Support Center for Child Advocates as G.A.L. for the Minor Child H.M. and H.M., the Minor Child v. DHS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Support Center for Child Advocates : CASE SEALED
as G.A.L. for the Minor Child H.M. :
and H.M., the Minor Child, :
Petitioners :
:
v. :
:
Department of Human Services, : No. 723 C.D. 2017
Respondent : Argued: June 7, 2018
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY
JUDGE COVEY FILED: June 22, 2018
Support Center for Child Advocates as Guardian Ad Litem (G.A.L.) for
the minor child H.M., and H.M. (collectively, GAL) petition this Court for review of
the Commonwealth of Pennsylvania, Department of Human Services (DHS), Bureau
of Hearings and Appeals’ (BHA) May 11, 2017 order (Order) denying H.M.’s
G.A.L.’s Motion to Acknowledge Party Status (Motion). There are two issues before
this Court: (1) whether BHA’s Order is a collateral order pursuant to Pennsylvania
Rule of Appellate Procedure (Rule) 313; and, (2) whether BHA erred or abused its
discretion by denying the Motion.1 After review, we affirm.
On January 12, 2012, the Common Pleas Court appointed the Support
Center for Child Advocates as attorney and G.A.L. to represent H.M.’s interests in
1
GAL presents four issues in its Statement of Issues: (1) whether BHA’s Order is a
collateral order; (2) whether BHA failed to follow its procedural rules; (3) whether H.M.’s G.A.L. is
a proper intervenor; and (4) whether H.M.’s interest is represented by the existing parties. See GAL
Br. at 4-5. GAL’s second, third and fourth issues are combined herein as Issue 2.
connection with criminal and civil proceedings related to abuse.2 H.M.’s father J.C.
is the indicated perpetrator of abuse against H.M., and the appellant in the underlying
administrative appeal seeking to have the indicated report expunged. The indicated
report was based on allegations that J.C. raped H.M. On February 14, 2017, H.M.’s
G.A.L. submitted a letter to BHA requesting acknowledgement of party status based
on BHA’s Standing Practice Order (SPO),3 which governs practice before BHA.
On February 24, 2017, the Administrative Law Judge (ALJ) issued a
Rule to Show Cause why H.M.’s G.A.L. should not be considered a party to the
proceedings. J.C. and DHS did not object or respond to the Rule. H.M.’s G.A.L.,
upon receiving no response from his request, filed the Motion on May 3, 2017. On
May 11, 2017, the ALJ denied the Motion. The ALJ determined that H.M. was
represented by the existing parties therein, that H.M.’s G.A.L.’s request for party
status in the underlying matter was a Petition to Intervene under Section 35.28 of the
General Rules of Administrative Practice and Procedure (GRAPP),4 and H.M.’s
G.A.L. did not meet the required criteria to intervene.
On June 7, 2017, GAL appealed to this Court.5 By September 7, 2017
order, this Court instructed the parties to address in their respective briefs whether
BHA’s Order constitutes a collateral order and is subject to appeal to this Court
pursuant to Rule 313.
2
H.M. was born in 2001.
3
“SPOs [sic] are procedural rules issued by [BHA] pursuant to [Section 1102(g) of Act
142,] 67 Pa.C.S.[] § 1102(g)[,] that govern practice before [BHA].” Julia Ribaudo Senior Servs. v.
Dep’t Pub. Welfare, 969 A.2d 1184, 1187 n.2 (Pa. 2009). The BHA’s SPO can be found at
http://www.dhs.pa.gov/cs/groups/webcontent/documents/form/s_002109.pdf (last visited June 8,
2018).
4
1 Pa. Code § 35.28 (relating to eligibility criteria to intervene).
5
This Court’s standard of review on appeal from a BHA order “is limited to determining
whether the adjudication is supported by substantial evidence, whether the decision is in accordance
with the applicable law, or whether constitutional rights are violated.” Casey Ball Supports
Coordination, LLC v. Dep’t of Human Servs., 160 A.3d 278, 282 n.8 (Pa. Cmwlth. 2017) (quoting
Cambria Cty. Home & Hosp. v. Dep’t of Pub. Welfare, 907 A.2d 661, 667 (Pa. Cmwlth. 2006)).
2
Collateral Order
Initially, Rule 313 provides:
(a) General rule. An appeal may be taken as of right from
a collateral order of an administrative agency or lower
court.
(b) Definition. A collateral order is an order separable from
and collateral to the main cause of action where the right
involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.
