HB 1725 - Child abuse registry; amend provisions
Georgia House of Representatives - 1995/1996 Sessions
HB 1725 - Child abuse registry; amend provisions
Page Numbers - 1/ 2/ 3/ 4/ 5/ 6/ 7/ 8/ 9/ 10/ 11
1. Martin 47th
House Comm: Judy / Senate Comm: /
House Vote: Yeas Nays Senate Vote: Yeas Nays
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House Action Senate
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2/15/96 Read 1st Time
2/19/96 Read 2nd Time
2/21/96 Favorably Reported
Sub Committee Amend/Sub
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Code Sections amended: 49-5-180, 49-5-183.1, 49-5-184
HB 1725 LC 22 2240S
_________________________ offers the following
substitute to HB 1725:
A BILL TO BE ENTITLED
AN ACT
1- 1 To amend Article 8 of Chapter 5 of Title 49 of the Official
1- 2 Code of Georgia Annotated, relating to the child abuse
1- 3 registry, so as to change the provisions relating to
1- 4 definitions; to change the provisions regarding whose names
1- 5 may be included in such registry and regarding notice and
1- 6 hearing for inclusion of names upon or expungement of names
1- 7 from such registry; to change the provisions relating to
1- 8 appeals; to provide an effective date; to repeal conflicting
1- 9 laws; and for other purposes.
1-10 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
1-11 Article 8 of Chapter 5 of Title 49 of the Official Code of
1-12 Georgia Annotated, relating to the child abuse registry, is
1-13 amended by striking Code Section 49-5-180, relating to
1-14 definitions, and inserting in its place the following:
1-15 "49-5-180. (Index)
1-16 As used in this article, the term:
1-17 (1) 'Abuse investigator' means the department, any local
1-18 department of family and children services, law
1-19 enforcement agency, or district attorney or designee
1-20 thereof.
1-21 (2) 'Abuse registry' means the Child Protective Services
1-22 Information System required to be established by Code
1-23 Section 49-5-181.
1-24 (3) 'Abused' means subjected to child abuse.
1-25 (3.1) 'Administrative law judge' means the person who
1-26 conducts a hearing for the Office of State
1-27 Administrative Hearings pursuant to this article.
1-28 (3.1)(3.2) 'Alleged child abuser' means a person deemed
1-29 to be an alleged child abuser pursuant to Code Section
1-30 49-5-183.1.
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LC 22 2240S
2- 1 (4) 'Child' means any person under 18 years of age.
2- 2 (5) 'Child abuse' means:
2- 3 (A) Physical injury or death inflicted upon a child by
2- 4 a parent or caretaker thereof by other than accidental
2- 5 means, and this shall be deemed to be physical abuse
2- 6 for purposes of the classification required by
2- 7 paragraph (4) of subsection (c) (b) of Code Section
2- 8 49-5-183; provided, however, physical forms of
2- 9 discipline may be used as long as there is no physical
2-10 injury to the child;
2-11 (B) Neglect or exploitation of a child by a parent or
2-12 caretaker thereof if said neglect or exploitation
2-13 consists of a lack of supervision, abandonment, or
2-14 intentional or unintentional disregard by a parent or
2-15 caretaker of a child's basic needs for food, shelter,
2-16 medical care, or education as evidenced by repeated
2-17 incidents or a single incident which places the child
2-18 at substantial risk of harm, and this shall be deemed
2-19 to be child neglect for purposes of the classification
2-20 required by paragraph (4) of subsection (c) (b) of
2-21 Code Section 49-5-183; and
2-22 (C) Sexual assault abuse of a child, and this shall be
2-23 deemed to be sexual abuse for purposes of the
2-24 classification required by paragraph (4) of subsection
2-25 (c) (b) of Code Section 49-5-183;. (D) Sexual exploitation of a child, and this shall be
2-27 deemed to be sexual abuse for purposes of the
2-28 classification required by paragraph (4) of subsection
2-29 (c) of Code Section 49-5-183; and
2-30 (E) However, no No child who in good faith is being
2-31 treated solely by spiritual means through prayer in
2-32 accordance with the tenets and practices of a recognized
2-33 church or religious denomination by a duly accredited
2-34 practitioner thereof shall, for that reason alone, be
2-35 considered to be an 'abused' child.
2-36 (6) 'Confirmed' means that an investigation by an abuse
2-37 investigator has revealed that there is equal or greater
2-38 credible evidence that child abuse occurred than the
2-39 credible evidence that child abuse did not occur.
2-40 (6.1) 'DFACS office' means the principal office of a
2-41 county department of family and children services.
