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Melissa M. Burns v. Gary D. Alexander

March 4, 2011

MELISSA M. BURNS, PLAINTIFF,
v.
GARY D. ALEXANDER, ACTING SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, IN HIS OFFICIAL CAPACITY, AND RAYMOND S. HART, DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. Introduction

This action involves a constitutional challenge to certain provisions of Pennsylvania‟s

Child Protective Services Law ("CPSL") [23 PA. CONS. STAT. § 6301 et seq.]. Pending before the Court is a motion to dismiss filed by the Defendants pursuant to Federal Rule of Civil Procedure 12(b), subsections (1)*fn1 and (6).*fn2 Docket No. 20. For the reasons that follow, the motion will be granted in part and denied in part.

II. Background*fn3

Plaintiff Melissa M. Burns ("Burns") is an adult individual residing in North Fayette Township, Pennsylvania. Docket No. 17 at ¶ 1. She is the owner and operator of the Helping Hands Childcare and Learning Center ("Helping Hands"), which is a child-care facility located in Imperial, Pennsylvania. Id. at ¶ 2. Helping Hands earned a three-star rating from Pennsylvania‟s Keystone STARS program prior to the events in question.*fn4 Id. To achieve such a rating, a facility must satisfy criteria exceeding the normal licensing requirements for all such facilities operating in Pennsylvania. Id. at ¶ 42. As a three-star facility, Helping Hands received grants to sustain additional educational programs. Id.

Defendant Gary D. Alexander (the "Secretary") is Pennsylvania‟s Acting Secretary of Public Welfare.*fn5 Id. at ¶ 3. At all times relevant to this case, Defendant Raymond S. Hart ("Hart") was employed by Pennsylvania‟s Department of Public Welfare ("DPW") as a Regional Program Representative. Id. at ¶ 4. He worked out of the Western Regional Children, Youth and Families Office, which is located in Pittsburgh, Pennsylvania. Id.

The CPSL requires certain individuals to report known cases of child abuse to the DPW or the appropriate county agencies.*fn6 23 PA. CONS. STAT. § 6311(a)-(b). In addition to those statutorily required to furnish such reports to the appropriate authorities, "any person may make such a report if that person has reasonable cause to suspect that a child is an abused child." 23 PA. CONS. STAT. § 6312. A report submitted by an individual having a statutory duty of disclosure "shall be made immediately by telephone and in writing within 48 hours after the oral report."*fn7 23 PA. CONS. STAT. § 6313(a). Pursuant to the terms of the CPSL, the DPW maintains both a "Statewide central register" consisting of "founded and indicated reports" of child abuse and "a single Statewide toll-free telephone number that all persons, whether mandated by law or not, may use to report cases of suspected child abuse." 23 PA. CONS. STAT. §§ 6331(2), 6332(a).

After receiving a "report of suspected child abuse," a county agency must "commence an appropriate investigation" and meet with the child alleged to have been abused within 24 hours. 23 PA. CONS. STAT. § 6368(a). Before interviewing the alleged perpetrator of the abuse, the county agency is required to orally notify the accused individual of both the existence of the report and the rights that he or she enjoys under the CPSL. 23 PA. CONS. STAT. § 6368(a). After providing such oral notice, the county agency has 72 hours to supply the alleged perpetrator with a written notice containing the same information. Id.

Once a "report of suspected child abuse" has been received, a county agency must determine within 60 days whether to classify the report as a "founded report," an "indicated report," or an "unfounded report."*fn8 23 PA. CONS. STAT. § 6368(c). A report constitutes a "founded report" where there has been a "judicial adjudication based on a finding that a child who is a subject of the report has been abused, including the entry of a plea of guilty or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse." 23 PA. CONS. STAT. § 6303(a). A report constitutes an "indicated report" if an investigation by the DPW or a county agency reveals that "substantial evidence of the alleged abuse exists" based on "[a]vailable medical evidence," "[t]he child protective service investigation," or "[a]n admission of the acts of abuse by the perpetrator." Id. "Substantial evidence" is defined as "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." Id. Where a report of suspected child abuse is neither a "founded report" nor an "indicated report," it is automatically classified as an "unfounded report." Id. The failure of a county agency to make a finding within the statutory 60-day period results in a determination that the relevant report is "unfounded." 23 PA. CONS. STAT. § 6337(b).

