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xavierjd, Lawyer
Category: Family Law
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Experience:  20 yrs exp. in divorce, custody, visitation & support .
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Back in Nov 2012 I had dfacs get called on me (assume by kids

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Back in Nov 2012 I had dfacs get called on me (assume by kids father) with the accusations of drug use since my bf of almost 2 years had some charges or manufacturing back in 2006 but has been clean since. A 30 day case was open and me,my kids, my boyfriend and his mom which lives next door was evaluated and the case was closed with no incidents whatsoever. January 2013 My mother being concerned by information my sister was feeding her because she cant get along with my bf since she never wanted me to leave my kids father calls dfacs and reports again that she felt i was on drugs. Well the case went open and about 3 weeks in we was woke up early by a caseworker and requested a drug test. Me knowing i am clean agree to the test as my bf does the opposite and denies the test since we had just started living together and he didn't feel it had anything to do with him. He told her that if he needed to submit a test for the off chance that I would be dirty he had no problems testing as well. So Im signing all types of papers my caseworker is giving me and i then submit my sample to the drug screen worker and my caseworker calls me over toward the door and is talking to me so I talked back with her while the lady prepared the drug screen to be sent off or whatever and a friend of the familys pulls up and we all see her since we had left the door open while the kids played. So i walk onto the porch to greet my friend and a min later my caseworker comes onto the porch and tells me I pee'd hot meeting I failed but I was not informed of what I failed for or shown any type testing strip showing positive. I did see the drug screen lady put the sample into the specimen bag to ship off though. Now a day or so later the caseworker comes by to set up a state of Georgia In home Impending danger safety plan, Me and my bf followed the plan for everything mentioned and had only one problem. We were set to have a team meeting with dfacs myself and my bf on a wednesday at 3. Honestly it was forgotten and when the lady called at 330 asking where we were and we were 45 mins away we respectably apologized and asked if the meeting could be rescheduled and after a few minutes of hesitation we was told the following week at 1:00. Well we share a vehicle with my bf mom since his mom wrecked her a month or so ago so the following week the dfacs lady shows up about 12:30 and we was not all dressed to go and the lady was trying to makes us all go with her right then and we told her that my bf was leaving then to get the car and be back in time for us to get dressed and she left. About 1:15 she comes back with a few other ladies and we are in the yard talking about having the meeting at our house which was fine and thats when my bf pulled in with our car about 1:20 with a sheriff deputy pulling in behind him. While we are all still in the yard discussing where the meeting would be held inside or out my mother who is attending the meeting along with my sister gets a call that they just found her sister dead so in a panic my mom and sister goes to run off and i am about to have a panic attack while crying hard not know what to do, go with my mom and sis or stay but i stayed and my bf was asking if the meeting could again be put on hold because of the events that just happened and the ladies all agreed and everybody left. Thats afternoon about 6 pm the sheriff deputys and the dfacs lady pulls up and takes both my kids away and rushed them off to foster care and was told nothing or shown any paperwork or left any paperwork explaining anything. That was February 21, 2013. Today is just over 3 weeks since my kids were taken for no reason. I had asked my caseworker 3 separate times when she visited to see my drug test sample saying i failed or any type of paperwork saying i failed at all and was told i would get to see it or she would bring it but i still havent seen it and the 2 i have received since then I have been shown the drug test i took immediately and explained what each mark was and explained each type of drug it tested for and where it was located and each time after i have not failed for meth as i feel i didnt then as well but i have failed for marijuana. They are saying i am going to be mandated outpatient rehad but my caseworked wanted me to admit myself today to an in house rehab for 6 months to a year. Is this right. Can these people take my kids like this and can i get a lawyer to get them back to me asap since we have did nothing wrong for my kids to be away from me
Submitted: 1 year ago.
Category: Family Law
Expert:  Wendy-Mod replied 1 year ago.
Hi, I am a moderator for this topic. I've been working hard to find a Professional to assist you right away, but sometimes finding the right Professional can take a little longer than expected.

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Customer: replied 1 year ago.
Yes please continue. And inform me ASAP. Thanks again.
Customer: replied 1 year ago.
Also, is there still Grandparents rights?
Customer: replied 1 year ago.

Please if it wont be to terribly long

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Thank you for your patience. We will continue the search for a Professional for you.
Customer: replied 1 year ago.

Thanks

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Please be prompt. Since my membership I have not been able to get the important questions I have that led me to get the membership to begin with. What is the issue? Are you just trying to wait until my trial period is over to answer my questions? I have paid my membership

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Wendy
Expert:  xavierjd replied 1 year ago.
Thank you for using JustAnswer.com It will be my pleasure to assist you today.

