            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    THERESA N. DAVIS,1                         §
                                               §
          Petitioner Below,                    §   No. 451, 2016
          Appellant,                           §
                                               §   Court Below—Family Court
          v.                                   §   of the State of Delaware
                                               §   in and for New Castle County
    STATE OF DELAWARE,                         §
                                               §   Case No. 0212012265
          Respondent Below,                    §
          Appellee.                            §

                               Submitted: July 14, 2017
                               Decided:   August 9, 2017

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                           ORDER

         This 9th day of August 2017, upon consideration of the parties’ briefs and the

record below, it appears to the Court that:

         (1)    In May 2016, the appellant, Theresa N. Davis, petitioned the Family

Court to expunge from her adult criminal record two 2002 charges for Endangering

the Welfare of a Child and one 2005 charge for Offensive Touching. The State had

entered a nolle prosequi on the Endangering the Welfare of Child charges and

dismissed the Offensive Touching charge. In support of her petition, Davis stated

the charges were hindering her employment in the criminal justice field. The State



1
    The Court previously assigned pseudonyms to the appellant under Supreme Court Rule 7(d).
opposed the petition because Davis had a subsequent criminal record (a Disorderly

Conduct conviction in 2007 that was pardoned and a Hindering Prosecution charge

in 2007 that the State entered a nolle prosequi for) and there was a concerning pattern

of behavior.

        (2)    In an order dated June 23, 2016, the Family Court denied the petition.

The Family Court found there was a subsequent criminal history and that Davis had

provided insufficient detail of the manifest injustice she was suffering due to the

existence of her criminal record. This appeal followed. On appeal, Davis argues

she is entitled to expungement because: (i) she has a passion for children as reflected

in her previous work experience; (ii) she has applied for jobs dealing with children

and believes her criminal record would be frowned upon; and (iii) she has attempted

to pursue her interest in criminal justice by applying for various jobs, including in

juvenile probation and the detention center, but her criminal record does not look

good.

        (3)    Expungement of police and court records in an adult criminal case can

be mandatory or discretionary under 10 Del. C. § 1025. Davis’ charges were not

eligible for mandatory expungement.2 When considering a petition for discretionary

expungement, the Family Court may grant relief only if it finds “that the continued



2
 10 Del. C. § 1025(d)(2) (providing mandatory expungement is not applicable to records in cases
where the person was charged with Offensive Touching or Endangering the Welfare of a Child).
                                              2
existence and possible dissemination of information relating the arrest of the

petitioner causes, or may cause, circumstances which constitute a manifest injustice

to the petitioner.”3 The burden is on the petitioner to allege specific facts in support

of her allegation of manifest injustice and to prove manifest injustice by a

preponderance of the evidence.4

       (4)    Having carefully considered the parties’ positions on appeal and the

Family Court record, the Court concludes that the Family Court did not err in

denying Davis’ petition for expungement. Davis was not eligible for mandatory

expungement and failed to meet her burden of alleging specific facts in support of

her allegation of manifest injustice for discretionary expungement. In her petition

for expungement, Davis stated the charges were hindering her employment in the

criminal justice field, but failed to allege any specific facts supporting that statement.

Although Davis alleges specific facts in support of her allegation of manifest

injustice on appeal, we decline to consider facts that were not presented to the Family

Court in the first instance.5




3
  10 Del. C. § 1025(e)(2).
4
  Id.
5
  Del. Supr. Ct. R. 8. See also Wright v. State, 2011 WL 4060694, at *1 (Del. Sept. 13, 2011)
(declining to consider facts in support of expungement that were raised in the opening brief, but
not presented to the Family Court in the first instance).
                                               3
    NOW, THEREFORE, IT IS ORDERED, that the Family Court’s judgment is

AFFIRMED.

                               BY THE COURT:

                               /s/ Collins J. Seitz, Jr.
                                      Justice




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