Can I Get a Department of Childrens' Services Order of Child Abuse Expunged?
Full Question:
Answer:
The expungement procedures would only apply if criminal charges were filed. Please see the following rules of DCS:
0250-5-8-.04 PUBLIC ACCESS TO FINAL ORDERS.
(1) The report of the hearing and the final order will remain on file in the local office for any further inspection as may be needed by the parties or their representatives.
0250-6-1-.03 REQUESTS FOR ACCESS TO RECORDS.
(1) A request for access to public records shall be made during the regular business hours of the Department from 8:00 AM to 4:30 PM, Monday through Friday, except for holidays.
(2) Requests may be made orally or in writing to the office of the Commissioner, or to any Department employee in the State, County, District or Regional Offices of the Department, and shall identify with reasonable specificity the record, set or system of records which is requested. Records requests will be processed on a first-come, first-served basis; provided, that the Commissioner, or the Commissioner's designee, may at any time alter this provision when circumstances warrant.
(3) Prior Review and Assessment for Confidential, Privileged or Protected Material/Non-Routine Requests.
(a) Review, Assessment and Redaction for Access to Records Requests.
1. Before providing access to the requested record, the Department's staff shall review the requested record or records as quickly as reasonably possible, consistent with the availability of appropriate staff and with regard to the scope of the records request, and make an assessment of the status of the records and the scope of the requested access.
2. Upon review, the Department's staff may redact any such data or information prior to release of the record, or portion of the record, that it has reason to believe has or may have confidential, privileged or otherwise protected material in the record that is subject to the Tennessee Public Records Act.
(b) If the Department determines that none of the provisions of subparagraph (c) below apply and access can otherwise be provided immediately, it shall do so.
(c) If it appears from the Department's review and assessment that access to the record, or the system of records, cannot be provided immediately because:
1. Additional time is required to locate and retrieve the records because the records are not stored on the site or cannot be located;
2. The record or records require redaction of confidential, privileged or otherwise protected material;
3. The record is subject to current use as part of an ongoing investigation and cannot be provided without interrupting or jeopardizing the investigation and/or its timeliness, or the unavailability of the record to the Department's staff will jeopardize the health, safety or welfare of the persons the investigation is intended to protect or the persons involved in the investigation;
4. A computer or computer system that contains the record is unable to be accessed, is undergoing maintenance or re-programming for any Departmental program purposes, and/or cannot be accessed without substantially interfering with the delivery of services to the public or without damage to the integrity, operability or functioning of any computer or computer system;
5. Production of the record or records will require development of a program or application to provide access to, or a readable format for access to, electronic or magnetic sources of the record or records; or
6. For any other reason, then the Department shall inform the requesting person of the assessment and the reasonable approximate time required in complying with the request and a summary of the basis for the assessment regarding access to the records.
Please see the following TN statutes to determine applicability:
40-32-101. Destruction or release of records.
**Update Notice: This section has been amended by
CHAPTER NO. 951 OF THE PUBLIC ACTS OF 2010.
(a)(1)(A) All public records of a person who has been
charged with a misdemeanor or a felony shall, upon petition by
that person to the court having jurisdiction in the previous
action, be removed and destroyed without cost to the person,
if:
(i) The charge has been dismissed;
(ii) A no true bill was returned by a grand jury;
(iii) A verdict of not guilty was returned, whether by the
judge following a bench trial or by a jury; or
(iv) The person was arrested and released without being
charged.
(B) A person applying for the expunction of records because
the charge or warrant was dismissed in any court as a result
of the successful completion of a pretrial diversion program
pursuant to §§ 40-15-102 — 40-15-107, shall be charged the
appropriate court clerk's fee pursuant to § 8-21-401 for
destroying such records.
(C) A person applying to a court after October 1, 1998, for
the expunction of the persons records following the successful
completion of a judicial diversion program authorized by
§ 40-35-313 shall be charged a fee of fifty dollars ($50.00).
The fee shall be transmitted and used in the manner set out in
§ 40-35-313(d)(2).
