Georgia expands right to counsel to children in deprivation cases who are receiving extended care youth services

Right to counsel in dependency proceedings

Previously, children only had a right to counsel if they were “not represented” by their parents’ counsel.  However, Ga. Code Ann. § 15-11-103 was amended in 2013 to provide children with the right to their own counsel.

In 2023, the Georgia legislature passed HB 460, which amended the section again, this time to extend the right to counsel to children receiving extended care youth services from DFCS.  The section now states:

(a) A child … to a proceeding under this article shall have the right to an attorney at all stages of the proceedings under this article.

(b) The court shall appoint an attorney for an alleged dependent child and any child receiving extended care youth services from DFCS at all stages of the proceedings under [Article 3. Dependency Proceedings].  The appointment shall be made as soon as practicable to ensure adequate representation of such child and, in any event, before the first court hearing that may substantially affect the interests of such child.

(c) A child’s attorney owes to his or her client the duties imposed by the law of this state in an attorney-client relationship.

(d) If an attorney has been appointed to represent a child in a prior proceeding under this chapter, the court, when possible, shall appoint the same attorney to represent such child in any subsequent proceeding.

(e) An attorney appointed to represent a child in a dependency proceeding shall continue the representation in any subsequent appeals unless excused by the court.

Regarding waiver, the statute prohibits the child or any representative of the child from waiving the child’s right to an attorney. Id. at (f).

The right to counsel does not apply to all matters transferred to juvenile court.

However, a child’s right to counsel does not extend to certain cases transferred from the superior court to the juvenile court:  “In handling divorce, alimony, habeas corpus, or other cases involving the custody of a child,” a superior court may transfer questions of custody or child support to the juvenile court for investigation and determination. Ga. Code. Ann. § 15-11-15(a).  If the transfer is for investigation and determination, the right to counsel does not apply. Id. at (b) (“If the referral is for investigation and determination, then the juvenile court shall proceed to handle the matter in the same manner as though the action originated under this chapter in compliance with the order of the superior court, except that the parties shall not be entitled to obtain an appointed attorney through the juvenile court.”).

The right to counsel may extend to legitimation and probate matters heard by the juvenile court.

HB 460 also added Ga. Code § 15-11-11.1, which provides that “[a] dependent child who is represented by court appointed counsel and who is the subject of a legitimation petition pursuant to Code Section 15-11-11 may be represented by the same appointed counsel in the legitimation matter.”

In addition, the bill amended Ga. Code § 15-11-14, which covers probate matters transferred to the juvenile court, to provide that “A child may obtain a court appointed attorney for the hearing to determine whether continuation or termination of the temporary guardianship is in the best interests of the child.”

Right to a guardian ad litem in dependency proceedings

Ga. Code Ann. § 15-11-104 additionally requires the court to appoint a guardian ad litem (GAL) for the child.  An attorney appointed under § 15-11-103 may also serve as the child’s GAL, unless “there is conflict of interest between the attorney’s duty to such child as such child’s attorney and the attorney’s considered opinion of such child’s best interests as guardian ad litem.” § 15-11-104(b).  Furthermore, § 15-11-104(d) provides, “A court shall appoint a CASA to act as [GAL] whenever possible, and a CASA may be appointed in addition to an attorney who is serving as a [GAL].”

Right to counsel for youth in matters related to extended care youth services

Finally, thanks to HB 460, youth may be appointed counsel in matters related to extended care youth services.  Per Ga. Code. § 15-11-340(f):

The trial court may appoint an attorney for a child at all stages of the proceedings under [Article 4a. Extended Care Youth Services] with the child’s consent. If a child does not have an attorney, a child shall be informed prior to any hearing of their right to have legal representation and shall be given an opportunity to:

(1) Obtain an attorney of his or her own choice;
(2) Obtain a court appointed attorney in the court’s discretion; or
(3) Waive the right to an attorney.