When it receives "a complaint of suspected child abuse," the DPW is required to "maintain a record of the complaint . . . in the pending complaint file." 23 PA. CONS. STAT. § 6334(c). The CPSL provides that "[w]hen a report of suspected child abuse . . . is determined by the appropriate county agency to be a founded report or an indicated report, the information concerning that report . . . shall be expunged immediately from the pending complaint file, and an appropriate entry shall be made in the Statewide central register." 23 PA. CONS. STAT. § 6338(a). Notice of such a determination must be given to the perpetrator of the abuse. Id. This notice must inform the individual that his or her "ability to obtain employment in a child-care facility or program . . . may be adversely affected by [the] entry of the report in the Statewide central register." Id.

"Any person named as a perpetrator . . . in an indicated report of child abuse may, within 45 days of being notified of the status of the report," request that the Secretary "amend or expunge" the report on the ground that it is "inaccurate." 23 PA. CONS. STAT. § 6341(a)(2). If the request is granted, the county agency may file an administrative appeal within 45 days. 23 PA. CONS. STAT. § 6341(b). If the Secretary either denies the request or fails to act on it within 30 days, the alleged perpetrator has 45 days from the date of the letter denying the request to demand a hearing. 23 PA. CONS. STAT. § 6341(c). At such a hearing, the "appropriate county agency" bears the burden of proving that "substantial evidence of the abuse exists." 23 PA.

CONS. STAT. §§ 6303(a), 6341(c). In any case in which a report of child abuse is initially found to be an "indicated report," the statutorily-required notice of the determination must inform the individual of his or her right to appeal the determination "within 45 days after being notified of the status of the report," and of his or her "right to a hearing if the [appeal] is denied." 23 PA.

CONS. STAT. § 6338(a).

An administrator of a "child-care service" must require each prospective employee to submit a "certification" from the DPW revealing whether he or she has been "named in the central register as the perpetrator of a founded report of child abuse," or as the perpetrator of an "indicated report of child abuse," within the preceding year. 23 PA. CONS. STAT. § 6344(b)(2). An applicant who is "named in the central register as the perpetrator of a founded report of child abuse committed within the five-year period immediately preceding verification" may not be hired. 23 PA. CONS. STAT. § 6344(c)(1). As the owner and operator of Helping Hands, Burns was required to comply with this statutory mandate. Docket No. 17 at ¶ 44; 23 PA. CONS. STAT. § 6344(e), (f).

In May 2008, Helping Hands began to provide daily child-care and educational services to a three-year-old girl named "DM" and her five-year-old sister.*fn9 Id. at ¶ 46. Both of the girls had been placed in therapeutic foster care and were under the supervision of a foster family. Id. at ¶ 47. DM was known to be suffering from socialization problems and elevated levels of lead in her blood. Id. at ¶¶ 48-49.

At approximately 9:15 A.M. on November 17, 2008, DM and her sister were transported to Helping Hands by their foster father. Id. at ¶ 50. Fifteen minutes later, DM began to complain of pain in her arm. Id. at ¶ 51. These complaints persisted for over an hour. Id. Burns unsuccessfully tried to contact DM‟s foster father at 10:30 A.M. Id. Shortly thereafter, DM started to engage in aggressive behavior. Id. at ¶ 52. She began to throw toys and fight with other children. Id. Burns responded by escorting DM into the facility‟s kitchen and lifting her into a high chair. Id. at ¶ 55. A 30-foot wall separated the kitchen from the area in which DM had been playing, making it impossible for the other children to view Burns‟ interactions with DM. Id. at ¶ 54. DM did not cry or otherwise indicate that she was in distress. Id. at ¶ 55. She was not within the view of her sister, who was roughly 40 to 50 feet away. Id. at ¶ 57. DM was subsequently taken out of the high chair and allowed to resume her interactions with the other children. Id. at ¶ 58. At 11:30 A.M., DM‟s foster father telephoned Helping Hands personnel and informed them that he would check her arm when he arrived to take her sister to a kindergarten class. Id. at ¶ 59. He arrived at Helping Hands 45 minutes later, at which point DM began to cry because of her inability to put on a coat. Id. at ¶ 60. DM‟s foster father became agitated and tried to force her arm into the sleeve of the coat. Id. at ¶ 61. DM continued to cry. Id. Burns suggested that DM be permitted to stay at the facility longer in order to take a nap. Id. DM‟s foster father agreed to this arrangement and left the facility with DM‟s sister. Id. He later returned to pick DM up. Id. at ¶ 62. DM never went back to Helping Hands. Id.