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LC 22 2240S
3- 1 (7) 'Division' means the Division of Family and Children
3- 2 Services of the Department of Human Resources. (7.1) 'Hearing office' means the Office of State
3- 4 Administrative Hearings created under Code Section
3- 5 50-13-40.
3- 6 (8) 'Out-of-state abuse investigator' means a public
3- 7 child protective agency or law enforcement agency of any
3- 8 other state bound by confidentiality requirements as to
3- 9 information obtained under this article which are
3-10 similar to those provided in this article.
3-11 (8.1) 'Sexual abuse' means a person's employing, using,
3-12 persuading, inducing, enticing, or coercing any minor
3-13 who is not that person's spouse to engage in any act
3-14 which involves:
3-15 (A) Sexual intercourse, including genital-genital,
3-16 oral-genital, anal-genital, or oral-anal, whether
3-17 between persons of the same or opposite sex;
3-18 (B) Bestiality;
3-19 (C) Masturbation;
3-20 (D) Lewd exhibition of the genitals or pubic area of
3-21 any person;
3-22 (E) Flagellation or torture by or upon a person who is
3-23 nude;
3-24 (F) Condition of being fettered, bound, or otherwise
3-25 physically restrained on the part of a person who is
3-26 nude;
3-27 (G) Physical contact in an act of apparent sexual
3-28 stimulation or gratification with any person's clothed
3-29 or unclothed genitals, pubic area, or buttocks or with
3-30 a female's clothed or unclothed breasts;
3-31 (H) Defecation or urination for the purpose of sexual
3-32 stimulation; or
3-33 (I) Penetration of the vagina or rectum by any object
3-34 except when done as part of a recognized medical
3-35 procedure.; or
3-36 (J) Sexual exploitation.
3-37 'Sexual abuse' shall not include consensual sex acts
3-38 involving persons of the opposite sex when the sex acts
3-39 are between minors or between a minor and an adult who
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LC 22 2240S
4- 1 is not more than five years older than the minor. This
4- 2 provision shall not be deemed or construed to repeal any
4- 3 law concerning the age or capacity to consent.
4- 4 (9) 'Sexual exploitation' means conduct by a child's
4- 5 parent or caretaker person who allows, permits,
4- 6 encourages, or requires that a child to engage in:
4- 7 (A) Prostitution, as defined in Code Section 16-6-9;
4- 8 or
4- 9 (B) Sexually explicit conduct for the purpose of
4-10 producing any visual or print medium depicting such
4-11 conduct, as defined in Code Section 16-12-100.
4-12 (10) 'Unconfirmed' means that an investigation by an
4-13 abuse investigator has revealed that there is some
4-14 credible evidence that child abuse occurred but there is
4-15 not sufficient credible evidence to classify that child
4-16 abuse as confirmed.
4-17 (11) Reserved.
4-18 (12) 'Unfounded' means that an investigation by an abuse
4-19 investigator has determined that there is no credible
4-20 evidence that child abuse occurred."
SECTION 2.
4-21 Said article is further amended by striking Code Section
4-22 49-5-183.1, relating to notice to alleged child abusers of
4-23 their classifications, and inserting in its place the
4-24 following:
4-25 "49-5-183.1. (Index)
4-26 (a) If a DFACS office, pursuant to Code Section 49-5-183,
4-27 receives an abuse investigator's report naming a person as
4-28 having committed an act of child abuse classified as
4-29 'confirmed' or 'unconfirmed' in the report and such person
4-30 was at least 13 years of age at the time of the commission
4-31 of such act, the person so named shall be deemed to be an
4-32 alleged child abuser for purposes of this article.
4-33 (b) A When a DFACS office which, pursuant to Code Section
4-34 49-5-183, receives an investigator's report pursuant to
4-35 subsection (a) of this Code section naming an alleged
4-36 child abuser, that office shall mail to each alleged child
4-37 abuser so classified in such report a notice regarding
4-38 such classification. It shall be a rebuttable presumption
4-39 that any such notice is received five days after deposit
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LC 22 2240S
5- 1 in the United States mail with the current address of the
5- 2 alleged child abuser and proper postage affixed. The
5- 3 notice of classification shall further inform such alleged
5- 4 child abuser of such person's right to a hearing and to
5- 5 appeal such classification. The notice of classification
5- 6 shall further inform such alleged child abuser of the
5- 7 procedures for obtaining the hearing, and that an
5- 8 opportunity shall be afforded all parties to be
5- 9 represented by legal counsel and to respond and present
5-10 evidence on all issues involved.
