07 LC 28
3516
Senate
Bill 278
By:
Senators Schaefer of the 50th, Brown of the 26th, Shafer of the 48th, Rogers of
the 21st, Pearson of the 51st and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating
to juvenile proceedings, so as to provide that juvenile deprivation hearings
shall not be closed except upon the written application of the parents,
guardians, or custodians of the child or children who are the subject of the
hearing; to provide that efforts shall be made to place children with relatives
prior to transferring custody of such children to the Department of Human
Resources; to provide for notices and procedures; to provide for trial by jury
in cases involving the termination of parental rights; to provide for the manner
of selection of such juries; to provide for waiver; to provide for related
matters; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
11 of Title 15 of the Official Code of Georgia Annotated, relating to juvenile
proceedings, is amended by revising subsection (a) of Code Section 15-11-58,
relating to reasonable efforts regarding reunification of family, as
follows:
"(a)
A court´s order removing a child from the child´s home shall be based
upon a finding by that court that continuation in the home would be contrary to
the welfare of the child. If the court places custody of the child in the
Division of Family and Children Services of the Department of Human Resources,
the court shall also determine as a finding of fact whether reasonable efforts
were made by the Division of Family and Children Services of the Department of
Human Resources and any other appropriate agencies to preserve and reunify
families prior to the placement of a child in the custody of the Department of
Human Resources, to prevent or eliminate the need for removal of the child from
that child´s home, and to make it possible for the child to return safely
to the child´s home.
Prior to being
placed in foster care, the child must be placed in a relative´s care unless
there is no relative who is willing and able to care for the child. The
Division of Family and Children Services must show that a registered letter
requesting family placement was mailed to each and every relative that the
parent, guardian, or custodian of the child provided to the division and whether
reasonable efforts were made to place the child in a relative´s home prior
to the placement of that child in the custody of the Department of Human
Resources. Such findings shall also be
made at every subsequent review of the court´s order under this
chapter.
(1)
In determining reasonable efforts to be made with respect to a child, as
described in this subsection, and in making such reasonable efforts, the
child´s health and safety shall be the paramount concern;
(2)
Except as provided in paragraph (4) of this subsection, reasonable efforts shall
be made to preserve and reunify families:
(A)
Prior to the placement of a child in the custody of the Department of Human
Resources, to prevent or eliminate the need for removing the child from the
child´s home; and
(B)
To make it possible for a child to return safely to the child´s
home;
(3)
If continuation of reasonable efforts of the type described in paragraph (2) of
this subsection is determined to be inconsistent with the permanency plan for
the child, reasonable efforts shall be made to place the child in a timely
manner in accordance with the permanency plan and to complete whatever steps are
necessary to finalize the permanent placement of the child;
(4)
Reasonable efforts of the type described in paragraph (2) of this subsection
shall not be required to be made with respect to a parent of a child if a court
of competent jurisdiction has determined that:
(A)
The parent has subjected the child to aggravated circumstances which may include
but need not be limited to abandonment, torture, chronic abuse, and sexual
abuse;
or
(B)
The parent has:
(i)
Committed murder of another child of the parent;
(ii)
Been convicted of the murder of the other parent of the child;
(iii)
Committed voluntary manslaughter of another child of the parent;
(iv)
Aided or abetted, attempted, conspired, or solicited to commit murder or
voluntary manslaughter of another child of the parent; or
(v)
Committed a felony assault that results in serious bodily injury to the child or
another child of the parent;
or
(C)
The parental rights of the parent to a sibling have been terminated
involuntarily;
(5)
If reasonable efforts of the type described in paragraph (2) of this subsection
are not made with respect to a child as a result of a determination made by a
court of competent jurisdiction in accordance with paragraph (4) of this
subsection:
(A)
A permanency hearing in accordance with subsection (o) of this Code section
shall be held for the child within 30 days after such determination;
and
(B)
Reasonable efforts shall be made to place the child in a timely manner in
accordance with the permanency plan and to complete whatever steps are necessary
to finalize the permanent placement of the child; and
(6)
Reasonable efforts to place a child for adoption or with a legal guardian
may
shall
not be made concurrently with reasonable
efforts of the type described in paragraph (2) of this
subsection."
SECTION
2.
Said
chapter is further amended by revising Code Section 15-11-78, relating to
exclusion of public from juvenile hearing and exceptions, as
follows:
"15-11-78.
(a)
Except as otherwise provided by subsection (b) of this Code section, the general
public shall be excluded from hearings involving
delinquency,
deprivation, or unruliness. Only the
parties, their counsel, witnesses, persons accompanying a party for his or her
assistance, and any other persons as the court finds have a proper interest in
the proceeding or in the work of the court may be admitted by the court. The
court may temporarily exclude the child from the hearing except while
allegations of his or her delinquency or unruly conduct are being
heard.
(b)
The general public shall be admitted to:
(1)
An adjudicatory hearing involving an allegation of a designated felony pursuant
to Code Section 15-11-63;
(2)
An adjudicatory hearing involving an allegation of delinquency brought in the
interest of any child who has previously been adjudicated delinquent; provided,
however, the court shall close any delinquency hearing on an allegation of
sexual assault
or any
delinquency hearing at which any party expects to introduce substantial evidence
related to matters of
deprivation;
(3)
Any child support hearing;
(4)
Any hearing in a legitimation action filed pursuant to Code Section 19-7-22;
or
(5)
At the court´s discretion, any dispositional hearing involving any
proceeding under this
article;
or
(6)
Any deprivation hearing except upon the written application of the parents,
guardian, or custodian of the child or children who are the subject of the
hearing."
