2020 Georgia Code
Title 15 - Courts
Chapter 11 - Juvenile Code
Article 3 - Dependency Proceedings
Part 3 - Taking Into Care
§ 15-11-133. Removal of Child From the Home; Protective Custody; Consideration of Alternatives

1. A child may be removed from his or her home, without the consent of his or her parents, guardian, or legal custodian:
   1. Pursuant to an order of the court under this article; or
   2. By a law enforcement officer or duly authorized officer of the court if:
      1. A child is in imminent danger of abuse or neglect if he or she remains in the home; or
      2. A child is a victim of trafficking for labor or sexual servitude under Code Section 16-5-46.
2. Upon removing a child from his or her home, a law enforcement officer or duly authorized officer of the court shall:
   1. Immediately deliver such child to a medical facility if such child is believed to suffer from a serious physical condition or illness which requires prompt treatment, and, upon delivery, shall promptly contact DFCS;
   2. Bring such child immediately before the juvenile court or promptly contact the juvenile court; and
   3. Promptly give notice to the court and such child's parents, guardian, or legal custodian that such child is in protective custody, together with a statement of the reasons for taking such child into protective custody.
3. The removal of a child from his or her home by a law enforcement officer shall not be deemed an arrest.
4. A law enforcement officer removing a child from his or her home has all the privileges and immunities of a law enforcement officer making an arrest.
5. A law enforcement officer shall promptly contact the juvenile court for issuance of a court order once such officer has taken a child into protective custody and delivered such child to a medical facility.
6. The juvenile court shall immediately determine if a child should be released, remain in protective custody, or be brought before the court upon being contacted by a law enforcement officer, duly authorized officer of the court, or DFCS that a child has been taken into protective custody.
7. In addition to the requirements of Code Section 15-11-134, prior to authorizing the removal of a child from his or her home as provided in paragraph (1) of subsection (a) of this Code section or ordering a child to remain in protective custody as provided in subsection (f) of this Code section, the court shall consider whether there are reasonable alternatives to the removal of the child and placement of the child in foster care and may order temporary alternatives to foster care in lieu of removing the child and placing the child in protective custody or continuing the child in protective custody pursuant to Code Section 15-11-133.1.

(Code 1981, §15-11-133, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2019, p. 67, § 3/HB 472; Ga. L. 2019, p. 74, § 1-4/SB 158.)

The 2019 amendments. The first 2019 amendment, effective April 18, 2019, substituted "the juvenile court" for "a juvenile court intake officer" at the end of paragraph (b)(2) and near the beginning of subsection (e); substituted "The juvenile court" for "A juvenile court intake officer" at the beginning of subsection (f); and added subsection (g). The second 2019 amendment, effective July 1, 2019, rewrote paragraph (a)(2), which formerly read: "By a law enforcement officer or duly authorized officer of the court if a child is in imminent danger of abuse or neglect if he or she remains in the home." See Editor's note for applicability.

- Exercise of power of arrest generally, § 17-4-1 et seq.

Authority of peace officer to assume temporary custody of child absent from school without lawful authority or excuse, § 20-2-698 et seq.

- Ga. L. 2019, p. 74, § 1-1/SB 158, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Anti-Human Trafficking Protective Response Act.'"

Ga. L. 2019, p. 74, § 3-1/SB 158, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2019, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2019, shall be governed by the statute in effect at the time of such offense, and any resulting conviction shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction."

- For article, "The Prosecuting Attorney in Georgia's Juvenile Courts," see 13 Ga. St. B. J. 27 (2008). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 63 (2019). For note criticizing jurisdiction of juvenile justice system over runaways and advocating alternative legal approaches, see 24 Emory L. J. 1075 (1975). For comment, "School Bullies - They Aren't Just Students: Examining School Interrogations and the Miranda Warning," see 59 Mercer L. Rev. 731 (2008).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-1402, pre-2000 Code Sections 15-11-17 and 15-11-19, and pre-2014 Code Sections 15-11-45 and 15-11-47, 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.

