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Decisions of the United States Supreme Court Upholding Parental
Rights as âFundamentalâ
In Alienation of Affection, Best Interest of the Child, CPS,
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motherlessness, mothers rights, parental alienation, parental
rights on June 29, 2009 at 8:24 pm
by Christopher J. Klicka, Esq.
The Supreme Court of the United States has traditionally and
continuously upheld the principle that parents have the
fundamental right to direct the education and upbringing of
their children. A review of cases taking up the issue shows that
the Supreme Court has unwaveringly given parental rights the
highest respect and protection possible. What follows are some
of the examples of the Courtâs past protection of parental
rights.
In Meyer v. Nebraska,1 the Court invalidated a state law which
prohibited foreign language instruction for school children
because the law did not âpromoteâ education but rather
âarbitrarily and unreasonablyâ interfered with âthe
natural duty of the parent to give his children education
suitable to their station in lifeâŚâ 2 The court chastened
the legislature for attempting âmaterially to interfereâŚ
with the power of parents to control the education of their
own.â 3 This decision clearly affirmed that the Constitution
protects the preferences of the parent in education over those
of the State. In the same decision, the Supreme Court also
recognized that the right of the parents to delegate their
authority to a teacher in order to instruct their children was
protected within the liberty of the Fourteenth Amendment. 4
Furthermore, the Court emphasized, âThe Fourteenth Amendment
guarantees the right of the individual ⌠to establish a home
and bring up children, to worship God according to his own
conscience.â5
In 1925, the Supreme Court decided the Pierce v. Society of
Sisters6 case, thereby supporting Meyerâs recognition of the
parentsâ right to direct the religious upbringing of their
children and to control the process of their education. In
Pierce, the Supreme Court struck down an Oregon compulsory
education law which, in effect, required attendance of all
children between ages eight and sixteen at public schools. The
Court declared,
Under the doctrine of Meyer v. Nebraska, we think it
entirely plain that the Act of 1922 unreasonably interferes with
the liberty of parents and guardians to direct the upbringing
and education of children.7 [emphasis supplied]
In addition to upholding the right of parents to direct the
upbringing and the education of their children, Pierce also
asserts the parentsâ fundamental right to keep their children
free from government standardization.
The fundamental theory of liberty upon which all governments
in this Union repose excluded any general power of the state to
standardize its children by forcing them to accept instruction
from public teachers only. The child is not the mere creature of
the state; those who nurture him and direct his destiny have the
right and the high duty, to recognize and prepare him for
additional obligations. 8 [emphasis supplied]
The Supreme Court uses strong language in asserting that
children are not âthe mere creature of the State.â The
holding in Pierce, therefore, preserves diversity of process of
education by forbidding the State to standardize the education
of children through forcing them to only accept instruction from
public schools.
In Farrington v. Tokushige, the Court again upheld parental
liberty by striking down legislation which the Court admitted
would have destroyed most, if not all private schools. 9 The
Court noted that the parent has the right to direct the
education of his own child without unreasonable restrictions. 10
In support of this assertion the Court explained,
The capacity to impart instruction to others is given by the
Almighty for beneficent purposes and its use may not be
forbidden or interfered with by government â certainly not,
unless such instruction is, in its nature, harmful to the public
morals or imperils the public safety. 11
The parentsâ right to instruct their children clearly takes
precedence over the stateâs regulatory interest unless the
public safety is endangered.
Similarly, in Prince v. Massachusetts, 12 the Supreme Court
admitted the high responsibility and right of parents to control
the upbringing of their children against that of the State.
It is cardinal with us that the custody, care, and nurture
of the child reside first in the parents, whose primary function
and freedom include preparation for obligations the State can
neither supply nor hinder.13 [emphasis supplied]
Twenty-one years later, the Supreme Court, in Griswold v.
Connecticut, emphasized that the state cannot interfere with the
right of a parent to control his childâs education. 14 The
Court stated that the right to educate oneâs child as one
chooses is guaranteed in the Bill of Rights and applicable to
the States by the First and Fourteenth Amendments.15
Forty-eight years after Pierce, the U.S. Supreme Court once
again upheld Pierce as âthe charter of the rights of parents
to direct the upbringing of their children.â 16 In agreement
with Pierce, Chief Justice Burger stated in the opinion of
Wisconsin v. Yoder in 1972:
This case involves the fundamental interest of parents, as
contrasted with that of the state, to guide the religious future
and education of their children. The history and culture of
Western civilization reflect a strong tradition of parental
concern for the nurture and upbringing of their children. This
primary role of the parents in the upbringing of their children
is now established beyond debate as an enduring tradition. 17
[emphasis supplied]
This case involved a family of the Amish religion who wanted to
be exempt after eighth grade from the public schools to be
instructed at home. In its opinion the U.S. Supreme Court
further emphasized that:
Thus a stateâs interest in universal education, however
highly we rank it, is not totally free from a balancing process
when it impinges on fundamental rights and interests, such as
those specifically protected by the Free Exercise Clause of the
First Amendment, and the traditional interest of parents with
respect to the religious upbringing of their children . . . This
case involves the fundamental and religious future and education
of their children. 18 [emphasis supplied]
Consequently, it is clear the constitutional right of a parent
to direct the upbringing and education of his child is firmly
entrenched in the U.S. Supreme Court case history. Furthermore,
a higher standard of review applies to fundamental rights such
as parental liberty than to other rights. When confronted with a
conflict between parentsâ rights and state regulation, the
court must apply the âcompelling interest test.â Under this
test, the state must prove that its infringement on the
parentsâ liberty is essential to fulfill a compelling interest
and is the least restrictive means of fulfilling this state
interest. Simply proving the regulation is reasonable is not
sufficient.
Below are excerpts from over a dozen United States Supreme Court
cases where, primarily in dicta, the Court has declared parental
rights to be fundamental rights which require a higher standard
of review (i.e. the âcompelling interest testâ).
1. Paris Adult Theater v. Slaton, 413 US 49, 65 (1973)
In this case, the Court includes the right of parents to rear
children among rights âdeemed fundamental.â
Our prior decisions recognizing a right to privacy guaranteed by
the 14th Amendment included only personal rights that can be
deemed fundamental or implicit in the concept of ordered liberty
. . . This privacy right encompasses and protects the personal
intimacies of the home, the family, marriage, motherhood,
procreation, and child rearing . . . cf . . . Pierce v. Society
of Sisters; Meyer v. Nebraska . . . nothing, however, in this
Courtâs decisions intimates that there is any fundamental
privacy right implicit in the concept of ordered liberty to
watch obscene movies and places of public accommodation.
[emphasis supplied]
2. Carey v. Population Services International, 431 US 678,
684-686 (1977)
Once again, the Court includes the right of parents in the area
of âchild rearing and educationâ to be a liberty interest
protected by the Fourteenth Amendment, requiring an application
of the âcompelling interest test.â
Although the Constitution does not explicitly mention any
right of privacy, the Court has recognized that one aspect of
the liberty protected by the Due Process Clause of the 14th
Amendment is a âright of personal privacy or a guarantee of
certain areas or zones of privacy . . . This right of personal
privacy includes the interest and independence in making certain
kinds of important decisions . . . While the outer limits of
this aspect of privacy have not been marked by the Court, it is
clear that among the decisions that an individual may make
without unjustified government interference are personal
decisions relating to marriage . . . family relationships,
Prince v. Massachusetts, 321 US 158 (1944); and child rearing
and education, Pierce v. Society of Sisters, 268 US 510 (1925);
Meyer v. Nebraska, 262 US 390 (1923).â [emphasis supplied]
The Court continued by explaining that these rights are not
absolute and,
certain state interests . . . may at some point become
sufficiently compelling to sustain regulation of the factors
that govern the abortion decision . . .. Compelling is, of
course, the key word; where decisions as fundamental as whether
to bear or beget a child is involved, regulations imposing a
burden on it may be justified only by a compelling state
interest, and must be narrowly drawn to express only those
interests. [emphasis supplied]
3. Maher v. Roe, 432 US 464, 476-479 (1977)
We conclude that the Connecticut regulation does not impinge
on the fundamental right recognized in Roe âŚ
There is a basic difference between direct state
interference with a protected activity and state encouragement
of an alternative activity consonant with legislative policy âŚ
This distinction is implicit in two cases cited in Roe in
support of the pregnant womanâs right under the 14th
Amendment. In Meyer v. Nebraska. . .. the Court held that the
teacherâs right thus to teach and the right of parents to
engage in so to instruct their children were within the liberty
of the 14th Amendment . . . In Pierce v. Society of Sisters . .
. the Court relied on Meyer . . . reasoning that the 14th
Amendmentâs concept of liberty excludes any general power of
the state to standardize its children by forcing them to accept
instruction from public teachers only. The Court held that the
law unreasonably interfered with the liberty of parents and
guardians to direct the upbringing and education of the children
under their control âŚ
Both cases invalidated substantial restrictions of
constitutionally protected liberty interests: in Meyer, the
parentâs right to have his child taught a particular foreign
language; in Pierce, the parentâs right to choose private
rather than public school education. But neither case denied to
a state the policy choice of encouraging the preferred course of
action ⌠Pierce casts no shadow over a stateâs power to
favor public education by funding it â a policy choice pursued
in some States for more than a century ⌠Indeed in Norwood v.
Harrison, 413 US 455, 462, (1973), we explicitly rejected the
argument that Pierce established a âright of private or
parochial schools to share with the public schools in state
largesse,â noting that âIt is one thing to say that a state
may not prohibit the maintenance of private schools and quite
another to say that such schools must as a matter of equal
protection receive state aidâ ⌠We think it abundantly clear
that a state is not required to show a compelling interest for
its policy choice to favor a normal childbirth anymore than a
state must so justify its election to fund public, but not
private education.. [emphasis supplied]
Although the Maher decision unquestionably recognizes parentsâ
rights as fundamental rights, the Court has clearly indicated
that private schools do not have a fundamental right to state
aid, nor must a state satisfy the compelling interest test if it
chooses not to give private schools state aid. The Parental
Rights and Responsibilities Act simply reaffirms the right of
parents to choose private education as fundamental, but it does
not make the right to receive public funds a fundamental right.
The PRRA, therefore, does not in any way promote or strengthen
the concept of educational vouchers.
4. Parham v. J.R., 442 US 584, 602-606 (1979).
This case involves parentâs rights to make medical decisions
regarding their childrenâs mental health. The lower Court had
ruled that Georgiaâs statutory scheme of allowing children to
be subject to treatment in the stateâs mental health
facilities violated the Constitution because it did not
adequately protect childrenâs due process rights. The Supreme
Court reversed this decision upholding the legal presumption
that parents act in their childrenâs best interest. The Court
ruled:
Our jurisprudence historically has reflected Western
civilization concepts of the family as a unit with broad
parental authority over minor children. Our cases have
consistently followed that course; our constitutional system
long ago rejected any notion that a child is âthe mere
creature of the Stateâ and, on the contrary, asserted that
parents generally âhave the right, coupled with the high duty,
to recognize and prepare [their children] for additional
obligations.â Pierce v. Society of Sisters, 268 U.S. 510, 535
(1925) ⌠[other citations omitted] . . . The lawâs concept
of the family rests on a presumption that parents possess what a
child lacks in maturity, experience, and capacity for judgment
required for making lifeâs difficult decisions. More
important, historically it has been recognized that natural
bonds of affection lead parents to act in the best interests of
their children. 1 W. Blackstone, Commentaries 447; 2 J. Kent,
Commentaries on American Law 190.
As with so many other legal presumptions, experience and
reality may rebut what the law accepts as a starting point; the
incidence of child neglect and abuse cases attests to this. That
some parents âmay at times be acting against the interests of
their childrenâ ⌠creates a basis for caution, but it is
hardly a reason to discard wholesale those pages of human
experience that teach that parents generally do act in the
childâs best interest ⌠The statist notion that governmental
power should supersede parental authority in all cases because
some parents abuse and neglect children is repugnant to American
tradition.â [emphasis supplied]
Parental rights are clearly upheld in this decision recognizing
the rights of parents to make health decisions for their
children. The Court continues by explaining the balancing that
must take place:
Nonetheless, we have recognized that a state is not without
constitutional control over parental discretion in dealing with
children when their physical or mental health is jeopardized
(See Wisconsin v. Yoder; Prince v. Massachusetts) . Moreover,
the Court recently declared unconstitutional a state statute
that granted parents an absolute veto over a minor childâs
decisions to have an abortion, Planned Parenthood of Central
Missouri v. Danforth, 428 US 52 (1976), Appellees urged that
these precedents limiting the traditional rights of parents, if
viewed in the context of a liberty interest of the child and the
likelihood of parental abuse, require us to hold that parentâs
decision to have a child admitted to a mental hospital must be
subjected to an exacting constitutional scrutiny, including a
formal, adversary, pre-admission hearing.
Appelleesâ argument, however, sweeps too broadly. Simply
because the decision of a parent is not agreeable to a child, or
because it involves risks does not automatically transfer power
to make that decision from the parents to some agency or officer
of the state. The same characterizations can be made for a
tonsillectomy, appendectomy, or other medical procedure. Most
children, even in adolescence, simply are not able to make sound
judgements concerning many decisions, including their need for
medical care or treatment. Parents can and must make those
judgements ⌠we cannot assume that the result in Meyer v.
Nebraska, supra, and Pierce v. Society of Sisters, supra, would
have been different if the children there had announced a
preference to learn only English or preference to go to a
public, rather that a church school. The fact that a child may
balk at hospitalization or complain about a parental refusal to
provide cosmetic surgery does not diminish the parentâs
authority to decide what is best for the child (See generally
Goldstein, Medical Case for the Child at Risk: on State
Supervention of Parental Autonomy, 86 Yale LJ 645, 664-668
(1977); Bennett, Allocation of Child Medical Care Decision â
Making Authority: A Suggested Interest Analyses, 62 Va LR ev
285, 308 (1976). Neither state officials nor federal Courts are
equipped to review such parental decisions. [emphasis supplied]
Therefore, it is clear that the Court is recognizing parents as
having the right to make judgments concerning their children who
are not able to make sound decisions, includingtheir need for
medical care. A parentâs authority to decide what is best for
the child in the areas of medical treatment cannot be diminished
simply because a child disagrees. A parentâs right must be
protected and not simply transferred to some state agency.
5. Santosky v. Kramer, 455 US 745, 753 (1982)
This case involved the Appellate Division of the New York
Supreme Court affirming the application of the preponderance of
the evidence standard as proper and constitutional in ruling
that the parentâs rights are permanently terminated. The U.S.
Supreme Court, however, vacated the lower Court decision,
holding that due process as required under the 14th Amendment in
this case required proof by clear and convincing evidence rather
than merely a preponderance of the evidence.
