2/2/2015

Cathy Moore 1

HOW TO OBTAIN

RECORDS FROM DSSAdapted from Confidentiality and Social Services by Aimee Wall with her permission

Presented at Legal Basics for Human Services

January 2014, UNC School of Government

Cathy Moore, Senior Assistant County Attorney

Durham County Bar Association CLE 2/5/15

THRESHOLD QUESTION:

HOW DO YOU SUBPOENA RECORDS FROM DSS?

You don’t! You need a court order.

Confidentiality & the Law

� Information is confidential if …

� Legal rule

� Constitution, statute, regulation

� Prohibits or restricts

� Acquisition, use, or disclosure

� By particular persons

� To particular persons

� In particular situations

BASIC RULE:

� ALL DSS client based records are Confidential.

� DSS client based records are not subject to the

public records law.

�Non-identifiable statistical data is public

General Rules of Thumb

� Confidentiality is never absolute

� Always some exception

� Confidential in some contexts but not others

� Confidential info may be used or disclosed

�With subject’s consent

�Pursuant to court order

�To properly administer program

�If subject not identified

Debunking Some Myths…

� Sharing or disclosure is OK

� As long as it is “in house”

� Internal disclosure & use may be restricted

� As long as it is informal or oral, not written copy

� Usually whether, not how, info disclosed

� If “the cat is already out of the bag”

� If subject is dead

� Confidentiality always “follows” the info

� Always determine who is subject to rule

2/2/2015

Cathy Moore 2

WHAT LAWS?

� Constitutional right to privacy

� Common law right to privacy

� Federal law

� Federal funding requirements

� Specific laws such as FERPA, HIPAA, SA Regs.

� Regulatory requirements

� State laws

� Statutes

� Regulations

� Local Rules

NARROW YOUR REQUEST

� What information?

� Don’t ask for “all records”

� Include a time frame

� Who has it?

� Multiple divisions within DSS

� May really be a DHHS record

� Who wants it?

� Is it your client’s information or someone else’s?

� For what purpose?

WHO NEEDS RECORDS & WHY?

� Own Record:

� Criminal Mitigation,

� Domestic Custody,

� Child Support,

� Immigration – SIJ Status or VAWA, U (Victim) Status (Suffered

directly or indirectly and assisted in prosecution) T

(Trafficking),

� RIL,

� AND Case,

� TPR Case

� Adoption for limited purpose of medical information,

� Medical Malpractice or other personal injury

Child Protective Services

� GS 7B-301

� Mandatory reporting of suspected abuse & neglect

� Overrides (almost all) state law privileges

� Does not “trump” federal law

� GS 7B-302(e)

� CPS investigation & services

� Overrides privilege (except attorney-client)

� Does not “trump” federal law

� Criminal investigation withheld with court order

What CPS Records You Can Get

� Durham DSS has open file policy for respondents/parties in our cases

� Procedures are included in your materials

� Other DSS’ have different policies

� For other purposes, must get a court order

� Clerk is required to maintain confidentiality of judicial proceeding

� DSS is required to maintain confidentiality of judicial proceeding

Adult Protective Services

� GS 108A-103(a)

�County DSS evaluating APS report

�May review & copy records

�Regarding care & treatment of disabled adult

�Maintained by adult’s caretaker

2/2/2015

Cathy Moore 3

Adult Care Homes

� GS 131D-2.14

� County DSS conducting licensure inspection

� May review & copy residents’ records

� Person involved in giving care may disclose unless written objection by resident

� GS 131D-27

� County DSS investigating violation of Art. 3

� May inspect residents’ records

Child Support Enforcement

� GS 110-139

� Info from employers

�Parent’s address, DOB, SSN, wages, insurance

� Bank, cable TV, utility

�Parent’s address, phone, SSN, account

� Other sources of information

�Occupational licensing boards (GS 93B-14(1))

�DoT & DMV (GS 110-129.1(a)(2))

Procedures for a Court Order

� Decide what you want.

� Determine it is not obtainable from another source.

� The purpose for which it is needed.

� Contact the CAO attorney if it is a case active in AND Court.

� Not all DSS cases are court involved.

� Contact Danielle Briggs 919-570-7170 if case not involved in AND Court.

� Work out terms for a consent order.

� File a Motion and Notice of Hearing.

� Present consent order to judge or have hearing if no consent order agreed to.

Common Objections to Subpoenas1) Fails to allow reasonable time for compliance.

2) Requires disclosure of privileged or other protected matter and no exception or

waiver applies to the privilege or protection.

