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K. G. v. Department of Human Services

Commonwealth Court of Pennsylvania

May 18, 2018

K. G., Petitioner
v.
Department of Human Services, Respondent

          Argued: April 12, 2018

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

          OPINION

          MARY HANNAH LEAVITT, President Judge

         K.G. (Mother) petitions for review of an order of the Secretary of Human Services denying her request for reconsideration of a decision of the Department of Human Services' (Department) Bureau of Hearings and Appeals (Bureau) to dismiss her appeal of an indicated report of child abuse. The narrow issue before this Court is whether the Secretary erred or abused his discretion in denying reconsideration of the Bureau's dismissal order. Because Mother does not address the reason for the Bureau's dismissal, i.e., her failure to respond to a rule to show cause, we must affirm.

         The county Office of Children, Youth and Families filed an indicated report of child abuse with the ChildLine and Abuse Registry.[1] The report named Mother as a perpetrator of physical abuse of her four-year-old child, J.L. (Child). Mother timely requested expunction of the indicated report and a hearing. An administrative law judge (ALJ) was assigned to hear Mother's appeal.

         While her appeal was pending, Mother was charged with simple assault, 18 Pa. C.S. §2701(a)(1), and harassment, 18 Pa. C.S. §2709(a)(1). On February 14, 2017, Mother entered a plea of guilty to the harassment charge; the assault charge was nolle prossed. Based on Mother's guilty plea, the Office of Children, Youth and Families notified the Department that Mother's ChildLine report should be changed from indicated to founded. On April 17, 2017, the ALJ issued a rule to show cause to the Office of Children, Youth and Families to provide documentation, including relevant court orders, to support the founded report. On April 26, 2017, the Office of Children, Youth and Families provided the documents from Mother's criminal proceeding, including the information charging her with simple assault and harassment and a copy of the trial court's order sentencing Mother to pay a $300 fine for the harassment offense. Mother asserts that she never received her copy of these documents and, thus, believed they were still outstanding.

         On May 4, 2017, the ALJ issued a rule to show cause to Mother to explain

why the above-captioned appeal should go to a hearing rather than be dismissed as the status of the above-captioned ChildLine report was changed from indicated to founded. [Section 6341 of the Child Protective Services Law, ] 23 Pa. C.S.A. [sic] § 6341 affords appellants a right to timely appeal indicated reports but the statute does not afford such a right with respect to founded reports.

         Certified Record (C.R.), Item No. 7 (emphasis added). The rule directed Mother to respond to the rule within 30 days with "a written response that specifically addresses the above concern including a concise explanation detailing the basis for the party's argument that the appeal should not be dismissed." Id. The rule specifically stated that Mother's "failure to timely respond in writing will result in the dismissal of the above-captioned appeal." Id. Mother did not respond and, on June 14, 2017, the Bureau dismissed her appeal.[2] Mother did not petition for this Court's review of the Bureau's dismissal order.

         On June 27, 2017, Mother filed an application for reconsideration of the Bureau's June 14, 2017, order with the Secretary of Human Services. Mother's sole argument for reconsideration was that she was entitled to an expunction hearing because the Office of Children, Youth and Families improperly changed her indicated report to founded based solely upon her conviction for harassment. On July 11, 2017, the Secretary issued an order denying reconsideration "for the reasons stated by the Bureau of Hearings and Appeals in its Final Administrative Action Order." C.R. Item No. 10. On August 10, 2017, Mother petitioned this Court to review the Secretary's order.

         On appeal, Mother argues that the conduct for which she was convicted did not establish the level of bodily injury necessary to satisfy the definition of child abuse under the Child Protective Services Law, 23 Pa. C.S. §§6301-6386. Thus, her conviction could not serve as a legal basis for automatically changing the child abuse report from indicated to founded. Mother asks this Court to vacate the Secretary's order denying reconsideration and remand for a hearing.

         The Department responds that Mother's argument on the merits of the decision of the Office of Children, Youth and Families is beside the point. Mother did not respond to the rule to show cause or timely petition for review of the Bureau's dismissal of her appeal. The only issue properly before this Court is whether the Secretary erred or abused his discretion in denying Mother's request for reconsideration, and Mother does not address the merits of the Secretary's decision.

         An agency's decision to grant or deny a request for reconsideration is a matter of discretion and will be reversed only where that discretion is abused. Keith v. Department of Public Welfare, 551 A.2d 333, 336 (Pa. Cmwlth. 1988). An abuse of discretion will only be found where the evidence shows there was fraud, bad faith, capricious action or abuse of power. J.B. Steven, Inc. v. Department of Transportation, 627 A.2d 278, 280 (Pa. Cmwlth. 1993) (citing Keith, 551 A.2d at 336). Reversal of a denial of reconsideration requires a remand because we do not decide the merits.

         In her brief, Mother argues that pleading guilty to the summary offense of harassment did not authorize the filing of a founded report in the ChildLine Registry. The Bureau dismissed her appeal of the indicated report because she did not reply to the rule to show cause. Mother did not petition for review of the Bureau's dismissal order.[3] The only question is whether the Secretary erred or abused his discretion in denying reconsideration of the Bureau's dismissal on grounds that Mother did not respond to the rule to show cause. Neither Mother's petition for review nor her brief address this question. Accordingly, Mother's challenge to the validity of the Secretary's decision has been waived. See City of ...


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