Current Through April 2016

Circumstances That Constitute Witnessing

Citation: Ann. Code § 16-5-70(d)In criminal law: Any person commits the offense of cruelty to children in the third degree when:

• Such person, who is the primary aggressor, intentionally allows a child under age 18 to witness the commission of a forcible felony, battery, or family violence battery.
• Such person, who is the primary aggressor, having knowledge that a child under age 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery.

Consequences

Citation: Ann. Code § 16-5-70(e)(3)  A person convicted of the offense of cruelty to children in the third degree shall be punished as for a misdemeanor upon the first or second conviction.

Upon conviction of a third or subsequent offense of cruelty to children in the third degree, the defendant shall be guilty of a felony and shall be sentenced to a fine not less than $1,000 or more than $5,000, imprisonment for not less than 1 year or more than 3 years, or both fine and imprisonment.

Current Through February 2016

Physical Abuse

Citation: Ann. Code § 19-7-5(b)  ‘Child abuse’ means physical injury or death inflicted upon a child by a parent or caregiver by other than accidental means.

Neglect

Citation: Ann. Code § 19-7-5(b)  The term ‘child abuse’ includes neglect or exploitation of a child by a parent or caregiver.

Sexual Abuse/Exploitation

Citation: Ann. Code § 19-7-5(b)  ‘Sexual abuse’ occurs when a person employs, uses, persuades, induces, entices, or coerces a minor who is not that person’s spouse to engage in any act that involves:

• Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex
• Bestiality or masturbation
• Lewd exhibition of the genitals or pubic area of any person
• Flagellation or torture by or upon a person who is nude
• Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude
• 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
• Defecation or urination for the purpose of sexual stimulation
• Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure

‘Sexual exploitation’ means conduct by any person who allows, permits, encourages, or requires a child to engage in prostitution or sexually explicit conduct for the purpose of producing a visual or print medium depicting such conduct.

Emotional Abuse

This issue is not addressed in the statutes reviewed.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Ann. Code § 19-7-5(b)
A report is required when a mandatory reporter has reasonable cause to believe that suspected child abuse has occurred.

Persons Responsible for the Child

Citation: Ann. Code § 19-7-5(b)  The term ‘responsible person’ includes the parent or caregiver.

Exceptions

Citation: Ann. Code § 19-7-5(b)  Physical forms of discipline may be used as long as there is no physical injury to the child.

No child who, in good faith, is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to be an abused child.

Sexual abuse does not include consensual sex acts between persons of the opposite sex who are minors or a minor and adult who is no more than 5 years older than the minor.

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Ann. Code § 19-13-10  As used in this article, the term ‘family violence’ means the occurrence of one or more of the following acts between any of the individuals listed below:

• Any felony
• Commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass

The term ‘family violence’ shall not be deemed to include reasonable discipline administered by a parent to a child in the form of corporal punishment, restraint, or detention.

Defined in Child Abuse Reporting and Child Protection Laws

Citation:This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

Citation:This issue is not addressed in the statutes reviewed.

Persons Included in the Definition

Citation: Ann. Code § 19-13-10  Individuals subject to the provisions of this section include:

• Past or present spouses
• Persons who are parents of the same child
• Parents and children
• Stepparents and stepchildren
• Foster parents and foster children
• Other persons living or formerly living in the same household

Current Through March 2015

Citation: Ann. Code § 19-7-5(f)

Any person or persons, partnership, firm, corporation, association, hospital, or other entity participating in making a report, or causing a report to be made, to a child welfare agency providing protective services or to an appropriate police authority pursuant to the reporting laws or any other law or participating in any judicial proceeding or any other proceeding resulting therefrom, shall, in so doing, be immune from any civil or criminal liability that might otherwise be incurred or imposed, provided such participation is made in good faith.

Any person making a report, whether required by reporting laws or not, shall be immune from liability.

Current Through February 2013

Individual Responsibility to Report

Citation: Ann. Code §§ 19-7-5; 16-12-100  A mandated reporter who has reasonable cause to believe that a child has been abused shall report or cause reports of that abuse to be made as provided in this section. An oral report shall be made immediately, but in no case later than 24 hours from the time there is reasonable cause to believe a child has been abused, by telephone or otherwise and followed by a report in writing, if requested.

A person who, in the course of processing or producing visual or printed matter either privately or commercially, has reasonable cause to believe that the visual or printed matter submitted for processing or producing depicts a minor engaged in sexually explicit conduct shall immediately report such incident, or cause a report to be made, to the Georgia Bureau of Investigation or the law enforcement agency for the county in which such matter is submitted.

Content of Reports

Citation: Ann. Code § 19-7-5  The report shall contain, if possible:

• The names and addresses of the child and the child’s parents or caregivers
• The child’s age, if known
• The nature and extent of the child’s injuries, including any evidence of previous injuries
• Any other information that might be helpful in establishing the cause of the injuries and the identity of the perpetrator

Reporting Suspicious Deaths

Citation:This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

Citation:This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Citation: Ann. Code § 19-7-5  The report shall be made to a child welfare agency providing protective services, as designated by the Department of Human Services, or, in the absence of such agency, to an appropriate police authority or district attorney.