3) Is procedurally defective. N.C.G.S. §§ 7B-302(a1) and 7B-2901(b) direct that

confidential juvenile records only be released by court order signed by the

presiding Judge of District or Superior Court after notice to the Department and

opportunity to be heard in addition to a finding by the presiding Judge that the

requested information is relevant and necessary to the pending matter and

unavailable from any other source.

4) Incorrectly names the custodian of records.

5) Requests indirect disclosure of the reporter’s names in violation of N.C.G.S. §§

108A-80 and contradictory to the meaning of N.C.G.S. § 108A-102 and 10A NCAC

05J.

6) Subjects recipient to an undue burden and is otherwise unreasonable or

oppressive.

Thanks

� With thanks for assistance from materials

prepared by

�Aimee Wall, SOG and

�Danielle Briggs, Assistant County Attorney

SUGGESTED FORMAT

MUST BE TAILORED TO YOUR CASE

NO GUARANTEES

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

COUNTY OF DURHAM DISTRICT COURT DIVISION

FILE NO. _________

____________________ Plaintiff,

vs. MOTION FOR RELEASE OF RECORDS/

PROTECTIVE ORDER/ IN CAMERA

REVIEW

____________________

Defendant.

_____________________________________________________________________________________________

NOW COMES counsel for __[plaintiff/defendant]__ pursuant pursuant to N.C. Gen. Stat. §

N.C.G.S. 7B-302(a1)(3), for the release of Durham County Department of Social Services (DSS)

and Child Protective Services (CPS) records, for the following reasons, and moves this court for

an in camera review and protective order.

In support of said motion, counsel alleges as follows:

Add your facts:

1.

3. Durham DSS seeks an in camera review of said records and a protective order which

orders that any and all DSS records remain confidential and only be released under the terms and

conditions of the attached Protective Order.

4. The attached order adequately balances the confidentiality of the Durham DSS’s records

and the rights of either party to acquire information as it deems necessary to adequately prepare

for the trial of any and all issues herein.

5. It is in the best interest of justice that an in camera review be conducted and a protective

order issue in this matter.

6. The plaintiff’s/defendant’s attorney is in need of a copy of the report and any

other documents or items in the possession of CPS or Durham County DSS which were prepared

or produced in this matter regarding allegations/findings of ____ from (date) by the

plaintiff/defendant in order to prepare for __________ or presentation of evidence.

7. The requested documents are relevant, necessary and unavailable from any other

source.

***********THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK**************

WHEREFORE, __[plaintiff/defendant]__ prays that the Court enter an order for in

camera review and protective order to protect the confidentiality of the records of the Durham

County Department of Social Services and for such other relief as the Court deems fit and

proper.

WHEREFORE the plaintiff prays that this court conduct a hearing on this matter and grant an

order which releases a copy of the said documents from Durham County CPS and DSS to

attorneys, for the defendant and for the plaintiff, and such other relief as is just and proper.

This the ___ day of _____, 2015.

Counsel for _[Plaintiff/Defendant]_

BY: _____________________________

*************************

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the foregoing Motion for In Camera

Review & Protective Order in the above entitled action, in the following manner:

( )By depositing the same, enclosed in a postpaid, properly addressed wrapper in an official

depository under exclusive care and custody of the United States Post Office Department,

addressed to:

( )

( )

( ) By hand delivery to:

( )

( )

Service being in accordance with Rule 5, Chapter 1A of the General Statutes of North Carolina.

This the ___ day of _______, 2015

By: ________________________

1

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

COUNTY OF __________ DISTRICT COURT DIVISION

FILE NO. __________

_____________________ Plaintiff,

vs. CONSENT TO IN CAMERA REVIEW

& PROTECTIVE ORDER FOR RECORDS

_____________________ Defendant.

____________________________________________________________________________________

WHEREAS the __[plaintiff/defendant]__ has requested access to the Durham DSS records

concerning the __[plaintiff/defendant]__ and the Durham DSS objects to providing its records absent a

protective order to preserve the confidentiality of its records.

AND IT APPEARING TO THE COURT that it is in the interests of justice that the

__[plaintiff/defendant]__ be allowed discovery of Durham DSS’s records for the purpose of

representing __[plaintiff/defendant]__ in this case after the court conducts an in camera review of DSS

records.

AND IT FURTHER APPEARING TO THE COURT that the Defendant and the undersigned

counsel for the Durham DSS have agreed to the in camera review and Protective Order and affixed their

signatures below, the court hereby finds good cause that an in camera review be conducted and a

Protective Order be issued.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

1. Durham DSS –_______Division is hereby ordered to produce the complete file and all

other records in possession of Durham DSS concerning ___[ ]___, to the District Court Judge

assigned to the case for the purposes of conducting an in camera review of the DSS records, except that

the identity of any person making a report to Durham DSS shall be deleted.

