I am writing in response to your request for an opinion concerning due process procedures available to juveniles being moved from a Department of Children and Youth Services' (DCYS) facility to the new Eastman Youth Development Facility run by the Department of Corrections (DOC). The Eastman facility is intended to provide DCYS with a "specially commissioned institution solely dedicated to the housing and rehabilitation of such at-risk unruly and delinquent children." See O.C.G.A. § 49-5-10.1(a). Your letter questions the criteria for deciding which juveniles will be moved to Eastman, as well as the notice and hearing each will receive prior to his transfer.

I am informed the Eastman facility is being dedicated solely to the secure treatment and [*2] rehabilitation of delinquent youth. It has an academic program, trained counselors, psychiatric and psychological consultation available to those youth who require it, dental and physical medicine services, alcohol and drug abuse counseling, and a program for violence remediation. DOC will maintain responsibility for the day-to-day operation of the building and program which are required to meet national standards for the treatment and incarceration of juvenile offenders. Consultation is being provided to the Eastman Youth Development Facility staff by the National Council on Crime and Delinquency (NCCD) and the facility will be monitored both by DCYS and by the NCCD.

Youths eligible for the Eastman facility already have been committed to DCYS custody following adjudication by the juvenile or superior courts of the state. The criteria for determining when a particular youth is at risk, and therefore eligible to be considered for transfer, is set out in the Rules of The Department of Children and Youth Services, Official Compilation of Rules and Regulations of the State of Georgia, Chapter 97-3: Transfer of At-Risk Youth to the Department of Corrections.

You correctly [*3] note a similarity between the definition of "at risk youth" eligible for transfer to Eastman and the definition of "incorrigible children", deleted by amendment to O.C.G.A. § 15-11-2. While the criteria for at-risk youth is somewhat similar to the definition of incorrigibility, it is important to note that the new rule is broader and more explicit. This provides additional protection to youth by assuring that only those juveniles who have shown a proven inability to succeed in a DCYS placement will be considered as candidates for a transfer to Eastman.

For example, the old definition of incorrigible child included a young offender with a "history of escape or escape attempts." See O.C.G.A. § 15-11-2(8.1)(C)(deleted July 1, 1992). The new rule, by contrast, provides that an at-risk youth is one who "attempt(s) to escape or escapes from DCYS facilities with aggravating circumstances. Such circumstances shall include the injury of staff or other residents, the taking hostage of staff, residents or others, and the use of force during the escape or escape attempt." The clarification and additional information found in the definition of at-risk youth will help insure that only [*4] juveniles in need of the structure and programs provided at Eastman will be transferred to the facility.

Extensive due process procedures are allowed a youth who meets the at-risk criteria. Some of the procedures were added after comment was received on a draft of the Rules made public in April and May of this year. DCYS heard from several child advocacy agencies at that time and, as a result, acted to expand the due process protections available to juveniles subject to transfer to Eastman.

In summary, the panel which makes a determination regarding a transfer is made up not only of DCYS staff but also includes two persons outside the Department. A youth being considered for transfer is given twenty days notice of a hearing at which he is entitled to have legal representation, to cross-examine any witness and to introduce evidence in his own defense. The decision of the panel may be appealed to the Commissioner of DCYS, whose ruling may in turn be appealed to superior court. In sum, ample due process opportunities are afforded to a youth before a final decision is made on a transfer.

I believe this procedure is consistent with A.B.W. v. State of Georgia, 231 [*5] Ga. 699 (1973). The Court in A.B.W. held that a juvenile may be committed to the custody of the Department of Corrections, but that DOC must not place that juvenile in one of its institutions used primarily for the incarceration of persons convicted of crimes. The Court found that the commitment of a juvenile to any authorized facility "is not commitment for conviction of a crime," but instead is commitment for "rehabilitation and treatment in a facility that provides superior security and protection." Id. at 702. Justice Ingram, in his dissent, objected to the majority in large part because DOC did not then have facilities available which could be used for juveniles only. Id. at 703. The Eastman facility is designed soley for youths for rehabilitation, and treatment along with heightened security to serve "at risk" youth.

It is therefore my unofficial opinion that there are adequate due-process safeguards to decide whether the Eastman facility is the appropriate placement for a youth.

Issued this 1st day of September, 1993.

Prepared by:

CYNTHIA HONSSINGER FRANK,

Staff Attorney