Pa.R.A.P. 313. “An appeal of an order denying intervention may fall within the
definition of an appealable collateral order pursuant to [Rule] 313(b).” Twp. of
Radnor v. Radnor Recreational, LLC, 859 A.2d 1, 4 (Pa. Cmwlth. 2004).
GAL argues: (1) the issue in the underlying matter is whether substantial
evidence supports the indicated report of child abuse and BHA’s Order involves the
issue of whether H.M.’s G.A.L. is entitled to party and/or intervenor status, thus the
Order is separable from and collateral to the main cause of action; (2) H.M.’s
G.A.L.’s right to be a party in the underlying child abuse expunction and BHA’s
failure and/or refusal to apply BHA’s procedural rules enacted to govern practice
before BHA, and the direct impact of the expunction appeal on H.M.’s future, are
issues that are too important to be denied review; and, (3) if the denial of the Motion
is not reviewed by this Court, the right to participate in the proceeding will be
irreparably lost, along with H.M.’s right to appeal any BHA determinations. DHS
rejoins that the rights involved are J.C.’s reputational interests and H.M.’s interests
are represented by DHS.
As noted above, the collateral order doctrine permits an
appeal as of right from a non-final collateral order if the
order satisfies the three requirements set forth in Rule
313(b). With regard to the first prong of the collateral order
3
doctrine, an order is separable from the main cause of
action if it is ‘entirely distinct from the underlying issue in
the case’ and if ‘it can be resolved without an analysis of
the merits of the underlying dispute.’ Commonwealth v.
Blystone, . . . 119 A.3d 306, 312 ([Pa.] 2015) (internal
quotation marks omitted).
K.C. v. L.A., 128 A.3d 774, 778 (Pa. 2015). Here, because the issue of whether
H.M.’s G.A.L. is entitled to party and/or intervenor status “is a conceptually distinct
legal question which has no bearing on the central issue within the [expunction]
action” - whether substantial evidence supports the indicated report of child abuse -
“we find that [GAL] ha[s] established that [BHA’s] Order is separable from the main
cause of action.”6 Id. at 779. Accordingly, GAL has met the first prong of the
collateral order doctrine.
[W]ith respect to the second prong of the doctrine, the
importance prong, a right is important if ‘the interests that
would go unprotected without immediate appeal are
significant relative to the efficiency interests served by the
final order rule.’ [Commonwealth v.] Williams, 86 A.3d
[771,] 782 [(Pa. 2014)]. Notably, the rights involved must
implicate more than just the individual parties in the matter,
and, instead, must be ‘deeply rooted in public policy going
beyond the particular litigation at hand.’ [Commonwealth
v.] Blystone, 119 A.3d [306,] 312 [(Pa. 2015)] (internal
quotation marks omitted).
K.C., 128 A.3d at 779. “In the instant case, it is undeniable that a decision regarding
[H.M.’s G.A.L.’s] claimed right . . . to intervene in the [expunction] proceedings will
have a direct effect on [GAL’s] ability to participate in the [expunction] proceedings,
and, thus, on [H.M.], as, if [J.C.] [is], in fact,” entitled to expunction, H.M.’s future is
affected. Id. “However, while [H.M.’s G.A.L.’s] claimed right to intervene in the
6
DHS does not dispute that GAL satisfied the first prong of the collateral order doctrine.
See DHS Br. at 11 (“BHA’s order denying party status for [H.M.’s G.A.L.] is separable from the
merits of the appeal and satisfies the first prong of the collateral order doctrine.”).
4
[expunction] action may, at first blush, appear to implicate only the individual parties
involved, this right has important policy implications extending beyond this particular
case,” id., because whether a G.A.L. of a child against whom sexual abuse was
perpetrated has the right to participate in an expunction hearing “is too important to
be denied review.”7 Pa.R.A.P. 313(b). Accordingly, GAL has met the second prong
of the collateral order doctrine.
“Lastly, we turn to the final prong: whether [H.M.’s G.A.L.’s] claimed
right will be irreparably lost if review is postponed until after final judgment.” K.C.,
128 A.3d at 780.
In [In re Barnes Foundation, 871 A.2d 792 (Pa. 2005)], [the
Pennsylvania Supreme Court] reasoned that ‘a common
pleas court’s order denying intervention is one type of order
which must be appealed within thirty days of its entry under
Rule . . . 903 [(relating to time for appeal)] or not at all,
precisely because the failure to attain intervenor status
forecloses a later appeal.’ [Barnes, 871 A.2d] at 794
(emphasis added). . . .