2. The State and/or Plaintiff/Petitioner and Defendant/Respondent shall not use documents

produced by Durham DSS in this action for any purpose other than prosecution/defense of this action.

3. No person shall disclose to any other person Confidential Documents or the information

contained therein unless all terms and conditions in this Order are satisfied; and upon satisfaction of

such terms and conditions, the Confidential Documents and information may be disclosed only to the

following persons:

A. Counsel of record for the State and/or Plaintiff/Petitioner and

Defendant/Respondent and the employees or such counsel who are assisting said

counsel in preparation for the hearing of this matter;

B. Persons specifically consulted by the State and/or Plaintiff/Petitioner and

Defendant/Respondent to assist in the preparation or trial of this matter who are

not regular employees of counsel of record for Plaintiff and The State and/or

Plaintiff/Petitioner and Defendant/Respondent but only if such persons need the

2

Confidential documents or information therefrom to render such assistance (such

persons may not retain the Confidential Documents after their participation in the

case is ended); and

C. Any deposition or trial witness at a deposition, hearing or trial to the extent that it

is necessary to tender to such witness Confidential Document as an exhibit to

elicit testimony relevant to the matters at issue in this case.

4. Before any person is given access to Confidential Documents or information, counsel for

the State and/or Plaintiff/Petitioner and Defendant/Respondent shall provide such person with a copy of

this Order and require such person to execute a written acknowledgment that he or she understands the

terms of this Order and agrees to abide by them. (In the case of a deposition or trial witness, it shall be

sufficient to provide the witness with a copy of the order and obtain his or her acknowledgment one time

prior to commencement of the deposition or testimony, and it shall not be necessary to repeat the process

each time the witness is shown additional confidential documents.) A copy of such written

acknowledgment shall be furnished to counsel for Durham DSS within ten (10) days after entry of final

judgment or upon entry of a Court order so providing, whichever comes first. In the event any non-party

deponent refuses to execute such written acknowledgment, such deponent may be shown the

confidential documents only during his or her actual testimony and may not retain a copy of such

documents.

5. No document (including pleadings, briefs, memoranda, depositions and exhibits)

containing Confidential Documents or information contained therein or derived therefrom shall be filed

with the Clerk of Court unless filed separately under seal in an envelope marked with a legend

substantially as follows:

"THIS ENVELOPE CONTAINS CONFIDENTIAL

INFORMATION, THE DISCLOSURE OR USE OF

WHICH IS RESTRICTED BY COURT ORDER."

Where portions of a pleading containing Confidential Documents or information can be

segregated, only those portions containing such confidential information need be filed under seal.

6. Each person given access to Confidential Documents or information therefrom pursuant

to this Order shall keep such material strictly secure, and refrain from disclosing in any manner any

information set forth in said documents, and shall keep such documents and the information contained

therein or derived therefrom confidential except as otherwise provided by the terms of this Order.

7. Upon conclusion of this action, including all appeals, the provisions hereof relating to the

access to and use of confidential Documents and information therefrom shall continue to be binding

upon all persons entitled to access under the terms of this Order, and counsel for the State and/or

Plaintiff/Petitioner and Defendant/Respondent shall represent in writing to counsel for Durham DSS that

all such Confidential Documents and all copies, summaries, extracts and notes thereof have been

destroyed.

8. Nothing in this Order shall preclude the State and/or Plaintiff/Petitioner and

Defendant/Respondent or Durham DSS from seeking and obtaining, on an appropriate showing, such

3

additional protection with respect to the confidentiality of documents or other discovery material as it

may deem appropriate. Nothing herein shall limit a party's or its counsel's use of its own documents or

any documents obtained outside the discovery process in this action.

9. This court shall determine any measures which should be taken during trial of this cause

to satisfy the requirements of confidentiality consistent with the rights of all parties to present all

admissible evidence necessary for a proper resolution of this case.

This the ____ day of ______, 2015.

___________________________________

DISTRICT COURT JUDGE PRESIDING

COUNTY OF DURHAM

OFFICE OF THE COUNTY ATTORNEY

LOWELL L. SILER P.O. Box 3508

COUNTY ATTORNEY 200 E. Main Street, 2nd Floor

Durham, NC 27702

(919) 560-0716

(919) 560-0714 (FAX)

DISCOVERY PROCEDURES FOR PARTIES IN

ABUSE NEGLECT AND DEPENDENCY CASES

AND IN TERMINATION OF PARENTAL RIGHTS

PROCEEDINGS

1. Upon the filing of a petition, the DSS attorney filing the petition will send a memo to DSS assigned

records retrieval person informing her of the filing of the petition, the relevant court dates, and the

information to release. The information will be the same information set out in the current juvenile rule

and discovery order made part of the rules. There is no need for an order.