It sounds like you have been under A LOT of stress. I am sorry for the loss of your sister. You must feel like the whole world is coming down upon you.

Since your children were taken by DFACS, have you appeared in court, or have you been notified of any upcoming court date?
Customer: replied 1 year ago.

There has been no court apperance yet but have been set a court date for April

Expert:  xavierjd replied 1 year ago.
Hi,

Again, I am SO sorry that you are in such a horrible position. Below are the procedures under which a child may be taken from the home, and the procedures that MUST be followed.

The Georgia Juvenile Code allows a law enforcement officer or a duly authorized officer of the court to take a child into custody "if there are reasonable grounds to believe that the child is suffering from illness or injury or is in immediate danger from his or her surroundings and that his or her removal is necessary." O.C.G.A. § 15-11-45(a)(4). A commentator has suggested that a case manager is not authorized by law to remove a child from the home without first obtaining a preliminary protective custody order explained in the next section. Ferreira, McGough's Ga. Juvenile Practice and Procedure (2nd ed.), § 4-10. Furthermore, DFCS policy specifically prevents a caseworker from removing a child from the home without first obtaining a court order.

An informal detention hearing within 72 hours of the child's removal from the home is required when the juvenile court or the court intake officer has not released the child to the custody of his or her parents after removal from the home. If the 72-hour period expires on a Saturday, Sunday, or legal holiday, the hearing must be held on the next day of business which is not a Saturday, Sunday, or legal holiday. O.C.G.A. § 15-11-49(c)(3). The Georgia Supreme Court has interpreted this time frame to be mandatory and if the hearing is not held within 72 hours of the child's removal, the deprivation action should be dismissed without prejudice. Sanchez v. Walker Co. Dept. of Family and Children Services, 237 Ga. 406 (1976). Dismissal "without prejudice" means that the department may refile a deprivation petition if it has reason to believe that the child is abused or neglected. It would seem that a dismissal of a petition would require returning a child to the custody of his/her parent(s). However, given the court's authority to issue preliminary protective custody orders based on allegations contained in a petition, there seems to be nothing to prevent a juvenile court judge from issuing another "pick up" order to again detain the child should the court feel that the situation warrants such action. If a parent fails to make a timely objection during the informal detention hearing that the statutory time limits have not been observed, this objection is effectively waived and cannot be raised on appeal. Irvin v. Department of Human Resources, 159 Ga. App. 101 (1981). While the procedure allows the case to go forward, the delay associated with beginning the process over again is burdensome for the DFCS caseworker and may result in either returning a child into a potentially harmful home environment or extending the time a child will spend in shelter care. Adequate preparation to make sure that both the SAAG and DFCS caseworker are prepared and ready for the informal detention hearing is essential.

 

At the 72-hour hearing, the judge will determine if it is safe to return the child or if the child should be detained until a full hearing can be held to determine whether the child is deprived. The hearing provides the child's parents with judicial review of the actions taken by the juvenile court intake officer. Most juvenile courts have interpreted the 72-hour hearing as the equivalent of a probable cause hearing which uses a standard of proof known as preponderance of the evidence. The petitioner must show evidence to indicate that it is "more likely than not" that the child is deprived. This is a much lower burden of proof on DFCS than will be required at the formal adjudicatory hearing (trial) on the merits of the deprivation petition.

 

 

The person who represents the petitioner in the 72-hour informal detention hearing varies from jurisdiction to jurisdiction. In all other hearings, the petitioner is represented by an attorney. The petitioner is usually the Division of Family and Children Services which is represented by a SAAG (Special Assistant Attorney General). In some counties this is true for the 72-hour hearing as well. However, it is common practice in some jurisdictions to allow a guardian ad litem for the child or even the caseworker him/herself to represent the department's case in this hearing. There is no standard in the Georgia Code or the Uniform Rules of the Juvenile Courts of Georgia endorsing or opposing this practice.

 

The court is required to provide "reasonable notice" of the informal detention hearing either orally or in writing, stating the time, place, and purpose of the hearing to the child and, if they can be found, to his/her parents, guardian, or other custodian. O.C.G.A. § 15-11-49(c)(4). Notice to the parent of the child is mandatory, and failure to do so can result in a dismissal without prejudice. Sanchez v. Walker Co. Dept. of Family and Children Services, 237 Ga. 406 (1976). If a parent is not notified of the hearing because he/she could not be located and did not appear or waive his/her right to appear at this hearing, the parent can file a motion with the court which will require the rehearing of the matter "without unnecessary delay." O.C.G.A. § 15-11-49(d). A parent who has not received notice of the hearing may file an affidavit with the court stating these facts to cause a 72-hour hearing to be reheld. After such a filing, the child shall be released to such a parent unless it appears that the child's detention or shelter care is required under the standards set forth above. O.C.G.A. § 15-11-49(d). This procedure puts additional burdens on the caseworker and causes more delays for the child prior to the adjudication of his/her case.