If a report of child abuse is made to the child welfare agency or independently discovered by the agency, and the agency has reasonable cause to believe the report is true or the report contains any allegation or evidence of child abuse, then the agency shall notify immediately the appropriate police authority or the district attorney.

Initial Screening Decisions

Citation: DHS CW Man. Ch. 2, § 2.2  A case manager will evaluate the intake report to determine if the three components of child maltreatment reports are met. These components include:

• An alleged perpetrator:
  • Who is a known or unknown individual
  • Whose relationship to the victim is classified as being that of a parent, guardian, foster parent, stepparent, or adoptive parent; an employee of a public/private residential home, care facility, or daycare facility; a custodian (a person standing in loco parentis); other caregiver; or school personnel
• A child from birth up to their eighteenth birthday
• An allegation that meets the definition of child abuse, neglect, sexual abuse, or emotional abuse

Intake reports containing the required components must be approved for assessment (investigation) and submitted to a social service supervisor for approval and transfer to a case manager for completion of an abuse/neglect assessment.

Agency Conducting the Assessment/Investigation

Citation: Ann. Code § 49-5-180; DHS CW Man, § 2104.1  The investigation may be conducted by an abuse investigator, which includes the department, any local Department of Family and Children Services (DFCS), law enforcement agency, district attorney, or a designee thereof.

In regulation: DFCS investigates reports of suspected child maltreatment. The local county DFCS conducts the investigation to determine whether an incident of maltreatment occurred.

Assessment/Investigation Procedures

Citation: DHS CW Man, § 2104.1  The local county department will conduct the investigation to determine whether an incident of maltreatment occurred and, if maltreatment is substantiated, to determine the level of risk for future maltreatment to the child and to plan for the child’s safety and protection.

Investigation is a process to determine the validity of a complaint by interviewing, observing, and gathering information. This process leads to decisions about the level of risk for future maltreatment to the child, the degree of safety, and the need for the continued involvement of the agency until protection of the child is ensured.

Components of the investigation include:

• Reviewing the report to determine the best approach
• Coordinating, as necessary, with law enforcement
• Making the initial contact with the child and parent
• Planning additional contacts with the child and parent, as needed
• Gathering all available evidence
• Making collateral contacts
• Determining the degree of protection and safety of the child and the level of risk
• Continuing to coordinate, as needed, with law enforcement regarding possible criminal prosecution
• Making a case determination and sending required notifications of decisions

Timeframes for Completing Investigations

Citation: DHS CW Man. Ch. 2, § 2.5; 2104.1  DFCS will begin response time calculation at the conclusion of the intake call. DFCS response time categories include:

• Immediate: The child is in imminent danger. The case manager must leave to initiate the assessment (make face-to-face contact with each victim child) immediately following the assignment of the response time.
• Up to 24 hours: The child is not in present danger but it is likely that the child’s safety will be compromised in the immediate future. The case manager must initiate the investigation within 24 hours or by the specified period of time assigned to the case by the supervisor.
• Five work days: There is no present safety concern. The assessment (investigation) must be initiated within 5 work days (excluding weekends but including all holidays).

The investigation is completed within 30 calendar days of the date the report is received.

Classification of Reports

Citation: Ann. Code § 49-5-180  Reports are classified as follows:

• ‘Confirmed’ means that the investigation has revealed that there is equal or greater credible evidence that child abuse occurred than the credible evidence that child abuse did not occur.
• ‘Unconfirmed’ means that the investigation has revealed that there is some credible evidence that child abuse occurred, but there is not sufficient credible evidence to classify that child abuse as confirmed.
• ‘Unfounded’ means that the investigation has determined that there is no credible evidence that child abuse occurred.

Current Through

Citation: Ann. Code § 16-5-73(b)Any person who intentionally causes or permits a child to be present where any person is manufacturing methamphetamine or possessing a chemical substance with the intent to manufacture methamphetamine shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than 2 years nor more than 15 years.

Any person who violates the paragraph above wherein a child receives serious injury as a result of such violation shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than 5 years nor more than 20 years.

Current Through August 2014

Making The Appointment

Citation: Ann. Code §§ 15-11-103; 15-11-104  A child shall have the right to an attorney at all stages of a dependency proceeding under this article. The court shall appoint an attorney for an alleged dependent child. The appointment shall be made as soon as practicable to ensure adequate representation of the child and, in any event, before the first court hearing that may substantially affect the interests of such child.

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. An attorney appointed to represent a child in a dependency proceeding shall continue the representation in any subsequent appeals unless excused by the court.

The court shall appoint a guardian ad litem (GAL) for an alleged dependent child. An attorney for an alleged dependent child may serve as such child’s GAL unless or until there is conflict of interest between the attorney’s duty to the child as the child’s attorney and the attorney’s considered opinion of the child’s best interests as GAL.