2. DSS will arrange for the information to be scanned and sent to CAO office.

3. The name of the reporter and any privileged attorney-client statements is redacted. The materials

are downloaded to a disc, and each attorney appointed or retained in the case is sent a copy of the disc,

and a notice of the contents. All attorneys will receive the same information at the same time.

4. DSS does not agree to the entry of an ex parte discovery order for DSS records.

5. Requests for additional information should be made directly to the county attorney handling the

case. The County Attorney Office does not consent to attorneys dealing directly with social workers to

obtain discovery.

Page | 1

HOW TO OBTAIN DSS RECORDS:

Resources:

Statutes: For a comprehensive listing and analysis, see Items 2 and 4 under SOG Publications

Federal: 42 USC 5106a

State:

§ 108A-80. Confidentiality of records.

(a) Except as provided in subsections (b) and (b1) of this section, it shall be unlawful for any

person to obtain, disclose or use, or to authorize, permit, or acquiesce in the use of any list of

names or other information concerning persons applying for or receiving public assistance or

social services that may be directly or indirectly derived from the records, files or

communications of the Department or the county boards of social services, or county

departments of social services or acquired in the course of performing official duties except for

the purposes directly connected with the administration of the programs of public assistance and

social services in accordance with federal law, rules and regulations, and the rules of the Social

Services Commission or the Department.

(b) The Department shall furnish a copy of the recipient check register monthly to each county

auditor showing a complete list of all recipients of Work First Family Assistance in Standard

Program Counties and State-County Special Assistance, their addresses, and the amounts of the

monthly grants. An Electing County whose checks are not being issued by the State shall furnish

a copy of the recipient check register monthly to its county auditor showing a complete list of all

recipients of Work First Family Assistance in the Electing County, their addresses, and the

amounts of the monthly payments. These registers shall be public records open to public

inspection during the regular office hours of the county auditor, but the registers or the

information contained therein may not be used for any commercial or political purpose. Any

violation of this section shall constitute a Class 1 misdemeanor.

(b1) The Department may share confidential information concerning a person receiving public

assistance or social services with a local school administrative unit and with the Department of

Public Instruction. Disclosure is limited to that information necessary to establish, coordinate, or

maintain appropriate educational services for the person receiving public assistance or social

services.

(c) Any listing of recipients of benefits under any public assistance or social services program

compiled by or used for official purposes by a county board of social services or a county

department of social services shall not be used as a mailing list for political purposes. This

prohibition shall apply to any list of recipients of benefits of any federal, State, county or mixed

public assistance or social services program. Further, this prohibition shall apply to the use of

such listing by any person, organization, corporation, or business, including but not limited to

public officers or employees of federal, State, county, or other local governments, as a mailing

Page | 2

list for political purposes. Any violation of this section shall be punishable as a Class 1

misdemeanor.

(d) The Social Services Commission may adopt rules governing access to case files for social

services and public assistance programs, except the Medical Assistance Program. The Secretary

of the Department of Health and Human Services shall have the authority to adopt rules

governing access to medical assistance case files.

§ 7B-302. Assessment by director; access to confidential information; notification of person

making the report. (AND cases/records) relevant parts

DISCLOSING INFORMATION:

(a1) All information received by the department of social services, including the identity of the

reporter, shall be held in strictest confidence by the department, except under the following

circumstances:

(1) The department shall disclose confidential information to any federal, State, or local

government entity or its agent in order to protect a juvenile from abuse or neglect. Any

confidential information disclosed to any federal, State, or local government entity or its agent

under this subsection shall remain confidential with the other government entity or its agent and

shall only be redisclosed for purposes directly connected with carrying out that entity's mandated

responsibilities.

(1a) The department shall disclose confidential information regarding the identity of the

reporter to any federal, State, or local government entity or its agent with a court order. The

department may only disclose confidential information regarding the identity of the reporter to

a federal, State, or local government entity or its agent without a court order when the entity

demonstrates a need for the reporter's name to carry out the entity's mandated responsibilities.

(2) The information may be examined upon request by the juvenile's guardian ad litem or the

juvenile, including a juvenile who has reached age 18 or been emancipated.

(3) A district or superior court judge of this State presiding over a civil matter in which the

department of social services is not a party may order the department to release confidential

information, after providing the department with reasonable notice and an opportunity to be

heard and then determining that the information is relevant and necessary to the trial of the

matter before the court and unavailable from any other source. This subdivision shall not be

construed to relieve any court of its duty to conduct hearings and make findings required under

relevant federal law, before ordering the release of any private medical or mental health

information or records related to substance abuse or HIV status or treatment. The department

of social services may surrender the requested records to the court, for in camera review, if the

surrender is necessary to make the required determinations.

