Wednesday, June 20, 2018

Protecting the kids, Georgia style

This past week the Georgia Supreme Court did itself proud as it declared that being placed on a child abuse registry without notice isn't a punitive measure, that it doesn't deprive anyone of a liberty interest and that due process just doesn't apply when we're doing something to protect the kids.

Georgia maintains a child abuse registry and limits access to government agencies, law enforcement and childcare facilities. The general public does not have access to the database.

One can be placed on the registry if an investigator with the Georgia Department of Human Services, Division of Family and Children Services (DFCS) substantiates an allegation. To substantiate an allegation, the allegation must be confirmed by a preponderance of the evidence. The abuse investigator then files a report and the person's name is added to the registry. The person then receives a notice from the state and has 10 days to appeal the decision before an administrative law judge.

Now I will concede that being placed on the Georgia child abuse registry isn't the same as being placed on a sex offenders' registry since the database isn't available to the general public, but, it's never a good thing to have your name added to any list the government is compiling for allegedly doing something wrong.

And the Georgia Supreme Court showed how out of touch with reality they are when they decided that being placed on such a registry doesn't deprive an individual of a liberty interest. The court wasn't concerned with anyone being defamed by the state nor were they concerned with any possible legal consequences down the road. If you can't show that you have been affected negatively by being added to the registry, then too bad.

But the bigger issue here is the process by which it happens. The state doesn't have to notify an individual that they are being added to the registry - the state just has to provide notice after the fact. The person being added to the list isn't entitled to cross-examine the accuser nor to put on an evidence before being added to the registry. He only has the right to appeal the decision after his name has been added.

Now it's time for you to decide if this notice is sufficient to inform a person of what they are accused of or if it's just a vague piece of mumbo-jumbo.
You were substantiated on as a result of K.S. maltreator exposed the child to inappropriate sexual contact which resulted in the maltreator inappropriately touched and dry humped her in the residence of the legal guardian.
The Georgia Supreme Court found that this constituted sufficient notice. It is grammatically incorrect and the sentence (if you can call it that) borders on incomprehensible.

It's much easier to win a trial as defendant than it is to win on appeal. At trial every presumption is supposed to go to the defendant (of course we know that is often just a fiction we tell ourselves), on appeal every presumption goes to the side that won at trial.

In the case of the Georgia child abuse registry, all it takes to find your name on it is for an investigator to find the alleged victim has moved the ball past the 50-yard line -- without the other side being heard. In addition, in the scenario at hand, we have an investigator (a member of the executive branch) being tasked with making what would appear to be a judicial decision by determining whether or not the allegation was "proven" by a preponderance of the evidence.

But the Georgia Supreme Court wasn't having any of that. They decided that administrative agencies can make quasi-judicial decisions in the course of implementing the law. The court said the use of the term "preponderance of the evidence" didn't make the investigator's job a judicial function because those words just give guidance to the department.

Most troubling, though, was the court's finding that not providing notice before being added to the registry doesn't violate a person's right to due process. The court decided that since there is a procedure in place for a person to appeal the decision that sending a letter with a vague description of what the person was accused of is sufficient to pass muster with the 14th Amendment.

This decision shows just how far a court is willing to go "to protect the kids."

h/t Andrew Fleishman

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