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Notes – 2013 Continuing Legal Education (Georgia Child Welfare Attorney Training)

by merlin on April 13th, 2013
  • Sumo

I have never been appointed as a Special Assistant Attorney General, but these seminars always address things that are incredibly useful in the attendant circumstances to divorce where children, incapacitated adults, and persons who are operating under a legal disability or alleged legal disability with respect to matters of family law (such as divorce or child custody) are involved.  These are notes I had yesterday from the seminar given on the topic, that are made to supplement the excellent and detailed information at the presentation on the new version of Georgia’s substantial revision of the Juvenile Code.

CHILD WELFARE TRAINING CONTINUING LEGAL EDUCATION

4-12-13 – State Bar Headquarters

 

LOOK AT THE “TRIAL NOTEBOOK” in the CLE materials – Written versions of most of the things discussed

 

  1. 1.     Hon. Cassandra Kirk (Fulton County Juvenile Court)

And Mary D. Hermann (attorney for parents in juvenile court)

Remember:  

  • Juvenile Court IS real Court, and record is necessary if case gets appealed
  • DFCS is NOT a “good parent”, any more than any other parent
  • Judge doesn’t know the law any more than any other lawyer – please brief and KNOW YOUR TOPIC
  • Child welfare law is NOT such an easy topic – do not forget about the appeal!
  • Remember – the new juvenile Code makes it clear, but the child’s lawyer (GAL) cannot appeal – the appeal is handled by the CASA
  • Fulton County – client-directed model; not a “best interest of the child” model

 

Look at possibility of Skype interviews to overcome the distance problem.

 

New Dependancy Code is VERY CLEAR – children 14 years+ must be SERVED WITH ALL OF THE PETITIONS (it isn’t reversible error, but bad practice)

 

New classification – CHIN (Children in Need – “unruly” previously; represents change in focus from “nobody’s fault but the child” to giving services/holistic need to help them improve)

 

Department: “reasonable efforts” are now tied to funding, so there has to be reunification efforts, really – start efforts at the first hearing (protective hearing)

  • Why is the child at “imminent risk of harm” if they go back to the family?
    • More importantly – what needs to be done to remedy?

 

Get the actual plan meeting scheduled then and there – move the case forward!

 

Even if everybody agrees, there STILL must be a factual basis for every finding in the disposition/case plan/etc.

 

New § 15-11-1 (Liberal Construction of Chapter) –

  • Must have appropriate JURISDICTIONAL findings in the Orders (or it IS reversible error)
  • Focus is on reunification and remedy

 

Remember – child can be BOTH deprived AND delinquent, and New Code recognizes it

 

 Case Scenario Evaluation

1.      Shelter Care Order (Starts the 7-month time limit, so make sure it has DATE AND TIME):

Remember – ANYONE can make a report

  • Intake Order – must show “imminent harm” if child remains in that location; remember it is an ex parte Order, and IDEALLY the SAAG or other person seeking the removal Order is going to be told BOTH sides (Conditions – § 15-11-45(a)(4))

 2.     Probable Cause hearing (“PC Hearing”, “Detention Hearing”, or “72-Hour Hearing”):

  • See page 7 of the Trial Notebook in the materials – this is a 72-hour hearing

1. Are there reasonable grounds to believe the allegations are true (low burden)?

AND

2. Can children return to home environment safely?

  • Rules are relaxed, and it is possible child could be returned to home with Protective Order
  • Case can be continued but NEED TO HAVE THE “good cause” for continuance to be STATED and not general

 

“Deplorable Conditions” – ex. Feces on floor, rotting food, broken glass

Case Citation – 217 Ga.App. 1995

1. DFCS *must* present evidence of *what constitutes* deplorable conditions

AND

2. Conditions are affecting child’s emotion/mental/physical well-being

 

DFCS policy is ONLINE – “Social Services Manual” (not law, but recommended procedure they use)

  • Remember – this internal policy does not provide a list of required minimum standards for any particular professional at all (including interpreters, in situations involving immigrants and forensic testing)
    • Meaning that the individual Board standards have to be addressed
    • Just because that is the “expert” the Juvenile Court generally relies on doesn’t mean they are immune to a good expert evaluation

 

Georgia does not have any “recognized” Native American tribes; contract Department of the Interior if there might be a “federally-recognized” Native American tribe (registered member) involved.

