J.F. v. Department of Human Services, Aplt.

J
                               [J-48-2020] [MO: Dougherty, J.]
                        IN THE SUPREME COURT OF PENNSYLVANIA
                                      MIDDLE DISTRICT


    J.F.,                                           :   No. 72 MAP 2019
                                                    :
                          Appellee                  :   Appeal from the Order of the
                                                    :   Commonwealth Court dated March
                                                    :   7, 2019 at No. 462 C.D. 2018
                   v.                               :   Reversing the Order of the
                                                    :   Department of Human Services,
                                                    :   Bureau of Hearings and Appeals,
    DEPARTMENT OF HUMAN SERVICES,                   :   dated March 28, 2018 at Nos. 021-
                                                    :   17-0824 and XXX-XX-XXXX and
                          Appellant                 :   Remanding for hearing.
                                                    :
                                                    :   ARGUED: May 21, 2020


                                      DISSENTING OPINION


JUSTICE MUNDY                                              DECIDED: February 17, 2021
            Under the plain language of the Child Protective Services Law (CPSL), an

identified perpetrator in a child abuse investigation, who subsequently enters into an

Accelerated Rehabilitative Disposition (ARD) program with regard to criminal charges

stemming from the same incident, is not entitled to an administrative hearing to challenge

the designation of the investigative report as founded. Accordingly, I dissent.

            As the Majority notes, “[a] report is ‘founded’ as a result of a determination or

disposition made by a judicial authority, external to DHS, but in reliance on the same

factual circumstances involved in the allegation of child abuse.” Majority Op. at 3 (citing

23 Pa.C.S. § 6303(a) (definition of “founded report”) (emphasis added)).1 The list of

dispositions external to DHS that may serve as a basis for a founded report are as follows:

1 Whereas an “indicated report” is determined by DHS, and thus subsequently subject to
review by the same. Specifically, an “indicated report” is “a report of child abuse made
             “Founded report.” A child abuse report involving a
             perpetrator that is made pursuant to this chapter, if any of the
             following applies:

             (1) There has been a judicial adjudication based on a finding
             that a child who is a subject of the report has been abused
             and the adjudication involves the same factual circumstances
             involved in the allegation of child abuse. The judicial
             adjudication may include any of the following:

                    (i) The entry of a plea of guilty or nolo contendere.

                    (ii) A finding of guilt to a criminal charge.

                    (iii) A finding of dependency under 42 Pa.C.S. § 6341
                    (relating to adjudication) if the court has entered a
                    finding that a child who is the subject of the report has
                    been abused.

                    (iv) A finding of delinquency under 42 Pa.C.S. § 6341
                    if the court has entered a finding that the child who is
                    the subject of the report has been abused by the child
                    who was found to be delinquent.

             (2) There has been an acceptance into an accelerated
             rehabilitative disposition program and the reason for the
             acceptance involves the same factual circumstances
             involved in the allegation of child abuse.

23 Pa.C.S. § 6303 (emphasis added).
      The CPSL contains no mechanism for challenging the founded report, as the

designation was not, or no longer, triggered by an investigation and assessment made by

the agency, but rather by the indicated perpetrator taking criminal responsibility through




pursuant to this chapter if an investigation by the department or county agency
determines that substantial evidence of the alleged abuse by a perpetrator exists based
on any of the following: (i) Available medical evidence. (ii) The child protective service
investigation. (iii) An admission of the acts of abuse by the perpetrator.” 23 Pa.C.S.
§ 6303.



                           [J-48-2020] [MO: Dougherty, J.] - 2
judicial adjudication.2 As prescribed by the statute, a founded report may be expunged

for the following reasons.

              (c.1) Founded reports.--A person named as a perpetrator in
              a founded report of child abuse must provide to the
              department a court order indicating that the underlying
              adjudication that formed the basis of the founded report has
              been reversed or vacated.