The Court, in reaching their decision, made it clear that
parentsâ rights as outlined in Pierce and Meyer are
fundamental and specially protected under the Fourteenth
Amendment. The Court began by quoting another Supreme Court
case:
In Lassiter [Lassiter v. Department of Social Services, 452
US 18, 37 (1981)], it was ânot disputed that state
intervention to terminate the relationship between a parent and
a child must be accomplished by procedures meeting the
requisites of the Due Process Clauseâ. . . The absence of
dispute reflected this Courtâs historical recognition that
freedom of personal choice in matters of family life is a
fundamental liberty interest protected by the 14th Amendment âŚ
Pierce v. Society of Sisters ⌠Meyer v. Nebraska.
The fundamental liberty interest of natural parents in the
care, custody, and management of their child does not evaporate
simply because they have not been model parents or have lost
temporary custody of their child to the state ⌠When the state
moves to destroy weakened familial bonds, it must provide the
parents with fundamentally fair procedures. [emphasis supplied]
6. City of Akron v. Akron Center for Reproductive Health Inc.,
462 US 416, 461 (1983)
This case includes, in a long list of protected liberties and
fundamental rights, the parental rights guaranteed under Pierce
and Meyer. The Court indicated a compelling interest test must
be applied.
Central among these protected liberties is an individualâs
freedom of personal choice in matters of marriage and family
life ⌠Roe ⌠Griswold ⌠Pierce v. Society of Sisters âŚ
Meyer v. Nebraska ⌠But restrictive state regulation of the
right to choose abortion as with other fundamental rights
subject to searching judicial examination, must be supported by
a compelling state interest. [emphasis supplied]
7. Lehr v. Robertson, 463 US 248, 257-258 (1983)
In this case, the U.S. Supreme Court upheld a decision against a
natural fatherâs rights under the Due Process and Equal
Protection Clauses since he did not have any significant
custodial, personal, or financial relationship with the child.
The natural father was challenging an adoption. The Supreme
Court stated:
In some cases, however, this Court has held that the federal
constitution supersedes state law and provides even greater
protection for certain formal family relationships. In those
cases ⌠the Court has emphasized the paramount interest in the
welfare of children and has noted that the rights of the parents
are a counterpart of the responsibilities they have assumed.
Thus, the liberty of parents to control the education of their
children that was vindicated in Meyer v. Nebraska ⌠and Pierce
v. Society of Sisters ⌠was described as a âright coupled
with the high duty to recognize and prepare the child for
additional obligationsâ ⌠The linkage between parental duty
and parental right was stressed again in Prince v. Massachusetts
⌠The Court declared it a cardinal principle âthat the
custody, care and nurture of the child reside first in the
parents whose primary function and freedom include preparation
for obligations the state can neither supply nor hinder.â In
these cases, the Court has found that the relationship of love
and duty in a recognized family unit is an interest in liberty
entitled to Constitutional protection ⌠âState intervention
to terminate such a relationship ⌠must be accomplished by
procedures meeting the requisites of the Due Process Clauseâ
Santosky v. Kramer ⌠[emphasis supplied]
It is clear by the above case that parental rights are to be
treated as fundamental and cannot be taken away without meeting
the constitutional requirement of due process.
8. Thornburgh v. American College of Obstetricians and
Gynecologists, 476 US 747 (1986)
The U.S. Supreme Court declared, âOur cases long have
recognized that the Constitution embodies a promise that a
certain private sphere of individual liberty will be kept
largely beyond the reach of government ⌠Griswold v.
Connecticut ⌠Pierce v. Society of Sisters ⌠Meyer v.
Nebraska.â
By citing Pierce, the Court included parental liberty in that
protected sphere.
9. Board of Directors of Rotary International v. Rotary Club of
Duarte, 481 US 537 (1987)
In this case, a Californian civil rights statute was held not to
violate the First Amendment by requiring an all male non-profit
club to admit women to membership. The Court concluded that
parentsâ rights in child rearing and education are included as
fundamental elements of liberty protected by the Bill of
Rights..
The Court has recognized that the freedom to enter into and
carry on certain intimate or private relationships is a
fundamental element of liberty protected by the Bill of Rights
⌠the intimate relationships to which we have accorded
Constitutional protection include marriage ⌠the begetting and
bearing of children, child rearing and education. Pierce v.
Society of Sisters ⌠[emphasis supplied]
10. Michael H. v. Gerald, 491 U.S. 110 (1989)
In a paternity suit, the U.S. Supreme Court ruled:
It is an established part of our constitution jurisprudence
that the term liberty in the Due Process Clause extends beyond
freedom from physical restraint.. See, e.g. Pierce v. Society of
Sisters ⌠Meyer v. Nebraska ⌠In an attempt to limit and
guide interpretation of the Clause, we have insisted not merely
that the interest denominated as a âlibertyâ be
âfundamentalâ (a concept that, in isolation, is hard to
objectify), but also that it be an interest traditionally
protected by our society. As we have put it, the Due Process
Clause affords only those protections âso rooted in the
traditions and conscience of our people as to be ranked as
fundamentalâ Snyder v. Massachusetts, 291 US 97, 105 (1934).
[emphasis supplied]
The Court explicitly included the parental rights under Pierce
and Meyer as âfundamentalâ and interests âtraditionally
protected by our society.â
11. Employment Division of Oregon v. Smith, 494 U.S. 872 (1990)
One of the more recent decisions which upholds the right of
parents is Employment Division of Oregon v. Smith, which
involved two Indians who were fired from a private drug
rehabilitation organization because they ingested âpeyote,â
a hallucinogenic drug as part of their religious beliefs. When
they sought unemployment compensation, they were denied because
they were discharged for âmisconduct.â
The Indians appealed to the Oregon Court of Appeals who reversed
on the grounds that they had the right to freely exercise their
religious beliefs by taking drugs. Of course, as expected, the
U.S. Supreme Court reversed the case and found that the First
Amendment did not protect drug use. So what does the case have
to do with parental rights?
After the Court ruled against the Indians, it then analyzed the
application of the Free Exercise Clause generally. The Court
wrongly decided to throw out the Free Exercise Clause as a
defense to any âneutralâ law that might violate an
individualâs religious convictions. In the process of
destroying religious freedom, the Court went out of its way to
say that the parentsâ rights to control the education of their
children is still a fundamental right. The Court declared that
the âcompelling interest testâ is still applicable, not to
the Free Exercise Clause alone:
[B]ut the Free Exercise Clause in conjunction with other
constitutional protections such as ⌠the right of parents,
acknowledged in Pierce v. Society of Sisters, 268 U.S. 510
(1925), to direct the education of their children, see Wisconsin
v. Yoder, 406 U.S.205 (1972) invalidating compulsory-attendan ce
laws as applied to Amish parents who refused on religious
grounds to send their children to school.19 [emphasis supplied]
In other words, under this precedent, parentsâ rights to
control the education of their children is considered a
âconstitutionally protected rightâ which requires the
application of the compelling interest test. The Court in Smith
quoted its previous case of Wisconsin v. Yoder:
Yoder said that âThe Courtâs holding in Pierce stands as
a charter for the rights of parents to direct the religious
upbringing of their children. And when the interests of
parenthood are combined with a free exercise claim ⌠more than
merely a reasonable relationship to some purpose within the
competency of the State is required to sustain the validity of
the Stateâs requirement under the First Amendment.â 406
U.S., at 233.20 [emphasis supplied]
Instead of merely showing that a regulation conflicting with
parentsâ rights is reasonable, the state must, therefore,
reach the higher standard of the âcompelling interest test,â
which requires the state to prove its regulation to be the least
restrictive means.
12. Hodgson v. Minnesota, 497 U.S. 417 (1990)
In Hodgson the Court found that parental rights not only are
protected under the First and Fourteenth Amendments as
fundamental and more important than property rights, but that
they are âdeemed essential.â
The family has a privacy interest in the upbringing and
education of children and the intimacies of the marital
relationship which is protected by the Constitution against
undue state interference. See Wisconsin v Yoder, 7 406 US 205
âŚ
The statist notion that governmental power should supersede
parental authority in all cases because some parents abuse and
neglect children is repugnant to American tradition.â Parham,
442 US, at 603, [other citations omitted]. We have long held
that there exists a âprivate realm of family life which the
state cannot enter.â Prince v Massachusetts âŚ
A natural parent who has demonstrated sufficient commitment
to his or her children is thereafter entitled to raise the
children free from undue state interference. As Justice White
explained in his opinion of the Court in Stanley v Illinois, 405
US 645 (1972) [other cites omitted]:
âThe court has frequently emphasized the importance of the
family. The rights to conceive and to raise oneâs children
have been deemed âessential,â Meyer v Nebraska, ⌠âbasic
civil rights of man,â Skinner v Oklahoma, 316 US 535, 541
(1942), and â[r]ights far more precious ⌠than property
rights,â May v Anderson, 345 US 528, 533 (1953) ⌠The
integrity of the family unit has found protection in the Due
Process Clause of the Fourteenth Amendment, Meyer v Nebraska,
supra.â [emphasis supplied]
The Court leaves no room for doubt as to the importance and
protection of the rights of parents.
13. H.L. v. Matheson, 450 US 398, 410 (1991)
In this case, the Supreme Court recognized the parentsâ right
to know about their child seeking an abortion. The Court stated:
In addition, constitutional interpretation has consistently
recognized that the parentsâ claim to authority in their own
household to direct the rearing of their children is basic in
the structure of our society.
Ginsberg v. New York, 390 US 629 (1968) ⌠We have
recognized on numerous occasions that the relationship between
the parent and the child is Constitutionally protected
(Wisconsin v. Yoder, Stanley v. Illinois, Meyer v. Nebraska) âŚ
âIt is cardinal with us that the custody, care, and nurture of
the child reside first in the parents, whose primary function
and freedom includes preparation for obligations the state can
neither supply, nor hinder.â [Quoting Prince v. Massachusetts,
321 US 158, 166, (1944)]. See also Parham v. J.R.; Pierce v.
Society of Sisters ⌠We have recognized that parents have an
important âguiding roleâ to play in the upbringing of their
children, Bellotti II, 443 US 633-639 ⌠which presumptively
includes counseling them on important decisions.
This Court clearly upholds the parentâs right to know in the
area of minor children making medical decisions.
14. Vernonia School District 47J v. Acton, 132 L.Ed.2d 564, 115
S.Ct. 2386 (1995)
In Vernonia the Court strengthened parental rights by
approaching the issue from a different point of view. They
reasoned that children do not have many of the rights accorded
citizens, and in lack thereof, parents and guardians possess and
exercise those rights and authorities in the childâs best
interest:
Traditionally at common law, and still today, unemancipated
minors lack some of the most fundamental rights of
self-determinationâ including even the right of liberty in its
narrow sense, i.e., the right to come and go at will. They are
subject, even as to their physical freedom, to the control of
their parents or guardians. See Am Jur 2d, Parent and Child §
10 (1987).
15. Troxel v. Granville, 530 U.S. 57 (2000)
In this case the United States Supreme Court issued a landmark
opinion on parental liberty. The case involved a Washington
State statute which provided that a âcourt may order
visitation rights for any person when visitation may serve the
best interests of the child, whether or not there has been any
change of circumstances.â Wash. Rev. Code § 26.10.160(3) .
The U.S. Supreme Court ruled that the Washington statute
âunconstitutionally interferes with the fundamental right of
parents to rear their children.â The Court went on to examine
its treatment of parental rights in previous cases:
In subsequent cases also, we have recognized the fundamental
right of parents to make decisions concerning the care, custody,
and control of their childrenâŚWisconsin v. Yoder, 406 U.S.
205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (âThe history
and culture of Western civilization reflect a strong tradition
of parental concern for the nurture and upbringing of their
children. This primary role of the parents in the upbringing of
their children is now established beyond debate as an enduring
American traditionâ); Quilloin v. Walcott, 434 U.S. 246, 255,
54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) (âWe have recognized on
numerous occasions that the relationship between parent and
child is constitutionally protectedâ); Parham v. J. R., 442
U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (âOur
jurisprudence historically has reflected Western civilization
concepts of the family as a unit with broad parental authority
over minor children. Our cases have consistently followed that
courseâ); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d
599, 102 S. Ct. 1388 (1982) (discussing âthe fundamental
liberty interest of natural parents in the care, custody, and
management of their childâ); Glucksberg, supra, at 720 (âIn
a long line of cases, we have held that, in addition to the
specific freedoms protected by the Bill of Rights, the
âlibertyâ specially protected by the Due Process Clause
includes the right ⌠to direct the education and upbringing of
oneâs childrenâ (citing Meyer and Pierce)). In light of this
extensive precedent, it cannot now be doubted that the Due
Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the
care, custody, and control of their children. [emphasis
supplied]
This case clearly upholds parental rights. In essence, this
decision means that the government may not infringe parentsâ
right to direct the education and upbringing of their children
unless it can show that it is using the least restrictive means
to achieve a compelling governmental interest.
Conclusion
The U.S. Supreme Court has consistently protected parental
rights, including it among those rights deemed fundamental. As a
fundamental right, parental liberty is to be protected by the
highest standard of review: the compelling interest test.
As can be seen from the cases described above, parental rights
have reached their highest level of protection in over 75 years.
The Court decisively confirmed these rights in the recent case
of Troxel v. Granville, which should serve to maintain and
protect parental rights for many years to come.
Copyright 2003 Home School Legal Defense Association. Reprint
permission granted.
Footnotes
1. 262 U.S. 390 (1923).
2. Id., at 402.
3. Id., at 401. Also see Bartles v. Iowa, 262 U.S. 404 (1923)
where the Court reached a similar conclusion.
4. Meyer, 262 U.S. 390 at 400.
5. Id., at 403.
6. Pierce, 268 U.S. 510 (1925)
7. Ibid at 534.
8. Pierce, 268 U.S. 510 at 535.
9. Farrington v. Tokushige, 273 U.S. 284 (1927) at 298.
10. Id., at 298.
11. Farrington v. Tokushige, (9 cir.) 11 F.2d 710 at 713 (1926),
quoting Harlan, J., in Berea College v. Kentucky 211 U.S. 45, 29
S. Ct. 33, 53 L. Ed. 81.
12. Prince v. Massachussetts, 321 U.S. 158 (1944).
13. Ibid at 166.
14. Griswold v. Connecticut, 381 U.S. 479, (1965) at 486.
15. Ibid.
16. Yoder, 406 U.S. 205 at 233.
17. Ibid at 232. Burger further admonishes, âand when the
interests of parenthood are combined with a free exercise claim
of the nature revealed by this record, more than merely a
âreasonable relation to some purpose within the competency of
the Stateâ is required to sustain the validity of the Stateâs
requirement under the First Amendment.â (Yoder, at 233).
