Civil Division/New Castle
March 27, 2004
The Honorable Colin R.J. Bonini
Dover, DE 19901
The Honorable Gerald A. Buckworth
Dover, DE 19901
Re: Effect of Pardon on Individual’s Removal from Child Protection Registry
Dear Senator Bonini and Representative Buckworth:
You have asked whether an unconditional pardon granted by the Governor effectuates a person’s removal from the Child Protection Registry (“Registry”) and the Division of Family Services’ (“DFS” or “Division”) internal information system. For the reasons set forth below, we conclude that the granting of an unconditional pardon by the Governor does not effectuate an offender’s removal from the Child Protection Registry or the internal information system. An offender, including an offender who has been pardoned, is removed from the Registry upon
expiration of the time set by the Registry statute for the Child Protection Level to which an incident of abuse or neglect is designated, or the offender may file a Petition for Early Removal
in the Family Court. This conclusion does not mean that DFS has more authority than the Governor.
The Child Protection Registry is “a collection of information…about persons who have been substantiated for [child] abuse or neglect….”16 Del. C. §902(4). Delaware has maintained a central registry for reports of child abuse and neglect within the Division of Family Services (and its predecessor agencies) since 1976. The General Assembly has declared that “[t]he primary purpose of the Child Protection Registry is to protect children and to ensure the safety of children in child care, health care and public educational facilities. [The Registry statute] must be liberally construed so that these purposes may be realized.” 16 Del. C. §921. Child care and health care facilities and public schools are required to do a Registry check before hiring a prospective employee. 11 Del. C. §8563. A person who is on the Registry for an act of abuse or neglect that presents a high risk of harm to children is ineligible for employment in a child care or health care facility or public school while on the Registry. See 16 Del. C. §923(b)(3), (4); 11 Del. C. §8563(b).
A review of the statutes and case law governing pardons and application of those standards to the Child Protection Registry shows that receipt of a pardon for a criminal offense
that involved child abuse or neglect and which resulted in the offender’s entry on the Child Protection Registry does not effectuate the offender’s removal from the Registry. The offender’s remedy is to file a petition in the Family Court for removal from the Registry, as provided in 16 Del. C. §929.
The Delaware Constitution authorizes the Governor to pardon a convicted criminal offender. Del. Const., Art. VII, §1. Pardons or reprieves for more than six months require written recommendation from the Board of Pardons after full hearing. Id.
Pardons have also been addressed legislatively. Except as expressly provided by the Delaware Constitution or other law, “an unconditional pardon by the Governor shall have the effect of fully restoring all civil rights to the person pardoned,” including the right to vote, the right to serve on a jury, the right to own deadly weapons, and the right to hold public office. 11 Del. C. §4364. Civil rights are the fundamental rights that inhere in citizenship in the United States and the State of Delaware. “[C]ivil rights are rights appertaining to a person in virtue of his citizenship in a state or community.” Black’s Law Dictionary 1487 (rev. 4th ed. 1968). Civil rights “are such as belong to every citizen of the state or country….They include the rights of property, marriage, protection by the laws, freedom of contract, trial by jury, etc.” Id. Our civil rights are preserved in the Bill of Rights (Amendments I though X) and in the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution and in the Bill of Rights set out in Article I, §§1-20 of the Delaware Constitution. While a pardon restores civil rights, a citizen has no fundamental right to work in a child care or health care facility or in a public
school. Thus, a pardon does not effectuate an offender’s removal from the Child Protection Registry.
The Delaware Supreme Court has frequently addressed the meaning and effect of a pardon. The Supreme Court described a pardon as “‘[a]n executive action that mitigates or sets aside punishment for a crime’….”It is ‘[a]n act of grace from the governing power which mitigates the punishment the law demands for the offense and restores the rights and privileges forfeited on account of the offense.’” State v. Skinner, 632 A.2d 82, 84 (Del. 1993), quoting Black’s Law Dictionary 1113 (6th ed. 1990).
