Alabama DHR and Due Process

Health Impact News referenced the article “Alabama DHR and Due Process Concerns” written by Shelby County Sheriff Deputy Lee Stockman on LinkedIn in our article: “Health Impact News Named in Alabama Lawsuit for Exposing State-sponsored Child Kidnapping.” But the article disappeared shortly after that, so under the Fair Use rule we are reprinting it here.

Reprinted under the Fair Use rule.

By Lee Stockman

The state of Alabama has launched a Department of Human Resources (DHR) Task Force to examine the workings of a state agency that serves 67 counties with an annual budget of around 2 billion dollars. DHR Commissioner Nancy Buckner said one factor she hopes the task force will look at is the 20 to 25 percent turnover ratio for child welfare workers. Starting pay for those workers is comparable to that of a prison guard with a GED, she said, while social workers need a college degree to be hired. That kind of turnover results in a lack of institutional memory with a largely young staff.  “We’re not the job of choice,” she said. “You’ve got to love it to stay with it.”[1]

When turnover and a lack of experience is a problem in a job that includes harsh realities coupled with State sanctioned authority the results can default to “get the job done” instead of “do the job right”.  As a current law enforcement officer, I can empathize with that mentality. However, knowing the duties of the position is the easiest part of the position. Knowing the procedure for properly accomplishing those duties in a judicious manner is the key.  Knowing the consequences for not accomplishing the purposes of the position in the right way has lessons for not only DHR but also the law enforcement agencies that work with them.

DHR’s primary duty is to protect children whose health and welfare may be adversely affected through abuse and neglect.[2]  DHR is mandated to carry out this duty through investigation, complaints from citizens, or otherwise.[3] Additionally, the agency is granted the authority by statute to investigate all cases of suspected abuse and neglect.[4]  This is an enormous undertaking that often requires the assistance of other state agents and agencies. State authority, combined with state agencies and state agents investigating citizens where criminal charges could be the result, gives rise to legitimate 4th Amendment concerns.  This is where the methods of the investigation into alleged acts of neglect and abuse are just as important as the duty to investigate.

Titles 26 and 38 of the Alabama State Code give legislative authority to DHR.  The policies and procedures of the agency are found in the Alabama Administrative Code.[5]  The investigative portion of DHR’s duties on a county level begins with a complaint or report of neglect or abuse.  The evaluation begins with the children, extends to the parents/guardians, examines the possibility of providing support to families, and can result in invoking the legal authority of the courts to provide remedies.[6]  The most serious sanction, not including criminal sanctions, is the termination of parental rights.[7]

County DHR workers are directed to determine the safety of children by conducting a safety assessment of the situations they are tasked with investigating.[8]  This is the point of where policy, procedure, and training are falling short. The direction of what to do is clear, but the direction of how to complete these duties in a manner consistent with Constitutional considerations is lacking.  The main issue is that the investigative portions of DHR’s duties mirror directly the same types of scenarios encountered by law enforcement. One of the main scenarios involves exigent circumstance exceptions to warrant/court order requirements where the DHR is called to act in conjunction with law enforcement agencies.[9]  This is one of the many scenarios where additional due process concerns can arise when DHR and other agencies pursue their state sanctioned duties.

The two areas that will be focused on here is when DHR goes into the field to begin its investigations  known as Child Abuse/Neglect Assessments (CA/N) and after an investigation shows “indicated” evidence of abuse or neglect.  With any report of abuse or neglect, DHR will investigate which often means going to the homes of children even when the reports are made by anonymous complainants.  This is the first instance where proper procedure must be adhered to through proper training and supervision. The leading case in Alabama regarding the initial investigation and issues that arise when the parent, guardian, or resident does not cooperate with DHR investigator is H.R. v. State Department of Human Resources.[10]

In this case, two anonymous complaints were received and investigated by DHR of Houston County.  The agent of DHR was notified of the complaint on November 6, 1991, but did not go to mother’s home until December 11, 1991.  Once there, the agent informed the mother that she needed to see the home and speak privately with the children in order to complete the investigation.  The mother refused the agent access to the home or the children.[11] On January 15, 1992, the agent, Donna Jones filed a petition with the Juvenile Court of Houston County alleging abuse and neglect of each of the four children in the home.  Each petition was based on § 26-14-7(c) which states that court of competent jurisdiction, upon cause shown, shall order the parents or persons in charge of any place to allow an interview of the children in question and an examination of the premises.[12]

The Alabama Court of Appeals took this case after the petitions were granted by the Houston County District Court.  On appeal, it was found that cause shown amounted to a showing of reasonable or probable cause to believe that a crime either is or is about to be committed.  The court went further to state that anonymous complaints amounted to unsworn hearsay and to a mere suspicion of criminal conduct that is not sufficient for unwanted entry into a private home based on Nicaud v.State ex rel. Hendrix, 401 So.2d 43 (Ala. 1981).[13]  The standard is the same for DHR investigating a potential criminal matter as it is for law enforcement.

