          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

M.O.,                                    :
                   Petitioner            :
                                         :   No. 1347 C.D. 2018
              v.                         :   SUBMITTED: June 3, 2019
                                         :
Department of Human Services,            :
                 Respondent              :   CASE SEALED


BEFORE:     HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                     FILED: June 27, 2019

            M.O. petitions for review of the order of the Department of Human
Services, Bureau of Hearings and Appeals (DHS), entered in September 2018 on the
recommendation of an Administrative Law Judge (the ALJ), dismissing M.O.’s
appeal of an indicated (and later “founded”) report of child abuse. We reverse and
remand for an administrative hearing on the merits.
            The facts can be summarized as follows. In June 2017, M.O. was a
staff member at a school for juvenile offenders (the School). J.B. was a sixteen-
year-old student at the School. On June 30, 2017, an incident occurred at the School
during which M.O. allegedly pushed J.B. against a wall resulting in a laceration to
J.B.’s head. In August 2017, the Office of Children, Youth and Families (OCYF)
completed a Child Protective Services Investigation Report, which determined that
M.O. caused bodily injury to J.B. In October 2017, OCYF mailed M.O. a notice
advising him that he was listed on the ChildLine Registry as a perpetrator in an
indicated report of child abuse.
             Parallel to the child abuse report proceeding and also arising from the
June 2017 incident at the School, M.O. was criminally charged in October 2017 with
simple assault, a misdemeanor of the second degree, and harassment, a summary
offense. M.O. appealed OCYF’s indicated report and was granted a stay until
disposition of the pending criminal charges. Shortly before the scheduled trial on
the simple assault and harassment charges, the prosecutor offered to allow M.O. to
plead guilty solely to harassment. M.O. entered a negotiated plea in April 2018
without the prosecution or M.O. entering any factual basis for the plea into the
record. In June 2018, OCYF converted M.O.’s indicated report of child abuse to
“founded” based on the guilty plea. Counsel for OCYF filed a motion to dismiss a
short time later, contending that the appeal should not proceed to an administrative
hearing because M.O. had pled guilty. M.O. filed a reply to the motion to dismiss.
On September 18, 2018, DHS dismissed M.O.’s appeal without a hearing.
             As he did before DHS, M.O. argues in this appeal that without a
hearing, the guilty plea to the summary charge of harassment was not substantial
evidence that he was a perpetrator of child abuse under the Child Protective Services
Law (Law), 23 Pa.C.S. §§ 6301-6386. M.O. argues that given the circumstances of
his guilty plea, he was entitled to a hearing with a full and fair opportunity to create
a record and defend himself before being listed as a perpetrator of child abuse. DHS
argues that the guilty plea was sufficient because the charge involved the same
factual circumstances as the child abuse investigation and that M.O. is attempting to
collaterally attack his criminal conviction.




                                           2
             Under Section 6303 of the Law, 23 Pa.C.S. § 6303 (relating to
definitions), a “perpetrator” is “[a] person who has committed child abuse as defined
in this section.” Id. “Child abuse” means “intentionally, knowingly or recklessly
doing” any act enumerated at 23 Pa.C.S. § 6303(b.1), including “[c]ausing bodily
injury to a child through any recent act.” 23 Pa.C.S. § 6303(b.1)(1) (emphasis
added); 55 Pa. Code § 3490.4 (relating to definitions).      An “indicated report” of
child abuse is made “if an investigation by the department or county agency
determines that substantial evidence of the alleged abuse by a perpetrator exists.”
23 Pa.C.S. § 6303(a). Under certain circumstances, an indicated report may be
converted into a “founded report.” One such circumstance is a “judicial adjudication
based on a finding that [the] 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.” Id. (emphasis added). Such judicial adjudication may include a
guilty plea. Id.
             This Court has held that, pursuant to this statutory paradigm, if it is
demonstrated that the facts established by the judicial adjudication and the indicated
report are identical, the report is properly designated as a founded report. C.F., IV v.
Dep’t of Human Servs., 174 A.3d 683, 688 (Pa. Cmwlth. 2017); D.M. v. Dep’t of
Pub. Welfare, 122 A.3d 1151, 1155 (Pa. Cmwlth. 2015). This is so because the
judicial adjudication, in and of itself, normally encompasses “not only a judicial
finding that the child has been abused, but that the perpetrator has been found guilty
of abuse. . . .” J.G. v. Dep’t of Pub. Welfare, 795 A.2d 1089, 1093 (Pa. Cmwlth.
2002). Consequently, “[w]here a founded report is based upon such an adjudication,
an appeal would, in most instances, constitute a collateral attack of the adjudication
itself, which is not allowed.” Id.



                                           3
             Nonetheless, the act of converting an indicated report to founded status
constitutes an agency action, thereby triggering due process protections. A founded
report constitutes an adjudication under Section 504 of the Administrative Agency
Law, 2 Pa.C.S. § 504.         Section 504 provides that “[n]o adjudication of a
Commonwealth agency shall be valid as to any party unless he shall have been
afforded reasonable notice of a hearing and an opportunity to be heard.” Id. Thus,
a named perpetrator may appeal a founded report for the limited purpose of
determining whether or not the underlying adjudication supports the founded report.
J.G., 795 A.2d at 1093. “[A]n administrative adjudication of suspected child abuse
is of the most serious nature. Therefore, this society, which was founded upon, inter
alia, its citizens’ ‘inherent and indefeasible rights . . . of acquiring, possessing and
protecting property and reputation,’ cannot blithely surrender those rights. . . .” A.Y.
v. Dep’t of Pub. Welfare, 641 A.2d 1148, 1152 (Pa. 1994) (quoting Pa. Const. art. I,
§ 1).
             Even if a person is adjudicated guilty of an offense against a child, that
person must have been adjudicated guilty for the same incident described in the
indicated report and for an act that rendered him a “perpetrator” under the Law.
C.F., IV, 174 A.3d at 688; see also G.M. v. Dep’t of Pub. Welfare, 957 A.2d 377,
380–81 (Pa. Cmwlth. 2008); R.F. v. Dep’t of Pub. Welfare, 845 A.2d 214, 218 (Pa.
Cmwlth. 2004). In the instant case, although M.O. was charged with both simple
assault and harassment, M.O. pled guilty only to the summary harassment charge
and the misdemeanor simple assault charge was dismissed. Harassment is defined
under Section 2709 of the Crimes Code, 18 Pa.C.S. § 2709, in relevant part as
follows:




                                           4
             (a) Offense defined.--A person commits the crime of
             harassment when, with intent to harass, annoy or alarm
             another, the person:

                   (1) strikes, shoves, kicks or otherwise subjects the
                   other person to physical contact, or attempts or
                   threatens to do the same;

18 Pa.C.S. § 2709(a)(1). M.O. argues that the elements of harassment do not include
serious injury (or any injury at all) and do not include the intent to harm, and thus
do not constitute substantial evidence of child abuse under the Law. We agree.
             The instant case is readily distinguishable from a case relied upon by
DHS, D.M. In D.M., a petitioner was charged with unlawful contact with a minor,
harassment, open lewdness, and corruption of minors based upon the petitioner’s
conduct toward a child victim, but pled guilty only to harassment. 122 A.3d at 1154.
Similar to M.O., the petitioner in D.M. argued that his guilty plea to harassment did
not establish that he was a perpetrator within the meaning of the Law. Id. However,
unlike this case, the trial court in D.M. filed a transcript of the petitioner’s plea
colloquy which established the underlying factual basis for the conviction. Id. This
Court held that for a report to be given the status of “founded,” there must be a
judicial adjudication and the judicial adjudication must involve “the same factual
circumstances involved in the allegation of child abuse.” Id. at 1155 (quoting 23
Pa.C.S. § 6303). “Once DHS has demonstrated that the factual circumstances of the
judicial adjudication and the report are the same, the report becomes a ‘founded’
report.” Id. (emphasis added).     In short, the facts adduced in the process of
adjudicating the underlying criminal charge of harassment in D.M., i.e., the guilty
plea colloquy, factually corroborated the child abuse report with respect to “who,
what, where, and when.” Id.; compare G.M., 957 A.2d at 380 (finding child sexual
abuse report was founded based upon factual circumstances admitted during plea of


                                         5
nolo contendere to corruption of minors) and R.F., 845 A.2d at 218 (finding that
child sexual abuse could not be inferred from guilty plea for endangering the welfare
of a child when facts adduced during colloquy did not support such a finding). By
contrast, in this case, M.O.’s guilty plea to harassment is memorialized in the record
solely as a notation on the trial court’s docket, with the charge of simple assault
dismissed.
             More similar is the case of C.F., IV, a case where a minor was
adjudicated delinquent but the record was insufficient to establish whether he was
fourteen years old or older when an offense for which he was adjudicated delinquent
was committed (and thus could be considered a “perpetrator” under the Law). In
C.F., IV, “[b]ecause the numerous sexual incidents outlined in the [juvenile affidavit
of probable cause were] not coupled or conjoined in any manner with the counts in
the [juvenile petition], it [was] unclear what conduct formed the basis for the
individual counts.” 174 A.3d at 689. In that case, we “simply [did] not know how
the counts in the [p]etition match up with the particular allegations of misconduct,
as well as [the p]etitioner’s age at the time of each incident of misconduct when
viewed in connection with the counts in the [p]etition.” Id. The minor admitted two
offenses in a juvenile admission form, “which is akin to a written guilty plea
colloquy in a criminal case” and an addendum, but provided no details to “shed light
on the factual basis that comprised his adjudication of delinquency” for indecent
assault. Id. at 690. We stated as follows:

             Quite possibly, one could hypothesize . . . that it would
             make sense, or be somewhat logical, for [the p]etitioner to
             admit guilt [for a recent offense when the petitioner was
             fourteen years old]. This Court, however, declines to draw
             an inference in a cloud of fortuity and happenstance where
             nothing more than a gut feeling as to what is theoretically



                                          6
             plausible—but not actually proven—serves as our guide
             and foundation for a decision.

Id. As our Supreme Court has said, “[t]o be of independent probative value, [an]
admission of guilt should be complete in itself if it is to establish the facts for which
it is offered. It is not to be implemented by suspicion or conjecture or by piling
inference upon inference.” Commonwealth v. Turner, 133 A.2d 187, 189 (Pa. 1957)
(quoted in C.F., IV, 174 A.3d at 691).
              In this case, the guilty plea for harassment, standing alone, does not
permit the supposition that the factual basis of the plea for harassment is the same as
what was in the police report, charging documents, or child abuse report. The
elements of the summary offense to which M.O. pled guilty do not include all the
necessary elements of child abuse, and there were no factual admissions attendant
to the plea proceedings to establish the elements of child abuse. Therefore, the
requirements for a founded report were not met.
             Accordingly, we reverse the adjudication of DHS and remand for an
evidentiary hearing.




                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge




                                           7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

M.O.,                                   :
                   Petitioner           :
                                        :   No. 1347 C.D. 2018
              v.                        :
                                        :
Department of Human Services,           :
                 Respondent             :   CASE SEALED



                                   ORDER



            AND NOW, this 27th day of June, 2019, the above-captioned
adjudication is hereby REVERSED and the case is REMANDED for an evidentiary
hearing in accordance with the foregoing opinion. Jurisdiction relinquished.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