(D) Notwithstanding the provisions of subdivisions (a)(1)(B)
and (C), the records of a person who successfully completes a
pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107,
or a judicial diversion program pursuant to § 40-35-313,
shall not be expunged pursuant to this section, if the
offense for which the person was diverted was a sexual
offense as defined by § 40-39-202, or a violent sexual
offense as defined by § 40-39-202.
(E) A person shall not be entitled to the expunction of such
person's records in a particular case if the person is
convicted of any offense or charge, including a lesser
included offense or charge.
(F) Upon a verdict of not guilty being returned, whether by a judge
following a bench trial or by a jury, on all charges for which the defendant
was accused, the judge shall inquire of the person acquitted whether such
person requests that all public records associated with the charges for which
such person was acquitted be removed and destroyed without cost to the person
and without the requirement that the person petition for destruction of such
records. If the person requests that the public records related to such charges
be removed and destroyed, the court shall so order. If the person acquitted
does not request that such records be destroyed at the time the judge inquires
pursuant to this subsection (F), but subsequently requests that such records be
destroyed, the person shall be required to follow the petition procedure set
out in this section.
(2) All public records of a person required to post bond
under § 38-3-109 or § 38-4-106 [repealed] shall be removed and
destroyed as required by this chapter upon the expiration of
any bond required, if no surety on the bond is required to
fulfill the obligations of the bond.
(3) Upon petition by a defendant in the court that entered a
nolle prosequi in the defendant's case, the court shall order
all public records expunged.
(4) For purposes of this section, "court" includes any court
exercising juvenile jurisdiction.
(5) All public records concerning an order of protection
authorized by title 36, chapter 3, part 6, which was
successfully defended and denied by the court following a
hearing conducted pursuant to § 36-3-605, shall, upon petition
by that person to the court denying the order, be removed and
destroyed without cost to the person.
(b)(1) "Public records," for the purpose of expunction only,
does not include arrest histories, investigative reports,
intelligence information of law enforcement agencies, or files
of district attorneys general that are maintained as
confidential records for law enforcement purposes and are not
open for inspection by members of the public and shall also
not include records of the department of children's services
or department of human services that are confidential under
state or federal law and that are required to be maintained by
state or federal law for audit or other purposes. Whenever an
order of expunction issues under this section directed to the
department of children's services or department of human
services, the department shall notify the defendant if there
are records required to be maintained as directed above and
the basis therefor. The department shall delete identifying
information in these records whenever permitted by state or
federal law. These records are to be expunged whenever their
maintenance is no longer required by state or federal law.
(2) "Public records", for the purpose of expunction only,
does not include appellate court records or appellate court
opinions.
(c)(1) Release of confidential records or information
contained therein other than to law enforcement agencies for
law enforcement purposes shall be a Class A misdemeanor.
(2) This section shall not be construed to deny access to
any record to the comptroller of the treasury or the
comptroller of the treasury's agent for purposes of audit
investigation; the comptroller of the treasury or the
comptroller of the treasury's agent having this access shall
protect the confidential nature of the records that are not
otherwise public under other statutes.
(3) Release of arrest histories of a defendant or potential
witness in a criminal proceeding to an attorney of record in
the proceeding shall be made to the attorney upon request.
(d)(1) Any court ordering the expunction of a person's
public records of a criminal offense, including orders issued
as a result of the successful completion of a diversion
program pursuant to §§ 40-15-105 and 40-15-106 or judicial
diversion program, shall send or cause to be sent a copy of
the expunction order to the Tennessee bureau of investigation
for entry into its expunged offender and pretrial diversion
database. The order shall contain the name of the person
seeking expunction, the person's date of birth and social
security number, the offense that was dismissed, the date and
cause of the dismissal and the date the order of expunction is
entered.
