Georgia’s child advocacy community has long recognized the need for a complete revision of the Juvenile Code in order to promote a fairer and more just system and to enhance services for children and families. Although sections of the Georgia Juvenile Code have been amended since its original enactment in 1971, the Georgia General Assembly passed Senate Resolution 161 during the 2005 legislative session, recognizing that a comprehensive rewrite was needed and establishing a study committee to work with already existing efforts by the State Bar of Georgia to revise the code.
While the General Assembly chose not to renew its resolution in 2006, the Juvenile Law Committee of the Young Lawyers Division of the State Bar of Georgia (JLC-YLD) continues to work on the rewrite with support from the JUSTGeorgia Partners: Georgia Appleseed Center for Law and Justice, Barton Child Law & Policy Clinic of Emory Law School, and Voices for Georgia's Children. The JLC-YLD and the JUSTGeorgia Partners anticipate that a draft will be made public in the spring of 2008, and upon further review will be submitted to the Georgia General Assembly for consideration during the 2009-10 legislative session.
On March 1st and 2nd of 2005, the reporter for the JLC-YLD conducted two meetings with separate focus groups to determine the major strengths and weaknesses of the Juvenile Code. The focus groups, comprised of stakeholders such as judges, attorneys, policy analysts, and others who regularly use the Juvenile Code in their daily work, examined both the delinquency and deprivation sections of the Juvenile Code. Major problems cited by the focus groups and others familiar with the Juvenile Code indicate that the code (1) is structurally disorganized; (2) lacks clarity and specificity; (3) is difficult to apply, resulting in inconsistent rulings; (4) fails to provide adequate constitutional protections for youths; and (5) conflicts with federal law.
(1) The Confusing Structure of Georgia’s Juvenile Code
The Juvenile Code’s sections are lengthy and confusing. In the deprivation code for example, O.C.G.A. Section 15-11-58 alone has sixteen headings, most of which include subheadings and subparts, resulting in an endless number of poorly labeled sections that readers must sort through to find relevant information. Adding to the level of disorganization, deprivation is intermingled with delinquency in sections of the Juvenile Code. For example, Part Five of the Juvenile Code addresses “Arrest and Detention.” Section 15-11-48 of Part Five begins by describing where youths who are alleged to have committed a delinquent act, capital or violent offense, or to be unruly should be detained. Under this same section, there is a very short paragraph describing where youths alleged to be deprived should be placed. Someone who is unfamiliar with the Juvenile Code might begin to read this section, believe that it is about delinquency despite the mention of deprivation in the title, and overlook critical information regarding deprivation. Alternatively, someone might not consider looking in sections that primarily address deprivation for information on delinquent issues and miss necessary information. One of the strongest recommendations for improvements in the Juvenile Code is that deprivation and delinquency be separated into two distinct sections to lessen uncertainty over which statute applies.
(2) The Juvenile Code Lacks Clarity and Consistency
The Juvenile Code does not provide clear and consistent definitions for the most basic terms. For example, Section 15-11-2 provides three separate definitions for the word “child” that involve various combinations of ages, statuses, and offenses. The reason for the multiple definitions for the word “child” appears to be the need to define when the juvenile court has jurisdiction over different classes of persons under the age of 21. Unfortunately, having several definitions of “child” is confusing and does not have the desired “defining” effect. Readers have to take into account too many categories of children when applying the term “child” to the rest of the Juvenile Code. One suggestion is to have a separate section that describes the jurisdiction of juvenile courts and then to create one single definition for “child,” or at least have separate labels for the different categories of children, such as “delinquent child,” “deprived child,” and “unruly child.” Similar ambiguity surrounds other frequently cited terms like “reasonable efforts” and “parties,” which are used repeatedly in the Juvenile Code without concise definitions, thus leaving many terms open to interpretation.