[B]ecause Barnes unequivocally requires any party who
was denied intervention and who satisfies the requirements
of Rule 313 to appeal from the order denying intervention
within 30 days of its entry or lose the right to appeal the
order entirely, [GAL’s] right to appeal from the order
denying intervention in the instant case will be manifestly
lost if [it is] not permitted to appeal the order.
K.C., 128 A.3d at 780 (footnote omitted). “Accordingly, as [GAL’s] appeal satisfies
each of the three elements of the collateral order doctrine, we conclude that [BHA’s
7
DHS cites Dauphin County Social Support Services for Children & Youth Services v.
Department of Public Welfare, 543 A.2d 607 (Pa. Cmwlth. 1988), and V.S. v. Department of Public
Welfare, 131 A.3d 523 (Pa. Cmwlth. 2015), for their holdings that children are not entitled to have
G.A.L.s appointed to them in expunction hearings. DHS contends that because the issue has
already been addressed by this Court, it is not too important to be denied review. However, unlike
the facts in Dauphin County and V.S., H.M. is not requesting appointment of a G.A.L. Rather, a
G.A.L. has already been appointed and is requesting party status. Thus, Dauphin County and V.S.
are inapposite.
5
O]rder denying intervention is an appealable collateral order as of right under Rule
313 . . . .” Id. at 781.
Merits
GAL asserts that BHA erred or abused its discretion by failing to follow
SPO Rule 1, which includes a child’s G.A.L. as a party. DHS responds that under
Section 35.28(a) of GRAPP, H.M.’s G.A.L. is not eligible to intervene.
SPO Rule 1 defines a party as:
A person or corporate entity recognized by law as directly
connected to the outcome of an appeal and who/which
filed a writing specifying such an interest with [BHA],
including the appellant, [DHS], a county agency or private
agency empowered by [DHS] to implement regulations on
behalf of [DHS], the [G.A.L.] for a child, an intervenor, or
additional defendant.
Id. (emphasis added).
Clearly, a G.A.L. is included as a potential party under SPO Rule 1 and
H.M.’s G.A.L. filed a writing requesting acknowledgement of party status in the
expunction hearing. Therefore, the issue before this Court is whether H.M.’s G.A.L.
is “recognized by law as directly connected to the outcome of [the] appeal.” SPO
Rule 1. The relevant appeal is J.C.’s appeal from the expunction hearing, wherein,
BHA will determine whether J.C.’s name is to be maintained on the ChildLine &
Abuse Registry (ChildLine Registry).8 Although H.M. is the child victim in the
appeal, we must determine H.M.’s legal connection to the expunction hearing’s
outcome.
8
Section 3490.4 of DHS’s Regulations defines ChildLine as “[a]n organizational unit of
[DHS] which operates a Statewide toll-free system for receiving reports of suspected child abuse
established under [S]ection 6332 of the [Child Protective Services Law, 23 Pa.C.S. § 6332,]
(relating to establishment of Statewide toll-free telephone number), refers the reports for
investigation and maintains the reports in the appropriate file. . . .” 55 Pa. Code § 3490.4.
6
The issue before BHA in an expunction hearing is whether the indicated
report of child abuse against a perpetrator should be maintained on the ChildLine
Registry. The Pennsylvania Supreme Court has explained:
A report of child abuse is characterized as an ‘indicated
report’ if an investigation by the county agency or [DHS]
determines that ‘substantial evidence’ of the alleged abuse
exists based on available medical evidence, the child
protective service investigation, or an admission of the facts
of abuse by the perpetrator. 23 Pa.C.S. § 6303. . . . The
[Section 6331 of the Child Protective Services Law (Law)]
requires [DHS] to maintain a statewide registry consisting
of summaries of indicated reports of child abuse. 23
Pa.C.S. § 6331. The burden is on the appropriate county
agency to show that the indicated report of abuse is
accurate and being maintained in a manner consistent
with the [] Law. See 23 Pa.C.S. §§ 6303, 6341(c). After a
summary of an indicated report is entered in the [ChildLine]
Registry, the perpetrator is notified that his or her ability to
obtain employment in a child-care facility or program or a
public or private school may be adversely affected by the
entry of the report in the Registry. 23 Pa.C.S. § 6338(a).
