Friday, May 21, 2010

abuse - expungement - founded report - no right to appeal hearing

D.D. v. DPW - Cmwlth Court - May 21, 2010 - unreported memorandum opinion

There is no right to appeal from a founded report, based on court adjudication of dependency and abuse in another, independent case.

Unlike the case of an indicated report of abuse, there is no similar provision affording a perpetrator named in a founded report the right to an administrative hearing following the Secretary’s denial of his or her expunction request. K.R. v. Dep’t of Pub. Welfare, 950 A.2d 1069 (Pa. Cmwlth. 2008) (citing J.G. v. Dep’t of Pub. Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002)).

A founded report is based on a judicial adjudication wherein the government alleging child abuse by the perpetrator met its burden of proving it. C.S. v. Dep’t of Pub. Welfare, 879 A.2d 1274 (Pa. Cmwlth. 2005) . In an expunction request by an individual named as a perpetrator in a founded report, the Secretary may rely on the trial court’s findings of abuse in the underlying judicial adjudication to dismiss the expunction request where the judicial adjudication also named the individual as the perpetrator of the abuse. C.J. v. Dep’t of Pub. Welfare, 960 A.2d 494 (Pa. Cmwlth. 2008) (citing K.R.) An administrative hearing following denial of the expunction request is not mandated because the named perpetrator had a full and fair opportunity to defend against the allegations in the underlying judicial adjudication. Id. That individual cannot thereafter collaterally attack the trial court’s dependency and abuse findings in an expunction request under the CPSL. Id.