J.F., Appellee v. DEPARTMENT OF HUMAN SERVICES, Appellant
No. 72 MAP 2019
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
DECIDED: February 17, 2021
[J-48-2020]
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
Aрpeal from the Order of the Commonwealth Court dated March 7, 2019 at No. 462 C.D. 2018 Reversing the Order of the Department of Human Services, Bureau of Hearings and Appeals, dated March 28, 2018 at Nos. 021-17-0824 and 021-17-0825 and Remanding for hearing. ARGUED: May 21, 2020
JUSTICE DOUGHERTY
This appeal involves a founded report of child abuse, in which the “founded” designation resulted from the identified perpetrator‘s entry into an accelerated rehabilitative disposition (ARD) program with regard to criminal charges initiated for the same incident, as is authorized by the Child Protective Service Law (CPSL),
I. Legal Background
We begin with a brief review of the requirements and consequences of the statutory and rule-based underpinnings of the
A. Child Protective Service Law
Under the CPSL, “[t]he term ‘child abuse’ shall mean intentionally, knowingly or recklessly doing” any of an express list of ten forms of conduct including,
Any of the following when committed by a perpetrator that endangers a child‘s life or health, threatens a
child‘s well-being, causes bodily injury or impairs a child‘s health, development or functioning: (1) A repeated, prolonged or egregious failure to supervise a child in a manner that is appropriate considering the child‘s developmental age
and abilities. (2) The failure to provide a child with adequate essentials of life, including food, shelter or medical care.
Upon completion of an investigation of a report of child abuse, the Department of Human Services (DHS) or its designated county children and youth agency (county agency) categorizes the
(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.
(3) There has been a consent decree entered in a juvenile proceeding under
42 Pa.C.S. Ch. 63 (relating to juvenile matters), the decree involves the same factual circumstances involved in the allegation of child abuse and the terms and conditions of the consent decree include an acknowledgment, admission or finding that a child who is the subject of the report has been abused by the child who is allegеd to be delinquent.(4) A final protection from abuse order has been granted under section 6108 (relating to relief), when the child who is a subject of the report is one of the individuals protected under the protection from abuse order and:
(i) only one individual is charged with the abuse in the protection from abuse action;
(ii) only that individual defends against the charge;
(iii) the adjudication involves the same factual circumstances involved in the allegation of child abuse; and
(iv) the protection from abuse adjudication finds that the child abuse occurred.
When a report of child abuse is substantiated as either indicated or founded, or amended from indicated or founded, the named perpetrator is provided with notice of the status, including the effect of a substantiated report upon future employment opportunities involving children, and the individual‘s name is added to the statewide child abuse database where it may remain indefinitely.
With respect to an individual‘s right to appeal a child abuse determination, Section 6341 of the CPSL, titled “Amendment or expunction of information” provides that “[a]ny person named as a perpetrator . . . in an indicated report of child abuse” may either “request an administrative review by, or appeal and request a hearing before, the [DHS] 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 [the CPSL].”
B. Accelerated Rehabilitative Disposition
ARD is a pretrial disposition of certain cases, governed primarily by Chapter 3 of the Pennsylvania Rules of Criminal Procedure, which suspends formal criminal proceedings before conviction and provides the accused with certain rehabilitative conditions, the completion of which results in the dismissal of the pending criminal charges and a clean record for the defendant. See
II. Factual and Procedural Background
In the case presently before the Court, on July 6, 2017, the county agency filed two identical indicated reports (CPS reports) identifying J.F. as a perpetrator of abuse of her fifteen-month-old twin children.1 Child Protective Services Investigation/Assessment Outcome Reports at 7-9 (R.R. at 92a-94a, 102a-104a). According to the CPS reports, on May 7, 2017, J.F. left the children alone in her home from approximately 12:00 a.m. until 7:30 a.m.
