O.C.G.A. § 15-11-181 (2019)

Annotations

Cross references. - Amendment to Juvenile Court petition, Uniform Rules for the Juvenile Courts of Georgia, Rule 6.6. Continuance of adjudicatory hearing in Juvenile Court, Uniform Rules for the Juvenile Courts of Georgia, Rule 11.3. Law reviews. - For article discussing due process in juvenile court procedures in California and Georgia, in light of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), see 8 Ga. St. B. J. 9 (1971).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION WAIVER OF TIME LIMITS SUBSTANCE ABUSE APPEALS General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-1701, pre-2000 Code Section 15-11-26 and pre-2014 Code Sections 15-11-39 and 15-11-54, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section. See the Editor’s notes at the beginning of the chapter. Time limits set forth in the former statute were jurisdictional and the adjudicatory hearing must be set for a time not later than that prescribed by statute. J.T.G. v. State, 141 Ga. App. 184, 233 S.E.2d 40 (1977) (decided under former Code 1933, § 24A-1701). Time limits established by the General Assembly in the Juvenile Code are jurisdictional and must be strictly adhered to. Crews v. Brantley County Dep’t of Family & Children Servs., 146 Ga. App. 408, 246 S.E.2d 426 (1978) (decided under former Code 1933, § 24A-1701). Language of former statute was mandatory and the time for the hearing must be set for a time not later than ten days after the petition was filed. J.B.H. v.

State, 139 Ga. App. 199, 228 S.E.2d 189 (1976) (decided under former Code 1933, § 24A-1701); Crews v. Brantley County Dep’t of Family & Children Servs., 146 Ga. App. 408, 246 S.E.2d 426 (1978) (decided under former Code 1933, § 24A-1701); Irvin v. Department of Human Resources, 159 Ga. App. 101, 282 S.E.2d 664 (1981) (decided under former Code 1933, § 24A-1701). Language of former subsection (a) of this section was mandatory and the adjudicatory hearing must be set for a time not later than that prescribed. Sanchez v. Walker County Dep’t of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976) (decided under former Code 1933, § 24A-1701). Goal sought to be accomplished by the ten-day hearing requirement for detained children was the same goal for the 60-day hearing requirement for non-detained children and, thus, the latter requirement was mandatory, rather than directory. In re R.D.F., 266 Ga. 294, 466 S.E.2d 572 (1996) (decided under former O.C.G.A. § 15-11-26). Time limits for speedy trial must be strictly adhered to. - If a legislative body has defined the right to speedy trial

in terms of days, then the time limits must be strictly complied with. J.B.H. v. State, 139 Ga. App. 199, 228 S.E.2d 189 (1976) (decided under former Code 1933, § 24A-1701). Trial court erred in setting the date for a hearing twelve days, rather than ten days, from the date of the filing of a petition charging a juvenile with the commission of the delinquent act of burglary. In re M.D.C., 214 Ga. App. 59, 447 S.E.2d 143 (1994) (decided under former O.C.G.A. § 15-11-26). Provision of former O.C.G.A. § 15-11-26 (see now O.C.G.A. §§ 15-11-181, 15-11-400, 15-11-421, 15-11-441, and 15-11-582) that the time for a hearing shall not be later than ten days after filing of the petition if the child was in custody was the equivalent of a speedy trial demand which did not require a specific demand by the child. However, the statute’s protection could be waived if not properly raised and, furthermore, the trial court had discretion to grant a continuance of a hearing properly set for a date within ten days from the filing of the petition. In re M.D.C., 214 Ga. App. 59, 447 S.E.2d 143 (1994) (decided under former O.C.G.A. § 15-11-26). Former O.C.G.A. § 15-11-26 (see now O.C.G.A. §§ 15-11-181, 15-11-400, 15-11-421, 15-11-441, and 15-11-582) did not constitute a speedy trial demand and, therefore, the failure to comply with the former statute’s provisions resulted in dismissal of the petition without prejudice. In re R.D.F., 266 Ga. 294, 466 S.E.2d 572 (1996) (decided under former O.C.G.A. § 15-11-26). Time limits satisfied by hearing adjudicatory in nature. - When a juvenile and the juvenile’s parents were summoned to appear at a hearing to defend against charges and to show cause why the juvenile should not be dealt with according to law, were instructed to remain in attendance at the hearing until final adjudication of the petition, were informed of the possibility of a continuance, and were told that the state would seek transfer to the superior court, the hearing was adjudicatory in nature and satisfied the requirements of former O.C.G.A. § 15-11-26. In re L.A.E., 265 Ga.

