§ 7B-323. Petition for expunction; district court. - North Carolina Statutes

§ 7B‑323.  Petition forexpunction; district court.

(a)        Within 30 days ofthe receipt of notice of the director's decision under G.S. 7B‑321(b) or(c), or within 30 days from the date of a determination by the districtattorney under G.S. 7B‑322, whichever is later, an individual may file apetition for expunction with the district court of the county in which theabuse or serious neglect report arose. The request shall be by a petition forexpunction filed with the appropriate clerk of court's office with a copydelivered in person or by certified mail, return receipt requested, to thedirector. The petition for expunction shall contain the name, date of birth,and address of the individual seeking expunction, the name of the juvenile whowas the subject of the determination of abuse or serious neglect, and factsthat invoke the jurisdiction of the court. Failure to timely file a petitionfor expunction constitutes a waiver of the individual's right to file apetition for expunction and to a district court hearing.

(b)        The clerk of courtshall maintain a separate docket for expunction actions and upon receipt of afiled petition for expunction shall calendar the matter for hearing at asession of district court hearing juvenile matters and send notice of the hearingto the petitioner and to the director. Upon the request of a party, the courtshall close the hearing to all persons, except officers of the court, theparties, and their witnesses. At the hearing, the director shall have theburden of proving by a preponderance of the evidence the correctness of thedirector's decision determining abuse or serious neglect and identifying theindividual seeking expunction as a responsible individual. The hearing shall bebefore a judge without a jury. The rules of evidence applicable in civil casesshall apply. However, the court shall have discretion to permit the admissionof any reliable and relevant evidence if the general purposes of the rules ofevidence and the interests of justice will best be served by its admission.

(c)        At the hearing, thefollowing rights of the parties shall be preserved:

(1)        The right to presentsworn evidence, law, or rules that bear upon the case.

(2)        The right torepresent themselves or obtain the services of an attorney at their own expense.

(3)        The right tosubpoena witnesses, cross‑examine witnesses of the other party, and makea closing argument summarizing the party's view of the case and the law.

(d)        Within 30 daysafter completion of the hearing, the court shall enter a signed, written ordercontaining findings of fact and conclusions of law. A copy of the order shallbe served on each party or the party's attorney of record. If the courtconcludes that the director has not established by a preponderance of theevidence the correctness of the determination of abuse or serious neglect orthe identification of the responsible individual, the court shall reverse thedirector's decision and order the director to notify the Department of Healthand Human Services to expunge the individual's name from the responsibleindividuals list. If the court concludes that sufficient evidence has not beenpresented to support a determination of abuse, but there is sufficient evidenceto support a determination of serious neglect and the identification of theindividual seeking expunction as a responsible individual, the court shallmodify the director's decision and order the director to notify the Departmentof Health and Human Services to change the entry on the responsible individualslist to that of neglect.

(e)        Notwithstanding anytime limitations contained in this section or the provisions of G.S. 7B‑324(a)(3)or (4), a district court may review a determination of abuse or serious neglectat any time if the review serves the interests of justice or for extraordinarycircumstances.

(f)         A party may appealthe district court's decision under G.S. 7A‑27(c). (2005‑399, s. 3.)