Georgia Dependency and Parental Rights Proceedings Explained

Dependency and
Termination of Parental
Rights

Article 3: Dependency
15-11-100: Purpose of this article is -
 Assist and protect children whose physical or mental health and
welfare is substantially at risk of harm from abuse, neglect or
exploitation AND who may be further threatened by the conduct of
others by providing for the resolution of dependency proceedings in
juvenile court.
 Ensure that dependency proceedings are conducted expeditiously to
avoid delays in permanency plans for children.
 Provide the greatest protection as promptly as possible for children.
 Ensure that the health, safety and best interests of a child be the
paramount concern in all dependency proceedings.

Dependency Proceedings: Best Interests
 15-11-26: Whenever a best interests determination is required, the court
shall consider and evaluate all of the factors affecting the best interests
of the child in the context of the child’s age and developmental needs.
 Statute includes list of 20 factors that must be included in
court’s best interests evaluation.

Child Advocacy in Dependency Proceedings
Child’s Attorney
15-11-103: A child shall have right to attorney at all stages of dependency
proceedings.
 Appointment before first court hearing that may substantially affect
child’s interests.
 Representation shall continue in any subsequent appeals unless excused
by court.
 Child’s right to an attorney not waivable.

Child Advocacy in Dependency Proceedings
Guardian ad Litem – Attorney or CASA
15-11-104(a): The court shall appoint a Guardian ad Litem for an alleged
dependent child.
 Best interests evaluation to be made in context of child’s age and
developmental needs.
 15-11-105(b) – 13 factors to be considered when evaluating child’s best
interests.
 For thorough best interests evaluation, evaluate additional factors
described in 15-11-26.
 15-11-105(c) defines minimum duties and responsibilities.

Legal Options Before Removal or Adjudicatory Proceedings
15-11-101(a): Investigator of child abuse and neglect report may apply to court for:
 Physical examination and evaluation of child or other children in home by a physician:
Requires showing of probable cause in an affidavit executed by applicant.
 Psychological or psychiatric examination and evaluation of a child or other children in the
household by psychologist, psychiatrist or licensed mental health professional: Requires
showing of probable cause in an affidavit executed by applicant AND after a hearing.
 Forensic examination and evaluation of a child or other children in the household by
psychologist, psychiatrist or licensed mental health professional: Requires showing of
probable cause in an affidavit executed by applicant AND after a hearing.
 Physical, psychological or psychiatric examination of child’s parent, guardian or legal
custodian: Requires showing of probable cause in an affidavit executed by applicant AND
after a hearing.

Dependency Proceedings: Removal
Statutory language guiding legal basis for removal:
 15-11-1: It is the intent of the General Assembly to preserve and strengthen
family relationships, countenancing the removal of a child from his or her
home only when state intervention is essential to protect such child and
enable him or her to live in security and stability.
 15-11-132(b): Exceptional circumstances
 15-11-132(b): Necessity of child’s removal in order to safeguard child’s
welfare
 15-11-134: Child’s continuation in his or her home is contrary to the child’s
welfare.

Preliminary Protective Hearing
 15-11-102(a) and 15-11-145(a): To be held no later than 72 hours after child
placed in protective custody.
 15-11-145(c) - If no parental notification, parent does not appear or waive
appearance, and files affidavit stating these facts, Preliminary Protective
Hearing held again without unnecessary delay.
 15-11-145(f) – Court shall inform parties of contents of complaint and
nature of proceedings in terms understandable to the parties, as well as
parties’ due process rights.

Petition for Dependency
• 15-11-150: DFCS employee, law enforcement officer or any person who
has actual knowledge or is informed of child abuse, neglect or
abandonment can file Petition for Dependency.
• No requirement in Article 3 for endorsement of Petition for Dependency.
• 15-11-280(b): Petition to terminate parental rights shall be made,
verified and endorsed by the court as provided in Article 3 of this
chapter for a petition alleging dependency.
• Check with your court regarding endorsements of Petitions for
Dependency.

Amendments to Petition for Dependency
 15-11-153(a) – May amend petition at any time to cure defects of form and,
prior to adjudicatory hearing, to include new allegations of facts or
requests for adjudication.
 If petition amended after initial service for anything except curing
defects of form, must serve on parties and provide copy to attorneys of
record.
 15-11-153(c) – Court shall grant parties additional time to prepare only as
may be required to ensure and full and fair hearing.
 If child is in protective custody, adjudicatory hearing shall not be
delayed more than 10 days beyond original date of hearing.

