IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J.P., : SEALED CASE
Petitioner :
:
v. : No. 1602 C.D. 2016
: Submitted: May 26, 2017
Department of Human Services, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge1
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY JUDGE BROBSON FILED: September 12, 2017
J.P. (Petitioner) petitions for review of an adjudication of the
Department of Human Services (Department), Bureau of Hearings and Appeals
(Bureau), which dismissed his appeal of an indicated report of student abuse under
the Child Protective Services Law2 as untimely. In doing so, the Bureau adopted
the recommendation of its administrative law judge, who concluded that
Petitioner’s appeal was untimely and that the delay in filing his appeal was not
caused by a breakdown in the administrative process or non-negligent reasons
beyond Petitioner’s control. For the reasons that follow, we reverse and remand.
1
This decision was reached before Judge Hearthway’s service with the Court ended on
September 1, 2017.
2
23 Pa. C.S. §§ 6301-6386.
I. Background
On June 2, 2000, the Philadelphia Department of Human Services
(Philadelphia DHS) submitted a report of student abuse to the ChildLine and
Abuse Registry, naming Petitioner as the perpetrator. On June 12, 2000, the
Department of Public Welfare (now the Department of Human Services)3 sent a
letter to Petitioner, informing him that he was named on an indicated report of
student abuse. The June 12, 2000 letter provided, in pertinent part:
Only perpetrators of child abuse or school employees
named in reports for student abuse may request that
indicated reports be amended or destroyed if they believe
the report is inaccurate or that it is not being maintained
in accordance with the law. ALL REQUESTS MUST
BE MADE IN WRITING WITHIN 45 DAYS FROM
THE DATE OF THIS NOTICE to the Secretary of
Public Welfare []. If this request is denied, perpetrators
may have a right to a hearing.
(Reproduced Record (R.R.) at 13a (emphasis in original).)
On July 25, 2000, Petitioner sent a letter in response, received by the
Department on July 27, 2000, in which he requested that the indicated report be
“destroyed or amended . . . .” based on “errors in this report.” (R.R. at 14a.) He
explained: “If necessary, I would like to appeal or dismiss this claim. If a hearing
is necessary, I would like one.” (Id.)
Thereafter, on August 8, 2000, the Department sent a second letter to
Petitioner, informing him that the Department received the request. Further, the
August 8, 2000 letter described the following two-step appeal process. First, the
3
Because the Department of Public Welfare became the Department of Human Services
and the name change has no bearing on the outcome of this case, for simplicity, we will refer to
both as the Department.
2
Department will conduct a review of Petitioner’s case and issue a written decision.
Second, either party—Petitioner or the Department—could appeal an unfavorable
decision, which would result in a hearing before the Bureau. Moreover, the
August 8, 2000 letter informed Petitioner that he could “bypass the first level of the
appeal process” by sending “a written request for the hearing[,] . . . postmarked
within ten days” of the August 8, 2000 letter. (R.R. at 16a (emphasis omitted).)
Finally, the Department sent Petitioner a third letter, dated
February 22, 2001. This letter informed Petitioner that the Department had
completed its review and provided the following:
We believe the report is accurate and being maintained in
a manner consistent with the Child Protective Services
Law.
....
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 [the Director of the Division of State Services] at the
above address. [The Director of the Division of State
Services] will forward your request to the Bureau of
Hearings and Appeals who will schedule a hearing and
notify you of the time and place.
(R.R. at 17a (emphasis omitted).) Petitioner did not respond to the August 8, 2000
letter or the February 22, 2001 letter. Although the police interviewed Petitioner
regarding the underlying incident, the police never arrested or charged him with
any crime. Approximately fifteen years passed, and Petitioner continued to work
as a teacher.
In 2016, Petitioner’s school district employer required him to renew
his background check. As a result of that submission, the school district
discovered that Petitioner is listed on the ChildLine Registry. On June 1, 2016,
Petitioner’s school district sent a letter to Petitioner, informing petitioner that his
3
background check “raised an issue,” adding: “This issue may effect [sic] your
continued employment with The District.” (R.R. at 34a.) The letter also informed
Petitioner that the school district scheduled a hearing on the matter. At the
hearing, in response to Petitioner’s contention that the underlying incident was a
misunderstanding, the school district instructed Petitioner to resolve the matter
before the end of the school year.
As a result of his school district’s directive, Petitioner requested that
the Department provide a copy of the indicated report. Thereafter, on
June 14, 2016, Petitioner’s former counsel requested a hearing before the Bureau
on the indicated report.