(2) After April 25, 2000, a defendant petitioning a court
for expunction of records because the charge against the
person was dismissed as a result of the successful completion
of a diversion program pursuant to §§ 40-15-102 — 40-15-106
shall be assessed a fifty dollar ($50.00) fee. The
fifty dollar ($50.00) fee shall not apply to any case where
there has been an acquittal, nolle prosequi, or dismissal for
failure to prosecute or where the law does not require a copy
of the expunction order be sent to the Tennessee bureau of
investigation. The fee shall be transmitted by the clerk of
the court to the state treasurer for deposit in a special fund
to be used by the Tennessee bureau of investigation for the
exclusive purpose of establishing and maintaining the expunged
criminal offender and pretrial diversion database. The moneys
received in the fund shall be invested for the benefit of the
fund by the state treasurer pursuant to § 9-4-603. Amounts in
the fund shall not revert to the general fund of the state but
shall, together with interest income credited to the fund,
remain available for expenditure in subsequent fiscal years.
(e) It is the intent of the general assembly that no fee
ever be charged a person who is petitioning a court for
expunction of records because:
(1) The charge against the person was dismissed for a reason
other than the successful completion of a diversion program
pursuant to §§ 40-15-102 — 40-15-106 or § 40-35-313;
(2) A no true bill was returned by a grand jury;
(3) A verdict of not guilty was returned, whether by the
judge following a bench trial or by a jury; or
(4) The person was arrested and released without being
charged.
(f)(1) All public records of a person who has been charged
and convicted with a misdemeanor or felony while protesting or
challenging a state law or municipal ordinance whose purpose
was to maintain or enforce racial segregation or racial
discrimination shall, upon petition by that person to the
court having jurisdiction in the previous action, be removed
and destroyed without cost to the person, if:
(A) The charge has been dismissed;
(B) A no true bill was returned by a grand jury;
(C) A verdict of not guilty was returned, whether by the
judge following a bench trial or by a jury;
(D) The person was arrested and released, without being
charged; or
(E)(i) Thirty-seven (37) years or more have elapsed since
the date of conviction for the offense being expunged and the
petitioner has not been convicted of any other offense,
excluding minor traffic violations, during that period of
time;
(ii) Any period of supervision due to conviction has been
completed;
(iii) The offense was a misdemeanor, Class C, D or E felony
not otherwise excluded pursuant to subdivision (f)(1)(E)(iv),
or, if committed prior to November 1, 1989, would be an
included Class C, D, or E felony if committed after
November 1, 1989;
(iv) The offense was not a Class A or Class B felony or a
Class C felony described in § 40-15-105(a)(1)(B)(iii), a
sexual offense described in § 40-15-105(a)(1)(B)(ii), or an
offense prohibited by title 55, chapter 10, part 4, vehicular
assault as prohibited by § 39-13-106, or if committed prior to
November 1, 1989, would not be an excluded offense if
committed after November 1, 1989; and
(v) The district attorney general is served a copy of the
petition for expungement by certified mail, return receipt
requested, and the district attorney general does not file an
objection with the court within twenty (20) calendar days of
receipt of the petition.
(2) All public records of a person required to post bond
under § 38-3-109 shall be removed and destroyed as required by
this section upon the expiration of any bond required, if no
surety on the bond is required to fulfill the obligations of
the bond.
(3) Upon petition by a defendant in the court that entered a
nolle prosequi in the defendant's case, the court shall order
all public records expunged.
(4) For purposes of this subsection (f), "court" includes
any court exercising juvenile jurisdiction.
(5) If the person charged or convicted is deceased, the
petition may be filed by a person who is able to establish
legal authority to act on the behalf of the deceased person.
(6) Notwithstanding any law to the contrary, upon request of
the petitioner, records or documents subject to the
destruction requirement of this subsection (f) that are
utilized exclusively for education purposes and are displayed
in public museums, libraries, and buildings are exempt from
the destruction requirement.
40-35-313. Probation — Conditions —
Discharge — Expunction from official records.
(a)(1)(A) The court may defer further proceedings
against a qualified defendant and place the defendant on
probation upon such reasonable conditions as it may require
without entering a judgment of guilty and with the consent of
the: qualified defendant. The deferral shall be for a period
of time not less than the period of the maximum sentence for
the misdemeanor with which the person is charged, or not more
than the period of the maximum sentence of the felony with
which the person is charged. The deferral is conditioned upon
the defendant paying an amount to be determined by the court
of not less than ten dollars ($10.00) nor more than
thirty-five dollars ($35.00) per month as part payment of
expenses incurred by the agency, department, program, group
or association in supervising the defendant, and upon the
defendant paying any or all additional costs of the
defendant's supervision, counseling or treatment in a
specified manner, based upon the defendant's ability to pay.
