Nunc pro tunc appeal allowed
ALJ
properly allowed a nunc pro tunc appeal based on In C.S. v. Department of
Public Welfare, 879 A.2d 1274, 1280 (Pa. Cmwlth. 2005), the Court held that
notice letters stating that a perpetrator “may have a right to a hearing,” on
whether to amend or destroy an indicated report the perpetrator believes to be
inaccurate, “do not satisfy the exacting requirements of 23 Pa. C.S. § 6338(a)
and, thus, this breakdown in the administrative process. In the instant case, the notice said that
R.G. "will have the right to appeal."
The court held that the instant
notice fell within the C.S. rule.
Inadequacy
of CYS evidence
CYS
did not present any witnesses at the hearing regarding the report of the
alleged sexual abuse of A.A. There was no audio or video recording of the
interview by CYS of A.A. entered into evidence at the hearing. CYS did attempt to enter into evidence pages
fifty (50) to seventy-nine (79) from a transcript of a hearing in a separate
expunction appeal addressing allegations of physical abuse of A.A. by R.G. CYS did not present evidence to establish that
A.A. was emotionally unavailable to testify. R.G. objected to the admission of
the transcript on the grounds that sexual abuse was not before the ALJ in the earlier
hearing, and that a proper cross-examination on the issue of sexual abuse had
not taken place.
R.G.
testified and presented the testimony of C.B., his paramour and A.A.’s
grandmother, and the testimony of C.G., his paramour’s daughter and A.A.’s
Aunt. On May 9, 2012, the ALJ issued an opinion and order recommending that the
Bureau sustain R.G.’s appeal seeking to expunge the indicated report of child
abuse. The ALJ concluded that the earlier hearing transcript was inadmissible,
because A.A. was not emotionally unavailable and CYS failed to advise R.G. that
it intended to use the hearing transcript as evidence and failed to list the
hearing transcript as an intended exhibit in the Unified Pre-Hearing Filing, as
required by the Standing Practice Order for Bureau Appeals.
The
ALJ also concluded that because there was no admission, no eyewitness, and no
medical evidence, whether or not the appeal was sustained had to be resolved by
examining the credibility of the witnesses. Due to the absence of testimony from the
alleged child victim and the absence of evidence to corroborate the hearsay
statements of the child in the CY-48 report, the ALJ concluded that CYS failed
to meet its burden of demonstrating by substantial evidence that A.A. was the
victim of sexual abuse by R.G.
No
proof that R.G was a "perpetrator"
Separately,
the ALJ concluded that CYS failed to establish that R.G. met the definition of perpetrator
as provided by the CPS Law and its implementing regulations. The ALJ found that
R.G. was not the parent of A.A., that CYS had not established that R.G. was
responsible for the welfare of A.A., and that the CY-48 Report established that
R.G. and A.A. did not reside in the same household at the time of the report
and no evidence was presented to establish that they resided in the same
household at the time of the alleged abuse in or around 2005. There is no evidence in the record to
establish that R.G. is a perpetrator as defined by the CPS Law. The CY-48
report establishes that A.A. and R.G. did not reside in the same household at
the time of the report, and there was no evidence offered to demonstrate that
the two had resided together in 2005. R.G. is the paramour of A.A.’s
grandmother, not one of A.A.’s parents. CYS also did not present any evidence
to show that R.G. was responsible for the welfare of A.A.6 The ALJ did not err
in concluding that CYS failed to establish that R.G. was a perpetrator as
defined by the CPS Law.
CYS
brief "failied to include a single citation of authority
We
note that in its brief in support of the issues raised on appeal, CYS has
failed to include a single citation of authority, and while only those
authorities “deemed pertinent” are required by our Rules of Appellate
Procedure, see Pa. R.A.P. 2119(a), we do question why CYS has chosen to
appeal this matter if it does not deem a single law or decision of the courts
of this Commonwealth or these United States pertinent to its appeal.