Petition for Dependency: Time Frames
 15-11-102(b) & 15-11-151(b): If child released from foster care at
Preliminary Protective Hearing, petition to be filed within 30 days of
hearing.
 15-11-102(b) & 15-11-181(a): Adjudication hearing held no later than
60 days after filing of petition.
 15-11-102(c), 15-11-145(g) & 15-11-151(a): If child remains in foster care
after Preliminary Protective Hearing, petition to be filed within 5 days of
hearing.
 15-11-102(c) & 15-11-181(a): Adjudication hearing held no later than 10
days after filing of petition.
 15-11-181(a): If adjudicatory hearing not complete within 60 days from
date child placed in protective custody, petition may be dismissed
without prejudice.

Petition for Dependency: Summons & Service
 15-11-160(a): Summons to be served on child 14 years or old, parent, child’s
attorney and child’s GAL, and others as directed by the court.
 15-11-160(d): Child’s right to service of summons not waivable.
 15-11-102(b) & 15-11-161(a): Party is within the state and can be found –
personal service at least 72 hours before adjudicatory hearing.
 15-11-161(b): Party is within the state and cannot be found but address is
known OR party is outside the state and address is known - service by
registered or certified mail or statutory overnight delivery at least 5 days
before adjudicatory hearing.

Petition for Dependency: Service by Publication
 15-11-161(d) - Party cannot be found and address cannot be determined –
service by publication.
 Adjudicatory hearing must be at least 5 days after date of last publication.
 Within 15 days after filing of Order for Service by Publication, clerk’s office
shall mail copies of notice, order for service by publication and petition to
party’s last known address.
 Provisional hearing option the same:
 Party served by publication does not appear at final adjudicatory hearing -
provisional findings become final.
 Party served by publication does appear at final adjudicatory hearing -
provisional findings and order vacated and new adjudicatory hearing held.

Petition for Dependency: Failure to Appear
 15-11-162: If parent is served with Petition for Dependency and willfully
fails to appear, court may order parent to appear to show cause why
parent should not be held in contempt of court.
 If parent fails to appear following service of show cause order, court may
issue bench warrant.
 Following show cause hearing, court may hold person in contempt
under 15-11-31.
 Sanction options include incarceration up to 20 days and fine up to
$1,000.

Dependency Proceedings: Discovery
 15-11-170(a): Upon written request to the party having actual possession of
material to be produced, any party shall have full access to the following:
 Names & telephone numbers of each witness likely to be called to testify
 Copy of any formal written statement made by child or any witness that party
intends to call as witness
 Scientific or other report
 Drug screen of child or parent
 Case plan for child or parent
 Visitation schedule related to child
 Photographs and any physical evidence intended to be introduced at hearing
 Copies of any relevant law enforcement incident reports
 Any other relevant evidence not requiring consent or court order.

 15-11-170(b): Upon presentation of court order or written consent from
appropriate person permitting access to the party having actual possession
of material to be produced, any party shall have full access to following:
 Psychological, developmental & physical assessments of child or parent
 Child’s school records
 Child’s medical records
 Transcripts, recordings and summaries of any oral statement made by
child or any witness
 Family team meeting or multi-disciplinary team meeting report
 Supplemental law enforcement reports
 Immigration records concerning child

Dependency Proceedings: Reciprocal Discovery
 15-11-170(c): Any party requesting discovery under 15-11-170(a) or (b) has
obligation of reciprocal discovery. Must promptly make the following
available:
 Names and contact information for each witness that forms basis of
party’s defense or claim
 Scientific or other report
 Photographs and any physical evidence
 Copy of any written statement made by any witness that party intends
to call as witness at the hearing

Court Order for Discovery
 If request for discovery or consent for release is refused – motion for court order
granting discovery.
 Certification - request for discovery or request for consent for release was made
and refused. Good faith efforts made to resolve.
 Court may set conditions on discovery response IF party from whom discovery is
sought makes sufficient showing that disclosure of information would:
 Jeopardize safety of party, witness or confidential informant
 Create substantial threat of physical or economic harm to a witness or other
person
 Endanger existence of physical evidence
 Disclose privileged information
 Impede criminal prosecution
 Reciprocal discovery requirement

Dependency Proceedings: Discovery Time Frames
 Requests for discovery and reciprocal discovery must be complied with
promptly and no later than:
 5 days after request is received OR
 72 hours prior to any hearing, except when later compliance is made
necessary by timing of the request.
 If discovery request is made less than 48 hours prior to adjudicatory
hearing, discovery response shall be produced in a timely manner.
 Continuing duty to produce discovery.

