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.

Do I have to tell my parents if I want an abortion?

March 14, 2013

Yes and No.  In a nutshell, it depends on whether they are in agreement and you bring them to your abortion appointment, or if they are properly given “parental notification” in advance of your abortion, or if you bypass the consent and notification options and proceed with a request to a juvenile court for a waiver of any notice, or if you have a medical emergency that requires an immediate abortion.

If you are under 18 years of age and “unemancipated”, Georgia’s parental notification of abortion statutes will apply.   Under the relatively new juvenile code effective January 1, 2014, these are found at O.C.G.A. §§ 15-11-680 through 15-11-688.   “Unemancipated” in this instance means that you are under 18, are not married or have not been married and are under  the care, custody and control of your parent(s), guardian or the juvenile court.  While the statutes deal with the type of notice that your abortion provider must give your parent, they obviously impact your choices.

Here is how the statutes work:

  • You must either be accompanied by your parent/guardian to the abortion; OR
  • Your doctor’s office has to give 24 hours’ advance phone notification to your parent or guardian of the time & place of the abortion; OR
  • Your doctor’s office has to give advance notice to your parent or guardian of the time & place of the abortion by certified mail, return receipt requested, to their usual residence, and, unless you can establish delivery was sooner than 48 hours after mailing, then you have to wait those 48 hours and another 24 hours before you can have an abortion.

There are exceptions:

  1. A medical emergency exists that so complicates your health condition that an immediate abortion is required; OR
  2. If your doctor’s office phones your parent/guardian and s/he says that s/he has been previously informed that you were seeking an abortion OR that s/he does not wish to consult with you about having an abortion, then you can have an abortion without any further delays than usual (see below); OR
  3. If your doctor’s office sends the certified mail parental notification and your parent/guardian certifies in writing that s/he has been previously informed that you were seeking an abortion OR that s/he does not wish to consult with you about having an abortion, then you can have an abortion without any further delays than usual (*see below); OR
  4. You can petition the juvenile court on your own or by “next friend” for a waiver of the parental notification and you will have to show that you are mature enough and well enough informed to make the abortion decision in consultation with your doctor, independently of your parent/guardian’s wishes OR that notice to your parent/guardian would not be in your best interests.  Under the waiver option, the juvenile court is supposed to help you or your “next friend” with the paperwork, you are entitled to court-appointed counsel at no cost and you are allowed to file your petition in the juvenile court in any county in Georgia and you do not have to be a Georgia resident so long as you are present in Georgia when you file it.

A hearing on your petition for a waiver of the notice provisions must take place within three days of filing, not counting Saturdays, Sundays or holidays, and if the court doesn’t hear your petition within this time frame, your petition is considered granted, and you can get an abortion without any further delays than usual (*see below).   Also, if the court hears your petition but fails to issue a ruling within 24 hours of the hearing, your petition is considered granted and you can get an abortion without any further delays than usual (*see below).  Appeals are given fast-track (“expedited”) treatment, and it may be possible for you to file a new petition in a more sympathetic county if you are denied a waiver by the first juvenile court.

Violating the parental notification statutes is a misdemeanor, and this includes encouraging someone to provide false information – so, you cannot bring a sympathetic adult as your “parent or guardian” without both of you risking misdemeanor convictions.

*Once you clear these parental notification/waiver hurdles, then you will just be treated like any adult female who wishes to have an abortion in Georgia.  This will include having to listen to a doctor tell you how old the fetus likely is,  the medical risks to you of carrying the fetus to full term, the medical risks to you of getting an abortion, and to a recording of your doctor tell you that you might be able to get free prenatal, delivery and neonatal care, that the father of the child would be required to pay child support, that there are places where you can get a free ultrasound, and that you have the right to review certain materials on a state website which includes information about fetal pain; in addition, if you are given an ultrasound you must be offered the opportunity to view the sonogram and listen to fetal heartbeat.

