CopyCited 32 times | Published | Supreme Court of Georgia | Mar 20, 1998 | 269 Ga. 308, 98 Fulton County D. Rep. 901
...Joy, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State of Georgia et al. Gilbert J. Murrah, Bainbridge, for Bart Jackson. HINES, Justice. This is an appeal from an order of the superior court in a declaratory judgment action *914 finding that OCGA §
49-5-183.1 is unconstitutional. OCGA §
49-5-183.1 is part of a general statutory scheme providing for the establishment and maintenance of a central registry of confirmed, and unconfirmed, reports of child abuse, known as the "Child Protective Services Information System" ("CPSIS")....
..., confirmed (at least equal or greater credible evidence that abuse did occur), or unconfirmed (some credible evidence that abuse occurred, but not sufficient evidence to classify the report as confirmed). See OCGA §
49-5-180(6), (10), & (12); OCGA §
49-5-183(a). The report includes information identifying the abuse victim, the victim's parents or guardian, and the person who allegedly committed the abuse. OCGA §
49-5-183. Upon receiving a report of "confirmed" or "unconfirmed" child abuse, a county DFACS office is to notify the alleged abuser of the report classification. OCGA §
49-5-183.1 (b). The person so notified may request a hearing within ten days of receipt of the notice, which is presumed to have occurred five days after mailing. OCGA §
49-5-183.1(b) & (c). Any hearing is conducted before an administrative law judge ("ALJ") in accordance with the Georgia Administrative Procedure Act. See OCGA §§
49-5-183.1(e);
50-13-1 et seq. The ALJ determines if the evidence meets the required standard for the classification. OCGA §
49-5-183.1(f). This constitutes the final administrative decision and may be appealed to the superior court; but the superior court's decision is not appealable. OCGA §
49-5-183.1(g)....
...Jackson was tried and acquitted on all five counts of child molestation, yet DFACS expressed its intention to continue its efforts to have Jackson listed on the CPSIS as "confirmed." Prior to the hearing before the ALJ, Jackson filed this action challenging the constitutionality of OCGA §§
49-5-180,
49-5-183, and
49-5-183.1, and asking for an injunction against the scheduled hearing or any other efforts by DFACS to include him on the registry. The superior court granted a temporary injunction and ruled that OCGA §
49-5-183.1, the section containing the mechanism by which an alleged child abuser is placed on the CPSIS, is unconstitutional. The court also granted a permanent injunction. 1. The superior court determined that OCGA §
49-5-183.1 violated Jackson's due process rights to compel witnesses on his behalf and confront the witnesses against him, as guaranteed by the Sixth and Fourteenth Amendments. [2] See Washington v. Texas,
388 U.S. 14,
87 S.Ct. 1920,
18 L.Ed.2d 1019 (1967); Pointer v. Texas,
380 U.S. 400,
85 S.Ct. 1065,
13 L.Ed.2d 923 (1965). OCGA §
49-5-183.1(i) provides in part that "[n]o child under the age of 14 shall be compelled to appear to testify at any hearing held pursuant to this Code section." Thus, on its face, the statute prohibits anyone who is alleged to have abused children...
...To the contrary, OCGA § 24-3-16 recognizes the importance of the rights to compel testimony and confront witnesses; it allows an out-of-court statement of a child victim to be admitted only if "the child is available to testify in the proceedings." See Reynolds v. *916 State,
257 Ga. 725(4),
363 S.E.2d 249 (1988). But OCGA §
49-5-183.1 would prohibit the accused child abuser from compelling the witness' presence, and therefore prohibits him from assuring the witness' availability. Fundamental rights of one so accused cannot be ignored, and the presence of OCGA § 24-3-16 does not save OCGA §
49-5-183.1. We must also determine whether we are faced with a facial challenge to the constitutionality of OCGA §
49-5-183.1, or a challenge to it "as applied." In United States v....
...To determine that a large fraction of the cases under the statute will implicate a protected interest, we need not find that a large portion will share Jackson's specific situation of acquittal on criminal charges that formed the basis of the proceeding under OCGA §
49-5-183.1....
...2094, 2108-2110,
53 L.Ed.2d 14 (1977); Blackburn, supra. Parents have interests in the care, custody, companionship, and management of their children. Stanley v. Illinois,
405 U.S. 645, 651,
92 S.Ct. 1208, 1212-1213,
31 L.Ed.2d 551 (1972); Blackburn, supra. A statute such as OCGA §
49-5-183.1 can impact these interests by, among other things, effectively driving a wedge into the family and adversely affecting its integrity....
