In re Interest of J. W.

• Decision Date: 08 April 2022
• Docket Number: A22A0311
• Citation: 871 S.E.2d 886
• Parties: In the INTEREST OF J. W., a child.
• Court: Georgia Court of Appeals

871 S.E.2d 886

In the INTEREST OF J. W., a child.

A22A0311

Court of Appeals of Georgia.

April 8, 2022

Paige Andrea Pastor, Ryan Bullerdick Sheffield, for Appellant.

Fani T. Willis, Atlanta, Francis McDonald Wakeford IV, Brett Elliot Pinion, for Appellee.

Phipps, Senior Appellate Judge.

J. W. appeals from a juvenile court order (a) adjudicating him delinquent for violating the conditions of his probation and (b) committing him to the custody of the Department of Juvenile Justice ("DJJ"). He contends that the juvenile court was not authorized to commit him to DJJ custody as a disposition for the delinquent act of violation of probation. For the reasons discussed below, we agree, vacate the juvenile court's dispositional order, and remand the case for entry of a new dispositional order consistent with this opinion.

Although J. W.’s prior adjudications are not included in the appellate record, the facts in this case are not in dispute. On January 23, 2020, the juvenile court adjudicated J. W. delinquent for acts which, if committed by an adult, would have constituted terroristic threats and two controlled substance offenses. Two of the terroristic threats adjudications were felony charges. Although the juvenile court was authorized to place J. W. in restrictive custody because he committed an act of delinquency designated as a felony, see OCGA § 15-11-601 (a) (10) (A), the juvenile court instead placed him on probation.

J. W. purportedly violated his probation a number of times by intentionally leaving the custody of the Fulton County Department of Family & Children Services ("DFCS"). On January 25, 2021, the juvenile court placed J. W. under a new order of probation for 24 months.¹ The order required J. W. to obey the lawful commands of his legal custodian and cooperate with his probation officer. J. W. left DFCS custody the following day, he thereafter failed to recharge his ankle monitor, and his whereabouts were unknown until mid-February.

On January 27, 2021, J. W.’s probation officer filed a complaint in the juvenile court alleging that J. W. had committed the delinquent act of "Violation of Probation." The complaint cited OCGA § 15-11-2 (19) (B), which defines a "[d]elinquent act" to include "[t]he act of disobeying the terms of supervision contained in a court order which has been directed to a child who has been adjudicated to have committed a delinquent act." The complaint did not include any indication that the delinquent act was classified as a misdemeanor or felony. The State subsequently filed a delinquency petition against J. W. containing the same allegations as the complaint. Specifically, the petition and its attachment charged J. W. with "the offense of VIOLATION OF PROBATION, O.C.G.A. 15-11-2 (19) (B)," for (1) leaving the presence of his DFCS behavioral aide on January 26, 2021 and remaining absent until he was located on February 14, 2021, (2) failing to recharge his ankle monitor during that time, and (3) failing to update his probation officer regarding his whereabouts.

At the hearing on the petition, J. W. admitted that he left his behavioral aide without permission on January 26, 2021, and remained absent until he was found on February 14, 2021. He further admitted that he failed to recharge his ankle monitor and update his probation officer regarding his whereabouts. Both J. W.’s probation officer and the State recommended commitment to DJJ custody. J. W.’s attorney, however, repeatedly argued at the hearing that the juvenile court lacked the authority to commit J. W. to DJJ custody for a violation of probation. The juvenile court disagreed, stating that a violation of probation authorized the court to "send [J. W.] to DJJ for the remainder" of his original sentence. On February 26, 2021, the juvenile court adjudicated J. W. delinquent for "the offense of DELINQUENCY VIOLATION OF PROBATION" and committed him to DJJ custody "for the remainder of his probation expiring January 24, 2023."

J. W. filed a motion for reconsideration, asserting once again that his commitment to DJJ custody was not a lawful disposition for a delinquency adjudication of violation of probation. The State thereafter filed a motion to revoke J. W.’s probation under OCGA § 15-11-608.² At the hearing on the motions, the juvenile court judge stated, "if he's on probation for a felony and he violates it, then I believe I have the discretion to re-sentence him and continue – and commit him to DJJ." The juvenile court subsequently denied J. W.’s motion for reconsideration and dismissed the State's motion for revocation of probation. J. W. appeals the juvenile court's February 26, 2021 order finding him delinquent for a violation of probation and committing him to DJJ custody until January 24, 2023.

