J.B. v. DHS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J.B., :
Petitioner : SEALED CASE
:
v. : No. 367 C.D. 2021
: Submitted: June 3, 2022
Department of Human Services, :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: October 27, 2022
J.B. has petitioned this Court to review an order entered March 4, 2021,
by the Department of Human Services (DHS), Bureau of Hearings and Appeals (the
Bureau), which denied as untimely J.B.’s request for a hearing to expunge from the
ChildLine and Abuse Registry an indicated report of child abuse. Upon review of
the record, we discern no non-negligent circumstances that would excuse J.B.’s
untimely request and, therefore, affirm.
BACKGROUND1
On December 11, 2019, DHS notified J.B. that he was listed on the
statewide registry as a perpetrator in an indicated report of child abuse. J.B. timely
sought administrative review of this finding. On May 14, 2020, DHS determined
that the report was accurate and notified J.B. that he had a right to appeal and an
evidentiary hearing before the Bureau, provided he requested such within 90 days.
1
We derive this background from the findings of the Administrative Law Judge (ALJ),
which are supported by substantial evidence of record. See ALJ’s R. & Adjudication, 3/4/21.
J.B. received this notice in a timely manner. On August 19, 2020, J.B.
mailed his request for an appeal and evidentiary hearing, 97 days after receiving the
DHS notice. Thereafter, the ALJ determined that J.B. did not timely appeal the
administrative review and that there were insufficient grounds to proceed nunc pro
tunc.
J.B. timely petitioned this Court for further review.2, 3
ISSUE
J.B. asserts that the ALJ erred in denying as untimely J.B.’s request for
a hearing on the merits of an indicated finding of child abuse. Pet’r’s Br. at 7.
According to J.B., any delay in postmarking his appeal was not caused by his
negligence. See id. at 12.4 Further, J.B. argues, even if he negligently requested a
hearing, the Bureau would suffer no prejudice in permitting his administrative appeal
to proceed nunc pro tunc. See id.
DISCUSSION
The broad purpose of the Child Protective Services Law, 23 Pa.C.S. §§
6301-6386, is “to prevent child abuse and to protect abused children from further
2
This Court will affirm an agency decision “absent a finding that constitutional rights were
violated, [that] an error of law was committed, that the procedure before the agency was contrary
to statute, or that the findings of fact are not supported by substantial evidence.” G.V. v. Dep’t of
Pub. Welfare, 91 A.3d 667, 672 (Pa. 2014).
3
The Philadelphia County Department of Human Services intervened as of right pursuant
to Pa.R.A.P. 1531. It is generally aligned with DHS in this matter. See generally Intervenor’s Br.
4
The Bureau counters that his argument is waived because J.B. failed to include it in his
Petition for Review. See Bureau’s Br. at 7. We decline to find this argument waived.
Pennsylvania Rule of Appellate Procedure 1513(d) provides that a petition for review shall contain
“a general statement of the objections to the order or other determination, but the omission of an
issue from the statement shall not be the basis for a finding of waiver if the court is able to address
the issue based on the certified record.” Pa.R.A.P. 1513(d) (emphasis added). Although J.B.’s
arguments on appeal differ from certain assertions made in his Petition for Review, our review
may proceed based on the certified record in this matter.
2
injury.” G.V., 91 A.3d at 670. In furtherance thereof, the legislature has established
a statewide registry to maintain reports of child abuse and has authorized the release
of registry information identifying perpetrators of abuse in limited fashion. See id.;
see also 23 Pa.C.S. §§ 6302(b) (encouraging more complete reporting of suspected
child abuse), 6331 (establishing a statewide database), 6340 (authorizing the release
of confidential information to law enforcement, social work agencies, employers in
childcare services and other related venues).
An “indicated report” of child abuse sets forth substantial evidence,
gathered during an investigation by DHS or a county agency, that a child is the
victim of abuse. 23 Pa.C.S. § 6303.5 Upon the conclusion of an investigation, DHS
shall inform the alleged perpetrator of his or her right to request administrative
review to amend or expunge the indicated report. 23 Pa.C.S. §§ 6341(a)(2), 6368(f).
If administrative review is unsuccessful, then the alleged perpetrator may further
appeal to the Bureau and request a hearing. 23 Pa.C.S. § 6341(c). “The request for
hearing must be made within 90 days of notice of the decision.” Id.
“Failure to file a timely appeal of an administrative agency’s decision
creates a jurisdictional defect, and an extension of time to file an appeal cannot be
granted as a matter of grace or mere indulgence.” C.E. v. Dep’t of Pub. Welfare, 97
A.3d 828, 832 (Pa. Cmwlth. 2014) (cleaned up). An appeal nunc pro tunc may
proceed, but only where an appellant can establish that “the delay in filing the appeal
was caused by extraordinary circumstances involving fraud or a breakdown in the
administrative process, or non-negligent circumstances related to the appellant, his
counsel, or a third party.” R.H. v. Dep’t of Hum. Servs., 205 A.3d 410, 416 (Pa.