...The Act as a whole establishes and maintains the CPSIS, and does so for the protection of children. See Ga. L.1990, p. 1772. Barring an accused from compelling the testimony of a child is apparently in furtherance of that goal. However, such a laudable purpose cannot override fundamental constitutional protections. OCGA §
49-5-183.1 provides the procedure by which a person is classified as a child abuser, and is informed of and allowed to challenge that classification. The portion of OCGA §
49-5-183.1 that precludes an accused from compelling a child's testimony in the administrative proceedings is unconstitutional and central to the general scope of the Act; therefore, OCGA §
49-5-183.1 must be struck down in its entirety. Nor is it possible to limit the constitutional infirmity to OCGA §
49-5-183.1....
...OCGA §
49-5-181 requires the Division of Family and Children Services of the Department of Human Resources to establish and maintain a central registry. Those alleged under the Act to be child abusers must be afforded a constitutional procedure by which they can challenge their classification. OCGA §
49-5-183.1 is the only portion of the Act that provides the person so accused with any recourse....
...FLETCHER, Presiding Justice, specially concurring. Because the child abuse registry statute limits the right of persons placed on the list to appeal their classification, I agree that it violates due process and, therefore, is unconstitutional. 1. OCGA §
49-5-183.1 governs challenges by persons who are deemed to be "an alleged child abuser" under the act establishing the central child abuse registry....
...[9] The ALJ must determine whether there was sufficient credible evidence to justify the investigator's classification of the alleged abuse as confirmed or unconfirmed. [10] The ALJ's decision constitutes the final administrative decision and may be appealed to the superior court. OCGA §
49-5-183.1 specifically provides: "The decision of the superior court under this subsection shall not be subject to further appeal or review." Although the plain language of the statute suggests that no appeal of the superior court decision may be taken in any case involving the abuse registry, this court must give a narrowing construction to statutes whenever possible to save the statute from a constitutional challenge. [11] Interpreting OCGA §
49-5-183.1 narrowly, I would construe it to mean that the superior court's decision is final only on the issue of the person's classification on the child abuse registry as confirmed or unconfirmed....
...ated the report will provide the basis for confirming it." [23] Based on these flaws, I conclude that the statute provides inadequate procedural safeguards and thus fails to ensure against the risk of wrongful placement on the registry. Because OCGA §
49-5-183.1 limits the right of individuals to challenge a finding of confirmed or unconfirmed child abuse that is based on a flawed procedure, I agree that the statute denies due process in violation of the Federal Constitution....
...Despite requirements of confidentiality, see OCGA §
49-5-186, there is the clear potential for impairment of employment opportunities for those who are, or would attempt to be, employed by abuse investigators and others with registry access. [6] The superior court also found unconstitutional the final sentence of OCGA §
49-5-183.1(g) ("[t]he decision of the superior court under this subsection shall not be subject to further appeal or review") as violative of Ga....
...II, which sets forth the exclusive appellate jurisdiction of this Court, including "all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question." Although we need not address this ruling, we note that to the extent that OCGA §
49-5-183.1(g) can be construed to forbid a party from appealing to this Court a decision on the constitutionality of the statute itself, it would violate Ga....
...ncy relied on its employees' recitation of what the three-year-old child stated without producing the victim, any independent corroborative evidence, or any recording or transcript of the victim's statement). [19] See id. 641 A.2d at 1152. [20] OCGA §
49-5-183(b)(3)....
CopyCited 15 times | Published | Supreme Court of Georgia | Jun 18, 2018
...The Act requires that DFCS investigate
reports of child abuse and, if the abuse investigator finds by a preponderance
of the evidence that an act of child abuse occurred, information must be
added to the registry about the abuse, the abuser, the child victim, and the
child’s guardian. See OCGA §§
49-5-182,
49-5-183....
...tion regarding
substantiated cases of abuse; responding to inquiries from individuals seeking
to find out whether the individual’s own name is included in the registry; and
meeting federal funding requirements. See OCGA §
49-5-185.
OCGA §
49-5-183 requires that DFCS must notify an alleged abuser
when his or her name is added to the registry. See OCGA §
49-5-183 (a).
The alleged abuser may then request an evidentiary hearing before an
administrative law judge (“ALJ”) by submitting a written request for a
hearing to DFCS within ten days after receiving the notice....
