History

     As of March, 2003, 14,446 children were in Georgia’s foster care program.[1] Governor Sonny Perdue and his wife Mary served as  foster parents during the late 1990s, and they are considering     acting as foster parents once again, even during Governor Perdue’s term in office.[2] If they do, it will mark the first time that a “Governor’s mansion [has been opened] to foster children.”[3] The Governor has made improving the foster care system in Georgia a priority during his tenure.[4] Governor Perdue proposed SB 236 to give foster parents a voice in the process of deciding the placement and best permanency options for children in their care.[5] Foster parents often care for children over extended lengths of time and could provide significant insight.[6] While the law already authorized courts to consider the foster parents’ input, the law did not mandate the courts to do so, and consequently the courts frequently did not take into account the foster parents’ views.[7]

     In addition to Governor Perdue, Chick-fil-A and WinShape Homes founder S. Truett Cathy was also influential in SB 236’s development.[8] Prior to the Act, a court could not permanently transfer custody of foster children to an agency or organization such as WinShape Homes.[9]

     Additionally, diligent searches for parents, relatives, or other available placement options often were conducted long after the children were removed from the home, resulting in the state disrupting placements after foster families had become “attached.”[10] As a result, the Act imposes a 90-day limit from the time the Department of Family and Children Services (“DFCS”) removes the children to conduct a search for relatives.[11] Drafters intended the time limitation to hold DFCS to a higher standard and to help ensure that an appropriate relative placement option would not emerge at the last minute to disrupt a potential adoption.[12] However, while mandating that DFCS complete a diligent search in a timely fashion, the drafters did not intend the time limitation to exclude a court from considering as possible placement options appropriate relatives who step forward after the 90-day period.[13]

SB 236

     Introduction in the Senate

     SB 236 was introduced on the Senate floor on March 4, 2003.[14] Senators Bill Stevens of the 51st district, Daniel Lee of the 29th district, and Sam Zamarripa of the 36th district sponsored the bill.[15] SB 236 was initially referred to the Senate Judiciary Committee on March 4, 2003. However, the next day it was withdrawn from the Judiciary Committee and referred to the Children and Youth Committee.[16] The Children and Youth Committee favorably reported a Committee substitute on March 28, 2003.[17]

     Children and Youth Committee Substitute

     The Senate Committee substitute to SB 236 would have amended Code paragraph 15-11-55(a)(2) by requiring “a reasonably diligent search for a parent or relative of the child or other persons who have demonstrated an ongoing commitment to the child” to be completed “within 90 days from the date on which the child was removed.”[18] The Committee substitute required the Department of Human Resources (“DHR”) to conduct the search.[19] The Senate, through the 90-day limitation, recognized that the child’s first placement is often the best placement and intended “to make sure that the relationship between a foster child and foster parent is not disrupted by the late arrival into the process of a blood relative.”[20] The Senate Committee substitute also specified that a child, during this 90-day period, may be placed in the temporary custody of the DHR or “any other appropriate entity or person.”[21]

     SB 236, as introduced, would have clarified in Code subsection 15-11-58(b) that the court was responsible for ensuring that parents were given five days advance written notice of meetings held by DFCS to develop either (a) a case plan for reunification or (b) a report detailing the factual reasons for determining that reunification was inappropriate.[22] The Senate Committee substitute, however, reverted to the original language of Code subsection 15-11-58(b), stating that “[t]he parents shall be given written notice of the meeting at least five days in advance,” leaving unclear who bears the responsibility of notifying the parents.[23] Further in this subsection, the Senate Committee substitute specified that written notification to the parents should include language stating that the report developed by DFCS “will be submitted to the court for consideration to become an order of the court.”[24] As introduced, SB 236 required parental notification to include language that the report would be “submitted to become an order of the court” and did not make the court’s discretion as clear.[25] The Senate Committee substitute included identical clarifying language to Code subsection 15-11-58(d).[26] Additionally, the Senate Committee substitute would have struck language from Code subsection 15-11-58(b), which related to foster parent notification and was substantially similar to the language adopted in new Code subsection 15-11-58(p).[27]

     The Senate Committee substitute also would have added language to Code subsection 15-11-58(d), requiring that DFCS provide the custodian, foster parents, pre-adoptive parents, or relatives caring for the child with a copy of “those portions of the court approved plan that involve the permanency goal[s] and the services to be provided to the child.”[28] Also, the Senate Committee substitute specified that new Code subsection 15-11-58(p) would have applied to this section.[29]

