Opinion
No. 1001 C.D. 2011
06-15-2012
K.G., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner K.G. (K.G.) petitions for review of an order of the Acting Secretary of Public Welfare, which upheld an order of the Department of Public Welfare's (DPW) Bureau of Hearings and Appeals (Bureau). The Bureau's order rejected on timeliness grounds K.G.'s request for a hearing nunc pro tunc. We affirm the Acting Secretary's order.
This matter involves a late appeal by K.G., a person identified by DPW's Office of Children, Youth and Families (CYF), as a perpetrator of child abuse. In or about June 2009, K.G., who was pursuing nursing studies, submitted to DPW a Form CY-113, in order to obtain clearance for employment purposes. DPW advised K.G. in July 2009 that the Department's "Central Registry" maintained a report that K.G. had been identified as a perpetrator of child abuse with regard to S.G. The Department identified the child abuse report with the number 640002187 (Report no. 2187).
By letter dated August 7, 2009, addressed to ChildLine, K.G. requested the Department to consider an appeal of Report no. 2187. In this letter, K.G. made reference to another case, presumably report number 640002189 (Report no. 2189), for which S.G. had recanted a claim of child abuse against K.G.'s husband. S.G.'s recantation of that claim against K.G.'s husband apparently caused the Department to issue a notification on January 26, 2006, that Report no. 2189 was not founded.
This letter has a date of August 7, 200 8 , but the record indicates that the actual date of the letter was August 7, 200 9 .
ChildLine is a statewide toll-free reporting system through which DPW receives reports of suspected child abuse. When DPW receives a report of suspected child abuse, it refers the report for investigation. DPW maintains such reports in ChildLine pending the outcome of investigation, and, depending on the outcome of the investigation, either removes the report entirely or transfers the report for maintenance in the Central Registry.
By decision dated September 18, 2009, CYF denied K.G.'s request for appeal of Report no. 2187. This letter also advised K.G. that she had the right to a hearing before the Secretary of DPW. K.G. did not request a hearing until March 5, 2010, when she submitted her request by fax. On March 18, 2010, the Department notified K.G. that her request to appeal the September 18, 2009 decision was not timely. By letter dated April 7, 2010, K.G. again requested a hearing on the merits, acknowledging that she had submitted her request beyond the forty-five (45) day limitation period identified in CYF's September 18, 2009 decision. On May 10, 2010, the Bureau issued a rule to show cause why K.G.'s appeal should not be dismissed as untimely. On June 14, 2010, K.G. submitted a response, asserting several reasons for her delay in appealing the September 18, 2009 decision, including (1) the September 18, 2009 decision provided insufficient notice of her appeal rights; (2) the time it took K.G. to obtain counsel; and (3) the confusion she claimed the Department's January 26, 2006 letter (concerning Report no. 2189) created by indicating that the report of child abuse identified at that number was unfounded.
An Administrative Law Judge (ALJ) conducted a hearing to address the timeliness of K.G.'s appeal. The ALJ concluded that K.G.'s request for a hearing was untimely. The ALJ relied upon 55 Pa. Code § 3490.106a(c), which relates to hearings and appeal proceedings for indicated reports of child abuse maintained on the Central Registry. This regulation provides that "[t]he request shall be made to the Secretary and postmarked within 45-calendar days of the date of the notification letter from the Secretary to either grant or deny the request to expunge the report." The ALJ based his decision upon (1) K.G.'s admission that she received the September 18, 2009 decision denying her request to expunge Report no. 2187; (2) rejection of K.G.'s argument that the content of the denial decision was deficient; and (3) K.G.'s failure to establish grounds to permit an appeal nunc pro tunc. The Bureau's regional manager adopted the ALJ's adjudication and recommendation on September 13, 2010. K.G. filed a request for reconsideration, which the Secretary granted. The Secretary, however, upheld the Bureau's order, and K.G. filed her petition for review with this Court.
On appeal, K.G. raises the following issues: (1) whether the Department's September 18, 2009 decision failed to provide adequate notice to K.G. of her right to appeal, such that the Secretary erred as a matter of law in upholding the Bureau's decision denying K.G.'s request for a nunc pro tunc appeal; (2) whether K.G. demonstrated her right to appeal nunc pro tunc and the Bureau's decision, therefore, constitutes either a violation of K.G.'s constitutional rights or an error of law; and (3) whether the Bureau's factual findings numbers 1 and 2 are supported by substantial evidence.
