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Georgia Department of Human Services v. Steiner

Supreme Court of Georgia

June 18, 2018


          Grant, Justice.

         The Georgia Department of Human Services, Division of Family and Children Services ("DFCS") appeals from the decision of the Lamar County Superior Court finding that Georgia's central child abuse registry is unconstitutional, both on its face and as applied to appellee Christopher Steiner. The trial court also found that DFCS failed to prove that Steiner committed an act of child abuse by a preponderance of the evidence as required to maintain Steiner's listing in the registry. This Court granted DFCS's application for discretionary review. We hold that Steiner failed to demonstrate a constitutionally protected liberty or property interest sufficient to trigger the due process protections that he claims were violated by operation of the registry, and because the Act was constitutionally applied to Steiner, he lacks standing to bring his facial challenge on that ground. We further hold that the child abuse registry is not criminal in nature, and that the superior court therefore erred in finding it to be so. And because an abuse investigator's determination about whether a report of child abuse is supported by the evidence is not a judicial function, the superior court erred in finding that the statute requiring the investigator to report such cases to DFCS for inclusion in the child abuse registry violates the separation of powers provision of the Georgia Constitution. Finally, because at least "some evidence" supported the administrative hearing officer's conclusion that DFCS had proved an act of child abuse as defined for purposes of the child abuse registry, the superior court erred in reversing the administrative law court. We reverse.


         Georgia's central child abuse registry, also known as the Child Protective Services Information System ("the Act"), 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 §§ 49-5-18 - 49-5-187. The Act 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. Access to the registry is limited to certain government child abuse investigators and government or licensed childcare-related entities. The registry may only be used for the following purposes: conducting child abuse investigations; screening applicants for childcare-related employment, licensing, or volunteer activities; conducting background checks on current or prospective foster parents and adoptive parents; compiling statistical information regarding substantiated cases of abuse; responding to inquiries from individuals seeking to find out whether the individual's own name is included in the registry; and meeting federal funding requirements. See OCGA § 49-5-185.

         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) & (c). The general public is excluded from the administrative hearing, and the associated records are kept under seal. See OCGA § 49-5-183 (e). 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). Either party may seek judicial review of the ALJ's decision by filing a petition in the superior court of the county in which the administrative hearing was held. OCGA § 49-5-183 (f). The records and judicial review proceedings in the superior court also are closed to the public. Id.

         In late October 2016, K.S., a 13-year-old girl, was reported missing by her grandmother, who is her legal guardian. K.S.'s grandmother told members of the local Sheriff's Office that K.S. was likely at Steiner's home, and the investigation evolved into an interference-with-custody case. K.S. was later found to have been at Steiner's home as her grandmother had suspected.[1]

         During the course of the investigation, a forensic interview was conducted with K.S. Immediately after the interview, a deputy sheriff spoke with K.S. and obtained a written statement from her that included the following description of an encounter with Steiner several days earlier at K.S.'s grandmother's home:

I usually show my affection hugging him. I leaned against him on his stomach and he wrapped his arms around me. He started to hump me a way a dog would. I said stop the first time. Then he done it again. When he done it the 2nd time my nana turned around and saw it. I got off of him and walked away a little from him to make him stop.

         According to K.S.'s statement, Steiner was 52 years old at the time. DFCS conducted an investigation and determined that this encounter was a "substantiated case" of child sexual abuse, as defined in OCGA § 49-5-180 (8) & (10) and OCGA § 19-7-5 (b) (10).[2] Steiner's name and identifying information were therefore added to the child abuse registry, along with a copy of the DFCS investigator's report and a classification of the abuse as sexual.

         In January 2017, after Steiner was added to the registry, DFCS mailed him a letter notifying him of the determination that he had committed a substantiated case of child abuse, of his listing in the child abuse registry, and of the procedure for contesting that listing. The letter identified the "maltreatment" as fondling and the "maltreatment type" as sexual abuse. It informed Steiner that the date of the alleged abuse was October 29, 2016, and that the abuse occurred in Lamar County. On the last page of the notice, the allegations of child abuse were summarized as follows:

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.