 

A party is entitled to legal representation at all stages of any proceeding alleging deprivation. If a party is indigent and cannot afford a lawyer, the court will provide that party with counsel. O.C.G.A. § 15-11-6(b). An "indigent person" is defined under the code as one who is "unable without undue financial hardship" to provide for full payment of legal counsel and all other necessary expenses for representation." O.C.G.A. § 15-11-6(a). Prior to the commencement of the informal detention hearing, the judge is required to inform all parties of their right to counsel. O.C.G.A. § 15-11-49(c)(4). The court may continue (postpone) a proceeding so that a party may obtain a lawyer. O.C.G.A. § 15-11-6(b). The court shall at any stage of the proceedings appoint a guardian ad litem to represent the interests of a child who is a the subject of a deprivation proceeding when there is no parent available to represent the interests of the child or when the child's interests conflict with those of the parent. O.C.G.A. § 15-11-9. In interpreting this section of the code, the Attorney General has issued an opinion stating that in deprivation hearings brought between a child and his/her parent or guardian, an inherent conflict of interest develops which requires the appointment of a guardian ad litem. Op. Atty. Gen. 76-131 (1976).

 

The Georgia Court of Appeals has held that all parties to a deprivation proceeding, including the child and his/her parents, should be represented individually. In addition, a parent in a deprivation action cannot waive the child's rights to independent legal counsel. The court held that a deprivation action is one in which the interests of the child and her parents are adverse and that the juvenile court could have appointed a guardian ad litem to protect the interests of the child and should have done so. McBurrough v. Dept. of Human Resources, 150 Ga. App. 130 (1979).

 

So, the children can be taken from you, BUT, ONLY based on the above information. And, YOU ARE ENTITLED TO AN ATTORNEY AT ALL STAGES OF ANY COURT PROCEEDINGS.

 

Your attorney may request ALL evidence that the DFCS has that led to the removal of your children.

 

If the case gets as far as an adjudicatory hearing, you are entitled to introduce evidence and call witnesses on your behalf as well as cross-examine adverse witnesses. O.C.G.A. § 15-11-7(a). Witness testimony involves a process you have probably heard of called direct and cross-examination. In direct examination, an attorney will call a witness to the stand who is favorable to his/her case and ask a series of questions designed to give the judge the necessary information on the case in order to prove and support his/her claim that the child is or is not deprived. The opposing party will then have the opportunity to cross-examine the witness. This involves questioning the witness about his/her professional qualifications and the methods used during an investigation. The purpose of the cross-examination is to attempt to bring a sense of doubt concerning the accuracy or trustworthiness of the witness' testimony. In most of these cases, the child will be represented separately by a guardian ad litem who may be authorized to cross examine the caseworker as well. Many case managers find the cross-examination process difficult. There are helpful hints on preparing to testify in court in the final chapter of this manual.

 

After hearing the evidence, the court shall make and file its findings as to whether the child is a deprived child. The standard of proof in a deprivation case is clear and convincing evidence. O.C.G.A. § 15-11-54(c). This means that the judge must find, based upon the evidence presented, that it is highly probable that the child is deprived. If the court finds that the child is not deprived, it shall dismiss the petition and order the child discharged from any detention or other restriction previously ordered in the proceeding. O.C.G.A. § 15-11-54(a). If the court finds that the child is deprived, the court shall proceed immediately into a dispositional hearing or continue (postpone) such a hearing until another date. O.C.G.A. § 15-11-54(c). Such a continuance to another date within a "reasonable period" of time may be granted in order to receive reports and other evidence bearing on the disposition of the case. O.C.G.A. § 15-11-56(b).

 

So, in conclusion, your children could NOT be removed without a valid legal reason to do so. Further, because you are entitled to be represented by a lawyer, it will be the job of your attorney to go toe to to with the DFCS so that you can get your children back.

 

Best wishes to you.

 

I hope you find this information useful.

 

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD

 

 

xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience: 20 yrs exp. in divorce, custody, visitation & support .
xavierjd and 9 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
If she has not gotten a Lawyer for her court date the 19th of april can she file some sort of paperwork for an extension or would she has to retain a lawyer to file for an extension
Expert:  xavierjd replied 1 year ago.
Hi,

Who do you mean by "she"? Are you speaking about your mother? or someone else?

Thanks

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