This Court's standard of review in this matter is limited to determining whether the adjudication violates constitutional rights, whether the adjudication is legally correct under the law, and whether substantial evidence supports necessary factual findings. K.S. v. Dep't of Pub. Welfare, 564 A.2d 561, 563 (Pa. Cmwlth. 1989).
As to this last issue, K.G. phrases it as whether the findings constitute an error of law or a violation of K.G.'s constitutional rights. Nevertheless, K.G. develops the issue as whether the findings are supported by substantial evidence.
K.G. first argues that the Bureau's September 18, 2009 decision letter was inadequate under the Child Protective Services Law (Law) in that it failed to advise K.G. of the consequences of CYF's denial of her expungement request and K.G.'s failure to appeal in a timely manner. Although K.G. raises seven alleged deficiencies in the September 18, 2009 decision, she only discusses the following in her brief: (1) the notice is equivocal; (2) the notice did not clearly advise K.G. that she had to appeal within forty-five (45) days; and (3) the notice did not advise K.G. that a child abuse report could impair her ability to work in certain jobs, which, she contends, violates 55 Pa. Code § 3490.40a.,
The other alleged infirmities K.G. mentions are: (1) the notice did not advise K.G. that she would lose certain rights, including the right to a hearing on her request to have her record expunged; (2) the notice did not advise K.G. that DPW would have the burden of proof at an expunction hearing; (3) the notice did not advise K.G. that she had the right to assistance of counsel; (4) the notice did not provide K.G. with a form she could complete and send to DPW to request a hearing; and (5) the notice did not distinguish between Report no. 2187 and Report no. 2189 (the latter of which, as noted above, DPW concluded was unfounded).
55 Pa. Code § 3490.40a, which relates to notifications regarding indicated reports, provides that when an indicated report is entered into the Central Registry, ChildLine must notify subjects of the report regarding, among other things, "[t]he effect of the report upon future employment opportunities in a child care service."
Specifically, K.G. asserts that the notice included in CYF's September 18, 2009 decision was equivocal regarding K.G.'s rights by requesting only that K.G. "submit [her] request in writing within 45 days of the date of this letter," without advising K.G. that compliance with the forty-five (45) day time limit is necessary, rather than optional, in order to preserve the right to a hearing. Further, K.G. argues that the notice does not contain any warning of the professional consequences of a child abuse report. With these arguments in mind, we will evaluate the notice contained in CYF's September 18, 2009 decision.
The September 18, 2009 decision contains an initial paragraph, informing K.G. that, after reviewing her request to expunge the report of child abuse, CYF concluded that it was properly maintaining the report under the Law, and that, therefore, the Department would retain the report. Thereafter, the letter provides:
However, you do have the right to a hearing before the Secretary of the Department of Public Welfare or their designee, the Bureau of Hearings and Appeals.(Reproduced Record (R.R.) at 69a; emphasis in original.)
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 Child Abuse Appeals at the above address. Please include a telephone number where you can be contacted. Your request will be forwarded to the Bureau of Hearings and Appeals who will schedule a hearing and notify you of the time and place for the hearing.
If you have any questions about the law or appeal process please write to Child Abuse Appeals or contact that office at 717-425-2992.
With regard to K.G.'s claim that the September 18, 2009 decision violates 55 Pa. Code § 3490.40a, because the letter does not provide information regarding the potential employment consequences of an indicated report, we note that this regulation requires notification to perpetrators at the time indicated reports are entered in the Central Registry. K.G. does not contend that the Department did not give her this notice at the time Report no. 2187 was entered into the system. This regulation does not apply to decisions denying a perpetrator's request to amend or expunge a Central Registry report. Thus, we will not reverse the Acting Secretary's order on this ground.
We also reject K.G.'s claim that the notification in the September 18, 2009 decision regarding the timing of appeals is equivocal. The notice states that K.G. has the right to a hearing. The notice also states that K.G. should submit a written request for a hearing within forty-five (45) days of the date of the notice, if K.G. desires a hearing. This language provided K.G. with notice she had the absolute right to a hearing to challenge the decision. The notice clearly provides that, in order to obtain a hearing, K.G. had to file a written request within forty-five (45) days of the date of the notice. We do not view CYF's use of the word "please" as anything other than polite.
