and objected to.
Standard of proof stated: clear and convincing.
Each allegation tied to an exhibit or a witness with personal knowledge.
No stipulation the client disputes.
Specific findings you need identified before the hearing, so you can request them on the record even if you are not the one drafting the order.
Disposition date calendared; thirty-day clock if not heard with adjudication.
SAAG's proposed order checked for unfitness findings, the facts that support dependency, and the required substance-abuse finding — object on the record if any are missing.1
Reasonable-efforts proof on the record, with dates.
20.3 Disposition / Case Plan
Least restrictive placement argued with names, not categories.
If custody to DFCS, understand the court will not pick the foster home.
If a relative is the right home, ask for a direct custody grant.2
Plan objectives measurable.
Family-time step-down criteria written into the order.
Concurrent plan identified.
Caregiver permanency willingness on the record.
Social study and proposed case plan received at least forty-eight hours before the hearing.
If DFCS is working two plans, both disclosed and approved.
Court not treated as bound by the DFCS recommendation.
20.4 Review and Permanency
Compliance listed item by item with dates.
DFCS delays put on the record as reasonable-efforts facts.
Family time modified when the facts have changed.
Permanency goal actually found, not assumed.
For youth approaching 18, transition plan and extended-care conversation on the record.
If no reunification plan, permanency hearing within thirty days.
Permanency findings include a projected date and, if the child is fourteen or older, independent-living services.
Five-day DFCS permanency report and five-day notice checked.
Relative search approved at the first review; next four-month review calendared.
DFCS states on the record whether and when it intends to file TPR.
Education stability, overdue health and dental care, and sibling contact checked, not only case-plan compliance.
New relatives identified since the last hearing followed up and reported, not left on a list.
20.5 Termination of Parental Rights
Ground identified by statutory paragraph, not just “unfitness” in the abstract.
Present cause of dependency proved, not just the history that led to removal.
Six-month look-back facts on the record if relying on failure to maintain a bond, provide support, or comply with the plan.
Serious-harm finding tied to this child specifically, not a generic recitation.
Putative father registry search and service confirmed, with the search date documented.
ICWA inquiry re-confirmed on the record, even if answered earlier in the case.
Best-interests findings separate from and in addition to the misconduct/inability findings.
Order finds the facts specially and states conclusions of law separately.
If the ground includes prior TPR as to a sibling, the circumstances from that case addressed, not assumed.
20.6 Appeal
Objections made with a specific ground and an actual ruling obtained, not just “noted.”
Transcript ordered and designated if sufficiency of the evidence will be challenged.
Notice of appeal calendared from the order itself — thirty days, not from the end of the case.
Written order reviewed before it is signed, not just the oral ruling relied on.
If custody or placement will change during the appeal, a discretionary stay requested affirmatively — it is not automatic.
If the order is a TPR grant, confirm the automatic stay of any related adoption proceeding is understood and communicated to the client.
Full record obtained — remember this is a right, not a favor from the clerk’s office.
Earlier unappealed orders in the same case identified, since a direct appeal from a later order can bring them up too.
21. Common Pitfalls and Practice Tips
None of the mistakes below require bad intentions. They are habits that creep in when a docket is heavy and a hearing looks routine — the same finding copied from the last order, the same question left unasked because it was unasked last time too. What they have in common is that they show up again and again in reversed orders and in cases that took longer than they needed to reach permanency.
Treating the PPH as a mini-adjudication and putting an unprepared parent on the stand.
Collapsing the two PPH questions into one — probable cause and necessity of custody are separate findings, and a court that skips straight to the second has skipped the first.
Asking the court to “place the child with Grandma” while also asking that custody go to DFCS.
Boilerplate best-interests and reasonable-efforts findings that could be pasted into any case in the building, with nothing that ties the finding to this family's actual facts.
Missing the petition or adjudication clock and hoping a stipulated continuance will save it. It will not.1
Using PPH hearsay as if it were already in evidence at trial — the relaxed standard belongs to that hearing alone, and does not travel forward with the case.
Letting family time freeze at the first supervised slot.
Ignoring putative fathers until permanency, then discovering at the eleventh hour that nobody ever served or ruled him out.
Raising ICWA for the first time at the adoption-goal hearing, months after the inquiry should have happened and could have changed the placement.
Treating a substantial-progress finding at review or permanency as if it ended reunification, without a non-reunification report and notice.2
Treating an eighteenth birthday as the end of the lawyer’s job if the child elects to participate in extended youth care services.
Notifying relatives late, or only after a non-relative placement is already settled in, and then treating a relative's request as untimely.
Leaving a case plan generic when the family's actual circumstances --- a language other than English, a disability, a work schedule, no car --- call for something different.
Skipping the ICWA inquiry because nothing in the file obviously suggests tribal heritage. Ask anyway, every time a new parent or relative appears.
Letting siblings stay placed apart without anyone asking why, or whether that can change.
Treating the child's stated wishes and the child's best interests as the same question without addressing the difference on the record.
Letting a hearsay-heavy court report stand in for live testimony at adjudication because no one objected.
Letting a caseworker's written report stand in for the caseworker's testimony, because nobody insisted on the live witness the report is supposed to summarize.
Treating a foster parent or relative caregiver as a bystander instead of the person who actually knows how the child is sleeping, eating, and doing in school.
Assuming a parent's silence in the courtroom means agreement, when what it actually means is nobody offered an interpreter.
Recycling a proposed order from the last hearing without checking whether it still matches what was actually proved at this one.
Letting the case rotate through a different judge every hearing when a single assigned judicial officer was available and would have caught the pattern sooner.
Building an extended care transition plan without ever asking the youth what he or she actually wants it to include.
22. Preparing the Parent Client and the Child Client
A parent or child who understands what is happening, and why, shows up differently than one who has only been told where to sit and when to talk. That is not a courtesy extended to make a hard day easier. It is how you get testimony you can actually use, a client who keeps coming back, and a record that reflects what the family really thinks rather than what they guessed the lawyer wanted to hear. Preparation here is not a single meeting before the big hearing — it is a relationship you build hearing by hearing.
22.1 Preparing the Parent
Most parents have never set foot in this courtroom before, and the vocabulary alone can be disorienting — dependency, disposition, adjudication, SAAG. Walk through the terrain in plain language: what a 72-hour hearing decides that adjudication does not, what statements to the caseworker can and cannot be used for, and how short the clock actually is. Go through the case plan line by line and strike anything the client genuinely cannot do, rather than letting them nod along to a task that was never realistic.
Explain what happens if the client misses a hearing, and why showing up matters even on days when there is nothing good to report. A parent who understands the stakes in plain terms stays engaged in a way that one who has only been told to “comply” does not. Revisit the plan at every meeting, not just at intake — a task that was reasonable in month one can become impossible by month four if a job changed, a household changed, or a new diagnosis entered the picture.
Prepare the client for how the room will feel, not only for what it will decide. A parent who walks in frightened, ashamed, or braced for the worst does not present well on the stand, whatever the underlying facts are. Naming that in advance — who will be there, what the judge is actually deciding that day, that anger or tears will not be held against them — tends to produce a calmer, more credible witness than legal briefing alone.
22.2 Meeting with the Child Client
Meet the child before every significant hearing, in a setting that fits the child’s age, and treat that meeting as an ongoing relationship rather than a box to check. A young child needs concrete, simple language and explicit permission to say “I don’t know” rather than guess at what the adult wants to hear. A school-age child can usually track a straightforward explanation of what is about to happen but still needs it repeated in different words if the first version does not land. A teenager needs to be treated as a source of information about their own life — not just a subject of the hearing — and will generally know when they are being managed rather than heard.
Ask what the child wants, and be ready to tell the court plainly when that wish diverges from the child’s best interests — or to step out of the GAL role if you cannot hold both jobs honestly. Explain, in words the child can use, what is going to happen at the hearing, who will be in the room, and what the child’s own role is. A child who has never been told what a judge does, or why the same questions keep coming up, is not being given a real chance to participate, however many times someone has technically “checked in” with them.
Ask about school, friends, and what an ordinary week looks like, not only about the allegations that brought the case to court. A child’s own account of stability, routine, and relationships is often the most useful evidence in the record, and it rarely surfaces if the only questions asked are about the worst day of their life.
22.3 The Child’s Voice in the Courtroom
A child old enough to have an opinion generally benefits from knowing the court wants to hear it, even on the days the court does not ultimately follow it. Whether and how a child attends, or addresses the court directly, is an individual judgment — weigh the child’s own wishes, age, and the likely emotional cost of the setting against what is gained by being heard in person. When a child does not attend, make sure the court still receives that child’s perspective through counsel, the GAL, or CASA, rather than letting the record go silent on what the child actually thinks.
22.4 Older Youth and the Transition to Adulthood
Older youth need a different conversation entirely: documents, housing, school, and whether they intend to sign into extended care at eighteen. Start that conversation well before the birthday, not at the last review beforehand — a rushed decision made under deadline pressure is a worse decision. Ask what the youth actually wants, whether that is a specific school, a job path, or simply staying connected to a sibling or relative, and build the transition plan around that answer instead of a generic checklist handed to every young person who ages toward the door.
Practice Tip
Ask open questions, not leading ones, and let silence sit rather than rushing to fill it. A child who feels hurried or corrected will often just agree with whatever is suggested to them, which is the opposite of what you need in the room. If a topic is clearly distressing, it is fine to set it aside and come back to it later in the same meeting, or at the next one — the goal is an accurate account, not a complete one extracted in a single sitting.
Hearing-Practice Note
A parent or child who understands what is happening, and why, participates differently than one simply told where to sit and when to talk. Time spent explaining the process in plain language before a hearing is rarely wasted — it tends to produce calmer testimony, fewer surprises, and a client who trusts the lawyer enough to disclose the facts that actually matter.
23. Cross-Examination of the Caseworker and Other Witnesses
Before the questions, a word about mindset, because it matters more here than the technique. Cross-examination is one of the most valuable tools the legal system has for drawing information out of a witness, but in a dependency case it is rarely the courtroom-drama exercise new lawyers imagine. Most of the time you are not trying to trap the caseworker or other witnesses who might testify. You are trying to get clarification, and to draw out the facts that help your client. The caseworker is usually not hiding anything; often the worker simply is not aware of a fact, or something did not make it into the report. Your job is to surface it.
That starts with comparing the court report or permanency report against what the caseworker actually says on the stand. Where the testimony and the document line up, you have confirmed your record. Where they diverge, ask about the discrepancy and give the witness room to clear it up. You will usually learn something either way.
It also helps to remember that the caseworker – when cross-examined by a parent attorney - is an unusual kind of adverse witness. The Department brings the case and is, in a real sense, the parent's opponent, but the Department also has a duty to work with the parent to resolve the very conditions that brought the child into care, and it has its own interest in showing the court that it made reasonable efforts. The practical consequence is that the same witness who is adverse to your client is also someone your client has to keep working with after the hearing ends. That is why, in the ordinary case, going on the attack is the wrong instinct. A hostile witness stops volunteering the helpful information you could have simply asked for. Clients often think aggression looks like strong advocacy; more often it is counterproductive.
Use cross, then, to find the logjam. When a required service has not happened — a psychological evaluation not completed, counseling sessions or visits missed — the useful question is why. Was the parent noncompliant, or was there a transportation problem, and if so, did the parent tell the Department about it? Was the holdup on the agency's side, waiting on approval for a service the case plan requires? Georgia case plans often depend on services that must be approved through the state office, and delay there is common for service requests that are not routine. So when a worker testifies that an evaluation has not happened because they are still waiting on approval, follow it: When was the request submitted? Where is it stuck? When is it expected to clear? You are diagnosing where the case actually broke down, and putting that answer on the record.
There is a line, though, and you should know when you have crossed to the other side of it. The default is clarification. The exception is when the Department goes into defense mode and tries to pin a failure on the parent that is not the parent's fault — because an inaccurate finding of noncompliance has real consequences for your client. When that happens, ask pointed questions and press as hard as the facts require. Even then, the point is to protect the record, not to humiliate the worker. And keep the inquiry honest in both directions: sometimes a delay is nobody's fault — the assigned counselor had a death in the family and was out for three weeks — and the clarifying question exists precisely to let that truth come out, wherever it lands.
The right tone also depends on the hearing. At adjudication the court is making findings, so you represent your client zealously; note too that the witness for DFCS there is often a different caseworker entirely, because the investigator who handled the removal is usually not the reunification worker who carries the case afterward, and the ongoing working relationship that counsels restraint at later hearings may barely be in play for parent attorneys. On the other hand, parents will rare differentiate between people with different roles within DFCS. A SAAG who is able to prove the case without unnecessarily antagonizing a parent can play a large role in improving the working relationship between the parent and the reunification case worker after the adjudication has ended. As in trial practice in other courts, attorneys must make judgment calls about the tone taken at trial and attorneys have wide latitude in the conduct of examinations, subject to the limits set forth in O.C.G.A. § 24-6-611 (a).1
At review and permanency hearings, that working relationship is very much in play, and it is also the best opportunity for all parties to get a clear picture of the case. Everyone is in the room at once — the parents, the caseworker, the Department's supervisor, the SAAG, and counsel for the parents — which makes those hearings the place to work out the transportation, communication, and approval logjams that have stalled the case. At a termination hearing, preserving the working relationship is no longer the point, but even there, scorched earth rarely serves the client better than disciplined, specific questioning.
A word on talking to the caseworker outside the courtroom. Because the Department is represented by the SAAG, the anti-contact rule in Georgia Rule of Professional Conduct 4.2 is in play, but it does not sweep as broadly as attorneys sometimes assume. When the represented party is an organization, the rule reaches only certain of its people: those with managerial responsibility, those who supervise, direct, or regularly consult with the organization's lawyer about the matter or can bind the Department on it, and — most relevant here — anyone whose act or omission in the case may be imputed to the Department. A caseworker's conduct in the case, what services were offered and whether reasonable efforts were made, is exactly the kind of act or omission imputed to the Department. On those contested, substantive questions, treat the caseworker as a represented constituent and route the communication through the SAAG.
That does not shut down the day-to-day working relationship, and it is not meant to. The rule does not reach communications about matters outside the representation, and routine case coordination — scheduling a visit, checking on the status of a referral, sorting out transportation or paperwork — is not the substantive contact the rule guards against. The practical line is between logistics, which you can handle directly, and disputed matters going to the merits of the case, which belong with counsel. When in doubt, the safe course is a quick email to the SAAG rather than a call to the caseworker, and either way, do not use the contact to extract admissions the SAAG would object to.
CAUTION
Whatever your role — parent's counsel, child's attorney, or guardian ad litem — the responsibility to stay within the Rules of Professional Conduct when you communicate with any DFCS worker is yours, and it does not go away because the contact feels routine or friendly. The lines above are a practical guide, not a substitute for the rules themselves. Before you reach out to a caseworker, supervisor, or anyone else on the Department's side about anything touching the merits of the case, satisfy yourself that the contact is permitted, and when you are not sure, treat the SAAG as the proper channel and confirm rather than assume.
With that framing in mind, the tactics below give you the questions and the structure to carry it out.
The caseworker is usually the only live witness who can turn a court report into proof. Cross should separate what the worker saw from what someone else said; what was offered from what was available; and what was “reasonable” from what was documented.
Did you speak with the named relative before placing the child in non-relative care?
Have you walked through that relative’s home?
Other than the removal night, what first-hand observations do you have of this parent supervising this child?
On what date did you send the treatment referral, and what is the documented wait time?
Which safety incident since adjudication justifies the current supervision level?
What preventive service was actually offered before the removal, on what date, and what was the result?
What inquiry did you make into possible Indian heritage for this family, and when?
How many family-time visits has this parent had since the last hearing, how many were cancelled or shortened, and why?
Which relatives did you ask this family about, and which of those relatives did you actually contact?
Are the siblings placed together? If not, what would it take to change that?
What has changed about this family's circumstances since the last hearing that is not yet in front of the court?
Walking the Six Factors
A cross built around the six reasonable-efforts factors forces the witness to answer in the court's own vocabulary, not the agency's:
Relevant — What was this referral supposed to fix, and how does it connect to the reason this child came into care?
Adequate — Was the level of service (once a week, once a month, group setting, individual) actually matched to the severity of the problem, or just to what was available?
Culturally and linguistically appropriate — Did this family need services in a language other than English, or from a provider who understood their community, and did they get that?
Available and accessible — Did the family have transportation, childcare, or a work schedule that made the appointment realistic to keep?
Consistent and timely — Was the referral made promptly, and was there follow-up when the family missed a session, or did the file go quiet?
Realistic — Given this family's actual circumstances, was completing this task in this time frame something a reasonable person in their position could do?
Practice Tip
Ask foundational questions before challenge questions. Get the worker to agree on the record what the report says, what the worker personally observed versus what the worker was told, and when each event happened. Only then move to the questions that expose the gap between the report's conclusions and its documented support.
24. Family Time, Relative Search, and Substance Use
These three topics show up in almost every case on the docket, and they are also where the record most often goes thin — not because the law is unclear, but because the same finding gets carried forward hearing after hearing without anyone asking whether it still fits. A visitation schedule set at removal, a relative search marked “in progress” for six months, a substance-abuse referral nobody followed up on: none of these are dramatic failures. They are just habits. This chapter is about catching them before the next hearing does.
24.1 Family Time
Family time should be frequent, as unsupervised as safety allows, and written into the order with transportation assigned. Sibling time is not an afterthought. Supervision is a safety tool, not a default setting. Whoever supervises should be someone who can later be examined about it — do not let a GAL or CASA volunteer end up as the sole observer of family time, for the reasons discussed in § 5.3. When the child is removed, the court shall order reasonable visitation consistent with age and developmental needs if visitation is in the child’s best interests. The order shall state frequency, duration, and whether it is supervised. There is a presumption that visitation is unsupervised unless the court finds that unsupervised visitation is not in the child’s best interests. Write that finding. An order that simply says “supervised by DFCS” with no best-interest finding is vacated. Incarceration may require some supervision; it does not skip the sentence. One child’s health problem does not automatically rebut the presumption as to a sibling. In the Interest of S.H., 376 Ga. App. 652 (2025), a two-year-old who needed a nebulizer after outdoor visits did not defeat unsupervised time for an eleven-year-old who asked for it. Vacated and remanded. Within thirty days of a finding of lack of substantial case-plan progress, review the visitation terms. At the 75-day review, decide whether visitation is appropriate and set a schedule.
Frequency is not the only measure. Coach the parent on what to do during a visit — feed the child, help with homework, handle a tantrum — rather than treating the hour as supervised babysitting. The setting matters too: a home, a park, or a relative's living room reads very differently to a child than a windowless agency room, and a setting closer to ordinary family life is worth asking for when safety allows.
Transportation and scheduling are often the real barrier to consistent family time, not the parent's motivation. If the parent has no car and the visit site is across the county on a weekday afternoon, that is a service the plan has to solve, not a fact to hold against the parent when visits are missed.
Caution
A “temporary” reduced or supervised schedule has a way of becoming the permanent schedule once nobody revisits it. Ask the court to set a specific trigger and date for increasing family time, rather than leaving it to “as recommended by the caseworker” with no review point.
Practice Tip
If there are disputes about visitation – attendance or conduct by parties at the visit - request the actual visitation log, not the caseworker's summary of it. Which visits happened, which were cancelled, who cancelled them, and why, often tells the real story better than a paragraph in a court report.
24.2 Relative Search and Kinship Placement
The diligent-search duty, the 30-day filing, and the review update are covered in § 6.3. Do not wait for DFCS to invent the family tree. Put names on the record at the PPH. Ask who was called, who was noticed, and who was ruled out at every review. A voicemail that says “there is an aunt somewhere” is not a missed lead. There is no published current-Code opinion that reverses a dependency order solely because the 30-day filing is late. File it anyway. Permanency reasonable efforts use it.
A relative search is not a box checked once at removal. New relatives surface throughout the case — through the parent, through other relatives, through the child — and each one deserves a real look, not a note in the file that nothing came of it. Ask at every hearing who has been identified since the last one and what happened with that lead.
A relative home is not a lesser placement to be tolerated only until something better comes along. A home that is imperfect but safe, and that keeps the child connected to school, siblings, and a familiar community, is frequently the better outcome compared to a stranger placement that scores better on a checklist but costs the child everything else that was stable in their life.
Hearing-Practice Note
The standard for a relative placement is safety and suitability, not a duplicate of every requirement built for an unrelated licensed foster home. If a relative was ruled out, find out exactly why — a fixable issue like a bedroom short of code, or paperwork not yet finished, is different from a genuine safety concern, and the difference should be on the record before the placement decision is treated as final.
24.3 Substance Use
Substance use is often the engine of the case and rarely the whole case. Screens, treatment, and housing have to be proved with dates. A negative hair follicle and a valid prescription can defeat a “chronic unrehabilitated” narrative. Family Treatment Court, where it exists, is a tool, not a sentence.
A screen and a clinical assessment are different things. A positive screen identifies a marker, not a diagnosis, and it does not by itself dictate a course of treatment. Match the referral to what an actual assessment recommends for this parent and this substance, rather than a generic program everyone in the courthouse gets sent to.
Relapse during treatment is common and, standing alone, does not prove that reunification has failed. The more useful question is what the treatment plan does when a relapse happens — whether there is a response built in, or whether one setback restarts the clock on everything the parent has already accomplished.
Practice Tip
If there is a dispute between a parent and DFCS as to the parent’s engagement in treatment, get the treatment provider's actual progress or discharge notes, not just a one-line “successfully completed” or “unsuccessfully terminate” from the caseworker. Ask what completion required, how attendance was measured, and whether the provider's own recommendation was for continued care.
25. The Indian Child Welfare Act (ICWA)
ICWA is not a special-topics footnote you clear at the first hearing and move past. When it applies, it changes the standard of proof, who has to testify, what counts as an adequate effort, and who gets first call on placement — and it stays changed for the life of the case. The lawyers who get burned here are not the ones who ignore ICWA outright. They are the ones who ask the question once, check the box, and never come back to it as the case develops and new family members walk in the door.
25.1 Why It Exists
Congress passed ICWA in 1978 after decades of documented practice in which Indian children were removed from their families and placed outside their communities at rates dramatically higher than other children — often for reasons that reflected a mismatch between mainstream and tribal norms of child-rearing rather than any real safety concern.1 The statute starts from a premise most of the rest of dependency law does not share: a tribe has its own interest in its children, separate from the parents’ interest and separate from the state’s interest. Losing a child is a loss to the tribe as a political community, not only to the family. That is why ICWA’s protections run deeper than an ordinary procedural safeguard and do not evaporate just because a parent has stopped showing up to court.
25.2 Georgia’s Own Hook Into ICWA
This is not just federal law floating alongside the Georgia Code. Georgia’s dependency article and its termination article each say directly that a proceeding is not governed by that article to the extent ICWA governs it instead, and that compliance with federal law is required in that circumstance.2
That cross-reference appears twice — once for dependency proceedings, once for termination — which means there is no point in the case where a Georgia court can treat ICWA as somebody else’s problem.3 Cite the Georgia provision alongside the federal statute in any filing that raises the issue — it forecloses the argument that ICWA is a federal overlay a state court can politely decline to engage with.
25.3 Who Is an Indian Child, and When to Ask
ICWA turns on political status, not ancestry, and getting that backwards is the most common way the analysis goes wrong at the front of a case. An Indian child is a defined term: an unmarried person under eighteen who is either a member of a federally recognized tribe, or eligible for membership in one and the biological child of a member. 4 Two things follow. The tribe has to be federally recognized, so recognition by a state does not bring the Act into play. And membership is what counts, not descent. A family with Cherokee ancestry going back generations, none of them enrolled, does not put the case under ICWA. A child enrolled in a tribe based in Oklahoma or North Carolina does, whatever the family’s connection to Georgia looks like.
The federal regulations also foreclose several things that have historically been used to answer the question the wrong way. In deciding whether ICWA applies, a court may not weigh blood quantum, whether the parents or the child took part in tribal cultural, social, religious, or political life, the quality of the relationship between the child and the parents, or whether the parent ever had custody. 5 And the answer is not the court’s to supply. Whether a child is a member, or is eligible for membership, is for the tribe to determine. 6
What starts the machinery is a low threshold called reason to know, and the regulations spell out what supplies it. Any participant, an officer of the court, a tribe, an Indian organization, or an agency tells the court the child is an Indian child, or reports having found information indicating as much; the child gives the court reason to know; the court learns that the child, a parent, or an Indian custodian lives or is domiciled on a reservation or in an Alaska Native village; the court learns the child is or has been a ward of a tribal court; or either parent or the child has a tribal identification card. 7 Any one of those is enough. None of them requires anybody to be certain.
When there is reason to know but not yet enough to decide, the case does not pause and the ordinary standards do not apply in the meantime. The court has to confirm on the record that the agency or another party used due diligence to identify and work with every tribe the child may belong to, and until the record establishes that the child is not an Indian child, the child is treated as one. 8 That default is the whole point of the provision: the heightened standards run while the question is open, not from the day it is finally answered.
Ask every parent, every custodian, and every relative who appears in the case whether the child may be a member of, or eligible for membership in, a federally recognized tribe. The bar to trigger further inquiry is low by design — a family story, an old enrollment card, a relative’s offhand comment is enough. The first person you ask is not always the person who actually knows the answer, so ask again every time someone new enters the case, not just at the first hearing.
How you ask matters as much as whether you ask. A single question buried in a stack of other advisements at the PPH is easy to miss, particularly for a family in crisis on the worst day of their lives. Pull it out, explain briefly why it matters, and document who was asked and when — not just the answer.
25.4 Active Efforts, Not Relabeled Reasonable Efforts
Once a child is identified as a member or eligible for membership, active efforts displaces ordinary reasonable efforts, and the gap between the two standards is real.9 Active efforts means affirmative, thorough, and documented work to prevent the family from breaking up — engaging extended family, involving the tribe in case planning where the tribe wants to participate, and using services that fit the family’s culture rather than whatever program happens to be closest to the courthouse. A generic referral list with “active efforts” typed at the top is not active efforts. It is the same file with a different heading.
This standard does not wait politely for a tribe to formally respond before it kicks in. If there is reason to know the child is an Indian child, treat the higher standard as live from that point forward, even during an emergency removal before the tribe has been reached. Explaining at the next hearing what was done to prevent removal, measured against active efforts rather than the ordinary standard, is a very different conversation than explaining it for the first time months later.
25.5 Qualified Expert Witness Testimony
Foster-care placement and termination decisions involving an Indian child require testimony from a qualified expert witness before the court can order either one.10 That witness has to bring knowledge of the prevailing social and cultural standards of the child’s tribe — a caseworker’s general child-welfare credentials, without more, do not fill that role. Identify and secure the witness early. A hearing continued at the last minute because nobody lined up a qualified expert is a delay that lands on the child, not a minor scheduling hiccup.
The standards of proof are higher here too: clear and convincing evidence, supported by qualified expert testimony, for a foster-care placement,11 and proof beyond a reasonable doubt, also supported by qualified expert testimony, for termination.12 Build the record toward that from the start of the case rather than scrambling once a termination filing starts to look likely.
25.6 Placement Preferences
Absent good cause to the contrary, placement preference runs first to the child’s extended family, then to other members of the child’s tribe, then to other Indian families — with a parallel, similarly ordered preference scheme for adoptive placements.13 A tribe may set a different order of preference for its own children, and that tribal order controls over the default. Good cause to depart from the preferences has to be established on the record. “The other placement was already arranged and this one would take more work” is not good cause — it is exactly the kind of convenience-driven shortcut the preferences exist to prevent.
25.7 Tribal Notice and the Right to Intervene
Once there is reason to know the child is an Indian child, formal notice goes to the parent or custodian and to the child’s tribe — or to the Bureau of Indian Affairs if the tribe cannot be determined — with enough lead time before the hearing for a meaningful response.14 The tribe can intervene at any point in the proceeding, not only at the outset, and a tribe that shows up midstream is not showing up too late.15 Treat tribal counsel and tribal representatives the way you would treat any other party with a genuine stake in the outcome, because that is exactly the position ICWA puts them in.
25.8 Transfer to Tribal Court
A parent, an Indian custodian, or the child’s tribe may ask that the case be transferred to tribal court, and the presumption runs in favor of granting that request absent good cause, an objection from either parent, or a tribal court that declines the transfer itself.16 “Good cause” is not a synonym for the state court’s general preference to keep the case — it requires an actual, articulable reason on the record, and the case having already been pending in state court for a while is not, by itself, that reason.
25.9 One Tribe Is Not Every Tribe
Treat each tribe as its own sovereign with its own rules, not as an interchangeable category. Membership criteria, preferred placement order, the tribe’s own point of contact, and even what “active efforts” looks like in practice can vary meaningfully from one tribe to the next. A service plan built around what worked in a different ICWA case, for a different tribe, is not a shortcut — it is a guess dressed up as compliance. When in doubt, ask the tribe directly rather than assuming.
Caution
An inquiry made once at the preliminary protective hearing and never revisited is not compliance. Ask the question again whenever a new relative appears or new family history surfaces, and put the answer on the record each time — not just the first time. The same goes for active efforts: a finding entered at disposition does not carry itself forward if the services actually delivered never changed to match the standard.
Hearing-Practice Note
Cultural humility is not a soft skill on the side of the legal analysis — in an ICWA case, it is the legal analysis. A tribe’s view of what serves this child’s best interests may differ from the professionals’ default assumptions, and ICWA gives that tribal perspective real legal weight, not just a courtesy hearing. Build the relationship with tribal representatives before you need something from them, not in the middle of a contested hearing.
Practice Tip
Build an ICWA timeline into the case file from day one: date of inquiry, who was asked, date notice was sent (if triggered), date of the tribe’s response, name and qualifications of the identified expert witness, and the specific active efforts provided with dates. A case where that timeline exists is a case that survives appellate review. A case where it has to be reconstructed after the fact usually does not.
26. Termination of Parental Rights — Cross-Reference
Termination of Parental Rights (followed by adoption) is a permanency option under the Juvenile Code. When appropriate and when the high burden by law is met, a petition to terminate parental rights can conclude with an order severing the rights of parents to their children, freeing them to be adopted with relative expedition. Because of the severe consequences of such order, termination cases are sometimes referred to as the domestic civil equivalent of a death penalty case in the criminal context. If granted and upheld on appeal, a parent whose rights are terminate no longer has the right to seek reunification, have input on placement decisions, or participate as a party in further proceedings related to the child. For this reason all counsel – whether a movant SAAG, a parent attorney, or the child’s CAA or GAL – must prepare with utmost diligence for the trial of the case.
26.1 Grounds and Harm
TPR is a separate proceeding from the dependency case, with its own standard and its own findings. The court must first find a statutory ground by clear and convincing evidence which authorizes termination, then the court must determine if termination is in the child’s best interests.1 Under subsection (a)(5) – the most commonly used ground - the State (or moving party if filed by someone other than DFCS) must prove a dependent child due to lack of proper parental care or control; that reasonable efforts to resolve dependency was unsuccessful or excused by statutory exception; that the cause is likely to continue; and the likelihood of serious harm will occur if the child returns or if the relationship continues. Likelihood of continued dependency is not automatically harm.2 Put affirmatively, the State has to show harm from both of the options short of termination — leaving the child in foster care and returning the child to the parent — and proof as to only one of them does not carry the ground.3 Harm is child-by-child. A sibling’s situation does not prove this child’s harm.4 A TPR order shall contain written findings of the factual basis for the ground and for best interests.5 Sufficiency reversals are about continued dependency and harm, not a missed 15-month checkbox.6
26.2 Unappealed and Stipulated Dependency Orders
An unappealed dependency order — including a stipulated or consent adjudication — is binding in the later TPR case on the fact that the child was dependent at that time. It does not prove that the cause is likely to continue or that return will cause serious harm. A stipulation also does not waive subject-matter jurisdiction. In the Interest of D.H., the mother had stipulated dependency in Alabama and still attacked Alabama’s jurisdiction in Georgia.7
26.3 The 15-of-22 Filing Duty
DFCS’s duty to file once a child has been in care 15 of the most recent 22 months is O.C.G.A. § 15-11-233, not § 15-11-203 and not § 15-11-232. Except as provided in subsection (b), DFCS shall file a TPR petition — or join one — and concurrently recruit an adoptive family if a dependent child has been in foster care under DFCS responsibility for 15 of the most recent 22 months. The clock is a floor, not a ceiling. DFCS may file earlier.8 Subsection (b) excuses the filing when TPR may not be in the child’s best interests: a kinship caregiver is providing a permanent home and removal would be detrimental; the case plan documents a compelling reason not to file; or DFCS has not given the family the services needed for a safe return on the plan’s time frames. At least 30 days before month 15, the court shall review a DFCS decision not to file. The court may appoint a GAL who may file.9 There is no published opinion that reverses a dependency or permanency order solely because the compelling-reason paragraph is missing. Write it. Count the months.
