In the Interest of A.H., a Child

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

June 25, 2015

In the Court of Appeals of Georgia
A15A0239. IN THE INTEREST OF A. H., a child.

BRANCH, Judge.

A. H. appeals from an order of the juvenile court of Douglas County, which

granted the State’s request for a 48-hour continuance of A. H.’s adjudicatory hearing.

A. H. contends that the juvenile court erred in granting the motion for a continuance

because it failed to consider the factors set forth in OCGA § 15-11-110 (a) and

because the State failed to show good cause for a continuance. For reasons explained

more fully below, we vacate the order of the juvenile court granting the continuance

and remand for a determination of whether, under the circumstances of this case, the

reason proffered by the State for a continuance constituted good cause for delaying

the adjudicatory hearing.
 The relevant facts are undisputed and the record shows that on or about May

2, 2014, a then 16-year old A. H. was arrested following a police chase of a stolen car

in Douglas County. According to the report of the investigating officer, during the

chase, the driver of the stolen car rammed a police vehicle and law enforcement

ended the chase by performing a precision immobilization technique1 on the stolen

car. At that point, all four occupants of the car, including A. H., abandoned the

vehicle and fled on foot. A. H., who had been seated in the front passenger seat, was

holding a pistol as he exited the vehicle. When he raised the pistol slightly, he was

shot and injured by a Douglas County Deputy. After police apprehended A. H., he

was taken to Grady Hospital for treatment and was subsequently placed in detention

on May 6, 2014.

On May 7, 2014, the juvenile court held the detention hearing required by

OCGA § 15-11-472.2 A probation officer with the Bibb County Department of

1
This technique, also known as a PIT maneuver, is a tactic by which a pursuing
car can cause a fleeing car to turn sideways. This maneuver usually causes the driver
of the fleeing car to lose control of his vehicle and come to a stop.
2
Whenever a juvenile defendant is placed in preadjudication custody, OCGA
§ 15-11-472 requires the juvenile court to hold a hearing on the issue of whether
detention should be continued prior to adjudication. Such a hearing must take place
within two business days after a juvenile is taken into custody without an arrest
warrant and must take place within five business days after a juvenile is taken into
custody pursuant to an arrest warrant. OCGA § 15-11-472 (a).

2
Juvenile Justice (“DJJ”) and a case manager with the Bibb County Department of

Family and Children Services (“DFACS”) were present at that hearing, and they

informed the court that A. H. had been placed in the legal custody of DFACS at some

time prior to the incident in question and that he was currently in the restrictive

custody of DJJ. At the outset of the hearing, the prosecutor asked that A. H.’s

detention be continued. Both the case manager and the probation officer concurred

in this request. The probation officer explained that even in the absence of the current

charges, continued detention would be required because A. H. had been reported as

a runaway from the DJJ group home where he had been placed. The court stated that

in light of the evidence presented, including the hold on A. H. as a result of his

current committal to DJJ, probable cause existed for A. H.’s continued detention.3

On May 9, 2014, the State filed a delinquency petition as to A. H., charging

him with theft by receiving, theft by taking, fleeing a police officer, and possession

of a firearm during the commission of a felony. The trial court scheduled an

3
A. H. was not represented by an attorney at the detention hearing because the
circuit public defender’s office had a conflict resulting from its representation of
another of the juveniles that had been riding in the stolen car with A. H. On appeal,
however, A. H. does not challenge the juvenile court’s finding that probable cause
existed for his continued detention.

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adjudicatory hearing for May 19, 2014, and it provided both the DJJ probation officer

and the DFACS case manager with notice of this fact.

At the beginning of the May 19 proceeding, a representative of the Douglas

County district attorney’s office moved for a 48-hour continuance of the adjudicatory

hearing. In support of this request, the district attorney’s office stated that it needed

additional time to review the case and decide whether to file a motion to transfer the

case to superior court, where A. H. would be tried as an adult. Counsel for A. H.

objected to a continuance and stated that A. H. was prepared to admit to the charges.

The juvenile court, however, refused to take an admission from A. H., noting that

Bibb County DFACS was A. H.’s legal custodian and that no DFACS representative

had appeared at the hearing. The court then explained that it could not “take an

admission from a child without their legal custodian being here.” A. H.’s attorney

argued that A. H. was in the joint legal custody of both DFACS and DJJ; that the

probation officer from Bibb County DJJ was present; and that the presence of one

legal custodian was sufficient to allow the adjudicatory hearing to proceed. To

support this argument, the lawyer for A. H. requested permission to call the probation

officer as a witness. The juvenile court responded that A. H. was “not in the legal

custody of DJJ . . . That’s not a legal custodial placement.” The court then indicated

4
that it would allow the probation officer to testify, but stated that if the probation

officer testified that DJJ had legal custody of A. H., she would be “incorrect,” as DJJ

“do[es] not maintain legal custody of a child.”

A. H.’s lawyer then called the probation officer to the stand, at which point the

juvenile court directed the attorney to “narrowly ask your questions, because I already

know the legal and proper answer.” When asked whether DJJ had legal custody of A.

