Opinion
No. 433 C.D. 2011
01-20-2012
L.K., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
This case was decided before Judge Butler's term ended on January 2, 2012.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
L.K., pro se, petitions for review of an adjudication of the Secretary of Public Welfare that upheld an order of the Bureau of Hearings and Appeals (Bureau) dismissing L.K.'s appeal of a founded report of child abuse. The Bureau concluded that L.K. abandoned his appeal because he did not comply with its procedures. Discerning no error, we affirm.
In 2003, L.K.'s request to adopt K.S., a male child, was approved. In November of 2005, L.K. was arrested for possession of obscene material. Thereafter, Cambria County Children and Youth Services received allegations of abuse of the child and investigated. Upon completion of the investigation, Cambria County Children and Youth Services filed a Child Protective Services Investigation Report (Form CY-48) with ChildLine & Abuse Registry (ChildLine) The ChildLine report stated that L.K. sexually abused K.S.; that L.K. refused to be interviewed; but that L.K. had denied the abuse in a letter to Cambria County Children and Youth Services. The ChildLine report noted that criminal charges, filed on May 9, 2007, were pending.
This system is maintained by the Department of Public Welfare in accordance with the Child Protective Services Law (Law), 23 Pa. C.S. §§6301-6386. The Law provides that "[a]ny person named as a perpetrator . . . in an indicated report of child abuse may, within 45 days of being notified of the status of the report, request 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." 23 Pa. C.S. §6341(a)(2).
L.K. was convicted of three counts of rape of a child, three counts of involuntary deviate sexual intercourse, and two counts of indecent assault in December of 2008, and was sentenced on April 29, 2009. Based on the convictions, Cambria County Children and Youth Services filed a new Form CY-48 that reported a founded report of child abuse. On August 6, 2009, ChildLine notified L.K. of the founded report and told him that he had the right to appeal the founded report within 45 days of the postmark on the notice.
A founded report of child abuse is defined as
A child abuse report made . . . if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused, including 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.23 Pa. C.S. §6303.
On September 17, 2009, L.K. sent a letter to ChildLine refuting the basis of his convictions and asking for a review of his case. ChildLine informed the Bureau of L.K.'s appeal. The Bureau, on November 10, 2009, issued a rule to show cause instructing Cambria County Children and Youth Services to file any relevant court orders and documentation to support the founded report.
On December 14, 2009, the Bureau, learning that L.K.'s criminal case had been appealed to the Superior Court, issued an order staying L.K.'s appeal of the founded report. This order stated that the stay would remain in effect for 180 days and directed L.K. to submit a status report within 180 days. The order warned that failure to file a timely status report would result in the automatic lifting of the stay and the institution of proceedings to dismiss the appeal as abandoned. L.K. did not submit a status report.
True to the order, the Bureau, on June 21, 2010, after 180 days expired, issued a rule to show cause why L.K.'s appeal of the founded report should not be dismissed for inactivity. The rule instructed L.K. that he had 30 days to respond, otherwise his inaction would be deemed a default or willful refusal to pursue the appeal. L.K. did not respond. On August 6, 2010, an administrative law judge (ALJ) recommended the dismissal of L.K.'s administrative appeal, and the Bureau affirmed the ALJ's recommendation on August 10, 2010. L.K. then requested reconsideration from the Secretary, which was granted. On January 12, 2011, the Secretary issued an adjudication dismissing L.K.'s administrative appeal. L.K. petitioned for this Court's review.
On appeal, L.K. requests that the stay issued by the Bureau on December 14, 2009, be reinstated or, alternatively, the proceedings be reset to the stage at which the stay was issued. L.K. bases his argument on Pennsylvania Rule of Criminal Procedure 790(B)(4)(b), Section 6341(d) of the Child Protective Services Law (Law), and 55 Pa. Code §3490.106a(i). L.K. argues that the exhaustion of his criminal appeal is required before his expunction request can be processed. He further argues that the stay pending appeal is mandated by the above-cited authorities and he is not required to do anything to preserve his expunction request. In short, L.K. asks for a hearing on his expunction request.
