TITLE 49 SOCIAL SERVICES

Section 5. Programs and Protection for Children and Youth, 49-5-1 through 49-5-281.

ARTICLE 8 CENTRAL CHILD ABUSE REGISTRY

49-5-183. Division to update registry upon notification of substantiated case; notice to alleged abuser; representation of alleged minor child abuser; hearing on expungement of name from registry.

1. 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:
   1. Shall include in the child abuse registry the name of the alleged child abuser, the classification of the abuse as provided in paragraph (4) of Code Section 49-5-182, and a copy of the investigator's report; and
   2. Shall mail to such alleged child abuser in such report a notice regarding the substantiated case via certified mail, return receipt requested. It shall be a rebuttable presumption that any such notice has been received if the return receipt has been received by the division. The notice shall further inform such alleged child abuser of his or her right to a hearing to appeal such determination. 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.
2. Any alleged child abuser who has not attained the age of majority set forth by Code Section 39-1-1 at the time of the hearing requested pursuant to subsection (d) of this Code section shall be entitled to representation at the hearing either by the alleged child abuser's parent or other legal guardian or by an attorney employed by such parent or guardian. In the event the administrative law judge conducting the hearing determines that any such alleged minor child abuser will not be so represented at the hearing, or that the interests of any such alleged minor child abuser may conflict with the interests of the alleged minor child abuser's parent or other legal guardian, the administrative law judge shall order the division to apply to the superior court of the county in which the alleged act of child abuse was committed to have counsel appointed for the alleged minor child abuser. Payment for any such court appointed representation shall be made by such county.
3. 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. The written request shall contain the alleged child abuser's current residence address and, if he or she has a telephone, a telephone number at which he or she may be notified of the hearing.
4. 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. Notwithstanding any other provision of law, the Office of State Administrative Hearings shall conduct a hearing upon that request in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," and the rules of the Office of State Administrative Hearings adopted pursuant thereto, except as otherwise provided in this article. The hearing shall be for the purpose of an 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. The Office of State Administrative Hearings shall give notice of the time and place of the hearing to the alleged child abuser by first-class mail to the address specified in the written request for a hearing and to the division by first-class mail at least ten days prior to the date of the hearing. It shall be a rebuttable presumption that any such notice is received five days after deposit in the United States mail with the correct address of the alleged child abuser and the division, respectively, and proper postage affixed. Unless postponed by mutual consent of the parties and the administrative law judge or for good cause shown, such hearing shall be held within 30 business days following receipt by the Office of State Administrative Hearings of the request for a hearing, and a decision shall be rendered within five business days following such hearing. A motion for an expedited hearing may be filed in accordance with rules and regulations promulgated by the Office of State Administrative Hearings. The hearing may be continued as necessary to allow the appointment of counsel. A telephone hearing may be conducted concerning this matter in accordance with standards prescribed in paragraph (5) of Code Section 50-13-15. Upon the request of any party to the proceeding or the assigned administrative law judge, venue may be transferred to any location within this state if all parties and the administrative law judge consent to such a change of venue. Otherwise, the hearing shall be conducted in the county in which the alleged act of child abuse was committed. The doctrines of collateral estoppel and res judicata as applied in judicial proceedings are applicable to the administrative hearings held pursuant to this article.
5. At the conclusion of the hearing under subsection (d) of this Code section, upon a finding that there is not a preponderance of evidence to conclude that the alleged child abuser committed an act of child abuse, the administrative law judge shall order that the alleged child abuser's name be removed from the child abuse registry. The general public shall be excluded from hearings of the Office of State Administrative Hearings held pursuant to this article, and the files and records relating thereto shall be confidential and not subject to public inspection.
6. Notwithstanding any other provision of law, the decision of the administrative law judge under subsection (e) of this Code section shall constitute the final administrative decision. Any party shall have the right of judicial review of such decision in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," except that the petition for review shall be filed within ten days after such decision and may only be filed with and the decision appealed to the superior court of the county where the hearing took place or, if the hearing was conducted by telephone, the Superior Court of Fulton County. The procedures for such appeal shall be substantially the same as those for judicial review of contested cases under Code Section 50-13-19 except that the filing of a petition for judicial review stays the listing of the petitioner's name upon the child abuse registry, and the superior court shall conduct the review and render its decision thereon within 30 days following the filing of the petition. The review and records thereof shall be closed to the public and not subject to public inspection.
7. The administrative law judge shall transmit to the division his or her decision regarding the alleged child abuser and the investigator's report regarding such individual within ten days following that decision unless a petition for judicial review of that decision is filed within the permitted time period. If a timely petition for judicial review is filed within the permitted time period, the superior court shall transmit to the division its decision regarding the alleged child abuser and the investigator's report regarding such individual within ten days following that decision.
8. With regard to a minor child alleged to have committed abuse, the division shall remove such individual's name from the registry if:
   1. He or she has reached 18 years of age;
   2. More than one year has passed from the date of the act or omission that resulted in a substantiated case and there have been no subsequent acts or omissions resulting in a substantiated case; and
   3. He or she can prove by a preponderance of the evidence that he or she has been rehabilitated.

(Code 1981, §49-5-183, enacted by Ga. L. 2015, p. 552, § 11/SB 138; Ga. L. 2016, p. 773, § 8/HB 905; Ga. L. 2016, p. 864, § 49/HB 737.)

The 2016 amendments. The first 2016 amendment, effective July 1, 2016, deleted "subsection (a) of" preceding "Code Section 49-5-182" in the introductory paragraph of subsection (a); deleted "of subsection (a)" preceding "of Code Section 49-5-182" in paragraph (a)(1); substituted "his or her" for "such person's" in the third sentence of paragraph (a)(2); in subsection (c), substituted "child abuser shall" for "child abuser must" in the first sentence, and in the second sentence, substituted "if he or she has" for "the person has", and substituted "which he or she" for "which such person"; in subsection (d), substituted "such hearing" for "that hearing" in the middle of the sixth sentence, and substituted "this state" for "the state" in the middle of the tenth sentence; added a comma following "article" in the last sentence of subsection (e); and added subsection (h). The second 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in the last sentence of subsection (e).