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.
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