Dependency and Termination of
Parental Rights
Article 3: Dependency
15-11-100: Purpose of this article is -
Assist and protect children whose physical or mental health
and welfare is substantially at risk of harm from abuse,
neglect or exploitation AND who may be further threatened by
the conduct of others by providing for the resolution of
dependency proceedings in juvenile court.
Ensure that dependency proceedings are conducted
expeditiously to avoid delays in permanency plans for children.
Provide the greatest protection as promptly as possible for
children.
Ensure that the health, safety and best interests of a child be
the paramount concern in all dependency proceedings.
15-11-26: Whenever a best interests determination is required,
the court shall consider and evaluate all of the factors affecting
the best interests of the child in the context of the child’s age and
developmental needs.
Statute includes list of 20 factors that must be
included in court’s best interests evaluation.
Dependency Proceedings: Best Interests
Child Advocacy in Dependency Proceedings
Child’s Attorney
15-11-103: A child shall have right to attorney at all stages of
dependency proceedings.
Appointment before first court hearing that may substantially
affect child’s interests.
Representation shall continue in any subsequent appeals
unless excused by court.
Child’s right to an attorney not waivable.
Child Advocacy in Dependency Proceedings
Guardian ad Litem – Attorney or CASA
15-11-104(a): The court shall appoint a Guardian ad Litem for an
alleged dependent child.
Best interests evaluation to be made in context of child’s age
and developmental needs.
15-11-105(b) – 13 factors to be considered when evaluating
child’s best interests.
For thorough best interests evaluation, evaluate additional
factors described in 15-11-26.
15-11-105(c) defines minimum duties and responsibilities.
Legal Options Before Removal or Adjudicatory Proceedings15-11-101(a): Investigator of child abuse and neglect report may apply to court
for:
Physical examination and evaluation of child or other children in home by a
physician: Requires showing of probable cause in an affidavit executed by
applicant.
Psychological or psychiatric examination and evaluation of a child or other
children in the household by psychologist, psychiatrist or licensed mental
health professional: Requires showing of probable cause in an affidavit
executed by applicant AND after a hearing.
Forensic examination and evaluation of a child or other children in the
household by psychologist, psychiatrist or licensed mental health professional:
Requires showing of probable cause in an affidavit executed by applicant AND
after a hearing.
Physical, psychological or psychiatric examination of child’s parent, guardian
or legal custodian: Requires showing of probable cause in an affidavit
executed by applicant AND after a hearing.
Dependency Proceedings: Removal
Statutory language guiding legal basis for removal:
15-11-1: It is the intent of the General Assembly to preserve and
strengthen family relationships, countenancing the removal of a
child from his or her home only when state intervention is
essential to protect such child and enable him or her to live in
security and stability.
15-11-132(b): Exceptional circumstances
15-11-132(b): Necessity of child’s removal in order to safeguard
child’s welfare
15-11-134: Child’s continuation in his or her home is contrary to
the child’s welfare.
Preliminary Protective Hearing
15-11-102(a) and 15-11-145(a): To be held no later than 72 hours
after child placed in protective custody.
15-11-145(c) - If no parental notification, parent does not appear
or waive appearance, and files affidavit stating these facts,
Preliminary Protective Hearing held again without unnecessary
delay.
15-11-145(f) – Court shall inform parties of contents of complaint
and nature of proceedings in terms understandable to the
parties, as well as parties’ due process rights.
Petition for Dependency
• 15-11-150: DFCS employee, law enforcement officer or any
person who has actual knowledge or is informed of child abuse,
neglect or abandonment can file Petition for Dependency.
• No requirement in Article 3 for endorsement of Petition for
Dependency.
• 15-11-280(b): Petition to terminate parental rights shall be
made, verified and endorsed by the court as provided in
Article 3 of this chapter for a petition alleging dependency.
• Check with your court regarding endorsements of Petitions
for Dependency.
Amendments to Petition for Dependency
15-11-153(a) – May amend petition at any time to cure defects of
form and, prior to adjudicatory hearing, to include new
allegations of facts or requests for adjudication.
If petition amended after initial service for anything except
curing defects of form, must serve on parties and provide copy
to attorneys of record.