H., the probation officer responded that she thought both DJJ and DFACS had legal

custody of A. H. and that it was her “understanding” that DJJ was “one of” A. H.’s

legal custodians. The juvenile court rejected the probation officer’s testimony,

declaring, “I know [ ] the answer. . . . I have to have DFACS here” before proceeding

with the adjudicatory hearing. The court then granted a 48-hour continuance and

ordered A. H.’s further detention.

On May 21, 2014, the State filed a motion to transfer the case to superior court.

Later that day, the juvenile court convened the adjudicatory hearing, at which both

the DFACS case manager and the DJJ probation officer appeared. In light of the

motion to transfer, however, the court declined to proceed with the adjudication

hearing. Instead, it scheduled a hearing on the motion to transfer for June 23, 2014,

5
and entered an order requiring a mental health evaluation of A. H.4 The court also

ordered the continued detention of A. H.

On June 4, 2014, A. H. applied for a certificate of immediate review of the

juvenile court’s grant of the State’s motion for a continuance. The lower court issued

the requested certificate and this Court subsequently granted A. H.’s application for

an interlocutory appeal.

1. In his first claim of error, A. H. argues that the juvenile court erred when, in

granting the request for a continuance, it failed to consider the factors set forth in

OCGA § 15-11-110 (a).5 This statutory provision, however, is inapplicable to the

4
Georgia law provides that before hearing a motion to transfer, the juvenile
court must determine, inter alia, that the child in question “is not committable to an
institution for the developmentally disabled or mentally ill.” OCGA § 15-11-561 (a)
(2).
5
That code section provides:
Upon request of an attorney for a party, the court may continue any
hearing under this article beyond the time limit within which the hearing
is otherwise required to be held; provided, however, that no continuance
shall be granted that is contrary to the interests of the child. In
considering a child’s interests, the court shall give substantial weight to
a child’s need for prompt resolution of his or her custody status, the
need to provide a child with a stable environment, and the damage to a
child of prolonged temporary placements.

6
current case. OCGA § 15-11-110, which is found in Article 3 of the Juvenile Code,

applies to dependency proceedings and not to delinquency proceedings. See OCGA

§ 15-11-100 (1) (the purpose of Article III is “[t]o assist and protect children whose

physical or mental health and welfare is substantially at risk of harm from abuse,

neglect, or exploitation and who may be further threatened by the conduct of others

by providing for the resolution of dependency proceedings in juvenile court.”)

Accordingly, A. H.’s claim of error based on the juvenile court’s failure to apply

OCGA § 15-11-110 (a) is without merit.

2. Continuances in delinquency proceedings are governed by OCGA § 15-11-

478, which provides that a “continuance shall be granted only upon a showing of

good cause and only for that period of time shown to be necessary by the moving

party at the hearing on the motion. Whenever any continuance is granted, the facts

which require the continuance shall be entered into the court record.”6 As the

statutory language indicates, the question of whether good cause exists for a

continuance is a factual one, “which must be judged according to the particular

6
The good cause standard for granting a continuance did not exist under the
prior Juvenile Code. Rather, until the new juvenile code became effective, the
decision to grant a continuance was within the discretion of the juvenile court. See
In Interest of R. D. F., 266 Ga. 294, 295 (1) (466 SE2d 572) (1996); In the Interest
of A. S., 293 Ga. App. 710, 711 (1) (667 SE2d 701) (2008).

7
circumstances of the case.” Scriven v. State, 330 Ga. App. 826, 827 (769 SE2d 569)

(2015) (because the statute governing requests to examine sealed adoption records

did not define the term “good cause,” the existence of good cause was a factual

question) (citation omitted).

In this case, the court stated on the record that it was finding good cause for a

continuance for two reasons. First, the court stated that it could not take an admission

from A. H. without his legal custodian being present. The court then stated that, as

a matter of law, DJJ did not have legal custody of A. H.7 Neither of these findings is

correct.

Although the State argues otherwise, under the current juvenile code, the

parent, guardian, or legal custodian of an allegedly delinquent child is not a party to

a delinquency proceeding; the only parties are the State and the allegedly delinquent

child. OCGA § 15-11-474 (a) (“[a]n alleged delinquent child and the state shall be

7
To the extent that A. H. is arguing that the juvenile court’s failure to set forth
these findings in writing requires us to conclude that no good cause existed for the
continuance, we find that argument to be without merit. As the plain language of
OCGA § 15-11-478 makes clear, the juvenile court is not required to enter a written
order containing factual findings every time it grants a continuance. Rather, the court
just has to make a factual finding as to good cause on the record; thus, the required
factual findings may be pronounced orally at a hearing that is being transcribed.

