STATE OF GEORGIA

X

IN THE INTEREST OF: X

X

J.J., A CHILD X CASE NO. A97A0340

X

X

X

BRIEF OF APPELLANT

J.J., Attorney

Appellant

I.

STATEMENT OF THE CASE

Appellant was charged in the Juvenile Court of DeKalb County with the unruly offense of Violation of Probation, based on a prior adjudication for the unruly offense of truancy. He was adjudicated on the petition on August 13, 1996, based on his admission that he had not attended school as required by the unruly order of probation. He was remanded to the DeKalb County Regional Youth Detention Center pending disposition of the case. Disposition of the case was made on September 5, 1996 by the Honorable Judge XXXXX. Appellant was returned to secure detention at the DeKalb Regional Youth Detention Center to await placement in a "boot camp", a short term incarceration program through the Department of Children and Youth Services. Appellant was unrepresented by counsel until after disposition of the case on September 5, 1996. The DeKalb County Public Defender was appointed to represent him on appeal. The Motion for New Trial was denied September 12, 1996. A Motion for Supersedeas was denied on September 24, 1996. A Notice of Appeal was timely filed. From the disposition of his case, Appellant brings this appeal.

STATEMENT OF THE FACTS

On April 30, 1996, Appellant was adjudicated unruly for the offense of truancy(R.29A-30A) and placed on a 12 month order of probation(R.28A). Appellant was to attend school regularly under the general conditions of the order and specifically to begin attending school starting May 31, 1996(R.28A). On or about June 18, 1996, a petition was filed by the probation officer alleging that Appellant had violated his probation conditions by failing to attend school(R.16A). Appellant came for an adjudicatory hearing on August 13, 1996, waived his right to counsel, and admitted the contents of the petition(R.18A). He was remanded to the custody of a secured detention center to "protect the person or property of others or of the child" and because an order for his detention had been made by the Court "pursuant to the Juvenile Proceedings Code"(R.19A). Disposition of the case, made on September 5, 1996, was that the child complete the "90 day Boot Camp(O.C.G.A. §15-11-35(b))" with "time spent (in secure detention) at the RYDC excluded"(R.15A). After completion of the short term incarceration, Appellant was to remain on probation until September, 1997(R. 15A). On September 8, 1996, Appellant was transferred to The Bill E. Ireland Youth Development Campus--CAMP STOP(Boot Camp) located in Milledgeville, Georgia(R.8A, 10A). Appellant is still incarcerated at this facility with an expected release date of December 9, 1996(R. 8A).

PRESERVATION OF ERRORS

Enumeration of error one was preserved because the detention order on the Appellant violates Georgia law and no other preservation is necessary.

Enumeration of error number two was preserved because the Order of Disposition incarcerating Appellant violates Georgia law and no other act is needed to preserve this issue for appeal.

Enumeration of error number three was preserved because the Order of Disposition violates due process rights guaranteed to Appellant by the 14th Amendment of the United States Constitution and Article 1, §1, Para. 1 of the Georgia Constitution in that he has been incarcerated solely because of his status and an unruly child and no additional act on his part is necessary to preserve this issue for appeal.

II.

ENUMERATION OF ERRORS

1.

The trial court committed reversible error when it placed Appellant in secure detention on August 13, 1996, in violation of O.C.G.A.§ 15-11-48(e).

2.

The trial court committed reversible error when it placed Appellant in secure detention and in an incarceration program as disposition on an adjudication of unruliness in violation of O.C.G.A. § 15-11-48(e).

3.

The trial court committed reversible error when it placed Appellant in secure detention and in an incarceration program because of his status as a "truant" in violation of the 14th Amendment of the United States Constitution and Article 1, § 1, Para. 1 of the Georgia Constitution.

STATEMENT OF JURISDICTION

The Georgia Court of Appeals has jurisdiction of this appeal because the judgement in this juvenile case is not one of those cases within the exclusive or general jurisdiction of the Supreme Court. Article VI, Section VI, Paragraphs II and III of the Constitution of the State of Georgia.