On August 9, 2016, an administrative law judge from the Bureau
conducted an evidentiary hearing on the timeliness of Petitioner’s appeal of the
indicated report. Regarding the incident that led to his placement on the ChildLine
Registry, Petitioner testified that he was interviewed by the police, but he was
never arrested or charged with any crime. Petitioner testified that following the
underlying incident, he received the June 12, 2000 letter from the Department. He
testified that he responded in writing that he wanted a hearing if one was
necessary. Petitioner testified that he did not receive the August 8, 2000 letter
from the Department. He testified that had he received the August 8, 2000 letter,
“[he] would [have] file[d] the same papers, requesting a hearing.” (R.R. at 98a.)
Petitioner testified that he also did not receive the February 22, 2001 letter.
Petitioner explained that he moved in October 2000, from southwest Philadelphia
4
to northeast Philadelphia.4 He testified that he believed he filed a change of
address with the Commonwealth and that he did file a forwarding address with the
postal service. He testified that he did not keep the copies of the form to change
his address with the postal service, because he did not know that his change in
residence would be a topic of dispute. Petitioner testified that he did not hear
anything about the placement on the ChildLine Registry until his school district
notified him in 2016. As to why he took no action regarding the matter between
his July 25, 2000 response and 2016, he responded that he “thought everything was
fine, and [his] appeal was successful.” (R.R. at 103a-104a.) Petitioner additionally
testified that he thought “if it was a problem, [he] would’ve been fired from [his]
job.” (R.R. at 108a.)
The Department called ChildLine Appeal Unit administrative assistant
Tiffinee McClendon-Spencer (McClendon-Spencer) to testify. She testified that
she began working for ChildLine in 1999, and she began her current position as an
administrative assistant in 2002. McClendon-Spencer testified that her position
with ChildLine entails “keeping track of all appeal records.” (R.R. at 118a.)
McClendon-Spencer testified that there was nothing in Petitioner’s file that
indicated that either the August 8, 2000 letter or the February 22, 2001 letter was
returned as “undeliverable.” In response to a line of questioning by the
administrative law judge as to ChildLine’s typical policy or procedure when
receiving a vague request or response, using Petitioner’s July 25, 2000 response as
an example, McClendon-Spencer answered: “We would actually go ahead and
4
Petitioner testified to the addresses, rather than the general areas within Philadelphia.
Those addresses were redacted from the transcript.
5
review it here. And if it was denied, we would push it on for a hearing.”
(R.R. at 128a (emphasis added).)
The administrative law judge rendered a decision, recommending
dismissal of Petitioner’s appeal. The administrative law judge determined that the
February 22, 2001 letter required Petitioner to send an appeal by April 9, 2001.
Thus, by requesting a hearing on June 14, 2016, Petitioner’s appeal was untimely.
The administrative law judge next addressed the language of Petitioner’s
July 25, 2000 letter (received July 27, 2000) to the Department, as follows:
Additionally, [Petitioner]’s July 25, 2000 appeal does not
explicitly state that he is requesting a hearing at that time,
but rather, [Petitioner] is only requesting a hearing if it is
necessary. Since it is not necessary to have a hearing to
amend or destroy an indicated report of child abuse, I do
not find [Petitioner]’s July 25, 2000 appeal to be a timely
request for a hearing.
(R.R. at 42a-43a.) The administrative law judge also credited
McClendon-Spencer’s testimony that there was nothing in Petitioner’s file to
indicate the February 22, 2001 letter was returned as undeliverable. The
administrative law judge based that determination on the fact that Petitioner failed
to provide documentary evidence to demonstrate: (1) that the letter was returned to
the Department as undeliverable; (2) that he was no longer living in Southwest
Philadelphia in 2001; or (3) that the February 22, 2001 letter was sent to the wrong
address. Finally, the administrative law judge denied nunc pro tunc relief, finding
that Petitioner’s testimony that he thought the case was expunged was not credible
and reasoning that the delay in filing was due to Petitioner’s own negligent
6
conduct. The Bureau adopted this recommendation and dismissed Petitioner’s
appeal in an order, dated August 29, 2016. This appeal followed.5
On appeal,6 Petitioner contends that the Department violated his rights
under the Pennsylvania Constitution and United States Constitution, as well as the
Child Protective Services Law, by depriving Petitioner of a hearing. Petitioner
argues that he “perfected his appeal” when he requested a hearing in his
July 25, 2000 letter to the Department. (Pet’r’s Br. at 7.) Petitioner also contends
that he did not receive the August 8, 2000 or February 22, 2001 letters from the
Department and that neither of these letters required any action because he had
already perfected his appeal. Petitioner also points out that the Department
maintains a policy to grant a hearing if a request for a hearing is ambiguous, and,
thus, even if Petitioner’s request was ambiguous, the Department violated its own
policy by not granting him a hearing. Finally, Petitioner argues that the
Department violated the Pennsylvania Constitution, the United States Constitution,
and the Child Protective Services Law by denying Petitioner nunc pro tunc relief.7
In response, the Department argues that it did not deprive Petitioner of
a hearing, but rather it followed the statutorily prescribed process for an appeal of
an indicated report of abuse. The Department argues that Petitioner did not request
5
Petitioner also filed a request for rehearing or reconsideration in the instant case, which
the Bureau denied on September 30, 2016. Petitioner, however, does not appeal that
determination.
