Review and Expunction of Central Registries and Reporting Records - Montana

Right of the Reported Person to Review and Challenge Records
Citation: Admin. Rules §§ 37.47.610; 37.47.615  

The subject of a child abuse or neglect report that is determined by the department as substantiated may request a fair hearing. The request for a fair hearing must be in writing and be sent within 30 days after the date of mailing of the department's initial notice of its substantiation determination.

Upon receipt of the request for a fair hearing, the department will conduct an informal review of the investigation including the entire case record, as follows: 

• The informal review is limited to the records and documentation in the case record and any written material provided by the subject.
• If, after the informal review, the department determines that the results of the investigation are not substantiated, the department will amend the finding to reflect that the report is unsubstantiated or founded. The subject will be notified of the decision.
• If, after the informal review, the department determines that the investigation should be upheld as substantiated, the department will notify the department's Office of Fair Hearings so that a fair hearing may be scheduled.

Hearsay statements of the child victim are admissible as evidence in the fair hearing on an investigation of child abuse or neglect report. The administrative law judge will determine the weight to give each child victim's hearsay statement. The factors to be considered in determining the weight of the child hearsay statement include the following:

• The attributes of the child making the hearsay statement   
• The witness relating the child's hearsay statement   
• The child's statement itself   
• Any other factors that provide for the reliability of the child's statement   

The hearing officer's proposal for decision is subject to review under rule 37.5.331. A fair hearing is not available for reports that are determined to be unsubstantiated or founded.

The subject of a substantiated report of child abuse, neglect, or exploitation is not entitled to a fair hearing if any of the following apply:  

• The subject has been criminally convicted of an offense related to child abuse, neglect, or exploitation that contains the same facts as the substantiated report and involves the same child victim.   
• There has been a district court adjudication, or a stipulation by the parents, that the child in the substantiated report is a youth in need of care, and the following apply: 
  • The facts of the district court adjudication, or the allegations in the affidavit in the case of a stipulation, are the same as that of the substantiated report.   
  • The subject of the substantiated report is the perpetrator of the abuse, neglect, or exploitation of the child.   
• A court or administrative hearing officer has made any adjudication in a prior proceeding as to the factual findings of the child abuse, neglect, or exploitation contained in the substantiated report.

When Records Must Be Expunged
Citation: 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 the records concerning the unsubstantiated report.

If it is determined from the investigation that the child has not suffered abuse or neglect, and the initial report is determined to be unfounded, the Department of Public Health and Human Services and the social worker, county attorney, or peace officer who conducted the investigation shall destroy all 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 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:

• There had been a previous report or there is a subsequent substantiated report concerning the same person.
• An order has been issued based on the circumstances surrounding the initial allegations.