The payments shall be made to the clerk of the court in which
proceedings against the defendant were pending, who shall
send the payments to the agency, department, program, group
or association responsible for the supervision of the
defendant, unless the defendant is found to be indigent and
without anticipated future funds with which to make the
payment. The clerk of the court collecting the payment is
permitted to retain five percent (5%) of the proceeds
collected for the handling and receiving of the proceeds as
provided in this subdivision (a)(1)(A).
(B)(i) As used in this subsection (a), "qualified
defendant" means a defendant who:
(a) Is found guilty of or pleads guilty or nolo
contendere to the offense for which deferral of further
proceedings is sought;
(b) Is not seeking deferral of further proceedings
for a sexual offense, a violation of § 71-6-117 or
§ 71-6-119, or a Class A or Class B felony; and
(c) Has not previously been convicted of a felony
or a Class A misdemeanor.
(ii) As used in subdivision (a)(1)(B)(i), "sexual offense"
means conduct that constitutes:
(a) Aggravated prostitution, as described in
§ 39-13-516;
(b) Aggravated rape, as described in
§ 39-13-502;
(c) Aggravated sexual battery, as described in
§ 39-13-504;
(d) Aggravated sexual exploitation of a minor, as
described in § 39-17-1004;
(e) Attempt, as described in § 39-12-101,
solicitation, as described in § 39-12-102, or conspiracy,
as described in § 39-12-103, to commit any of the
offenses enumerated in this subdivision (a)(1)(B)(ii);
(f) Especially aggravated sexual exploitation of a
minor, as described in § 39-17-1005;
(g) Rape, as described in § 39-13-503;
(h) Rape of a child, as described in
§ 39-13-522;
(i) Sexual battery by an authority figure, as
described in § 39-13-527;
(j) Sexual exploitation of a minor, as described
in § 39-17-1003; or
(k) Statutory rape by an authority figure, as
described in § 39-13-532.
(2) The provisions of this subsection (a) relative to the
payment of a supervision fee shall not apply to any person
subject to the provisions of chapter 28, part 2 of this
title. Upon violation of a condition of the probation, the
court may enter an adjudication of guilt and proceed as
otherwise provided. If, during the period of probation, the
person does not violate any of the conditions of the
probation, then upon expiration of the period, the court
shall discharge the person and dismiss the proceedings
against the person. Discharge and dismissal under this
subsection (a) is without court adjudication of guilt, but a
non-public record thereof is retained by the court solely for
the purpose of use by the courts in determining whether or
not, in subsequent proceedings, the person qualifies under
this subsection (a), or for the limited purposes provided in
subsections (b) and (c). The discharge or dismissal shall not
be deemed a conviction for purposes of disqualifications or
disabilities imposed by law upon conviction of a crime or for
any other purpose, except as provided in subsections (b) and
(c). Discharge and dismissal under this subsection (a) may
occur only once with respect to any person.
(3)(A) No order deferring further proceedings and placing
the defendant on probation as authorized by this
subsection (a) may be entered by the court on or after
July 1, 1998, unless there is attached to it a certificate
from the Tennessee bureau of investigation stating that the
defendant does not have a prior felony or Class A
misdemeanor conviction. No order deferring further
proceedings and placing the defendant on probation as
authorized by this subsection (a) may be entered by the
court if the defendant was charged with a violation of a
criminal statute the elements of which constitute abuse,
neglect or misappropriation of the property of a vulnerable
person as defined in § 68-11-1004(a) on or after
July 1, 2004, unless the order contains a provision that the
defendant agrees without contest or any further notice or
hearing that the defendant's name shall be permanently
placed on the registry governed by § 68-11-1004 a copy
of which shall be forwarded to the department of health.
(B) The certificate provided by the bureau pursuant to this
section is only a certification that according to its;
expunged criminal offender and pretrial diversion database
the defendant is not disqualified from deferral and probation
under this section by virtue of a prior felony or Class A
misdemeanor conviction. The certificate is not a
certification that the defendant is eligible for the deferral
and probation, and it shall continue to be the duty of the
district attorney general, and judge to make sufficient
inquiry into the defendant's background to determine
eligibility.