The second area of due process concern is after CA/N Assessments have shown an “indicated” incident of abuse or neglect.  In this scenario suspected abusers or negligent persons are divided into two categories regarding due process legalities:

1)      Persons that are licensed by or hold a certificate from the state have due process rights stated by statute[14]

2)      Persons that are NOT licensed by or hold a certificate from the state.  This includes private citizens. Due process rights for these persons in stated in the Alabama Administrative Code.[15]

Those suspected of wrongdoing in group one are entitled to written notice, 10 department working days to answer in writing, and to request a CA/N hearing.[16]   Those persons in group two are entitled to the same review except the hearing is referred to as an administrative record review.[17] The burden of proof for both of these hearings is a preponderance of the credible evidence.[18]  The hearing procedures and the rules regarding credible evidence are outlined Chapter 660-1-5. DHR bears the burden of proof in these hearings, and discovery request by the person allegedly responsible for abuse/neglect must be made in writing 5 days prior to the hearing. [19]

The standards supra are adequate for due process concerns.  The problem is that the above is not the standard in Alabama as recently stated in Duran v. Buckner.[20]  This case specifically noted that the lack of due process is systematic in hearings involving persons licensed by or that hold a certificate from the state.  The court found these examples of a failure of due process:

1. “Nancy Buckner, as the current Director of the State of Alabama Department of Human Resources and Kim Mashego as the current Director of the Shelby County Department of Human Resources have established a custom, practice or policy which has resulted in the denial of the written request for a hearing and has resulted in the plaintiffs’ names and information continuing to be listed on the Central Registry. As a result of that custom, practice or policy, the State Department of Human Resources and the Shelby County Department of Human Resources routinely and systematically deny written requests for a hearing following notification of an ‘indicated disposition’”[21]
2. DHR agents have failed to properly train and supervise workers in the lawful and proper method of communicating the information about the methods by which a disposition may be challenged.[22]

The court concluded that, “These systemic failings, which proximately result from [the defendants’] wrongful conduct, action and inaction as complained of herein have resulted in a flawed and unlawful system whereby Due Process has been denied to plaintiffs after receiving notice of the ‘indicated disposition’; and, that same flawed and unlawful system results in a high confirmation rate following record review; and, that same flawed and unlawful system allows DHR to introduce the ‘indicated disposition’ in those cases which DHR brings before the juvenile/family courts of the State.”[23]

Duran v. Buckner showed that clearing a case quickly is more important than clearing a case correctly.  Here, the court saw fit to reverse the claims asserted by Duran, Calhoun, and Bongers against the defendants [Nancy Buckner, Commissioner of Alabama DHR, and Kim Mashego, Director of Shelby County DHR] in their individual capacities as to the claims alleging conduct that was allegedly willful, malicious, fraudulent, in bad faith, beyond their authority, or under a mistaken interpretation of the law.[24]  However, often it is the case that DHR does not work alone in its state-sanctioned duties discussed supra.  It is often the scenario where local municipal police officers and county deputies accompany DHR agents.

Violations of basic 4th Amendment  protections are not limited to Alabama and the remedies to improper actions by agents of the state are also not limited to state court review.  This additional check to improper acts by state agents and the results is best illustrated in Walsh v. Erie County Department of Job and Family Services.  Here, parents, individually and on behalf of their six children, sued county social workers, the county agency that employed social workers, the county board of commissioners, city, city police officers, and city police chief, asserting federal civil rights claims under § 1983 and state constitutional and common-law tort claims.[25]  42 U.S.C.A. § 1983 states, “Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, … subjects, or causes to be subjected, any citizen of the United States or another person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[26].  The individual defendants, in their capacity as ECDJFS caseworkers and police officers of the City of Vermilion, acted under color of state law. Therefore, the question is whether their actions violated the plaintiffs’ Fourth and Fourteenth Amendment rights.[27]

Just as in H.R. v. State Dep’t of Human Res cited supra, this case involved an anonymous complaint that was investigated by the State of Ohio’s equivalent to Alabama’s DHR.  An investigation was started and a home visit was conducted the day after by field agents Darnold and Brown. Both were denied entry to the home and denied access to the children.  The case workers returned with the local law enforcement officers. The homeowner, Mr. Walsh, asked if there was a warrant and was told that there was no warrant, but was told by a law enforcement supervisor, “If you make us go through the hassle of getting a warrant, rest assured we will cite you for anything we find in the home.” Sgt. Chandler also allegedly warned that if the plaintiffs did not allow the field agent into the home, Mr. Walsh could be arrested for obstruction of official business.[28]

