Submitted: April 18, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE
CHRISTINE FIZZANO CANNON, Judge.
HANNAH LEAVITT, PRESIDENT JUDGE.
(Mother), pro se, petitions for review of an
adjudication of the Department of Human Services, Bureau of
Hearings and Appeals (Bureau), denying her request to expunge
an indicated report from the ChildLine & Abuse
Registrythat named her as a perpetrator of child
abuse. In so holding, the Bureau adopted the recommended
adjudication of the Administrative Law Judge (ALJ) in its
entirety. Mother argues that the Bureau abused its discretion
in refusing to grant her a continuance of the hearing that
she could not attend because of her
incarceration.We reverse and remand.
November 13, 2017, the County Children and Youth Services
Agency (CYS) filed an indicated report of child abuse naming
Mother as the perpetrator of abuse of K.K., her two-year-old
daughter (Child). The report stated that as a result of an
October 16, 2017, altercation between Child's father
(Father) and Mother, Child was placed at great risk of harm.
On December 28, 2017, Mother requested the Department of
Human Services' (Department) review of CYS's report,
alleging that Child was not present during the altercation.
February 13, 2018, Mother entered a guilty plea to charges of
aggravated assault, possession of an instrument of crime,
simple assault, and recklessly endangering another person.
She was sentenced to 11½ to 23 months in the county
prison, to be followed by five years of
15, 2018, the Department reviewed the indicated report and
concluded that it was accurate. On June 8, 2018, Mother
appealed, requesting a hearing before the Bureau. On June 18,
2018, the Bureau mailed a notice to Mother at the county
prison, advising her that the hearing was scheduled for
September 13, 2018.
did not appear at the hearing, but CYS did. CYS advised the
ALJ that it sent Mother a "unified prehearing
statement" to complete. Notes of Testimony, 9/13/2018,
at 6 (N.T.__). The ALJ acknowledged that Mother had filed a
prehearing statement, in which she requested a continuance of
the hearing and permission to present a witness by telephone.
The ALJ observed that Mother did not provide a telephone
number where she could be reached at the county prison. The
ALJ also stated for the record that Mother had telephoned the
ALJ's office on September 4, 2018, to inquire into her
requested continuance and to explain that she was still
incarcerated. The ALJ's office informed Mother that she
needed CYS's agreement to the continuance and a
"waiver of the timeliness of the hearing." N.T. 8.
On September 7, 2018, the Bureau received a letter from
Mother requesting a continuance but, according to the ALJ,
that letter did not contain a waiver of the hearing
stated that "absent her waiver of timeliness, I'm
not permitted or the ranks don't allow me to entertain
the continuance request." N.T. 9. The ALJ asked
CYS's counsel about its position on the continuance,
assuming Mother "had provided the appropriate
waiver[.]" Id. CYS responded, "I believe I
most likely would have objected only because we're
prepared to proceed today." Id.
denied the continuance request, and the hearing commenced.
CYS presented two witnesses: Father and a CYS caseworker.
testified that on the night of October 15, 2017, he, Child,
and Mother slept together in the same bed. In the morning,
Father woke up "having [something like] bleach poured
down [his] throat…." N.T. 15. However, he was not
sure it was bleach, and he went back to sleep. Later, he
heard Mother coming back into the room. To prevent another
bleach attack, he put up his hand. When he looked up there
was blood running down his arm. Mother jumped on him with a
knife, which he grabbed and, in doing so, almost cut off his
testified that Child was next to him in the bed during
Mother's assault. When he grabbed the knife, he fell back
on the bed, and hit Child with his head. Child was scared and
confused and started screaming. Mother grabbed Child,
Father's keys and his wallet. He pinned down Mother with
his bleeding hand and used the other to call 911. The police
came and arrested Mother.
stated that Mother created a highly dangerous situation for
Child, who could have been stabbed accidentally. He did not
know what precipitated Mother's attack. Her face was
blank, and she did not speak until the incident was over. She
said she did it because Father was "mean to [her]."
CYS caseworker testified. She interviewed Mother at the
county prison. Mother admitted putting bleach on a towel and
pushing it into Father's mouth. She also admitted to
getting a knife from the kitchen and stabbing him. She was
upset because she thought Father had been unfaithful. The
caseworker also spoke to Father, who told her that Child had
been in the room when the incident occurred. The caseworker
concluded that ...