K.G. also argues that this Court's decision in C.S. v. Department of Public Welfare, 879 A.2d 1274 (Pa. Cmwlth. 2005), supports her claim that the notice was equivocal. As the Department points out, however, the notice at issue in C.S. is distinguishable from the notice in this case. The notice that was the subject of this Court's decision in C.S. suggested that the right to a hearing was not absolute. In that case, the notice provided that "[a]n alleged perpetrator of child abuse may require the Department to hold a hearing where an expungement request is denied, if he requests expungement within 45 days of being notified of the indicated report of abuse." C.S., 879 A.2d at 1279 (emphasis added). In this case, the notice to K.G. specifically stated that she had the right to a hearing. For these reasons, we reject K.G.'s argument that CYF's notice to her was insufficient.
K.G. next argues that she established a right to an appeal nunc pro tunc. In J.C. v. Department of Public Welfare, 720 A.2d 193 (Pa. Cmwlth. 1998), this Court noted that
the failure to appeal an administrative agency's action is a jurisdictional defect. The time for taking an appeal therefore cannot be extended as a matter of grace or mere indulgence. An appeal nunc pro tunc may be allowed, only where delay in filing the appeal was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to the appellant, his counsel or a third party. One seeking permission to file an appeal nunc pro tunc has the burden of establishing that (1) the appeal was filed within a short time after learning of and having an opportunity to address the untimeliness; (2) the elapsed time period is of very short duration; and (3) appellee is not prejudiced by the delay.J.C., 720 A.2d at 197 (citations omitted).
K.G. asserts that the notification the Department sent to her on January 26, 2006, which related to Report no. 2189, indicated that a report generated against K.G. was unfounded. K.G. argues that this letter demonstrates that a breakdown in the administrative process occurred and created confusion for K.G.. K.G. testified during the ALJ's hearing that she believed, upon receiving the January 26, 2006 letter that the matter had been "cleared up." (R.R. at 47a-48a.)
In response to this argument, the ALJ held:
[K.G.] also argued that she was confused because of a January 26, 2007 notice from the Office of Children, Youth, and Families regarding ChildLine number 64-2189 which notified [K.G.] that the allegations of abuse were unfounded. After receiving this notice [K.G.] believed that all ChildLine reports had been determined unfounded. However, both of the above referenced
notices had the ChildLine number clearly identified so it was clear that the unfounded status only applied to ChildLine number 64-2189. [K.G.]'s confusion was not caused by extraordinary circumstances involving fraud or some breakdown in the administrative process. [K.G.]'s confusion was also not caused by non-negligent circumstances related to [K.G.], his [sic] counselor, or a third party, which were beyond [K.G.]'s control.(ALJ Decision at 4.) As indicated in her August 7, 2009 letter addressed to ChildLine, K.G. understood that two reports had been submitted regarding alleged child abuse of S.G.. As indicated above, in the August 7, 2009 letter, K.G. specifically references Report no. 2187, and in the next sentence K.G. notes that "[t]here was an alt[ernate] case involving my husband and stepdaughter . . . in which my husband was indicated on allegations my step-daughter later recanted." (R.R. at 1a.) Thus, the record reveals that K.G. understood that while one report had been unfounded, another report, Report no. 2187, still existed. Further, when K.G. received the response from the Department to her clearance request, indicating that she was the subject of Report no. 2187, she had definitive reason to know that she needed to take action. Thus, we agree with the Bureau's conclusion that K.G. did not establish a breakdown in the administrative process.
K.G. also contends that her delay in obtaining legal counsel supports her claim that she should be allowed to appeal nunc pro tunc. A litigant's failure to retain legal counsel does not constitute a breakdown in the administrative process or non-negligent circumstances, as such a decision is not beyond the litigant's control. We agree with the Bureau's conclusion that such a reason does not involve a breakdown in the administrative process. Further, we conclude that the ALJ correctly reasoned that no extraordinary or non-negligent circumstances support K.G.'s claim of confusion.
The last issue K.G. raises is whether substantial evidence supports Findings of Fact numbers 1 and 2. Finding of Fact number 1 provides that the Office of Children, Youth, and Families notified K.G. on January 5, 2006, that she had been identified as a perpetrator of child abuse. K.G. argues that the ALJ inappropriately referenced a mailing date of notice with no return receipt for the alleged mailed notice. K.G. notes that the ALJ stated during the hearing that the events that transpired with regard to the initial notice the Department sent to K.G. regarding Report no. 2187 were not relevant to the particular issues regarding the timeliness of the appeal before the ALJ. Finding of Fact number 2 states that K.G. filed an appeal of the indicated report on August 7, 2009. Although K.G. is correct in noting that the original notice from the Department to K.G. regarding Report no. 2187 is not in the record, as the ALJ determined, K.G.'s letter appeal dated August 7, 2008 does specifically reference Report no. 2187 as the subject of her appeal.