         Steiner requested a hearing before an ALJ, contesting his listing in the registry and contending that the Act was unconstitutional on its face and as applied to him. Specifically, Steiner argued that it was impossible to tell from the vague and ungrammatical notice what he was accused of doing, who K.S. was, what was meant by "dry humped, " and whether K.S. had been "exposed" to sexual contact by witnessing sexual contact between others or by being sexually touched by Steiner or someone else. He also argued that the conduct described in the notice was not an act of child abuse.

         Steiner contended that the Act violated the Fifth and Fourteenth Amendments to the United States Constitution and parallel provisions of the Georgia Constitution because it did not provide for adequate notice and a pre-deprivation hearing. He further argued that the Act violated the separation of powers doctrine in that it vested a DFCS investigator with the judicial power to determine whether the allegations of child abuse were substantiated by a preponderance of the evidence. Finally, he contended that because the Act was criminal in nature, he should be granted "the full panoply of rights of a criminal defendant" under the state and federal constitutions, including the Sixth Amendment right to a speedy and public trial.

         Following a hearing at which K.S. and two other witnesses testified, the ALJ issued a written decision rejecting Steiner's petition for removal from the registry and noting that Steiner's motion to declare the Act unconstitutional had been denied at the hearing.[3] The ALJ stated that he had questioned K.S. before she testified and determined that she was capable of giving reliable testimony. The ALJ found that K.S. had recognized the written statement that she gave to the sheriff's deputy and testified that she was telling the truth when she wrote the statement. She also testified that Steiner "tried to hump her like a dog" and that her Nana saw it the second time, which is what she wrote in the statement.[4] The ALJ concluded that the evidence showed that Steiner had "dry humped" K.S., a 14-year-old[5] minor child, twice; that K.S. told him to stop after he did it the first time; and that "[t]here [was] no evidence this was consensual." Applying the preponderance of the evidence standard, the ALJ determined that DFCS had substantiated a case of child sexual abuse, as defined in OCGA § 19-7-5 (b) (10) (G), against Steiner. The ALJ therefore affirmed DFCS's decision to include the incident in the registry.

         Steiner appealed the administrative decision to the Superior Court of Lamar County, Georgia. He contested the legal basis for his inclusion in the registry, incorporating the constitutional claims from his petition in the Office of State Administrative Hearings and arguing that the ALJ's decision was clearly erroneous and arbitrary and capricious because the term "dry humping" was never defined or shown to meet the definition of child abuse. Steiner did not appear to contend that he did not actually know who K.S. was, or that he did not have any contact with her.

         After hearing oral argument from the parties, the superior court found that (1) the Act violated Steiner's due process rights under the Fourteenth Amendment of the United States Constitution[6] by providing insufficient notice of the act of which Steiner was accused, because the allegation in the notice was too vague and unclear to permit Steiner to prepare a defense; (2) the Act is punitive in application and, because it fails to provide the full range of protections required in a criminal proceeding, it is unconstitutional under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution;(3) the Act violates the separation of powers principle under the Georgia Constitution, Ga. Const. of 1983, Art. I, Sec. II, Par. III, in that "executive branch officials have been vested with the right to perform a judicial function"; and (4) DFCS failed to prove an act of child abuse by a preponderance of the evidence. Consistent with its conclusions, the superior court reversed the ALJ's findings and ordered Steiner's name to be stricken from the child abuse registry. DFCS filed a timely application for discretionary review, which we granted.


         We presume that statutes are constitutional, and "before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this Court must be clearly satisfied of its unconstitutionality." JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 490 (712 S.E.2d 820) (2011) (citation and punctuation omitted). Because all presumptions are in favor of the constitutionality of a statute, the burden is on the party claiming that the law is unconstitutional to prove it. Id.