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 GAL.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Ann. Code §§ 15-11-2(16); 15-11-104; 15-11-106  ‘Court-appointed special advocate’ or ‘CASA’ means a community volunteer who:

• Has been screened and trained regarding child abuse and neglect, child development, and juvenile court proceedings
• Has met all the requirements of an affiliate CASA program
• Is being actively supervised by an affiliate CASA program
• Has been sworn in by a judge of the juvenile court in the court or circuit in which he or she wishes to serve

A court shall appoint a CASA to act as GAL whenever possible, and a CASA may be appointed in addition to an attorney who is serving as a GAL. A lay guardian shall not engage in activities that could reasonably be construed as the practice of law.

Before executing duties as a CASA, and upon completion of all the requirements of an affiliate CASA 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.

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 section and §§ 15-11-104 and 15-11-105.

The role of a CASA in juvenile court dependency proceedings shall be to advocate for the best interests of the child.

Qualifications/Training

Citation: Ann. Code § 15-11-104  Before the appointment as a GAL, a person shall have received training appropriate to the role as GAL that is administered or approved by the Office of the Child Advocate for the Protection of Children. For attorneys, preappointment GAL 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.

Specific Duties

Citation: Ann. Code §§ 15-11-103; 15-11-105  A child’s attorney owes to his or her client the duties imposed by the law of this State in an attorney-client relationship.

A GAL shall advocate for a child’s best interests in the proceeding for which the GAL has been appointed. In determining a child’s best interests, a GAL 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 include:

• The physical safety and welfare of the child
• The mental and physical health of all individuals involved
• Evidence of domestic violence in the child’s home
• The child’s familial, cultural, and religious background and ties
• The child’s sense of attachments, including his or her sense of security and familiarity
• The least disruptive placement alternative for the child
• The child’s wishes and long-term goals
• The child’s community ties, including church, school, and friends
• The child’s need for permanence, stability, and continuity of relationships
• The risks attendant to being in substitute care
• The preferences of the persons available to care for the child
• Any other factors considered by the GAL to be relevant to his or her determination

Unless a child’s circumstances make the following duties and responsibilities unreasonable, a GAL shall at a minimum:

• Maintain regular in-person contact with the child and, in a manner appropriate to his or her developmental level, meet with and interview the child prior to all hearings
• In a manner appropriate to the child’s developmental level, ascertain the child’s needs, circumstances, and views
• Conduct an independent assessment to determine the facts and circumstances of the case
• Consult with the child’s attorney, if applicable, regarding the issues in the case
• Communicate with health-care, mental health care, and other professionals involved with the child’s case
• Review case study and educational, medical, psychological, and other relevant reports
• Review all court-related documents
• Attend all court hearings and other proceedings to advocate for the child’s best interests
• Advocate for timely court hearings to obtain permanency for the child
• Protect the cultural needs of the child
• Contact the child prior to and after any change in the child’s placement
• Request and attend a judicial citizen review panel or judicial review of the case
• Provide written reports to the court on the child’s best interests
• When appropriate, encourage the use of any alternative forms of dispute resolution and participate in such processes to the extent permitted
• Monitor compliance with the case plan and all court orders

Upon appointment, the GAL shall have access to all records and information relevant to a child’s case.

How the Representative Is Compensated

Citation: Ann. Code § 15-11-8  This issue is not addressed in the statutes reviewed.

Current Through April 2014

When Case Plans Are Required

Citation: Rules & Regs. r. 290-9-2-.07  A plan of care, or case plan, for the foster child and the foster family shall be developed within 30 days from the date of placement. The case plan shall be reevaluated for appropriateness in a case review conference at least every 6 months.

Who May Participate in the Case Planning Process

Citation: Rules & Regs. r. 290-9-2-.07  In developing the plan, the involvement of the child, foster parent, agency representative, and, when appropriate, the legal custody holder, shall be documented in the case plan.

Contents of a Case Plan

Ann. Code §§ 15-11-2; 15-11-231; Rules & Regs. r. 290-9-2-.07  A case plan 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. The permanency plan is a specific written plan prepared by the Division of Family and Children Services (DCFS) designed to ensure that a child is either reunified with his or her family or quickly attains a substitute long-term home when return to his or her family is not possible or is not in his or her best interests.