698, 462 S.E.2d 148 (1995) (decided under former O.C.G.A. § 15-11-26). Construction with other law. - Because a juvenile’s allegations that the state failed to comply with the procedural requirements under former O.C.G.A. § 15-11-49(c)(1) and (e) (see now O.C.G.A. §§ 15-11-102, 15-11-145, 15-11-151, 15-11-472, and 15-11-521) should have been raised in the superior court, and had no bearing on the validity of the delinquency petitions or the substantive charges against the juvenile in juvenile court, the court properly denied the presentation of evidence regarding the delinquency and substantive issues. In the Interest of K.C., 290 Ga. App. 416, 659 S.E.2d 821 (2008) (decided under former O.C.G.A. § 15-11-39). Arraignment during adjudicatory hearing. - In the absence of a transcript, a juvenile failed to establish that former O.C.G.A. § 15-11-26 (see now O.C.G.A. §§ 15-11-181, 15-11-400, 15-11-421, 15-11-441, and 15-11-582) was violated since a hearing was timely scheduled and held, an arraignment was conducted at the beginning, the juvenile requested legal counsel and was found eligible to receive counsel, and a continuance was granted so counsel could be secured; conducting an arraignment was not inconsistent with an adjudicatory hearing. In re R.D.F., 266 Ga. 294, 466 S.E.2d 572 (1996), reversing In re R.D.F., 216 Ga. App. 563, 455 S.E.2d 77 (1995) (decided under former O.C.G.A. § 15-11-26). Arraignment hearing scheduled within the 60-day time period is not sufficient to satisfy the requirement that an adjudicatory hearing must be set within that period. In re R.O.B., 216 Ga. App. 181, 453 S.E.2d 776 (1995) (decided under former O.C.G.A. § 15-11-26). Hearing requirement applicable when child in detention when petition filed. - Ten-day hearing requirement was applicable when a child was ‘‘in detention’’ on the date the petition was filed in court. Sanchez v. Walker County Dep’t of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976) (decided under former Code 1933, § 24A-1701). Time for adjudicatory hearing is not mandatory. - Former O.C.G.A.

General Consideration (Cont’d) § 15-11-26 (see now O.C.G.A. §§ 15-11-181, 15-11-400, 15-11-421, 15-11-441 and 15-11-582) required that an adjudicatory hearing date be set within ten days after a filing of a petition charging a minor with commission of delinquent acts, but does not require that a hearing be actually held within ten days after the filing of the petition. P.L.A. v. State, 172 Ga. App. 820, 324 S.E.2d 781 (1984) (decided under former O.C.G.A. § 15-11-26); Johnson v. State, 183 Ga. App. 168, 358 S.E.2d 313 (1987) (decided under former O.C.G.A. § 15-11-26); In re L.T.W., 211 Ga. App. 441, 439 S.E.2d 716 (1993) (decided under former O.C.G.A. § 15-11-26); In re B.W.S., 265 Ga. 567, 458 S.E.2d 847 (1995) (decided under former O.C.G.A. § 15-11-26). Ten-day hearing rule was not absolute, and a continuance could be granted in the sound discretion of the trial court. Johnson v. State, 183 Ga. App. 168, 358 S.E.2d 313 (1987) (decided under former O.C.G.A. § 15-11-26). Adjudicatory hearing timely. - Juvenile court did not err in denying the defendant juvenile’s motion to dismiss a petition because the adjudicatory hearing was set and held within ten days of the filing of the petition pursuant to former O.C.G.A. § 15-11-39(a) (see now O.C.G.A. §§ 15-11-181, 15-11-400, 15-11-421, 15-11-441, and 15-11-582), although the hearing was then continued, which was an action that was within the juvenile court’s discretion. In the Interest of C.H., 306 Ga. App. 834, 703 S.E.2d 407 (2010) (decided under former O.C.G.A. § 15-11-39). Continuance requested by parent did not violate time limit. - When a hearing on a deprivation petition was held within ten days of the petition’s filing, but the case was continued for eight days because the mother’s counsel had a scheduling conflict, there was no violation of former O.C.G.A. § 15-11-39(a)’s (see now O.C.G.A. §§ 15-11-181 15-11-400, 15-11-421, 15-11-441, and 15-11-582) ten-day time limit. In the Interest of C.R., 292 Ga. App. 346, 665 S.E.2d 39 (2008) (decided under former O.C.G.A. § 15-11-39).

