JUVENILE COURT PRACTICE & PROCEDURE OUTLINE:
DEPRIVATION MATTERS

The outline below is not intended as a detailed analysis of practice and procedure in Georgia Juvenile Courts, but is designed to provide a general overview of the law regarding deprivation matters and to offer guidance in understanding the process. Note that this outline references the new code section numbers effective July 1,2000 with the old numbers in parentheses.

I. Jurisdiction

A. Exclusive Jurisdiction over:

Deprivation actions involving children under 18
Proceedings for obtaining judicial consent for marriage, employment, or enlistment in armed forces
Proceedings under the Interstate Compact on Juveniles, or any comparable law, if enacted or adopted in this state.
Actions for termination of parental rights, as well as actions for termination of the rights of the biological father who is not the legal father of the child (other than in connection with adoption proceedings...in which the superior courts have concurrent jurisdiction to terminate). See O.C.G.A. § 15-11-28(a)(2)C).
Actions involving children who are under court's supervision or on probation.
Proceedings related to prior notice of parent or guardian of a minor seeking an abortion
B. Concurrent Jurisdiction over:

Custody and support cases transferred from Superior Court (O.C.G.A. § 15-11-28). This includes cases under the Uniform Child Custody Jurisdiction Act (O.C.G.A.§ 19-9-40, et. seq.).
Legitimation petitions transferred from superior court.
Legitimation petitions filed in juvenile court regarding a child who is the subject of a pending deprivation proceeding in that court at the time the legitimation petition is filed.
Guardianships.
Name changes in conjunction with legitimation.
Note: Deprivation proceedings between parents are no longer prima facie custody matters which must be brought in the superior court as held in In the Interest of W.W.W., 213 Ga. App. 732 (1994) and In the Interest of M.A. and M.A., 218 Ga. App. 433 (1995). In In r e M.C.J., S99G0742 (10/18/99), 99 FCDR 3781, the Georgia Supreme Court held that the holdings of the Court of Appeals that all deprivation actions brought by one parent against another are prima facie custody cases, and all such actions must be filed in superior court are erroneous. Each deprivation petition must be judged on its own merits. If it appears form an analysis of the pleading that it is actually a disguised custody matter, then it is outside the subject matter jurisdiction of the juvenile courts. The Supreme Court held that there is no constraint which would prevent a juvenile court from considering whether it had jurisdiction over a particular case initiated by a deprivation petition.
C. NO JURISDICTION over deprivation allegations brought a non-custodial parent to obtain custody from a custodial parent. Lewis v. Winzenreid, 263 Ga. 459 (435 S.E.2d 602) (1993).

D. Superior Court Jurisdiction: In a parental custody action in superior court, the judge may not declare both parents unfit, turn the case into a juvenile court deprivation proceeding, award custody to DFCS, and incorporate a case plan into the custody order, without first notifying the parties that deprivation would be at issue and insuring that subject matter jurisdiction over deprivation is lodged in the juvenile court. This is true even in counties where the superior court judge also presides in juvenile court. Watkins v. Watkins, 266 Ga. 269, 466 S.E.2d 860 (1996)

E. Emergency Jurisdiction Over Nonresidents: the court can exercise emergency jurisdiction over a child whose home state is not Georgia under § 19-9-43(a)(3)(B) when such an exercise "is necessary...to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent." In the Interest of M.M., 222 Ga. App. 313, 414 S.E.2d 53 (1996). Note that O.C.G.A. § 15-11-14 (§ 15-11-17.1) authorizes the Department of Human Resources to provide emergency care and supervision to any child for up to seven days when the person with custody of the child is unable to care for the child due to an emergency or illness, such person or other designated individuals request the department to exercise emergency custody, and the child is not in imminent risk of abuse or neglect other than the risks arising form the caretaker's absence. See

F. Unless otherwise provided by law, all orders affecting a deprived juvenile terminate when the child reaches age 21; any orders affecting a deprived child after age 18 are in effect through the voluntary continuation of the juvenile in DFCS custody or other programs. O.C.G.A. § 15-11-58(r) (§ 15-11-41(r)).

II. Venue: places where a deprivation action may be commenced (O.C.G.A. § 15-11-29)

A. County in which the child is present when the action is commenced

B. County in which the child resides

C. A child need not be physically present in the county in which that child resides on the date of filing.

D. If superior court judge sits as juvenile court judge, hearings may be held in any county within the judicial circuit over which the judge presides.

E. A deprivation proceeding may be transferred to the county in which the child resides, for the convenience of parties and witnesses.

III. Notice and Service

A. For 72-hour detention hearing (O.C.G.A. § 15-11-49(c)(4) (§ 15-11-21(c)(4))):

Reasonable notice, either oral or written, must be given to the child, and, if they can be found parents, guardian, or custodian
Notice must state time, place, and purpose of hearing
If parent, guardian, or custodian cannot be found, court shall appoint a guardian ad litem for other hearings (for service in TPR hearings, see section X infra):
Summon shall be issued to:
a. Parents

b. Anyone with physical custody of child

c. Child if the child is 14 years old or older

d. Guardian

e. Guardian ad litem, and

f. Any other persons who appear to the court to be proper or necessary parties.

g. Foster parents, preadoptive parents or relatives providing care for a child shall be provided with notice and an opportunity to be heard BUT this provision shall not be construed to require that these persons be made a party to a hearing solely on this basis. O.C.G.A. § 15-11-58.
5. If served by means other than publication, a copy of the petition shall accompany the summons. O.C.G.A. § 15-11-39 (b) (§ 15-11-26(b)).

6. Personal service within Georgia: A resident parent is entitled to be served personally at least 24 hours before the hearing unless the parent cannot be found. O.C.G.A. § 15-11-39.1(a).
7. Service by Mail within Georgia: If the parents' address is known or can be ascertained, the summons may be served by mailing or by registered or certified mail at least 5 days before the hearing.

8. Nonresident service: non-residents are entitled to be served personally or by registered or by certified mail at least 5 days before the hearing. O.C.G.A. § 15-11-39.1.
9. UCCJA mandates that notice of a proceeding under that act shall be served, mailed, delivered, or last published at least 30 days before any hearing. O.C.G.A. § 19-9-45(b).

10. Publication:

a. If, after reasonable effort, a party cannot be found and a current address cannot be ascertained, service may be made by publication, in which case the hearing shall not be held earlier than 5 days after the date of the last publication. O.C.G.A. § 15-11-39.1(b) (§ 15-11-27(d))

b. Published summons shall indicate the general nature of the allegations and where a copy of the petition can be obtained. O.C.G.A. § 15-11- 39(b) (§ 15-11-26(b)).

c. See O.C.G.A. § 9-11-4 and § 9-11-5.

