Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-2301, pre-2000 Code Section 15-11-34, and pre-2014 Code Section 15-11-55, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.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.

No equal protection violation.

- Treating deprived children who were placed in the legal custody of the Department of Families and Children Services because there was no relative committed to the child who was available for immediate placement differently from deprived children who did have a committed parent or guardian available for immediate placement did not violate the equal protection clause or Ga. Const. 1983, Art. I, Sec. I, Para. II. as the classes were not similarly situated and the laws were rationally related to the goal of minimizing government intervention while ensuring that children were reared in a familial environment. In the Interest of A.N., 281 Ga. 58, 636 S.E.2d 496 (2006) (decided under former O.C.G.A. § 15-11-55).

In a deprivation proceeding, the department of family and child services did not violate equal protection by requiring the parents to pay part of the costs for services mandated under their case plan. The department was not drawing a distinction between similarly situated parties in that a parent who could afford to contribute financially was not similarly situated to one who could not afford to do so; moreover, even if the parents were similarly situated to others who were not required to pay for a portion of services, the goals served by the contribution requirement of requiring parents to take responsibility for conduct that harmed their children and of increasing the likelihood of success for family reunification represented legitimate governmental purposes. In the Interest of P.N., 291 Ga. App. 512, 662 S.E.2d 287 (2008) (decided under former O.C.G.A. § 15-11-55).

Jurisdiction of adoption while deprivation proceeding pending.

- Superior court has exclusive jurisdiction in adoption matters and had jurisdiction to entertain an adoption petition notwithstanding the pendency of deprivation proceedings in the juvenile court involving the same child. Edgar v. Shave, 205 Ga. App. 337, 422 S.E.2d 234 (1992) (decided under former O.C.G.A. § 15-11-34).

Authority of juvenile courts to transfer legal custody.

- Juvenile court had exclusive original jurisdiction over deprivation proceedings, and the juvenile court had the authority to order the disposition best suited to the needs of the children including the transfer of temporary legal custody. In re A.L.L., 211 Ga. App. 767, 440 S.E.2d 517 (1994) (decided under former O.C.G.A. § 15-11-34).

Juvenile court erred in awarding custody of a child to the father even after finding that the child was not deprived because according to a plain reading of former O.C.G.A. § 15-11-55(a)(2) (see now O.C.G.A. §§ 15-11-211 and15-11-212), the juvenile court was without authority to transfer custody of the child to the father and paternal grandmother; while under former O.C.G.A. § 15-11-28(c)(1) (see now O.C.G.A. § 15-11-11) the juvenile court had concurrent jurisdiction to hear and determine the issue of custody and support when the issue was transferred by proper order of the superior court, no such order existed in the record, and instead, the juvenile court specifically found that the child was not deprived. In re T.S., 310 Ga. App. 100, 712 S.E.2d 121 (2011) (decided under former O.C.G.A. § 15-11-55).

No need to repeat evidence already 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-2301).

Sufficient 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 parent's misconduct or inability to care for the child's needs resulted in abuse or neglect sufficient to render the parent 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. § 15-11-34).

Since the evidence in the record showed that the child had been subjected to numerous medical examinations for sexual abuse at the mother's behest, in an apparent effort to frustrate or foreclose the father's right of visitation, and she persisted in having the child examined for possible sexual abuse, the juvenile court did not abuse the court's discretion in finding that: (1) such examinations were so numerous as to be psychologically harmful to the child; and (2) the circumstances under which future examinations might proceed were to be limited. In the Interest of M.E., 265 Ga. App. 412, 593 S.E.2d 924 (2004) (decided under former O.C.G.A. § 15-11-55).

Juvenile court's order finding a one-year-old child to be deprived was upheld on appeal as clear and convincing evidence existed that: (1) one parent suffered from a psychological disorder, which was not controlled by medication, and caused that parent to have delusions; and (2) the other parent, knowing the aforementioned condition of the first parent, left the child in that parent's care. In the Interest of M.D., 283 Ga. App. 805, 642 S.E.2d 863 (2007) (decided under former O.C.G.A. § 15-11-55).

Given the judicial notice taken by the juvenile judge who entered a prior deprivation finding against a parent's older two children, and the presumption of correctness that attached to those findings, as the pleadings and evidence from those proceedings were not included in the appellate record, sufficient evidence supported the court's deprivation finding involving the parent's youngest child. In the Interest of A.B., 285 Ga. App. 288, 645 S.E.2d 716 (2007) (decided under former O.C.G.A. § 15-11-55).

Adequate care from grandparent does not inhibit deprivation by parent.

