You have inquired of this office as to whether the Georgia Department of Family and Children Services (hereinafter "the Department") may request that parents consent to placement of their children by the Department outside the family home, without the Department instituting legal action against the parents, when the Department either is conducting an investigation of purported child abuse or after the Department has confirmed that child abuse has occurred. In your letter, you express concerns that such "voluntary placements" may deny parents certain of their procedural due process rights accorded under Georgia's Juvenile Code, O.C.G.A. § 15-11-1 et seq. as amended, and may be contrary to established Georgia law. Upon review of relevant statutory provisions and case law, I conclude that the Department may effect voluntary placements either during the pendency of an investigation of suspected child abuse or when the Department confirms that child abuse has occurred, as long as the requirements under state and federal law for voluntary placements are met.

The Department, as a division of the Georgia Department of Human Resources and a state institution, is vested with certain duties, powers, and authority which are explicitly enumerated in various provisions of Title 49 of the Official Code of

Georgia Annotated. The Department, among other things, is specifically charged with the responsibility of providing preventive, child welfare, and other appropriate and necessary services to children and adults of this state for "the prevention, control, and treatment of dependency, deprivation, and delinquency among the children of this state." O.C.G.A. § 49-5-8(a)(1). See also O.C.G.A. §§ 49-2-5, 49-2-6(b)(7), 49-2-7(b), 49-3-6. Section 49-5-8(a)(2)(B) explicitly mandates that the Department

investigate complaints of deprivation, abuse, or abandonment of children and youths by parents, guardians, custodians, or persons serving in loco parentis and, on the basis of the findings of such investigation, offer social services to such parents, guardians, custodians, or persons serving in loco parentis in relation to the problem or bring the situation to the attention of a law enforcement agency, an appropriate court, or another community agency.

(Emphasis added.) Thus, in fulfilling its statutory duties to protect the health, safety, and welfare of children, the Department is authorized to work directly with parents of children who are deprived, abused, or abandoned and seek to resolve the source or cause of such conditions with or without immediate court intervention. Id.

One manner in which the Department may attempt to assist a family, either during or after an investigation of deprivation, abuse, or abandonment, is to have the parents agree to a voluntary placement by which children may be placed by or through the assistance of the Department with caretakers outside the family home. State and federal law not only permit voluntary placements, but also provide strict guidelines which must be adhered to in order for such placements to be legally valid. See O.C.G.A. § 49-5-8(c)(3); 42 U.S.C. § 670 et seq.

Pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, and Part E of Title IV of the Social Security Act, 42 U.S.C. § 670 et seq. as amended (hereinafter "the Act"), the United States Congress, in an effort to enable each state to provide foster care and adoption assistance for children in appropriate cases, enacted provisions by which the federal government would provide payment to the states for necessary expenses for voluntary placements of children as long as the states met all of the requirements under the Act. See 42 U.S.C. §§ 670, 672(b), 672(d), 672(e). A "voluntary placement," as defined in the Act, "means an out-of-home placement of a minor, by or with participation of a State agency, after the parents or guardians of the minor have requested the assistance of the agency and signed a voluntary placement agreement." 42 U.S.C. § 672(f).

The Act requires that such placements be completely voluntary; that written agreements providing for such placements be

executed by the parents; that voluntary placements may not exceed 180 days; and that such agreements for voluntary placements may be revoked or terminated by the parents at any time. See 42 U.S.C. § 672(e)-(g). In addition, judicial oversight or review of voluntary placements is required if such placements exceed 180 days: the state will not receive any federal payments under the Act if children have "remained in voluntary placement for a period in excess of 180 days, unless there has been a judicial determination by a court of competent jurisdiction (within the first 180 days of such placement) to the effect that such placement is in the best interests of the child." 42 U.S.C. § 672(e).

The Department is required under Georgia law to comply with the requirements of the Act and has adopted a policy and procedure to ensure that there is full compliance with the Act's mandates. See O.C.G.A. § 49-5-8(c)(3); Department of Human Resources, Social Services Manual, Foster Care Services, Policy and Procedures for Voluntary Placement Authority, Chapter 1000, Section 2, at 6 (hereinafter "Policy 1002.6"). Policy 1002.6 requires, among other things, that whenever a parent voluntarily places a child in foster care, the parent must execute a written agreement; that the Department must petition the juvenile court for extensions of any voluntary placement agreement; and that the Department must assist the parent, if necessary, in submitting a written request for return of a child so placed with the Department. In addition, Policy 1002.6 provides that the parent has the right to have a child voluntarily placed with the Department returned within five (5) working days after submitting a written request to the Department. Thus, parents are accorded many protections under both state and federal law by which they can enter into and withdraw from voluntary placement agreements with the Department.