15-11-153(c) – Court shall grant parties additional time to prepare
only as may be required to ensure and full and fair hearing.
If child is in protective custody, adjudicatory hearing shall not
be delayed more than 10 days beyond original date of hearing.
Petition for Dependency: Time Frames
15-11-102(b) & 15-11-151(b): If child released from foster care
at Preliminary Protective Hearing, petition to be filed within 30
days of hearing.
15-11-102(b) & 15-11-181(a): Adjudication hearing held no
later than 60 days after filing of petition.
15-11-102(c), 15-11-145(g) & 15-11-151(a): If child remains in
foster care after Preliminary Protective Hearing, petition to be
filed within 5 days of hearing.
15-11-102(c) & 15-11-181(a): Adjudication hearing held no
later than 10 days after filing of petition.
15-11-181(a): If adjudicatory hearing not complete within 60
days from date child placed in protective custody, petition
may be dismissed without prejudice.
Petition for Dependency: Summons & Service 15-11-160(a): Summons to be served on child 14 years or old,
parent, child’s attorney and child’s GAL, and others as directed by
the court.
15-11-160(d): Child’s right to service of summons not waivable.
15-11-102(b) & 15-11-161(a): Party is within the state and can be
found – personal service at least 72 hours before adjudicatory
hearing.
15-11-161(b): Party is within the state and cannot be found but
address is known OR party is outside the state and address is
known - service by registered or certified mail or statutory
overnight delivery at least 5 days before adjudicatory hearing.
Petition for Dependency: Service by Publication
15-11-161(d) - Party cannot be found and address cannot be determined –
service by publication.
Adjudicatory hearing must be at least 5 days after date of last
publication.
Within 15 days after filing of Order for Service by Publication, clerk’s
office shall mail copies of notice, order for service by publication and
petition to party’s last known address.
Provisional hearing option the same:
Party served by publication does not appear at final adjudicatory
hearing - provisional findings become final.
Party served by publication does appear at final adjudicatory hearing -
provisional findings and order vacated and new adjudicatory hearing
held.
Petition for Dependency: Failure to Appear
15-11-162: If parent is served with Petition for Dependency and
willfully fails to appear, court may order parent to appear to
show cause why parent should not be held in contempt of
court.
If parent fails to appear following service of show cause order,
court may issue bench warrant.
Following show cause hearing, court may hold person in
contempt under 15-11-31.
Sanction options include incarceration up to 20 days and
fine up to $1,000.
Dependency Proceedings: Discovery
15-11-170(a): Upon written request to the party having actual possession of
material to be produced, any party shall have full access to the following:
Names & telephone numbers of each witness likely to be called to testify
Copy of any formal written statement made by child or any witness that
party intends to call as witness
Scientific or other report
Drug screen of child or parent
Case plan for child or parent
Visitation schedule related to child
Photographs and any physical evidence intended to be introduced at
hearing
Copies of any relevant law enforcement incident reports
Any other relevant evidence not requiring consent or court order.
Dependency Proceedings: Discovery 15-11-170(b): Upon presentation of court order or written consent
from appropriate person permitting access to the party having
actual possession of material to be produced, any party shall have
full access to following:
Psychological, developmental & physical assessments of child
or parent
Child’s school records
Child’s medical records
Transcripts, recordings and summaries of any oral statement
made by child or any witness
Family team meeting or multi-disciplinary team meeting
report
Supplemental law enforcement reports
Immigration records concerning child
Dependency Proceedings: Reciprocal Discovery
15-11-170(c): Any party requesting discovery under 15-11-
170(a) or (b) has obligation of reciprocal discovery. Must
promptly make the following available:
Names and contact information for each witness that forms
basis of party’s defense or claim
Scientific or other report
Photographs and any physical evidence
Copy of any written statement made by any witness that
party intends to call as witness at the hearing
Court Order for Discovery If request for discovery or consent for release is refused – motion for court
order granting discovery.
Certification - request for discovery or request for consent for release
was made and refused. Good faith efforts made to resolve.
