In the Interest of C. M. B., a Child

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 11, 2016
In the Court of Appeals of Georgia
A15A2070. IN THE INTEREST OF C. M. B., a child.
MCMILLIAN, Judge.
This case presents an issue of first impression under the new Juvenile Code –
how to calculate the 72-hour period under OCGA § 15-11-521 (a) during which the
State must file a delinquency petition following a detention hearing.
The facts are largely undisputed. On Thursday, February 5, 2015 at 1:00 p.m.,
the juvenile court signed an order detaining C. M. B. on various charges, and a
delinquency petition was filed against him on Monday, February 9, 2015 at 1:24 p.m.
At the ten-day hearing on February 18, 2015, C. M. B.’s attorney verbally moved to
dismiss the petition and for the release of C. M. B. based on the fact that the petition
was not filed by Sunday, February 8, 2015 at 1:00 p.m., which he asserted was
mandated by the 72-hour rule under OCGA § 15-11-521 (a). The trial court entered
an order denying the verbal motion, finding that under OCGA § 15-11-5, the day C.
M. B. was detained and the intervening weekend days were not included in
calculating the 72-hour period. The trial court found, therefore, that the State had
until Tuesday, February 10, 2015 to file its petition, and because the petition was filed
on Monday, February 9, it was timely. The trial court later signed a certificate of
immediate review of its order, and this appeal follows our grant of C. M. B.’s
application for interlocutory appeal.
The record indicates that C. M. B. was initially detained on January 29, 2015,
and under OCGA § 15-11-521 (a),1
[i]f a child is in detention prior to adjudication, a petition alleging
delinquency shall be filed not later than 72 hours after the detention
hearing. If no petition alleging delinquency is filed within the applicable
time, such child shall be released from detention and the complaint shall
be dismissed without prejudice.2
1
Georgia revised its Juvenile Code in May 2013 (the “2013 revision”), and the
new Code applies to all juvenile proceedings commenced on or after January 1, 2014,
including the proceedings in this case. Ga. L. 2013, p. 294, 514, § 5-1 (Act 127). Both
OCGA §§ 15-11-5 and 15-11-521 were enacted as a part of the 2013 revision. Ga. L.
2013, p. 294, 295, § 1-1. We note that OCGA § 15-11-521 has not been amended
since its passage.
2
This subsection also allows for the refiling of the petition in accordance with
subsection (b) of the statute within the statute of limitations. OCGA § 15-11-521 (a).
2
The trial court’s “Order Following Detention Hearing for Child Alleged to Be
Delinquent Pursuant to OCGA § 15-11-506,” was signed at 1:00 p.m. on Thursday,
February 5, 2015, and the parties do not dispute that we calculate the 72-hour period
from that time.
To determine whether the delinquency petition was timely, we turn to the
applicable provisions of the Juvenile Code, which set how time periods are to be
calculated. Under the current version of OCGA § 15-11-5 (a),
[w]hen a period of time measured in days, weeks, months, years, or
other measurements of time is prescribed for the exercise of any
privilege or the discharge of any duty, the first day shall not be counted
but the last day shall be counted; and, if the last day falls on a weekend,
the party having such privilege or duty shall have through the following
business day to exercise such privilege or discharge such duty.
(Emphasis supplied.) And under OCGA § 15-11-5 (c), “[w]hen the period of time
prescribed is less than seven days, intermediate weekends and legal holidays shall be
excluded in the computation.”
In construing these provisions, “we apply the fundamental rules of statutory
construction that require us to construe the statute according to its terms, [and] to give
words their plain and ordinary meaning.” (Citation and punctuation omitted.)
3
Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 822
(1) (743 SE2d 492) (2013). Here, as the trial court found, it is clear that “hours” are
a “measurement of time” under OCGA § 15-11-5 (a), and thus the first day when the
detention order was signed does not count toward the calculation. Therefore, Friday,
February 6, 2015 comprised the first 24 hours of the 72-hour period. However,
because seventy-two hours is clearly a period of time that is less than seven days,
under OCGA § 15-11-5 (c), intervening weekend days are excluded from the
computation, and under the new Juvenile Code, “‘[w]eekend’ means Saturday or
Sunday.” OCGA § 15-11-2 (76). Cf. Livingston v. State, 266 Ga. 501 (467 SE2d 886)
(1996) (holding under provision of former Juvenile Code that when the 72-hour
period expired on a holiday or weekend the detention hearing should be held on the
next business day, detention hearing held at 9:00 a.m. Monday was timely where the
72-hour period for holding such a hearing expired at 5:00 a.m. Monday morning
before the court opened for business). Thus, after applying the plain and unambiguous
language of OCGA § 15-11-5 (a) and (c), the 72-hour period expired at the end of the
day on Tuesday, February 10, and the trial court properly found that the delinquency
petition was timely filed.
