Section 15-11-63. (Effective until January 1, 2014) Designated felony acts; restrictive custody disposition; notice to schools

   (a) As used in this Code section, the term:

   (1) "A carefully arranged and monitored home visit" means a home visit during which a child is monitored by appropriate personnel of the Department of Juvenile Justice designated pursuant to regulations of the commissioner of juvenile justice.

   (2) "Designated felony act" means an act which:

      (A) Constitutes a second or subsequent offense under subsection (b) of Code Section 16-11-132 if committed by a child 13 to 17 years of age;

      (B) If done by an adult, would be one or more of the following crimes:

         (i) Kidnapping or arson in the first degree, if done by a child 13 or more years of age;

         (ii) Aggravated assault, arson in the second degree, aggravated battery, robbery, armed robbery not involving a firearm, or battery in violation of Code Section 16-5-23.1 if the victim is a teacher or other school personnel, if done by a child 13 or more years of age;

         (iii) Attempted murder or attempted kidnapping, if done by a child 13 or more years of age;

         (iv) Reserved;

         (v) Hijacking a motor vehicle, if done by a child 13 or more years of age;

         (vi) Any violation of Code Section 16-7-82, 16-7-84, or 16-7-86 if done by a child 13 or more years of age;

         (vii) Any other act which, if done by an adult, would be a felony, if the child committing the act has three times previously been adjudicated delinquent for acts which, if done by an adult, would have been felonies;

         (viii) Any violation of Code Section 16-13-31, relating to trafficking in cocaine, illegal drugs, marijuana, or methamphetamine;

         (ix) Any criminal violation of Code Section 16-14-4, relating to racketeering;

         (x) Any violation of Code Section 16-10-52, relating to escape, if the child involved in the commission of such act has been previously adjudicated to have committed a designated felony; or

         (xi) Any violation of Code Section 16-7-2;

      (C) Constitutes a second or subsequent adjudication of delinquency based upon a violation of Code Section 16-7-85 or 16-7-87;

      (C.1) Constitutes any violation of Code Section 16-15-4, relating to criminal street gangs;

      (C.2) Constitutes a second or subsequent adjudication of delinquency based on a violation of Code Section 16-11-127.1 or is a first violation of Code Section 16-11-127.1 involving:

         (i) Any weapon, as such term is defined in Code Section 16-11-127.1, together with an assault;

         (ii) A firearm as defined in paragraph (2) of subsection (a) of Code Section 16-11-131; or

         (iii) A dangerous weapon or machine gun as defined in Code Section 16-11-121;

      (D) Constitutes an offense within the exclusive jurisdiction of the superior court pursuant to subparagraph (b)(2)(A) of Code Section 15-11-28 which is transferred by the superior court to the juvenile court for adjudication pursuant to subparagraph (b)(2)(B) of Code Section 15-11-28 or which is transferred by the district attorney to the juvenile court for adjudication pursuant to subparagraph (b)(2)(C) of Code Section 15-11-28; or

      (E) Constitutes a second or subsequent violation of Code Sections 16-8-2 through 16-8-9, relating to theft, if the property which was the subject of the theft was a motor vehicle.

   (3) "Intensive supervision" means the monitoring of a child's activities on a more frequent basis than regular aftercare supervision, pursuant to regulations of the commissioner of juvenile justice.

(b) Where a child is found to have committed a designated felony act, the order of disposition shall be made within 20 days of the conclusion of the dispositional hearing and shall include a finding based on a preponderance of the evidence as to whether, for the purposes of this Code section, the child does or does not require restrictive custody under this Code section, in connection with which the court shall make specific written findings of fact as to each of the elements set forth in paragraphs (1) through (5) of subsection (c) of this Code section as related to the particular child. If the court finds that restrictive custody under this Code section is not required, the order of disposition shall be as otherwise provided in this article. If the court finds that restrictive custody is required, it shall continue the proceeding and enter an order of disposition for restrictive custody. Every order under this Code section shall be a dispositional order, shall be made after a dispositional hearing, and shall state the grounds for the order.

(c) In determining whether restrictive custody is required, the court shall consider:

   (1) The needs and best interests of the child;

   (2) The record and background of the child;

   (3) The nature and circumstances of the offense, including whether any injury involved was inflicted by the child or another participant;

   (4) The need for protection of the community; and

   (5) The age and physical condition of the victim.

(d) Notwithstanding subsection (c) of this Code section, the court shall order restrictive custody in any case where the child is found to have committed a designated felony act in which the child inflicted serious physical injury upon another person who is 62 years of age or more.

(e) When the order is for restrictive custody in the case of a child found to have committed a designated felony act:

   (1) The order shall provide that:

      (A) The child shall be placed in the custody of the Department of Juvenile Justice for an initial period of five years;

      (B) The child shall initially be confined in a youth development center for a period set by the order, to be not less than 12 nor more than 60 months; provided, however, that time spent in secure detention prior to placement in a youth development center shall be counted toward the period set by the order; and provided, further, that where the order of the court is made in compliance with subsection (f) of this Code section, the child shall initially be confined in a youth development center for 18 months;

      (C) After the period set under subparagraph (B) of this paragraph, the child shall be placed under intensive supervision for a period of 12 months; and

      (D) The child may not be released from a youth development center or transferred to a nonsecure facility during the period provided in subparagraph (B) of this paragraph nor may the child be released from intensive supervision during the period provided in subparagraph (C) of this paragraph, unless by court order. No home visits shall be permitted during the first six-month period of confinement in a youth development center unless authorized by the court except for emergency visits for medical treatment or severe illness or death in the family. All home visits must be carefully arranged and monitored while a child is confined in a youth development center, whether such confinement is pursuant to a court order or otherwise;

   (2) During the placement or any extension thereof:

      (A) After the expiration of the period provided in subparagraph (C) of paragraph (1) of this subsection, the child shall not be released from intensive supervision without the written approval of the commissioner of juvenile justice or such commissioner's designated deputy;

      (B) While in a youth development center, the child may be permitted to participate in all youth development center services and programs and shall be eligible to receive special medical and treatment services, regardless of the time of confinement in the youth development center. After the first six months of confinement in a youth development center, a child may be eligible to participate in youth development center sponsored programs, including community work programs and sheltered workshops under the general supervision of a youth development center staff outside of the youth development center; and, in cooperation and coordination with the Department of Human Services, the child may be allowed to participate in state sponsored programs for evaluation and services under the Georgia Vocational Rehabilitation Agency and the Department of Behavioral Health and Developmental Disabilities;

      (C) (i) A child adjudicated to have committed a designated felony act shall not be discharged from the custody of the Department of Juvenile Justice or released from restrictive custody prior to the period of time provided in the court's order unless a motion therefor is granted by the court. Notwithstanding Code Section 15-11-40, the Department of Juvenile Justice through legal counsel or the child may file a motion with the court seeking the child's release from custody, an order modifying the court's order requiring restrictive custody, or termination of an order of disposition for a child committed for a designated felony act; provided, however, that such motion shall not be made prior to the expiration of one year of custody and, except as the court in its discretion may allow, shall not be filed more than once every 12 months after any such motion has been denied.

         (ii) All motions filed under this subparagraph shall be accompanied by a written recommendation for release, modification, or termination from the child's Department of Juvenile Justice counselor or placement supervisor, filed in the court that committed the child to the department, and served on the prosecuting attorney for such jurisdiction. At least 14 days prior to the date of the hearing on the motion, the moving party shall serve a copy of the motion, by first-class mail, upon the victim of the designated felony act, if any, at the victim's last known address, the child's attorney, if any, the child's parents or guardian, and the law enforcement agency that investigated the designated felony act. In addition to the parties to the motion, the prosecuting attorney and the victim, if any, shall have a right to be heard and to present evidence to the court relative to any motion filed pursuant to this subparagraph.

         (iii) A court hearing a motion filed under this subparagraph shall determine the disposition of the child based upon a preponderance of the evidence. In determining whether a motion for release from custody, modification of a restrictive custody order, or termination of an order of disposition should be granted or denied due to changed circumstances, the court shall be required to find that the child has been rehabilitated and shall consider and make specific findings of fact as to each of the following factors:

            (I) The needs and best interests of the child;

            (II) The record and background of the child, including the disciplinary history of the child during the period of restrictive custody and subsequent offense history;

            (III) The academic progress of the child during the period of restrictive custody;

            (IV) The victim's impact statement submitted for purposes of a hearing conducted pursuant to this subparagraph;

            (V) The safety risk to the community if the child is released; and

            (VI) The child's acknowledgment to the court and victim, if any, of his or her conduct being the cause of harm to others; and

      (D) Unless otherwise specified in the order, the Department of Juvenile Justice shall report in writing to the court not less than once every six months during the placement on the status, adjustment, and progress of the child; and

   (3) Upon the expiration of the initial period of placement in a youth development center, or any extension thereof, the placement may be extended on motion by the Department of Juvenile Justice, after a dispositional hearing, for an additional period of 12 months, provided that no initial placement or extension of custody under this Code section may continue beyond the individual's twenty-first birthday.

(f) When the order is for restrictive custody in the case of a child found to have committed any designated felony act and such child has been found by a court to have committed a designated felony act on a prior occasion, regardless of the age of the child at the time of commission of such prior act, the order of the court shall be made pursuant to subparagraph (e)(1)(B) of this Code section.

(g) The Department of Juvenile Justice shall retain the power to continue the confinement of the child in a youth development center or other program beyond the periods specified by the court within the term of the order.

(h) Any court making a finding or adjudication that a child has committed a designated felony act shall identify the school last attended by such child and the school which such child intends to attend and shall transmit a copy of such adjudication or finding to the principals of the school which the child last attended and the school which the child intends to attend within 15 days of the adjudication or finding. Such information shall be subject to notification, distribution, and requirements as provided in Code Section 20-2-671.

Code 1933, §§ 24A-2301A, 24A-2302A, enacted by Ga. L. 1980, p. 1013, § 1; Code 1981, § 15-11-37; Ga. L. 1982, p. 1871, §§ 1, 2, 4, 5; Ga. L. 1984, p. 22, § 15; Ga. L. 1986, p. 192, § 1; Ga. L. 1986, p. 277, § 1; Ga. L. 1986, p. 1017, § 1; Ga. L. 1987, p. 3, § 15; Ga. L. 1987, p. 1012, § 1; Ga. L. 1989, p. 46, § 1; Ga. L. 1992, p. 1983, §§ 9-11; Ga. L. 1994, p. 1012, §§ 21, 22; Ga. L. 1994, p. 1625, § 2; Ga. L. 1996, p. 416, § 1; Ga. L. 1997, p. 1061, § 2; Ga. L. 1997, p. 1064, § 4; Ga. L. 1997, p. 1453, §§ 1, 2; Ga. L. 1998, p. 270, § 2; Ga. L. 1999, p. 81, § 15; Code 1981, § 15-11-63, as redesignated by Ga. L. 2000, p. 20, § 1; Ga. L. 2000, p. 1137, § 2; Ga. L. 2002, p. 1324, § 1-1; Ga. L. 2009, p. 453, § 2-7/HB 228; Ga. L. 2010, p. 463, § 1/SB 299; Ga. L. 2010, p. 1147, §§ 3, 4/HB 1104; Ga. L. 2011, p. 281, § 1/HB 373; Ga. L. 2012, p. 303, § 3/HB 1146.