C.R.-F. v. Department of Human Services

*444DISSENTING OPINION BY

judge McCullough

I respectfully dissent because I believe that the Department of Human Services, Bureau of Hearings and Appeals (BHA), lacked the authority to grant the motion of the Northampton County Department of Human Services, Children, Youth & Families Division (County Human Services) for stay of C.R.-F.’s (Petitioner’s) expunction appeal.

On June 25, 2015, County Human Services filed an indicated report of child abuse against C.R.-F. (Petitioner), relating to an allegation that she slapped or struck her minor child on April 27, 2015, thereby causing bodily injury. Four days later, on June 29, 2015, Petitioner’s spouse and the minor child’s other parent, filed a petition for a protection from abuse (PFA) against Petitioner on behalf of the minor child in the local common pleas court. The common pleas court entered a temporary PFA order that day and scheduled a hearing for October 5, 2015. Around the same time, Petitioner appealed the indicated report of child abuse to BHA, seeking expunction of the report, and BHA scheduled a hearing for October 21, 2015.

Petitioner thereafter filed an unopposed application for a continuance of the PFA hearing, seeking to have said hearing continued until after the decision on her ex-punction appeal before BHA. The common pleas court granted Petitioner’s application and rescheduled the PFA hearing for December 2, 2015. Shortly thereafter, County Human Services filed a motion with BHA for stay of Petitioner’s expunction appeal until after the common pleas court issues its final order in the PFA proceeding. BHA granted this motion and stayed the proceedings before it. Petitioner sought reconsideration, which BHA denied, and now seeks review before this Court.

As the Majority aptly notes, “[t]he underlying issue before the ALJ was whether a pending and related PFA proceeding supported a stay of the child abuse ex-punction appeal.” (Op. at 443.) Additionally, the Majority concedes the grant of this motion “effectively denies Petitioner the right to a timely hearing under Section 6341(c.2) of the [Child Protective Services Law (CPSL) ], 23 Pa. C.S. § 6341(c.2).” (Op. at 441.) Section 6341(c.2) of the CPSL sets forth the procedure for expunction hearings and provides, in relevant part, as follows:

A person making an appeal under subsection (a)(2) or (c) shall have the right to a timely hearing to determine the merits of the appeal. A hearing shall be scheduled according to the following procedures:

(1) Within ten days of receipt of an appeal pursuant to this section, the department shall schedule a hearing on the merits of the appeal.
(2) The department shall make reasonable efforts to coordinate the hearing date with both the appellee and appellant.
(3) After reasonable efforts required by paragraph (2) have been made, the department shall enter a scheduling order, and proceedings before the Bureau of Hearings and Appeals shall commence within 90 days of the date the scheduling order is entered, unless all parties have agreed to a continuance. Proceedings and hearings shall be scheduled to be heard on consecutive days whenever possible, but if not on consecutive days, then the proceeding or hearing shall be concluded not later than 30 days from commencement.

23 Pa.C.S. § 6341(c.2)(l)-(3). Moreover, section 6341(d) of the CPSL addresses a stay of proceedings, providing as follows:

*445Any administrative appeal proceeding pursuant to subsection (b) shall be automatically stayed upon notice to the department by either of the parties when there is a pending criminal proceeding or a dependency or delinquency proceeding pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters), including any appeal thereof, involving the same factual circumstances as the administrative appeal.

23 Pa.C.S. § 6341(d). Indeed, the Majority recognizes section 6341(d) as the “only apparent exception to the right to a timely hearing” and that “[n]o other provision of the CPSL abrogates a person’s right to a timely hearing.” (Op. at 442.)

Nevertheless, the Majority ignores these statutory mandates, focusing instead on Petitioner’s purported inability to meet her burden of proving that BHA abused its discretion in denying reconsideration of its order granting the stay. Respectfully, I believe that said denial was in error as BHA lacked the authority to grant the stay in the first place. BHA’s authority is limited under the statutory provisions set forth above. There is no dispute that PFA proceedings do not constitute grounds for an automatic stay. In fact, BHA acknowledged as much in its order denying reconsideration. Further, the CPSL simply does not grant BHA discretion to extend the time period for a hearing unless both parties agree to such an extension. To the contrary, section 6341(c.2) requires BHA to enter a scheduling order within ten days of an appeal being filed and further requires that the hearing be conducted within ninety days of the date of the scheduling order, unless the parties agree otherwise.

For these reasons, I would reverse BHA’s order denying reconsideration of its order granting the stay and remand to BHA to conduct a hearing on Petitioner’s child abuse expunction appeal.