K.G. does not dispute the fact that CYF rejected K.G.'s appeal for expungement in its September 18, 2009 decision, and that K.G.'s failure to appeal that decision in a timely manner is the subject of the present controversy. K.G. does not suggest any reason why these contested factual findings warrant reversal of the Bureau's decision. In accordance with our standard of review identified in footnote 3 above, only necessary factual findings must be supported by substantial evidence. Thus, to the extent that substantial evidence does not support Finding of Fact number 1, such error constitutes only harmless error. Retirement Bd. of Allegheny Cnty. v. Colville, 852 A.2d 445, 452 (Pa. Cmwlth. 2004) (holding adjudicator's determination of facts when not supported by substantial evidence constitutes harmless error if those facts are not necessary for ultimate legal conclusion).
With regard to Finding of Fact number 2, we note that the record contains K.G.'s August 7, 2009 appeal letter, which supports that factual finding. (R.R. at 1a.)
Accordingly, we affirm the Acting Secretary of Public Welfare's order upholding the order of the Bureau.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 15th day of June, 2012, the order of the Acting Secretary of Public Welfare is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE LEAVITT
Respectfully, I dissent. An indicated report of child abuse implicates due process because this report can destroy the alleged perpetrator's ability to make a living in some lines of work. When so much is at stake, the government's notice to a lay citizen about how to pursue an appeal of such a report must be clear and unequivocal. The notice to K.G. was confusing.
On July 26, 2007, K.G. received a letter from the Department of Public Welfare that a 2005 indicated report of child abuse of S.G. that had listed K.G. as the perpetrator was being expunged because the county agency determined "(1) the incident did not occur, (2) the injury was not of a serious nature, or (3) substantial evidence was not found." Reproduced Record at 72a. (R.R. ___). The letter further explained that "this action has been taken because your name was listed on the report as the perpetrator of child abuse or student abuse." Id. The letter was addressed solely to K.G., and it identified the expunged report by a 9- digit number "640002189." Two years later, K.G., who is pursuing a nursing degree at Penn State, was denied an Act 33 clearance because she was listed on the ChildLine Registry, by report number "640002187." This report was not expunged in 2007 although her husband's report was, apparently, expunged in 2007. K.G. and her husband were each issued indicated reports in 2005 with nearly identical numbers. Nowhere did the 2007 letter to K.G. mention her husband's name. The same alleged incident and victim formed the basis of both reports, and K.G. reasonably believed that her indicated report, like her husband's, had been expunged. K.G. Brief at 11.
Even if K.G. had been alert to the report's number in the subject heading of the letter, she may have thought the number was a mistake. The letter described the particulars of her report.
On August 7, 2009, upon learning that she would not be cleared to continue her nursing studies, K.G. wrote to the Department requesting an appeal, noting that her step-daughter had recanted her allegations of abuse. R.R. 1a. She explained that she and her husband did not fight the two indicated reports when issued in 2005 because they were advised by Children and Youth Services that to do so could lead to the removal of their other children from their home. K.G. explained how important a nursing job was to her and her family in these "hard times." Id. Her husband was working odd jobs because he was unable to find a "formal job." Id. She "implore[d]" the ChildLine Registry to "allow my voice to be heard." Id.
By letter dated September 18, 2009, K.G. received the following response:
Dear [K.G.]:
We have completed our review of your request to amend the report of child abuse in which you are listed as one of the perpetrators of the act(s) of abuse. We believe the report is accurate and being maintained in a manner consistent with the Child Protective Services Law. Thus the report will remain on file as originally reported.
However, you do have the right to a hearing before the Secretary of the Department of Public Welfare or their designee, the Bureau of Hearings and Appeals.
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 Child Abuse Appeals at the above address. Please include a telephone number where you can be contacted. Your request will be forwarded to the Bureau of Hearings and Appeals who will schedule a hearing and notify you of the time and place of the hearing.
If you have any questions about the law or appeal process please write to Child Abuse Appeals or contact that office at 717-425-2992.