On November 19, 2008, Hart sent Burns a letter informing her that she had been named as an alleged perpetrator of child abuse in connection with her treatment of DM. Id. at ¶ 63. The letter explained the three possible findings that could be made with respect to the report. Id. at ¶ 66. Although Burns was informed of the negative consequences that would befall her if the report were deemed to be a "founded report," she was never warned of the negative implications of a determination that the report was an "indicated report." Id. at ¶ 67. When Burns inquired as to whether she should be concerned about the investigation, she was told that it was "routine," and that she had nothing to worry about. Id. at ¶ 70.

Hart interviewed DM and her sister eight days later. Id. at ¶ 71. He subsequently went to Helping Hands, where he interviewed Burns and three members of her staff. Id. at ¶ 78. Each interview lasted between 10 and 15 minutes. Id. The interviews were conducted in an office located approximately three feet inside of the entrance to Helping Hands. Id. at ¶ 77. Hart was told that DM had complained of pain prior to being escorted into the kitchen and lifted into the high chair. Id. at ¶ 79. The three staff members explained that they had not seen Burns lift DM into the high chair. Id. The placement of DM into the high chair, however, had apparently occurred in close proximity to one of the staff members, who indicated that DM had exhibited no signs of pain or distress while being lifted and transported by Burns. Id. After completing the interviews, Hart left Helping Hands without examining the area in which the abuse was alleged to have occurred. Id. at ¶ 80. He neither inspected the layout of the kitchen nor observed the place where DM‟s sister had been at the time of the incident. Id.

After concluding his investigation, Hart determined that the report of abuse that had been made in connection with Burn‟s treatment of DM was an "indicated report." Id. at ¶ 82. Hart notified Burns of this determination on December 16, 2008. Id. at ¶ 83. Burns was informed that she had been listed as an "indicated" abuser in the central register.*fn10 Id. She was made aware of this listing only after her name had already been added to the central register. Id. at ¶

84. As a result of her status as an "indicated" child abuser, Burns was instructed to remove herself from Helping Hands and inform the parents of her students in writing about the situation. Id. at ¶ 85. Shortly thereafter, state authorities informed Burns that her operating license would not be renewed, and that she was required to display a notice to that effect at the entrance of Helping Hands. Id. at ¶ 86. Helping Hands was suspended from the Keystone STARS program and stripped of its three-star rating. Id. at ¶ 87. As a result of the suspension, Helping Hands lost over $30,000.00 in grant money and tuition support. Id. Notice of the suspension was published on Keystone STARS‟ publicly-accessible website. Id.

Burns requested a copy of Hart‟s investigative report. Id. at ¶ 89. She was provided only with a copy of the "CY-48" form that Hart had prepared in connection with his determination. Id. The form contained language indicating that Hart had made his determination based on "credible and convincing" information provided by DM and her sister, and on a medical report setting forth the specific nature of DM‟s injury. Id. at ¶ 90. Although the injury was described on the form as an "elbow dislocation," Burns alleges that it was actually a "radial head subluxation," which is commonly referred to as "nursemaid‟s elbow." Id. at ¶ 91.

After learning of her status as an "indicated" child abuser, Burns requested an expunction hearing with the DPW.*fn11 Id. at ¶ 93. Although the hearing request was submitted to the DPW‟s Division of Operations and Quality Control on January 7, 2009, it was not forwarded to the Bureau of Hearings and Appeals until January 30, 2009. Id. at ¶ 94. On February 19, 2009, a hearing was scheduled for April 8, 2009. Id. Six days later, the hearing was rescheduled for April 30, 2009. Id.

Burns was provided with a "Unified Pre-Hearing Filing Instruction Sheet," which outlined her right to subpoena witnesses and documentary evidence by completing a "Unified Pre-Expunction Hearing Document." Id. at ¶ 95. The instruction sheet indicated that all subpoena requests needed to be submitted to the administrative law judge ("ALJ") assigned to the case no later than 15 days before the hearing. Id. at ¶ 96. In accordance with the instructions, Burns submitted her subpoena requests to the ALJ in a timely manner. Id. at ¶ 95.

The CPSL contains provisions limiting the disclosure of information obtained by the DPW and county agencies during the course of investigations. Section 6339 of the CPSL provides:

§ 6339. Confidentiality of reports

Except as otherwise provided in this subchapter, reports made pursuant to this chapter, including, but not limited to, report summaries of child abuse and written reports made pursuant to section 6313(b) and (c) (relating to reporting procedure) as well as any other information obtained, reports written or photographs or X-rays taken concerning alleged instances of child abuse in the possession of the department or a county agency shall be confidential.

