Justices sound skeptical of Georgia agency’s decision to remove children from their home 

Warning: This story involves the subject of suicide. If you or someone you know may be experiencing a mental health crisis, contact the 988 Suicide and Crisis Lifeline by dialing or texting “988.”

Georgia Supreme Court justices had pointed questions this week for representatives of the Georgia Department of Human Services’ Division of Family and Children Services.

A case working its way through Georgia’s highest court has to do with the government’s power to remove a child from his or her home.

Lawyers for the state argue that government officials should have the right to temporarily remove children from a home without a hearing in some cases, even if there is no immediate danger.

One Fulton County mom says the state exceeded its authority in taking her two kids shortly after a family tragedy, and questions from justices asked during oral arguments this week indicated they might agree.

Facts of the case

In 2024, Dayshundra Wilson lived in Atlanta with her five children. On June 8, her 13-year-old son was taken to the hospital with a self-inflicted gunshot wound that would claim his life three days later. The medical examiner ruled the death a suicide.

On July 9, a month after the shooting at the family home, the Georgia Department of Human Services’ Division of Family and Children Services filed paperwork with the juvenile court arguing that two of Wilson’s minor children were “dependent,” which in this context means they had been abused or neglected and were in need of protection. The division filed an emergency order to take two of the kids into protective custody. The other two children were living with their father.

In the order, the state indicated the children were not in immediate danger, that their placement in shelter care was not necessary to protect people or property, that the agency did not have a good faith belief that the children were likely to run away and that they were not without a parent or guardian.

The judge rejected the order because the children were not in immediate danger and because Wilson had been cooperating with caseworkers.

On July 11, the state filed another emergency order, again indicating that the children were not in immediate danger but this time emphasizing the 13-year-old child’s suicide and stating that Wilson knew about an unsecured weapon in her home and that the department had severe concerns about inadequate supervision.

The same judge approved the second order, citing the suicide and claims that the mother and children knew about the unsecured weapon. The children were removed to foster care.

In a July 15 juvenile court hearing, a caseworker testified that the gun that the child used did not belong to Wilson and that no other guns were found in the apartment. One of the siblings said he knew his brother had a gun but was keeping it a secret. The sibling said he thought his brother had likely gotten the gun from a local kid who Wilson had warned him to stay away from. No evidence that Wilson knew about the gun was presented, and she was not charged with any crime in relation to the shooting.

The caseworker also said there was no evidence that the siblings were abused or neglected either before or after their brother’s death and that the children wanted to be with their mother.

The caseworker testified that “upper leadership” at the agency wanted the children removed.

The juvenile court ordered the state to immediately return the children and scolded the agency for compounding the children’s trauma by unnecessarily removing them from their home after their brother’s death.

But the juvenile court denied a separate challenge under the 14th Amendment, reasoning that the agency had followed the proper procedures, and the state Court of Appeals affirmed the decision. The case is now before the Georgia Supreme Court, which heard oral arguments this week.

Arguments

In the Georgia Supreme Court, Wilson’s attorneys argued that because caseworkers took her children without a hearing while acknowledging that the children were not in immediate danger, the state violated the Due Process Clause of the 14th Amendment, which says that governments cannot deprive people of life, liberty or property without due process of law.

“Had DFCS sought ex parte removal of Ms. Wilson’s surviving children in the immediate aftermath of their brother’s tragic suicide – amidst a chaotic, unfolding scene – this would be a different case, because that is an emergency,” said Emma Brown-Bernstein, an attorney representing Wilson, during oral arguments Tuesday. “And in an emergency, the state may act first to protect children and provide a hearing after, but this case is not about an emergency. It’s about an unusual circumstance.”

Attorneys for the state agency argue that Wilson’s rights were not violated because they followed the state’s juvenile code, which balances the right to due process with the need to protect children, and that they promptly scheduled the hearing in which Wilson’s parental rights were restored.

“My colleague appeals to the flexible concept of due process, but she demands a rigid rule that strips juvenile courts of their discretion to remove children in all but the most extreme situations of acute harm,” said Deputy Solicitor General Sven Henningson with the state. “A rigid rule here would harm children, and the Constitution does not require it.”

Henningson argued that the case should be considered moot because it was resolved in Wilson’s favor and she got the relief she was seeking, the return of her children.

Justices forcefully questioned Henningson.

“So the state’s position is that the department, the state, can go in, without a parent present, affirmatively say, ‘There is no emergency here, but I would like to take these children,’ and due process permits that?” asked Justice Charlie Bethel.

“In exceptional circumstances –” Henningson began.

“– No emergency — the state is on record: ‘There is no emergent risk to this child, but I would like to take them anyway,’” Bethel said.

“Yes, your honor, in exceptional circumstances short of emergency,” said Henningson.

“What exceptional circumstances were present here?” Bethel asked.

“Particularly after a month had passed,” added Justice Verda Colvin.

“The exceptional circumstances were that a child died in the house, and there was conflicting information from a minor child about whether or not there was an unsecured weapon in the home,” Henningson said. “That would be exceptional.”

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