D. C. A. v. State

• Decision Date: 24 June 1975
• Docket Number: No. 2,No. 50616,50616,2
• Citation: 135 Ga.App. 234,217 S.E.2d 470
• Court: Georgia Court of Appeals
• Parties: D.C.A. v. STATE of Georgia

Page 470

217 S.E.2d 470

135 Ga.App. 234

D.C.A. v. STATE of Georgia.

No. 50616.

Court of Appeals of Georgia, Division No. 2.

June 24, 1975.

Syllabus by the Court

1. In juvenile court trials the parents are parties and therefore not subject to sequestration.

2. The Juvenile Court Code provides for a single bifurcated trial in which it is not necessary to repeat in the dispositional phase the evidence previously presented during the adjudicatory phase.

3. Delinquency of a juvenile cannot be established by his incriminating statements in the absence of proof of the corpus delicti.

John Paul Jones, Atlanta, for appellant.

Kathryn Ann Workman, Sol., Decatur, for appellee.

CLARK, Judge.

Two procedural problems under our Juvenile Court Code are presented for decision in this appeal by a fourteen-year-old boy from a ruling of delinquency in addition to those enumerations of error which attack the court's finding of delinquency. ¹

1. The first assignment of error requires us to decide if the sequestration rule of Code § 38-1703 which makes mandatory upon motion the removal of witnesses from the court room applies to the juvenile's parents. This sequesterment situation does not apply to parties. 'The rule in reference to the sequestration of witnesses does not apply to a witness who is a party to the case, even though there may be several parties on the same side who are all to be examined as witnesses.' Georgia Railroad & Bkg. Co. v. Tice, 124 Ga. 459, 460(3), 52 S.E. 916, 917.

A reading of the Juvenile Court Code indicates that in those proceedings the parents come within the category of 'parties.' This is demonstrated in that the names and residence addresses of the parents must be stated in the petition alleging delinquency (§ 24A-1603(c)) and in the requirement of § 24A-1701(a) that 'The court shall direct the issuance of a summons to the parents, guardian, or other custodian, a guardian ad litem, and any other persons as appear to the court to be proper or necessary parties to the proceeding . . .' (Emphasis supplied.) Similarly, in § 24A-1701(e) the word 'party' is used in referring to waiver of summons with clear reference to parents or adults in loco parentis.

Under the prior Juvenile Court Act of 1951, our court in Land v. State, 101 Ga.App. 448, 114 S.E.2d 165 recognized the right of the parents to remain in the courtroom. Appellee's counsel argues Land should be distinguished in that there the juvenile was also excluded along with the parents whereas here the child and his father were permitted to remain in the courtroom. This argument overlooks the cogency of the rhetorical question propounded by Judge (now Chief Justice) Nichols at page 449, 114 S.E.2d at page 166 in these words: 'While . . . the juvenile in some cases may, and should, be excluded from, at least a part of, certain type hearings, the exclusion of the child or the child's parents from a hearing or any part thereof when the issue being heard is whether, because of the purported acts of the child, such child is in need of correction is manifestly an abuse of discretion, for who would, under any circumstances, have a more direct interest in the case?'

Moreover, § 24A-1801(c) indicates the legislative plan for the conduct of hearings was for the parents to be present at all times. It provides that 'The court may temporarily exclude the child from the hearing except while allegations of his delinquency or unruly conduct are being heard.' It does not make similar provision for exclusion of parents. Obviously, this falls within the application of the maxim, expressio unius est exclusio alterius.

Since this is the first ² time this question has been presented under our 1971 Juvenile Court Code we deem it proper to add that the whole concept of this salutary legislation is to treat the erring juvenile as a part of and with the help of his family. In the statute's opening paragraph the purpose is expressed '. . . that each child coming within the jurisdiction of the court shall receive, preferably in his own home, the care, guidance, and control that will conduce to his welfare and the best interests of the State . . .' (Emphasis supplied.) The judge below recognized this aspect as shown by his making available to the parents during the dispositional phase the investigation report prepared by skilled court personnel under the title of 'social history.'

In the light of our rulings in the third division hereafter, we do not deem it necessary to consider whether the sequestration of the mother alone should be considered as harmless error in that the youngster, his father, and his attorneys remained in the courtroom during the entire two-day trial.

2. The other procedural problem deals with the manner in which juvenile courts should conduct the respective 'adjudicatory' and 'dispositional' hearings. Appellant contended that each of these must be full-blown evidentiary trials even though all aspects of the alleged offense had already been presented at the first or adjudicatory phase. This contention is based upon certain language used in M.E.B. v. State of Ga., 230 Ga. 154, 195 S.E.2d 891. There the Supreme Court was dealing with the constitutionality of § 24A-1201(a) which provides that after a proceeding is commenced in a county other than the child's residence that the dispositional hearing shall be transferred to the county of the child's residence. In doing so the court stated that 'The adjudication proceeding is actually nothing more than a pre-trial hearing held in the county where the child was apprehended' and compared it to 'an arraignment under the Criminal Code.' It is clear that this language must be limited to juvenile proceedings which take place in two counties. It would not apply to trials in one county where the same judge conducts both phases of the bifurcated procedure.

The Juvenile Court Code requires separate trials with each having a different goal. The first or adjudicatory process in a delinquency case is a full scale fact-finding hearing to determine if the child committed the act with which he is charged and whether that constitutes delinquency. This portion is described by Georgia Professor Samuel M. Davis in his book, 'The Rights of Juveniles: The Juvenile Justice System', as being 'the functional equivalent of the trial in the regular criminal of civil process.' P. 124. At p. 150 Professor Davis writes: 'The principal concern for separating the adjudicatory and dispositional processes arises out of the fact that different evidentiary rules are applicable in the two phases of the court's consideration . . . (V) irtually any evidence that is material and relevant on the issue of disposition is admissible, because for purposes of making an appropriate disposition, the court needs to know as much about the child as possible. The same is not at all true of the adjudicatory phase, however, since it is comparable to the trial phase of a criminal prosecution. In the adjudicatory hearing, rules of evidence generally prevail.'

In the case at bar the judge had conducted a full-fledged trial during the adjudicatory phase. The transcript of that phase covers 307 pages out of a total of 352 pages. Obviously, the General Assembly's plan for a bifurcated procedure did not necessitate another complete trial with a reiteration of the same evidence before the same judge. In dividing juvenile trials into two phases our lawmakers intended to give the juvenile judge an opportunity to conduct the 'functional equivalent' of a regular trial (the adjudicatory hearing) in a manner which would satisfy the constitutional procedures required under the Gault case concomitant with the usual legal rules, such as those dealing with admissibility of evidence, proof beyond a reasonable doubt, and similar requirements applicable to adults. Thereafter, at the dispositional phase, the judge was to explore all available additional avenues, including psychiatric and sociological studies, which would enable him to provide a solution for the youngster and his family aimed at making the child a secure lawabiding member of society. Of course, the juvenile must be given during the dispositional phase all of those rights granted in Chapter 24A-20 of the Juvenile Court Code.

Accordingly, we hold the capable experienced judge here did not err in refusing to have the dispositional phase include a repetition of the same evidence and witnesses previously presented to him during the adjudicatory portion.

3. We next consider those enumerations which are limited to events which occurred during the adjudicatory phase.

The proceeding was instituted by the requisite formal petition which alleged the child to be 'delinquent' and 'in need of treatment and/or rehabilitation' by reason of having committed the offense of arson in the first degree in violation of ...