This Court's review is limited to a determination of whether constitutional rights have been violated, an error of law was committed, or necessary findings of fact were unsupported by substantial evidence. G.M. v. Department of Public Welfare, 957 A.2d 377, 379 n.1 (Pa. Cmwlth. 2008).
Pennsylvania Rule of Criminal Procedure 790(B)(4)(b), "Procedure for Obtaining Expungement in Court Cases; Expungement Order," states:
If the judge grants the petition for expungement, the judge shall enter an order directing expungement. . . . The order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the expungement order is stayed pending the disposition of the appeal and further order of court.Pa. R. Crim. P. 790(B)(4)(b).
Section 6341 of the Law states, in relevant part:
(a) General rule. —At any time:
. . . .
(2) Any person named as a perpetrator . . . in an indicated report of child abuse may, within 45 days of being notified of the status of the report, request 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.
23 Pa. C.S. §6341.
(b) Review of grant of request.—If the secretary grants the request under subsection (a)(2), the Statewide central register, appropriate county agency, appropriate law enforcement officials and all subjects shall be so advised of the decision. The county agency and any subject have 45 days in which to file an administrative appeal with the secretary. If an administrative appeal is received, the secretary or his designated agent shall schedule a hearing pursuant to Article IV of the act of June 13, 1967 (P.L. 31, No. 21), known as the Public Welfare Code, and attending departmental regulations. If no administrative appeal is received within the designated time period, the Statewide central register shall comply with the decision of the secretary and advise the county agency to amend or expunge the information in their records so that the records are consistent at both the State and local levels.
. . . .
(d) Stay of proceedings.—Any administrative appeal proceeding pursuant to subsection (b) shall be automatically stayed upon notice to the department by either of the parties when there is a pending criminal proceeding or a dependency or delinquency proceeding pursuant to 42 Pa. C.S. Ch. 63 (relating to juvenile matters), including any appeal thereof, involving the same factual circumstances as the administrative appeal.
(e) Order.—The secretary or designated agent may make any appropriate order respecting the amendment or expunction of such records to make them accurate or consistent with the requirements of this chapter.
Section 3490.106a(i), "Hearings and appeals proceedings for indicated reports received by ChildLine after June 30, 1995," states:
An administrative appeal proceeding will be automatically stayed upon notice to the Department by any subject or the county agency that there is a pending criminal proceeding or a dependency or delinquency proceeding under the Juvenile Act including an appeal thereof, involving the same factual circumstances.55 Pa. Code §3490.106a(i).
We find these issues raised based on the sum of L.K.'s brief even though his "Statement of the Questions Involved" only makes reference to Pennsylvania Rule of Criminal Procedure 790.
"In order to maintain a 'founded report,' [the Department] requires a criminal disposition against a perpetrator on a charge where the finding of guilt . . . is based on sexual abuse." G.M. v. Department of Public Welfare, 957 A.2d 377, 380 (Pa. Cmwlth. 2008) (quoting R.F. v. Department of Public Welfare, 845 A.2d 214, 218 (Pa. Cmwlth. 2004)). While there is no provision in the Pennsylvania Code for appealing the denial of a request to expunge a founded report, the Administrative Agency Law, 2 Pa. C.S. §§101-106, 501-508, 701-704, provides a statutory right of appeal because a founded report is an adjudication affecting "personal or property rights, privileges, immunities, duties, liabilities or obligations." J.G. v. Department of Public Welfare, 795 A.2d 1089, 1092 (Pa. Cmwlth. 2002) (quoting Section 101 of the Administrative Agency Law, 2 Pa. C.S. §101). Where the founded report is based on a criminal conviction involving the same facts, "an appeal would, in most instances, constitute a collateral attack of the adjudication itself, which is not allowed." Id. at 1093 (citing Moeller v. Washington County, 352 Pa. 640, 644, 44 A.2d 252, 254 (1945)).