Page | 3

(4) A district or superior court judge of this State presiding over a criminal or delinquency

matter shall conduct an in camera review prior to releasing to the defendant or juvenile any

confidential records maintained by the department of social services, except those records the

defendant or juvenile is entitled to pursuant to subdivision (2) of this subsection.

(5) The department may disclose confidential information to a parent, guardian, custodian,

or caretaker in accordance with G.S. 7B-700 of this Subchapter.

RECEIVING INFORMATION:

(e) In performing any duties related to the assessment of the report or the provision or

arrangement for protective services, the director may consult with any public or private agencies

or individuals, including the available State or local law enforcement officers who shall assist in

the assessment and evaluation of the seriousness of any report of abuse, neglect, or dependency

when requested by the director. The director or the director's representative may make a written

demand for any information or reports, whether or not confidential, that may in the director's

opinion be relevant to the assessment or provision of protective services. Upon the director's or

the director's representative's request and unless protected by the attorney-client privilege, any

public or private agency or individual shall provide access to and copies of this confidential

information and these records to the extent permitted by federal law and regulations. If a

custodian of criminal investigative information or records believes that release of the information

will jeopardize the right of the State to prosecute a defendant or the right of a defendant to

receive a fair trial or will undermine an ongoing or future investigation, it may seek an order from

a court of competent jurisdiction to prevent disclosure of the information. In such an action, the

custodian of the records shall have the burden of showing by a preponderance of the evidence

that disclosure of the information in question will jeopardize the right of the State to prosecute

a defendant or the right of a defendant to receive a fair trial or will undermine an ongoing or

future investigation. Actions brought pursuant to this paragraph shall be set down for immediate

hearing, and subsequent proceedings in the actions shall be accorded priority by the trial and

appellate courts.

§ 7B-2901. Confidentiality of records. (AND Court Cases)

(a) The clerk shall maintain a complete record of all juvenile cases filed in the clerk's office

alleging abuse, neglect, or dependency. The records shall be withheld from public inspection and,

except as provided in this subsection, may be examined only by order of the court. The record

shall include the summons, petition, custody order, court order, written motions, the electronic

or mechanical recording of the hearing, and other papers filed in the proceeding. The recording

of the hearing shall be reduced to a written transcript only when notice of appeal has been timely

given. After the time for appeal has expired with no appeal having been filed, the recording of

the hearing may be erased or destroyed upon the written order of the court.

The following persons may examine the juvenile's record maintained pursuant to this subsection

and obtain copies of written parts of the record without an order of the court:

Page | 4

(1) The person named in the petition as the juvenile;

(2) The guardian ad litem;

(3) The county department of social services; and

(4) The juvenile's parent, guardian, or custodian, or the attorney for the juvenile or the

juvenile's parent, guardian, or custodian.

(b) The Director of the Department of Social Services shall maintain a record of the cases of

juveniles under protective custody by the Department or under placement by the court, which

shall include family background information; reports of social, medical, psychiatric, or

psychological information concerning a juvenile or the juvenile's family; interviews with the

juvenile's family; or other information which the court finds should be protected from public

inspection in the best interests of the juvenile. The records maintained pursuant to this

subsection may be examined only in the following circumstances:

(1) The juvenile's guardian ad litem or the juvenile, including a juvenile who has reached age

18 or been emancipated, may examine the records.

(2) A district or superior court judge of this State presiding over a civil matter in which the

department is not a party may order the department to release confidential information, after

providing the department with reasonable notice and an opportunity to be heard and then

determining that the information is relevant and necessary to the trial of the matter before the

court and unavailable from any other source. This subsection shall not be construed to relieve

any court of its duty to conduct hearings and make findings required under relevant federal law

before ordering the release of any private medical or mental health information or records

related to substance abuse or HIV status or treatment. The department may surrender the

requested records to the court, for in camera review, if surrender is necessary to make the

required determinations.

(3) A district or superior court judge of this State presiding over a criminal or delinquency

matter shall conduct an in camera review before releasing to the defendant or juvenile any

confidential records maintained by the department of social services, except those records the

defendant or juvenile is entitled to pursuant to subdivision (1) of this subsection.

(4) The department may disclose confidential information to a parent, guardian, custodian,

or caretaker in accordance with G.S. 7B-700.

(c) In the case of a child victim, the court may order the sharing of information among such

public agencies as the court deems necessary to reduce the trauma to the victim.

