This chapter shall be known and may be cited as the Child Care Act of 1971.

Terms used in this chapter, unless the context otherwise requires, have the meanings ascribed to them in this section. When not inconsistent with the context, words used in the present tense include the future, words in the singular number include the plural number, and words in the plural number include the singular number, and the word 'shall' is always mandatory and not merely directory:

(1) CHILD. Any person under 19 years of age, a person under the continuing jurisdiction of the juvenile court pursuant to Section 12-15-32, or a person under 21 years of age in foster care as defined by the Department of Human Resources.

(2) CHILD-CARE INSTITUTION or INSTITUTION FOR CHILD CARE. A child-care facility where more than 10 children are received and maintained for the purpose of providing them with care or training or both, or transitional living program services, but does not include:

a. Any institution for child care which is under the ownership or control, or both, of the State of Alabama, or which is operated or certified or licensed by another agency or department of the State of Alabama;

b. Any juvenile detention home established and operated by the State of Alabama;

c. Any bona fide boarding school in which children are primarily taught branches of education corresponding to those taught in public schools, grades 1 through 12, or taught in public elementary schools, high schools or both elementary and high schools.

(3) CHILD-PLACING AGENCY. A public or private child-care facility which receives, places, or arranges for the placement of any child or children in adoptive or foster family homes or other facilities for child care apart from the custody of the child's or children's parents. The term 'child-placing agency' includes, but is not limited to, all agencies established and maintained by a municipality or other political subdivision of the State of Alabama to protect, guard, train or care for children outside their own homes, but does not include any circuit court or juvenile court or any duly appointed juvenile probation officer or youth counselor of the court who receives and places children under an order of the court.

(4) DAY CARE CENTER. Any child-care facility receiving more than 12 children for daytime care during all or part of a day. The term 'day care center' includes, but is not limited to, facilities commonly called 'child-care centers,' 'day nurseries,' 'nursery schools,' 'kindergartens,' and 'play groups,' with or without stated educational purposes. The term further includes, but is not limited to, kindergarten or nursery schools or other daytime programs operated as a part of a private school and receiving children younger than lawful school age for daytime care for more than four hours a day, with or without stated educational purposes. The term does not include any of the following:

a. Kindergartens or nursery schools or other daytime programs operated by public elementary systems or secondary level school units or institutions of higher learning.

b. Kindergartens or nursery schools or other daytime programs, with or without stated educational purposes, operating no more than four hours a day and receiving children younger than lawful school age.

c. Kindergartens or nursery schools or other daytime programs operated as a part of a private school and receiving children younger than lawful school age for four hours a day or less, with or without stated educational purposes.

d. Facilities operated for more than four hours a day in connection with a shopping center or service or other similar facility, where transient children are cared for temporarily while parents or custodians of the children are occupied on the premises or are in the immediate vicinity and readily available. The facilities shall meet local and state fire and health requirements.

e. Any type of day care center that is conducted on federal government premises.

f. Special activities programs for children of lawful school age including, but not limited to, athletics, crafts instruction and similar activities conducted on an organized and periodic basis by civic, charitable and governmental organizations provided local and state fire and health requirements are met.

(5) DAY CARE HOME. A child-care facility which is a family home and which receives not more than six children for care during the day.

(6) DEPARTMENT. The Department of Human Resources of the State of Alabama.

(7) FACILITY FOR CHILD CARE or CHILD-CARE FACILITY. A facility established by any person, group of persons, agency, association or organization, whether established for gain or otherwise, who or which receives or arranges for care or placement of one or more children, unrelated to the operator of the facility, apart from the parents, with or without the transfer of the right of custody, in any facility as defined in this chapter, established and maintained for the care of children.

