Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-2201, pre-2000 Code Section 15-11-33, and pre-2014 Code Section 15-11-56, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.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.

Standard of proof on question of delinquency or termination.

- An "any evidence" standard or "preponderance of the evidence" standard is inadequate in dealing with finding of deprivation of a child or termination of parental rights and would violate U.S. Const., amend. 14. In re Suggs, 249 Ga. 365, 291 S.E.2d 233 (1982) (decided under former O.C.G.A. § 15-11-33); In re J.K.D., 211 Ga. App. 776, 440 S.E.2d 524 (1994);(decided under former O.C.G.A. § 15-11-33).

Standard of proof on charges of criminal nature against juvenile is the same as that used in criminal proceedings against adults; proof must be beyond a reasonable doubt. M.W.W. v. State, 136 Ga. App. 472, 221 S.E.2d 669 (1975) (decided under former Code 1933, § 24A-2201); In re M.M., 235 Ga. App. 109, 508 S.E.2d 484 (1998);(decided under former Code 1933, § 24A-2201).

Termination of parental rights is a severe measure. If a third party sues the custodial parent to obtain custody of a child and to terminate the parent's custodial rights in the child, the parent is entitled to custody of the child unless the third party shows by "clear and convincing evidence" that the parent is unfit or otherwise not entitled to custody under O.C.G.A. §§ 19-7-1 and19-7-4. Subsection (b) of former O.C.G.A. § 15-11-33 (see now O.C.G.A. § 15-11-110 and15-11-210) requires the court after a hearing to find "clear and convincing evidence" of "deprivation" before an order of deprivation may be entered. Heath v. McGuire, 167 Ga. App. 489, 306 S.E.2d 741 (1983) (decided under former O.C.G.A. § 15-11-33).

If deprivation forms the predicate upon which a third party seeks a temporary transfer of the child's legal custody, in order to support such a disposition the child must first be adjudicated to be a deprived child. By statute, that finding of deprivation must be made by "clear and convincing evidence." In re J.C.P., 167 Ga. App. 572, 307 S.E.2d 1 (1983) (decided under former O.C.G.A. § 15-11-33); In re J.T.M., 200 Ga. App. 636, 409 S.E.2d 256 (1991); In re A.W., 240 Ga. App. 259, 523 S.E.2d 88 (1999) (decided under former O.C.G.A. § 15-11-33). But see;(decided under former O.C.G.A. § 15-11-33).

Standard of proof on termination or transfer of custody petition.

- Regardless of whether the remedy sought is termination of parental rights or merely a transfer of temporary custody, clear and convincing evidence is required to support the finding of deprivation. In re R.R.M.R., 169 Ga. App. 373, 312 S.E.2d 832 (1983) (decided under former O.C.G.A. § 15-11-33).

Finding of parental unfitness is essential to support an adjudication of present deprivation when parental rights are terminated as well as the transfer of temporary or permanent custody to a third party. In re J.C.P., 167 Ga. App. 572, 307 S.E.2d 1 (1983); but see In re A.W., 240 Ga. App. 259, 523 S.E.2d 88 (1999) (decided under former O.C.G.A. § 15-11-33).

Delinquency found when delinquent acts corroborated by confession.

- Child's confession out of court corroborated by evidence that the stolen items were found in the child's possession within a few hours of the theft constituted sufficient proof under both former Code 1933, §§ 24A-2201 and 24A-2202 (see now O.C.G.A. §§ 15-11-19 and § 15-11-28) to support a finding of delinquency. A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974) (decided under former Code 1933, § 24A-2201).

Application to termination of parental rights.

- Former statute was applicable when proceeding was for termination of parental rights since that was also a custody controversy involving a deprived child. Powell v. Department of Human Resources, 147 Ga. App. 251, 248 S.E.2d 533 (1978), overruled on other grounds, Chancey v. Department of Human Resources, 156 Ga. App. 338, 274 S.E.2d 728 (1980) (decided under former Code 1933, § 24A-2201).

Evidence of deprivation.

- Evidence was sufficient to permit the juvenile court to find clear and convincing evidence of the child's deprivation and that the child's mother's misconduct or inability to care for the child's needs resulted in abuse or neglect sufficient to render her unfit to retain custody. In re C.N., 231 Ga. App. 639, 500 S.E.2d 400 (1998) (decided under former O.C.G.A. § 15-11-33).

