This is a child deprivation case from the Juvenile Court of Walker County which was decided adversely to the parent (mother) having custody of the child. The mother appealed from that decision, enumerating a number of alleged errors. The Court of Appeals affirmed the decision of the juvenile court, finding the child was a deprived child. 1 However, that court found it unnecessary to decide several enumerations of error dealing with certain statutory procedural requirements of the Juvenile Code. We granted certiorari to consider whether these errors materially affected the juvenile court proceedings and we now reverse.
The mother complains of three statutory procedural deficiencies in the juvenile court: (1) failure of the juvenile *407 court to set a hearing within 10 days from the date the petition was filed as required by Code Ann. § 24A-1701 (a) when a child is "in detention”; (2) failure to give the mother prompt written notice that her child was being taken into custody as required by Code Ann. § 24A-1402 (a) (2). (The written notice to the mother here came eight days after the child was taken into custody); and, finally, (3) the failure of the juvenile authorities to hold an informal detention hearing within 72 hours after the child was placed in detention with reasonable notice to the parent, or parents, including notice of the right to counsel and appointment of counsel if the parents are needy persons. See Code Ann. § 24A-1404 (c).
The jurisdiction of juvenile courts under the 1971 Code includes children who are "deprived” as well as those who are "delinquent” or "unruly.” Code Ann. § 24A-301 (a) (1). The procedural requirements of the Code are applicable when a child is taken into custody or temporarily detained, regardless of whether it is for alleged delinquency, unruliness, or deprivation. Code Ann. § 24A-1402 (a) (2). Under the supervision of the juvenile court, any person "who has knowledge of the facts alleged or is informed and believes that they are true” may file a petition alleging that a child is deprived. The Georgia Department of Family & Children Services is specifically authorized by statute to investigate complaints of child abuse and bring them to the attention of the court. See Code Ann. § 99-211 (b) (2). The juvenile court may then enter an order taking the child into custody. Code Ann. § 24A-1301. The detention or taking of a child into custody triggers the application of the procedural requirements of the Juvenile Code.
In most of the appellate court decisions of this state construing our juvenile court code (see, generally,
Brown v. State,
Specifically, the state argues that these procedural errors related solely to the preadjudication detention hearing in the juvenile court and it is collateral to, and distinct from, the judgment rendered by the court in the child deprivation proceedings. Therefore, it is argued that any errors which might have been committed in detaining the child, before he had been adjudicated a "deprived child,” are washed out and legally must be ignored after an adjudication determination. Thus, the state reasons that any prior procedural error is harmless and does not constitute grounds for reversing the subsequent adjudication of deprivation by the juvenile court. Cf.
T.K. v. State of Ga.,
In the first place, this argument is not applicable to the mother’s contention that the adjudicatory hearing was set more than 10 days from the date the petition was filed in the juvenile court. There are four Georgia Appeals decisions interpreting this section. They are:
E.S. v. State of Ga.,
*409 The 10-day hearing requirement of Code Ann. § 24A-1701 (a) is applicable when a child is "in detention” on the date the petition is filed in court. The Court of Appeals pretermitted this question and did not determine whether a failure to set the hearing within 10 days would require a dismissal of the petition. The facts of this case lead us to conclude that this child was "in detention” on the date the petition was filed in the juvenile court. The child had been placed in the Children’s Hospital in Chattanooga by the mother. The child was there on the date the Department of Family & Children Services filed a petition alleging the child was a deprived child. The employees of the hospital held the child at the behest of the Walker County, Georgia, Department of Family & Children Services. The mother was told that if she attempted to remove her child from the hospital she would be put in jail. Thus, within the ordinary meaning of the word, the child was being detained on the date the petition was filed in court.
We now reach the question of whether failure to set the hearing within 10 days from that date required dismissal of the petition. In her answer, the mother alleged, inter alia, that because of this failure to set a hearing within the statutory time limit, the proceedings were illegally before the'juvenile court. However, on the date set for the initial hearing a continuance was agreed to on behalf of the parties. It also appears from the transcript that at this point petitioner’ effectively abandoned this objection and never obtained a ruling from the trial court on it. The reasoning of the prior decisions of the Court of Appeals persuades us that under these circumstances the mother cannot now successfully raise this objection on appeal.
We turn next to a consideration of the requirement of Code Ann. §§ 24-1404 (c) and 24A-1402 (a). The mother contended in the trial court that these provisions are mandatory and she makes the same argument on appeal. The state argues that these provisions should be construed as directory only and that if they are construed as mandatory, failure to follow them was harmless error since they did not occur in the adjudicatory hearing of the juvenile court. The Court of Appeals found it unnecessary *410 to consider these enumerations of error concerning the preadjudication detention of the child since it was reviewing the judgment of the juvenile court in the deprivation proceeding. We believe that these enumerations of error must be considered.
We inquire first whether these procedures are mandatory or directory. See
Barton v. Atkinson,
It is the final clause to this rule further elaborated upon in McLendon, supra, at pp. 717, 718, that gives us concern in this case: "A statutory provision is generally regarded as directory where a failure of performance will result in no injury or prejudice to the substantial rights of interested persons, and as mandatory where such injury or prejudice will result.” A failure to comply with notice and hearing requirements of the juvenile code after an allegedly deprived child has been taken from the parent’s custody does prejudice or injure the rights of the parent, primarily the right to possession of the child. See Code Ann. §§ 74-106, 74-108, and 74-203.
In addition, the Code recognizes that the parent is a "party” to proceedings involving his child.
See D. C. A. v. State of Ga.,
We, therefore, hold that the notice and hearing requirements of §§ 24A-1404 (c) and 24A-1402 (a) are mandatory and must be adhered to in order for the juvenile court to proceed with the adjudicatory hearing. These procedural safeguards are easily followed. If, for some reason they are not, dismissal of the petition would be without prejudice. Another petition can be filed without delay if there is reason to believe the child is being neglected or abused.
Child abuse is a grievous and lamentable problem. Our children, the pride of every generation and the seed corn of the future, must be protected. The General Assembly has elaborately provided how this is to be done. We see it as our duty to enforce the statutory procedures established by the General Assembly. We applaud the important function performed by the Department of Family & Children Services in protecting children who are mistreated by their parents. However, wresting a child away from the care and custody of its parents is of serious consequence. It is so drastic that it should be attended only by the most stringent procedural safeguards. See Nix v. State, supra. It is with this in mind that a compliance with these procedural provisions must be observed in the proceedings. The judgment of the Court of Appeals is reversed because of the failure in the trial court to follow these requirements in this case.
Judgment reversed.
Notes
The child remains in the present care of the mother under a supersedeas order entered by the trial court.