TITLE 49 SOCIAL SERVICES

Section 5. Programs and Protection for Children and Youth, 49-5-1 through 49-5-281.

ARTICLE 1 CHILDREN AND YOUTH SERVICES

49-5-7. Development and administration of public child welfare and youth services.

The department is designated the exclusive state agency:
1. For development and administration of a comprehensive state plan and program providing public child welfare and youth services provided for in Title IV, Part B, of the federal Social Security Act;
2. For administering, supervising, and discharging all duties required by any other act of Congress and any amendments thereto that may now or hereafter allot federal funds for public child welfare and youth services coming within the scope of this article;
3. For administering and supervising local administration of public child welfare and youth services provided for in this article; and
4. For receiving and expending on behalf of the state all funds which now or hereafter may become available or allotted to this state by virtue of any appropriation or act of Congress or regulation of the federal government, its agencies, and instrumentalities or be appropriated by the General Assembly for public child welfare and youth services to be administered by the department as provided for in this article. The department is authorized to use so much of funds as may be appropriated by the General Assembly for the purpose of matching federal grants for public child welfare and youth services provided for in this article as may be necessary to secure such grants, derive full advantage to the state of benefits contemplated under the terms of such grants, and comply with the terms of such grants.
County or district departments are designated the local public agencies to administer locally the state plan and program for public child welfare and youth services to be developed in accordance with paragraph (1) of subsection (a) of this Code section and other public child welfare and youth services provided for in this article and shall administer them in accordance with rules and regulations to be established by the board. The department shall aid, assist, supervise, coordinate, and direct the administering of such public child welfare and youth services by county or district departments and enforce the rules and regulations of the board in regard thereto.
The cost of all child welfare benefits and services and the cost of administration thereof, authorized by this article, shall be met from such funds as shall be made available therefor from federal and state appropriations. No county shall hereafter be required to participate in the cost of any child welfare benefit or service or in the cost of administration thereof. For the purpose of this subsection, "cost of administration" means salaries and traveling expenses of the county or district director and other employees of the staff of the county or district department engaged in the performance of child welfare and youth services provided for under this article.
Public child welfare and youth services similar to those to be provided by the department under this article and pursuant to Title IV, Part B, of the federal Social Security Act shall, by cooperative agreement or contract by and between the Department of Human Services and county or district departments of family and children services be made available to recipients of and persons who have been or are likely to become recipients of assistance under the temporary assistance for needy families program provided for in Article 5 of Chapter 4 of this title and related federal laws, to include foster home care and other child care referred to in Section 408 of Title IV of the federal Social Security Act. The department is designated the "state public welfare agency" referred to in Sections 408(a) and (f) and 421 of Title IV of the federal Social Security Act.
The commissioner shall, in developing and administering the state plans and programs referred to in paragraph (1) of subsection (a) and in subsection (d) of this Code section, provide by cooperative agreement and contract where necessary for coordination of such plans and programs with a view toward providing welfare and related services on a comprehensive basis that will best promote the welfare of children and youths and their families and best effectuate and coordinate effective implementation and administration of both such plans and programs at the local level of administration.
Nothing in this article is intended to conflict with any federal law or result in loss of eligibility of the department or any other department of state government to any federal funds. In case such a conflict or loss of federal funds should occur by virtue of enactment of any portion of this article, then such portion of this article in conflict with such federal law or otherwise causing loss of such funds is declared to be of no effect and void. The board is authorized and empowered in such event to take such action as may be necessary and to effect such changes within the department as may be necessary to prevent loss of such funds to the department or any other department of state government affected and to secure to the same the full benefit of the federal laws.

