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D.M. v. Department of Public Welfare

Commonwealth Court of Pennsylvania

July 27, 2015

D.M., Petitioner
v.
Department of Public Welfare, Respondent

Submitted December 26, 2014.

Page 1152

Appealed from No. 087-13-0062. Department of Public Welfare.

Ronald D. Amrhein, Jr., Sharon, for petitioner.

Jeffrey Schmoyer, Senior Counsel, Pittsburgh, for respondent.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY SENIOR JUDGE COLINS.

OPINION

Page 1153

JAMES GARDNER COLINS, SENIOR JUDGE.

On August 6, 2014, the Department of Public Welfare[1], Bureau of Hearings and Appeals (DHS) issued a final order adopting the Recommendation of the Administrative Law Judge (ALJ), which dismissed D.M.'s (Petitioner) appeal to expunge a founded report of child abuse maintained in the ChildLine Registry pursuant to the Child Protective Services Law (CPS Law).[2] Petitioner raises the following issues: (i) whether the record from Petitioner's criminal proceeding contains sufficient facts to serve as the basis for a " founded" report of child abuse; and (ii) whether a report of suspected child abuse based upon court action must be reported as " unfounded" if it is not finalized within sixty (60) days of the date of criminal sentencing. For the reasons that follow, we affirm.

The subject child (Child) was seventeen years old at the time of the events at issue and a resident at a facility for adolescents. (ALJ Opinion, Findings of Fact (F.F.) ¶ ¶ 1-4.) Petitioner was employed at the residential facility and in his capacity as a staff member and supervisor was responsible for Child's welfare. ( Id. F.F. ¶ ¶ 6-7.) On January 19, 2012, DHS received an oral report of suspected child sexual abuse. ( Id. F.F. ¶ 8.) The Office of Children, Youth and Families -- Western Region (OCYF) investigated and on March 12, 2012, completed a report of its investigation (CY-48 report) with a status determination " pending criminal court action" based upon Child's allegations that Petitioner made sexual comments to Child and attempted to engage her in sexual activities while she was a resident at the facility where Petitioner was employed. (Certified

Page 1154

Record (C.R.) Item 3, March 12, 2012 CY-48 report; ALJ Opinion, F.F. ¶ 9.)

On March 12, 2012, criminal charges were also filed against Petitioner by the Office of the District Attorney of Mercer County for Unlawful Contact with a Minor, Harassment, Open Lewdness and Corruption of Minors based upon Petitioner's conduct towards Child. ( Id. F.F. ¶ 10.) The information filed by the District Attorney stated that the harassment charge was based upon the following:

with intent to harass, annoy, or alarm another person, [Petitioner] did communicate to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures, in that [Petitioner] did state to a seventeen (17) year old female victim " I bet you don't shave your [p--y]." and/or did ask the victim what kind of underwear she was wearing and/or did grab his penis in front of the victim while stating " I bet you can't handle this", said incident occurring at REDACTED in the Borough of Greenville, Mercer County, Pennsylvania

(C.R. Item 3, Criminal Information; ALJ Opinion, F.F. ¶ 12.) On February 5, 2013, Petitioner pled no contest to harassment and the remaining charges were withdrawn. (ALJ Opinion, F.F. ¶ 13.) On April 10, 2013, the Court of Common Pleas filed Petitioner's sentencing order. ( Id. F.F. ¶ 14.) On August 21, 2013, the Court of Common Pleas filed the transcript of Petitioner's plea colloquy. ( Id.)

On September 10, 2013, OCYF completed a second CY-48 report and, based upon Petitioner's plea of no contest to the charge of harassment, changed the status determination from " pending criminal court action" to " founded." (C.R. Item 3, September 9, 2013 CY-48 report; ALJ Opinion, F.F. ¶ 15.) The September 10, 2013 CY-48 report concluded that Petitioner had engaged in sexually explicit conversations with Child that met the criteria for sexual abuse or exploitation under the CPS Law. (C.R. Item 3, September 9, 2013 CY-48 report; ALJ Opinion, F.F. ¶ 16.) On September 20, 2013, Petitioner was informed that his name was listed on the ChildLine registry with a status determination of " founded." (ALJ Opinion, ¶ 17.) On September 26, 2013, Petitioner requested a hearing to determine whether the report should be maintained or expunged and that hearing was held before the ALJ on February 3, 2014. (C.R. Item 2, Appeal Request; C.R. Item 7, Hearing Transcript (H.T.); ALJ Opinion, F.F. ¶ 18.)

On July 28, 2014, the ALJ issued a report and recommendation concluding that Petitioner's appeal should be dismissed and the report of child sexual abuse should be maintained as " founded" on the ChildLine Registry. The ALJ based this conclusion on the finding that Petitioner was a perpetrator within the meaning of the CPS Law and Petitioner's no contest plea to harassment was based upon the same facts and circumstances giving rise to the report of child sexual abuse. (ALJ Opinion at 14-15.) The ALJ also concluded that the CPS Law and implementing regulations require OCYF to file a new CY-48 report once a final status determination has been made, but do not require the new CY-48 report to be filed within 60 days of an alleged perpetrator's sentencing order. ( Id. at 13.) DHS issued an August 6, 2014 order adopting the ALJ's report and recommendation in its entirety, and Petitioner petitioned this Court for review.

Initially, Petitioner argues that his plea to the criminal charge of harassment does not establish that he was a perpetrator within the meaning of the CPS Law and it is therefore insufficient to support

Page 1155

a founded report.[3] The ALJ found that Petitioner was employed as a staff member at the residential facility where Child resided and that as an employee of the residential facility he was responsible for Child's welfare. Petitioner's argument is essentially that this finding is not supported by substantial evidence because the ALJ is prohibited from looking outside the confines of the judicial adjudication when making findings of fact.

The CPS Law defines a " perpetrator" as a person who has committed child abuse and is responsible for the child's welfare. 23 Pa. C.S. § 6303. The regulations promulgated by DHS pursuant to the CPS Law define a " person responsible for the child's welfare," as a " person who provides permanent or temporary care, supervision, mental health diagnosis, training or control of a child in lieu of parental care, supervision and control." 55 Pa. Code § 3490.4(i). As an employee of the adolescent facility where Child resided, Petitioner falls within the definition of a perpetrator within the meaning of the CPS Law; however, the record from Petitioner's judicial adjudication does not identify Petitioner's place of employment.

For a report to be given the status of " founded", there must be a judicial adjudication and the judicial adjudication must involve " the same factual circumstances involved in the allegation of child abuse." 23 Pa. C.S. § 6303.[4] Once DHS has demonstrated that the factual circumstances of the judicial adjudication and the ...


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