23 Pa.C.S. § 6341(c.1).
       The Lancaster County Children and Youth Services (CYS) filed a motion to dismiss

J.F.’s request for review or hearing. J.F. argued the motion should be denied on the basis

there had not been an adjudication of child abuse in the court of law. The Administrative

Law Judge (ALJ) correctly granted CYS’s motion to dismiss J.F.’s appeal without a

hearing after J.F. entered the ARD program, noting the circumstances leading to the child

abuse reports and the criminal charges were identical. DHS Bureau of Hearings and

Appeals (Bureau) subsequently adopted the ALJ’s recommendation.


2Section 6341 contains an express mechanism for challenging an indicated status to
DHS, the agency responsible for the designation.
              (2) Any person named as a perpetrator, and any school
              employee named, in an indicated report of child abuse may,
              within 90 days of being notified of the status of the report,
              request an administrative review by, or appeal and request a
              hearing before, the secretary to amend or expunge an
              indicated report on the grounds that it is inaccurate or it is
              being maintained in a manner inconsistent with this chapter.
              The request shall be in writing in a manner prescribed by the
              department.

23 Pa.C.S. § 6341(a)(2). A refusal of administrative review results in a right to appeal
and request a hearing to review the agency’s determination which was within their
discretion.

Id. at

§ 6341(c). Instantly, J.F. initially requested review or a hearing from the
July 6, 2017 notice from DHS that her reports’ status was indicated and that she would
be “listed in the statewide database for child abuse as a perpetrator of an indicated report
of child abuse.” DHS Notice dated 7/6/17. While the request for review or a hearing was
pending, J.F. entered into the ARD program and the status of the pending reports were
changed from indicated to founded.

                             [J-48-2020] [MO: Dougherty, J.] - 3
       Nevertheless, the Commonwealth Court reversed the Bureau and held J.F. was

entitled to an administrative hearing. J.F. v. Dep’t of Human Services, 

204 A.3d 1042

(Pa. Cmwlth. 2019). The Commonwealth Court relied on two cases to support its remand

for an administrative hearing, J.G. v. Dep’t of Public Welfare 

795 A.2d 1089

(Pa. Cmwlth.

2002), and R.F. v. Dep’t of Public Welfare, 

801 A.2d 646

(Pa. Cmwlth. 2002).

       In J.G. the Bureau dismissed J.G.’s appeal on the basis there is no right to appeal

from a founded report under the CPSL. Relevantly, the initial report of child abuse

indicated J.G., mother, and C.M., father, as suspected perpetrators of abuse against their

two-month-old son. A dependency hearing was held and the trial court adjudicated the

child dependent, finding the child was abused while in the care of both parents. Based

on this judicial adjudication, the status of the report was changed to founded. The

Commonwealth Court reversed, holding “Section 504 of the Administrative Agency Law,

2 Pa.C.S. § 504, provides that ‘[n]o adjudication of a Commonwealth agency shall be

valid as to any party unless he shall have been afforded reasonable notice of a hearing

and an opportunity to be heard.’” 

J.G., 795 A.2d at 1092

. Further, as cited by the Majority,

the J.G. Court held “[a] founded report of child abuse constitutes an ‘adjudication’ as it is

a final determination which that affects a named perpetrator's personal rights by branding

him or her as a child abuser in a Statewide central register of child abuse.”

Id. The rationale following

the court’s reversal, however, is necessary to the future application of

its holding.

                        A report is deemed “founded” if there has been any
               judicial adjudication based upon a “finding that a child who is
               a subject of the report has been abused.” Section 6303 of the
               Law, 23 Pa.C.S. § 6303. According to the Law, a judicial
               adjudication of abuse includes “the entry of a plea of guilty or
               nolo contendere or a finding of guilt to a criminal charge
               involving the same factual circumstances involved in the
               allegation of child abuse.”