Walsh still did not allow any access to his home after speaking with his attorney.  In light of the plaintiffs’ continuing refusal to permit Darnold and Brown to inspect the home, Darnold again called her supervisor. He advised Darnold to call an Erie County assistant prosecutor, who, in turn, advised Darnold to obtain a search warrant.[29]  While preparing an affidavit for a search warrant at the Vermilion Police Department, Chief Kish, gave Brown a radio, told her to return to the Walsh residence, and to let him know if the plaintiffs attempted to leave. Chief Kish then contacted Judge Wakefield of the Vermilion Municipal Court to obtain an “administrative” warrant.  Driving Darnold’s automobile, Brown returned to the Walsh residence and parked on the road in front of the house. She observed the children and parents entering a van and; according to Mr. Walsh, the family was leaving to go to a function at their church.[30]

The Walsh family never left their residence under facts disputed by the Walsh family and the other defendants named.  Chief Kish and Sergeant Chandler returned to the home while the affidavit for the search warrant was still being prepared.  Subsequently, Mr. Walsh was placed on the Darnold’s car and frisked where he and Chief Kish had a conversation. Chief Kish acknowledged that charges of obstructing official business were probably mentioned during his conversation with Mr. Walsh. Chief Kish testified: “All I knew is I talked to him and I explained that there are steps that could be taken and I said, ‘All we want to do is get in the house,’ and we had a conversation. I don’t remember all the words, all the details.”.[31]

Given these facts, the court cited actionable claims against the social workers to include:

1)      § 1983 Fourth Amendment claims;

2)      the failure to train claim against ECDJFS; and

3)      the state law claims of false arrest/false imprisonment and intentional infliction of emotional distress[32]

The City of Vermilion faced actionable claims to include:

1)      § 1983 Fourth Amendment claims; and

2)      the state law claims of false arrest/false imprisonment, assault, battery, and intentional infliction of emotional distress[33]

The court also went on to address the facts that § 1983 actions are not limited to just law enforcement officers, nor do they contain exceptions to the 4th Amendment regarding the type of investigation that is being conducted.  “The Fourth Amendment applies to them, as it does to all other officers and agents of the state whose requests to enter, however, benign or well-intentioned, are met by a closed door. There is, the defendants’ understanding and assertions to the contrary notwithstanding, no social worker exception…”.[34]

The law enforcement officers assisting other state agents should also serve as checks against unlawful violations that could rise to causes of action.  While some state agents may not have the necessary training and experience with 4th Amendment issues in the field law enforcement officers are expected to have knowledge of such considerations.  The court quoted this test, ” The relevant question … is the objective (albeit fact-specific) question whether a reasonable officer could have believed [defendants’] warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. [Defendants’] subjective beliefs about the search are irrelevant.”[35]

In conclusion, this look into the results of taking on a tough job with under trained, under supervised, and underpaid state agents.  The sovereign immunity provided to this state agency provides some level of protection. However, it is a regular tactic of the county agents of DHR to use local law enforcement officers to assist them.  This is particularly true in the initial investigation stages. These local law enforcement officers should be aware of the Constitutional considerations specific to search and seizure issues. All agents working together should work together to not only accomplish their duties but to also, accomplish their duties within the scope and authority of their positions as agents of the state.

[1] William Thornton, Governor’s DHR Task Force to look at ‘the big picture’, al.com, Oct. 14, 2015, http://www.al.com/news/index.ssf/2015/10/governors_dhr_task_force_to_lo.html

[2] Ala. Code § 26-14-2.

[3] Ala. Code § 38-2-6(10).

[4] Ala. Code § 26-14-6.1

[5] Ala. Admin. Code 660.

[6] Ala. Admin. Code 660-5-34-.02(1)(a-d).

[7] Ala. Admin. Code 660-5-30-.03.

[8] Ala. Admin. Code 660-5-34-.06.

[9] Id. at (4).

[10] H.R. v. State Dep’t of Human Res., 612 So. 2d 477 (Ala. Civ. App. 1992).

[11] Id. at 477-78.

[12] Id. at 478.

[13] Id. at 477, 479.

[14] Ala. Code § 26-14-7.1

[15] Ala. Admin. Code 660-5-34-.08.

[16] Ala. Code. § 26-14-7.1(1)(4).

[17] Ala. Admin. Code 660-5-34-.08(3).

[18] Id.

[19] Id. at (6)(b-c), (f), (n)(1-6).

[20] Duran v. Buckner, 157 So.3d 956 (Ala, Civ. App. 2014).

[21] Id. at 979.

[22] Id.

[23] Id. at 980.

[24] Duran v. Buckner, 157 So. 3d 956, 983 (Ala. Civ. App. 2014).

[25] Walsh v. Erie Cnty. Dep’t of Job & Family Servs., 240 F. Supp. 2d 731 (N.D. Ohio 2003).

[26] 42 U.S.C.A. § 1983 (West).

[27] Erie Cnty. Dep’t of Job & Family Servs., 240 F. Supp. 2d at 744.

[28] Id. at 741-42.

[29] Id. at 742.

[30] Id. at 742.

[31] Id. at 742-43.

[32] Id. at 768.

[33] Id. at 768.

[34] Id. at 746.

[35] Id. at 758.