STANDARD OF REVIEW

The standard of review for enumeration of error number one is : Whether the trial court’s orders of detention were authorized by law. O.C.G.A. § 15-11-48(e). The standard of review for enumeration of error number two is: Whether the order of disposition in this case was authorized by the Juvenile Proceedings code. O.C.G.A.§ 15-11-67.

The standard of review for enumeration of error number three is: Whether the order of disposition in this case violates the 14th Amendment due process safeguards of the United States Constitution and the comparable provisions of the Georgia Constitution.

III.

ARGUMENT AND CITATION OF AUTHORITY

A. The Trial Court Erred In Placing Appellant in Secure Detention From August 13, 1996 Through September 5, 1996, In Violation of O.C.G.A.§ 15-11-48(e).

O.C.G.A.§ 15-11-48 specifies the place of detention of various categories of juvenile offenders. Detention of the Appellant in this case is governed by Subsection (e) of the statute since only allegations of unruliness under O.C.G.A. § 15-11-2(12)(A)(truancy) and (F)(violation of order of probation on an unruly act) were brought in the interest of the child.

There are three categories of facility in which children may be detained. O.C.G.A. § 15-11-48(a)(1-3). Only two of these options are available in the case of unruly children, i.e., licensed foster homes, another home approved by the Court, or a facility operated by a licensed child welfare agency. O.C.G.A. § 15-11-48(e). If an unruly child is detained in a "secure juvenile detention facility", such detention may not exceed 72 hours, unless extended for "one additional period not to exceed 48 hours". O.C.G.A.§ 15-11-48(e).

O.C.G.A.§ 15-11-48(e) was enacted in compliance with the federal Juvenile Justice act, 42 U.S.C. § 5601 et seq.. Under this federal statute, States receiving federal funds for juvenile justice must submit a plan that complies with the principles set out in the act. 42 U.S.C. § 5633(a). In order to keep the federal funding in any fiscal year starting after January 1, 1993, the states must provide that "juveniles... who have committed offenses that would not be criminal if committed by an adult... shall not be placed in secure detention facilities". 42 U.S.C. § 5633(a)(12)(A); 42 U.S.C. § 5633(c)(3).

When Appellant came to Court with his parent on August 13, 1996, and, without being represented by counsel, entered an admission to the unruly offense of Violation of Probation(R.18A), he was ordered remanded to a secure detention facility, DeKalb RYDC, for 24 days, until September 5, 1996, the scheduled date of the dispositional hearing(R.19A). The Court order and the detention of Appellant were in clear violation of the Juvenile Proceedings Code.

B. The Trial Court Committed Reversible Error When It Placed Appellant In A Secure Juvenile Detention Center And In "Boot Camp" As Disposition On An Adjudication Of Unruliness.

On appeal, the relevant question is whether the juvenile court judge was authorized to enter an order detaining an unruly child and confining that child to a "boot camp" program for 90 days. Appellant contends that the Court was not authorized to enter this order in light of the clear language of the Juvenile Proceedings Code forbidding the placing of unruly children in detention or youth development centers where delinquent children and those alleged to be delinquent are housed. O.C.G.A. § 15-11-48(e).

The dispositions that a juvenile judge may make on an unruly adjudication, like Appellant’s truancy adjudication, are those listed in O.C.G.A.§ 15-11-66(a)(1-4). Rather than listing the options again, the statute refers to "any disposition authorized for a delinquent child" with an added step if commitment to the Department of Children and Youth Services is ordered. O.C.G.A. § 15-11-67.

In 1994, the Georgia Legislature passed the "School Safety and Juvenile Justice Reform Act of 1994". Going into effect on May 1, 1994, this amendment to the Juvenile Proceedings code added the following sentence to the section concerning dispositions in delinquency adjudications O.C.G.A. § 15-11-66(b):

If the child is adjudicated for the commission of a delinquent act, the court may in its discretion, in addition to any other treatment or rehabilitation order the child to serve up to a maximum of 90 days in a youth development center.

This sentence is separate from the list of orders that the court may make in disposition of a delinquent child contained in O.C.G.A. § 15-11-66(a) and made reference to in O.C.G.A. § 15-11-67.