(8) FOSTER FAMILY HOME. A child-care facility in a residence of a family where the family receives a child or children, unrelated to that family, for the purpose of providing family care or therapeutic family care and training, or transitional living program services on a full-time basis. The types of foster family homes are defined as follows:

a. Boarding home. A foster family home wherein the foster family receives a child or children and receives payment for their care. The number of children so received shall not exceed six, unless the children are of common parentage.

b. Free home. A foster home which does not receive payment for the care of a child or children and which may or may not receive the child or children for the purpose of adoption.

(9) GROUP DAY CARE HOME. A child care facility which is a family home and which receives at least seven but no more than 12 children for care during part of the day where there are at least two adults present and supervising the activities.

(10) GROUP HOME. A child-care facility where at least seven but not more than 10 children are received and maintained for the purpose of providing them with care or training or both, or transitional living program services.

(11) MATERNITY CENTER. A facility in which any person, agency or corporation receives or cares for one or more minor pregnant girls, except that the term does not include hospitals.

(12) NIGHT CARE FACILITY. A child-care facility which is a center or a family home receiving a child or children for care during the night. A 'night care facility' is further defined as follows:

a. Nighttime center. A facility which is established to receive more than 12 children for nighttime care.

b. Nighttime home. A family home which receives no more than six children for nighttime care.

c. Group nighttime home. A child care facility which is a family home which receives at least seven but no more than 12 children for nighttime care and where there are at least two adults present and supervising the activities.

(13) RELATED. Any of the following relationships by blood, marriage or adoption: parent, grandparent, brother, sister, stepparent, stepbrother, stepsister, half brother, half sister, uncle or aunt, and their spouses.

(14) TRANSITIONAL LIVING FACILITY. A child-care facility or program that is designed to give opportunities to practice independent living skills to eligible persons at least 16 years of age and under 21 years of age in foster care in a variety of residential settings with varying degrees of care and supervision.

No person, group of persons or corporation may operate or conduct any facility for child care, as defined in this chapter, without being licensed or approved as provided in this chapter; provided, however, that nothing in this section or in this chapter prohibits an employee of the department from carrying out the duties of the department as provided in this title. Provided, further, the provisions of this chapter shall not apply to preschool programs which are an integral part of a local church ministry or a religious nonprofit elementary school, and are so recognized in the church or school's documents, whether operated separately or as a part of a religious nonprofit elementary school unit, secondary school unit or institution of higher learning under the governing board or authority of said local church or its convention, association, or regional body to which it may be subject; provided that notice is filed by the governing board or authority of the church or school with the department that said church or school meets the definition of a local church ministry or a religious nonprofit elementary school under terms of this section and are exempt from regulation by the department and a notice of intent to operate said programs is given to the appropriate fire and health departments so that said facilities shall be inspected in accordance with the state and local fire and health requirements for such programs. In addition, all exempt churches hereunder shall publish annually, on church letterhead, a notice to the department certifying that the following records are being maintained by the church: fire and health inspection reports; immunization vertifications for all children; medical history forms for all staff and children and that the following information shall be available to parents or guardian prior to enrolling their children in said church ministry; staff qualifications; pupil-staff ratio; discipline policies; type of curriculum used in the learning program; the religious teachings to be given each child; and the type of lunch program available; provided further that prior to enrolling and annually thereafter parents or guardian and a responsible individual representing the governing board as authority of the church or school be required to sign and file with the department the affidavits provided by this section that the parents or guardian have been notified by said responsible individual that the church or school has filed notice and is exempt from regulation by the department. The district attorney of the county in which the preschool program is located shall, upon proper presentment of charges, investigate at his discretion any allegations against any such church under the laws of the State of Alabama.

COUNTY OF _____

Before me, a notary public in and for said state and county, appeared _____ and is known to me, after being duly sworn or affirmed, says as follows:

That affiant is the parent or legal guardian of the minor child/children _____; that affiant has been notified by _____, a representative of _____ church/school, that said church or school has filed notice and is exempt under law from regulation by the Department of Human Resources.

