IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA K.B., : Petitioner : : CASE SEALED v. : No. 964 C.D : Submitted: December 5, 2014 Department of Public Welfare, : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: March 11, 2015 Petitioner K.B. petitions for review of an order of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (BHA), dated May 12, The BHA s order dismissed Petitioner s appeal requesting to expunge a founded report of child abuse filed by Fayette County Children and Youth Services (CYS). For the reasons set forth below, we now affirm. CYS received an oral report of suspected child abuse involving K.B. on March 27, (Reproduced Record (R.R.) at 2a.) investigation and filed a report using a CY-48 form on April 24, CYS completed an (Id.) The case status on the report provided that the case was indicated due to a CYS 2a.) 1 The CY-48 form is entitled Child Protective Service Investigation Report. (R.R. at

2 investigation. (Id. at 3a.) The nature of the abuse was listed as sexual assault of the minor K.Z., and the report provided that K.B. sent text message photos and videos of his genitalia to [K.Z.] over... two weeks. (Id. at 2a-3a.) K.B. was charged with one count of Dissemination of Explicit Sexual Material to a Minor, 18 Pa. C.S. 5903, and one count of Corruption of Minors, 18 Pa. C.S (R.R. at 11a.) These charges appear to be based on the same factual circumstances as CYS indicated report. (Id. at 4a.) Ultimately, on May 3, 2013, K.B. pled guilty to the charge of Corruption of Minors, and the Dissemination of Explicit Sexual Material to a Minor charge was nolle prossed. (Id. at 11a-12a.) K.B. was sentenced on July 16, 2013, and an amended sentence followed on July 24, (Id. at 19a.) On February 11, 2014, CYS filed a CY-49 form, which changed the status of K.B. s case from indicated to founded. 2 (Id. at 5a.) The explanation for the change in status was K.B. s guilty plea and subsequent sentence. (Id.) K.B. filed an administrative appeal with the BHA, requesting that the indicated report of child abuse be expunged. (Id. at 23a-25a.) An Administrative Law Judge (ALJ) ordered K.B. to show cause as to why the... appeal should go to a hearing rather than be dismissed. (Id. at 6a.) In his response, K.B. argued that the report should have been deemed unfounded because a final determination was not made within sixty days of July 16, 2013, his plea was unrelated to child abuse and could not be used for a founded report, and that he was entitled to a hearing... so that he may establish that his constitutional rights have been violated, that errors of law have 4a.) 2 The CY-49 form is entitled Child Protective Service Supplemental Report. (R.R. at 2

3 been committed, and whether necessary findings of fact are supported by substantial evidence. (Id. at 6a-7a.) The BHA dismissed K.B. s administrative appeal in an order dated May 12, (Id. at 27a-28a.) The BHA s order provided: AND NOW, having received documentary evidence demonstrating that [K.B.] pled guilty to Corruption of Minors on July 16, 2013 based on the same factual circumstances and victim child referenced in the... founded report, and after [K.B.] having been afforded an opportunity to demonstrate that said conviction was not related to the... allegation of child abuse or that the outcome should not result in dismissal of this matter on the basis of collateral estoppel, the... appeal is hereby DISMISSED in accordance with 23 Pa. C.S.A as the report is founded. (Id. at 27a.) K.B. then petitioned this Court for review. expunged. On appeal to this Court, 3 K.B. first argues that the report must be Specifically, he contends that CYS was required to make a final determination as to his case status within sixty days of the initial report and, thus, the CYS report changing the case status from indicated to founded was untimely and must be deemed unfounded by operation of law. K.B. next argues that the BHA erred in dismissing his appeal and denying him a hearing. We first address K.B. s argument that the child abuse report should be deemed unfounded because CYS failed to make a timely determination as to 3 Our scope of review is limited to determining whether constitutional rights have been violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence. J.M. v. Dep t of Pub. Welfare, 52 A.3d 552, 554 n.6 (Pa. Cmwlth. 2012). 3

4 whether the report was indicated or founded. 4 cites the Child Protective Services Law (Law), which provides: In support of this argument, K.B. If an investigation of a report of suspected child abuse conducted by the appropriate county agency pursuant to this chapter does not determine within 60 days of the date of the initial report of the instance of suspected child abuse that the report is a founded report, an indicated report or an unfounded report, or unless within that same 60-day period court action has been initiated and is responsible for the delay, the report shall be considered to be an unfounded report, and all information identifying the subjects of the report shall be expunged no later than 120 days following the expiration of one year after the date the report was received by the department. 23 Pa. C.S. 6337(b). DPW regulations promulgated under the Law provide: When the CY-48 form is not filed with ChildLine within 60-calendar days of receipt of the report by ChildLine, the report shall be unfounded. 55 Pa. Code The regulations further provide that a supplemental child abuse report must be submitted to ChildLine when a case is presented before a court and there is a change in the status of the report. 55 Pa. Code (d). Neither the 4 The Child Protective Services Law (Law), 23 Pa. C.S , provides the definition of founded report: A child abuse report involving a perpetrator that is made pursuant to this chapter, if any of the following applies: 23 Pa. C.S. 6303(a). (1) There has been a judicial adjudication based on a finding that a child who is a subject of the report has been abused and the adjudication involves the same factual circumstances involved in the allegation of child abuse. The judicial adjudication may include any of the following: (i) The entry of a plea of guilty or nolo contendere. 4

