Removal of a Child for Alleged Abuse Under the New Juvenile Code

April 6, 2014

Child Welfare Law Under the New Juvenile Code

Under the new juvenile code which became effective on January 1, 2014, “abuse” is defined under child welfare law (or, “dependency”, and formerly known as “deprivation”) as (1) any non-accidental physical injury to a child; (2) any physical injury to a child which is inconsistent with the explanation given for it by the caregiver; (3) emotional abuse of a child (as defined); (4) sexual abuse or sexual exploitation of a child (as defined); (5) prenatal abuse (as defined); or (6) committing an act of “family violence” defined under OCGA 19-13-1 (see below) in the child’s presence (including within the child’s range of vision or hearing).

  • “Emotional abuse” means the caregiver’s acts or failures to act that (1) cause any mental injury to the child’s intellectual or psychological capacity shown by an observable and significant impairment in such child’s ability to function within a child’s normal range of performance and behavior; or (2) create a substantial risk of impairment.  In both instances, the “observable and significant impairment” or “substantial risk of impairment” must be diagnosed and confirmed by a licensed mental health professional or physician qualified to render such diagnosis.
  • “Prenatal abuse” means exposure to chronic or severe use of alcohol or unlawful use of any controlled substance which use results in either withdrawal symptoms in a newborn, the presence of a controlled substance in the newborn’s body, blood, urine or stool or medically diagnosed and harmful effects in a newborn’s physical appearance or functioning.
  •  “Sexual abuse” means a caregiver employing, using, persuading, inducing, enticing, or coercing any child to engage in any act which involves sexual intercourse, bestiality, masturbation, lewd exhibition, flagellation, being fettered, bound or restrained while nude, physical contact in an act of apparent sexual stimulation/gratification, defecation or urination for the purpose of sexual stimulation or vaginal or anal penetration outside a recognized medical procedure by a licensed health care professional.
  •  “Sexual exploitation” means conduct by a caregiver who allows, permits, encourages, or requires a child to engage in prostitution (commercial child sexual exploitation) or sexually explicit conduct for the purpose of producing any visual or print medium depicting same.

Under the new juvenile code, a child may also be removed from his or her home for alleged neglect.

Civil Family Violence

Under Georgia’s civil family law, “family violence” is defined as any felony or any battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass between past/present spouses, parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children or other persons (including siblings) living or formerly living in the same household, but does not include “reasonable discipline” of a child by a parent in the form of corporal punishment, restraint or detention.   OCGA §19-13-1.

Mandatory Reporting of Suspected Child Abuse

Under Georgia’s newly-expanded mandatory reporter law, which took effect January 1, 2014, doctors, dentists, nurses, school teachers, law enforcement, child welfare workers and other specific groups of people, including those who are employed by or volunteer in a “child service organization” (which includes volunteer coaches, daycares, scout programs, etc.), must report suspected child abuse or cause a report of such suspected abuse to be made, or face a misdemeanor penalty if he or she knowingly and willfully fails to do so.  The trigger for the mandatory reporting of suspected child abuse is when the mandatory report has “reasonable cause to believe that a child has been abused”.  The statute defines “child abuse” as (1) physical injury or death inflicted by a parent or caretaker other than accidental means; (2) neglect or exploitation by a parent or caretaker; (3) sexual abuse of a child (further defined in detail) by a parent or caretaker; or (4) sexual exploitation of a child by anyone.

The mandatory reporter statute carves out an exception to “child abuse” for “physical forms of discipline” so long as those forms of discipline do not cause a physical injury to the child.

“Cruelty to Children”

OCGA §16-5-70 describes cruelty to children (“CTC”) offenses under Georgia’s criminal law.  A person commits CTC in the first degree when he or she (1) is a parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 who willfully deprives the child of necessary sustenance to the extent that the child’s health or well-being is jeopardized or (2) maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.  CTC in the first degree carries a sentence of between 5 and 20 years in prison.  A person commits CTC in the second degree when he or she with criminal negligence causes a child under 18 cruel or excessive physical or mental pain and can be punished with one to ten years in prison.  A person commits CTC in the third degree when he or she is the primary aggressor and (1) intentionally allows a child under the age of 18 to witness the commission of a forcible felony, battery, or family violence battery; or (2) having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery.  The first and second conviction of CTC in the third degree carries misdemeanor penalties; the third such conviction is treated as a felony, and requires both the imposition of a fine of between $1,000-$5,000 and prison time of between one and three years.  There is no corporal punishment exception to CTC like there is with the offenses of simple assault, simple battery and battery. However, the affirmative defense of justification under OCGA 16-3-20(3) may apply under a theory of parental discipline, and the parent’s application of force on the child will be legally justified when the parent’s conduct in disciplining the child is reasonable.