B. Notice requirements and time limits must be strictly complied with. If notice and hearing requirements are not adhered to, the petition shall be dismissed without prejudice. Sanchez v. Walker County DFCS, 140 Ga. App. 175, 230 S.E.2d 139 (1976).

IV. Persons Typically Involved in Deprivation Proceedings

A. Parties defined: Although not actually defined in the code, proper parties to a deprivation action may include the child, parents, guardians, legal caretaker or other custodian of child, guardian ad litem, other "proper and necessary parties" including CASA, DFCS and DHR workers, as well as counsel for the above. O.C.G.A. § 15-11- 39(b) (§ 15-11-26(b)).

B. Parents:

Parents of a child born in wedlock or legitimated pursuant to O.C.G.A. § 19-7-20
Mother of a child born out of wedlock is a necessary party
Biological fathers (see O.C.G.A. § 15-11- 96 (§ 15-11-83) for rights of biological fathers)
C. Special Assistant Attorney General (SAAG): attorney representing DFCS

D. Division of Family and Children Services (DFCS) workers: may be the caseworker assigned to the case, a caseworker who was assigned to the case at one time, a supervisor, or another DFCS worker

E. Practical note: In most DFCS offices, one DFCS worker (usually child protective services {CPS}) is initially assigned to the case, and when the child is placed in foster care the child's case is transferred to a different DFCS worker (usually a placement worker). If you are calling or cross-examining witnesses, be sure you know which part of the case the various DFCS workers can testify about.

F. Attorney(s) for parent(s): Each parent, guardian, and custodian, may have his or her own attorney.

G. Attorney(s) for child(ren)

Counsel must be provided for a child not represented by his parent, guardian, or custodian. O.C.G.A. § 15-11- 6 (§ 15-11-30).
In any proceeding for terminating parental rights or any rehearing or appeal thereon, the court shall appoint an attorney to represent the child as his counsel and may appoint a separate guardian ad litem or a guardian ad litem who may be the same person as his counsel. O.C.G.A. § 15-11-98 (§ 15-11-85).
H. Guardian Ad Litem (GAL):

The GAL may be an attorney or a lay person who is appointed as an officer of the court to represent the best interests of the child.
In some courts the GAL is called a Child Advocate Attorney
At any stage of a proceeding under this article, the court (on application of a party or on its own motion) shall appoint a guardian ad litem for a child who is a party to the proceeding if he has no parent, guardian, or custodian appearing on his behalf or if their interests conflict with his or in any other case in which the interests of the child require a guardian. A party to the proceeding or his employee or representative shall not be appointed.
Court Appointed Special Advocate (CASA): In counties with CASA programs, the court may appoint an attorney or a CASA or both to act as GAL. A CASA is a volunteer who has been screened and trained regarding deprivation, child development, and juvenile court procedures and has been appointed by the court as GAL in a deprivation case. O.C.G.A. § 15-11-9 (§ 15-11-55).
A child's interests in a deprivation proceeding necessarily conflict with those of his or her parents by the very nature of the proceeding. 76 Opinion of the Attorney General 131 (1976); O.C.G.A. § 15-11- 49(c)(4) (§ 15-11-21(c)(4)),§ 15-11-6(b) (§ 15-11-30(b)), § 15-11- 9 (§ 15-11-55).

I. Practical Note: Be aware of potential conflicts between the roles of attorney as counsel for the child and attorney as guardian ad litem. Most courts that appoint attorneys for children either appoint the attorney as a guardian ad litem and not "as counsel," or appoint one attorney to serve both functions.

J. Right to Counsel O.C.G.A. § 15-11-6 (§ 15-11-30):
All parties are entitled to representation by legal counsel at all stages of the proceedings.
Counsel shall be appointed for indigent parties who desire representation.
An indigent person is one who at the time of requesting counsel is unable without undue financial hardship to provide for full payment of legal counsel and all other necessary expenses for representation.
Separate counsel must be appointed for parties whose interests conflict.

V. Removal of the child from the home O.C.G.A. § 15-11-45 (§ 15-11-17), § 15-11-47 (§ 15-11-19)

A. If an initial allegation of deprivation is made directly to DFCS, DFCS may contact the police to facilitate an investigation and the preparation of an investigative report. Note that the investigative report should be included in subsequent petitions and complaints to provide a factual basis for removal.

B. DFCS or the police must notify the court (or court designee) who must make a determination based on the facts presented as to whether the child should be removed from the home.

C. The court may issue a verbal authorization for the child to be taken into protective custody if the court finds:

there are reasonable grounds to believe the child is suffering from illness or injury, or
the child is in immediate danger from his or her surroundings, and removal from the home is necessary. This authorization is often referred to as an emergency shelter care order. O.C.G.A. § 15-11-45(a)(4) (§ 15-11-17(a)(4)).

D. Practical note: The removal of a child from the home usually occurs prior to the verbal authorization to do so. If DFCS or the police feel that a child is in immediate danger they will remove the child to a safe place and "with all reasonable speed" "promptly contact a juvenile court intake officer." O.C.G.A. § 15-11-47 (§ 15-11-19).

E. Emergency Care (O.C.G.A. § 15-11-14 (§15-11-17.1))
DHR is authorized to provide emergency care and supervision to any child without seeking a court order for a period not to exceed seven days when:
As a result of an illness or emergency the person with physical and legal custody of the child is unable to provide for the care and supervision of the child and such person or other designated individual requests the department to exercise emergency custody;
The child is not at imminent risk of abuse or neglect.
The Department shall endeavor to place the child(ren) first with a relative of the parent or guardian, and then in shelter care, or in emergency shelter care, or shall make other appropriate placement arrangements.
The Department shall have the same rights and privileges as does the custodial parent or legal custodian.
At any time during such seven-day period, upon notification of the Department that a parent, guardian or a relative is able to provide care and supervision over the child(ren), the Department shall release the child to that person.
Upon expiration of such seven-day period, if the child or children have not been released or if the Department determines that there is an issue of neglect, abandonment, or abuse, the Department shall promptly contact a juvenile court intake officer or bring the child(ren) before the juvenile court pursuant to § 15-11-47 (§15-11-19) or § 15-11-49 (§15-11-21). If the juvenile court finds that shelter care is warranted, the child(ren) shall be deemed to have been placed in shelter care at the time such finding was made.