Evidence of unexplained bruises on a child's arms and back and fractures of the child's arms and legs while in the child's parents' and maternal grandmother's care was sufficient to support a deprivation order. In re J.V., 241 Ga. App. 621, 526 S.E.2d 386 (1999) (decided under former O.C.G.A. § 15-11-33).

Parents' choice in exposing their child to an inappropriate and dangerous living environment showed a lack of parental judgment and careless disregard for the child's health and safety that was sufficient to support a finding that the child was deprived. In the Interest of B.M.B., 241 Ga. App. 609, 527 S.E.2d 250 (1999) (decided under former O.C.G.A. § 15-11-33).

In a case wherein a mother's parental rights were terminated to the mother's three-year-old daughter, sufficient evidence existed to support the judgment of termination because the evidence established that the mother was unable to provide adequately for the child due to mental illness, which was corroborated by evidence that the mother had four other children who were not in the mother's care or support; further, the mother had a long history of drug and alcohol abuse for which the mother failed to obtain inpatient drug treatment, was unable to maintain stable housing, failed to parent any children successfully, and the foster parents planned to adopt the child. In the Interest of D.P., 287 Ga. App. 168, 651 S.E.2d 110 (2007) (decided under former O.C.G.A. § 15-11-56).

Evidence supported the juvenile court's determination that a father deprived his child by committing sexual abuse against the child because a psychologist who interviewed the child testified that in the psychologist's opinion the child had a history of some kind of abuse, and another psychologist who performed a sexual trauma evaluation of the child testified that the child was difficult to manage and easily distracted, became anxious when asked any question regarding sex, exhibited abnormal anger and aggression as well as sexual behaviors common in sexually abused girls, and exhibited distorted sexual beliefs; the child's older sibling testified that the sibling had witnessed several instances of physical abuse by the father against the child. In the Interest of V. H., 308 Ga. App. 582, 708 S.E.2d 544 (2011) (decided under former O.C.G.A. § 15-11-56).

Types of evidence admissible.

- Citizens review panel report was properly considered by a trial court in reaching the court's decision regarding a termination of parental rights petition since the court is permitted to consider all helpful information. In re M.L.P., 236 Ga. App. 504, 512 S.E.2d 652 (1999) (decided under former O.C.G.A. § 15-11-33).

Trial court did not err in admitting a home evaluation report into evidence in a hearing on a termination petition. In the Interest of R.G., 249 Ga. App. 91, 547 S.E.2d 729 (2001) (decided under former O.C.G.A. § 15-11-56).

Lesbian relationship of parent.

- Juvenile court erred in entering a finding of deprivation against a mother based solely on a case manager's report which was largely supported by hearsay; further, because the only remaining basis for the court's ruling was the mother's lesbian relationship, a deprivation finding could not be sustained absent a finding that the children were deprived as a result. In the Interest of E.C., 271 Ga. App. 133, 609 S.E.2d 381 (2004) (decided under former O.C.G.A. § 15-11-56).

Custody by department only suspends parental right of custody.

- Removal of custody of the child from the parents is a determination that, for whatever length of time custody is exercised by the department of family and children services, this right has been suspended, although not finally terminated. Rodgers v. Department of Human Resources, 157 Ga. App. 235, 276 S.E.2d 902 (1981) (decided under former Code 1933, § 24A-2201).

Discretion of trier of fact on probative value of evidence.

- Probative value to be accorded any evidence is within the sound discretion of the trier of fact, and should not be disturbed in the absence of a manifest abuse of discretion. C.A.J. v. State, 127 Ga. App. 813, 195 S.E.2d 225 (1973) (decided under former Code 1933, § 24A-2201).

Limited restraining order appropriate disposition.

- After a juvenile attacked a store detective, and subsequently displayed violent behavior and threatened another store employee, the court's conclusion that the juvenile was in need of treatment and rehabilitation, and the court's limited restraining order preventing the juvenile from entering any store owned by the company in Fulton County, except in the immediate presence of a parent or adult relative, was an appropriate disposition and justified by the evidence. In re J.M., 237 Ga. App. 298, 513 S.E.2d 742 (1999) (decided under former O.C.G.A. § 15-11-33).

Juvenile Code requires separate trials with each having different goals.

- First or adjudicatory process in a delinquency case is a full scale fact-finding hearing to determine if the child committed the act with which the child is charged and whether that constitutes delinquency. D.C.A. v. State, 135 Ga. App. 234, 217 S.E.2d 470 (1975) (decided under former Code 1933, § 24A-2201); J.B. v. State, 139 Ga. App. 545, 228 S.E.2d 712 (1976);(decided under former Code 1933, § 24A-2201).