5-11 (c) Any alleged child abuser who has not attained the age
5-12 of majority set forth by Code Section 39-1-1 at the time
5-13 of the hearing requested pursuant to subsection (e) of
5-14 this Code section who is alleged to have committed an act
5-15 of child abuse shall be entitled to representation at the
5-16 hearing either by the alleged child abuser's parent or
5-17 other legal guardian or by an attorney employed by such
5-18 parent or guardian. In the event the administrative law
5-19 judge conducting the hearing determines that any such
5-20 alleged minor child abuser will not be so represented at
5-21 the hearing, or that the interests of any such alleged
5-22 minor child abuser may conflict with the interests of the
5-23 alleged minor child abuser's parent or other legal
5-24 guardian, the administrative law judge shall order the
5-25 DFACS office which transmitted the hearing request to
5-26 apply to the superior court of the county in which such
5-27 DFACS office is located to have counsel appointed for the
5-28 alleged minor child abuser. Payment for any such court
5-29 appointed representation shall be made by the county in
5-30 which such DFACS office is located. The hearing shall be
5-31 for the purpose of an administrative determination
5-32 regarding whether or not there was sufficient credible
5-33 evidence of child abuse by the alleged child abuser to
5-34 justify the investigator's classification of such abuse as
5-35 'confirmed' or 'unconfirmed.'
5-36 (d) In order to exercise such right to a hearing, the
5-37 alleged child abuser must file a written request for a
5-38 hearing with the DFACS office which mailed the hearing
5-39 notice notice of classification within ten days after
5-40 receipt of such notice. The written request shall contain
5-41 the alleged child abuser's current residence address and,
5-42 if the person has a telephone, a telephone number at which
5-43 such person may be notified of the hearing. It shall be a
5-44 rebuttable presumption that any such notice is received
5-45 five days after deposit in the United States mail.
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LC 22 2240S
6- 1 (c)(e) A DFACS office which receives a timely written
6- 2 request for a hearing under subsection (b) (d) of this
6- 3 Code section shall transmit that request to the hearing
6- 4 office Office of State Administrative Hearings within ten
6- 5 days after such receipt. Notwithstanding any other
6- 6 provision of law, the hearing office the Office of State
6- 7 Administrative Hearings shall conduct a hearing upon that
6- 8 request as provided in this Code section. That in
6- 9 accordance with Chapter 13 of Title 50, the 'Georgia
6-10 Administrative Procedure Act' and the rules of the Office
6-11 of State Administrative Hearings adopted pursuant thereto,
6-12 except as otherwise provided in this article. The hearing
6-13 shall be for the purpose of an administrative
6-14 determination regarding whether there was sufficient
6-15 credible evidence of child abuse by the alleged child
6-16 abuser to justify the investigator's classification of
6-17 such abuse as 'confirmed' or 'unconfirmed.' The Office of
6-18 State Administrative Hearings shall give notice of the
6-19 time and place of the hearing to the alleged child abuser
6-20 by first class mail to the address specified in the
6-21 written request for a hearing and to the DFACS office by
6-22 first class mail at least ten days prior to the date of
6-23 the hearing. It shall be a rebuttable presumption that
6-24 any such notice is received five days after deposit in the
6-25 United States mail with the correct address of the alleged
6-26 child abuser and the DFACS office, respectively, and
6-27 proper postage affixed. Unless postponed by mutual
6-28 consent of the parties and the administrative law judge or
6-29 for good cause shown, that hearing shall be held and a
6-30 decision rendered within 15 30 business days following
6-31 receipt by that hearing office the Office of State
6-32 Administrative Hearings of the request for a hearing.
6-33 The, and a decision shall be rendered within five business
6-34 days following such hearing. A motion for an expedited
6-35 hearing may be filed in accordance with rules and
6-36 regulations promulgated by the Office of State
6-37 Administrative Hearings. The hearing may be continued as
6-38 necessary to allow the appointment of counsel. A
6-39 telephone hearing may be conducted concerning this matter
6-40 in accordance with standards prescribed in paragraph (5)
6-41 of Code Section 50-13-15. Upon the request of any party
6-42 to the proceeding or the assigned administrative law
6-43 judge, venue may be transferred to any location within the
6-44 state if all parties and the administrative law judge
6-45 consent to such a change of venue. Otherwise, the hearing
6-46 shall be conducted in the county of the DFACS office which
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LC 22 2240S
7- 1 transmitted the hearing request to the hearing office
7- 2 Office of State Administrative Hearings. That DFACS
7- 3 office, the investigator whose report and classification
7- 4 created the issues to be determined at such hearing, and
7- 5 the alleged child abuser so classified in that report
7- 6 shall all be notified by mail or by telephone of the time
7- 7 and place of the hearing and be given a reasonable
7- 8 opportunity to be heard on the issues. The doctrines of
7- 9 collateral estoppel and res judicata as applied in
7-10 judicial proceedings are applicable to the administrative
7-11 hearings held pursuant to this article.