The provisions concerning disposition of unruly children, found in O.C.G.A. § 15-11-67, were last amended in 1992. It is clear from the wording of the statute that the legislature had the four options in O.C.G.A. § 15-11-66(a)(1-4) in mind as possible dispositions of an unruly child. None of these four orders would involve incarceration of an unruly child in a secure detention facility or a youth development center. There is no indication in the statement of purpose of the "School Safety and Juvenile Justice Reform Act of 1994" that the legislature meant for unruly children to be included in the special sentence added to O.C.G.A. § 15-11-66(b). See, Preamble to Senate Bill 440, As Passed.

It is quite clear that the legislature meant for unruly children not to be held in secure detention facilities or youth development centers under the language of O.C.G.A. § 15-11-48(e). This code section was last amended in 1995, and the legislature certainly would have altered this prohibition against locking up unruly children (except for periods not to exceed 5 days) had it intended the "boot camp" provisions of O.C.G.A. § 15-11-66(b) to apply to this category of child. Statutes are presumed to be enacted with knowledge of the existing condition of the law and with reference to it. O.C.G.A. § 1-3-1; Allison v. Domain, 158 Ga. App. 542, 281 S.E. 2d 299(1981); McPherson v. City of Dawson, 221 Ga. 861, 148 S.E. 2d 298 (1966).

O.C.G.A. § 15-11-48 was amended in 1995 to add language to include children alleged to have committed curfew violations, who are not immediately released as specified in O.C.G.A. § 15-11-47(e), under the general provisions of O.C.G.A. § 15-11-48(e). Had the legislature wanted to allow the secure detention and "boot camp" placement of unruly children, it certainly could have amended the existing law so at that time. Where a conflict exists between different sections of a statute, it is the duty of the Court to reconcile them, or if reconciliation is not possible, the one that best conforms to the legislative intent must stand. Board of Trustees v. Christy, 246 Ga. 553, 272 S.E. 2d 288 (1980).

O.C.G.A. § 15-11-48(e) complies with federal law (specifically 42 U.S.C. § 5633(c)(3)) requiring separate treatment of status offenders (unruly children) and delinquent children. In order to keep the federal funding in any fiscal year starting after January 1, 1993, the states must provide that "juveniles... who have committed offenses that would not be criminal if committed by an adult... shall not be placed in secure detention facilities". 42 U.S.C. § 5633(a)(12)(A); 42 U.S.C. § 5633(c)(3). "Boot camp" programs are fundable under federal law as part of the gang-free schools initiative, provided that children assigned to "boot camp" have been adjudicated delinquent or have volunteered to be placed there without a delinquency adjudication. 42 U.S.C. § 5667f-2(a)(2).

C. The Trial Court Committed Reversible Error When It Placed Appellant In Secure Detention And In An Incarceration Program Because Of His Status As A "Truant" In Violation Of The Due Process Clause Of The Fourteenth Amendment Of The United States Constitution And Article 1, § 1, Para. 1 Of The Georgia Constitution.

Placing a status offender such as Appellant in a secure facility violates the due process provisions of the Fourteenth Amendment of the United States Constitution and Article 1, § 1, Par. 1 of the Georgia Constitution because an unruly child is being punished, not for a violation of the law, but because of his status as a truant. In D.B. v. Tewksbury, 545 F. Supp. 896 (D.C. Or., 1982), delinquent and unruly children were being held in a separate part of an adult jail with no sight and sound contact with adults. The findings of the Court that confinement equals punishment and that unruly children cannot be confined as punishment for their "status" are persuasive in Appellant’s situation.

The clear language of O.C.G.A. § 15-11-66(b) is that a delinquent child may be ordered to "serve" up to 90 days in a youth development center. The use of this language that tracks punishment sentencing for adults indicates that punishment is intended. The youth development center where Appellant has been sent is "not a treatment program in the therapeutic sense"(R.10A). It is incarceration intended to punish delinquent children and dissuade violations of the criminal law.

CONCLUSION

For the foregoing reasons Appellant should be immediately released from the "boot camp" facility, the order of disposition vacated, and the case should be remanded for an appropriate order of disposition.