F. Place of Detention O.C.G.A. § 15-11-48 (§ 15-11-20):
A licensed foster home or home approved by court
A facility operated by a licensed child welfare agency or
A shelter care facility operated by the court
In a hospital, with relatives, or in other court-approved settings

VI. Pleadings

A. There are no filing fees in juvenile court.

B. Complaint: The filing of a complaint is the most common way to initiate a deprivation action. URJC 4.1 states, ". . . [all] proceedings shall be initiated in the juvenile court upon the receipt of a written juvenile complaint form, petition, transfer from another court . . . which shall be submitted to the court and shall be referred to an intake officer of the court . . . in all cases in which a proceeding is initiated by other than a complaint, the form JUV-2 shall be completed by the person bringing the action and shall accompany the initiating document."

C. Petition: Deprivation petitions may be filed by anyone who has knowledge of the facts alleged or is informed and believes they are true. The person filing the petition need not be a relative of the child, nor must their knowledge be first-hand. (O.C.G.A. § 15-11-38 (§ 15-11-24)). In In the Interest of A.V.B., 221 Ga.App. 241, 474 S.E.2d 114 (1997), the Georgia Supreme Court held a deprivation petition was properly filed against Dougherty County DFCS by the Georgia Advocacy Office, despite the fact that the GAO was not a parent, relative, or guardian ad litem. The court also held that the petition was not barred by sovereign immunity, since the relief sought was similar to injunctive relief and no damages were sought.

D. The deprivation petition must contain the following O.C.G.A. § 15-11-38.1 (§ 15-11-25):

ordinary and concise language stating the facts demonstrating the basis for the parents' or custodians' alleged failure to provide proper parental care and control [merely reciting the statutory requirements is insufficient because it lacks adequate information to enable the parent to prepare a defense, In re D.R.C., 191 Ga. App. 278 (1989)];
a statement that it is in the best interest of the child and the public that the proceeding be brought;
the name, age, and residence address, if any, of the child on whose behalf the petition is brought;
the names and residence addresses, if known to the petitioner, of the parents, guardian, or custodian of the child and of the child's spouse, if any; or similar information of relatives;
whether the child is in custody, the place of detention, and the time the child was taken into custody. Time Limits to File Petition O.C.G.A. § 15-11-49(e) (§ 15-11-21(e)); URJC 6.8:
If the child is in state custody, petition must be filed within 5 days of detention hearing
If the child is not in custody, must be filed within 30 days of detention hearing.
Failure to comply with these time limits shall result in dismissal without prejudice.
E. No petition may be filed without endorsement by the court or the court's designee. The court or the court's designee must determine that "the filing of a petition is in the best interest of the public and the child," before a petition may be filed. O.C.G.A.§ 15-11-37 (§ 15-11-23); URJC 4.2.

F. Amendments: "A petition may be amended at any time prior to adjudication, provided that the court shall grant the parties such additional time to prepare as may be required to ensure a full and fair hearing." URJC 6.6.

VII. Hearings

A. Generally

Closed court: All deprivation proceedings are conducted without a jury and are closed to the public. The court may allow certain persons to observe proceedings. A party to a deprivation proceeding may request the exclusion of all unnecessary persons from the courtroom. O.C.G.A. § 15-11- 41(a) (§ 15-11-28(a)).
The child may be excluded from part or all of deprivation proceedings.
Recordation: proceedings shall be recorded by appropriate means (stenographic, electronic, mechanical, or other) unless waived by the juvenile and his parent, guardian, or attorney. O.C.G.A. § 15-11-41(b) (§ 15-11-28(b)).
Continuances: the court has discretion to continue a hearing for a reasonable time for good cause shown. If the granting of a continuance extends the date of the hearing beyond the statutory limits of O.C.G.A. § 15-11-39(a) (§15-11-26(a)), the court shall enter a written order stating the specific reason for the continuance and in whose custody the child is placed. URJC 11.3.

B. Informal detention hearing

Purpose: to determine if detention (shelter care) is required to protect the child, to prevent the child from being removed from the jurisdiction, or to provide for the child's care or supervision because no parent, guardian or custodian is able to do so until the full hearing can be held.
Time limits for hearing: must be held within 72 hours after placement in shelter care. If 72 hour limit expires on Saturday, Sunday or legal holiday, the hearing must be held the following day. O.C.G.A. § 15-11-49 (§ 15-11-21); URJC 6.8.
Failure to adhere to the time limits of O.C.G.A. § 15-11-49 (§ 15-11-21) shall result in dismissal without prejudice. Sanchez v. Walker County DFCS, 140 Ga. App. 175, 230 S.E.2d 139 (1976).
Requirements of this code section may be waived. Irvin v. DHR, 159 Ga. App. 101, 282 S.E.2d 664 (1981).
Rules of evidence are relaxed and hearsay is admissible.

C. Adjudicatory Hearing

Purpose: to determine whether child is currently deprived.
Time limits for hearing (O.C.G.A. § 15-11- 39 (§ 15-11-26); URJC 6.8):
a. Court shall set time for hearing not later than ten days after filing of petition if child is in custody

b. Court shall set time for hearing within 60 days of filing of petition if child not in custody
c. hearing may be continued for cause

d. time limits may be waived
Basis for finding deprivation O.C.G.A. § 15-11-2 (§ 15-11-2)
a. Child is without proper parental care, control, subsistence, education as required by law, or other care or control necessary for mental, physical or emotional health or morals

b. Child has been placed for adoption or care in violation of law

c. Abandonment

d. Child is without a parent, guardian, or custodian

Standard of proof: clear and convincing evidence
Physical and Mental Examinations: At any time during a proceeding the court may order the child or parents to be examined by a physician or psychologist. O.C.G.A. § 15-11-12(b) (§ 15-11-32(b)).
At any hearing on a petition alleging deprivation, the juvenile court is required to make and file findings as to whether the child is deprived and whether such deprivation is found to have been the result of alcohol or other drug use. O.C.G.A. § 15-11-54 (§ 15-11-28(g)).
D. Provisional Hearing (O.C.G.A. § 15-11-39.2 (§ 15-11-29)

If a party must be served by publication, the court may conduct a provisional hearing on the allegations of the petition before the time prescribed by the rules governing publication.
The court may enter an interlocutory order which remains in effect until the date of the final hearing.
Service for the provisional hearing must state:
a. time and place of provisional hearing

b. requirement that any party served by means other than publication must appear at provisional hearing

c. findings and orders made at the provisional hearing will become final at the final hearing unless party served by publication appears at the final hearing

Child must be personally before the court at the provisional hearing. O.C.G.A. § 15-11-39.2(a)(3) (§ 15-11-29(a)(3)).
If the party served by publication fails to appear at the final hearing, the findings of fact and interlocutory orders become final without further evidence.
If the party served by publication appears at the final hearing, all interlocutory findings and orders shall be vacated and a new hearing on the petition shall commence.
E. Disposition (O.C.G.A. § 15-11-55 (§ 15-11-34)

Purpose: to decide placement best suited to the protection and physical, mental, and moral welfare for the child
Time of hearing:
a. The disposition hearing usually occurs in the same proceeding as the adjudication; it is handled as a bifurcated hearing.

b. The dispositional hearing may be held at a later time (within a reasonable period) to allow time for reports or evaluations to be completed. The dispositional hearing should be held within a reasonable time from the adjudicatory hearing. O.C.G.A. § 15-11-56 (§ 15-11-33).