26.4 Putative Fathers
A biological father who is not the legal father is not automatically a party in the same way a legal father is. On a TPR petition that seeks to cut his rights, attach a putative-father-registry certificate covering registrants who acknowledged paternity or indicated possible paternity for a period beginning no more than two years before the child’s birth. Search on or before the filing date. Serve a summons on a registrant in that window unless he has surrendered. The notice shall tell him he loses all rights and cannot object unless, within thirty days of receipt, he files a legitimation petition and files notice of that petition in the TPR case. Note what changed in 2014: under the former Code a putative father who did not legitimate lost standing outright and termination of his rights was mandatory, so trial counsel’s failure to file the petition was prejudicial almost by definition. O.C.G.A. § 15-11-283(b) replaced that with judicial discretion, and the Court of Appeals has since held that a father who was permitted to object, was appointed counsel, received a full hearing, and got a detailed order was not prejudiced by counsel’s failure. File it anyway — the amendment removed an automatic reversal, not the reason to do the work. Publication, after diligence, and no hearing earlier than thirty-one days after last publication. If he is served and does not legitimate, the abbreviated path is available. If the abbreviated notice was not given, that path is closed. Termination can still rest on the ordinary misconduct ground; missing notice was treated as harmless there. A legal father who is not the biological father must be named and served in a legitimation. Naming him is not the same as displacing him — on the limits of the juvenile court’s authority over an existing legal father in a legitimation, see § 4.2.
26.5 Reinstatement of Parental Rights for a Youth Who Ages Without Adoption
Termination is supposed to open the door to a permanent family, not leave a child legally parentless indefinitely. When adoption does not happen — and for older youth in particular, it often does not — Georgia gives a path back. A child for whom adoption is no longer the permanent plan may petition to reinstate parental rights after three years from the termination or surrender, or sooner if DFCS or the licensed child-placing agency and the child agree adoption is no longer likely.
A child fourteen or older signs the petition personally absent good cause why they cannot. This is not a technicality buried in the back of the Code — it is a real permanency option for a youth who has spent years without a legal family, and it belongs in the same conversation as extended care and APPLA when a case heads toward aging out rather than adoption. Raise it before the youth turns eighteen if reinstatement is realistic, not after the file has already closed.
26.6 The Caregiver's Voice Does Not End at Termination
After termination, at disposition and at any later placement review, the court has to consider testimony from a foster parent, relative, or other caregiver who has had physical custody of the child for at least twelve months ending within ninety days before the TPR petition was filed, if that caregiver wants to adopt. That testimony can go to attachment and bonding, the child’s health and well-being, and anything else relevant to where the child ends up. A caregiver who has actually raised this child through the case is not a bystander to the disposition that follows termination — the Code gives them a voice in it, and that voice belongs on the record.
Practice Tip
A termination petition is typically filed only when a viable plan for adoption exists. In some cases, that plan gets derailed by a disruption in the placement or health changes or the death of adoptive resources. It is often difficult to find new adoptive resources for older children – though efforts should never end before the child’s 18th birth day – so a permanency plan of APPLA may be instated.
If a youth is approaching eighteen with no adoption in sight, consider whether reinstatement of parental rights is on the table before defaulting to APPLA as the only remaining option. In some cases, parents’ circumstances may improve after termination. A child who “ages out” of foster care could benefit significantly from extended youth care services, but many young people are unwilling to participate and often seek out their birth parents when they turn 18. If a plan for adoption has fallen through with no other viable options available, it may be worth considering the parents again.
26.7 Cases in Point
The following case summaries illustrate some of the points made throughout this chapter. As always, be sure to read the full opinion before relying on one, and check whether it has since been limited or overruled.
In the Interest of A.B.10
Facts. The juvenile court terminated the mother’s rights to three children. As to two of the children, the court found they would be harmed if returned to the mother’s care or left in foster care indefinitely. As to the third, the State presented no evidence addressing harm to that child specifically, and the juvenile court’s order made no factual or legal findings on the point.
Holding. Affirmed in part, vacated and remanded in part. Harm is child-by-child, not family-wide — a finding of harm as to two children does not carry over to the third without its own evidentiary basis and its own findings. The mother’s separate constitutional-rights argument failed for a different reason: she never raised it before the juvenile court, so there was no ruling to review on appeal.
In the Interest of E.M.D.11
Facts. The juvenile court found the mother’s dependency was likely to continue and terminated her rights on that basis. The children had positive interactions with their mother during visits and were happy to see her. They were not performing poorly in school and showed no severe age-inappropriate behavioral difficulties.
Holding. Reversed. Continuing dependency is only half the statutory ground — the State still has to show that failing to terminate would cause or was likely to cause the children serious physical, mental, emotional, or moral harm. Uncertainty and the general impermanence of foster care are not, standing alone, that harm. Without specific evidence tied to these children’s emotional state, the record did not support the harm finding.
Note that EMD was based upon an early version of O.C.G.A. § 15-11-310 (a)(5). The current version includes a notable change to the subsection, and EMD should be considered with that legislative change in mind:
Version effective January 1, 2014 – June 30, 2018:
(5) A child is a dependent child due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied, and the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child.
Current version:
(5) A child is a dependent child due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied in the reasonably foreseeable future, and:
(A) Returning such child to his or her parent is likely to cause serious physical, mental, moral, or emotional harm to such child or threaten the physical safety or well-being of such child; or
(B) Continuation of the parent and child relationship will cause or is likely to cause serious physical, mental, moral, or emotional harm to such child.
In the Interest of D.W.12
Facts. The juvenile court’s termination order referenced the children’s history of dependency and reflected what the Court of Appeals called careful consideration, but it did not contain specific factual findings explaining why the dependency was likely to continue.
Holding. Vacated and remanded. An order that is thoughtful in tone is not the same as an order that is sufficient in substance. Without specific findings tying the conclusion to the evidence, the Court of Appeals could not conduct meaningful appellate review. As noted throughout this handbook, it’s vital that juvenile court orders contain specific findings of fact and conclusions of law. Counsel should request such findings and judges must include them in the written order.
In the Interest of H.A.S.13
Facts. The child lived with his father for nearly his entire life before the father’s arrest. During the roughly fifteen months between DFCS placement and the termination hearing, the father completed a prison substance-abuse treatment program required for regaining custody, finished two levels of parenting classes, and wrote letters to the child — letters DFCS never delivered.
Holding. Reversed. Incarceration alone is not abandonment, and a parent’s efforts inside a prison’s limited options still count as efforts. The father’s conduct reflected an intent to stay connected to his child, not to abandon him — and DFCS’s own failure to deliver his letters could not be turned into evidence against him.
In the Interest of N.E.K.14
Facts. Both parents were incarcerated for at least part of the case. The mother could not attend in-person visits or fully complete her case plan from prison, but she engaged with the assessments available to her, and her communication with the child continued through the maternal grandparents. The father completed his required assessments, did not pay child support directly to DFCS but routed payments and gifts through the maternal grandmother, and kept up regular video visits with the child.
Holding. Reversed as to both parents. The Court of Appeals credited effort measured against what incarceration actually allowed, not against what a parent outside custody could have done. Indirect support channeled through relatives and consistent video contact were affirmative evidence against abandonment, not merely the absence of aggravating facts.
In the Interest of J.D.H.15
Facts. After the juvenile court terminated his parental rights, the father moved for a new trial, challenging the sufficiency of the evidence, and asked for a hearing on the motion. The juvenile court denied the motion a week later without holding one.
Holding. Reversed. Absent some indication in the record that the father waived his right to be heard, a request for a hearing on a motion for new trial in a termination case is not optional for the court to grant — the entitlement is unequivocal. A denial without a hearing, on this record, could not stand.
27. Preserving Issues for Appeal
An appeal is won or lost mostly in the trial court, long before anyone files a notice of anything. A record with no ruling on the objection, no transcript designated, no written findings tying the evidence to the statute — that record cannot be rescued on appeal no matter how good the brief is. This chapter is about building the record you will wish you had, in the moment you still have the chance to build it — and then about getting the appeal itself onto the right track, because in this area a wrong guess about which appellate track you are on can cost a client the appeal entirely.
27.1 Preserve the Record at Trial
Juvenile proceedings are just like any other court proceeding and good trial practice is necessary to preserve issues for appeal. Object. Get a ruling. Make sure the order contains the findings the Code requires. Reciting statutory factors without stating the facts proved is not enough.
Practice Tip
A general objection preserves nothing. State the specific ground — hearsay, no foundation, no best-interests finding — and get an actual ruling on it. A judge who says “noted” without ruling has not ruled; ask directly whether the objection is sustained or overruled.
27.2 What the Court of Appeals Has Emphasized
An adjudication order with no parental-unfitness finding, or that fails to identify which facts support dependency, will be vacated and remanded.1 An appeal from an order relieving DFCS of reunification may also bring up earlier review orders that were not separately appealed.2 If you intend to challenge the sufficiency of the evidence, designate the transcript — the parent who omits it will not be heard to question the juvenile court’s findings.3 Custody orders entered in a dependency case, including temporary ones, are directly appealable; awarding custody to a parent and relieving DFCS can turn the case into a private dependency action.4 Look at the written order, not the oral ruling.5 Do not rely on facts that never came into evidence.6
Know which outcome you are actually asking for. Where an order simply lacks the findings of fact and conclusions of law the Code requires, the normal remedy is to vacate and remand for the juvenile court to redo the order properly — the underlying evidence might still support dependency once the court states it correctly. But where the real problem is that the record itself does not support the finding — no evidence of present, as opposed to past or potential, dependency — the form of the order is not the issue. If the evidence does not support the findings of fact or the conclusions of law, the remedy would be outright reversal.7
27.3 Know Which Appellate Track You Are On
Not every order in a dependency case reaches the Court of Appeals the same way, and guessing wrong is not a mistake you get to fix once the deadline has run. Before you calendar anything, work out which of these tracks applies to the order in front of you.
Which appellate court — Court of Appeals, not Supreme Court. A custody controversy involving a dependent child, including a proceeding to terminate parental rights, is not treated as a habeas-type custody case, so it does not go to the Supreme Court; appellate jurisdiction lies in the Court of Appeals.8
Direct appeal — the default for dependency custody orders (not TPR — see below). Custody orders entered in a dependency proceeding, including temporary or interlocutory ones, are treated as final judgments and are directly appealable under O.C.G.A. § 5-6-34(a)(1) and (a)(11). Because visitation is treated as part of custody, a temporary order restricting a parent’s contact with the child is directly appealable on the same theory, and a party may challenge the propriety of earlier, unappealed orders in the course of a timely direct appeal from a later order in the same dependency proceeding — even if the enumerated errors relate only to the earlier order.9 A request to change custody within a pending dependency case does not, by itself, convert the proceeding into an ordinary custody-modification action — it remains a dependency proceeding, and the dependency-proceeding statutes, findings requirements included, still govern.
TPR orders — discretionary application, not direct appeal.
This is very important:
A final order terminating parental rights must be appealed by discretionary application under O.C.G.A. § 5-6-35(a)(12), not by direct appeal.
This has not always been the rule: before the General Assembly added TPR orders to § 5-6-35(a) in 2007 (effective for proceedings filed on or after January 1, 2008), a TPR order was directly appealable under § 5-6-34(a)(1), which is why some older cases — including In the Interest of T.A.M. — were decided under a regime that no longer applies. Do not rely on a pre-2008 TPR appeal case for the procedural route without checking its date first.10
The discretionary-application requirement for TPR has been challenged and upheld. The Supreme Court of Georgia rejected a due-process challenge, holding that due process does not require a State to provide appellate review at all, even in a termination case, so long as a full and fair trial on the merits was provided, and the Court of Appeals has followed that holding directly.11 The Supreme Court separately rejected an equal-protection challenge, reasoning that a parent facing termination is not similarly situated to a parent facing a mere custody interruption, and that the State has a legitimate interest in not letting a dependent child languish in temporary care while a full appeal plays out.12 That same case holds that a constitutional challenge to an appellate-procedure statute like § 5-6-35(a)(12) may be raised for the first time on appeal, as an exception to the usual rule that constitutional challenges must be raised and ruled on below — but keep the exception narrow: it covers a genuine challenge to the constitutionality of the appellate-procedure statute itself, not any constitutional complaint that happens to touch appellate procedure.
This is not a technicality to treat casually, and the consequence of missing it is worse than simply losing the appeal. In one case, a mother’s trial counsel wrongly told her she had no right to appointed counsel for a TPR appeal; acting pro se, she filed a direct notice of appeal instead of a timely discretionary application, and it was dismissed. The Court of Appeals granted her an out-of-time discretionary review and affirmed the termination on the merits — but the Supreme Court vacated that decision, holding the Court of Appeals had no jurisdiction to do any of that once the application was untimely.13 The fix is not to go back to the Court of Appeals — it is to go back to the juvenile court, which must decide, applying the Lassiter v. Department of Social Services and Mathews v. Eldridge balancing test, whether this particular parent had a due-process right to appointed appellate counsel in the first place; only if so does the court reach whether that right was violated and whether an out-of-time application is the remedy. Skip that step, or take the request to the wrong court, and there is nothing for any appellate court to review.
Practice Tip
Calendar a TPR appeal deadline as a discretionary application under O.C.G.A. § 5-6-35(d) — 30 days from entry of the order (or from the order disposing of a timely motion for new trial) — not as a direct notice of appeal. If the case also involves a dependency custody order or a legitimation ruling from the same proceeding, work out separately whether that piece is directly appealable on its own track; do not assume the TPR order’s procedure controls everything else in the case, or vice versa.
As always, review the Code and the rules of appellate court any time you seek appellate review.
Interlocutory appeal — when the order leaves something undone. An order is not final, and direct appeal is not available, if it leaves further action for the trial court — for example, an order that terminates a temporary guardianship but still requires the court to appoint a new guardian. That kind of order can only be appealed through the interlocutory procedure of O.C.G.A. § 5-6-34(b): a certificate of immediate review from the trial court, followed by an application to the Court of Appeals within the statutory window.14
A jurisdictional dispute between courts does not, by itself, change the appellate track. Where a dependency, TPR, or legitimation matter is proceeding in juvenile court while a related adoption or legitimation matter proceeds in superior court, a party may dispute which court has jurisdiction under the priority-jurisdiction doctrine — but that dispute is reviewed on whatever track the underlying order would otherwise take, not automatically funneled into a discretionary application; a custody-related order can remain directly appealable, and a non-party enjoined by such an order has standing to appeal the injunctive portion of it even without being a party below.15
Legitimation rulings — their own track, easy to get wrong when a TPR case is attached. A ruling on a legitimation petition is a domestic-relations matter that must be appealed by discretionary application, not direct appeal, even when the legitimation petition is filed in the same case as a TPR or adoption action, and even when the appellant only means to attack the legitimation ruling as a step toward attacking the termination — the underlying subject matter controls, not how the relief is framed.16 Treat this as the safe, current default — but not as beyond question: the Supreme Court of Georgia has since declined to decide whether that rule was correctly applied to a legitimation appeal filed within an adoption proceeding, while a footnote in that same opinion records that some justices are doubtful it was rightly decided. The rule has not been overruled, but it is a live, unresolved question rather than a settled one.17
A legitimation petition should be filed as its own civil action, with its own case number, rather than folded into a pending adoption or TPR case — but a mismatch on that point is a fixable filing defect, not an automatic loss. Where a father’s petition otherwise complies with the substance of the legitimation statute and the filing-number mismatch causes no prejudice to anyone, the correct remedy is to sever the petition into its own action, not to quash it outright.18 File it correctly from the start rather than relying on this fallback — but if it was not, move to sever rather than assuming the petition is simply dead.
Where a legitimation ruling and a TPR ruling arise from the same proceeding and are appealed together, an otherwise-discretionary legitimation ruling can sometimes piggyback onto a direct appeal — but do not assume this works the other way, and do not assume it still works exactly as older cases describe it: In the Interest of T.A.M. piggybacked a legitimation appeal onto what was, at the time, a directly appealable TPR order. Now that TPR itself requires a discretionary application, confirm current law before assuming the same piggyback still runs the same direction.
Practice Tip
If you are genuinely unsure which track an order falls on, the safer course is often to preserve both: file a notice of appeal within thirty days and, protectively, seek a certificate of immediate review or file a discretionary application in the same window. Georgia’s appellate courts have shown little patience for a party who guessed wrong on the procedural vehicle, and there is ordinarily no second chance once the statutory deadline has passed.
27.4 Standing to Appeal
The right to appeal belongs to the child too, not only to the parent whose custody is on the line. A GAL or child’s attorney who disagrees with a disposition, a permanency goal, or a placement decision has independent standing to press that disagreement up, on the child’s own behalf — do not treat the appeal as exclusively the parents’ lawyers’ province just because the parent is usually the one losing something tangible.19
Standing can also run out. Once a party’s role in the case has formally ended, their standing to appeal a later order may end with it — for example, a former temporary guardian has no standing to appeal an order terminating the parents’ rights: she is not a party to the termination proceeding and was not aggrieved by it in her own right, and a guardian ad litem was separately available to raise the issue on the child’s behalf if it was worth raising.20
27.5 Standard of Review
Knowing the standard the Court of Appeals will actually apply changes how you write the brief.
A dependency finding is reviewed in the light most favorable to the judgment: the question is whether any rational trier of fact could have found dependency by clear and convincing evidence, not whether the Court of Appeals would have weighed the evidence the same way the juvenile court did. A termination order is reviewed against that same clear-and-convincing standard, applied to the specific statutory ground and the best-interests finding.21
Two points bear special mention because they are easy to miss and hard to recover from.
Denial of counsel to an indigent parent. Georgia’s Juvenile Code gives a party — including a parent — the right to an attorney at all stages of a proceeding under that article.22 Where a parent is erroneously and totally denied appointed counsel to which she was entitled at a termination hearing, the Court of Appeals has held that denial is presumptively harmful and is not subject to ordinary harmless-error analysis, reasoning by analogy to the structural-error rule for a total deprivation of trial counsel in a criminal case.23 That presumptive-harm rule is not confined to the termination hearing itself — it has been extended to a hearing on a motion to vacate or reconsider a surrender of rights, where the juvenile court failed to determine whether the mother was entitled to appointed counsel before proceeding.24
Do not treat that trial-level rule as automatically covering denial or ineffectiveness of appellate counsel — the Supreme Court has treated that as a separate question, decided case-by-case rather than presumed: whether an indigent parent has a due-process right to appointed appellate counsel requires the juvenile court to apply the Lassiter/Mathews v. Eldridge balancing test on that parent’s individual circumstances, in the first instance, before any presumption of harm or remedy is available.25 This does not conflict with the trial-hearing cases above — they concern denial of counsel at the hearing itself, not denial or ineffectiveness of appellate counsel — but the distinction matters.
Ineffective assistance of trial counsel is likewise a cognizable claim in a TPR proceeding, grounded in the statutory right to counsel and evaluated under the same deficient-performance-plus-prejudice framework used generally for ineffective-assistance claims.26 Two further limits are worth keeping in mind. First, the right to counsel is statutory, not a categorical constitutional one, and it does not extend past the Juvenile Code — a parent facing a private adoption-based termination under Title 19, as opposed to a Juvenile-Code termination under Title 15, has neither a statutory nor a due-process right to appointed counsel, because the statutory right does not reach Title 19 proceedings and the Lassiter due-process balancing test has only been applied to state-initiated actions, not private ones.27 Second, the presumptive-harm rule applies only where the parent actually requested counsel, applied for appointment, or otherwise established indigency and was erroneously turned away — a court is not required to appoint counsel, and there is nothing to presume harm from, absent that predicate.28
This handbook does not attempt a full treatment of ineffective-assistance claims arising out of TPR representation — that is its own body of practice. If your case raises one, treat it as a specialized appellate claim from the outset and consult a resource devoted to it rather than trying to brief it from general dependency practice.
27.6 Getting the Appeal Filed
A notice of appeal is due within thirty days of the order being appealed. Custody and dependency orders, including temporary ones, are treated as final judgments for this purpose, so the clock runs from the order itself, not from the end of the case. If you intend to argue that the evidence was insufficient, order the transcript and make sure the record designation actually includes it — an appellate court reviewing a paper record with no transcript will not second-guess what it cannot see.
Getting that transcript, and the rest of the record, is not a favor the clerk’s office grants — a party has a statutory right to the full and complete record of the proceeding and does not have to obtain or produce a court order to receive it.29 That right is supposed to be explained at a person’s first appearance before the court, along with the rest of the party rights the Code lists — presence, being heard, presenting evidence, cross-examination, and the right to appeal itself.30
27.7 What Happens to the Case While the Appeal Is Pending
Do not assume the order pauses itself just because a notice of appeal was filed. The juvenile court’s order stands until reversed or modified on appeal, and is not superseded or modified except in the trial court’s own discretion — there is no automatic stay.31 If the order you are appealing changes custody or placement and you need it paused while the appeal is pending, you have to ask the trial court for that discretionary stay affirmatively. The practical outcome you are fighting for on paper may already be happening on the ground while the case is pending above, unless you make that request and get it granted.
One appeal does carry its own automatic protection, though: an appeal from an order granting a TPR petition stays any related adoption proceeding until the termination order becomes final — through the conclusion of appellate review or the expiration of the time to seek it.32 That protection exists precisely so an adoption cannot be finalized out from under a parent whose appeal is still live. It does not, however, freeze the rest of the case — except for adoption-related proceedings, the juvenile court keeps holding hearings and issuing orders while the appeal is pending.33 Reviews still happen, family time can still change, and a permanency goal can still move forward, all on the normal clock, whatever is happening upstairs at the Court of Appeals.
28. Ethics and Professionalism in Juvenile Court
Dependency practice tests judgment in ways ordinary litigation does not. The client is often frightened, distrustful, or too young to understand what is at stake. The record gets built hearing by hearing on a statutory clock that does not pause for anyone to catch up. And the people in the courtroom — caseworker, CASA, therapist, GAL, opposing counsel — overlap and recur across the life of a case in ways that blur the clean lines a law-school ethics class assumes. The habits below are not abstractions; each one has been the difference, in an actual case, between a good outcome and one that unraveled on appeal or, worse, in a family’s life.
28.1 Know Which Client You Have
A parent's lawyer takes direction from the parent, full stop, even on the day the caseworker's plan looks more sensible than the client's. A guardian ad litem answers a different question, best interests, and that answer will sometimes contradict what the child says he wants — say so on the record rather than quietly averaging the two into a single recommendation nobody actually authorized. A lawyer wearing both hats, GAL and child's attorney, may serve in both roles only until they conflict — the moment the attorney's duty to the child as counsel diverges from the attorney's own view of the child's best interests as guardian ad litem, the Code itself treats that as the line to step back from one role.1
28.2 Competence Includes the Clock
Competence in this practice is not general litigation skill dressed up for juvenile court. It means knowing the PPH timeline, the adjudication deadline, and the fifteen-of-twenty-two-month filing duty well enough to catch a missed one before it becomes the client's problem instead of a footnote in an appellate brief. A caseload with no room to meet the client before a hearing, read the report before it is offered, or object to a defective order before it is signed does not support competent work, whatever the assignment sheet says.
Part of that competence is making sure the client actually received what the Code says every party is owed at their first appearance: an explanation of their rights, including the right to appeal.2 A rushed advisement read off a form in open court, to a parent who was crying or a child who was terrified, is not the same thing as that parent or child actually understanding what they were just told. If your own client cannot tell you what their rights are, that gap is yours to close, not a box someone else already checked.
28.3 Talk So the Client Can Follow You
A five-year-old and a sixteen-year-old need different sentences to understand the same hearing, and a parent who has never sat through a court proceeding deserves the same plain language. None of that loosens confidentiality. A CASA volunteer, a therapist, and a caseworker standing in the same hallway does not mean a child's information belongs to the hallway — it is still the child's to share or withhold, subject to the ordinary exceptions that apply to any client.
28.4 Candor, Contact, and Conflicts
Candor to the tribunal cuts differently depending on which side of the pen you are on. For the SAAG, who typically drafts the proposed order, it means never handing up one that finds facts no one actually proved, no matter how routine that habit becomes by month six of a docket. For parent's counsel and the GAL, who are not expected to draft the order themselves, candor means actually reading what the SAAG submits before it is signed — silence is not the same as agreement, and letting an inaccurate finding go through unchallenged is its own failure of the duty owed to the client and the record. Do not contact a represented parent directly, even with good intentions and even informally. Watch for conflicts that develop mid-case — siblings whose interests split apart, a parent whose position has moved since the last hearing you argued for them — and deal with them before they compromise the record.
28.5 Read the Room, and Read Yourself
Cultural responsiveness is a findings problem, not a courtesy extended to make a family comfortable. A best-interests finding that treats an unfamiliar child-rearing practice as a deficiency, without asking whether it is actually a safety concern, is weak advocacy and a weak record. Ask what is genuinely a risk to the child, and be honest about what is simply unfamiliar to the professionals in the room.
This work involves sustained exposure to other people's worst days, and that accumulates whether or not a lawyer notices it happening. Build in the ordinary safeguards — supervision or peer consultation, a caseload that is actually sustainable, time away from the docket — not as an indulgence but because a burned-out lawyer misses deadlines, skips client meetings, and signs off on findings nobody proved.
28.6 Delay Is Not a Neutral Act
A continuance requested for the lawyer's own calendar, not the client's genuine need, is not a courtesy the profession extends itself. Every extra month a child spends waiting for a decision is a month the Code treats as real harm, not administrative overhead — the same premise that opens this handbook applies just as much to a lawyer's own habits as to anyone else's. Ask, before requesting or agreeing to a continuance, whether it serves the client in front of you or simply moves a hard day to next month. The two are not the same question, and a diligent lawyer keeps them separate.
The same duty runs the other direction: pushing a case forward faster than the family can actually absorb is its own failure of diligence, not a virtue. A parent who has not had a real chance to engage with services, or a child who has not been meaningfully consulted, does not benefit from speed for its own sake. Timeliness is a duty owed to this family's actual pace, not a personal best time to beat.
Hearing-Practice Note
Preservation is part of diligence, and diligence is part of professionalism. A lawyer who objects with a specific ground, gets an actual ruling, and reads the order before it is signed (if given the chance) is protecting more than the appellate record — that habit is what keeps the file honest for the family who has to live with it.
Appendix A — Checklist of Key Components of Each Order
A.1 Preliminary Protective Hearing Order
Finding that continuation in the home would be contrary to the child’s welfare, and that removal is in the child’s best interests — with the specific facts stated, not just the conclusion.
Finding on whether DFCS made reasonable efforts to prevent or eliminate the need for removal — dates, contacts, services offered, and results.
Custody granted to DFCS, a named relative, or a parent subject to conditions.
If custody goes to DFCS: no order directing a specific placement — that decision belongs to the Department.
If the court intends a specific relative or fictive-kin home: grant custody directly to that person instead of routing it through DFCS.
Family time set — frequency, duration, supervision, location, and transportation.
Dependency petition deadline calendared: five days.
Adjudication date set.
Reasonable efforts to prevent removal described, or the O.C.G.A. § 15-11-203 exception named with the reason it applies.
A.2 Adjudication Order
Service perfected — confirmed on the record.
Counsel appeared — confirmed on the record.
Standard of proof stated: clear and convincing evidence. O.C.G.A. § 15-11-180.
Dependency finding made under O.C.G.A. § 15-11-2(22), naming the specific statutory ground.
Specific facts supporting that conclusion listed and numbered, each tied to an exhibit or testimony.
If a ground is not proved as to a parent: dismissed as to that parent.
If the child is out of the home: parental-unfitness finding made, with the specific facts stated.
Facts that support dependency identified separately from the rest of the record — not just a narrative.
Finding on whether dependency is the result of substance abuse by the parent, guardian, or legal custodian, with facts either way.
Finding on whether reasonable efforts to prevent placement and to reunify were made — dates, services, results — or the O.C.G.A. § 15-11-203 exception named.
If the child remains with the parent: a present need for the court’s protection is found — not an unsupported recitation of risk.
If the child is out of the home: finding that return would be contrary to the child’s welfare. O.C.G.A. § 15-11-134(b).
A.3 Disposition / Case-Plan Order
Temporary legal custody granted — name the person or DFCS — as the least restrictive, most family-like setting available.
Case plan dated [date] adopted, with any modifications listed.
Plan objectives confirmed measurable — not “address substance abuse” but a specific, checkable task.
Family time set, with the benchmark that triggers a step-down.
Review and permanency dates set.
Social study and proposed case plan confirmed filed at least forty-eight hours before the hearing.
Concurrent plan noted — identified, or not yet requested.
Finding on whether the current caregiver is willing to provide legal permanency if reunification fails.
Note that this disposition continues in force under O.C.G.A. § 15-11-214 until its purposes are accomplished or the child turns eighteen, subject to Chapter 18 if extended care applies.
A.4 Continuance Order
Good cause found under O.C.G.A. § 15-11-110 — named, not assumed.
Continuance kept no longer than necessary.
Facts proved entered into the record.
Finding that the continuance is not contrary to the child’s interests.
Confirm the reason is not one of the things that does not count as good cause: a stipulation, mere convenience, a pending criminal case, or the need for discovery — unless someone actually failed to comply with a discovery order.
Caution
The Supreme Court of Georgia has held that a continuance which does not meet O.C.G.A. § 15-11-110 cannot save an adjudication that misses the O.C.G.A. § 15-11-181(a) time limit.1 Reciting the statutory factors without stating the facts proved is not enough.
A.5 Periodic Review Order
Relative search approved as complete, or the remaining steps and deadline listed.
Next review date set — four months from this review.
Finding that the child is safe in the current placement and that it remains appropriate and least restrictive, with facts stated.
Parent compliance listed item by item, with dates.
DFCS services actually provided listed, with dates.
Family time set, and any modification noted with the reason.
Finding on whether reasonable efforts toward the current goal were made — dates, services, results.
Statement of whether DFCS presently intends to proceed with termination of parental rights, and if so, on what timetable.
Projected permanency date set.
A.6 Permanency Hearing Order
Notice confirmed given at least five days before the hearing.
DFCS report recommending a permanency plan confirmed filed at least five days before the hearing.
Permanency goal stated — reunification, adoption, permanent guardianship, or APPLA — with the supporting facts.
Date the child is likely to achieve that goal stated.
Steps required to finalize the permanent placement listed.
In-state and out-of-state options considered listed.
For a child fourteen or older: independent-living services required listed.
For a youth within ninety days of eighteen: transition plan confirmed to address housing, education, employment, health insurance, documents, adult connections, and extended care youth services.
Statement of whether reunification services continue or end, and why.
Confirmation that the parties were advised the DFCS-recommended plan would be submitted for consideration as the order of the court.
Note on whether this hearing was noticed as a nonreunification hearing under O.C.G.A. § 15-11-204.
Note on whether a nonreunification report was filed.
Appendix B — Georgia Case-Law Supplement (Educational)
This supplement is a teaching digest, not a complete citator. Always read the opinion and verify subsequent history. The Court of Appeals reviews a dependency finding in the light most favorable to the judgment to determine whether any rational trier of fact could have found dependency by clear and convincing evidence.
A note on short-form citations. Several Georgia opinions in this area share initials, and the short forms are not safely interchangeable. This handbook cites In the Interest of S.B., 366 Ga. App. 80 (2022) (adjudication order vacated for want of a parental-unfitness finding), which is a different case from In the Interest of S.B., 335 Ga. App. 1 (2015) (termination reversed; poverty and ineffective assistance), and the latter has since been superseded by statute on its legitimation holding. It cites In the Interest of S.H., 376 Ga. App. 652 (2025) (visitation), which is a different case from In the Interest of S.H., 361 Ga. App. 788 (2021) (waiver of counsel). It cites In the Interest of D. H., 372 Ga. App. 765 (2024) (UCCJEA and emergency jurisdiction), which is a different case from In the Interest of D.H., A24A1822, A25A0351 (July 2, 2025) (mental health; abandonment). And it cites In the Interest of S.C.S., 336 Ga. App. 236 (2016) (physical abuse), which is a different case from both In the Interest of C.S., 319 Ga. App. 138 (2012) (termination as a remedy of last resort) and Interest of C.S., 354 Ga. App. 133 (2020) (abandonment). Use the full cite to avoid confusion.
