Thursday, August 29, 2019

child abuse - expungement - continuance of hearing

M.W. v DHS– Commonwealth Court – Auguset 23, 2019 – reported, precedential opinion

Held:  DHS “misapplied the law and entered a manifestly unreasonable order” by denying the request for a continuance of the hearing by an incarcerated parent.   Parent failed to request a waiver of a timely hearing, but there is no statute or other law requiring an accused parent to file such a waiver.   The case was remanded for a new hearing in the merits “at a time mutually convenient to” the parent and CYS.

DHS was mandated to but did not “make reasonable efforts to coordinate the hearing date,” as required by 23 Pa. C.S. 6341(c.2), which requires a hearing within 90 days from the date of the scheduling order “unless all parties have agreed to a continuance.”  Id.

From the opinion:

Section 6341(c.2) of the Child Protective Service Law does not mandate the filing of a waiver of timeliness in order for a continuance to be granted. Section 6341(c.2) states that the Department “shall make reasonable efforts to coordinate the hearing date[.]” 23 Pa. C.S. §6341(c.2)(2). Once that is done, the Department will begin the hearing “within 90 days” of the scheduling order unless the parties agree to a continuance. 23 Pa. C.S. §6341(c.2)(3). 

There is no evidence that the Department made reasonable efforts to coordinate the hearing date with Mother and CYS, as required in Section 6341(c.2). The ALJ waited until the day of the hearing to inquire into CYS’s position on the continuance request. Had this inquiry been made earlier, CYS may have agreed. 

The indicated report would have simply remained on the ChildLine Registry until a hearing on Mother’s appeal could be held at a time when Mother could attend. It was Mother, not CYS, that bore the consequence of a hearing postponement. 
The Bureau cited Section 6341(c.2)(3) of the Child Protective Services Law to support its conclusion that Mother’s waiver of timeliness was required. However, this was error. 

There is no “waiver of timeliness” required from either party in order for a continuance to be granted. Although CYS could have agreed to a continuance, its acquiescence was not necessary. The ALJ still had discretion to grant Mother’s continuance request. Luzerne County, 203 A.3d at 398. Mother’s waiver was unnecessary and redundant because she, the alleged perpetrator, was the party requesting the continuance. Her act of making the request in itself waived the 90-day requirement. 

We hold that the Bureau misapplied the law and entered a manifestly unreasonable order by denying Mother’s continuance request for the sole reason that she did not file a waiver of timeliness. Accordingly, the adjudication of the Bureau is reversed and the matter is remanded to the Bureau for a new hearing on the merits of Mother’s appeal at a time mutually convenient to Mother and CYS. 

Findlaw - statutory and case law - Pennsylvania et al.

The General Assembly used to have a link to a Westlaw site that had an unofficial compilation of  the complete Pennsylvania statutes.  It used to be here, in the right-hand column under “additional resources.”  No longer.  Not sure when that happened, but it’s not there, so it’s cumbersome to find statutes at times, especially “unconsolidated statutes.”

I’m glad to say that I stumbled across Findlaw, where you can easily find and access all state statutes, consolidated and unconsolidated. 

It also provides case law.   

Here’s what it says.

FindLaw Codes are provided courtesy of Thomson Reuters Westlaw, the industry-leading online legal research system. For more detailed codes research information, including annotations and citations, please visit Westlaw.
FindLaw Codes may not reflect the most recent version of the law in your jurisdiction. Please verify the status of the code you are researching with the state legislature or via Westlaw before relying on it for your legal needs.

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