C. W. v. Ga. Dep't of Human Servs.

353 Ga.App. 360

836 S.E.2d 836

C. W.

v.GEORGIA DEPARTMENT OF HUMAN SERVICES.

A19A2335

Court of Appeals of Georgia.

December 6, 2019

Lawrence Allyn Stockton Jr., for Appellant.

Christopher Michael Carr, Penny Hannah, Atlanta, Richard Wellington Highsmith, for Appellee.

McFadden, Chief Judge.

We granted C. W.’s application for discretionary review of a superior court order that reinstated the decision of the Division of Family and Children Services of the Department of Human Services ("DFCS") to include C. W.’s name on the central child abuse registry for prenatal abuse because of her use of marijuana while pregnant. See OCGA §§ 49-5-180 (5) (2018), 49-5-181 (a) (2018). C. W. argues that under the language of the governing statutes, marijuana is not a "controlled substance," and so a mother’s use of marijuana during pregnancy does not amount to prenatal abuse.

To its credit, DFCS concedes that C. W. is correct. We agree, so we reverse.

The central child abuse registry, which is also known as the Child Protective Services Information System,

is a statutory system that provides for the establishment and maintenance of a central registry containing information about "substantiated" cases of child abuse. See OCGA §§ 49-5-180 - 49-5-187. The Act [establishing the registry] requires that DFCS investigate reports of child abuse and, if the abuse investigator finds by a preponderance of the evidence that an act of child abuse occurred, information must be added to the registry about the abuse, the abuser, the child victim, and the child’s guardian. See OCGA §§ 49-5-182, 49-5-183....

OCGA § 49-5-183 requires that DFCS must notify an alleged abuser when his or her name is added to the registry. See OCGA § 49-5-183 (a). The alleged abuser may then request an evidentiary hearing before an administrative law judge ("ALJ") by submitting a written request for a hearing to DFCS within ten days after receiving the notice. See OCGA § 49-5-183 (a) and (c).... The ALJ makes the final "administrative determination regarding whether, based on a preponderance of evidence, there was child abuse committed by the alleged child abuser to justify the investigator’s determination of a substantiated case." OCGA § 49-5-183 (d). If not, the ALJ must order the alleged abuser’s name removed from the registry. OCGA § 49-5-183 (e).

Ga. Dept. of Human Svcs. v. Steiner , 303 Ga. 890, 890-891 (I), 815 S.E.2d 883 (2018).

DFCS placed C. W.’s name on the child abuse registry based on its determination that she had committed child abuse by unlawfully using a controlled substance while she was pregnant. The child abuse investigator stated in the Notice of Inclusion mailed to C. W. that C. W. was "substantiated for child endangerment as a result of prenatal abuse. [C. W.] exposed [her daughter,] B. W.[,] (newborn) to chronic abuse of a controlled substance, specifically marijuana. At the time of B. W.’s birth ... THC [ (the common abbreviation for tetrahydrocannabinol) ] was positive in B. W.’s meconium." The investigator testified that C. W. had told him that, at the suggestion of a doctor and a midwife, she had used marijuana to help alleviate nausea and vomiting.

C. W. petitioned for a hearing under OCGA § 49-5-183 (c) to challenge the inclusion of her name on the child abuse registry. An administrative law judge ordered DFCS to remove C. W.’s name because under the plain language of the statutes at issue, marijuana is not a controlled substance, so a mother’s use of marijuana while pregnant does not amount to prenatal abuse.

DFCS appealed the administrative law judge’s decision to the superior court. The superior court reversed because THC, the substance identified in the infant’s meconium, is a controlled substance under OCGA § 16-13-21 (4). C. W. then filed her application for discretionary appeal.

The Act establishing the child abuse registry provides that child abuse includes "endangering a child," which can include "prenatal abuse" as defined in OCGA § 15-11-2. OCGA §§ 19-7-5 (b) (4) (C) & (b) (6.1) (D) ; 49-5-180 (4). OCGA § 15-11-2 defines "prenatal abuse" as:

exposure to chronic or severe use of alcohol or the unlawful use of any controlled substance, as such term is defined in Code Section 16-13-21, which results in: (A) Symptoms of withdrawal in a newborn or the presence of a controlled substance or a metabolite thereof in a newborn’s body, blood, urine, or meconium that is not the result of medical treatment; or (B) Medically diagnosed and harmful effects in a newborn’s physical appearance or functioning.

OCGA § 15-11-2 (56). So as relevant here, prenatal abuse that amounts to endangering a child requires proof that, among other things, a pregnant woman used a controlled substance as defined in OCGA § 16-13-21.

OCGA § 16-13-21 defines "controlled substance" as "a drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Schedules I through V of 21 CFR Part 1308." OCGA § 16-13-21 (4). Thus, under the plain language of the statute — as C. W. argues, the administrative law judge found, and DFCS concedes — a drug is a "controlled substance" as defined in OCGA § 16-13-21 only if...