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Your Lawyer’s Responsiblity in Your Child’s and Your Defense

March 1, 2010 2 comments

Practicing Juvenile Law in the Georgia Courts
By of Jody A. Miller

The following article, titled “Practicing Juvenile Law in the Georgia Courts”, was published in Calendar Call, magazine of the General Practice and Trial Section of the State Bar of Georgia, Vol. II, No. 3, Spring 1996 Jody A. Miller
It is not unusual, given today’s pressures and influences on family life and the increasing complexities of family relationships, for an attorney to be faced with a question or problem from a client that relates to juvenile law. While this article is not a substantive work on juvenile law, nor do I advocate that a lawyer who does not practice in juvenile court take on a juvenile law case, it might be beneficial for all attorneys to be able to answer some preliminary questions from a client, friend or family member about how to deal with a case in juvenile court. Litigation initially moves very quickly in juvenile court with strict time constraints, and it could be helpful for a client to get some initial advice right away. There are generally four major types of cases in juvenile court — deprivation cases (where a child is alleged to be deprived for any of several reasons, and the parents are the defendants), termination of parental rights cases (hearings to determine whether a parent’s rights to his or her child should be totally and finally severed; usually follows deprivation cases if family reunification is unsuccessful), delinquency/unruliness cases (alleging the child has engaged in some type of criminal-like behavior; the child is the defendant), and traffic cases (which are similar to traffic cases in other courts). There is not a clear distinction between criminal and civil law in juvenile courts, as there is in state and superior courts. Deprivation and termination (custody) cases are quasi-civil, whereas delinquency cases are quasi-criminal. This is important to remember because when a juvenile is accused of committing a delinquent act, he or she has the same type of constitutional protections as do adults in criminal court. A delinquency case should be pursued in similar fashion to a criminal case in state or superior court. Juveniles in some ways have even more protection than adults — a juvenile cannot be judged delinquent based on his or her uncorroborated confession; therefore, when dealing with a juvenile court prosecutor in a delinquency case, make sure to determine whether the allegations are based solely on the juvenile’s own story or confession, or whether there were actual witnesses to the alleged delinquent act.
Juvenile courts are very different from other state courts, and these differences greatly affect the way juvenile law cases can and should be handled. An attorney handling a deprivation or termination case will likely face either another private lawyer or special assistant attorney general (SAAG, appointed to represent the state). An attorney handling a delinquency case will usually face a district attorney or juvenile court prosecutor. One major difference between juvenile courts and other courts is that litigation moves very rapidly in juvenile cases. There are strict time limits for the filing of paperwork and the holding of hearings, and if these deadlines are not adhered to, it could be grounds for the dismissal of the case against the parents or child. If a child is not released after a complaint has been filed with the juvenile court and is not allowed to return to his or her family, a detention hearing must be held within 72 hours of the detention, in order to determine if further detention is warranted, and an actual petition (different from the initial complaint) must also be filed within 72 hours in a delinquency case and within 5 days in a deprivation case. If the child has not been detained and was released, a petition alleging delinquency or deprivation must be filed within 30 days of the complaint. If the child is not released from detention, the adjudicatory hearing must take place within 10 days from the filing of the petition. If the child has been released, the adjudicatory hearing (a bench trial to determine guilt or innocence — there are no jury trials in juvenile court) must take place within 60 days of the filing of the petition. As previously stated, these time limits are strictly construed and can be grounds for dismissal. An attorney practicing juvenile law must be very familiar with the juvenile law code sections (O.C.G.A. title 15) regarding procedure so that he or she can immediately determine whether the case against the client might be subject to dismissal because a petition was not filed or a hearing not held within the time required by law. An attorney who does not practice juvenile law but whose advice was sought by a client who had already retained them for, say, a corporate or personal injury matter should also be generally aware of how fast cases move in juvenile court so they can refer their client to a juvenile law attorney quickly. Another important procedural matter to be aware of is that a child 14 years of age or older who is alleged to be delinquent or unruly must be personally served with the summons, in addition to his parents or guardians; always verify in these types of cases that the child was personally served.
