The Department of Family & Children Services (DFCS) just took my children. Now what?

November 5, 2016

Under current Georgia law, parents facing allegations of abuse or neglect of their children and who are income-eligible are entitled to an appointed attorney to defend and represent them in all court proceedings that take place in the relevant juvenile court.  They are entitled to an appointed attorney because of due process protections involving their constitutional “liberty interest” in raising their children without state interference.  Birth moms, biological fathers (also called “putative fathers”), as well as “legal fathers” (who were married to the birth mom at the time of the child’s birth or have taken formal steps to make the relationship with their child legally recognized by the law), and other legal custodians are all entitled to the services of an appointed attorney if they qualify under income guidelines.

These court-involved DFCS cases are typically referred to as “child welfare” or “dependency” proceedings.  To obtain the services of an appointed attorney in a court-involved DFCS proceeding, parents/guardians should either request one on their own, or inquire with the juvenile court how to request or apply for one.  It is important that income-eligible parents/guardians have an appointed attorney at ALL stages of a juvenile court child welfare proceeding, even at what is currently referred to as the “probable hearing”, “preliminary protective hearing” or “72 hour hearing” to protect their interests.  DFCS will have an attorney at all stages of the proceeding, and the child or children in question will also have either a “Child Advocate Attorney” who serves two roles (attorney and GAL), a client-directed child attorney plus either a “Guardian ad litem” (GAL) or a “Court Appointed Special Advocate” (CASA) to represent their best interests at all court proceedings.  Having a parent attorney at all stages of the proceeding helps keep the playing field more level.  In many metro counties in Georgia, each parent will be appointed a separate attorney, even if the parents are married to each other, living together and raising the child in question together.

The 72-hour hearing is the first hearing in a new child welfare proceeding and it’s at this time that the court determines whether there is probable cause (or reasonable grounds) to believe that there may be problems with the family or in the home that might make the child unsafe to himself or others if he returns home. The court also makes a determination of whether returning the child to the home would be contrary to the child’s welfare and whether DFCS made reasonable efforts to prevent the child’s removal in the first place.  If DFCS meets its burden of showing probable cause at the 72-hour hearing, the child will remain in foster care until a full evidentiary hearing can be held, which is required by statute to take place within 10 or 60 days of the dependency petition being filed, depending on whether the child has been removed from the home and placed in foster care or is not in foster care.  Often, these evidentiary hearings do not take place that quickly, and there are advantages and disadvantages to “waiving time limits” for them.

[Original post under old juvenile code; updated for new juvenile code which took effect January 1, 2014]