______ Parent/Legal Guardian

Sworn, or affirmed to and subscribed before me this _____ day of _____, 19__

STATE OF ALABAMA

COUNTY OF _____

Before me, a notary public in and for said state and county, appeared _____ and is known to me, after being duly sworn or affirmed says as follows:

That affiant is the designated representative of _____ church/school and that the below listed parents/guardians have been notified prior to enrollment/reenrollment that _____ church/school has filed notice with and is exempt under law from regulation by the Department of Human Resources: ______

_______________ Representative

Sworn or affirmed to and subscribed before me this ____ day of ______, 19__ .

_______________ Notary Public

Any person, group of persons or corporation who or which receives children or arranges for care or placement of one or more children unrelated to the operator shall apply for a license or for approval to operate one of the types of child-care facilities defined in this chapter. Application for such license or approval to operate a child-care facility shall be made to the department in the manner and on forms prescribed by it. The department, upon receiving such application, shall examine the premises of the child-care facility, including buildings, equipment, furnishings and appliances thereof and shall investigate the persons responsible for the care of children therein. If, upon such examination of the facility and investigation of the persons responsible for care of children, the department is satisfied that the facility and the responsible persons reasonably meet standards prescribed for the type of child-care facility for which application is made, the department shall issue a license or an approval in the proper form, designating on said license or approval the type of child-care facility and, except for a child-placing agency, the number of children to be served at any one time. Application to operate a foster family home may be made to a licensed child-placing agency as defined in subdivision (7) of Section 38-7-2, and such licensed child-placing agency may examine said foster family home and investigate persons therein responsible for the care of children, and, upon being satisfied that the foster family home and the responsible persons reasonably meet standards prescribed by the department, said licensed child-placing agency may issue an approval to said foster family home.

(a) Licenses or approvals shall be issued in such form and manner as prescribed by the department and are valid for two years from the date issued, unless revoked by the department or voluntarily surrendered by the licensee, or by the child-care facility designated on the notice of approval, provided, that the following occur:

(1) Licenses or approvals for boarding homes are valid for one year from the date of issuance, unless revoked by the department, or by the licensed child-placing agency which issued the approval, or unless voluntarily surrendered by the licensee or by the child-care facility designated on the notice of approval.

(2) Approvals for free homes shall continue in effect until notice of disapproval is given by the department, or by the licensed child-placing agency which issued the approval, or until the child-care facility designated on the notice of approval voluntarily withdraws.

(b) The department may issue a six-month permit to a facility for child care to allow such facility reasonable time to become eligible for a full license; provided, however, that no such six-month permit shall be issued to a foster family home.

(c) Notwithstanding any other provision of law to the contrary, when a child is taken into the department's foster care or custody on an emergency basis, or when there is a disruption or imminent disruption in a current foster care placement requiring placement elsewhere, and a prospective foster home is available, the department or licensed child-placing agency may conduct a preliminary inspection of the home and issue a provisional approval of the home. The provisional approval shall continue in effect for no more than six months and is nonrenewable. A provisional approval may be denied or revoked by the department at any time for failure to meet minimum standards set by the department or for any reason set forth in Section 38-7-8.

(d) Prior to the emergency licensing of foster homes, the department shall adhere to the settlement agreement reached in the R.C. v. Nachman lawsuit relating to preferential treatment for family members concerning the placement of children.

(a) A licensed or approved child-care facility operating under this chapter shall apply for renewal of its license or approval, the application to be made to the department on forms prescribed by it; provided, however, that application for renewal of approval of a boarding home may be made to the licensed child-placing agency which issued the approval.

(b) The department shall reexamine every child-care facility for renewal of license or approval, including in that process, but not limited to, the examination of the premises and records of the facility and the persons responsible for the care of children as the department considers necessary to determine that minimum standards for licensing or approval continue to be met; provided, however, that in the case of a boarding home approved by a licensed child-placing agency, such reexamination may be made by said agency. If the department or the licensed child-placing agency, as the case may be, is satisfied that the facility continues to meet and maintain minimum standards which the department prescribes and publishes, the department shall renew the license or approval to operate the facility or the licensed child-placing agency shall renew its approval of a boarding home.