6
This Court’s standard of review is limited to determining whether constitutional rights
have been violated, an error of law was committed, or necessary findings of fact were
unsupported by substantial evidence. G.M. v. Dep’t of Pub. Welfare, 957 A.2d 377, 379 n.1 (Pa.
Cmwlth. 2008), appeal denied, 973 A.2d 1008 (Pa. 2009).
7
The Philadelphia DHS intervened in this matter.
7
a hearing until 2016, and, thus, his request was untimely. The Department argues
that Petitioner did not meet his burden for nunc pro tunc relief, because the
administrative law judge found not credible Petitioner’s allegations that he did not
receive the second and third letters from the Department and that he thought his
case was expunged.
In addition to reiterating some of the Department’s arguments, the
Philadelphia DHS argues that this Court should exercise constitutional avoidance
on Petitioner’s due process claim. The Philadelphia DHS also argues that if this
Court does address the question of whether lack of a pre-deprivation hearing
violates due process, this Court should find that it does not.
II. Due Process and the Child Protective Services Law
The Due Process Clause of the Fourteenth Amendment provides that
no State shall “deprive any person of life, liberty, or property, without due process
of law.” U.S. Const. amend. XIV, § 1. Though not explicitly mentioned, the
Pennsylvania Supreme Court has held that the guarantee of due process of law in
Pennsylvania jurisprudence emanates from Article I, Sections 1, 9, and 11 of the
Pennsylvania Constitution. Lyness v. State Bd. of Med., 605 A.2d 1204, 1207
(Pa. 1992). The due process standards of United States and Pennsylvania
Constitutions are essentially the same. Muscarella v. Commonwealth, 87 A.3d
966, 973 (Pa. Cmwlth. 2014). In terms of procedural due process, the basic
elements are adequate notice, the opportunity to be heard, and the chance to defend
oneself before a fair and impartial tribunal having jurisdiction over the case.
Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013), cert. denied, 134 S. Ct.
1771 (2014). Courts examine procedural due process questions in two steps: the
first asks whether there is a life, liberty, or property interest with which the state
8
has interfered, and the second examines whether the procedures attendant to that
deprivation were constitutionally sufficient. Kentucky Dep’t of Corr. v. Thompson,
490 U.S. 454, 460 (1989).
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
8
Article I, Section 1 provides:
All men are born equally free and independent, and have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.
PA. Const. art. I, § 1.
Article I, Section 11 provides:
All courts shall be open; and every man for an injury done him in his lands,
goods, person or reputation shall have remedy by due course of law, and right and
justice administered without sale, denial or delay. Suits may be brought against
the Commonwealth in such manner, in such courts and in such cases as the
Legislature may by law direct.
PA. Const. art I, § 11.
9
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).9
Having determined that Petitioner’s placement on the ChildLine
Registry implicated a protected liberty interest, we must determine if the procedure
he received was constitutionally sufficient. Recently, in D.C., this Court explained
that the Child Protective Services Law enables the Department to place an alleged
child abuser’s name on the ChildLine Registry on the basis of an investigation by a
county or the Department and not on the basis of an evidentiary hearing. D.C.,
150 A.3d at 562. We explained that, 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,
9
Outside of Pennsylvania, it is not always clear whether placement on a registry for child
abuse will implicate a constitutionally protected liberty interest under the United States Supreme
Court’s precedent. In Paul v. Davis, 424 U.S. 693 (1976), the United States Supreme Court held
that reputation, by itself, is not a protected liberty interest under the Fourteenth Amendment.
Paul, 424 U.S. at 701. Following Paul, under the so-called “stigma plus” test, in order for
reputational harm to implicate constitutional rights, the state action must affect some tangible
liberty or property interest. Id. In Smith ex rel. Smith v. Siegelman, 322 F.3d 1290
(11th Cir. 2003), the Eleventh Circuit held that an alleged abuser did not satisfy the stigma plus
test because he failed to show loss in employment or salary. Smith, 322 F.2d at 1297.
