GA Code § 49-5-12 (2021)
2021 Georgia Code|Title 49 - Social Services|Chapter 5 - Programs and Protection for Children and Youth|Article 1 - Children and Youth Services|§ 49-5-12. Licensing and Inspection of Child Welfare Agencies; Standards; Revocation or Refusal of License; Penalties; Violations

  As used in this Code section, the term "child welfare agency" means any child-caring institution, child-placing agency, children's transition care center, or maternity home.   All child welfare agencies shall be licensed or commissioned annually by the department in accordance with procedures, standards, rules, and regulations to be established by the board. The board shall develop and publish in print or electronically rules and regulations for licensing or commissioning of child welfare agencies. Child welfare agencies electing to be commissioned rather than licensed shall operate in accordance with the same procedures, standards, rules, and regulations for licensing of child welfare agencies. A license issued to a child-placing agency shall be deemed approval of all foster family homes approved, supervised, and used by the licensed child-placing agency as a part of its work, subject to this article and rules and regulations of the board.   The department shall assist applicants or licensees or persons holding commissions in meeting rules and regulations of the department for child welfare agencies and, if a licensee or person holding a commission is, for any reason, denied renewal of a license or commission or if a license or commission is revoked or if any applicant for a license or commission cannot meet department rules and regulations for child welfare agencies, the department shall assist in planning the placement of children, if any, in the custody of such child welfare agency in some other licensed or commissioned child welfare agency or assist in returning them to their own homes or in making any other plans or provisions as may be necessary and advisable to meet the particular needs of the children involved.   Application for a license or commission shall be made to the department upon forms furnished by the department. Upon receipt of an application for a license or commission and upon presentation by the applicant of evidence that the child welfare agency meets the rules and regulations prescribed by the department, the department shall issue such child welfare agency a license or commission for no more than one year.   If the department finds that any child welfare agency applicant does not meet rules and regulations prescribed by the department but is attempting to meet such rules and regulations, the department may, in its discretion, issue a temporary license or commission to such child welfare agency, but such temporary license or commission shall not be issued for more than a one-year period. Upon presentation of satisfactory evidence that such agency is making progress toward meeting prescribed rules and regulations of the department, the department may, in its discretion, reissue such temporary license or commission for one additional period not to exceed one year. As an alternative to a temporary license or commission, the department, in its discretion, may issue a restricted license or commission which states the restrictions on its face.   The department shall refuse a license or commission upon a showing of:   Noncompliance with the rules and regulations for child welfare agencies as adopted by the Board of Human Services which are designated in writing to the facilities as being related to children's health and safety;   Flagrant and continued operation of an unlicensed or uncommissioned facility in contravention of the law; or   Prior license or commission denial or revocation within one year of application.     All licensed or commissioned child welfare agencies shall prominently display the license or commission issued to such agency by the department at some point near the entrance of the premises of such agency that is open to view by the public.   The department's action revoking or refusing to renew or issue a license or commission required by this Code section shall be preceded by notice and opportunity for a hearing and shall constitute a contested case within the meaning of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," except that only 30 days' notice in writing from the commissioner's designee shall be required prior to license or commission revocation and except that hearings held relating to such action by the department may be closed to the public if the hearing officer determines that an open hearing would be detrimental to the physical or mental health of any child who will testify at that hearing.   