If there is a technical problem that may result in dismissal of the case, the attorney may feel that there is little reason to object if the dismissal is without prejudice, because the petition will be refiled. This may be true if the allegations against the child or parents are strong, and a request for dismissal may only prolong the inevitable and breed ill will between the attorney and the court. However, if the case is weak or the circumstances have changed, dismissal may not result in immediate filing and the attorney can encourage negotiation and informal resolution without direct intervention from the court. The juvenile law attorney can talk to the intake officer of the juvenile court and work out a settlement that may include not refiling the petition.
Another major difference between the juvenile court and other state courts is the applicability of the Civil Practice Act and the law of evidence. Juvenile courts are subject to the Civil Practice Act, however the juvenile court code sections and Uniform Rules establish most of the specific procedures. The juvenile courts have discretion to treat the Civil Practice Act as directory rather than mandatory. Therefore, a juvenile law attorney should always first refer to juvenile code sections and juvenile court rules. The rules of evidence generally apply to juvenile court, but a juvenile law attorney must always be cognizant of which phase of the case he or she is in, because the rules apply differently depending on whether the case is in the adjudicatory stage or dispositional stage. An adjudicatory hearing is held to determine the truth of the allegations in a deprivation or delinquency petition. It is similar to a guilt-innocence phase of a trial in other state courts. It is always a bench trial — there are no jury trials in juvenile court. The second phase of a juvenile court proceeding is the dispositional phase. This hearing is held after the adjudicatory phase (if the allegations are proven to be true). In the adjudicatory phase, the rules of evidence applicable to state and superior courts generally apply to juvenile courts, particularly in quasi-civil custody (deprivation/termination) cases. However, because of the special nature of juvenile courts (for example, no jury trials, and the court’s mission to act in the best interests of the child), rules of evidence can be very relaxed and flexible, and appellate courts tend to give juvenile courts somewhat wider discretion than other state courts in their evidentiary rulings. This doesn’t mean that all bets are off when it comes to the admission of certain types of evidence (particularly hearsay), but juvenile defense attorneys should be aware that some juvenile court judges may be a little more flexible in close evidentiary calls than other judges. This is especially true in deprivation or delinquency cases where the state is named as a petitioner. Because of the State’s parens patriae interest in the welfare of the child, the best interest of the child test is used in juvenile courts in custody cases, rather than the parental rights doctrine usually used in third party custody cases in superior courts. Therefore, juvenile court judges usually feel they have greater flexibility in gathering and hearing information. Whether certain evidence might be admitted on a close call can become an important strategy consideration in determining how to handle a juvenile case. An attorney must sometimes weigh the probability that certain negative evidence might be admitted against a client over objection, and decide whether to take a chance on that evidence being excluded and a favorable judgment entered for the client, or whether the evidence will likely be admitted, possibly resulting in a judgment against the client, and potentially worse consequences than if settlement of the case had been worked out with the opposing attorney before the hearing. This is a judgment call that must be made carefully on a case by case basis, and the juvenile law attorney would be well advised to find out as much as he or she can about the particular judge involved in order to determine the possible outcome of an evidentiary question, and how the judge might have handled a prior similar issue.
While the rules of evidence are generally applicable in the adjudicatory hearing and for the most part adhered to, in the dispositional phase, courts can receive evidence that would not be competent in the adjudicatory phase, and rely on it to the extent of its probative value. For example, if an expert’s report was not admitted as evidence in the adjudicatory phase because it was hearsay (the expert was not there to testify), it very well might be used in the dispositional phase in order to determine what disposition of the case is best for the child. Therefore, if an attorney has an expert’s report favorable to the parents in a deprivation case, he or she should remember that it can be used in the dispositional phase, even if the expert is not there to testify about the report. Because of the evidentiary considerations, it is very important for the juvenile law attorney to clearly distinguish which phase of the trial the case is in. Some judges combine the adjudicatory and dispositional phases, and others hold two separate hearings.