18. Id., at 214.
19. Id., 881.
20. Id., 881, ftn. 1.
Decisions of the United States Supreme Court Upholding Parental
Rights as âFundamentalâHSLDA | National Center Special
Report. |
State Statute Summaries
(Central
Registry Expunction of Records)
Authored & Edited by
egypt
Index
# Review and Expunction of Central Registries and Reporting Records: ((www.childwelfare.gov/systemwide/laws_policies/statutes/registry.cfm)
# Legal Index References State by State (Use this index to look up statutes for your state as given in the State Statutes Summaries)
# State Courts finding Registries Unconstitutional
~~~~~~~~~~~~~~~~~~~~
Current Through August 2005
Records of child abuse and neglect reports are maintained by State child
protection or social services agencies to aid in the investigation,
treatment, and prevention of child abuse cases and to maintain statistical
information for staffing and funding purposes. In many States, these records
and the results of investigations are maintained in databases, often known
as central registries.
Following an investigation, States classify child abuse records in a variety of ways, depending on the State statutory language. The term unsubstantiated is used to describe situations in which an investigation has been unable to determine the occurrence of abuse or neglect. Other terms for unsubstantiated can include unfounded, not indicated, or unconfirmed.
The term substantiated is given to a report if a determination has been made that abuse or neglect did likely occur. Other terms for substantiated include founded, indicated, or confirmed. Several States maintain all investigated reports of abuse and neglect in their central registries, while other States maintain only substantiated reports.
Right of the Reported Person to Review and
Challenge Records When Records Must Be Expunged
Many States use the records that are maintained in central registries for background checks for persons seeking employment to work with children and for prospective foster and adoptive parents. Therefore, several due process and protection issues arise when a State maintains a central registry that identifies individuals accused of and found to have committed child abuse or neglect.
In some cases, persons whose names are listed as alleged perpetrators in a central registry have asserted that the listing of their name in the registry deprives them of a constitutionally protected interest without due process of law. Approximately 25 States, the District of Columbia, American Samoa, and Puerto Rico provide an individual the right to request an administrative hearing to contest the findings of an investigation of a report and to have an inaccurate report expunged or deleted from the registry. 1
When Records Must Be Expunged
The term expunction, or expungement, refers to the procedures used by States to maintain and update their central registries and recordkeeping by removing old or inaccurate records.
Under the Child Abuse Prevention and Treatment Act (CAPTA), in order to receive a Federal grant, States must submit plans that include provisions and procedures for the prompt expunction of records of unsubstantiated or false cases if the records are accessible to the general public or are used for purposes of employment or other background checks.2 CAPTA does, however, allow State child protective services agencies to retain information on unsubstantiated reports in their casework files to assist in future risk and safety assessment.3
Approximately 38 States, the District of Columbia, American Samoa, and Guam have provisions in statute for the expunction of certain child abuse and neglect reports.4 Statutes vary as to expunction standards and procedures. For example, the time specified for the expunction of unfounded or undetermined reports generally ranges from immediately upon determination to 10 years.5 A few States, however, do not permit unfounded reports to be placed on the registry at all. Substantiated reports are usually retained longer, typically at least until the child victim has reached adulthood.
1 The word approximately is used to stress the fact that States frequently amend their laws. This information is current only through August 2005. The States that provide for administrative review include Arizona, Arkansas, Colorado, Connecticut, Georgia, Idaho, Illinois, Indiana, Iowa, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New York, North Dakota, Pennsylvania, South Carolina, South Dakota, Utah, Vermont, Virginia, Washington, and Wisconsin. 2 42 U.S.C.A. § 5101 et. seq. (2003). 342 U.S.C.A. § 5106a(b)(2)(A)(xii) (2003). 4The States and territories that do not have such provisions include Alaska, Idaho, Kansas, Kentucky, New Mexico, North Carolina, North Dakota, Ohio, Oregon, Tennessee,Texas, Wisconsin, Northern Mariana Islands, Puerto Rico, and Virgin Islands.5For more information, see Chapter 4 of the April 2003 National Study of Child Protective Services Systems and Reform Efforts: Review of State CPS Policy by the U.S. Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, and Administration for Children and Families, Administration on Children, Youth and Families, Childrens Bureau, available at http://aspe.hhs.gov/hsp/CPS-status03/state-policy03/chapter4.htm
This publication is a product of the
State Statutes Series prepared by Child Welfare Information Gateway.
While every attempt has been made to be as complete as possible, additional
information on these topic
may be in other sections of a States code as well as agency regulations,
case law, and informal practices and procedures.
~~~~~~~~~~~~~~~~~~~~
ALABAMA ALASKA AMERICAN SAMOA ARIZONA ARKANSAS CALIFORNIA COLORADO CONNECTICUT DELAWARE DISTRICT OF COLUMBIA FLORIDA GEORGIA GUAM HAWAII IDAHO ILLINOIS INDIANA IOWA KANSAS KENTUCKY LOUISIANA MAINE MARYLAND MASSACHUSETTS MICHIGAN MINNESOTA MISSISSIPPI MISSOURI MONTANA NEBRASKA NEVADA NEW HAMPSHIRE NEW JERSEY NEW MEXICO NEW YORK NORTH CAROLINA NORTH DAKOTA NORTHERN MARIANA ISLANDS OHIO OKLAHOMA OREGON PENNSYLVANIA PUERTO RICO RHODE ISLAND SOUTH CAROLINA SOUTH DAKOTA TENNESSEE TEXAS UTAH VERMONT VIRGIN ISLANDS VIRGINIA WASHINGTON WEST VIRGINIA WISCONSIN WYOMING
The
Following is From:
www.childwelfare.gov/systemwide/laws_policies/search/index.cfm
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Ala. Code § 26-14-8
In the case of any child abuse or neglect investigation that is
determined to be not indicated, the alleged perpetrator may request after
5 years from the completion of the investigation that his or her name be
expunged from the central registry.
As long as the department has received no further reports
concerning the alleged perpetrator during the 5 years since the completion
of the investigation, the department shall expunge the name at that time.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Ann. Code § 45.2028
At any time after the completion of the investigation, but no later
than 10 years after the receipt of the report, a subject of the report may
request the head of the registry to amend, seal, or expunge the record of
the report.
If the head of the registry refuses or does not act within a
reasonable time, but in no event later than 30 days after the request, the
subject shall have the right to a fair hearing to determine whether the
record of the report in the central registry should be amended or expunged
on the grounds that it is inaccurate or it is being maintained in a manner
inconsistent with the law.
The burden in the hearing shall be on the department. In the
hearings, the fact that there was a finding of child abuse, sexual abuse, or
neglect is presumptive evidence that the report was substantiated.
When Records Must Be Expunged
Ann. Code §§ 45.2025; 45.2026
Unless an investigation determines there is some credible evidence
of alleged abuse, sexual abuse, or neglect, all information identifying the
subject of the report is immediately expunged from the central registry.
In all other cases, the record of the report to the central
registry is sealed no later than 10 years after the subject child's 18th
birthday.
Once sealed, the record shall not otherwise be available, unless
the head of the central registry, upon notice to the subjects of the report,
gives his or her personal approval for an appropriate reason.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Rev. Stat. § 8-811
The department shall notify a person who is alleged to have abused
or neglected a child that the department intends to substantiate the
allegation in the central registry and of that person's right:
o To receive a copy of the report containing the allegation
o To a hearing before the entry into the central registry
The department shall send the notice no more than 14 days after
completion of the investigation.
A request for a hearing on the proposed finding must be received by
the department within 14 days after receipt of the notice.
If a request for a hearing is made, the department shall conduct a
review before the hearing. The department shall provide an opportunity for
the accused person to provide information to support the position that the
department should not substantiate the allegation. If the department
determines that there is no probable cause that the accused person engaged
in the alleged conduct, the department shall amend the information or
finding in the report and shall notify the person and a hearing shall not be
held.
The notification shall also state that if the department does not
amend the information or finding in the report within 60 days after it
receives the request for a hearing the person has a right to a hearing
unless:
o The person is a party in a civil, criminal, or administrative proceeding in which the allegations of abuse or neglect are at issue.
o A court or administrative law judge has made findings as to the alleged abuse or neglect.
If the department does not amend the report, the department shall
notify the office of administrative hearings of the request for a hearing no
later than 5 days after completion of the review. The department shall
forward all records, reports, and other relevant information with the
request for a hearing within 10 days.
The office of administrative hearings shall hold a hearing pursuant
to title 41, chapter 6, article 10, with the following exceptions:
o A child who is the victim of or a witness to abuse or neglect is not required to testify at the hearing.
o A child's hearsay statement is admissible if the time, content, and circumstances of that statement are sufficiently indicative of its reliability.
o The identity of the reporting source of the abuse or neglect shall not be disclosed without the permission of the reporting source.
o The reporting source is not required to testify.
o A written statement from the reporting source may be admitted if the time, content, and circumstances of that statement are sufficiently indicative of its reliability.
On completion of the presentation of evidence, the administrative
law judge shall determine if probable cause exists to sustain the
department's finding that the accused engaged in the alleged conduct. If the
administrative law judge determines that probable cause does not exist to
sustain the department's finding, the administrative law judge shall order
the department to amend the information or finding in the report.
When the department is requested to verify whether the child
protective services central registry contains a substantiated report about a
specific person, the department shall determine if the report was taken
after January 1, 1998. If the report was taken after January 1, 1998, the
department shall notify the requestor of the substantiated finding.
If the child protective services report was taken before January 1,
1998, the department shall notify the person of the person's right to
request an administrative hearing. The department shall not send this
notification if the person was a party in a civil, criminal, or
administrative proceeding in which the allegations of abuse or neglect were
at issue.
When Records Must Be Expunged
Rev. Stat. § 8-804
If the department received a report before September 1, 1999, and
determined that the report was substantiated, the department shall maintain
the report in the central registry until 18 years from the child victim's
date of birth.
If the department received a report on or after September 1, 1999,
and determined that the report was substantiated, the department shall
maintain the report in the central registry for 25 years after the date of
the report.
The department shall annually purge reports and investigative
outcomes received pursuant to the timeframes prescribed above.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Ann. Code § 12-12-512
In every case in which a report is determined to be true, the
department shall notify each subject of the report of the determination.
If the offender is a juvenile age 10 years or older and is in
foster care, the department shall notify the juvenile's public defender or
counsel and the legal parents or guardians of the offender.
If the offender is a juvenile age 10 years or older, the department
shall notify the legal parents or guardians of the offender.
Notification to offenders who were adults at the time of the
finding of child maltreatment shall include the following:
o The investigative determination, true or unsubstantiated, exclusive of the source of the notification
o A statement that the person named as the offender of the true report may request an administrative hearing
o A statement that the request must be made to the department within 30 days of receipt of the notice
o The name of the person making notification, the person's occupation, and where he or she can be reached
Notification to offenders who were juveniles at the time of the
finding of child maltreatment shall include the additional statement that
the matter has been referred for an automatic administrative hearing that
can be waived only by the juvenile offender in writing.
The administrative hearing process must be completed within 180
days from the date of the receipt of the request for a hearing, provided
that:
o Delays in completing the hearing that are attributable to the petitioner shall not count against the 180 day limit.
o Failure to complete the hearing process in a timely fashion shall not deprive the department or a court reviewing the child maltreatment determination of jurisdiction to make or review a final agency determination.
o The 180-day limit shall not apply if there is an ongoing criminal or delinquency investigation, or criminal or delinquency charges have or will be filed.
When the department conducts administrative appeal hearings, the
chief counsel of the department is authorized to require the attendance of
witnesses and the production of books, records, or other documents through
the issuance of subpoenas.
If the petitioner prevails at the administrative hearing or circuit
court hearing and the report is changed from true to unsubstantiated, upon
request by the petitioner, the department shall provide a list of persons to
whom a disclosure had previously been made that the report was true.
When Records Must Be Expunged
Ann. Code § 12-12-505
The department shall identify in its policy and procedures manual
the types of child maltreatment that will automatically result in the
removal of the name of an offender from the central registry. If an offender
has been entered into the central registry, the offender's name shall be
removed from the central registry when the offender has not had a subsequent
true report of this type for 1 year, and more than one 1 year has lapsed
since the closure of any protective services or foster care case opened as
the result of this report.
Notwithstanding the foregoing provisions, with regard to offenders
who were juveniles at the time of the act or omission that resulted in a
true finding of child maltreatment, the department shall:
o Not remove the name from the central registry if the offender was found guilty, pled guilty to, or pled nolo contendere to a felony in circuit court as an adult for the same act for which the offender is named in the central registry unless the conviction is reversed or vacated
o Remove the name from the central registry if more than 5 years have elapsed since the true finding of child maltreatment and there have been no subsequent true findings of child maltreatment, or the offender can prove by a preponderance of the evidence that he or she has been rehabilitated
If an offender has been entered into the central registry, the
offender may petition the department requesting that the offender's name be
removed from the central registry when he or she has not had a subsequent
true report for 5 years and more than 5 years have elapsed since the closure
of any protective services or foster care case opened as the result of the
report.
If the department denies the request for removal of the name from
the central registry, the offender may request an administrative hearing
within 30 days from receipt of the department's decision.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Penal Code § 11170
Any person may determine if he or she is listed in the Child Abuse
Central Index by making a request in writing to the Department of Justice.
The request shall be notarized and include the person's name, address, date
of birth, and either a social security number or a California identification
number.
Upon receipt of a notarized request, the Department of Justice
shall make available to the requesting person information identifying the
date of the report and the submitting agency.
The requesting person is responsible for obtaining the
investigative report from the submitting agency pursuant to §
11167.5(11)(b).
When Records Must Be Expunged
Penal Code § 11170
Information from an inconclusive or unsubstantiated report shall be
deleted from the Child Abuse Central Index after 10 years if no subsequent
report concerning the same suspected child abuser is received within that
time period.
If a subsequent report is received within that 10-year period,
information from any prior report, as well as any subsequently filed report,
shall be maintained on the Child Abuse Central Index for a period of 10
years from the time the most recent report is received by the department.
If a person is listed in the Child Abuse Central Index only as a
victim of child abuse or neglect, and that person is 18 years of age or
older, that person may have his or her name removed from the index by making
a written request to the Department of Justice. The request shall be
notarized and include the person's name, address, social security number,
and date of birth.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Rev. Stat. § 19-3-313.5
On or before January 1, 2004, the State board shall promulgate rules to
establish a process at the State level by which a person who is found to be
responsible in a confirmed report of child abuse or neglect filed with the
State department pursuant to § 19-3-307 may appeal the finding of a
confirmed report of child abuse or neglect to the State department. At a
minimum, the rules established shall address the following matters,
consistent with Federal law:
The provision of adequate and timely written notice by the county
departments of social services or, for an investigation pursuant to §
19-3-308(4.5), by the agency that contracts with the State, using a form
created by the State department, to a person found to be responsible in a
confirmed report of child abuse or neglect of the person's right to appeal
the finding of a confirmed report of child abuse or neglect to the State
department
The timeline and method for appealing the finding of a confirmed
report of child abuse or neglect
Designation of the entity, that shall be one other than a county
department of social services, with the authority to accept and respond to
an appeal by a person found to be responsible in a confirmed report of child
abuse or neglect at each stage of the appellate process
The legal standards involved in the appellate process and a
designation of the party who bears the burden of establishing that each
standard is met
The confidentiality requirements of the appeals process
When Records Must Be Expunged
Rev. Stat. § 19-3-313.5
The rules established by the State board shall, consistent with
Federal law, provide for procedures that facilitate the prompt expunction of
and prevent the release of any information contained in any records and
reports that are accessible to the general public or are used for purposes
of employment or background checks in cases determined to be unsubstantiated
or false.
The State department and the county department of social services
may maintain information concerning unsubstantiated reports in casework
files to assist in future risk and safety assessments.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Gen. Stat. § 17a-101k
[Effective October 1, 2005]
Upon a finding that an individual is responsible for abuse or
neglect of a child, the commissioner shall provide notice of the finding not
later than 5 business days after the issuance of the finding to the
individual who is alleged to be responsible. The notice shall:
o Contain a description of the finding
o Inform the individual of the existence of the registry and of the commissioners intention to place the individuals name on the registry unless the individual exercises his or her right to appeal the finding
o Inform the individual of the potential adverse consequences of being listed on the registry, including the potential effect on obtaining or retaining employment, licensure, or engaging in activities involving direct contact with children
o Include a written form for the individual to sign and return, indicating whether the individual will invoke the appeal procedures
Following a request for appeal, the commissioner shall conduct an
internal review of the finding, to be completed no later than 30 days after
the request for appeal is received by the department.
The commissioner shall review all information relevant to the
finding to determine whether the finding is factually or legally deficient
and ought to be reversed. Prior to the review, the commissioner shall
provide the individual access to all relevant documents in the possession of
the commissioner regarding the finding of responsibility for abuse or
neglect of a child.
The individual may submit any documentation that is relevant to a
determination of the issue and may, at the commissioners discretion,
participate in a telephone conference or face-to-face meeting to be
conducted for the purpose of gathering additional information that may be
relevant to determining whether the finding is factually or legally
deficient.
If the commissioner, as a result of the prehearing review,
determines that the finding of abuse or neglect is factually or legally
deficient, the commissioner shall reverse the finding and send notice to the
individual within 5 days.
If the finding is upheld, the individual shall be notified of the
right to request a hearing. The individual may request a hearing no later
than 30 days after receipt of the notice.
At the hearing, the individual may be represented by legal counsel.
The burden of proof shall be on the commissioner to prove that the finding
is supported by a fair
preponderance of the evidence.
Not later than 30 days after the hearing, the hearing officer shall
issue a written decision to either reverse or uphold.
When Records Must Be Expunged
Gen. Stat. § 17a-101k
[Effective October 1, 2005]
Records containing unsubstantiated findings shall remain sealed,
except that such records shall be made available to department employees in
the proper discharge of their duties.
Records containing unsubstantiated findings shall be expunged 5
years from the completion date of the investigation if no further report is
made about the individual.
If the department receives more than one report on an individual
and each report is unsubstantiated, all reports and information pertaining
to the individual shall be expunged 5 years from the completion date of the
most recent investigation.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Ann. Code Tit. 16, § 929
A person who has been entered on the Child Protection Registry at
Child Protection Level II or Level III, and who has successfully completed a
division-recommended or family court-ordered case plan, may file a petition
for removal in the family court prior to the expiration of the time
designated for the level. Only a person who has successfully completed that
person's own case plan is eligible to petition for an early removal.
A petition for removal from the Registry must be filed in the
family court in the county in which the substantiation occurred. A copy of
the petition must be served on the division. The division may file an
objection or answer to the petition within 30 days after being served. In
every case, the division shall inform the court whether or not the person
applying for removal has been substantiated for abuse or neglect while on
the Child Protection Registry. The family court may, in its discretion,
dispose of a petition for removal without a hearing.
When Records Must Be Expunged
Ann. Code Tit. 16, § 929
A person who has been entered on the Child Protection Registry at
Child Protection Level II or Level III will be automatically removed from
the Registry, provided that the person has not been substantiated for an
incident of abuse or neglect while on the Registry.
Removal from the Child Protection Registry means only that the
person's name has been removed from the Registry and may no longer be
reported to employers pursuant to § 8563 of Title 11.
Notwithstanding removal from the Registry, the person's name and
other case information remains in the division's internal information system
as substantiated for all other purposes, including, but not limited to, the
division's use of the information for historical, treatment, and
investigative purposes, childcare licensing decisions, foster and adoptive
parent decisions, reporting pursuant to § 309 of Title 31, reporting to law
enforcement authorities, or any other purpose set forth in § 906(b) of this
title.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Ann. Code §§ 4-1302.05; 4-1302.06
The staff that maintains the Child Protection Register shall,
within 7 days from the date that a report is entered in the Register, give
notice to each person identified in the report that the report identifies
him or her as responsible for the alleged abuse or neglect of the child who
is the subject of the report.
This notice shall include the following information:
o The date that the report identifying the person was entered in the Child Protection Register
o The right of the person to review the entire report, except information that identifies other persons mentioned in the report
o The administrative procedures through which the person may seek to correct information that he or she alleges is incorrect or to establish that the report is unfounded
The Mayor shall establish, by rules adopted pursuant to § 2-501 et
seq., procedures to permit a person identified in the Child Protection
Register to challenge information that he or she alleges is incorrect or
establish that a report is unfounded.
When Records Must Be Expunged
Ann. Code § 4-1302.07
Notwithstanding any other provision of law, substantiated reports
shall not be expunged from the Child Protection Register.
The staff that maintains the Child Protection Register shall
expunge from each inconclusive report all information that identifies any
person in the inconclusive report upon the first occurrence of either:
o The 18th birthday of the child who is the subject of the report, if there is no reasonable suspicion or evidence that another child living in the same household or under the care of the same parent, guardian, or custodian has been abused or neglected
o The end of the 5th year after the termination of the social rehabilitation services directed toward the abuse and neglect
The staff that maintains the Child Protection Register shall
expunge:
o Any unfounded report immediately upon such classification by the agency
o Any material successfully challenged as incorrect pursuant to the rules adopted under § 4-1302.06
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Ann. Stat. § 39.202
The department shall make and keep reports and records of all cases under
this chapter relating to child abuse, abandonment, and neglect and shall
preserve the records pertaining to a child and family until 7 years after
the last entry was made or until the child is 18 years of age, whichever
date is first reached, and may then destroy the records.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Ann. Code § 49-5-184(c)
Any person whose name appears in the abuse registry without a
hearing having been held to determine whether or not there was sufficient
credible evidence of child abuse by such person, or a reasonable basis to
justify such inclusion on the registry, is entitled to a hearing for an
administrative determination of whether or not expunction of such person's
name should be ordered.
In order to exercise such right, the person must file a written
request for a hearing with the DFACS office of any county in which the
investigation was conducted that resulted in such person's name being
included in the abuse registry.
When Records Must Be Expunged
Ann. Code § 49-5-184(b)
All identifying information in the abuse registry of cases classified as
unconfirmed shall be expunged from the abuse registry within 2 years after
the case is so classified.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Ann. Code tit. 19, § 13208(f)
If an investigation of a report of suspected child abuse or neglect does not
determine, within 1 year of the date of the report of suspected child abuse
or neglect, that the report is an indicated report or a substantiated
report, the report shall be considered an unsubstantiated report, and all
information identifying the subjects of the report shall be expunged from
Child Protective Services' suspected files.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Rev. Stat. § 350-2(d)
The department shall promptly expunge the reports [from the central registry
of reported child abuse or neglect cases] when:
The department has found the reports to be unsubstantiated.
The petition arising from the report has been dismissed by order of
the family court after an adjudicatory hearing on the merits pursuant to
chapter 587.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right
of the Reported Person to Review and Challenge Records
Idaho Code § 16-1629(7)
The department shall establish appropriate administrative procedures for the
processing of complaints of child neglect, abuse, and abandonment.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
325 ILCS § 5/7.16
Within 60 days after the completion of the Child Protective Service
Unit investigation, the subject of a report may request the department to
amend the record or remove the record of the report from the register.
Such request shall be in writing and directed to such person as the
department designates in the notification.
If the department disregards any request to do so or does not act
within 10 days, the subject shall have the right to a hearing within the
department to determine whether the record of the report should be amended
or removed on the grounds that it is inaccurate or it is being maintained in
a manner inconsistent with this Act.
There shall be no such right to a hearing on the ground of the
report's inaccuracy if there has been a court finding of child abuse or
neglect. The report's accuracy shall be conclusively presumed on such
finding.
In the hearing, the burden of proving the accuracy and consistency
of the record shall be on the department and the appropriate Child
Protective Service Unit.
The hearing shall be conducted by the Director or his designee, who
is hereby authorized and empowered to order the amendment or removal of the
record to make it accurate and consistent with this Act.
The decision shall be made, in writing, at the close of the
hearing, or within 45 days thereof, and shall state the reasons upon which
it is based.
Should the department grant the request of the subject of the
report either on administrative review or after administrative hearing to
amend an indicated report to an unfounded report, the report shall be
released and expunged in accordance with the standards set forth in 325 ILCS
§ 5/7.14.
When Records Must Be Expunged
325 ILCS § 5/7.14
All reports in the central register shall be classified in one of
three categories: 'indicated,' 'unfounded,' or 'undetermined,' as the case
may be.
All information identifying the subjects of an unfounded report
shall be expunged from the register forthwith, except as provided in 325
ILCS § 5/7.7.
Identifying information on all other records shall be removed from
the register no later than 5 years after the report is indicated. However,
if another report is received involving the same child, his sibling or
offspring, or a child in the care of the persons responsible for the child's
welfare, or involving the same alleged offender, the identifying information
may be maintained in the register until 5 years after the subsequent case or
report is closed.
Notwithstanding any other provision of this section, identifying
information in indicated reports involving serious physical injury to a
child, as defined by the department in rules, may be retained longer than 5
years after the report is indicated or after the subsequent case or report
is closed, and may not be removed from the register except as provided by
the department in rules.
Identifying information in indicated reports involving sexual
penetration, sexual molestation, sexual exploitation, torture, or death of a
child shall be retained for a period of not less than 50 years after the
report is indicated or after the subsequent case or report is closed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Ann. Code § 31-33-17-8
This section does not apply to substantiated cases if a court
determines that a child is a child in need of services based on a report of
child abuse or neglect that names the alleged perpetrator as the individual
who committed the alleged child abuse or neglect.
Not later than 30 days after the department enters a substantiated
child abuse or neglect report into the registry, the department shall send
notice that the report has been entered to:
o The parent, guardian, or custodian of the child who is named in the report as the victim of the child abuse or neglect
o The alleged perpetrator, if other than the child's parent, guardian, or custodian, named in the report
The department shall state the following in a notice to an alleged
perpetrator of a substantiated report:
o The report has been classified as substantiated.
o The alleged perpetrator may request that a substantiated report be amended or expunged at an administrative hearing if the alleged perpetrator does not agree with the classification of the report, unless a court is in the process of making a determination.
The alleged perpetrator's request for an administrative hearing to
contest the classification of a substantiated report must be received by the
department not more than 30 days after the alleged perpetrator receives the
notice.
If the alleged perpetrator fails to request an administrative
hearing within the specified time, he or she may request an administrative
hearing to contest the classification of the report if the alleged
perpetrator demonstrates that the failure to request an administrative
hearing was due to excusable neglect or fraud.
When Records Must Be Expunged
Ann. Code §§ 31-33-19-8; 31-33-19-9
The department shall expunge identifying information in a
substantiated report contained within the registry as follows:
o Not later than 10 working days after any of the following occurs:
§ A court having jurisdiction over a child in need of services proceeding determines that child abuse or neglect has not occurred.
§ An administrative hearing officer finds that the child abuse or neglect report is unsubstantiated.
§ A court having criminal jurisdiction over a case involving child abuse or neglect in which criminal charges are filed and the court dismisses the charges or enters a not guilty verdict.
o Not later than ten 10 working days after the period of informal adjustment ceases
o Not later than 6 months after the date that the department enters the report into the registry as the result of a person's failure to successfully participate in a services referral agreement
o Not later than 20 years after a court determines that a child is a child in need of services based upon the report
If the subsections above do not apply, the department shall expunge
the report not later than when the child who is named as the victim of child
abuse or neglect reaches 24 years of age.
The department shall immediately amend or expunge from the registry
a substantiated report containing an inaccuracy arising from an
administrative or a clerical error.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Ann. Stat. § 235A.19
A subject of a child abuse report shall have the right to examine
report data and disposition data that refers to the subject.
Within 6 months of the date of the notice of the results of an
assessment, the subject of a child abuse report may file with the department
a written statement to the effect that report data and disposition data
referring to the subject is in whole or in part erroneous, and may request a
correction of that data or of the findings of the assessment report.
The department shall provide the subject with an opportunity for an
evidentiary hearing to correct the data or the findings, unless the
department corrects the data or findings as requested. The department may
defer the hearing until the conclusion of a pending juvenile or district
court case relating to the data or findings.
The subject of a child abuse report may appeal the decision
resulting from a hearing to the district court. Immediately upon appeal, the
court shall order the department to file with the court a certified copy of
the report data or disposition data.
Upon the request of the appellant, the record and evidence in such
cases shall be closed to all but the court and its officers, and access to
the record and evidence shall be prohibited unless otherwise ordered by the
court. The clerk shall maintain a separate docket for such actions.
Whenever the department corrects or eliminates data as requested or
as ordered by the court, the department shall advise all persons who have
received the incorrect data of that fact. Upon application to the court and
service of notice on the department, any subject of a child abuse report may
request and obtain a list of all persons who have received report data or
disposition data referring to the subject.
When Records Must Be Expunged
Ann. Stat. § 235A.18
Report and disposition data shall be sealed 10 years after the
initial placement of the data in the registry unless good cause is shown why
the data should remain open to authorized access.
If a subsequent report of an alleged case of child abuse involving
the same child or a person named in the data as having abused a child is
received by the department within this 10-year period, the data shall be
sealed 10 years after receipt of the subsequent report unless good cause is
shown why the data should remain open to authorized access.
Data sealed in accordance with this section shall be expunged 8
years after the date the data was sealed.
If the report data and the disposition data involve child sexual
abuse, the data shall not be expunged for a period of 30 years.
Child abuse information relating to a particular case of child
abuse placed in the central registry that a juvenile or district court
determines is unfounded based upon a
preponderance of the evidence shall be
expunged from the central registry.
For child abuse information in the central registry as of July 1,
1997, the central registry shall perform a review of the information
utilizing the requirements for referral of child abuse information to the
central registry as founded child abuse under § 232.71D. If the review
indicates the information would not be placed in the registry as founded
child abuse, the information shall be expunged from the central registry.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Childrens Code art. 616.1
When a report alleging abuse or neglect is recorded as justified by
the department in the central registry but when no petition is subsequently
filed alleging that the child is in need of care, the individual who is the
subject of the finding may file a written motion seeking correction of that
entry and all related department records in the court exercising juvenile
jurisdiction in the parish in which the finding was made.