Child-caring institutions and child-placing agencies, when licensed in accordance with this Code section, may receive needy or dependent children from their parents, guardians, custodians, or persons serving in loco parentis for special, temporary, or continued care. Parents, guardians, custodians, or persons serving in loco parentis to such children may sign releases or agreements giving to such institutions or agencies custody and control over such children during the period of care. Children's transition care centers may receive medically fragile children from their parents, guardians, custodians, or persons serving in loco parentis for special, temporary, or continued care to facilitate transitions from a hospital or other facility to a home or other appropriate setting.   Child-placing agencies, in placing children in foster family homes, shall safeguard the welfare of such children by thoroughly investigating each such home and the character and reputation of the persons residing therein and shall adequately supervise each home during the period of care. All children placed in foster family homes shall, as far as is practicable, be placed with persons of the same religious faith as the children themselves or the children's parents.   It shall be the duty of the department to inspect at regular intervals all licensed or commissioned child welfare agencies within the state, including foster family homes used by such child-placing agencies. The department shall have right of entrance, privilege of inspection, and right of access to all children under the care and control of the licensee or commissionee.   If any flagrant abuses, derelictions, or deficiencies are made known to the department or its duly authorized agents during their inspection of any child welfare agency or if, at any time, such are reported to the department, the department shall immediately investigate such matters and take such action as conditions may require.   If abuses, derelictions, or deficiencies are found in the operation and management of any child welfare agency, they shall be brought immediately to the attention of the management of such agency; and if correctable, but not corrected within a reasonable time, the department shall revoke the license or commission of such agency in the manner prescribed in this Code section.   The department may require periodic reports from child welfare agencies in such forms and at such times as the department may prescribe.   Child welfare agencies and other facilities and institutions wherein children and youths are detained which are operated by any department or agency of state, county, or municipal government shall not be subject to licensure under this Code section, but the department may, through its authorized agents, make periodic inspections of such agencies, facilities, and institutions. Reports of such inspections shall be made privately to the proper authorities in charge of such agencies, facilities, or institutions. The department shall cooperate with such authorities in the development of standards that will adequately protect the health and well-being of all children and youths detained in such agencies, facilities, and institutions or provided care by them. The department may recommend changes in programs and policies and if, within a reasonable time, the standards established by the department and the recommendations of the department are not met, it shall be the duty of the commissioner to make public in the community in which such agency, facility, or institution is located the report of the above-mentioned inspection and the changes recommended by the department. If any serious abuses, derelictions, or deficiencies are found and are not corrected within a reasonable time, the commissioner shall report them in writing to the Governor.   Any child welfare agency that shall operate without a license or commission issued by the department shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $500.00 nor more than $1,000.00 for each such offense. Each day of operation without a license or commission shall constitute a separate offense.   No person, official, agency, hospital, maternity home, or institution, public or private, in this state shall receive or accept a child under 17 years of age for placement or adoption or place such a child, either temporarily or permanently, in a home other than the home of the child's relatives without having been licensed or commissioned by the department. Notwithstanding the provisions of Code Section 49-5-12.1, violation of this subsection shall be punishable by a fine of not less than $500.00 nor exceeding $1,000.00 for each offense. Nothing in this Code section shall be construed to prohibit a properly licensed attorney at law from providing necessary legal services and counsel to parties engaged in or contemplating adoption proceedings. Nothing in this Code section shall be construed to prohibit an individual seeking to:   Adopt a child or children from receiving or accepting a child or children in the individual's home in anticipation of filing a petition for adoption under Article 1 of Chapter 8 of Title 19; or   Have that individual's child or children placed for adoption from placing that individual's child or children in the home of an individual who is not related to the child or children in anticipation of the individual's initiation of adoption proceedings pursuant to Article 1 of Chapter 8 of Title 19.     