D.C. v. DHS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
D.C., :
Petitioner :
: CASE SEALED
v. : No. 2336 C.D. 2014
: Argued: April 13, 2016
Department of Human Services, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: November 23, 2016
D.C., who has been named as a perpetrator of child abuse in an
indicated report, petitions for review of an adjudication of the Department of
Human Services’ Bureau of Hearings and Appeals that denied his request for a
nunc pro tunc hearing.1 In doing so, the Bureau adopted the recommendation of its
Administrative Law Judge (ALJ), who concluded that D.C.’s delay in filing his
appeal was not caused by a breakdown in the administrative process or non-
negligent reasons beyond D.C.’s control. D.C. contends, however, that the
Department’s equivocal and confusing notice of how to get a hearing established a
1
“An ‘indicated report’ of child abuse is made by the investigating agency when it determines
that substantial evidence of the alleged abuse exists based on any of the following: available
medical records, the child protective services investigation, or an admission of abuse by the
perpetrator.” C.S. v. Department of Public Welfare, 879 A.2d 1274, 1277 n.4 (Pa. Cmwlth.
2005); see Section 6303 of the Child Protective Services Law, 23 Pa. C.S. §6303.
breakdown in the administrative process and, thus, entitles him to a nunc pro tunc
appeal. For the reasons that follow, we reverse.
Background
On February 12, 2014, D.C. was identified as a perpetrator of child
abuse by Washington County Children and Youth Services (CYS). On April 2,
2014, CYS filed an indicated report of child abuse with the Department’s
ChildLine Registry. On June 6, 2014, the Department notified D.C. it had received
and was maintaining CYS’s indicated report on its ChildLine Registry. The
Department’s notice stated, in relevant part, as follows:
If you disagree with the decision that you committed child
abuse or student abuse, you have the right to a review of that
decision. You must respond within 45 days of the mailing
date listed at the top of this notice.
To ask for this review, you can use the enclosed form and check
off the first box on the form. After the review, you will get
another letter telling you the decision. If you lose at this level,
the letter will tell you how to ask for a hearing. If you follow
the instructions in the letter, you have the right to a hearing.
OR
You can skip the review described above and ask the Bureau of
Hearings and Appeals for a hearing now. To ask for a hearing,
you can use the enclosed form and check off the second box on
the form.
YOUR REQUEST MUST BE POSTMARKED WITHIN 45
DAYS FROM THE MAILING DATE ON THIS NOTICE.
IF YOUR REQUEST IS LATE, YOU MAY BE ON THE
CHILD ABUSE REGISTER FOREVER.
This is a very serious matter. You may wish to contact a
lawyer to represent you.
2
Reproduced Record at 9 (R.R. ___) (emphasis in original). At the time D.C.
received this notice, he was being investigated by the Pennsylvania State Police
and was under threat of criminal charges for the incident described in the indicated
report. Because D.C. could not afford to engage counsel on both matters, he chose
to focus his resources on the criminal matter and did not respond to the
Department’s notice within 45 days.
On October 7, 2014, after he learned that he would not be facing
criminal charges, D.C. requested a hearing on the indicated report. The ALJ
conducted a telephonic hearing to consider whether D.C.’s untimely appeal should
be accepted nunc pro tunc. On November 21, 2014, the ALJ recommended that
D.C.’s appeal be dismissed. The ALJ acknowledged that the Department’s notice
was presented in equivocal terms, i.e., “If your request is late, you may be on the
child abuse register forever.” R.R. 9 (emphasis omitted). However, the ALJ
reasoned that this equivocation was justified because the Department retains the
name of a perpetrator “forever” only where the perpetrator’s date of birth or Social
Security number is known. See Section 6338(c) of the Child Protective Services
Law, 23 Pa. C.S. §6338(c).2 Where that information is not known to the
Department, the indicated report will be expunged even if the perpetrator has never
requested it. Id. The ALJ found that the Department’s use of the subjunctive
“may” in the notice covered the exceptional circumstance where a report is purged
2
Section 6338(c) states:
(c) Retention of information.—The Statewide database shall indefinitely retain
the names of perpetrators of child abuse and school employees who are subjects
of founded or indicated reports only if the individual’s Social Security number or
date of birth is known to the department. The entry in the Statewide database
shall not include identifying information regarding other subjects of the report.
23 Pa. C.S. §6338(c) (emphasis added).
3
because the Department does not know the perpetrator’s date of birth or Social
Security number.
