There are three level Child Protective Services (CPS) appeals:
- First Level of Appeal (informal local conference).
- Second Level of Appeal (administrative or state level hearing).
- Final Level of Appeal (appeal to circuit court).
After the Department of social service conducts an investigation, letter/communication is sent regarding possible abuse, the letter also informs that appeal may be made within 30 days of receiving the letter., here begins the first level of appeal.
The First Level of Appeal is an informal conference held by the Director of Social Service. Generally, in such appeal, the appellant requests amendment of record from founded abuse to unfounded. On the order of the Director, the appellant has a right to appeal to the Commissioner, that is the Second level of appeal. This appeal is conducted by a hearing officer appointed by the Commissioner. From the order of the Commissioner, the appellant has a right to appeal to the Circuit Court which is the Final Level of Appeal.
A dispositional order entered pursuant to Virginia Code § 16.1-278.2. is a final order from which an appeal may be taken in accordance with Va. Code § 16.1-296.
Procedure to file appeal:
The appeal to the circuit court over the dispositional order should be filed within 30 days from the date of service of the hearing officer’s decision (the date that the decision was received or the date that the decision was mailed, whichever occurs first).
A written notice of appeal to circuit court with the Commissioner of the Virginia Department of Social Services should be filed.
Within 30 days after filing the notice of appeal to circuit court with the Commissioner, a written petition for appeal to circuit court with the appropriate circuit court should be filed.
A copy of the petition for appeal to circuit court must also be served on the Commissioner.
The proceeding is a review of the record, not a de novo (new) hearing. Only the appellant in a CPS case may appeal the hearing officer’s decision. The agency cannot appeal the decision, nor can the victim or the victim’s parents if they were not the appellants.
Once a valid Notice of Appeal and a Petition have been filed, the state appeals office prepares two copies of the entire hearing record, including a transcript of the hearing.
If a court reporter was provided by either party, the transcript of the court reporter is used.
The records are submitted to the Office of the Attorney General and the appeal is assigned to an Assistant Attorney General who files one copy of the record with the appropriate circuit court for that jurisdiction.
Stay of appeal process when the appellant appeals and a simultaneously criminal charge is filed against him:
Whenever an appeal of the local department’s finding is made and a criminal charge is also filed against the appellant for the same conduct involving the same victim as investigated by the local department, the appeal process shall automatically be stayed until the criminal prosecution in circuit court is completed. During such stay, the appellant’s right of access to the records of the local department regarding the matter being appealed shall also be stayed. Once the criminal prosecution in circuit court has been completed, the local department shall advise the appellant in writing of his right to resume his appeal within the time frames provided by law and regulation. C