We note, as was noted in J.G., 795 A.2d at 1093 n.8, that the only way to properly challenge the adjudication upon which a founded report is based is to file an appeal where the adjudication has been rendered. In this case, that is precisely what L.K. has done in appealing the decision of the trial court to the Superior Court, and finally to the Supreme Court of Pennsylvania.
There is one distinction, not applicable here, to this collateral attack rule when the judicial adjudication in a non-criminal proceeding finds abuse, but does not make a finding as to whether the named perpetrator was responsible for the abuse. See J.G., 795 A.2d at 1093.
The Department is not required to wait until the petitioner has exhausted all appeals of his criminal conviction before it can file a founded report. L.C. In Re: S.W. v. Department of Public Welfare, 982 A.2d 1040, 1041 (Pa. Cmwlth. 2009). A criminal conviction becomes final at sentencing for the purpose of filing a founded report. J.C. v. Department of Public Welfare, 980 A.2d 743, 748 (Pa. Cmwlth. 2009); see also 23 Pa. C.S. §6303 "Founded report."
Here, Cambria County Children and Youth Services filed the founded report on July 22, 2009, after L.K.'s April 29, 2009, sentencing for rape, involuntary deviant sexual intercourse, and indecent assault. L.K. appealed the founded report, and the Bureau, upon learning of L.K.'s appeal of his criminal conviction to Superior Court, issued a stay. However, it directed L.K. to file a status report within 180 days. When L.K. failed to comply, the Bureau issued a rule to show cause why the appeal should not be dismissed, to which L.K. did not respond. L.K. does not argue that he did not receive notice of the order or the rule to show cause.
Due process requires that a person be given notice and an opportunity to be heard, but it does not confer an absolute right to be heard. Goetz v. Department of Environmental Resources, 613 A.2d 65, 67 (Pa. Cmwlth. 1992). A dismissal of an appeal for failure to comply with the reasonable orders of the tribunal is not a violation of due process. Id. (citing Link v. Wabash Railroad Co., 370 U.S. 626 (1962)). L.K.'s failure to comply with the reasonable orders of the Bureau resulted in the dismissal of his appeal. This is a harm of his own doing. Notably, even assuming, arguendo, that we were to grant L.K. a hearing on the merits, his appeal would amount to nothing more than a collateral attack on the criminal conviction. As we noted above, this is not permitted.
Further, the legal authorities cited by L.K. are inapposite. Rule of Criminal Procedure 790 concerns procedures for the expungement of "court cases." See Pa. R. Crim. P. 790. In the comments to Rule 790, "court case" is defined as "[a]ny case in which a summary offense is filed with a misdemeanor, felony, or murder of the first, second, or third degree." Pa. R. Crim. P. 790 cmt. L.K.'s expungement appeal is an administrative proceeding not governed by the Pennsylvania Rules of Criminal Procedure. Likewise, L.K.'s reliance on Section 6341 of the Law and on 55 Pa. Code §3490.106a(i) is misplaced. Section 6341 requires an automatic stay with respect to indicated reports of child abuse, not founded reports. 23 Pa. C.S. §6341(d). Section 3490.106a(i) of Title 55 of the Pennsylvania Code establishes a stay for "indicated reports received by ChildLine." 55 Pa. Code §3490.106a (emphasis added). Thus, it does not apply here.
In the Bureau's order of December 14, 2009, there is a reference to 55 Pa. Code §3490.106a(i) indicating that the Bureau is required to stay the proceedings until the criminal matter is resolved. We do not think that the Bureau is required to do so, though it appears to be within its discretion to act with such prudence. --------
There is no statute, regulation or precedent that requires the Bureau or the Secretary to stay the expunction proceedings for the reason that the perpetrator has appealed his conviction of child abuse.
For the above-stated reasons, the final order of the Secretary of Public Welfare is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 20th day of January, 2012, the order of the Secretary of Public Welfare dated January 12, 2011, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge