Child Protective Services Law; Right to a Hearing Contesting Founded Report Based on Facts Not Adjudicated

J.F. v. Dep’t of Human Servs., 204 A.3d 1042 (Pa. Cmwlth. 2019) (sealed), appeal docket 72 MAP 2019

The Supreme Court granted allocatur in this sealed case involving an issue of first impression: whether an alleged perpetrator is entitled to an evidentiary hearing under the Child Protective Services Law (CPSL) on a founded report based on an ARD proceeding that did not adjudicate the facts supporting the reports.

This case involves two reports by county children and youth social service agency (CYS) naming J.F., Mother, as a perpetrator of abuse of her twin daughters. Commonwealth Court summarized the relevant factual background as follows:

The reports stated that on May 7, 2017, at 2:00 a.m., the police found Mother semi-conscious and intoxicated on a public street and transported her to a hospital for suspected alcohol poisoning. At 6:30 a.m., the hospital contacted police because Mother informed the staff that her two children were home alone. The police went to Mother’s residence, where they met W.F. (Father), who worked the late shift. He had been called to the hospital but headed home when he learned that the children were alone. Father and the police found the twins asleep in their cribs. The report stated that Mother admitted that she had left the twins home alone to go to a bar.

The police charged Mother with the crime of “endangering the welfare of children.” 18 Pa. C.S. § 4304(a)(1).

The affidavit of probable cause filed in support of the criminal complaint stated, in relevant part, as follows:

 2. On 7 May 2017 at 0643 hours, [police officers were] dispatched to [Mother’s residence] for a check on the welfare complaint. The complainant was the Charge Nurse at the [ ] Emergency Room. The request made at the time was for the [police] to check on (2) two children who were left alone at the residence. The complainant reported the person making the request was the children’s mother who was in the Emergency Room and was intoxicated.

 3. [An officer] responded to the residence and attempted to make contact with the occupants…. He had no other information as to who the children were or how old they were. There was no response from the residence after repeated knocking on the door. [The officer] contacted the Charge Nurse for more information and was advised [Father] had just arrived at the [h]ospital, learned that the children were alone, and [was on his way to the residence]. [The officer] stayed at [the residence] awaiting [Father’s] arrival.

 4. At approximately 0745 hours, [Father] arrived at his residence and entered the residence with Officer [ ]. No persons were found in the home except for [C.F. and Chl.F.]. [C.F. and Chl.F.] are 15[-]month[-]old twin females. They were found asleep in their respective cribs on the 2nd floor of the residence.

 5. While waiting for the arrival of [Father at the residence], [the officer] was contacted by the [ ] Borough Police and informed that [Mother] had been transported to the [hospital] at about 0230 hours on May 7th 2017 due to being extremely intoxicated.

 6. On 9 May 2017, [Mother] was interviewed [by the police]. [Mother] admitted to leaving the residence sometime after 0001 (sic) hours on May 7th 2017 and going to [a bar] and consuming alcohol to the point that she lost consciousness.

Affidavit of Probable Cause, ¶¶ 2-6; R.R. 6a.

Slip Op. at 2-4. Based on the incident, CYS issued indicated reports naming Mother as the perpetrator of “serious physical neglect” of her children. Mother appealed the indicated reports and requested a hearing. Prior to the hearing, CYS amended the reports to founded based on Mother’s entrance into an accelerated rehabilitative disposition (ARD) program to resolve the child endangerment charge. The Department then dismissed Mother’s request for a hearing, stating that she had no right to an administrative hearing on a founded report, noting “that the Child Protective Services Law, inter alia, defines a “founded report” as one issued where “[t]here has been an acceptance into an accelerated rehabilitative disposition program and the reason for the acceptance involves the same factual circumstances involved in the allegation of child abuse. 23 Pa. C.S. § 6303(a).” Slip Op. at 4. 

Mother appealed to Commonwealth Court arguing that because the ARD proceeding did not adjudicate any of the facts that were recited in the founded reports to support the conclusion that Mother committed ‘serious physical neglect,’ she was entitled to an evidentiary hearing to provide her version of events and to explain her reasons for entering into ARD. In support, Mother relied on Commonwealth Court’s decisions in J.G. v. Department of Public Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002), holding that a founded report issued without a hearing on the factual statements in the report constitutes an invalid adjudication, and R.F. v. Department of Public Welfare, 801 A.2d 646 (Pa. Cmwlth. 2002), holding that a father was entitled to a hearing as to whether his nolo contendere plea itself established child sexual abuse. The court summarized the parties’ arguments:

Mother argues that under the principles established in J.G. and R.F., she is entitled to an evidentiary hearing under the Administrative Agency Law to provide her version of the incident and to explain her reasons for entering the ARD program. None of the facts recited in the founded reports have ever been adjudicated in a court of law. Mother asserts that the criminal charge of “child endangerment” is not the same as “serious physical neglect,” which must be “repeated, prolonged or egregious.” 23 Pa. C.S. § 6303(a). The Department responds that J.G. is distinguishable because it involved a dependency proceeding. Mother cannot be permitted to lodge a collateral attack on her entry into an ARD program, which involves a criminal, not a civil, matter.

Slip. Op. at 11.