SECTION
3.
Said
chapter is further amended by revising Code Section 15-11-94, relating to
grounds for termination of parental rights, as follows:
"15-11-94.
(a)
In considering the termination of parental rights, the
court
trier of
fact shall first determine whether there
is present clear and convincing evidence of parental misconduct or inability as
provided in subsection (b) of this Code section. If there is clear and
convincing evidence of such parental misconduct or inability, the
court
trier of
fact shall then consider whether
termination of parental rights is in the best interest of the child, after
considering the physical, mental, emotional, and moral condition and needs of
the child who is the subject of the proceeding, including the need for a secure
and stable home. If the
court
trier of
fact finds clear and convincing evidence
of the circumstance provided in paragraph (5) of subsection (b) of this Code
section, the
court
trier of
fact shall presume that termination of
parental rights is in the best interest of the child.
The parent
shall have a right to a trial by a jury of six persons who shall sit as the
trier of fact unless the parent waives such right to a jury in writing and
agrees to permit the court to sit as the trier of fact in the case. The jury
shall be selected using the same procedure as for the selection of a six person
jury in state court civil actions under Code Section 15-12-122. If the parent
waives trial by jury and consents to a trial before the court, the court shall
issue an order within 30 days after the conclusion of the trial.
(b)
Except as provided in subsections (e) through (h) of Code Section 15-11-96, the
court by order may terminate the parental rights of a parent with respect to the
parent´s child if:
(1)
The written consent of the parent, acknowledged before the court, has been
given; provided, however, that acknowledgment before the court is not necessary
where the parent or parents voluntarily surrender the child for adoption as
provided by subsection (e) of Code Section 19-8-4, 19-8-5, 19-8-6, or
19-8-7;
(2)
A
The trier of
fact finds that a decree has been entered
by a court of competent jurisdiction of this or any other state ordering the
parent, guardian, or other custodian to support the child, and the parent,
guardian, or other custodian has wantonly and willfully failed to comply with
the order for a period of 12 months or longer;
(3)
The trier of
fact finds that the parent has abandoned
the child or the child was left under circumstances
such
that the identity of the parent is unknown and cannot be ascertained despite
diligent searching, and the parent has not come forward to claim the child
within three months following the finding of the child;
(4)(A)
The
court
trier of
fact determines parental misconduct or
inability by finding that:
(i)
The child is a deprived child, as such term is defined in Code Section
15-11-2;
(ii)
The lack of proper parental care or control by the parent in question is the
cause of the child´s status as deprived;
(iii)
Such cause of deprivation is likely to continue or will not likely be remedied;
and
(iv)
The continued deprivation will cause or is likely to cause serious physical,
mental, emotional, or moral harm to the child.
(B)
In determining whether the child is without proper parental care and control,
the
court
trier of
fact shall consider, without being limited
to, the following:
(i)
A medically verifiable deficiency of the parent´s physical, mental, or
emotional health of such duration or nature as to render the parent unable to
provide adequately for the physical, mental, emotional, or moral condition and
needs of the child;
(ii)
Excessive use of or history of chronic unrehabilitated abuse of intoxicating
liquors or narcotic or dangerous drugs or controlled substances with the effect
of rendering the parent incapable of providing adequately for the physical,
mental, emotional, or moral condition and needs of the child;
(iii)
Conviction of the parent of a felony and imprisonment therefor which has a
demonstrable negative effect on the quality of the parent-child
relationship;
(iv)
Egregious conduct or evidence of past egregious conduct of the parent toward the
child or toward another child of a physically, emotionally, or sexually cruel or
abusive nature;
(v)
Physical, mental, or emotional neglect of the child or evidence of past
physical, mental, or emotional neglect of the child or of another child by the
parent; and
(vi)
Injury or death of a sibling under circumstances which constitute substantial
evidence that such injury or death resulted from parental neglect or
abuse.
(C)
In addition to the considerations in subparagraph (B) of this paragraph, where
the child is not in the custody of the parent who is the subject of the
proceedings, in determining whether the child is without proper parental care
and control, the
court
trier of
fact shall consider, without being limited
to, whether the parent without justifiable cause has failed significantly for a
period of one year or longer prior to the filing of the petition for termination
of parental rights:
(i)
To develop and maintain a parental bond with the child in a meaningful,
supportive manner;
(ii)
To provide for the care and support of the child as required by law or judicial
decree; and
(iii)
To comply with a court ordered plan designed to reunite the child with the
parent or parents; or
(5)
The trier of
fact finds that the parent has been
convicted of the murder of the child´s other parent.
(c)
If the court does not make an order of termination of parental rights, it may
grant an order under Code Section 15-11-55 if the
court
trier of
fact finds from clear and convincing
evidence that the child is a deprived child.
(d)
If the trier of fact does not find that a parent´s parental rights should
be terminated, another action to terminate such parent´s parental rights
shall not be brought unless the action relates to a new allegation or new
information."
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.