May 23, 2013
Beaver County Children & Youth Services, Petitioner
Department of Public Welfare, Respondent
Submitted: February 22, 2013
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HNORABLE JAMES GARDNER COLINS, Senior Judge
JAMES GARDNER COLINS, Senior Judge
Beaver County Children and Youth Services (CYS) petitions for review of the May 11, 2012 final Order of the Department of Public Welfare's Bureau of Hearings and Appeals (Bureau) sustaining R.G.'s administrative appeal to expunge an indicated report listing him as a perpetrator of sexual abuse of his paramour's granddaughter, A.A., pursuant to the Child Protective Services Law (CPS Law), 23 Pa. C.S. §§ 6301-6386. For the reasons that follow, we affirm.
On June 11, 2007, CYS received an oral report that alleged R.G. had sexually abused A.A., his paramour's granddaughter, during the year 2005. (Administrative Law Judge Opinion and Order, Findings of Fact (F.F.) ¶¶2, 4.) A child protective services investigation was conducted and a timely Child Protective Services Investigation Report (CY-48) was generated. (F.F. ¶¶5-6.) The CY-48 report stated that "A.A. disclosed that while living with her grandmother and grandmother's paramour, R.G. sexually touched her…." and that R.G. was being indicated for sexual abuse. (F.F. ¶5; see also Record Item (R. Item) 3, Exhibit C-2, CY-48 report.) On June 27, 2007, CYS filed an indicated report of sexual abuse of A.A. against R.G. (F.F. ¶7.)
By letter dated March 16, 2011, R.G. requested that the Bureau expunge the indicated report of sexual abuse. (R. Item 2, Appeal Request.) A hearing was held before Administrative Law Judge (ALJ) Sarah Flasher on October 3, 2011. Prior to the hearing, CYS filed a motion to have the case dismissed based upon an untimely appeal. (October 3, 2011, Hearing Transcript (H.T.) at 6.) At the start of the hearing, the ALJ orally denied the timeliness motion and allowed R.G. to proceed nunc pro tunc, on the grounds that the July 13, 2007, Childline and Abuse Registry Notice sent to R.G. was defective. (H.T. at 7; see also R. Item 1, Notice Letter.)
CYS did not present any witnesses at the hearing regarding the June 11, 2007 CY-48 report of the alleged sexual abuse of A.A. (F.F. ¶8.) There was no audio or video recording of the interview by CYS of A.A. entered into evidence at the hearing. (F.F. ¶9.) CYS did attempt to enter into evidence pages fifty (50) to seventy-nine (79) from a transcript of a December 16, 2008 hearing in a separate expunction appeal addressing allegations of physical abuse of A.A. by R.G. (H.T. at 9-12.) CYS did not present evidence to establish that A.A. was emotionally unavailable to testify. (H.T. at 11.) R.G. objected to the admission of the transcript on the grounds that sexual abuse was not before the ALJ in the December 16, 2008 hearing, and that a proper cross-examination on the issue of sexual abuse had not taken place. (H.T. at 10, 13-14.)
R.G. testified and presented the testimony of C.B., his paramour and A.A.'s grandmother, and the testimony of C.G., his paramour's daughter and A.A.'s Aunt. (H.T. at 25, 29-30, 33.)
On May 9, 2012, the ALJ issued an opinion and order recommending that the Bureau sustain R.G.'s appeal seeking to expunge the indicated report of child abuse. The ALJ concluded that the December 16, 2008 hearing transcript was inadmissible, because A.A. was not emotionally unavailable and CYS failed to advise R.G. that it intended to use the hearing transcript as evidence and failed to list the hearing transcript as an intended exhibit in the Unified Pre-Hearing Filing, as required by the Standing Practice Order for Bureau Appeals. (ALJ Opinion at 9, ¶3.)
The ALJ also concluded that because there was no admission, no eyewitness, and no medical evidence, whether or not the appeal was sustained had to be resolved by examining the credibility of the witnesses. (ALJ Opinion at 8-9, ¶2.) Due to the absence of testimony from the alleged child victim and the absence of evidence to corroborate the hearsay statements of the child in the CY-48 report, the ALJ concluded that CYS failed to meet its burden of demonstrating by substantial evidence that A.A. was the victim of sexual abuse by R.G. (ALJ Opinion at 9, ¶4.)
Separately, the ALJ concluded that CYS failed to establish that R.G. met the definition of perpetrator as provided by the CPS Law and its implementing regulations. (ALJ Opinion at 9, ¶5.) The ALJ found that R.G. was not the parent of A.A., that CYS had not established that R.G. was responsible for the welfare of A.A., and that the CY-48 Report established that R.G. and A.A. did not reside in the same household at the time of the report and no evidence was presented to establish that they resided in the same household at the time of the alleged abuse in or around 2005. (ALJ Opinion at 9, ¶5.)