Cmwlth. 2019) (cleaned up). An appellant must also demonstrate that “(1) he filed
5
In contrast, a “founded report” is rooted in judicial proceedings. See 23 Pa.C.S. § 6303.
3
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.” D.C. v. Dep’t of Hum. Servs., 150 A.3d 558, 562 (Pa.
Cmwlth. 2016) (cleaned up).
The exception for allowance of an appeal nunc pro tunc in non-
negligent circumstances applies “only in unique and compelling cases in which the
appellant has clearly established that she attempted to file an appeal, but
unforeseeable and unavoidable events precluded her from actually doing so.” Criss
v. Wise, 781 A.2d 1156, 1160 (Pa. 2001). Any delay caused by mere negligence or
neglect will not provide a basis for granting an appeal nunc pro tunc. Compare Cook
v. Unemployment Comp. Bd. of Rev., 671 A.2d 1130, 1132 (Pa. 1996) (concluding
that appellant’s sudden hospitalization presented non-negligent circumstances), with
Criss, 781 A.2d at 1160 (dilatory mailing of appeal, where “delays in the U.S. mail
are both foreseeable and avoidable,” does not constitute a non-negligent
circumstance).
In this case, on May 14, 2020, DHS notified J.B. of its determination
that the indicated report of child abuse was accurate and that he must request a
hearing within 90 days. J.B. did not mail his request until August 19, 2020, seven
days beyond the appeal period. Thus, J.B.’s request for a hearing was untimely. See
23 Pa.C.S. § 6341.
Further, we discern no non-negligent circumstances that contributed to
his untimely appeal. Obliquely, J.B. refers to two events that were both
unforeseeable and unavoidable. See Pet’r’s Br. at 15, 17. Upon consideration, these
events do not provide grounds for nunc pro tunc relief.
4
First, J.B. suggests that “despite a catastrophic fire that burned his
family home down, . . . [he] diligently filled out the paperwork to send back to DHS
. . . [.]” Pet’r’s Br. at 15. However, the implication that the fire at J.B.’s home
contributed to his untimely appeal is not supported by evidence of record. J.B.
testified that there was a fire at his home and that the fire was “the main reason why
[his appeal] was late.” Notes of Testimony (N.T.), 10/15/20, at 15. However, J.B.
testified further that the fire occurred on May 10, 2020, that the fire did not interfere
with mail delivery to the address, and that he received the notice from DHS
“probably like, . . . a week later[, i.e., May 17, 2020,] because we were in a hotel
around the time when I got the mail.” N.T. at 16. Thus, while the fire at his home
may have been unforeseeable, it did not contribute to his untimely appeal.
Second, J.B. suggests that this Court take judicial notice that the
COVID-19 pandemic contributed to his untimely appeal. Pet’r’s Br. at 17 (asserting
that his appeal “must have sat for several days” in his mailbox due to pandemic-
related postal service delays). We decline to do so. In prefatory remarks, J.B.
testified that “with the whole corona [sic] thing . . . , everything was kind of late.”
N.T. at 15. However, J.B. never testified to any specific correlation between the
pandemic and his appeal. To the contrary, J.B. conceded that he did not mail his
request until “[p]robably around” August 19, 2020, because he spent “two, three
weeks” looking for a lawyer to assist him. N.T. at 23-24. Thus, the record does not
support an inference that unforeseeable or unavoidable events, such as the COVID-
19 pandemic, were instrumental in his untimely appeal.
Based on the evidence of record, J.B. simply failed to mail his appeal
within the time required. This dilatory mailing was negligent and not the result of
unforeseeable or unavoidable events. Therefore, because J.B. did not establish that
5
non-negligent circumstances contributed to his untimely request for an evidentiary
hearing before the Bureau, he is not entitled to proceed nunc pro tunc. See Criss,
781 A.2d at 1160; R.H., 205 A.3d at 416.6
For these reasons, we affirm.
LORI A. DUMAS, Judge
6
Because J.B. failed to establish non-negligent circumstances that contributed to his
untimely appeal, we need not address his subsequent argument that DHS failed to establish that it
had suffered prejudice from the delay. See Pet’r’s Br. at 18. Nevertheless, we note that J.B.’s
argument misconstrues the applicable law. In seeking nunc pro tunc relief, an appellant retains
the sole burden of proof. Thus, in this case, J.B. was required to establish that DHS suffered no
prejudice from J.B.’s untimely appeal. See D.C., 150 A.3d at 562.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J.B., :
Petitioner : SEALED CASE
:
v. : No. 367 C.D. 2021
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 27th day of October, 2022, the Order of the
Department of Human Services, Bureau of Hearings and Appeals, entered March 4,
2021, in the above-captioned matter is AFFIRMED.
LORI A. DUMAS, Judge