           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

K.G.,                                           :
                      Petitioner                :
                                                :
               v.                               :    CASE SEALED
                                                :    No. 1101 C.D. 2017
                                                :    Argued: April 12, 2018
Department of Human Services,                   :
                 Respondent                     :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY
PRESIDENT JUDGE LEAVITT                                                 FILED: May 18, 2018

               K.G. (Mother) petitions for review of an order of the Secretary of
Human Services denying her request for reconsideration of a decision of the
Department of Human Services’ (Department) Bureau of Hearings and Appeals
(Bureau) to dismiss her appeal of an indicated report of child abuse. The narrow
issue before this Court is whether the Secretary erred or abused his discretion in
denying reconsideration of the Bureau’s dismissal order. Because Mother does not
address the reason for the Bureau’s dismissal, i.e., her failure to respond to a rule to
show cause, we must affirm.
               The county Office of Children, Youth and Families filed an indicated
report of child abuse with the ChildLine and Abuse Registry.1 The report named
Mother as a perpetrator of physical abuse of her four-year-old child, J.L. (Child).



1
 ChildLine is a unit of the Department that operates a statewide toll-free system for receiving and
maintaining reports of suspected child abuse, along with making referrals for investigation. 55 Pa.
Code §3490.4. The ChildLine Registry is maintained in accordance with the Child Protective
Services Law, 23 Pa. C.S. §§6301-6386.
Mother timely requested expunction of the indicated report and a hearing. An
administrative law judge (ALJ) was assigned to hear Mother’s appeal.
             While her appeal was pending, Mother was charged with simple
assault, 18 Pa. C.S. §2701(a)(1), and harassment, 18 Pa. C.S. §2709(a)(1). On
February 14, 2017, Mother entered a plea of guilty to the harassment charge; the
assault charge was nolle prossed. Based on Mother’s guilty plea, the Office of
Children, Youth and Families notified the Department that Mother’s ChildLine
report should be changed from indicated to founded. On April 17, 2017, the ALJ
issued a rule to show cause to the Office of Children, Youth and Families to provide
documentation, including relevant court orders, to support the founded report. On
April 26, 2017, the Office of Children, Youth and Families provided the documents
from Mother’s criminal proceeding, including the information charging her with
simple assault and harassment and a copy of the trial court’s order sentencing Mother
to pay a $300 fine for the harassment offense. Mother asserts that she never received
her copy of these documents and, thus, believed they were still outstanding.
             On May 4, 2017, the ALJ issued a rule to show cause to Mother to
explain

             why the above-captioned appeal should go to a hearing rather
             than be dismissed as the status of the above-captioned ChildLine
             report was changed from indicated to founded. [Section 6341 of
             the Child Protective Services Law,] 23 Pa. C.S.A. [sic] § 6341
             affords appellants a right to timely appeal indicated reports but
             the statute does not afford such a right with respect to founded
             reports.

Certified Record (C.R.), Item No. 7 (emphasis added). The rule directed Mother to
respond to the rule within 30 days with “a written response that specifically
addresses the above concern including a concise explanation detailing the basis for

                                         2
the party’s argument that the appeal should not be dismissed.” Id. The rule
specifically stated that Mother’s “failure to timely respond in writing will result in
the dismissal of the above-captioned appeal.” Id. Mother did not respond and, on
June 14, 2017, the Bureau dismissed her appeal.2 Mother did not petition for this
Court’s review of the Bureau’s dismissal order.
               On June 27, 2017, Mother filed an application for reconsideration of
the Bureau’s June 14, 2017, order with the Secretary of Human Services. Mother’s
sole argument for reconsideration was that she was entitled to an expunction hearing
because the Office of Children, Youth and Families improperly changed her
indicated report to founded based solely upon her conviction for harassment. On
July 11, 2017, the Secretary issued an order denying reconsideration “for the reasons
stated by the Bureau of Hearings and Appeals in its Final Administrative Action
Order.” C.R. Item No. 10. On August 10, 2017, Mother petitioned this Court to
review the Secretary’s order.
               On appeal, Mother argues that the conduct for which she was convicted
did not establish the level of bodily injury necessary to satisfy the definition of child
abuse under the Child Protective Services Law, 23 Pa. C.S. §§6301-6386. Thus, her
conviction could not serve as a legal basis for automatically changing the child abuse