Id. These adjudications encompass

not only a judicial finding that the child has been


                            [J-48-2020] [MO: Dougherty, J.] - 4
              abused, but that the perpetrator has been found guilty of
              abuse in a criminal proceeding. Where a founded report is
              based upon such an adjudication, an appeal would, in most
              instances, constitute a collateral attack of the adjudication
              itself, which is not allowed.8 Moeller v. Washington County, [
              ] 

44 A.2d 252

, 254 ([Pa.] 1945) (“It is an established principle
              of law ... that a judgment, order or decree rendered by a court
              having jurisdiction of the parties and the subject matter,
              unless reversed or annulled in some proper proceeding, is not
              open to collateral attack in any other proceeding.”).

                       Where, however, a founded report is based upon a
              judicial adjudication in a non-criminal proceeding, such as a
              dependency action, in which the court enters a finding that the
              child was abused, but does not issue a corresponding finding
              that the named perpetrator was responsible for the abuse, a
              named perpetrator is entitled to an administrative appeal
              before the secretary to determine whether the underlying
              adjudication of child abuse supports a “founded report” of
              abuse. We emphasize that the scope of the appeal is for the
              limited purpose of determining whether or not the underlying
              adjudication supports a founded report that the named
              perpetrator is responsible for the abuse and would not permit
              a named perpetrator to collaterally attack or otherwise
              challenge the underlying judicial adjudication.
              ---------------------------------------------------------------------------------
              8 The only proper way to challenge the judicial adjudication

              would be to file an appeal where the adjudication has been
              rendered.

Id. at

1092–93.      On this rationale, the Commonwealth Court determined that “the

underlying adjudication relied upon . . . merely indicates a finding that A.M. was abused,

and does not contain a definitive finding that J.G. is guilty of that abuse, J.G. is entitled to

an administrative appeal to determine whether the adjudication of abuse constitutes

sufficient evidence to support a founded report that J.G. committed that abuse.”

Id. at

1093.   Accordingly, the basis for granting a hearing was for the limited purpose of

determining if J.G. was the perpetrator. In subsequent opinions, the Commonwealth

Court has noted “The CPS Law does not provide a right to appeal for perpetrators named

in a founded report. However, pursuant to the Administrative Agency Law, a founded


                               [J-48-2020] [MO: Dougherty, J.] - 5
report of child sexual abuse is appealable for the ‘limited purpose of determining whether

or not the underlying adjudication supports a founded report that the named perpetrator

is responsible for the abuse.’” D.M. v. Dep’t of Pub. Welfare, 

122 A.3d 1151

, 1155, n.3

(Pa. Cmwlth. 2015) (citing 

J.G., 795 A.2d at 1093

). Instantly, J.F. was the only identified

perpetrator in the report, and is not challenging identity.

       In R.F., Berks County Children and Youth Services received a report R.F. was

sexually abusing his daughter and opened an investigation. Additionally, CYS referred

the matter to law enforcement and criminal charges were filed. CYS changed the status

of its report to indicated, and R.F. subsequently pled nolo contendere to Endangering the

Welfare of a Child. Following R.F.’s guilty plea, the status of the child abuse report was

changed to founded in accordance with 23 Pa.C.S. § 6303. R.F. appealed “contending

that in his nolo contendere plea, he did not plead guilty to any sexual abuse and that was

a condition of his plea.” R.F., 

801 A.2d 648

. On appeal the Commonwealth Court noted

that in J.G. “while we held that there was a right to appeal, we specifically noted that in a

criminal proceeding, where there is an entry of a guilty plea or nolo contendere or a finding

of guilt to a criminal charge involving the same factual circumstances involved in the

allegation of child abuse, an appeal would ‘in most instances, constitute a collateral attack

of the adjudication itself, which is not allowed.’”

Id. at

649 (citing 

J.G., 795 A.2d at 1093

).

However, the court ultimately found that because R.F. “entered a plea of nolo contendere

to the charge against him of endangering the welfare of a child, but contends that his plea

is unrelated to child sexual abuse . . . R.F. does not challenge the criminal nolo

contendere plea but only challenges the designation of a founded status, he is not

collaterally attacking the trial court's determination but only the characterization given to

that plea.” 