The Bureau adopted the ALJ’s recommended adjudication to dismiss
D.C.’s appeal. D.C. requested reconsideration from the Secretary of Human
Services, which was denied on December 24, 2014. D.C. then petitioned for this
Court’s review.
Appeal
On appeal,3 D.C. contends that he was entitled to challenge the
indicated report nunc pro tunc for two reasons. First, D.C. argues that the
Department’s notice was inadequate because it did not state that a hearing request
would not be accepted after 45 days, and this inadequacy in the notice constituted a
breakdown in the administrative process. Second, D.C. asserts that the threat of
criminal charges was a non-negligent circumstance beyond his control and justified
his waiting until the State Police decided not to file charges before requesting a
hearing. The Department counters that D.C. lacked good cause for delaying his
appeal.
Standard for Nunc Pro Tunc Appeal
This Court has established that “[a]n appeal nunc pro tunc may be
allowed where the delay in filing the appeal was caused by extraordinary
circumstances involving fraud or some breakdown in the administrative process, or
non-negligent circumstances related to the appellant, his or her counsel or a third
3
This Court’s review determines whether the appellant’s constitutional rights have been
violated, an error of law was committed, or necessary findings of fact were unsupported by
substantial evidence. G.M. v. Department of Public Welfare, 957 A.2d 377, 379 n.1 (Pa.
Cmwlth. 2008).
4
party.” H.D. v. Department of Public Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth.
2000). “Inadequate notice is exactly the type of breakdown in the administrative
process that satisfies the standard for a nunc pro tunc appeal.” Beaver County
Children & Youth Services v. Department of Public Welfare, 68 A.3d 44, 48 (Pa.
Cmwlth. 2013). The notice informing an alleged perpetrator of abuse of his right
to appeal must “provide to the recipient information essential to calculating the
appeal period.” Julia Ribaudo Senior Services v. Department of Public Welfare,
969 A.2d 1184, 1188 (Pa. 2009). Stated otherwise, an inadequate notice to an
individual named as a perpetrator of child abuse in an indicated report provides
grounds for a nunc pro tunc appeal. In any nunc pro tunc appeal, the petitioner
must also show that: (1) he filed his appeal shortly after learning of and having the
opportunity to address his untimeliness; (2) the untimeliness is of a short duration;
and (3) the appellee will not be prejudiced by the delay. H.D., 751 A.2d at 1219.
I. The Child Protective Services Law
We begin with a review of the standards and procedures of the Child
Protective Services Law, 23 Pa. C.S. §§6301 – 6386.4 A central feature of the
statutory scheme is that indicated reports are entered into the ChildLine Registry
on the basis of an investigation by the County or the Department and not on the
basis of an evidentiary hearing.
Section 6312 of the Child Protective Services Law invites “[a]ny
person” with “reasonable cause to suspect” child abuse to make a report of
4
The statute has gone through several iterations. At one point, there was no deadline for
requesting a hearing to have an indicated report of child abuse removed from the ChildLine
Registry. See K.S. v. Department of Public Welfare, 564 A.2d 561, 564 (Pa. Cmwlth. 1989).
This review considers the most recent version of the Child Protective Services Law.
5
suspected child abuse. 23 Pa. C.S. §6312.5 A CYS caseworker then investigates.
At a minimum, the caseworker must interview the victim and perpetrator, if the
perpetrator can be found. 23 Pa. C.S. §6368(d)(4).6 The regulation encourages a
broader investigation. 55 Pa. Code §3490.55(d).7 Regardless of the scope of the
investigation, time is of the essence because CYS must “determine within 60 days
of the date of the initial report of child abuse that the report is a founded report, an
5
Additionally, Section 6311 of the Child Protective Services Law requires certain adult
individuals, designated as mandated reporters, to report suspected child abuse if they have
“reasonable cause to suspect that a child is a victim of child abuse.” 23 Pa. C.S. §6311(a).
Examples of mandated reporters are health care workers, school employees, clergy, law
enforcement officers and foster parents. See 23 Pa. C.S. §6311(a)(1)-(16).
6
Section 6368(d)(4) of the Child Protective Services Law states:
(d) Investigative actions. – During the investigation, all of the following shall
apply:
***
(4) The investigation shall include interviews with all subjects of the report,
including the alleged perpetrator. If a subject of the report is not able to be
interviewed or cannot be located, the county agency shall document its reasonable
efforts to interview the subject and the reasons for its inability to interview the
subject. The interview may be reasonably delayed if notice of the investigation
has been delayed pursuant to subsection (m).
