Administrative Law Judge Hearings in Child Abuse and Neglect Cases, 0118 ALBJ, 79 The Alabama Lawyer 35 (2018)
| Author | W. Gregory Ward and William F. Prendergast |
| Position | Vol. 79 1 Pg. 35 |
W. Gregory Ward and William F. Prendergast
So, your client is under investigation by the Department of Human Resources (DHR or the department for short) for the abuse or neglect of a child, and she works in or volunteers at some facility that is involved with children. She could be a teacher, a volunteer or a highly-paid coach. Or, she may come in to tell you that she has an upcoming hearing before an administrative law judge and she wants you to represent her. She has been told that if she loses, her name will be placed on a central registry, and that could have a serious impact on not only her current job, but on her future job prospects. She is panicked, and you’ve never dealt with such. What to do?
For many lawyers, this is the first time they have been presented with a situation like this. Many have never represented a client with this very specific set of problems, and most have never attended a hearing where the administrative law judge is required to apply such an issue-specific set of rules.
With this being a legal problem, you know that there are traps for the unwary, and can see troubled shoals ahead. So, what do you do?
You immediately recognize that there is more involved and more at risk than may appear at first blush. You also recognize that the laws involved in her situation are scattered between the Alabama Code and the Alabama Administrative Code, and you know that it is likely that there are some appellate decisions of which you should be aware. Figuring out where to look and what laws apply can be daunting. And, if things progress to the need for a hearing before an administrative law judge, there is a whole other set of rules that apply– even evidentiary rules–and having to learn all of that can overwhelm even seasoned litigators.
Focus of This Article
The two authors of this article are the two administrative law judges employed by the State of Alabama Department of Human Resources, who, between them, hear all of the requests that a hearing officer review an indicated finding. They have heard hundreds of such cases, and, over time, have noticed how difficult it is for lawyers who have never handled one of these cases to have a grasp of the specialized process and the special rules required by that process, and, more importantly, the rights their client has.
While we will discuss the legal architecture of these matters–how these cases get to the department, what the department does when a case comes in, what notice your client is entitled to and things like that–the focus of this article is the law around the administrative hearing itself and, yes, the thorny thicket of laws that apply to those hearings.
Mandatory Reporting
These cases usually begin with a report to the local office of the Alabama Department of Human Resources.
When are those reports made? When a child is “known or suspected of being abused or neglected” and that known or suspected abuse is found by a hospital, clinic, sanitarium, doctor, physician, surgeon, medical examiner, coroner, dentist, optometrist, chiropractor, podiatrist, nurse, school teacher, school official, peace officer, law enforcement official, pharmacist, social worker, daycare worker or employee, mental health care professional, member of the clergy “or any other person called upon to render aid or medical assistance to any child”, any of those people or institutions “shall be required” to make a report.1 Shall is a strong verb. It means that the person or entity had no choice–they have to act. And anyone else can make a report.2
So these cases begin with a report that could have come in from any number of places.
As you think like a lawyer and jump way ahead in the game, what about the doctrine of privileged communication? A physician is a mandatory reporter, and surely when a physician suspects abuse, or when a parent tells a doctor that they suspect their child has been abused, that gives rise to a privileged communication that the doctor may be precluded from disclosing. And, you continue to reason, surely other privileges apply.
Under the statutes, it doesn’t quite work that way. The doctrine of privileged communication has been statutorily limited to two areas–the attorney-client privilege3 and clergy privilege[4] –and “any other privilege shall not be a ground for excluding any evidence regarding a child’s injuries or the cause thereof.”5
What Has to Be reported?
Basically, a report has to be made of any known or suspected incident of child abuse or neglect6 . The term child is defined as anyone under the age of 18,7 and the department only investigates the allegation on that child if the person alleged to have committed the abuse or neglect is himself or herself 14 years of age or older.8 Though the department does not accept child abuse and neglect reports (called CA/N reports) on unborn children, it does accept reports on newborn children who test positive for fetal alcohol syndrome or who undergo drug withdrawal at birth.9
Since the report is often mandatory, and since it is required even if the abuse or neglect is only suspected, it is no great leap to imagine that when someone sees something suspicious, and that person has their livelihood and maybe even criminal charges on the line, they are going to pull the trigger and make a report to DHR even when what they have seen appears marginal.
The legislature has supplied us with handy (though broad) definitions of the most important terms. Abuse is defined as “harm or threatened harm to a child’s health or welfare.”10 Neglect is defined as “negligent treatment or maltreatment of a child.”11 While one would think that whether something is abuse or neglect would be easy to determine, the waters surrounding those terms can be surprisingly murky. And around the margins of those murky waters lie room for interpretation–and the need for hearings.
Civil and Criminal liability of reporters
To ensure that reports of abuse or neglect are made– remember the use of the term shall[12] –the legislature has provided both a carrot and a stick.
The carrot is that when someone makes a report, they are given a cloak of protection. By statute, when a report is made “in good faith,” that person is immune from either civil or criminal liability.13
The stick is that any person who knowingly fails to make a required report can be found guilty of a misdemeanor and punished by up to six months in jail and ordered to pay a fine of up to $500.14
So reports come in.
Who investigates?
When the report comes in, things start happening.
If the report is of inappropriate “disciplinary or corporal punishment” in a public or private school or state-operated child residential facility, the allegations are to be investigated by law enforcement authorities and the operating state agency.15 The results of those investigations are turned over to the department.16
All other reports are to be investigated by the department.17
However, experience teaches that most of these investigations are done as a cooperative effort between law enforcement and the department. And our courts have noted that those efforts are often combined: In order to protect children whose health and welfare may be adversely affected through abuse and neglect, the legislature hereby provides for the reporting of such cases to the appropriate authorities. It is the intent of the legislature that, as a result of such efforts, and through the cooperation of state, county, local agencies and divisions of government, protective services shall be made available in an effort to prevent further abuses and neglect, to safeguard and enforce the general welfare of such children and to encourage cooperation among the states in dealing with the problems of child abuse.18
The department’s authority to investigate is strong, and the net that it casts is wide. The Aycock court went on to hold that the child abuse statutes were enacted to give a specific grant of authority to the department (among others, to investigate allegations of child abuse and neglect under § 26-14-7), that the specific grant to the department controls the general statutory grant to a school board (to control activities occurring at schools and involving school children under §§ 16-8-8 and 16-11-9), and concluded that the department cannot only enter school grounds when the school board has a policy forbidding such, but the department can interview children suspected of abuse or neglect without a representative of the school even being present.19 The court held “we find that the statute directs DHR to conduct a thorough investigation, and implicit within the mandate is the authority of DHR to determine what is thorough.”20
Other laws
The Alabama Legislature gave a broad grant to the Department of Human Resources to enable it to “establish such regulations as may be necessary to implement this chapter.”21 The department’s Administrative Code § 660-5-34.01 through 34.14 sets out in detail the department’s regulations regarding protective services for children, including its investigative protocols and due process rights[22] for individuals under investigation by the department.
While we are going to look at some, it would be a good idea to become familiar with all of them.
When Your Client Comes under investigation
Reports can be found to be indicated (meaning that the department decides that in its judgment your client “is responsible for child abuse or neglect”[23] ); they can be found to be not indicated (the department decides that in its judgment it can’t “substantiate that an alleged perpetrator is responsible for child abuse or...
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