DHS sent J.F. a notice of the reports’ status along with a copy of the indicated reports. DHS Notice dated 7/6/2017. The first sentence of the notice reads, “YOU ARE LISTED IN THE STATEWIDE DATABASE FOR CHILD ABUSE AS A PERPETRATOR IN AN INDICATED REPORT OF CHILD ABUSE[,]” and, as required by CPSL Section 6368, further delineates the consequences of the indicated report аs follows:
Being the perpetrator in an indicated report will probably prevent you from working in a child care service program or a public or private school or from becoming a foster care or adoptive parent. It could also prevent you from volunteering in a child care services program or public or private school or from obtaining certain educational degrees or certificates. It may also affect many other types of jobs.
disagree with the report listing you as a child abuser and want it to be reviewed.” Request for Review or Hearing dated 8/3/2017. The form, in its entirety, includes designated spaces for contact informаtion, the report‘s identification number, signature and date, as well as two check boxes: the first box corresponds to a request for administrative review by DHS and provides space and instructions to explain the reasons for disagreement, and the second box corresponds to a request to “skip the review and go directly to a hearing” without space to include any elaboration.
While her administrative appeal of the CPS reports was pending, J.F. entered into an ARD for both criminal counts of endangering the welfare of children. Commonwealth v. [J.F.] Criminal Docket at 2 (R.R. at 116a). In pertinent part, the affidavit of probable cause supporting the criminal complaint against J.F. states, “On 9 May 2017, [J.F.] was interviewed [at the police station by the affiant police officer]. [J.F.] admitted to leaving the residence at some time after 0001 hours on May 7th 2017, and going to [a bar] and consuming alcohol to the point that she lost consciousness.” Affidavit оf Probable Cause dated 5/23/2017 (R.R. at 56a). The conditions for J.F.‘s ARD included, inter alia, completion of a drug and alcohol evaluation, community service, and costs totaling approximately $2,500. Criminal Docket at 2, 6-7 (R.R. at 116a, 120a-121a).
As a result of J.F.‘s entry into ARD, the county agency changed the status of the CPS reports from “indicated” to “founded,” then filed a motion to dismiss J.F.‘s administrative appeal, attaching the criminal court docket, and averring the factual circumstances of the ARD were the same as the CPS reports which authorized the county agency to change the reports’ status to founded. DHS Notice dated 1/17/2018 (R.R. at 110a); Motion to Dismiss dated 12/18/2017 (R.R. at 113a). J.F. filed a response to the motion in which she requested the hearing on her challenge proceed, asserting “[a] founded report of child abuse is issued where there has been an adjudication of child abuse in a court of law[,]” and arguing the statements in the affidavit of probable cause upon which her criminal charges were based did not meet the definition of child abuse nor establish any serious physical injury or imminent risk of injury to the children, and acceptance into the ARD program did not constitute a judicial finding relating to the seriousness of injury or risk level. Response to Motion to Dismiss dated 12/28/2017 at ¶¶13, 16-18 (R.R. at 18a-19a).
The administrative law judge (ALJ) issued a Recommendation and Adjudication to grant the county agency‘s motion to dismiss J.F.‘s appeal without a hearing. J.F. In re: C.F. et al., Recommendation and Adjudication dated 2/28/2018 (Bureau of Hrgs. & Appeals) (R.R. at 8a-15a). Therein, the ALJ issued findings of fact as related by the CPS reports and the affidavit of probable cause, and reasoned the hearing was not necessary because: first, the CPSL definition of child abuse regarding serious physical neglect does not require findings related to severity of injury or risk level as J.F. claimed, but rather a showing of egregious failure to supervise which was met by J.F.‘s admission she left the children unsupervised for hours while she was at a bar; and second, the factual circumstances described in the CPS reports and affidavit of probable cause were identical, thus J.F.‘s entry into ARD for child endangerment charges met the CPSL definition of founded report, to which there is no right to administrative appeal.