The permanency plan shall include, but not be limited to:

• The date on which the child was placed in care
• The location and type of home or facility in which such child is placed
• The basis for the decision to place the child outside of his or her home
• A statement as to the availability of a safe and appropriate placement with a fit and willing relative or other persons who have demonstrated an ongoing commitment to a child or a statement as to why such placement is not safe or appropriate
• If as a result of the placement the child has been or will be transferred from the school in which the child is or most recently was enrolled, documentation that a placement that would maintain the child in that school is unavailable, inappropriate, or that the child’s transfer to another school would be in the child’s best interests
• A plan for ensuring the safety and appropriateness of the placement and a description of the services provided to meet the needs of the child and his or her family
• The goal of the permanency plan, including, if applicable, one of the following:
  • Return to his or her parent
  • Referral for termination of parental rights and adoption
  • Placement with a permanent guardian
  • In the case in which DFCS has documented a compelling reason that none of the above options would be in the best interests of the child, placement in another planned permanent living arrangement
• If the child is age 14 or older, a description of the programs and services that are or will be provided to assist the child in preparing for the transition from foster care to independent living
• 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 out-of-State placements

In regulation: The case plan shall include, but not be limited to:

• The reason for foster care placement
• A statement of preliminary plans for discharge
• Statements of any special care and services that will be arranged for or provided directly
• Statements of time-limited goals and objectives for the child and family and methods of achieving them and evaluating them, including:
  • Designation of responsibility for carrying out objectives with the child, birth parents, foster parents, and agency representative
  • A method for evaluating and changing goals as needed
• A visitation plan, with any changes to the plan documented, that includes:
  • Provisions for visits between parents and children, except when the parental rights have been terminated or when it is documented that visits are detrimental to the child
  • Provisions for informing the parents and the child of the visitation plan

Current Through January 2016

Schedule of Hearings

Citation: Ann. Code §§ 15-11-216; 15-11-230  All cases of children in the custody of the Division of Family and Children Services shall be initially reviewed by the court within 75 days following the removal from his or her home of a child adjudicated as a dependent child. An additional periodic review shall be held within 4 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. The court shall have the discretion to schedule any subsequent review hearings as necessary.

The court shall hold a permanency plan hearing to determine the future permanent legal status of each child in division custody. The hearing, which considers in-State and out-of-State placement options for the child, shall be held:

• No later than 30 days after the division has submitted a written report to the court that does not contain a plan for reunification services
• For children under age 7 at the time a petition is filed, no later than 9 months after such child has entered foster care
• For children age 7 and older at the time a petition is filed, no later than 12 months after the child has entered foster care
• 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 age 7 at the time a petition for dependency was filed, no later than 9 months after the child has entered foster care

After the initial permanency plan hearing has occurred, a permanency plan hearing shall be held no less frequently than every 6 months during the time the child continues in division 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.

Persons Entitled to Attend Hearings

Citation: Ann. Code §§ 15-11-108; 15-11-2; 15-11-109; 15-11-230  The court shall give to all parties written notice of the date, time, place, and purpose of hearings or reviews regarding a dependent child. The term ‘party’ includes the State, a child, parent, guardian, legal custodian, or other person subject to any judicial proceeding under this chapter.

In advance of each hearing or review, the division 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. 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.

A child adjudicated as a dependent child; his or her parent, guardian, or legal custodian; attorney or guardian ad litem, if any; foster parents, if there are foster parents; any preadoptive parent or relatives providing care for the child; and other parties shall be given written notice of a permanency plan hearing at least 5 days in advance of the hearing and shall be advised that the permanency plan recommended by the division will be submitted to the court for consideration.

Determinations Made at Hearings

Citation: Ann. Code § 15-11-216  At any review hearing, the paramount concern shall be the dependent child’s health and safety. At each hearing, the court shall determine:

• Whether the child continues to be a dependent child
• Whether the existing case plan is still the best case plan for the child and his or her family and whether any changes need to be made, including whether a concurrent case plan for nonreunification is appropriate
• The extent of compliance with the case plan by all participants
• The appropriateness of any recommended changes to the child’s placement
• Whether appropriate progress is being made on the permanency plan
• Whether all required services are being provided to the child; his or her foster parents if there are foster parents; and his or her parent, guardian, or legal custodian
• Whether visitation is appropriate and, if so, approve and establish a reasonable visitation schedule consistent with the age and developmental needs of the child
• For a child who is age 14 or older, whether the services needed to assist the child to make a transition from foster care to Independent Living are being provided
• Whether reasonable efforts continue to be made to prevent or eliminate the necessity of the child’s removal from his or her home and to reunify the family after removal of a child, unless reasonable efforts were not required

If at any review subsequent to the initial 75 day review the court finds that there is a lack of substantial progress towards completion of the case plan, the court shall order the division to develop a case plan for nonreunification or a concurrent case plan contemplating nonreunification. At the time of each review of a child division custody, the division shall notify the court whether and when it intends to proceed with the termination of parental rights.

Permanency Options

Citation: Ann. Code § 15-11-231  At the time of the permanency hearing, the division shall submit a permanency plan for the child that shall include whether and when the child shall be:

• Returned to the parent or parents
• Referred for termination of parental rights and adoption
• Referred for legal guardianship
• Placed permanently with a fit and willing relative
• In the case in which the division has documented a compelling reason that none of the options identified above would be in the best interests of the child who has reached age 16, whether, and if applicable, when the child shall be placed in another planned permanent living arrangement

Current Through March 2016

Citation: Ann. Code § 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 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.