Court may set conditions on discovery response IF party from whom
discovery is sought makes sufficient showing that disclosure of information
would:
Jeopardize safety of party, witness or confidential informant
Create substantial threat of physical or economic harm to a witness or
other person
Endanger existence of physical evidence
Disclose privileged information
Impede criminal prosecution
Reciprocal discovery requirement
Dependency Proceedings: Discovery Time Frames
Requests for discovery and reciprocal discovery must be
complied with promptly and no later than:
5 days after request is received OR
72 hours prior to any hearing, except when later
compliance is made necessary by timing of the request.
If discovery request is made less than 48 hours prior to
adjudicatory hearing, discovery response shall be produced in a
timely manner.
Continuing duty to produce discovery.
Dependency Proceedings: Discovery
15-11-170(f): Child who is subject of dependency case shall not be deposed
unless court orders deposition, under such conditions as court may order.
Court must find child’s deposition would further purposes of 15-11-170.
Court has discretion to order disclosure of any information the court deems
necessary for proper adjudication.
15-11-170(g): If party fails to comply with order for discovery, court may:
Grant a continuance request;
Prohibit party from introducing into evidence the information not
disclosed; or
Enter such other order as the court deems just under circumstances.
15-11-170(i): Any produced discovery can only be used during dependency
case – may not be given to anyone else.
Adjudicatory Hearing
15-11-180: Standard of proof and burden of proof – same as current law
15-11-181(d): Adjudicatory hearing shall be conducted in accordance
with Georgia’s Evidence Code.
Relevant testimony or evidence may not be excluded on any ground
of privilege except:
Attorney-client privilege, and
Communications between priest/rabbi/duly ordained minister and
confidential communicant.
15-11-181(h): If court adjudicates child as dependent child, court must
make a finding whether dependency is result of substance abuse by the
parent.
Dependency Proceedings: Continuances 15-11-110(a): Upon request of attorney for a party, court may continue
hearing beyond statutory time frames.
No continuance if contrary to child’s best interests.
In evaluating child’s best interests, court shall give substantial
weight to:
Child’s need for prompt resolution of custody status.
Need to provide child with stable environment, and
Damage to child from prolonged temporary placements.
15-11-110(b): Showing of good cause required for continuance. Must
have evidentiary finding on the record.
No continuances for:
Need for discovery,
Convenience of the parties, and
Other pending matters except as required by attorney conflict
rules.
Dependency Proceedings: Reasonable Efforts
15-11-202(b): Child’s health and safety is of paramount concern
in determination regarding appropriateness of reasonable efforts.
15-11-202(f): Court shall consider whether services were:
Relevant to safety and protection of child,
Adequate to meet needs of child and family,
Culturally and linguistically appropriate,
Available and accessible,
Consistent and timely, and
Realistic under the circumstances.
15-11-202(g): Finding of no reasonable efforts shall not preclude
court’s issuance of order regarding child’s placement where court
finds placement is necessary for protection of child.
Dispositional Issues: Visitation 15-11-2(75): Period of access to a child by parent, guardian, legal
custodian, sibling or other relative OR any person who has
demonstrated an ongoing commitment to child in order to
maintain parental and familial involvement in child’s life when he
or she is not residing with such person.
15-11-112(a): When a child removed from home, court shall order
reasonable visitation that is consistent with child’s age and
developmental needs if court finds visitation in child’s best
interests.
15-11-112(b): Presumption of unsupervised visitation unless
unsupervised visitation not in child’s best interests.
15-11-112(c): Within 30 days of court finding parent has not made
substantial progress towards completion of case plan, court shall
review terms of visitation and determine whether terms should be
modified.
Dispositional Issues: Case Plans 15-11-201: Case plan designed to achieve placement in most appropriate, least
restrictive and most family-like setting available –
In close proximity to parents’ homes;
In proximity to school in which child enrolled at time of placement; and
Consistent with best interests and special needs of child.
Case plan to include –
Assessment of child’s and family’s strengths and needs, and type of
placement best equipped to meet those needs.
Discussion of safety and appropriateness of placement.
Time-limited goals and date the time-limited services will be terminated.
Visitation schedule with siblings and appropriate relatives.
When placement is out-of-state or a substantial distance from parent’s
home, reasons why placement is most appropriate and in child’s best
interests.
If child placed out-of-state, case plan to document compliance with ICPC
and rationale for out-of-state placement.