 15-11-170(f): Child who is subject of dependency case shall not be deposed
unless court orders deposition, under such conditions as court may order.
 Court must find child’s deposition would further purposes of 15-11-170.
 Court has discretion to order disclosure of any information the court deems
necessary for proper adjudication.
 15-11-170(g): If party fails to comply with order for discovery, court may:
 Grant a continuance request;
 Prohibit party from introducing into evidence the information not
disclosed; or
 Enter such other order as the court deems just under circumstances.
 15-11-170(i): Any produced discovery can only be used during dependency
case – may not be given to anyone else.

Adjudicatory Hearing
 15-11-180: Standard of proof and burden of proof – same as current law
 15-11-181(d): Adjudicatory hearing shall be conducted in accordance with
Georgia’s Evidence Code.
 Relevant testimony or evidence may not be excluded on any ground of
privilege except:
 Attorney-client privilege, and
 Communications between priest/rabbi/duly ordained minister and
confidential communicant.
 15-11-181(h): If court adjudicates child as dependent child, court must make a
finding whether dependency is result of substance abuse by the parent.

Dependency Proceedings: Continuances
 15-11-110(a): Upon request of attorney for a party, court may continue hearing
beyond statutory time frames.
 No continuance if contrary to child’s best interests.
 In evaluating child’s best interests, court shall give substantial weight to:
 Child’s need for prompt resolution of custody status.
 Need to provide child with stable environment, and
 Damage to child from prolonged temporary placements.
 15-11-110(b): Showing of good cause required for continuance. Must have
evidentiary finding on the record.
 No continuances for:
 Need for discovery,
 Convenience of the parties, and
 Other pending matters except as required by attorney conflict rules.

Dependency Proceedings: Reasonable Efforts
 15-11-202(b): Child’s health and safety is of paramount concern in
determination regarding appropriateness of reasonable efforts.
 15-11-202(f): Court shall consider whether services were:
 Relevant to safety and protection of child,
 Adequate to meet needs of child and family,
 Culturally and linguistically appropriate,
 Available and accessible,
 Consistent and timely, and
 Realistic under the circumstances.
 15-11-202(g): Finding of no reasonable efforts shall not preclude court’s
issuance of order regarding child’s placement where court finds placement is
necessary for protection of child.

Dispositional Issues: Visitation
 15-11-2(75): Period of access to a child by parent, guardian, legal custodian,
sibling or other relative OR any person who has demonstrated an ongoing
commitment to child in order to maintain parental and familial involvement
in child’s life when he or she is not residing with such person.
 15-11-112(a): When a child removed from home, court shall order reasonable
visitation that is consistent with child’s age and developmental needs if court
finds visitation in child’s best interests.
 15-11-112(b): Presumption of unsupervised visitation unless unsupervised
visitation not in child’s best interests.
 15-11-112(c): Within 30 days of court finding parent has not made substantial
progress towards completion of case plan, court shall review terms of
visitation and determine whether terms should be modified.

Dispositional Issues: Case Plans
 15-11-201: Case plan designed to achieve placement in most appropriate, least restrictive
and most family-like setting available –
 In close proximity to parents’ homes;
 In proximity to school in which child enrolled at time of placement; and
 Consistent with best interests and special needs of child.
 Case plan to include –
 Assessment of child’s and family’s strengths and needs, and type of placement best
equipped to meet those needs.
 Discussion of safety and appropriateness of placement.
 Time-limited goals and date the time-limited services will be terminated.
 Visitation schedule with siblings and appropriate relatives.
 When placement is out-of-state or a substantial distance from parent’s home, reasons
why placement is most appropriate and in child’s best interests.
 If child placed out-of-state, case plan to document compliance with ICPC and rationale
for out-of-state placement.