Citation: Ann. Code § 15-11-26(10)-(20)  Factors to consider when making a determination of best interests also include:

• The home, school, and community record and history of the child, as well as any health or educational special needs of the child
• The child’s community ties, including church, school, and friends
• The child’s background and ties, including familial, cultural, and religious
• The least disruptive placement alternative for the child
• The uniqueness of every family and child
• The risks attendant to entering and being in substitute care
• The child’s wishes and long-term goals
• The preferences of the persons available to care for the child
• Any evidence of family violence; substance abuse; criminal history; or sexual, mental, or physical child abuse in any current, past, or considered home for the child
• Any recommendation by a court-appointed custody evaluator or guardian ad litem
• Any other factors considered by the court to be relevant and proper to its determination

Citation: Ann. Code § 15-11-26(1)-(9)  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 the child’s age and developmental needs. Such factors shall include:

• The physical safety and welfare of the child, including food, shelter, health, and clothing
• The love, affection, bonding, and emotional ties existing between the child and each parent or person available to care for the child
• The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half-siblings, and stepsiblings and the residence of such other children
• The child’s need for permanence, including the 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 the child
• The child’s sense of attachments, including his or her sense of security and familiarity, and continuity of affection for the child
• The capacity and disposition of each parent or person available to care for the child to give him or her love, affection, and guidance and to continue the education and rearing of the child
• The home environment of each parent or person available to care for the child, considering the promotion of the child’s nurturance and safety rather than superficial or material factors
• The stability of the family unit and the presence or absence of support systems within the community to benefit the child
• The mental and physical health of all individuals involved

OUR COURSE TEACHES YOU HOW TO FILE A MOTION  IN CPS JUVENILE COURT

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Ann. Code §§ 15-11-58; 15-11-94  The court may terminate a parent’s parental rights when there is clear and convincing evidence of parental misconduct or inability, and the court finds that such termination is in the best interests of the child. The court by order may terminate the parental rights of a parent with respect to the parent’s child if:

• The parent has willfully failed to comply with a court order to pay child support for a period of 12 months or longer.
• The parent has abandoned the child.
• The child is a deprived child due to the lack of proper parental care or control, the cause of deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.
• The parent is unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child due to:
  • A medically verifiable deficiency of the parent’s physical, mental, or emotional health
  • Excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances
  • Incarceration of the parent that has a demonstrable negative effect on the quality of the parent-child relationship
  • Egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature
  • Physical, mental, or emotional neglect of the child or evidence of past neglect of the child or of another child by the parent
  • Injury or death of a sibling that resulted from parental neglect or abuse
• The child is not in the custody of the parent, and the parent without justifiable cause has failed significantly for a period of 1 year or longer prior to the filing of the petition for termination of parental rights:
  • To develop and maintain a parental bond with the child in a meaningful, supportive manner
  • To provide for the care and support of the child as required by law or judicial decree
  • To comply with a court-ordered plan designed to reunite the child with the parent
• The parent has been convicted of the murder of the child’s other parent.

A petition for termination of parental rights may also be filed when the court determines that reasonable efforts to reunite the child and parent are not required. Reasonable efforts shall not be required when:

• The parent has subjected the child to aggravated circumstances that may include, but need not be limited to, abandonment, torture, chronic abuse, and sexual abuse.
• The parent has:
  • Committed murder of another child of the parent or the other parent of the child
  • Committed voluntary manslaughter of another child of the parent
  • Aided or abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of another child of the parent
  • Committed a felony assault that results in serious bodily injury to the child or another child of the parent
• The parental rights of the parent to a sibling have been terminated involuntarily.

Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

Citation: Ann. Code § 15-11-40  An order of the court shall be set aside if:

• It appears that it was obtained by fraud or mistake.
• The court lacked jurisdiction over a necessary party or subject matter.
• Newly discovered evidence so requires.

An order of the court also may be changed, modified, or vacated on the ground that changed circumstances, in the best interests of the child, require modification of the order.

Any party to the proceeding or any other person having supervision or legal custody of or an interest in the child may petition the court for the relief provided in this section. The petition shall set forth in clear and concise language the grounds upon which the relief is requested.

Current Through February 2013

Infant’s Age

Citation: Ann. Code § 19-10A-4

A newborn child who is no more than 1 week old may be relinquished.

Who May Relinquish the Infant

Citation: Ann. Code § 19-10A-4

The mother of the child may relinquish the child.

Who May Receive the Infant

Citation: Ann. Code §§ 19-10A-2; 19-10A-4

The child’s mother may leave her newborn child in the physical custody of an employee, agent, or member of the staff of a medical facility who is on duty, whether there in a paid or volunteer position.

The term ‘medical facility’ means any licensed general or specialized hospital, institutional infirmary, health center operated by a county board of health, or facility where human births occur on a regular and ongoing basis that is classified by the Department of Community Health as a birthing center, but the term shall not mean physicians’ or dentists’ private offices.