J.F. petitioned for review before the Commonwealth Court, which reversed the Bureau‘s dismissal of J.F.‘s request and concluded she was entitled to an administrative hearing. See J.F. v. Dep‘t of Human Services, 204 A.3d 1042 (Pa.Cmwlth. 2019). The court recognized the CPSL guarantees a hearing for named child abuse perpetrators seeking to challenge indicated reports of child abuse, but such a guarantee does not apply to founded reports. Id. at 1046-47, citing
In reaching its conclusion that an administrative hearing was required in this case, the court reviewed its prior decisions in J.G., 795 A.2d 1089, and R.F. v. Dep‘t of Public Welfare, 801 A.2d 646 (Pa. Cmwlth. 2002), wherein the court interpreted provisions of the Administrative Agency Law,
In J.G., where the child who was the subject of an indicated CPS report exhibited injuries consistent with shaken baby syndrome, the orphans’ court adjudicated the child dependent and made a finding the child had been abused; however, the orphans’ court did not make a definitive finding regarding the identity of the perpetrator of the abuse. 795 A.2d at 1090-91. The county agency then changed the status of the CPS report, which named both of the child‘s parents as perpetrators, to founded.
In R.F., the county agency filed an indicated CPS report naming the child‘s father as a perpetrator of sexual abuse. 801 A.2d at 647. The child‘s father was also criminally charged, and as a condition of a plea bаrgain agreement, he pleaded nolo contendere to one count of Endangering the Welfare of Children,
Relating J.G. and R.F. to the case under consideration, the Commonwealth Court observed that a founded CPS report, because it is a final determination by an agency that affects a person‘s personal rights or privileges, is “unquestionably” an adjudication as defined by the Administrative Agency Law, which further instructs, “‘[n]o adjudication . . . shall be valid . . . [without] notice of a hearing and an opportunity to be heard.‘” J.F., 204 A.3d at 1049, quoting
Judge Wojcik dissented, viewing the majority‘s analysis as reframing J.F.‘s аrgument into a due process challenge rather than the substantial evidence challenge she pleaded, and opining its decision expanded the law to afford an evidentiary hearing before DHS for every founded report of child abuse. Id. at 1050 (Wojcik, J. dissenting).
The dissent noted, under the Crimes Code, a parent commits the criminal offense of child endangerment if it “‘knowingly endangers the welfare of a child by violating a duty of care, protection or support[;]‘” and under the CPSL, a county agency may substantiate a CPS report based on, among other things, a perpetrator‘s admission to acts constituting an intentional, knowing, or reckless “causing [of] serious physical neglect of a child[,]” per Section 6303(b.1), which is further defined by Section 6303(a) as conduct that “endangers a child‘s life or health, threatens a child‘s well-being, causes bodily injury or impairs a child‘s health, development or functioning [including, inter alia]: a repeated, prolonged or egregious failure to supervise a child in a manner that is appropriate considering the child‘s developmental age and abilities.” Id. at 1050-51, quoting
Thus, in the dissеnt‘s view, the factual circumstances underlying J.F.‘s acceptance into ARD were the same as those involved in the allegation of child abuse, and provided a proper basis for a founded CPS report which did not require an evidentiary hearing.
DHS petitioned for allowance of appeal of the Commonwealth Court‘s decision to this Court. We accepted the following issue for review:
Is a perpetrator of child abuse entitled to an administrative hearing on the facts of a founded report after her entry into an accelerated rehabilitative disposition program when the perpetrator admits that the factual circumstances leading to the criminal charges match those on which the founded report was based?
