B.A.H., In Interest of

• Decision Date: 25 February 1991
• Docket Number: No. A91A0234,A91A0234
• Citation: 198 Ga.App. 713,402 S.E.2d 791
• Parties: In the INTEREST OF B. A. H., a child.
• Court: Georgia Court of Appeals

Page 791

402 S.E.2d 791

198 Ga.App. 713

In the INTEREST OF B. A. H., a child.

No. A91A0234.

Court of Appeals of Georgia.

Feb. 25, 1991.

Michael Greene, Lawrenceville, for appellant.

Phyllis Miller, Sol., for appellee.

ANDREWS, Judge.

A delinquency petition was filed in the Juvenile Court of Gwinnett County charging 16-year-old B. A. H. with five counts of burglary and five counts of theft by taking. The State sought to transfer the matter from juvenile court to superior court pursuant to OCGA § 15-11-39.

Six days before the April 18, 1990, transfer hearing, the juvenile court clerk sent notices that set forth the time and place of the hearing to B. A. H. and his mother. The notices did not state the purpose of the hearing.

Despite the omission in the notices, B. A. H. and his mother were aware of the possibility of the transfer and both had been present at a March 13, 1990, detention hearing at which the State announced its intention to transfer the matter. Additionally, the juvenile's attorney had received proper written notice and the juvenile court judge had issued an order on April 9, 1990, which referred to the transfer hearing.

At the transfer hearing on April 18, 1990, for which both B. A. H. and his mother were present, the juvenile court judge heard evidence regarding the "reasonable cause" portion of the transfer. ¹ B A. H. objected to the lack of proper notice and the juvenile court judge postponed hearing evidence regarding whether to process B. A. H. as an adult until April 23, 1990, at which time the judge determined that the offenses would be transferred to the superior court. B. A. H. appeals from this transferral order.

1. The sole procedure by which a juvenile court may relinquish jurisdiction and transfer a matter for prosecution is outlined in OCGA § 15-11-39. See In the Interest of T. J. M., 142 Ga.App. 415, 236 S.E.2d 152 (1977); J. W. A. v. State, 233 Ga. 683, 684, 212 S.E.2d 849 (1975). The statute requires that three days before the hearing, written notice of its time, place and purpose be given to the child and his parents, guardian, or other custodian. OCGA § 15-11-39(a)(2).

Here, B. A. H. contends that the notice of the transfer hearing was inadequate and that the subsequent transfer was improper. The State argues that despite the failure to send written notice of the hearing's purpose, it complied with the statute.

At the outset, we acknowledge that " 'there must be scrupulous adherence to due process requirements in juvenile court proceedings.' " In re B. A. P., 180 Ga.App. 433, 434, 349 S.E.2d 218 (1986); C. L. T. v. State, 157 Ga.App. 180, 276 S.E.2d 862 (1981); Sanchez v. Walker County Dept. of Family, etc., Svcs., 237 Ga. 406, 410, 229 S.E.2d 66 (1976). A transfer must be " 'done strictly in accordance with (OCGA § 15-11-39), the only means by which the juvenile court can divest itself of jurisdiction under the Juvenile Code.' " (Emphasis omitted.) In the Interest of D. B., 187 Ga.App. 3, 4, 369 S.E.2d 498 (1988); D. L. M. v. State, 160 Ga.App. 424, 287 S.E.2d 355 (1981); J. W. A., supra.

Here, even if the mother, child and attorney's initial knowledge of the purpose of the hearing was insufficient to establish proper notice, the five-day postponement of the portion of the hearing dealing with whether to process B. A. H. as an adult provided adequate notice. ² The instant procedure measures up to "the essentials of due process and fair treatment." See Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); R. S. v. State, 156 Ga.App. 460, 274 S.E.2d 810 (1980). Our decision is also consistent with Reed v. State, 125 Ga.App. 568, 188 S.E.2d 392 (1972) because of the factual disparities between the cases. ³ See also United States v. Doe, 701 F.2d 819 (9th Cir.1983).

Accordingly, we hold there was no harmful error in the failure of the notice to state the purpose of the hearing. See In the Interest of R. J., 191 Ga.App. 712, 714, 382 S.E.2d 671 (1989).

2. In his second and third enumerations of error, the juvenile contends that the trial court's finding that the state did not rely upon the amendability factor in urging transfer was in error. These contentions are without merit. See State v. M. M., 259 Ga. 637, 386 S.E.2d 35 (1989); In the Interest of J. D., 195 Ga.App. 801, 395 S.E.2d 280 (1990).

The juvenile court order stated that the State relied upon the community interest in seeking the transfer and the record before us supports this conclusion. "The Supreme Court has held that OCGA § 15-11-39 'subsumes the juvenile's amenability to treatment within the concept, "the interest of the child," and authorizes a juvenile court to transfer to the superior court a juvenile who is amendable to treatment if the juvenile court finds that the amendability factor is outweighed by the interests of the community in processing the child as an adult.' " In the Interest of R. J., supra at 714, 382 S.E.2d 671; Nobles v. State, 191 Ga.App. 594, 382 S.E.2d 637 (1989); In the Interest of J. J. S., 246 Ga. 617, 618, 272 S.E.2d 294 (1980). The function of this court is limited to ascertaining whether some evidence exists to support the juvenile court determination. R. J., supra at 715, 382 S.E.2d 671. Here, there is ample evidence to sustain the juvenile court's determination that the State relied upon the community interest as its basis for transfer.

3. Appellant's remaining enumerations of...