A third difference between juvenile court and other state courts that attorneys need to be aware of is in the area of discovery. In juvenile court, parties are not entitled to discovery, as they are in state and superior courts. A party in juvenile court must make a written request for discovery. As in other juvenile court procedures, there are time limits for discovery, and those time limits are extremely short (unlike the longer, more relaxed time limits attorneys are used to in other state courts). The written request for discovery must be filed within 48 hours of the filing of the petition if the child is in detention, or within 15 days of the filing of the petition of the child is not detained. The attorney requesting the discovery should include a Rule Nisi for a hearing on whether discovery will be permitted, and if so, what kind of discovery will be allowed and to what extent. Discovery must be completed within 15 days of the order authorizing the discovery if the child is in detention, and within 30 days of the order if the child is not detained. If the child is detained, the request for discovery extends the time period in which adjudication must take place, but the adjudicatory hearing must take place within 7 days of the end of discovery. Because of the short time limits, attorneys must be able to quickly analyze the situation and determine if discovery is necessary or advisable. Sometimes an attorney is retained after the time limits to request discovery have passed, particularly if the child has been detained. If that is the case, do not assume that discovery will automatically not be allowed; immediately file a request for discovery even if the statutory time limits have expired. Because of the court’s interest in determining what is best for the child as well as the fact that time limits expire very quickly in juvenile cases, juvenile courts are sometimes more willing than other state courts to make exceptions, particularly for discovery requests. Sometimes parents are served with only a few days’ notice of the hearing. The juvenile law attorney is then faced with the decision of asking for a continuance in order to prepare the case and engage in discovery, thereby waiving the right to a timely hearing. Usually, unless the child is detained, the better option is to obtain the continuance and file a motion for discovery. If the child is detained, a continuance may not be the best solution, and should be carefully discussed with the parents. If the parents and attorney decide to ask for a continuance while the child is detained, the attorney should ask for a court order providing for visitation rights for the parents. The attorney must then make sure that the parents exercise that visitation.
A major discovery issue when DFCS is involved in the case and there are allegations of abuse and neglect is the Child Abuse and Deprivation Records Act, O.C.G.A. 49-5-40 et seq. This Act prohibits access to records concerning reports of abuse and neglect that are in the custody of the Department of Human Resources or other state or local agencies, except by court order. The Juvenile Court may in the exercise of discretion release relevant information in DFCS records dealing with abuse and neglect, but the juvenile attorney should think very carefully before making such a request — harmful information may prejudice the judge, even if it is not introduced into evidence.
Other practice tips that attorneys should know are that an attorney representing a client in juvenile court must file an entry of appearance, and should do so as soon as possible. The juvenile court rules states that the entry of appearance should be filed within 48 hours of the attorney being retained. However, the failure to do so will not preclude the attorney from physically appearing in court and representing his or her client. In addition, responsive pleadings and motions need not be filed, although they are allowed and are not discouraged. The county pays for service on parties and takes care of effecting service. Therefore, instead of spending time on responsive pleadings (at least initially, in response to a petition) and serving parties, the attorney can better spend his or her time beginning to immediately analyze the case to see if discovery is desirable (whether formal or informal), and getting the facts of the case down and researching substantive law in order to build a defense for the client. In this respect, the juvenile law attorney can and should immediately begin to concentrate on the smallest details and facts of the case and the relevant law, rather than getting just an initial “big picture” sufficient only to draft an answer to a complaint. The juvenile law attorney must be prepared to “dive in” and get to the “meat” of the case from the start, because unlike other state courts there is little initial paperwork, and short time limits.
Once the adjudicatory phase of a deprivation trial is over, if the child is found to be deprived it is extremely important for the juvenile law attorney to read very carefully the judge’s order finding deprivation. The court is required to make and file specific findings of fact and conclusions of law when allegations of deprivation are shown to be true. The juvenile law statutes set out exactly what must be in the order, and if the order does not conform, that is grounds for an appeal and reversal of the lower court’s order.