J.F. v. Dep‘t of Human Services, 221 A.3d 631 (Table) (per curiam). As an appeal by allowance from a decision of an administrative agency, “[o]ur review requires that the agency decision be affirmed absent a finding that constitutional rights were violated, an error of law was committed, that the procedure before the agency was contrary to statute, or that the findings of fact are not supported by substantial evidence.” G.V., 91 A.3d at 672; see also
III. Arguments
DHS advances the plain language of the CPSL in support of its position the Commonwealth Court majority erred by requiring an administrative hearing on a founded report where the named perpetrator‘s admission leading to her criminal charges and subsequent entry into ARD were based on the same factual circumstances and admission as the founded CPS report. Appellant‘s Brief at 10. DHS observes, unlike the statutory provisions regarding an indicated report which clearly provide for the right to a review or hearing, the CPSL provides no right of appeal for founded reports.
Consistent with her position before the Bureau and the Commonwealth Court, J.F. argues the affidavit of probable cause and allegations in the criminal complaint, upon which there is no adjudication оf any facts upon her entry into ARD, do not provide a sufficient factual basis to determine if the criteria for child abuse has been met, and therefore are not sufficient to warrant the denial of an administrative hearing. Appellee‘s Brief at 2-3. Because there is no record to review from the ARD proceeding, according to J.F., there is no reliable way to determine if “the reason for the acceptance [into an ARD program] ‘involves the same factual circumstances involved in the allegation of child abuse‘” as is required to meet the CPSL‘s criteria for a founded report.
IV. Analysis
Notwithstanding the merits of J.F.‘s challenge to the substantiated reports of child abuse, which are not before the Court, this case reaches our review from J.F.‘s request to be heard on her challеnge via an administrative hearing, which the DHS Bureau of Hearings and Appeals denied. The sole matter before the Commonwealth Court was whether dismissal of J.F.‘s challenge without a hearing was in error. We now address whether the Commonwealth Court properly reversed the Bureau‘s denial.
Hearings and appeals conducted by DHS, through the Bureau, are governed by Pennsylvania‘s Administrative Agency Law,
Incorporated into our standard for reviewing appeals of agency decisions, Section 704 of the Administrative Agency Law is instructive regarding a reviewing court‘s options for disposing of the appeal, providing, in pertinent part,
[T]he court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter A of Chapter 5 (relating to practice аnd procedure of Commonwealth agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence.
No 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. All testimony shall be stenographically recorded and a full and complete record shall be kept of the proceedings.
A. Agency Adjudication
Section 101 of the Administrative Agency Law defines “adjudication” for purposes of that statute as follows:
Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made. The term does not include any order based upon a proceeding before a court or which involves the seizure or forfeiture of property, paroles, pardons or releases from mental institutions.
However, subsequent to A.Y., and the Commonwealth Court‘s decision in J.G., this Court directly considered the impact of the consequence of a substantiated CPS report, i.e., the named perpetrator‘s inclusion on the statewide child abuse database, on the individual‘s constitutional right to reputation, and concluded there was no deprivation of reputation sufficient to invoke constitutional due process protections beyond what was already established by law. R. v. Commonwealth, Dep‘t of Public Welfare, 636 A.2d at 149-53. In R., the Court recognized individuals have an interest in their reputation which is protected by Article I, Section 1 of the Pennsylvania Constitution.3 Id. at 149, 152. Nevertheless, the R. Court explained that the strictures of the CPSL mandate confidentiality of information contained in the statewide child abuse registry, with the release of information provided only to certain listed entities in specifically defined circumstances. Id. at 149-50, citing
general public, the risk of adverse impact to his reputation was limited, outweighed by the state‘s interest in protecting the child from future abuse, and not a sufficient basis to require process beyond what was afforded by the established procedures for challenging a substantiated child abuse report. Id. at 150-53; see also G.V., 91 A.3d at 673-74 (reversing Commonwealth Court‘s determination due process required a clear and convincing, rather than substantial, evidence standard in child abuse expungement appeals due to potential adverse effects on named perpetrator‘s reputation). According to the dissent below, the controlling precedent espoused by R. and G.V. undermines the basis of the Commonwealth Court‘s well-established principle that a founded report is an adjudication as anticipated by the Administrative Agency Law. See J.F., 204 A.3d at 1055-56.