(Ga. L. 1963, p. 81, § 9; Ga. L. 1969, p. 996, §§ 1, 3; Ga. L. 1970, p. 451, § 3; Ga. L. 1972, p. 1251, § 1; Ga. L. 1973, p. 563, § 1; Ga. L. 1974, p. 1455, § 1; Ga. L. 1982, p. 3, § 49; Ga. L. 1985, p. 283, § 1; Ga. L. 1986, p. 277, § 2; Ga. L. 1987, p. 3, § 49; Ga. L. 1992, p. 1983, § 27; Ga. L. 1993, p. 91, § 49; Ga. L. 1997, p. 1021, § 7; Ga. L. 2009, p. 453, § 2-2/HB 228.)

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

U.S. Code.

- Title IV, Part B of the federal Social Security Act, referred to in paragraph (a)(1) and subsection (d) of this Code section, is codified at 42 U.S.C. §§ 620 through 626. Sections 408 and 421 of Title IV of the federal Social Security Act, referred to in subsection (d) of this Code section, are codified at 42 U.S.C. §§ 608 and 621, respectively.

Law reviews.

- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article discussing venue problems in juvenile court practice and suggesting solutions, see 23 Mercer L. Rev. 341 (1972). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997).

JUDICIAL DECISIONS

Applicability of section to convicted felons under 18.

- This section was not intended to exclude probationary sentences for convicted felons under 18 years of age. Lockett v. State, 143 Ga. App. 629, 239 S.E.2d 238 (1977).

Department of Human Resources (now Children and Youth Services) loses the right to custody at age 17, when a juvenile is convicted of a felony in the superior court. W.F. v. State, 144 Ga. App. 523, 241 S.E.2d 631 (1978).

Cited in Mathis v. State, 231 Ga. 401, 202 S.E.2d 73 (1973); Brown v. State, 235 Ga. 353, 219 S.E.2d 419 (1975); Carrindine v. Ricketts, 236 Ga. 283, 223 S.E.2d 627 (1976); Allen v. Ricketts, 236 Ga. 294, 223 S.E.2d 633 (1976); In re R.D., 141 Ga. App. 843, 234 S.E.2d 680 (1977).

OPINIONS OF THE ATTORNEY GENERAL

General Consideration

Payment of travel expenses authorized.

- Inasmuch as the creation of an advisory council was within the scope of Ga. L. 1937, p. 355 (see O.C.G.A. §§ 49-2-1,49-2-7), it follows that the payment of the out-of-pocket travel expenses to enable the council to function efficiently and thus assist in the accomplishment of the department's express statutory duties as set forth in Ga. L. 1963, p. 81, §§ 9 and 24 (see O.C.G.A. §§ 49-2-6 and49-5-7 et seq.) must also be an implied power, such disbursement being incidental to and reasonably necessary to the accomplishment of the department's purpose, duties, and responsibilities. 1963-65 Op. Att'y Gen. p. 320.

Effect on power of superior court.

- Ga. L. 1972, p. 1251, § 11 (see O.C.G.A. § 49-5-7) sets apart a defined class of offenders and directs how those offenders shall be punished for the offense; in doing this, the power of any superior court to try an individual under the age of 17 for any given crime is in no way affected; that section is like, in this respect, Ga. L. 1972, p. 582, § 1 (see O.C.G.A. § 42-5-51) which provides that the commissioner of corrections and not the sentencing court designates the place of confinement of any individual within the court's jurisdiction. 1972 Op. Att'y Gen. No. 72-3.

Legislature dictates manner in which youthful convicts will be punished.

- This section treats individuals who have already been convicted by a court of a particular crime and concerns only the manner in which these particular convicts shall be punished; as to the particular punishment which may be imposed following conviction of a crime, the matter is not within the province of the judiciary, rather the legislature has exclusive jurisdiction in the matter of dictating how crimes shall be punished. 1972 Op. Att'y Gen. No. 72-3.

Parole power of State Board of Pardons and Paroles.

- Within the one-year period from the original date of commitment, the trial court has the authority, under former subparagraph (a)(5)(B) of this section, to modify the court's original sentence, but the State Board of Pardons and Paroles also has the authority, subject to the board's own guidelines, to parole persons incarcerated pursuant to former subparagraph (a)(5)(A) of this section. 1980 Op. Att'y Gen. No. 80-142.