2
 The Bureau’s order stated:
        AND NOW, having received documentary evidence demonstrating that on
        February 14, 2017 … [Mother] was sentenced after pleading guilty to Harassment
        based on the same factual circumstances referenced in the above-captioned founded
        report, and after [Mother] having been afforded an opportunity to demonstrate that
        said conviction was not related to the above-captioned allegation of child abuse or
        that the outcome should not result in dismissal of this matter on the basis of
        collateral estoppel, the above-captioned appeal is hereby DISMISSED in
        accordance with 23 Pa. C.S.A. [sic] § 6303 as the report is founded.
C.R. Item No. 8.
                                                3
report from indicated to founded. Mother asks this Court to vacate the Secretary’s
order denying reconsideration and remand for a hearing.
               The Department responds that Mother’s argument on the merits of the
decision of the Office of Children, Youth and Families is beside the point. Mother
did not respond to the rule to show cause or timely petition for review of the Bureau’s
dismissal of her appeal. The only issue properly before this Court is whether the
Secretary erred or abused his discretion in denying Mother’s request for
reconsideration, and Mother does not address the merits of the Secretary’s decision.
               An agency’s decision to grant or deny a request for reconsideration is a
matter of discretion and will be reversed only where that discretion is abused. Keith
v. Department of Public Welfare, 551 A.2d 333, 336 (Pa. Cmwlth. 1988). An abuse
of discretion will only be found where the evidence shows there was fraud, bad faith,
capricious action or abuse of power.                 J.B. Steven, Inc. v. Department of
Transportation, 627 A.2d 278, 280 (Pa. Cmwlth. 1993) (citing Keith, 551 A.2d at
336). Reversal of a denial of reconsideration requires a remand because we do not
decide the merits.
               In her brief, Mother argues that pleading guilty to the summary offense
of harassment did not authorize the filing of a founded report in the ChildLine
Registry. The Bureau dismissed her appeal of the indicated report because she did
not reply to the rule to show cause. Mother did not petition for review of the
Bureau’s dismissal order.3 The only question is whether the Secretary erred or


3
 As this Court noted in Keith, a party aggrieved by a Bureau order has four options: (1) do nothing;
(2) appeal that order to this Court within 30 days; (3) seek reconsideration from the Secretary
within 15 days; or (4) seek reconsideration from the Secretary within 15 days and appeal the final
order to this Court within 30 days. Keith, 551 A.2d at 335. Those seeking review of the merits of
a Bureau adjudication must file a petition for review with this Court. Id. at 337 n.8. Mother did
not do so, making an appeal of the merits of the June 14, 2017, order untimely.
                                                 4
abused his discretion in denying reconsideration of the Bureau’s dismissal on
grounds that Mother did not respond to the rule to show cause. Neither Mother’s
petition for review nor her brief address this question. Accordingly, Mother’s
challenge to the validity of the Secretary’s decision has been waived. See City of
Philadelphia v. Workers’ Compensation Appeal Board (Ford-Tilghman), 996 A.2d
569, 572 (Pa. Cmwlth. 2010) (noting that issues not raised in a party’s petition for
review and brief are deemed waived).
             Notably, the Department also addresses the question of whether
Mother’s guilty plea established the basis for a founded report. The harassment
charge was for “Harrassment/Strike, Shove, Kick, Etc.” C.R. Item No. 6, at 6. The
criminal information further stated:

             The Actor did, with intent to harass, annoy or alarm another
             person, namely, [Child] (DOB 1/18/12), strike, shove, kick
             and/or otherwise subject[] said person to physical contact or
             attempted or threatened to do the same by striking said victim
             multiple times.

Id. The Department observes that excessive spanking constitutes child abuse. See,
e.g., J.S. v. Department of Public Welfare, 565 A.2d 862, 864 (Pa. Cmwlth. 1989).
According to the Department, the actions that supported the conviction for the
summary offense of harassment constituted child abuse. We will not address the
Department’s position because it is beyond the scope of the instant appeal.
             As this Court has held, the Child Protective Services Law does not give
perpetrators named in a founded report the right to appeal that report to the Bureau.
D.M. v. Department of Public Welfare, 122 A.3d 1151, 1155 n.3 (Pa. Cmwlth. 2015).
However, the perpetrator has a remedy under the Administrative Agency Law, 2 Pa.
C.S. §§501-508, 701-704, to a determination of “whether or not the underlying


                                         5
adjudication supports a founded report that the named perpetrator is responsible for
the abuse.” J.G. v. Department of Public Welfare, 795 A.2d 1089, 1093 (Pa.
Cmwlth. 2002). The indicated report naming Mother as a perpetrator has been
dismissed, but this does not foreclose Mother’s ability to challenge the founded
report under the aegis of the Administrative Agency Law.4 That is the appropriate
vehicle for determining whether the adjudication of the summary offense of
harassment by Mother constituted an adjudication of child abuse by Mother. That
question, which requires the development of a record, is not before us in this appeal.
              For all of the reasons discussed above, we affirm the Secretary’s order
denying reconsideration.

                                        _____________________________________
                                        MARY HANNAH LEAVITT, President Judge




4
 The General Rules of Administrative Practice and Procedure, Title 1 Pennsylvania Code, Part II,
Chapters 31-35, would apply to an administrative hearing on a founded report under the
Administrative Agency Law.
                                               6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


K.G.,                                 :
                  Petitioner          :
                                      :
            v.                        :   CASE SEALED
                                      :   No. 1101 C.D. 2017
Department of Human Services,         :
                 Respondent           :


                                 ORDER

            AND NOW, this 18th day of May, 2018, the order of the Secretary of
Human Services in the above-captioned matter dated July 11, 2017, is AFFIRMED.

                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge
