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GLOUCESTER COUNTY DEPT. OF SOCIAL SERVICES v. KENNEDY (59778)


GLOUCESTER COUNTY DEPT. OF
SOCIAL SERVICES

v.

KENNEDY


November 6, 1998
Record No. 980100

GLOUCESTER COUNTY DEPARTMENT OF SOCIAL SERVICES

v.

JOHN JOSEPH KENNEDY, JR.

John M. Folkes, Judge
Present: All the Justices

OPINION BY JUSTICE A. CHRISTIAN COMPTON
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY


In this appeal, we must construe Code
Sect. 63.1-248.5:1(C). The statute deals with the report of
investigation prepared by a local department of social services
following receipt of information or allegation of child abuse or
neglect.

Subsection (C) provides:

"Any person who is the subject of an
unfounded report or complaint made pursuant to this chapter who
believes that such report or complaint was made in bad faith or
with malicious intent may petition the circuit court in the
jurisdiction in which the report or complaint was made for the
release to such person of the records of the investigation. Such
petition shall specifically set forth the reasons such person
believes that such report or complaint was made in bad faith or
with malicious intent. Upon the filing of such petition, the
court shall request and the department shall provide to the court
its records of the investigation for the court’s in camera
review. The petitioner shall be entitled to present evidence to
support his petition. If the court determines that there is a
reasonable question of fact as to whether the report or complaint
was made in bad faith or with malicious intent and that
disclosure of the identity of the complainant would not be likely
to endanger the life or safety of the complainant, it shall
provide to the petitioner a copy of the records of the
investigation. The original records shall be subject to discovery
in any subsequent civil action regarding the making of a
complaint or report in bad faith or with malicious intent."

In June 1997, appellee John Joseph Kennedy,
Jr., filed a petition against appellant Gloucester County
Department of Social Services pursuant to the foregoing statute.
The petitioner, apparently a nonresident of Virginia, alleged
that he is the father of a daughter born in 1994 who is in the
custody of the child’s mother in Gloucester County. The father
further alleged that the mother had made his visitation with the
child "very difficult" and, at times, had refused to
allow visitation.

The father also alleged that "someone,
believed to be the natural mother, her live-in boyfriend or
someone on their behalf," had made a complaint to the
department alleging that he had sexually molested his daughter.
The father further alleged that the department, after
investigation, concluded the complaint of child abuse was
"’not founded.’"

In addition, the father asserted the complaint
against him was made without any basis and in bad faith or with
malicious intent in order to damage his relationship with his
daughter so as to prevent his visitation with her. He asked the
court below to require the department to release to him an
unaltered copy of the complaint that initiated the investigation
and to provide a copy of all its records pertaining to the
investigation to the court for in camera review.

Responding, the department generally denied the
father’s allegations, although it admitted the investigation
revealed the complaint of child abuse was "’not
founded.’" Following a hearing, at which only argument of
counsel was presented, the trial court ordered the department,
over its objection, to submit the file related to the complaint
for the court’s in camera review.

During a second hearing, the trial court
considered only argument of counsel and ordered the department,
over its objection, to provide its investigative records
pertaining to the complaint to counsel for the father. The court
found, after an in camera review of the records, "that there
is a reasonable question of fact as to whether the child
protective service complaint was made in bad faith or with
malicious intent and that disclosure of the identity of the
complainant would not be likely to endanger the life or safety of
the complainant." The department appeals, the trial court
having stayed execution of its order pending appeal.

On appeal, the department contends the trial
court "committed reversible error by making findings and
reaching a decision without benefit of any evidence."
Elaborating, the department says: "There can be no argument
. . . the trial court concluded that presentation of
evidence was not required by the Petitioner in order to grant the
prayer of his Petition, namely that the Department of Social
Services was required to turn over its entire file to him."
Continuing, the department argues that the trial court’s
"sole basis" for granting the father’s petition was
because of the court’s in camera review of the department’s file.
According to the department, this was an abuse of discretion
because the trial court disregarded settled rules of civil
procedure that provide for presentation of evidence when the
pleadings raise questions of fact.

The department also contends the trial court
disregarded rules of statutory construction because the statute
in issue "contemplates that an evidentiary hearing of some
sort will be conducted." We do not agree with the
department’s contentions.

This statute is plain and unambiguous. In clear
language, the General Assembly has created a summary procedure to
enable a person wrongfully accused of child abuse or neglect to
obtain the details of the accusation from the local social
services department that investigated the ill-founded charge.

If a person is the subject of an
"unfounded report" of child abuse or neglect, the
statute permits filing of a petition containing an allegation,
with supporting "reasons," of bad faith or malicious
intent. That was done in this case. Further, the statute provides
that, upon filing of such a petition, the trial court "shall
request" and the department "shall provide" its
records of investigation for the court’s in camera review. That
was properly done in this case, and the court reviewed the
investigative file in camera.

Further, the statute provides: "The
petitioner shall be entitled to present evidence to support his
petition." Clearly, the petitioner has the right, but is not
required, to present evidence.

However, consistent with the summary nature of
the proceeding as contemplated by the statute, nowhere is the
department given the right to present evidence. Contrary to the
department’s argument, the statute does not require an
"evidentiary hearing of some sort." When, as here,
disclosure of records of a government agency is involved, the
legislature has the prerogative to establish a special statutory
procedure for their disclosure that varies from ordinary rules of
civil procedure regarding presentation of evidence.

The statute goes on to authorize the trial
court to determine from its review of the records of
investigation whether the complaint "was made in bad faith
or with malicious intent and that disclosure of the identity of
the complainant would not be likely to endanger the life or
safety of the complainant." The trial court made these
findings, based upon its in camera review.

We have examined in camera the investigative
file, which is a part of the appellate record, and have
determined there is credible information in the file to support
the trial court’s findings.

Thus, we hold the trial court properly applied
the statute and correctly ordered the department to provide the
father with a copy of the records in question. Consequently, the
judgment below will be

Affirmed.

 

JUSTICE KOONTZ, dissenting.

I respectfully dissent.

In my view, under the circumstances of this
case, Code Sect. 63.1-248.5:1(C) does not contemplate
unfettered discretion in the trial court to release a copy of the
records of the investigation conducted by a local department of
social services of an "unfounded report or complaint"
of child abuse or neglect. Here, the release of such records upon
the mere filing of a petition by the person who was the subject
of such report or complaint and the trial court’s in camera
review of the agency’s investigative report necessarily involves
the exercise of unfettered discretion.

Code Sect. 63.1-248.5:1(C) permits a trial
court to release a copy of the records of the investigation of an
unfounded report or complaint of child abuse or neglect where the
petitioner seeking release of such records "specifically
set[s] forth the reasons [he] believes such report or complaint
was made in bad faith or with malicious intent." However,
before providing the petitioner with a copy of the records of the
investigation, the trial court must first "determine "
that there is a reasonable question of fact as to whether the
report or complaint was made in bad faith or with malicious
intent and that disclosure of the identity of the complainant
would not be likely to endanger the life or safety of the
complainant."

Thus, the legislature has placed on the
petitioner the burden of establishing the existence of "a
reasonable question of fact," and where, as here, the agency
responsible for the investigation affirmatively denies the
allegations of the petition, that burden plainly must require
more than the mere allegation of bad faith or malicious intent in
the petition. A report or complaint ultimately determined to be
unfounded is not necessarily one made in bad faith or with
malicious intent. Indeed, the "reasonable question of
fact" to be determined pursuant to Code
Sect. 63.1-248.5:1(C) involves a resolution of this
distinction in addition to a determination whether disclosure of
the identity of the complainant would not be likely to endanger
the safety of the complainant. Similarly, the petitioner’s
burden, particularly the required showing that disclosure of the
identity of the complainant would not likely endanger the life or
safety of the complainant, cannot be met solely by the content of
the investigative report even if reviewed in camera by the trial
court. In short, where the petition is opposed and there is no
evidentiary hearing, the trial court has no foundation upon which
to exercise the judicial discretion contemplated by the statute
in question

The agency having custody of the investigative
report must, for obvious reasons, act in the interests of the
complainant, the discovery of whose identity is the object of the
petition. If a petitioner is permitted to avoid an adversarial
hearing by declining to exercise his "right" to present
evidence in support of his petition or the agency is not
permitted to present evidence in support of its opposition to the
petition, the agency is deprived of any realistic opportunity to
protect the interests of the complainant. Such a result is, in my
view, inconsistent with the statutory purpose to encourage
reports of child abuse and neglect. In addition, the danger is
real that complainants will be subjected to unwarranted exposure
to frivolous civil lawsuits which will inevitably have a chilling
effect on reporting of suspected child abuse and neglect by the
public. Cf. Ayyildiz v. Kidd, 220 Va. 1080,
1082-83, 266 S.E.2d 108, 110-11 (1980); Niese v. Klos, 216
Va. 701, 703, 222 S.E.2d 798, 800 (1976) (malicious prosecution
actions disfavored because of chilling effect on reporting of
crimes by public).

Accordingly, I would reverse the judgment of
the trial court and remand the case to permit the petitioner to
produce independent evidence in support of his allegation, or,
should he decline to do so, for dismissal of his petition with
prejudice.

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