Purpose of division of juvenile trials into two phases.

- In dividing juvenile trials into two phases lawmakers intended to give the juvenile judge an opportunity to conduct the "functional equivalent" of a regular trial (the adjudicatory hearing) in a manner which would satisfy the required constitutional procedures concomitant with the usual legal rules, such as those dealing with admissibility of evidence, proof beyond a reasonable doubt, and similar requirements applicable to adults. Thereafter, at the dispositional phase, the judge was to explore all available additional avenues, including psychiatric and sociological studies, which would enable the judge to provide a solution for the youngster and the family aimed at making the child a secure law-abiding member of society. D.C.A. v. State, 135 Ga. App. 234, 217 S.E.2d 470 (1975) (decided under former Code 1933, § 24A-2201).

During adjudicatory phase, rules of evidence generally prevail.

- In the second (dispositional) phase, the court hears virtually all evidence which is material and relevant to the issue of disposition. J.B. v. State, 139 Ga. App. 545, 228 S.E.2d 712 (1976) (decided under former Code 1933, § 24A-2201).

Dispositional hearing not necessary for termination due to deprivation.

- If a petition for the termination of parental rights alleged only that the children were deprived, not delinquent, or unruly, it was not necessary for the juvenile judge to hold a dispositional hearing. In re J.C., 242 Ga. 737, 251 S.E.2d 299 (1978), appeal dismissed, 441 U.S. 929, 99 S. Ct. 2046, 60 L. Ed. 2d 657 (1979) (decided under former Code 1933, § 24A-2201).

Dispositional hearing not needed for disposition order.

- Trial court may enter order of disposition without first holding dispositional hearing if there is an implicit finding that termination of the parental rights of both parties is authorized, leaving the court with only the alternatives provided in former Code 1933, § 24A-3204 (see now O.C.G.A. §§ 15-11-180 and15-11-181). Moss v. Moss, 135 Ga. App. 401, 218 S.E.2d 93 (1975) (decided under former Code 1933, § 24A-2201).

Probative evidence admissible in disposition hearing.

- Juvenile court can consider a juvenile's prior record in aggravation of disposition even though the prior record has not been presented to the juvenile prior to trial. O.C.G.A. § 17-10-2 (felony sentencing of adults) is not applicable to juvenile disposition hearings as the General Assembly has not made it so. To the contrary, subsection (a) of that section authorizes in dispositional hearings the receipt and consideration of all helpful information to the extent of its probative value, even though not otherwise competent evidence, in a hearing on criminal responsibility. C.P. v. State, 167 Ga. App. 374, 306 S.E.2d 688 (1983) (decided under former Code 1933, § 24A-2201).

Caseworker's testimony about a mother's missed visits with the child was allowable as information that might be helpful to the juvenile court in determining whether the mother's parental rights were to be terminated, even though the information might not otherwise have been competent evidence. In the Interest of A.K., 272 Ga. App. 429, 612 S.E.2d 581 (2005) (decided under former Code 1933, § 24A-2201).

Continuation of a dispositional hearing should have been allowed when the probation officer notified the court that the officer was not prepared to make a recommendation regarding disposition. In re M.D., 233 Ga. App. 261, 503 S.E.2d 888 (1998) (decided under former O.C.G.A. § 15-11-33).

Dispositional hearing was held, albeit briefly, when, at the conclusion of the trial, the court found that the juvenile had committed the offense charged and questioned the juvenile with regard to whether the juvenile had been in court before and whether the juvenile had ever been charged with similar conduct. In re B.J.G., 234 Ga. App. 285, 506 S.E.2d 449 (1998) (decided under former O.C.G.A. § 15-11-33).

Access to confidential records.

- Nonprofit advocacy corporation mandated under federal law to investigate incidents of abuse and neglect of individuals with mental illness should have been given reasonable access to confidential county and juvenile court records in connection with investigations relating to the corporation's filing of a deprivation petition. In re A.V.B., 222 Ga. App. 241, 474 S.E.2d 114 (1996) (decided under former O.C.G.A. § 15-11-33).

Courts may consider reports which contain hearsay in disposition phase.