What you should know about the law and your 17-year-old

April 3, 2012

When your child turns 17, she can obtain a class D driver’s license without having taken or passed driver’s ed.  She must have a valid instruction permit which is not under suspension and have not been convicted of specified violations in the previous 12 months prior to applying for the license.  She is also now considered an “adult” for criminal purposes.  She cannot vote or withdraw herself from school or change school districts without the consent of her parent/legal guardian.

A word about school and driver’s licenses:  if a child less than 18 years of age withdraws from school without being home-schooled or enrolled in a GED program or having earned a high school diploma or equivalent, she will not be able to obtain a learner’s permit or driver’s license.  Further, if a child under 18 has dropped out of school without graduating and has been out of school for 10 days in a row, or has at least 10 unexcused absences in the current or previous academic year or has violated certain specified school conduct rules (such as possessing or selling drugs or possessing a weapon on campus or at a school event, certain sexual offenses, or threatening, hitting or causing personal injury to a teacher or other school staff, or “causing substantial physical or visible bodily harm to or seriously disfiguring another person”), her driver’s license (or learner’s permit) will be suspended.  The child will receive an official notice from DDS and, if she does not send a written request for a hearing within 10 days of receipt of the notice, her permit/license will remain suspended for a year, unless certain exceptions apply.

What you should know about the law and your 13-year-old

March 17, 2012

First, it’s important to remember that children of any age can be charged with juvenile delinquency.  A “delinquent act” is an act that would be a crime under local, state or federal law if committed by a person aged 17 or older, but does not include juvenile traffic violations.  (In Georgia, when a child turns 17, he or she is treated as an adult for purposes of criminal prosecution).

However, whether a child as young as 7 or 8, will be charged with a delinquent act will likely depend on the nature of the act and the policy or practice of the local district attorney in charge of prosecuting juveniles.  That said, children as young as 13 have been involved in juvenile delinquency proceedings in Georgia.

On your child’s 13th birthday, two important areas of law begin to apply to her. Thirteen-year olds can be sued, or held responsible in civil law for “torts”, which are negligent or intentional acts or omissions that cause harm to another person or to some property (such as personal injury or slander).  When they are less than 13, they have a defense of “infancy”.  In a 1992 Georgia Supreme Court case, two nine-year old boys who allegedly set fire to a gasoline can which caught fire and severely burned a 7-year old boy were too young to be sued for the injured child’s damages.  Other cases in which the children were too young to be held responsible for torts include a 12-year old male student who seriously injured a female student’s eye while on a school outing and a nine-year old boy who deliberately aimed a slingshot at another boy’s head and caused him to lose an eye.  However, had these children been 13 years old, they could have been held responsible by a civil lawsuit.

Note that as the parent, you cannot be held responsible for damages resulting from your child’s tort unless you negligently allowed your child access to a weapon or other inherently dangerous item with which your child would likely hurt someone (think guns, knives and the like) or you knew, because of previous actions, that your child was prone to this specific dangerous activity and you failed to prevent it.  Courts will look carefully at any known prior similar acts of your child to determine if they are similar enough to the current situation to impose liability on the parent for failing to prevent it.

Your child’s 13th birthday also ushers in his being treated as an adult in criminal law if he is charged with certain crimes.  Between their 13th and 17th birthdays, children who are charged with certain delinquent acts can be treated as adults.  They will be tried in regular adult criminal court (superior court, not juvenile court), and, if convicted, sent to a youth confinement unit in an adult prison until they turn 17, at which time they can be housed with adult offenders.  If there is adequate funding, they will receive some types of training, such as academic or vocational training, as well as counseling in substance abuse and violence prevention.

The delinquent acts that can get a juvenile sent to superior court are those that would be a crime if committed by an adult and are punishable by death, life without parole, or life in prison, such as armed robbery or arson. These types of offenses may be tried by either the juvenile court or the superior court. There are many reasons why you and your child might prefer that the juvenile court hear the case and it is important to try to keep the case in juvenile court.

Another path to adult criminal court is to be accused of committing one or more of the “seven deadly sins”:  murder, rape, voluntary manslaughter, armed robbery committed with a firearm, aggravated sodomy, aggravated sexual battery and aggravated child molestation.  The superior court has sole jurisdiction over a juvenile charged with committing one of these crimes.