If neither the department nor the district attorney files a written
objection, the court may enter an order.
If after a contradictory hearing with the department and the
district attorney, the court finds that the report was not justified, and
correction of the record is not contrary to the best interest of the child,
it may order the department to correct the central registry entry.
If the central registry entry is ordered to be corrected, the
department and any law enforcement offices having any record of the report
shall be ordered to correct those records and any other records, notations,
or references thereto, and the court shall order the department and other
custodians of such records to file a sworn affidavit to the effect that
their records have been corrected. The affidavit of the department shall
also attest to the correction of the central registry entry.
When Records Must Be Expunged
Childrens Code art. 616
When, after an investigation, the determination is made that the report does
not appear to be justified or is false, all files, records, and pertinent
information regarding the report and investigation shall be destroyed
following the 3-year period required by Federal law for audit purposes.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Rev. Stat. Tit. 22, § 4008(5)
The department shall retain unsubstantiated child protective services case
records for no more than 18 months following a finding of unsubstantiation
and then expunge unsubstantiated case records from all departmental files or
archives unless a new referral has been received within the 18-month
retention period.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Family Law § 5-706.1
Within 30 days after the completion of an investigation in which
there has been a finding of indicated or unsubstantiated abuse or neglect,
the local department shall notify in writing the individual alleged to have
abused or neglected a child:
o Of the finding
o Of the opportunity to appeal the finding
o If the individual has been found responsible for indicated abuse or neglect, that the individual may be identified in a central registry as responsible for abuse or neglect
In the case of a finding of indicated abuse or neglect, an
individual may request a contested case hearing to appeal the finding by
responding to the notice of the local department in writing within 60 days.
Unless the individual and the department agree on another location,
a contested case hearing shall be held in the jurisdiction in which the
individual alleged to have abused or neglected a child resides.
If a criminal proceeding is pending on charges arising out of the
alleged abuse or neglect, the Office of Administrative Hearings shall stay
the hearing until a final disposition is made.
If after final disposition of the criminal charge, the individual
requesting the hearing is found guilty of any criminal charge arising out of
the alleged abuse or neglect, the Office of Administrative Hearings shall
dismiss the administrative appeal.
If a CINA case is pending concerning a child who has been allegedly
abused or neglected by the appellant or a child in the care, custody, or
household of the appellant, the Office of Administrative Hearings shall stay
the hearing until the CINA case is concluded.
After the conclusion of the CINA case, the Office of Administrative
Hearings shall vacate the stay and schedule further proceedings in
accordance with this section.
In the case of a finding of unsubstantiated abuse or neglect, an
individual may request a conference with a supervisor in the local
department by responding to the notice of the local department in writing
within 60 days.
In response to a timely request for a conference, a local
department supervisor shall schedule a conference, to occur within 30 days
after the supervisor receives the request, to allow the individual an
opportunity to review the redacted record, and request corrections or to
supplement the record.
Within 10 days after the conference, the local department shall
send to the individual:
o A written summary of the conference and of any modifications to be made in the record
o Notice of the individual's right to request a contested case hearing
The individual may request a contested case hearing to appeal the
outcome of the conference by responding to the summary in writing within 60
days.
If the individual does not receive the written summary and required
notice within 20 days, the individual may request a contested case hearing.
In the case of an unexpunged finding of indicated or
unsubstantiated abuse or neglect made prior to June 1, 1999, the local
department shall provide the individual with an opportunity to appeal the
finding in accordance with this section if the individual:
o Requests such an appeal
o Has not been offered an opportunity to request a contested case hearing
o Has not been found guilty of any criminal charge arising out of the alleged abuse or neglect
When Records Must Be Expunged
Family Law § 5-707(b)
The local department shall expunge a report of suspected abuse or neglect
and all assessments and investigative findings:
Within 5 years after the date of referral if the investigation
concludes that the report is unsubstantiated, and no further reports of
abuse or neglect are received during the 5 years
Within 120 days after the date of referral if the report is ruled
out, and no further reports of abuse or neglect are received during the 120
days
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Ann. Laws Ch. 119, § 51F
The name and all other identifying characteristics relating to any
child that is contained in the central registry, or to his parents or
guardian, shall be removed 1 year after the department determines, after an
investigation, that the allegation of serious physical or emotional injury
resulting from abuse or neglect cannot be substantiated.
If the allegations are substantiated, identifying information shall
be removed when the child reaches the age of 18 years, or 1 year after the
date of termination of services to the child or his family, whichever date
occurs last.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Comp. Laws § 722.627
If the department classifies a report of suspected child abuse or
neglect as a central registry case, the department shall maintain a record
in the central registry and, within 30 days after the classification, shall
notify in writing each person who is named in the record as a perpetrator of
the child abuse or neglect.
The notice shall set forth the person's right to request expunction
of the record and the right to a hearing if the department refuses the
request.
A person who is the subject of a report or record may request the
department to amend an inaccurate report or record from the central registry
and local office file. A person who is the subject of a report or record may
request the department to expunge from the central registry a report or
record in which no relevant and accurate evidence of abuse or neglect is
found to exist.
A report or record filed in a local office file is not subject to
expunction except as the department authorizes, if it is considered in the
best interest of the child.
If the department refuses a request for amendment or expunction, or
fails to act within 30 days after receiving the request, the department
shall hold a hearing to determine by a
preponderance of the evidence whether
the report or record in whole or in part should be amended or expunged from
the central registry on the grounds that the report or record is not
relevant or accurate evidence of abuse or neglect.
The hearing shall be held before a hearing officer appointed by the
department and shall be conducted as prescribed by the administrative
procedures act of 1969.
When Records Must Be Expunged
Comp. Laws § 722.627
If the investigation of a report conducted under this act fails to
disclose evidence of abuse or neglect, the information identifying the
subject of the report shall be expunged from the central registry.
If evidence of abuse or neglect exists, the department shall
maintain the information in the central registry until the department
receives reliable information that the perpetrator of the abuse or neglect
is dead.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Ann. Stat. § 626.556, subd. 10f & 10i
The investigating agency shall notify the parent or guardian of the
child who is the subject of the report, and any person or facility
determined to have maltreated a child, of their appeal or review rights
under this section or section 256.022.
Administrative reconsideration is not applicable in family
assessments since no determination concerning maltreatment is made.
For an investigation in which an individual or facility has been
determined to have maltreated a child, an interested person acting on behalf
of the child who contests the investigating agency's final determination
regarding maltreatment may request the investigating agency to reconsider
its final determination regarding maltreatment.
The request for reconsideration must be submitted in writing to the
investigating agency within 15 calendar days after receipt of notice of the
final determination or, if the request is made by an interested person who
is not entitled to notice, within 15 days after receipt of the notice by the
parent or guardian of the child.
Effective January 1, 2002, an individual who was determined to have
maltreated a child and who was disqualified [for employment or licensure] on
the basis of serious or recurring maltreatment, may request reconsideration
of the maltreatment determination and the disqualification. The request for
reconsideration of the maltreatment determination and the disqualification
must be submitted within 30 calendar days of the individual's receipt of the
notice of disqualification.
If the investigating agency denies the request or fails to act upon
the request within 15 working days after receiving the request for
reconsideration, the person or facility entitled to a fair hearing may
submit to the commissioner of human services or the commissioner of
education a written request for a hearing.
If, as a result of a reconsideration or review, the investigating
agency changes the final determination of maltreatment, that agency shall
notify the parties specified in subdivisions 10b, 10d, and 10f.
If an individual or facility contests the investigating agency's
final determination regarding maltreatment by requesting a fair hearing
under § 256.045, the commissioner of human services shall assure that the
hearing is conducted and a decision is reached within 90 days of receipt of
the request for a hearing. The time for action on the decision may be
extended for as many days as the hearing is postponed or the record is held
open for the benefit of either party.
When Records Must Be Expunged
Ann. Stat. § 626.556, subd.11c
For family assessment cases and cases where an investigation
results in no determination of maltreatment or the need for child protective
services, the assessment or investigation records must be maintained for a
period of 4 years, then destroyed. These records may not be used for
employment, background checks, or purposes other than to assist in future
risk and safety assessments.
All records relating to reports that upon investigation indicate
either maltreatment or a need for child protective services shall be
maintained for at least 10 years after the date of the final entry in the
case record.
All records regarding a report of maltreatment, including any
notification of intent to interview that was received by a school, shall be
destroyed by the school when ordered to do so by the agency conducting the
assessment or investigation. The agency shall order the destruction of the
notification when other records relating to the report under investigation
or assessment are destroyed.
Private or confidential data released to a court services agency
must be destroyed by the court services agency when ordered to do so by the
local welfare agency that released the data. The local welfare agency or
agency responsible for assessing or investigating the report shall order
destruction of the data when other records relating to the assessment or
investigation are destroyed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Ann. Code § 43-21-257
The Department of Human Services shall adopt such rules and administrative
procedures, especially those procedures to afford due process to individuals
who have been named as substantiated perpetrators before the release of
their name from the central registry, as may be necessary to carry out this
subsection.
When Records Must Be Expunged
Ann. Code § 43-21-263
The youth court may order the sealing of records involving children:
If the child who was the subject of the case has attained 20 years
of age
If the youth court dismisses the case
If the youth court sets aside an adjudication in the case
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Ann. Stat. § 210.152
Within 90 days after receipt of a report of abuse or neglect that
is investigated, the alleged perpetrator named in the report and the parents
of the child named in the report, if the alleged perpetrator is not a
parent, shall be notified in writing of any determination made by the
division based on the investigation. The notice shall advise either:
o That the division has determined by a probable cause finding (prior to August 28, 2004), or by a preponderance of the evidence (after August 28, 2004), that abuse or neglect exists and that the division shall retain all identifying information regarding the abuse or neglect; that such information shall remain confidential and will not be released except to law enforcement agencies, prosecuting or circuit attorneys, or as provided in § 210.150; that the alleged perpetrator has 60 days from the date of receipt of the notice to seek reversal of the division's determination through a review by the child abuse and neglect review board
o That the division has not made a probable cause finding or determined by a preponderance of the evidence that abuse or neglect exists
Any person named in an investigation as a perpetrator who is
aggrieved by a determination of abuse or neglect by the division may seek an
administrative review by the child abuse and neglect review board. Such
request for review shall be made within 60 days of notification of the
division's decision. In those cases where criminal charges arising out of
facts of the investigation are pending, the request for review shall be made
within 60 days from the court's final disposition or dismissal of the
charges.
In any action for administrative review, the child abuse and
neglect review board shall sustain the division's determination if such
determination was supported by evidence of probable cause prior to August
28, 2004, or is supported by a
preponderance of the evidence after August
28, 2004, and is not against the weight of such evidence. The child abuse
and neglect review board hearing shall be closed to all persons except the
parties, their attorneys, and those persons providing testimony on behalf of
the parties.
If the alleged perpetrator is aggrieved by the decision of the
child abuse and neglect review board, the alleged perpetrator may seek de
novo judicial review in the circuit court. The request for a judicial
review shall be made within 60 days of notification of the decision of the
child abuse and neglect review board. In reviewing such decisions, the
circuit court shall provide the alleged perpetrator the opportunity to
appear and present testimony. The alleged perpetrator may subpoena any
witnesses except the alleged victim or the reporter.
In such action for administrative review, the child abuse and
neglect review board shall notify the child or the parent, guardian, or
legal representative of the child that a review has been requested.
When Records Must Be Expunged
Ann. Stat. § 210.152
For investigation reports where there is insufficient evidence of
abuse or neglect, and the division determines that the allegation was made
maliciously, for purposes of harassment, or in retaliation for the filing of
a report, identifying information shall be expunged within 45 days from the
conclusion of the investigation.
For investigation reports initiated by a mandated reporter, where
insufficient evidence of abuse or neglect is found by the division,
identifying information shall be retained for 5 years from the conclusion of
the investigation.
For all other reports where there is insufficient evidence,
identifying information shall be retained for 2 years.
At the end of such time, the identifying information shall be
removed from the records of the division and destroyed.
For reports in which the division is unable to locate the child
alleged to have been abused or neglected, identifying information shall be
retained for 10 years from the date of the report and then shall be removed
from the records of the division.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Ann. Code § 41-3-202
A person who is the subject of an unsubstantiated report that was made prior
to October 1, 2003, and after which a period of 3 years has elapsed without
there being submitted a subsequent substantiated report or an order issued
based on the circumstances surrounding the initial allegations, may request
that the department destroy all of the records concerning the
unsubstantiated report.
When Records Must Be Expunged
Ann. Code § 41-3-202
If from the investigation it is determined that the child has not
suffered abuse or neglect and the initial report is determined to be
unfounded, the department and the social worker, county attorney, or peace
officer who conducted the investigation shall destroy all of their records
concerning the report and the investigation. The destruction must be
completed within 30 days of the determination that the child has not
suffered abuse or neglect.
If the report is unsubstantiated, the department and the social
worker who conducted the investigation shall destroy all of the records,
except for medical records, concerning the unsubstantiated report and the
investigation within 30 days after the end of the 3-year period starting
from the date the report was determined to be unsubstantiated, unless:
o There had been a previous or there is a subsequent substantiated report concerning the same person.
o An order has been issued based on the circumstances surrounding the initial allegations.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Rev. Stat. § 28-723
At any time subsequent to the completion of the department's
investigation, the subject of the report of child abuse or neglect may
request the department to amend, expunge identifying information from, or
remove the record of the report from the central register of child
protection cases.
If the department refuses to do so or does not act within 30 days,
the subject of the report of child abuse or neglect shall have the right to
a fair hearing within the department to determine whether the record of the
report should be amended, expunged, or removed on the grounds that it is
inaccurate or that it is being maintained in a manner inconsistent with the
child protection act.
Such fair hearing shall be held within a reasonable time after the
subject's request and at a reasonable place and hour. In such hearings, the
burden of proving the accuracy and consistency of the record shall be on the
department.
A juvenile court finding of child abuse or child neglect shall be
presumptive evidence that the report was not unfounded.
The hearing shall be conducted by the head of the department who is
authorized and empowered to order the amendment, expunction, or removal of
the record to make it accurate or consistent with the requirements of the
act.
The decision shall be made in writing, at the close of the hearing,
or within 30 days thereof, and shall state the reasons upon which it is
based.
Decisions of the department may be appealed under the provisions of
the Administrative Procedure Act.
When Records Must Be Expunged
Rev. Stat. § 28-721
At any time, the department may amend, expunge, or remove from the central
register of child protection cases any record upon good cause shown and upon
notice to the subject of the report of child abuse or neglect and to the
division.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Rev. Stat. § 432.120
The information contained in the central registry concerning cases in which
a report of abuse or neglect of a child has been substantiated by an agency
that provides child welfare services must be deleted from the central
registry not later than 10 years after the child who is the subject of the
report reaches the age of 18 years.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Rev. Stat. §§ 169-C:34; 169-C:35
Prior to an individual's name being placed on the central registry,
due process is afforded. Only after due process (appeal of the decision) is
waived, or due process confirms the finding, is the name of the individual
placed on the central registry. [See Rev. Stat. § 169-C:34, Notes to
Decisions number 3: Duties of division upon finding of probable cause.]
