P.H. v. Alabama Department of Human Resources (Appeal from Montgomery Circuit Court: CV-24-900008).

Rel: January 17, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
________________________

CL-2024-0653
________________________

P.H.

v.

Alabama Department of Human Resources

Appeal from Montgomery Circuit Court
(CV-24-900008)

MOORE, Presiding Judge.

P.H. appeals from a judgment entered by the Montgomery Circuit

Court ("the circuit court"), which affirmed a finding of the Jefferson

County Department of Human Resources ("the Jefferson County DHR")

that P.H. was "indicated" for sexual abuse. We affirm the judgment.
CL-2024-0653

Background

In 2020, the Jefferson County DHR received a report that P.H., a

16-year-old male, had been sexually abusing his two adoptive siblings,

G.H., a 12-year-old male, and E.H., an 8-year-old female. Pursuant to

Ala. Code 1975, § 26-14-6.1(3), the Jefferson County DHR investigated

the matter. Upon completion of the investigation, the Jefferson County

DHR found that P.H. was "indicated" for sexual abuse consisting of

inappropriate sexual touching and indecent exposure. An "indicated"

finding is made "[w]hen credible evidence and professional judgment

substantiates that an alleged perpetrator is responsible for child abuse

or neglect." Ala. Code 1975, § 26-14-8(a)(1). The Jefferson County DHR

notified P.H. of the "indicated" finding and informed him:

"You have the right to an administrative record review. This
means that the county's written report will be reviewed by an
independent panel of [Department of Human Resources]
employees who are not involved in the case. The panel
members will review the written report and make a final
decision about whether the written report supports the
finding. The panel has the authority to overturn the ...
decision if the documentation does not support the findings."

P.H. requested and received an administrative-record review by the

Alabama Department of Human Resources ("DHR"), which upheld the

"indicated" finding and informed P.H. that "[t]his report will be entered
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into DHR's Central Registry on Child Abuse and Neglect as an 'indicated'

incident." P.H. commenced a civil action against Nancy Buckner, the

commissioner of DHR, and, through a settlement of that action, DHR

agreed to provide P.H. an evidentiary hearing before an administrative-

law judge ("ALJ"), so that he could further challenge the "indicated"

finding. As had been agreed, the parties submitted to the hearing, which

was concluded when, on December 4, 2023, the ALJ issued an 11-page

order affirming the "indicated" finding.

On December 13, 2023, P.H. filed a notice of appeal of the ALJ's

decision with DHR, and, on January 3, 2024, he filed with the circuit

court a petition for judicial review and a petition for the writ of certiorari.

The circuit court reviewed the certified administrative record that had

been provided by DHR and conducted oral argument before entering a

final judgment on July 10, 2024, affirming the "indicated" finding. P.H.

timely filed a notice of appeal.

Issue
P.H. argues that the circuit court erred in affirming the

determination of DHR that P.H. was "indicated" for sexual abuse

because, he says, DHR's decision was unreasonable, was arbitrary and

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capricious, was unwarranted, and was unsupported by the evidence in

the administrative record.

Standard of Review

As noted, P.H. filed in the circuit court both a petition for judicial

review and a petition for the writ of certiorari. Section 41-22-20, Ala.

Code 1975, authorizes an appeal from a final decision of a statewide

administrative agency in a "contested case," which is defined as "[a]

proceeding ... in which the legal rights, duties, or privileges of a party

are required by law to be determined by an agency after an opportunity

for hearing." Ala. Code 1975, § 41-22-3(3) (emphasis added).

In the context of a challenge to an "indicated" finding, DHR has a

statutory duty to provide an opportunity for a hearing to a person

preliminarily determined to be "indicated" for child abuse or neglect

"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 ...."

Ala. Code 1975, § 26-14-7.1; see also Ala. Admin. Code (Dep't of Hum.

Res.), r. 660-5-34-.08(2). Alabama law does not require DHR to provide

a hearing for other persons aggrieved by a preliminary "indicated"
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finding. See Duran v. Buckner, 157 So. 3d 956, 973 (Ala. Civ. App. 2014).

Pursuant to DHR's regulations, all other persons aggrieved by an

"indicated" finding are entitled only to an administrative-record review.

See Ala. Admin. Code (Dep't of Hum. Res.), r. 660-5-34-.08(3) ("The record

review is completed to determine if the [child-abuse/neglect] assessment

contains sufficient documentation based on a preponderance of credible

evidence to support the 'indicated' disposition of child abuse/neglect.").

In this case, P.H. was not in the class of persons entitled to an

opportunity for a hearing to contest the "indicated" finding.

Consequently, although DHR voluntarily provided P.H. a hearing, the

hearing was not part of a "contested case" and the final decision to affirm

the "indicated" finding could not be appealed pursuant to § 41-22-20.

