IN THE INTEREST OF C. W., a child.
BARNES, P. J., MCMILLIAN and REESE, JJ.
case concerns the timeliness of an oral motion to dismiss two
counts of a delinquency petition on the basis that the victim
of the alleged acts of delinquency was not named. We find
that under the facts of this case the motion was not timely
or properly made and accordingly reverse the juvenile
court's order dismissing the challenged counts.
record shows that C. W. was arrested on January 25, 2017, and
placed in detention, which was continued following a hearing
a few days later. A delinquency petition was filed on January
31, 2017, alleging delinquent acts which, had C. W. been an
adult, would constitute the crimes of attempted aggravated
sodomy (Count 1); attempted sodomy (Count 2); sexual battery
(Count 3); and two counts of simple battery (Counts 4 &
5); Counts 1 and 2 referred only to the "victim, "
while the remaining counts referred to the victim by name. An
amended delinquency petition was filed on February 1, 2017,
adding an additional count of simple battery against a
different victim, who was referred to by name (Count 6).
adjudicatory hearing was held on February 3, 2017. After the
witnesses were sworn but before the State could call its
first witness, C. W.'s counsel made a motion to dismiss
Counts 1 and 2 of the delinquency petition, arguing that
those counts were fatally defective because they did not name
the victim of the alleged acts of delinquency, violating the
juvenile's due process rights. The State opposed the
motion, and the juvenile court took the matter under
advisement and continued the hearing. The juvenile court
subsequently granted the motion to dismiss, finding that C.
W.'s due process rights were violated because Counts 1
and 2 failed to provide sufficient information for him to
prepare his defense. The juvenile court also rejected the
State's argument that the motion should be denied because
it was not in writing and untimely. Pursuant to OCGA §
5-7-1 (a), the State then filed this appeal.
resolution of this appeal requires us to answer two questions
- (1) whether the delinquency petition was subject to
challenge because the name of the victim was not disclosed,
and (2) whether the juvenile's challenge to the petition
in the form of a motion to dismiss was timely and properly
made. We agree with the juvenile court that the delinquency
petition was subject to dismissal because it did not disclose
the name of the victim, but find that the juvenile's oral
motion to dismiss was not timely or properly brought.
is no question that a juvenile in a delinquency proceeding is
entitled to "scrupulous adherence to due
process[.]" C. L. T. v. State, 157 Ga.App. 180,
180 (1) (276 S.E.2d 862) (1981). See also OCGA §
15-11-470 ("The purpose of this article is:... (2) To
accord due process of law to each child who is accused of
having committed a delinquent act[.]") Thus, while a
delinquency petition does not have to be drafted with the
"exactitude" of a criminal accusation or
indictment, it must satisfy due process. T. L. T. v.
State, 133 Ga.App. 895, 897 (1) (212 S.E.2d 650) (1975).
comport with due process, the language of a delinquency
petition must pass two tests "(1) it must contain
sufficient factual details to inform the juvenile of the
nature of the offense; and (2) it must provide data adequate
to enable the accused to prepare his defense." T. L.
T., 133 Ga.App. at 897 (1). See also In re
Gault, 387 U.S. 1, 33 III (87 S.Ct. 1428, 18 L.Ed.2d
527) (1967) (the delinquency petition must "set forth
the alleged misconduct with particularity" to satisfy
due process); OCGA § 15-11-522 (The delinquency petition
must set forth "plainly and with particularity: (1) the
facts which bring a child within the jurisdiction of the
court[.]"); In the Interest of C. H., 306
Ga.App. 834, 837 (4) (703 S.E.2d 407) (2010) (trial court
erred in denying special demurrer when petition did not
allege misconduct with particularity); cf. C. L. T.,
157 Ga.App. at 180 (1) (delinquency petition sufficient to
charge simple assault when it alleged altercation between
juvenile and his mother and father).
is settled that an allegation that the accused has committed
a crime against a particular person that does not contain the
name of the victim is considered deficient and subject to
challenge. E.g., State v. Grube, 293 Ga. 257, 260
(2) (744 S.E.2d 1) (2013); Dennard v. State, 243
Ga.App. 868 (534 S.E.2d 182) (2000). But contrary to C.
W.'s argument on appeal, in the context of criminal adult
proceedings, this type of challenge is considered a challenge
to the form, not the substance, of the indictment because it
is a demand for more information or specificity so that the
accused can properly prepare his or her defense, not a
challenge that the indictment fails because it is lacking an
essential element of the charged offense. Accordingly, it is
in the nature of a special, rather than a general demurrer.
Sellers v. State, 263 Ga.App. 144, 145 (587 S.E.2d
276) (2003); Kimbrough v. State, 300 Ga. 878, 880
(2) (799 S.E.2d 229) (2017) ("A special demurrer, ...
challenges the sufficiency of the form of the
indictment, ... [or claims] that the accused is entitled to
more information."). (citation and punctuation omitted;
emphasis in original.) And while a general demurrer may be
made at any time, a special demurrer or motion seeking this
type of information may be waived if not timely made and in
writing. See Palmer v. State, 282 Ga. 466 (651
S.E.2d 86) (2007) (discussing time limits for filing a
special demurrer); see OCGA §§§ 17-7-110,
17-7-111, 17-7-113 (setting out time limits and writing
requirements for special demurrers in the context of adult
question then is how a juvenile must challenge the
sufficiency of a delinquency petition on the basis that the
identity of the victim of a crime against a person was not
disclosed. Although the Juvenile Code does not set out a
specific procedure for filing a motion in the nature of a
special demurrer, Uniform Juvenile Court Rule 7.9 sets out
the time for filing pretrial motions as follows: "All
other pretrial motions must be made in writing and filed not
later than three (3) days, excluding weekends and holidays,
before the adjudicatory hearing unless otherwise permitted by
the court." Further, the Uniform Juvenile Court Rules
contemplate the need to amend pleadings before the
adjudicatory hearing, and specifically provide that
"[u]pon the motion of any party, " the juvenile
court will hold a pretrial conference to consider "[t]he
necessity or desirability of amendments to the
pleadings." Uniform Juvenile Court Rule 7.5.
Accordingly, the motion to dismiss in this case, which was
made orally and after the first witness was sworn at the
adjudicatory hearing,  was untimely and not in the proper form.
although we note that the strict time limitations for holding
the adjudicatory hearing might pose difficulties in meeting
these requirements in some circumstances,  potentially
raising due process concerns, none of those circumstances are
present here. Although the petition was amended to add an
additional count several days before the hearing, the victim
was named in that count and C. W. did not move to dismiss the
added count. Further, the name of the victim of Counts 1 and
2 was disclosed at the detention hearing on January 27, 2017.
And lastly, it appears that C. W.'s attorney
intentionally waited until jeopardy had attached and the
State could not amend the delinquency petition before moving to
dismiss. Under these circumstances, C. W. waived
his right to be adjudicated on a delinquency petition
"perfect in form, " and the juvenile court's
order dismissing Counts 1 and 2 of the petition must be
Barnes, P.J., and ...