Monday, September 18, 2017

abuse - expungment - late appeal - request for hearing - right to hearing - due process

J.P. v. DHS – Cmwlth. Court – September 12, 2017


Alleged perpetrator (“petitioner”) of abuse responded within appropriate time to initial notice of indicated report of abuse in 2000 by writing asking the the indicated report be “destroyed or amended...” based on errors in the report and explained that “if necessary, I would like to appeal or dismiss this claim.  If a hearing is necessary, I would like one.”

DHS sent petitioner two further letters in 2000 and 2001 as part of a “two-step appeal process.”  Petitioner did not respond to either of these letters, which he said that he had never received.  He continued to work – as a teacher – for fifteen (15) years – until 2016, when his school directed him to renew his background check, at which time he discovered that he was listed on the ChildLine Registry as an abuser.  He immediately asked for a hearing, which request was denied by DHS as untimely.

The Court reversed, holding the petitioner’s response to the initial notice of indicated report was a “clear request for a hearing” to which he had an “absolute right” as a matter of due process under the Pennsylvania Constitutions.

Excerpts from the opinion

Reputation is a “fundamental right under the Pennsylvania Constitution”
Placement on a registry for alleged child abuse causes damage to the alleged abuser, primarily in the form of reputational harm and employment repercussions. Reputation is expressly protected in Sections 1 and 11 of Article I of the Pennsylvania Constitution. 8 In the Commonwealth, reputation is “a fundamental interest which cannot be abridged without compliance with constitutional standards of due process and equal protection.” R. v. Dep’t of Pub. Welfare, 636 A.2d 142, 149 (Pa. 1994); see also In re J.B., 107 A.3d 1, 16 (Pa. 2014) (“[The Pennsylvania Supreme Court] has recognized that the right to reputation, although absent from the federal constitution, is a fundamental right under the Pennsylvania Constitution”). “In Pennsylvania, therefore, reputational harm alone is an affront to one’s constitutional rights.” D.C. v. Dep’t of Human Serv., 150 A.3d 558, 566 (Pa. Cmwlth. 2016).

Due process
Because an indicated report goes into the registry on the basis of the investigation alone, the alleged perpetrator suffers a loss to reputation and possibly employment, all without a hearing. Id. at 564. We expressed concern that the lack of a pre-deprivation hearing raises a serious due process question. Id.   In D.C., we also closely examined the Missouri Supreme Court’s decision in Jamison v. State of Missouri, Department of Social Services, 218 S.W.3d 399 (Mo. 2007). There, the Missouri Supreme Court declared Missouri’s version of the Child Protective Services Law unconstitutional for that exact reason—because the Missouri law did not provide for a pre-deprivation hearing.

Unlike Missouri, Pennsylvania has not yet answered the question of whether a pre-deprivation hearing is necessary to satisfy due process. Pennsylvania decisions have expressed serious misgivings about the Commonwealth’s statutory scheme. Senior Judge Friedman expressed her concern in the following way:

It shocks my conscience that the [Child Protective Services] Law would allow the investigating caseworker to render a de facto adjudication that is adverse to an individual’s reputation without an independent adjudicator having had the opportunity to consider the investigator’s evidence of child abuse in accordance with established procedures of due process. This is particularly so because unless, or until, the alleged abuser timely requests an expunction hearing, the names of the falsely accused may nevertheless be released to physicians, child advocates, courts, the General Assembly, the Attorney General, federal officials, county officials, law enforcement officials, the district attorney and others. Thus, by the time [the Department] orders the expunction of an indicated report, a person’s reputation already may be tarnished erroneously.

K.J. v. DPW, 767 A.2d 609, 616 n.9 (Pa. Cmwlth.) (Friedman, J., dissenting) (emphasis in original), appeal denied, 788 A.2d 381 (Pa. 2001). More recently, in G.V. v. DPW, 91 A.3d 667 (Pa. 2014), Justice Saylor, now Chief Justice, concluded his concurrence by noting that “the inquiry into whether the Pennsylvania statute reflects adequate process remains seriously in question,” adding that the current system “is in tension with the constitutional 12 preference for pre-deprivation process.” G.V., 91 A.3d at 674 n.1 (Saylor, J., concurring).   In determining the sufficiency of the procedure, the Supreme Court’s decision in Mathews v. Eldridge, 424 U.S. 319 (1976), instructs that three factors must be considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335. The Supreme Court has held “that some form of hearing is required before an individual is finally deprived of a [protected] interest” because “the right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.” Id. at 333 (emphasis added) (internal quotation omitted).

Petitioner was entitled to adequate notice and some form of a hearing. Initially, we note that the June 12, 2000 letter, notifying Petitioner of the indicated report, used the exact wording that this Court criticized in the past.  In C.S. v. DPW, 879 A.2d 1274 (Pa. Cmwlth. 2005), another challenge by an alleged perpetrator of child abuse, the notice from the Department provided: “If this request is denied, perpetrators may have a right to a hearing.” C.S., 879 A.2d at 1277 (emphasis omitted). We held that the use of the word “may” rendered the notice equivocal, thus constituting a breakdown of administrative procedure that justified nunc pro tunc relief. Id. at 1280. Here, by using the same wording used in C.S., the notice in the June 12, 2000 letter is equally equivocal. Additionally, the June 12, 2000 letter does not appear to give any indication that Petitioner would be listed on the ChildLine Registry.  The letter simply provides that the Department will maintain a file on petitioner. Petitioner does not, however, argue that the June 12, 2000 letter was equivocal, so as to justify nunc pro tunc relief, or inadequate, so as to violate due process.   Accordingly, because we need not determine whether the June 12, 2000 letter provided “adequate notice” in terms of due process, we proceed to the question of whether Petitioner was afforded “some form of hearing.” See Mathews, 424 U.S. at 333.

We need not apply the Mathews test to determine the constitutionality of Pennsylvania’s current process under the Child Protective Services Law— providing a post-deprivation rather than a pre-deprivation hearing—because here, the Department violated Petitioner’s right to due process by not providing any form of a hearing. In his July 25, 2000 letter to the Department, Petitioner requested the indicated report be “destroyed or amended” and added, “[i]f a hearing is necessary, I would like one.”  Though conditionally stated, this was nonetheless a clear request for a hearing. The administrative law judge’s position that “it is not necessary to have a hearing to amend or destroy an indicated report,” is unpersuasive, because Petitioner is not speaking about the procedure as it applies to all perpetrators, generally, but rather as it applies to him. Petitioner begins the letter by asking for the indicated report to be expunged. The condition he places on the hearing request is, essentially, in the event that the indicated report is not expunged then he would like a hearing. More importantly, an ambiguous statement by a named perpetrator is a very weak ground on which to base denial of a hearing to which Petitioner had “an absolute right.” C.S., 879 A.2d at 1280. Petitioner requested a hearing, but he was never afforded one. The Department should have provided Petitioner some form of a hearing, and its failure to do so resulted in Petitioner’s name being placed on the ChildLine Registry for over 17 years.



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