Duran v. Buckner

157 So.3d 956

Michelle DURAN et al.

v.Nancy BUCKNER, individually and in her official capacity as the Commissioner of the Alabama Department of Human Resources, and Kim Mashego, individually and in her official capacity as the Director of the Shelby County Department of Human Resources.

2120837.

Court of Civil Appeals of Alabama.

June 27, 2014.

James V. Green, Jr., Alabaster, for appellants.

Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellees.

Opinion

DONALDSON, Judge.

This is an appeal from a judgment dismissing a 38–page, 9–count complaint containing 159 separately numbered paragraphs filed against 2 defendants, individually and in their official capacities as employees of the state, by 6 individual plaintiffs. The complaint alleges that the plaintiffs' names appear on a central registry listing individuals against whom reports of alleged child abuse or neglect have been filed. The plaintiffs contend that, pursuant to the Due Process Clause of the 14th Amendment to the United States Constitution and/or state law, they were entitled to a hearing to deny and dispute the allegations against them before their names were entered into the registry. As explained infra, the plaintiffs sought declaratory relief, injunctive relief, and monetary damages. We affirm the judgment in part, reverse it in part, and remand the cause for further proceedings.

Background, Facts, and Procedural History

On January 30, 2012, Michelle Duran, Crystal Calhoun, Kurt Bongers, Bryan Burroughs, Shannon Trammell, and James Van Kleeck (“the plaintiffs”) filed a complaint in the Shelby Circuit Court (“the trial court”) against Kim Mashego, individually and in her official capacity as the Director of the Shelby County Department of Human Resources (“the Shelby County DHR”), and Nancy Buckner, individually and in her official capacity as the Commissioner of the Alabama Department of Human Resources (“DHR”). In the complaint, the plaintiffs described their status as follows:

“The plaintiffs are parents of children who have been the subject of reports made to the Department of Human Resources. In these reports, allegations of child abuse/neglect were made about the plaintiffs. The plaintiffs contend that they are not guilty of child abuse/neglect or any other wrongdoing. The plaintiffs contend that the allegation and the reports are false and unsubstantiated.”

Under Alabama law, DHR has the duty to investigate all reports of child abuse or neglect and to make an assessment of any such report. § 26–14–6.1, Ala.Code 1975; Ala. Admin. Code (DHR), Rule 660–5–34–.02. After an investigator's assessment of the reported child abuse or neglect, DHR typically designates either an “indicated” or “not indicated” disposition for the report.¹ An “indicated” disposition is defined as “[w]hen credible evidence and professional judgment substantiates that an alleged perpetrator is responsible for child abuse or neglect.” § 26–14–8(a)(1), Ala.Code 1975. A “not indicated” disposition denotes that “credible evidence and professional judgment does not substantiate that an alleged perpetrator is responsible for child abuse or neglect.” § 26–14–8(a)(2).

Section 26–14–7.1, Ala.Code 1975, provides that certain persons who have come under investigation by DHR for child abuse or neglect shall receive notice of the investigation and may request a hearing. That statute provides, in part:

“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.”

An “aggrieved person” may also request a hearing to contest the allegations in a report of child abuse or neglect pursuant to Ala. Admin. Code (DHR), Rule 660–1–5–.03. An “aggrieved person” is someone who is “adversely affected by any action or inaction of [DHR].” Ala. Admin. Code (DHR), Rule 660–1–5–.01(1). According to the DHR administrative regulations, a person named in a report with a preliminary “indicated” disposition is entitled to either a hearing or an administrative record review:

“(1) All persons allegedly responsible for abuse/neglect with substantiated (i.e., indicated) CA/N [child abuse/neglect] dispositions must be given an opportunity to disagree with the [DHR]'s findings through either a CA/N hearing or an administrative record review....

“(2) Any person who is approved, licensed, or certified to care for children; and any person who is employed (i.e., professional, non-professional, contract) by, serves as a volunteer for, or is connected with ... 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.”

Ala. Admin. Code (DHR), Rule 660–5–34–.08 (emphasis and bold typeface in original).

A hearing is defined in the regulations as being “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.” Rule 660–5–34–.08(6). In an administrative record review, DHR determines whether “sufficient documentation based on a preponderance of credible evidence ... support[s] the ‘indicated’ disposition of child abuse/neglect.” Rule 660–5–34–.08(3). DHR considers prior reports of child abuse or neglect in administrative record reviews. Rule 660–5–34–.08(7). The DHR staff members who conduct an administrative record review are not the same persons involved with the investigation of the report. Id.

Established pursuant to § 26–14–8, Ala.Code 1975, the central registry is a record of the reports of child abuse and neglect and is maintained for the primary purpose of protecting children. Duncan v. State Dep't of Human Res., 627 So.2d 427, 428 (Ala.Civ.App.1993). Once DHR receives a report of child abuse or neglect, the report must be entered into the central registry within three working days. Ala. Admin. Code (DHR), Rule 660–5–34–.09(3). Among other information, the report includes information identifying the person allegedly responsible for the child abuse or neglect and the results of DHR's assessment (i.e., DHR's disposition of the report as either “indicated” or “not indicated”). Rule 660–5–34–.09(4). Section 26–14–8 instructs DHR to keep the information on the central registry in a confidential manner. Disclosure of information from the central registry—i.e., reports and records pertaining to child abuse or neglect—is permitted only for the following purposes:

“(1) To permit their use to prevent or to discover abuse or neglect of children through the information contained therein, except reports or records in cases determined to be ‘not indicated’ shall not be used or disclosed for purposes of employment or other background checks; or

“(2) For investigation of child abuse or neglect by the police or other law enforcement agency; or

“(3) For use by a grand jury upon its determination that access to such reports and records is necessary in the conduct of its official business; or

“(4) For use by a court where it finds that such information is necessary for the determination of an issue before the court; or

“(5) For use by any

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