23 Pa. C.S. §6368(d)(4).
7
The regulation states:
(d) When conducting its investigation, the county agency shall, if possible,
conduct an interview with those persons who are known to have or may
reasonably be expected to have, information relating to the incident of suspected
child abuse including, but not limited to, all of the following:
(1) The child, if appropriate.
(2) The child’s parents or other person responsible for the child’s welfare.
(3) The alleged perpetrator of the suspected child abuse.
(4) The reporter of the suspected child abuse, if known.
(5) Eyewitnesses to the suspected child abuse.
(6) Neighbors and relatives who may have knowledge of the abuse.
(7) Day care provider or school personnel, or both, if appropriate.
55 Pa. Code §3490.55(d).
6
indicated report or an unfounded report[.]” 23 Pa. C.S. §6337(b). 8 The filing of an
indicated report of abuse is approved by a CYS administrator or the Secretary of
Human Services, depending on which agency initiated the investigation. 23 Pa.
C.S. §6368(e). Notice of the filing must be given to the perpetrator about the
effect of the report and his right to challenge it. 23 Pa. C.S. §6368(f).9
Although reports are not generally available to the public, 23 Pa. C.S.
§6339, the Child Protective Services Law gives numerous persons access to
indicated reports, including physicians and hospital administrators who treat
8
The 60-day deadline may be stayed where “court action has been initiated and is responsible for
the delay.” 23 Pa. C.S. §6337(b).
9
Section 6368(f) states:
Immediately upon conclusion of the child abuse investigation, the county agency
shall provide the results of its investigation to the department in a manner
prescribed by the department. Within three business days of receipt of the results
of the investigation from the county agency, the department shall send notice of
the final determination to the subjects of the report, other than the abused child.
The determination shall include the following information:
(1) The status of the report.
(2) The perpetrator’s right to request the secretary to amend or expunge the
report.
(3) The right of the subjects of the report to services from the county agency.
(4) The effect of the report upon future employment opportunities involving
children.
(5) The fact that the name of the perpetrator, the nature of the abuse and the
final status of a founded or indicated report will be entered in the Statewide
database, if the perpetrator’s Social Security number or date of birth are
known.
(6) The perpetrator’s right to file an appeal of an indicated finding of abuse
pursuant to section 6341 (relating to amendment or expunction of
information) within 90 days of the date of notice.
(7) The perpetrator’s right to a fair hearing on the merits on an appeal of an
indicated report filed pursuant to section 6341.
(8) The burden on the investigative agency to prove its case by substantial
evidence in an appeal of an indicated report.
23 Pa. C.S. §6368(f).
7
children, a guardian ad litem, agency and court personnel, federal auditors, law
enforcement officials and designated county officials. 23 Pa. C.S. §6340(a).
Where the alleged perpetrator works in a school or child-care facility, his employer
must “receive notice of a pending allegation and the final status of the report
following the investigation.” 23 Pa. C.S. §6340(a)(13)(i). Persons who wish even
to volunteer in an activity involving children must provide “[a] certification from
the department as to whether the applicant is named in the Statewide database as
the alleged perpetrator in a pending child abuse investigation or as the perpetrator
of a founded report or an indicated report.”10 23 Pa. C.S. §6344(b)(2). A person
responsible for employment decisions must obtain such certification under penalty
of law. 23 Pa. C.S. §6344(b.2).11
As more fully discussed below, the Department must notify the
perpetrator that he, or she, has been identified as a child abuser on the ChildLine
Registry. See 23 Pa. C.S. §6338(a). Because the indicated report goes into the
registry without a hearing, the perpetrator does not know the evidence on which
the determination was made. The indicated report itself contains only a brief
10
The reporting requirements in Section 6344 apply to employees and contractors of child-care
services; foster parents; prospective adoptive parents; self-employed providers of child-care
services; individuals 14 years of age or older applying for or holding a paid position with a child-
care program, activity or service who are responsible for a child’s welfare or have direct contact
with children; and school employees. 23 Pa. C.S. §6344(a), (a.1).
11
Section 6344(b.2) states:
An employer, administrator, supervisor or other person responsible for
employment decisions shall require an applicant to submit the required
documentation set forth in this chapter or as required in section 6344.4. An
employer, administrator, supervisor or other person responsible for employment
decisions that intentionally fails to require an applicant to submit the required
documentation before the applicant’s hiring or upon recertification commits a
misdemeanor of the third degree.
23 Pa. C.S. §6344(b.2) (emphasis added).
8
description of abuse. In the meantime, the perpetrator suffers a loss to reputation,
and perhaps employment, as a result of the report. The statute provides a post-
deprivation hearing, but it is not scheduled automatically. It must be requested.
The lack of a pre-deprivation hearing in the Child Protective Services
Law raises a serious due process question. The Missouri Supreme Court has
declared Missouri’s version of our Child Protection Services Law unconstitutional
because it did not provide a pre-deprivation hearing.
In Jamison v. State of Missouri, Department of Social Services, 218
S.W.3d 399 (Mo. 2007), an anonymous caller to the state’s child abuse and neglect
hotline alleged that Mildred Jamison and Betty Dotson had failed to supervise the
children in their care at a residential child-care facility.12 The Missouri
Department of Social Services, Division of Family Services, investigated and
entered the names of both women on the state’s child abuse registry. Sometime
later, the Division of Family Services informed Jamison and Dotson that it
confirmed their listing and advised that they could seek further review by the Child
Abuse and Neglect Review Board. They did so, and the board held a hearing
several months later, which culminated in their names remaining in the Central
Registry. The women sought de novo judicial review with the county circuit court.
Two years later, the circuit court held that the statute was unconstitutional under
the United States and Missouri Constitutions because it infringed on Jamison’s and
Dotson’s liberty interest in their reputation, nurses’ licenses and ability to seek
employment in their chosen profession without first giving them “a meaningful
hearing at a meaningful time.” Id. at 404.
12
Jamison, a registered nurse, was the founder and chief executive officer of the facility.
Dotson, a licensed practical nurse, was an employee.
9
On appeal, the Missouri Supreme Court affirmed. It began with a
review of federal procedural due process analysis, which first determines whether
the plaintiff has been deprived of a constitutionally protected liberty or property
interest. Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460
(1989). If so, the court then examines whether the procedures attendant to the
deprivation of the protected interest are constitutionally sufficient. Id. Three
factors are considered in determining what procedures are constitutionally
sufficient:
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The United States Supreme Court
has consistently held that “some form of hearing is required before an individual is
finally deprived of a property interest [because] [t]he ‘right to be heard before
being condemned to suffer grievous loss of any kind, even though it may not
involve the stigma and hardships of a criminal conviction, is a principle basic to
our society.’” Id. at 333 (citations omitted) (quoting Joint Anti-Fascist Refugee
Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring)).
Applying these principles, the Missouri Supreme Court first
concluded that Jamison and Dotson had been deprived of a liberty interest under
the so-called “stigma plus” test. Paul v. Davis, 424 U.S. 693, 701 (1976). For
stigmatization to implicate constitutional rights, the plaintiff must show that the
state action affects some tangible liberty or property interest. Id. The Court found
10
“stigma” resulted from being listed on a child abuse registry that was available to
employers and agencies involved with care or custody of children. The registry
listing precluded Jamison and Dotson from holding employment in their chosen
profession. This satisfied the “stigma plus” test.
The Jamison court then considered the sufficiency of the post-
deprivation hearing procedures. The court was troubled by the facts that an
individual is listed in the registry as a child abuser based solely on an investigator’s
determination; is not given formal notice of the charges prior to being listed; and
has no opportunity to respond to the investigator’s determination until the hearing.
The court concluded that “[t]he investigation alone, even after review by the local
director, is plainly insufficient to support the loss of liberty that accompanies
listing in the Central Registry. … ‘No matter how elaborate, an investigation does
not replace a hearing.’” Jamison, 218 S.W.3d at 408-09 (quoting Winegar v. Des
Moines Independent Community School District, 20 F.3d 895, 901 (8th Cir. 1994)).
The Missouri Supreme Court emphasized the risk of an erroneous deprivation of
one’s liberty interest, noting that the Board reversed the Division in approximately
one-third of the appeals. Finally, the Jamison court criticized the stately pace by
which the post-deprivation process moved. Taking all these factors into
consideration, the court held that a pre-deprivation hearing was required.13
Pennsylvania’s Child Protective Services Law raises the same issues
as Jamison. Notably, the analysis on deprivation of a constitutionally protected
13
The court rejected the Division’s argument that a post-deprivation hearing was sufficient
because of the need to protect the victims of child abuse and other children with whom a
perpetrator might come into contact. The court posited that the state’s significant interest in
protecting children from abuse and neglect could be fulfilled by other means such as by the
criminal justice system and the Division’s authority to physically remove children from
dangerous environments.