(b) Upon the dismissal of the person and discharge of the
proceedings against the person under subsection (a), the
person may apply to the court for an order to expunge from
all official records, other than the non-public records to be
retained by the court under subsection (a) and the public
records that are defined in § 40-32-101(b), all
recordation relating to the person's arrest, indictment or
information, trial, finding of guilty, and dismissal and
discharge pursuant to this section; provided, that no records
of a person who is dismissed from probation and whose
proceedings are discharged pursuant to this section shall be
expunged if the offense for which deferral and probation was
granted was a sexual offense as defined by § 40-39-102(5)
[repealed]. Each application shall contain a notation by the
clerk evidencing that all court costs are paid in full, prior
to the entry of an order of expunction. If the court
determines, after hearing, that the person was dismissed and
the proceedings against the person discharged, it shall enter
the order The effect of the order is to restore the person,
in the contemplation of the law, to the status the person
occupied before the arrest or indictment or information.
No person as to whom the order has been entered shall be held
thereafter under any provision of any law to be guilty of
perjury or otherwise giving a false statement by reason of
the person's failures to recite or acknowledge the arrest, or
indictment or information, or trial in response to any
inquiry made of the person for any purpose, except when the
person who has been availed of the privileges of expunction
then assumes the role of plaintiff in a civil action based
upon the same transaction or occurrence as the expunged
criminal record. In that limited situation, notwithstanding
any provision of this section or § 40-32-101(a)(3)-(c)(3)
to the contrary, the non-public records are admissible for
the following purposes:
(1) A plea of guilty is admissible into evidence in the
civil trial as a judicial admission; and
(2) A verdict of guilty by a judge or jury is admissible
into evidence in the civil trial as either a public record or
is admissible to impeach the truthfulness of the plaintiff.
In addition, the non-public records retained by the court, as
provided in subsection (a), shall constitute the official
record of conviction and are subject to the subpoena power of
the courts of civil jurisdiction.
(c) Notwithstanding the provisions of this section or
§ 40-32-101(a)(3)-(c)(3) to the contrary, a plea of
guilty or a verdict of guilty by a judge or jury for a
criminal felony offense involving an act of terrorism or any
other felony offense involving violence, coercion, dishonesty
or the disruption of the operations of a state or local
government is admissible into evidence in a civil action for
the purpose of impeaching the truthfulness, veracity or
credibility of a witness if the plea or verdict occurred
within ten (10) years of the date the evidence is sought to
be admitted and the witness is a party to the civil action.
The plea or verdict is admissible for the purposes set out in
this subsection (c) notwithstanding the fact that the public
records of the plea or verdict have been expunged pursuant to
this section either prior to or after the commencement of the
civil action at which the plea or verdict is sought to be
admitted. In addition, the non-public records retained by the
court, Tennessee bureau of investigation or a local law
enforcement agency shall constitute official records of plea
or verdict and are subject to the subpoena power of the
courts of civil jurisdiction.
(d)(1) Any court dismissing charges against a person and
ordering the expunction of a person's public records
following the discharge of proceedings pursuant to this
section after October 1, 1998, shall send or cause to be sent
a copy of the dismissal and expunction order to the Tennessee
bureau of investigation for entry into its expunged criminal
offender and pretrial diversion database; provided, however,
the court shall not be required to send to the bureau a copy
of any dismissal and expunction order dated on or after
July 1, 1999, if the charge dismissed is classified as a
Class B or C misdemeanor. The order shall contain the name
of the person seeking dismissal and expunction, the person's
date of birth and social security number, the offense that
was dismissed and the date the dismissal and expunction
order is entered.
(2) A defendant applying to a court for expunction of the
defendant's records following successful completion of the
diversion program authorized by this section shall be
assessed a fifty dollar ($50.00) fee. The fee shall be
transmitted by the clerk of the court to the state treasurer
for deposit in the special fund established in
§ 40-32-101(d).