2020 Georgia Code
Title 15 - Courts
Chapter 11 - Juvenile Code
Article 1 - General Provisions
§ 15-11-32. Modification or Vacation of Orders; Retroactive Application

1. An order of the court shall be set aside if:
   1. It appears that it was obtained by fraud or mistake sufficient therefor in a civil action;
   2. The court lacked jurisdiction over a necessary party or the subject matter; or
   3. Newly discovered evidence so requires.
2. An order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interests of a child except an order of dismissal following a contested adjudicatory hearing.
3. Except as otherwise provided in Code Section 15-11-602, an order committing a child to DJJ may only be modified after such child has been transferred to DJJ custody upon motion of DJJ.
4. An order of adjudication of delinquency by a court may be modified or vacated if the child was adjudicated for a delinquent act for a sexual crime as defined in Code Section 16-3-6 and such crime resulted from the child being:
   1. Trafficked for sexual servitude in violation of Code Section 16-5-46; or
   2. A victim of sexual exploitation as defined in Code Section 49-5-40.
5. Any party to the proceeding, the probation officer, or any other person having supervision or legal custody of or an interest in a child may petition the court for the relief provided in this Code section. Such petition shall set forth in clear and concise language the grounds upon which the relief is requested.
6. After a petition seeking relief under this Code section is filed, the court shall fix a time for hearing and shall cause notice to be served on the parties to the proceeding or those affected by the relief sought. After the hearing, the court shall deny or grant relief as the evidence warrants.
7. This Code section is intended to be retroactive and shall apply to any child who is under the jurisdiction of the court at the time of a hearing, regardless of the date of the original delinquency order.

(Code 1981, §15-11-32, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2014, p. sb0364, § 1-5/SB 364.)

- Post-disposition transfer of Juvenile Court cases for supervision, Uniform Rules for the Juvenile Courts of Georgia, Rule 5.3(c).

Modification or vacation of order, Uniform Rules for the Juvenile Courts of Georgia, Rule 16.1 et seq.

- Admission by order of a juvenile court, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Services, Mental Health, Developmental Disabilities, and Addictive Diseases, Rule 290-4-7-.07.

- For article, "An Outline of Juvenile Court Jurisdiction with Focus on Child Custody," see 10 Ga. St. B. J. 275 (1973).

ANALYSIS

• General Consideration
• Modification or Vacation of Orders

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-2801, pre-2000 Code Section 15-11-42, and pre-2014 Code Section 15-11-40, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section. See the Editor's notes at the beginning of the chapter.

- Fact that the court denominated the child's "motion for new trial" as a "motion to reconsider" was not controlling since the nature of the motion, the court's consideration of the motion, the procedure employed, and the final outcome all met the procedural requirements of former O.C.G.A. § 15-11-42 (see now O.C.G.A. § 15-11-32) so as to give the juvenile court jurisdiction. In re J.O., 191 Ga. App. 521, 382 S.E.2d 214 (1989), overruled on other grounds, In re T.A.W., 265 Ga. 106, 454 S.E.2d 134 (1995) (decided under former O.C.G.A. § 15-11-42).

- Because former O.C.G.A. § 15-11-40 (see now O.C.G.A. § 15-11-32) allowed a juvenile court to change or vacate the court's orders without placing any time limit on this type of jurisdiction, there was no merit to a father's argument that the trial court lacked personal jurisdiction to restore a mother's parental rights because he and the children were then permanent residents of Florida. In the Interest of K.W., 291 Ga. App. 623, 662 S.E.2d 255, cert. dismissed, No. S08C1642, 2008 Ga. LEXIS 767 (Ga. 2008) (decided under former O.C.G.A. § 15-11-40).

Juvenile court erred in failing to set aside the court's adjudication order finding that a mother's children were deprived when the mother's physical location was known and service was never attempted because the juvenile court lacked personal jurisdiction over the mother for insufficient service of process. Taylor v. Padgett, 300 Ga. App. 314, 684 S.E.2d 434 (2009) (decided under former O.C.G.A. § 15-11-40).

- Juvenile court order can be challenged by the filing of a motion to modify or vacate. In re M.A.L., 202 Ga. App. 768, 415 S.E.2d 649 (1992), cert. denied, overruled on other grounds, In re T.A.W., 265 Ga. 106, 454 S.E.2d 134 (1995) (decided under former O.C.G.A. § 15-11-42).