R.F., 801 A.2d at 649

.




                            [J-48-2020] [MO: Dougherty, J.] - 6
       Neither of these cases support the sweeping expansion of today’s Majority

decision. While I am in agreement that there are circumstances, such as those in the

aforementioned cases, where a hearing may be necessary for a limited purpose, the

holding of the Majority rewrites the statute to add that all founded reports are entitled to a

hearing.3 At a minimum, the Majority affords a hearing in every circumstance where the

founded designation is based on entry into ARD in direct contravention of the

Legislature’s inclusion of Section 6303(2).

       In so doing, the Majority ignores the plain language of Section 6303(2) of the CPSL

which explicitly determined entry into an ARD program results in a designation of the child

abuse investigative report as founded. Further, the Majority ignores that definition of

“founded’ in Section 6303 was amended in 2013, after J.G. and R.F., to specifically

include subsection (2) pertaining to ARD.

       Instantly, J.F. entered the ARD program for both counts of “endangering the

welfare of children” as a result of leaving her 15-month-old twins home alone from

approximately 1:00 a.m. until 7:00 a.m., when a wellness check by law enforcement was

conducted following her hospitalization after being found semi-unconscious around 1:30

a.m. The statutory definition is as follows.

              § 4304. Endangering welfare of children

              (a) Offense defined.—

              (1) A parent, guardian or other person supervising the welfare
              of a child under 18 years of age, or a person that employs or
              supervises such a person, commits an offense if he knowingly
              endangers the welfare of the child by violating a duty of care,
              protection or support.



3 Judge Wojcik noted this in dissent, arguing the Commonwealth Court’s decision
expanded the law to afford an evidentiary hearing to all DHS founded reports.


                            [J-48-2020] [MO: Dougherty, J.] - 7
18 Pa.C.S. § 4304(a)(1). Likewise, the county agency noted its basis for indicating the

reports was “serious physical neglect of a child,” and “repeated, prolonged, or egregious

failure to supervise.”    Child Protective Services Investigation/Assessment Outcome

Reports at 7. In the Commonwealth Court, J.F. argued “an ARD disposition on charges

of endangering the welfare of children pursuant to 18 Pa.C.S.A. 4303 does not provide a

basis for child abuse.” Petition for Review, 4/6/18, at ¶ 16. Further, she argued a founded

report of child abuse is only “issued where there has been an adjudication of child abuse

in a court of law.”

Id. at

¶ 17.

       These statements are contrary to the plain language of the statute which clearly

states a basis for a “founded” report where “[t]here has been an acceptance into an

accelerated rehabilitative disposition program and the reason for the acceptance involves

the same factual circumstances involved in the allegation of child abuse.” 23 Pa.C.S.

§ 6303 (definition “founded report”). Thus, J.F.’s sole argument is that “without a record

of the proceeding to review, there is no reliable way to determine” whether the ARD is

based on the “same factual circumstances involved in the allegation of child abuse.”

Petition for Review, 4/6/18, at ¶ 22. Nevertheless, it is clear the plain language of the

statute indicated that if J.F. entered into an ARD program the status of her reports would

change to founded. Requiring a factual record to review would negate the inclusion of

ARD in subsection (2) of 6303.

       As the dissent in the Commonwealth Court noted, the Majority reframed J.F.’s

challenge to a due process claim that was never raised. J.F. failed to allege a basis for

a hearing (i.e., that she was incorrectly identified, or pled guilty to a charge other than the

one in the child abuse report). Rather, she entered an ARD program on criminal charges

stemming from the same incident as the child abuse reports, thus triggering the “founded”

status in Section 6303 of the CPSL.




                             [J-48-2020] [MO: Dougherty, J.] - 8
      Accordingly, I would reverse the Commonwealth Court’s decision granting an

administrative hearing and affirm the Bureau.




                          [J-48-2020] [MO: Dougherty, J.] - 9

Add comment

By

Recent Posts

Recent Comments