Written by Rachel Aliza Elovitz
Originally introduced during the 2009 Georgia General Assembly as Senate Bill 292, The Child Protection and Public Safety Act (“the Act”), after further scrutiny and alteration, was introduced during the 2011 Georgia General Assembly by Senator Bill Hamrick (as SB 127) and by Representative Wendell Willard (as HB 641).
The Act is meant to modernize, reorganize, and streamline a 40-year-old Juvenile Code, the body of law that regulates the manner in which the State of Georgia addresses the needs of Georgia’s youth and their families. For the purpose of simplicity and clarity, the Act divides the Juvenile Code into twelve articles:
- General Provisions
- Juvenile Court Administration
- Termination of Parental Rights
- Independent Living Services
- Children in Need of Services (“CHINS”)
- Competency in Delinquency Cases
- Parental Notification
- Access to Hearings and Records
- Child Advocate for the Protection of Children
Among some of the more notable changes that would be effectuated by the passage of the Act is the inclusion in Article 1 (“General Provisions”) of a definition of “abuse,” which is not included in the current Code. Under the Act, the definition of “abuse” is extensive, including prenatal, emotional, physical, and sexual abuse and exploitation.
Article 1 also changes existing terminology under the current Code ostensibly to reflect a more curative, less judgmental focus. For example, an “unruly” child would be known as a “Child in Need of Services” (“CHINS”) and “deprived” children would be known as “dependent” children (consistent with other states). The Act also incorporates new phraseology such as “Imminent Danger” to elucidate the conditions under which removal is justified – an expression of the State’s preference to see families remain intact, whenever possible.
The Act also makes some significant changes in the area of deprivation. Those changes are delineated in Article 3 of the Act (Dependency), which is infused with an underlying premise – that protection, permanency and timeliness is the framework under which the State should approach dependent children and their families. Toward that end, Article 3 authorizes child abuse and neglect investigators to request court-ordered physical or psychological evaluations of children and their parents and allows the Juvenile Court to decide such requests based on a probable cause standard. Under this Article, the 72-hour hearing is more appropriately titled a “preliminary protective hearing,” and the Article mandates that children in dependency cases have legal representation – a requirement that cannot be met by the appointment of a Court Appointed Special Advocate (“CASA”) or guardian ad litem, although a CASA or GAL may be appointed in additional to an attorney for the child – so that the child not only has an attorney advocating for what he or she wants – but someone who is charged with advocated for what is in his or her best interest (not always the same thing).
Article 4 of the Act further seeks to protect the rights of Georgia’s youth by allowing them to retain the right to inherit from their biological parents and to receive government or other benefits associated with that parent after the TPR is granted until such time as the child is adopted. The Act also preserves the child’s relationship with siblings and extended family after the TPR is entered and until an adoption is granted. Recognizing the importance of permanency (and the reality that permanency is not always possible with a child’s natural or legal parents), the Act shortens (from one year to six months) the length of time during whcih the court must scrutinize a parent’s failure to develop and maintain a bond with the child, provide child support for that child, or comply with court-ordered reunification services before determining whether that parent has provided proper care or control for the child.
Article 6 of the Act – Children in Need of Services – outlines a more holistic approach to dealing with children who have committed an act that would not be against the law if committed by an adult, i.e. skipping school, violating curfew and running away. It allows, as an example, for the creation of an informal family services plan agreement that would identify steps needed to moderate the child’s improper conduct and ameliorate problems in the home that were engendered by or which contributed to such conduct.
Under Article 7, the Act shines a bright light on the purpose of delinquency proceedings, including the protection of the public interest, accountability for children who engage in delinquent acts, rehabilitation for those children, and the strengthening of families to prevent new delinquent acts or the circumstances that engendered them. The Act includes the right of parents, even though not parties to delinquency actions, to notice and a right to be heard in hearings in which their child is a party. Parents are not entitled to waive their child’s right to counsel – and, in fact, if a parent does not appear in court or demonstrate a willingness or ability to protect the child’s best interest, the Court is required to appoint a guardian ad litem who will do so.
The current Juvenile Code does not require that reasonable efforts be made to preserve or reunify a family if the parental rights of a parent to a sibling of a child at issue have been terminated. Under the Act, however, before the Court can apply that exception, it must determine whether the parent has resolved the issues that led to the termination of his or her parental rights to the sibling. Again, this provision reflects a belief among stakeholders that family preservation is preferable, when possible, to removal.
The above provisions represent only a fraction of the comprehensive changes to the Juvenile Code that would be effectuated by the Act. The Bill is backed by JUSTGeorgia, a statewide juvenile justice coalition. The leading partners – Georgia Appleseed, Voices for Georgia Children, and The Barton Child Law and Policy Clinic of the Emory University School of Law – are supported by various state and private organizations and individuals, among them the Interfaith Children’s Movement, the Alliance on Developmental Disabilities, the Georgia Department of Juvenile Justice, the Georgia Coalition to End Homelessness, the Georgia PTA, the Georgia Latino Alliance for Human Rights, the Georgia Campaign for Adolescent Pregnancy Prevention, Parent to Parent of Georgia, Refugee Family Services, and Project Save. As of January 2010, more than 400 organizations and individuals had joined the coalition. More information on JUSTGeorgia and the Act can be found at http://www.justga.org/. Additional references are noted below, including a link to SB 127.
Senate Bill 127. Retrieved at http://www.legis.ga.gov/Legislation/en-US/display.aspx?Legislation=33026. Summary of the Child Protection and Public Safety Act Senate Bill 127 & House Bill 641 (March 8, 2011). JustGeorgia. Updated by the Barton Child Law and Policy Center, Emory University School of Law. Retrieved at http://www.gabar.org/public/pdf/news/HB641LongSummary.pdf JUSTGeorgia Coalition Members. Retrieved at http://www.justga.org/about-the-coalition/members. O.C.G.A. § 15-11-58(o) (2009). O.C.G.A. § 15-11-58(a)(4)(c) (2009). O.C.G.A. § 15-11-58(n) (2009). O.C.G.A. § 15-11-58(k) (2009). O.C.G.A. §§ 19-8-5, 19-8-6, and 19-8-7 (2009). O.C.G.A. § 15-11-94(b)(4)(C) (2009). O.C.G.A. §§ 15-11-37 and 15-11-38 (2009). O.C.G.A § 15-11-63(e)(2009). Drope v. Missouri, 420 U.S. 162 (1975) In the Interest of S.H., 469 S.E.2d 810 (Ga. App. 1996). O.C.G.A. § 17-10-6.1 (2009). O.C.G.A. §§ 15-11-150 – 15-11-155 (2009) O.C.G.A. § 15-11-80 (2011).
Rachel A. Elovitz is a domestic litigator who regularly serves as a guardian ad litem, representing the interests of children in custody, abuse, and neglect cases in Georgia’s Superior and Juvenile Courts. She is a regular contributor to the DeKalb Bar News.