The relative pros and cons of VR versus termination of rights

April 12, 2017

Surrendering rights or voluntarily relinquishing them, referred to as “VR”, or having them terminated, offers a parent slightly different pros and cons:

  • A surrender is less harmful than a termination, but only just by the slimmest of legal definitions.  The judge still has to accept the surrender and sign a termination order.  Therefore, it can be said that the parent was “terminated.”
  • In a surrender, the parent waives the right to appeal; if a parent loses a termination, she can appeal and there is beginning to exist some very helpful case law on “harm”, “best interests” and even technical, picky language in the TPR order that may be grounds for a reversal or at least a remand back to the trial court.
  • A TPR requires a finding of unfitness, whereas a voluntary surrender has no such finding.
  • A voluntary surrender, though usable against a parent, is no grounds for a later alleged dependency in and of itself as to any later children of the parent.  It can be grounds for an investigation, but not probable cause for dependency.
  • Some say that it rarely makes a difference whether a parent’s rights are terminated or voluntarily surrendered.  Either way, if future children become entangled in DFCS, the fact that the parent no longer has custody of child(ren) that were in care will be used against them.
  • Some say that the only good side to a voluntary surrender is that a parent can use it to try to  secure future contact (whether via letters, pictures, telephone calls, whatever the case may be).  A post-adoption contact agreement would be key to safeguarding such contact.
  • DFCS can use a TPR order as a basis to investigate if the parent gives birth again, but it would need current dependency as to the new child to actually remove and case law makes clear that just because a parent’s rights to another child were terminated does not by itself mean dependency for a later child, particularly if a parent has rehabilitated the causes of removal, dependency and termination of the earlier child.
  • If a later child was found dependent, the code suggests that a voluntary surrender would be deemed “aggravated circumstances” and/or “abandonment” as reasons that DFCS could refuse to propose a reunification case plan to a parent and go straight towards non-reunification and adoption  upon removal of another child because of language pertaining to “any other conduct evidencing an intent to relinquish parental duties”.

Georgia’s New Child Abuse Registry

November 5, 2016

On July 1, 2016, Georgia’s new child abuse registry took effect.  Georgia had a prior child abuse registry, which was known as the Child Protective Services Information System (CPSIS), but it was successfully challenged on constitutional grounds and the statutes pertaining to the old registry were later repealed.

The new child abuse registry presents some significant concerns.  Under the laws pertaining to the new registry, a child protective services (CPS) investigator who determines that there is a “substantiated” case of child abuse or neglect is supposed to notify DFCS within 30 days of making the substantiation determination of the identity of the alleged abuser and the category of the alleged abuse.  Upon receipt by DFCS of the CPS investigator’s report that a case is substantiated, the alleged abuser’s name is automatically entered on the child abuse registry.  Without a hearing.  Note that children as young as 13 can be entered on the child abuse registry as child abusers.

When DFCS receives the notification of the substantiated case, it is supposed to send written notice to the alleged abuser by certified mail and give the alleged abuser notice: (1) of his or her right to a hearing before an administrative law judge (ALJ) to appeal the substantiation determination, (2) of how to obtain such a hearing, and (3) that he or she has a right to be represented by counsel (at his or her own expense).  If the alleged abuser is under 18, he or she is entitled to be represented by his or her parent, legal guardian, private attorney, or, in certain circumstances, by a court-appointed attorney.

Although the alleged abuser is entitled to a hearing if he or she timely requests one in writing, the time frame for doing so is very tight, which is exacerbated by the fact that notice is given by certified mail, and the ability to timely request a hearing hinges on whether DFCS gives the alleged abuser the notification in a timely fashion (if at all).  It is entirely possible that a person is on this registry already without knowing it.

To check if you are on the registry, visit https://gacar.dhs.ga.gov/General/Home and click on “Screening Request”.

Note that because the child abuse registry records are not open to the public, there are misdemeanor penalties for knowingly providing any information from the registry to an unauthorized person or knowingly and under false pretenses obtaining or attempting to obtain information from the registry.