     The Senate Committee substitute significantly reorganized the proposed language amending Code subsection 15-11-58(i) in SB 236, as introduced.[30] If the court determines that (1) reunification efforts would be detrimental to the child and (2) “termination of parental rights and adoption” are not in the child’s best interests, then the Senate Committee substitute set forth four placement options to remain in effect until the child’s 18th birthday.[31] The placement options included: (a) a relative, if the relative is willing and qualified; (b) a non-relative who the court deems qualified; (c) a “suitable individual custodian in another state”; and finally, (d) “an agency or organization licensed or otherwise authorized by law to receive and provide care for the child which is operated in a manner that provides such care, guidance, and control as would be provided in a family home.”[32] The court may utilize the fourth option only if it finds by a “compelling reason” that the first three options are not in the child’s best interests.[33] In comparison, SB 236, as introduced, expressly authorized a grant of custody lasting until the child’s 18th birthday only to a relative once the court determined that reunification was not in the child’s best interests.[34] The original bill allowed transfer of custody to non-relatives, or to an agency or organization, but did not state that such a custody order “shall remain in effect until the child’s [18th] birthday.”[35] The Senate Committee substitute retained the requirements that DFCS review custody arrangements every 36 months if the child is placed in the custody of a relative, and every 12 months if the child is placed in the custody of a “nonrelative, an out-of-state custodian, or an agency or organization.”[36] However, the Senate Committee substitute eliminated language requiring the review reports to be “mailed to the parents at their last known address.”[37] Finally, as introduced, this subsection required a custodial agency or organization to notify the court within ten days if their license was “placed on probation, suspended, revoked, or surrendered” and the court to “conduct a judicial review within 30 days to determine whether another placement should be made for the child.”[38] The Senate Committee substitute shortened the judicial review period from 30 days to 10 days.[39] By shortening this time period, the Senate Committee intended to increase the accountability of persons and agencies charged with caring for and protecting foster children.[40]

     The Senate Committee substitute also included proposed amendments to Code subsections 15-11-58(k) and 15-11-58(l) that were not included in the original bill.[41] The proposed amendments simply required DFCS to provide the custodians, foster parents, pre-adoptive parents, or relatives caring for the child copies of updated permanency plans for the children.[42] The proposed amendments also clarified that new Code subsection 15-11-58(p), relating to foster parent notification and participation, would apply to these subsections.[43]

     The Senate Committee substitute also altered the original bill’s proposed changes to Code subsection 15-11-58(o), relating to permanency hearings.[44] The Senate Committee deleted paragraph three of this subsection in the original bill and added language in paragraphs one through six, clarifying that new Code subsection 15-11-58(p), relating to foster parent notification and participation, would have applied to this subsection.[45] The Senate Committee approved other subtle clarifying changes to this subsection.[46]

     The Senate Committee substitute would have also added new Code subsection 15-11-58(p).[47] This new subsection, made applicable to many of the above subsections, required that the court, in advance of a hearing or review, either provide or direct another party to provide “written notice of such review or hearing, including the[] right to be heard” to the appropriate caregiver.[48] Additionally, this new subsection required that the court’s order “include findings of fact which reflect the court’s consideration of the oral and written testimony offered by the parents, the custodian of the child, the foster parents of the child, any preadoptive [sic] parents or relatives providing care for the child,” and DFCS.[49] Nearly identical language was dispersed throughout the bill, as introduced, and the Senate Committee substitute simply organized this language into one new subsection.[50]

     Lastly, the Senate Committee substitute would have further amended Code section 15-11-103.[51] The changes clarified the order of preference for placement options following the termination of parental rights.[52] As introduced, SB 236 required the court to “first attempt to place the child with a person related to the child by blood or marriage or with a member of the child’s extended family”; the Senate Committee substitute retained this initial preference.[53] If the court cannot make the preferred placement, both the original bill and the Senate Committee substitute next required that the court attempt to “commit the child to the custody of” the DHR or another “licensed child-placing agency willing to accept custody for the purpose of placing the child for adoption.”[54] If the DHR did not succeed with an adoption, the bill, as introduced, authorized the following three alternative placement options with no order of preference amongst them: (1) committing the child to the custody of a public or private agency “for the purpose of placing the child in a foster home,” (2) placing the child “with a custodian in another planned permanent living arrangement” where a “compelling reason for such placement” exits, or (3) taking “other suitable measures for the care and welfare of the child.”[55]