- Former O.C.G.A. § 15-11-17 (see now O.C.G.A. § 15-11-133) empowered a county department of family and children services to act in a situation of medical neglect. Bendiburg v. Dempsey, 909 F.2d 463 (11th Cir. 1990), cert. denied, 500 U.S. 932, 111 S. Ct. 2053, 114 L. Ed. 2d 459 (1991) (decided under former O.C.G.A. § 15-11-17).

- Trial court erred in sua sponte removing two boys from their mother's custody and placing the boys in the temporary custody of DFCS as part of the court's ruling on a deprivation petition involving their sisters; no petition was filed with regard to the boys and the court could not find that former O.C.G.A. § 15-11-45(a)(4) (see now O.C.G.A. § 15-11-133) authorized the boys' removal as the trial court made no findings as to one boy and only limited ones as to the other, which did not demand a loss of custody. In the Interest of N.D., 286 Ga. App. 236, 648 S.E.2d 771 (2007) (decided under former O.C.G.A. § 15-11-45).

- Juvenile who was taken into custody by the police for a probation violation, and who escaped, could not be adjudicated delinquent based on the adult crime of misdemeanor escape since the juvenile was not in custody prior to or after having been convicted of a felony, misdemeanor, or violation of a municipal ordinance. In re J.B., 222 Ga. App. 252, 474 S.E.2d 111 (1996) (decided under former O.C.G.A. § 15-11-17).

- Purpose of former Code 1933, § 24A-1402 (see now O.C.G.A. §§ 15-11-133,15-11-501, and15-11-502) was to make certain that a juvenile's rights were protected when the juvenile was taken into custody or placed in detention. Paxton v. State, 159 Ga. App. 175, 282 S.E.2d 912, cert. denied, 248 Ga. 231, 283 S.E.2d 235 (1981) (decided under former Code 1933, § 24A-1402).

- Safeguarding of the child's procedural rights takes on the same importance that procedural due process has in an adult criminal proceeding context. R.A.S. v. State, 156 Ga. App. 366, 274 S.E.2d 752 (1980), overruled on other grounds, In re R.D.F., 66 Ga. 294, 466 S.E.2d 572 (1996) (decided under former Code 1933, § 24A-1402).

- Statutory safeguards were applicable to juvenile cases and a criminal case when a juvenile was tried as an adult. Bussey v. State, 144 Ga. App. 875, 243 S.E.2d 99 (1978) (decided under former Code 1933, § 24A-1402).

Trial court did not err in admitting a juvenile defendant's videotaped statement to the police because the police did not follow the juvenile intake procedures outlined in former O.C.G.A. § 15-11-47(a) (see now O.C.G.A. §§ 15-11-133 and15-11-502) as: (1) defendant was 15-years-old at the time of the shooting and police discussed the nature of the charges; (2) police read defendant the Miranda rights, and all questioning took place with defendant's mother present; (3) both defendant and the mother voluntarily signed a waiver of counsel form that explained defendant's Miranda rights prior to any questioning taking place; (4) defendant averred that no threats, promises, tricks, or other forms of persuasion were used to induce the defendant to sign the waiver form; (5) the interview itself lasted only 15 or 20 minutes, and police did not employ any tactics to pressure or coerce the defendant into giving a statement; and (6) police ceased all questioning the moment that the defendant's mother asked for an attorney. Williams v. State, 273 Ga. App. 42, 614 S.E.2d 146 (2005) (decided under former O.C.G.A. § 15-11-47).

Because a juvenile's allegations that the state failed to comply with the procedural requirements under former O.C.G.A. § 15-11-49(c)(1) and (e) (see now O.C.G.A. §§ 15-11-102,15-11-145,15-11-151,15-11-472, and15-11-521) should have been raised in the superior court and had no bearing on the validity of the delinquency petitions or the substantive charges against the juvenile in juvenile court, the juvenile court properly prevented the juvenile from presenting evidence regarding the procedural violations. In the Interest of K.C., 290 Ga. App. 416, 659 S.E.2d 821 (2008) (decided under former O.C.G.A. § 15-11-47).