Due process requires being able to show by a
preponderance of the evidence that a founded case of abuse or neglect has occurred. See Rev.
Stat. § 169-C:35, Notes to Decisions: Due process.]
Individuals whose names are on the central registry have the right
to have their name expunged from the registry if they can demonstrate that
they no longer pose a threat to children. This is a process that occurs
separately from the initial assessment and ''founded'' determination
process.
Any individual whose name is listed in the founded reports
maintained on the central registry may petition the district court to have
his or her name expunged from the registry.
When a petition to expunge is filed, the district court shall
require the department to report to the court concerning any additional
founded abuse and neglect reports on the petitioner and to submit the
petitioner's name, birth date, and address to the State police to obtain
information about criminal convictions.
Upon the receipt of the department's report, the court may act on
the petition without further hearing or may schedule the matter for hearing
at the request of either party. If the court determines that the petitioner
does not pose a present threat to the safety of children, the court shall
grant the petition and order the department to remove the individual's name
from the central registry. Otherwise, the petition shall be dismissed.
When an individual's name is added to the central registry, the
department shall notify individuals of their right to petition to have their
name expunged from the central registry. No petition to expunge shall be
brought within 1 year from the date that the petitioner's name was initially
entered on the central registry. If the petition to expunge is denied, no
further petition shall be brought more frequently than every 3 years
thereafter.
When Records Must Be Expunged
Rev. Stat. § 169-C:35-a
The department shall retain a screened-out report for 1 year from
the date that the report was screened-out, then the department shall delete
or destroy all electronic and paper records of the report.
The department shall retain an unfounded report for 3 years from
the date that the department determined the case to be unfounded, then shall
delete or destroy all electronic and paper records of the report.
The department shall retain a founded report for 7 years from the
date that the subject has exhausted or failed to exercise his or her due
process right to appeal the department's determination to found the report,
after which time, the department shall delete or destroy all electronic and
paper records of the report.
The provisions above, relating to the destruction of the records of
founded reports, shall not apply to cases that remain open with the
department in excess of 7 years or to adoption records. Upon the closure of
a case that has remained open with the department in excess of 7 years, the
department shall delete or destroy all electronic and paper records of the
report.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Ann. Stat. § 9:6-8.40a
The Division of Youth and Family Services in the Department of Human
Services shall expunge from its records all information relating to a
report, complaint, or allegation of an incident of child abuse or neglect
when an investigation has determined that the allegation was unfounded.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Soc. Serv. Law § 422
Notwithstanding any other provision of law, the office of children
and family services may, in its discretion, grant a request to expunge an
unfounded report where:
o The source of the report was convicted of knowingly making a false report in regard to such report.
o The subject of the report presents clear and convincing evidence that affirmatively refutes the allegation of abuse or maltreatment.
The absence of credible evidence supporting the allegation of abuse
or maltreatment shall not be the sole basis to expunge the report.
Nothing in this paragraph shall require the office of children and
family services to hold an administrative hearing in deciding whether to
expunge a report.
Such office shall make its determination upon reviewing the written
evidence submitted by the subject of the report and any records or
information obtained from the State or local agency that investigated the
allegations of abuse or maltreatment.
In any case and at any time, the commissioner may amend any record
upon good cause shown and notice to the subjects of the report and other
persons named in the report.
When Records Must Be Expunged
Soc. Serv. Law § 422
The record of the report to the central register shall be expunged
10 years after the 18th birthday of the youngest child named in the report.
In the case of a child in residential care, the record of the
report to the central register shall be expunged 10 years after the reported
child's 18th birthday.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Cent. Code § 50-25.1-05.4
The department shall adopt rules to resolve complaints and conduct appeal
hearings requested by the subject of a report of suspected child abuse,
neglect, or death resulting from abuse or neglect who is aggrieved by the
conduct or result of an assessment.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Ann. Stat. Tit. 10, § 7111
Records obtained by the Department shall be maintained by the Department
until otherwise provided by law.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
23 Cons. Stat. § 6341
Any person named as a perpetrator, and any school employee named in
an indicated report of child abuse may, within 45 days of being notified of
the status of the report, request the secretary to amend or expunge an
indicated report on the grounds that it is inaccurate or it is being
maintained in a manner inconsistent with law.
If the secretary grants the request, the Statewide central
register, appropriate county agency, appropriate law enforcement officials,
and all subjects shall be so advised of the decision.
The county agency and any subject have 45 days in which to file an
administrative appeal with the secretary. If an administrative appeal is
received, the secretary or his designated agent shall schedule a hearing.
If no administrative appeal is received within the designated time
period, the Statewide central register shall comply with the decision of the
secretary and advise the county agency to amend or expunge the information
in their records so that the records are consistent at both the State and
local levels.
If the secretary refuses the request for a hearing or does not act
within a reasonable time, but in no event later than 30 days after receipt
of the request, the perpetrator or school employee shall have the right to a
hearing before the secretary or a designated agent of the secretary to
determine whether the indicated report in the Statewide central register
should be amended or expunged on the grounds that it is inaccurate or that
it is being maintained in a manner inconsistent with law.
The perpetrator or school employee shall have 45 days from the date
of the letter giving notice of the decision to deny the request in which to
request a hearing. The appropriate county agency and appropriate law
enforcement officials shall be given notice of the hearing.
The burden of proof in the hearing shall be on the appropriate
county agency. The department shall assist the county agency as necessary.
Any administrative appeal proceeding shall be automatically stayed
upon notice to the department by either of the parties when there is a
pending criminal proceeding or a dependency or delinquency proceeding.
The secretary or designated agent may make any appropriate order
respecting the amendment or expunction of records to make them accurate or
consistent with the requirements of this chapter.
Written notice of an expunction of any child abuse record shall be
served upon the subject of the record who was responsible for the abuse or
injury and the appropriate county agency.
When Records Must Be Expunged
23 Cons. Stat. §§ 6337; 6338
When a report of suspected child abuse is determined to be
unfounded, the information concerning that report shall be maintained for 1
year, then expunged from the pending complaint file, as soon as possible,
but no later than 120 days after the end of the 1-year period.
If an investigation of a report of suspected child abuse is unable
to within 60 days to determine whether the report is founded, indicated,
unfounded, or unless within that same 60-day period court action has been
initiated and is responsible for the delay, the report shall be considered
to be an unfounded report, and all information identifying the subjects of
the report shall be expunged no later than 120 days following the expiration
of 1 year after the date the report was received by the department.
All information identifying the subjects of any report of suspected
child abuse, and of any report relating to students in public and private
schools determined to be an unfounded report, shall be expunged from the
pending complaint file.
All information that identifies the subjects of founded and
indicated child abuse reports shall be expunged when the subject child
reaches the age of 23 years.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Ann. Laws Tit. 8, § 442g
The subject of the report may, at any time after the investigation
has been completed, request that the report in the Register be amended,
eliminated, or removed.
If the Commonwealth Center for the Protection of Minors refuses to
do so or fails to take action within 30 days after the request is received,
the subject of the report may resort to the Family Relations Part or Minors
Affairs Part of the Court of First Instance.
A term of 30 days is granted to file this motion from the date the
written notice of the corresponding action is mailed, or the term for the
Commonwealth Center for the Protection of Minors has elapsed, as the case
may be.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Gen. Laws § 40-11-13.1
All records concerning reports of child abuse and neglect made pursuant to
this chapter, including reports made to the department, shall be destroyed 3
years after the date of a final determination by either the family court or
the department that the reported child abuse or neglect did not in fact
occur.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Ann. Code § 20-7-655
The statute provides for a child protective services appeals
process for reports that have been indicated, entered in the Central
Registry, and are not being brought before the family court for disposition.
This process is available only to the person determined to have abused or
neglected the child.
The State director shall appoint a hearing officer to conduct a
contested case hearing for each case decision appealed. The hearing officer
shall prepare recommended findings of fact for review by the State director
who shall render the final decision. The purpose of the hearing is to
determine whether there is a
preponderance of the evidence that the appellant
was responsible for abuse or neglect of the child.
If the family court has determined that the person is responsible
for abuse or neglect of the child, an administrative appeal is not
available. If the family court reaches such a determination after the
initiation of the appeal, the department shall terminate the appeal upon
receipt of an order that disposes of the issue. If a proceeding is pending
in the family court, the department shall stay the appeal pending the
court's decision.
If the department determines that a report is indicated, the
department shall provide notice of the case decision to the person
determined to have abused or neglected the child. The notice must inform the
person of the right to appeal the case decision and that, if he or she
intends to appeal the decision, he or she must notify the department of his
or her intent in writing within 30 days of receipt of the notice.
The notice also must advise the person that the appeal process is
for the purpose of determining whether a
preponderance of the evidence supports
the case decision that the person abused or neglected the child. If the
person does not notify the department of his or her intent to appeal in
writing within 30 days of receipt of the notice, the right to appeal is
waived and the case decision becomes final.
Within 14 days after receipt of a notice of intent to appeal, an
appropriate official of the department must conduct an interim review of
case documentation and determination. If the official conducting the interim
review decides that the determination against the appellant is not supported
by a
preponderance of the evidence, this decision must be reflected in the
department's case record and database. If the person's name was in the
Central Registry as a result of a determination and the interim review
results in a reversal of the decision that supports that entry, the person's
name must be removed from the Central Registry.
After a contested case hearing, if the State director decides that
the determination against the appellant is not supported by a
preponderance of the evidence, this decision must be reflected in the department's case record
and database. If the person's name was in the Central Registry as a result
of a determination and the State director reverses the decision that
supports that entry, the person's name must be removed from the Central
Registry. If the State director affirms the determination against the
appellant, the appellant has the right to seek judicial review in the family
court of the jurisdiction in which the case originated.
An appellant seeking judicial review shall file a petition in the
family court within 30 days after the final decision of the department. The
court may enter judgment upon the pleadings and a certified transcript of
the record that must include the evidence upon which the findings and
decisions appealed are based. The judgment must include a determination of
whether the decision of the department that a
preponderance of the evidence
shows that the appellant abused or neglected the child should be affirmed or
reversed. The appellant is not entitled to a trial de novo in the
family court.
When Records Must Be Expunged
Ann. Code § 20-7-680
The names, addresses, birth dates, identifying characteristics, and other
information unnecessary for auditing and statistical purposes of persons
named in department records of indicated cases other than the Central
Registry of Child Abuse and Neglect must be destroyed 7 years from the date
services are terminated.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Ann. Laws § 26-8A-11
Within 30 days after notice of a substantiated investigation by the
Department of Social Services, a subject of a report of abuse or neglect may
request the department to amend, expunge identifying information from, or
remove the record of the report from the register. The request shall be in
writing and directed to the person designated by the department in the
notice.
If the department refuses or does not act within 30 days after
receipt of the written request, the subject may request an administrative
hearing, to be held within 30 days, to determine whether the record of the
report should be amended, expunged, or removed on the grounds that it is
inaccurate or it is being maintained in a manner inconsistent with law.
If there has been a court finding of child abuse or neglect, the
report's accuracy is conclusively presumed and the subject has no right to
an administrative hearing on the ground of inaccuracy.
The appropriate local office of the department shall be given
notice of the hearing. In the hearing, the burden of proving the accuracy
and consistency of the record is on the department.
The hearing examiner may order the amendment, expunction, or
removal of the record to make it accurate and consistent with this chapter.
Under no circumstances may the hearing examiner order or the
department carry out any amendment, expunction, or removal of any portion of
the record that proves, affirms, corroborates, or supports the innocence of
the subject of the report without the express written authority of the
subject.
The decision shall be made in writing within 90 days after the date
of receipt of the request for a hearing and shall state the reasons upon
which it is based.
Decisions of the department under this section are administrative
decisions subject to judicial review.
When Records Must Be Expunged
Ann. Laws § 26-8A-11
In any case where there has been no substantiated report of child abuse and
neglect, the department may not maintain a record or other information of
unsubstantiated child abuse and neglect for longer than 3 years if there has
been no further report within that 3-year period.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Family Code § 261.315
At the conclusion of an investigation in which the department
determines that the person alleged to have abused or neglected a child did
not commit abuse or neglect, the department shall notify the person of the
person's right to request that the department remove information about the
person's alleged role in the abuse or neglect report from the department's
records.
On request by a person whom the department has determined did not
commit abuse or neglect, the department shall remove information from the
department's records concerning the person's alleged role in the abuse or
neglect report.
The board shall adopt rules necessary to administer this section.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Ann. Code § 62A-4a-116.5
The division shall send a notice of agency action to a person about
whom the division has made a supported finding. The notice shall state that:
o The division has conducted an investigation regarding alleged child abuse, neglect, or dependency
o The division has made a supported finding of abuse, neglect, or dependency
o Facts gathered by the division support the supported finding
o The person has the right to request a copy of the report and an opportunity to challenge the supported finding
o Failure to request an opportunity to challenge the supported finding within 30 days of receiving the notice will result in an unappealable supported finding of child abuse, neglect, or dependency unless the person can show good cause why compliance within the 30-day requirement was virtually impossible or unreasonably burdensome
A person may make a request to challenge a supported finding within
30 days of a notice being received.
Upon receipt of a request, the Office of Administrative Hearings
shall hold an adjudicative proceeding pursuant to the Administrative
Procedures Act.
In an adjudicative proceeding, the division shall have the burden
of proving, by a
preponderance of the evidence, that there is a reasonable
basis to conclude that child abuse, neglect, or dependency occurred and that
the alleged perpetrator was substantially responsible for the abuse or
neglect that occurred.
Any party shall have the right of judicial review of final agency
action.
Except as otherwise provided in this chapter, an alleged
perpetrator who, after receiving notice, fails to challenge a supported
finding, may not further challenge the finding and shall have no right to
agency review, an adjudicative hearing, or judicial review of the finding.
An alleged perpetrator may not make a request to challenge a
supported finding if a court of competent jurisdiction entered a finding, in
a proceeding in which the alleged perpetrator was a party, that the alleged
perpetrator is substantially responsible for the abuse, neglect, or
dependency that was also the subject of the supported finding.
An adjudicative proceeding may be stayed during the time a judicial
action on the same matter is pending.
When Records Must Be Expunged
Ann. Code § 62A-4a-116.4
Unless the executive director determines that there is good cause for
keeping a report of abuse or neglect in the Management Information System,
based on standards established by rule, the division shall delete any
reference to:
A report that is without merit, if no subsequent report involving
the same alleged perpetrator has occurred within 1 year
A report that has been determined by a court of competent
jurisdiction to be unsubstantiated or without merit, if no subsequent report
involving the same alleged perpetrator has occurred within 5 years
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
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Right of
the Reported Person to Review and Challenge Records
Ann. Stat. Tit. 33, § 4916
A person may, at any time, apply to the human services board for
relief if he or she has reasonable cause to believe that contents of the
registry are being misused.