23 PA. CONS. STAT. § 6339. Section 6340(a)(5) permits reports specified in § 6339 to be made available to "[a] court of competent jurisdiction . . . pursuant to [a] court order or subpoena in a criminal matter involving a charge of child abuse . . . ." 23 PA. CONS. STAT. § 6340(a)(5).

Section 6340(b) provides that "a subject of a report" may, upon written request, receive a copy of "all information, except that prohibited from being disclosed by subsection (c), contained in the Statewide central register or in any report filed pursuant to [§] 6313 . . . ." 23 PA. CONS. STAT. §

6340(b). An "alleged or actual perpetrator" of child abuse named in a report made to the DPW or a county agency qualifies as "a subject of a report" within the meaning of this statute. 23 PA.

CONS. STAT. § 6303(a). Subsections (b) and (c) of § 6313 govern the submission and receipt of reports of suspected child abuse supplied by outside individuals to county agencies. 23 PA.

CONS. STAT. § 6313(b)-(c). The specific information contained in the central register with respect to a particular report is governed by § 6336(a), which enumerates 13 specific types of information and provides that "[n]o information other than that permitted [thereunder] shall be retained in the Statewide central register." 23 PA. CONS. STAT. § 6336(a).

In Dauphin County Social Services for Children & Youth v. Department of Public Welfare, 855 A.2d 159, 164-165 (Pa.Commw.Ct. 2004), the Pennsylvania Commonwealth Court construed § 6339 to prohibit the disclosure of information to an alleged perpetrator of child abuse obtained during the course of an investigation but not recorded in the central register or contained in the initial report of suspected child abuse. The language of § 6340(b) permits only the disclosure of information recorded in the central register or contained in an initial report submitted pursuant to § 6313. 23 PA. CONS. STAT. § 6340(b). The Commonwealth Court reasoned that the remaining information discovered during the course of the investigation had to be kept "confidential" within the meaning of § 6339. Dauphin County, 855 A.2d at 164-165.

Thus, the individual seeking additional information (i.e., an alleged perpetrator of sexual abuse) was not permitted to discover such information in connection with his appeal to the DPW. Id. The Commonwealth Court further declared that since the administrative appeal had not arisen within the context of a "criminal matter," the information was not subject to disclosure under § 6340(a)(5). Id. at 165.

Although the ALJ granted all subpoena requests which had been made by the DPW, she declined to render a decision concerning Burns‟ requests. Docket No. 17 at ¶ 97. The ALJ telephoned Burns‟ counsel and stated that her discretion to grant or deny the subpoena requests was limited by the Commonwealth Court‟s decision in Dauphin County. Id. at ¶ 97(a). Burns‟ counsel responded by saying that Dauphin County could not control the disposition of the subpoena requests because Burns had a constitutional right to access the desired information. Id. at ¶ 97(b). The ALJ indicated that she would rule on Burns‟ requests before the passage of the discovery cut-off date, but she failed to follow through on that promise. Id. at ¶ 97(c). Fifteen days before the scheduled hearing, Burns‟ subpoena requests were still pending, leaving her without an effective means to defend herself against the allegations which had been lodged against her.*fn12 Id. at ¶¶ 98-99.

On April 20, 2009, just 10 days before the scheduled hearing, the DPW notified both Burns and the ALJ that it would not be presenting a case or making an appearance at the hearing. Id. at ¶ 100. The ALJ responded by directing the DPW to remove Burns‟ name from the central register. Id. at ¶ 101. The listing of Helping Hands as a suspended center on Keystone STARS‟website was not corrected until September 2009, at which point the prime enrollment season for child-care services had already ended. Id. at ¶ 102. Although Keystone STARS reinstated Helping Hands, Burns was informed that she would not be able to recover the $30,000.00 in grant money that she had lost. Id. at ¶ 103.

Burns commenced this action against the Secretary and Hart on April 24, 2010, alleging violations of the Fourteenth Amendment to the United States Constitution. Docket No. 1. An amended complaint was filed three days later. Docket No. 3. The Defendants filed a motion to dismiss on June 25, 2010, challenging the Court‟s subject-matter jurisdiction to adjudicate the claims against the Secretary and contending that Hart was entitled to qualified immunity. Docket Nos. 8 & 9. Burns responded by filing a brief in opposition to the motion. Docket No.14. The parties were afforded the opportunity to advance their respective positions during the course of an oral argument session conducted on September 28, 2010. Docket No. 15. At that time, Burns was given 30 days to amend her complaint. Id. On October 28, 2010, Burns filed her second amended complaint in accordance with the Court‟s instructions, thereby rendering the Defendants‟ motion to dismiss moot. Docket No. 17. The next day, the Court entered ...


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