Procedural requirements are applicable when child is taken into custody or temporarily detained, regardless of whether it is for alleged delinquency, unruliness, or deprivation. Sanchez v. Walker County Dep't of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976) (decided under former Code 1933, § 24A-1402).

Failure to follow mandated procedures warrants dismissal without prejudice of a petition alleging deprivation of a child. Another petition can be filed without delay if there is reason to believe the child is being neglected or abused. Sanchez v. Walker County Dep't of Family & Children Servs., 140 Ga. App. 175, 230 S.E.2d 139 (1976) (decided under former Code 1933, § 24A-1402).

- Even though taking a juvenile to police headquarters before releasing the juvenile to the juvenile's parents was a violation of subsection (a) of former O.C.G.A. § 15-11-19 (see now O.C.G.A. §§ 15-11-133 and15-11-502), dismissal of the delinquency petition was not required because the violation did not cause injury or prejudice to the juvenile. In re C.W., 227 Ga. App. 763, 490 S.E.2d 442 (1997) (decided under former O.C.G.A. § 15-11-19).

Former statute directed person taking child into custody to follow one of specified courses, "without first taking the child elsewhere," such as to the police station. M.K.H. v. State, 135 Ga. App. 565, 218 S.E.2d 284 (1975) (decided under former Code 1933, § 24A-1402).

- Any deviation from former O.C.G.A. § 15-11-19 (see now O.C.G.A. §§ 15-11-133,15-11-410,15-11-411,15-11-412,15-11-501,15-11-502, and15-11-507) resulting from a police officer taking a juvenile to the scene of a crime for show-up identification following the juvenile's arrest but prior to taking the juvenile before the juvenile court was minimal and not prejudicial error. M.A.K. v. State, 171 Ga. App. 151, 318 S.E.2d 828 (1984) (decided under former O.C.G.A. § 15-11-19).

Failure of the state police to take a defendant promptly before a judicial officer does not make the defendant's conviction constitutionally infirm unless the defendant's defense was prejudiced thereby. Paxton v. Jarvis, 735 F.2d 1306 (11th Cir.), cert. denied, 469 U.S. 935, 105 S. Ct. 335, 83 L. Ed. 2d 271 (1984); Barnes v. State, 178 Ga. App. 205, 342 S.E.2d 388 (1986) (decided under former O.C.G.A. § 15-11-19).

- There was no violation of former Code 1933, § 24A-1402) (see now O.C.G.A. §§ 15-11-133,15-11-410,15-11-411,15-11-412,15-11-501,15-11-502, and15-11-507) because a juvenile suspect was first taken to a police station for booking purposes, if the juvenile was advised of the juvenile's rights under that section to be questioned elsewhere; the juvenile signed a waiver of these rights on an "advice to juveniles" form and was detained at a youth development center. Marshall v. State, 248 Ga. 227, 282 S.E.2d 301 (1981) (decided under former Code 1933, § 24A-1402).

Juvenile court intake officers act in a judicial capacity; therefore, law enforcement officers, who perform an executive function, are per se disqualified from acting as intake officers. Brown v. Scott, 266 Ga. 44, 464 S.E.2d 607 (1995) (decided under former O.C.G.A. § 15-11-19).

Juvenile court intake officer is a public officer for purposes of a quo warranto proceeding. Brown v. Scott, 266 Ga. 44, 464 S.E.2d 607 (1995) (decided under former O.C.G.A. § 15-11-19).

Failure to comply with notice and hearing requirements of the Juvenile Code, after an allegedly deprived child has been taken from the parent's custody, prejudices or injures the rights of the parent, primarily the right to possession of the child under former Code 1933, §§ 74-106, 74-108, and 74-203 (see now O.C.G.A. §§ 19-7-1,19-7-25, and19-9-2). Sanchez v. Walker County Dep't of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976) (decided under former Code 1933, § 24A-1402).

- Time limits established by the General Assembly in the Juvenile Code are jurisdictional and must be strictly adhered to. A failure to comply with the time periods requires dismissal. R.A.S. v. State, 156 Ga. App. 366, 274 S.E.2d 752 (1980), overruled on other grounds, In re R.D.F., 66 Ga. 294, 466 S.E.2d 572 (1996) (decided under former Code 1933, § 24A-1402).