When the parent's parental rights were terminated by order of the juvenile court, the parent's motion for reconsideration, based solely on sufficiency of the evidence, did not extend the time for filing a notice of appeal and it could not be regarded as a reason to vacate or modify the judgment of the court. In re A.C.J., 211 Ga. App. 865, 440 S.E.2d 751 (1994) (decided under former O.C.G.A. § 15-11-42).

Appellate court could not consider the merits of the juvenile court's order terminating the parental rights of the parents because the parents neither timely appealed that order nor filed a motion within 30 days that would extend the time to appeal. In the Interest of A. M., 324 Ga. App. 512, 751 S.E.2d 144 (2013).

Juvenile's motion for a new delinquency hearing based on newly discovered evidence amounted to a motion for a new trial on the grounds of newly discovered evidence and it was appropriate for the court to consider: (1) whether the evidence came to the juvenile's attention subsequent to the initial hearing; (2) that it was not owing to want of due diligence that the juvenile did not acquire the evidence sooner; (3) that the evidence was so material, and the evidence would have produced a different verdict; (4) that the evidence was not cumulative only; (5) that the affidavit of the witness personally should be procured or the affidavit's absence accounted for; and (6) that a new hearing would not be granted if the only effect of the evidence would be to impeach the credibility of a witness. In re A.D.C., 233 Ga. App. 73, 503 S.E.2d 334 (1998) (decided under former O.C.G.A. § 15-11-42).

- Nonprofit advocacy organization was authorized to file a deprivation petition which was separate and distinct from the initial deprivation adjudication since there was no requirement that a petition for modification must be filed under former O.C.G.A. § 15-11-42 (see now O.C.G.A. § 15-11-32), instead of a deprivation petition under former O.C.G.A. § 15-11-24 (see now O.C.G.A. § 15-11-63). In re A.V.B., 222 Ga. App. 241, 474 S.E.2d 114 (1996) (decided under former O.C.G.A. § 15-11-42).

Under former O.C.G.A. § 15-11-63(e)(1)(D) and (e)(2)(C) (see now O.C.G.A. § 15-11-602), a juvenile court may order a child released from a youth development center or transferred to a nonsecure facility during the period of restrictive custody set out in the initial order or may discharge a child from the custody of the Georgia Department of Juvenile Justice upon a motion after a year of custody. However, such an order may not be made on the ground that changed circumstances so require in the best interest of the child. Reading former O.C.G.A. §§ 15-11-40 and15-11-63(e) (see now O.C.G.A. §§ 15-11-32 and15-11-602) together, such a notion for release should be based on other grounds. In the Interest of J.W., 293 Ga. App. 408, 667 S.E.2d 161 (2008) (decided under former O.C.G.A. § 15-11-40).

Modification or Vacation of Orders

Inherent authority of juvenile court.

- There was no error in allowing the court-appointed special advocate to continue termination proceedings by moving for a new trial, given that the nature of the proceedings was the protection of the children whose well-being was threatened, and the juvenile court had inherent authority to vacate or modify the juvenile court's earlier order. In re K.R.C., 235 Ga. App. 354, 510 S.E.2d 547 (1998) (decided under former O.C.G.A. § 15-11-42).

When a trial court, upon finding a mother's children were deprived, left their custody with the mother upon certain conditions, and provided that the violation of those conditions would subject the mother to possible punishment for contempt, when the mother violated those conditions, the trial court had the inherent authority, under former O.C.G.A. § 15-11-40 (see now O.C.G.A. §§ 15-11-32,15-11-444, and15-11-608), to modify the court's order and remove the children from their mother's custody. In the Interest of S.Y., 264 Ga. App. 623, 591 S.E.2d 489 (2003) (decided under former O.C.G.A. § 15-11-40).

- Since the juvenile court judge has the power to revoke, even reverse, the juvenile court's order, it logically follows that the juvenile court has the authority to take the lesser step of ordering a rehearing to determine the correctness of the juvenile court's order. In re P.S.C., 143 Ga. App. 887, 240 S.E.2d 165 (1977) (decided under former Code 1933, § 24A-2801).

- Order granting a rehearing, although issued ex parte, is valid because no hearing is required prior to ordering a rehearing. In re P.S.C., 143 Ga. App. 887, 240 S.E.2d 165 (1977) (decided under former Code 1933, § 24A-2801).

- Juvenile court retains the juvenile court's inherent power to modify the court's own judgments at least for the length of the statutory appeal period. In re P.S.C., 143 Ga. App. 887, 240 S.E.2d 165 (1977) (decided under former Code 1933, § 24A-2801).

- Juvenile court had jurisdiction to modify an order granting temporary custody of a deprived child to the Department of Family and Children Services and to permit visitation by parents who filed a petition for visitation rights four months after the custody order. In re K.B., 188 Ga. App. 199, 372 S.E.2d 476 (1988) (decided under former O.C.G.A. § 15-11-42).

- Juvenile court judge, having issued an order terminating parental rights, has authority to grant a rehearing on the matter. In re P.S.C., 143 Ga. App. 887, 240 S.E.2d 165 (1977) (decided under former Code 1933, § 24A-2801).

- Based upon newly discovered evidence that the caseworker of a parent who surrendered parental rights was a friend of the foster parents and had engaged in fraud and other illegalities, the trial court properly restored the parent's parental rights pursuant to former O.C.G.A. § 15-11-40(a)(3) (see now O.C.G.A. § 15-11-32). Thus, O.C.G.A. § 19-8-9, requiring a parent to revoke a surrender within 10 days, did not prevent the surrenders from being voidable. In the Interest of K.W., 291 Ga. App. 623, 662 S.E.2d 255, cert. dismissed, No. S08C1642, 2008 Ga. LEXIS 767 (Ga. 2008) (decided under former O.C.G.A. § 15-11-40).

- Motion for modification of a juvenile court order terminating parental rights is similar to a motion to set aside under O.C.G.A. § 9-11-60(d), which is appealable but does not sustain an appeal from the underlying judgment. In re H.A.M., 201 Ga. App. 49, 410 S.E.2d 319 (1991) (decided under former O.C.G.A. § 15-11-42).

Juvenile court did not err in denying the parents' motion to modify or vacate the order terminating their parental rights as the parents' residency status had been admitted at the termination hearing and was neither newly discovered nor a change in circumstances that established that it would be in the best interest of the children to change, modify, or vacate the order of termination; and the father's eligibility for legal residency status did not change the fact that termination was appropriate because of the children's extreme special needs, which required extra-ordinary, specialized care, and the parents' low levels of functioning. In the Interest of A. M., 324 Ga. App. 512, 751 S.E.2d 144 (2013) (decided under former O.C.G.A. § 15-11-40).

- Since the substance of a post-trial motion made no reference to any of the factors which would warrant the vacation or modification of the juvenile court's order under former O.C.G.A. § 15-11-42 (see now O.C.G.A. § 15-11-32), it could not be considered a motion to modify or vacate, thus an appeal could not be taken. In re C.M., 205 Ga. App. 543, 423 S.E.2d 280 (1992) (decided under former O.C.G.A. § 15-11-42).

- Trial court erred in requiring a father to prove by clear and convincing proof that changed circumstances warranted modification of an order placing the father's children with their maternal aunts; the father retained an interest in the children, under former O.C.G.A. §§ 15-11-13 and15-11-58(i)(1) (see now O.C.G.A. §§ 15-11-30 and15-11-204), sufficient to support a right to petition for modification, and the father was only required to prove the motion under former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-444 and15-11-608) by a preponderance of the evidence. In re J. N., 302 Ga. App. 631, 691 S.E.2d 396 (2010) (decided under former O.C.G.A. § 15-11-40).

- Legislature has declared that the former Juvenile Code should be construed toward the end of providing for a child's welfare, "preferably in the child's own home." To this end, the appellate courts will not declare orders terminating parental rights, removing the child permanently from the child's own home, to be beyond the reach of the court issuing the order. To the contrary, the juvenile court judge who has second thoughts about such an action should take whatever steps necessary to ensure the correctness of the judge's action. In re P.S.C., 143 Ga. App. 887, 240 S.E.2d 165 (1977) (decided under former Code 1933, § 24A-2801).

