Review and Expunction of Central Registries and Reporting Records - Montana
Right of the Reported Person to Review and Challenge Records
Citation: Child & Family Serv. Pol. Man. § 106-1
Any action taken by a government agency that is against the recognized constitutional rights of a person is considered an 'adverse action.' Those actions include the substantiation of child abuse or neglect.
Notice is a fundamental aspect of the general right of due process that a governmental agency must provide. The purpose of a notice is to provide the client with the opportunity to be specifically informed of the Division of Child and Family Services' adverse action and the opportunity to contest the action in a fair hearing.
The notice of adverse action should contain the following information:
- A statement of the adverse action and the reasons for the adverse action
- The effective date of the adverse action
- The legal basis for the division's action
- An explanation of the client's right to request a fair hearing
In the case of a substantiation of child abuse or neglect, the individual against whom child abuse or neglect was substantiated does not have the right to a fair hearing if a district court has made an adjudication in the substantiated case or the perpetrator has been criminally convicted of an offense related to child abuse or neglect that contains the same facts as the substantiated report and involves the same child.
Persons requesting a fair hearing as a result of a substantiation of child abuse or neglect must request a fair hearing within 30 days of the date of the substantiation letter.
In the case of a substantiation of child abuse, the hearings officer need not grant or may dismiss a fair hearing when the internal review of the Substantiation Review Panel has resulted in a reversal of the original substantiation determination.
If the Substantiation Review Panel determines that the documentation does not support the substantiation, a letter shall be sent to the individual requesting the fair hearing about the internal review's decision to reverse the substantiation. If the Substantiation Review Panel upholds the substantiation determination, the case will be referred to the Hearings Office to schedule a fair hearing.
To prepare for the hearing, all evidence should be reviewed and organized in consultation with department legal staff. It is the responsibility of the specialist in charge of the case to outline the circumstances of the case and the reasons for the decision.
At the hearing, the hearing officer may explain the procedures, such as which party is to present its case first, immediately prior to the opening of the hearing. The party who has the burden of proof should be the party who presents its position first, which is usually the division.
The hearing officer will issue a final written decision within 90 days from the date when all requested documentation is received, including briefs. The hearing officer has final decision-making authority for cases involving substantiated child abuse or neglect.
In child abuse or neglect substantiation cases, because the hearing officer has final decision-making authority, any appeal must be submitted directly to district court within 30 days of the hearing officer's decision.
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 of 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 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:
- 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.