Working with Child Deprivation Cases in Georgia's Juvenile Courts

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72-Hour Informal Detention Hearing

A. WHEN IS THE HEARING REQUIRED? WHAT MUST BE SHOWN?

An informal detention hearing within 72 hours of the child's removal from the home is required when the juvenile court intake officer has determined that the child should not be released to the custody of his or her parents. This hearing serves two purposes. One is to determine whether a child who has been taken into custody shall be released or detained pending further court proceedings, and the second is to determine if reasonable grounds exist to believe that the allegations in the complaint or petition are true. Uniform Rules for the Juvenile Courts of Georgia 8.1. The rules also provide that the hearing shall be of an informal nature in which hearsay testimony will be allowed. URJC, 8.1. If the 72-hour period expires on a Saturday, Sunday, or legal holiday, the hearing must be held on the next day of business which is not a Saturday, Sunday, or legal holiday. O.C.G.A. § 15-11-21(c)(3). However, URJC, 8.6 allows the court to grant a continuance in a detention hearing for a "reasonable period" to obtain reports and other evidence bearing on the need to detain the child. During the continuance, the judge may order that the child remain detained or release him/her to the custody of his/her parent(s). URJC, 8.6.

Courts have interpreted this time frame to be mandatory and if the hearing is not scheduled within 72 hours of the child's removal, the deprivation action willbe dismissed "without prejudice." Sanchez v. Walker County Department of Family and Children Services, 237 Ga. 406 (1976). This means that the department may refile a deprivation petition without delay if it has reason to believe that the child is abused or neglected. Id., at 411. It would seem that a dismissal of a petition would require returning a child to the custody of his/her parent(s). However, given the court's authority to issue preliminary protective custody orders based on allegations contained in a petition, there seems to be nothing to prevent a juvenile court judge from issuing another "pick up" order to again detain the child should the court feel that the situation warrants such action. While these procedures allow the case to go forward, the delay associated with beginning the process over again is burdensome for the DFCS caseworker, and may needlessly extend the time a child must spend in shelter care. If a parent fails to make a timely objection during the informal detention hearing based on noncompliance with statutory time limits, the objection is effectively waived and cannot be raised on appeal. Irwin v. Dept of Human Resources, 159 Ga. App. 101 (1981).

At the 72-hour hearing the judge will determine if the child's detention is required under the standards set forth in O.C.G.A. § 15-11-18(1-4). The hearing provides the child's parents with judicial review of the actions taken by the juvenile court intake officer. Most juvenile courts have interpreted 72-hour hearings as the equivalent of a "probable cause" hearing which uses a standard of proof known as "preponderance of the evidence." Kipling Louise McVay, Deprivation and Termination, Children in Court: A Systems Approach. (1989), p. 14,15. The petitioner, who more often than not will be the county division of DFCS, sometimes represented by a Special Assistant Attorney General (SAAG), must show through evidence that it is "more likely than not" that the child is deprived. This is a much lower burden of proof than will be required at the formal adjudicatory hearing (trial) on the merits of the deprivation petition. Not all agree on the proper standard of proof in the 72-hour hearing since the statute is silent on the issue. The 1996 Georgia Juvenile Court Benchbook notes that "the burden is on the petitioner to prove the need for detention; there is no indication from the code that a 'probable cause' standard is all that is necessary."