Due to the nature of juvenile court cases (the main goal being what is best for the child), an attorney has an opportunity to be more creative and flexible in offering solutions and handling cases than is sometimes possible in other state courts. For example, if a child is alleged to have committed a delinquent act, one option available other than trial is informal adjustment. It is not a dead docket or nolle prosequi; rather, it is a method of resolving the juvenile’s case without proceeding to a hearing and taking a chance that the child will be found delinquent. It could be considered similar to probation, but unlike probation in other state courts where the defendant actually is convicted of a crime through a plea in order to receive probation, a child in juvenile court can request and go through informal adjustment without having been adjudicated a delinquent. There are several options available in informal adjustment: counseling (through the court) and adjustment (closing) of the case; counseling and continuing short term advice; referral to outside sources for longer term counseling; and individually tailored agreements between the child and the court that deal with the specifics of the case. Timing is critical when considering informal adjustment — technically, this must be requested before an initial complaint ripens into a petition alleging delinquency. However, do not automatically assume that once a petition has been filed informal adjustment is no longer possible. Because of the fact that petitions are sometimes filed at the same time as the complaint, and it might be in the best interest of the child to informally adjust the case rather than go through a trial, the attorney should file a motion to have the petition withdrawn if informal adjustment is the best resolution to the case. Once again (as in discovery), juvenile courts tend to give a little more leeway in extending statutory time limits than other courts. Some considerations to be aware of when considering informal adjustment are the fact that it might be better to go through an adjudicatory hearing and have the charges against the child formally dismissed if the allegations cannot be proven rather than have the child get a formal record of adjustment in the case. The attorney must weigh the probability of success at the adjudicatory hearing and decide which course of action to take. Also, parental consent is required for informal adjustment. Further, some juvenile courts require an admission of guilt prior to informal adjustment. Again, here it becomes important for the attorney do his or her homework — talk to the juvenile court prosecutor and find out if he or she agrees with informal adjustment, and find out whether the court will require an admission of guilt by the child as a condition of adjustment. Since there is more flexibility in handling cases in juvenile courts, there tends to be less uniformity of informal rules in juvenile courts than in other courts. If informal adjustment turns out to be the best manner of handling the case, the terms of the agreement are limited only by the attorney’s creativity. Examples can include letter of apology to victims of a child’s delinquent act, and if the child is old enough possibly having him or her do chores or errands for the victim. However, remember that the punishment should fit the crime and be proportionate to it. If a child does serious property or personal injury damage, a simple letter of apology would not be an acceptable solution. In case where a child “bashes” a mailbox or two (a not uncommon delinquent act), replacement of the mailbox and a letter may be sufficient. The attorney should talk to the juvenile court prosecutor and try to find out the judge’s particular feelings about certain delinquent acts; the author once investigated a case of “mailbox bashing”, and it turned out that the assigned judge had particularly stern leanings about such acts.
Attorneys should thoroughly investigate the situation and be creative with suggestions when a child is detained, either initially or after a dispositional hearing. A child does not necessarily need to be placed in a youth detention center or a state foster home. Juvenile law attorneys should research the effect on a child when he or she is removed from the home, and present such evidence at both the detention hearing if there is one, and at the dispositional hearing if the child was not initially detained. In a deprivation hearing if the child is found deprived, the attorney should always be prepared to offer suggestions for temporary custody of the child, such as a friend’s or relative’s home. The child could even be allowed, under the Interstate Compact, to live outside of Georgia if that is where a trusted friend or family member lives. Even a delinquent child should not automatically go to a detention center; offer suggestions at the initial detention hearing and disposition hearing as to how the child can be worked with to improve and understand his or her behavior (for example, counseling or anything else that will help the child realize that his or her specific behavior has been unacceptable and must be addressed, such as community service, making restitution, working toward a high school diploma or GED, or suspension of the child’s driver’s license). The ultimate goal of the juvenile court is the preservation of the family, and if there is any way to keep the family together, the court should be willing to consider that alternative, rather than breaking up the family. Only in the most serious cases should a delinquent child remain in a youth detention center. Even in cases in which informal adjustment had been unavailable as an alternative, the attorney should suggest the same creative methods for handling the case at formal hearings that he or she would have for an informal adjustment of the case, had that been a viable option. The juvenile law attorney should never assume that if deprivation is found that the only option is placement in foster care for 18 months, and should be prepared to present alternatives to the court that are less severe and agreeable to the parents.