A pardon involves forgiveness and not forgetfulness; a pardon does not wipe the slate clean or mean that the pardoned offender did not commit the criminal act for which he was pardoned. In State v. Skinner, 632 A.2d 82, 85 (Del. 1993), a person who received a pardon for a shoplifting conviction sought to have his arrest records expunged. The statute permitted expungement of arrest records where the criminal charges were dismissed or the accused was acquitted. The Supreme Court concluded that the arrest records of someone who was convicted and later pardoned did not qualify for expungement. The Supreme Court held that while a pardon may have forgiven the conviction, “it did not obliterate the public memory of the offense.” State v. Skinner, 632 A.2d at 85. While a pardon restores civil rights, it “does not erase guilt.” Id. Otherwise stated, although a “pardon forgave the prior conviction, it did not erase the fact that [the offender] was convicted.” Ryan v. State, 791 A.2d 742, 744 (Del. 2002). Simply put, a pardon does not mean that the offender did not commit an act of child abuse or neglect that was the basis both for a criminal conviction and for the offender’s entry on the Child Protection Registry. Skinner, 632 A.2d at 84.
The conclusion that a pardon does not effectuate an offender’s removal from the Child Protection Registry does not constitute continued punishment of the pardoned offender. It is
important to understand that entry on the Registry is not part of the punishment for a criminal offense. Child Protection Registry substantiation proceedings are civil, not criminal, proceedings; a criminal conviction is not required for entry of an offender on the Registry. Persons are entered on the Registry only if they: (1) have been found by a preponderance of the evidence, in a Family Court proceeding on a Petition for Substantiation or in a child welfare proceeding brought in the Family Court by DFS, to have abused or neglected a child; or (2) have failed to invoke their hearing rights after they receive written notice that the Division intends to substantiate them and place them on the Registry; or (3) have been convicted of a crime based on the same incident of abuse or neglect for which DFS initiated civil substantiation proceedings; or (4) were already on the Registry when the current law took effect. 16 Del. C. §922. A criminal conviction alone, even conviction of a crime against a child, does not automatically result in the offender’s entry on the Registry.
The new law established four Child Protection Levels within the Child Protection Registry. The Levels are related to the risk of future harm to children (from low risk to the highest risk) from specified acts of child abuse or neglect, and the length of time an offender remains on the Registry is determined by the Child Protection Level to which an act of abuse or neglect is designated by the Family Court in the civil substantiation proceeding. See 16 Del. C. §§923, 925(b), 926. Persons who are substantiated for acts of abuse or neglect at Child
Protection Level III (high risk of future harm to children) or Level IV (highest risk of future harm to children) are ineligible for employment in a child care facility, health care facility, or
public school while they are on the Registry. See 16 Del. C. §923(b)(3), (4); 11 Del. C. §8563(b). The prohibition on employment underscores the Registry’s primary purpose of ensuring, to the extent possible, the safety of children in the facilities covered by the Registry law. See 16 Del. C. §921.
The civil substantiation process and the criminal process intersect where both proceedings involve the same incident of abuse or neglect. It is sometimes the case that the same incident of child abuse or neglect for which DFS intends to substantiate an offender and place him on the Child Protection Registry through civil proceedings also results in a criminal prosecution. Conviction of a crime results in an offender’s entry on the Registry only where the criminal conviction is “[b]ased on the same incident of abuse or neglect on which the [civil] substantiation proceeding is premised….” 16 Del. C. §922(1). Where there are parallel civil substantiation proceedings and a criminal prosecution involving the same incident of abuse or neglect, the criminal proceeding takes precedence, and the civil substantiation case is “automatically stayed” pending resolution of the criminal matter. 16 Del. C. §927(a). The offender’s conviction of a crime involving the same incident of abuse or neglect, which requires the more exacting burden of proof beyond a reasonable doubt, is justifiably “determinative of the issue of abuse or neglect and of the person’s entry on the Registry at the Child Protection Level designated for such offense.” 16 Del. C. §927(b). Civil substantiation proceedings may still be pursued if the criminal charge is dismissed or the offender is acquitted of the criminal offense.
See 16 Del. C. §927(c). If DFS has not initiated civil substantiation proceedings, a conviction alone does not result in entry on the Registry.