...The ALJ makes the final “administrative determination regarding
whether, based on a preponderance of evidence, there was child abuse
committed by the alleged child abuser to justify the investigator’s
determination of a substantiated case.” OCGA §
49-5-183 (d). If not, the
ALJ must order the alleged abuser’s name removed from the registry.
OCGA §
49-5-183 (e). Either party may seek judicial review of the ALJ’s
decision by filing a petition in the superior court of the county in which the
administrative hearing was held. OCGA §
49-5-183 (f)....
...e very serious
concerns regarding the constitutionality of the statute if the State were to assert that a
person included in the registry could not raise a constitutional challenge to the Act after
expiration of the ten-day period set out under OCGA §
49-5-183 (a) and (c) if a
cognizable constitutional interest subsequently developed.
11
These other jurisdictions have reached differing conclusions about precisely what
kind of factual showing is required for an effect on employment to meet the “plus”
element of the stigma-plus test....
...without violating
due process fairness principles). Instead, the alleged abuser has the right to
request a hearing before an ALJ, who makes the final agency decision after
hearing evidence and argument from the alleged abuser and from DFCS.
OCGA §
49-5-183 (d)....
CopyCited 15 times | Published | Supreme Court of Georgia | Jun 18, 2018
...The Act requires that DFCS investigate reports of child abuse and, if the abuse investigator finds by a preponderance of the evidence that an act of child abuse occurred, information must be added to the registry about the abuse, the abuser, the child victim, and the child's guardian. See OCGA §§
49-5-182,
49-5-183....
...cal information regarding substantiated cases of abuse; responding to inquiries from individuals seeking to find out whether the individual's own name is included in the registry; and meeting federal funding requirements. See OCGA §
49-5-185.
OCGA §
49-5-183 requires that DFCS must notify an alleged abuser when his or her name is added to the registry. See OCGA §
49-5-183 (a). The alleged abuser may then request an evidentiary hearing before an administrative law judge ("ALJ") by submitting a written request for a hearing to DFCS within ten days after receiving the notice. See OCGA §
49-5-183 (a) & (c). The general public is excluded from the administrative hearing, and the associated records are kept under seal. See OCGA §
49-5-183 (e). The ALJ makes the final "administrative determination regarding whether, based on a preponderance of evidence, there was child abuse committed by the alleged child abuser to justify the investigator's determination of a substantiated case." OCGA §
49-5-183 (d). If not, the ALJ must order the alleged abuser's name removed from the registry. OCGA §
49-5-183 (e). Either party may seek judicial review of the ALJ's decision by filing a petition in the superior court of the county in which the administrative hearing was held. OCGA §
49-5-183 (f)....
...ion without violating due process fairness principles). Instead, the alleged abuser has the right to request a hearing before an ALJ, who makes the final agency decision after hearing evidence and argument from the alleged abuser and from DFCS. OCGA §
49-5-183 (d)....
...e very serious concerns regarding the constitutionality of the statute if the State were to assert that a person included in the registry could not raise a constitutional challenge to the Act after expiration of the ten-day period set out under OCGA §
49-5-183 (a) & (c) if a cognizable constitutional interest subsequently developed.
These other jurisdictions have reached differing conclusions about precisely what kind of factual showing is required for an effect on employment to meet the "plus" element of the stigma-plus test....
CopyCited 13 times | Published | Supreme Court of Georgia | Sep 10, 2018 | 304 Ga. 425
...DFCS then mailed to each of the plaintiffs two to four separate notices "regarding the substantiated case" as to individual children, informing the plaintiff of his or her right to a hearing to appeal the determination and the procedure for obtaining a hearing. OCGA §
49-5-183 (a).2 The notices identified each allegedly neglected child only by initials and a number in parentheses that might indicate age....
...In most of the notices, the alleged neglect was said to have occurred during the broad time frame of October 2016 through *23February 2017; two notices said nothing at all about when the alleged neglect occurred. **427Following the procedure to initiate administrative review set forth in OCGA §
49-5-183 (c), each appellee filed a written request for a hearing within ten days of receipt of his or her notices.3 **428The administrative law judge (ALJ) consolidated the cases and scheduled *24them for a single hearing on September 29, 2017....