Permanency Plan versus Permanent Placement
15-11-2(53): Permanency plan – specific written plan prepared by DFCS
designed to ensure that a child is reunified with his or her family or
ensure that such child quickly attains a substitute long-term home
when return to child’s family is not possible or is not in child’s best
interests.
15-11-2(54): Permanent placement means –
Return of the legal custody of a child to his or her parent;
Placement of a child with an adoptive parent pursuant to a final
order of adoption; or
Placement of a child with a permanent guardian.
15-11-201(b)(14) and 15-11-232(c) – APPLA is permissible permanency
plan. Document compelling reason why TPR is not in child’s best
interests.
15-11-233(b)(2): Compelling reasons
Non-Reunification Procedural Issues
15-11-204(d): DFCS has burden of demonstrating reunification not
appropriate considering child’s health, safety and need for
permanence.
Presumption that reunification is detrimental to child and
reunification services should not be provided if court finds:
Parent unjustifiably failed to comply with court-ordered
reunification case plan;
Child removed at least twice previously and reunification services
provided on two prior cases;
Ground exists for TPR; or
Any of circumstances described in 15-11-203.
Disposition Hearing
• 15-11-102 and 15-11-210(a): Hearing must be held and completed
within 30 days after conclusion of adjudicatory hearing.
• 15-11-210(b): Court may consider any evidence relevant, reliable and
necessary to determine child’s needs and most appropriate disposition.
• During hearing, court must receive into evidence:
• Social study report, if one,
• DFCS case plan – filed with court at least 48 hours before
disposition hearing,
• GAL’s report,
• Any psychological, medical developmental or educational evaluation
of child, and
• Any other relevant or material evidence.
Disposition Hearing: Findings of Fact15-11-213: Court must consider -
Why child’s bests interests and safety are served by disposition and
case plan:
Interaction of child and family,
Child’s adjustment to home, school and community,
Mental and physical health of all persons involved,
Child’s wishes regarding placement,
Parent’s wishes regarding child’s custody,
Existence of relative or other individual qualified to care for child,
and
Parent’s ability to care for child in parent’s home without harm to
child.
Availability of services referenced in case plan
Alternative dispositions or services - why not appropriate in this case?
Appropriateness of placement, and
Reasonable efforts assessment
Disposition Hearing: Court Order Options
o 15-11-212: Any one or combination of the following orders of
disposition:
o All options under current law;
o Order child and parent to participate in counseling designed to
assist in deterring future conditions of dependency;
o Order parent to participate in educational or counseling program
designed to improve ability to provide proper parental care and
control and supervision of child – including parenting classes; and
o If child in protective custody in part due to parental substance
abuse, order return to parent’s custody only if parent participates
in substance abuse treatment and provides at least 6 consecutive
months of clean random drug screens.
Disposition Issues
15-11-214(a): Order of disposition shall continue in force until the
purposes of the order have been accomplished.
No longer a need for extensions and second deprivation
hearings.
15-11-214(b): Following motion by party or on sua sponte basis,
court may terminate order of disposition if it appears purposes of
the order have been accomplished.
15-11-210(f): At conclusion of the disposition hearing, court must
set the dates and times for the first review hearing and for the
permanency plan hearing.
Review Hearings: Time Frames
15-11-102(d) and 15-11-216(a):
Initial review hearing – within 75 days after child’s removal
from home.
Subsequent review within 4 months of initial review hearing.
Court has discretion to schedule any subsequent review
hearings as necessary.
Review Hearings: Notice
15-11-108: Court shall provide to all parties written notice of
date, time, place and purpose of post-adjudication hearings.
Written notice shall be delivered to the recipient at
least 72 hours before the hearing by U.S. mail, email or
hand delivery.
15-11-109: DFCS must notify the foster placement of every
hearing.
Written notice shall be delivered to the recipient at
least 72 hours before the hearing by U.S. mail, email or
hand delivery.
Review Hearings: Findings of Fact**Paramount concern at any review hearing is the child’s health and
safety.