On May 11, 2012, the Bureau adopted the ALJ's recommendation in its entirety and ordered the expunction of the indicated report listing R.G. as a perpetrator of sexual abuse of A.A. CYS appealed the Bureau's order to this Court. 
CYS raises three issues on appeal: (1) whether the Bureau abused its discretion when it granted R.G.'s appeal nunc pro tunc; (2) whether the Bureau erred in concluding that CYS failed to establish by substantial evidence that R.G. sexually abused A.A.; and (3) whether the Bureau erred in concluding that R.G. was not a "perpetrator" as defined by the CPS Law. We note that in its brief in support of the issues raised on appeal, CYS has failed to include a single citation of authority, and while only those authorities "deemed pertinent" are required by our Rules of Appellate Procedure, see Pa. R.A.P. 2119(a), we do question why CYS has chosen to appeal this matter if it does not deem a single law or decision of the courts of this Commonwealth or these United States pertinent to its appeal.
CYS argues that R.G. had adequate notice of his right to appeal the indicated report of sexual abuse and that R.G.'s appeal should have been denied as untimely. CYS also contends that R.G. knew of the allegations of sexual abuse at the time of the December 16, 2008 hearing, that he could have addressed the sexual abuse allegations at that time, and that the transcript demonstrates that the notice R.G. received was not defective. CYS does not argue that the ALJ abused its discretion in excluding the transcript of the December 16, 2008, hearing from the record.
Here, the ALJ concluded that the notice failed to adequately inform R.G. that he had an absolute right to request a hearing, because the notice stated: "You will have the right to request a hearing." (R. Item 1, Notice Letter.) The ALJ stated on the record at the October 3, 2011, hearing that the Secretary of the Department of Public Welfare determined that all notices sent between February of 2006 and September 11, 2008, were defective, and as a result, all perpetrators to have received notice of their right to appeal within that time frame would be granted a hearing on the merits. (N.T. at 7.)
A perpetrator must request that an indicated report of child abuse be amended or expunged within forty-five (45) days of being notified of the indicated report. 23 Pa. C.S. § 6341(a)(2). An exception allows perpetrators to proceed nunc pro tunc where he or she can demonstrate that the delay in requesting an appeal was caused by extraordinary circumstances involving fraud, a breakdown in the administrative processes, or non-negligent circumstances related to the petitioner, his counsel or a third party. J.C. v. Department of Public Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998).
In C.S. v. Department of Public Welfare, 879 A.2d 1274, 1280 (Pa. Cmwlth. 2005), this Court held that notice letters stating that a perpetrator "may have a right to a hearing, " on whether to amend or destroy an indicated report the perpetrator believes to be inaccurate, "do not satisfy the exacting requirements of 23 Pa. C.S. § 6338(a) and, thus, this breakdown in the administrative process entitles [perpetrator] to file a nunc pro tunc request for expungement under 23 Pa. C.S. § 6341(a)(2)."
The ALJ explicitly relied upon C.S. v. Department of Public Welfare, in concluding that R.G. was entitled to appeal nunc pro tunc due to inadequate notice. Inadequate notice is exactly the type of breakdown in the administrative process that satisfies the standard for a nunc pro tunc appeal; the ALJ did not abuse her discretion in granting R.G.'s request to proceed nunc pro tunc.
Next, CYS does not challenge the ALJ's refusal to admit into evidence the December 16, 2008 transcript, but argues in its brief to this Court that it met its burden of demonstrating that the indicated report is accurate based on the contents of that transcript. However, the fact remains that the only evidence submitted by CYS and accepted into the record was a CY-48 report with uncorroborated, and therefore redacted, hearsay statements. CYS did not present any witnesses or medical evidence. R.G. did testify, and denied that he sexually abused A.A. CYS unequivocally failed to meet its burden.
Finally, there is no evidence in the record to establish that R.G. is a perpetrator as defined by the CPS Law. The CY-48 report establishes that A.A. and R.G. did not reside in the same household at the time of the report, and there was no evidence offered to demonstrate that the two had resided together in 2005. R.G. is the paramour of A.A.'s grandmother, not one of A.A.'s parents. CYS also did not present any evidence to show that R.G. was responsible for the welfare of A.A. The ALJ did not err in concluding that CYS failed to establish that R.G. was a perpetrator as defined by the CPS Law.
Accordingly, the final order of the Bureau is affirmed.
AND NOW, this 23rd day of May, 2013, the final Order of the Department of Public Welfare's Bureau of Hearings and Appeals in the above-captioned matter is AFFIRMED.