11
liberty interest is more straightforward because in Pennsylvania reputation is
expressly protected in Sections 1 and 11 of Article I of the Pennsylvania
Constitution.14 Citing Sections 1 and 11, our Supreme Court has held that
reputation is “a fundamental interest which cannot be abridged without compliance
with constitutional standards of due process and equal protection.” R. v.
Department of Public Welfare, 636 A.2d 142, 149 (Pa. 1994). In Pennsylvania,
therefore, reputational harm alone is an affront to one’s constitutional rights; the
“stigma plus” analysis is not necessary.
The Missouri Supreme Court’s Mathews analysis on the sufficiency of
the post-deprivation procedure is also relevant because Pennsylvania’s Child
Protective Services Law, like its Missouri counterpart, allows an alleged
perpetrator’s name to be placed on the ChildLine Registry based solely on a
caseworker’s investigation, where it remains unless and until there is an
adjudication that it should be removed. Further, there is no post-deprivation
hearing unless it is requested by the perpetrator. In short, the “right” to the post-
deprivation hearing is lost if not timely requested by the alleged perpetrator.
14
Article I, Section 1 states:
All men are born equally free and independent, and have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.
PA. CONST. art. I, §1. Article I, Section 11 states:
All courts shall be open; and every man for an injury done him in his lands,
goods, person or reputation shall have remedy by due course of law, and right and
justice administered without sale, denial or delay. Suits may be brought against
the Commonwealth in such manner, in such courts and in such cases as the
Legislature may by law direct.
PA. CONST. art I, §11.
12
The post-deprivation process provided in Pennsylvania’s Child
Protective Services Law has already been criticized in published Pennsylvania
appellate opinions. In G.V. v. Department of Public Welfare, 91 A.3d 667, 674 n.1
(Pa. 2014) (Saylor, J., concurring), Justice Saylor, now Chief Justice, criticized
“the entry of an individual’s name in the ChildLine registry prior to any judicial or
quasi-judicial assessment,” noting that that practice “is in tension with the
constitutional preference for pre-deprivation process.” Justice Saylor opined that
“whether the Pennsylvania statute reflects adequate process remains seriously in
question.” Id. at 676. In this regard, Justice Saylor quoted a dissenting opinion by
Senior Judge Friedman that bears repeating here for its cogent explanation of the
due process issue:
It shocks my conscience that the [Child Protective Services]
Law would allow the investigating caseworker to render a de
facto adjudication that is adverse to an individual’s reputation
without an independent adjudicator having had the opportunity
to consider the investigator’s evidence of child abuse in
accordance with established procedures of due process. This is
particularly so because unless, or until, the alleged abuser
timely requests an expunction hearing, the names of the falsely
accused may nevertheless be released to physicians, child
advocates, courts, the General Assembly, the Attorney General,
federal officials, county officials, law enforcement officials, the
district attorney and others. Thus, by the time [the Department]
orders the expunction of an indicated report, a person’s
reputation already may be tarnished erroneously.
K.J. v. Department of Public Welfare, 767 A.2d 609, 616 n.9 (Pa. Cmwlth. 2001)
(Friedman, J., dissenting) (emphasis in original) (holding that a due process
challenge to the Child Protective Services Law had been waived).
Numerous courts, following the lead of the Missouri Supreme Court,
have held that due process requires a pre-deprivation hearing before a citizen can
13
be placed on a government-maintained list of child abusers.15 Simply, the question
of whether the process available to an alleged perpetrator under the current version
of the Child Protective Services Law satisfies constitutional standards has yet to be
squarely addressed. It is not an issue in this case.
The issue in this case is the adequacy of the notice of the post-
deprivation hearing available under the Child Protective Services Law, which
hearing must be timely requested or forever lost. The need for a clear notice to the
named perpetrator is critical because the deprivation has already taken place and
merely on the strength of an investigation. It is in this context that we consider
D.C.’s claim that the Department’s notice was confusing and, thus, he is entitled to
a post-deprivation hearing under established nunc pro tunc principles.