3. Social Study and Report: If the allegations of a petition alleging deprivation (or delinquency or unruliness) are admitted by a party or if notice of a hearing has been given, the court prior to the hearing may direct that a social study or home evaluation be conducted and a written report be presented to the court. A home evaluation is common practice in DFCS cases, although the report is often presented through testimony rather than as a written report. In private deprivation cases DFCS may be directed to conduct a home evaluation or the court may designate someone else to do the evaluation. O.C.G.A. § 15-11-12(a) (§ 15-11-32(a)).

4. Mental or Physical Examination: At any time during the life of the case, the court may order the child to be examined by a physician or psychologist. O.C.G.A. § 15-11-12(b) (§ 15-11-32(b)).

5. If the child is before the court for the first time, the court may order the child and the child's parents or guardian to participate in counseling designed to prevent future conditions of deprivation. O.C.G.A. § 15-11-57 (§ 15-11-36.1).

6. Upon a finding of deprivation the court may give custody to the child's parent(s), guardian, or other custodian, including a putative father, subject to conditions prescribed by the court.

7. Upon a finding of deprivation the court may give custody to DFCS.

8. Protective Orders: The court may issue a protective order which restrains or otherwise controls the conduct of a person if proper notice and opportunity for hearing have been made. O.C.G.A. § 15-11-11 (§ 15- 11-57). Such an order may require any such person:

a. To stay away from the home or the child;

b. To permit a parent to visit the child at stated periods;

c. To abstain from offensive conduct against the child, his parent, or any person to whom custody of the child is awarded;

d. To give proper attention to the care of the home;

e. To cooperate in good faith with an agency to which custody of a child is entrusted by the court or with an agency or association to which the child is referred by the court;

f. To refrain from acts of commission or omission that tend to make the home not a proper place for the child;

g. To ensure that the child attends school pursuant to any valid law relating to compulsory attendance;

h. To participate with the child in any counseling or treatment deemed necessary after consideration of employment and other family needs; and

i. To enter into and complete successfully a substance abuse program approved by the court.

j. Protective orders may be enforced by citation to show cause for contempt of court by reason of any violation thereof and, where protection of the welfare of the child so requires, by the issuance of a warrant to take the alleged violator into custody and bring him before the court. O.C.G.A. § 15-11-11 (§ 15-11-57).

9. If a child is found to be deprived as a result of alcohol or drug abuse and the court awards custody of the child to someone other than the person who deprived the child, the court is authorized to further order that legal custody of the child may not be transferred back to that person unless she or he undergoes substance abuse treatment and random substance abuse screenings and those screenings remain negative for at least six consecutive months. O.C.G.A. § 15-11-55(e) (§ 15-11-34(e)).
10. An initial award of custody shall remain in effect for 12 months from the time the child after the date the child is considered to have entered foster care, which is defined as the date of the first judicial finding that the child has been subjected to child abuse or neglect or the date that is 60 days after the date on which the child is removed from the home, whichever is earlier. O.C.G.A. § 15-11-58(k) (§ 15-11-41(l)).

11. If, at the end of the 12-month order, DFCS does not feel the child can be safely returned home, DFCS can file a motion to extend custody (MTE), which, if granted (after proper notice and hearing), will allow DFCS to retain custody of the child for not more than an additional 12 months. O.C.G.A. § 15-11-58 (§ 15-11-41(o)). The hearing on this motion must occur prior to the expiration of the previous 12-month order.

12. If a court finds that reunification of a deprived child with his or her birth family is not in the best interests of the child and grants custody to a relative, the custody order shall remain in effect until the child's 18th birthday unless modified following a petition for modification. Within 36 months of the custody order and every 36 months thereafter, a person or agency designated by the court shall submit a report to the court addressing whether the custodial relative continues to be qualified to receive and care for the child. A copy of the report shall be mailed to the parents at their last known address. O.C.G.A. § 15-11- 58(i) (§ 15-11-41(j)).

13. All orders concerning the custody of deprived children may be terminated by the court prior to their expiration if it appears to the court that the purposes of the order have been accomplished. O.C.G.A. § 15-11-58 (§15-11-41(q)).

14. Unless otherwise provided by law, all orders affecting the child terminate when the child reaches age 21 and the child is discharged from further obligation or control. O.C.G.A. § 15-11-1(o) (§ 15-11-1(o)).

F. Extension of Custody O.C.G.A. § 15-11-58 (§ 15-11-41(o)

Any person with temporary custody of a child may, with appropriate factual basis, petition the court for an extension of custody.
A hearing on a petition (motion) to extend custody must be held prior to the expiration of the current order of custody (i.e. the petition must be filed in sufficient time for a hearing to be held on the matter).
A petition to extend custody cannot be filed after the custody order expires. Once the order expires, if the petitioner believes that an extension of custody is necessary to protect the child, a new petition alleging deprivation must be filed.
A hearing shall be held on a motion for extension of custody to determine the future status of the child. The petitioner need not establish present deprivation; the court is to determine whether "extension of custody is necessary to accomplish the purposes of the order extended." The implication is that if the causes of the original deprivation have not been remedied (i.e. the requirements of the case plan have not been fulfilled), then an extension will be granted.
Practical note: The extension hearing should focus on the purposes of the original order, not on new circumstances which may appear to be a cause of deprivation. For example, if the factual basis for the original deprivation was that the mother had no home and no means of supporting the child and the case plan required her to find a home and a job, if the mother has a home and a job at the time of the motion to extend custody, DFCS should not request an extension of custody based on the fact that the mother has a man living in the home who is abusive toward the mother. The proper procedure would be to return the children to the home and if there is evidence of present deprivation of the child, to file a new petition for deprivation. If there appears to be immediate danger to the child, DFCS can file a petition based on that danger and request court approval to maintain the child in protective custody (without first returning the child to the home).
At a hearing on a motion to extend custody, the court shall determine the permanency plan for the child. The plan shall state whether, and, if applicable, when the child shall be returned to the parent or referred for termination and placed for adoption or referred for legal guardianship. Where DFCS has documented a compelling reason why one of these options would not be in the best interests of the child, the permanency plan shall state that the child shall be placed in another permanent living arrangement. The plan shall also state whether reunification services should be continued. O.C.G.A. § 15-11-58 (§ 15-11-41(o)).
In keeping with the provisions of the Adoption and Safe Families Act of 1997 (P.L. 105-89), the focus of hearings on a motion to extend custody has shifted to determining the permanency plan for the child. O.C.G.A. § 15-11- 58(o)(1) (§ 15-11-41(o)(1)).
On January 28, 1998 the Court of Appeals decided In re B.G. and R.G., 231 Ga. App. 39, 497 S.E.2d 572 (1998), a case which has been appealed further. In that case the Court held that O.C.G.A. § 15-11-58(f) (§ 15-11-41(f)) only allows a single extension of custody to DFCS. The Court said "[t]he juvenile court thus had no authority to extend [the order] further, as O.C.G.A. § 15-11-58(f) (§ 15-11-41(f)) provides that an order of disposition giving DFCS temporary custody of a deprived child can be extended 'for not more than two years.'" {At the time of the decision O.C.G.A. § 15-11-58 (§ 15-11-41) allowed an order of temporary custody to DFCS to remain in effect for up to two years}. The Court also said, however, that if conditions of deprivation exist, nothing prohibits DFCS from filing a new deprivation case altogether. The full effects of this ruling are not yet known, but some county DFCS offices are interpreting this case to mean that any children being held under a second or greater extension order are no longer legally in DFCS custody. To remedy this situation, those offices are filing new deprivation petitions on all those children.
Reasonable notice of the factual basis for the motion and of the hearing and an opportunity to be heard must be given to the parties affected.

