Working with Child Deprivation Cases in Georgia's Juvenile Courts

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, the court may 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. URJC, 8.6. 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.

The courts have interpreted this time frame to be mandatory and if the hearing is not held within 72 hours of the child's removal, the deprivation action will be dismissed without prejudice. Sanchez v. Walker County Department of Family and Children Services, 237 Ga. 406 (1976). This allows the department to 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 find such action warranted. While these procedures allow the case to go forward, the delay associated with beginning the process over again potentially extends the time a child will spend in shelter and foster care. If a parent fails to make a timely objection during the informal detention hearing that the statutory time limits have not been observed, this objection is effectively waived and cannot be raised on appeal. Irwin v. Dept of Human Resources, 159 Ga. App. 101 (1981).

At this hearing the judge will determine if this child's detention is required under the standards explained above 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 the 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, most likely will be the county division of DFCS, must show evidence to indicate that it is "more likely than not" that the child is deprived. This is a much lower burden of proof on DFCS than will be required on the formal adjudicatory hearing on the merits of the deprivation petition. The standard of proof in the 72-hour hearing is not entirely clear since the statute is silent on the issue.