- Juvenile court properly focused on the subject parent's abandonment of the child in support of the court's deprivation finding and not on the adequate level of care given by the child's maternal grandparent when making a deprivation finding. Moreover, the state showed that the parent was incapable of caring for any child, let alone a premature infant with special medical needs. In the Interest of A.B., 289 Ga. App. 655, 658 S.E.2d 205 (2008) (decided under former O.C.G.A. § 15-11-55).

Abuse by stepparent resulted in deprivation by parent.

- In a mother's appeal of a juvenile court's declaration that a child was deprived, the juvenile court did not abuse the court's discretion in making that conclusion based on the sexual abuse of the child by the stepfather because the record established by clear and convincing evidence that the mother did not fully appreciate all that had to be done to protect the child and the child was minimizing the abuse and masking the continuing emotional impact of the experience due to psychological pressure from the mother. In the Interest of A. P., 299 Ga. App. 886, 684 S.E.2d 22 (2009) (decided under former O.C.G.A. § 15-11-55).

Finding of parental unfitness is essential to support an adjudication of present deprivation since 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. § 15-11-34).

Circumstances in which custody may be lost.

- Custody may be lost if a child is found to be destitute or suffering, if the child is being reared under immoral influences, or if the child is found to be deprived and likely to be harmed thereby. In re M.M.A., 166 Ga. App. 620, 305 S.E.2d 139 (1983) (decided under former O.C.G.A. § 15-11-34).

Prima-facie right of custodial parent.

- In a contest between the parents, the award of custody by a divorce court vests the custodial parent with a prima facie right. Ordinarily, the trial court should favor the parent having such a right. In re M.M.A., 166 Ga. App. 620, 305 S.E.2d 139 (1983) (decided under former O.C.G.A. § 15-11-34).

Overcoming prima-facie right.

- In order to forfeit the custodial parent's prima-facie right to custody, the court must find either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting the child's welfare. It is a change for the worse in the conditions of the child's present home environment rather than any purported change for the better in the environment of the noncustodial parent that the law contemplates under this theory. In re M.M.A., 166 Ga. App. 620, 305 S.E.2d 139 (1983) (decided under former O.C.G.A. § 15-11-34).

Custody with department following finding of deprivation.

- Record supported the juvenile court's judgment that a parent did not fulfill the terms of a case plan that was established by the Department of Family and Children's Services because the parent continued using cocaine and refused to attend substance abuse treatment; thus, the child was deprived and custody was properly placed in the department. In the Interest of J.L., 269 Ga. App. 226, 603 S.E.2d 742 (2004) (decided under former O.C.G.A. § 15-11-55).

Custody with 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-2301).

Department relieved of responsibility after child removed from its custody.

- Juvenile court ordered the Department of Human Services to exceed its authority when it simultaneously removed the child from the Department's custody and ordered it to continue to make visit's to the child's new home, as pursuant to former O.C.G.A. § 15-11-55(c), placement of the child with the paternal grandfather relived the Department of further responsibility for child. In the Interest of B. K., 326 Ga. App. 56, 755 S.E.2d 863 (2014)(decided under former O.C.G.A. § 15-22-55).

Actions by department not action of district attorney.

- When the Department of Family and Children Services, acting as the legal custodian of a child, declines to permit a pretrial witness interview, that action is not the action of a party to the suit, i.e., the district attorney's office. Pendergrass v. State, 168 Ga. App. 190, 308 S.E.2d 585 (1983) (decided under former O.C.G.A. § 15-11-34).

Habeas relief when no showing of compliance with statute.

- When the parents in their petition seeking return of their children, allege that there had been no hearing as required by former Code 1933, § 24A-1701 (see now O.C.G.A. § 15-11-39), and the record of prior juvenile court proceedings was silent as to whether such a hearing was ever set, continued, or held, and since the hearing requirement of former Code 1933, § 24A-1701 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-2301).

Study of individual need not contain approval of custody award.

- While former O.C.G.A. § 15-11-34 (see now O.C.G.A. § 15-11-211) requires that the court secure a study of the individual by the probation officer or other person or agency designated by the court, and that, having done so, the court found the individual to be qualified to receive and care for the child, that former statute did not condition the court's authority to transfer custody of the child to an individual on the approval of that individual by the person or agency conducting the study. In re R.R.M.R., 169 Ga. App. 373, 312 S.E.2d 832 (1983) (decided under former O.C.G.A. § 15-11-34).

Orders beyond court's authority.

- Since the record contained no support for a finding that three children, ranging in age from nine to 13, suffered any deprivation as a result of their living conditions, it was beyond the court's authority to order that the children be "encouraged to communicate and have contact with neighbors," and it was none of the state's business whether the children were allowed to sleep outside at night, so long as that was what the children were happy doing and no ill effects could be attributed to it. In re D.H., 178 Ga. App. 119, 342 S.E.2d 367 (1986) (decided under former O.C.G.A. § 15-11-34).