15-11-218: Court shall issues written findings of fact that include:
Whether child continues to be a dependent child;
Whether existing case plan is still best case plan for child and family
and whether any changes should be made;
Extent of case plan compliance by all parties;
Basis for any changes to child’s placement;
Whether visitation is and continues to be appropriate;
Progress being made on the permanency plan;
Whether all legally required services are being provided to child, child’s
foster parents and parents;
Independent living services for child 14 years or older; and
Reasonable efforts assessment.
Review Hearings: Order Options
15-11-218(b)(4): If court determines DFCS failed to
implement any material provision of the case plan or abused
its discretion in the placement or proposed placement of the
child, court may make additional orders regarding the
treatment plan or placement of the child to protect child’s
best interests.
15-11-216(d): At any review subsequent to the initial review,
if the court finds the parent has failed to make substantial
progress towards completion of the case plan, court shall
order DFCS to develop concurrent case plan or case plan
with non-reunification permanency plan.
Permanency Plan Hearings: Time Frames
15-11-102(e) and 15-11-230(b):
If DFCS files motion for non-reunification, hearing within 30 days
of filing of motion.
For children under 7 years old on filing date of Petition for
Dependency – hearing no later than 9 months after date child
entered foster care Or NR time line above, whichever comes first.
For children 7 years or older on filing date of Petition for
Dependency – hearing no later than 12 months after date child
entered foster care Or NR time line above, whichever comes first.
Thereafter, hearing every 6 months while child in DFCS custody.
Can be more frequent as deemed necessary by court.
Permanency Plan Hearings
15-11-230(a): Purpose - for court to determine future permanent
legal status of child in DFCS custody.
15-11-230(d): All parties must be given written notice of hearing
at least 5 days in advance of hearing.
15-11-231: At least 5 days before hearing, DFCS must file with
court a report recommending permanency plan.
15-11-230(e): Court must consult with child in age-appropriate
manner regarding proposed permanency plan.
Findings of Facts and Conclusions of Law – similar to current
law
Statutory Guidance for When Not to File for TPR
15-11-233(b) : Circumstances pursuant to which TPR not in child’s
best interests, including examples of compelling reasons -
Parent successfully participating in reunification services;
Another permanency plan better suited to meet child’s health
and safety needs;
Child is living with relative who is unwilling or unable to adopt,
but who is willing to provide stable and permanent home for
child AND removal from relative’s physical custody would be
detrimental to child’s emotional well-being.
Court determined that DFCS did not make reasonable efforts
under reunification permanency plan.
Child is unaccompanied refugee or there are international legal
obligations or foreign policy reasons that preclude TPR.
Article 4: Termination of Parental Rights
15-11-260: Purpose of this article is -
Protect dependent child from parent who is unwilling or unable to
provide safety and care adequate to meet child’s needs.
Eliminate need for dependent child to wait unreasonable periods of time
for parent to correct conditions which prevent child’s return to family.
Ensure continuing needs of dependent child for proper physical, mental
and emotional growth and development are decisive considerations in all
proceedings.
Ensure constitutional rights of all parties are recognized and enforced in
all TPR proceedings, while ensuring child’s fundamental needs are not
subjugated to interests of others.
Encourage stability in dependent child’s life by ensuring all proceedings
are conducted expeditiously to avoid delays in resolving status of parent
and in achieving permanency for child.
Child Advocacy in TPR Proceedings
Child’s Attorney
15-11-262: A child shall have right to attorney at all stages of TPR
proceedings.
Appointment before first court hearing that may substantially affect child’s
interests.
Representation shall continue in any subsequent appeals unless excused by
court.
Child’s right to an attorney not waivable.
Guardian ad Litem
15-11-262(d): court may appoint GAL for child in TPR proceeding at request
of child’s attorney or on sua sponte basis.
GAL may be same person as child’s attorney unless conflict.
GAL has same role as defined under Article 3.
TPR Proceedings Issues 15-11-263: Court may order dependent child or parent to
participate in physical or mental evaluation. Moving party to
pay cost unless cost apportioned by court.
15-11-270: Jurisdiction and transfer rules – same as current law.
15-11-280: Petition requirements similar to those under
Dependency Article.
15-11-264: Discovery rules same as under Dependency Article.