(a) The department shall prescribe and publish minimum standards for licensing and for approving all child-care facilities, as defined in this chapter. In establishing such standards the department shall seek the advice and assistance of persons representative of the various types of child-care facilities. The standards prescribed and published under this chapter shall include regulations pertaining to:

(1) The operation and conduct of the child-care facility and the responsibility it assumes for child care;

(2) The character, suitability and qualifications of the applicant and other persons directly responsible for the care and welfare of children served;

(3) The general financial ability and competence of the applicant to provide necessary care for children and to maintain prescribed standards;

(4) The number of individuals or staff required to insure adequate supervision and care of the children served;

(5) The appropriateness, safety, cleanliness and general adequacy of the premises, including maintenance of adequate fire prevention and health standards conforming to state laws and municipal codes to provide for the physical comfort, care, well-being and safety of children served;

(6) Provisions for food, clothing, educational opportunities, program equipment and individual supplies to assure the healthy physical and mental development of children served, consistent with the definitions contained in this chapter;

(7) Maintenance of records pertaining to the admission, progress, health and discharge of children, and provisions for confidentiality of such records;

(8) Filing of reports with the department; and

(9) Discipline of children.

(b) If, in a facility for child care, there are children diagnosed as mentally ill, mentally retarded or physically handicapped who are determined to be in need of special mental treatment or of nursing care, or both mental treatment and nursing care, the department shall seek the advice and recommendation of the Department of Mental Health or the State Board of Health, or of both, regarding the residential treatment and nursing care provided by the facility.

(c) The department, in applying standards prescribed and published, as herein provided, shall offer consultation through employed staff or other specified persons to assist applicants and licensees in meeting and maintaining minimum requirements for a license and to help them otherwise to achieve programs of excellence related to the care of children served.

The department may revoke or refuse to renew the license or the approval of any child-care facility or refuse to issue a full license to the holder of a six-month permit should the license or the child-care facility designated on the notice of approval or the holder of a six-month permit:

(1) Consistently fail to maintain standards prescribed and published by the department;

(2) Violate the provisions of the license issued;

(3) Furnish or make any misleading or any false statements or report to the department;

(4) Refuse to submit to the department any reports or refuse to make available to the department any records required by the department in making investigation of the child-care facility for licensing purposes; provided, however, that the department shall not revoke or refuse to renew a license in such case unless it has made written demand on the person, firm or corporation operating the facility requesting such report or reports and such person, firm or corporation fails or refuses to submit such records for a period of 10 days;

(5) Fail or refuse to submit to an investigation by the department;

(6) Fail or refuse to admit authorized representatives of the department at any reasonable time for the purpose of investigation;

(7) Fail to provide, maintain, equip and keep in safe and sanitary condition premises established or used for child care as required under standards prescribed by the department, or as otherwise required by any law, regulation or ordinance applicable to such facility;

(8) Refuse to display its license or permit; or

(9) Fail to maintain financial resources adequate for the satisfactory care of children served in regard to upkeep of premises and provisions for personal care, medical services, clothing, learning experience and other essentials in the proper care, rearing and training of children.

In the event a party or an applicant for a license or a licensee is denied a license or a renewal of a license or has a license suspended or revoked for the operation of a child-care facility required by this chapter to be licensed by the department, or in the event an application for such a license or renewal of a license is not acted upon with reasonable promptness, or in the event an approval required by this chapter to be issued by the department is denied or revoked or unduly delayed, any aggrieved party may appeal to the department for a fair hearing of his case. Notice and opportunity for a fair hearing and notice of right to counsel shall be given the appellant by the department, and at this hearing any party at interest may appear and present any relevant facts. The decision or action of the department on any fair hearing on any such appeal shall be final and binding and shall be complied with.

