Delaware General Assembly

AN ACT TO AMEND TITLE 16 AND TITLE 10 OF THE DELAWARE CODE RELATING TO THE CENTRAL CHILD ABUSE REGISTRY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

“(2) ‘Central registry’ shall mean a registry of information about persons the Division has substantiated to have committed child abuse or neglect. Substantiation may be made through civil or criminal judicial proceedings or through civil administrative decision or proceedings where the burden of proof is at a minimum a preponderance of the evidence.”

(a) In cases where abuse or neglect is alleged, the Division shall conduct an investigation into the facts and circumstances of the alleged abuse or neglect. If the Division determines from its investigation that it is more likely than not that abuse or neglect occurred, it shall substantiate the abuse or neglect and shall advise the individual who is accused of committing the abuse or neglect that is has substantiated the allegations and intends to register the individual in the central registry. The Division shall adopt regulations concerning maintenance of the registry and the placement of information in the registry.

(b) Notice to an individual which is required under subsection (a) must be in writing and sent to the individual by certified mail, receipt requested, at his or her last known address. The notice must advise the individual of the opportunity for an administrative hearing on the Division’s action.

(c) Administrative proceedings shall be stayed if civil or criminal court proceedings regarding the same allegations of abuse or neglect are pending. If, upon conclusion of a criminal or delinquency proceeding involving the same allegations or facts, the accused is acquitted or the charges are dismissed and the Division intends to pursue substantiation through the administrative process, such acquittal or dismissal shall not automatically work as claim or issue preclusion against a civil finding of abuse or neglect, nor shall it prevent the taking of evidence in spite of any other law to the contrary.

(d) Administrative Hearing.

An individual who has received a notice pursuant to subsection (a) or an attorney acting on the individual’s behalf may request an administrative hearing on the Division’s substantiation of the abuse or neglect and its intent to register the individual. Requests for an administrative hearing must be in writing and received by the Division within twenty (20) calendar days of the date the notice was mailed. Within 20 days of the Division's receipt of a written request for an administrative hearing, the hearing officer shall schedule the date and time of such hearing, which shall be held, unless postponed for good cause shown, within sixty (60) days of the date of the receipt of such request by the hearing officer. The individual shall be afforded an opportunity to appear with or without an attorney, to submit documentary evidence, and to present witnesses. The hearing officer shall have the authority to:

i) issue subpoenas for witnesses and other sources of evidence, either at the Division's request or at the request of the accused. Any evidence that the Division is ordered to produce and which it does not intend to rely upon at the hearing shall be considered privileged and confidential and may not be used for any other purpose but the hearing;

ii) administer oaths to witnesses;

iii) exclude plainly irrelevant, immaterial, insubstantial, cumulative and privileged evidence;

iv) limit proof, rebuttal and cross examination if they are unduly repetitive; and

v) hold prehearing conferences for the settlement or simplification of issues by consent, for the disposal of procedural requests or disputes and to regulate and expedite the course of the hearing.

The burden of proof at the hearing shall be upon the Division, which shall be required to prove by a preponderance of the evidence that abuse or neglect has occurred. A record from which a verbatim transcript can be prepared shall be made of all hearings. Copies of the transcript shall be made at the request of and expense of any party to the action. The hearing officer's decision shall contain a brief summary of the evidence and findings of fact based upon the evidence and conclusions of law. Such hearings and decisions, transcripts and records on appeal to Family Court shall be confidential and not open to the public. Neither the Administrative Procedures Act (Chapter 101 of Title 29) nor the Freedom of Information Act shall apply to such hearings, any record thereof, or any evidence or documents produced or introduced at such hearings. The Division shall have the discretion to release records, the decision, and hearing evidence pursuant to 16 Del.C. § 906(b)(1 8).

(e) Appeal to Family Court

The hearing officer shall render a written decision and order, and shall provide written notice of the decision to the individual and the Division. The decision of the hearing officer may be appealed only by the Division or by the individual against whom substantiation has been found or by an attorney acting on his or her behalf. Such appeal must be filed in writing with the Family Court of the State of Delaware within 30 days of the Hearing Officer's decision. Such appeal shall be on the record, and without a trial or hearing de novo. The scope of the Family Court's review on appeal of the Hearing Officer's decision in the absence of actual fraud or abuse of discretion shall be limited to whether there is substantial evidence to support the findings of fact, and to whether any error of law was made. The reviewing Court shall give deference to the factual finding of the hearing officer with respect to conflicts of testimony and witness credibility.