- Former statute vested in the juvenile court of a county the jurisdiction to modify and vacate the juvenile court's orders on any of the grounds specified in former subsection (a), whether the juvenile is detained in that county or elsewhere, but the superior court of that county has no jurisdiction to exercise appellate review of judgments rendered by the juvenile court. Rossi v. Price, 237 Ga. 651, 229 S.E.2d 429 (1976) (decided under former Code 1933, § 24A-2801).

- Defendant juvenile's appeal of an order denying a motion to reconsider, vacate, or modify the delinquent adjudication was proper because the denial of the motion was a final judgment and was directly appealable; therefore, the defendant could appeal the ruling on disposition as well as on the original finding of delinquency. An order denying a motion under former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32,15-11-444, and15-11-608) seeking a modification based on changed circumstances in a delinquency matter is a final judgment directly appealable under O.C.G.A. §§ 5-6-34(a)(1) and former O.C.G.A. § 15-11-3 (see now O.C.G.A. § 15-11-35). In the Interest of J. L. K., 302 Ga. App. 844, 691 S.E.2d 892 (2010) (decided under former O.C.G.A. § 15-11-40).

Modification of a sentencing order was proper since a juvenile had been committed to the Department of Children & Youth Services (DCYS) for a period of detention and treatment but had not been transferred to the physical custody of DCYS but was held in a detention center pending placement in a youth development campus. In re B.D.T., 219 Ga. App. 804, 466 S.E.2d 680 (1996) (decided under former O.C.G.A. § 15-11-42).

- Since it was undisputed that after the juvenile court adjudicated the child as delinquent and committed the child to the Department of Juvenile Justice, and the child was placed in the physical custody of the Department, which confined the child for a year, the Department had already taken physical custody of the child and therefore the juvenile court could not subsequently modify the original dispositional order. In the Interest of S.S., 276 Ga. App. 666, 624 S.E.2d 251 (2005) (decided under former O.C.G.A. § 15-11-40).

- When former O.C.G.A. §§ 15-11-40(b),15-11-63(e)(1)(D) and (e)(2)(c) (see now O.C.G.A. §§ 15-11-32,15-11-444,15-11-602, and15-11-608) were read together to effectuate their meaning as required by O.C.G.A. § 1-3-1(a), the juvenile court did not err in denying a juvenile's motion to commute or reduce the sentence imposed. Allegations that the juvenile was rehabilitated while in restrictive custody and would benefit from being released were insufficient to grant the juvenile court authority to modify the juvenile court's commitment order once physical custody of the juvenile was transferred to the Department of Juvenile Justice. In the Interest of J.V., 282 Ga. App. 319, 638 S.E.2d 757 (2006) (decided under former O.C.G.A. § 15-11-40).

- Although former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32,15-11-444, and15-11-608) prohibited the change, modification, or vacation of a commitment order once a child is in the custody of the Department of Juvenile Justice "on the ground that changed circumstances so require in the best interest of the child" or because the child had been rehabilitated, the statute did not prohibit the change, modification, or vacation of a commitment order on other grounds. Further the application of former § 15-11-40(b) did not render former O.C.G.A. § 15-11-63(e)(2)(C) (see now O.C.G.A. § 15-11-602) purposeless in these circumstances when the juvenile based a reduction in sentence on rehabilitation. In re T. H., 298 Ga. App. 536, 680 S.E.2d 569 (2009) (decided under former O.C.G.A. § 15-11-40).

- Defendant moved for early release from a youth development center on grounds that alleged changed circumstances required release in the best interests of the child. The motion was properly denied because under former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32,15-11-444, and15-11-608), once the Georgia Department of Juvenile Justice had physical custody, a commitment order could not be changed on that basis but could be changed on other grounds. In the Interest of J.W., 293 Ga. App. 408, 667 S.E.2d 161 (2008) (decided under former O.C.G.A. § 15-11-40).