7-12 (d)(f) At the conclusion of the hearing under subsection
7-13 (c) (e) of this Code section, the hearing office
7-14 administrative law judge shall order that the alleged
7-15 child abuser's name not be included in the abuse registry
7-16 upon a finding that there is no credible evidence that
7-17 such individual committed the child abuse alleged;
7-18 otherwise, the hearing office administrative law judge
7-19 shall order listing of the alleged child abuser's name on
7-20 the abuse registry as confirmed if there is equal or
7-21 greater credible evidence that such individual committed
7-22 the child abuse alleged than such individual did not
7-23 commit the child abuse alleged or as unconfirmed if there
7-24 is some credible evidence that the alleged child abuser
7-25 committed the alleged child abuse but not enough credible
7-26 evidence to classify the individual as confirmed. The
7-27 general public shall be excluded from hearings of the
7-28 hearing office Office of State Administrative Hearings
7-29 held pursuant to this article and the files and records
7-30 relating thereto shall be confidential and not subject to
7-31 public inspection.
7-32 (e)(g) Notwithstanding any other provision of law, the
7-33 decision of the hearing office administrative law judge
7-34 under subsection (d) (f) of this Code section may be
7-35 appealed by the alleged child abuser as provided in this
7-36 Code section. The shall constitute the final
7-37 administrative decision. Any party shall have the right
7-38 of judicial review of such decision in accordance with
7-39 Chapter 13 of Title 50, except that the petition for
7-40 appeal review shall be filed within ten days after such
7-41 decision, but and may only be filed with and the decision
7-42 appealed to the juvenile superior court of the county
7-43 where the hearing took place or, if the hearing was
7-44 conducted by telephone, the Superior Court of Fulton
7-45 County. The procedures for such appeal to the juvenile
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LC 22 2240S
8- 1 court shall be substantially the same as those for
8- 2 superior court judicial review of contested cases under
8- 3 Code Section 50-13-19 except that the filing of a petition
8- 4 for judicial review stays the listing of the petitioner's
8- 5 name upon the abuse registry and the juvenile superior
8- 6 court shall conduct the review and render its decision
8- 7 thereon within 30 days following the filing of the
8- 8 petition. The review and records thereof shall be closed
8- 9 to the public and not subject to public inspection. The
8-10 decision of the juvenile superior court under this
8-11 subsection shall not be subject to further appeal or
8-12 review.
8-13 (f)(h) The DFACS office which notifies a person of that
8-14 person's classification as an alleged child abuser and of
8-15 that person's right to a hearing regarding that
8-16 classification shall transmit to the division the
8-17 investigator's report so naming such person unless that
8-18 office receives a written request for such hearing within
8-19 the time for making such request under subsection (b) (d)
8-20 of this Code section. If a timely request for hearing is
8-21 received, the hearing office administrative law judge
8-22 shall transmit to the division its his or her decision
8-23 regarding the classification of the alleged child abuser
8-24 and the investigator's report regarding such individual
8-25 within ten days following that decision unless a petition
8-26 for judicial review of that decision is filed within the
8-27 permitted time period. If a timely petition for judicial
8-28 review is filed within the permitted time period, the
8-29 juvenile superior court shall transmit to the division its
8-30 decision regarding the classification of the alleged child
8-31 abuser and the investigator's report regarding such
8-32 individual within ten days following that decision.
8-33 (g)(i) No child under the age of 14 shall be compelled to
8-34 appear to testify at any hearing held pursuant to this
8-35 Code section. If a child under the age of 14 testifies
8-36 voluntarily, such testimony shall be given in compliance
8-37 with procedures analogous to those contained in Code
8-38 Section 17-8-55. Nothing in this article shall prohibit
8-39 introducing a child's statement in a hearing held pursuant
8-40 to this Code section if the statement meets the criteria
8-41 of Code Section 24-3-16."
SECTION 3.