- Juvenile court did not have exclusive jurisdiction over delinquent acts for which a child (under 17 years old) may be punished by loss of life or confinement for life in the penitentiary. Nevertheless, the statutory safeguards provided were applicable to both criminal and juvenile cases. Jackson v. State, 146 Ga. App. 375, 246 S.E.2d 407 (1978) (decided under former Code 1933, § 24A-1402).

Incriminating statements obtained in violation of the Juvenile Code are not rendered per se inadmissible; rather, the issue to be considered is whether there was a knowing and intelligent waiver by the appellant of the appellant's constitutional rights in making the incriminating statements. Lattimore v. State, 265 Ga. 102, 454 S.E.2d 474 (1995) (decided under former O.C.G.A. § 15-11-19); Barber v. State, 267 Ga. 521, 481 S.E.2d 813 (1997); Skidmore v. State, 226 Ga. App. 130, 485 S.E.2d 540 (1997) (decided under former O.C.G.A. § 15-11-19); Gilliam v. State, 268 Ga. 690, 492 S.E.2d 185 (1997); Simon v. State, 269 Ga. 208, 497 S.E.2d 231 (1998) (decided under former O.C.G.A. § 15-11-19); Hanifa v. State, 269 Ga. 797, 505 S.E.2d 731 (1998); Attaway v. State, 244 Ga. App. 5, 534 S.E.2d 580 (2000) (decided under former O.C.G.A. § 15-11-19);(decided under former O.C.G.A. § 15-11-19);(decided under former O.C.G.A. § 15-11-19);(decided under former O.C.G.A. § 15-11-19).

- Since no injury appeared to have resulted, technical violations of former O.C.G.A. § 15-11-19 (see now O.C.G.A. §§ 15-11-133,15-11-410,15-11-411,15-11-412,15-11-501, and15-11-502) would not render infirm evidence obtained as a result of such violations. In re J.D.M., 187 Ga. App. 285, 369 S.E.2d 920 (1988) (decided under former O.C.G.A. § 15-11-19).

- By notifying the defendant's guardian of the defendant's arrest and the grounds therefor, the police complied with subsection (c) of former O.C.G.A. § 15-11-19 (see now O.C.G.A. § 15-11-501). That the guardian cooperated with the police in the police investigation of the defendant's involvement in the crime did not require a finding that the statement was not voluntarily made. Burnham v. State, 265 Ga. 129, 453 S.E.2d 449 (1995), overruled on other grounds, Stinski v. State, 281 Ga. 783, 642 S.E.2d 1 (2007) (decided under former O.C.G.A. § 15-11-19).

Rule as to confessions of juveniles should be same as that for confessions of adults because law enforcement officers cannot be certain when officers question a juvenile what kind of case may develop, and the statutory safeguards are applicable to both criminal and juvenile cases. Crawford v. State, 240 Ga. 321, 240 S.E.2d 824 (1977) (decided under former Code 1933, § 24A-1402); Jackson v. State, 146 Ga. App. 375, 246 S.E.2d 407 (1978);(decided under former Code 1933, § 24A-1402).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under pre-2000 Code Section 15-11-19, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

- Officers of the juvenile division of the sheriff's department may not also serve as juvenile court intake officers for purposes of compliance with former statutory provisions. 1983 Op. Att'y Gen. No. U83-66 (decided under former O.C.G.A. § 15-11-19).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, §§ 7, 66.

- 43 C.J.S., Infants, § 141 et seq.

- Uniform Juvenile Court Act (U.L.A.) § 13.

- Constitutionality of statute which for reformatory purposes deprives parent of custody or control of child, 60 A.L.R. 1342.

Applicability of double jeopardy to juvenile court proceedings, 5 A.L.R.4th 234.

Truancy as indicative of delinquency or incorrigibility, justifying commitment of infant or juvenile, 5 A.L.R.4th 1211.