State Board of Pardons and Paroles need not have the concurrence and recommendation of the director of the Division for Children and Youth before the board can consider persons incarcerated under former subparagraph (a)(5)(A) of this section for parole. 1980 Op. Att'y Gen. No. 80-142.

Word "parole" in former subparagraph (a)(5)(B) of this section does not relate to performance by State Board of Pardons and Paroles of the board's duties but rather relates to the modification of the sentence by the committing court so as to "release or parole" those persons incarcerated pursuant to former subparagraph (a)(5)(A) of this section. 1980 Op. Att'y Gen. No. 80-142.

Court Jurisdiction and Responsibilities

Except in the case of capital crimes, juvenile courts generally have exclusive, original jurisdiction of children and may not transfer those children to other courts for criminal proceedings unless the child is 15 or older; a person will not come to the Department of Offender Rehabilitation (now Department of Corrections) under the exceptions of former subparagraph (a)(5)(A) of this section, unless the person is less than 17, and unless the person is at least 13 in the case of a capital crime or is at least 15 in the case of other crimes. 1974 Op. Att'y Gen. No. 74-88.

Commitment to the Department of Offender Rehabilitation (now Department of Corrections) is mandatory if the child is convicted of a capital crime under Ga. L. 1974, p. 1455, § 1 (see O.C.G.A. § 49-5-7); it is a discretionary decision for the court in the other two situations under which Ga. L. 1974, p. 1455, § 1 (see O.C.G.A. §§ 49-5-7 and former49-5-11) authorize commitment to the department. 1974 Op. Att'y Gen. No. 74-88.

Determination of previous adjudications required under section is judicial function.

- Different ages referred to in former subparagraph (a)(5)(A) of Ga. L. 1973, p. 563, § 1 and Ga. L. 1971, p. 709, § 1 (see O.C.G.A. §§ 49-5-7 and15-11-39) are not in conflict with one another, and the determination of previous adjudications required in one aspect of former subparagraph (a)(5)(A) is a judicial function rather than an administrative function. 1974 Op. Att'y Gen. No. 74-88.

Department should notify committing court of court's responsibility for one-year case review.

- Primary responsibility for a one-year case review under this section rests with the committing court; as a practical matter, the Division for Children and Youth (now Department of Children and Youth Services) should notify the committing court of this responsibility. 1970 Op. Att'y Gen. No. 70-65.

Department's Custody and Responsibilities

Custody provision not unconstitutional.

- Former provision in this section providing for the custody of convicted misdemeanants and felons under the age of 17 was not unconstitutional. 1972 Op. Att'y Gen. No. 72-3.

Exclusive state agency for acceptance and incarceration of misdemeanants and noncapital felons under age 17.

- As a general rule, the legislature has designated the Board of Offender Rehabilitation (now Department of Corrections) as the sole agency for the reception and assignment of all convicted misdemeanants and felons. A notable exception to this general provision provides that the Division for Children and Youth (now Department of Children and Youth Services) is designated the exclusive state agency for the acceptance and incarceration of all misdemeanants and felons under the age of 17 years; provided, however, that those felons convicted of a capital felony shall only be sentenced into the custody of the Department of Offender Rehabilitation (now Department of Corrections). 1972 Op. Att'y Gen. No. 72-3.

Responsibility for children convicted of noncapital crimes ends at age 17.

- Department of Human Resources' (now Department of Children and Youth Services') legal responsibility for children under the age of 17 who have been convicted of noncapital crimes ends when the children reach the age of 17 at which time the children must either be released or transferred to the Department of Offender Rehabilitation (now Department of Corrections) in accordance with the court's order. 1974 Op. Att'y Gen. No. 74-139.

Notification of sentencing court prior to child's seventeenth birthday.

