Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-2801, pre-2000 Code Section 15-11-42, and pre-2014 Code Section 15-11-40, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.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.

Burden of proof for modification is preponderance of the evidence.

- Trial court erred in requiring a father to prove by clear and convincing proof that changed circumstances warranted modification of an order placing the father's children with their maternal aunts; the father retained an interest in the children, under former O.C.G.A. §§ 15-11-13 and15-11-58(i)(1) (see now O.C.G.A. §§ 15-11-30 and15-11-204), sufficient to support a right to petition for modification, and the father was only required to prove the motion under former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-444 and15-11-608) by a preponderance of the evidence. In re J. N., 302 Ga. App. 631, 691 S.E.2d 396 (2010) (decided under former O.C.G.A. § 15-11-40).

Delinquency adjudication.

- Defendant juvenile's appeal of an order denying a motion to reconsider, vacate, or modify the delinquent adjudication was proper because the denial of the motion was a final judgment and was directly appealable; therefore, the defendant could appeal the ruling on disposition as well as on the original finding of delinquency. An order denying a motion under former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32,15-11-444, and15-11-608) seeking a modification based on changed circumstances in a delinquency matter is a final judgment directly appealable under O.C.G.A. § 5-6-34(a)(1) and former O.C.G.A. § 15-11-3 (see now O.C.G.A. § 15-11-35). In the Interest of J. L. K., 302 Ga. App. 844, 691 S.E.2d 892 (2010) (decided under former O.C.G.A. § 15-11-40).

Modification of a sentencing order was proper since a juvenile had been committed to the Department of Children & Youth Services (DCYS) for a period of detention and treatment but had not been transferred to the physical custody of DCYS but was held in a detention center pending placement in a youth development campus. In re B.D.T., 219 Ga. App. 804, 466 S.E.2d 680 (1996) (decided under former O.C.G.A. § 15-11-42).

Modification was improper.

- Since it was undisputed that after the juvenile court adjudicated the child as delinquent and committed the child to the Department of Juvenile Justice, and the child was placed in the physical custody of the Department, which confined the child for a year, the Department had already taken physical custody of the child and therefore the juvenile court could not subsequently modify the original dispositional order. In the Interest of S.S., 276 Ga. App. 666, 624 S.E.2d 251 (2005) (decided under former O.C.G.A. § 15-11-40).

Claim for commutation or reduction.

- When former O.C.G.A. §§ 15-11-40(b),15-11-63(e)(1)(D) and (e)(2)(c) (see now O.C.G.A. §§ 15-11-32,15-11-444,15-11-602, and15-11-608) were read together to effectuate their meaning as required by O.C.G.A. § 1-3-1(a), the juvenile court did not err in denying a juvenile's motion to commute or reduce the sentence imposed. Allegations that the juvenile was rehabilitated while in restrictive custody and would benefit from being released were insufficient to grant the juvenile court authority to modify the juvenile court's commitment order once physical custody of the juvenile was transferred to the Department of Juvenile Justice. In the Interest of J.V., 282 Ga. App. 319, 638 S.E.2d 757 (2006) (decided under former O.C.G.A. § 15-11-40).

Reduction in sentence not authorized.

- Although former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32,15-11-444, and15-11-608) prohibited the change, modification, or vacation of a commitment order once a child is in the custody of the Department of Juvenile Justice "on the ground that changed circumstances so require in the best interest of the child" or because the child had been rehabilitated, the statute did not prohibit the change, modification, or vacation of a commitment order on other grounds. Further the application of former § 15-11-40(b) did not render former O.C.G.A. § 15-11-63(e)(2)(C) (see now O.C.G.A. § 15-11-602) purposeless in these circumstances when the juvenile based a reduction in sentence on rehabilitation. In re T. H., 298 Ga. App. 536, 680 S.E.2d 569 (2009) (decided under former O.C.G.A. § 15-11-40).

Commitment order could not be changed.

- Defendant moved for early release from a youth development center on grounds that alleged changed circumstances required release in the best interests of the child. The motion was properly denied because under former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32,15-11-444, and15-11-608), once the Georgia Department of Juvenile Justice had physical custody, a commitment order could not be changed on that basis but could be changed on other grounds. In the Interest of J.W., 293 Ga. App. 408, 667 S.E.2d 161 (2008) (decided under former O.C.G.A. § 15-11-40).

Modification of a juvenile commitment order under former O.C.G.A. § 15-11-40(b) (see now O.C.G.A.15-11-32,15-11-444, and15-11-608) on the ground that changed circumstances required modification in the best interest of the child was not available to a minor because the minor was already in the custody of the Department of Juvenile Justice; the fact that the custody was based on the minor's restrictive custody under a different commitment order, and not on the commitment order the minor sought to modify, had no bearing on whether the modification could be made. In the Interest of P.S., 295 Ga. App. 724, 673 S.E.2d 74 (2009) (decided under former O.C.G.A. § 15-11-40).

