TITLE 49 SOCIAL SERVICES

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

ARTICLE 2 CHILD ABUSE RECORDS

49-5-40. Definitions; confidentiality of records; restricted access to records.

As used in this article, the term:
1. "Abused" means subjected to child abuse.
2. "Child" means an individual under 18 years of age.
3. "Child abuse" means:
  1. Physical injury or death inflicted upon a child by a parent, guardian, legal custodian, or caretaker thereof by other than accidental means; provided, however, that physical forms of discipline may be used as long as there is no physical injury to the child;
  2. Neglect or exploitation of a child by a parent, guardian, legal custodian, or caretaker thereof;
  3. Sexual abuse of a child;
  4. Sexual exploitation of a child; or
  5. Emotional abuse of a child.
    However, no child who in good faith is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to be abused.
4. "Child advocacy center" means an entity which is operated for the purposes of investigating known or suspected child abuse and treating a child or a family that is the subject of a report of child abuse and which:
  1. Has been created and supported through one or more intracommunity compacts between such center and:
    1. One or more law enforcement agencies within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation;
    2. The office of the district attorney, Attorney General, or United States Attorney;
    3. A legally mandated public or private child protective agency within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation;
    4. A mental health board within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation; or
    5. A community health service board within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation; and
  2. Has been approved by a protocol committee established under Chapter 15 of Title 19.
5. "Court" means a judge of any court of record or an administrative law judge of the Office of State Administrative Hearings.
6. "Emotional abuse" shall have the same meaning as set forth in Code Section 15-11-2.
7. "Legal custodian" shall have the same meaning as set forth in Code Section 15-11-2.
8. "Near fatality" means an act that places a child in serious or critical condition as certified by a physician.
9. "Record" shall include documents, books, maps, drawings, computer based or generated information, data, data fields, digital images, photographs, video images, audio recordings, and video recordings.
10. "Sexual abuse" means an individual's employing, using, persuading, inducing, enticing, or coercing any child who is not that individual's spouse to engage in any act which involves:
  1. Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between individuals of the same or opposite sex;
  2. Bestiality;
  3. Masturbation;
  4. Lewd exhibition of the genitals or pubic area of any individual;
  5. Flagellation or torture by or upon an individual who is nude;
  6. Condition of being fettered, bound, or otherwise physically restrained on the part of an individual who is nude;
  7. Physical contact in an act of apparent sexual stimulation or gratification with any individual's clothed or unclothed genitals, pubic area, or buttocks or with a female's clothed or unclothed breasts;
  8. Defecation or urination for the purpose of sexual stimulation; or
  9. Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.
11. "Sexual exploitation" means conduct by any individual who allows, permits, encourages, or requires any child to engage in:
  1. Trafficking of persons for labor or sexual servitude, in violation of Code Section 16-5-46;
  2. Prostitution, in violation of Code Section 16-6-9;
  3. Obscene depiction of a minor, in violation of Code Section 16-11-40.1;
  4. Nude or sexually explicit electronic transmission, in violation of Code Section 16-11-90; or
  5. Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, in violation of Code Section 16-12-100.
Each and every record concerning reports of child abuse and child controlled substance or marijuana abuse which is in the custody of the department, other state or local agency, or child advocacy center is declared to be confidential, and access thereto is prohibited except as provided in Code Sections 49-5-41 and 49-5-41.1.
Each and every record concerning child abuse or neglect which is received by the department from the child abuse and neglect registry of any other state shall not be disclosed or used outside the department for any other purpose other than conducting background checks to be used in foster care and adoptive placements.

(Ga. L. 1975, p. 1135, § 1; Ga. L. 1987, p. 1000, § 2; Ga. L. 1990, p. 1778, § 1; Ga. L. 1993, p. 1712, § 1; Ga. L. 2007, p. 478, § 7/SB 128; Ga. L. 2009, p. 43, § 1/SB 79; Ga. L. 2009, p. 733, § 3/SB 69; Ga. L. 2016, p. 160, § 2/HB 725; Ga. L. 2017, p. 774, § 49/HB 323.)