Responsibilities of the Safe Haven Provider

Citation: Ann. Code § 19-10A-6

A medical facility shall accept the child for inpatient admission and notify the Department of Human Services when the child is left and at the time the child is medically ready for discharge.

Immunity for the Provider

Citation: Ann. Code § 19-10A-7

Medical facilities and their employees, agents, and staff members shall not be liable for civil damages or subject to criminal prosecution for failure to discharge the duties provided for in this chapter. The immunity provided in this chapter shall in no way be construed as providing immunity for any acts of negligent treatment of the child taken into custody.

Protection for Relinquishing Parent

Citation: Ann. Code § 19-10A-4

A mother shall not be prosecuted for the crimes of cruelty to a child; contributing to the delinquency, unruliness, or deprivation of a child; or abandonment of a dependent child because of the act of leaving her newborn child in the physical custody of an employee, agent, or member of the staff of a medical facility who is on duty, whether they are in a paid or volunteer position, provided that the newborn child is no more than 1 week old and the mother shows proof of her identity, if available, to the person with whom the newborn is left and provides her name and address.

Effect on Parental Rights

Citation: Ann. Code § 19-10A-6

Upon notification that the child is medically ready for discharge, the Department of Human Services shall take physical custody of the child within 6 hours. The department, upon taking physical custody, shall promptly bring the child before the juvenile court to determine placement, as required by § 15-11-47.

Current Through December 2014

Definitions

Citation: Ann. Code § 15-11-2  The term ‘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.

Purpose of Guardianship

Citation: Soc. Serv. Man. §§ 1004; 1006.6  Exploration of all possible relative placement resources is critical and must be expedited in order to maintain and promote family continuity. The child’s extended family also may offer permanency to a child. The Adoption and Safe Families Act (ASFA) recognizes that a fit and willing relative caregiver may be able to provide the best permanent living arrangement for the child. Such a placement plan honors and preserves the child’s right to maintain ties with his or her family, provided that the safety and general well-being of the child is not jeopardized. Further, in preserving the integrity of the child’s family ties, the agency is supporting and promoting the child’s need to feel and experience a sense of belonging.

Guardianship is selected as the permanency plan for a child who is unlikely to return home, for whom termination is not in his or her best interests, and for whom adoption is impractical or inappropriate. Guardianship may be considered for children placed with relative caregivers or nonrelative caregivers, once the placement is considered stable and in the best interests of the child.

Before selecting a permanency plan of guardianship with a nonrelative, the county department must:

• Exhaust all efforts to place with a relative
• Document the reason that placement with a relative is not in the best interests of the child
• Document that there is an existing positive relationship or that an emotional attachment and bond exist between the child and potential caregiver

In addition, there must be an interested, responsible adult willing to assume care of the child. The potential guardian’s home must be evaluated and approved to ensure the child’s safety, stability, and well-being.

A Guardian’s Rights and Responsibilities

Citation: Ann. Code §§ 29-2-21; 29-2-22  The power of a guardian over the minor shall be the same as that of a parent over a child; the guardian standing in place of the parent. A guardian shall:

• Arrange for the support, care, education, health, and welfare of the minor, considering the minor’s available resources
• Take reasonable care of the minor’s personal effects
• Expend money of the minor that has been received by the guardian for the minor’s current needs for support, care, education, health, and welfare

A guardian, solely by reason of the guardian-minor relationship, is not personally liable for:

• The minor’s expenses
• Contracts entered into in the guardian’s fiduciary capacity
• The acts or omissions of the minor
• Obligations arising from ownership or control of property of the minor
• Other acts or omissions occurring in the course of the guardianship

The appointment of a guardian shall vest in the guardian the exclusive power, without court order, to:

• Take custody of the person of the minor and establish the minor’s place of dwelling within this State
• Give any consent or approval that may be necessary for medical or other professional care, counsel, treatment, or services for the minor
• Bring, defend, or participate in legal, equitable, or administrative proceedings, including alternative dispute resolution, as are appropriate for the support, care, education, health, or welfare of the minor in the name of or on behalf of the minor
• Execute a surrender of rights to enable the adoption of the minor
• Exercise those other powers reasonably necessary to provide adequately for the support, care, education, health, and welfare of the minor

Qualifying the Guardian

Citation: Ann. Code § 15-11-240  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 an order, the court shall:

• Find that reasonable efforts to reunify the child with his or her parents would be detrimental to the child or find that the living parents of the child have consented to the permanent guardianship
• Find that termination of parental rights and adoption is not in the best interests of the child
• Find that the proposed permanent guardian can provide a safe and permanent home for the child
• Find that the appointment of a permanent guardian for the child is in the best interests of the child and that the individual chosen as the child’s permanent guardian is the most appropriate individual to be the child’s permanent guardian, taking into consideration the best interests of the child
• If the child is age 14 or older, find that the appointment of a permanent guardian for the child is in the best interests of the child and that the individual chosen by the child as the child’s permanent guardian is the most appropriate individual to be the child’s permanent guardian, taking into consideration the best interests of the child

