In Georgia, a child can be found to be deprived when he or she has been neglected, abused, left unattended without supervision, or allowed to miss excessive days of school. 

The Georgia code lists four circumstances in which a child can be considered deprived.

If the child is:

O.C.G.A. 15-11-2(8)(A-D).

A deprivation action is usually filed by the Department of Family and Children Services (DFCS) upon receiving a notice, report, or referral from someone claiming that a child has been abused.  However, the Georgia Code allows deprivation actions to be filed by any private person who has knowledge of the conditions giving rise to the deprivation.

The petition alleging deprivation may be made by any person who has knowledge of the facts alleged and believes that they are true.  O.C.G.A. 15-11-38.  This individual may be an extended family member or close family friend. 

1)  Neglect

Neglect is unacceptable even if it arises as the result of poverty or mental illness.   Vermilyea v. Dept. of Human Resources, 155 Ga. App. 746 (1980).  The Vermilyea court held that "unfortunate economic and personal circumstances" are not an excuse for parents to ignore the basic hygiene and medical needs of their children.  The condition of the subjects of the petition in this case shocked the conscience of the court. "Even the poorest of the poor can be expected to maintain reasonably clean and hygienic living conditions." Id. at 750.

In neglect cases, clear, specific, tangible evidence (e.g., photographs, eyewitnesses giving vivid descriptions based on direct, continuous observation) is necessary for a positive resolution.

One important note:  Neglect is not a comparative condition.  A child canot be declared "deprived" simply because the child might be considered "better off" in a different environment. 

2)  Physical Abuse

Physical abuse is defined in Georgia as physical injury or death inflicted upon a child by a parent by other than accidental means.  This broad category covers the waterfront, and as we have seen with cases such as the House of Prayer, opinions differ widely about the degree of injury which is legally acceptable.   Some cases obviously qualify as physical abuse, and others are more subtle.  In Georgia, physical forms of discipline such as spanking may be used as long as there is no physical injury to the child. 

3)   Emotional Abuse 

We have all seen or know parents who are verbally abusive and cause their children to be traumatized.  Sometimes, we will see strangers in a store saying incredibly cruel things to their helpless child.  However, emotional abuse cases are among the most difficult to prove.  Not only specific, first-hand evidence is critical, but expert testimony based on evaluation of the child and his/her parents may be necessary. 

4)   Unstable Lifestyle

Some emotional abuse cases are based on the idea that frequent moves from home to home can prevent the successful formation of a parent-child relationship.  A child can thus be deprived of a sound environment built upon love and nurture. There can be a substantial danger that the child will suffer emotional as well as physical, mental, and moral harm.  Elrod v. Dept. of Family and Children Services, 136 Ga. App. 251 (1975).  Particular care must be exercised in deciding whether an emotional abuse case should be filed to avoid making the child's environment even more hostile.

Georgia courts recognize that children need stable and permanent homes.  

Juvenile courts will not accept a deprivation petition filed by one parent against another because it is a prima facie custody matter, and most likely an attempt to gain custody of the child by bypassing a more stringent standard of proof necessary to modify a custody award.

Generally, private individuals who file deprivation actions must retain their own attorneys.  DFCS is represented by Special Assistant Attorney Generals (SAAGs); the children are entitled to an attorney paid by the state to represent them; and if the parents in a deprivation action cannot afford legal representation, court-appointed attorneys are assigned. 

Interestingly, while the judge is authorized to appoint legal counsel to represent the petitioner, O.C.G.A. 15-11-41(c), this rarely occurs.  It is highly recommended that private petitioners obtain legal counsel.  If the petitioners in a private deprivation case do wish to be represented, they must locate an attorney who has expertise practicing in juvenile courts, usually under extremely tight deadlines.

Attorney Stewart can help you evaluate the strength of an abuse or neglect case and can assist you in filing a petition for private deprivation.

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If you have a child in your physical custody and you are not that child’s parent, you lack the authority to enroll the child in school, obtain medical treatment for the child or otherwise control the child without first becoming the legally-qualified Temporary Guardian of a Minor Child through the Probate Court of your county of residence.

Guardianships for children in Georgia are often called "school guardianships."   Friends or relatives often care for a child uneventfully until they attempt to register the child for school.  Then, the need for legal documentation of their right to have custody of the child often becomes apparent. 

A guardianship is a legal relationship wherein a court appoints a person (a guardian) to make certain decisions for another person (a ward) proven to need such assistance.  

Sometimes parents recognize that they are temporarily unable to care for their minor children and place them with a friend or relative who can care for the children until the parents can do so again.   In these situations, a voluntary Temporary Guardianship of a Minor can be useful to all the parties so that the Temporary Guardian can enroll the child in school or summer camp and authorize medical treatment.

Guardianships generally require that the parents temporarily give up or relinquish their parental rights.  The usual exception to this requirement is when the parents cannot be located.

• the objecting parent does not have legal custody of the child (which can occur if the parents were not married at the birth of the child; if the father has not legitimated; OR
• if the parents are divorced and only one parent has custody of the child).

If an objection is filed, the probate judge will transfer the case to the juvenile court, which will give both sides notice and hold a hearing.

A guardianship can be created on an emergency basis, and it can be temporary or permanent.

The court must insure that your home is an appropriate place for the child.  Therefore, the petitioner(s) and anyone over 18 years old who is living in the same household where the child will be living must fill out and sign a consent form allowing the Probate Court to receive information concerning their criminal records.

Attorney Stewart can help foster parents or extended family members apply for and obtain legal guardianship over minor children. This involves gathering all necessary birth and medical papers, as applicable, and completing the forms required for establishing justifiable cause to obtain temporary or permanent legal guardianship.

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On 5/13/08, Governor Perdue signed the newly-enacted "Care of a Grandchild Act."

This legislation was designed to assist families to transfer custody when necessary without the expense or involvement of the court system.  The General Assembly recognized that an increasing number of relatives in Georgia, including grandparents and great-grandparents, have been providing care to children who cannot reside with their parents due to the parent´s incapacity or inability to perform the regular and expected functions to provide such care and support. 

With a stroke of a pen, a parent of a minor child in Georgia may now delegate to any grandparent residing in this state caregiving authority regarding the minor child when hardship prevents the parent from caring for the child.

Hardships may include, but are not limited to:

• A parent being unable to provide care due to the death of the other parent;
• A serious illness or terminal illness of a parent;
• The physical or mental condition of the parent or the child such that proper care and supervision of the child cannot be provided by the parent;
• The incarceration of a parent;
• The loss or uninhabitability of the child´s home as the result of a natural disaster; or
• A period of active military duty of a parent exceeding 24 months.

It must be noted that these powers of attorney cannot be used for the purpose of avoiding a DFCS investigation or to establish residency which might allow the child to attend a more desirable school. 

Ms. Stewart can assist families with the necessary paperwork to create this special power of attorney.  In the event that a power of attorney is rejected by a school system, it is recommended that the appeal process be handled by an attorney.

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