Clear and convincing evidence is intermediate — higher than preponderance, lower than beyond a reasonable doubt. In the Interest of B.M.R., 363 Ga. App. 819 (2022).
The Court of Appeals has reversed where alleged neglect was not tied to proof that the children needed court protection; where the order rested on a parent’s work schedule after appropriate childcare was arranged; and where DFCS failed to prove present dependency and shifted the burden to the parent. Educational neglect does not require proof of a particular additional harm. In the Interest of M.S., 352 Ga. App. 249 (2019).
A DFCS-history recital with no evidence behind it will not support present dependency. In the Interest of B.A., 367 Ga. App. 727 (2023).
The court may not shift the burden to the parent to disprove continued dependency. In the Interest of A.M.B., 361 Ga. App. 551 (2021).
The issue is the child’s welfare, not a ledger of parental fault. In the Interest of I.L.M., 304 Ga. 114 (2018).
If the order contains no findings on parental unfitness, the Court of Appeals cannot intelligently review sufficiency and will vacate and remand. A continuance that does not satisfy § 15-11-110 cannot excuse a missed adjudication deadline. In the Interest of M.D.H., 300 Ga. 46 (2016); see also In the Interest of H.J., 377 Ga. App. 557 (2025); In the Interest of C.E., 366 Ga. App. 612 (2023); In the Interest of K.R., 367 Ga. App. 668 (2023).
Later termination orders are vacated when they lack explicit, child-by-child findings that continued dependency is likely to cause serious harm. Present dependency is measured at the hearing. If the child is already out of the home, the question is whether the child would be dependent if returned that day. In the Interest of K.K., 364 Ga. App. 82 (2022); In the Interest of B.A., 367 Ga. App. 727 (2023).
The order must find the facts specially, state the conclusions of law separately, and identify which facts support the dependency conclusion. In the Interest of C.E., 366 Ga. App. 612 (2023).
The court is not bound by the parties’ recommended disposition. In the Interest of A.L., 351 Ga. App. 824 (2019).
A disposition order continues until its purposes have been accomplished or the child reaches eighteen. O.C.G.A. § 15-11-214.
Appendix C — Hypotheticals and Model Examinations
These are for the afternoon breakout groups, not a written exam — there is no single right answer waiting at the back of the book. The facts follow one family across the life of a case, and each one is built to have a real fault line in it: a fact that could cut either way depending on who is arguing it. Assign roles — parent’s counsel, child’s attorney, SAAG — and argue the position you were given, even if it is not the one you would have picked. Facts are fictional; any resemblance to a real family is coincidental.
C.1 Hypothetical One — The 72-Hour Hearing
J.P. is four. A little after 2:00 a.m. on a Monday, a patrol officer found her asleep alone in a running car in the parking lot of an extended-stay hotel. Her mother was inside the lobby, unsteady on her feet, and could not name a single sober adult who could come get J.P. that night. DFCS took emergency custody.
The maternal grandmother lives twenty minutes away. She has a spare room, no criminal history that the mother knows of, and says she can be in court by that afternoon. Nobody has actually laid eyes on her home yet. The father drives long-haul; the only phone number on file for him has been disconnected for months. At the hospital intake screen, the mother tells you she took a hydrocodone left over from a dental procedure two weeks ago, and thinks she “maybe” had a drink or two at the hotel bar earlier that night — she is not entirely sure how many. The DFCS complaint also recites two prior reports on this family, both closed as unsubstantiated, plus a neighbor’s statement that the mother “always leaves that child in the car” while she runs errands.
Discussion: Does a leftover prescription pill plus an uncertain number of drinks add up to the kind of impairment that makes removal necessary tonight — or does the grandmother’s offer resolve that question before it needs an answer? What, if anything, do the two unsubstantiated prior reports actually add to tonight’s decision? If you represent the mother, is putting her on the stand at the PPH ever worth the risk here, given the car incident is not the only thing DFCS might ask about? Walk through the two statutory questions the PPH actually asks, and be ready to argue both sides of each one. If the court is inclined to grant custody to DFCS tonight, what do you say on the record to make sure grandmother does not just become a name in a file DFCS never calls?
C.2 Hypothetical Two — Adjudication
Same family, six weeks later. DFCS has filed, alleging neglect built on the car incident, ongoing substance abuse, and unstable housing — though the petition never actually says what “unstable” means here, and nobody has asked. The caseworker’s report leans hard on two people who never testify in person: the neighbor and the hotel desk clerk, both quoted at length. The mother’s hair-follicle test covers the full ninety days and comes back negative for everything except the same opioid already accounted for by her dental records.
Grandmother’s home has since been approved. J.P. has been living there for nine days and started at a new preschool this week. The father was finally served last week through a different phone number and shows up to court, visibly caught off guard by how far the case has already moved.
Discussion: What exactly is left to prove once the drug test comes back clean for anything but the dental prescription — is this still a substance-abuse case, or was it only ever a one-night judgment-call case? Should counsel object to the neighbor and clerk statements as hearsay, and does it matter that nobody offers them live? What about the caseworker’s own observations from that Monday night — same witness, but is that testimony different in kind from repeating what someone else told her? The petition alleges “unstable housing” without ever defining it — if you represent the mother, do you let that slide or make DFCS commit to what it actually means? And does nine good days at grandmother’s house, with a new preschool already underway, belong anywhere in an adjudication argument, or is that a disposition problem dressed up as an adjudication point?
C.3 Hypothetical Three — Review and Reasonable Efforts
Six months in. The mother finished her parenting class and has six consecutive clean screens. The substance-abuse treatment provider DFCS referred her to, however, had a forty-seven-day waitlist — and DFCS did not make that referral until day forty of the case, meaning the mother is only now, at month six, approaching an actual intake appointment. Family time has stayed exactly the same since the first week: two hours, supervised, once a week, because that was the slot available back then and nobody has revisited it.
J.P. asks for her mother by name at drop-off, every single time. DFCS’s recommendation for this review is to maintain the current plan without changes.
Discussion: Six clean screens and a completed parenting class is real progress — real enough to expand family time, or is that a separate question from whether the underlying substance-abuse treatment has actually started? Whose delay is the forty-seven-day waitlist, and does it matter that DFCS could have made that referral on day one instead of day forty? Is a supervised, once-a-week schedule that has never been revisited in six months still defensible as a service, or has it quietly become an artifact of scheduling convenience? Does a four-year-old asking for her mother at drop-off actually tell the court anything useful about attachment and readiness — or is that just what most four-year-olds would say regardless? If you represent the mother, what specific relief do you ask for today, and what do you put on the record about the waitlist to make sure it is DFCS’s problem and not hers?
C.4 Hypothetical Four — Permanency, an ICWA Flag, and a Sibling Aging Out
J.P. is five now, eleven months into care. At the permanency hearing, a paternal cousin shows up for the first time and mentions, almost in passing, that the family is Cherokee, originally from North Carolina. Nobody has ever asked the ICWA question in this file — not at the PPH, not at adjudication, not at any review since. DFCS is asking the court to change the goal to adoption by the current foster family, who are not related to J.P. and have cared for her the entire eleven months. The mother, for her part, has just entered treatment — later than anyone would have liked, but she is there now.
In a companion file for the same family, J.P.’s sixteen-year-old half-sibling is thirteen months from turning eighteen. There is no transition plan in that file, and nobody has ever raised extended care youth services with her.
Discussion: A single relative’s statement, offered for the first time nearly a year into the case — is that enough to trigger the ICWA inquiry, or does it need to be corroborated first? If it is enough, what happens to today’s goal-change request while that gets sorted out? The foster family has now had J.P. longer than anyone else in her life this year, and they want to adopt — how much should that bond weigh against a mother who has only just started the work, and against a tribal interest nobody investigated in time? Whose job was it to ask the ICWA question at the first hearing, and what does it say about the rest of the file that nobody did? Separately: what does it mean that a sixteen-year-old in the same family has gone thirteen months with no transition plan and no one mentioning extended care — is that a different failure than the ICWA gap, or the same failure wearing a different hat?
Appendix D — Full Text of Selected Juvenile Court Statutes
This appendix collects the full text of the Code sections referenced throughout this handbook, current as of the source cited below. It contains statutory text only — no annotations, KeyCite flags, credits, or editorial notes. Always verify the current Official Code of Georgia Annotated and controlling case law before relying on any provision in a live case.
§ 15-11-1. Purpose of chapter
The purpose of this chapter is to secure for each child who comes within the jurisdiction of the juvenile court such care and guidance, preferably in his or her own home, as will secure his or her moral, emotional, mental, and physical welfare as well as the safety of both the child and community. It is the intent of the General Assembly to promote a juvenile justice system that will protect the community, impose accountability for violations of law, provide treatment and rehabilitation, and equip juvenile offenders with the ability to live responsibly and productively. It is the intent of the General Assembly to preserve and strengthen family relationships, countenancing the removal of a child from his or her home only when state intervention is essential to protect such child and enable him or her to live in security and stability. In every proceeding, this chapter seeks to guarantee due process of law, as required by the Constitutions of the United States and the State of Georgia, through which every child and his or her parent and all other interested parties are assured fair hearings at which legal rights are recognized and enforced. Above all, this chapter shall be liberally construed to reflect that the paramount child welfare policy of this state is to determine and ensure the best interests of its children.
§ 15-11-2. Definitions
As used in this chapter, the term:
(1) “Abandonment” or “abandoned” means any conduct on the part of a parent, guardian, or legal custodian showing an intent to forgo parental duties or relinquish parental claims. Intent to forgo parental duties or relinquish parental claims may be evidenced by:
(A) Failure, for a period of at least six months, to communicate meaningfully with a child;
(B) Failure, for a period of at least six months, to maintain regular visitation with a child;
(C) Leaving a child with another person without provision for his or her support for a period of at least six months;
(D) Failure, for a period of at least six months, to participate in any court ordered plan or program designed to reunite a child's parent, guardian, or legal custodian with his or her child;
(E) Leaving a child without affording means of identifying such child or his or her parent, guardian, or legal custodian and:
(i) The identity of such child's parent, guardian, or legal custodian cannot be ascertained despite diligent searching; and
(ii) A parent, guardian, or legal custodian has not come forward to claim such child within three months following the finding of such child;
(F) Being absent from the home of his or her child for a period of time that creates a substantial risk of serious harm to a child left in the home;
(G) Failure to respond, for a period of at least six months, to notice of child protective proceedings; or
(H) Any other conduct indicating an intent to forgo parental duties or relinquish parental claims.
(2) “Abuse” means:
(A) Any nonaccidental physical injury or physical injury which is inconsistent with the explanation given for it suffered by a child as the result of the acts or omissions of a person responsible for the care of a child;
(B) Emotional abuse;
(C) Sexual abuse or sexual exploitation;
(D) Prenatal abuse; or
(E) The commission of an act of family violence as defined in Code Section 19-13-1 in the presence of a child. An act includes a single act, multiple acts, or a continuing course of conduct. As used in this subparagraph, the term “presence” means physically present or able to see or hear.
(3) “Adult” means any individual who is not a child as defined in paragraph (10) of this Code section.
(4) “Affiliate court appointed special advocate program” means a locally operated program operating with the approval of the local juvenile court which screens, trains, and supervises volunteers to advocate for the best interests of an abused or neglected child in dependency proceedings.
(5) “Aggravated circumstances” means the parent has:
(A) Abandoned a child;
(B) Aided or abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of another child of such parent;
(C) Subjected a child or his or her sibling to torture, chronic abuse, sexual abuse, or sexual exploitation;
(D) Committed the murder or voluntary manslaughter of his or her child's other parent or has been convicted of aiding or abetting, attempting, conspiring, or soliciting the murder or voluntary manslaughter of his or her child's other parent;
(E) Committed the murder or voluntary manslaughter of another child of such parent;
(F) Committed an assault that resulted in serious bodily injury to his or her child or another child of such parent; or
(G) Caused his child to be conceived as a result of having nonconsensual sexual intercourse with the mother of his child or when the mother is less than ten years of age.
(6) “Biological father” means the male who impregnated the biological mother resulting in the birth of a child.
(6.1) “Blatant disregard” means a real, significant, and imminent risk of harm that would be so obvious to a legal custodian that a legal custodian acting reasonably would not have exposed the child to the imminent risk of harm without exercising precautionary measures to protect the child from such harm.
(7) “Business day” means Mondays through Fridays and shall not include weekends or legal holidays.
(8) “Caregiver” means any person providing a residence for a child or any person legally obligated to provide or secure adequate care for a child, including his or her parent, guardian, or legal custodian.
(9) “Case plan” means a plan which is designed to ensure that a child receives protection, proper care, and case management and may include services for a child, his or her parent, guardian, or legal custodian, and other caregivers.
(10) “Child” means any individual who is:
(A) Under the age of 18 years;
(B) Under the age of 17 years when alleged to have committed a delinquent act;
(C) Between 18 and 21 years of age and receiving extended care youth services from DFCS; or
(D) Under the age of 21 years who committed an act of delinquency before reaching the age of 17 years and who has been placed under the supervision of the court or on probation to the court for the purpose of enforcing orders of the court.
(11) “Child in need of services” means:
(A) A child adjudicated to be in need of care, guidance, counseling, structure, supervision, treatment, or rehabilitation and who is adjudicated to be:
(i) Subject to compulsory school attendance and who is habitually and without good and sufficient cause truant, as such term is defined in Code Section 15-11-381, from school;
(ii) Habitually disobedient of the reasonable and lawful commands of his or her parent, guardian, or legal custodian and is ungovernable or places himself or herself or others in unsafe circumstances;
(iii) A runaway, as such term is defined in Code Section 15-11-381;
(iv) A child who has committed an offense applicable only to a child;
(v) A child who wanders or loiters about the streets of any city or in or about any highway or any public place between the hours of 12:00 Midnight and 5:00 A.M.;
(vi) A child who disobeys the terms of supervision contained in a court order which has been directed to such child who has been adjudicated a child in need of services; or
(vii) A child who patronizes any bar where alcoholic beverages are being sold, unaccompanied by his or her parent, guardian, or legal custodian, or who possesses alcoholic beverages; or
(B) A child who has committed a delinquent act and is adjudicated to be in need of supervision but not in need of treatment or rehabilitation.
(12) “Class A designated felony act” means a delinquent act committed by a child 13 years of age or older which, if committed by an adult, would be one or more of the following crimes:
(A)(i) Aggravated assault in violation of paragraph (3) of subsection (a) of Code Section 16-5-21;
(ii) Aggravated assault in violation of paragraph (1) or (4) of subsection (a) of Code Section 16-5-21 other than upon a public safety officer as such acts are prohibited under subsection (c) of Code Section 16-5-21, not involving a firearm; or
(iii) Aggravated assault upon an individual or situation described in subsection (d), (h), or (k) of Code Section 16-5-21 or assault with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, actually does result in serious bodily injury; provided, however, that such injured person is not a public safety officer as defined in Code Section 16-5-19 and such acts are not prohibited under subsection (c) of Code Section 16-5-21;
(B) Aggravated battery not upon a public safety officer as such acts are prohibited under subsection (c) of Code Section 16-5-24;
(C) Armed robbery not involving a firearm;
(D) Arson in the first degree;
(E) Attempted murder;
(F) Escape in violation of Code Section 16-10-52, if such child has previously been adjudicated to have committed a class A designated felony act or class B designated felony act;
(G) Hijacking a motor vehicle in the first degree;
(G.1) Home invasion in the first degree;
(H) Kidnapping;
(I) Participating in criminal gang activity, as defined in subparagraphs (A) through (G) and (J) of paragraph (1) of Code Section 16-15-3, in violation of Code Section 16-15-4;
(J) Trafficking of substances in violation of Code Section 16-13-31 or 16-13-31.1;
(K) Any other act which, if committed by an adult, would be a felony in violation of Chapter 5 or 6 of Title 16, if such child has three times previously been adjudicated for delinquent acts all of which, if committed by an adult, would have been felonies in violation of any chapter of Title 16, provided that 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; or
(L) Any other act which, if committed by an adult, would be a felony, if such child has three times previously been adjudicated for delinquent acts all of which, if committed by an adult, would have been felonies in violation of any chapter of Title 16 and one of which, if committed by an adult, would have been a felony in violation of Chapter 5 or 6 of Title 16, provided that 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.
(13) “Class B designated felony act” means a delinquent act committed by a child 13 years of age or older which, if committed by an adult, would be one or more of the following crimes:
(A)(i) Aggravated assault in violation of subsection (e), (f), or (i) of Code Section 16-5-21; or
(ii) Aggravated assault involving an assault with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, would be likely to result in serious bodily injury but which did not result in serious bodily injury;
(B) Arson in the second degree;
(C) Attempted kidnapping;
(D) Battery in violation of Code Section 16-5-23.1, if the victim is a teacher or other school personnel;
(E) Racketeering in violation of Code Section 16-14-4;
(F) Robbery;
(F.1) Home invasion in the second degree;
(G) Participating in criminal gang activity, as defined in subparagraph (H) of paragraph (1) of Code Section 16-15-3, in violation of Code Section 16-15-4;
(H) Smash and grab burglary;
(I) Possessing, manufacturing, transporting, distributing, possessing with the intent to distribute, or offering to distribute a destructive device in violation of Code Section 16-7-82;
(J) Distributing certain materials to persons under the age of 21 in violation of Code Section 16-7-84;
(K) Any subsequent violation of Code Sections 16-8-2 through 16-8-5 or 16-8-5.2 through 16-8-9, if the property which was the subject of the theft was a motor vehicle and such child has had one or more separate, prior adjudications of delinquency based upon a violation of Code Sections 16-8-2 through 16-8-5 or 16-8-5.2 through 16-8-9, provided that 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;
(L) Any subsequent violation of Code Section 16-7-85 or 16-7-87, if such child has had one or more separate, prior adjudications of delinquency based upon a violation of Code Section 16-7-85 or 16-7-87, provided that 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;
(M) Any subsequent violation of subsection (b) of Code Section 16-11-132, if such child has had one or more separate, prior adjudications of delinquency based upon a violation of subsection (b) of Code Section 16-11-132, provided that 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;
(N)(i) An act which constitutes a violation of Code Section 16-11-127.1 involving a:
(I) Firearm, as defined in Code Section 16-11-131;
(II) Dangerous weapon or machine gun, as defined in Code Section 16-11-121; or
(III) Weapon, as defined in Code Section 16-11-127.1, together with an assault; or
(ii) An act which constitutes a second or subsequent adjudication of delinquency based on a violation of Code Section 16-11-127.1; or
(O) Any other act which, if committed by an adult, would be a felony in violation of any chapter of Title 16 other than Chapter 5 or 6 of Title 16, if such child has three times previously been adjudicated for delinquent acts, all of which, if committed by an adult, would have been felonies in violation of any chapter of Title 16 other than Chapter 5 or 6 of Title 16, provided that 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.
(13.05) “Commercial sexual exploitation recovery center” means a child-caring institution certified as a victim assistance program, as provided for in subsection (e) of Code Section 15-21-132, which provides full-time residential care and support services to youth through 18 years of age who are victims of sexual exploitation as defined in Code Section 49-5-40.
(13.1) “Community supervision officer” means an individual employed by the Department of Community Supervision who supervises probationers who were adjudicated for committing a Class A designated felony act or Class B designated felony act, placed in restrictive custody, and released from such custody.
(14) “Complaint” is the initial document setting out the circumstances that resulted in a child being brought before the court.
(15) “Court” means the juvenile court or the court exercising jurisdiction over juvenile matters.
(16) “Court appointed special advocate” or “CASA” means a community volunteer who:
(A) Has been screened and trained regarding child abuse and neglect, child development, and juvenile court proceedings;
(B) Has met all the requirements of an affiliate court appointed special advocate program;
(C) Is being actively supervised by an affiliate court appointed special advocate program; and
(D) Has been sworn in by a judge of the juvenile court in the court or circuit in which he or she wishes to serve.
(17) “Criminal justice purposes” means the performance of any activity directly involving:
(A) The investigation, detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of children or adults who are accused of, convicted of, adjudicated of, or charged with crimes or delinquent acts; or
(B) The collection, storage, and dissemination of criminal history record information.
(18) “DBHDD” means the Department of Behavioral Health and Developmental Disabilities.
(19) “Delinquent act” means:
(A) An act committed by a child 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 act 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 adjudicated to have committed a delinquent act; or
(C) Failing to appear as required by a citation issued for an act that would be a crime if committed by an adult.
(20) “Delinquent child” means a child who has committed a delinquent act and is in need of treatment or rehabilitation.
(21) “Department” means the Department of Human Services.
(22) “Dependent child” means a child who:
(A) Has been abused or neglected and is in need of the protection of the court:
(B) Has been placed for care or adoption in violation of law; or
(C) Is without his or her parent, guardian, or legal custodian.
(23) “Detention assessment” shall have the same meaning as set forth in Code Section 49-4A-1.
(24) “Developmental disability” shall have the same meaning as set forth in Code Section 37-1-1.
(25) “Developmental level” is a child's ability to understand and communicate, taking into account such factors as age, maturity, mental capacity, level of education, cultural background, and degree of language acquisition.
(26) “DFCS” means the Division of Family and Children Services of the department.
(27) “Diligent search” means the efforts of DFCS to identify and locate a parent whose identity or location is unknown or a relative or other person who has demonstrated an ongoing commitment to a child.
(28) “DJJ” means the Department of Juvenile Justice.
(29) “Emancipation” means termination of the rights of a parent to the custody, control, services, and earnings of a child.
(30) “Emotional abuse” means acts or omissions by a person responsible for the care of a child that cause any mental injury to such child's intellectual or psychological capacity as evidenced by an observable and significant impairment in such child's ability to function within a child's normal range of performance and behavior or that create a substantial risk of impairment, if the impairment or substantial risk of impairment is diagnosed and confirmed by a licensed mental health professional or physician qualified to render such diagnosis.
(31) “Evaluation” means a comprehensive, individualized examination of a child by an examiner that may include the administration of one or more assessment instruments, diagnosing the type and extent of a child's behavioral health disorders and needs, if any, making specific recommendations, and assessing a child's legal competencies.
(32) “Examiner” means a licensed psychologist, psychiatrist, or clinical social worker who has expertise in child development specific to severe or chronic disability of children attributable to intellectual impairment or mental illness and has received training in forensic evaluation procedures through formal instruction, professional supervision, or both.
(32.1) “Family and permanency team” shall consist of all appropriate biological family members, relatives, and fictive kin of the child, as well as, as appropriate, professionals who are a resource to the family of the child, such as teachers, medical or mental health providers who have treated the child, or clergy, and not more than two members of the case planning team or permanency planning team selected by a child who is age 14 or older. The two members selected by the child shall not be a foster parent of, or caseworker for, the child. DFCS may reject an individual selected by the child if DFCS has good cause to believe that the individual would not act in the best interest of the child.
(33) “Fictive kin” means a person who is not related to the child by blood, marriage, or adoption but who prior to his or her placement in foster care is known to the family, has a substantial and positive relationship with the child, and is willing and able to provide a suitable home for the child.
(34) “Foster care” means placement in foster family homes, child care institutions, or another substitute care setting approved by the department. Such term shall exclude secure residential facilities or other facilities operated primarily for the purpose of detention of a child adjudicated for delinquent acts.
(35) “Guardian ad litem” means an individual appointed to assist the court in determining the best interests of a child.
(36) “Guardianship order” means the court judgment that establishes a permanent guardianship and enumerates a permanent guardian's rights and responsibilities concerning the care, custody, and control of a child.
(37) “Identification data” means the fingerprints, name, race, sex, date of birth, and any other unique identifiers of a child.
(37.1) “Independent activity” means the activity of a child who is not under the direct supervision of a legal custodian or person acting in loco parentis and shall include, but shall not be limited to, playing indoors or outdoors alone or with other children, walking to or from school, running errands, or traveling to local commercial or recreational facilities.
(38) “Indigent person” means a person who, at the time of requesting an attorney, is unable without undue financial hardship to provide for full payment of an attorney and all other necessary expenses for representation or a child who is a party to a dependency proceeding. To determine indigence in a delinquency proceeding, the court shall follow the standards set forth in Chapter 12 of Title 17.
(39) “Informal adjustment” means the disposition of a case other than by formal adjudication and disposition.
(40) “Judge” means the judge of the court exercising jurisdiction over juvenile matters.
(41) “Juvenile court intake officer” means the juvenile court judge, associate juvenile court judge, court service worker, DJJ staff member serving as an intake officer in a delinquency or child in need of services proceeding, or person employed as a juvenile probation or intake officer designated by the juvenile court judge or, where there is none, the superior court judge, who is on duty for the purpose of determining whether any child taken into custody should be released or detained and, if detained, the appropriate place of detention.
(42) “Legal custodian” means:
(A) A person to whom legal custody of a child has been given by order of a court; or
(B) A public or private agency or other private organization licensed or otherwise authorized by law to receive and provide care for a child to which legal custody of such child has been given by order of a court.
(43) “Legal father” means a male who has not surrendered or had terminated his rights to a child and who:
(A) Has legally adopted such child;
(B) Was married to the biological mother of such child at the time such child was born or within the usual period of gestation, unless paternity was disproved by a final order pursuant to Article 3 of Chapter 7 of Title 19;
(C) Married the legal mother of such child after such child was born and recognized such child as his own, unless paternity was disproved by a final order pursuant to Article 3 of Chapter 7 of Title 19; or
(D) Has legitimated such child by a final order pursuant to Code Section 19-7-22.
(44) “Legal mother” means the female who is the biological or adoptive mother of a child and who has not surrendered or had terminated her rights to such child.
(45) “Mediation” means the proceeding in which a mediator facilitates communication between the parties concerning the matters in dispute and explores possible solutions to promote collaboration, understanding, and settlement.
(46) “Mediator” means a neutral third party who attempts to focus the attention of the parties upon their needs and interests rather than upon their rights and positions and who lacks the authority to impose any particular agreement upon the parties or to recommend any particular disposition of the case to the court.
(47) “Mentally ill” means having a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.
(48) “Neglect” means:
(A) The failure to provide necessary parental care or control, subsistence, education as required by law, or other care or control necessary for a child's physical, mental, or emotional health or safety;
(B) The failure to provide a child with supervision necessary for such child's health or safety due to a legal custodian having placed the child in a situation that requires judgment or actions beyond such child's level of maturity, physical abilities, or mental abilities and thereby creating a real, significant, and imminent risk of harm to the child as a result of a blatant disregard for such legal custodian's responsibilities; or
(C) The abandonment of a child by his or her parent, guardian, or legal custodian; provided, however, that such term shall not include a legal custodian permitting a child to engage in one or more independent activities, only if the legal custodian reasonably believes the child is of sufficient maturity, physical abilities, and mental abilities to avoid substantial risk of harm.
(49) “Nonsecure residential facility” means community residential facilities that provide 24 hour care in a residential setting that are not hardware secured.
(50) “Other persons who have demonstrated an ongoing commitment to a child” includes fictive kin and other individuals, including but not limited to neighbors, teachers, scout masters, caregivers, or parents of friends of such child and with whom such child has resided or had significant contact.
(51) “Parent” means either the legal father or the legal mother of a child.
(52) “Party” means the state, a child, parent, guardian, legal custodian, or other person subject to any judicial proceeding under this chapter; provided, however, that for purposes of Articles 5 and 6 of this chapter, only a child and the state shall be a party.
(53) “Permanency plan” means a specific written plan prepared by DFCS designed to ensure that a child is reunified with his or her family or ensure that such child quickly attains a substitute long-term home when return to such child's family is not possible or is not in such child's best interests.
(54) “Permanent placement” means:
(A) Return of the legal custody of a child to his or her parent;
(B) Placement of a child with an adoptive parent pursuant to a final order of adoption; or
(C) Placement of a child with a permanent guardian.
(55) “Person responsible for the care of a child” means:
(A) An adult member of a child's household;
(B) A person exercising supervision over a child for any part of the 24 hour day; or
(C) Any adult who, based on his or her relationship to the parent, guardian, or legal custodian or a member of a child's household, has access to such child.
(56) “Prenatal abuse” means exposure to chronic or severe use of alcohol or the unlawful use of any controlled substance, as such term is defined in Code Section 16-13-21, which results in:
(A) Symptoms of withdrawal in a newborn or the presence of a controlled substance or a metabolite thereof in a newborn's body, blood, urine, or meconium that is not the result of medical treatment; or
(B) Medically diagnosed and harmful effects in a newborn's physical appearance or functioning.
(57) “Probation and intake officer” means any probation officer and any personnel of a juvenile court to whom are delegated the duties of an intake officer under this chapter, other than a juvenile court judge, associate juvenile court judge, or court service worker.
(58) “Probation officer” means any personnel of a juvenile court or staff of DJJ to whom are delegated the duties of a probation officer under this chapter, other than a juvenile court judge or associate juvenile court judge.
(59) “Prosecuting attorney” means an attorney designated by the district attorney of the judicial circuit in which juvenile proceedings are instituted, unless otherwise provided in subsection (c) of Code Section 15-18-6.1.
(60) “Putative father registry” means the registry established and maintained pursuant to subsections (d) and (e) of Code Section 19-11-9.
(60.1) “Qualified individual” means a trained professional or licensed clinician who is not an employee of the department and who is not connected to, or affiliated with, any placement setting in which children are placed by the department.
(60.2) “Qualified residential treatment program” means a program that:
(A) Has a trauma-informed treatment model that is designed to address the needs, including clinical needs as appropriate, of children with serious emotional or behavioral disorders or disturbances and, with respect to a child, is able to implement the treatment identified for the child by the assessment to determine appropriateness of placement as provided for in Code Section 15-11-219;
(B) Has registered or licensed nursing staff and other licensed clinical staff who:
(i) Provide care within the scope of their practice;
(ii) Are onsite according to the treatment model referred to in subparagraph (A) of this paragraph; and
(iii) Are available 24 hours a day and seven days a week;
(C) To the extent appropriate, and in accordance with the child's best interests, facilitates participation of family members in the child's treatment program;
(D) Facilitates outreach to the family members of the child, including siblings, documents how the outreach is made, including contact information, and maintains contact information for any known biological family and fictive kin of the child;
(E) Documents how family members are integrated into the treatment process for the child, including post-discharge, and how sibling connections are maintained;
(F) Provides discharge planning and family based aftercare support for at least six months post-discharge; and
(G) Is licensed pursuant to Chapter 5 of Title 49 in accordance with 42 U.S.C. Section 671(a)(10) and accredited in accordance with 42 U.S.C. Section 672(k)(4)(G).
(61) “Reasonable efforts” means due diligence and the provision of appropriate services.
(62) “Relative” means a person related to a child by blood, marriage, or adoption, including the spouse of any of those persons even if the marriage was terminated by death or dissolution.
(63) “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.
(64) “Restrictive custody” means in the custody of DJJ for purposes of housing in a secure residential facility or nonsecure residential facility.
(65) “Risk assessment” shall have the same meaning as set forth in Code Section 49-4A-1.
(66) “Screening” means a relatively brief process to identify a child who potentially may have mental health or substance abuse needs, through administration of a formal screening instrument, to identify a child who may warrant immediate attention or intervention or a further, more comprehensive evaluation.
(67) “Secure residential facility” means a hardware secure residential institution operated by or on behalf of DJJ and shall include a youth development center or a regional youth detention center.
(68) “Services” means assistance including but not limited to care, guidance, education, counseling, supervision, treatment, and rehabilitation or any combination thereof.
(69) “Sexual abuse” means a caregiver or other person responsible for the care of a child employing, using, persuading, inducing, enticing, or coercing any child to engage in any act which involves:
(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) Bestiality;
(C) Masturbation;
(D) Lewd exhibition of the genitals or pubic area of any person;
(E) Flagellation or torture by or upon a person who is nude;
(F) The condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;
(G) Physical contact in an act of apparent sexual stimulation or gratification with any person's clothed or unclothed genitals, pubic area, or buttocks or with a female's clothed or unclothed breasts;
(H) Defecation or urination for the purpose of sexual stimulation; or
(I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure by a licensed health care professional.