Adjudication hearing required after an initial hearing. - By restraining the child at an initial hearing, the juvenile court implicitly found probable cause, pursuant to former O.C.G.A. § 15-11-46.1 (see now O.C.G.A. §§ 15-11-415 and 15-11-503). The juvenile court therefore erred in later deciding that a 10-day adjudication hearing was actually a detention hearing and in resetting the 10-day adjudication hearing. In the Interest of K.L., 303 Ga. App. 679, 694 S.E.2d 372 (2010) (decided under former O.C.G.A. § 15-11-39). Failure to follow mandated procedures warrants dismissal without prejudice of a petition alleging deprivation of a child. Another petition can be filed without delay if there is reason to believe the child is being neglected or abused. Sanchez v. Walker County Dep’t of Family & Children Servs., 140 Ga. App. 175, 230 S.E.2d 139 (1976) (decided under former Code 1933, § 24A-1701). Motion to dismiss necessary if no provision for automatic dismissal. - If there is no provision in the statute for automatic dismissal, there should be a motion to dismiss directed to the trial judge and it should appear that the delay is not due to the actions of the defendant. E.S. v. State, 134 Ga. App. 724, 215 S.E.2d 732 (1975) (decided under former Code 1933, § 24A-1701). Violation of ten-day mandate does not deprive jurisdiction. - Violation of the statutory mandate to set the hearing date not later than ten days after filing of the petition if the child is in detention would not deprive the court of jurisdiction that would otherwise exist. Sanchez v. Walker County Dep’t of Family & Children Servs., 138 Ga. App. 49, 225 S.E.2d 441, rev’d on other grounds, 237 Ga. 406, 229 S.E.2d 66 (1976) (decided under former Code 1933, § 24A-1701). Legislature intended incarceration be limited according to calendar days. - General Assembly intended that a juvenile who is incarcerated after the court has had a preliminary detention hearing should have the juvenile’s incarceration limited and the juvenile’s fate determined according to calendar days, not ‘‘working days.’’ J.B.H. v. State, 139

Ga. App. 199, 228 S.E.2d 189 (1976), overruled on other grounds, In re R.D.F., 266 Ga. 294, 466 S.E.2d 572 (1996) (decided under former O.C.G.A. § 15-11-26). No habeas corpus if compliance with statutory requirements. - Habeas corpus will not lie if the juvenile court, after notice and hearing, enters an order pursuant to former Code 1933, § 24-2409 (see now O.C.G.A. §§ 15-11-211, 15-11-212, and 15-11-215). Chaffins v. Lowndes County Dep’t of Family & Children Servs., 243 Ga. 528, 255 S.E.2d 360 (1979) (decided under former Code 1933, § 24A-1701). Effect of failure to show compliance with hearing requirement. - If the parents, in their petition seeking return of their children, allege that there has been no hearing as required by statute, and the record of prior juvenile court proceedings is silent as to whether such a hearing was ever set, continued, or held, and since the hearing requirement was mandatory, the defendant County Family and Children Services Department did not show compliance with the hearing requirement, and the parents stated claims for habeas relief which may be granted. Chaffins v. Lowndes County Dep’t of Family & Children Servs., 243 Ga. 528, 255 S.E.2d 360 (1979) (decided under former Code 1933, § 24A-1701). Permitting state’s mid-trial amendment of petition to change the charge against the juvenile from a misdemeanor to a felony was error since the amendment was done without notice and provision of a continuance to allow additional time for preparation of a defense. In re D.W, 232 Ga. App. 777, 503 S.E.2d 647 (1998) (decided under former O.C.G.A. § 15-11-26). Illegal detention. - If a petition was not presented within 72 hours of a detention hearing as required by former O.C.G.A. § 15-11-21(e) (see now O.C.G.A. §§ 15-11-145, 15-11-400, 15-11-413, 15-11-414, and 15-11-472), the state cannot thus illegally detain the child and then render such a jurisdictional defect harmless by setting the adjudication hearing within 13 days (72 hours plus 10 days) of the detention hearing under subsection (a) of former O.C.G.A. § 15-11-26 (see now