A person may, at any time, apply to the human services board for an
order expunging from the registry a record concerning him or her on the
grounds that it is unsubstantiated or not otherwise expunged in accordance
with this section.
The board shall hold a fair hearing under § 3091 of Title 3 at
which the burden shall be on the commissioner to establish that the record
shall not be expunged.
When Records Must Be Expunged
Ann. Stat. Tit. 33, § 4916
If the commissioner determines after investigation that the
reported facts are unsubstantiated, after notice to the person complained
about, the records shall be destroyed unless the person complained about
requests within 1 year that it not be destroyed.
If no court proceeding is brought within 1 year of the date of the
notice to the person complained about, the records relating to the
unsubstantiated report shall be destroyed.
All registry records relating to an individual child shall be
destroyed when the child reaches the age of majority.
All registry records relating to a family or siblings within a
family shall be destroyed when the youngest sibling reaches the age of
majority.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Ann. Code § 63.2-1526
A person who is suspected of or is found to have committed abuse or
neglect may, within 30 days of being notified of that determination, request
the local department making the determination to amend the determination and
the local department's related records.
Upon written request, the local department shall provide the
appellant all information used in making its determination.
The local department shall hold an informal conference where such
person, who may be represented by counsel, shall be entitled to informally
present testimony of witnesses, documents, factual data, arguments, or other
submissions of proof to the local department.
If the local department refuses the request for amendment or fails
to act within 45 days after receiving the request, the person may, within 30
days thereafter, petition the Commissioner, who shall grant a hearing to
determine whether it appears, by a
preponderance of the evidence, that the
determination or record contains information that is irrelevant or
inaccurate regarding the commission of abuse or neglect by the person who is
the subject of the determination.
The hearing officer shall have the authority to issue subpoenas for
the production of documents and the appearance of witnesses, and to
determine the number of depositions that will be allowed.
The person who is the subject of the report has the right to submit
oral or written testimony or documents, and to be informed of the procedure
by which information will be made available or withheld.
The alleged child victims of the person and their siblings shall
not be subpoenaed, deposed, or required to testify.
Such hearing officers are empowered to order the amendment of such
determination or records as required to make them accurate and consistent
with the requirements of law or regulation.
If, after hearing the facts of the case, the hearing officer
determines that the person who is the subject of the report has presented
information that was not available to the local department at the time of
the local conference. and that if available may have resulted in a different
determination by the local department, he or she may remand the case to the
local department for reconsideration.
The local department shall have 14 days in which to reconsider the
case. If, at the expiration of 14 days, the local department fails to act or
fails to amend the record to the satisfaction of the appellant, the case
shall be returned to the hearing officer for a determination.
If aggrieved by the decision of the hearing officer, such person
may obtain further review of the decision in accordance with Article 5 of
the Administrative Process Act.
Whenever an appeal of the local department's finding is made and a
criminal charge is also filed against the appellant for the same conduct
involving the same victim as investigated by the local department, the
appeal process shall automatically be stayed until the criminal prosecution
in circuit court is completed.
During such stay, the appellant's right of access to the records of
the local department regarding the matter being appealed shall also be
stayed.
Once the criminal prosecution in circuit court has been completed,
the local department shall advise the appellant in writing of his or her
right to resume his or her appeal within the timeframes provided by law and
regulation.
When Records Must Be Expunged
Ann. Code § 63.2-1514
The record of unfounded investigations and complaints and reports
determined to be not valid shall be purged 1 year after the date of the
complaint or report if there are no subsequent complaints or reports
regarding the same child or the person who is the subject of the complaint
or report in that 1 year.
The record of family assessments shall be purged 3 years after the
date of the complaint or report if there are no subsequent complaints or
reports regarding the same child or the person who is the subject of the
report in that 3-year period.
The child-protective services records regarding the petitioner that
result from such complaint or report shall be purged immediately by any
custodian of such records upon presentation to the custodian of a certified
copy of a court order that there has been a civil action that determined
that the complaint or report was made in bad faith or with malicious intent.
After purging the records, the custodian shall notify the
petitioner in writing that the records have been purged.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Rev. Code § 26.44.125
A person who is named as an alleged perpetrator after October 1,
1998, in a founded report of child abuse or neglect has the right to seek
review and amendment of the finding.
Within 20 calendar days after receiving written notice from the
department that a person is named as an alleged perpetrator in a founded
report of child abuse or neglect, he or she may request that the department
review the finding. The request must be made in writing.
If a request for review is not made, the alleged perpetrator may
not further challenge the finding and shall have no right to agency review,
adjudicative hearing, or judicial review of the finding.
Upon receipt of a written request for review, the department shall
review and, if appropriate, may amend the finding. The review must be
conducted in accordance with procedures the department establishes by rule.
Upon completion of the review, the department shall notify the
alleged perpetrator in writing of the agency's determination.
If, following agency review, the report remains founded, the person
named as the alleged perpetrator in the report may request an adjudicative
hearing to contest the finding.
The request for an adjudicative proceeding must be filed within 30
calendar days after receiving notice of the agency review determination.
If a request for an adjudicative proceeding is not made, the
alleged perpetrator may not further challenge the finding.
Reviews and hearings conducted under this section are confidential
and shall not be open to the public.
When Records Must Be Expunged
Rev. Code § 26.44.031
The department shall not maintain information related to unfounded
referrals in files or reports of child abuse or neglect for longer than 6
years.
At the end of 6 years from receipt of the unfounded report, the
information shall be purged unless an additional report has been received in
the intervening period.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right
of the Reported Person to Review and Challenge Records
Not addressed in statutes reviewed.
When Records Must Be Expunged
Ann. Code § 49-6A-5
Unless there are pending proceedings, all reports shall be destroyed 30
years following their preparation.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Ann. Stat. § 48.981
If the department or a licensed child welfare agency under contract
with the department determines that a specific person has abused or
neglected a child, the department or agency, within 15 days after the date
of the determination, shall notify the person in writing of the
determination, the person's right to appeal the determination, and the
procedure by which the person may appeal the determination.
The person may appeal the determination in accordance with the
procedures established by the department.
Those procedures shall include a procedure permitting an appeal to
be held in abeyance pending the outcome of any criminal proceedings based on
the alleged abuse or neglect or the outcome of any investigation that may
lead to the filing of a criminal complaint.
When Records Must Be Expunged
Not addressed in statutes reviewed.
Child Abuse and Neglect
Review and Expunction of Central Registries and Reporting Records
To better understand this issue and to view it across States, see the Review and Expunction of Central Registries and Reporting Records: Summary of State Laws (PDF - 331 KB) publication.
Right of
the Reported Person to Review and Challenge Records
Ann. Stat. § 14-3-213
Any person named as a perpetrator of child abuse or neglect in any
report maintained in the central registry that is classified as a
substantiated report shall have the right to have included in the report his
or her statement concerning the incident giving rise to the report.
Any person seeking to include a statement pursuant to this
subsection shall provide the State agency with the statement.
The State agency shall provide notice to any person identified as a
perpetrator of his or her right to submit his or her statement in any report
maintained in the central registry.
When Records Must Be Expunged
Ann. Stat. § 14-3-213
Upon good cause shown and upon notice to the subject of an under
investigation or substantiated report, the State agency may list, amend,
expunge, or remove any record from the central registry in accordance with
rules and regulations adopted by the State agency.
Within 6 months all reports classified as under investigation
shall be reclassified as substantiated or expunged from the central
registry, unless the State agency is notified of an open criminal
investigation or criminal prosecution.
Unsubstantiated reports shall not be contained within the central
registry.
States Courts finding Registries Unconstitutional
This is a listing of some states finding Registries Unconstitutional. Not because the Registry shouldn't exist, but because many people accused were placed on the list and have not had to opportunity to appeal in court after an informal hearing, or Administrative hearing. If you find any other articles on this matter, please email. Okay, it's not a big list, but hopefully it will grow. (webmaster note: I hope to add briefs, and other related information to each state for future reference)
Info To add: Indiana
IN : Retroactive Registrations Unconstitutional
<http://constitutionalfights.blogspot.com/2009/11/in-retroactive-registrations.h\
tml>
Illinois: http://www.youthlaw.org/publications/fc_docket/alpha/dupuyvsamuels/
Supreme Court Decisions
Uphold Parental Rights as Fundamental
Original Link:
http://www.hslda.org/docs/nche/000000/00000075.asp
New York~~
Do Standards of Proof Affect Decision Making in Child Protection Investigations?
|
|||||||||||||||||
|
Do Standards of Proof Affect Decision Making in Child
Protection Investigations?
Murray Levine1
Abstract Every
state investigates child maltreatment reports. Some states
use a lower standard of proof of
 some
credible evidence
(or similar terms) to substantiate cases after
investigation. Other state legislatures prescribe a higher
standard of
preponderance
of the evidence. Legislatures use these terms of art as a
matter of policy to control the risk of false-positive
errors. A lower rate of substantiation should follow from a
higher standard of proof. There was no statistically
significant difference in the percent of substantiated and
the percent of unsubstantiated cases in the two groups of
states. If state policy to reduce the false-positive error
rate is to be effective, something more is required than
simply manipulating the verbal formula in legislation.
|
PDF
(641.3 KB)
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
BILL ANALYSIS
AB 2194
Page 1
Date of Hearing: April 9, 1996
Counsel: Jennifer P. Anderson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Paula L. Boland, Chair
AB 2194 (Knowles) - As Amended: March 28, 1996
Majority vote.
SUMMARY: Substantially alters the method by which the Department
of Justice (DOJ) receives, processes and maintains records of
child abuse reports and changes the manner in which local child
protective agencies submit child abuse reports to the DOJ.
Specifically, this bill:
1) Redefines the types of child abuse reports to be submitted for
inclusion on the Child Abuse Central Index (CACI). This bill
establishes that "substantiated reports," defined as those
reports that are determined by a child protective agency
investigator to constitute child abuse or neglect and that are
established by a preponderance of the evidence, shall be
submitted to the DOJ. In addition, "inconclusive reports,"
defined as reports that are determined by a child protective
agency investigator not be unfounded, but in which the findings
are inconclusive and there is no sufficient evidence to
determine whether child abuse or neglect has occurred, shall
also be submitted to the DOJ for inclusion on the CACI.
2) Provides that any person whose name is submitted to the DOJ for
inclusion on the CACI pursuant to a substantiated child abuse
report with notice and an administrative hearing to determine
whether the child abuse report is substantiated.
3) Requires the DOJ to purge existing names from the CACI that
would not have been submitted to the DOJ under the new
standards established by this bill.
4) Establishes that only substantiated reports of child abuse
maintained on the index shall be reported to the Department of
Social Services or other licensing agencies for purposes of
granting or denying persons licenses to operate specified child
care facilities, or employment in such facilities.
5) Provides that both inconclusive and substantiated reports
maintained on the index shall be available to child protective
agencies, including law enforcement.
FISCAL EFFECT: Unknown
EXISTING LAW:
1) Requires that child abuse reports be investigated by local law
enforcement agencies and/or by county child welfare services
agencies. (Penal Code Section 11166.3.)
AB 2194
Page 2
2) Provides that child abuse reports that are deemed "unfounded"
are not reported to, nor placed on file with, the CACI. (Penal
Code Sections
11169, 11170.) Reports deemed "unsubstantiated" or
"substantiated," as defined, are reported to CACI and placed on
the index. (Penal Code Sections 11169, 11170, and 11165.12.)
3) Establishes that information contained in CACI is available to
a variety of agencies including law enforcement, certain child
abuse investigators, professional child-care licensing
agencies, and adoption agencies. (Penal Code Section 11167.5.)
4) Does not provide a process whereby a person whose name has
been placed on the CACI may attempt to have his/her name removed
from CACI, nor is there a standardized method for purging of old
records contained in CACI.
5) Defines a "substantiated report" to mean a report which is
determined by a child protective agency investigator, based
upon some credible evidence, to constitute child abuse or
neglect. Substantiated reports are reported to the CACI and
used for licensing, employment, and law enforcement
investigative purposes. (Penal Code Sections 11165.12(b),
11170(b)(3).)
6) Defines an "unsubstantiated" report as one that is not
unfounded, but in which the findings are inconclusive and there
is insufficient evidence to determine whether child abuse or
neglect has occurred. Unsubstantiated reports are currently
reported to the CACI and used for licensing, employment, and
law enforcement investigative purposes. (Penal Code Sections
11165.12(c), 11170(b)(3).)
7) Defines an "unfounded" report as one that is false, to be
inherently improbable, to involve an accidental injury, or not
to constitute child abuse. Unsubstantiated reports are not
reported to the CACI. (Penal Code Section 11165.12(a).)
FISCAL EFFECT: Unknown
BACKGROUND
1) According to the author, "The California Department of
Justice, Division of Law Enforcement maintains the Child Abuse
Central Index (CACI), which contains information from reports
submitted by child protective agencies on child abuse victims and
suspected abusers, for use by child protective agencies. This
information includes the name of both the suspect and the victim,
personal characteristics, reporting agency and type of abuse.
There is no standard procedure for an individual to have an
unsubstantiated report appealed. In other words, if someone is
accused and the report is tagged as "unsubstantiated" the
accused has no standard options to appeal the determination.
According to the Department of Justice, it is up to the
AB 2194
Page 3
complete discretion of the local investigating officer to make
any change of record.
This legislation will provide the necessary due process for
those individuals who have been inappropriately accused, yet
who currently have no means by which to clear their name."
2) History of CACI: The DOJ was first mandated to automate its
child abuse reporting system in 1984. (Chapter 1613, Statutes
of 1984.) Since that time, the CACI system has changed
dramatically in scope. It was first developed as a tool for
child abuse investigators and law enforcement personnel. At
that time, reports were made to CACI at the
pre-investigation or preliminary stages. In 1986, the system was
expanded to provide information to certain professional child-care
licensing agencies. Also at that time, the reporting requirements
were changed so that only those child abuse incidents that are
"actively investigated" are to be reported.
3) Due Process Concerns: CACI may be unconstitutional as it is
now applied because it affords the subject of a child abuse
report no notification of his or her name being added to the
index, nor does it provide the subject a hearing on the
validity of this claim. The subject's due process rights may
be infringed if he or she is denied a professional license
based on a child abuse record that is "unsubstantiated."
In Valmonte v. Bane (18 F.3d 995 (1994)), a federal court found
a New York child abuse index system similar to the one employed
in California as unconstitutional. Although the plaintiff was
given notice and a hearing, the standard applied at the hearing
was too low to satisfy the due process right of the individual.
The standard was similar to California's definition of
"unsubstantiated."
ARGUMENTS IN SUPPORT: If enacted, this bill will likely protect
the CACI from future law suits, provide innocent persons wrongly
accused of child abuse with a procedure for removing their names
from the CACI, and make the CACI a more effective law enforcement
and child abuse prevention tool.