G. Modifications and other proceedings

If any party or person having an interest in the child wishes to modify the terms of the orders of the court, the party may put that request in the form of a motion and request a hearing on the matter. "An [deprivation] order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child . . ." O.C.G.A. § 15-11-40(b) (§ 15-11-42(b)).
The most common type of motion is a motion to modify custody or visitation (i.e. to change from supervised visitation to unsupervised visitation).
Return of Physical Custody: If a deprived child is in the custody of DFCS and DFCS wants to return custody to the parent, the court must approve this return of custody and may impose conditions and limitations necessary for the protection of the child. The court may recite the conditions which must occur before the child can be returned home and may authorize the return of the child upon completion of those conditions, without the need for an additional court hearing. O.C.G.A. § 15-11-58 (§ 15-11-41(a)(2)).
If custody is placed with DFCS-DHR, the court may at any time conduct a sua sponte judicial review of the current placement plan for the child. After such review the court may:
a. order DFCS to comply with the current plan;

b. order DFCS to devise a new plan within available DFCS resources;

c. make any other order regarding placement or custody outside DHR that the court finds to be in the best interest of the child. O.C.G.A. § 15-11- 55(c) (§ 15-11-34(c)).

5. Practical Note: O.C.G.A. § 15-11-55(c) (§ 15-11-34(c)) states that any placement of custody outside DHR relieves DHR of further custody. This has been interpreted to mean that the court cannot award joint custody to DHR and to an unrelated third party. In re J.N.T., 212 Ga. App. 498, 441 S.E.2d 918 (1994). This code section was enacted when the Department of Juvenile Justice (then called Department of Children and Youth Services) was still a division of DHR. There has been discussion as to whether a court can order joint custody to DFCS and the Department of Juvenile Justice. This code section appears to prohibit this practice but judges routinely award joint custody to both departments and the issue has never been raised before the Court of Appeals.

6. A deprived child SHALL NOT be committed to or confined in an institution or other facility designed or operated for delinquent children unless that child has also been found to be delinquent. O.C.G.A. § 15-11-55(b) (§ 15-11-34(b)).
H. Permanency Hearing O.C.G.A. § 15-11-58(o) (§ 15-11-41(b)(5)(A)), § 15-11- 58(f) (§ 15-11-41(f)), § 15-11-58(h) (§ 15-11- 41(h)), § 15-11-58(I) (§ 15-11-41(I)), § 15-11-58(k) (§ 15-11-41(k), § 15-11-58(o) (§ 15-11-41(o)) In keeping with the Adoption and Safe Families Act of 1997 (P.L. 105-89), the juvenile code has been amended to include a er emphasis on permanent homes for children early in the deprivation process. The code sections cited above describe each situation in which the court must hold a "permanency hearing." A permanency hearing must be held within 30 days of DFCS filing a non-reunification plan and must be held when DFCS files a motion to extend custody with the Division. Section IX on page 16 discusses these hearings more fully.

I. Appeals

The first step in the appeals process is a request to the issuing juvenile court for a modification or vacation of the order. O.C.G.A. § 15-11-40 (§ 15-11-42). The juvenile court has authority to revoke, reverse or modify its own order, even an order terminating parental rights. In re P.S.C., 143 Ga. App. 887, 240 S.E.2d 165 (1977); In re H.A.M., 201 Ga. App. 49, 410 S.E.2d 319 (1991).
An order shall be set aside if:
a. it was obtained by fraud or mistake;

b. the court lacked jurisdiction;

c. newly discovered evidence so requires. O.C.G.A. § 15-11-40(a) (§ 15- 11-42(a)).

3. If the matter is heard by an associate juvenile court judge and is other than a detention or probable cause hearing, any party may file a written request within five days after receiving written notice of the findings of the hearing to have a rehearing by a full judge. O.C.G.A. § 15-11-21(e) (§ 15-11-10(e)). The rehearing contemplated by this code section is a de novo review of the evidence presented to the associate juvenile court judge; it is neither a review of the associate judge's findings nor a de novo evidentiary hearing. In re M.E.T., 197 Ga. App. 255, 398 S.E.2d 30 (1990).

4. An order of the juvenile court may be challenged by a motion for a new trial based on the grounds permitted under O.C.G.A. § 5-5-20 through § 5-5-25. In re T.A.W., 454 S.E.2d 134, 265 Ga. 106 (1995).