O.C.G.A. §§ 15-11-181, 15-11-400, 15-11-421, 15-11-441, and 15-11-582). In re B.A.P., 180 Ga. App. 433, 349 S.E.2d 218 (1986) (decided under former O.C.G.A. § 15-11-26). Visitation restrictions unauthorized if complaint dismissed. - Since the children were not found to be deprived, the trial court, in dismissing a deprivation complaint, was without authority to impose restrictions on the mother’s visitation, and the order imposing those restrictions was reversed. In the Interest of C.F., 266 Ga. App. 325, 596 S.E.2d 781 (2004) (decided under former O.C.G.A. § 15-11-54). Preparation of order by counsel not judge. - That the trial court’s termination order was prepared by counsel for the department of family and children services at the trial court’s direction did not violate former O.C.G.A. § 15-11-54(a) (see now O.C.G.A. § 15-11-181) as the order adequately reflected the court’s holdings. In the Interest of A.G., 293 Ga. App. 493, 667 S.E.2d 662 (2008) (decided under former O.C.G.A. § 15-11-54). Addressing child’s special immigrant juvenile status. - In a deprivation proceeding, a juvenile court erred by failing to address the child’s special immigrant juvenile status under 8 U.S.C. § 1101(a)(27)( J)(ii) and a remand was necessary since the juvenile court had to determine whether the evidence supported the findings so that the federal government could address the issue in separate deportation proceedings. In the Interest of J. J. X. C., 318 Ga. App. 420, 734 S.E.2d 120 (2012) (decided under former O.C.G.A. § 15-11-54). Guardian ad litem could examine witnesses and challenge evidence. - Juvenile court did not err by allowing a non-lay guardian ad litem (GAL) to examine witnesses and challenge certain evidence in the service of the children’s best interest because the limitation in O.C.G.A. § 15-11-104 only applied to lay guardians, while O.C.G.A. § 15-11181(b)(2) permitted the GAL to participate in the hearing. In the Interest of R. D., 346 Ga. App. 257, 816 S.E.2d 132 (2018).

Waiver of Time Limits Waiver of procedural requirements. - Time limits on setting juvenile hearings are mandatory, but procedural requirements can be waived. J.T.G. v. State, 141 Ga. App. 184, 233 S.E.2d 40 (1977) (decided under former O.C.G.A. § 15-11-26); Cox v. Department of Human Resources, 148 Ga. App. 338, 250 S.E.2d 728 (1978), overruled on other grounds, 156 Ga. App. 338, 274 S.E.2d 728 (1980) (decided under former O.C.G.A. § 15-11-26). With regard to a juvenile’s adjudication of delinquency for acts which, if committed by an adult, would have constituted the offense of child molestation, the juvenile court did not err by denying the juvenile’s motion to dismiss, which was based on an extended pre-trial detention as the juvenile and defense counsel agreed to a continuance and acquiesced in a hearing date delaying the adjudication for at least 48 days following the filing of the delinquency petition, which caused the juvenile to waive the right to complain that the adjudication hearing date was not set to occur in compliance with former O.C.G.A. § 15-11-39 (see now O.C.G.A. §§ 15-11-181, 15-11-400, 15-11-421, 15-11-441, and 15-11-582). However, the adjudication was reversed and the case was remanded to the juvenile court since the juvenile court erroneously applied a clear and convincing standard of proof and the standard of proof on charges of a criminal nature was the same as that used in criminal proceedings against adults, namely proof beyond a reasonable doubt. In the Interest of A.S., 293 Ga. App. 710, 667 S.E.2d 701 (2008) (decided under former O.C.G.A. § 15-11-39). Juvenile waived the right under former O.C.G.A. § 15-11-39(a) (see now O.C.G.A. §§ 15-11-181, 15-11-400, 15-11-421, 15-11-441, and 15-11-582) to have an adjudicatory hearing within 10 days of the delinquency petition being filed by failing to object to the date proposed for the adjudicatory hearing, which was one month after the filing of the petition. In re A. T., 302 Ga. App. 713, 691 S.E.2d 642 (2010), overruled in part by Worthen v. State, 304 Ga. 862, 823 S.E.2d 291 (2019)

(decided under former O.C.G.A. § 15-11-39). Trial court did not err in denying the defendant’s motion to dismiss for failure to comply with former O.C.G.A. § 15-11-39(a) (see now O.C.G.A. §§ 15-11-181, 15-11-400, 15-11-421, 15-11-441, and 15-11-582) because the defendant’s parent, the defendant’s representative, and an attorney acknowledged that the parent did not object when, at the arraignment hearing, it was announced that the adjudicatory hearing would be set outside of the 60-day window; the parent also did not object within the statutorily prescribed 60-day-time period, and the motion to dismiss was filed outside of the 60-day requirement. In the Interest of I.M.W., 313 Ga. App. 624, 722 S.E.2d 586 (2012) (decided under former O.C.G.A. § 15-11-39). Hearing time limit can be waived. - If the party does not enter an objection during the course of the trial the party will not be heard to complain on appeal and if a hearing is set within the statutory time limit, the court may in the court’s discretion grant a continuance. Sanchez v. Walker County Dep’t of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976) (decided under former Code § 24A-1701); In re J.B., 183 Ga. App. 229, 358 S.E.2d 620, cert. denied, 183 Ga. App. 906, 358 S.E.2d 620 (1987) (decided under former O.C.G.A. § 15-11-26). Juvenile was entitled to a copy of the delinquency petition filed against the juvenile, and pursuant to former O.C.G.A. § 15-11-39.1 (see now O.C.G.A. §§ 15-11-161, 15-11-282, 15-11-400, 15-11-424, and 15-11-531), the juvenile had a right to receive the petition at least 24 hours prior to the adjudicatory hearing; however, the juvenile waived any objection based on the grounds of improper service since the juvenile received notice right before the hearing as the juvenile did not make an objection or request a continuance on the basis that the juvenile was unprepared. In the Interest of E.S., 262 Ga. App. 768, 586 S.E.2d 691 (2003) (decided under former O.C.G.A. § 15-11-39). Delay negotiated by defendant waives time limit. - If the statute does