Limited restraining order appropriate disposition.

- Since 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. § 15-11-34).

Joint custody not permitted.

- Juvenile court exceeded the court's authority when the court awarded joint legal and physical custody of a deprived child jointly with the Department of Human Resources (DHR) and unrelated third parties since the DHR objected to such arrangement. In re J.N.T., 212 Ga. App. 498, 441 S.E.2d 918 (1994) (decided under former O.C.G.A. § 15-11-34).

Consideration of parent's behavior at hearing.

- Consideration by a juvenile court of a noncustodial parent's behavior in a hearing to determine the need for continuing the temporary suspension of custody does not deprive a noncustodial parent of due process. In re A.S., 185 Ga. App. 11, 363 S.E.2d 325 (1987) (decided under former O.C.G.A. § 15-11-34).

Court not required to follow recommended disposition.

- In a deprivation proceeding, the trial court was authorized to find that a child's deprivation resulted from the mother's unfitness in failing to protect the child from sexual abuse and in refusing to believe the child's allegations against the child's father. Thus, the trial court was not required to follow a recommended disposition that the child be returned to the mother, who had stipulated to the petition in return for a recommendation by the Department of Family and Children Services and the child advocate that the child be returned to the mother. Finally, after refusing to return the child to the mother, the court did not err in not allowing the mother to withdraw the mother's stipulation to the allegations of the petition since there was no indication that the stipulation was conditional on the trial court's acceptance of the parties' proposed disposition or that the stipulation was obtained by fraud or mistake. In re R. J. M., 295 Ga. App. 886, 673 S.E.2d 527 (2009) (decided under former O.C.G.A. § 15-11-55).

Visitation rights of a parent of a child in custody of the Department of Family and Children Services are a residual "parental tie" which is not severed by the mere placement of the child in the temporary custody of the department, without a specific finding as to that right. In re K.B., 188 Ga. App. 199, 372 S.E.2d 476 (1988) (decided under former O.C.G.A. § 15-11-34).

Order requiring compulsory school attendance affirmed.

- In re D.H., 178 Ga. App. 119, 342 S.E.2d 367 (1986) (decided under former O.C.G.A. § 15-11-34).

Reasonable efforts at reunification required.

- Disposition portion of the Juvenile Court's order giving temporary legal custody of the child to relatives failed to comply with the requirements of former O.C.G.A. § 15-11-58 (see now O.C.G.A. §§ 15-11-2,15-11-134, and15-11-201) because the order did not contain the necessary findings about reasonable efforts by any appropriate agencies to reunify a parent with the child and foreclosed any consideration of a plan to provide reunification services. In the Interest of J.W.K., 254 Ga. App. 661, 563 S.E.2d 514 (2002) (decided under former O.C.G.A. § 15-11-55).

Provision for transfer of child to mother not required.

- Juvenile court was not required to include a provision for transfer of a child back to the child's mother after the child was found to be deprived under former O.C.G.A. § 15-11-55(a)(1) (see now O.C.G.A. § 15-11-212) as the child remained in the custody of the father, who lived in another state. In the Interest of K.J., 268 Ga. App. 843, 602 S.E.2d 861 (2004) (decided under former O.C.G.A. § 15-11-55).

Retransfer provision necessary.

- Because an order finding that children adopted by their grandparent were deprived did not contain a provision under former O.C.G.A. § 15-11-55(a)(2) (see now O.C.G.A. § 15-11-212) stating the circumstances under which the children would be returned to the grandparent's care, the case was remanded for the trial court to enter such a provision. In the Interest of T.R., 284 Ga. App. 742, 644 S.E.2d 880 (2007) (decided under former O.C.G.A. § 15-11-55).

Insufficient evidence of deprivation.

- Juvenile court's finding of deprivation was in error because there was no evidence presented at the hearing to support the court's finding. In the court's dispositional order, the juvenile court made no specific factual findings that the child was deprived as to the father, but merely listed reasons as to why the court was declining to transfer custody to the father and stated that the court found the child deprived as to the father due to the child's current needs and welfare, a finding which was not supported by any evidence. In the Interest of L. A., 322 Ga. App. 94, 744 S.E.2d 88 (2013) (decided under former O.C.G.A. § 15-11-55).

Am. Jur. 2d.

- 42 Am. Jur. 2d, Infants, § 50. 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, §§ 7, 53, 68, 116.

C.J.S.

- 43 C.J.S., Infants, § 226 et seq. 67A C.J.S., Parent and Child, §§ 63 et seq., 378 et seq.

U.L.A.

- Uniform Juvenile Court Act (U.L.A.) § 30.

ALR.

- Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights, 80 A.L.R.3d 1141.