The department may, without regard to the availability of other remedies, including administrative remedies, seek an injunction against the continued operation of a child welfare agency without a license or commission or the continued operation of a child welfare agency in willful violation of this article or of any regulation of the department or in violation of any order of the board.   The term "licensed child welfare agency" shall include a commissioned child welfare agency and any references in this Code to a licensed child welfare agency, including criminal, administrative, and civil provisions applicable to licensed child welfare agencies, shall include and apply to commissioned child welfare agencies unless otherwise provided in this article.    (i.1)A children's transition care center shall serve no more than six children per residence or 16 children per campus at a time. Children's transition care center services shall be available to all families in this state, including those whose care is paid for through the Department of Community Health or the Department of Human Services or by insurance companies that cover home health care services or private duty nursing care in the home. Each children's transition care center location shall be physically separate and apart from any other facility licensed by the Department of Human Services under this chapter and shall provide one or more of the following services: respite care, registered nursing or licensed practical nursing care, transitional care for the facilitation of transitions to a home or other appropriate setting and reunion of families, medical day care, weekend camps, and diagnostic studies typically done in the home setting.   (Ga. L. 1963, p. 81, §§ 3, 14; Ga. L. 1967, p. 772, § 1; Ga. L. 1973, p. 560, § 1; Ga. L. 1982, p. 3, § 49; Ga. L. 1982, p. 706, §§ 1, 3, 9, 10; Ga. L. 1983, p. 3, § 38; Ga. L. 1984, p. 22, § 49; Ga. L. 1986, p. 1038, § 1; Ga. L. 1987, p. 1435, §§ 3, 4; Ga. L. 1988, p. 217, § 1; Ga. L. 1989, p. 1795, § 1; Ga. L. 1990, p. 8, § 49; Ga. L. 1991, p. 408, §§ 2-4; Ga. L. 1991, p. 1640, § 13; Ga. L. 1992, p. 6, § 49; Ga. L. 1994, p. 97, § 49; Ga. L. 1994, p. 650, § 4; Ga. L. 2004, p. 645, § 9; Ga. L. 2004, p. 1085, § 1; Ga. L. 2008, p. 1145, § 2/HB 984; Ga. L. 2009, p. 453, §§ 2-2, 2-3/HB 228; Ga. L. 2009, p. 800, § 6/HB 388; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2013, p. 135, § 11/HB 354; Ga. L. 2016, p. 773, § 6/HB 905; Ga. L. 2017, p. 774, § 49/HB 323.)    The 2013 amendment,  effective July 1, 2013, deleted former subsection (t), which read: "The department shall recommend in writing to the owner of any facility operated as a day-care center, family day-care home, group day-care facility, or group day-care home or any child learning center licensed by the Department of Early Care and Learning that such facility carry liability insurance coverage sufficient to protect the facility's clients. Any such facility which after receiving such recommendation is not covered by liability insurance shall post that fact in a conspicuous place in the facility and shall notify the parent or guardian of each child under the care of the facility in writing. Such notice shall be in at least 1/2 inch letters. Each such parent or guardian must acknowledge receipt of such notice in writing and a copy of such acknowledgment shall be maintained on file at the facility at all times while the child attends the facility and for 12 months after the child's last date of attendance. Failure to do so may subject the owner of the facility to a civil fine of $1,000.00 for each such infraction."    The 2016 amendment,  effective July 1, 2016, substituted "$500.00 nor more than $1,000.00" for "$50.00 nor more than $200.00" in the first sentence of subsection (p); and substituted "$500.00 nor exceeding $1,000.00" for "$100.00 nor exceeding $500.00" in the second sentence of subsection (q).    The 2017 amendment,  effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, deleted ", as defined in subsection (a) of this Code section," following "agencies" near the beginning of the first sentence of subsection (b).   Cross references.   - Applicability of Interstate Compact on the Placement of Children regarding requirements for visitation, inspection, or supervision of children, homes, institutions, or other agencies in another state which is party to compact, § 39-4-10.   Editor's notes.   - Ga. L. 2009, p. 800, § 1/HB 388, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Option of Adoption Act.'"   Administrative Rules and Regulations.   - Group day care homes, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Family & Children Services; Child Care Institutions, Chapters 290-2-1 et seq.   Immunization of children as a prerequisite to admission to schools and other facilities, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Public Health, Chapter 290-5-4.   Law reviews.   - For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 57 (1992). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 126 (1994).   