As the Delaware Supreme Court observed, “[i]t can no longer be seriously contended….that a pardon erases an offender’s past, making it ‘as if he has never committed the offense.’” Wier v. Peterson, 369 A.2d 1076, 1080 (Del. 1976). While it removes the punishment and disabilities attendant to a conviction, the pardon “cannot erase the fact that the offender was convicted…and it is the fact of conviction alone, not its continuing viability,” which, in a case where the conviction involved the same incident of abuse or neglect as civil substantiation proceedings, results in the offender’s entry on the Child Protection Registry and compels the conclusion that the offender remains on the Registry even after a pardon. Wier v. Peterson, 369 A.2d at 1081 (emphasis in original). See, also, 16 Del. C. §927(b).
The public policy of Delaware is that persons who commit certain acts of abuse or neglect against children should not work with them. The statutory mandate which prevents an offender who is on the Registry at Child Protection Level III or Level IV from working with children is not designed to punish the offender. Rather, that is a statement of the “demanding norm” that Delaware requires of persons who seek to work in child care or health care facilities or public schools, Wier v. Peterson, 369 A.2d at 1080-1081, where the safety and protection of children is the paramount interest. See 16 Del. C. §921. A pardon does not abrogate that.
Although a pardon does not operate to remove an offender from the Child Protection Registry before automatic removal upon expiration of the statutory time for the designated Child Protection Level , an offender who is on the Registry has the opportunity to satisfy the Family Court that she no longer presents a risk of harm to children and should be removed from the Registry without having to wait the full time for that Child Protection Level. Sixteen Del. C. §929 describes the process for a person who has “successfully completed a Division-recommended or Family Court-ordered case plan” to follow to file a Petition for Early Removal from the Registry.
As you acknowledge in your opinion request, an offender’s removal from the Child Protection Registry does not equate with complete forgetfulness about the child abuse or neglect, even if the offender has been pardoned for a criminal conviction. Sixteen Del. C. §929(d) provides that upon expiration of time on the Registry for a designated Child Protection Level, or upon early removal pursuant to Family Court order: the person is removed from the Registry; eligibility for employment in child care, health care, or public educational facilities is restored; and an inquiring employer is told there are no substantiated incidents of abuse or neglect. The statute cautions, however: “Notwithstanding removal from the Registry, the person’s name and other case information remains in the Division’s internal information system as substantiated for
all other purposes,” including the Division’s use of the information for historical, treatment, and investigative purposes; for assessing suitability for employment with the Department of Services for Children, Youth and Their Families; and for consideration in day care licensing and foster and adoptive parent decisions. 16 Del. C. §929(d).
The DFS “internal information system” consists of “information related to all reports of abuse, neglect, investigations, family assessments, services and other related information.” 16 Del. C. §902(11) (emphasis added). DFS is required to maintain records of all its activities, including reports of abuse or neglect that DFS, after investigation, finds to be groundless. See 16 Del. C. §924(a)(1). The internal information system is, in essence, the Division’s historical records of its activities; it is confidential and not open to public inspection. 16 Del. C. §906(b)(18). The fact that DFS is authorized to consider the historical information for limited purposes after a person’s removal from the Registry does not preclude the person’s approval as an adoptive or foster parent, from being licensed to operate a day care, or being hired by the Department of Services for Children, Youth and Their Families. DFS does not ignore a pardon by maintaining such information in its internal information system and using it only as the statute directs.
For the reasons set forth above, we conclude that an unconditional pardon does not effectuate the offender’s removal from the Child Protection Registry or from the Division of Family Services’ internal information system. A person who is on the Child protection Registry, including an offender who has received a pardon from the Governor, may petition the Family Court for early removal from the Registry as provided in the Child Protection Registry statute.
Feel free to contact us should you have any questions about this matter.
Very truly yours,
Peter S. Feliceangeli
Deputy Attorney General
Malcolm S. Cobin
Cc: The Honorable M. Jane Brady
Mr. Philip G. Johnson, Opinion Coordinator