15-11-265: Once TPR petition has been filed, parent shall
thereafter be without authority to execute an act of surrender or
otherwise to affect custody of his or her child except parent may:
Execute act of surrender in favor of DFCS, and
Consent to judgment terminating parental rights.
TPR Proceedings: Summons and Service
While Summons must issue and be served upon child 14 years or
older, as well as child’s attorney and child’s GAL in dependency
proceedings, 15-11-281 requires that Summons must issue and be
served upon child’s attorney and child’s GAL, if any, in TPR
proceedings.
15-11-281(b): Court shall direct notice and copy of TPR petition
be provided to child 14 years or older. Not waivable by child or
child’s representative.
Service – same time frames as current law.
15-11-285: If parent is served with Petition for Termination of
Parental Rights and fails to appear without reasonable cause, court
may order parent to appear to show cause why parent should not
be held in contempt of court.
TPR Proceedings: Biological Fathers
15-11-283(a): Biological father entitled to be served if:
• Paternity previously established in judicial proceeding;
• Identity known to petitioner or petitioner’s attorney;
• Registrant on Putative Father Registry and has acknowledged
paternity of child;
• Registrant on Putative Father Registry and has indicated possible
paternity of child; or
• Lived with child, contributed to child’s support, made attempt to
legitimate or provided support or medical care for mother during
pregnancy or hospitalization for birth of child.
15-11-283(d): If identity of biological father is unknown and none of the
above applies, then rebuttably presumed biological father not entitled to
notice. If not rebutted, court may enter order terminating biological
father’s rights.
TPR Proceedings: Time Frames
15-11-301:
If no just cause shown for delay, all TPR proceedings shall
be conducted within 90 days of date TPR petition is filed.
If no just cause shown for delay, order of disposition shall be
issued no later than 30 days after the conclusion of the
hearing on the TPR petition.
Failure to comply with the time requirements of 15-11-301
shall not be grounds to invalidate an otherwise proper order
terminating parental rights unless court determines delay
resulted in substantial prejudice to a party.
Without Proper Parental Care and Control
Similar to current law, except:
15-11-311(b): In determining whether a child who is not in
parent’s custody is without proper parental care and control, the
court shall consider whether such parent, without justifiable
cause, has failed significantly for a period of six months prior to
date of the termination hearing:
To develop and maintain parental bond with child in a
meaningful and supportive manner;
Provide for care and support of child as required by law or
judicial decree; and
To comply with court ordered plan designed to reunite parent
and child.
Impact of TPR Order
15-11-261:
Parent has ongoing child support obligation until adoption
finalized.
Child’s right to inherit continues until adoption finalized.
Child’s right to pursue civil action against parent not
impacted.
Relationship between child and siblings continues until
adoption finalized.
Until adoption finalized, relatives continue to be considered
as such for purposes of placement and permanency plan.
Reinstatement of Parental Rights: Right of the Child
15-11-323(a): A child who has not been adopted after passage of
at least 3 years from date of TPR or date of voluntary surrender
of parental rights to DFCS and for whom court determined
adoption is not permanency plan may petition court to reinstate
parental rights.
15-11-323(b): Former parent and foster parents are not parties,
but have right to be heard at hearing on child’s petition for
reinstatement.
Child’s petition shall be dismissed if parent cannot be located or
parent objects to reinstatement.
Reinstatement of Parental Rights 15-11-323(e): Reinstatement shall be a recognition that situation of parent
and child has changed since the time of the TPR - reunification is now
appropriate.
15-11-323(c): Court shall grant child’s petition for reinstatement if court
finds by clear and convincing evidence that child is no longer likely to be
adopted and reinstatement is in child’s best interests. Evaluation of best
interests shall include:
Whether parent is fit parent and has remedied parental deficits;
Age and maturity of child and ability of child to express his or her
preference;
Whether reinstatement will present risk to child’s health, welfare or
safety; and
Other material changes in circumstances, if any, that may have
occurred which warrant granting the reinstatement petition.
15-11-323(f): Reinstatement code section is intended to be retroactive –
applies to any child under the jurisdiction of the court at the time of the
reinstatement hearing regardless of the date parental rights were
terminated.
Stephany L. ZaicWilliams & Zaic, LLCTelephone: 706-244-4323Email: [email protected]