The juvenile law attorney’s job does not end once the dispositional hearing concludes. If the child has been removed from the family and placed into DFCS custody, DFCS must propose a plan for the reunification of the family. DFCS must complete the plan within 30 days after the child has been removed from the home. The case plan should include services to be provided by DFCS designed to remedy the problems that caused the child to be removed from the home. It is crucial that the parents in a deprivation case have zealous representation during the development of the case plan. Parents may not know what is expected of them, and it is up to the parents’ attorney to make sure that case plans are meaningful, appropriate, and geared to the needs of the parents. If parents are unrepresented, DFCS can place all of the burdens in the case plan on the parents, and offer very little assistance or services.
The case plan must include the reason that the child was placed in foster care and state why the child cannot be adequately cared for in the family home. The plan should provide for placement in the least restrictive, most family-like setting in close proximity to the home of the parents. Clear and specific actions to be taken by the parents, as well as a description of the services to be provided by DFCS in order to correct problems in the home must be stated. Specific time frames for the accomplishment of goals and the name of the DFCS caseworker responsible for ensuring the plan is implemented should be included. Parents must be afforded reasonable and meaningful visitation with the child. Always remember that DFCS has the burden of fully investigating the option of placement of the child with a relative or friend before a stranger.
Federal and state law requires that DFCS provide services necessary for the reunification of the family. These services, as well as the total case plan, should be specifically and narrowly tailored to meet the needs of the family. If the parents do not have an advocate to help write the case plan it can be unrealistic, place all of the burden on the parents, and not state what specific services will be provided by DFCS. DFCS can provide such services as homemaking assistance, child care, parenting skills classes, nutrition counseling, and referrals to other county services. If referrals to other county services are given by DFCS, make sure the parents receive the name and phone number of a contact at that agency, rather than just the name of the agency. Sometimes DFCS expects parents to follow up with a referral on their own even when the parents have no idea who to contact. Also make sure that DFCS provides transportation if needed to visitation, job interviews, or outside services the parents are expected to procure. The PUP (Preventing Unnecessary Placement) Program is designed to prevent the child from being unnecessarily removed from the home. This program provides cash to the family by determining how much money the county would spend on foster care and then offering that amount to the family in cash in order to help remedy home problems without removal of the child. For example, if the home is unsanitary or is without power because the parents cannot pay utility bills, the county can provide cash to hire a temporary housekeeper or pay the household bills. DFCS is sometimes unwilling to provide such services, but federal and state law requires that services be provided that will maintain children in their home, and the extent to which such services are provided is to a large degree dependent upon the quality of advocacy for the parent during the development of the case plan, as well as for the entire duration of the plan (possibly 18 months). The juvenile attorney should ask DFCS for contact sheets, 30 day case plan, case review forms and summaries, and service plans, goals, and objectives. The attorney should also ask for pictures of abuse and neglect. Parents are entitled to these documents and if DFCS is not forthcoming with them voluntarily, the juvenile attorney should get a court order requiring DFCS to do so. It is important that the attorney remember that he or she represents the parents, not the child, and act accordingly. Parents’ representatives must put their own feelings and personal judgments about the family aside, and realize that the parents should be making the overall decision about their case, like a client in any other type of case. Juvenile law attorneys should not hesitate to suggest counseling for the parents if he or she feels it may be appropriate, or at least inquire into the parents’ willingness to be evaluated by a professional. Such a report may disclose parents’ strengths and can be used in the dispositional hearing. Juvenile law attorneys should be familiar with professional counselors so that they can give several names to clients if necessary. Throughout the entire period of DFCS supervision, the juvenile attorney should be in constant touch with his or her clients in order to make sure that they are complying with the case plan and have no questions or problems, and that the plan is still realistic and appropriate.