ARGUMENTS IN OPPOSITION: None on file
REGISTERED SUPPORT/OPPOSITION:
Support
None on file
Opposition
None on file
Analysis prepared by: Jennifer P. Anderson / apubs / 445-3268
~~~~~
Wednesday, November 18, 2009
IN : Retroactive Registrations Unconstitutional
<http://constitutionalfights.blogspot.com/2009/11/in-retroactive-registrations.h\
tml>
theindychannel.com
<http://www.theindychannel.com/news/21642848/detail.html>: Hundreds Of
Sex Offenders Removed From Registry -
Court Ruling Calls Retroactive Registrations Unconstitutional.
(If you are registered in Indiana, you must follow this procedure to
have your name removed):
Indianapolis - Hundreds of convicted sex offenders could have their
names and pictures removed from county lists after _*a state law was
ruled unconstitutional.*_ In 1994, the Indiana Legislature created
Zachary's Law, or the sex offender registry. Three years later, the
Legislature amended the law to require all persons convicted of sex
offenses to register. But this September, the Indiana Supreme Court
reaffirmed its own ruling that the law was unconstitutional because it
required those convicted before the law was enacted to register.
On the advice of the state attorney general, the Marion County sheriff
will now allow those required to register retroactively to have their
names removed from the list, 6News' Jack Rinehart reported.
"We're not going to remove anybody. We're taking no enforcement action,"
said Lt. Bob Hanna, who oversees the Sheriffs' Sex and Violent Offender
Registry. "As far as removing faces, names and addresses, we won't do
that without a court order."
Sex offenders who registered retroactively can petition the court that
held jurisdiction over their case to remove their names from the
registry. They will then have to present that order to the local
sheriff's department.
In Marion County, which currently has 3,606 registered offenders, more
than 800 sex offenders would be eligible to have their names removed
from the list.
Residents said they'll find a way around the law change. "I think what
you'll see is groups or agencies that will pop up and track these
individuals that will try to take themselves off the list," said Bill
Callahan of the Brookside Neighborhood Association
<http://sites.google.com/site/brooksideneighborhood/>. "There's nothing
to stop people from getting public information about a person and
creating their own list."
Is that a threat of vigilantism or harassment ? Perhaps someone should
report this threat to the authorities.
Posted by constitutionalfights@yahoo.com at 1:07 PM
<http://constitutionalfights.blogspot.com/2009/11/in-retroactive-registrations.h\
tml>
<http://www.blogger.com/post-edit.g?blogID=5162569870390195419&postID=4343919270\
745352389>
> Here is what I found on the Humphries appeal and decision.
>
> http://www.ca9. uscourts. gov/datastore/ opinions/ 2009/01/30/
> 0556467.pdf
> <http://www.ca9.uscourts.gov/datastore/opinions/2009/01/30/0556467.pdf>
> >
> > Thank you Grandpa C when I get some time I will go search the
> net again
> > and find them again. I thought
> > we did this before? Michigan, Missouri, California, don't
> remember the
> > rest, here we go again. I will go
> > search again when I get some time. Maybe someone else will
> remember the
> > rest. marilyn fpls
-
Parents cleared of false allegations remain on state's child abuser list
02/23/2010
Orig. List: http://articles.latimes.com/2010/feb/23/local/la-me-court-registration23-2010feb23 -
Humphries v. County of Los Angeles
(PDF)-Second Amendment 01/30/2009
Orig. List:http://www.ca9.uscourts.gov/datastore/opinions/2009/01/30/0556467.pdf -
Child Abuse Registry violates Due Process Clause 14th Amendment
http://cnbpinc.ning.com/profiles/blogs/child-abuse-registry-violates -
Grand jury report slams Child Protective Services-07/19/09
-
Index of child-abuser suspects is struck down
-11/07/08
~~~~~~~~~~~~~~~~~
Index of child-abuser
suspects is struck down
Link:
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/07/BAPF13VSFQ.DTL
Bob Egelko,
Chronicle Staff Writer
Friday, November 7, 2008
A
federal appeals court has struck down a long-standing California law that
established an index of suspected child abusers - now containing more than
800,000 names - and gives them no way to challenge false listings, which can
disqualify them from jobs involving children.
The state's rules for compiling and maintaining the list create a substantial risk of error and deny individuals "a fair opportunity to challenge the allegations against them," said the Ninth U.S. Circuit Court of Appeals in San Francisco.
The
3-0 ruling, issued Wednesday, said the state must at least allow someone who
disputes a listing to appear at a hearing before an official who would be
required to follow specific standards to determine whether the designation
was justified. Currently, the listed person can appeal only to the officer
who made the initial report, and the law contains no standards for a
decision.
The lawyer for a Los Angeles-area couple who sued over the continued inclusion of their names on the list said the ruling should help her clients and many thousands of others whose rights have been violated.
"Other states have child abuse registries, but California is unique in
having a registry that disseminates information so broadly and provides no
review procedure," said attorney Esther Boynton.
Deputy Attorney General Paul Epstein said state officials are reviewing the ruling, and declined further comment.
The
state started collecting information for its Child Abuse Central Index in
1965 and passed a revised law in 1988 that now governs the index. Boynton
said those on the list weren't even notified of their inclusion until 1996 -
the result of a taxpayer's suit she filed after her own name was erroneously
included.
The
law requires police to send the state attorney general's office reports of
every case of child abuse or severe neglect that they investigate and
determine to be either true or inconclusive - that is, every case except
those that are found to be false or "inherently improbable," the court said,
quoting the law.
The
law then requires the state to make the list available to a variety of
public agencies and private employers. State and county licensing agencies
must consult the list for all prospective child care workers and some foster
parents. Schools and police departments are allowed to check job applicants'
names against the list, and generally do so, the court said.
Employers aren't prohibited from hiring someone whose name appears on the
index, but it's reasonable to assume that a listing hurts the person's job
prospects, the court said.
Boynton's clients, Craig and Wendy Humphries, were placed on the list after
their 15-year-old daughter accused them of abusing her in 2001. Sheriff's
deputies arrested the couple and put their other two children in protective
custody, but the charges were dropped after a medical examination disclosed
that no abuse had occurred, and two judges later declared the couple
innocent.
Under the law, the Humphries' only chance to get their names removed from the child abuse list was to persuade the investigating deputy that the allegations were unfounded. But the sheriff's department told them the deputy no longer worked there, and a supervisor decided some crime must have occurred because charges were filed, the court said.
With no further appeal possible, the Humphries said the listing is an
obstacle to their plans to volunteer at a local child care center and could
hurt Wendy Humphries' chances of renewing her teaching credential.
A
federal judge dismissed the couple's suit, saying damage to their reputation
did not amount to a violation of their constitutional rights. But the
appeals court, in an opinion by Judge Jay Bybee, said the listing "both
stigmatizes the Humphries and creates an impediment to (their) ability to
obtain legal rights," like employment.
Bybee cited a 2004 state task force report that looked at listings from one county and found that half of them might be erroneous. Although the state is justified in keeping a list of suspected abusers, including those who haven't been convicted of crimes, he said, the California index has too few safeguards to meet constitutional standards.
The ruling in Humphries V. LA County of Los Angeles is available at www.ca9.uscourts.gov/ca9/newopinions.nsf .
E-mail Bob Egelko at begelko@....
This article appeared on page B - 4 of the San Francisco Chronicle
Grand jury report slams Child Protective Services
Child Protective Services in Solano County was hit with a slew of complaints by the county grand jury Friday regarding how the agency conducts investigations.
In their report, the jurors point out several problems, including how potential offenders are notified, suspects being prematurely labeled as offenders, how appeals are handled and paperwork issues.
Those discoveries were made during a review of the policies and procedures regarding citizens whose names are placed on the Child Abuse Central Index (CACI).
When CPS receives a complaint of alleged child abuse, a social worker investigates. The worker then must classify the category of abuse and determine whether to place the accused on the CACI.
It is also decided if an in-person contact with the family within 24 hours is needed or if a visit to the family within 10 days is appropriate.
A referral is then sent to another social worker who further investigates. That worker then must determine if the accusation is unfounded, inconclusive or substantiated.
If deemed unfounded, the case is closed. If found inconclusive or substantiated, the child may remain with the family, be removed or placed in the custody of the courts.
Being deemed inconclusive places the name of the accused on the CACI for at least 10 years. If the claim is substantiated, the name of the accused is put on the CACI for life.
People put on the CACI are notified by mail after their names are sent to the Department of Justice. Being placed on the CACI may prevent someone from being employed where there may be contact with children.
That list contains more than 800,000 names and is not routinely purged of erroneous or unsupported entries, the grand jury said. People can appeal being placed on the list, but that doesn't mean the name will be removed.
Because of this, the grand jury recommended the accused be notified before being put on the list, so they can respond.
The jury also suggested contacting the accused through certified mail with a return receipt to ensure that person is aware they will be placed on the CACI. It was also discovered that in some cases, the accused was not interviewed before being placed on the CACI.
Another issue the jury had was evidence that some reports of abuse may be modified, altered or changed by supervisor and management without attribution. The jury wrote that those changes should be signed and dated.
For a full version of the
report, visit www.solanocourts.com.
~~~~~~~~~~~~~~~~~~~~~~~~~~
Child Abuse Registry violates Due Process Clause 14th Amendment
Update Monell immunity, slip op
Humphries v. County of Los Angeles, No. 05-56467
In an amended opinion, the purpose of a remand of claims against
defendant-county is changed from a determination of qualified
immunity to an examination of the county's liability under Monell v.
Dep't of Social Servs., 436 U.S. 658, 694 (1978)
http://caselaw.lp.findlaw.com/data2/circs/9th/0556467oap.pdf
Filed November 5, 2008
Amended January 15, 2009
Second Amendment January 30, 2009
ORDER
The opinion, originally filed November 5, 2008, and amended January
15, 2009, slip op. 563, is amended as follows:
1. At slip op. 619, second full paragraph, lines 24 and 25, delete
we remand to the district court to determine whether or not the
County is entitled to qualified immunity. Add the following: we
remand to the district court to determine the Countys liability
under Monell.
C. Monell Liability
Unlike Detective Wilson, the County is not entitled to qualified
immunity for acting in good faith reliance on state law. See Owen v.
City of Independence, 445 U.S. 622, 638 (1980) (finding that there
is no qualified immunity for local government). Rather, the County
is subject to liability under Monell v. Department of Social
Services, if a policy or custom of the County deprived the
Humphries of their constitutional rights. 436 U.S. 658, 694 (1978).
The district court did not address the Countys liability under
Monell because it found no violation of the Humphries
constitutional rights.
We have held that [i]n order to avoid summary judgment a plaintiff
need only show that there is a question of fact regarding whether
there is a city custom or policy that caused a constitutional
deprivation. Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir.
2000). CANRA itself did not create a sufficient procedure by which
the Humphries could challenge their listing on the Index. Nothing in
CANRA, however, prevented the LASD from creating an independent
procedure that would allow the Humphries to challenge their listing
on the Index. By failing to do so, it is possible that the LASD
adopted a custom and policy that violated the Humphries
constitutional rights. However, because this issue is not clear
based on the record before us on appealand because the issue was
not briefed by the partieswe remand to the district court to
determine the Countys liability under Monell.
III. CONCLUSION
[21] For the reasons described above, CANRA violates the Humphries
procedural due process rights, in violation of 42 U.S.C. § 1983. We
therefore reverse the district courts grant of summary judgment to
the State and the County and remand for further proceedings
consistent with this opinion. We affirm the district courts grant
of summary judgment to Detectives Wilson and Ansbery and Sheriff
Baca on the grounds of qualified immunity.
AFFIRMED in part; REVERSED in part and REMANDED.
============ ========= =
Humphries v. County of Los Angeles , No. 05-56467
California 's maintenance of the California 's Child Abuse Central
Index (CACI), which is a database of known or suspected child
abusers, violates the Due Process Clause of the Fourteenth Amendment
because identified individuals are not given a fair opportunity to
challenge the allegations against them.
http://caselaw.lp.findlaw.com/data2/circs/9th/0556467p.pdf
November 5, 2008
United States Court of Appeals for the Ninth Circuit
HUMPHRIES V. LA COUNTY
Show full citation
http://www.altlaw.org/v1/cases/1674010
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CRAIG ARTHUR HUMPHRIES; WENDY DAWN ABORN HUMPHRIES, Plaintiffs-Appellan
ts,
v.
COUNTY OF LOS ANGELES; LEROY BACA, individually and in his official
capacity as Los Angeles County Sheriff; MICHAEL L. WILSON,
individually and in his official capacity as a Detective and/or
Deputy of the Los Angeles County Sheriff's Department; CHARLES T.
ANSBERRY, individually and in his official capacity as a Detective
of the Los Angeles County Sheriff's Department; BILL LOCKYER,
Attorney General, in his official capacity as Attorney General of
the State of California, Defendants-Appellee s.
OPINION
BYBEE, Circuit Judge:
Appellants Craig and Wendy Humphries are living every parent's
nightmare. Accused of abuse by a rebellious child, they were
arrested, and had their other children taken away from them. When a
doctor confirmed that the abuse charges could not be true, the state
dismissed the criminal case against them. The Humphries then
petitioned the criminal court, which found them "factually innocent"
of the charges for which they had been arrested, and ordered the
arrest records sealed and destroyed. Similarly, the juvenile court
dismissed all counts of the dependency petition as "not true."
Notwithstanding the findings of two California courts that the
Humphries were "factully innocent" and the charges "not true," the
Humphries were identified as "substantiated" child abusers and
placed on California 's Child Abuse Central Index ("the CACI"), a
database of known or suspected child abus- ers. As the Humphries
quickly learned, California offers no procedure to remove their
listing on the database as suspected child abusers, and thus no
opportunity to clear their names. More importantly, California makes
the CACI database avail- able to a broad array of government
agencies, employers, and law enforcement entities and even requires
some public and private groups to consult the database before making
hiring, licensing, and custody decisions.
This case presents the question of whether California 's maintenance
of the CACI violates the Due Process Clause of the Fourteenth
Amendment because identified individuals are not given a fair
opportunity to challenge the allegations against them. We hold that
it does.
I. FACTS AND PROCEEDINGS
A. The Statutory Scheme
1. The Child Abuse and Neglect Reporting Act
a. Inclusion in the CACI
b. Consequences of Inclusion in the CACI
c. Removal From the CACI
B. The Humphries' Nightmare
1. The Humphries' Arrest and Inclusion in the CACI
2. Judicial Proceedings Exonerating the Humphries
a. The Criminal Case
b. The Juvenile Court Case
3. The Humphries Seek Removal from the CACI
4. Procedural History
II. ANALYSIS
A. Procedural Due Process
1. Deprivation of a Protected Liberty Interest
a. Stigma
b. Plus
2. Adequacy of the Procedural Safeguards
a. Private Interest