(70) “Sexual exploitation” means conduct by a caregiver or other person responsible for the care of a child who allows, permits, encourages, or requires a child to engage in:
(A) Sexual servitude, as defined in Code Section 16-5-46; or
(B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, in violation of Code Section 16-12-100.
(71) “Sibling” means a person with whom a child shares a biological father or one or both parents in common by blood, adoption, or marriage, even if the marriage was terminated by death or dissolution.
(72) “Staffing” means a meeting held periodically to develop and review progress on plans for meeting the identified needs of a child.
(73) “Statutory overnight delivery” means delivery of notice as provided in Code Section 9-10-12.
(73.1) “Temporary alternatives to foster care” means measures that a juvenile court may order in lieu of removal of a child or children alleged to be dependent in protective custody which will prevent or reduce the trauma of removal; allow a child to be cared for by persons with whom the child has an existing bond or attachment; or that ensure the safety of the child pending further action by the court on the dependency complaint or petition.
(74) “Unsupervised probation” means a period of probation or community supervision prior to the termination of a child's disposition in which:
(A) All of the conditions and limitations imposed by the court in placing such child on probation remain intact;
(B) Such child may have reduced reporting requirements; and
(C) A probation officer shall not actively supervise such child.
(75) “Visitation” means a period of access to a child by a parent, guardian, legal custodian, sibling, other relative, or any other person who has demonstrated an ongoing commitment to a child in order to maintain parental and familial involvement in a child's life when he or she is not residing with such person.
(76) “Weekend” means Saturday or Sunday.
§ 15-11-3. Successive cases or proceedings involving the same child or family
Through direct calendaring, whenever possible, a single judge shall hear all successive cases or proceedings involving the same child or family.
§ 15-11-6. Child’s attainment of specified age
(a) Except as provided in subsection (b) of this Code section, a child attains a specified age the first second past midnight on the day of the anniversary of such child's birth.
(b) A child born on February 29 attains a specified age on March 1 of any year that is not a leap year.
§ 15-11-10. Exclusive original jurisdiction over certain juvenile matters
Except as provided in Code Section 15-11-560, the juvenile court shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action:
(1) Concerning any child who:
(A) Is alleged to be a delinquent child;
(B) Is alleged to be a child in need of services;
(C) Is alleged to be a dependent child;
(D) Is alleged to be in need of treatment or commitment as a mentally ill or developmentally disabled child;
(E) Has been placed under the supervision of the court or on probation to the court; provided, however, that such jurisdiction shall be for the purpose of completing, effectuating, and enforcing such supervision or a probation begun either prior to such child's seventeenth birthday if the order is entered as a disposition for an adjudication for delinquency or prior to such child's eighteenth birthday if the order is entered for an adjudication for a child in need of services;
(F) Is receiving extended care youth services; provided, however, that such jurisdiction shall be for the purpose of reviewing the status of the case, determining that extended care youth services are in the best interests of such child, adopting a transition plan for such child, ensuring the provision of developmentally appropriate services and supports consistent with such plans, and determining whether reasonable efforts are being made to transition such child to independent living or another planned permanent adult living arrangement; or
(G) Requires a comprehensive services plan in accordance with Code Section 15-11-658;
(2) Concerning any individual under the age of 17 years alleged to have committed a juvenile traffic offense as defined in Code Section 15-11-630; or
(3) Involving any proceedings:
(A) For obtaining judicial consent to the marriage, employment, or enlistment in the armed services of any child if such consent is required by law;
(B) For permanent guardianship brought pursuant to the provisions of Article 3 of this chapter;
(C) Under Chapter 4B of Title 49, the Interstate Compact for Juveniles, or any comparable law, enacted or adopted in this state;
(D) For the termination of the legal parent-child relationship and the rights of the biological father who is not the legal father of the child in accordance with Article 4 of this chapter; provided, however, that such jurisdiction shall not affect the superior court's exclusive jurisdiction to terminate the legal parent-child relationship and the rights of a biological father who is not the legal father of the child as set forth in Chapters 6 through 9 of Title 19;
(E) For emancipation brought pursuant to the provisions of Article 10 of this chapter;
(F) Under Article 8 of this chapter, relating to prior notice to a parent, guardian, or legal custodian relative to an unemancipated minor's decision to seek an abortion; or
(G) Brought by a local board of education pursuant to Code Section 20-2-766.1, relating to court orders requiring that a parent, guardian, or legal custodian attend a conference or participate in programs or treatment to improve a student's behavior.
§ 15-11-11. Concurrent jurisdiction
The juvenile court shall have concurrent jurisdiction to hear:
(1) Any legitimation petition filed pursuant to Code Section 19-7-22 concerning a child alleged to be dependent;
(2) Any legitimation petition transferred to the court by proper order of the superior court;
(3) The issue of custody and support when the issue is transferred by proper order of the superior court; provided, however, that if a demand for a jury trial as to support has been properly filed by either parent, then the case shall be transferred to superior court for the jury trial;
(4) Any petition for the establishment or termination of a temporary guardianship transferred to the court by proper order of the probate court; and
(5) Any criminal case transferred to the court pursuant to subsection (d) of Code Section 15-11-15.
§ 15-11-11.1. Counsel in legitimation petition
A dependent child who is represented by court appointed counsel and who is the subject of a legitimation petition pursuant to Code Section 15-11-11 may be represented by the same appointed counsel in the legitimation matter.
§ 15-11-12. Child adjudicated as both dependent and delinquent
(a) Nothing in this chapter shall be construed to prevent a child from being adjudicated both a dependent child and a delinquent child or both a dependent child and a child in need of services if there exists a factual basis for such a finding.
(b) If a child alleged or adjudicated to be a delinquent child or a child in need of services is also alleged or adjudicated to be a dependent child, dependency proceedings may be consolidated with delinquency or child in need of services proceedings to the extent consistent with due process of law as provided in Articles 3, 5, and 6 of this chapter.
(c) The time frames and requirements of Article 3 of this chapter shall apply to cases in which a child alleged or adjudicated to be a child in need of services or a delinquent child is placed in foster care and has also been alleged or adjudicated to be a dependent child.
§ 15-11-13. Appointment of guardian; conservator
The court shall have jurisdiction to appoint a guardian of the person of any child in any proceeding authorized by this chapter. Any such appointment shall be made pursuant to the same requirements of notice and hearing as are provided for appointments of guardians of the persons of any child by the probate court. In the event a conservator for a child's property needs to be appointed, the court shall refer that matter to the probate court.
§ 15-11-14. Temporary guardianship
(a) The court shall hold a hearing within 30 days of receipt of a case transferred from the probate court pursuant to subsection (f) of Code Section 29-2-6 or subsection (b) of Code Section 29-2-8. A child may obtain a court appointed attorney for the hearing to determine whether continuation or termination of the temporary guardianship is in the best interests of the child.
(b) After notice and hearing, the court may make one of the following orders:
(1) That the temporary guardianship be established or continued if the court determines that the temporary guardianship is in the best interests of a child. The order shall thereafter be subject to modification only as provided in Code Section 15-11-32; or
(2) That the temporary guardianship be terminated if the court determines it is in the best interests of a child. A child shall be returned to his or her parent unless the court determines that there is probable cause to believe that he or she will be abused, neglected, or abandoned in the custody of his or her parent.
(c) A case shall proceed as a dependency matter pursuant to the provisions of Article 3 of this chapter if, after notice and hearing, the court determines:
(1) That it is in the best interests of a child that the temporary guardianship not be established or that the temporary guardianship be terminated but there is probable cause to believe that he or she will be abused, neglected, or abandoned if returned to his or her parent; or
(2) That it is in the best interests of a child that the temporary guardianship be continued over the parent's objection.
(d) The court may refer to DFCS for further investigation a case transferred from probate court.
§ 15-11-15. Appointment of guardian; jurisdiction over custody and support cases
(a) In handling divorce, alimony, habeas corpus, or other cases involving the custody of a child, a superior court may transfer the question of the determination of custody, support, or custody and support to the juvenile court either for investigation and a report back to the superior court or for investigation and determination.
(b) If the referral is for investigation and determination, then the juvenile court shall proceed to handle the matter in the same manner as though the action originated under this chapter in compliance with the order of the superior court, except that the parties shall not be entitled to obtain an appointed attorney through the juvenile court.
(c) At any time prior to the determination of any question regarding custody, support, or custody and support, the juvenile court may transfer the jurisdiction of the question back to the referring superior court.
(d) In handling criminal cases involving an accused who is in jeopardy of having his or her parental rights terminated due to criminal charges, a superior court may transfer a criminal case to a family treatment court division of a juvenile court for treatment and a report back to the superior court so long as the prosecuting attorney and accused agree to such transfer; provided, however, that such juvenile court may transfer such case back to the referring superior court at any time.
§ 15-11-16. Commencement of proceedings under this chapter
(a) A proceeding under this chapter may be commenced:
(1) By an order of transfer of a case from another court as provided in Code Section 15-11-11 or 15-11-567, subsection (f) of Code Section 29-2-6, or subsection (b) of Code Section 29-2-8;
(2) By the summons, notice to appear, or other citation in a proceeding charging a juvenile traffic offense or a violation of the laws, rules, and regulations governing the Department of Natural Resources Game and Fish Division; or
(3) By the filing of a petition for legitimation under Code Section 15-11-11, or in other cases by the filing of a complaint or a petition as provided in Articles 3, 4, 5, 6, 7, 8, and 10 of this chapter.
(b) The petition and all other documents in the proceeding shall be entitled “In the interest of , a child,” except upon appeal.
(c) On appeal, the anonymity of a child, and where appropriate, a victim or witness who is under the age of 18 years, shall be preserved by appropriate use of a child's, victim's, or witness's initials as appropriate.
§ 15-11-17. Hearings; full and complete records of all words during proceedings; sitting as juvenile court judge
(a) All hearings under this chapter shall be conducted by the court without a jury. Any hearing may be adjourned from time to time within the discretion of the court.
(b) Except as otherwise provided, all hearings shall be conducted in accordance with Title 24.
(c) All proceedings under this chapter shall be recorded by stenographic notes or by electronic, mechanical, or other appropriate means capable of accurately capturing a full and complete record of all words spoken during the proceedings.
(d) A juvenile court judge, an associate juvenile court judge, a judge pro tempore of the juvenile court, or any person sitting as a juvenile court judge may conduct hearings in connection with any proceeding under this chapter in any county within the judicial circuit. When a superior court judge sits as a juvenile court judge, hearings in connection with any proceeding under this chapter may be heard before such judge in any county within the judicial circuit over which the judge presides.
§ 15-11-18. Issuance of subpoenas
Upon application of a party, the court, or any authorized officer of the court, the clerk of the court shall issue subpoenas in accordance with the provisions of Title 24 requiring attendance and testimony of witnesses and production of evidence at any hearing under this chapter. A delinquency proceeding conducted in this state shall be considered a criminal prosecution insofar as the applicability of Article 4 of Chapter 13 of Title 24.
§ 15-11-19. Party’s rights in proceedings under this chapter
(a) A party has the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records, and to appeal the orders of the court; provided, however, that the court shall retain the discretion to exclude a child from any part or parts of any proceeding under Article 3 of this chapter if the court determines that it is not in such child's best interests to be present. An attorney for an excluded child shall not be excluded from the proceedings.
(b) A person afforded rights under this chapter shall be advised of such rights at that person's first appearance before the court.
(c) A party shall have the right to the full and complete record of any proceeding under this chapter and shall not be required to obtain or produce a court order to receive any such full and complete record.
(d) The department shall have the right to the full and complete record of any proceeding under this chapter in which the court has allowed its participation and such department shall not be required to obtain or produce a court order to receive any such full and complete record.
§ 15-11-26. Factors considered in determination of best interests of child
Whenever a best interests determination is required, the court shall consider and evaluate all of the factors affecting the best interests of the child in the context of such child's age and developmental needs. Such factors shall include:
(1) The physical safety and welfare of such child, including food, shelter, health, and clothing;
(2) The love, affection, bonding, and emotional ties existing between such child and each parent or person available to care for such child;
(3) The love, affection, bonding, and emotional ties existing between such child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
(4) Such child's need for permanence, including such child's need for stability and continuity of relationships with his or her parent, siblings, other relatives, and any other person who has provided significant care to such child;
(5) Such child's sense of attachments, including his or her sense of security and familiarity, and continuity of affection for such child;
(6) The capacity and disposition of each parent or person available to care for such child to give him or her love, affection, and guidance and to continue the education and rearing of such child;
(7) The home environment of each parent or person available to care for such child considering the promotion of such child's nurturance and safety rather than superficial or material factors;
(8) The stability of the family unit and the presence or absence of support systems within the community to benefit such child;
(9) The mental and physical health of all individuals involved;
(10) The home, school, and community record and history of such child, as well as any health or educational special needs of such child;
(11) Such child's community ties, including church, school, and friends;
(12) Such child's background and ties, including familial, cultural, and religious;
(13) The least disruptive placement alternative for such child;
(14) The uniqueness of every family and child;
(15) The risks attendant to entering and being in substitute care;
(16) Such child's wishes and long-term goals;
(17) The preferences of the persons available to care for such child;
(18) Any evidence of family violence, substance abuse, criminal history, or sexual, mental, or physical child abuse in any current, past, or considered home for such child;
(19) Any recommendation by a court appointed custody evaluator or guardian ad litem; and
(20) Any other factors considered by the court to be relevant and proper to its determination.
§ 15-11-27. Court order during pendency of proceeding
During the pendency of any proceeding under this chapter, the court may order:
(1) A child to be examined by outside parties or private providers at a suitable place by a physician or psychologist; provided, however, that orders to perform an evaluation shall not be imposed upon any state agency or county government unless such state agency or county government has funds available for such evaluation; and
(2) Medical or surgical treatment of a child suffering from a serious physical condition or illness which, in the opinion of a licensed physician, requires prompt treatment, even if the parent, guardian, or legal custodian has not been given notice of a hearing, is not available, or without good cause informs the court of his or her refusal to consent to the treatment.
§ 15-11-29. Protective orders
(a) In any proceeding under this chapter, either on application of a party or on the court's own motion, the court may make an order restraining or otherwise controlling the conduct of a person if due notice of the application or motion and the grounds therefor and an opportunity to be heard thereon have been given to the person against whom the order is directed. Such an order may require any such person:
(1) To stay away from a person's home or a child;
(2) To permit a parent to visit his or her child at stated periods;
(3) To abstain from offensive conduct against a child, his or her parent, or any person to whom custody of such child is awarded;
(4) To give proper attention to the care of his or her home;
(5) To cooperate in good faith with an agency to which custody of a child is entrusted by the court or with an agency or association to which a child is referred by the court;
(6) To refrain from acts of commission or omission that tend to make a home not a proper place for a child;
(7) To ensure that a child attends school pursuant to any valid law relating to compulsory attendance;
(8) To participate with a child in any counseling or treatment deemed necessary after consideration of employment and other family needs; and
(9) To enter into and complete successfully a substance abuse program approved by the court.
(b) After notice and opportunity for hearing afforded to a person subject to a protective order, a protective order may be modified or extended for a further specified period, or both, or may be terminated if the court finds that the best interests of the child and the public will be served thereby.
(c) Protective orders may be enforced by citation to show cause for contempt of court by reason of any violation thereof and, where protection of the welfare of a child so requires, by the issuance of a warrant to take the alleged violator into custody and bring him or her before the court.
§ 15-11-30. Rights of legal custodian
A legal custodian has the right to physical custody of a child, the right to determine the nature of the care and treatment of such child, including ordinary medical care, and the right and duty to provide for the care, protection, training, and education and the physical, mental, and moral welfare of such child, subject to the conditions and limitations of the order and to the remaining rights and duties of such child's parent or guardian.
§ 15-11-31. Contempt powers; other sanctions
(a) In addition to all other inherent powers of the court to enforce its lawful orders, the court may punish an adult for contempt of court by imprisonment for not more than 20 days or a fine not to exceed $1,000.00 for willfully disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders.
(b) The court shall restrict and limit the use of contempt powers with respect to commitment of a child to a secure residential facility or nonsecure residential facility and in no event shall a child solely alleged or adjudicated to be a dependent child be placed in a secure residential facility or nonsecure residential facility.
(c) A child may be placed in a secure residential facility or nonsecure residential facility for not more than 72 hours if:
(1) He or she is found in contempt of court; and
(2) Less restrictive alternatives have been considered and are unavailable or inappropriate or if such child has already been ordered to serve a less restrictive alternative sanction but failed to comply with the sanction.
(d) In addition or as an alternative to the punishment provided in subsection (a) of this Code section, after notice and opportunity to be heard, the court may impose any or all of the following sanctions when a parent, guardian, or legal custodian other than DJJ or DFCS willfully violates any order issued by the court directed to him or her:
(1) Require a child's parent, guardian, or legal custodian to make restitution as provided in Code Section 17-14-5;
(2) Reimburse the state for the costs of detention, treatment, or rehabilitation of a child;
(3) Require a child's parent, guardian, or legal custodian to participate in a court approved educational or counseling program designed to contribute to the ability to provide proper parental care and supervision of such child, including, but not limited to, parenting classes; or
(4) Require a child's parent, guardian, or legal custodian to enter into a contract or plan as a part of the disposition of any charges against such child so as to provide for the supervision and control of such child by his or her parent, guardian, or legal custodian and reunification with such child.
§ 15-11-32. Setting aside or modifying an order; probation revocation
(a) An order of the court shall be set aside if:
(1) It appears that it was obtained by fraud or mistake sufficient therefor in a civil action;
(2) The court lacked jurisdiction over a necessary party or the subject matter; or
(3) Newly discovered evidence so requires.
(b) An order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interests of a child except an order of dismissal following a contested adjudicatory hearing.
(c) Except as otherwise provided in Code Section 15-11-602, an order committing a child to DJJ may only be modified after such child has been transferred to DJJ custody upon motion of DJJ.
(d) An order of adjudication of delinquency by a court may be modified or vacated if the child was adjudicated for a delinquent act for a sexual crime as defined in Code Section 16-3-6 and such crime resulted from the child being:
(1) Trafficked for sexual servitude in violation of Code Section 16-5-46; or
(2) A victim of sexual exploitation as defined in Code Section 49-5-40.
(e) Any party to the proceeding, the probation officer, or any other person having supervision or legal custody of or an interest in a child may petition the court for the relief provided in this Code section. Such petition shall set forth in clear and concise language the grounds upon which the relief is requested.
(f) After a petition seeking relief under this Code section is filed, the court shall fix a time for hearing and shall cause notice to be served on the parties to the proceeding or those affected by the relief sought. After the hearing, the court shall deny or grant relief as the evidence warrants.
(g) This Code section is intended to be retroactive and shall apply to any child who is under the jurisdiction of the court at the time of a hearing, regardless of the date of the original delinquency order.
§ 15-11-33. Transfer when disposition incorporates reunification plan
(a) Whenever an order of disposition incorporates a reunification plan and the residence of the parent is not in the county of the court with jurisdiction or the residence of the parent changes to a county other than the county of the court with jurisdiction, the court may transfer jurisdiction to the juvenile court of the residence of the parent to whom the reunification plan is directed.
(b) Within 30 days of the filing of the transfer order, the transferring court shall provide the receiving court with certified copies of the adjudication order, the order of disposition, the order of transfer, the case plan, and any other court documents deemed necessary by the transferring court to enable the receiving court to assume jurisdiction over the matter.
(c) The transferring court shall retain jurisdiction until the receiving court acknowledges acceptance of the transfer.
(d) Compliance with this Code section shall terminate jurisdiction in the transferring court and confer jurisdiction in the receiving court.
§ 15-11-35. Appeals
In all cases of final judgments of the juvenile court, appeals shall be taken to the Court of Appeals or the Supreme Court in the same manner as appeals from the superior court. However, no such judgment or order shall be superseded or modified except in the discretion of the trial court; rather, the judgment or order of the court shall stand until reversed or modified by the reviewing court. The appeal of an order granting a petition to terminate parental rights shall stay an adoption proceeding related to the child who is the subject of such order until such order becomes final by the conclusion of appellate proceedings or the expiration of the time for seeking such review. Except for proceedings in connection with an adoption, the court shall continue to conduct hearings and issue orders in accordance with this chapter while an appeal in a case is pending.
§ 15-11-700. Admission to dependency proceeding
(a) As used in this Code section, the term “dependency proceeding” means a court proceeding stemming from a petition alleging that a child is a dependent child.
(b) The general public shall be admitted to:
(1) An adjudicatory hearing involving an allegation of a class A designated felony act or class B designated felony act;
(2) An adjudicatory hearing involving an allegation of delinquency brought in the interest of any child who has previously been adjudicated for committing a delinquent act; provided, however, the court shall close any delinquency hearing on an allegation of sexual assault or any delinquency hearing at which any party expects to introduce substantial evidence related to matters of dependency;
(3) Any child support hearing;
(4) Any hearing in a legitimation action filed pursuant to Code Section 19-7-22;
(5) At the court's discretion, any dispositional hearing involving any proceeding under this article; or
(6) Any hearing in a dependency proceeding, except as otherwise provided in subsection (c) of this Code section.
(c) The court may close the hearing in a dependency proceeding only upon making a finding upon the record and issuing a signed order stating the reason or reasons for closing all or part of a hearing in such proceeding and stating that:
(1) The proceeding involves an allegation of an act which, if done by an adult, would constitute a sexual offense under Chapter 6 of Title 16; or
(2) It is in the best interests of the child. In making such a determination, the court shall consider such factors as:
(A) The age of the child alleged or adjudicated as a dependent child;
(B) The nature of the allegations;
(C) The effect that an open court proceeding will have on the court's ability to reunite and rehabilitate the family unit; and
(D) Whether the closure is necessary to protect the privacy of a child, of a foster parent or other caretaker of a child, or of a victim of domestic violence.
(d) The court may close a hearing or exclude a person from a hearing in any proceeding on its own motion, by motion of a party to the proceeding, or by motion of the child who is the subject of the proceeding or the child's attorney or guardian ad litem.
(e) Only the parties, their counsel, witnesses, persons accompanying a party for his or her assistance, the victim, and any other persons as the court finds have a proper interest in the proceeding or in the work of the court may be admitted by the court to hearings from which the public is excluded; provided, however, that when the conduct alleged in the dependency proceeding could give rise to a criminal or delinquent act prosecution, attorneys for the prosecution and the defense shall be admitted.
(f) The court may refuse to admit a person to a hearing in any proceeding upon making a finding upon the record and issuing a signed order that the person's presence at the hearing would:
(1) Be detrimental to the best interests of the child who is a party to the proceeding;
(2) Impair the fact-finding process; or
(3) Be otherwise contrary to the interest of justice.
(g) The court may temporarily exclude any child from a termination of parental rights hearing except while allegations of his or her delinquency or child in need of services conduct are being heard.
(h) Any request for installation and use of electronic recording, transmission, videotaping, or motion picture or still photography of any judicial proceeding shall be made to the court at least two days in advance of the hearing. The request shall be evaluated by the court pursuant to the standards set forth in Code Section 15-1-10.1.
(i) The judge may order the media not to release identifying information concerning any child or family members or foster parent or other caretaker of a child involved in hearings open to the public.
(j) The general public shall be excluded from proceedings in juvenile court unless such hearing has been specified as one in which the general public shall be admitted to pursuant to this Code section.
§ 15-11-100. Purpose of this article
The purpose of this article is:
(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.
§ 15-11-100.1. Construction with federal law
A proceeding under this article shall not be subject to this article to the extent that it is governed by the Indian Child Welfare Act, P.L. 95-608, as amended, Chapter 21 of Title 25 of the United States Code. In those circumstances, compliance with such federal law shall be required.
§ 15-11-101. Applying to the court for certain medical examinations and evaluations upon finding of probable cause
(a) If necessary, the investigator of a report of child abuse and neglect may apply to the court for certain medical examinations and evaluations of a child or other children in the household.
(b) Upon a showing of probable cause in an affidavit executed by the applicant, the court may order a physical examination and evaluation of a child or other children in the household by a physician. Such order may be granted ex parte.
(c) Upon a showing of probable cause in an affidavit executed by the applicant and after a hearing, the court may order a psychological or psychiatric examination and evaluation of a child or other children in the household by a psychologist, psychiatrist, or other licensed mental health professional.
(d) Upon a showing of probable cause in an affidavit executed by the applicant and after a hearing, the court may order a forensic examination and evaluation of a child or other children in the household by a psychologist, psychiatrist, or other licensed mental health professional.
(e) Upon a showing of probable cause in an affidavit executed by the applicant and after a hearing, the court may order a physical, psychological, or psychiatric examination of a child's parent, guardian, or legal custodian.
§ 15-11-103. Child’s right to an attorney; rights of parties other than a child
(a) A child, any custodian or guardian subject to a sworn complaint or affidavit, and any other respondent to a proceeding under this article shall have the right to an attorney at all stages of the proceedings under this article.
(b) The court shall appoint an attorney for an alleged dependent child and any child receiving extended care youth services from DFCS at all stages of the proceedings under this article. The appointment shall be made as soon as practicable to ensure adequate representation of such child and, in any event, before the first court hearing that may substantially affect the interests of such child.
(c) A child's attorney owes to his or her client the duties imposed by the law of this state in an attorney-client relationship.
(d) If an attorney has been appointed to represent a child in a prior proceeding under this chapter, the court, when possible, shall appoint the same attorney to represent such child in any subsequent proceeding.
(e) An attorney appointed to represent a child in a dependency proceeding shall continue the representation in any subsequent appeals unless excused by the court.
(f) Neither a child nor a representative of a child may waive a child's right to an attorney in a dependency proceeding.
(g) A party other than a child shall be informed of his or her right to an attorney prior to any hearing. A party other than a child shall be given an opportunity to:
(1) Obtain and employ an attorney of such party's own choice;
(2) Obtain a court appointed attorney if the court determines that such party is an indigent person; or
(3) Waive the right to an attorney, provided that such waiver is made knowingly, voluntarily, and on the record.
§ 15-11-104. Guardian ad litem of alleged dependent child
(a) The court shall appoint a guardian ad litem for an alleged dependent child.
(b) An attorney for an alleged dependent child may serve as such child's guardian ad litem unless or until there is conflict of interest between the attorney's duty to such child as such child's attorney and the attorney's considered opinion of such child's best interests as guardian ad litem.
(c) A party to the proceeding, the employee or representative of a party to the proceeding, or any other individual with a conflict of interest shall not be appointed as guardian ad litem.
(d) A court shall appoint a CASA to act as guardian ad litem whenever possible, and a CASA may be appointed in addition to an attorney who is serving as a guardian ad litem.
(e) A lay guardian shall not engage in activities which could reasonably be construed as the practice of law.
(f) Before the appointment as a guardian ad litem, such person shall have received training appropriate to the role as guardian ad litem which is administered or approved by the Office of the Child Advocate for the Protection of Children. For attorneys, preappointment guardian ad litem training shall be satisfied within the attorney's existing continuing legal education obligations and shall not require the attorney to complete additional training hours in addition to the hours required by the State Bar of Georgia.
(g) Any volunteer guardian ad litem authorized and acting in good faith, in the absence of fraud or malice and in accordance with the duties required by this Code section, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as a result of taking or failing to take any action pursuant to this Code section.
(h) The court may remove a guardian ad litem from a case upon finding that the guardian ad litem acted in a manner contrary to a child's best interests, has not appropriately participated in the case, or if the court otherwise deems continued service as inappropriate or unnecessary.
(i) A guardian ad litem shall not engage in ex parte contact with the court except as otherwise provided by law.
(j) The court, a child, or any other party may compel a guardian ad litem for a child to attend a trial or hearing relating to such child and to testify, if appropriate, as to the proper disposition of a proceeding.
(k) The court shall ensure that parties have the ability to challenge recommendations made by the guardian ad litem or the factual basis for the recommendations in accordance with the rules of evidence applicable to the specific proceeding.
(l) A guardian ad litem's report shall not be admissible into evidence prior to the disposition hearing except in accordance with the rules of evidence applicable to the specific proceeding.
(m) A guardian ad litem who is not also serving as attorney for a child may be called as a witness for the purpose of cross- examination regarding the guardian ad litem's report even if the guardian ad litem is not identified as a witness by a party.
§ 15-11-105. Factors to be considered by the guardian ad litem relating to the best interest of a child
(a) A guardian ad litem shall advocate for a child's best interests in the proceeding for which the guardian ad litem has been appointed.
(b) In determining a child's best interests, a guardian ad litem shall consider and evaluate all of the factors affecting the best interests of a child in the context of a child's age and developmental needs. Such factors shall include:
(1) The physical safety and welfare of such child, including food, shelter, health, and clothing;
(2) The mental and physical health of all individuals involved;
(3) Evidence of domestic violence in any current, past, or considered home for such child;
(4) Such child's background and ties, including familial, cultural, and religious;
(5) Such child's sense of attachments, including his or her sense of security and familiarity and continuity of affection for the child;
(6) The least disruptive placement alternative for such child;
(7) The child's wishes and long-term goals;
(8) The child's community ties, including church, school, and friends;
(9) The child's need for permanence, including his or her need for stability and continuity of relationships with a parent, siblings, and other relatives;
15-11-105
(10) The uniqueness of every family and child;
(11) The risks attendant to entering and being in substitute care;
(12) The preferences of the persons available to care for such child; and
(13) Any other factors considered by the guardian ad litem to be relevant and proper to his or her determination.
(c) Unless a child's circumstances render the following duties and responsibilities unreasonable, a guardian ad litem shall at a minimum:
(1) Maintain regular and sufficient in-person contact with the child and, in a manner appropriate to his or her developmental level, meet with and interview such child prior to custody hearings, adjudication hearings, disposition hearings, judicial reviews, and any other hearings scheduled in accordance with the provisions of this chapter;
(2) In a manner appropriate to such child's developmental level, ascertain such child's needs, circumstances, and views;
(3) Conduct an independent assessment to determine the facts and circumstances surrounding the case;
(4) Consult with the child's attorney, if appointed separately, regarding the issues in the proceeding;
(5) Communicate with health care, mental health care, and other professionals involved with such child's case;
(6) Review case study and educational, medical, psychological, and other relevant reports relating to such child and the respondents;
(7) Review all court related documents;
(8) Attend all court hearings and other proceedings to advocate for such child's best interests;
(9) Advocate for timely court hearings to obtain permanency for such child;
(10) Protect the cultural needs of such child;
(11) Contact the child prior to any proposed change in such child's placement;
(12) Contact the child after changes in such child's placement;
15-11-105
(13) Request a judicial citizen review panel or judicial review of the case;
(14) Attend judicial citizen panel review hearings concerning such child and if unable to attend the hearings, forward to the panel a letter setting forth such child's status during the period since the last judicial citizen panel review and include an assessment of the DFCS permanency and treatment plans;
(15) Provide written reports to the court and the parties on the child's best interests, including, but not limited to, recommendations regarding placement of such child, updates on such child's adjustment to placement, DFCS's and respondent's compliance with prior court orders and treatment plans, such child's degree of participation during visitations, and any other recommendations based on the best interests of the child;
(16) When appropriate, encourage settlement and the use of any alternative forms of dispute resolution and participate in such processes to the extent permitted; and
(17) Monitor compliance with the case plan and all court orders.
(d)(1) Except as provided in Article 11 of this chapter, a guardian ad litem shall receive notices, pleadings, or other documents required to be provided to or served upon a party and shall be notified of all court hearings, judicial reviews, judicial citizen review panels, and other significant changes of circumstances of a child's case which he or she is appointed to the same extent and in the same manner as the parties to the case are notified of such matters.
(2) A guardian ad litem shall be notified of the formulation of any case plan of a child's case which he or she is appointed and may be given the opportunity to be heard by the court about such plans.
(e) Upon presentation of an order appointing a guardian ad litem, such guardian ad litem shall have access to all records and information relevant to a child's case to which he or she is appointed when such records and information are not otherwise protected from disclosure pursuant to Code Section 19-7-5. Such records and information shall not include records and information provided under Article 11 of this chapter or provided under Chapter 4A of Title 49.
(f) All records and information acquired or reviewed by a guardian ad litem during the course of his or her appointment shall be deemed confidential and shall not be disclosed except as ordered by the court.
(g) Except as provided in Code Section 49-5-41, regarding access to records, any guardian ad litem who discloses confidential information obtained during the course of his or her appointment, in violation of law, shall be guilty of a misdemeanor. A guardian ad litem shall maintain all information and records regarding mental health, developmental disability, and substance abuse according to the confidentiality requirements contained in Code Section 37-3-166, 37-4-125, or 37-7-166, as applicable.