Any party aggrieved by a final decision or action of the department refusing to grant or to issue, or suspending or revoking a license or an approval for the operation of any child-care facility required by law to be licensed or approved by the department is entitled to a review of such final decision or action by filing a complaint with the circuit court in the county in which the child-care facility is located or in the Circuit Court of Montgomery County, Alabama. All such complaints shall be filed within 30 days from the date of such final decision or action, and a review shall be granted as a matter of right upon the filing with the department of a bond for security of costs of said review and upon filing said complaint both with the register or clerk of the circuit court, as designated hereinabove, and with the department. The court may set aside the final decision of the department only upon a finding of the court that such final decision was illegal, capricious or unsupported by the evidence. Upon motion of either party or upon its own motion the court may at its discretion take additional evidence. The provisions of this section shall not apply to boarding homes and free homes as defined in this chapter.

Whenever the department is advised or has reason to believe that any person, group of persons or corporation is operating a child-care facility without a license or an approval or a six-month permit, it may make an investigation to ascertain the fact. If it finds that the child-care facility is being operated or has operated without a license or an approval or a six-month permit, it shall report the results of its investigation to the Attorney General and to the appropriate district attorney for prosecution; provided, however, that the department may delay in making said report to the Attorney General for a reasonable period of time, not to exceed 60 days, in order to give the person, group of persons or corporation operating the child-care facility reasonable opportunity to apply for a license or an approval or a six-month permit, and, therefore, to meet the standards prescribed in this chapter.

The department shall have the right and its authorized representatives shall be afforded reasonable opportunity, to inspect any child-care facility seeking a license or an approval or a six-month permit pursuant to this chapter, any child-care facility seeking a renewal of a license or an approval or a six-month permit pursuant to this chapter and any child-care facility which is operating under a license or an approval or a six-month permit issued pursuant to this chapter. Such inspection shall include, but not be limited to, premises, services, personnel, program, accounts and records, interviews with agents and employees of the child-care facility being inspected and interviews with any child or other person within the custody or control of said child-care facility. Such inspection shall be made at any reasonable time, without prior notice, and as often as necessary to enforce and administer the provisions of this chapter. It shall be the duty of the department, through its agents, to conduct the inspections authorized hereinabove. If any such inspection of a licensed or approved child-care facility discloses any condition, deficiency, dereliction or abuse which is, or could be, hazardous to the health, the safety or the physical, moral or mental well-being of the children in the care of the child-care facility being inspected, the same shall at once be brought to the attention of the department, and the department shall have the power to revoke without notice the license or approval or six-month permit of such child-care facility. In this event, the child-care facility shall not operate during the pendency of any proceeding for fair hearing or judicial review, except under court order.

A child-care facility licensed or approved or operating under a six-month permit issued by the department may publish advertisements of the services for which it is specifically licensed or approved or issued a permit under this chapter. No person, unless licensed or approved or holding a permit as a child-care facility, may cause to be published any advertisement soliciting a child or children for care or placement or offering a child or children for care or placement.

Every child-care facility shall keep and maintain such records as the department may prescribe pertaining to the admission, progress, health and discharge of children under the care of the facility. Records regarding children and facts learned about children and their relatives shall be kept confidential by the child-care facility and by the department. The department is authorized to promulgate rules and regulations governing the custody, use and disclosure of information in such records. Any person who has arrived at the age of 19 and who was placed by the department or by a licensed child-placing agency shall have the right to receive from the department or from the licensed child-placing agency information concerning his placement; except, that the name and address of a natural parent or relative shall be given by the department or the licensed child-placing agency only with the consent of said natural parent or relative.

Every child-care facility shall make reports to the department on forms prescribed by the department and at times required by the department, giving information pertaining to the children under care and such other facts as the department may require.