Permanency Plan versus Permanent Placement
 15-11-2(53): Permanency plan – specific written plan prepared by DFCS
designed to ensure that a child is reunified with his or her family or ensure
that such child quickly attains a substitute long-term home when return to
child’s family is not possible or is not in child’s best interests.
 15-11-2(54): Permanent placement means –
 Return of the legal custody of a child to his or her parent;
 Placement of a child with an adoptive parent pursuant to a final order of
adoption; or
 Placement of a child with a permanent guardian.
 15-11-201(b)(14) and 15-11-232(c) – APPLA is permissible permanency plan.
Document compelling reason why TPR is not in child’s best interests.
 15-11-233(b)(2): Compelling reasons

Non-Reunification Procedural Issues
 15-11-204(d): DFCS has burden of demonstrating reunification not
appropriate considering child’s health, safety and need for permanence.
 Presumption that reunification is detrimental to child and reunification
services should not be provided if court finds:
 Parent unjustifiably failed to comply with court-ordered reunification case
plan;
 Child removed at least twice previously and reunification services
provided on two prior cases;
 Ground exists for TPR; or
 Any of circumstances described in 15-11-203.

Disposition Hearing
• 15-11-102 and 15-11-210(a): Hearing must be held and completed within 30
days after conclusion of adjudicatory hearing.
• 15-11-210(b): Court may consider any evidence relevant, reliable and
necessary to determine child’s needs and most appropriate disposition.
• During hearing, court must receive into evidence:
• Social study report, if one,
• DFCS case plan – filed with court at least 48 hours before disposition
hearing,
• GAL’s report,
• Any psychological, medical developmental or educational evaluation of
child, and
• Any other relevant or material evidence.

Disposition Hearing: Findings of Fact
15-11-213: Court must consider -
 Why child’s bests interests and safety are served by disposition and case plan:
 Interaction of child and family,
 Child’s adjustment to home, school and community,
 Mental and physical health of all persons involved,
 Child’s wishes regarding placement,
 Parent’s wishes regarding child’s custody,
 Existence of relative or other individual qualified to care for child, and
 Parent’s ability to care for child in parent’s home without harm to child.
 Availability of services referenced in case plan
 Alternative dispositions or services - why not appropriate in this case?
 Appropriateness of placement, and
 Reasonable efforts assessment

Disposition Hearing: Court Order Options
o 15-11-212: Any one or combination of the following orders of disposition:
o All options under current law;
o Order child and parent to participate in counseling designed to assist in
deterring future conditions of dependency;
o Order parent to participate in educational or counseling program
designed to improve ability to provide proper parental care and control
and supervision of child – including parenting classes; and
o If child in protective custody in part due to parental substance abuse,
order return to parent’s custody only if parent participates in substance
abuse treatment and provides at least 6 consecutive months of clean
random drug screens.

Disposition Issues
 15-11-214(a): Order of disposition shall continue in force until the
purposes of the order have been accomplished.
 No longer a need for extensions and second deprivation hearings.
 15-11-214(b): Following motion by party or on sua sponte basis, court
may terminate order of disposition if it appears purposes of the order
have been accomplished.
 15-11-210(f): At conclusion of the disposition hearing, court must set
the dates and times for the first review hearing and for the permanency
plan hearing.

Review Hearings: Time Frames
15-11-102(d) and 15-11-216(a):
 Initial review hearing – within 75 days after child’s removal from home.
 Subsequent review within 4 months of initial review hearing.
 Court has discretion to schedule any subsequent review hearings as
necessary.

Review Hearings: Notice
15-11-108: Court shall provide to all parties written notice of date,
time, place and purpose of post-adjudication hearings.
 Written notice shall be delivered to the recipient at least 72
hours before the hearing by U.S. mail, email or hand
delivery.
15-11-109: DFCS must notify the foster placement of every hearing.
 Written notice shall be delivered to the recipient at least 72
hours before the hearing by U.S. mail, email or hand
delivery.