(h) In the event of a change of venue, the original guardian ad litem shall, as soon as possible, communicate with the appointed guardian ad litem in the new venue and shall forward all pertinent information to the new guardian ad litem.
15-11-105
§ 15-11-106. Appointment and role of CASA; discharge
(a)(1) Before executing duties as a CASA, and upon completion of all the requirements of an affiliate court appointed special advocate program, a CASA shall be sworn in by a judge of the juvenile court in the court or circuit in which he or she wishes to serve. A CASA shall not be assigned a case prior to being sworn in by a juvenile court judge as set forth in this paragraph.
(2) If a juvenile court judge determines that a child involved in a dependency proceeding needs a CASA, the judge shall have the authority to appoint a CASA, and in such circumstance shall sign an order appointing a CASA at the earliest possible stage of the proceedings. Such order shall impose on a CASA all the duties, rights, and responsibilities set forth in this Code section and Code Sections 15-11-104 and 15-11-105.
(b) The role of a CASA in juvenile court dependency proceedings shall be to advocate for the best interests of the child.
(c) In addition to the reasons stated in subsection (h) of Code Section 15-11-104, the court may discharge a CASA upon finding that the CASA has acted in a manner contrary to the mission and purpose of the affiliate court appointed special advocate program.
§ 15-11-108. Written notice of postadjudication hearings or reviews
(a) The court shall give to all parties written notice of the date, time, place, and purpose of the following postadjudication hearings or reviews:
(1) Nonreunification hearings;
(2) Disposition hearings;
(3) Periodic review hearings;
(4) Periodic reviews by judicial citizen review panel;
(5) Permanency plan hearings;
(6) Termination of parental rights hearings; and
(7) Posttermination of parental rights review hearings.
(b) Issuance and service of summons, when appropriate, shall comply with the requirements of Code Sections 15-11-160 and 15-11-161.
(c) Unless otherwise provided in this chapter, written notice shall be delivered to the recipient at least 72 hours before the hearing or review by United States mail, e-mail, or hand delivery.
§ 15-11-109. Required notice by DFCS in advance of each hearing or review
(a) In advance of each hearing or review, DFCS shall give written notice of the date, time, place, and purpose of the review or hearing, including the right to be heard, to the caregiver of a child, the foster parent of a child, any preadoptive parent, or any relative providing care for a child. The written notice shall be delivered to the recipient at least 72 hours before the review or hearing, except in the case of preliminary protective hearings or emergency hearings when such notice is not possible, by United States mail, e-mail, or hand delivery.
(b) Notice of a hearing or review shall not be construed to require a legal custodian, foster parent, preadoptive parent, or relative caring for a child to be made a party to the hearing or review solely on the basis of such notice and opportunity to be heard.
(c) Upon placement of a child, DFCS shall provide the caregiver, foster parent, preadoptive parent, or relative providing care for such child with the following information in writing:
(1) At the time of placement:
(A) An explanation of the process for enrolling the child in school and any information necessary to complete the process;
(B) A description of any financial assistance for which the caregiver, foster parent, preadoptive parent, or relative may be eligible, including any financial assistance available for child care;
(C) A description of the reasonable and prudent parenting standard defined in Code Section 49-5-3; and
(D) Contact information for a county or district department of family and children services; and
(2) At the time of placement, if available:
(A) A copy of or recommendations from the child's most recent physical and dental examinations and any available information on the child's known medical conditions and current medications;
(B) A copy of or recommendations from the child's most recent developmental assessment, trauma assessment, and psychological evaluation;
(C) A copy of any court scheduling order or the dates and times for any scheduled hearings relating to the child; and
(D) Health insurance information for the child, including the child's Medicaid number.
If the information listed in this paragraph is not available to DFCS at the time of placement, DFCS shall request such information no later than 15 days after the child enters foster care and provide such information to the caregiver, foster parent, preadoptive parent, or relative providing care for the child. Provision of records in accordance with this paragraph shall not be considered a violation of subsection (b) of Code Section 49-5-40.
(d) At each hearing or review, the court shall make specific findings of fact in writing regarding participation by the caregiver of a child, the foster parent of a child, any preadoptive parent, or any relative providing care for a child. Such findings of fact shall include:
(1) Whether the caregiver was provided notice of the hearing or review, including the method, and whether the caregiver expressed an interest in being heard at the hearing or review; and
(2) If the caregiver is present, specific information regarding the caregiver's views, including, but not limited to, concerning the child's well-being, health, and safety; any changes the caregiver believes are necessary to advance the child's well-being, health, and safety; and the timeliness, necessity, and quality of services being provided to the child and caregiver; and a summary of documentation presented by the caregiver regarding the child's well-being, health, and safety, including, but not limited to, reports from physicians, counselors, psychologists, and teachers.
§ 15-11-110. Continuances
(a) Upon request of an attorney for a party, the court may continue any hearing under this article beyond the time limit within which the hearing is otherwise required to be held; provided, however, that no continuance shall be granted that is contrary to the interests of the child. In considering a child's interests, the court shall give substantial weight to a child's need for prompt resolution of his or her custody status, the need to provide a child with a stable environment, and the damage to a child of prolonged temporary placements.
(b) Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion. Whenever any continuance is granted, the facts proved which require the continuance shall be entered in the court record.
(c) A stipulation between attorneys or the convenience of the parties shall not constitute good cause. Hearings with dependency case time limitations required by Code Section 15-11-102 and termination of parental rights hearings shall take priority in attorney conflict resolution over all other civil and criminal hearings and nonjury appearances in any other class of trial court. The need for discovery shall not constitute good cause unless the court finds that a person or entity has failed to comply with an order for discovery.
(d) In any case in which a child or his or her parent, guardian, or legal custodian is represented by an attorney and no objection is made to an order continuing any such hearing beyond the time limit, the absence of such an objection shall be deemed a consent to the continuance; provided, however, that even with consent, the court shall decide whether to grant the continuance in accordance with subsection (a) of this Code section.
§ 15-11-111. Court’s discretion to enter an order; contents of order
(a) At any hearing held with respect to a child, the court in its discretion, and based upon the evidence, may enter an order:
(1) Accepting or rejecting any DFCS report;
(2) Ordering an additional evaluation; or
(3) Undertaking such other review as it deems necessary and appropriate to determine the disposition that is in the child's best interests.
(b) The court's order:
(1) May incorporate all or part of the DFCS report; and
(2) Shall include findings of fact which reflect the court's consideration of the oral and written testimony offered by all parties, as well as nonparties, who are required to be provided with notice and a right to be heard in any hearing to be held with respect to a child, and DFCS.
§ 15-11-112. Court-ordered visitation
(a) When a child is removed from his or her home, the court shall order reasonable visitation that is consistent with the age and developmental needs of a child if the court finds that it is in a child's best interests. The court's order shall specify the frequency, duration, and terms of visitation including whether or not visitation shall be supervised or unsupervised.
(b) There shall be a presumption that visitation shall be unsupervised unless the court finds that unsupervised visitation is not in a child's best interests.
(c) Within 30 days of the court finding that there is a lack of substantial progress towards completion of a case plan, the court shall review the terms of visitation and determine whether the terms continue to be appropriate for a child or whether the terms need to be modified.
§ 15-11-113. Date child is considered to have entered foster care
When a child is alleged to be a dependent child, the date such child is considered to have entered foster care shall be the date of the first judicial finding that such child has been subjected to child abuse or neglect or the date that is 60 days after the date on which such child is removed from his or her home, whichever is earlier.
§ 15-11-125. Venue; location of proceeding
(a) A proceeding under this article may be commenced:
(1) In the county in which a child legally resides; or
(2) In the county in which a child is present when the proceeding is commenced if such child is present without his or her parent, guardian, or legal custodian or the acts underlying the dependency allegation are alleged to have occurred in that county.
(b) For the convenience of the parties, the court may transfer the proceeding to the county in which a child legally resides. If the proceeding is transferred, certified copies of all legal and social documents and records pertaining to the proceeding on file with the clerk of court shall accompany the transfer.
§ 15-11-130.1. Referral of child to victim assistance organization
A law enforcement officer or agency or DFCS shall refer any child suspected of being a victim of sexual exploitation or trafficking under Code Section 16-5-46 to an available victim assistance organization, as certified by the Criminal Justice Coordinating Council pursuant to Code Section 15-21-132, which provides comprehensive trauma-informed services designed to alleviate the adverse effects of trafficking victimization and to aid in the child's healing, including, but not limited to, assistance with case management, placement, access to educational and legal services, and mental health services.
§ 15-11-132. Oral issuance of an order of removal; affidavit or sworn complaint
(a) The facts supporting the issuance of an order of removal may be relayed orally, including telephonically, to the judge or a designated juvenile court intake officer, and the order directing that a child be taken into custody may be issued orally or electronically.
(b) When a child is taken into custody under exceptional circumstances, an affidavit or sworn complaint containing the information previously relayed orally, including telephonically, shall be filed with the clerk of the court the next business day, and a written order shall be issued if not previously issued. Only when a child is taken into custody under exceptional circumstances can an affidavit or sworn complaint be filed. The written order shall include the court's findings of fact supporting the necessity for such child's removal from the custody of his or her parent, guardian, or legal custodian in order to safeguard such child's welfare and shall designate a child's legal custodian.
(c) The affidavit or sworn complaint filed after a child has been placed shall indicate whether the child was released to such child's parent, guardian, or legal custodian or remains removed.
(d) DFCS shall promptly notify the parent, guardian, or legal custodian of the nature of the allegations forming the basis for taking a child into custody and, if such child is not released, of the time and place of the preliminary protective hearing.
§ 15-11-133. Removal of child from home
(a) A child may be removed from his or her home, without the consent of his or her parents, guardian, or legal custodian:
(1) Pursuant to an order of the court under this article; or
(2) By a law enforcement officer or duly authorized officer of the court if:
(A) A child is in imminent danger of abuse or neglect if he or she remains in the home; or
(B) A child is a victim of trafficking for labor or sexual servitude under Code Section 16-5-46.
(b) Upon removing a child from his or her home, a law enforcement officer or duly authorized officer of the court shall:
(1) Immediately deliver such child to a medical facility if such child is believed to suffer from a serious physical condition or illness which requires prompt treatment, and, upon delivery, shall promptly contact DFCS;
(2) Bring such child immediately before the juvenile court or promptly contact the juvenile court; and
(3) Promptly give notice to the court and such child's parents, guardian, or legal custodian that such child is in protective custody, together with a statement of the reasons for taking such child into protective custody.
(c) The removal of a child from his or her home by a law enforcement officer shall not be deemed an arrest.
(d) A law enforcement officer removing a child from his or her home has all the privileges and immunities of a law enforcement officer making an arrest.
(e) A law enforcement officer shall promptly contact the juvenile court for issuance of a court order once such officer has taken a child into protective custody and delivered such child to a medical facility.
(f) The juvenile court shall immediately determine if a child should be released, remain in protective custody, or be brought before the court upon being contacted by a law enforcement officer, duly authorized officer of the court, or DFCS that a child has been taken into protective custody.
(g) In addition to the requirements of Code Section 15-11-134, prior to authorizing the removal of a child from his or her home as provided in paragraph (1) of subsection (a) of this Code section or ordering a child to remain in protective custody as provided in subsection (f) of this Code section, the court shall consider whether there are reasonable alternatives to the removal of the child and placement of the child in foster care and may order temporary alternatives to foster care in lieu of removing the child and placing the child in protective custody or continuing the child in protective custody pursuant to Code Section 15-11-133.1.
§ 15-11-133.1. Temporary alternatives to foster care
(a) Temporary alternatives to foster care may be ordered by the court ex parte, prior to a preliminary protective hearing, or may be ordered following a preliminary protective hearing. An order for temporary alternatives to foster care may include one or more of the following:
(1) A temporary order authorizing or continuing any voluntary agreement between the parent, guardian, or legal custodian and DFCS;
(2) Where an order for temporary alternatives to foster care is entered, a temporary protective order imposing conditions or limitations on the conduct of the parent, guardian, or legal custodian, including requiring the individual to:
(A) Prohibit access to the child by an individual;
(B) Comply with any existing visitation agreement associated with the voluntary placement;
(C) Abstain from offensive conduct against a child or his or her parent, guardian, or legal custodian;
(D) Give proper attention to the care of his or her home;
(E) Cooperate in good faith with DFCS;
(F) Refrain from acts of commission or omission that may render a home an improper place for a child; or
(G) Ensure that a child attends school pursuant to any valid law relating to compulsory attendance;
(3) An order that the DFCS investigate and report to the court whether removal is necessary; or
(4) An order that the DFCS provide services designed to allow the child to remain safely in the child's home.
(b) An order pursuant to paragraph (1) of subsection (a) of this Code section authorizing or continuing any voluntary agreement between the parent, guardian, or legal custodian and DFCS for the child to be cared for by a relative or fictive kin shall be based upon a finding by the court that continuation of the child in his or her home would be contrary to his or her welfare. Such findings shall be made on an individualized basis and shall be documented in the court's written order.
(c) When entering an order pursuant to paragraph (1) of subsection (a) of this Code section authorizing or continuing any voluntary agreement between the parent, guardian, or legal custodian and DFCS for the child to be cared for by a relative or fictive kin, the court shall order a preliminary assessment of the person who is to provide care for the child by a probation officer, or such other individual or agency as the court may designate, which shall include, at a minimum:
(1) A walk-through of such person's residence to identify safety hazards;
(2) An in-state criminal record check, pursuant to subsection (a) or (c) of Code Section 35-3-34, of such person and all other adults living in such person's residence;
(3) A search of the Georgia Sex Offender Registry for the name of such person and all other adults living in such person's residence; and
(4) A search of data provided electronically to the public by the Department of Community Supervision and the Department of Corrections for information concerning such person and all adults living in such person's residence.
Such preliminary assessment shall be completed no later than 72 hours after the time such order is entered except that if such order is entered on a weekend, such preliminary assessment may be completed no later than five days after the order is entered.
(d) Upon issuance of an order for a temporary alternative to foster care, a preliminary protective hearing shall be completed as provided in Code Section 15-11-145.
(e) Temporary alternatives to foster care ordered by the court in accordance with this Code section shall remain in effect until modified by the court or until the court has held the preliminary protective hearing. If probable cause exists, DFCS shall file a petition alleging dependency in accordance with subsection (b) of Code Section 15-11-151 following the preliminary protective hearing. The court may continue to impose the temporary alternatives to foster care after the preliminary protective hearing in accordance with subsection (b) of Code Section 15-11-146.
§ 15-11-134. Order authorizing removal of child from home; order continuing a child’s placement outside custody of parent, guardian, or legal custodian
(a) Any order authorizing the removal of a child from his or her home shall be based on a finding by the court that continuation in his or her home would be contrary to his or her welfare.
(b) Any order continuing a child's placement outside of the physical custody of his or her parent, guardian, or legal custodian shall be based on a finding by the court that return of such child to such custody would be contrary to his or her welfare.
(c) Findings under this Code section shall be made on an individualized case-by-case basis and shall be documented in the court's written order.
§ 15-11-135. Placement of child prior to hearing on a petition for dependency
(a) A child taken into custody shall not be placed in foster care prior to the hearing on a petition for dependency unless:
(1) Foster care is required to protect the child;
(2) The child has no parent, guardian, or legal custodian or other person able to provide supervision and care and return him or her to the court when required; or
(3) An order for the child's foster care has been made by the court.
(b) No child alleged to be or adjudicated as a dependent child shall be detained in any jail, adult lockup, or adult detention facility, nor shall a child be detained in a secure residential facility or nonsecure residential facility unless a child is also alleged to have committed a delinquent act or adjudicated to be a delinquent child and the court determines that the requirements for detention under Article 6 of this chapter are met.
(c) An alleged dependent child may be placed in foster care only in:
(1) A licensed or approved foster home or a home approved by the court which may be a public or private home;
(2) The home of the child's noncustodial parent;
(3) The home of a relative;
(4) The home of fictive kin;
(5) A facility operated by a licensed child welfare agency; or
(6) A licensed shelter care facility approved by the court.
(d) The actual physical placement of a child pursuant to this Code section shall require the approval of the judge of the juvenile court or his or her designee.
(e) In any case in which a child is taken into protective custody of DFCS:
(1) DFCS shall give preference for placement to an adult who is a relative or fictive kin over a nonrelated caregiver, provided that such relative or fictive kin has met all requirements for a DFCS relative or fictive kin placement and such placement is in the best interests of the child; and
(2) Such child shall be placed together with his or her siblings who are also in protective custody or DFCS shall include a statement in its report and case plan of continuing efforts to place the siblings together or document why such joint placement would be contrary to the safety or well-being of any of the siblings. If siblings are not placed together, DFCS shall provide for frequent visitation or other ongoing interaction between siblings, unless DFCS documents that such frequent visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings.
§ 15-11-145. Preliminary protective hearing
(a) If an alleged dependent child is removed from his or her home and is not returned home, the preliminary protective hearing shall be held promptly and not later than 72 hours after such child is placed in foster care; provided, however, that if the 72 hour time frame expires on a weekend or legal holiday, the hearing shall be held on the next day which is not a weekend or legal holiday.
(b) Reasonable oral or written notice of the preliminary protective hearing, stating the time, place, and purpose of the hearing, shall be given to the child who is a party in such hearing and, if such person can be found, to his or her parent, guardian, or legal custodian.
(c) If an alleged dependent child's parent, guardian, or legal custodian has not been notified of the preliminary protective hearing and did not appear or waive appearance at such hearing and thereafter files an affidavit showing such facts, the court shall rehear the matter without unnecessary delay and shall order such child's release unless it appears from such hearing that such child's foster care is warranted or required.
(d) The following persons shall have the right to participate in the preliminary protective hearing:
(1) A child's parent, guardian, or legal custodian, unless such person cannot be located or fails to appear in response to the notice;
(2) A child's attorney and guardian ad litem if a guardian ad litem has been appointed;
(3) A child who was removed from his or her home, unless the court finds, after considering evidence of harm to such child that will result from such child's presence at the proceeding, that being present is not in such child's best interests;
(4) A parent's attorney if an attorney has been retained or appointed;
(5) The assigned DFCS caseworker; and
(6) The attorney for DFCS.
(e) The court may allow the following parties to be present at the preliminary protective hearing, if the court finds it is in the best interests of the child:
(1) Any relative or other persons who have demonstrated an ongoing commitment to a child with whom a child might be placed;
(2) DFCS employees involved in the case;
(3) An advocate as requested by an alleged dependent child's parent, guardian, or legal custodian; and
(4) Other persons who have knowledge of or an interest in the welfare of the child who is alleged to be dependent.
(f) At the commencement of a preliminary protective hearing, the court shall inform the parties of:
(1) The contents of the complaint in terms understandable to the parties;
(2) The nature of the proceedings in terms understandable to the parties; and
(3) The parties' due process rights, including the parties' right to an attorney and to an appointed attorney if they are indigent persons, the right to call witnesses and to cross-examine all witnesses, the right to present evidence, and the right to a trial by the court on the allegations in the complaint or petition.
(g) If a child is not released at the preliminary protective hearing, a petition for dependency shall be made and presented to the court within five days of such hearing.
(h) The court may consider any evidence, including hearsay evidence, that the court finds to be relevant, reliable, and necessary to determine the needs of an alleged dependent child or to make determinations or findings required by Code Section 15-11-146.
§ 15-11-146. Preliminary protective hearing; findings
(a) At the preliminary protective hearing, the court shall determine: (1) Whether there is probable cause to believe a child is a dependent child; and (2) Whether protective custody of a child is necessary to prevent abuse or neglect pending the hearing on the dependency petition.
(b) The court: (1) On finding that the complainant has not proved either of the required elements prescribed in subsection (a) of this Code section, shall dismiss the case and shall return the child before the court to his or her parent, guardian, or legal custodian; (2) On finding that the complainant has not met the burden of proving that protective custody is necessary, shall return the child before the court to his or her parent, guardian, or legal custodian pending the hearing on the dependency petition; or (3) On finding that the complainant has met the burden prescribed in subsection (a) of this Code section, may place the child before the court in the temporary custody of DFCS pending the hearing on the dependency petition.
(c) A court's order removing a child from his or her home or ordering a temporary alternative to foster care authorizing or continuing any voluntary agreement between the parent, guardian, or legal custodian and DFCS for the child to be cared for by a relative or fictive kin pursuant to paragraph (1) of subsection (a) of Code Section 15-11-133.1 shall be based upon a finding that: (1) Continuation in his or her home would be contrary to such child's welfare; or (2) Removal is in such child's best interests.
(d) The court shall make written findings as to whether DFCS has made reasonable efforts to prevent or eliminate the need for removal of a child from his or her home and to make it possible for such child to safely return home. If the court finds that no services were provided but that reasonable services would not have eliminated the need for protective custody, the court shall consider DFCS to have made reasonable efforts to prevent or eliminate the need for protective custody. The court shall include in the written findings a brief description of what preventive and reunification efforts were made by DFCS.
(e) In determining whether a child shall be removed or continued out of his or her home, the court shall consider whether reasonable efforts can prevent or eliminate the need to separate the family.
(f) To aid the court in making the required written findings, DFCS shall present evidence to the court outlining the reasonable efforts made to prevent taking a child into protective custody and to provide services to make it possible for such child to safely return to his or her home and why protective custody is in the best interests of the child.
§ 15-11-151. Filing of petition alleging dependency
(a) If a child was removed from his or her home, a petition alleging dependency shall be filed within five days of the preliminary protective hearing.
(b) If a child was not removed from his or her home or if a child was removed from his or her home but was released from protective custody at the preliminary protective hearing, a petition alleging dependency shall be filed within 30 days of the preliminary protective hearing.
(c) Upon a showing of good cause and notice to all parties, the court may grant a requested extension of time for filing a petition alleging dependency in accordance with the best interests of the child. The court shall issue a written order reciting the facts justifying the extension.
(d) If a petition alleging dependency is not filed within the required time frame, the complaint shall be dismissed without prejudice.
§ 15-11-152. Contents of petition alleging dependency
A petition alleging dependency shall be verified and may rely on information and belief and shall set forth plainly and with particularity:
(1) The facts which bring a child within the jurisdiction of the court, with a statement that it is in the best interests of the child and the public that the proceeding be brought;
(2) The name, date of birth, and residence address of the child named in the petition;
(3) The name and residence address of the parent, guardian, or legal custodian of the child named in the petition; or, if such child's parent, guardian, or legal custodian does not reside or cannot be found within the state or if such place of residence address is unknown, the name of any known adult relative of such child residing within the county or, if there is none, the known adult relative of such child residing nearest to the location of the court;
(4) Whether the child named in the petition is in protective custody and, if so, the place of his or her foster care and the time such child was taken into protective custody; and
(5) Whether any of the information required by this Code section is unknown.
§ 15-11-153. Amendment of petition alleging dependency
(a) The petitioner may amend the petition alleging dependency at any time:
(1) To cure defects of form; and
(2) Prior to the adjudication hearing, to include new allegations of fact or requests for adjudication.
(b) When the petition is amended after the initial service to include new allegations of fact or requests for adjudication, the amended petition shall be served on the parties and provided to the attorneys of record.
(c) The court shall grant the parties additional time to prepare only as may be required to ensure a full and fair hearing; provided, however, that when a child is in protective custody or in detention, an adjudication hearing shall not be delayed more than ten days beyond the time originally fixed for the hearing.
§ 15-11-160. Issuance of a summons
(a) The court shall direct the issuance of a summons to a child if such child is 14 years of age or older, such child's parent, guardian, or legal custodian, such child's attorney, such child's guardian ad litem, if any, and any other persons who appear to the court to be proper or necessary parties to the proceeding, requiring them to appear before the court at the time fixed to answer the allegations of the petition alleging dependency. A copy of the petition alleging dependency shall accompany the summons unless the summons is served by publication, in which case the published summons shall indicate the general nature of the allegations and where a copy of the petition alleging dependency can be obtained.
(b) A summons shall state that a party is entitled to an attorney in the proceedings and that the court will appoint an attorney if the party is an indigent person.
(c) The court may endorse upon the summons an order directing a child's parent, guardian, or legal custodian to appear personally at the hearing and directing the person having the physical custody or control of a child to bring such child to the hearing.
(d) A party other than a child may waive service of summons by written stipulation or by voluntary appearance at the hearing.
§ 15-11-161. 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 due 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, return receipt requested.
(c) If a party to be served is outside this state but his or her address is known or can be ascertained with due 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, return receipt requested.
(d) If, after due diligence, a party to be served with a summons cannot be found and such party's address cannot be ascertained, whether he or she is within or outside this state, the court may order service of the summons upon him or her by publication. The adjudication hearing shall not be earlier than five days after the date of the last publication.
(e)(1) Service by publication shall be made once a week for four consecutive weeks in the official organ of the county where the petition alleging dependency has been filed. Service shall be deemed complete upon the date of the last publication.
(2) When served by publication, the notice shall contain the names of the parties, except that the anonymity of a child shall be preserved by the use of appropriate initials, and the date the petition alleging dependency was filed. The notice shall indicate the general nature of the allegations and where a copy of the petition alleging dependency can be obtained and require the party to be served by publication to appear before the court at the time fixed to answer the allegations of the petition alleging dependency.
(3) Within 15 days after the filing of the order of service by publication, the clerk of court shall mail a copy of the notice, a copy of the order of service by publication, and a copy of the petition alleging dependency to the last known address of the party being served by publication.
(f) Service of the summons may be made by any suitable person under the direction of the court.
(g) The court may authorize the payment from county funds of the costs of service and of necessary travel expenses incurred by persons summoned or otherwise required to appear at the hearing.
§ 15-11-162. Failure of parent, guardian, or legal custodian to appear at hearing
(a) In the event a parent, guardian, or legal custodian of a child named in a petition alleging dependency is brought willfully fails to appear personally at a hearing after being ordered to so appear or willfully fails to bring such child to a hearing after being so directed, the court may issue an order 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 a parent, guardian, or legal custodian of a child named in a petition alleging dependency is brought fails to appear in response to an order to show cause, the court may issue a bench warrant directing that such 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 15-11-31.
§ 15-11-163. Entering an interlocutory order
(a) If service of summons upon a party is made by publication, the court may conduct a provisional hearing upon the allegations of the petition alleging dependency and enter an interlocutory order of disposition if:
(1) The petition alleges dependency of a child;
(2) The summons served upon any party:
(A) States that prior to the final hearing on such petition a provisional hearing will be held at a specified time and place;
(B) Requires the party who is served other than by publication to appear and answer the allegations of the petition alleging dependency at the provisional hearing;
(C) States further that findings of fact and orders of disposition made pursuant to the provisional hearing will become final at the final hearing unless the party served by publication appears at the final hearing; and
(D) Otherwise conforms to the requirements of Code Section 15-11-160; and
(3) A child named in a petition alleging dependency is brought is personally before the court at the provisional hearing.
(b) Findings of fact and orders of disposition shall have only interlocutory effect pending final hearing on the petition alleging dependency.
(c) If a party served by publication fails to appear at the final hearing on the petition alleging dependency, the findings of fact and interlocutory orders made shall become final without further evidence. If a party appears at the final hearing, the findings and orders shall be vacated and disregarded and the hearing shall proceed upon the allegations of such petition without regard to this Code section.
§ 15-11-170. Discovery procedures; limitations; orders
(a) In all cases under this article, any party shall, upon written request to the party having actual custody, control, or possession of the material to be produced, have full access to the following for inspection, copying, or photographing:
(1) The names and telephone numbers of each witness likely to be called to testify at the hearing by another party;
(2) A copy of any formal written statement made by the alleged dependent child or any witness that relates to the subject matter concerning the testimony of the witness that a party intends to call as a witness at the hearing;
(3) Except as otherwise provided in subsection (b) of this Code section, any scientific or other report which is intended to be introduced at any hearing or that pertains to physical evidence which is intended to be introduced;
(4) Any drug screen concerning the alleged dependent child or his or her parent, guardian, or legal custodian;
(5) Any case plan concerning the alleged dependent child or his or her parent, guardian, or legal custodian;
(6) Any visitation schedule related to the alleged dependent child;
(7) Photographs and any physical evidence which are intended to be introduced at any hearing;
(8) Copies of any police incident reports regarding an occurrence which forms part or all of the basis of the petition; and
(9) Any other relevant evidence not requiring consent or a court order under subsection (b) of this Code section.
(b) Upon presentation of a court order or written consent from the appropriate person or persons permitting access to the party having actual custody, control, or possession of the material to be produced, any party shall have access to the following for inspection, copying, or photographing:
(1) Any psychological, developmental, physical, mental or emotional health, or other assessments of the alleged dependent child or his or her family, parent, guardian, or legal custodian;
(2) Any school record concerning the alleged dependent child;
(3) Any medical record concerning the alleged dependent child;
(4) Transcriptions, recordings, and summaries of any oral statement of the alleged dependent child or of any witness, except child abuse reports that are confidential pursuant to Code Section 19-7-5 and work product of counsel;
(5) Any family team meeting report or multidisciplinary team meeting report concerning the alleged dependent child or his or her parent, guardian, or legal custodian;
(6) Supplemental police reports, if any, regarding an occurrence which forms part of all of the basis of the petition; and
(7) Immigration records concerning the alleged dependent child.
(c) If a party requests disclosure of information pursuant to subsection (a) or (b) of this Code section, it shall be the duty of such party to promptly make the following available for inspection, copying, or photographing to every other party:
(1) The names and last known addresses and telephone numbers of each witness to the occurrence which forms the basis of the party's defense or claim;
(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 subject matter concerning the testimony of the witness that the party intends to call as a witness.
(d) A request for discovery or reciprocal discovery shall be complied with promptly and not later than five days after the request is received or 72 hours prior to any hearing except when later compliance is made necessary by the timing of such request. If such request for discovery is made fewer than 48 hours prior to an adjudicatory hearing, the discovery response shall be produced in a timely manner. If, subsequent to providing a discovery response in compliance with this Code section, the existence of additional evidence is found, it shall be promptly provided to the party making the discovery request.
(e) If a request for discovery or consent for release is refused, application may be made to the court for a written order granting discovery. Motions for discovery shall certify that a request for discovery or consent was made and was unsuccessful despite
good faith efforts made by the requesting party. An order granting discovery shall require reciprocal discovery. Notwithstanding the provisions of subsection (a) or (b) of this Code section, the court may deny, in whole or in part, or otherwise limit or set conditions concerning a discovery response upon a 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 minor who is being prosecuted as an adult or the prosecution of an adult charged with an offense arising from the same transaction or occurrence.
(f) No deposition shall be taken of an alleged dependent child unless the court orders the deposition, under such conditions as the court may order, on the ground that the deposition would further the purposes of this part.
(g) 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 an order issued pursuant to this Code section, 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.
(h) Nothing contained in this Code section shall prohibit the court from ordering the disclosure of any information that the court deems necessary for proper adjudication.
(i) Any material or information furnished to a party pursuant to this Code section shall remain in the exclusive custody of the party 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.
§ 15-11-180. Burden of proof
The petitioner shall have the burden of proving the allegations of a dependency petition by clear and convincing evidence.
§ 15-11-190. Written social study and report
If the allegations of the petition alleging dependency are admitted or after an adjudication hearing the court has adjudicated a child as a dependent child, the court may direct that a written social study and report be made by a person designated by the court.
§ 15-11-191. Subjects included in social study
Each social study shall include, but not be limited to, a factual discussion of each of the following subjects:
(1) What plan, if any, for the return of the child adjudicated to be a dependent child to his or her parent and for achieving legal permanency for such child if efforts to reunify fail is recommended to the court;
(2) Whether the best interests of the child will be served by granting reasonable visitation rights to his or her other relatives in order to maintain and strengthen the child adjudicated to be a dependent child's family relationships;
(3) Whether the child adjudicated to be a dependent child has siblings under the court's jurisdiction, and, if so:
(A) The nature of the relationship between such child and his or her siblings;
(B) Whether the siblings were raised together in the same home and whether the siblings have shared significant common experiences or have existing close and strong bonds;
(C) Whether the child adjudicated to be a dependent child expresses a desire to visit or live with his or her siblings and whether ongoing contact is in such child's best interests;
(D) The appropriateness of developing or maintaining sibling relationships;
(E) If siblings are not placed together in the same home, why the siblings are not placed together and what efforts are being made to place siblings together or why those efforts are not appropriate;
(F) If siblings are not placed together, the frequency and nature of the visits between siblings; and
(G) The impact of the sibling relationship on the child adjudicated to be a dependent child's placement and planning for legal permanence;
(4) The appropriateness of any placement with a relative of the child adjudicated to be a dependent child; and
(5) Whether a caregiver desires and is willing to provide legal permanency for a child adjudicated to be a dependent child if reunification is unsuccessful.