5 regulations nor the Law provide a timeline for the filing of a supplemental report. Id. K.B. also relies on J.C. v. Department of Public Welfare, 980 A.2d 743 (Pa. Cmwlth. 2009), appeal denied, 995 A.2d 355 (Pa. 2010), a case which K.B. contends supports the proposition that a founded report determination must be made within sixty days of sentencing. In J.C., the CY-48 form listed the defendant s case status as pending criminal court action. J.C., 980 A.2d at 745. The defendant was sentenced more than sixty days later and, shortly after sentencing, a new CY-48 form was filed which listed the case status as founded. Id. This Court determined that the Law and regulations contemplate a suspension of the 60-day period where... there is criminal court action pending and the agency reports that status to ChildLine. Id. at 747. The pending action delayed the final status determination and, thus, Butler County Children and Youth Services was timely in filing the new determination eight days after the defendant was sentenced. Id. at 748. J.C. is clearly distinguishable from the instant matter. Here, CYS did not designate that the result of its investigation depended on the outcome of pending criminal charges against K.B. The CYS investigation began on March 27, 2012, and ended when CYS filed the indicated report on April 24, This complies with the Law and related regulations, which only require that the CY-48 form be filed within sixty days of the initial report. It is only when CYS fails to file the report as founded, indicated, or unfounded within the sixty-day timeframe that a report must be deemed unfounded by operation of law. There is no timeframe for the filing of a supplemental report. In fact, CYS was required to file the supplemental report pursuant to 55 Pa. Code (d) after K.B. pled 5

6 guilty, because such a plea changes the status of the report. See id. at 747; see also 23 Pa. C.S. 6303(a) (explaining that report is founded when defendant pleads guilty). Thus, the CYS report was timely and should not be deemed unfounded as an operation of law. We next address K.B. s argument that the BHA erred in dismissing his appeal and denying him a hearing. K.B. appears to argue that he was entitled to a hearing to determine if the charge he pled guilty to, Corruption of Minors, was sufficient to support a founded report of child abuse. 5 5 The definition of child abuse is provided in the Law: In support of this contention, Child abuse. -- The term child abuse shall mean intentionally, knowingly or recklessly doing any of the following: (4) Causing sexual abuse or exploitation of a child through any act or failure to act. 23 Pa. C.S. 6303(b.1). The term sexual abuse is also defined, in pertinent part, as (1) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in sexually explicit conduct, which includes, but is not limited to, the following: 23 Pa. C.S. 6303(a). (i) Looking at the sexual or other intimate parts of a child or another individual for the purpose of arousing or gratifying sexual desire in any individual. (ii) Participating in sexually explicit conversation either in person, by telephone, by computer or by a computer-aided device for the purpose of sexual stimulation or gratification of any individual. (iii) Actual or simulated sexual activity or nudity for the purpose of sexual stimulation or gratification of any individual. (iv) Actual or simulated sexual activity for the purpose of producing visual depiction, including photographing, videotaping, computer depicting or filming. 6

7 K.B. cites this Court s decision in R.F. v. Department of Public Welfare, 801 A.2d 646 (Pa. Cmwlth. 2002). In R.F., Berks County Children and Youth Services changed the status of a defendant s report from an indicated report of child sexual abuse to a founded report of child sexual abuse after he pled nolo contendere to Endangering the Welfare of a Child. Id. at 648. R.F. claimed that part of his plea bargain was that he did not have to plead guilty to child sexual abuse; thus, his plea was insufficient to support a founded report of child abuse. Id. at 649. This Court concluded that R.F. was entitled to a hearing because he was attacking the characterization of his plea, not collaterally attacking the underlying matter. Id. We remanded the matter to determine whether a founded report could be based on R.F. s nolo contendere plea. Id. [W]here there is an entry of a guilty plea or nolo contendere... to a criminal charge involving the same factual circumstances involved in the allegation of child abuse, an appeal would in most instances, constitute a collateral attack of the adjudication itself, which is not allowed. Id. (citing J.G. v. Dep t of Pub. Welfare, 795 A.2d 1089, 1093 (Pa. Cmwlth. 2002)). R.F. is an exception to this general rule. The instant matter, however, is distinguishable from R.F. K.B. fails to identify how his guilty plea to a Corruption of Minors charge is unrelated to the child sexual assault that constitutes the underlying factual circumstances of this case as set forth in the CY-48 and CY-49 forms. K.B. does not contend that his plea was unrelated to child sexual assault. Rather, he simply states that his appeal is an attack upon the characterization the agency is giving to his plea, without providing any support for this statement. (Pet r s Br. at 14.) Unlike the defendant in R.F., K.B. does not contend that a condition of his plea was not having to plead guilty to the factual circumstances which formed the basis of CYS report. 7

8 Therefore, we conclude that K.B. s appeal is a collateral attack on the underlying criminal matter, and he is not entitled to a hearing. Accordingly, we affirm the BHA s order. P. KEVIN BROBSON, Judge 8

9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA K.B., : Petitioner : : CASE SEALED v. : No. 964 C.D : Department of Public Welfare, : Respondent : O R D E R AND NOW, this 11th day of March, 2015, we AFFIRM the order of the Department of Public Welfare, Bureau of Hearings and Appeals, dated May 12, P. KEVIN BROBSON, Judge