not require dismissal as a matter of law regardless of the reason for the delay, it is clear that a delay negotiated and obtained by the defendant personally would constitute a waiver of the 60-day requirement. E.S. v. State, 134 Ga. App. 724, 215 S.E.2d 732 (1975) (decided under former Code 1933, § 24A-1701). Proceeding null when no waiver of rights nor proper service. - If, in a juvenile court proceeding, there was neither waiver of the right of a mother, nor proper service upon the parties and if the hearing is not taken under oath, or waived by any of the parties, the proceeding is an absolute nullity. McBurrough v. Dep’t of Human Resources, 150 Ga. App. 130, 257 S.E.2d 35 (1979) (decided under former Code 1933, § 24A-1701). Order granting continuance failed to show extended time was necessary. - In a child dependency case involving a child to whom the 10-day hearing time limit in O.C.G.A. § 15-11-181(a) applied, the juvenile court’s grant of a continuance until four weeks later did not meet the stringent requirements of O.C.G.A. § 15-11-110 for granting a continuance; dismissal without prejudice should have been granted. In the Interest of I. L. M., 304 Ga. 114, 816 S.E.2d 620 (2018). Substance Abuse Results of drug abuse. - Juvenile court did not err when the court found that a parent’s decision to continue using cocaine and the parent’s refusal to attend substance abuse treatment adversely affected the child, and that the child was deprived as a result. In the Interest of J.L., 269 Ga. App. 226, 603 S.E.2d 742 (2004) (decided under former O.C.G.A. § 15-11-54). In view of the trial court’s reliance on other evidence to support the court’s findings as to a parent’s continuing drug problems, including avoidance of court-ordered drug screens, the parent did not show that

the parent was harmed by admission of the results of the drug tests at a deprivation hearing. In addition, urinalysis was a medically accepted and widely used method of drug testing, and although neither witness who testified about the test results received formal training from test manufacturers, one witness’s longtime practical experience in administering the test and the other witness’s government certification provided some basis for the determination that the witnesses were qualified to testify about the test results. In the Interest of J.R.N., 291 Ga. App. 521, 662 S.E.2d 300 (2008) (decided under former O.C.G.A. § 15-11-54). Appeals Parent’s right to appeal delinquency adjudication. - As parties to their child’s delinquency action pursuant to former O.C.G.A. § 15-11-39(b) (see now O.C.G.A. §§ 15-11-160, 15-11-423, and 15-11-530), the child’s parents had the right to appeal the juvenile court’s judgment and to participate in the appellate process. In the Interest of J.L.B., 280 Ga. App. 556, 634 S.E.2d 514 (2006) (decided under former O.C.G.A. § 15-11-39). Allegation of failure to comply with time requirements not appealable. - If the defendant, prior to a hearing to determine the defendant’s delinquency, appealed from the juvenile court’s denial of the defendant’s motion to dismiss based solely upon an alleged failure to comply with the time requirements of subsection (a) of former O.C.G.A. § 15-11-26 (see now O.C.G.A. §§ 15-11-181, 15-11-400, 15-11-421, 15-11-441, and 15-11-582), the Court of Appeals dismissed the appeal since a motion under that Code section cannot be analogized to the denial of a O.C.G.A. § 17-7-170 motion and did not involve a question of speedy trial rights which would be directly appealable. In re M.O.B., 190 Ga. App. 474, 378 S.E.2d 898 (1989) (decided under former O.C.G.A. § 15-11-26).

RESEARCH REFERENCES Am. Jur. 2d. - 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, § 66 et seq. C.J.S. - 43 C.J.S., Infants, § 195 et seq. U.L.A. - Uniform Juvenile Court Act (U.L.A.) § 22.

ALR. - Omission of signature of issuing officer on civil process or summons as affecting jurisdiction of the person, 37 A.L.R.2d 928.

PART 9 PREDISPOSITION SOCIAL STUDIES