Respectfully Submitted,

Attorney for Appellant

CERTIFICATE OF SERVICE

I hereby certify that I have duly served a copy of the foregoing on _____________, Assistant Solicitor, DeKalb County Juvenile Court, 3631 Camp Circle, Decatur, GA 30032.

This day of October, 1996.

___________________

IN THE COURT OF APPEALS

STATE OF GEORGIA

X

IN THE INTEREST OF: X

X

, A CHILD X CASE NO.

X

X

MOTION FOR EMERGENCY RELIEF

COMES NOW, Appellant in the above-styled appeal and requests that the Court grant him relief, pursuant to Rule 40(b) of the Rules of the Court of Appeals of the State of Georgia, in the nature of supersedeas and shows the Court the following:

1.

Appellant’s case was docketed on September 27, 1996.

2.

Appellant is sixteen years of age as of September 23, 1996(R. 15A).

3.

Appellant is currently incarcerated in a youth development center with approximately one hundred ninety delinquent children (R. 10A).

4.

Appellant is an unruly child (truant) (R.18A).

5.

Appellant is suffering and will suffer irreparable harm from his continued incarceration with delinquent youth during the pendency of his appeal.

6.

Appellant requested release pending appeal from the trial Court (R. 5A) and was denied (R. 7A).

WHEREFORE, Appellant requests that this Court direct an immediate order to the Department of Children and Youth Services, the agency in charge of the Bill E. Ireland Youth Development Campus, to return Appellant to the DeKalb County Juvenile Court Intake area for release Appellant to his legal guardian.

Respectfully Submitted,

Attorney for Appellant

CERTIFICATE OF SERVICE

I hereby certify that I have duly served a copy of the foregoing Motion For Emergency Relief on _______________, Assistant Solicitor, DeKalb County Juvenile Court, 3631 Camp Circle, Decatur, GA 30032.

This day of October, 1996.

___________________

IN THE COURT OF APPEALS

STATE OF GEORGIA

X

IN THE INTEREST OF: X

X

J.J., A CHILD X CASE NO. A97A0340

X

X

X

ENUMERATION OF ERRORS

1.

The trial court committed reversible error when it placed Appellant in secure detention on August 13, 1996, in violation of O.C.G.A.§ 15-11-48(e).

2.

The trial court committed reversible error when it placed Appellant in secure detention and in an incarceration program as disposition on an adjudication of unruliness in violation of O.C.G.A. § 15-11-48(e).

3.

The trial court committed reversible error when it placed Appellant in secure detention and in an incarceration program because of his status as a "truant" in violation of the 14th Amendment of the United States Constitution and Article 1, § 1, Para. 1 of the Georgia Constitution.

STATEMENT OF JURISDICTION

The Georgia Court of Appeals has jurisdiction of this appeal because the judgement in this juvenile case is not one of those cases within the exclusive or general jurisdiction of the Supreme Court. Article VI, Section VI, Paragraphs II and III of the Constitution of the State of Georgia.

Respectfully Submitted,

Attorney for Appellant

CERTIFICATE OF SERVICE

I hereby certify that I have duly served a copy of the foregoing Enumeration of Errors on Jimmy Tarver, Assistant Solicitor, DeKalb County Juvenile Court, 3631 Camp Circle, Decatur, GA 30032.

This day of October, 1996.

___________________

IN THE COURT OF APPEALS

STATE OF GEORGIA

X

IN THE INTEREST OF: X

X

J.J., A CHILD X CASE NO. A97A0340

X

X

X

AFFIDAVIT OF POVERTY

COMES NOW, Linda A. Pace, as counsel for Appellant, who requests to file this appeal in forma pauperis and shows the Court as follows:

1.

Appellant is 16 years of age, is incarcerated, and is indigent.

2.

Appellant’s father is indigent and qualifies for representation by the Office of the Public Defender which is representing Appellant on appeal.

3.

Appellant and his family are, by reason of their indigence, unable to pay the costs of this appeal.

This ______day of October, 1996.

________________________

Public Defender

Sworn to and subscribed

in my presence, this _____

day of October, 1996.

________________________