P.H. could only obtain judicial review of the administrative order

affirming the "indicated" finding through the common-law petition for

the writ of certiorari. See G.W. v. Dale Cnty. Dep't of Hum. Res., 939 So.

2d 931 (Ala. Civ. App. 2006).1

1"When filing a common-law petition for the writ of certiorari, the

petitioner had to name the lower tribunal whose record was to be
examined as the sole respondent." City of Montgomery v. Ferguson, [Ms.
CL-2024-0269, Sept. 27, 2024] ___ So. 3d ___, ___ (Ala. Civ. App. 2024).
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CL-2024-0653

In certiorari proceedings, the circuit court looks to the record to

determine whether the lower tribunal had jurisdiction and exercised its

jurisdiction in accordance with due process and the law. See G.W., 939

So. 2d at 934 n.4. "Questions of fact or weight or sufficiency of the

evidence will not be reviewed on certiorari." Personnel Bd. of Jefferson

Cnty. v. Bailey, 475 So. 2d 863, 868 (Ala. Civ. App. 1985).

" '[T]he standard of review for certiorari limits the scope
of review to questions of law and does not extend to review of
the weight and preponderance of the evidence.' Parker v.
Reaves, 531 So. 2d 853 (Ala. 1988). Thus, 'if there is any legal
evidence to support the decision of the lower tribunal, such is
conclusive on the reviewing court.' Lovelady v. Lovelady, 281
Ala. 642, 206 So. 2d 886 (1968). In other words, the only
question for the reviewing court is 'whether the evidence will
justify the finding [of the lower tribunal] as a legitimate
inference from the facts proved regardless of whether such
inference would or would not have been drawn by the
appellate tribunal.' Alabama Electric Cooperative v. Alabama
Power Co., 278 Ala. 123, 126, 176 So. 2d 483, 485 (1965)."

Sanders v. City of Dothan, 642 So. 2d 437, 440 (Ala. 1994). "This court's

scope of appellate review is the same as that of the circuit court." Colbert

Cnty. Bd. of Educ. v. Johnson, 652 So. 2d 274, 276 (Ala. Civ. App. 1994).

In this case, DHR was the only appropriate respondent, so we have
restyled the case to reflect the proper appellee.
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CL-2024-0653

We therefore review the administrative record to determine whether

DHR's decision was supported by any legal evidence.

Analysis

We find no need to detail the evidence in this case. The ALJ

received oral testimony and exhibits showing that P.H. had sexually

abused G.H. and E.H. At the hearing, P.H., who had initially denied any

sexual activity amongst the siblings, admitted to the abuse and testified

that he had "pleaded true" in a juvenile delinquency proceeding to the

crime of sexual misconduct based on his abusive actions. That legal

evidence more than amply supports DHR's determination that P.H. was

"indicated" for child sexual abuse. P.H. argues, however, that DHR acted

arbitrarily and irrationally by filing the "indicated" report in the child-

abuse and neglect registry. We do not consider that argument to be

within the scope of our review.

In the settlement agreement, P.H. and DHR agreed that DHR

would provide P.H. with an evidentiary hearing regarding the disposition

of the child-abuse and neglect investigation. The settlement agreement

provides, in pertinent part:

"[DHR] shall arrange for and provide an administrative
hearing to [P.H.] regarding the matters asserted in the
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'indicated' report .... Parties understand that the provision of
a hearing does not necessarily mean that [P.H.] will be found
'not indicated,' but rather that an administrative law judge
will hear all relevant evidence and make a final
determination as to the disposition of the report."

Their agreement called for a hearing only as to whether the report should

show that P.H. was "indicated" for child sexual abuse. The parties did

not agree that the hearing would also address whether the report, if

finally determined to be "indicated," would or would not be filed in the

child-abuse and neglect registry.

Before the hearing, the ALJ ordered DHR to provide P.H. with "a

short and plain statement of the matters which will be presented at the

hearing." See Ala. Admin. Code (Dep't of Hum. Res.), r. 660-1-5-.21(a)

(requiring DHR to provide such a statement). In compliance with that

order, DHR filed a statement setting forth two issues for consideration at

the hearing:

"1. Whether [P.H.] engaged in inappropriate sexual
behavior with [E.H.] and [G.H.] by touching the children on
their private areas ... and by exposing himself to the children
throughout the Summer and Fall of 2020.

"2. Whether the conduct of [P.H.] in and around the
Summer and Fall of 2020 constitutes Child Abuse -- Sexual
Abuse and Sexual Molestation as defined by Ala. Code 1975,
[§] 26-14-1 and Alabama Department of Human Resources

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Administrative Code Chapter 660-5-34-.02(2)(b) and
(3)(a)(8,9)."