8
parties at all stages of delinquency proceedings”).8 Although not a party, the parent,

guardian, or legal custodian of any child who is the subject of a delinquency petition

has “the right to notice, the right to be present in the courtroom, and the opportunity

to be heard at all stages of [the] delinquency proceedings.” OCGA § 15-11-474 (b).9

Nothing in the code, however, provides that an adjudicatory hearing may not go

forward if the child’s parent, guardian, or legal custodian declines to attend the

hearing. Thus, so long as a child’s legal custodian is afforded his right to notice of all

delinquency proceedings, he may waive his right to be present and to be heard at

those proceedings. See Kesterson v. Jarrett, 291 Ga. 380, 385 (2) (b) (728 SE2d 557)

(2012) (“[l]ike most other rights, the right to be present may be waived or forfeited

by a party”); In the Interest of I. W., 304 Ga. App. 225, 227 (1) (695 SE2d 739)

(2010) (father could not assert error based on fact that juvenile court proceeded with

a deprivation hearing despite the father’s absence; the father “knew of the impending

8
Compare Sanchez v. Walker County Dept. of Family and Children Services,
237 Ga. 406, 410 (229 SE2d 66) (1976) (“the [1971 Juvenile] Code recognizes that
the parent is a ‘party’ to proceedings involving his child”) (interpreting Ga. Code
Ann.§ 24A-2001 (a) (1971)), disapproved on other grounds, In the Interest of R. D.
F., 266 Ga. 294, 296 (3) (466 SE2d 572) (1996).
9
Similarly, DJJ is also entitled to notice of the disposition hearing. OCGA §
15-11-474 (c).

9
hearing and was afforded an opportunity to present his evidence and objections, but

he chose not to participate” and thereby waived his right to be heard). A waiver of

such rights occurs where, as here, a legal guardian who has received notice of a

delinquency hearing elects not to appear at that proceeding. I. W., 304 Ga. App. at

227 (1). See also Cormier v. Cormier, 280 Ga. 693, 694 (1) (631 SE2d 663) (2006)

(husband in a divorce proceeding waived his right to be present and to be heard at

trial where he “was properly informed and had actual knowledge of the trial date, but

. . . chose not to participate”); In the Interest of A. G. I., 246 Ga. App. 85, 86 (1) (539

SE2d 584) (2000) (despite the fact that the mother was a party to the proceeding to

terminate her parental rights, she could nevertheless “waive the right to be present

during trial proceedings by voluntarily absenting herself from the court”) (footnote

omitted). Accordingly, given that DFACS waived its right to be present and to be

heard at the adjudicatory hearing, the trial court erred when it found that it could not

take A. H.’s admission without A. H.’s legal guardian being present.10

10
We are not holding that the absence of a child’s parent, guardian, or legal
custodian could never constitute good cause for a continuance. We are holding only
that the trial court erred when it found that despite A. H.’s expressed desire to enter
an admission, the court could not, as a matter of law, accept that admission in the
absence of A. H.’s legal custodian.

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 The trial court also erred when it found that DJJ did not have legal custody of

A. H. The juvenile code defines “legal custodian” as including “[a] public or private

agency or other private organization licensed or otherwise authorized by law to

receive and provide care for a child to which legal custody of such child has been

given by order of a court.” OCGA § 15-11-2 (42) (B). Among the rights granted to

a legal custodian are

the right to physical custody of a child, the right to determine the nature
of the care and treatment of such child, including ordinary medical care,
and the right and duty to provide for the care, protection, training, and
education and the physical, mental, and moral welfare of such child,
subject to the conditions and limitations of the [custody] order. . . .

OCGA § 15-11-30. Given these statutory provisions, we must conclude that DJJ is

a legal custodian of any juvenile committed to its restrictive custody following a

delinquency adjudication. Such custody results from a court order, gives DJJ the right

to physical custody of the child, and obligates DJJ to provide the child with care

(including medical care), protection, training, and education.

Here, the record shows that prior to his arrest on the current charges, A. H. had

been adjudicated delinquent, committed to DJJ, and placed in restrictive custody. See

OCGA § 15-11-2 (64) (“‘[r]estrictive custody’ means in the custody of DJJ for

11
purposes of housing in a secure residential facility or nonsecure residential facility”).

At that time, DJJ became a legal custodian of A. H. See Dept. of Human Resources

v. Johnson, 264 Ga. App. 730 (592 SE2d 124) (2003) (noting that a juvenile offender

in restrictive custody was “in the joint legal custody of DJJ and . . . DFACS”)

(punctuation omitted); OCGA § 15-11-602 (c) (1), (d) (1) (a juvenile court

dispositional order committing a delinquent child to restrictive custody must provide

that the child is “placed in DJJ custody”). See also In the Interest of J. S., 283 Ga.

App. 448, 449-450 (641 SE2d 682) (2007) (DJJ does not become a child’s legal

custodian until the child is committed to DJJ restrictive custody following an

adjudication of delinquency).

Given that the legal conclusions on which the juvenile court based its finding

of good cause were erroneous, we must vacate the order granting the requested

continuance. In doing so, however, we note that the juvenile court did not consider

whether the State’s proffered reason for a continuance constituted good cause.

Accordingly, we remand the case so that the juvenile court may consider whether,

under the circumstances of this case (including A. H.’s objection to the continuance

and his expressed desire to admit to the charged crimes), the State’s request for

12
additional time to determine whether to file a removal petition constituted the good

cause necessary for a continuance.

Judgment vacated and case remanded with direction. Andrews, P. J., and

Miller, J., concur.

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