Thursday, June 19, 2014

abuse - expungement - indicated v. founded report - appeal - notice and oppty. to be heard in court proceeding

J.M. v. DPW – Cmwlth. Court – June 19, 2014

"Indicated" report of abuse by admin. agency was changed to "founded" after a court dependency hearing in which child was found to have been abused by stepfather, appellant here.  Stepfather appealed the administrative decision but not the court decision, as to which he claimed that he had not received notice.  Held:  hearing was necessary to deteermination whether stepfather had notice of the dependency hearing.

DPW may rely on the factual findings of the trial court in a dependency adjudication to dismiss an appeal for a request for expungement” of a founded report. K.R. v. Dep’t of Pub. Welfare, 950 A.2d 1069, 1078 (Pa. Cmwlth. 2008); see also C.S. v. Dep’t of Pub. Welfare, 972 A.2d 1254, 1263-64 (Pa. Cmwlth.) (holding, in case wherein petitioner was never specifically named as perpetrator of abuse in underlying dependency proceeding, that “a separate administrative hearing before BHA is not necessary if there is substantial evidence to support the findings made in the dependency proceeding that the appellant was the perpetrator of the abuse of the minor” (emphasis omitted)), appeal denied, 987 A.2d 162 (Pa. 2009)  

However, a founded report of child abuse constitutes an “adjudication” under the AAL, and pursuant to the AAL, “[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 (quoting 2 Pa. C.S. § 504). Because it is unclear whether J.M. was afforded these due process protections in the underlying dependency proceeding before the trial court, we conclude that BHA erred in denying J.M.’s appeal without a hearing.   See, J.G. v. Department of Public Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002), and K.R. v. Department of Public Welfare, 950 A.2d 1069 (Pa. Cmwlth. 2008).

The court vacated DPW’s order and remand the matter for a hearing on the limited issue of whether stepfather  had reasonable notice of the dependency hearing and an opportunity to be heard in that proceeding. If stepfather  was not provided with these due process protections, then the underlying dependency adjudication cannot serve as the basis for the founded report.

The stepfather's due process argument held not to be a collateral attack on the underlying dependency adjudication. Similar to the reasoning in R.F., the issue here is whether the underlying dependency adjudication is one upon which a founded report can be based. That is, his argument in this regard is not a challenge to the underlying dependency adjudication itself, but is instead a challenge to the use of that adjudication as support for a founded report absent due process. Nevertheless, if due process concerns are satisfied, then his second argument on appeal, relating to good cause, would constitute an impermissible collateral attack on the underlying dependency adjudication.  

If stepfather was afforded reasonable notice and an opportunity to be heard in the underlying dependency proceeding, but did not take advantage of that opportunity, then he would not be entitled to a hearing before BHA.