Review Hearings: Findings of Fact
**Paramount concern at any review hearing is the child’s health and safety.
15-11-218: Court shall issues written findings of fact that include:
 Whether child continues to be a dependent child;
 Whether existing case plan is still best case plan for child and family and whether
any changes should be made;
 Extent of case plan compliance by all parties;
 Basis for any changes to child’s placement;
 Whether visitation is and continues to be appropriate;
 Progress being made on the permanency plan;
 Whether all legally required services are being provided to child, child’s foster
parents and parents;
 Independent living services for child 14 years or older; and
 Reasonable efforts assessment.

Review Hearings: Order Options
 15-11-218(b)(4): If court determines DFCS failed to implement any
material provision of the case plan or abused its discretion in the
placement or proposed placement of the child, court may make
additional orders regarding the treatment plan or placement of the
child to protect child’s best interests.
 15-11-216(d): At any review subsequent to the initial review, if the court
finds the parent has failed to make substantial progress towards
completion of the case plan, court shall order DFCS to develop
concurrent case plan or case plan with non-reunification permanency
plan.

Permanency Plan Hearings: Time Frames
15-11-102(e) and 15-11-230(b):
 If DFCS files motion for non-reunification, hearing within 30 days of
filing of motion.
 For children under 7 years old on filing date of Petition for Dependency
– hearing no later than 9 months after date child entered foster care Or
NR time line above, whichever comes first.
 For children 7 years or older on filing date of Petition for Dependency –
hearing no later than 12 months after date child entered foster care Or
NR time line above, whichever comes first.
Thereafter, hearing every 6 months while child in DFCS custody. Can be
more frequent as deemed necessary by court.

Permanency Plan Hearings
15-11-230(a): Purpose - for court to determine future permanent legal
status of child in DFCS custody.
15-11-230(d): All parties must be given written notice of hearing at least 5
days in advance of hearing.
15-11-231: At least 5 days before hearing, DFCS must file with court a
report recommending permanency plan.
15-11-230(e): Court must consult with child in age-appropriate manner
regarding proposed permanency plan.
Findings of Facts and Conclusions of Law – similar to current law

Statutory Guidance for When Not to File for TPR
15-11-233(b) : Circumstances pursuant to which TPR not in child’s best
interests, including examples of compelling reasons -
 Parent successfully participating in reunification services;
 Another permanency plan better suited to meet child’s health and safety
needs;
 Child is living with relative who is unwilling or unable to adopt, but who is
willing to provide stable and permanent home for child AND removal from
relative’s physical custody would be detrimental to child’s emotional well-being.
 Court determined that DFCS did not make reasonable efforts under
reunification permanency plan.
 Child is unaccompanied refugee or there are international legal obligations
or foreign policy reasons that preclude TPR.

Article 4: Termination of Parental Rights
15-11-260: Purpose of this article is -
 Protect dependent child from parent who is unwilling or unable to provide safety
and care adequate to meet child’s needs.
 Eliminate need for dependent child to wait unreasonable periods of time for parent
to correct conditions which prevent child’s return to family.
 Ensure continuing needs of dependent child for proper physical, mental and
emotional growth and development are decisive considerations in all proceedings.
 Ensure constitutional rights of all parties are recognized and enforced in all TPR
proceedings, while ensuring child’s fundamental needs are not subjugated to
interests of others.
 Encourage stability in dependent child’s life by ensuring all proceedings are
conducted expeditiously to avoid delays in resolving status of parent and in
achieving permanency for child.

Child Advocacy in TPR Proceedings
Child’s Attorney
15-11-262: A child shall have right to attorney at all stages of TPR proceedings.
 Appointment before first court hearing that may substantially affect child’s
interests.
 Representation shall continue in any subsequent appeals unless excused by
court.
 Child’s right to an attorney not waivable.
Guardian ad Litem
 15-11-262(d): court may appoint GAL for child in TPR proceeding at request of
child’s attorney or on sua sponte basis.
 GAL may be same person as child’s attorney unless conflict.
 GAL has same role as defined under Article 3.

TPR Proceedings Issues
 15-11-263: Court may order dependent child or parent to participate in
physical or mental evaluation. Moving party to pay cost unless cost
apportioned by court.
 15-11-270: Jurisdiction and transfer rules – same as current law.
 15-11-280: Petition requirements similar to those under Dependency
Article.
 15-11-264: Discovery rules same as under Dependency Article.
 15-11-265: Once TPR petition has been filed, parent shall thereafter be
without authority to execute an act of surrender or otherwise to affect
custody of his or her child except parent may:
 Execute act of surrender in favor of DFCS, and
 Consent to judgment terminating parental rights.