5. Appeals to the Court of Appeals or Supreme Court shall be in the same manner as appeals from the superior court.

a. The rule of Jacobson v. State, 201 Ga. App. 749, 751 (2)(b), 412 S.E.2d 859 (1991) is applied in juvenile court: Objections not raised at trial are deemed waived and cannot be raised for the first time on appeal. Applied in In the Interest of D.L.S., 224 Ga.App. 660, 482 S.E.2d 418 (1997).

b. Notice of appeal must be filed within 30 days after entry of final judgment.

c. For purposes of appeal, all orders resulting in a final judgment at the conclusion of a dispositional hearing are considered "final judgments" according to O.C.G.A. § 5-6-34 which provides for appeals "[w]here the judgment is final--that is to say--where the cause is no longer pending in the court below." J.T.M. v. State, 142 Ga. App. 635 (1977). BUT appeal from an order is premature when the appeal is made while the order's charges are still in a period of abeyance. In the Interest of M.T., 223 Ga. App. 615, 478 S.E.2d 428 (1996).

d. O.C.G.A. § 5-6-34(a)(1) states, all final judgements are appealable by direct appeal.

e. The Court of Appeals in In re J.P., A95A2693 (3/14/96), 480 S.E.2d 8 (1997), held that when the underlying proceeding and the order being applied primarily address the issue of whether a child is deprived, rather than who shall have custody of the child, a direct appeal is the appropriate means by which to appeal. An application for discretionary appeal is not required in appeals from deprivation orders because deprivation cases under Title 15 are neither child custody cases nor domestic relations cases under O.C.G.A. § 5-6-35. (Also see In the Interest of A.V.B., 267 Ga. 728, 482 S.E.2d 275 (1997).

f. In the Interest of J.E.P. III, 252 Ga. 520 (1984) states that O.C.G.A. § 5-6-35(a)(2) applies to custody proceedings in which the state or a state agency is a party.

6. No order or judgement shall be superseded except in the discretion of the judge. O.C.G.A. § 15-11-3 (§ 15-11-64).

7. On review, evidence is examined under the standard of Jackson v. Virginia, 443 U.S. 307 (1979): all reasonable inferences from the evidence are construed in favor of the juvenile court's findings. In the Interest of J.K.D., 211 Ga. App. 776, 777, 440 S.E.2d 524 (1994)

8. Standing: A person not a party to a petition or motion in a deprivation action does not have standing to challenge the disposition of the petition or motion even where the appellant is the biological mother and the original petitioners were the maternal grandparents. In the Interest of J.C.H., 224 Ga.App. 708, 482 S.E.2d 707 (1997).

VIII. Discovery

A. Discovery is permitted in all deprivation cases but parties must request permission to proceed with formal discovery through the Civil Practice Act. Discovery is at the discretion of the judge and any discovery shall be made in conformance with Article V of the Civil Practice Act, O.C.G.A. §§ 9-11-26 through 9-11-37, except as modified by these rules. URJC 7.1.

B. All requests for discovery must be in writing and shall state in particularity the type of discovery requested.

C. All written requests for discovery shall include a Rule Nisi order stating the time and place of a hearing on the motion for discovery. URJC 7.2

D. Time limits

Written motion and notice of the hearing must be served no later than 3 days before the hearing (excluding weekends and holidays). URJC 7.2.
If the child is detained:
Any request for discovery must be filed within 48 hours of the filing of the petition.
Any permitted discovery must be completed within 15 days of the date of the order permitting such discovery.
A request for discovery extends the time limits for adjudication in § 15-11-39 (§ 15-11-26(a)). The adjudicatory hearing shall be set no later than 7 days after discovery ends, excluding weekends and holidays.
If the child is not detained:
Any request for discovery must be filed within 15 days of the filing of the petition.
Any permitted discovery must be completed within 30 days of the date of the order permitting such discovery.
The time periods and requirements listed in numbers 2 and 3 above form URJC 7.3. They may be modified at the discretion of the court upon a showing of good cause.
IX. Permanency Planning

A. Within 30 days after the child is taken into custody DFCS must submit a written report to the court containing a 30-day case plan or a recommendation that reunification is not appropriate with a statement of facts supporting the recommendation. O.C.G.A. § 15-11-58 (§ 15-11-41(c)).

The contents of the report are to be determined at a meeting held by DFCS in consultation with the Citizen Review Panel (if there is one), and the parents and children, when available.
DFCS must provide five days written notice of the meeting to the parents and must advise the parents that the report will be submitted to be an order of the court.

B. If reunification is recommended, the parents have five days to request a hearing on the case plan; if a request is not made the case plan becomes a court order.

C. Jurisdiction: When an order of disposition incorporates a reunification plan and the residence of the parent is not in the county of the court with jurisdiction or the residence of the parent changes to a county other than the county of jurisdiction, the court may transfer jurisdiction to the juvenile court in the county in which the parent with whom reunification is ordered resides. O.C.G.A. § 15-11-30.5 (§ 15-11-41.1)

D. A reunification plan shall address each reason requiring removal and shall contain at least the following:
The purpose for which the child was placed in foster care, including a statement of the reasons why the child cannot be adequately protected at home and the harm which may occur if the child remains in the home and shall also include a description of the services offered and the services provided to prevent removal of the child from the home;
A discussion of how the plan is designed to achieve a placement in the least restrictive, most family-like setting available and in close proximity to the home of the parents, consistent with the best interests and special needs of the child;
A clear description of the specific actions to be taken by the parents and the specific services to be provided by the Division of Family and Children Services of the Department of Human Resources or other appropriate agencies in order to bring about the identified changes that must be made in order for the child to be returned home; provided, however, that all services and actions required of the parents which are not directly related to the circumstances necessitating separation cannot be made conditions of the return of the child without further court review;
Specific time frames in which the goals of the plan are to be accomplished to fulfill the purpose of the reunification plan;
The person within the Division of Family and Children Services of the Department of Human Resources or other agency which is directly responsible for ensuring that the plan is implemented; and
Consideration of the advisability of a reasonable visitation schedule which allows the parents to maintain meaningful contact with their children through personal visits, telephone calls, and letters.

E. If reunification is not recommended, the court must hold a hearing within 30 days to determine whether reunification is appropriate (if DFCS files a nonreunification plan at any time during the life of the case the court must hold a hearing within 30 days). This hearing is to be called a "permanency hearing." O.C.G.A. § 15-11-58 (§ 15-11-41 (f )).

At this hearing DFCS must indicate whether and when they will proceed with termination of parental rights (TPR).
If DFCS does not recommend TPR, court may appoint GAL to determine whether TPR should be filed.

F. When a recommendation is made that reunification services are not appropriate and should not be allowed, the report shall address each reason requiring removal and shall contain at least the following:

The purpose for which the child was placed in foster care, including a statement of the reasons why the child cannot be adequately protected at home and the harm which may occur if the child remains in the home and a description of the services offered and the services provided to prevent removal of the child from the home; and
A clear statement describing all of the reasons supporting a finding that reasonable efforts to reunify a child with the child's family will be detrimental to the child, and that reunification services therefore need not be provided, including specific findings as to whether any of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-94 (15-11-81).

G. There shall be a presumption against reunification if the court finds by clear and convincing evidence that:
The parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family;
A child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions; or any of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-94 (15-11-81).