At the commencement of the hearing, the ALJ read that statement into

the record and informed P.H. that only those two issues would be

considered during the hearing. P.H., who was represented by legal

counsel, did not object to the ALJ's description of the scope of the

proceedings.

During the hearing, P.H. submitted evidence designed to show that

he had accepted responsibility for his sexual misconduct; that he had

apologized to G.H. and E.H., who had forgiven him; that he had

completed all steps necessary to fulfill the terms of his probation; that he

had been exempted by the juvenile-court judge who had overseen his

delinquency case from registering as a sex offender under the Alabama

Sex Offender Registration and Community Notification Act ("the

SORCNA"), Ala. Code 1975, § 15-20A-1 et seq.; that he had rehabilitated

and had corrected his deviant sexual behavior; that P.H.'s therapist

opined that he had only a "low" risk of reoffending; and that the family

had been safely reunited. At the close of the hearing, counsel for P.H.

argued that the "indicated" report should not be filed in the child-abuse

and neglect registry because, he said, P.H. was no longer a danger to
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CL-2024-0653

sexually abuse children and the state had no rational basis for

maintaining the report; it could unfairly jeopardize P.H.'s future

employment prospects; it would allow the state to disclose P.H.'s sexual

abuse even though he was exempt from the SORCNA; and it would result

in an uneven application of the law because G.H., who the evidence

indicated had also participated in the sexual activity, was not included

in the "indicated" report due to his younger age.

In the final decision, the ALJ reiterated that the purpose of the

hearing was to decide only the two issues submitted for consideration.

Regarding those issues, the ALJ found that there was sufficient evidence

to support the sexual-abuse allegations and that the conduct committed

by P.H. met the relevant legal definitions to justify a conclusion that P.H.

had sexually abused G.H. and E.H. The ALJ further concluded:

"There is no provision of the law that permits the
reversal of a valid 'indicated' finding based solely on a person’s
rehabilitation. Further, the evidence does not support a
finding that [P.H.'s therapist's] opinion on [P.H.]'s risk of
recidivism is currently valid, nor does it support a general
finding that [P.H.] is unlikely to offend again.

"Accordingly, the decision of [the Jefferson County
DHR] to 'indicate' [P.H.] for 'Sexual Molestation' and 'Sexual
Penetration' is AFFIRMED."

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(Capitalization in original.) The ALJ did not address whether DHR

should forgo filing the "indicated" determination in the child-abuse and

neglect registry for the reasons asserted by P.H.'s counsel at the close of

the hearing.

" 'The appropriate office of the writ is to correct errors of law

apparent on the face of the record.' " G.W., 939 So. 2d at 934 n.4 (quoting

City of Birmingham v. Southern Bell Tel. & Tel. Co., 203 Ala. 251, 252,

82 So. 519, 520 (1919)). In certiorari proceedings, the reviewing court is

limited "to an examination into the external validity of the proceeding

had in the lower tribunal. It [could not] be exercised to review the

judgment as to its intrinsic correctness, either on the law or on the facts

of the case." Alabama Elec. Coop., Inc. v. Alabama Power Co., 278 Ala.

123, 126, 176 So. 2d 483, 485 (1964). The reviewing court cannot consider

questions of law not adjudicated by the lower tribunal. See Cranford v.

National Sur. Corp., 231 Ala. 636, 637, 166 So. 721, 721-22 (1936); City

of Birmingham v. Norwood, 220 Ala. 497, 499, 126 So. 619, 621 (1930);

and La Rue v. Loveman, Joseph & Loeb, 220 Ala. 2, 3, 127 So. 241, 243

(1929). "[T]he only matter to be determined is the quashing or the

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affirmation of the proceedings brought up for review." City of

Birmingham, 203 Ala. at 252, 82 So. at 520.

The ALJ properly determined that P.H. had committed unlawful

acts of sexual misconduct against G.H. and E.H. that justified the

"indicated" finding and that no statute or other law allows an "indicated"

finding to be reversed based on the subsequent rehabilitation of the

abuser. The evidence fully supports the ALJ's factual determinations

and P.H. does not challenge the ALJ's legal conclusion that Alabama law

does not recognize rehabilitation as a ground for reversing an "indicated"

finding. Accordingly, its decision on those points was due to be affirmed,

as the circuit court decided. We cannot now consider reversing the

decision on the grounds raised by P.H.'s counsel at the close of the

hearing before the ALJ, which were not addressed in the final decision.

Therefore, we affirm the judgment of the circuit court.

AFFIRMED.

Hanson, Fridy, and Lewis, JJ., concur.

Edwards, J., concurs in the result, without opinion.

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