Yet, returning to the definition of an “adjudication” by a Commonwealth agency, the question is not, as J.G. and its progeny might suggest, whether the “branding” of a named perpetrator of child abuse in the statewide database is a deprivation of a constitutional right to reputation, but, more broadly, whether the consequence of being a registered child abuser “affect[s the] personal or property rights, privileges, immunities, duties, liabilities or obligations” of the individual. See
B. Opportunity for Hearing
Because J.F.‘s founded reports of child abuse are agency adjudications, we next review whether she was afforded adequate opportunity to be heard as required by Section 504 of the Administrative Agency Law. See
As described supra, a report of child abuse is founded where, based on the same facts and circumstances of the child abuse report, either: a court has made a judicial adjudication based on a finding the child was abused, including a plea of nolo contendere or a plea or finding of guilt in a criminal matter, or a finding of abuse made in a dependency, delinquency, or protection from abuse matter, see
Because the “founded” designation is dependent upon a judicial determination, the denial of a hearing on an administrative appeal of a founded report has typically been upheld by the Commonwealth Court where it would constitute an impermissible collateral attack on the judicial action. See, e.g., J.C. v. Dep‘t of Public Welfare, 138 A.3d 57, 64-65 (Pa. Cmwlth. 2016) (“Because [the named perpetrator] was afforded a full and fair counseled opportunity to be heard in his criminal action regarding the same abuse charges that formed the basis for the founded reports, his expungement request must be barred as an impermissible collateral attack of his underlying criminal convictions.“); see also, e.g., J.G., 795 A.2d at 1093 (where dependency adjudication of child abuse did not determine who perpetrated abuse, the named perpetrator‘s administrative appeal was not a collateral attack of dependency adjudication and administrative hearing was warranted), R.F., 801 A.2d 646, 649 (where named perpetrator did not challenge plea of nolo contendere to child endangerment, but asserted the plea was unrelated to allegations of abuse, challenge was not collateral attack of pleа, and perpetrator was entitled to administrative hearing on whether report was properly founded). Consistent with this prohibition, while the CPSL explicates the procedural mechanism for administratively challenging an indicated report of child abuse — that is, the named perpetrator may request administrative review and/or a hearing pursuant to Section 6341, subsections (a)(2), (c), and (c.2) — the CPSL provides no such procedure for challenging a founded report, only that the named perpetrator therein “must provide to the [D]epartment [of Human Services] a court order indicating that the underlying adjudication that formed the basis of the founded report has been reversed or vacated.”
DHS concedes this silence on administrative protocol for reviewing a founded report does not mean the Bureau cannot review a founded report; however, it contends the Commonwealth Court has narrowеd such review to only whether the factual circumstances underlying the founded report are the same as the factual circumstances underlying the judicial adjudication or disposition upon which the founding is based. Appellant‘s Brief at 11. But the Commonwealth Court has articulated at least one other important basis for requiring an administrative hearing on a founded report, that is, where the record could not confirm whether the dependency court‘s adjudication of child abuse provided the named perpetrator with reasonable notice and a full and fair opportunity to be heard in the proceeding. See J.M., 94 A.3d at 1100-01.