         With these principles in mind, we turn to the superior court's conclusion that Steiner's Fourteenth Amendment right to procedural due process was violated because the notice he received of his inclusion in the registry was inadequate to inform him of what he was accused of doing. The Fourteenth Amendment prohibits government deprivation of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. In evaluating a procedural due process challenge in a non-criminal proceeding, [7] we engage in a two-step analysis: first, we must determine whether a constitutionally protectable liberty or property interest exists; if so, we determine the nature and extent of the procedural protections required. See Gregory v. Sexual Offender Registration Review Bd., 298 Ga. 675, 685-687 (784 S.E.2d 392) (2016). In determining what process is due, we employ the three-factor balancing test set out in Mathews v. Eldridge, 424 U.S. 319, 335 (96 S.Ct. 893, 47 L.Ed.2d 18) (1976) to weigh the competing interests involved. See, e.g., Gregory, 298 Ga. at 686-687. Those factors include the private interest affected by the state action; the risk of an erroneous deprivation of the interest under the existing scheme along with the probable value, if any, of additional or substitute procedural safeguards; and finally, the interest of the government. Mathews, 424 U.S. at 335.

         The superior court applied the Mathews balancing test, finding that "[f]undamental rights are at stake" for anyone included in the registry and that Steiner's "liberty interests are significant and compelling." Accordingly, the court concluded that due process required the State to provide notice to Steiner before-not after-adding his name to the registry. The court further found that because the notice that Steiner received was essentially incomprehensible[8]and was not sent until after Steiner was added to the registry, his due process rights were violated and the Act was unconstitutional as applied to him.

         But "the range of interests protected by procedural due process is not infinite." Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570 (92 S.Ct. 2701, 33 L.Ed.2d 548) (1972). And "[t]o determine whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest at stake." Gregory, 298 Ga. at 685 (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (99 S.Ct. 2100, 60 L.Ed.2d 668) (1979)) (emphasis in original). As Steiner concedes, injury to reputation alone does not implicate "any 'liberty' protected by the procedural guarantees of the Fourteenth Amendment." Paul v. Davis, 424 U.S. 693, 708-709 (96 S.Ct. 1155, 47 L.Ed.2d 405) (1976). We followed this directive from the U.S. Supreme Court in State v. Jackson, 269 Ga. 308 (496 S.E.2d 912) (1998), a challenge to the previous child abuse registry where we confirmed that "stigmatization of reputation alone does not implicate a liberty interest sufficient to invoke federal due process protection." 269 Ga. at 310.

         So Steiner must show that-in addition to the obvious stigma associated with being labeled a child abuser-his inclusion in the registry also "distinctly altered or extinguished" a "right or status previously recognized by state law." Paul, 424 U.S. at 710-712. This requirement for establishing a liberty interest sufficient to invoke the due process protections of the Fourteenth Amendment is known as the "stigma-plus" test. See, e.g., Behrens v. Regier, 422 F.3d 1255, 1259 (11th Cir. 2005) ("Under [the stigma-plus] test, 'a plaintiff claiming a deprivation based on defamation by the government must establish the fact of the defamation "plus" the violation of some more tangible interest before the plaintiff is entitled to invoke the procedural protections of the Due Process Clause.'") (citation omitted)).

         Accordingly, if DFCS "has only defamed [Steiner]-without depriving him of any right or status recognized under state law-then his injury does not rise to the level of a constitutional deprivation and his procedural due process claim must fail." Id. at 1261. But Steiner's only allegation related to the deprivation of a liberty interest was that the registry listing impairs his ability to work as a childcare provider or teacher.[9] This bare assertion is not enough.

         It may be true that entities with access to the registry would decline to license or employ Steiner as a childcare provider or teacher; indeed, use as a screening tool before granting a childcare-related license or employment is a key function of the registry. But Steiner made no claim that he has ever worked or applied to work in the childcare field before, or even that he has any intention of doing so in the future. Without an allegation that he has ever attempted to do the activities that he claims are now barred to him-or even that he had any intention of doing them before he was included in the registry- Steiner has not demonstrated that his listing has set any non-reputational obstacle in his path. We do not ...

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