§ 49-5-183.1 - Notice to alleged child abuser of classification; procedures; notification to division; children under 14 years of age not required to testify - Georgia Statutes

O.C.G.A. 49-5-183.1 (2010)
49-5-183.1. Notice to alleged child abuser of classification; procedures; notification to division; children under 14 years of age not required to testify

(a) If a DFACS office, pursuant to Code Section 49-5-183, receives an abuse investigator's report naming a person as having committed an act of child abuse classified as "confirmed" or "unconfirmed" in the report and such person was at least 13 years of age at the time of the commission of such act, the person so named shall be deemed to be an alleged child abuser for purposes of this article.

(b) When a DFACS office receives an investigator's report pursuant to subsection (a) of this Code section naming an alleged child abuser, that office shall mail to each alleged child abuser so classified in such report a notice regarding such classification. It shall be a rebuttable presumption that any such notice is received five days after deposit in the United States mail with the current address of the alleged child abuser and proper postage affixed. The notice of classification shall further inform such alleged child abuser of such person's right to a hearing to appeal such classification. The notice of classification 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.

(c) 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 (e) of this Code section who is alleged to have committed an act of child abuse 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 DFACS office which transmitted the hearing request to apply to the superior court of the county in which such DFACS office is located to have counsel appointed for the alleged minor child abuser. Payment for any such court appointed representation shall be made by the county in which such DFACS office is located.

(d) In order to exercise such right to a hearing, the alleged child abuser must file a written request for a hearing with the DFACS office which mailed the notice of classification within ten days after receipt of such notice. The written request shall contain the alleged child abuser's current residence address and, if the person has a telephone, a telephone number at which such person may be notified of the hearing.

(e) A DFACS office which receives a timely written request for a hearing under subsection (d) of this Code section 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 there was sufficient credible evidence of child abuse by the alleged child abuser to justify the investigator's classification of such abuse as "confirmed" or "unconfirmed." 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 DFACS office 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 DFACS office, respectively, and proper postage affixed. Unless postponed by mutual consent of the parties and the administrative law judge or for good cause shown, that 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 the 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 of the DFACS office which transmitted the hearing request to the Office of State Administrative Hearings. The doctrines of collateral estoppel and res judicata as applied in judicial proceedings are applicable to the administrative hearings held pursuant to this article.

(f) At the conclusion of the hearing under subsection (e) of this Code section, the administrative law judge shall order that the alleged child abuser's name not be included in the abuse registry upon a finding that there is no credible evidence that such individual committed the child abuse alleged; otherwise, the administrative law judge shall order listing of the alleged child abuser's name on the abuse registry as confirmed if there is equal or greater credible evidence that such individual committed the child abuse alleged than such individual did not commit the child abuse alleged or as unconfirmed if there is some credible evidence that the alleged child abuser committed the alleged child abuse but not enough credible evidence to classify the individual as confirmed. 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.

(g) Notwithstanding any other provision of law, the decision of the administrative law judge under subsection (f) 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, 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 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. The decision of the superior court under this subsection shall not be subject to further appeal or review.

(h) The DFACS office which notifies a person of that person's classification as an alleged child abuser and of that person's right to a hearing regarding that classification shall transmit to the division the investigator's report so naming such person unless that office receives a written request for such hearing within the time for making such request under subsection (d) of this Code section. If a timely request for hearing is received, the administrative law judge shall transmit to the division his or her decision regarding the classification of 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 classification of the alleged child abuser and the investigator's report regarding such individual within ten days following that decision.

(i) No child under the age of 14 shall be compelled to appear to testify at any hearing held pursuant to this Code section. If a child under the age of 14 testifies voluntarily, such testimony shall be given in compliance with procedures analogous to those contained in Code Section 17-8-55. Nothing in this article shall prohibit introducing a child's statement in a hearing held pursuant to this Code section if the statement meets the criteria of Code Section 24-3-16.