Conversely, the Ninth Circuit held that two parents, erroneously placed on a child abuser
database, did satisfy the stigma plus test under California’s statute, due in part to the parents’
inability to work in a child-related field. Humphries v. Cnty. of Los Angeles, 554 F.3d 1170 (9th
Cir. 2009), rev’d on other grounds, Los Angeles Cnty., California v. Humphries, 562 U.S. 29
(2010). Because reputation is protected under the Pennsylvania Constitution, however, we have
held that “the stigma plus analysis is not necessary” for a due process analysis concerning
reputational harm. D.C., 150 A.3d at 566.
10
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. Dep’t of Pub. Welfare, 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. Department of Public Welfare, 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
11
preference for pre-deprivation process.” G.V., 91 A.3d at 674 n.1 (Saylor, J.,
concurring).10
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).
10
Chief Justice Saylor’s concurrence also highlighted troubling statistics, noting that the
Bureau reversed 97% of cases decided on the merits. G.V., 91 A.3d at 675-76. Other courts
have likewise been troubled by high rates of reversal. See Humphries, 554 F.3d at 1200
(reasoning that rate of reversal in California could be as high as 50%, and, thus, many listed on
child abuse registry have “legitimate basis for expungement” and “insufficient means for
correcting those errors”); Jamison; 218 S.W.3d at 409 (determining that “[t]he high risk of an
erroneous deprivation [(about 35-40% in Missouri)] provides an additional reason that
investigation alone is insufficient to support placement on the [child abuse registry]”); Dupuy v.
Samuels, 397 F.3d 493, 505 (7th Cir. 2005) (noting “the unacceptable 74.6 percent reversal rate
for challenged indicated reports”); Valmonte v. Bane, 18 F.3d 992, 1003 (2d Cir. 1994)
(describing that “nearly 75% of those who seek expungement of their names from the list are
ultimately successful”). These high rates of reversal are troubling because there is arguably “no
more deplorable badge of infamy a person can wear than that of being a child abuser.” See
Jackson v. Marshall, 454 S.E.2d 23, 27 (Va. Ct. App. 1995) (quotation omitted).
12
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.
Department of Public Welfare, 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. (See R.R.
at 13a.) 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.11 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.
11
Petitioner does argue, curiously citing D.C. rather than C.S., that the notice in the
June 12, 2000 letter was equivocal, but he only does so in his reply to the Department’s brief.
Accordingly, he waived that issue. Commonwealth v. Basemore, 744 A.2d 717, 726-27
(Pa. 2000) (“A reply brief, however, is an inappropriate means for presenting a new and
substantively different issue than that addressed in the original brief”).
13
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.” (R.R. at 14a.) 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,” (R.R. at 43a), 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.
The remaining arguments from the Department and the Philadelphia
DHS involve constitutional avoidance,12 justiciability, and waiver. Constitutional
12
“[W]hen faced with a case raising constitutional and non-constitutional grounds, a
court must decide the matter on non-constitutional grounds and avoid constitutional questions if
(Footnote continued on next page…)
14
avoidance is inappropriate in this case because we simply must address the
Department’s failure to provide a hearing. While we prefer to avoid constitutional
questions when possible, here the due process question, the lack of any form of
hearing, is the central issue and primary cause of Petitioner’s grievance. The
Philadelphia DHS argues that we should decide the matter on other procedural
grounds, either timeliness or nunc pro tunc relief, but in this case, both are
inextricably intertwined with procedural due process. Similarly, this issue is
plainly justiciable. As we have already discussed, several state and federal courts
have already addressed the very issue of due process and placement on a child
abuse registry. Finally, the Department’s and the Philadelphia DHS’s arguments
regarding waiver are unpersuasive. Though Petitioner may have waived his
argument regarding the necessity for a pre-deprivation hearing under the
Fourteenth Amendment, Petitioner and his counsel always maintained that
Petitioner had a due process right to a hearing, regardless of sequence.
The Department’s failure to provide a hearing resulted in a violation
of Petitioner’s right to due process. Accordingly, we reverse the decision by the
Bureau and remand the matter to the Bureau with instruction to conduct a hearing
on the merits of Petitioner’s appeal.
P. KEVIN BROBSON, Judge
(continued…)
possible.” Dauphin Cnty. Soc. Serv. for Children and Youth v. Dep’t of Pub. Welfare,
855 A.2d 159, 165 (Pa. Cmwlth. 2004).
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J.P., : SEALED CASE
Petitioner :
:
v. : No. 1602 C.D. 2016
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 12th day of September, 2017, the adjudication of the
Department of Human Services, Bureau of Hearings and Appeals (Bureau), is
REVERSED. The matter is REMANDED to the Bureau for further proceedings in
accordance with this opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge