Present: All the Justices
GLOUCESTER COUNTY DEPARTMENT
OF SOCIAL SERVICES
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 980100 November 6, 1998
JOHN JOSEPH KENNEDY, JR.
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
John M. Folkes, Judge
In this appeal, we must construe Code § 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
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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
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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
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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.
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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
§ 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 § 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
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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 § 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
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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).
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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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