- Even if the child is committed to the Department of Human Resources (now Department of Children and Youth Services) before the child's seventeenth birthday, the department cannot confine the child beyond that date and the department's legal responsibility for the child terminates on that day; prior to a committed child's seventeenth birthday the department should notify the sentencing court that a further disposition or a release must be made. 1974 Op. Att'y Gen. No. 74-139.

Transfer of youth to Department of Corrections.

- A 16-year old originally committed to the department may be transferred on the child's seventeenth birthday to the Department of Offender Rehabilitation (now Department of Corrections) by order of the committing court under the provisions of Ga. L. 1972, p. 592, § 1 (see O.C.G.A. Ch. 7, T. 42); the offender's term of custody should be computed from the date of original conviction. 1975 Op. Att'y Gen. No. 75-47.

Effect of criminal sentence imposed subsequent to unexpired commitment order.

- Department of Offender Rehabilitation (now Department of Corrections) properly has custody of an individual under provisions of criminal sentence which was imposed subsequent to unexpired order of commitment; at the expiration of the criminal sentence, alternative arrangements for custody should be made for the remainder of the term of commitment. 1975 Op. Att'y Gen. No. 75-20.

Crimes by children punishable by life imprisonment or death.

- Kidnapping, not being punishable by death or imprisonment for life, is not an offense which requires the offender under 17 years of age to be placed in the sole custody of the Department of Offender Rehabilitation (now Department of Corrections); when the offender under 17 years of age is convicted of kidnapping for ransom or kidnapping in which the victim receives bodily injury, both being offenses punishable by life imprisonment or death, the offender shall be sentenced only into the custody of the Department of Offender Rehabilitation (now Department of Corrections). 1975 Op. Att'y Gen. No. 75-73.

Parole Eligibility

Youth's sentence begins to run when placed under custody of department.

- When custody of a felon 16 years of age is transferred by court order from the department to the Department of Offender Rehabilitation (now Department of Corrections), the sentence begins to run when the youth is placed under the custody of the Department of Human Resources. 1975 Op. Att'y Gen. No. 75-78.

Parole eligibility includes time spent in custody of department.

- Because a sentence begins running from the time of incarceration under the department, the prisoner must serve one-third of the time to which the prisoner has been sentenced, including the time the prisoner has spent in the custody of the department before becoming eligible for parole. 1975 Op. Att'y Gen. No. 75-78.

Good-time computations should not include time spent incarcerated under department.

- Time spent by a felon incarcerated under the department is not to be considered by the Board of Corrections when computing good-time allowances; rather, good-time should be computed from the date the felon is received by an institution under the board's jurisdiction. 1975 Op. Att'y Gen. No. 75-78.

Loss of Civil Rights

Child convicted of crime involving moral turpitude.

- Person convicted of a crime before reaching the age of 17 loses the right to vote if convicted of a crime involving moral turpitude even though the person is committed to the department, rather than sentenced to the Board of Corrections; the right to vote and other civil and political rights, however, may be restored by the Board of Pardons and Paroles. 1975 Op. Att'y Gen. No. 75-17.

Youth loses voting right if crime committed is punishable by imprisonment.

- When a youth has not been imprisoned in a penitentiary but has been committed to the department, the constitutional disqualification of the right to vote attaches if the crime committed is punishable by imprisonment. 1975 Op. Att'y Gen. No. 75-17.

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Welfare Laws, § 8 et seq.

C.J.S.

- 43 C.J.S., Infants, § 8.

ALR.

- Authority of court to order juvenile delinquent incarcerated in adult penal institution, 95 A.L.R.3d 568.

Parent's obligation to support unmarried minor child who refuses to live with parent, 98 A.L.R.3d 334.

Actions under 42 U.S.C.S. § 1983 for violations of Adoption Assistance and Child Welfare Act (42 U.S.C.S. §§ 620 et seq. and 670 et seq.), 93 A.L.R. Fed. 314.

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