Page | 5

§ 7B-700. Sharing of information; discovery. (PARTIES TO AND CASE)

(a) Sharing of Information. – A department of social services is authorized to share with any

other party information relevant to the subject matter of an action pending under this

Subchapter. However, this subsection does not authorize the disclosure of the identity of

the reporter or any uniquely identifying information that would lead to the discovery of

the reporter's identity in accordance with G.S. 7B-302 or the identity of any other person

where the agency making the information available determines that the disclosure would

be likely to endanger the life or safety of the person.

(b) Local Rules. – The chief district court judge may adopt local rules or enter an

administrative order addressing the sharing of information among parties and the use of

discovery.

(c) Discovery. – Any party may file a motion for discovery. The motion shall contain a specific

description of the information sought and a statement that the requesting party has made

a reasonable effort to obtain the information pursuant to subsections (a) and (b) of this

section or that the information cannot be obtained pursuant to subsections (a) and (b) of

this section. The motion shall be served upon all parties pursuant to G.S. 1A-1, Rule 5. The

motion shall be heard and ruled upon within 10 business days of the filing of the motion.

The court may grant, restrict, defer, or deny the relief requested. Any order shall avoid

unnecessary delay of the hearing, establish expedited deadlines for completion, and

conform to G.S. 7B-803.

(d) Protective Order. – Any party served with a motion for discovery may request that the

discovery be denied, restricted, or deferred and shall submit, for in camera inspection,

the document, information, or materials the party seeks to protect. If the court enters

any order granting relief, copies of the documents, information, or materials submitted

in camera shall be preserved for appellate review in the event of an appeal.

(e) Redisclosure. – Information obtained through discovery or sharing of information under

this section may not be redisclosed if the redisclosure is prohibited by State or federal

law.

(f) Guardian Ad Litem. – Unless provided otherwise by local rules, information or reports

obtained by the guardian ad litem pursuant to G.S. 7B-601 are not subject to disclosure

pursuant to this subsection, except that reports and records shall be shared with all

parties before submission to the court. (1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60;

2009-311, s. 4.)

§ 110-139. Location of absent parents. Child Support Records

(a) The Department of Health and Human Services shall attempt to locate absent parents for the

purpose of establishing paternity of and/or securing support for dependent children. The

Department is to serve as a registry for the receipt of information which directly relates to the

identity or location of absent parents, to assist any governmental agency or department in

locating an absent parent, to answer interstate inquiries concerning deserting parents, and to

develop guidelines for coordinating activities with any governmental department, board,

commission, bureau or agency in providing information necessary for the location of absent

parents.

Page | 6

(b) In order to carry out the responsibilities imposed under this Article, the Department may

request from any governmental department, board, commission, bureau or agency information

and assistance. All State, county and city agencies, officers and employees shall cooperate with

the Department in the location of parents who have abandoned and deserted children with all

pertinent information relative to the location, income and property of such parents,

notwithstanding any provision of law making such information confidential. Except as otherwise

stated in this subsection, all nonjudicial records maintained by the Department pertaining to

child-support enforcement shall be confidential, and only duly authorized representatives of

social service agencies, public officials with child-support enforcement and related duties, and

members of legislative committees shall have access to these records. The payment history of an

obligor pursuant to a support order may be examined by or released to the court, the obligor, or

the person on whose behalf enforcement actions are being taken or that person's designee.

Income and expense information of either parent may be released to the other parent for the

purpose of establishing or modifying a support order.

(c) Notwithstanding any other provision of law making such information confidential, an

employer doing business in this State or incorporated under the laws of this State shall provide

the Department with the following information upon certification by the Department that the

information is needed to locate a parent for the purpose of collecting child support or to enforce

an order for child support: full name, social security account number, date of birth, home

address, wages, existing or available medical, hospital, and dental insurance coverage, and

number of dependents listed for tax purposes.

(c1) Employment verifications. – For the purpose of establishing, enforcing, or modifying a child

support order, the amount of the obligor's gross income may be established by a written

statement signed by the obligor's employer or the employer's designee or an Employee

Verification form produced by the Automated Collections Tracking System that has been

completed and signed by the obligor's employer or the employer's designee. A written statement

signed by the employer of the obligor or the employer's designee that sets forth an obligor's gross

income, as well as an Employee Verification form signed by the obligor's employer or the

employer's designee, shall be admissible evidence in any action establishing, enforcing, or

modifying a child support order.