8-42 Said article is further amended by striking Code Section
8-43 49-5-184, relating to hearing on expungement of names from
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LC 22 2240S
9- 1 the abuse registry, and inserting in its place the
9- 2 following:
9- 3 "49-5-184. (Index)
9- 4 (a) If the division receives an investigator's report,
9- 5 hearing office administrative law judge's decision, or
9- 6 juvenile superior court decision which finds credible
9- 7 evidence that an alleged child abuser has committed an act
9- 8 of child abuse which is confirmed or unconfirmed, the
9- 9 division shall include on the abuse registry the name and
9-10 such classification of the alleged child abuser along with
9-11 the investigator's report regarding such individual.
9-12 (b) All identifying information in the abuse registry of
9-13 cases classified as 'unconfirmed' shall be expunged from
9-14 the abuse registry within two years after the case is so
9-15 classified.
9-16 (c) Any person whose name appears in the abuse registry
9-17 without a hearing having been held to determine whether or
9-18 not there was sufficient credible evidence of child abuse
9-19 by such person or a reasonable basis to justify such
9-20 inclusion on the registry is entitled to a hearing for an
9-21 administrative determination of that issue and whether or
9-22 not expungement of the such person's name should be
9-23 ordered. In order to exercise such right, the person must
9-24 file a written request for a hearing with the DFACS office
9-25 of any county in which the investigation was conducted
9-26 which resulted in such person's name being included in the
9-27 abuse registry. The provisions of this subsection shall
9-28 not apply to persons who have had a hearing pursuant to
9-29 Code Section 49-5-183.1 or have waived their hearing or
9-30 appeal after notice.
9-31 (d) A DFACS office which receives a written request for a
9-32 hearing by a person entitled to a hearing under pursuant
9-33 to subsection (c) of this Code section shall transmit that
9-34 request to the hearing office Office of State
9-35 Administrative Hearings within ten days after such
9-36 receipt. Notwithstanding any other provisions of law, the
9-37 hearing office State Office of Administrative Hearings
9-38 shall conduct a hearing as provided in this subsection. A
9-39 hearing shall be conducted upon that request within 60
9-40 days following its receipt by that hearing office the
9-41 Office of State Administrative Hearings. The procedures
9-42 and standards for such hearing shall be substantially the
9-43 same as those for administrative hearings under Code
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LC 22 2240S
10- 1 Section 49-5-183.1. Upon a finding that there is no
10- 2 credible evidence that the person who requested the
10- 3 hearing committed the child abuse which was the basis for
10- 4 including such person's name on the abuse registry, the
10- 5 hearing office Office of State Administrative Hearings
10- 6 shall order the division to expunge that name from the
10- 7 registry; otherwise, the hearing office Office of State
10- 8 Administrative Hearings shall not take any action
10- 9 regarding the inclusion of such person's name on the
10-10 registry unless the office Office of State Administrative
10-11 Hearings finds credible evidence of child abuse by such
10-12 person which justifies a different classification of the
10-13 named person than the classification shown on the
10-14 registry, in which case the office Office of State
10-15 Administrative Hearings shall order the appropriate
10-16 classification to be shown by the division on the
10-17 registry. The general public shall be excluded from such
10-18 hearings and the files and records relating thereto shall
10-19 be confidential and not subject to public inspection.
10-20 (e) Notwithstanding any other provision of law, the
10-21 decision of the hearing office Office of State
10-22 Administrative Hearings under subsection (d) of this Code
10-23 section may be appealed by the person who requested the
10-24 hearing as provided in this subsection. The appeal shall
10-25 constitute the final administrative decision. Any party
10-26 shall have the right of judicial review of that decision
10-27 in accordance with Chapter 13 of Title 50, except that the
10-28 petition for review shall be filed within 30 days after
10-29 such decision, but and may only be filed with and the
10-30 decision appealed to the juvenile superior court of the
10-31 county where the hearing took place or, if the hearing was
10-32 conducted by telephone, the Superior Court of Fulton
10-33 County. The procedures for such appeal to the juvenile
10-34 court shall be substantially the same as those for
10-35 superior court judicial review of contested cases under
10-36 Code Section 50-13-19. The review and records thereof
10-37 shall be closed to the public and not subject to public
10-38 inspection. The decision of the juvenile superior court
10-39 under this subsection shall not be subject to further
10-40 appeal or review."
SECTION 4.
10-41 This Act shall become effective upon its approval by the
10-42 Governor or upon its becoming law without such approval.
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LC 22 2240S
SECTION 5.
11- 1 All laws and parts of laws in conflict with this Act are
11- 2 repealed.
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Office of the Clerk of the House
Robert E. Rivers, Jr., Clerk of the House
Last Updated on 01/02/97