...ted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review ...."). Each of the plaintiffs initiated the administrative review process made available by OCGA §
49-5-183 by requesting a hearing before an ALJ, and at least some of them apparently raised their constitutional challenges to the Registry statutes and rules in their administrative filings. But the plaintiffs then truncated that process by filing suit in superior court before the **432ALJ - or a superior or appellate court later in the process provided by §
49-5-183 and the APA - had the chance to consider their arguments to decide whether relief should be granted.
The plaintiffs contend that they were not required to exhaust their available administrative remedies because their constitutional challenges to the Registry statutes are entirely facial rather than as-applied....
...tiated cases." Id. (a) & (b). Access to the Registry is limited to certain groups, including "abuse investigator[s]," government agencies that license entities that have interactions with children, and "licensing entit[ies]." OCGA §
49-5-185.
OCGA §
49-5-183 (a) says:
Upon receipt of an investigator's report of a substantiated case pursuant to Code Section
49-5-182 naming an alleged child abuser, the division [i.e., DFCS]:
(1) Shall include in the child abuse registry the name of the alleged...
...The notice shall further inform such alleged child abuser of the procedures for obtaining the hearing and that an opportunity shall be afforded all parties to be represented by legal counsel and to respond and present evidence on all issues involved.
OCGA §
49-5-183 (c) says:
In order to exercise such right to a hearing, the alleged child abuser shall file a written request for a hearing with the division within ten days after receipt of such notice....
...ing.
The process for the administrative hearing and for judicial review of the agency's decision, both of which are generally governed by the Georgia Administrative Procedure Act (APA), OCGA §§
50-13-1 to
50-13-44, is specified in the rest of OCGA §
49-5-183, which says:
(d) If the division receives a timely written request for a hearing under subsection (c) of this Code section, it shall transmit that request to the Office of State Administrative Hearings within ten days after such receipt....
CopyPublished | Supreme Court of Georgia | Sep 10, 2018
...Access to the
Registry is limited to certain groups, including “abuse investigator[s],” government agencies that
license entities that have interactions with children, and “licensing entit[ies].” OCGA §
49-5-185.
2
procedure for obtaining a hearing. OCGA §
49-5-183 (a).2 The notices
identified each allegedly neglected child only by initials and a number in
parentheses that might indicate age....
...In most of the notices, the alleged neglect
was said to have occurred during the broad time frame of October 2016 through
February 2017; two notices said nothing at all about when the alleged neglect
occurred.
Following the procedure to initiate administrative review set forth in
OCGA §
49-5-183 (c), each appellee filed a written request for a hearing within
ten days of receipt of his or her notices.3 The administrative law judge (ALJ)
2
OCGA §
49-5-183 (a) says:
Upon receipt of an investigator’s report of a substantiated case pursuant to
Code Section
49-5-182 naming an alleged child abuser, the division [i.e., DFCS]:
(1) Shall include in the child abu...
...The notice shall
further inform such alleged child abuser of the procedures for obtaining the hearing
and that an opportunity shall be afforded all parties to be represented by legal counsel
and to respond and present evidence on all issues involved.
3
OCGA §
49-5-183 (c) says:
In order to exercise such right to a hearing, the alleged child abuser shall file
a written request for a hearing with the division within ten days after receipt of such
notice....
... be notified of the hearing.
The process for the administrative hearing and for judicial review of the agency’s decision, both of
which are generally governed by the Georgia Administrative Procedure Act (APA), OCGA §§ 50-
13-1 to
50-13-44, is specified in the rest of OCGA §
49-5-183, which says:
(d) If the division receives a timely written request for a hearing under
subsection (c) of this Code section, it shall transmit that request to the Office of State
Administrative Hearings within ten days after such receipt....
...all administrative remedies available within the agency and who is aggrieved by
a final decision in a contested case is entitled to judicial review . . . .”). Each of
the plaintiffs initiated the administrative review process made available by
OCGA §
49-5-183 by requesting a hearing before an ALJ, and at least some of
them apparently raised their constitutional challenges to the Registry statutes
and rules in their administrative filings. But the plaintiffs then truncated that
process by filing suit in superior court before the ALJ — or a superior or
appellate court later in the process provided by OCGA §
49-5-183 and the APA
— had the chance to consider their arguments to decide whether relief should
be granted.
The plaintiffs contend that they were not required to exhaust their
available administrative remedies because their constitut...
...administrative proceedings,
and we express no opinion as to whether those proceedings can be reopened or reinitiated at this
point.
18
Decided September 10, 2018.
OCGA §
49-5-183; constitutional question....