II. Equivocal Language in Notice
D.C. contends that the Department’s notice was ambiguous because it
did not state that a hearing request received later than 45 days would be rejected
but, rather, implied the opposite. The statement that “[i]f your request is late, you
may be on the child abuse register forever” suggested that the Department would
15
See, e.g., Humphries v. County of Los Angeles, 554 F.3d 1170 (9th Cir. 2008), rev’d on other
grounds, Los Angeles County, California v. Humphries, 562 U.S. 29 (2010); Dupuy v. Samuels,
397 F.3d 493 (7th Cir. 2005); Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994); In re W.B.M., 690
S.E.2d 41 (N.C. Ct. App. 2010); Cavaretta v. Department of Children and Family Services, 660
N.E.2d 250 (Ill. App. Ct. 1996). But see, e.g., Anonymous v. Peters, 730 N.Y.S.2d 689 (N.Y.
Sup. Ct. 2001) (post-deprivation hearing sufficient to satisfy due process).
In K.S. v. Department of Public Welfare, 564 A.2d 561, 564 (Pa. Cmwlth. 1989), this Court
considered whether a citizen was deprived of due process when her name was listed as a
“perpetrator of child abuse in the central register without her having received notice or an
opportunity to be heard.” K.S. rejected, summarily, the due process claim. However, K.S.
involved a version of the statute that allowed for a perpetrator to request removal from the list at
any time; thereafter, a 1994 amendment inserted a 45-day time limit to a perpetrator’s appeal.
14
accept an appeal filed after 45 days. R.R. 9 (emphasis added). The Department
counters that it matters not that its notice was ambiguous because D.C.’s reason for
not appealing within 45 days was lack of funds to pay his attorney for both the
criminal and administrative proceedings.
In support of his position, D.C. relies on C.S. v. Department of Public
Welfare, 879 A.2d 1274 (Pa. Cmwlth. 2005). There, the Department notified the
named perpetrator, C.S., that he was the subject of an indicated report of child
abuse. The notice stated that he had 45 days to request the Department to amend
or destroy the report. The notice further stated, “If this request is denied,
perpetrators may have a right to a hearing.” Id. at 1277 (emphasis in original).
C.S. did not appeal within the 45-day window, but attempted to do so six years
later. The Department refused to consider his appeal as untimely. This Court
reversed. We reasoned that the Department’s use of the word “may” was
equivocal, suggesting that even if a perpetrator appealed during the 45-day
window, he would not necessarily receive a hearing. Accordingly, we granted C.S.
the right to appeal the indicated report nunc pro tunc.
Here, the notice to D.C. was similarly equivocal. The notice stated
that “you have the right to a hearing.” R.R. 9. However, it did not say, simply and
directly, that if D.C. did not request a hearing within 45 days of the notice, the
hearing would not take place. Ever. Rather, the notice advised D.C. that “you may
be on the child abuse register forever.” R.R. 9 (emphasis added). By prefacing
this statement with the conditional “[i]f your request is late,” the notice suggested
that submissions after 45 days might be accepted. However, the Department’s
15
actual position is that it will not accept hearing requests filed more than 45 days
after the date of the Department’s notice.16
In addition, the Department’s notice to D.C. departs from the actual
statutory language that was in effect at all times relevant to this appeal. The
version of Section 6338(a) of the Child Protective Services Law in effect when
D.C. was named as a perpetrator stated as follows:
(a) General Rule. – When a report of suspected child abuse or a
report under Subchapter C.1 (related to students in public and
private schools) is determined by the appropriate county agency
to be a founded report or an indicated report, the information
concerning that report of suspected child abuse shall be
expunged immediately from the pending complaint file, and an
appropriate entry shall be made in the Statewide central
register. Notice of the determination must be given to the
16
Notably, after D.C. filed his nunc pro tunc appeal, the Child Protective Services Law was
amended effective December 31, 2014. The amendment provides another avenue to challenge a
listing on the ChildLine Registry. The statute now provides, in relevant part:
At any time, the secretary may amend or expunge any record in the Statewide
database under this chapter upon good cause shown and notice to the appropriate
subjects of the report. The request shall be in writing in a manner prescribed by
the department. For purposes of this paragraph, good cause shall include, but is
not limited to, the following:
(i) Newly discovered evidence that an indicated report of child
abuse is inaccurate or is being maintained in a manner inconsistent
with this chapter.
(ii) A determination that the perpetrator in an indicated report of
abuse no longer represents a risk of child abuse and that no
significant public purpose would be served by the continued listing
of the person as a perpetrator in the Statewide database.