Procedures for Establishing Guardianship

Citation: Ann. Code §§ 15-11-241; 15-11-243  The petition for the appointment of a permanent guardian shall set forth:

• The name and date of birth of the child
• The name, address, and county of domicile of the petitioner and the individual nominated to serve as guardian, and their relationship to the child, if any
• A statement that:
  • Reasonable efforts to reunify the child with his or her parents would be detrimental to the child
  • Termination of parental rights and adoption is not in the child’s best interests
  • The proposed guardian can provide a safe and permanent home for the child
  • The appointment of a permanent guardian is in the child’s best interests and that the individual chosen as the child’s guardian is the most appropriate individual to be the child’s permanent guardian
  • If the child is age 14, that the appointment of a permanent guardian is in the child’s best interests and that the individual chosen by the child as the child’s permanent guardian is the most appropriate individual to be the child’s permanent guardian
  • Whether, to the petitioner’s knowledge, there exists any notarized or witnessed document made by a parent of the child that deals with the guardianship of the child and the name and address of any designee named in the document
• In addition to the petitioner and the nominated guardian and, if the parent of the child has not consented to the permanent guardianship, the names and addresses of the following relatives of the child whose parents’ whereabouts are known:
  • The adult siblings of the child
  • If there is no adult sibling of the child, the grandparents of the child
  • If there is no grandparent of the child, any three of the nearest adult relatives of the child

A hearing shall be conducted in accordance with § 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 § 15-11-240.

Contents of a Guardianship Order

Citation: Ann. Code § 15-11-242  Permanent guardianship orders entered pursuant to § 15-11-240 shall:

• Remain in effect until the child adjudicated as a dependent child reaches age 18 or becomes emancipated
• Not be subject to review by the court except as provided in § 15-11-244
• Establish a reasonable visitation schedule that 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

A permanent guardian shall have the rights and duties of a permanent guardian as provided in §§ 29-2-21, 29-2-22, and 29-2-23 and shall take the oath required of a guardian as provided in § 29-2-24.

Modification/Revocation of Guardianship

Citation: Ann. Code § 15-11-244  The court shall retain jurisdiction over a guardianship action under this part for the sole purpose of entering an order following the filing of a petition to modify, vacate, or revoke the guardianship and appoint a new guardian.

The guardianship shall be modified, vacated, or revoked based upon a finding, by clear and convincing evidence, that there has been a material change in the circumstances of the child who was adjudicated as a dependent child or the guardian and that such modification, vacation, or revocation of the guardianship order and the appointment of a new guardian is in the best interests of the child. Appointment of a new guardian shall be subject to the provisions of §§ 15-11-240 and 15-11-241.

Eligibility for Guardianship Subsidy

Citation: Soc. Serv. Man. §§ 1004.2.12; 1004.2.13  Subsidized guardianship payments may be considered for a relative caregiver after a child has been in custody of Division of Family and Children Services (DFCS) for a minimum of 12 months and reunification with the birth parents is unlikely.

For eligibility for subsidized guardianship, the child must be:

• A child who has been in the temporary custody of the agency for a minimum of 12 months and reunification is unlikely with the biological parents
• Placed with a relative who was approved by the agency after receiving a favorable comprehensive child and family assessment and meeting all other requirements
• A child who was transferred from the legal custody of DHR to the guardianship of a relative, (as defined by blood, marriage or adoption,) through juvenile court

Links to Agency Policies

Georgia Department of Human Services, Child Welfare Policy Manual (PDF- 152 KB), see Chapter 10.

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Citation: Ann. Code §§ 15-11-2; 15-11-211; 15-11-212Effective January 1, 2014: The term ‘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.

The Division of Family and Children Services (DFCS) shall initiate a diligent search at the outset of a case and throughout the duration of a case, when appropriate. A diligent search shall include at a minimum:

• 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
• Interviews with the child
• Interviews with identified relatives
• Interviews with any other person who is likely to have information about the identity or location of the person being sought
• Comprehensive searches of databases, including, but not limited to, employment, residence, utilities, vehicle registration, child support enforcement, law enforcement, and corrections records
• Any other reasonable means that are likely to identify relatives or other persons who have demonstrated an ongoing commitment to the child

After the completion of the diligent search, 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.

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 the child, a foster parent, or other person who has 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.

Requirements for Placement with Relatives

Citation: Ann. Code § 15-11-211  Effective January 1, 2014: All adult relatives of the alleged dependent child identified in a diligent search, subject to exceptions due to family or domestic violence, shall be provided with notice:

• Specifying that an alleged dependent child has been or is being removed from his or her parental custody
• 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
• Describing the process for becoming an approved foster family home and the additional services and supports available for children placed in approved foster homes
• Describing any financial assistance for which a relative may be eligible

Requirements for Placement of Siblings

Citation: Ann. Code §§ 15-11-2; 15-11-135(e)  Effective January 1, 2014: The term ‘sibling’ means a person with whom a child shares one or both parents in common by blood, adoption, or marriage, even if the marriage was terminated by death or dissolution.