4
This interpretation is supported by the legislature’s April 2014 amendment to
OCGA § 15-11-5 (a) (the “2014 amendment”). When the statute was enacted in 2013,
subsection (a) provided that
[w]hen a period of time measured in days, weeks, months, years, or
other measurements of time except hours is prescribed for the exercise
of any privilege or the discharge of any duty, the first day shall not be
counted but the last day shall be counted; and, if the last day falls on a
weekend, the party having such privilege or duty shall have through the
following business day to exercise such privilege or discharge such
duty.
(Emphasis supplied.) Thus, in the original enactment of this provision, the General
Assembly expressly excluded periods of time measured by hours from the provisions
of OCGA § 15-11-5 (a), but the 2014 amendment deleted the phrase “except hours”
from subsection (a). Ga. L. 2014, p. 780, 781, § 1-2 (Act 635). This amendment
became effective upon its approval by the Governor on April 28, 2014, Ga. L. 2014,
p. 780, 800, § 5-1, and applies in this case.
The use of the phrase “except hours” in the original version of the statute is
plain and unambiguous: OCGA § 15-11-5 (a) was not originally intended to govern
any time period measured in hours. It is equally apparent that by deleting this
language, the legislature intended that periods of time measured in hours no longer
5
would be excepted from the statute’s provisions. See Transp. Ins. Co. v. El Chico
Restaurants, Inc., 271 Ga. 774, 776 (524 SE2d 486) (1999) (“We must presume that
the Legislature’s failure to include the limiting language was a matter of considered
choice.”). Moreover, we must presume that when it passed the 2014 amendment, the
General Assembly was aware of the 72-hour time period set forth in OCGA § 15-11-
521 (a), a statute it had passed just the year before. See Jacobs v. State, 200 Ga. 440,
444 (37 SE2d 187) (1946).
Our construction of these statutory provisions is not changed by the fact that
OCGA § 15-11-521 (a) itself contains no language expressly excluding holidays and
weekends from the calculation of the 72-hour period, while, as C. M. B. notes, two
other provisions of the new Juvenile Code have included and/or currently include
6
such language. See OCGA § 15-11-5063 and OCGA § 15-11-400 (a).4 Although C.
M. B. does not expressly invoke the in pari materia rule in making this argument, it
is clear that C. M. B. is essentially asserting that these statutes must be read together
and that the absence of the language excluding holidays and weekends in OCGA §
3
OCGA § 15-11-506 (c) provides:
Notwithstanding Code Section 15-11-5, if the detention hearing cannot
be held within two days in accordance with paragraph (1) of subsection
(b) of this Code section because the date for the hearing falls on a
weekend or legal holiday, the court shall review the decision to detain
such child and make a finding based on probable cause within 48 hours
of such child being placed in preadjudication custody.
4
OCGA § 15-11-400 (a) provides:
The continued custody hearing for a child alleged to be a child in need
of services shall be held promptly and no later than:
(1) Twenty-four hours, excluding weekends and holidays, after such
child is taken into temporary custody if he or she is being held in a
secure residential facility or nonsecure residential facility; or
(2) Seventy-two hours, excluding weekends and holidays, after such
child is placed in foster care.
See Ga. L. 2014, p. 780, § 1-25.
7
15-11-521 (a) means that holidays and weekends are included in the computation of
the 72-hour period. See Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App.
573, 579 (1) (707 SE2d 921) (2011) (describing the in pari materia rule). However,
“[i]t has long been held that even statutes in pari materia may not be resorted to
where the language of the statute under consideration is clear.” (Citation and
punctuation omitted; emphasis supplied.) Mahalo Investments III, LLC v. First
Citizens Bank & Trust Co., Inc., 330 Ga. App. 737, 739 (769 SE2d 154) (2015). “The
reason for this rule is obvious – construing statutes together that separately are plain
and unambiguous may create ambiguities where none exist.” Id. If, as C. M. B.
argues, the absence of language in OCGA § 15-11-521 (a) excluding holidays and
weekends means that holidays and weekends must be counted, we would essentially
be reading a portion of the Juvenile Code’s computation provision, OCGA § 15-11-5
(c), out of the statute. That would be contrary to the fundamental principle of
statutory construction that we must endeavor to give each part of the statute meaning
and “avoid a construction that makes some language mere surplusage.” (Citation and
punctuation omitted.) Lakeview, 321 Ga. App. at 822 (1).
Accordingly, we affirm the trial court’s order denying the motion to dismiss the
delinquency petition.
8
Judgment affirmed. Barnes, P. J., and Ray, J., concur.
9