(3) The Juvenile Code Produces Inconsistent Appellate Decisions
Because the Juvenile Code’s deprivation statutes often do not address particular issues that commonly arise and because the statutes are often vaguely worded, the Court of Appeals of Georgia sometimes reaches inconsistent decisions due to differing judicial interpretations of the statutes. For example, the Court of Appeals of Georgia has split on the issue of whether a parent’s drug use alone provides clear and convincing evidence to terminate parental rights, or whether there must be a nexus between the drug use and harm to the child. Some panels of the Court of Appeals have required evidence in the record that the parent’s drug use negatively affected the child, while other panels have not. In January 2006, a Court of Appeals panel said that a parent’s occasional drug use did not indicate that she was unable to care for her child. In April 2006, a second Court of Appeals panel suggested that a parent’s drug use could be used to infer that a child was adversely affected and lead to termination of parental rights. One month later, a third Court of Appeals panel stated that there typically must be evidence that drug use has adversely affected the child, but that in some circumstances evidence of drug use suffices.
Due to the lack of specificity within the statutory language, the Court of Appeals of Georgia has struggled to decide not only whether a parent’s drug use is the sole requirement necessary to terminate parental rights but also whether a parent’s use of certain drugs, like methamphetamines, are more indicative of adverse affects on a child than other drugs such as marijuana. The Court of Appeals also wrestles with whether the parent must be a chronic or occasional substance abuser. A revision of the Juvenile Code is necessary to clarify these recurring issues so that the law can be distributed with a more even hand.
(4) The Juvenile Code’s Delinquency Sections Do Not Ensure Constitutional Protections
The United States Supreme Court decision of In re Gault established that juveniles who are accused of delinquent crimes have many of the same due process rights in proceedings that adults are entitled to under the Fourteenth Amendment. Among the constitutional rights granted to youths is the right to have counsel in delinquency proceedings. According to the Court, “The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon the regularity of the proceedings, and to ascertain whether [s]he has a defense to prepare and submit it.”
However, Georgia’s current Juvenile Code allows for easy waiver of counsel, despite evidence that young people might not be capable of making an informed decision about waiving their right to counsel. In recent years, it has become well documented that adolescents’ brains are less developed than adults’, specifically the frontal lobe, which is the area of the brain that controls judgment and decision making skills. For this reason, some experts on youth development suggest that youths should not be allowed to waive counsel until they have consulted with an attorney and understand the repercussions of their actions. Georgia’s rewrite of the Juvenile Code should do more to ensure that this constitutionally guaranteed protection is more fully guaranteed.
(5) Parts of the Juvenile Code are not in Compliance with Federal Law
Finally, sections of the Juvenile Code do not comply with federal laws that could provide additional resources for Georgia. Two examples involve the application of the Adoption and Safe Families Act (ASFA) and the Juvenile Justice Delinquency Prevention Act (JJDPA).
When Congress enacted ASFA in 1997, one goal of the statute was to correct problems within the foster care system that discouraged the adoption of children with special needs. While Georgia’s current Juvenile Code contains provisions that comply with ASFA’s guidelines in its deprivation sections, stakeholders believe that it is critical that the provisions of ASFA apply to all aspects of juvenile court jurisdiction in Georgia, including delinquency. This would allow provisions of ASFA to apply to more of Georgia’s youth, and allow Georgia to have access to additional federal funding that could be used for delinquent youth.
Additionally, Georgia relies significantly on federal grants to support its juvenile justice system. To receive funds, Georgia must comply with four mandates under the JJDPA. One of the four mandates is that status offenders cannot be detained in secure confinement for longer than 48 hours (with some exceptions). However, Georgia law allows confinement of repeat status offenders and runaways for days or even weeks longer than the time permitted by federal law. One consequence of failing to comply with federal law is that the funding provided to Georgia could be reduced by 25%. Not only does Georgia’s juvenile justice system stand to lose $450,000 that it depends on for resources, Georgia’s juvenile justice system will also have to spend its remaining JJDPA funding to reach the goals required by the JJDPA instead of the ones the state wants to accomplish.
In sum, Georgia is one of the first states to attempt an extensive, complete reorganization and rewrite of its state’s Juvenile Code. Not only does JUSTGeorgia want to secure passage of an easier to understand and more uniform Juvenile Code, it hopes that Georgia’s Juvenile Code might one day serve as a model that other states can examine and modify for their own use. In drafting the new Juvenile Code, the JLC-YLD has adopted a multidisciplinary, evidence, and research based approach in an effort to remedy identified concerns with the current code. A new Juvenile Code will improve the lives of Georgia youth by providing the systems that serve our youth with more resources and by promoting fairness and justice.