§ 15-11-200. DFCS written report to court
(a) Within 30 days of the date a child who is placed in DFCS custody is removed from his or her home and at each subsequent review of the disposition order, DFCS shall submit a written report to the court which shall either:
(1) Include a case plan for a reunification of the family; or
(2) Include a statement of the factual basis for determining that a plan for reunification is not appropriate.
(b) The report submitted by DFCS shall become a discrete part of the case record in a format determined by DFCS and shall be made available to a child who is placed in DFCS custody if such child is 14 years of age or older, his or her attorney, his or her guardian ad litem, if any, and the parent, guardian, or legal custodian of such child. The contents of the report shall be determined at a meeting to be held by DFCS in consultation with the parent, guardian, or legal custodian and child who was placed in DFCS custody, when appropriate. The parent, guardian, or legal custodian, the child who was placed in DFCS custody if such child is 14 years of age or older, his or her attorney, and guardian ad litem, if any, shall be given written notice of the meeting at least five days in advance of such meeting and shall be advised that the report will be submitted to the court for consideration as an order of the court. The report submitted to the court shall also contain any dissenting recommendations of the judicial citizen review panel, if applicable, and any recommendations of the parent, guardian, or legal custodian of the child who was placed in DFCS custody, if such are available.
(c) If the court adopts a report that contains a case plan for reunification services, it shall be in effect until modification by the court. A case plan shall address each reason requiring removal of a child from his or her home and shall, at a minimum, comply with the requirements of Code Section 15-11-201.
(d) If the submitted DFCS report contains a proposed case plan for reunification services:
(1) DFCS shall provide the caregiver, the foster parent, and any preadoptive parent or relative providing care for the child who was placed in DFCS custody with a copy of those portions of the court approved case plan that involve the permanency goal and the services to be provided to the child;
(2) A copy of the DFCS report and case plan shall be delivered to the parent, guardian, or legal custodian by United States mail, e-mail, or hand delivery at the same time the report and case plan are transmitted to the court, along with written notice that such report will be considered by the court without a hearing unless, within five days from the date the copy of such report and case plan were delivered, the parent, guardian, or legal custodian of the child who was placed in DFCS custody requests a hearing before the court to review such report and case plan; and
(3) If no hearing is requested, the court shall enter a disposition order or supplemental order incorporating all elements of the case plan for reunification services which the court finds essential to reunification, specifying what shall be accomplished by all parties before reunification of the family can be achieved.
(e) When DFCS recommends that reunification services are not appropriate and should not be allowed, the DFCS report shall address each reason requiring removal of a child from his or her home and shall contain at least the following:
(1) The purpose for which the child in DFCS custody was placed in foster care, including a statement of the reasons why such child cannot be adequately and safely protected at his or her home and the harm which may occur if such child remains in his or her home and a description of the services offered and the services provided to prevent removal of such child from his or her home;
(2) A clear statement describing all of the reasons supporting a finding that reunification of a child with his or her parent will be detrimental to such child and that reunification services therefore need not be provided, including specific findings as to whether any of the grounds for terminating parental rights exist; and
(3) The statements, provisions, and requirements found in paragraphs (11) and (12) of subsection (b) of Code Section 15-11-201.
§ 15-11-201. Case plan; contents in case plan
<Text of section effective until enactment of the Interstate Compact for the Placement of Children into law by the thirty-fifth state. See, also, text of section 15-11-201 effective upon enactment of the Interstate Compact for the Placement of Children into law by the thirty-fifth state.>
(a) A case plan shall be designed to achieve placement in the most appropriate, least restrictive, and most family-like setting available and in close proximity to the alleged dependent child's parent's home, consistent with the best interests and special needs of such child, and shall consider the placement's proximity to the school in which such child is enrolled at the time of placement.
(b) A case plan shall be developed by DFCS and the parent, guardian, or legal custodian of the alleged dependent child and, when appropriate, such child. A case plan shall include, but not be limited to, all of the following:
(1) A description of the circumstances that resulted in such child being placed under the jurisdiction of the court and in foster care;
(2) An assessment of such child's and his or her family's strengths and needs and the type of placement best equipped to meet those needs;
(3)(A) A description of the type of home or institution in which such child is to be placed, including a discussion of the safety and appropriateness of the placement.
(B) If a child is placed in a qualified residential treatment program, DFCS must document:
(i) Reasonable and good faith efforts to identify and include all the individuals of the child's family and permanency team;
(ii) All contact information for members of the family and permanency team;
(iii) All contact information for other family members and fictive kin who are not part of the family and permanency team;
(iv) Evidence that meetings of the family and permanency team, including meetings relating to the assessment required by Code Section 15-11-219, are held at a time and place convenient for family;
(v) If reunification is the goal, evidence demonstrating that the parent from whom the child was removed provided input on the members of the family and permanency team;
(vi) Evidence that the assessment required by Code Section 15-11-219 is determined in conjunction with the family and permanency team;
(vii) The placement preferences of the family and permanency team relative to the assessment that recognizes children should be placed with their siblings unless there is a finding by the court that such placement is contrary to their best interest; and
(viii) If the placement preferences of the family and permanency team and child are not the placement setting recommended by the qualified individual conducting the assessment under Code Section 15-11-219, the reasons why the preferences of the team and of the child were not recommended.
(C) If a child is placed in a qualified residential treatment program for more than six consecutive or nonconsecutive months, DFCS must maintain:
(i) Documentation of the assessment completed by a qualified individual, including written recommendations regarding the placement that will provide the child with the most effective level of care in the least restrictive environment and how that placement is consistent with the permanency goals established for the child; and
(ii) Documentation of the determination and approval or disapproval of the placement in a qualified residential treatment program by the court;
(4) Specific time-limited goals and related activities designed to enable the safe return of such child to his or her home, or, in the event that return to his or her home is not possible, activities designed to result in permanent placement or emancipation;
(5) Assignment of specific responsibility for accomplishing the planned activities;
(6) The projected date of completion of the case plan objectives;
(7) The date time-limited services will be terminated;
(8) A schedule of visits between such child and his or her siblings and other appropriate family members and an explanation if no visits are scheduled;
(9) When placement is made in a foster family home, group home, or other child care institution that is either a substantial distance from the home of such child's parent, guardian, or legal custodian or out of state, the case plan shall specify the reasons why the placement is the most appropriate and is in the best interests of the child;
(10) When an out-of-state group home placement is recommended or made, the case plan shall comply with Code Section 39-4-4, the Interstate Compact on the Placement of Children. In addition, documentation of the recommendation of the multidisciplinary team and the rationale for such particular placement shall be included. The case plan shall also address what in-state services or facilities were used or considered and why they were not recommended;
(11) If applicable, a statement that reasonable efforts have been made and a requirement that reasonable efforts shall be made for so long as such child remains in the custody of the department:
(A) To place siblings removed from their home in the same foster care, kinship care, guardianship, or adoptive placement, unless DFCS documents that such a joint placement would be contrary to the safety or well-being of any of the siblings; and
(B) In the case of siblings removed from their home who are not so jointly placed, for frequent visitation or other ongoing interaction between the siblings, unless DFCS documents that such frequent visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings;
(12) Provisions ensuring the educational stability of such child while in foster care, including:
(A) An assurance that the placement of such child in foster care takes into account the appropriateness of the current educational setting and the proximity to the school in which such child is enrolled at the time of placement;
(B) An assurance that the state agency has coordinated with appropriate local educational agencies to ensure that such child remains in the school in which such child is enrolled at the time of placement; or
(C) If remaining in such school is not in the best interests of the child, an assurance by DFCS that DFCS and the local educational agencies have cooperated to assure the immediate and appropriate enrollment in a new school, with all of the educational records of such child provided to such new school;
(13) An account of health and education information about such child including school records, immunizations, known medical problems, any known medications he or she may be taking, names and addresses of his or her health and educational providers; such child's grade level performance; assurances that such child's placement in foster care takes into account proximity to the school in which he or she was enrolled at the time of placement; and other relevant health and educational information;
(14) A recommendation for a permanency plan for such child. If, after considering reunification, adoptive placement, permanent guardianship, or placement with a fit and willing relative, DFCS recommends placement in another planned permanent living arrangement for a child who has attained the age of 16, the case plan shall include:
(A) Documentation of a compelling reason or reasons why reunification, termination of parental rights and adoption, permanent guardianship, or placement with a fit and willing relative are not in the child's best interests;
(B) Documentation of the intensive, ongoing, and unsuccessful efforts made by the state agency to return the child home or secure a placement for the child with a fit and willing relative, a legal guardian, or an adoptive parent, including through efforts that utilize search technology, including social media, to find biological family members for the child; and
(C) Documentation of the steps the state agency is taking to ensure that the child's foster family home or child care institution is following the reasonable and prudent parent standard, as defined in Code Section 49-5-3, and documentation that the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities, as defined in Code Section 49-5-3, including by consulting with the child in an age-appropriate manner about the opportunities of the child to participate in the activities.
For purposes of this paragraph, a “compelling reason” shall have the same meaning as in paragraph (2) of subsection (b) of Code Section 15-11-233;
(15)(A) A statement that the parent, guardian, or legal custodian of such child and the child have had an opportunity to participate in the development of the case plan, to review the case plan, to sign the case plan, and to receive a copy of the plan, or an explanation about why such persons were not able to participate or sign the case plan.
(B) The case plan for each child in foster care who has attained the age of 14 years old shall be developed and revised in consultation with the child and, at the option of the child, up to two members of the case planning team who are chosen by the child and who are not a foster parent of, or caseworker for, the child. DFCS may reject an individual selected by a child to be a member of the case planning team at any time if DFCS has good cause to believe that the individual would not act in the best interests of the child. One such member may be designated to be the child's advisor and, as necessary, advocate, with respect to the application of the reasonable and prudent parent standard to the child.
(C) The case plan for each child in foster care who has attained the age of 14 years old shall include:
(i) A document describing the rights of the child with respect to education, health, visitation, and court participation, the right to be provided with a consumer report pursuant to 42 U.S.C. Section 675(5)(I), and the right to stay safe and avoid exploitation; and
(ii) A signed acknowledgment by the child that the child has been provided with a copy of the document described in division (i) of this subparagraph and that the rights contained in the document have been explained to the child in an age-appropriate way;
(16) A requirement that the DFCS case manager and staff and, as appropriate, other representatives of such child provide him or her with assistance and support in developing a transition plan that is personalized at the direction of such child, including specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and workforce supports and employment services, and is as detailed as such child may elect. The transition plan shall be completed in the 90 day period immediately prior to the date on which such child will attain 18 years of age;
(17) For such child in out-of-home care who is 14 years of age or older, a written description of the programs and services which will help him or her prepare for the transition from foster care to independent living; and
(18) The identity of the person within DFCS or other agency who is directly responsible for ensuring that the case plan is implemented.
§ 15-11-202. Reasonable efforts to preserve or reunify families
(a) Except as provided in subsection (a) of Code Section 15-11-203, reasonable efforts shall be made to preserve or reunify families:
(1) Prior to the placement of an alleged dependent child in DFCS custody to prevent the need for removing him or her from his or her home; or
(2) To eliminate the need for removal and make it possible for a child alleged to be or adjudicated as a dependent child to return safely to his or her home at the earliest possible time.
(b) In determining the type of reasonable efforts to be made to a child alleged to be or adjudicated as a dependent child and in making such reasonable efforts, such child's health and safety shall be the paramount concern.
(c) Appropriate services to meet the needs of a child alleged to be or adjudicated as a dependent child and his or her family may include those provided by DFCS and other services available in the community.
(d) The court shall be required to review the appropriateness of DFCS's reasonable efforts at each stage of the proceedings.
(e)(1) At the preliminary protective hearing, DFCS has the burden of demonstrating that:
(A) It has made reasonable efforts to prevent placement of an alleged dependent child in foster care;
(B) There are no appropriate services or efforts which could allow an alleged dependent child to safely remain in the home given the particular circumstances of such child and his or her family at the time of his or her removal and so the absence of such efforts was justifiable; or
(C) Reasonable efforts to prevent placement and to reunify an alleged dependent child with his or her family are not required because of the existence of one or more of the circumstances enumerated in subsection (a) of Code Section 15-11-203.
(2) At the adjudication hearing, DFCS has the burden of demonstrating that:
(A) It has made reasonable efforts to eliminate the need for removal of an alleged dependent child from his or her home and to reunify such child with his or her family at the earliest possible time; or
(B) Reasonable efforts to prevent placement and to reunify an alleged dependent child with his or her family are not required because of the existence of one or more of the circumstances enumerated in subsection (a) of Code Section 15-11-203.
(3) At each other hearing, DFCS has the burden of demonstrating that:
(A) It has made reasonable efforts to eliminate the need for removal of a child alleged to be or adjudicated as a dependent child from his or her home and to reunify such child with his or her family at the earliest possible time; or
(B) It has made reasonable efforts to finalize an alternative permanent home for a child alleged to be or adjudicated as a dependent child.
(f)(1) When determining whether reasonable efforts have been made, the court shall consider whether services to the child alleged to be or adjudicated as a dependent child and his or her family were:
(A) Relevant to the safety and protection of such child;
(B) Adequate to meet the needs of such child and his or her family;
(C) Culturally and linguistically appropriate;
(D) Available and accessible;
(E) Consistent and timely; and
(F) Realistic under the circumstances.
(2) In determining whether reasonable efforts have been made to finalize an alternative permanent home for a child adjudicated dependent, the court shall also consider whether DFCS has completed the diligent search required by subsection (e) of Code Section 15-11-211 and has provided notice to persons identified in such diligent search as required by subsection (c) of Code Section 15-11-211.
(g) A finding that reasonable efforts have not been made shall not preclude the entry of an order authorizing a child alleged to be or adjudicated as a dependent child's placement when the court finds that placement is necessary for the protection of such child.
(h) When efforts to prevent the need for a child alleged to be or adjudicated as a dependent child's placement were precluded by an immediate threat of harm to such child, the court may make a finding that reasonable efforts were made if it finds that the placement of such child in the absence of such efforts was justifiable.
(i) Reasonable efforts to place a child adjudicated as a dependent child for adoption or with a guardian or legal custodian may be made concurrently with reasonable efforts to reunify. When DFCS decides to concurrently make reasonable efforts for both reunification and permanent placement away from the parent, guardian, or legal custodian of a child adjudicated as a dependent child, DFCS shall disclose its decision and both plans to all parties and obtain approval from the court. When DFCS proceeds on both plans, the court's review of reasonable efforts shall include efforts under both plans.
(j) An order placing or continuing the placement of a child alleged to be or adjudicated as a dependent child in DFCS custody shall contain, but not be limited to, written findings of facts stating:
(1) That such child's continuation in or return to his or her home would be contrary to his or her welfare;
(2) Whether reasonable efforts have been made to prevent or eliminate the need for placement of such child, unless the court has determined that such efforts are not required or shall cease; and
(3) Whether reasonable efforts should continue to be made to prevent or eliminate the need for placement of such child, unless the court has previously determined that such efforts are not required or shall cease.
§ 15-11-203. Court may direct that reasonable efforts for preservation or reunification of families shall not be required
(a) The court may direct that reasonable efforts to eliminate the need for placement of an alleged dependent child shall not be required or shall cease if the court determines and makes written findings of fact that a parent of an alleged dependent child:
(1) Has subjected his or her child to aggravated circumstances;
(2) Has been convicted of the murder or murder in the second degree of another child of such parent;
(3) Has been convicted of the voluntary manslaughter of another child of such parent;
(4) Has been convicted of aiding or abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of such parent;
(5) Has been convicted of committing a felony assault that results in serious bodily injury to the child or another child of such parent;
(6) Has been convicted of rape, sodomy, aggravated sodomy, child molestation, aggravated child molestation, incest, sexual battery, or aggravated sexual battery of the alleged dependent child or another child of the parent;
(7) Is required to register as a sex offender and that preservation of a parent-child relationship is not in the alleged dependent child's best interests; or
(8) Has had his or her rights to a sibling of the alleged dependent child terminated involuntarily and the circumstances leading to such termination of parental rights to that sibling have not been resolved.
(b) If the court determines that one or more of the circumstances enumerated in subsection (a) of this Code section exist or DFCS has submitted a written report to the court which does not contain a plan for reunification services, then:
(1) A permanency plan hearing shall be held for a child adjudicated as a dependent child within 30 days; and
(2) Reasonable efforts shall be made to place a child adjudicated as a dependent child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of such child.
§ 15-11-204. Nonreunification hearing
(a) If the DFCS report does not contain a plan for reunification services, the court shall hold a nonreunification hearing to review the report and the determination that a plan for reunification services is not appropriate.
(b) The nonreunification hearing shall be held no later than 30 days from the time the DFCS report is filed. Notice of the nonreunification hearing shall be provided, by summons, to the child adjudicated as a dependent child if he or she is 14 years of age or older, his or her parent, guardian, or legal custodian, attorney, guardian ad litem, if any, and specified nonparties entitled to notice.
(c) At the nonreunification hearing:
(1) DFCS shall notify the court whether and when it intends to proceed with termination of parental rights; and
(2) The court shall also hold a permanency plan hearing, at which the court shall consider in-state and out-of-state permanent placement options for the child adjudicated as a dependent child and shall incorporate a permanency plan for such child in its order.
(d) DFCS shall have the burden of demonstrating by clear and convincing evidence that a reunification plan is not appropriate considering the health and safety of the child adjudicated as a dependent child and such child's need for permanence. There shall be a presumption that reunification is detrimental to a child adjudicated as a dependent child and reunification services should not be provided if the court finds by clear and convincing evidence that:
(1) Such child's parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family;
(2) An alleged dependent child has been removed from his or her home on at least two previous occasions and reunification services were made available on those occasions;
(3) A ground for terminating parental rights exists; or
(4) Any of the circumstances set out in subsection (a) of Code Section 15-11-203 exist, making it unnecessary to provide reasonable efforts to reunify.
(e) If the court has entered an order finding that reasonable efforts to reunify a child adjudicated as a dependent child with his or her family are not required but the court finds further that referral for termination of parental rights and adoption is not in the best interests of such child, the court may, upon proper petition, place such child in the custody of a permanent guardian pursuant to the provisions of this article.
§ 15-11-210. Disposition hearing
(a) If not held in conjunction with an adjudication hearing, a disposition hearing shall be held and completed within 30 days after the conclusion of an adjudication hearing.
(b) The court may consider any evidence, including hearsay evidence, that the court finds to be relevant, reliable, and necessary to determine the needs of a child adjudicated as a dependent child and the most appropriate disposition.
(c) Before determining the appropriate disposition, the court shall receive in evidence:
(1) The social study report as provided for in Code Section 15-11-191, if applicable, and the child adjudicated as a dependent child's proposed written case plan. The social study report and case plan shall be filed with the court not less than 48 hours before the disposition hearing;
(2) Any study or evaluation made by a guardian ad litem appointed by the court;
(3) Any psychological, medical, developmental, or educational study or evaluation of the child adjudicated as a dependent child; and
(4) Other relevant and material evidence as may be offered, including, but not limited to, the willingness of the caregiver to provide legal permanency for the child adjudicated as a dependent child if reunification is unsuccessful.
(d) Prior to a disposition hearing, and upon request, the parties and their attorneys shall be afforded an opportunity to examine any written reports received by the court.
(e)(1) Portions of written reports received by the court which are not relied on by the court in reaching its decision, which if revealed would be prejudicial to the interests of any party to the proceeding, or which reveal confidential sources, may be withheld in the court's discretion.
(2) Parties and their attorneys shall be given the opportunity to controvert written reports received by the court and to cross- examine individuals making such reports.
(f) At the conclusion of the disposition hearing, the court shall set the time and date for the first periodic review hearing and the permanency plan hearing.
§ 15-11-211. Diligent search
(a) A diligent search shall be initiated at the outset of a case under this article and shall be conducted throughout the duration of a case, when appropriate.
(b) A diligent search shall include at a minimum:
(1) Interviews with the child's parent during the course of an investigation, while child protective services are provided, and while such child is in care;
(2) Interviews with the child;
(3) Interviews with identified relatives throughout the case;
(4) Interviews with any other person who is likely to have information about the identity or location of the person being sought;
(5) Comprehensive searches of data bases available to DFCS including, but not limited to, searches of employment, residence, utilities, vehicle registration, child support enforcement, law enforcement, corrections records, and any other records likely to result in identifying and locating the person being sought;
(6) Appropriate inquiry during the course of hearings in the case; and
(7) Any other reasonable means that are likely to identify relatives or other persons who have demonstrated an ongoing commitment to the child.
(c) All adult relatives of the alleged dependent child identified in a diligent search required by this Code section and all parents of a sibling of such child, when such parent has legal custody of such sibling, subject to exceptions due to family or domestic violence, shall be provided with notice:
(1) Specifying that an alleged dependent child has been or is being removed from his or her parental custody;
(2) Explaining the options a relative has to participate in the care and placement of the alleged dependent child and any options that may be lost by failing to respond to the notice;
(3) Describing the process for becoming an approved foster family home and the additional services and supports available for children placed in approved foster homes; and
(4) Describing any financial assistance for which a relative may be eligible.
(d) The diligent search required by this Code section and the notification required by subsection (c) of this Code section shall be completed, documented in writing, and filed with the court within 30 days from the date on which the alleged dependent child was removed from his or her home and at each periodic review hearing required by Code Section 15-11-216.
(e) After the completion of the diligent search required by this Code section, DFCS shall have a continuing duty to search for relatives or other persons who have demonstrated an ongoing commitment to a child and with whom it may be appropriate to place the alleged dependent child until such relatives or persons are found or until such child is placed for adoption unless the court excuses DFCS from conducting a diligent search. If a relative entitled to notice under subsection (c) of this Code section fails, within six months from the date he or she receives the required notice, to demonstrate an interest in and willingness to provide a permanent home for a child, the court may excuse DFCS from considering such relative as a placement.
§ 15-11-212. Types of orders of disposition; transfer of temporary legal custody; permanency plan
<Text of section effective until enactment of the Interstate Compact for the Placement of Children into law by the thirty-fifth state. See, also, text of section 15-11-212 effective upon enactment of the Interstate Compact for the Placement of Children into law by the thirty-fifth state.>
(a) The court may make any of the following orders of disposition or a combination of those best suited to the protection and physical, emotional, mental, and moral welfare of a child adjudicated as a dependent child:
(1) Permit such child to remain with his or her parent, guardian, or legal custodian subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of such child;
(2) Grant or transfer temporary legal custody to any of these persons or entities:
(A) Any individual, including a biological parent, who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for such child, provided that priority for placement is given to an adult who is a relative or fictive kin;
(B) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for such child;
(C) Any public agency authorized by law to receive and provide care for such child; provided, however, that for the purpose of this Code section, the term “public agency” shall not include DJJ or DBHDD; or
(D) An individual in another state with or without supervision by an appropriate officer pursuant to the requirements of Code Section 39-4-4, the Interstate Compact on the Placement of Children;
(3) Transfer jurisdiction over such child in accordance with the requirements of Code Section 39-4-4, the Interstate Compact on the Placement of Children;
15-11-212
(4) Order such child and his or her parent, guardian, or legal custodian to participate in counseling or in counsel and advice as determined by the court. Such counseling and counsel and advice may be provided by the court, court personnel, probation officers, professional counselors or social workers, psychologists, physicians, physician assistants, qualified volunteers, or appropriate public, private, or volunteer agencies as directed by the court and shall be designed to assist in deterring future conditions of dependency or other conduct or conditions which would be harmful to a child or society;
(5) Order the parent, guardian, or legal custodian of such child to participate in a court approved educational or counseling program designed to contribute to the ability of such parent, guardian, or legal custodian to provide proper parental care and supervision of such child, including, but not limited to, parenting classes;
(6) Order DFCS to implement and such child's parent, guardian, or legal custodian to cooperate with any plan approved by the court; or
(7) Order temporary child support for such child to be paid by that person or those persons determined to be legally obligated to support such child. In determining such temporary child support, the court shall apply the child support guidelines provided in Code Section 19-6-15 and the implementation and any review of the order shall be held as provided in Code Section 19-6-15. Where there is an existing order of a superior court or other court of competent jurisdiction, the court may order the child support obligor in the existing order to make payments to such child's caretaker on a temporary basis but shall not otherwise modify the terms of the existing order. A copy of the juvenile court's order shall be filed in the clerk's office of the court that entered the existing order. Temporary child support orders entered pursuant to this paragraph shall be enforceable by the court's contempt powers so long as the court is entitled to exercise jurisdiction over the dependency case.
(b) The transfer of temporary legal custody may be subject to conditions and limitations the court may prescribe. Such conditions and limitations shall include a provision that the court shall approve or direct the return of the physical custody of a child adjudicated as a dependent child to his or her parent, guardian, or legal custodian either upon the occurrence of specified circumstances or at the direction of the court. The return of physical custody of a child adjudicated as a dependent child to his or her parent, guardian, or legal custodian may be made subject to conditions and limitations the court may prescribe, including, but not limited to, supervision for the protection of such child.
(c) A child adjudicated as a dependent child shall not be committed to or confined in an institution or other facility designed or operated for the benefit of delinquent children unless such child is also adjudicated to be a delinquent child and such child's detention is warranted under the requirements of Article 6 of this chapter.
(d) After transferring temporary legal custody of a child adjudicated as a dependent child to DFCS, the court may at any time conduct sua sponte a judicial review of the current placement plan being provided to such child. After its review, the court may order DFCS to comply with the current placement plan, order DFCS to devise a new placement plan, or make any other order relative to placement or custody outside DFCS as the court finds to be in the best interests of such child. Placement or a change of custody by the court outside DFCS shall relieve DFCS of further responsibility for such child except for any provision of services ordered by the court to ensure the continuation of reunification services to such child's family when appropriate.
(e) A court shall not be required to make an order of disposition regarding a child who is discharged from a facility in which such child was hospitalized or habilitated pursuant to Chapter 3, 4, or 7 of Title 37 unless such child is to be discharged into
15-11-212
the physical custody of any person who had such custody when the court made its most recent adjudication that the child was a dependent child.
(f) If a child is adjudicated as a dependent child and the dependency is found to have been the result of substance abuse by his or her parent, guardian, or legal custodian and the court orders transfer of temporary legal custody of such child, the court shall be authorized to further order that legal custody of such child may not be transferred back to his or her parent, guardian, or legal custodian unless such parent, guardian, or legal custodian:
(1) Undergoes substance abuse treatment and random substance abuse screenings and those screenings remain negative for a period of no less than 12 consecutive months; or
(2) Successfully completes programming through a family treatment court division.
(g) If the court finds that DFCS preventive or reunification efforts have not been reasonable but that further efforts could not permit a child adjudicated as a dependent child to safely remain at home, the court may nevertheless authorize or continue the removal of such child.
(h) When the case plan requires a concurrent permanency plan, the court shall review the reasonable efforts of DFCS to recruit, identify, and make a placement in a home in which a relative of a child adjudicated as a dependent child, foster parent, or other persons who have demonstrated an ongoing commitment to the child has agreed to provide a legally permanent home for such child in the event reunification efforts are not successful.
§ 15-11-213. Written findings of fact to support disposition and case plan
Any order of disposition shall contain written findings of fact to support the disposition and case plan ordered. Before making an order of disposition, the court shall consider the following:
(1) Why the best interests and safety of a child adjudicated as a dependent child are served by the disposition and case plan ordered, including but not limited to:
(A) The interaction and interrelationship of such child with his or her parent, siblings, and any other person who may significantly affect the child's best interests;
(B) Such child's adjustment to his or her home, school, and community;
(C) The mental and physical health of all individuals involved;
(D) The wishes of such child as to his or her placement;
(E) The wishes of such child's parent, guardian, or legal custodian as to such child's custody;
(F) Whether there exists a relative of such child or other individual who, after study by DFCS, is found to be qualified to receive and care for such child; and
(G) The ability of a parent, guardian, or legal custodian of a child adjudicated as a dependent child to care for such child in the home so that no harm will result to such child;
(2) The availability of services recommended in the case plan;
(3) What alternative dispositions or services under the case plan were considered by the court and why such dispositions or services were not appropriate in the instant case;
(4) The appropriateness of the particular placement made or to be made by the placing agency; and
(5) Whether reasonable efforts were made to prevent or eliminate the necessity of a child adjudicated as a dependent child's removal and to reunify his or her family after removal from the custody of his or her family unless reasonable efforts were not required. The court's findings should include a brief description of what preventive and reunification efforts were made and why further efforts could not have prevented or eliminated the necessity of such removal.
§ 15-11-214. Continuance in force of order of disposition; termination by court
(a) An order of disposition in a dependency proceeding shall continue in force until the purposes of the order have been accomplished.
(b) The court may terminate an order of disposition of a child adjudicated as a dependent child on or without an application of a party if it appears to the court that the purposes of the order have been accomplished.
(c) When a child adjudicated as a dependent child reaches 18 years of age, all orders in connection with dependency proceedings affecting him or her then in force terminate and he or she shall be discharged from further obligation or control.
§ 15-11-215. Placement change; hearing regarding placement
(a) Not less than five days in advance of any placement change, DFCS shall, in writing, notify the court; a child who is 14 years of age or older; the child's parent, guardian, or legal custodian; the person or agency with physical custody of the child; the child's attorney; the child's guardian ad litem, if any; and any other attorney of record of such change in the location of the child's placement while the child is in DFCS custody. The notice required by this subsection may include notice via email if the caregiver or other party who will receive the notification has agreed to receive notice via email.
(b) If a child's health or welfare may be endangered by any delay in changing his or her placement, the court and all attorneys of record shall be notified of such placement change within 24 hours of such change.
(c) A child adjudicated as a dependent child who is 14 years of age or older, his or her parent, guardian, or legal custodian; the person or agency with physical custody of the child; such child's attorney; such child's guardian ad litem, if any; and any attorney of record may request a hearing pertaining to such child's case plan or the permanency plan in order for the court to consider the change in the location of such child's placement and any changes to the case plan or permanency plan resulting from such child's change in placement location. The hearing shall be held within five days of receiving notice of a change in the location of such child's placement and prior to any such placement change, unless such child's health or welfare may be endangered by any delay in changing such child's placement.
(d) The Council of Juvenile Court Judges shall by rule provide for methods by which persons entitled to notice, including those not represented by counsel, may electronically file an objection to the placement change. Such rule shall provide for the use of a standard form that the objector may file electronically with the clerk of court and which upon filing shall be distributed electronically to all parties and others entitled to notice.
(e) At the hearing to consider the case plan and permanency plan of a child adjudicated as a dependent, the court shall consider the case plan and permanency plan recommendations made by DFCS, including a recommendation as to the location of the placement of such child, and shall make findings of fact upon which the court relied in determining to reject or accept the case plan or permanency plan and the recommendations made by DFCS, including the location of such child's placement. The court shall specifically consider any objections filed to the change of placement and shall consider evidence pertaining to such objections, including, but not limited to, evidence from the child and the foster parent, relative, or caregiver.
(f) The court may consider any evidence, including hearsay evidence, that the court finds to be relevant, reliable, and necessary to determine the needs of a child adjudicated as a dependent child and the most appropriate case plan and permanency plan.
(g) If the court rejects DFCS recommendations, the court shall demonstrate that DFCS recommendations were considered and explain why it did not follow such recommendations. If the court rejects the DFCS case plan and permanency plan recommendations, including the change in the location of the placement of a child adjudicated as a dependent child, the court may order DFCS to devise a new case plan and permanency plan recommendation, including a new recommendation as to the location of such child within the resources of the department, or make any other order relative to placement or custody outside the department as the court finds to be in the best interests of such child and consistent with the policy that children in DFCS custody should have stable placements.
(h) If the court finds that the child has been living in a stable home environment with his or her current caregivers for the past 12 months and that removal of the child from such caregivers would be detrimental to the child's emotional well-being, the court may presume that continuation of the child's placement with his or her current caregivers is in the child's best interests and shall enter a finding that a change of placement is a failure by DFCS to make reasonable efforts to finalize the permanency plan which is in effect at the time of the hearing; provided, however, that such presumption shall not apply to prevent the return of the child to his or her parent, guardian, or legal custodian.