In any case in which a child is taken into the protective custody of DFCS, 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 why such efforts are not appropriate. If siblings are not placed together, DFCS shall provide for frequent visits or other ongoing interaction between siblings, unless DFCS documents that such frequent visits or other ongoing interaction would be contrary to the safety or well-being of any of the siblings.

Relatives Who May Adopt

Citation: Ann. Code § 19-8-7  A child may be adopted by a relative who is related by blood or marriage to the child as a grandparent, great-grandparent, aunt, uncle, great-aunt, great-uncle, or sibling, and any spouse of such relatives.

Requirements for Adoption by Relatives

Citation: Ann. Code § 19-8-7  Each living parent and guardian of the child to be adopted must voluntarily and in writing surrender to that relative and his or her spouse all of his or her rights to the child for the purpose of enabling that relative and his or her spouse to adopt the child.

In the case of a child age 14 or older, the written consent of the child to his or her adoption must be given and acknowledged in the presence of the court.

Current Through March 2016

What Are Reasonable Efforts

Citation: Ann. Code § 15-11-2  ‘Reasonable efforts’ means due diligence and the provision of appropriate services.

When Reasonable Efforts Are Required

Citation: Ann. Code §§ 15-11-202; 15-11-203  Except as provided below, reasonable efforts shall be made to preserve or reunify families:

• Prior to the placement of an alleged dependent child in to the custody of the Division of Family and Children Services (DFCS) to prevent the need for removing him or her from his or her home
• 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

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.

If the court determines that reasonable efforts to reunify a child with his or her parents have been made, or DFCS has submitted a written report to the court that does not contain a plan for reunification services, then reasonable efforts shall be made to place a 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.

When Reasonable Efforts Are NOT Required

Citation: Ann. Code § 15-11-203  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 that the parent:

• Has subjected his or her child to aggravated circumstances
• Has been convicted of the murder or voluntary manslaughter of another child of the parent
• Has been convicted of aiding or abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of the parent
• Has been convicted of committing a felony assault that results in serious bodily injury to the child or another child of the parent
• 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
• Is required to register as a sex offender and that preservation of a parent-child relationship is not in the child’s best interests
• Has had his or her rights to a sibling of the child terminated involuntarily and the circumstances leading to the termination of parental rights to that sibling have not been resolved

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation: Ann. Code § 29-2-9   A standby guardian may be named by a ‘designating individual,’ which includes:

• A parent who has physical custody of the child and whose rights have not been terminated
• A guardian of the child

How to Establish a Standby Guardian

Citation: Ann. Code §§ 29-2-10; 29-2-11  A designating individual may designate an individual to serve as standby guardian of a minor upon the health determination being made.

The designation must be in writing and signed by the designating individual or by some other individual in the designating individual’s presence and at the designating individual’s express direction. The designation shall be attested to and subscribed by two or more competent witnesses. Neither the witness nor an individual signing on behalf of the designating individual may be named the standby guardian.

A form for the designation is provided in § 29-2-11.

How Standby Authority is Activated

Citation: Ann. Code §§ 29-2-10; 29-2-13  Upon the health determination being made and without the necessity of any judicial intervention, the standby guardian shall assume all the rights, duties, and responsibilities of guardianship of the person of the minor. At that time, the standby guardian shall file with the court a notice of the standby guardianship with a copy of the standby guardianship designation and the health determination attached.

Within 120 days of the health determination being made, the standby guardian shall file, with the probate court in the county of domicile of the minor, a petition seeking temporary guardianship of the minor. Except as otherwise provided, a standby guardianship shall automatically terminate 120 days after the making of the health determination unless the standby guardian has filed a petition for temporary guardianship of the minor, in which case the standby guardianship shall remain in effect, unless otherwise revoked, until the petition is ruled upon.

Involvement of the Noncustodial Parent

Citation: Ann. Code §§ 29-2-10; 29-2-11
No proceedings under this part shall relieve any parent, custodial or noncustodial, of a duty to support the minor.

With regard to a parent of the minor who is not the designating individual, the designation shall state, to the extent known, that parent’s name and address, whether that parent had his or her parental rights terminated, and whether that parent cannot be located or is deceased.

Authority Relationship of the Parent and the Standby

Citation: Ann. Code § 29-2-10  Depending on the designating individual’s physical or mental condition or health, the designating individual may confer with the standby guardian in decision-making concerning the care and welfare of the minor.

Withdrawing Guardianship

Citation: Ann. Code § 29-2-12  At any time before the health determination is made, a standby guardianship may be revoked without notice to anyone by destruction or obliteration of the designation with an intent to revoke, or by a written revocation signed by the designating individual and attested to by two or more competent witnesses.

After the health determination has been made, the standby guardianship may be revoked by the designating individual by filing a notice of such revocation with the court in which the standby guardianship was filed and by mailing a copy of the notice of revocation to the standby guardian.