 

If ICPC (Interstate Compact on the Placement of Children) is involved – family members are Interstate – then there are many different hurdles that have to be met at certain times and in certain manners.

 

Reasonable Efforts (required for any and all ongoing child removal situations; have to be shown by DFCS personnel to continue detention:

1.     Must state reasons for taking child into care (3 given reasonable efforts – specifically, see OCGA § 15-11-58); and

2.     Efforts to prevent PERMANENT REMOVAL

 

Very good practice – ask for DFCS to give notice of all meetings at the initial PC Hearing.

 

3.     Adjudication

Must happen within 10 days, or the case is dismissed – WITHOUT PREJUDICE

 

Statutorily – Petition must be “presented to the Court” within (5?) days

  • Petition must be FILED within 10 days
  • If child is NOT removed from home – 30 days to file, instead

 

Read the case law section of the materials for specific rules on what Petition for Deprivation must contain (needs to be specifics; ex. “at this time, in this place, this thing happened and the child is deprived – and THIS IS WHY it is not a one-time event”)

 

Incarcerated Parent

Judge must find that “incarceration has an adverse effect on the familial relationship”

  • Need to show efforts to the contrary – ex. Person writes letters daily, etc.
  • See the case law in the materials that dictates the above languages in this info
  • Need to have a TRANSPORT ORDER (filed more than 10 days in advance of hearing) to have parent brought to Court for hearing

 

To find the absent parent – ASK FOR AN “ACCURATE SEARCH”!!!!!!!!!

  • Again – subpoena to Department of Vital Statistics

  

Remember – can WAIVE –or- STIPULATE at beginning – probable cause; subsequent final must stipulate or put up evidence and you sure better put up evidence!!!! – SEE PAGE 11 OF MATERIALS

 

Case plan for reunification – address each of the findings of fact

  • Remember – a finding of “deprivation” will haunt them up the road at every child custody matter (same children or not; subsequent marriage, etc.), so CONTEST IT IF REASONABLE

 

Remember – case plan: Change it from “must have a job” to “must have a VERIFIABLE source of income” – sufficient to provide for family

 

GET NUMBER/INFO FOR GEORGIA ADVOCACY OFFICE – (800)??? – 4329(??) – not legal help for parents, but other resources to help them deal with raising a family, etc.

 

 

Legitimation

  • Administrative:

–         Just signing some names at the bottom of the birth certificate

–         He is then ADMINISTRATIVELY the legal father, but some/many juvenile court judges will not recognize this (the law SAYS it is good, but it is badly effected)

Vs.

  • Legal:

–         Remember to read back over the Code section because if they signed the paternity acknowledgement, they are STILL the “Legal father”

–         Get a subpoena for production of documents and fax to Department of Vital Statistics

–         This is a 15-20 minute process often

 

Department of Vital Statistics – must be a subpoena, and you are going to get DL, State of Issuance, SSN

Attn: Debora Aderhold or Traci Whitef – child’s name, case number, DOB

Tell them – you need Form 3940, Vital Records of Georgia Department of Human Resources

Fax number is 404-679-4765; do this in the beginning of case, because if he is a legal father (signed ACKNOWLEDGEMENT OF PATERNITY AT THE HOSPITAL) then he gets notice, etc., for due process to be satisfied

 

3.     Dr. Alka Aneja, MD, MA

(Potential highly qualified expert for PTSD topic – Medical Director for DHS – Childhood development specialist)

alaneja@dhr.ga.gov

 

Common injuries at age group:

1-3 years: Often see evidence of shaking, head injury

 

Remember – different parts of the brain show different kinds of injury

 

Developmental neglect and trauma have a noticeable PHYSICAL effect/limitation on brain development.

 

Approximately 1/3 of all children – physical abuse;

¼ of all girls (and 1/5 of boys) – sexual abuse

 

Victims of child abuse statistically 12 times more likely to commit suicide.

 

Most important/noticeable long-term effect of childhood abuse seems to be a loss of self-regulation (this is like long-term PTSD)

  • “Hypervigilance” – caused by this long-term fight or flight
  • Dissociation results – it varies with the intensity of the event

 

Childhood abuse – cause of delays in, failures in normal developmental milestones

 

PTSD and Child Abuse Treatment:

  • Recursive
  • Revisits earlier stages of treatment
  • Reinforces the treatment at later points

 

CDC studies – same information presented and used

BEST – check aacap.org – studies and info there on this topic

 

4.     Judge Gerald Bruce (Enotah Circuit Juvenile Court Judge)

 

Case Law update:

Bulletin Board for JJC has update blurbs on each case.