(i) Placement or a change of legal custody by the court outside DFCS shall relieve DFCS of further responsibility for a child adjudicated as a dependent child except for any provision of services ordered by the court to ensure the continuation of reunification services to such child's family when appropriate.
(j) A placement change shall not include a temporary absence from the child's identified and ongoing foster care placement, including, but not limited to, visitation with a friend, sibling, relative, or other caretaker, including a preplacement visit to a possible foster or adoptive placement; hospitalization for medical, acute psychiatric episodes or diagnosis; respite care when the child is expected to return to his or her foster care placement; day or overnight camp; temporary travel with the foster family or child care institution personnel, church, school, or other persons or groups approved by DFCS; trial home visits with the court's permission, if required by subsection (b) of Code Section 15-11-212; and runaway episodes.
§ 15-11-216. Initial review of all cases of children in DFCS custody; periodic review hearings
(a) All cases of children in DFCS custody shall be initially reviewed within 75 days following a child adjudicated as a dependent child's removal from his or her home and shall be conducted by the court. An additional periodic review shall be held within four months following the initial review and shall be conducted by the court or by judicial citizen review panels established by the court, as the court directs, meeting such standards and using such procedures as are established by court rule by the Supreme Court, with the advice and consent of the Council of Juvenile Court Judges. The court shall have the discretion to schedule any subsequent review hearings as necessary.
(b) At any periodic review hearing, the paramount concern shall be the health and safety of a child adjudicated as a dependent child.
(c) At the initial 75 day periodic review, the court shall approve the completion of the relative search, schedule the subsequent four-month review to be conducted by the court or a judicial citizen review panel, and shall determine:
(1) Whether a child adjudicated as a dependent child continues to be a dependent child;
(2) Whether the existing case plan is still the best case plan for such child and his or her family and whether any changes need to be made to the case plan, including whether a concurrent case plan for nonreunification is appropriate;
(3) The extent of compliance with the case plan by all participants;
(3.1) Whether the parent has made substantial progress toward completion of the case plan;
(4) The appropriateness of any recommended changes to such child's placement;
(5) Whether appropriate progress is being made on the permanency plan;
15-11-216
(6) Whether all legally required services are being provided to a child adjudicated as a dependent child, his or her foster parents if there are foster parents, and his or her parent, guardian, or legal custodian;
(7) Whether visitation is appropriate and, if so, approve and establish a reasonable visitation schedule consistent with the age and developmental needs of a child adjudicated as a dependent child;
(8) Whether, for a child adjudicated as a dependent child who is 14 years of age or older, the services needed to assist such child to make a transition from foster care to independent living are being provided; and
(9) Whether reasonable efforts continue to be made to prevent or eliminate the necessity of such child's removal from his or her home and to reunify the family after removal of a child adjudicated as a dependent child, unless reasonable efforts were not required.
(d) If at any review subsequent to the initial 75 day review the court finds that there is a lack of substantial progress toward completion of the case plan, the court shall order DFCS to develop a case plan for nonreunification or a concurrent case plan contemplating nonreunification within 14 days of such review. The court shall review and adopt the revised case plan, as submitted or as amended, within 45 days of such review or at a previously scheduled hearing.
(d.1) At each review hearing held with respect to a child who remains placed in a qualified residential treatment program, the department shall submit evidence documenting that:
(1) Ongoing assessment of the strengths and needs of the child continues to support the determination that the needs of the child cannot be met through placement in a foster family home;
(2) Placement in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment;
(3) Placement in a qualified residential treatment program is consistent with the short-term and long-term goals for the child, as specified in the permanency plan for the child;
(4) The specific treatment or service needs that will be met for the child in the placement and the length of time the child is expected to need the treatment or services; and
(5) The efforts made by the department to prepare the child to return home or to be placed with a fit and willing relative, a legal guardian, or an adoptive parent, or in a foster family home.
(e) At the time of each review of a child adjudicated as a dependent child in DFCS custody, DFCS shall notify the court whether and when it intends to proceed with the termination of parental rights.
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(f) The court may consider any evidence, including hearsay evidence, that the court finds to be relevant, reliable, and necessary to determine the needs of a child adjudicated as a dependent child and the most appropriate case plan and permanency plan.
§ 15-11-218. Written findings of fact by court
(a) At the conclusion of a periodic review hearing, or upon review of a report by a judicial citizen review panel, the court shall issue written findings of fact that include:
(1) Why a child adjudicated as a dependent child continues to be a dependent child;
(2) Whether the existing case plan is still the best case plan for a child adjudicated as a dependent child and his or her family and whether any changes need to be made to the case plan including whether a concurrent case plan for nonreunification is appropriate;
(3) The extent of compliance with the case plan by all participants;
(3.1) Whether the parent has made substantial progress toward completion of the case plan;
(4) The basis for any changes to the placement of a child adjudicated as a dependent child;
(5) Whether visitation is or continues to be appropriate;
(6) A description of progress being made on the permanency plan;
(7) Whether all legally required services are being provided to a child adjudicated as a dependent child, his or her foster parents if there are foster parents, and his or her parent, guardian, or legal custodian;
(8) Whether, for a child adjudicated as a dependent child who is 14 years of age or older, the services needed to assist such child to make a transition from foster care to independent living are being provided; and
(9) Whether reasonable efforts continue to be made to prevent or eliminate the necessity of the removal of a child adjudicated as a dependent child and to reunify his or her family after removal, unless reasonable efforts were not required.
(b) At the conclusion of a periodic review hearing, or upon review of a report by a judicial citizen review panel, the court shall order one of the following dispositions:
(1) Return a child adjudicated as a dependent child to his or her parent, guardian, or legal custodian's home with or without court imposed conditions;
(2) Allow a child adjudicated as a dependent child to continue in the current custodial placement because the current placement is appropriate for such child's needs;
(3) Allow a child adjudicated as a dependent child to continue in the current custodial placement although the current placement is no longer appropriate for such child's needs and direct DFCS to devise another plan which shall:
(A) Be submitted within ten days for court approval;
(B) Be furnished to all parties after court approval of the revised plan; and
(C) Be provided to the caregiver of a child adjudicated as a dependent child, his or her foster parents if there are foster parents, and any preadoptive parents or relative providing care for such child with a copy of those portions of the court approved revised plan that involve the permanency goal and the services to be provided to such child; or
(4) Make additional orders regarding the treatment plan or placement of a child adjudicated as a dependent child to protect such child's best interests if the court determines DFCS has failed in implementing any material provision of the case plan or abused its discretion in the placement or proposed placement of such child.
§ 15-11-219. Assessment prior to placement in a qualified residential treatment program
(a) Before a child's placement in a qualified residential treatment program, but no later than 30 days following the start of such placement, a qualified individual shall:
(1) Assess the strengths and needs of the child using an age-appropriate, evidence based, validated, functional assessment tool;
(2) Determine whether the needs of the child can be met with family members or through placement in a foster family home or, if not, which DFCS approved authorized setting would provide the most effective and appropriate level of care for the child in the least restrictive environment and be consistent with the short-term and long-term goals for the child, as specified in the permanency plan for the child; and
(3) Develop a list of child-specific short-term and long-term mental and behavioral health goals.
(b) The qualified individual conducting the assessment shall work in conjunction with the family and permanency team for the child while conducting and making the assessment.
(c) If the qualified individual conducting the assessment determines the child should not be placed in a foster family home, the qualified individual shall specify in writing:
(1) The reasons why the needs of the child cannot be met by the family of the child or in a foster family home. A shortage or lack of foster family homes shall not be an acceptable reason for determining that the needs of the child cannot be met in a foster family home; and
(2) Why the recommended placement in a qualified residential treatment program is the setting that will provide the child with the most effective and appropriate level of care in the least restrictive environment and how that placement is consistent with the short-term and long-term goals for the child, as specified in the permanency plan for the child.
§ 15-11-220. Determination of the needs of the child
(a) Within 60 days of the start of a child's placement in a qualified residential treatment program, the court must:
(1) Consider the assessment required by Code Section 15-11-219 determination, and documentation made by the qualified individual in approving the placement;
(2) Determine whether the needs of the child can be met through placement in a foster family home or, if not, whether placement of the child in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment;
(3) Determine whether placement in a qualified residential treatment program is consistent with the short-term and long-term goals for the child, as specified in the permanency plan for the child;
(4) Determine whether it is in the best interest of the child to be placed in a qualified residential treatment program and whether, for that reason, it is not in the best interest of the child or the child's siblings to be placed together; and
(5) Approve or disapprove the qualified residential treatment program placement by entering written findings of fact on the record. Placement or a change of legal custody by the court outside DFCS shall relieve DFCS of further responsibility for a child adjudicated as a dependent child except for any provision of services ordered by the court to ensure the continuation of reunification services to such child's family when appropriate.
(b) Documentation of the determination and approval or disapproval of the placement in a qualified residential treatment program by the court shall be included in and made part of the case plan for the child.
§ 15-11-230. Permanency plan hearing
(a) The court shall hold a permanency plan hearing to determine the future permanent legal status of each child in DFCS custody.
(b) A permanency plan hearing, which considers in-state and out-of-state placement options for a child adjudicated as a dependent child, shall be held:
(1) No later than 30 days after DFCS has submitted a written report to the court which does not contain a plan for reunification services;
(2) For children under seven years of age at the time a petition is filed, no later than nine months after such child has entered foster care;
(3) For children seven years of age and older at the time a petition is filed, no later than 12 months after such child has entered foster care; or
(4) For a child in a sibling group whose members were removed from the home at the same time and in which one member of the sibling group was under seven years of age at the time a petition for dependency was filed, the permanency plan hearing shall be held no later than nine months after such child has entered foster care.
(c) After the initial permanency plan hearing has occurred, a permanency plan hearing shall be held not less frequently than every six months during the time a child adjudicated as a dependent child continues in DFCS custody or more frequently as deemed necessary by the court until the court determines that such child's permanency plan and goal have been achieved.
(d) A child adjudicated as a dependent child, his or her parent, guardian, or legal custodian, attorney, guardian ad litem, if any, foster parents if there are foster parents, any preadoptive parent or relatives providing care for such child, and other parties shall be given written notice of a permanency plan hearing at least five days in advance of such hearing and shall be advised that the permanency plan recommended by DFCS will be submitted to the court for consideration as the order of the court.
(e) The court shall consult with the child adjudicated as a dependent child, in an age-appropriate manner, regarding the proposed permanency plan for such child.
(f) The court may consider any evidence, including hearsay evidence, that the court finds to be relevant, reliable, and necessary to determine the needs of a child adjudicated as a dependent child and the most appropriate permanency plan.
§ 15-11-231. Report recommending a permanency plan
At least five days prior to the permanency plan hearing, DFCS shall submit for the court's consideration a report recommending a permanency plan for a child adjudicated as a dependent child. The report shall include documentation of the steps to be taken by DFCS to finalize the permanent placement for such child and shall include, but not be limited to:
(1) The name, address, and telephone number of such child's parent, guardian, or legal custodian;
(2) The date on which such child was removed from his or her home and the date on which such child was placed in foster care;
(3) The location and type of home or facility in which such child is currently held or placed and the location and type of home or facility in which such child will be placed;
(4) The basis for the decision to hold such child in protective custody or to place such child outside of his or her home;
(5) A statement as to the availability of a safe and appropriate placement with a fit and willing relative of such child or other persons who have demonstrated an ongoing commitment to a child or a statement as to why placement with the relative or other person is not safe or appropriate;
(6) If as a result of the placement such child has been or will be transferred from the school in which such child is or most recently was enrolled, documentation that a placement that would maintain such child in that school is unavailable, inappropriate, or that such child's transfer to another school would be in such child's best interests;
(7) A plan for ensuring the safety and appropriateness of the placement and a description of the services provided to meet the needs of such child and his or her family, including a discussion of services that have been investigated and considered and are not available or likely to become available within a reasonable time to meet the needs of such child or, if available, why such services are not safe or appropriate;
(8) The goal of the permanency plan which shall include:
(A) Whether and, if applicable, when such child shall be returned to his or her parent;
(B) Whether and, if applicable, when such child shall be referred for termination of parental rights and adoption;
(C) Whether and, if applicable, when such child shall be placed with a permanent guardian; or
(D) In the case in which DFCS has documented a compelling reason that none of the options identified in subparagraphs (A) through (C) of this paragraph would be in the best interests of the child who has attained the age of 16 years old, whether, and if applicable, when such child shall be placed in another planned permanent living arrangement;
(8.1) The documentation listed in paragraph (14) of subsection (b) of Code Section 15-11-201;
(9) If a child adjudicated as a dependent child is 14 years of age or older, a description of the programs and services that are or will be provided to assist such child in preparing for the transition from foster care to independent living. The description shall include all of the following:
(A) The anticipated age at which such child will be discharged from foster care;
(B) The anticipated amount of time available in which to prepare such child for the transition from foster care to independent living;
(C) The anticipated location and living situation of such child on discharge from foster care;
(D) A description of the assessment processes, tools, and methods that have been or will be used to determine the programs and services that are or will be provided to assist such child in preparing for the transition from foster care to independent living; and
(E) The rationale for each program or service that is or will be provided to assist such child in preparing for the transition from foster care to independent living, the time frames for delivering such programs or services, and the intended outcome of such programs or services;
(10) When the recommended permanency plan is referral for termination of parental rights and adoption or placement in another home, a description of specific recruitment efforts such as the use of state, regional, and national adoption exchanges, including electronic exchange systems, to facilitate orderly and timely in-state and interstate placements; and
(11) For a child who remains placed in a qualified residential treatment program, documentation that:
(A) Ongoing assessment of the strengths and needs of the child continues to support the determination that the needs of the child cannot be met through placement in a foster family home;
(B) Placement in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment;
(C) Placement in a qualified residential treatment program is consistent with the short-term and long-term goals for the child, as specified in the permanency plan for the child;
(D) The specific treatment or service needs that will be met for the child in the placement and the length of time the child is expected to need the treatment or services; and
(E) The efforts made by the department to prepare the child to return home or to be placed with a fit and willing relative, a legal guardian, or an adoptive parent, or in a foster family home.
§ 15-11-232. Written findings of fact at the permanency plan hearing
(a) At the permanency plan hearing, the court shall make written findings of fact that include the following:
(1) Whether DFCS has made reasonable efforts to finalize the permanency plan which is in effect at the time of the hearing;
(2) The continuing necessity for and the safety and appropriateness of the placement;
(3) Compliance with the permanency plan by DFCS, parties, and any other service providers;
(3.1) Whether the parent has made substantial progress toward completion of the case plan;
(4) Efforts to involve appropriate service providers in addition to DFCS staff in planning to meet the special needs of a child adjudicated as a dependent child and his or her parent, guardian, or legal custodian;
(5) Efforts to eliminate the causes for the placement of a child adjudicated as a dependent child outside of his or her home and toward returning such child safely to his or her home or obtaining a permanent placement for such child;
(6) The date by which it is likely that a child adjudicated as a dependent child will be returned to his or her home, placed for adoption, or placed with a permanent guardian or in some other alternative permanent placement;
(7) Whether, in the case of a child adjudicated as a dependent child placed out of state, the out-of-state placement continues to be appropriate and in the best interests of such child;
(8) In the case of a child adjudicated as a dependent child who is 14 years of age or older, the services needed to assist such child to make a transition from foster care to independent living;
(9) In the case of a child for whom another planned permanent living arrangement is the permanency plan:
(A) Whether DFCS has documented intensive, ongoing, and, as of the date of the hearing, unsuccessful efforts to return the child to the home or to secure a placement for the child with a fit and willing relative, a legal guardian, or an adoptive parent, including through efforts that utilize search technology, including social media, to find biological family members for the children;
(B) Whether DFCS has documented the steps it is taking to ensure that the child's foster family home or child care institution is following the reasonable and prudent parent standard and the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities, including by consulting with the child in an age-appropriate manner about the opportunities of the child to participate in the activities; and
(C) After asking the child, what his or her desired permanency outcome is;
(10) If a child has attained the age of 14 years old, whether the permanency plan developed for the child, and any revision or addition to the plan, was developed in consultation with the child and, at the option of the child, with not more than two members of the permanency planning team who were selected by the child and who are not a foster parent of or caseworker for the child in accordance with subparagraph (b)(15)(B) of Code Section 15-11-201; and
(11) In the case of a child placed in a qualified residential treatment program:
(A) Whether DFCS has documented ongoing assessments of the strengths and needs of the child that continues to support the determination that the needs of the child cannot be met through placement in a foster family home;
(B) Whether DFCS has documented that placement in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment;
(C) Whether DFCS has documented that the child's placement in a qualified residential treatment program is consistent with the short-term and long-term goals for the child, as specified in the permanency plan for the child;
(D) Whether DFCS has documented the specific treatment or service needs that will be met for the child in the placement and the length of time the child is expected to need the treatment or services; and
(E) Whether DFCS has documented their efforts to prepare the child to return home or to be placed with a fit and willing relative, a legal guardian, or an adoptive parent, or in a foster family home.
(b) The permanency plan incorporated in the court's order shall include:
(1) Whether and, if applicable, when a child adjudicated as a dependent child shall be returned to his or her parent;
(2) Whether and, if applicable, when a child adjudicated as a dependent child shall be referred for termination of parental rights and adoption;
(3) Whether and, if applicable, when a child adjudicated as a dependent child shall be placed with a permanent guardian; or
(4) In the case in which DFCS has documented a compelling reason that none of the options identified in paragraphs (1) through (3) of this subsection would be in the best interests of the child, whether, and if applicable, when such child shall be placed in another planned permanent living arrangement.
(c) If the court finds, as of the date of the hearing, that another planned permanent living arrangement is in the best interests of a child who has attained the age of 16 years old, the court shall make findings of fact explaining such determination and, in its order, provide compelling reasons why it is not or continues to not be in a child's best interests to be returned to his or her parent, referred for termination of parental rights and adoption, placed with a permanent guardian, or placed with a fit and willing relative.
(d) A supplemental order of the court adopting the permanency plan including all requirements of the permanency plan as provided in Code Section 15-11-231 shall be entered following the permanency hearing and in no case later than 30 days after the court has determined that reunification efforts shall not be made by DFCS. The supplemental order shall include a requirement that the DFCS case manager and staff and, as appropriate, other representatives of a child adjudicated as a dependent child provide such child with assistance and support in developing a transition plan that is personalized at the direction of such child; includes specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and work force supports and employment services; and is as detailed as such child may elect in the 90 day period immediately prior to the date on which he or she will attain 18 years of age.
§ 15-11-233. Termination of parental rights
(a) Except as provided in subsection (b) of this Code section, DFCS shall file a petition to terminate the parental rights of a parent of a child adjudicated as a dependent child or, if such a petition has been filed by another party, seek to be joined as a party to the petition, and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption if:
(1) A child adjudicated as a dependent child has been in foster care under the responsibility of DFCS for 15 of the most recent 22 months;
(2) The court has made a determination that the parent has subjected his or her child to aggravated circumstances; or
(3) The court has made a determination that the parent of a child adjudicated as a dependent child has been convicted of:
(A) The murder of another child of such parent;
(B) Murder in the second degree of another child of such parent;
(C) Voluntary manslaughter of another child of such parent;
(D) Voluntary manslaughter of the other parent of such child;
(E) Aiding or abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of such parent;
(F) Aiding or abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of the other parent of such child; or
(G) Committing felony assault that has resulted in serious bodily injury to such child or to another child of such parent.
(b) Termination of parental rights may not be in the best interests of a child adjudicated as a dependent child when:
(1) Such child is being cared for by his or her relative that intends to be a permanent placement for such child in accordance with a permanency plan approved by the court and in a time frame that is consistent with the developmental needs of such child;
(2) The case plan documents a compelling reason for determining that filing such a petition would not be in the best interests of such child. Such compelling reasons may include, but not be limited to:
(A) A parent of such child is successfully participating in services that will make it possible for his or her child to safely return home;
(B) Another permanency plan is better suited to meet the health and safety needs of such child. Documentation that another permanent plan is better suited to meet the health and safety needs of such child may include documentation that:
(i) Such child is 14 years of age or older and objects to termination of parental rights. Prior to accepting a child's objection, the court shall personally question such child in chambers to determine whether the objection is a voluntary and knowing choice;
(ii) Such child is 16 years of age or older and specifically requests that emancipation be established as his or her permanent plan;
(iii) The parent of such child and such child have a significant bond, but such parent is unable to care for such child because of an emotional or physical disability and such child's caregiver has committed to raising such child to the age of majority and facilitating visitation with such disabled parent; or
(iv) Such child is in a residential treatment facility that provides services specifically designed to address his or her treatment needs and the court determines that his or her needs could not be served by a less restrictive placement;
(C) Such child is living with his or her relative who is unable or unwilling to adopt such child, but who is willing and capable of providing such child with a stable and permanent home environment and the removal of such child from the physical custody of his or her relative would be detrimental to such child's emotional well-being;
(D) The court or judicial citizen review panel, in a prior hearing or review, determined that while the case plan was to reunify the family, DFCS did not make reasonable efforts; or
(E) Such child is an unaccompanied refugee or there are international legal obligations or foreign policy reasons that would preclude terminating parental rights; or
(3) DFCS has not provided to the family of such child services deemed necessary for his or her safe return to his or her home, consistent with the specific time frames for the accomplishment of the case plan goals.
(c) The recommendation by DFCS that termination of parental rights is not in the best interests of a child shall be based on the present family circumstances of such child and shall not preclude a different recommendation at a later date if the family circumstances of a child adjudicated as a dependent child change.
(d) At least 30 days prior to the fifteenth month a child has been in foster care and when the court deems appropriate, the court shall review DFCS's determination that filing a petition to terminate parental rights would not be in the best interests of such child, as provided for in paragraph (2) of subsection (b) of this Code section. Such hearing may be in conjunction with other matters of the case. At such hearing, the court may appoint an attorney guardian ad litem, who may, after his or her own determination, file a petition to terminate parental rights on behalf of the child. The court in its sole discretion may make any additional rulings.
§ 15-11-240. Court’s authority to appoint permanent guardian for dependent child
(a) In addition to the jurisdiction to appoint guardians pursuant to Code Section 15-11-13, the juvenile court shall be vested with jurisdiction to appoint a permanent guardian for a child adjudicated as a dependent child in accordance with this article. Prior to the entry of such an order, the court shall:
(1) Find that reasonable efforts to reunify such child with his or her parents would be detrimental to such child or find that the living parents of such child have consented to the permanent guardianship;
(2) Find that termination of parental rights and adoption is not in the best interests of such child;
(3) Find that the proposed permanent guardian can provide a safe and permanent home for such child;
(4) Find that the appointment of a permanent guardian for such child is in the best interests of such child and that the individual chosen as such child's permanent guardian is the individual most appropriate to be such child's permanent guardian taking into consideration the best interests of the child; and
(5) If such child is 14 years of age or older, find that the appointment of a permanent guardian for such child is in the best interests of such child and that the individual chosen by such child as the child's permanent guardian is the individual most appropriate to be such child's permanent guardian taking into consideration the best interests of the child.
(b) The court may enter an order of support on behalf of a child against the parents of such child in accordance with paragraph (7) of subsection (a) of Code Section 15-11-212.
§ 15-11-241. Contents in petition for the appointment of a permanent guardian
The petition for the appointment of a permanent guardian pursuant to this part shall set forth:
(1) The facts upon which the court's jurisdiction is based;
(2) The name and date of birth of the child adjudicated as a dependent child;
(3) The name, address, and county of domicile of the petitioner and the petitioner's relationship to such child, if any, and, if different from the petitioner, the name, address, and county of domicile of the individual nominated by the petitioner to serve as guardian and that individual's relationship to such child, if any;
(4) A statement that:
(A) Reasonable efforts to reunify such child with his or her parents would be detrimental to such child;
(B) Termination of parental rights and adoption is not in the best interests of such child;
(C) The proposed guardian can provide a safe and permanent home for such child;
(D) The appointment of a permanent guardian for such child is in the best interests of such child and that the individual chosen as such child's guardian is the individual most appropriate to be such child's permanent guardian taking into consideration the best interests of the child; and
(E) If such child is 14 years of age or older, that the appointment of a permanent guardian for such child is in the best interests of the child and that the individual chosen by such child as the child's permanent guardian is the most appropriate individual to be such child's permanent guardian taking into consideration the best interests of the child;
(5) Whether such child was born out of wedlock and, if so, the name and address of the biological father, if known;
(6) Whether, to the petitioner's knowledge, there exists any notarized or witnessed document made by a parent of such child that deals with the guardianship of such child and the name and address of any designee named in the document;
(7) In addition to the petitioner and the nominated guardian and, if the parent of such child has not consented to the permanent guardianship, the names and addresses of the following relatives of such child whose parents' whereabouts are known:
(A) The adult siblings of such child; provided, however, that not more than three adult siblings need to be listed;
(B) If there is no adult sibling of such child, the grandparents of such child; provided, however, that not more than three grandparents need to be listed; or
(C) If there is no grandparent of such child, any three of the nearest adult relatives of such child determined according to Code Section 53-2-1;
(8) Whether a temporary guardian has been appointed for such child or a petition for the appointment of a temporary guardian has been filed or is being filed; and
(9) The reason for any omission in the petition for appointment of a permanent guardian for such child in the event full particulars are lacking.
§ 15-11-242. Permanent guardianship orders; rights and duties of permanent guardian
(a) Permanent guardianship orders entered pursuant to Code Section 15-11-240 shall:
(1) Remain in effect until the child adjudicated as a dependent child reaches the age of 18 or becomes emancipated;
(2) Not be subject to review by the court except as provided in Code Section 15-11-244; and
(3) Establish a reasonable visitation schedule which allows the child adjudicated as a dependent child to maintain meaningful contact with his or her parents through personal visits, telephone calls, letters, or other forms of communication or specifically include any restriction on a parent's right to visitation.
(b) A permanent guardian shall have the rights and duties of a permanent guardian as provided in Code Sections 29-2-21, 29-2-22, and 29-2-23 and shall take the oath required of a guardian as provided in Code Section 29-2-24.
§ 15-11-243. Guardianship petition hearing
A guardianship petition hearing shall be conducted in accordance with Code Section 29-2-18 to determine the best interests of the child who was adjudicated as a dependent child, and in reaching its determination the court shall consider Code Section 15-11-240.
§ 15-11-243.1. Issuance of summons
(a) The court shall direct the issuance of a summons to the legal mother, legal father, biological father, legal custodian, attorney, and guardian ad litem, if any, of the child who was adjudicated as a dependent child and any other persons who appear to the court to be proper or necessary parties to the proceeding. A copy of such petition shall accompany the summons unless the summons is served by publication, in which case the published summons shall indicate the general nature of the allegations and where a copy of such petition can be obtained.
(b) No service of summons shall be required for any parent whose parental rights have been terminated or voluntarily surrendered.
(c) The court shall direct notice and a copy of the petition be provided to the child named in the petition if the child is 14 years of age or older.
(d) The court may endorse upon the summons an order directing the parent, guardian, or legal custodian of the child named in the petition to appear personally at the hearing or directing the person having the physical custody or control of such child to bring such child to the hearing.
(e) A party other than the child named in the petition may waive service of summons by written stipulation or by voluntary appearance at the hearing.
§ 15-11-243.2. 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 14 days before the permanent guardianship 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 due diligence, the summons shall be served upon such party at least 14 days before the permanent guardianship hearing by mailing him or her a copy by registered or certified mail or statutory overnight delivery, return receipt requested.
(c) If a party to be served is outside this state but his or her address is known or can be ascertained with due diligence, service of the summons shall be made at least 14 days before the permanent guardianship 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, return receipt requested.
(d)(1) If, after due diligence, a party to be served with a summons cannot be found and such party's address cannot be ascertained whether he or she is within or outside this state, the court may order service of the summons upon him or her by publication. The permanent guardianship hearing shall not be earlier than 15 days after the date of the last publication.
(2) Service by publication shall be made once a week for two consecutive weeks in the legal organ of the county where the petition for permanent guardianship has been filed. Service shall be deemed complete upon the date of the last publication.
(3) When served by publication, the notice shall contain the names of the parties, except that the anonymity of a child shall be preserved by the use of appropriate initials, and the date the petition for permanent guardianship was filed. The notice shall indicate the general nature of the proceedings and where a copy of the petition for permanent guardianship can be obtained and require the party to file any objections in accordance with paragraph (4) of this subsection.
(4) The notice shall state that the individual is entitled to object either to the establishment of a permanent guardianship or to the selection of the proposed guardian, or both. The notice shall require that any objection be filed in writing with the court within ten days of the personal service, within 14 days of the mailing of the notice, or within ten days of the date of the second publication of the notice.
(e) Service of the summons may be made by any suitable person under the direction of the court.
§ 15-11-243.3. Service of summons on biological father
(a) Unless he has surrendered all parental rights to his child, a summons shall be served in the same manner as set forth in Code Section 15-11-243.2 on the biological father:
(1) Whose paternity has been established in a judicial proceeding to which the father was a party;
(2) Whose identity is known to the petitioner or the petitioner's attorney;
(3) Who is a registrant on the putative father registry who has indicated possible paternity of the child named in the petition brought pursuant to this article;
(4) Who is a registrant on the putative father registry who has indicated possible paternity of the child named in the petition brought pursuant to this article who was born to such child's mother during a period beginning no more than two years immediately preceding such child's date of birth; or
(5) Who, if the court finds from the evidence, including, but not limited to, the affidavit of the mother of a child named in the petition brought pursuant to this article, has performed any of the following acts:
(A) Lived with such child;
(B) Contributed to such child's support;
(C) Made any attempt to legitimate such child; or
(D) Provided support or medical care for such mother either during her pregnancy or during her hospitalization for the birth of such child.
(b) The notice shall advise the biological father that he will lose all rights to object to the appointment of a permanent guardian for the minor if he does not file an objection with the court within 14 days of the notice and file a petition to legitimate the minor within 30 days of the hearing on his objection. The notice shall include the name of the individual who will be the minor's permanent guardian if the petition is granted.
(c) If the biological father files a timely objection to the petition, the court shall hear the objection and, if the biological father makes a request, shall continue the hearing for 30 days to allow the father to file a petition to legitimate the minor.
(d) If the biological father does not file a petition for legitimation within 30 days or files a petition that is subsequently dismissed for failure to prosecute or files a petition and the action is subsequently concluded without a court order declaring that he is the father of the minor, the biological father shall have no further rights to receive notice of or object to the appointment of a permanent guardian for the minor.
(e) If the identity of the biological father of the child for whom a permanent guardianship is sought is not known to the petitioner or the petitioner's attorney and the biological father would not be entitled to notice in accordance with subsection (a) of Code Section 15-11-243.1, then it shall be rebuttably presumed that he is not entitled to notice of the proceedings. The court shall be authorized to require the mother to execute an affidavit supporting the presumption or show cause before the court if she refuses. Absent evidence rebutting the presumption, no further inquiry or notice shall be required by the court, and the biological father shall have no further rights to receive notice of or object to the appointment of a permanent guardian for the minor.
§ 15-11-260. Purpose of this article
(a) The purpose of this article is:
(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 family;
(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 permanency for such child.
(b) Nothing in this article shall be construed as affecting the rights of a parent who is not the subject of the proceedings.
§ 15-11-260.1. Construction with federal law
A proceeding under this article shall not be subject to this article to the extent that it is governed by the Indian Child Welfare Act, P.L. 95-608, as amended, Chapter 21 of Title 25 of the United States Code. In those circumstances, compliance with such federal law shall be required.
§ 15-11-261. Order terminating the parental rights of a parent
(a) An order terminating the parental rights of a parent shall be without limit as to duration and shall divest the parent and his or her child of all legal rights, powers, privileges, immunities, duties, and obligations with respect to each other, except:
(1) The right of such child to receive child support from his or her parent until a final order of adoption is entered;
(2) The right of such child to inherit from and through his or her parent. The right of inheritance of such child shall be terminated only by a final order of adoption; and
(3) The right of such child to pursue any civil action against his or her parent.
(b) When an order terminating the parent and child relationship has been issued, the parent whose right has been terminated shall not thereafter be entitled to notice of proceedings for the adoption of his or her child by another, nor has the parent any right to object to the adoption or otherwise to participate in such proceedings.