- Former statute required that in the hearing on a petition alleging deprivation the trial court shall first make the court's finding as to whether the children were deprived, and it was only after this decision had been made that the judge, in considering the disposition to be made of the children, could consider written reports which contain hearsay matter. In re J.C., 242 Ga. 737, 251 S.E.2d 299 (1978), appeal dismissed, 441 U.S. 929, 99 S. Ct. 2046, 60 L. Ed. 2d 657 (1979) (decided under former Code 1933 § 24A-2201).

Trial court did not err in considering reports filed by a court-appointed special advocate (CASA), and by allowing the CASA to make a statement at the end of the hearing. In the Interest of C.G.B., 242 Ga. App. 705, 531 S.E.2d 107 (2000) (decided under former O.C.G.A. § 15-11-33).

Assault victim's uncertified, unauthenticated medical reports admissible.

- Court does not err in allowing uncertified and unauthenticated medical reports of an assault victim in evidence at the disposition hearing. C.P. v. State, 167 Ga. App. 374, 306 S.E.2d 688 (1983) (decided under former O.C.G.A. § 15-11-33).

Admission of hearsay evidence.

- Trial court did not err in permitting the introduction of hearsay evidence for whatever weight and credit the court might give the evidence. In the Interest of A.T.H., 248 Ga. App. 570, 547 S.E.2d 299 (2001) (decided under former O.C.G.A. § 15-11-56).

Although a parent was deemed to have abandoned a claim raised on appeal regarding admissibility of evidence from a caseworker in the parental rights termination proceeding under former O.C.G.A. § 15-11-94 (see now O.C.G.A. §§ 15-11-310,15-11-311, and15-11-320) due to the parent's failure to have cited to any portions of the record in support of the parent's argument, pursuant to Ga. Ct. App. R. 25(c)(3), such evidentiary rulings would not have constituted reversible error because the remaining evidence introduced at the hearing, not considering the caseworker's report, was sufficient to support the findings and conclusions in the matter. There was no reversible error and, further, hearsay evidence was presumed to have been disregarded and other evidence properly considered under former O.C.G.A. § 15-11-56(a) (see now O.C.G.A. § 15-11-210). In the Interest of T.A.M., 280 Ga. App. 494, 634 S.E.2d 456 (2006) (decided under former O.C.G.A. § 15-11-56).

Juvenile court erred by terminating a grandparent's visitation rights previously granted by relying on the child's out-of-court statements and by failing to recite what standard the court was using to modify the previous visitation awarded to the grandparent. In re K. I. S., 294 Ga. App. 295, 669 S.E.2d 207 (2008) (decided under former O.C.G.A. § 15-11-56).

In a deprivation proceeding, it was error to admit a faxed copy of a document purportedly originating from the United States Department of Homeland Security that stated that an investigation had been initiated to determine whether the parent in question was subject to deportation. In the absence of any relevant witness testimony or documentary evidence properly certifying the record, the document consisted entirely of hearsay, which lacked probative value even in a dispositional hearing. In the Interest of A. R., 296 Ga. App. 62, 673 S.E.2d 586 (2009) (decided under former O.C.G.A. § 15-11-56).

State failed to meet the state's burden of showing that an allegedly abused child was "available to physically appear" at a deprivation hearing as required for hearsay testimony to be admissible under former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820). The juvenile court erred in relying on the hearsay testimony of a social worker and a DFCS case manager regarding what the child said. In the Interest A.T., 309 Ga. App. 822, 711 S.E.2d 382 (2011) (decided under former O.C.G.A. § 15-11-56).

In a visitation dispute, it was not error to deny a father's motion in limine to exclude hearsay in a custody evaluation because former O.C.G.A. § 15-11-56(a) (see now O.C.G.A. § 15-11-210) specifically allowed the trial court to receive such information. Gottschalk v. Gottschalk, 311 Ga. App. 304, 715 S.E.2d 715 (2011) (decided under former O.C.G.A. § 15-11-56).

Right to cross-examine afforded upon request.

- Right to cross-examine adverse witnesses guaranteed by former Code 1933, § 24A-2002 (see now O.C.G.A. §§ 15-11-19 and15-11-28) was afforded upon request according to former Code 1933, § 24A-2201 (see now O.C.G.A. §§ 15-11-110 and15-11-210). A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974) (decided under former 1933, § 24A-2201).

Record must show clear and convincing evidence which authorizes finding.

- Just as former statute did not require the court to include a specific statement as to the standard of proof of delinquency in the adjudication order, no such explicit finding was required as to the need for treatment or rehabilitation as long as the record showed that there was clear and convincing evidence which authorized the judge's implicit finding. A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974) (decided under former Code 1933, § 24A-2201).