Moreover, in those situations where parents have voluntarily agreed to place their children in foster care and all of the requirements under both state and federal law are met, the procedural due process rights accorded parents under Georgia's Juvenile Code are not implicated. It is well established that a proceeding in, as well as the proper assumption of jurisdiction in a particular matter by, a juvenile court may be commenced only by the filing of a duly authorized petition as provided in O.C.G.A. § 15-11-23. See O.C.G.A. § 15-11-11; Hartley v. Clack, 239 Ga. 113, 114-15 (1977); Longshore v. State, 239 Ga. 437, 438-39 (1977). "Due process of law means the administration of general laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the subject-matter, and proceeding upon notice and hearing." Norman v. State, 171 Ga. 527, 529 (1930). See also Frank v. State, 142 Ga. 741, 747, cert. denied, 235 U.S. 694, 35 S. Ct. 208, 59 L. Ed. 429 (1914); Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 311 (1962). Thus, if a duly authorized petition has not been filed in a juvenile court involving a child who is the

subject of a valid voluntary placement agreement between the Department and the parents, the juvenile court has no jurisdiction over the matter, and the due process protections that are accorded to parents in the Juvenile Code have not accrued.

Although the Georgia Supreme Court held in Sanchez v. Walker County Dep't of Family & Children Services, 237 Ga. 406 (1976), that "the detention or taking of a child into custody triggers the application of the procedural requirements of the Juvenile Code," id. at 407, voluntary placements properly made in accordance with state and federal law are clearly distinct from any scenario in which the Department has "detained" or "taken a child into custody." Compare 42 U.S.C. § 672(f); O.C.G.A. § 15-11-17. In the context of a voluntary placement, the child is voluntarily placed with the Department by the parent and that arrangement can be revoked by the parent at any time. However, if a child is "detained" in the traditional, legal sense of the word, then the Department must proceed as required under the Juvenile Code. See Sanchez, supra; Williams v. State, 238 Ga. 298 (1977); Bussey v. State, 144 Ga. App. 875 (1978); Paxton v. State, 159 Ga. App. 175, 180 (1981).

Further, the statutory provisions of the Juvenile Code to which you refer in your letter, O.C.G.A. §§ 15-11-17, 15-11-19, and 15-11-20, are not implicated by valid voluntary placement agreements. Pursuant to such an agreement, the Department, with full consent of the parent, places a child in foster care; the child is not "detained" or "in custody." The procedural due process requirements of Sections 15-11-17, 15-11-19, and 15-11-20 are applicable and must be met by the Department, only if a proceeding is properly commenced in a juvenile court, by the filing of a duly authorized petition as required under O.C.G.A. §§ 15-11-11 and 15-11-23. In addition, none of the requirements involving voluntary placements may be waived; however, it is well settled that the procedural due process rights accorded under the Juvenile Code may be waived. See J.T.G. v. State, 141 Ga. App. 184, 185 (1977); Cox v. Department of Human Resources, 148 Ga. App. 43 (1978), overruled on other grounds, Chancey v. Department of Human Resources, 156 Ga. App. 338 (1980); In the Interest of M.D.C., 214 Ga. App. 59, 61 (1994).

If a parent does not choose to enter into a voluntary placement agreement with the Department, then the Department may bring a petition before the juvenile court and seek temporary legal custody of a child. See O.C.G.A. § 15-11-24. At that juncture, the Department is required to comply with all of the due process requirements provided in the Juvenile Code. Moreover, even if the juvenile court were to award temporary legal custody of the child to the Department, the parent retains residual parental rights and responsibilities and may petition the juvenile court to retransfer physical custody of the child back to the parent. See O.C.G.A. §§ 15-11-43, 15-11-34(a)(2), 49-5-3(12). A parent can only lose his or her parental rights to a child when the parent's rights have been

terminated either by execution of a legally valid surrender of parental rights as provided in O.C.G.A. § 19-8-1 et seq. or by court order, following ample notice and a full and fair termination hearing, as provided in O.C.G.A. § 15-11-80 et seq.

Based on the foregoing, it is my unofficial opinion that the Georgia Department of Family and Children Services may request that parents consent to placement of their children by the Department outside the family home, without the Department instituting legal action against the parents, either during the investigation of purported child abuse or after confirming child abuse, as long as the requirements under state and federal law for voluntary placements are met.

Prepared by:

Assistant Attorney General