The 2016 amendment, effective July 1, 2016, rewrote this Code section.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation throughout subparagraph (a)(4)(A).

Cross references.

- Persons required to report instances of child abuse, § 19-7-5.

Battery, assault and stalking involving family members, § 19-13-1 et seq.

Editor's notes.

- Ga. L. 2016, p. 160, § 1/HB 725, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Child Abuse Records Protection Act.'"

Law reviews.

- For article, "Georgia's Open Records and Open Meetings Laws: A Continued March Toward Government in the Sunshine," see 40 Mercer L. Rev. 1 (1988). For article, "Practical Challenges to Representing Unaccompanied Children Before the Atlanta Immigration Court," see 22 Ga. St. Bar J. 35 (April 2017).

JUDICIAL DECISIONS

Discovery of "scientific records."

- Former O.C.G.A. § 17-7-211 did not provide an independent statutory basis for discovery of "scientific records" of child abuse maintained by institutions listed in O.C.G.A. § 49-5-40. In the absence of obtaining a statutory exception by compliance with O.C.G.A. § 49-5-41 or O.C.G.A. § 49-5-41.1, as applicable, such child abuse records remain protected. Horne v. State, 192 Ga. App. 528, 385 S.E.2d 704 (1989), cert. denied, 494 U.S. 1006, 110 S. Ct. 1302, 108 L. Ed. 2d 749 (1990).

Failure to provide county child abuse records.

- Trial court erred by failing to provide the defendant with the county child abuse documents the defendant requested during the defendant's trial for child molestation, but the defendant was not denied due process since the defendant failed to show that the trial court withheld any material, exculpatory information. Dodd v. State, 293 Ga. App. 816, 668 S.E.2d 311 (2008).

Oral allegation of child abuse to Department of Family and Children Services was publication for purposes of slander claim.

- Although under O.C.G.A. § 49-5-40(b), reports made to the Department of Family and Children Services (DFACS) are confidential, the law of defamation requires only that the statement be disseminated to any person other than the person slandered. Therefore, a landlord's oral allegations to a DFACS employee that a tenant committed child abuse amounted to "publication" for purposes of O.C.G.A. § 51-5-4. Brown v. Rader, 299 Ga. App. 606, 683 S.E.2d 16 (2009).

Criminal defendant not entitled to MySpace.com and school records.

- Trial court did not abuse the court's discretion in denying the defendant access to the incest victim's MySpace.com and school records because the defendant failed to show both the materiality and the favorable nature of the evidence sought. Stephens v. State, 305 Ga. App. 339, 699 S.E.2d 558 (2010).

Burden on defendant to show need for release of records.

- Trial court did not err by failing to release documents showing earlier child abuse from a child's file which might have been critical to a defendant's case since the burden was on the defendant to show what documents in a child's sealed file were suppressed and how it was materially exculpatory and the defendant failed to make the showing. Dunagan v. State, 255 Ga. App. 309, 565 S.E.2d 526 (2002).

Cited in Ray v. Department of Human Resources, 155 Ga. App. 81, 270 S.E.2d 303 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Release of records to Department of Education hearing officers.

- Those portions of child protective service records releasable to parents and guardians under Social Services County Letter No. 86-1 promulgated pursuant to federal court order in J.J. v. Ledbetter, C.A. No. CV180-84, U.S.D.C., S.D. Ga. (1985), may likewise be released to Department of Education hearing officers conducting hearings under the Education of All Handicapped Act, 20 U.S.C. § 1401 et seq., if, and only if, (1) the parents specifically request in writing that the Department of Human Resources forward the records to the hearing officer, or (2) the Department of Human Resources receives a written request for the records from the hearing officer personally and is subsequently able to secure the written permission of the parents to forward the records to the hearing officer. 1987 Op. Att'y Gen. No. 87-25.

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of statute limiting physician-patient privilege in judicial proceedings relating to child abuse or neglect, 44 A.L.R.4th 649.

Denial or restriction of visitation rights to parent charged with sexually abusing child, 1 A.L.R.5th 776.

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