(a) No person or agency shall bring or send any child into the State of Alabama for the purpose of placing him or procuring his adoption or placing him in any child-care facility, as defined herein, without first obtaining the consent of the department. The department shall have the power to impose and enforce reasonable conditions precedent to the granting of such consent. Such conditions shall be for the purpose of providing the same care and protection for the child coming into the State of Alabama for placement or adoption as are afforded to a child who is born in the State of Alabama, and such conditions shall include the following:

(1) The department shall be authorized to designate an agency in another state from which said child is being brought or sent, or in which said child's parents or guardian may be found, to interview said parent or parents or guardians, or at least one of them, for the purpose of obtaining social information, background information and medical information about said child;

(2) The department shall be authorized to receive such information from the designated agency in the other state;

(3) The department shall be authorized to receive the birth certificate of said child from the designated agency in the other state or from other appropriate agency in the other state;

(4) The department shall be authorized to make a thorough investigation of the proposed foster parent or parents, and their home, to determine whether or not they are financially able, physically able and morally fit to have the care, supervision, training and control of said child;

(5) The department shall be authorized to make a thorough investigation of any child-care facility to which any child is being brought or sent to determine conformity to minimum standards prescribed herein for approval or licensing and to determine the suitability of such child-care facility for the care, supervision, training and control of said child;

(6) In case said child, subsequent to being brought into the State of Alabama, becomes dependent, neglected or delinquent prior to his adoption or becoming of legal age of majority, said child shall be subject to the laws of the State of Alabama as if he were a resident child of this state;

(7) The child will be placed in conformity with the rules and regulations of the department;

(8) The person with whom the child is placed shall be responsible for his proper care and training;

(9) The department shall have the right of visitation and supervision of the child and the home or the child-care facility in which he is placed until adoption becomes final or the child becomes 18 years of age;

(10) The department may, pursuant to the provisions of this chapter, prescribe the conditions of an agreement or contract with the designated out-of-state agency, when a child is brought into the State of Alabama.

(b) The person or agency receiving the child in Alabama shall report to the department at such reasonable times as the department may direct, as to the location and well-being of the child, so long as he shall remain within the state and until he shall have reached the age of 18 years or shall have been legally adopted.

Any person, group of persons, association or corporation who:

(1) Conducts, operates or acts as a child-care facility without a license, or a six-month permit or an approval to do so in violation of the provisions of this chapter;

(2) Makes materially false statements in order to obtain a license or permit;

(3) Fails to keep the records and make the reports provided under this chapter;

(4) Advertises any service not authorized by the license or permit held;

(5) Publishes any advertisement in violation of this chapter;

(6) Receives within this state any child in violation of Section 38-7-15;

(7) Violates any other provision of this chapter or any reasonable rule or regulation adopted and published by the department for the enforcement of the provisions of this chapter,

In a prosecution under this chapter, a defendant who relies upon the relationship of any child to himself has the burden of proof as to that relationship.

It shall be the duty of every district attorney or assistant district attorney within the circuit, county or other territory for which he is elected or appointed to institute action for the enforcement of the provisions of this chapter or to prosecute action for the violation of the provisions of this chapter, or both.

(a) There is hereby provided a mandatory state subsidized child day-care services program within the Department of Human Resources for a minimum average of 6,500 eligible children at not less than the current Department of Human Resources payment rates for a payment-to-provider cost of not less than $8,600,000.00, annually, based on fiscal year ending September 30, 1987.

(b) There is hereby provided, in addition to any and all other appropriations to the Department of Human Resources, a conditional appropriation of $2,400,000.00 from the Alabama special educational trust fund for the fiscal year beginning October 1, 1987, to the Department of Human Resources, to provide child day-care services for an additional 1,800 eligible children. The appropriation herein provided is conditional upon the condition of the Alabama special educational trust fund as ascertained by the Governor, and shall be released only upon orders of the Governor.

The Department of Human Resources may contract for utility services, purchase real or personal property, or enter into lease agreements for and may operate residences to be used as transitional living facilities to provide transitional living program services to an eligible child as defined in Section 38-7-2.