     When unsuccessful in adoption, placement with a person related by blood or marriage, or placement with an extended family member, the Senate Committee substitute required the court first to attempt to “commit the child to a suitable individual on the condition that the person becomes the guardian of the . . . child.”[56] If this placement is not possible, the Senate Committee substitute then required the court to attempt to “commit the child to the custody” of a public or private agency “for the purpose of placing the child in a foster home.”[57] Finally, if the court is unable to effectuate a foster home placement that is in the child’s best interests, the bill authorized the court to (1) “commit the child to the custody of an agency or organization” that is appropriately authorized and “operated in a manner that provides such care, guidance, and control as would be provided in a family home”; or (2) “take other suitable measures.”[58] The Senate Committee substitute would have made additional subtle changes in the language of this Code section to clarify and incorporate the more significant changes in this section.[59]

Adoption and Passage by the Senate

     The Senate adopted the Committee substitute by a vote of 33 to 0 and unanimously passed the bill on April 8, 2003.[60] Senator Seth Harp of the 16th district handled the bill in the Senate.[61]

Consideration by the House

     SB 236 was read in the House for the first time on April 8, 2003, and the Speaker assigned it to the House Judiciary Committee.[62] The House Committee created its own substitute and favorably reported it on April 17, 2003.[63] The House Committee substitute only made minor changes to the bill, adding language to Code paragraph 15-11-55(a)(2) requiring that the 90-day diligent search for placement options be “documented in writing and filed with the court at the time of the first review” and adding the words “and in the best interest of” to Code paragraphs 15-11-103(a)(1) through 15-11-103(a)(5).[64] The House adopted the Committee substitute and unanimously passed the bill, as substituted, on April 22, 2003.[65] Representative Glenn Richardson of the 26th district handled the bill in the House.[66]

     Final Passage

The Senate unanimously agreed to the House Committee substitute on April 25, 2003, the final day of the legislative session, and the bill was forwarded to Governor Perdue on May 6, 2003.[67] The Governor signed SB 236 into law on May 7, 2003.[68]

The Act

     Code Section 15-11-2

     The Act amends Code section 15-11-2 by replacing and expanding the definition of “custodian” to include public or private agencies and organizations that have legal custody of a child and are “licensed or otherwise authorized by law to receive and provide care for a child.”[69]

     Code Section 15-11-55

     The Act amends Code section 15-11-55 by requiring the court or the DHR to complete within 90 days of the child’s removal from the home a “reasonably diligent search for a parent or relative of the child or other persons who have demonstrated an ongoing commitment to the child.”[70] Although the language suggests that the court or the DHR may conduct this search, the General Assembly intended for the DHR, acting through DFCS, to bear this responsibility.[71] Additionally, the Act mandates that the DHR “document [the search results] in writing and file [them] with the court at the time of the first review.”[72] The Act also clarifies that the court may temporarily place the child in the legal custody of the DHR, or with another appropriate resource, while the DHR conducts the search.[73]

     Code Section 15-11-58

     The Act amends Code section 15-11-58 by requiring DFCS to provide foster parents, or other custodians, with copies of court ordered reunification or permanency plans, as well as copies of the judicial citizen review panel’s reports.[74] Further, the Act also expands the available options for transferring permanent custody of a child once the court determines that neither reunification nor termination and adoption are in the child’s best interests.[75] The Act expands the available options to include qualified non-relatives, suitable out-of-state custodians, and when the other options are not in the child’s best interests for some compelling reason, licensed agencies or organizations.[76]

     While retaining the requirement that DFCS review permanent, relative placements within 36 months and “every 36 months thereafter,” the Act requires DFCS to review permanent, non-relative placements within the first 12 months and “every 12 months thereafter.”[77] The Act also requires, after this review, that DFCS submit to the court a report addressing whether the placement resource continues to be qualified.[78] The Act eliminates the requirement that a copy of this report be “mailed to the parents at their last known address.”[79] Additionally, the Act requires that an agency or organization that has its license “placed on probation, suspended, revoked, or surrendered” notify the court within ten days if the court has permanently placed a child within that agency or organization.[80] The Act then gives the court an additional ten days to conduct a judicial review to determine whether the court needs to make another placement.[81]

     Further, the Act adds new Code subsection 15-11-58(p), which requires the appropriate entity to provide written notice to foster parents or to other custodians of their right to be heard in advance of any review or hearing concerning the child’s permanency plan or placement.[82] Finally, for each review or hearing, the Act requires the court’s order to “include findings of fact which reflect the court’s consideration of the oral and written testimony” offered by DFCS and parents, custodians, foster parents, pre-adoptive parents or relatives providing care for the child.[83]

Code Section 15-11-103

     The Act amends Code section 15-11-103 by organizing all available placement options for a child following termination of parental rights in order of preference.[84] The Act also requires the court to “transmit a copy of every order terminating . . . parental rights” to the Office of Adoptions rather than to DFCS.[85]

Bryan Graff