Friday, June 15, 2012

abuse - expungement - late appeal - notice of right to appeal

K.G. v. DPW - Cmwlth. Court - June 15, 2012 - unreported memorandum decision (2-1, Levitt dissenting)


http://www.pacourts.us/OpPosting/Cwealth/out/1001CD11_6-15-12.pdf

Appeal of alleged perpetrator of abuse -- a nursing student -- was not permitted to be filed nunc pro tunc.

CYF denied K.G.’s request for appeal of a report of abuse, announced in a letter dated September 18, 2009, which advised K.G. that she had the right to a hearing before the Secretary of DPW. K.G. did not request a hearing until March 5, 2010, when she submitted her request by fax.

The court (2-1) rejected K.G.'s claims that(1) the September 18, 2009 decision provided insufficient notice of her appeal rights; (2) the time it took K.G. to obtain counsel; and (3) the confusion she claimed the Department’s January 26, 2006 letter (concerning a report of abuse against her husband) created by indicating that the report of child abuse identified in the husband's case was unfounded, after the alleged victim -- K.G.'s stepdaughter -- had recanted the claim of abuse by K.G.'s husband - the alleged victim's father.

Dissent - The dissent argued that the notice to K.G. was confusing, and that and "indicated report of child abuse implicates due process because this report can destroy the alleged perpetrator's ability to make a living in some lines of work. When so much is at stake, the government‟s notice to a lay citizen about how to pursue an appeal of such a report must be clear and unequivocal." The dissent said that language in the DPW letter telling K.G.

If it is your desire to have a hearing, please submit your request in writing within 45 days of the date of this letter to Child Abuse Appeals at the above address. Please include a telephone number where you can be contacted. [emphasis added]

K.G. apparently understood this letter to mean that the Department of Public Welfare was requesting, not demanding, a written appeal in 45 days that included her phone number. She did not understand the 45 days to be mandatory. Stated otherwise, she believed she could appeal by some other means or timetable, to be determined by when she conceived a "desire to have a hearing." "Please" is not a synonym for "must," as argued by Wayne County Children and Youth Services.

The dissent rejected the argument that DPW's politeness in adding the word "please" to the imperative "submit" should be encouraged. It agree that politeness is desirable, but not at the expense of clarity. Had the Department's notice also warned K.G. of the consequence of not finding it pleasing to submit a written request for a hearing in 45 days, its notice would have been satisfactory.

The dissent contains an lengthly discussing of the word "please" and stresses that K.G., will be denied the right to be a nurse by the rejection of her appeal.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.









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