Ala. Code § 26-14-7.1

Current through the 2024 Regular Session.

Section 26-14-7.1 - Due process rights for persons under investigation by department

Any person who comes under investigation by the Department of Human Resources for the abuse or neglect of a child or children and who is employed by, serves as a volunteer for, holds a license or certificate for, or is connected with any facility, agency, or home which cares for and controls any children and which is licensed, approved, or certified by the state, operated as a state facility, or any public, private, or religious facility or agency that may be exempt from licensing procedures shall be granted the following due process rights by the Department of Human Resources:

(1) The department shall notify the alleged perpetrator that an investigation has commenced against him or her after such investigation has officially begun in accordance with written policies established by the Department of Human Resources. The notice shall be in writing and shall state the name of the child or children allegedly abused, the date or dates that the alleged abuse is thought to have occurred, and the substance of the person's actions which are alleged to be abusive. The department shall establish and maintain written policies outlining the specifics of such notification and other policies deemed necessary and prudent by the department to inform the alleged perpetrator of his rights and the procedures utilized by the department involving child abuse and neglect investigations.

(2) If the department conducts an investigation relating to child abuse/neglect, the alleged perpetrator shall be notified of the investigator's conclusions.

(3) If the department's investigators conclude that child abuse/neglect is indicated, an investigative hearing may be held to confirm or reject the investigators' conclusions.

(4) The alleged perpetrator shall be given ten departmental working days from the receipt of the notification of the investigator's conclusions to request a hearing, and such request must be in writing. If no such request is received in the department's office within ten departmental working days, the alleged perpetrator's opportunity for a hearing shall be considered waived by the department.

(5) The employer of an alleged perpetrator shall not be notified of the investigator's conclusions prior to a hearing or its waiver unless, in the opinion of the department's investigators, a child is in danger of abuse or neglect; in such case, any person in a position to discover, prevent, or protect the child from his abuse or neglect may be informed of information gathered in the investigation prior to a requested investigative hearing for the alleged perpetrator.

(6) The alleged perpetrator shall be notified of the date, time, and place of any investigative hearing. Such hearing shall not be open to the public.

(7) The alleged perpetrator shall have the following rights at any departmental investigative hearing:

a. The right to present his case himself or be represented by legal counsel or any other person.

b. The right to present written evidence, oral testimony, and witnesses.

c. The right to be provided by the department a short and plain written statement of the matters asserted which will be presented at the hearing.

d. The right to review and copy at cost any written or recorded statement made by the alleged perpetrator to departmental personnel in the course of the child abuse/neglect investigation. This request must be made prior to the date for the hearing.

e. The right 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.

f. The right to inspect any exculpatory evidence which may be in the possession of departmental investigators, and the right to be informed of such evidence if known by departmental investigators before the hearing; provided, that a request for such evidence is made at least five working days prior to the date set for the hearing.

g. The right to review and copy at cost all non-confidential department documents pertinent to the case, including written policies and rights.

h. The right to cross-examine witnesses testifying at the hearing.

i. The right to request issuance of subpoenas to witnesses and compel attendance. This request must be received no later than ten calendar days prior to the hearing, unless a shorter time is agreed upon by the hearing officer.

j. The right to review and copy at cost all documents in the official hearing file maintained by the hearing officer.

k. The right to have a hearing officer appointed who shall be disinterested, fair, and impartial.

(8) The Department of Human Resources or its investigative hearing officers shall have the power and authority to issue subpoenas to compel attendance by and production of documents from any witness. Subpoenas may be served in the same manner as subpoenas issued out of any circuit court. Where any witness has been summoned by the Department of Human Resources, its commissioner or any of his or her agents, and the witness refuses to appear, testify, or produce records or documents as requested; then any circuit court in this state, or any judge thereof, on application, may issue an attachment for such person and compel him or her to comply with such order and the court or judge shall have power to punish for contempt in cases of disobedience of such order.

(9) The Department of Human Resources shall establish policies and written guidelines for the conduct and procedures involved in an investigative hearing. At such hearing, the fact that there was a finding by a juvenile court judge or by a criminal court that child abuse or neglect has occurred shall be presumptive evidence that the report should be marked indicated.

(10) The hearing officer shall notify the alleged perpetrator in writing of the hearing officer's decision.

(11) Results of investigative hearings:

a. If the hearing officer concludes that child abuse and/or neglect is "indicated," such findings and evidence shall be filed with the appropriate district attorney and other law enforcement officials which the department may deem necessary.

b. The alleged perpetrator's employer or licensing/certifying agency or group may also be notified of the "indicated" findings. Such notification shall be marked "Confidential" and "To Be Used Only For The Purpose Of Discovery Or Preventing Child Abuse." The department shall establish written policies for notification of employers, prospective employers and licensing/certifying agencies or groups.

Ala. Code § 26-14-7.1 (1975)

Acts 1992, 2nd Ex. Sess., No. 92-704, p. 176, §1.