In his sole enumeration of error, J. W. argues that the juvenile court unlawfully committed him to DJJ custody after finding him delinquent solely for violating his probation. Specifically, J. W. asserts that because the State chose to charge him with a new delinquent offense pursuant to OCGA § 15-11-2 (19) (B) rather than seek a probation revocation under OCGA § 15-11-608, the State was required to demonstrate that he committed an offense under OCGA § 15-11-601 (a) (10) to commit him to DJJ custody, see OCGA § 15-11-601 (a) (11), and a violation of probation does not satisfy that requirement. This challenge to the juvenile court's order involves a question of law, which we review de novo, and we review any factual findings supporting the juvenile court's order for clear error. In the Interest of R. M. , 329 Ga. App. 725, 726, 766 S.E.2d 126 (2014). We agree with J. W. that the trial court's disposition committing him to DJJ custody for a violation of probation is improper given the circumstances of this case.

If a juvenile is adjudicated delinquent, placed on probation, and subsequently violates his probation, the State is afforded two alternative procedural avenues for addressing the violation of probation: (1) it may file a motion to revoke probation under OCGA § 15-11-608 ; or (2) it may file a new delinquency petition alleging the probation violation as a delinquent act pursuant to OCGA § 15-11-2 (19) (B).³ In the Interest of J. M. A. , 340 Ga. App. 155, 158-159 (1), 796 S.E.2d 773 (2017) ; In the Interest of H. J. C. , 331 Ga. App. 506, 509-510 (2), 771 S.E.2d 184 (2015). The method chosen by the State determines the punishment that may be imposed by the juvenile court.

1. Motion to revoke probation. "An order granting probation to a child adjudicated for a delinquent act may be revoked on the ground that the conditions of probation have been violated." OCGA § 15-11-608 (a). According to the statute, "[a]ny violation of a condition of probation may be reported to the prosecuting attorney who may file a motion in the court for revocation of probation. A motion for revocation of probation shall contain specific factual allegations constituting each violation of a condition of probation." OCGA § 15-11-608 (b). "If the court finds, beyond a reasonable doubt, that a child violated the terms and conditions of probation, the court may: (1) [e]xtend probation; (2) [i]mpose additional conditions of probation; or (3) [m]ake any disposition that could have been made at the time probation was imposed." OCGA § 15-11-608 (f).⁴

A probation revocation in a juvenile court case is not a new proceeding. Although revocation results in a new dispositional order, that order "relates to the original delinquent act.... [T]he new order of disposition is a sanction for the original offense for which the juvenile was adjudicated delinquent." In the Interest of N. M. , 316 Ga. App. 649, 654 (2), 730 S.E.2d 127 (2012) (decided under former OCGA § 15-11-40 (b) ). Following a probation revocation, the juvenile court may impose the sentence that could have originally been imposed upon the juvenile in lieu of probation, such as confinement. Id. at 651 (1), 652 (2), 730 S.E.2d 127. And "[d]isobeying the terms of probation is a delinquent act," see id. at 651 (1), 730 S.E.2d 127 ; see also OCGA § 15-11-2 (19) (B) (defining a "[d]elinquent act" as "[t]he act of disobeying the terms of supervision contained in a court order which has been directed to a child who has been adjudicated to have committed a delinquent act"), for which a juvenile's probation may be revoked. OCGA § 15-11-608 (a) ("An order granting probation to a child adjudicated for a delinquent act may be revoked on the ground that the conditions of probation have been violated.").

However, in order to seek a probation revocation, the State must petition for revocation under the appropriate statute authorizing the juvenile court to revoke a child's probation; "[a] delinquency petition alleging a probation violation is not sufficient to revoke a juvenile's probation imposed for his previous adjudication of delinquency." In the Interest of R. M. , 329 Ga. App. at 727 (1), 766 S.E.2d 126 ; accord In the Interest of N. M. , 316 Ga. App. at 653 (2), 730 S.E.2d 127. "[D]ue process requires that before a juvenile court may revoke an order granting probation, a petition must be filed requesting such relief." In the Interest of C. H. , 319 Ga. App. 373, 375, 735 S.E.2d 291 (2012) ("juvenile court [cannot] impose a period of confinement concerning the delinquent act of ‘violation of probation’ " where the State filed a delinquency petition under former OCGA § 15-11-65 (a) rather than a petition seeking probation revocation under former OCGA § 15-11-40 ) (citation and punctuation omitted); accord In the Interest of B. C. , 169 Ga. App. 200, 201-202, 311 S.E.2d 857 (1983) (a petition to revoke a juvenile's probation – rather than a petition of delinquency – must be filed before a juvenile court is authorized to revoke probation and order disposition based on the juvenile's prior adjudication of delinquency) (decided under former OCGA § 15-11-42 ).

It is clear based on the appellate record that the juvenile...