In J.M., the Commonwealth Court reviewed its prior decisions’ reliance on the prohibition of collateral attacks in decisions to affirm or reverse the Bureau‘s denial of a hearing, noting a critical feature of a collateral attack was whether the named perpetrator had a “full and fair opportunity to be heard” in the judicial proceeding reflectеd by the founded report at issue — and includes the opportunity to present evidence, to cross-examine all witnesses, and to rebut evidence of abuse and neglect. Id. at 1099-1100. The court opined that where such features were present in the judicial proceeding, an attempt to file an administrative appeal from a founded report based on the same factual circumstances constitutes a collateral attack. Id., citing K.R. v. Dep‘t of Public Welfare, 950 A.2d 1069 at 1078-80 (Pa. Cmwlth. 2008) (“[I]f the findings made in the dependency proceeding in this case establish that K.R. abused the minors, it is unnecessary to provide K.R. with a separate administrative hearing to establish that K.R. abused the minors.“). However, the J.M. court concluded where such features were not present, the named perpetrator‘s administrative appeal was not a collateral attack, and the dependency adjudication could not serve as the basis for the founded report; thus remand to the Bureau for an administrative hearing was appropriate. Id. at 1101, citing
Likewise, we find the “full аnd fair opportunity to be heard” in the judicial proceeding reflected by the founded report to be dispositive as to whether the requirements in Section 504 of the Administrative Agency Law are met. The judicial disposition, which verifies the allegations in the report via the factual findings and admissions the court makes or accepts in connection with its proceeding, confers upon the report the status of being “founded.” For such status to be properly conferred, the judicial adjudication or disposition “must resolve all of the issues in the [CPS] report definitively and conclusively.” C.F., IV v. Dep‘t of Human Services, 174 A.3d 683, 692 (Pa. Cmwlth. 2017). It is for this reason a judicial adjudication cannot (usually) be collaterally attacked in an administrative proceeding, and for this same reason the only mechanism to challenge a founded report has been to appeal from and contest the judicial adjudication. Id.
Where the founded report reflects a judicial adjudication that is “based on a finding that a child who is a subject of the report has been abused” per Section 6303 of the CPSL, as in a criminal, juvenile delinquency, juvenile dependency, or protection from abuse matter, the contest is relatively straightforward: the court provides the opportunity for an evidentiary hearing, on a record, in which the named perpetrator may present a case, cross-examine witnesses, challenge evidence, and make arguments to attack the merits of the child abuse report, and the final outcome may be appealed to a higher court. In assessing the validity of the founded report in relation to Section 504 of the Administrative Agency Law, these features of judicial review demonstrate the statute‘s requisite elements, i.e., “reasonable notice[,]” “an opportunity to be heard[,]” and “a full and complete [stenographically recorded] record[.]”
However where, as here, the founded report reflects acceptance into ARD, the court‘s disposition is a non-final, “deferred adjudication,” which the court makes in its discretion without a record hearing, and without any factual determinations on the merits. See
Thus, though a “full and fair” opportunity to be heard is provided in due course when a founded report reflects a judicial adjudication, no such opportunity exists when the founded report reflects an ARD. Consequently, because the ARD judicial proceeding does not provide an opportunity to сhallenge, on the record, the factual underpinnings of the founded report, the requisite “opportunity to be heard” mandated by the Administrative Agency Law is not met, and the founded report cannot be considered a valid adjudication without further process.
To the extent DHS asserts J.F.‘s request for a hearing is not warranted because she fails to demonstrate that the factual circumstances of the substantiated child abuse reports are not the same as those underlying the reason for her acceptance into ARD, while we pass no judgment on the merits of J.F.‘s challenge to the reports, we are cognizant that the initial “pleading” in this litigation consists of nothing more than a DHS form document on which J.F. checked a box to request a hearing. DHS advances no provision of the General Rules of Administrative Practice and Procedure that would bar J.F. from unfolding the relevant aspects of her challenge within the context of an administrative hearing, nor does our review identify any provision that would opеrate as such a bar; indeed, in this case, it appears an administrative hearing before the Bureau is the only appropriate place for J.F. to make such a demonstration. See
V. Conclusion
Accordingly, we hold that, in the absence of another appropriate forum to challenge DHS‘s adjudication of child abuse in a recorded evidentiary hearing, a named perpetrator in a report designated as “founded” based upon the perpetrator‘s voluntary entry into an accelerated rehabilitative disposition is entitled to an administrative hearing. We therefore affirm the Order of the Commonwealth Court.
Chief Justice Saylor and Justices Baer, Todd, Donohue and Wecht join the opinion.
Justice Mundy files a Dissenting Opinion.
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