H. Reasonable efforts toward reunification shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that the parent has:

subjected the child to aggravated circumstances;
committed murder or voluntary manslaughter of another child of the parent or has aided, abetted, attempted, conspired, or solicited to do so;
committed a felony assault that results in serious bodily injury to the child or another child of the parent;
had parental rights to a sibling of the child terminated involuntarily. If any of the above circumstances exist, a permanency hearing must be held for the child within 30 days of the determination that such circumstances exist, and at such hearing there shall be a presumption that reunification services should not be provided. O.C.G.A. § 15-11-58 (§ 15-11-41(b)).

I. Whenever the permanency plan is adoption or placement in a permanent home, the report submitted to the court at a permanency hearing shall document the steps to be taken by DFCS to find an adoptive family or other permanent placement, to place the child, and to finalize the adoption or legal guardianship. O.C.G.A. § 15-11-58 (§ 15-11-41(k)).

J. Reasonable Efforts O.C.G.A. § 15-11-58 (§ 15-11-41(b)).

At every stage of the proceedings the court must make a finding as to whether or not reasonable efforts were made by DFCS and any other appropriate agencies to:
Preserve and reunify families prior to the placement of a child in foster care,
To prevent or eliminate the need for removal AND
make it possible for the child to return to the child's home.
In making reasonable efforts decisions, the child's health and safety shall be the paramount concern.
Reasonable efforts to place a child for adoption or with a legal guardian MAY be made CONCURRENTLY with reasonable efforts to preserve and reunify families.
There must be a finding by the court regarding whether continuation in the home would be contrary to the welfare of the child. O.C.G.A. § 15-11-58(b) (§ 15-11-41(b)) implies that this finding must be made at every review of the case by the court.
Practical note: O.C.G.A. § 15-11-58(f), (g),(h) and (I) ( § 15-11-41(f), (g), (h), and (I)), discussing nonreunification plans, imply that the reasonable efforts findings required by O.C.G.A. § 15-11-58(b) (§ 15-11-41(b)) would not be necessary once a nonreunification plan is approved by the court, but the language requiring findings of fact regarding reasonable efforts to be made at every subsequent review of the court's order has not been modified (last line of O.C.G.A. § 15-11-58(b) (§ 15-11-41(b))). This appears to mean that an examination of reasonable efforts must be made at every court proceeding regardless of whether the plan is for reunification or for nonreunification.

K. Periodic Reviews

Every six months from the date of the original placement there must be a review of the case plan. O.C.G.A. § 15-11-58 (§ 15-11-41(l)). In some counties this review is conducted by the judge and in some counties it is conducted by the Citizen Review Panel.
The first review shall be held within 90 days of the entry of the dispositional order but not later than 6 months after the child initially entered care.
At each review DFCS must notify the court whether DFCS intends to proceed with TPR.
If DFCS does not intend to proceed with TPR the court may appoint a GAL to determine whether TPR should be filed.
If the review is conducted by a Citizen Review Panel, the panel's report, findings, and recommendation, along with DFCS' revised permanency plan shall be submitted to the court and the parents within five days after the review.
Any party has five days after receipt of the plan to request a hearing by the judge.
If no hearing is requested or scheduled by the court on its own motion, the court shall review the proposed revised plan and enter a supplemental order incorporating a revised plan as part of its disposition in the case. This order shall be entered within a "reasonable time" from the conclusion of the hearing or the time allowed to schedule a hearing. O.C.G.A. § 15-11-58 (§ 15-11-41(m)).
The court's supplemental order shall also provide one of the following:
That the child return to the home of his or her parents, legal guardian, or custodian with or without court imposed conditions;
That the child continue in the current custodial placement and that the current placement is appropriate for the child's needs; or
That the child continue in the current custodial placement but that the current placement plan is no longer appropriate for the child's needs and direct the department to devise another plan within available resources. The new plan must be submitted within ten days for court approval. Copies of any court approved revised plan shall be furnished to all parties. O.C.G.A. § 15-11-58 (§ 15-11-41(m)).

X. Termination of Parental Rights (O.C.G.A. § 15-11-58(m) (§ 15-11-41(n)) and § 15-11-93 et. seq. (§ 15-11-80 et. seq.)): An order terminating parental rights is "without limit as to duration and terminates all the parent's right and obligations with respect to the child and all rights and obligations of the child to the parent arising from the parental relationship, including rights of inheritance." (O.C.G.A. § 15-11-93 (§ 15-11-80)).

A. Definitions

Biological Father: The male who impregnated the biological mother resulting in the birth of the child
Legal Father: A male who:
a. Has legally adopted a child;

b. Was married to the biological mother of that child at the time the child was conceived or was born, unless such paternity was disproved by a final order pursuant to Article 3 of Chapter 7 of Title 19;

c. Married the legal mother of the child after the child was born and recognized the child as his own, unless such paternity was disproved by a final order pursuant to Article 3 of Chapter 7 of Title 19;

d. Has been determined to be the father by a final paternity order pursuant to Article 3 of Chapter 7 of Title 19; or e. Has legitimated the child by a final order pursuant to Code Section 19-7-22

3. Legal Mother: the female who is the biological or adoptive mother of the child and who has not surrendered or had terminated her rights to the child.
4. Parent: either the legal father or the legal mother of the child.

5. Putative Father Registry: the registry established and maintained pursuant to subsections (d) and (e) of Code Section 19-11-9.

B. Grounds:
Standard of Proof is clear and convincing evidence
Decision to terminate parental rights is a two-part determination:
Court must first determine whether there is present clear and convincing evidence of parental misconduct or inability, as discussed below;
Court must then consider whether termination of parental rights is in the best interest of the child.
Court may terminate parental rights if one of the following circumstances exists (O.C.G.A. § 15-11-94(b) (§ 15-11-81(b))):
Written consent of parent, acknowledged before the court. O.C.G.A. § 19-8-9(b) does not permit withdrawal of a voluntary surrender of parental rights after the ten-day period permitting such a withdrawal has passed, however, "such limitation does not limit the right of a surrendering parent to establish that there was no valid, voluntary consent given by such parent initially." In the Interest of B.G.D., 224 Ga. App. 124, 479 S.E.2d 439 (1996);
Wanton and willful failure to comply with a lawful court order to provide support for the child for a period of 12 months or longer;
Abandonment of the child without coming forward within 3 months of the child being found; or
The Court determines the existence of parental misconduct or inability by finding:
the child is a deprived child; AND
the lack of proper parental care or control by the parent in question is the cause of the child's status as deprived; AND
such cause of deprivation is likely to continue or will not likely be remedied; AND
the continued deprivation will cause or is likely to case serious physical, mental, emotional, or moral harm to the child.
The most significant change in Georgia law re: TPRs is based on the Adoption and Safe Families Act of 1997 (P.L. 105-89). O.C.G.A. § 15-11-58(m) (§ 15-11-41(n)) now provides that DFCS shall file a petition for termination in the following circumstances:
the child has been in DFCS custody for 15 of the most recent 22 months;
the court has determined that the child is an abandoned infant;
the court has determined that the parent has committed, aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of another child of the parent;
the court has determined that the parent has committed felony assault that has resulted in serious bodily injury to the child or to another child of the parent;
UNLESS:

5. The child is being cared for by a relative;

6. The case plan documents a compelling reason that termination would not be in the best interests of the child;

7. DFCS has not provided services necessary for the return of the child.
5. TPR and Adoption: A juvenile court MAY NOT terminate parental rights if the purpose of a Termination of Parental Rights hearing is to facilitate an adoption. Even if no adoption proceedings are actually pending, such a termination is considered "in connection with" an adoption and therefore is under the exclusive jurisdiction of the superior courts under Chapter 8 of Title 19. H.C.S. v. Grebel, 253 Ga. 404, 321 S.E.2d 321 (1984).