Commonwealth Court held that Mother is entitled to a hearing on whether CYS correctly amended the indicated reports of child abuse to make them founded reports, reasoning:

It is well established that a judgment of a court of law cannot be subjected to collateral attack in a subsequent proceeding. Our Supreme Court has held that “a judgment, order or decree rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to collateral attack in any other proceeding.” Moeller v. Washington County, 352 Pa. 640, 44 A.2d 252, 254 (1945). This principle was followed in J.G., 795 A.2d 1089. Here, there has been no judgment. Indeed, “admission into an ARD program ‘places the criminal proceedings in abeyance’ ” and “successful completion of ARD ‘is not equivalent to a conviction under any circumstances.’ ” Kearney v. Bureau of Professional and Occupational Affairs, 172 A.3d 127, 136 (Pa. Cmwlth. 2007) (quoting Commonwealth v. Brown, 449 Pa.Super. 346, 673 A.2d 975, 979 (1996) ). Mother has not been convicted, and there has been no final judgment rendered.

In J.G., this Court held that a dependency adjudication will support a founded report where the court has entered a “finding that a child who is the subject of the report has been abused.” J.G., 795 A.2d at 1092. Because the dependency adjudication in J.G. was silent on whether the mother was the perpetrator, there was no finding on that question. Accordingly, there was no possibility of a collateral attack upon the Court’s judgment. Likewise, in R.F., 801 A.2d 646, the father’s underlying plea did not involve a judicial adjudication of child sexual abuse, and this entitled him to a hearing on the founded report of child sexual abuse.

The Child Protective Services Law states that acceptance into an ARD program constitutes a founded report where “the reason for the acceptance involves the same factual circumstances involved in the allegation of child abuse.” 23 Pa. C.S. § 6303(a). A founded report is unquestionably an adjudication. See J.G., 795 A.2d at 1092. However, “[n]o adjudication … shall be valid … [without] notice of a hearing and an opportunity to be heard.” 2 Pa. C.S. § 504. Where a founded report is based on facts not yet adjudicated, the perpetrator is entitled to a hearing before the Department conducted in accordance with the Administrative Agency Law. J.G., 795 A.2d at 1092.

As Mother observes, there has been no judicial finding about the risk in which she placed her children “because no record of the ARD proceeding was submitted.” Mother’s Brief at 8. She argues that the allegations in the criminal complaint and the statements in an affidavit of probable cause cannot become adjudicated facts based solely on entry into ARD. We agree. No facts were adjudicated in the ARD proceeding. Accordingly, Mother’s appeal of the founded report does not lodge a collateral attack on a judicial determination. J.G., 795 A.2d at 1093.

Slip Op. at 12-13 (footnotes omitted).

Judge Wojcik filed a dissent, noting that the definition of “child abuse” in Section 6303(b.1) of the CPSL does not require a determination concerning the severity of injuries or the level of risk created, the criminal docket sufficiently demonstrated that Mother was accepted into ARD to resolve pending charges of Endangering the Welfare of a Child, and Mother “never challenged the accuracy of the documents reflecting that she admittedly left her 15-month-old daughters alone in their cribs overnight.” Slip Op. at MHW-7. Judge Wojcik disagreed with the majority reliance on J.G. and R.F., reasoning that the facts in those cases were “completely dissimilar” to Mother’s case because, unlike those cases, this case “does not raise questions as to the identity of the perpetrator or to Petitioner’s conduct on May 7, 2017.” Slip Op. at MHW-9. The dissent explained:

Here, Petitioner does not argue that the factual circumstances are not the same, but instead sets forth an irrelevant argument, that the facts do not establish the “severity of any injuries or level of risk Petitioner created by her actions.” Petitioner’s brief at 8. Petitioner does not assert that the criminal charges disposed of by ARD were not based on facts evincing a “failure to supervise” as contemplated by Section 6303(a) of the CPSL. Because she does not argue that the factual circumstances are not the same, J.G. and R.F. are materially distinguishable, and a hearing could serve no discernable purpose.

Slip Op. at MHW-16-17. Rather, Judge Wojcik would apply the Supreme Court’s reasoning in R. v. Department of Public Welfare, 636 A.2d 142 (Pa. 1994), as affirmed by G.V. v. Department of Public Welfare, 91 A.3d 667 (Pa. 2014), in which the Supreme Court’s “recognized that harm to one’s constitutionally protected right to reputation is not, as suggested by J.G., an inevitable result of being named in a founded report.” Slip Op. at MHW-19. Based on Supreme Court precedent, Judge Wojcik “would revisit this Court’s implicit assumption to the contrary in J.G. and our continuing reliance thereon” reasoning that “the conclusory statement in J.G. is inconsistent with controlling authority and does not support a holding that a founded report under Section 6303 must be supported by an adjudication in every case” and that “the CPSL’s criteria regarding indicated and founded reports provide adequate safeguards to protect an individual’s right to reputation.” Slip Op. at MHW 12-13. Thus, the dissent concluded:

Because Petitioner does not argue that her ARD disposition involves different factual circumstances than are involved in the allegation of child abuse, she raises no issue necessitating a hearing under the CPSL. Based on the foregoing, I would clarify our analysis in J.G., and I would affirm the final order of the BHA.

Slip Op. at MHW-20.

As part of the courts’ ongoing Covid 19 response, the Supreme Court will hear oral argument in this case via video conference:

For more information, contact Kevin McKeon or Dennis Whitaker.