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V. W v. Department of Public Welfare

August 24, 2012

V. W.,
PETITIONER
v.
DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



The opinion of the court was delivered by: Bonnie Brigance Leadbetter, Judge

SUBMITTED: June 8, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE LEADBETTER

V.W. petitions for review of the order of the Department of Public Welfare (Department), Bureau of Hearings and Appeals (Bureau) that adopted the recommendation of the Administrative Law Judge (ALJ) and dismissed V.W.'s appeal from an indicated report of child abuse as abandoned. V.W. argues that the dismissal of her appeal was improper because the Berks County Children and Youth Services (CYS) had the burden of establishing existence of substantial evidence supporting the alleged child abuse despite her nonappearance at a scheduled hearing. We vacate the Bureau's order and remand for a further proceeding.

On March 8, 1996, CYS filed an indicated report of child abuse against V.W. for allegedly hitting her 13-year-old son with belts, causing scratches and abrasions on his leg and back. In a notice dated March 19, 1996, the Department advised V.W., inter alia, that the indicated report filed against her would remain on file in the state and county offices until 23 years after the child's birth.*fn1

On October 8, 2010, the Department notified V.W. that Form CY-113 (Pennsylvania Child Abuse History Clearance) showed that she was listed in the Central Register as a perpetrator of child abuse and that the name of her son, who was 27 years old at that time, had been expunged. On November 9, 2010, V.W., acting pro se, sent the Department a letter, requesting a copy of the indicated report and an "appeals hearing." Supplemental Reproduced Record at 6b. The Department informed the Bureau of V.W.'s request for expungement of the indicated report. The Bureau then scheduled a hearing for April 14, 2011 and mailed a notice of hearing to V.W. at her address listed in the request for a hearing. The Bureau also notified V.W. and the Berks County solicitor of an assignment of an ALJ and advised them that a request for continuance must be submitted in writing. V.W. admits that she received the notices.

V.W. did not appear at the scheduled hearing. CYS then moved for dismissal of her appeal without presenting any evidence. In an adjudication issued on September 6, 2011, the ALJ recommended that V.W.'s appeal be dismissed "as abandoned due to her failure to appear for the hearing." ALJ's Adjudication at 6. The Bureau adopted the ALJ's recommendation and dismissed V.W.'s appeal.

V.W. filed an application for reconsideration, alleging that although she received "the paper work about the hearing," she "did not understand it" and did not have an opportunity to consult an attorney. S.R. at 3b. The Secretary of the Department denied her application. V.W.'s appeal to this Court followed.

V.W., now represented by an attorney, challenges the dismissal of her appeal as abandoned. She argues that CYS had the burden of establishing existence of substantial evidence supporting the indicated report of child abuse despite her nonappearance at the hearing and that the Bureau should have expunged the indicated report because CYS did not present any evidence to meet its burden. She further argues that the Department denied her right to due process by failing to adequately advise her of her right to appeal the indicated report. She alternatively asks the Court to remand this matter to the Bureau for a hearing. The Department counters that V.W.'s appeal was properly dismissed as abandoned because she failed to appear at the hearing to prosecute the appeal. The Department asserts: "Had [V.W.] prosecuted her appeal, she would have had the opportunity to present evidence at a hearing and CYS would have had to prove the abuse by substantial evidence." Department's Brief at 9.*fn2

Section 6303(a) of the Child Protective Services Law (Law), as amended, 23 Pa. C.S. § 6303(a), defines an "indicated report" as:

A child abuse report made . if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on any of the following:

(1) Available medical evidence.

(2) The child protective service investigation.

(3) An admission of the acts of abuse by the ...


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