Although former O.C.G.A. § 15-11-63 (see now O.C.G.A. §§ 15-11-2,15-11-471,15-11-602, and15-11-707) suggested that a juvenile defendant could move for early release from a youth development center after the defendant was already in custody, former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32,15-11-444, and15-11-608) prohibited modification of a commitment order on the grounds of changed circumstances. As a change in circumstances was the basis of the defendant's motion for early release, the juvenile court lacked jurisdiction to grant the motion. In re K.F., 299 Ga. App. 685, 683 S.E.2d 650 (2009) (decided under former O.C.G.A. § 15-11-40).

Contents of motion.

- If the substance of a post-trial motion made no reference to any of the factors which would warrant the vacation or modification of the juvenile court's order, it could not be considered a motion to modify or vacate, thus an appeal could not be taken. In re C.M., 205 Ga. App. 543, 423 S.E.2d 280, cert. denied, 205 Ga. App. 900, 423 S.E.2d 280 (1992) (decided under former O.C.G.A. § 15-11-42).

Evidence insufficient to support finding of delinquency.

- Trial court erred in denying the defendant juvenile's motion to reconsider, vacate, or modify a delinquent adjudication for the offense of simple assault because the evidence was insufficient to support the finding of delinquency since, pursuant to O.C.G.A. § 16-5-20(a)(2), the crime of simple assault required proof that the defendant's actions placed the defendant's grandmother in reasonable apprehension of immediately receiving a violent injury, but the only evidence of that fact was hearsay; a police officer, who was the only witness, testified that the grandmother told the officer that the grandmother was afraid of the defendant, and that the defendant was perhaps going to hit the grandmother, but the officer admitted that there were no allegations that the defendant attempted to hit the grandmother, nor did the officer witness any of the alleged events. In the Interest of J. L. K., 302 Ga. App. 844, 691 S.E.2d 892 (2010) (decided under former O.C.G.A. § 15-11-40).

New disposition was sanction for original offense.

- Although the initial act of bringing a weapon to school was not a designated felony under the statute in effect when a juvenile's probation was revoked, a dispositional order imposed upon revocation of probation related to the original delinquent act because the new disposition was a sanction for the original offense. In the Interest of N.M., 316 Ga. App. 649, 730 S.E.2d 127 (2012) (decided under former O.C.G.A. § 15-11-40).

Modification based on failure to provide interpreter to parents.

- Juvenile court did not abuse its discretion in denying the parents' motion to modify or set aside the termination of parental rights order based on the parents' claim that a language barrier existed at the time of the termination hearing and during critical times in their case because the parents did not assert that the Georgia Department of Family and Children Services should have provided them with an interpreter who spoke their Guatemalan dialect of Mam. In the Interest of A. M., 324 Ga. App. 512, 751 S.E.2d 144 (2013).

Hearing to determine delinquency required prior to revocation of probation.

- In order to revoke a juvenile's probation, a de novo hearing is required to determine whether a delinquent act has been committed and that the child is delinquent. T.S.I. v. State, 139 Ga. App. 775, 229 S.E.2d 553 (1976) (decided under former Code 1933, § 24A-2801).

Juvenile court cannot sua sponte revoke probation and order a disposition as for a "designated felony act" after conducting a hearing on a petition which alleges only delinquency by reason of the commission of an act not within the ambit of former O.C.G.A. § 15-11-37 (see now O.C.G.A. §§ 15-11-2,15-11-471,15-11-602, and15-11-707). Before a juvenile court may revoke an order granting probation, a petition must be filed requesting such relief. In re B.C., 169 Ga. App. 200, 311 S.E.2d 857 (1983) (decided under former O.C.G.A. § 15-11-42).

Burden of proof in revocation proceeding.

- Finding of delinquency through parole violation in a revocation proceeding must be on proof beyond a reasonable doubt. T.S.I. v. State, 139 Ga. App. 775, 229 S.E.2d 553 (1976) (decided under former Code 1933, § 24A-2801).

Slight evidence will not be sufficient to authorize revocation of juvenile's probation. T.S.I. v. State, 139 Ga. App. 775, 229 S.E.2d 553 (1976) (decided under former Code 1933, § 24A-2801).

Juvenile proceeding differs from adult hearing.

- Juvenile revocation of probation proceedings is not analogous to adult probation revocation hearings. T.S.I. v. State, 139 Ga. App. 775, 229 S.E.2d 553 (1976) (decided under former Code 1933, § 24A-2801).

Am. Jur. 2d.

- 42 Am. Jur. 2d, Infants, § 51. 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, § 119.

C.J.S.

- 43 C.J.S., Infants, § 245 et seq.

U.L.A.

- Uniform Juvenile Court Act (U.L.A.) § 37.