Georgia’s New Child Abuse Registry

November 5, 2016

On July 1, 2016, Georgia’s new child abuse registry took effect.  Georgia had a prior child abuse registry, which was known as the Child Protective Services Information System (CPSIS), but it was successfully challenged on constitutional grounds and the statutes pertaining to the old registry were later repealed.

The new child abuse registry presents some significant concerns.  Under the laws pertaining to the new registry, a child protective services (CPS) investigator who determines that there is a “substantiated” case of child abuse or neglect is supposed to notify DFCS within 30 days of making the substantiation determination of the identity of the alleged abuser and the category of the alleged abuse.  Upon receipt by DFCS of the CPS investigator’s report that a case is substantiated, the alleged abuser’s name is automatically entered on the child abuse registry.  Without a hearing.  Note that children as young as 13 can be entered on the child abuse registry as child abusers.

When DFCS receives the notification of the substantiated case, it is supposed to send written notice to the alleged abuser by certified mail and give the alleged abuser notice: (1) of his or her right to a hearing before an administrative law judge (ALJ) to appeal the substantiation determination, (2) of how to obtain such a hearing, and (3) that he or she has a right to be represented by counsel (at his or her own expense).  If the alleged abuser is under 18, he or she is entitled to be represented by his or her parent, legal guardian, private attorney, or, in certain circumstances, by a court-appointed attorney.

Although the alleged abuser is entitled to a hearing if he or she timely requests one in writing, the time frame for doing so is very tight, which is exacerbated by the fact that notice is given by certified mail, and the ability to timely request a hearing hinges on whether DFCS gives the alleged abuser the notification in a timely fashion (if at all).  It is entirely possible that a person is on this registry already without knowing it.

To check if you are on the registry, visit https://gacar.dhs.ga.gov/General/Home and click on “Screening Request”.

Note that because the child abuse registry records are not open to the public, there are misdemeanor penalties for knowingly providing any information from the registry to an unauthorized person or knowingly and under false pretenses obtaining or attempting to obtain information from the registry.

Assuming the alleged abuser gets timely notice from DFCS that he or she has been added to the registry, to obtain a hearing on the substantiation determination, within 10 days of receiving notice of the determination the alleged abuser must file with DFCS a written request for a hearing.  DFCS is then supposed to send the hearing request to the Office of State Administrative hearings (OSAH) within 10 days. The hearing can take place as quickly as 10 days after OSAH sends the alleged abuser written notice (by first class mail) of the hearing date and time.  The hearing can be postponed by mutual consent of the parties and the ALJ or for good cause, including for appointment of counsel for those alleged abusers under 18 whose circumstances qualify them for same.

The OSAH hearing before the ALJ is a full evidentiary hearing.  At the hearing, the ALJ determines whether there is a preponderance of evidence (think 51%) to conclude that the alleged abuser committed an act of child abuse.  If the ALJ finds that the evidence does not meet this standard, an order will be issued to remove the alleged abuser’s name from the registry.

The ALJ’s determination can be appealed to the superior court in the county where the hearing took place (or Fulton County if the hearing was by phone), but the request to appeal it must be filed within 10 days.  There are further levels of appeal.

Minor children listed on the registry are automatically removed when they reach 18.  For a minor to have his or her name removed before he or she turns 18, he or she can request removal either on grounds that more than one year has passed from the date of the incident that resulted in the substantiated case and he or she has not had any further substantiated cases, or by showing by a preponderance of the evidence that he or she has been rehabilitated.  The only way for an adult (over 18 for purposes of the registry) to get his or her name removed from the registry – absent successful due process or other constitutional challenges in court – is to show mistaken identity at an OSAH hearing.

It is critical that persons targeted in an ongoing CPS investigation be aware of this new law and take pro-active information to monitor the CPS investigation to be aware when the substantiation determinations is about to be made and take swift action to protect their interests if the case is substantiated.  All of these events take place before the first child welfare (dependency) hearing takes place in juvenile court.  NOTE that there is no right to court appointed counsel at this stage.

The Department of Family & Children Services (DFCS) just took my children. Now what?

November 5, 2016

Under current Georgia law, parents facing allegations of abuse or neglect of their children and who are income-eligible are entitled to an appointed attorney to defend and represent them in all court proceedings that take place in the relevant juvenile court.  They are entitled to an appointed attorney because of due process protections involving their constitutional “liberty interest” in raising their children without state interference.  Birth moms, biological fathers (also called “putative fathers”), as well as “legal fathers” (who were married to the birth mom at the time of the child’s birth or have taken formal steps to make the relationship with their child legally recognized by the law), and other legal custodians are all entitled to the services of an appointed attorney if they qualify under income guidelines.

These court-involved DFCS cases are typically referred to as “child welfare” or “dependency” proceedings.  To obtain the services of an appointed attorney in a court-involved DFCS proceeding, parents/guardians should either request one on their own, or inquire with the juvenile court how to request or apply for one.  It is important that income-eligible parents/guardians have an appointed attorney at ALL stages of a juvenile court child welfare proceeding, even at what is currently referred to as the “probable hearing”, “preliminary protective hearing” or “72 hour hearing” to protect their interests.  DFCS will have an attorney at all stages of the proceeding, and the child or children in question will also have either a “Child Advocate Attorney” who serves two roles (attorney and GAL), a client-directed child attorney plus either a “Guardian ad litem” (GAL) or a “Court Appointed Special Advocate” (CASA) to represent their best interests at all court proceedings.  Having a parent attorney at all stages of the proceeding helps keep the playing field more level.  In many metro counties in Georgia, each parent will be appointed a separate attorney, even if the parents are married to each other, living together and raising the child in question together.

The 72-hour hearing is the first hearing in a new child welfare proceeding and it’s at this time that the court determines whether there is probable cause (or reasonable grounds) to believe that there may be problems with the family or in the home that might make the child unsafe to himself or others if he returns home. The court also makes a determination of whether returning the child to the home would be contrary to the child’s welfare and whether DFCS made reasonable efforts to prevent the child’s removal in the first place.  If DFCS meets its burden of showing probable cause at the 72-hour hearing, the child will remain in foster care until a full evidentiary hearing can be held, which is required by statute to take place within 10 or 60 days of the dependency petition being filed, depending on whether the child has been removed from the home and placed in foster care or is not in foster care.  Often, these evidentiary hearings do not take place that quickly, and there are advantages and disadvantages to “waiving time limits” for them.

[Original post under old juvenile code; updated for new juvenile code which took effect January 1, 2014]