Explicit statutory findings required by former Code 1933, § 24A-2201 (see now O.C.G.A. §§ 15-11-110 and15-11-210) should be made in accordance with former Code 1933, § 81A-152 (see now O.C.G.A. § 9-11-52). Crook v. Georgia Dep't of Human Resources, 137 Ga. App 817, 224 S.E.2d 806 (1976) (decided under former Code 1933, § 24A-2201).

In ruling on deprivation petitions, findings of fact should be made in accordance with former Code 1933, § 81A-152 (see now O.C.G.A. § 9-11-52). W.R.G. v. State, 142 Ga. App. 81, 235 S.E.2d 43 (1977) (decided under former Code 1933, § 24A-2201); In re A.A.G., 143 Ga. App. 648, 239 S.E.2d 697 (1977);(decided under former Code 1933, § 24A-2201).

Exception when petition alleges only deprivation.

- If the petition by the county department alleges only deprivation, it is unnecessary to make an explicit finding of deprivation. Moss v. Moss, 135 Ga. App. 401, 218 S.E.2d 93 (1975) (decided under former Code 1933, § 24A-2201).

Explicit finding for petition alleging multiple conditions.

- Patent reason for explicit finding of deprivation in petition alleging multiple conditions is to indicate the necessity for and to authorize dispositions of the deprived child or children under the statute or statutes deemed applicable by the court. Moss v. Moss, 135 Ga. App. 401, 218 S.E.2d 93 (1975) (decided under former Code 1933, § 24A-2201).

Disposition made following finding of delinquency.

- Decision that the child is in need of treatment or rehabilitation, based upon clear and convincing evidence, is made following a finding of delinquency. A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974) (decided under former Code 1933, § 24A-2201).

Dispositional hearings held in county of juvenile's residence.

- Dispositional hearings must be held in the county of the juvenile's residence to meet state constitutional requirements. C.L.A. v. State, 137 Ga. App. 511, 224 S.E.2d 491 (1976) (decided under former Code 1933, § 24A-2201).

No need to repeat evidence presented during adjudicatory portion.

- There is no error in refusing to have the dispositional phase include a repetition of the same evidence and witnesses previously presented during the adjudicatory portion. D.C.A. v. State, 135 Ga. App. 234, 217 S.E.2d 470 (1975) (decided under former Code 1933, § 24A-2201).

Order for transfer for further disposition is not final appealable judgment.

- When, pursuant to former Code 1933, § 24A-2201 (see now O.C.G.A. §§ 15-11-5180 and15-11-210), an order was entered adjudicating a juvenile guilty of an offense and, under the authority of former Code 1933, § 24A-1201 (see now O.C.G.A. §§ 15-11-401 and15-11-490) jurisdiction was transferred to the county of the residence for further disposition, that order was not a final appealable judgment. D.C.E. v. State, 130 Ga. App. 724, 204 S.E.2d 481 (1974) (decided under former Code 1933, § 24A-2201).

French-speaking parent's stipulation to certain facts presented in a deprivation petition was sufficient evidence to support a finding that the parent's children were deprived and the parent's argument that the parent did not "understand" the meaning or significance of the stipulation was properly rejected. In re M.O., 233 Ga. App. 125, 503 S.E.2d 362 (1998) (decided under former O.C.G.A. § 15-11-33).

Certified documents properly admitted.

- In a deprivation proceeding, the trial court properly admitted documents from a parent's criminal case under former O.C.G.A. § 24-5-31 (see now O.C.G.A. § 24-10-1005). The court found that the documents were attached to a negotiated plea and had been certified. In the Interest of A. R., 296 Ga. App. 62, 673 S.E.2d 586 (2009) (decided under former O.C.G.A. § 15-11-56).

Am. Jur. 2d.

- 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, § 116 et seq.

C.J.S.

- 43 C.J.S., Infants, § 199 et seq.

U.L.A.

- Uniform Juvenile Court Act (U.L.A.) § 29.

ALR.

- Applicability of rules of evidence in juvenile delinquency proceeding, 43 A.L.R.2d 1128.

Applicability of double jeopardy to juvenile court proceedings, 5 A.L.R.4th 234.

Defense of infancy in juvenile delinquency proceedings, 83 A.L.R.4th 1135.

Applicability of rules of evidence to juvenile transfer, waiver, or certification hearings, 37 A.L.R.5th 703.