OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY
Berks County Children and Youth Services (CYS) petitions for review from a decision of the Department of Public Welfare (DPW) which upheld the March 2, 2009 order of the Bureau of Hearings and Appeals (Bureau) expunging R.M.'s name from the Child Line Registry, pursuant to the Child Protective Services Law (Law), 23 Pa. C.S. §§6301-6386. We affirm.
On July 6, 1996, CYS investigated a report of suspected sexual abuse committed by R.M. on L.K., who was twelve years old at the time of the incident. On that date, L.K. was visiting her father, R.M. According to CYS, while L.K. was at R.M.'s residence, R.M. exposed himself to L.K. and touched himself. In addition, R.M. asked L.K. to touch him. L.K. called her mother (Mother) and asked her to come pick her up. Mother contacted the police and then drove to R.M.'s residence.
As a result of the incident on July 6, 1996, R.M. was charged with indecent exposure and endangering the welfare of a child. CYS further alleges that throughout its investigation, L.K. made consistent and credible statements to the caseworker and a collateral source regarding the actions of R.M. on that date. After concluding the investigation, CYS determined that there was substantial competent evidence to file an indicated report listing R.M. as the perpetrator. CYS then alleges that subsequent thereto, the criminal charges were reduced and R.M. pled guilty to harassment.
As a result of the incident, Mother filed a petition for protection from abuse (PFA) on July 8, 1996. A temporary PFA was entered and at the hearing on July 16, 1996, a final order was entered to prevent R.M. from having any contact with Mother, L.K. or L.K's siblings for a period of one year.
On August 14, 1996, ChildLine allegedly mailed notice of the indicated report to R.M. Ten years later, CYS destroyed L.K.'s file when L.K. turned 23 on November 13, 2006. On February 16, 2007, more than ten years after the 45 day appeal period had lapsed and 95 days after L.K. turned 23, R.M. appealed the indicated status. The appeal was dismissed as untimely by the DPW on March 21, 2008. R.M. filed a petition for reconsideration on April 1, 2008.
On August 14, 2008, reconsideration was granted and the case was remanded for a hearing. After the hearing, the Administrative Law Judge (ALJ) issued an order on October 8, 2008, granting R.M. a hearing nunc pro tunc. On January 12, 2009, a hearing was held before the ALJ and he made the following relevant findings of fact:
ALJ Adjudication, Findings of Fact, 1-24 at 2-4. The ALJ determined that CYS failed to prove that the indicated report was accurate. The record reflected discrepancies, in that there were two CY-48 forms and the caseworker did not know which one was being maintained by the DPW. Further, both L.K. and R.M. testified and denied that the abuse actually occurred.
On March 2, 2009, the Bureau adopted the recommendation of the ALJ in its entirety, sustained the appeal and ordered R.M's record be expunged. On March 23, 2009, CYS filed a petition for reconsideration. On June 30, 2009, the DPW upheld the Bureau's order of March 2, 2009, expunging R.M.'s record for reasons stated by the Bureau. The DPW further found that CYS's request for reconsideration was filed a week late. CYS now petitions this court for review.
CYS contends that the DPW improperly allowed the expungement hearing to proceed when R.M. failed to file a timely appeal. CYS further contends that the DPW erred in failing to address the issue of whether R.M.'s status should be changed from indicated to founded based on R.M.'s criminal conviction arising from the same factual circumstances as the agency's Child Protective Services (CPS) investigation.
Section 6341 of the Law, entitled Amendment or expunction of information, states in pertinent part as follows:
23 Pa. C.S. §6341.
R.M. contends that the delay in filing the request for expungement was caused by the CYS's error in not properly informing him of his appeal rights and that he properly established entitlement to an appeal nunc pro tunc because of a breakdown in the administrative process, as demonstrated in the ALJ's order of October 8, 2008.
The ALJ's order of October 8, 2008, stated in pertinent part as follows:
ALJ Order, October 8, 2008, at 1-2. R.M. can demand a hearing under Section 6341(a)(2) only if he can demonstrate the basis for a nunc pro tunc appeal. An appeal nunc pro tunc will be allowed only where the petitioner's delay was caused by extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent circumstances related to the petitioner, his counsel or a third party.
In the present controversy, the ALJ determined that R.M. may not have received notice and that even if he did, such notice failed to advise R.M. of his absolute right to a hearing. The CYS letter notifying R.M. of the indicated report, stated that "[i]f this request is denied, perpetrators may have a right to a hearing." This equivocal notice did not satisfy the requirements of 23 Pa. C.S. §6338(a) in
Next, the CYS contends that the DPW erred in failing to address the issue of whether R.M.'s status should be changed from indicated to founded based on R.M.'s criminal conviction arising from the same factual circumstances as the CYS's CPS investigation, constituting reversible error.
The county agency bears the burden of proving in an expungement hearing that the actions of the perpetrator constitute child abuse within the meaning of the statute. The county's evidence must outweigh any contrary evidence.
An "indicated report" of child abuse is defined as "[a] child abuse report made pursuant to this chapter if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on any of the following: (1) Available medical evidence. (2) The child protective service investigation. (3) An admission of the acts of abuse by the perpetrator." 23 Pa. C.S. §6303.
A "founded report" of child abuse is defined as "[a] child abuse report made pursuant to this chapter if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused, including the entry of a plea of guilty or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse." 23 Pa. C.S. §6303.
CYS argues that as R.M. pled guilty to harassment charges that arose out of the same factual circumstances as the charges of indecent exposure and endangering the welfare of a child, the indicated status should be amended to founded.
A review of the record reveals that on May 4, 2007, the Court of Common Pleas of Berks County ordered that all records be destroyed and expunged regarding R.M's arrest and charges relating to the incident on July 6, 1996, due to R.M.'s acquittal of all criminal charges. (Record at A-2). There was no judicial adjudication relating to child abuse in the record. The DPW found R.M. and L.K. credible in their testimony that the alleged abuse never occurred. The DPW did not err.
Accordingly, we must affirm the decision of the DPW.
AND NOW, this 23rd day of July, 2010, the order of the Department of Public Welfare in the above-captioned matter is affirmed.