TPR Proceedings: Summons and Service
 While Summons must issue and be served upon child 14 years or older, as
well as child’s attorney and child’s GAL in dependency proceedings, 15-11-
281 requires that Summons must issue and be served upon child’s attorney
and child’s GAL, if any, in TPR proceedings.
 15-11-281(b): Court shall direct notice and copy of TPR petition be
provided to child 14 years or older. Not waivable by child or child’s
representative.
 Service – same time frames as current law.
 15-11-285: If parent is served with Petition for Termination of Parental
Rights and fails to appear without reasonable cause, court may order parent
to appear to show cause why parent should not be held in contempt of court.

TPR Proceedings: Biological Fathers
15-11-283(a): Biological father entitled to be served if:
• Paternity previously established in judicial proceeding;
• Identity known to petitioner or petitioner’s attorney;
• Registrant on Putative Father Registry and has acknowledged paternity of
child;
• Registrant on Putative Father Registry and has indicated possible paternity
of child; or
• Lived with child, contributed to child’s support, made attempt to legitimate
or provided support or medical care for mother during pregnancy or
hospitalization for birth of child.
15-11-283(d): If identity of biological father is unknown and none of the above
applies, then rebuttably presumed biological father not entitled to notice. If not
rebutted, court may enter order terminating biological father’s rights.

TPR Proceedings: Time Frames
15-11-301:
 If no just cause shown for delay, all TPR proceedings shall be
conducted within 90 days of date TPR petition is filed.
 If no just cause shown for delay, order of disposition shall be issued
no later than 30 days after the conclusion of the hearing on the TPR
petition.
 Failure to comply with the time requirements of 15-11-301 shall not be
grounds to invalidate an otherwise proper order terminating parental
rights unless court determines delay resulted in substantial prejudice
to a party.

Without Proper Parental Care and Control
Similar to current law, except:
 15-11-311(b): In determining whether a child who is not in parent’s
custody is without proper parental care and control, the court shall
consider whether such parent, without justifiable cause, has failed
significantly for a period of six months prior to date of the termination
hearing:
 To develop and maintain parental bond with child in a meaningful
and supportive manner;
 Provide for care and support of child as required by law or judicial
decree; and
 To comply with court ordered plan designed to reunite parent and
child.

Impact of TPR Order
15-11-261:
 Parent has ongoing child support obligation until adoption finalized.
 Child’s right to inherit continues until adoption finalized.
 Child’s right to pursue civil action against parent not impacted.
 Relationship between child and siblings continues until adoption
finalized.
 Until adoption finalized, relatives continue to be considered as such for
purposes of placement and permanency plan.

Reinstatement of Parental Rights: Right of the Child
 15-11-323(a): A child who has not been adopted after passage of at least 3
years from date of TPR or date of voluntary surrender of parental rights to
DFCS and for whom court determined adoption is not permanency plan
may petition court to reinstate parental rights.
 15-11-323(b): Former parent and foster parents are not parties, but have
right to be heard at hearing on child’s petition for reinstatement.
 Child’s petition shall be dismissed if parent cannot be located or parent
objects to reinstatement.

Reinstatement of Parental Rights
 15-11-323(e): Reinstatement shall be a recognition that situation of parent and child
has changed since the time of the TPR - reunification is now appropriate.
 15-11-323(c): Court shall grant child’s petition for reinstatement if court finds by clear
and convincing evidence that child is no longer likely to be adopted and reinstatement
is in child’s best interests. Evaluation of best interests shall include:
 Whether parent is fit parent and has remedied parental deficits;
 Age and maturity of child and ability of child to express his or her preference;
 Whether reinstatement will present risk to child’s health, welfare or safety; and
 Other material changes in circumstances, if any, that may have occurred which
warrant granting the reinstatement petition.
 15-11-323(f): Reinstatement code section is intended to be retroactive – applies to any
child under the jurisdiction of the court at the time of the reinstatement hearing
regardless of the date parental rights were terminated.

Stephany L. Zaic
Williams & Zaic, LLC
Telephone: 706-244-4323
Email: ngacwls@gmail.com

Georgia Dependency and Parental Rights Proceedings Explained

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