Review and Expunction of Central Registries and Reporting Records - Virginia

Date: May 2018

Right of the Reported Person to Review and Challenge Records

Citation: 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 of Social Services 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 this 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 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.

The 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, the appellant may obtain further review of the decision in accordance with article 5 of the Administrative Process Act.

When 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 that 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

Citation: Ann. Code § 63.2-1514; Admin. Code Tit. 22, § 40-705-130

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 the complaint or report shall be purged immediately by any custodian of the 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.

In regulation: Reports with an unfounded disposition will be kept in the child abuse and neglect information system to provide local departments with information regarding prior investigations. This record shall be kept separate from the central registry and accessible only to the department and to local departments.

The record of the investigation with an unfounded disposition shall be purged 1 year after the date of the complaint or report if there are no subsequent complaints or reports regarding the individual against whom allegations of abuse or neglect were made or regarding the same child in that 1 year.