(c) The relationship between a child and his or her siblings shall not be severed until that relationship is terminated by final order of adoption.
(d) A relative whose relationship to a child is derived through the parent whose parental rights are terminated shall be considered to be a relative of such child for purposes of placement of, and permanency plan for, such child until such relationship is terminated by final order of adoption.
§ 15-11-262. Right to attorney; appointment of guardian ad litem; waiver
(a) A child and any other party to a proceeding under this article shall have the right to an attorney at all stages of the proceedings under this article.
(b) The court shall appoint an attorney for a child in a termination of parental rights proceeding. The appointment shall be made as soon as practicable to ensure adequate representation of such child and, in any event, before the first court hearing that may substantially affect the interests of such child.
(c) A child's attorney owes to a child the duties imposed by the law of this state in an attorney-client relationship.
(d) The court shall appoint a guardian ad litem for a child in a termination proceeding; provided, however, that such guardian ad litem may be the same person as the child's attorney unless or until there is a conflict of interest between the attorney's duty to such child as such child's attorney and the attorney's considered opinion of such child's best interests as guardian ad litem.
(e) The court shall appoint a CASA to serve as guardian ad litem whenever possible, and a CASA may be appointed in addition to an attorney who is serving as a guardian ad litem.
(f) The role of a guardian ad litem in a termination of parental rights proceeding shall be the same role as provided for in all dependency proceedings under Article 3 of this chapter.
(g) If an attorney or guardian ad litem has been appointed to represent a child in a prior proceeding under this chapter, the court, when possible, shall appoint the same attorney to represent such child in any subsequent proceeding.
(h) An attorney appointed to represent a child in a termination proceeding shall continue the representation in any subsequent appeals unless excused by the court.
(i) Unless authorized by the court, neither a child or a representative of a child may waive the right to any attorney in a termination proceeding.
(j) A party other than a child shall be informed of his or her right to an attorney prior to the adjudication hearing and prior to any other hearing at which a party could be subjected to the loss of residual parental rights. A party other than a child shall be given an opportunity to:
(1) Obtain and employ an attorney of the party's own choice;
(2) To obtain a court appointed attorney if the court determines that the party is an indigent person; or
(3) Waive the right to an attorney.
§ 15-11-263. Court-ordered physical or mental evaluation
(a) Upon motion of any party or the court, the court may require a physical or mental evaluation of a child adjudicated as a dependent child or his or her parent, stepparent, guardian, or legal custodian.
(b) The cost of any ordered evaluation shall be paid by the moving party unless apportioned by the court, in its discretion, to any other party or parties.
§ 15-11-264. Discovery procedures under this article
(a) In all cases under this article, any party shall, upon written request to the party having actual custody, control, or possession of the material to be produced, have full access to the following for inspection, copying, or photographing:
(1) The names and telephone numbers of each witness likely to be called to testify at the hearing by another party;
(2) A copy of any formal written statement made by the child adjudicated as a dependent child or any witness that relates to the subject matter concerning the testimony of the witness that a party intends to call as a witness at the hearing;
(3) Except as otherwise provided in subsection (b) of this Code section, any scientific or other report which is intended to be introduced at any hearing or that pertains to physical evidence which is intended to be introduced;
(4) Any drug screen concerning the child adjudicated as a dependent child or his or her parent, guardian, or legal custodian;
(5) Any case plan concerning the child adjudicated as a dependent child or his or her parent, guardian, or legal custodian;
(6) Any visitation schedule related to the child who is adjudicated as a dependent child;
(7) Photographs and any physical evidence which are intended to be introduced at any hearing;
(8) Copies of the police incident report regarding an occurrence which forms part or all of the basis of the petition; and
(9) Any other relevant evidence not requiring consent or a court order under subsection (b) of this Code section.
(b) Upon presentation of a court order or written consent from the appropriate person or persons permitting access to the party having actual custody, control, or possession of the material to be produced, any party shall have access to the following for inspection, copying, or photographing:
(1) Any psychological, developmental, physical, mental or emotional health, or other assessments of the child adjudicated as a dependent child or the family, parent, guardian, or legal custodian of such child;
(2) Any school record concerning the child adjudicated as a dependent child;
(3) Any medical record concerning the child adjudicated as a dependent child;
(4) Transcriptions, recordings, and summaries of any oral statement of the child adjudicated as a dependent child or of any witness, except child abuse reports that are confidential pursuant to Code Section 19-7-5 and work product of counsel;
(5) Any family team meeting report or multidisciplinary team meeting report concerning the child adjudicated as a dependent child or his or her parent, guardian, or legal custodian;
(6) Supplemental police reports, if any, regarding an occurrence which forms part of all of the basis of the petition; and
(7) Immigration records concerning the child adjudicated as a dependent child.
(c) If a party requests disclosure of information pursuant to subsection (a) or (b) of this Code section, it shall be the duty of such party to promptly make the following available for inspection, copying, or photographing to every other party:
(1) The names and last known addresses and telephone numbers of each witness to the occurrence which forms the basis of the party's defense or claim;
(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 subject matter concerning the testimony of the witness that the party intends to call as a witness.
(d) A request for discovery or reciprocal discovery shall be complied with promptly and not later than five days after the request is received or 72 hours prior to any 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 an adjudicatory hearing, the discovery response shall be produced in a timely manner. If, subsequent to providing a discovery response in compliance with this Code section, the existence of additional evidence is found, it shall be promptly provided to the party making the discovery request.
(e) If a request for discovery or consent for release is refused, application may be made to the court for a written order granting discovery. Motions for discovery shall certify that a request for discovery or consent was made and was unsuccessful despite
good faith efforts made by the requesting party. An order granting discovery shall require reciprocal discovery. Notwithstanding the provisions of subsection (a) or (b) of this Code section, the court may deny, in whole or in part, or otherwise limit or set conditions concerning the discovery response upon a 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 minor who is being prosecuted as an adult or the prosecution of an adult charged with an offense arising from the same transaction or occurrence.
(f) No deposition shall be taken of a child adjudicated as a dependent child unless the court orders the deposition, under such conditions as the court may order, on the ground that the deposition would further the purposes of this part.
(g) 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 an order issued pursuant to this Code section, 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.
(h) Nothing contained in this Code section shall prohibit the court from ordering the disclosure of any information that the court deems necessary for proper adjudication.
(i) Any material or information furnished to a party pursuant to this Code section shall remain in the exclusive custody of the party 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.
§ 15-11-265. Consent to judgment terminating parental rights; executing an act of surrender
Once a petition to terminate parental rights has been filed, the parent of a child adjudicated as a dependent child shall thereafter be without authority to affect the custody of his or her child except such parent may:
(1) Consent to a judgment terminating his or her parental rights; and
(2) Execute an act of surrender in favor of:
(A) A third party if all of the parties to the petition to terminate parental rights agree; or
(B) The department.
§ 15-11-270. Jurisdiction; transfer
(a) A proceeding under this article shall be commenced:
(1) In the county that has jurisdiction over related dependency proceedings;
(2) In the county in which a child legally resides;
(3) In the county in which a child is present when the termination proceeding is commenced if such child is present without his or her parent, guardian, or legal custodian; or
(4) In the county where the acts underlying the petition to terminate parental rights are alleged to have occurred.
(b) For the convenience of the parties, the court may transfer proceedings to the county in which the parent of a child adjudicated as a dependent child legally resides. If a proceeding is transferred, certified copies of all legal and social documents and records pertaining to the proceeding on file with the clerk of court shall accompany the transfer.
§ 15-11-280. Petition to terminate parental rights
(a) A petition to terminate parental rights and all subsequent court documents in such proceeding shall be entitled “In the interest of , a child.”, except upon appeal, in which event the anonymity of a child shall be preserved by use of appropriate initials. The petition shall be in writing.
(b) The petition to terminate parental rights shall be made, verified, and immediately filed and docketed without delay when presented to the clerk of the juvenile court.
(c) A petition to terminate parental rights shall:
(1) State clearly that an order for termination of parental rights is requested and that the effect of the order will conform to Code Section 15-11-261;
(2) State the statutory ground, as provided in Code Section 15-11-310, on which the petition is based; and
(3) Set forth plainly and with particularity:
(A) The facts which bring a child within the jurisdiction of the court, with a statement that it is in the best interests of such child and the public that the proceeding be brought;
(B) The name, age, date of birth, and residence address of the child named in the petition;
(C) The name and residence address of the parent, guardian, or legal custodian of such child; or, if the parent, guardian, or legal custodian of the child named in the petition to terminate parental rights does not reside or cannot be found within the state or if such place of residence address is unknown, the name of any known adult relative of such child residing within the county or, if there is none, the known adult relative of such child residing nearest to the location of the court;
(D) Whether the child named in the petition is in protective custody and, if so, the place of his or her foster care and the time such child was taken into protective custody; and
(E) Whether any of the information required by this paragraph is unknown.
(d) When a petition to terminate parental rights seeks termination of the rights of a biological father who is not the legal father and who has not surrendered his rights to his child, the petition shall include a certificate from the putative father registry disclosing the name, address, and social security number of any registrant acknowledging paternity of the child named in the petition or indicating the possibility of paternity of a child of the child's mother for a period beginning no more than two years immediately preceding such child's date of birth. The certificate shall document a search of the registry on or before the date of the filing of the petition and shall include a statement that the registry is current as to filings of registrants as of the date of the petition.
(e) A copy of a voluntary surrender or written consent, if any, previously executed by a parent of the child named in the petition to terminate parental rights shall be attached to the petition.
§ 15-11-282. 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 30 days before the termination of parental rights 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 due diligence, the summons shall be served upon such party at least 30 days before the termination of parental rights hearing by mailing him or her a copy by registered or certified mail or statutory overnight delivery, return receipt requested.
(c) If a party to be served is outside this state but his or her address is known or can be ascertained with due diligence, service of the summons shall be made at least 30 days before the termination of parental rights 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, return receipt requested.
(d) If, after due diligence, a party to be served with a summons cannot be found and such party's address cannot be ascertained, whether he or she is within or outside this state, the court may order service of the summons upon him or her by publication. The termination of parental rights hearing shall not be earlier than 31 days after the date of the last publication.
(e)(1) Service by publication shall be made once a week for four consecutive weeks in the legal organ of the county where the petition to terminate parental rights has been filed and of the county of the biological father's last known address. Service shall be deemed complete upon the date of the last publication.
(2) When served by publication, the notice shall contain the names of the parties, except that the anonymity of a child shall be preserved by the use of appropriate initials, and the date the petition to terminate parental rights was filed. The notice shall indicate the general nature of the allegations and where a copy of the petition to terminate parental rights can be obtained and require the party to be served by publication to appear before the court at the time fixed to answer the allegations of the petition to terminate parental rights.
(3) The petition to terminate parental rights shall be available to the party whose rights are sought to be terminated free of charge from the court during business hours or, upon request, shall be mailed to such party.
(4) Within 15 days after the filing of the order of service by publication, the clerk of court shall mail a copy of the notice, a copy of the order of service by publication, and a copy of the petition to terminate parental rights to the absent party's last known address.
(f) Service of the summons may be made by any suitable person under the direction of the court.
(g) The court may authorize the payment from county funds of the costs of service and of necessary travel expenses incurred by persons summoned or otherwise required to appear at the hearing.
§ 15-11-284. Notice of effect of termination judgment
The notice required to be given to the mother, the biological father, and legal father of the child shall state:
“NOTICE OF EFFECT OF TERMINATION JUDGMENT
Georgia law provides that you can permanently lose your rights as a parent. A petition to terminate parental rights has been filed requesting the court to terminate your parental rights to your child. A copy of the petition to terminate parental rights is attached to this notice. A court hearing of your case has been scheduled for the day of , , at (time of day), at the Court of County.
If you fail to appear, the court can terminate your rights in your absence.
If the court at the trial finds that the facts set out in the petition to terminate parental rights are true and that termination of your rights will serve the best interests of your child, the court can enter a judgment ending your rights to your child.
If the judgment terminates your parental rights, you will no longer have any rights to your child. This means that you will not have the right to visit, contact, or have custody of your child or make any decisions affecting your child or your child's earnings or property. Your child will be legally freed to be adopted by someone else.
Even if your parental rights are terminated:
(1) You will still be responsible for providing financial support (child support payments) for your child's care unless and until your child is adopted; and
(2) Your child can still inherit from you unless and until your child is adopted.
This is a very serious matter. You should contact an attorney immediately so that you can be prepared for the court hearing. You have the right to hire an attorney and to have him or her represent you. If you cannot afford to hire an attorney, the court will appoint an attorney if the court finds that you are an indigent person. Whether or not you decide to hire an attorney, you have the right to attend the hearing of your case, to call witnesses on your behalf, and to question those witnesses brought against you.
If you have any questions concerning this notice, you may call the telephone number of the clerk's office which is .”
§ 15-11-285. Issuance of rule nisi for failure to appear; order to take child into protective custody
(a) If any person named in and properly served with a summons shall without reasonable cause fail to appear or, when directed in the summons, to bring the child named in the petition pursuant to this article before the court, then 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 a summons cannot be served or if the person to whom the summons is directed fails to obey it, the court may issue an order to take the child named in the petition pursuant to this article into protective custody.
§ 15-11-300. Notice of hearing to terminate parental rights to caregiver of child, foster parents, preadoptive parent, or any relative providing care for child
(a) In advance of each hearing to terminate parental rights, DFCS shall give written notice of the date, time, place, and purpose of the hearing to the caregiver of the child at issue, the foster parents of such child, if any, any preadoptive parent, or any relative providing care for such child, including the right to be heard. The written notice shall be delivered to the recipient at least 72 hours before the review or hearing by United States mail, e-mail, or hand delivery.
(b) This Code section shall not be construed to require a caregiver, foster parent, preadoptive parent, or relative caring for the child at issue to be made a party to the hearing solely on the basis of such notice and right to be heard.
(c) At any termination of parental rights hearing, the court shall make specific findings of fact in writing regarding participation by the caregiver of a child, the foster parent of a child, any preadoptive parent, or any relative providing care for a child. Such findings of fact shall include:
(1) Whether the caregiver was provided notice of the hearing, including the method, and whether the caregiver expressed an interest in being heard at the hearing; and
(2) If the caregiver is present, specific information regarding the caregiver's views, including, but not limited to, concerning the child's well-being, health, and safety; any changes the caregiver believes are necessary to advance the child's well-being, health, and safety; and the timeliness, necessity, and quality of services being provided to the child and caregiver; and a summary of documentation presented by the caregiver regarding the child's well-being, health, and safety, including, but not limited to, reports from physicians, counselors, psychologists, and teachers.
§ 15-11-301. Time requirements for filing and issuing order of disposition; record of hearings
(a) If no just cause has been shown for delay, all hearings contemplated by this article shall be conducted within 90 days of the date a petition to terminate parental rights is filed.
(b) If no just cause for delay has been shown by written finding of fact by the court, an order of disposition shall be issued by the juvenile court no later than 30 days after the conclusion of the hearing on the petition to terminate parental rights.
(c) All hearings contemplated by this article shall be recorded by stenographic notes or by electronic, mechanical, or other appropriate means capable of accurately capturing a full and complete record of all words spoken during the hearings. If no just cause for delay has been shown, the court reporter shall provide a transcript of the hearings no later than 30 days after a notice of appeal is filed.
(d) This Code section shall not affect the right to request a rehearing or the right to appeal the juvenile court's order.
(e) Failure to comply with the time requirements of this Code section shall not be grounds to invalidate an otherwise proper order terminating parental rights unless the court determines that such delay resulted in substantial prejudice to a party.
§ 15-11-302. Record of testimony in proceeding under this article inadmissible in other proceedings; exceptions
The record of the testimony of the parties adduced in any proceeding under this article shall not be admissible in any civil, criminal, or any other cause or proceedings in any court against a person named as respondent for any purpose whatsoever, except in subsequent dependency or termination proceedings involving the same child or dependency or termination proceedings involving the same respondent.
§ 15-11-303. Standard of proof
In all proceedings under this article, the standard of proof to be adduced to terminate parental rights shall be by clear and convincing evidence.
§ 15-11-304. Hearings to terminate parental rights; exclusion of evidence
Except as provided in this Code section, hearings to terminate parental rights shall be conducted in accordance with Title 24. Testimony or other evidence relevant to determining whether a statutory ground for termination of parental rights exists may not be excluded on any ground of privilege, except in the case of:
(1) Communications between a party and his or her attorney; and
(2) Confessions or communications between a priest, rabbi, or duly ordained minister or similar functionary and his or her confidential communicant.
§ 15-11-310. Statutory grounds for termination; best interests of child
(a) In considering the termination of parental rights, the court shall first determine whether one of the following statutory grounds for termination of parental rights has been met:
(1) The parent has given written consent to termination which has been acknowledged by the court or has voluntarily surrendered his or her child for adoption;
(2) The parent has subjected his or her child to aggravated circumstances;
(3) The parent has wantonly and willfully failed to comply for a period of 12 months or longer with a decree to support his or her child that has been entered by a court of competent jurisdiction of this or any other state;
(4) A child is abandoned by his or her parent; or
(5) A child is a dependent child due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied in the reasonably foreseeable future, and:
(A) Returning such child to his or her parent is likely to cause serious physical, mental, moral, or emotional harm to such child or threaten the physical safety or well-being of such child; or
(B) Continuation of the parent and child relationship will cause or is likely to cause serious physical, mental, moral, or emotional harm to such child.
(b) If any of the statutory grounds for termination has been met, the court shall then consider whether termination is in a child's best interests after considering the following factors:
(1) Such child's sense of attachments, including his or her sense of security and familiarity, and the continuity of affection for such child;
(2) Such child's wishes and long-term goals;
(3) Such child's need for permanence, including his or her need for stability and continuity of relationships with a parent, siblings, and other relatives;
(4) Any benefit to such child of being integrated into a stable and permanent home and the likely effect of delaying such integration into such stable and permanent home environment;
(5) The detrimental impact of the lack of a stable and permanent home environment on such child's safety, well-being, or physical, mental, or emotional health;
(6) Such child's future physical, mental, moral, or emotional well-being; and
(7) Any other factors, including the factors set forth in Code Section 15-11-26, considered by the court to be relevant and proper to its determination.
(c) If the court determines that a parent has subjected his or her child to aggravated circumstances because such parent has committed the murder of the other parent of such child, the court shall presume that termination of parental rights is in the best interests of the child.
§ 15-11-311. Determination of whether child is without proper parental care and control; religious nonmedical means for healing
(a) In determining whether a child is without proper parental care and control, the court shall consider, without being limited to, the following:
(1) A medically verified deficiency of such child's parent's physical, mental, or emotional health that is of such duration or nature so as to render such parent unable to provide adequately for his or her child;
(2) Excessive use of or history of chronic unrehabilitated substance abuse with the effect of rendering a parent of such child incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of his or her child;
(3) A felony conviction and imprisonment of a parent of such child for an offense which has a demonstrably negative effect on the quality of the parent-child relationship including, but not limited to, any of the following:
(A) Murder of another child of such parent;
(B) Voluntary manslaughter of another child of such parent;
(C) Voluntary manslaughter of the other parent of his or her child;
(D) Aiding or abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of such parent;
(E) Aiding or abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of the other parent of his or her child; or
(F) Committing felony assault that results in serious bodily injury to his or her child or another child of such parent;
15-11-311
(4) Egregious conduct or evidence of past egregious conduct of a physically, emotionally, or sexually cruel or abusive nature by such parent toward his or her child or toward another child of such parent;
(5) Physical, mental, or emotional neglect of his or her child or evidence of past physical, mental, or emotional neglect by the parent of such child or another child of such parent; and
(6) Serious bodily injury or death of a sibling of his or her child under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse.
(b) In determining whether a child who is not in the custody and care of his or her parent is without proper parental care and control, the court shall also consider, without being limited to, whether such parent, without justifiable cause, has failed significantly for a period of six months prior to the date of the termination hearing:
(1) To develop and maintain a parental bond with his or her child in a meaningful, supportive manner;
(2) To provide for the care and support of his or her child as required by law or judicial decree; and
(3) To comply with a court ordered plan designed to reunite such parent with his or her child.
(c) A parent's reliance on prayer or other religious nonmedical means for healing in lieu of medical care, in the exercise of religious beliefs, shall not be the sole basis for determining a parent to be unwilling or unable to provide safety and care adequate to meet his or her child's physical, emotional, and mental health needs as provided in paragraph (1) of subsection (a) of this Code section or as depriving such child of proper parental care or control for purposes of this Code section and Code Section 15-11-310.
§ 15-11-320. Court’s order to terminate parental rights; disposition order
(a) When the court finds that any ground set out in Code Section 15-11-310 is proved by clear and convincing evidence and that termination of parental rights is in a child's best interests, it shall order the termination of the parent's rights.
(b) The court's order shall:
(1) Contain written findings on which the order is based, including the factual basis for a determination that grounds for termination of parental rights exist and that termination is in the best interests of the child, including the findings required by subsection (c) of Code Section 15-11-300;
(2) Be conclusive and binding on all parties from the date of entry;
(3) Grant custody of the child at issue in accordance with Code Section 15-11-321; and
(4) Inform the parent whose rights have been terminated of his or her right to use the services of the Georgia Adoption Reunion Registry; however, failure to include such information shall not affect the validity of the judgment.
(c) If the court does not order the termination of parental rights but the court finds that there is clear and convincing evidence that a child is a dependent child, the court may enter a disposition order in accordance with the provisions of Article 3 of this chapter.
(d) The court shall transmit a copy of every final order terminating the parental rights of a parent to the State Adoption Unit of the department within 15 days of the filing of such order.
§ 15-11-321. Placement of child
(a) When a court enters an order terminating the parental rights of a parent or accepts a parent's voluntary surrender of parental rights, or a petition for termination of parental rights is withdrawn because a parent has executed an act of surrender in favor of the department, a placement may be made only if the court finds that such placement is in the best interests of the child and in accordance with such child's court approved permanency plan created pursuant to Code Sections 15-11-231 and 15-11-232. In determining which placement is in a child's best interests, the court shall enter findings of fact reflecting its consideration of the following:
(1) Such child's need for a placement that offers the greatest degree of legal permanence and security;
(2) The least disruptive placement for such child;
(3) Such child's sense of attachment and need for continuity of relationships;
(4) The value of biological and familial connections; and
(5) Any other factors the court deems relevant to its determination.
(a.1) The court may consider any evidence, including hearsay evidence, that the court finds to be relevant, reliable, and necessary to determine the needs of a child and the permanency and custody of a child whose parents have had their parental rights terminated or who have surrendered their parental rights.
(b) A guardian or legal custodian shall submit to the jurisdiction of the court for purposes of placement.
(c) A placement effected under the provisions of this Code section shall be conditioned upon the person who is given custody or who is granted an adoption of a child whose parents have had their parental rights terminated or surrendered agreeing to abide by the terms and conditions of the order of the court.
(d) In addition to its rights as a legal custodian, the department has the authority to consent to the adoption of a child whose parents have had their parental rights terminated or surrendered.
§ 15-11-322. Petition seeking adoption of child
If a petition seeking the adoption of a child whose parents have had their parental rights terminated or surrendered is not filed within six months after the date of the disposition order, the court shall then, and at least every six months thereafter so long as such child remains unadopted, review the circumstances of such child to determine what efforts have been made to assure that such child will be adopted. The court shall:
(1) Make written findings regarding whether reasonable efforts have been made to move such child to permanency;
(2) Evaluate whether, in light of any change in circumstances, the permanency plan for such child remains appropriate; and
(3) Enter such orders as it deems necessary to further adoption or if appropriate, other permanency options, including, but not limited to, another placement.
The court may consider any evidence, including hearsay evidence, that the court finds to be relevant, reliable, and necessary to determine the needs of a child and the permanency and custody of a child whose parents have had their parental rights terminated or who have surrendered their parental rights.
§ 15-11-323. Reinstatement of parental rights
(a) A child who has not been adopted after the passage of at least three years from the date the court terminated parental rights or the parent voluntarily surrendered parental rights to DFCS and for whom the court has determined that adoption is no longer the permanent plan may petition the court to reinstate parental rights pursuant to the modification of orders procedure prescribed by Code Section 15-11-32. Such child may file the petition to reinstate parental rights prior to the expiration of such three-year period if the department or licensed child-placing agency that is responsible for the custody and supervision of such child and such child stipulate that such child is no longer likely to be adopted. A child 14 years of age or older shall sign the petition in the absence of a showing of good cause as to why such child could not do so.
(b) If it appears that the best interests of a child may be promoted by reinstatement of parental rights, the court shall order that a hearing be held and shall cause notice to be served by United States mail to DFCS, the attorney of record, guardian ad litem, if any, and foster parents, if any, of the child whose parental rights were terminated or surrendered and the child's former parent whose parental rights were terminated or surrendered. The former parent and foster parents, if any, shall have a right to be heard at the hearing to reinstate parental rights but shall not be parties at such hearing, and such hearing may be conducted in their absence. A child's motion shall be dismissed if his or her former parent cannot be located or if such parent objects to the reinstatement.
(c) The court shall grant the petition if it finds by clear and convincing evidence that a child is no longer likely to be adopted and that reinstatement of parental rights is in the child's best interests. In determining whether reinstatement is in the child's best interests the court shall consider, but not be limited to, the following:
(1) Whether a parent whose rights are to be reinstated is a fit parent and has remedied his or her deficits as provided in the record of the prior termination proceedings and prior termination order;
(2) The age and maturity of a child and the ability of such child to express his or her preference;
(3) Whether the reinstatement of parental rights will present a risk to a child's health, welfare, or safety; and
(4) Other material changes in circumstances, if any, that may have occurred which warrant the granting of the petition.
(d) If the court grants the petition to reinstate parental rights, a review hearing shall be scheduled within six months. During such period, the court may order that a child be immediately placed in the custody of his or her parent or, if the court determines that a transition period is necessary and such child is in DFCS custody at the time of the order, order DFCS to provide transition services to the family as appropriate.
(e) An order granted under this Code section reinstates a parent's rights to his or her child. Such reinstatement shall be a recognition that the situation of the parent and his or her child has changed since the time of the termination of parental rights and reunification is now appropriate.
(f) This Code section is intended to be retroactive and applied to any child who is under the jurisdiction of the court at the time of the hearing regardless of the date parental rights were terminated.
§ 15-11-324. Foster parent testimony and evidence
(a) After the court has granted a termination of parental rights, and during the dispositional phase of such case contemplated in Code Section 15-11-321 and in any post-dispositional review under Code Section 15-11-322, the court shall in making its disposition consider the testimony of and evidence provided by any foster parent, caregiver, relative, or other individual in whose physical custody the child has resided for at least 12 months during a period ending not more than 90 days preceding the filing of the petition, provided that such individual expresses a desire and willingness to adopt the child.
(b) Such testimony and evidence may include evidence regarding the level of attachment and bonding between the child and caregiver; the child's health, safety, and well-being; and such other evidence that the court may consider relevant to its disposition of the case. The court may, in its discretion, limit the scope of such evidence as it may deem relevant and material to the dispositional issues at hand.
§ 15-11-340. Eligibility criteria; transition plan; right to an attorney
(a) A child may receive extended care youth services from DFCS. In order to receive such services, he or she must be between 18 and 21 years of age, sign a voluntary placement agreement with DFCS, and meet objective eligibility criteria established by DFCS, which shall include one or more of the following requirements:
(1) Be completing secondary education or a program leading to an equivalent credential;
(2) Be enrolled in an institution which provides postsecondary or vocational education;
(3) Be a participant in a program or activity designed to promote or remove barriers to employment;
(4) Be employed for at least 120 hours per month;
(5) Be employed for 80 hours per month, provided that he or she is also engaged in one of the activities described in paragraphs (1) through (3) of this subsection or can only work 80 hours per month due to a medical condition; or
(6) Be incapable of doing any of the activities described in paragraphs (1) through (5) of this subsection due to a medical condition.
(b) When a child is receiving extended care youth services from DFCS, a DFCS case manager and staff, other representatives of such child and, as appropriate, such child shall develop a transition plan that is personalized at the direction of such child, including an option to execute a durable power of attorney for health care, health care proxy, or other similar document recognized by law with respect to health care and specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and workforce supports and employment services, and is as detailed as such child may elect. Such transition plan shall be completed within 30 days of the child agreeing to such services and shall be updated as required by this article.
(c) A child may terminate a voluntary placement agreement and stop receiving extended care youth services at any time.
(d) Every 12 months, a DFCS case manager shall determine if a child is still eligible for extended care youth services. If DFCS determines that a child is no longer eligible for extended care youth services, DFCS may terminate the voluntary placement agreement with such child and stop providing extended care youth services. DFCS shall provide written or electronic notice to such child regarding such termination and to the court that approved such services.
(e) A child who is within 12 months of becoming 21 years of age shall not be permitted to sign a voluntary placement agreement with DFCS for extended care youth services.
(f) The trial court may appoint an attorney for a child at all stages of the proceedings under this article with the child's consent. If a child does not have an attorney, a child shall be informed prior to any hearing of their right to have legal representation and shall be given an opportunity to:
(1) Obtain an attorney of his or her own choice;
(2) Obtain a court appointed attorney in the court's discretion; or
(3) Waive the right to an attorney.
§ 15-11-341. Report
(a) No later than 120 days after a voluntary placement agreement is signed by a child, DFCS shall file with the court a written report which shall contain the following:
(1) The child's name, date of birth, race, gender, and current address;
(2) Facts to support a finding that the child meets the eligibility criteria for extended care youth services and an explanation as to why it is in the child's best interests to receive extended care youth services;
(3) A copy of the signed voluntary placement agreement;
(4) A plan for such child to transition to independent living or another planned permanent adult living arrangement which is appropriate for the age and independence of the child using a form adopted by DFCS;
(5) Any information the child wants the court to consider; and
(6) Any other information DFCS wants the court to consider.
(b) Within 30 days of the filing of the written report required by this Code section, the court shall hold a review hearing and make written findings of fact for the purpose of determining whether extended care youth services are in the best interests of such child. The court shall issue an order with regard to the child having extended care youth services if it has determined that such services are in the best interests of the child and, as appropriate, approve or reject the plan for transition to independent living or another planned permanent adult living arrangement submitted by DFCS.
§ 15-11-342. Periodic review
(a) When a child is receiving services under this article, the date such child is considered to have entered foster care shall be 60 days after such child signed the voluntary placement agreement.
(b)(1) No later than 12 months after a child is considered to have entered foster care, the court shall hold a hearing and make findings of fact for the purpose of determining whether:
(A) The services and supports provided by DFCS under the child's voluntary placement agreement are developmentally appropriate;
(B) DFCS has made reasonable efforts to finalize the child's plan for transition to independent living or another planned permanent adult living arrangement; and
(C) The child is making progress toward achieving independence.
(2) The court shall issue an order adopting or rejecting any updated transition plan for such child.
(c) So long as a child is eligible for and remains in extended care youth services, the court shall conduct periodic review hearings and make written findings of fact in accordance with subsection (b) of this Code section no later than 12 months following the previous hearing. Such periodic review hearings shall continue so long as such child is eligible for and remains in extended care youth services.
(d) Five days prior to any hearing conducted under this Code section, DFCS shall submit a report for the court's consideration, on a form adopted by DFCS, recommending a plan for transition to independent living or another permanent planned adult living arrangement and include the child's name, address, and telephone number, the date he or she entered extended care youth services, and the placement and services being provided for such child.
(e) Within the 90 day period prior to a child no longer receiving extended care youth services from DFCS, a DFCS case manager and staff, and other representatives of such child and, as appropriate, such child shall develop a final transition plan that is personalized at the direction of such child, including an option to execute a durable power of attorney for health care, health
care proxy, or other similar document recognized by law with respect to health care and specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and workforce supports and employment services, and is as detailed as such child may elect.
Closing Note
I hope the information in this handbook will help you represent parties in dependency cases with confidence. The work is challenging but rewarding. Families in dependency court are facing what is likely the most uncertain time in their lives. It is precisely at times such as those that an attorney is needed most. Whatever your role — counsel for the petitioner, for a parent, or for a child, or service as a guardian ad litem — the system needs you, and your colleagues at the bar, if it is to work as it should.
The Hon. Joshua D. Earwood
Associate Judge, Bartow County Juvenile Court
Prepared for use by ICLE participants — Educational Edition