(d) Notwithstanding any other provision of law making this information confidential, including

Chapter 53B of the General Statutes, any utility company, cable television company, or financial

institution, including federal, State, commercial, or savings banks, savings and loan associations

and cooperative banks, federal or State chartered credit unions, benefit associations, insurance

companies, safe deposit companies, money market mutual funds, and investment companies

doing business in this State or incorporated under the laws of this State shall provide the

Department of Health and Human Services with the following information upon certification by

the Department that the information is needed to locate a parent for the purpose of collecting

child support or to establish or enforce an order for child support: full name, social security

number, address, telephone number, account numbers, and other identifying data for any

person who maintains an account at the utility company, cable television company, or financial

Page | 7

institution. A utility company, cable television company, or financial institution that discloses

information pursuant to this subsection in good faith reliance upon certification by the

Department is not liable for damages resulting from the disclosure.

(e) Subsection (d) of this section shall not apply to telecommunication utilities or providers of

electronic communication service to the general public.

Regulations:

NCAC Title 10A - Health and Human Services - Chapter 69 - Confidentiality and Access to Client

Records, 10A NCAC 69.0101-.0605 Selected sections are below:”

10A NCAC 69 .0101 DEFINITIONS

"Client" means any applicant for, or Recipient of, Public Assistance or Services, or someone

who makes inquiries, is interviewed, or is or has been otherwise served to some extent by the

Agency. For purposes of this Subchapter, someone acting responsibly for the client in

accordance with Agency policy is subsumed under the Definition of Client.

10A NCAC 69 .0301 RIGHT OF ACCESS

Confidentiality of information about himself is the right of the client. Upon written or verbal

request the client shall have access to review or obtain without charge a copy of the

information in his records with the following exceptions:

(1) information that the agency is required to keep confidential by state or federal

statutes or regulations.

(2) confidential information originating from another agency as provided for in Rule .0102

of this Subchapter.

(3) information that would breach another individual's right to confidentiality.

10A NCAC 69 .0102 INFORMATION FROM OTHER AGENCIES

If the agency receives information from another agency or individual, then such information

shall be treated as any other information generated by the state Division of Social Services or

the county departments of social services, and disclosure thereof will be governed by any

condition imposed by the furnishing agency or individual.

NOTE: Which records are the client’s is subject to interpretation. For example, a neglect file is

in the mother’s name with references and information about the mother, father(s), and

children but is oftentimes considered the child’s record.

10A NCAC 69 .0302 PROMPT RESPONSE TO REQUEST

The agency shall provide access as defined in Rule .0301 of this Subchapter as promptly as

feasible but no more than five working days after receipt of the request.

10A NCAC 69 .0303 WITHHOLDING INFORMATION FROM THE CLIENT

Page | 8

(a) When the director or a delegated representative determines on the basis of the exceptions

in Rule .0301 of this Subchapter to withhold information from the client record, this reason

shall be documented in the client record.

(b) The director or a delegated representative must inform the client that information is being

withheld, and upon which of the exceptions specified in Rule .0301 of this Subchapter the

decision to withhold the information is based. If confidential information originating from

another agency is being withheld, the client shall be referred to that agency for access to the

information.

(c) When a delegated representative determines to withhold client information, the decision to

withhold shall be reviewed by the supervisor of the person making the initial determination.

NOTE: (b) means that substance abuse or mental health records from another agency have to

be obtained from that agency.

10A NCAC 69 .0304 PROCEDURES FOR REVIEW OF RECORDS

The director or his delegated representative shall be present when the client reviews the

record. The director or his delegated representative must document in the client record the

review of the record by the client.

NOTE: Durham DSS now retains all records on Laserfiche, an electronic storage and retrieval

system, so review of the file is not what it once was.

10A NCAC 69 .0305 CONTESTED INFORMATION

A client may contest the accuracy, completeness or relevancy of the information in his record.

A correction of the contested information, but not the deletion of the original information if it is

required to support receipt of state or federal financial participation, shall be inserted in the

record when the director or his delegated representative concurs that such correction is

justified. When the director or his delegated representative does not concur, the client shall be

allowed to enter a statement in the record. Such corrections and statements shall be made a

permanent part of the record and shall be disclosed to any recipient of the disputed

information. If a delegated representative decides not to correct contested information, the

decision not to correct shall be reviewed by the supervisor of the person making the initial

decision.

Local Rules: AND RULES 15.0 DISCOVERY

15.1 Voluntary Discovery from the Department of Social Services:

The Durham Department of Social Services record will voluntarily release discovery. The

following information shall be provided to each parent attorney by placing those records

in a sealed envelope in the attorney's juvenile court box or sent electronically within ten

business days.

Page | 9

15.2 Any requests for any additional DSS records may occur as follows: The attorney shall

communicate with the assigned county attorney for additional discovery if necessary.

15.3 The release of this information is restricted for the purpose of representation of the

respondent parent in Juvenile Court and shall not be released for any other purpose

without further order of this court.