6. In determining whether the child is deprived, the court shall consider, but is not limited to, the following {O.C.G.A. § 15-11-94(b)(4)(B) (§ 15-11-41(b)(4)(B))}:
"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;"
excessive use of or history of chronic abuse of intoxicating substances having the effect of rendering the parent incapable of adequately providing for the needs of the child;
felony conviction and imprisonment of parent having a "demonstrable negative effect on the quality of the parent-child relationship;" See In the Interest of J.E.L, holding that termination of a father's parental rights is appropriate where the mother is dead and the father is serving a 100 year prison sentence for sexually molesting his children, because the incarceration has had a demonstrable detrimental effect on the father's relationship with the children. In the Interest of J.E.L, 223 Ga. App. 269, 477 S.E.2d 412 (1996)
"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;"
"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
"injury or death of a sibling under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse;"
whether the parent has, without justifiable cause, failed significantly for a period of one year or longer prior to the filing of the petition to:
"to develop and maintain a parental bond with the child in a meaningful, supportive manner;"
"provide for the care and support of the child as required by law or judicial decree;"
"comply with a court ordered plan designed to reunite the child with the parent or parents." O.C.G.A. § 15-11-94(b) (§ 15-11-81(b)).
BUT: DFCS not required to make reasonable reunification efforts for a full year before filing for termination. Nor must the parent be given a full year to comply with the court-ordered case plan unless § 15-11-94(b)(4)(c) (§ 15-11-81(b)(4)(c)) is the sole basis for termination. In the Interest of A.M.B., 219 Ga. App. 133 (1995)
7. In determining whether termination of parental rights is in the best interest of the child, the Court must consider the following:
physical condition and needs of child;
mental condition and needs of child;
emotional condition and needs of child;
moral condition and needs of child;
child's need for a secure and stable home. O.C.G.A. § 15-11-94(a) (§ 15-11-81(a)).
8. The same evidence that supports a finding that there is parental misconduct or inability can also support the finding that termination is in the child's best interests. See In the Interest of B.P., 207 Ga. App. 242, 245 (1992)

9. Even if the parents are not ready to assume full custody of the children, termination of parental rights is not appropriate and is not in the best interest of the child if the parents will likely be able to assume custody in the future and the evidence does not support a finding of present deprivation or that deprivation will continue in the future. In the Interest of R.U. and J.U., 223 Ga. App. 440, 477 S.E.2d 864 (1996)

10. A parent who is not providing proper parental care and control cannot defend against a termination proceeding by contending that the child is not deprived because third parties are providing care for the child (where the third parties are not acting as the parents' agents). In the Interest of C.M.S., 218 Ga. App. 487 (1995)

C. Summons (O.C.G.A. § 15-11-96 (§ 15-11-83))
A summons with a copy of the petition must be served on the child's parents, guardian, lawful custodian, and the person presently having physical custody of the child.
The court has discretion over whether the summons requires the child to be brought before the court.
Summons shall be served at least 30 days prior to the time set for the hearing.
Service by publication meets the requirements of due process in a TPR hearing where the father has not notified DFCS of any changes of address, cannot be found, and cannot be served at his last known address, even where such service does not result in actual notice and causes the father to forego representation, cross-examination of witnesses against him, and the opportunity to object to testimony at the hearing. In the Interest of T.B.R., 224 Ga. App. 470, 480 S.E.2d 901 (1997).

D. Biological father (O.C.G.A. § 15-11-96 (§ 15-11-83)): The sections below outline the law regarding biological fathers and highlight some of the recent legislative changes:

1. Notice: A biological father who is not the legal father in a termination of parental rights proceeding must be notified in the following circumstances:

a. If the paternity of a child born out of wedlock has been established or is known to the petitioner.

b. If the father is a registrant on the putative father registry who has acknowledged paternity or indicated possible paternity during a period beginning two years prior to the child's birth.

c. If the court finds from the evidence, including but not limited to the affidavit of the mother, that he has performed any certain acts.

2. No Notice: There is a rebuttable presumption that the biological father who is not the legal father is not entitled to notice of the proceedings if the court finds from evidence, including but not limited to the affidavit of the mother, that he has not performed any of certain acts and petitioner provides a certificate from the putative father registry stating that there is no entry acknowledging paternity or indicating possible paternity for the two years prior to the child's birth.

3. Putative Father Registry: Petitions seeking termination of the rights of a biological father who is not the legal father and who has not surrendered his rights must include a certificate from the putative father registry. As amended, O.C.G.A. § 19-11-9, relating to the putative father registry, provides:

a. That placement on the putative father registry shall not be used for any admission of guilt of any crime or used as evidence in any criminal prosecution.

b. That there are two types of registration:

1. persons who acknowledge paternity

2. persons who register to indicate the possibility of paternity without acknowledging paternity.

c. That registrants shall be informed that registration may be used to establish support obligations and shall be used to provide notice of adoption and termination proceedings.

d. That the department shall publicize the registry.

e. That new registrations and entries shall be added to the registry within two business days of receipt.

f. That there shall be access to the registry by the department, a licensed child placement agency, or a State Bar of Georgia member for purposes of providing notice in an adoption or termination proceeding.

g. That there is a $10.00 fee for each certification, waivable upon affidavit of indigency.

4. A biological father who has not yet legitimated the child and who has not surrendered his parental rights and whose identity and location is known is entitled to be notified in the manner listed in O.C.G.A. § 15-11-96 (§ 15-11-83).

5. If the biological father is unknown, the court may require the mother to execute an affidavit regarding the father. If the court finds that the biological father has not lived with the child, contributed to its support, made any attempt to legitimate the child, or provided support for the mother during her pregnancy or birth, the court shall terminate that father's parental rights.

6. If the court finds that the biological father has lived with the child, contributed to its support, made an attempt to legitimate the child, or provided support for the mother