R.R. 69a (emphasis added).Sincerely,
s/Cathy A. Utz
Cathy A. Utz, Director
Bureau of Policy and
Program Development
K.G. understood this letter to mean that the Department of Public Welfare was requesting, not demanding, a written appeal in 45 days that included her phone number. She did not understand the 45 days to be mandatory. Stated otherwise, she believed she could appeal by some other means or timetable, to be determined by when she conceived a "desire to have a hearing." "Please" is not a synonym for "must," as argued by Wayne County Children and Youth Services.
The Department did not file a brief, but Wayne County Children and Youth Services did. It contends that the Department's letter "clearly" stated: "If you want a hearing, you must submit your request in writing within 45 days of the date of the letter." Children and Youth Services Brief at 3. The word "must" does not appear in the Department's letter.
The majority asserts that the Department's politeness in adding the word "please" to the imperative "submit" should be encouraged. I agree that politeness is desirable, but not at the expense of clarity. Had the Department's notice also warned K.G. of the consequence of not finding it pleasing to submit a written request for a hearing in 45 days, its notice would have been satisfactory.
The word "please" has several meanings. It can be used to "express polite affirmation," e.g., "May I help you? Please." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1738 (2002). "Please" can express annoyance or impatience, in which case it is pronounced "puh-lease." Please Definition, WIKTIONARY.ORG, http://en.wiktionary.org/wiki/please (last visited May 21, 2012). "Please" can also convey politeness. The polite form of "please" is derived from the intransitive form of the verb "to please" and is short for "if you please." THE COMPACT EDITION OF THE OXFORD ENGLISH DICTIONARY 985 (1971). I agree with the majority that the Department used "please" in its notice to express politeness, as opposed to annoyance or affirmance. Synonyms for the polite form of "please" include "choose, desire, prefer." Please Definition, DICTIONARY.COM, http://dictionary.reference.com/browse/please (last visited May 21, 2012).
There are cases that are instructive on the impact of adding the word "please" to a purported command. In an unpublished opinion, Toussiant v. Department of the Treasury, No. 91-3150, 1991 U.S. Dist. LEXIS 11275 (D. N.J. August 2, 1991), the New Jersey District Court considered Section 6303(a) of the Internal Revenue Code, which governs the notice that must precede a wage garnishment for unpaid taxes. The Section 6303(a) notice requires (i) a statement of the amount assessed and (ii) a demand for payment. 26 U.S.C. §6303(a) (emphasis added). At issue in Toussiant was whether two different IRS notices met the "demand for payment" standard. The Court found the first notice given by the IRS was deficient, explaining as follows:
Garnishment is available only after the tax liability has been established in a hearing or otherwise.
That document clearly does not contain a demand for payment. At most, it notifies Mr. Toussaint [sic] of the amount due and requests that he "please" make payment in a certain manner. While the Court does not criticize the IRS for endeavoring to be polite to a taxpayer, nevertheless, this "notice" does not satisfy the requirements of §6303(a).Toussiant, 1991 U.S. Dist. LEXIS 11275 at *8 (emphasis added). The Court found, however, that the IRS cured this deficiency in its second notice, which informed Mr. Toussiant of the consequences of his failure not to respond to the "request" for payment.
There is other authority for the view that the addition of "please" dilutes a command and, thus, should also include a warning of the consequences of not finding the command pleasing. In Gil Enterprises, Inc. v. Delvy, 79 F.3d 241, 246 (2d Cir. 1996), the Second Circuit Court of Appeals held that "precatory language ("Please advise") . . . [was] ambiguous [and] did not rise to the level of a demand, because [it] objectively failed to [make sufficient] notice of the drastic legal repercussions that could result from noncompliance" (italics in original). Likewise, in Gershman v. Barted Realty Corp., 198 N.Y.S.2d 664, 665-66 (N.Y. Sup. Ct. 1960) (emphasis added), the court explained that a
demand „may be couched in the customarily-used polite language of the day . . . [but t]he letter by the attorneys to the defendant falls short of measuring up to the requirements of what constitutes a legal demand [because it did not] indicate that the request [was] made under a claim of right under the mortgage, nor [did] it request compliance therewith.In other words, by citing to the contract provision that established the recipient's legal obligation, the writer would have overcome the effect of using "please" in what was intended to be a contract demand.