23 Pa. C.S. §6341(a)(1) (emphasis added). It also gives “[a]ny person named as a perpetrator”
90 days to “request an administrative review by, or appeal and request a hearing before, the
secretary to amend or expunge an indicated report.” 23 Pa. C.S. §6341(a)(2).
Section 6341(a)(1) applies to the routine challenge to an indicated report. The notice must
present the essential information about the hearing right in clear terms. Julia Ribaudo Senior
Services, 969 A.2d at 1188.
16
subjects of the report, other than the abused child, and to the
parent or guardian of the affected child or student along with an
explanation of the implications of the determination. Notice
given to perpetrators of child abuse and to school employees
who are subjects of indicated reports for school employees or
founded reports for school employees shall include notice that
their ability to obtain employment in a child-care facility or
program or a public or private school may be adversely
affected by entry of the report in the Statewide central register.
The notice shall also inform the recipient of his right, within 45
days after being notified of the status of the report, to appeal an
indicated report, and his right to a hearing if the request is
denied.
23 Pa. C.S. §6338(a), as stated in the prior Act of Dec. 16, 1994, P.L. 1292
(emphasis added).
The notice to D.C. stated that if “you disagree with the decision that
you committed child abuse,” you have “the right to a review of that decision.”
R.R. 9. Then, if “you lose at this level ... you have the right to a hearing.” Id.
This language did not conform to the applicable provisions of the Child Protective
Services Law.
Section 6338(a), in the version applicable to D.C., required the
Department to notify a perpetrator of “his right, within 45 days after being notified
of the status of the report, to appeal an indicated report, and his right to a hearing
if the request is denied.” 23 Pa. C.S. §6338(a) (emphasis added). Section
6341(a)(2) of the Law, then in effect, stated that a perpetrator may “request the
secretary to amend or expunge an indicated report,” 23 Pa. C.S. §6341(a)(2)
(emphasis added),17 and if denied, the perpetrator “shall have the right to a hearing
17
At the time of the Department’s notice to D.C., the statute read, in relevant part:
Any person named as a perpetrator, and any school employee named, in an
indicated report of child abuse may, within 45 days of being notified of the status
(Footnote continued on the next page . . .)
17
before the secretary.” 23 Pa. C.S. §6341(c) (emphasis added). In short, the
applicable statute allowed perpetrators to appeal an indicated report, 23 Pa. C.S.
§6338(a), or request that it be amended or expunged, 23 Pa. C.S. §6341(a)(2).
Neither statutory provision used the word “review.” A named perpetrator who
compared the notice used here to the statute would be confused.
The Department’s notice to D.C. was equivocal on whether late
“requests” would be accepted, and it used language that departed from the words
of the statute. Most critically, it was confusing. The notice stated “you can” use
the form to request a review “if you disagree with the report.” It then said that
“you must respond within 45 days,” without specifying the manner of this
response. This suggests one can phone in a “response.” The all caps bolded
warning about the 45-day deadline did not specify whether the “request” that
“must be postmarked” applied to the Department’s internal “review” or the request
for a hearing before the Bureau of Hearings and Appeals, or both. A notice that
does not meet the “exacting requirements of 23 Pa. C.S. §6338(a)” constitutes a
breakdown in the administrative process. C.S., 879 A.2d at 1280.
(continued . . .)
of the report, request the secretary to amend or expunge an indicated report on
the grounds that it is inaccurate or it is being maintained in a manner inconsistent
with this chapter.
23 Pa. C.S. §6341(a)(2), as stated in the prior Act of Dec. 16, 1994, P.L. 1292 (emphasis added).
The statute was amended effective December 31, 2014, inter alia, to provide for an
administrative review process in addition to the appeal and hearing process, and expand the
deadline for either avenue to 90 days. This change in the law highlights the arbitrariness of the
45-day deadline to which D.C. was subjected. There is nothing “magical” about 45 days.
18
The Department’s notice to D.C. fell short of achieving the necessary
clarity. The result would have been otherwise had it read as follows:18
If you want to remove your name from the Child Abuse
Register, you have two options.
(1) You may appeal to the Department of Human Services.
Use the enclosed form and check off the first box on the
form.
If the Department, after appeal, refuses to remove your
name from the Child Abuse Register, then you will have
the right to a hearing.
OR
(2) You can skip the appeal and ask the Bureau of Hearings
and Appeals for a hearing now. Use the enclosed form
and check off the second box on the form.