Assuming the alleged abuser gets timely notice from DFCS that he or she has been added to the registry, to obtain a hearing on the substantiation determination, within 10 days of receiving notice of the determination the alleged abuser must file with DFCS a written request for a hearing.  DFCS is then supposed to send the hearing request to the Office of State Administrative hearings (OSAH) within 10 days. The hearing can take place as quickly as 10 days after OSAH sends the alleged abuser written notice (by first class mail) of the hearing date and time.  The hearing can be postponed by mutual consent of the parties and the ALJ or for good cause, including for appointment of counsel for those alleged abusers under 18 whose circumstances qualify them for same.

The OSAH hearing before the ALJ is a full evidentiary hearing.  At the hearing, the ALJ determines whether there is a preponderance of evidence (think 51%) to conclude that the alleged abuser committed an act of child abuse.  If the ALJ finds that the evidence does not meet this standard, an order will be issued to remove the alleged abuser’s name from the registry.

The ALJ’s determination can be appealed to the superior court in the county where the hearing took place (or Fulton County if the hearing was by phone), but the request to appeal it must be filed within 10 days.  There are further levels of appeal.

Minor children listed on the registry are automatically removed when they reach 18.  For a minor to have his or her name removed before he or she turns 18, he or she can request removal either on grounds that more than one year has passed from the date of the incident that resulted in the substantiated case and he or she has not had any further substantiated cases, or by showing by a preponderance of the evidence that he or she has been rehabilitated.  The only way for an adult (over 18 for purposes of the registry) to get his or her name removed from the registry – absent successful due process or other constitutional challenges in court – is to show mistaken identity at an OSAH hearing.

It is critical that persons targeted in an ongoing CPS investigation be aware of this new law and take pro-active information to monitor the CPS investigation to be aware when the substantiation determinations is about to be made and take swift action to protect their interests if the case is substantiated.  All of these events take place before the first child welfare (dependency) hearing takes place in juvenile court.  NOTE that there is no right to court appointed counsel at this stage.

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]

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.

What laws apply to your 18-year-old

April 3, 2012

When your child reaches his or her 18th birthday, he or she is legally emancipated.  This means that she will be treated as an adult under the law, except for laws involving the consumption of alcohol.  Thus, the contracts (including leases) she enters into are valid and binding on her and she can do a number of things without parental consent:  marry, move out of the house, enter the armed forces, obtain an abortion and retain her own wages.  18-year olds are also entitled to change school districts or withdraw from school on their own.   Once they turn 18, they are no longer subject to the state’s child welfare laws and do not have to remain in foster care.  They are also entitled to vote in local, state and federal elections, if they satisfy other criteria such as having a valid state-issued i.d.  However, because they are still considered relatively new drivers, 18-year-olds can still have their driver’s licenses suspended for certain specified convictions (which are the same as  for those under 21) or for accumulating 4 or more points in a twelve-month period.  They are also now eligible age-wise, to apply for a regular Class C driver’s license.

It is illegal for my child’s school to take photographs of her bottom without first advising me or allowing me to be present?

January 5, 2012

No.  Under Georgia law, school teachers, school administrators, school guidance counselors, visiting teachers, school social workers and school psychologists are required to report child abuse under certain circumstances.  See generally O.C.G.A. §19-7-5.  That is, where they have “reasonable cause to believe that a child has been abused”, they must “report or cause reports of that abuse to be made” as set forth in O.C.G.A. §19-7-5.  See O.C.G.A. §19-7-5(c)(1)-(2).  “Child abuse” is defined in relevant part as “[p]hysical injury or death inflicted upon a child by a parent or caretaker thereof by other than accidental means; provided, however, physical forms of discipline may be used as long as there is no physical injury to the child”.  O.C.G.A. §19-7-5(b)(3)(A).  In connection with reporting the suspected child abuse, the statute specifically states:

Photographs of the child’s injuries to be used as documentation in support of allegations by . . .  school officials . . . may be taken without the permission of the child’s parent or guardian.  Such photograph shall be made available as soon as possible to the chief welfare agency providing protective services and to the appropriate policy authority.

 O.C.G.A. §19-7-5(e).