(1) The central registry shall contain the notion “substantiated for abuse” or “substantiated for neglect” for the following individuals:

a. Individuals who have either failed to appear at or failed to timely request an administrative hearing in response to the notice contained in subsection (b), or, for cases substantiated prior to enactment of this section, a similar notice.

b. Individuals who, based on the same allegations or facts for which they are pending substantiation or substantiated, have:

(i). been convicted of or pleaded guilty to any criminal offense contained in Subchapters II or V of Chapter 5 of Title 1 1, regardless of whether such plea was taken nolo contendere or was subsequently discharged or dismissed under the First Offenders Program pursuant to 10 Del. C. § 1024; or,

(ii). been adjudicated delinquent as a juvenile of any offense which would constitute any of the offenses set forth in subparagraph (i) of this paragraph if he or she had been charged as an adult; or

(iii). been convicted of, pleaded guilty to, or been adjudicated delinquent or pled to any offense specified in the laws of another state, the United States or any territory of the United States which is the same as or equivalent to any of the offenses set forth in subparagraphs (i). or (ii). of this paragraph; or

(iv). been substantiated for abuse or neglect at a civil court hearing at which the minimum standard of proof was preponderance of the evidence.

Notwithstanding any other law to the contrary, the decisions referred to above and of subparagraph c. below shall be final and binding as to a finding of abuse or neglect for the same incident and shall work as issue or claim preclusion on a pending civil administrative hearing and be reported in response to Child Abuse Registry Check, regardless of subsequent dismissal or discharge under the First Offender's Program, and regardless of subsequent juvenile or adult expungement or pardon.

c. Individuals against whom substantiation for abuse or neglect has been made after an administrative hearing held pursuant to subsection (d) or similar administrative hearing or decision where the burden of proof was at a minimum the preponderance of the evidence that such individual committed an act or acts of abuse or neglect.

(2) Individuals against whom allegations of abuse or neglect cannot be substantiated after a civil or administrative proceeding or decision shall have their status on the registry changed to 'unsubstantiated' and responses to requests made pursuant to 11 Del.C. § 8563(b) shall indicate that there are no pending or substantiated reports of abuse or neglect for that incident.

(g) Requests for Subsequent Administrative Expungement of Substantiated Cases.

An individual whose name is entered in the central registry as substantiated may apply to the Division for an order of administrative expungement of such finding of substantiation. For the purposes of this chapter, such administrative expungement, if granted, shall mean only that the individual's name shall no longer be reported to employers pursuant to 11 Del.C. § 8563(b) in a Child Abuse Registry check as a substantiated case from the central registry. Notwithstanding the granting of a request for administrative expungement under this section, the individual's name and other case information shall remain on the central registry as substantiated for all other purposes, including, but not limited to, the Division's use of such information for historical, treatment and investigative purposes, child care licensing decisions, reporting pursuant to 31 Del. C. §309, reporting to law enforcement authorities, or any other purpose set forth in 16 Del. C. § 906(b). The Division shall be authorized to promulgate or issue regulations or policies to address expungement from the central registry. The Division shall decide written requests for administrative expungement within 60 days of written receipt of the same. Appeals from decisions on administrative expungement may be made only by the individual substantiated or by an attorney acting on his or her behalf and must be submitted in writing to the hearing officer within 30 calendar days of the Division's decision. After the hearing officer's decision on administrative expungement, either the Division or the individual against whom substantiation has been made or by an attorney acting on his or her behalf may within 30 days of the date of the hearing officer’s decision file a written appeal to the Family Court.”

“(19) Decide appeals from administrative hearings of substantiated cases of abuse or neglect made pursuant to 16 Del. C. § 902A(d), and to decide appeals made pursuant to 16 Del. C. § 902A(g) for orders of administrative expungement of substantiation for the purpose of no longer reporting an individual's name pursuant to 11 Del. C. § 8563(b).”

Approved July 18, 2000