Modification of a juvenile commitment order under former O.C.G.A. § 15-11-40(b) (see now O.C.G.A.15-11-32,15-11-444, and15-11-608) on the ground that changed circumstances required modification in the best interest of the child was not available to a minor because the minor was already in the custody of the Department of Juvenile Justice; the fact that the custody was based on the minor's restrictive custody under a different commitment order, and not on the commitment order the minor sought to modify, had no bearing on whether the modification could be made. In the Interest of P.S., 295 Ga. App. 724, 673 S.E.2d 74 (2009) (decided under former O.C.G.A. § 15-11-40).

Although former O.C.G.A. § 15-11-63 (see now O.C.G.A. §§ 15-11-2,15-11-471,15-11-602, and15-11-707) suggested that a juvenile defendant could move for early release from a youth development center after the defendant was already in custody, former O.C.G.A. § 15-11-40(b) (see now O.C.G.A. §§ 15-11-32,15-11-444, and15-11-608) prohibited modification of a commitment order on the grounds of changed circumstances. As a change in circumstances was the basis of the defendant's motion for early release, the juvenile court lacked jurisdiction to grant the motion. In re K.F., 299 Ga. App. 685, 683 S.E.2d 650 (2009) (decided under former O.C.G.A. § 15-11-40).

Trial court did not err in dismissing a juvenile's motion to set aside the adjudications of child molestation and aggravated child molestation because evidence that contradicted the victim's testimony that the victim did not have sexual intercourse with any other man did not go to the issue of whether the juvenile was guilty and the juvenile had admitted the allegations. In the Interest of D. H., 332 Ga. App. 274, 772 S.E.2d 70 (2015).

Juvenile court did not err in dismissing a juvenile's motion to modify the commitment order on the basis that the purpose of rehabilitation was not being served because the motion was not accompanied by a written recommendation from the juvenile's Georgia Department of Juvenile Justice counselor or placement supervisor; thus, O.C.G.A. §§ 15-11-32 and15-11-602 barred the juvenile court from modifying the commitment order as requested. In the Interest of D. H., 332 Ga. App. 274, 772 S.E.2d 70 (2015).

- If the substance of a post-trial motion made no reference to any of the factors which would warrant the vacation or modification of the juvenile court's order, it could not be considered a motion to modify or vacate, thus an appeal could not be taken. In re C.M., 205 Ga. App. 543, 423 S.E.2d 280, cert. denied, 205 Ga. App. 900, 423 S.E.2d 280 (1992) (decided under former O.C.G.A. § 15-11-42).

- Trial court erred in denying the defendant juvenile's motion to reconsider, vacate, or modify a delinquent adjudication for the offense of simple assault because the evidence was insufficient to support the finding of delinquency since, pursuant to O.C.G.A. § 16-5-20(a)(2), the crime of simple assault required proof that the defendant's actions placed the defendant's grandmother in reasonable apprehension of immediately receiving a violent injury, but the only evidence of that fact was hearsay; a police officer, who was the only witness, testified that the grandmother told the officer that the grandmother was afraid of the defendant, and that the defendant was perhaps going to hit the grandmother, but the officer admitted that there were no allegations that the defendant attempted to hit the grandmother, nor did the officer witness any of the alleged events. In the Interest of J. L. K., 302 Ga. App. 844, 691 S.E.2d 892 (2010) (decided under former O.C.G.A. § 15-11-40).

- Although the initial act of bringing a weapon to school was not a designated felony under the statute in effect when a juvenile's probation was revoked, a dispositional order imposed upon revocation of probation related to the original delinquent act because the new disposition was a sanction for the original offense. In the Interest of N.M., 316 Ga. App. 649, 730 S.E.2d 127 (2012) (decided under former O.C.G.A. § 15-11-40).

- Juvenile court did not abuse its discretion in denying the parents' motion to modify or set aside the termination of parental rights order based on the parents' claim that a language barrier existed at the time of the termination hearing and during critical times in their case because the parents did not assert that the Georgia Department of Family and Children Services should have provided them with an interpreter who spoke their Guatemalan dialect of Mam. In the Interest of A. M., 324 Ga. App. 512, 751 S.E.2d 144 (2013) (decided under former O.C.G.A. § 15-11-40).

RESEARCH REFERENCES

Am. Jur. 2d.

- 42 Am. Jur. 2d, Infants, § 51. 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, § 113 et seq.

- 43 C.J.S., Infants, § 245 et seq.

- Uniform Juvenile Court Act (U.L.A.) § 37.