Sanchez v. Walker County Dept. of Family and Children Services
| Decision Date | 07 September 1976 |
| Docket Number | No. 31195,31195 |
| Citation | 229 S.E.2d 66,237 Ga. 406 |
| Parties | Dorenia SANCHEZ, etc. v. WALKER COUNTY DEPARTMENT OF FAMILY AND CHILDREN SERVICES. |
| Court | Georgia Supreme Court |
Frank M. Gleason, James A. Secord, Rossville, for appellant.
Joseph F. Dana, Deputy Asst. Atty. Gen., La Fayette, Arthur K. Bolton, Atty. Gen., James C. Pratt, Staff Asst. Atty. Gen., Atlanta, for appellee.
This is a child deprivation case from the Juvenile Court of Walker County which was decided adversely to the parent (mother) having custody of the child. The mother appealed from that decision, enumerating a number of alleged errors. The Court of Appeals affirmed the decision of the juvenile court, finding the child was a deprived child. 1 However, that court found it unnecessary to decide several enumerations of error dealing with certain statutory procedural requirements of the Juvenile Code. We granted certiorari to consider whether these errors materially affected the juvenile court proceedings and we now reverse.
The mother complains of three statutory procedural deficiencies in the juvenile court: (1) failure of the juvenile court to set a hearing within 10 days from the date the petition was filed as required by Code Ann. § 24A-1701(a) when the child is 'in detention'; (2) failure to give the mother prompt written notice that her child was being taken into custody as required by Code Ann. § 24A-1402(a)(2). (The written notice to the mother here came eight days after the child was taken into custody); and, finally, (3) the failure of the juvenile authorities to hold an informal detention hearing within 72 hours after the child was placed in detention with reasonable notice to the parent, or parents, including notice of the right to counsel and appointment of counsel if the parents are needy persons. See Code Ann. § 24A-1404(c).
The jurisdiction of juvenile courts under the 1971 Code includes children who are 'deprived' as well as those who are 'delinquent' or 'unruly.' Code Ann. § 24A-301(a)(1). The procedural requirements of the Code are applicable when a child is taken into custody or temporarily detained, regardless of whether it is for alleged delinquency, unruliness, or deprivation. Code Ann. § 24A-1402(a)(2). Under the supervision of the juvenile court, any person 'who has knowledge of the facts alleged or is informed and believes that they are true' may file a petition alleging that a child is deprived. The Georgia Department of Family and Children Services is specifically authorized by statute to investigate complaints of child abuse and bring them to the attention of the court. See Code Ann. § 99-211(b)(2). The juvenile court may then enter an order taking the child into custody. Code Ann. § 24A-1301. The detention or taking of a child into custody triggers the application of the procedural requirements of the Juvenile Code.
In most of the appellate court decisions of this state construing our juvenile court code (see, generally, Brown v. State of Ga., 235 Ga. 353, 219 S.E.2d 419 (1975); ABW v. State of Ga., 231 Ga. 699, 203 S.E.2d 512 (1974); JGB v. State of Ga., 136 Ga.App. 75, 220 S.E.2d 79 (1975); GMJ v. State of Ga., 130 Ga.App. 420, 203 S.E.2d 608 (1973); KMS v. State of Ga., 129 Ga.App. 683, 200 S.E.2d 916 (1973), but, see Nix v. Department of Human Resources, 236 Ga. 794, 225 S.E.2d 306 (1976), the procedural requirements of due process contained in the Code have been invoked to protect the rights of an allegedly delinquent or unreuly child. These same procedural requirements are being invoked in this case by the mother of an allegedly deprived child to protect the mother's parental interests in the child and in the court proceedings involving the child. However, we are met with a strong argument by the state that, assuming these procedural requirements were not followed in this case, the failure to do so was harmless.
Specifically, the state argues that these procedural errors related solely to the preadjudication detention hearing in the juvenile court and it is collateral to, and distinct from, the judgment rendered by the court in the child deprivation proceedings. Therefore, it is argued that any errors which might have been committed in detaining the child, before he had been adjudicated a 'deprived child,' are washed out and legally must be ignored after an adjudication determination. Thus, the state reasons that any prior procedural error is harmless and does not constitute grounds for reversing the subsequent adjudication of deprivation by the juvenile court. Cf. T. K. v. State of Ga., 126 Ga.App. 269, 190 S.E.2d 588 (1972). We find this argument to be unpersuasive in this case.
In the first place, this argument is not applicable to the mother's contention that the adjudicatory hearing was set more than 10 days from the date the petition was filed in the juvenile court. There are four Georgia Appeals decisions interpreting this section. They are: E.S. v. State of Ga., 134 Ga.App. 724, 215 S.E.2d 732 (1975); Brown v. Fulton County Dep't. of Family and Children Services, 136 Ga.App. 308, 220 S.E.2d 790 (1975); Sanchez v. Walker County Dep't. of Family and Children Services, 138 Ga.App. 49, 225 S.E.2d 441; and, J. B. H. v. State of Ga., 139 Ga.App. 199, 228 S.E.2d 189. We read these cases to hold that the language of Code Ann. § 24A-1701(a) is mandatory and that the adjudicatory hearing must be set for a time not later than that prescribed by the statute. However, these cases also hold that this procedural requirement can be waived. Under the cases, if the party does not enter an objection during the course of the trial he will not be heard to complain on appeal, and, if a hearing is set within the statutory time limit, the court may in its discretion grant a continuance. We agree with these decisions.
The 10-day hearing requirement of Code Ann. § 24A-1701(a) is applicable when a child is 'in detention' on the date the petition is filed in court. The Court of Appeals pretermitted this question and did not determine whether a failure to set the hearing within 10 days would require a dismissal of the petition. The facts of this case lead us to conclude that this child was 'in detention' on the date the petition was filed in the juvenile court. The child had been placed in the Children's Hospital in Chattanooga by the mother. The child was there on the date the Department of Family and Children Services filed a petition alleging the child was a deprived child. The employees of the hospital held the child at the behest of the Walker County, Georgia Department of Family and Children Services. The mother was told that if she attempted to remove her child from the hospital she would be put in jail. Thus, within the ordinary meaning of the word, the child was being detained on the date the petition was filed in court.
We now reach the question of whether failure to set the hearing within 10 days from that date required dismissal of the petition. In her answer, the mother alleged, inter alia, that because of this failure to set a hearing within the statutory time limit, the proceedings were illegally before the juvenile court. However, on the date set for the initial hearing a continuance was agreed to on behalf of the parties. It also appears from the transcript that at this point petitioner effectively abandoned this objection and never obtained a ruling from the trial court on it. The reasoning of the prior decisions of the Court of Appeals persuades us that under these circumstances the mother cannot now successfully raise this objection on appeal.
We turn next to a consideration of the requirements of Code Ann. §§ 24A-1404(c) and 24A-1402(a). The mother contended in the trial court that these provisions are mandatory and she makes the same argument on appeal. The state argues that these provisions should be construed as directory only and that if they are construed as mandatory, failure to follow them was harmless error since...
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