315 Ga.App. 673:

  • Medically-fragile twins; parents never married and Mom didn’t visit for 4 months; Legitimation action in Superior Court and deprivation action subsequently in juvenile court
  • NOT a disguised custody case (juvie courts can’t hear) BECAUSE –
    • Mom left kids in his physical custody, paid no $ for months prior to petition, it WOULD HAVE BEEN custody except that other stuff

316 Ga.App. 86:

  • Question is “judicial notice” – trial court supposedly took judicial notice of psych evaluation AND citizen review panel, and they were primary evidence
  • If it isn’t in the record, cannot use it
  • § 24-2-201 covers idea of “judicial notice”, but requires that FACTS JUDICIALLY NOTICED MUST STILL BE SPECIFICALLY NOTED ON THE RECORD

316 Ga.App. 185:

  • Exhibits themselves were NEVER tendered at the hearing, so they were ALL HEARSAY that should have been excluded (hearsay is admissible, but WEIGHT is in question)

31 Ga.App. 246:

  • Termination Order has to spell out not just WHY, but also WHAT

316 Ga.App. 296:

  • Mom left child with foster care but did not use chance to clean up her act; instead went off a bender for a little while

316 Ga.App. 782:

  • Reinforces idea that trial court (juvenile court) makes findings of FACT, even if facts found seem absurd

291 Ga. 376:

  • Brine v. Ship – SUPERIOR COURT CANNOT TERMINATE RIGHTS (if Legitimation first requires that father’s rights be terminated)

317 Ga.App. 683:

  • Parent in termination or deprivation proceedings – DUE PROCESS RIGHT to be present while ALL witnesses are testifying
  • Can have the child outside Defendant’s presence, as long as testimony can be heard/seen, and Defendant can consult with counsel

317 Ga.App. 679:

  • Can’t complain about factual findings (judicial notice of evidence with hearsay) if it is unappealed prior case order

In the Interest of EEBW, 318 Ga.App. 65:

  • UCCJEA case – child went to Zambia for plastic surgery at 8, stayed (for surgery) until 14, then adopted by foster parents;
  • Child then protested; dispute was Fulton County versus Zambia
  • Court decided that UCCJEA actually WAS custody
  • Court decided to treat Zambia as a “sister State” under the UCCJEA!
  • It does NOT apply to adoptions, and this was a Zambian adoption

318 Ga.App. 772:

  • § 15-11-58 says if no reunification efforts then place with a list of people, and (a) is relatives; trial court thought there is some kind of presumption in favor of relative placement
  • BUT (c) uses the word “OR” – there isn’t a priority under the statute – COURT REVERSED

13 Ga.App. 135; 319 Ga.App. 138; 2013 WL 870274

  • § 15-11-94 Termination of Parental Rights (4-step process to determine parental misconduct or inability), ALSO – PARENTAL NEGLECT/FAILURE for 12 months prior ((b)(4)(C))
  • There was no evidence to the underlying TPRs

2013 WL 776587:

  • GAL must act to appeal; not child by themselves

 

5.     Karlise Y. Grier (Ethics in Child Welfare Cases)

Look at State Bar website (www.gabar.org) for 2011 revision of ethics rules for reference

 

Professionalism versus Ethics – reaching for the sky versus basic behavior

 

“Informed consent” for withdrawal, for conflicts of interest MUST BE confirmed in writing!!!!

 

Scope of Representation: lawyer MUST abide by decisions, but SHALL CONSULT as to means to achieve

 

Beginning in 2014, child must have BOTH an attorney AND a GAL in Juvenile Court.

 

ALL lawyers representing children in Juvenile Court need to be aware of a LAUNDRY LIST of possibly applicable acts that may apply IN EVERY CASE (ex. Acts on multi-ethnicity placements, Indian rights, social security, immigrant children) – State Bar website has that list

 

If client is acting under diminished capacity, and confidence given by client that they are pursuing course of action that you believe is not in their best interests, then MUST obtain a separate GAL and retain the attorney role (and the confidence, but protect the GAL aspect for client).

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