To be sure, there is contrary authority. In Duskin v. Carlson, 965 P.2d 611 (Wash. 1998), the Washington Supreme Court reversed a holding of a Washington appeals court that the use of "please" had left a party in doubt about whether a demand had been communicated. Notably, in Duskin, the dissent argued that if "please" is used in a "demand," it must be followed by an explanation of the consequences of not yielding to the request. Id. at 617 (Johnson, J., dissenting).
Notably, all these cases involve commercial disputes, including the IRS tax case. The private contract cases all involved sophisticated parties and communications between counsel. Nevertheless, all but one holding, to which there was a strong dissent, held that "please" undermines an imperative. The government, when giving notice of a due process right to a citizen, should be held to a high standard of clarity.
Here, the Department did not inform K.G. of the consequences of not sending in a written appeal within 45 days that included her phone number. This is an easy thing to do, and government notices frequently do so, often in bold and in all capital letters. K.G. is not a lawyer and cannot be expected to be attuned to the concept of appeal deadlines or the consequences of not meeting them.
Precedent teaches that government notices must be clear. A notice given to a licensee that contained the wrong date of a refusal to take a chemical test was found to violate due process because it "could well be misleading." Department of Transportation, Bureau of Driver Licensing v. Balloch, 598 A.2d 110, 112 (Pa. Cmwlth. 1991). Where a government notice is defective, because it is ambiguous or not "reliable," an appeal will not be dismissed for untimeliness. Julia Ribaudo Senior Services v. Department of Public Welfare, 600 Pa. 641, 649, 969 A.2d 1184, 1189 (2009). Alternatively, where there is a breakdown in the administrative process, an appeal can be filed nunc pro tunc. C.S. v. Department of Public Welfare, 879 A.2d 1274, 1279 (Pa. Cmwlth. 2005).
In C.S. we granted a nunc pro tunc request for expungement of an indicated report because the Department's use of the term "may" did not properly inform C.S. of his right to an appeal. We stated that "[a]lthough Petitioner was informed that he had 45 days to request expungement from the Secretary, he was not informed of his absolute right to a hearing. Rather, he received the more equivocal advice that he „may" receive a hearing." Id. at 1280. The addition of the word "please" created far more ambiguity than was found to exist in C.S. by using "may" in place of "will."
Section 6341(c) of the Child Protective Services Law requires an alleged perpetrator to be given a hearing, at which the agency bears the burden of proving child abuse by the perpetrator. Otherwise, as in this case, citizens can have their ability to work at a job requiring Act 33 clearance removed on the basis of no more than an "oral report" by the alleged victim and not on the basis of record evidence. For this reason, the legislature requires the Department to notify perpetrators of their right to a hearing. Section 6338(a) of the Child Protective Services Law states:
Section 6341(c) of the Child Protective Services Law provides, in relevant part, as follows:
The burden of proof in the hearing shall be on the appropriate county agency. The department shall assist the county agency as necessary.
The question of whether due process requires a hearing prior to a person's placement on the ChildLine Registry has not been established one way or the other. See R. v. Department of Public Welfare, 535 Pa. 440, 449, 636 A.2d 142, 146 (1994). A grant of a nunc pro tunc hearing moots this due process issue. In her brief, K.G. argued that the Department violated her "constitutional right ... to due process, proper notice, a hearing on the merits and cross-examination." K.G. Brief at 7. --------
The notice shall also inform the recipient of his right, within 45 days after being notified of the status of the report, to appeal an indicated report, and his right to a hearing if the request is denied.23 Pa. C.S. §6338(a).
By using "please," the Department conveyed a request rather than a command. The Department's notice did not explain to K.G. that a written request in 45 days was the condition precedent to exercising her hearing right. Nor did the notice warn her of the consequences of not submitting a written request in 45 days. The Department did not meet the exacting requirements of Section 6338(a) of the Law.
Further, this misleading notice was the last in a series of problems. K.G. was advised by Children and Youth Services not to challenge the report when it was issued in 2005. The Department's 2007 letter informed K.G. that the indicated report of her perpetration of child abuse had been expunged. Then, in 2009, K.G. received what she thought was a request, not a command, about how she might exercise her right to challenge the "oral report" of abuse lodged by her stepdaughter. All these events constitute a breakdown sufficient to allow K.G. to file a nunc pro tunc request for expungement under 23 Pa. C.S. §6341(a)(2).
I would reverse the Secretary and allow K.G. a hearing before she is forced from the nursing profession.
/s/_________
MARY HANNAH LEAVITT, Judge