If the DFCS moves for examination of a child, the attorney must attempt to ensure that the examining physician or psychologist is well qualified and as free from bias as possible. Sometimes these experts are provided by DFCS with “background” or “summary” information containing unproven allegations and “facts” prior to evaluation. DFCS may also move for an evaluation of the parents. O.C.G.A. 15-11-87 provides that the court may order such an evaluation, but this section refers specifically to Article 2, which deals with termination of parental rights, and might not be applicable to other proceedings such as deprivation or delinquency. See for example In re D.H., 178 Ga. App. 119 (1986). Parents can always have their own expert evaluate them, and then use that report if it is favorable.
Sometimes DFCS has already obtained evaluations of the parents before initiation of a court action, through releases signed by the parents. If this is the case, the juvenile law attorney must obtain these reports as soon as possible. The attorney may want to depose the petitioner’s expert and procure another expert and evaluation. At the hearing, the attorney should question the petitioner’s expert on his or her training, licensure and practical experience; business and personal relationship with the petitioner; what information was received from the petitioners or other outside sources; who was in the room when the child was interviewed; was the child coaxed or prodded into giving responses; to what extent the expert was influenced by factors other than information given directly by the parents or child; personal beliefs about child rearing and how they influence judgment; and the degree of certainty of and basis for the diagnosis. The attorney must listen very carefully to make sure the expert does not testify outside his or her area of expertise. Make sure the parents’ expert has been provided with all previous evaluations and reports, and assure that he or she sounds competent and authoritative. Experts can be especially useful in dispositional hearings, where they can testify on the parents’ ability to care for the child, dispositional alternatives, counseling, treatment, education, or community services that can correct deficiencies in the home. Testimony about the trauma to a child upon removal from his or her home can be very beneficial, particularly in close cases. Remember that even if the expert is not available to testify, their report can be used in the dispositional hearing even though it is hearsay.
The attorney should require DFCS to provide documentation and testimony about the specific problems that caused removal of the child; the services provided to remedy the problems; why each service was appropriate to this particular case; and the reason that services were refused, not provided, or unsuccessful. In questioning the appropriateness and availability of services as part of an effort to reunify the family, the attorney should inquire into the visitation and communication schedules between the child and parents facilitated by DFCS; attempts at alternative living arrangements rather than placement with a stranger; and whether the family requested services not available or provided by DFCS. If DFCS is pleading a termination of parental rights case based on the allegation that deprivation is likely to continue, the attorney should ask for evidence showing that additional or different services would not remedy the problems at home. The attorney should require production of evidence of financial or in-kind support received from the parents.
The juvenile law attorney should attempt to get input from the child, if he or she is old enough. The child must be brought before the court unless excused by the judge, so the attorney for the parents should consider questioning the child about visitation, counseling, and services provided by DFCS, as well as the child’s own wishes and opinions. Arrangements can be made through the guardian ad litem to interview the child outside the courtroom.
Lastly, the attorney should always be aware and make use of a petition for modification of an initial order whenever appropriate. Modification is available not only on the traditional grounds of mistake, fraud, lack of jurisdiction or newly discovered evidence, but also on the general grounds that changed circumstances require modification in the best interests of the child. If parents are released from previously ordered counseling, have attended parenting classes, found a job or another place to live, stayed free of drugs or alcohol, or fulfilled other requirements the court set out in a previous order, the parents’ attorney should consider filing a petition for modification to return the child to the home, or to discontinue DFCS supervision if the child had already been returned to the parents with continuing monitoring of the family as a condition.

.© 1996 Jody A. Miller

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