Current through Register Vol. 42, No. 5, February 29, 2024
The following rules apply to CA/N assessments conducted by
County Departments of Human Resources and child abuse/neglect investigations
conducted by law enforcement agencies and state agencies operating child
residential facilities except for incidents involving military personnel and
incidents occurring on Indian reservations where the Department does not have
jurisdiction to conduct an CA/N assessment.
(1) All persons allegedly responsible for
abuse/neglect with substantiated (i.e., indicated) CA/N dispositions must be
given an opportunity to disagree with the Department's findings through either
a CA/N hearing or an administrative record review. If the persons allegedly
responsible are under age nineteen (19) years, the notice is sent in care of
the persons' parents or custodians who may request the hearing or record review
on their behalf.
(2) Any person who
is approved, licensed, or certified to care for children; and any person who is
employed (i.e., professional, nonprofessional, contract) by, serves as a
volunteer for, or is connected with (e.g., students completing an educational
practicum, board members) any facility, agency, or home which cares for and
controls any children and the facility is licensed, approved, or certified by
the state; operated as a state facility; or is any public, private, or
religious facility or agency that may be exempt from licensing procedures must
be offered a CA/N hearing when they have been identified as the person
allegedly responsible for abuse/neglect and the preliminary CA/N disposition is
"indicated." These individuals must be offered a hearing even if they were
reported to have abused/neglected their own children.
(3) Any person allegedly responsible for
abuse/neglect who has a preliminary "indicated" disposition and is not entitled
to a CA/N hearing must be offered an administrative record review. The record
review is completed to determine if the CA/N assessment contains sufficient
documentation based on a preponderance of credible evidence to support the
"indicated" disposition of child abuse/neglect.
(a) Except where written consent or a release
is obtained, written notification of an opportunity for a child abuse/neglect
hearing or administrative record review must be given to the person allegedly
responsible for abuse/neglect before releasing information from reports to
employers, prospective employers, or licensing/certifying agencies or groups in
outofhome care settings as described in
660-5-34-.05
and under the following circumstances:
1.
Persons identified as allegedly responsible for abuse/neglect have contact with
children or other vulnerable persons as a part of their employment or potential
employment;
2. The child
abuse/neglect report involves the person's biological children or any other
children in any setting, or the care of vulnerable persons in any
setting;
3. The CA/N assessment
involves a preliminary disposition of "indicated" for the person allegedly
responsible for the abuse/neglect in a pending CA/N assessment; and
4. The Department determines that a completed
CA/N assessment with an "indicated" disposition already entered into the Child
Abuse/Neglect Central Registry without a hearing or review being offered should
be shared for the protection of children.
(4) The person allegedly responsible for
abuse/neglect is given ten (10) departmental working days from the receipt of
the notification to request a hearing or administrative record review. That
request must be in writing, and if no such request is received in the
Department's office within ten (10) working days, the person's opportunity for
a hearing or record review is considered to be waived. The "indicated"
disposition is then entered into the State Child Abuse/Neglect Central
Registry, and the person's employer, prospective employer, facility
administrator, or licensing/certifying agency or group may be notified about
the findings of the CA/N assessment.
(5) If the Department determines that a child
is in imminent danger of abuse or neglect, any person in a position to
discover, prevent or protect the child from abuse or neglect may be informed of
the information in a pending or concluded CA/N assessment. The person
identified as responsible for the abuse/neglect may be offered a hearing or
record review, if one has not already been held, subsequent to the
dissemination of this information.
(6) A child abuse/neglect hearing is an
internal investigatory hearing that is fact finding in nature and designed to
elicit the facts in an atmosphere that allows the person responsible for the
abuse/neglect to contest the evidence presented against him. The following
hearing procedures shall apply:
(a) Except as
indicated below, the hearing procedures outlined in Chapter 66015 shall apply
to child abuse/neglect hearings.
(b) The State Department of Human Resources
shall conduct a hearing to determine by a preponderance of credible evidence
that the child has been abused or neglected. Credible evidence means that the
available facts, when viewed in light of surrounding circumstances, would cause
a reasonable person to believe that the person alleged to be responsible was
responsible for the abuse/neglect.
(c) The Department bears the burden of
persuasion at the hearing.
(d) In
the case of indicated reports, the function of the hearing officer in a pending
investigation is to make:
(1) a determination
or finding regarding the facts of the case, and
(2) a determination of whether the report is
"indicated," according to the CA/N assessment guidelines and procedures
outlined in the Department's Child Protective Services policy and the
Department of Human Resources Administrative Rules.
(e) The hearing will not strictly follow the
rules of evidence as followed by the circuit courts of the State.
(f) The evidence will be received at the
discretion of the hearing officer if it is a type commonly relied upon by
reasonably prudent persons in the conduct of their affairs.
(g) Relevant and material evidence, including
hearsay evidence, visual drawings and testimony about the use of anatomically
correct dolls, is admissible at the hearing.
(h) A child victim or witness may testify at
the hearing without prior qualification.
(i) The hearing officer shall determine the
weight and credibility to be given to the testimony of all witnesses.
(j) Videotaped testimony of a child victim or
child witness may be allowed.
(k)
Leading questions may be allowed of a child victim or child witness.
(l) Testimony and evidence admissible under
the following statutes are also admissible in child abuse/neglect investigative
hearings: Code of Ala. 1975, §121-5-65(g),
§§15251 through 6, and §§
15-25-30
through 40.
(m) The hearing shall
not be open to the public. However, an employer or licensing/certification
representative may be present as a nonparticipant with the consent of the
Department and the person allegedly responsible for the
abuse/neglect.
(n) The rules of
discovery as followed by the courts of this State do not apply to the hearing.
The person allegedly responsible for the abuse/neglect has the following rights
of access to information after providing a written request:
1. To be provided a short and plain written
statement of the matters asserted which will be presented at the hearing. The
request must be made prior to the date set for the hearing to be
timely.
2. To review and copy, at
cost, any written or recorded statement made by the person allegedly
responsible to Department personnel in the course of the child abuse/neglect
CA/N assessment. The request must be made prior to the date set for the hearing
to be timely.
3. To review and copy
at cost, before or during the hearing, the written material and other evidence
in possession of the Department which will be placed into evidence at the
hearing.
4. To an in camera (i.e.,
private) inspection by the hearing officer or an order issued to the Department
by the hearing officer to review relevant Department child abuse/neglect
record(s) to determine if there is any exculpatory evidence (i.e., evidence
tending to clear or exonerate) in those records not available to the person
allegedly responsible through other sources which must be released as necessary
to the constitutional fairness of the hearing. Such a request must be made at
least five working days prior to the date set for the hearing to be
timely.
5. To review and copy, at
cost, all nonconfidential Department documents.
6. To review and copy, at cost, all documents
in the official hearing file maintained by the hearing officer.
(o) The hearing may be postponed
or continued, as necessary, to ascertain all the facts or in order to provide a
full and adequate opportunity for all the parties to present their
case.
(7) Administrative
record reviews are conducted by Departmental staff who are not involved with
the case. Prior abuse/neglect reports involving the person allegedly
responsible are considered during the record review process to assist in
determining the disposition. The reviewers have the authority to overturn the
dispositional finding of the worker and supervisor, and their decision is
final.
(8) Child abuse/neglect
hearings and administrative reviews do not apply to child abuse/neglect CA/N
assessments involving military personnel. Child abuse/neglect investigative
procedures and disclosure of information involving military personnel are
governed by military regulations and working agreements with military
authorities.
Author: Jerome Webb
Previous Rule
660-5-34-.07
was renumbered to .08 as per certification filed May 4, 2007; effective June 8,
2007.
