Georgia's Juvenile Code: New Law for the New Year
| Publication year | 2013 |
| Pages | 0012 |
A Collaborative Article
For the first time in more than 40 years, Georgia has a new juvenile code. Not just a warmed up version of the current code, but a comprehensive rewrite that includes the exhaustive research, extensive outreach and pragmatic compromise needed to create the 248-page legislation that the Georgia General Assembly passed unanimously this year and signed into law on May 2, 2013.[1]
Several members of the Child Advocacy and Protection Section have studied the three central articles of the new juvenile code (NJC)[2] to highlight the changes that are to take effect on Jan. 1, 2014. Among the contributors to this review are juvenile court prosecutors, juvenile court defense attorneys, special assistant attorneys general (who represent the state in deprivation matters), a parent attorney, a former child attorney and juvenile court judges. Each section benefits from the grouping of traditionally "opposing" points of view. A prosecutor and a defense attorney teamed to highlight the delinquency section; a parent attorney, attorneys for the Division of Family and Children Services (DFCS) and a child attorney (now juvenile court judge) took on the dependency section; and a public defender and a prosecutor tackled the new Children In Need of Services (CHINS) section-all with a goal of highlighting one or two issues in each section, out of many, that make this new legislation so important in our state and a model for change around the country.
Delinquency
The Enhanced Presence of Lawyers
From arrest to disposition, the delinquency section (Article 6) of the NJC contains numerous changes to the way young people alleged to have committed delinquent offenses are treated. However, the most systemic reform of what happens inside the courtroom comes from the enhanced presence of lawyers for both parties.
Prosecutors
Traditionally, the role of the prosecutor in juvenile court has been tenuous-the district attorney needed to be invited by the judge to participate in the proceedings[3] and petitions initiating the proceedings did not even have to be drafted by a lawyer, let alone a prosecuting attorney.[4]
The uncertainty of the role of a prosecutorial authority in the juvenile court often led to unpredictable results. First, if invited, the district attorney merely conducts the proceedings. This often means that the prosecutor's first contact with a case is when an assistant district attorney is called to conduct a trial on the merits. That prosecutor is saddled with a petition that was filed by a non-attorney. The petition may have fatal defects or even vary from the evidence of the case.[5]
These uncertainties have led to unfortunate results in individual cases[6] and to drastic policy changes for the state. Indeed, the impetus for the creation of exclusive jurisdiction of the superior court for certain serious offenses[7] arose out of a case in which a young person charged with rape was allowed to complete a diversion program without ever appearing before the court.
The NJC creates several procedural mandates intended to create a consistent prosecutorial presence throughout the delinquency process. First, "[a] petition alleging delinquency shall be filed by an attorney."[8] This was meant to relieve law enforcement officers, probation officers and other court personnel from the responsibility of drafting accusatory documents.[9] It will have the added benefit of allowing for the prosecutor to examine the evidence to determine the sufficiency of the allegation prior to the invocation of the court's jurisdiction.[10] A prosecutor is also in the best position to make an appropriate charging decision in light of the purpose of the juvenile court[11] and in the best interest of justice.[12]
Second, "[a] prosecuting attorney shall conduct delinquency proceedings on behalf of the [S]tate."[13] The NJC creates a flexible scheme whereby the district attorney is designated as the principal entity tasked with providing representation on behalf of the state in all delinquency proceedings, but allows for local jurisdictions to appoint a juvenile prosecutor under certain circumstances.[14] The statute also created a mechanism by which the district attorney may delegate the duty to appoint a juvenile prosecutor to the county government.[15]
Whether the prosecuting attorney is an assistant district attorney or an appointed independent prosecutor, the law has created a scheme that creates both powers and duties for a specialized prosecutorial entity that will understand the juvenile proceedings code and will be invested in the underlying purpose of the juvenile court.
Defense Attorneys
Much like prosecutors, defense attorneys in Georgia have traditionally needed to be "invited" to the proceedings. This invitation comes when the young person hires his or her own attorney or applies for the services of the public defender. Each year, thousands more waive their right to be represented.
Young people were first provided with the right to counsel in 1967 with the U.S. Supreme Court's landmark decision in In re Gault.[16] In requiring that every young person in delinquency proceedings be informed of his or her right to counsel and that those who cannot afford counsel be provided with an attorney at no cost, the Supreme Court found that the "[f]ailure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy."[17]
Prior to this overhaul of the Georgia juvenile code, state law contained limited protections against the waiver of counsel in delinquency proceedings.[18] As a result, Georgia's young people regularly waive this right with nothing more than a series of "yes ma'am" responses to a series of questions posed by the judge. Although the creation of a statewide indigent defense system has decreased this practice somewhat since a finding in 2001 that an estimated 90 percent of children facing delinquent charges in many Georgia counties waived their right to counsel before ever speaking to an attorney,[19] countless young people across Georgia continue to waive their right to representation. Cognitively, however, children often cannot process abstract decisions such as a waiver of counsel in the manner adults do. Instead, children base their decisions upon an inherent desire to please their peers and adults or the impulse just to be done with it.[20] Even more troubling, parents often waive their child's rights in anger over the child's behavior or in the belief that they, as parents, can handle all court matters as well as any attorney. This often results in waiving a right neither the child nor the parent fully understands.
The NJC addresses this practice in several ways. First, the bill makes clear that only the young person, not his or her parent, may waive the right to counsel.[21] Most importantly, though, it standardizes legal representation across counties by limiting a judge's exercise of personal discretion by mandating that the child cannot waive his right to counsel if his liberty is in jeopardy.[22]
Although there are still many questions about how the NJC will work in practice, at a minimum, children in Georgia will no longer be sent to detention without a meaningful review of the case by a prosecutor and representation at the proceedings by a defense attorney.
Dependency
Article 3—Surprising Changes
Article 3 of the NJC governs dependency proceedings (formerly deprivation proceedings) and sets forth its four-part purpose as follows: "(1) To 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; (2) to ensure that dependency proceedings are conducted expeditiously to avoid delays in permanency plans for children; (3) to provide the greatest protection as promptly as possible for children; and (4) to ensure that the health, safety and best interests of a child be the paramount concern in all dependency proceedings."[23] With regard to dependency, the NJC expands the definition of a child to include as any individual who is under the age of 18 years; under the age of 22 years and in the care of DFCS; or under the age of 23 years and eligible for and receiving independent living services through DFCS.[24]
Under the current juvenile code (CJC), the court is mandated to appoint an attorney to represent the child only in proceedings involving the termination of parental rights.[25] Furthermore, it is not clear in the CJC whether a child is a party to a deprivation proceeding.[26] Surprisingly, it has taken the passage of the NJC to confer upon a child unqualified status as "a party" in his or her judicial proceedings in the juvenile court.[27]
The NJC mandates that the court shall appoint an attorney and a guardian ad litem (GAL) for an alleged dependent child, however, the appointed attorney may serve as the child's GAL unless or until there is a conflict between the attorney's duty to such child as child's attorney and the attorney's considered opinion of such child's best interests as GAL.[28] The NJC requires the court to appoint a Court Appointed Special Advocate (CASA) to act as GAL whenever possible, and provides that a CASA may be appointed in addition to an attorney who is serving as a GAL.[29]The NJC provides an exhaustive list of 13 factors the GAL and CASA shall consider and evaluate in determining the child's best interests,[30]as well as 17 minimum duties and responsibilities the GAL and CASA shall perform.[31] The NJC permits the court...
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