In either case, your appeal or your request for a hearing must be
postmarked within 45 days of the mailing date at the top of
this notice.
18
This is a suggestion and not a directive. As noted above, the form provided to D.C., which
advised him he could seek administrative “review” of the indicated report or request a hearing,
did not accurately reflect Section 6338(a) of the Child Protective Services Law at the time the
form was issued. The 2014 amendments, which added an administrative review option, were
enacted on December 18, 2013, but did not take effect until December 31, 2014. The
Department presumably anticipated the two-option process when it drafted the version of the
form sent to D.C. in June 2014.
In any event, the Department’s notice needs to alert, and even alarm, the alleged perpetrator
of the risk of not appealing. It also has to tell the alleged perpetrator how to appeal. It is not
necessary to cover all the nuances of the Child Protective Services Law. Here, the ALJ reasoned
that the equivocation in the notice to D.C. was satisfactory because unless the Department knows
the perpetrator’s date of birth or Social Security number, the perpetrator might not be in the
ChildLine Registry “forever.” This nuanced detail, of limited significance, did not justify the use
of “may.”
19
WARNING: IF YOUR REQUEST FOR AN APPEAL OR
A HEARING IS LATE, YOUR NAME WILL STAY ON
THE CHILD ABUSE REGISTER FOREVER.
This is a very serious matter. You may wish to contact a
lawyer to represent you.
The Department contends that, even if its notice was defective, it is
irrelevant because D.C. chose to wait to appeal due to his inability to afford
counsel. An inadequate notice provides grounds for a nunc pro tunc appeal. C.S.,
879 A.2d at 1280. The subjective basis for the alleged perpetrator’s decision not to
file within the deadline is irrelevant because it cannot be known how an accurately
worded notice would have affected his actions. For example, if D.C. had been
aware of the consequences of not appealing within 45 days, he may have allocated
his financial resources differently. Accordingly, we reject the Department’s
argument.
The Department’s notice to D.C. was equivocal and confusing. These
defects in his notice constituted a breakdown in the administrative process that
warrants the grant of a nunc pro tunc appeal. Further, the untimeliness was of
short duration, and the Department has neither asserted nor shown any prejudice by
the delay. H.D., 751 A.2d at 1219. Accordingly, D.C. has met the standards for a
nunc pro tunc appeal.
Conclusion
We hold that a person whose name is entered into the ChildLine
Registry as a perpetrator of child abuse is entitled to a clear and unequivocal notice
of the post-deprivation hearing as a matter of due process. The Department’s
notice to D.C. was confusing and equivocal, which constitutes a breakdown in the
administrative process. Accordingly, D.C. is entitled to proceed with his
20
administrative appeal nunc pro tunc. The Department’s adjudication is reversed,
and the matter is remanded for further proceedings consistent with this opinion.19
_____________________________________
MARY HANNAH LEAVITT, President Judge
Judge Covey dissents.
19
In light of our disposition, we need not consider D.C.’s second contention, i.e., that the threat
of criminal charges for the same incident created a non-negligent circumstance beyond his
control that warranted a delay in filing his administrative appeal.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
D.C., :
Petitioner :
: CASE SEALED
v. : No. 2336 C.D. 2014
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 23rd day of November, 2016, the order of the
Department of Human Services, Bureau of Hearings and Appeals, dated November
24, 2014, in the above-captioned matter is hereby REVERSED and this matter is
REMANDED for further proceedings consistent with the Court’s opinion.
Jurisdiction is relinquished.
_____________________________________
MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
D.C., :
Petitioner :
: CASE SEALED
v. : No. 2336 C.D. 2014
: Argued: April 13, 2016
Department of Human Services, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
DISSENTING OPINION
BY JUDGE BROBSON FILED: November 23, 2016
I agree with and embrace the important legal principles set forth in the
bulk of the majority’s opinion, particularly the holding that “a person whose name
is entered into the ChildLine Registry as a perpetrator of child abuse is entitled to a
clear and unequivocal notice of the post-deprivation hearing as a matter of due
process.” (Maj. Op. at 20.) I dissent, however, because I believe that the language
in the June 6, 2014 notice to D.C. was sufficiently clear and unambiguous to
satisfy due process. Moreover, given the availability of nunc pro tunc in
appropriate circumstances, “MAY BE ON THE CHILD ABUSE REGISTER
FOREVER” is more accurate than “SHALL BE.”
P. KEVIN BROBSON, Judge
Judge Simpson joins in this dissenting opinion.