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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