When an individual seeks employment that would bring
him or her in direct contact with children or in which there
is a significant likelihood of regular contact with children,
or when a person resides in a ‘family day-care home,’ that
person must provide a certification, obtained within the
preceding year from [DHS], of whether he or she is named
in the [ChildLine] Registry as a perpetrator in an indicated
report of child abuse. 23 Pa.C.S. §§ 6344(a), (b)(2),
6344.1(a), (b), 6344.2.
G.V. v. Dep’t of Pub. Welfare, 91 A.3d 667, 671 (Pa. 2014) (emphasis added). Thus,
the relevant appeal this Court is to consider is J.C.’s appeal as to whether he should
be named in the ChildLine Registry as a perpetrator in an indicated report of child
abuse. Further,
[t]his Court has clarified that ‘[t]he Law seeks to protect
children from abuse, not to punish alleged abusers.’ L.W.B.
[v. Sosnowski], 543 A.2d [1241,] 1242 [(Pa. Cmwlth.
1988)] (footnote omitted). Specifically,
7
the purpose of the [Law] is to bring about quick and
effective reporting of suspected child abuse so as to
serve as a means for providing protective services
competently and to prevent further abuse of the
children while providing rehabilitative services for
them and the parents. 23 Pa.C.S. § 6302(b). To the
degree possible, the Law also is geared to the
stabilization of the family where appropriate. The
Law does not provide for legal determinations of
abuse; it is mainly a vehicle for reporting abuse
and bringing quickly into play those services
(including court hearings) available through
county protective service facilities for the care of
the child.
In the Interest of J.R.W., . . . 631 A.2d 1019, 1021-22 ([Pa.
Super.] 1993).
V.S. v. Dep’t of Pub. Welfare, 131 A.3d 523, 531 (Pa. Cmwlth. 2015) (emphasis
added). At this point in the proceedings, the abuse was already reported and services
including court hearings have already been made available. As such, it is J.C., not
H.M. who is directly connected to the outcome of the underlying appeal.
Accordingly, BHA did not violate SPO Rule 1 by denying the Motion.
Moreover, Section 35.28(a) of GRAPP provides:
Persons. A petition to intervene may be filed by a person
claiming a right to intervene or an interest of such nature
that intervention is necessary or appropriate to the
administration of the statute under which the proceeding is
brought. The right or interest may be one of the following:
(1) A right conferred by statute of the United States or of
this Commonwealth.
(2) An interest which may be directly affected and which
is not adequately represented by existing parties, and as
to which petitioners may be bound by the action of the
agency in the proceeding. . . .
(3) Other interest of such nature that participation of the
petitioner may be in the public interest.
8
1 Pa. Code § 35.28(a) (emphasis added). Here, H.M.’s G.A.L. has no right to
intervene “conferred by statute,” nor has he stated an interest such that his
participation “is in the public interest.” 1 Pa. Code § 35.28. While an important issue
to H.M., whether H.M.’s G.A.L. is permitted to intervene is not of public importance,
since DHS will be arguing in favor of maintaining J.C.’s name on the ChildLine
Registry. Thus, the issue before the Court is whether H.M.’s G.A.L.’s interest is an
interest directly affected, not represented and potentially bound by the action.
As stated above, the issue in the “action” is whether J.C.’s name should
be maintained on the ChildLine Registry. Id. Further, this Court has held that “the
interests of the children [in expungement hearings] [are] protected at the
administrative hearing because the interests of the children [are] the same as that of
[DHS]—to have the report of child abuse maintained.” Dauphin Cty. Social Support
Servs. for Children & Youth Servs. v. Dep’t of Pub. Welfare, 543 A.2d 607 (Pa.
Cmwlth. 1988). Consequently, this Court cannot hold that H.M.’s G.A.L.’s interest is
“[a]n interest which may be directly affected and which is not adequately represented
by existing parties, and as to which petitioners may be bound by the action of the
agency in the proceeding.” 1 Pa. Code § 35.28. Accordingly, BHA properly
concluded that H.M.’s G.A.L. did not qualify as an intervenor under Section 35.28(a)
of GRAPP.
For all of the above reasons, the BHA’s Order is affirmed.
__________________________
ANNE E. COVEY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Support Center for Child Advocates : CASE SEALED
as G.A.L. for the Minor Child H.M. :
and H.M., the Minor Child, :
Petitioners :
:
v. :
:
Department of Human Services, : No. 723 C.D. 2017
Respondent :
ORDER
AND NOW, this 22nd day of June, 2018, the Commonwealth of
Pennsylvania, Department of Human Services, Bureau of Hearings and Appeals’ May
11, 2017 order is affirmed.
___________________________
ANNE E. COVEY, Judge