15.4 Any party may file a motion to compel discovery of specific information or material.

The motion shall be calendared for hearing within five business days of the date it is

filed.

16.0 JUVENILE RECORDS

16.1 Confidentiality of Juvenile Records. Juvenile Records, Human Services and/or

Department of Social Services files, medical records, psychological evaluations and other

assessments are confidential. All recipients of confidential information, including, but

not limited to, court calendars, copies of the juvenile's files, discovery, court summaries,

records of the juvenile and his or her parents' psychological evaluations and assessments,

medical records, and all similar records, shall exercise extraordinary care to prevent

unauthorized dissemination of such documents. Copies of the court calendar contain

information involving other juveniles and therefore shall not be provided to the juvenile,

a parent of the juvenile, other family members or the foster parent. Reasonable

precautions will be made to protect confidentiality.

16.2 Juvenile File Numbers. The Clerk of Superior Court shall assign a separate and

individual file number to each juvenile named in a petition alleging abuse, neglect, and/or

dependency or in a petition to terminate parental rights in which no petition alleging

abuse, neglect, and/or dependency has been filed. A juvenile will only receive one file

number, even if a subsequent abuse/neglect/dependency, delinquency and/or

undisciplined petition is filed.

17.0 SUBSTANCE ABUSE AND MENTAL HEALTH RECORDS

Substance abuse/mental health records of a parent may be secured by a motion with a

written motion to the court with a proposed order directing the production of the records

for the ex-parte examination by the court. Once the records are received by the clerk, the

clerk shall date stamp the records and notify via email the attorney representing the

parent. The parent attorney shall have five days to review the record and to make any

response as it concerns the records. If respondent's counsel has no objection to the

dissemination of the mental health/substance abuse records to other parties, shall submit

an authorization (local form) to disseminate the records to opposing counsel without the

need for a judge's in camera inspection. If respondent's counsel desires that any portion

of the records be redacted or that none of the record be shared with other parties, then,

respondent's counsel shall file a Motion for a Protective Order and shall set that motion

on for hearing. Nothing in this rule is to limit the ability of the child's GAL and/or the

GAL attorney to obtain information according to federal or state statute.

Page | 10

School Of Government Publications:

1. Confidentiality and Social Services (Part I): What Is Confidentiality? Social Services

Bulletin # 30, February, 2001

2. Confidentiality and Social Services (Part II): Where Do Confidentiality Rules Come From?

Social Services Bulletin # 31, May, 2001

3. Confidentiality and Social Services (Part III): A Process for Analyzing Issues Involving

Confidentiality, Social Services Bulletin # 35, April, 2002

4. Confidentiality and Social Services (Part IV): An Annotated Index of Federal and State

Confidentiality Laws, Social Services Bulletin #37, October, 2002

[Note: The administrative rules cited in this bulletin were renumbered after this bulletin

was published. The bulletin has not been updated to reflect the recodification of these

administrative rules or to include new or amended laws and regulations adopted after the

bulletin was published.]

5. Confidentiality and Social Services (Part V): The HIPAA Privacy Rule & County Social

Services Departments, Social Services Bulletin # 38, August, 2003

6. Confidentiality and Social Services (Part VI): Collection, Use, and Disclosure of Social

Security Numbers, Social Services Bulletin #40, November 2005

[Note: Above are dated, but still the best comprehensive sources.]

7. Should Parents Have Access to Information in Child Protective Services Records?

http://canons.sog.unc.edu/?p=6938 blog post 12/13/2013, by Aimee Wall

Page | 11

GLOSSARY OF DSS TERMS

AND – Abuse, neglect, dependency

APS – Adult Protective Services

IV-D – Child Support Establishment and Collection, Establishment of Paternity under Title IV D

of the US Code.

CPS – Child Protective Services

CPPS – Child Placement and

Income Maintenance Foodstamps, Medicaid, TANF

Intake Receives reports of child abuse, neglect or dependency

Screen-Out intake decides the information does not meet the statutory definition for abuse,

neglect or dependency and no further action is taken

Initiation first contact upon decision not to screen out

Substantiation a finding after an investigation that the facts in a report or later determined

facts are true and meet the definition of AND

Unsubstantiated insufficient facts to support of finding of AND

Services Recommended after an assessment, a case decision to advise family to receive

services. Case is then closed

Services Needed after an assessment, a case decision that the family must have services and

the case is referred to in-home services

MRS Multiple Response System – cases are evaluated at intake and determined to either

require an investigation or an assessment. In abuse cases an investigation is mandatory. The

level of inquiry is greater in an investigation. During an assessment, a decision may be made to

change to an investigation based upon newly discovered information.