JUDICIAL DECISIONS   Department of Human Resources licensure of church-operated children's home.    - Requirement that the Department of Human Resources license a church-operated children's home as a child caring institution pursuant to the Children and Youth Act, O.C.G.A. § 49-5-1 et seq., and department regulations governing child caring institutions does not violate the free exercise clause of the First Amendment, nor would the requirement violate the establishment clause of the First Amendment since such a requirement in no way aids, furthers, or confers a special benefit on any religious group. Darrell Dorminey Children's Home v. Georgia Dep't of Human Resources, 260 Ga. 25, 389 S.E.2d 211 (1990).   Foster children.    - O.C.G.A. §§ 15-11-13,15-11-58,20-2-690.1 and49-5-12 set out in clear detail the rights and services to which foster children are entitled. As a result, the federal statutory provisions in question are not too vague and amorphous to be enforced by the judiciary and each of the state statutes at issue impose specific duties on the state defendants. Thus, the federal regulatory scheme embodied in the Child and Family Services Review process does not relieve the state defendants of the defendants' obligation to fulfill the defendants' statutory duties to plaintiff foster children, nor does the regulatory scheme provide a legal excuse for the defendants' failure to do so. Kenny A. v. Perdue, F. Supp. 2d (N.D. Ga. Dec. 11, 2004).   Action for deprivation of civil rights.    - Georgia statutory foster care scheme created in a two-year-old child a legitimate and sufficiently vested claim of entitlement such that deprivation of that entitlement without due process of law imposed on the child a grievous loss, supporting the child's action for injuries under the federal Civil Rights Act. Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987), cert. denied, 489 U.S. 1065, 109 S. Ct. 1337, 103 L. Ed. 2d 808 (1989).   Private cause of action.    - Following factors are relevant in determining whether a private remedy is implicit in a statute not expressly providing one: first, whether the plaintiff is one of the class for whose special benefit the statute was enacted; second, whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; third, whether it is consistent with the underlying purpose of the legislative scheme to imply such a remedy for plaintiff. When foster children alleged that certain child services agencies and officials violated O.C.G.A. § 49-5-12(j), that subsection conferred upon the children a private cause of action. Kenny A. v. Perdue, 218 F.R.D. 277 (N.D. Ga. Aug. 18, 2003).    Cited in Department of Human Resources v. Ledbetter, 153 Ga. App. 416, 265 S.E.2d 337 (1980); Penaranda v. Cato, 740 F. Supp. 1578 (S.D. Ga. 1990); Kenny A. v. Perdue, F. Supp. 2d (N.D. Ga. Dec. 11, 2004).   OPINIONS OF THE ATTORNEY GENERAL   After school care programs on county school premises.   - Department of Human Resources may not license "latch key" or "after school" care programs operated by county school systems on the school's premises. 1985 Op. Att'y Gen. No. 85-11.   After school care programs operated by outside organization.   - Department of Human Resources licensing obligations would extend to a "latch-key" or "after-school" care program on the premises of county school systems if the program is operated by an outside organization rather than school authorities. 1988 Op. Att'y Gen. No. U88-6.   Board authorized to adopt and department to enforce fire safety standards.   - Board of Human Resources has lawful authority to adopt the 1973 Life Safety Code (National Fire Protection Association standard 101), a comprehensive set of standards that deals with preventing and controlling losses from fire, as part of the rules and regulations for day-care centers, and the Department of Human Resources has lawful authority to enforce compliance with code standards. 1976 Op. Att'y Gen. No. U76-6.   Board's standards for juvenile detention facilities are inapplicable to jails.   - Detention standards adopted by the Board of Human Resources for juvenile detention facilities do not apply to jails in which juveniles are confined. 1974 Op. Att'y Gen. No. 74-139.   Steps necessary to cease operation of unlicensed day-care center.   - Division for Children and Youth (now Department of Children and Youth Services), in the absence of specific injunctive authority, must first try to obtain a misdemeanor warrant to stop the unlicensed operation of a day-care center, and, if this proves futile or inadequate, may bring an action for equitable injunction. 1970 Op. Att'y Gen. No. 70-105.    For an update of crimes and offenses  for which the Georgia Crime Information Center is authorized to collect and file identifying data, see 1991 Op. Att'y Gen. No. 91-35.   RESEARCH REFERENCES   C.J.S.   - 43 C.J.S., Infants, §§ 39 et seq., 71 et seq.   ALR.   - Tort liability of private nursery school or day-care center, or employee thereof, for injury to child while attending facility, 58 A.L.R.4th 240.