K. G., Petitioner
Department of Human Services, Respondent
Argued: April 12, 2018
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge HONORABLE CHRISTINE FIZZANO
HANNAH LEAVITT, President Judge
(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.
county Office of Children, Youth and Families filed an
indicated report of child abuse with the ChildLine and Abuse
Registry. 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.
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
4, 2017, the ALJ issued a rule to show cause to Mother to
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.
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. Mother did not
petition for this Court's review of the Bureau's
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.
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.
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
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.
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. 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 ...