          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

L. C.,                                    :
                          Petitioner      :
                                          :
                   v.                     :     No. 1282 C.D. 2018
                                          :     SUBMITTED: September 10, 2019
Department of Human Services,             :
                      Respondent          :     CASE SEALED


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                   FILED: October 2, 2019


             L.C. (Mother) petitions for review nunc pro tunc of the Department of
Human Services’ (Department) denial of her request for expunction of the Lehigh
County Children and Youth’s (Agency) indicated report naming her as a perpetrator
of child abuse with the ChildLine and Abuse Registry (ChildLine Registry) under
the Child Protective Services Law (the Law), 23 Pa.C.S. § 6301-6386. Because
Mother’s petition was untimely and she is not eligible for relief nunc pro tunc, the
petition is denied and the matter is quashed.
             Because we dispose of this matter on jurisdictional grounds, only a brief
summary of the facts as found by the Administrative Law Judge (ALJ) and adopted
by the Department is necessary. In May 2017, Mother’s then eight-year-old son
(Child) was caught stealing money from other children at school. Mother instructed
Child to hold out his hands. Mother then held over Child’s hands a spoon heated in
a gas stove burner and told him to “feel the burn.” Child jerked his left hand, which
knocked the spoon out of Mother’s grasp. The heated bowl of the spoon touched
both of Child’s hands resulting in permanent scars visible at the expunction hearing
nearly a year later.
             Agency received a report of suspected child abuse. An investigating
caseworker from Agency interviewed Child who recounted the incident. The
investigating caseworker also spoke with Mother. Agency filed an indicated report
of child abuse with the ChildLine Registry.
             In August 2017, Mother requested expunction. Department denied her
request and Mother appealed. A hearing was held in April 2018 before the ALJ.
Child, the investigating caseworker, and Mother, appearing pro se, testified at the
hearing. Mother acknowledged holding the hot spoon near Child’s hand but denied
heating it in an open flame, stating that the spoon was in a pot containing water and
food which was heated but not boiling and that she had removed the spoon from the
heated water a minute before she confronted Child.
             The ALJ credited the testimony of Child and the investigating
caseworker and did not credit Mother’s testimony. The ALJ recommended denial
of the appeal and the Department adopted his report in its entirety by final order
dated July 23, 2018. The final order instructed Mother that she had thirty days to file
an appeal with this Court from the date of the order. Thirty days from the final order
was August 22, 2018.
             Mother, still proceeding pro se because of difficulty finding a lawyer,
allegedly contacted personnel of this Court whom Mother alleges miscounted thirty
days from the Department’s final order and told her that she had until August 23,
2018 (thirty-one days after the Department’s final order) to file an appeal. Mother
faxed to the Court a letter with a transmission date and time of August 23, 2018 at



                                          2
20:09 (10:09 p.m.) appealing the Department’s order, which was date-stamped by
the Court on August 24, 2018 at 9:37 a.m. The Court’s records indicated that the
pro se letter was received on August 24, 2018.
             On August 24, 2018, the Court sent Mother a letter directing her to
perfect her appeal. Thereafter, Mother’s counsel filed a petition for review nunc pro
tunc. On October 9, 2018, the Court issued an order directing the parties to address
the timeliness issue in their principal briefs on the merits.
             On appeal, Mother advances several arguments as to why there is not
substantial evidence supporting the indicated report. However, as the timeliness of
Mother’s appeal is disputed, the Court will need to address as a threshold issue
whether Mother should be allowed review nunc pro tunc.
             An appeal nunc pro tunc may be allowed where the 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 petitioner, his or her counsel, or a third party. H.D. v. Pa. Dep't of Pub. Welfare,
751 A.2d 1216, 1219 (Pa. Cmwlth. 2000).
             The final order sent to Mother by the Department was dated July 23,
2018 and stated “[t]he appropriate party(ies), where permitted, may take issue with
this Adjudication, and Order, and may appeal to the Commonwealth Court of
Pennsylvania within thirty (30) days from the date of this order.” (Order, Mother’s
Br. at 38). Thus, Mother had all the information necessary to ascertain the correct
date by which she needed to file. Further, Mother’s contention that Court personnel
misled her is an allegation for which there is at this point no evidence of record, let
alone factual findings. However, we need not order a hearing to determine the
credibility of her account because Mother’s appeal was not received on August 23,



                                           3
2019, but the following day. Thus, even if Mother’s account were credited, she did
not comply with the instructions she attributes to Court staff.
              Moreover, even if we were to allow the appeal to go forward, Mother
could not prevail. Child abuse is defined by the Law, in pertinent part, as follows:
“intentionally, knowingly or recklessly doing any of the following . . . (1) [c]ausing
bodily injury through any recent act or failure to act; . . . (5) [c]reating a reasonable
likelihood of bodily injury to a child through any act or failure to act; . . . [or] (8)
[e]ngaging in any of the following recent acts: (i) . . . burning . . . a child in a manner
that endangers a child.” 23 Pa.C.S. § 6303(b.1)(1), (5), and (8)(i). The Law defines
“bodily injury,” as follows: “[i]mpairment of a physical condition or substantial
pain.” 23 Pa.C.S. § 6303(a).
              It should be noted that the Law does not require intent. Further, when
evaluating an allegation of child abuse in the context of corporal punishment by a
parent, the factfinder must make a determination as to whether the force used was
“reasonable force,” 23 Pa.C.S. § 6304(d), and in doing so, must consider whether
the parent was criminally negligent in that he disregarded a substantial and
unjustifiable risk or deviated from a standard of care that a reasonable person would
observe in his situation. Allegheny Cty. Office of Children, Youth & Families v.
Dep't of Human Servs., 202 A.3d 155, 167 (Pa. Cmwlth. 2019) (Allegheny Cty.).
Here, the ALJ found that Mother’s actions met the standard of criminal negligence
in that her actions were a “gross deviation from the standard of care of a reasonable
parent” and that this was “not a matter of disciplinary action by [Mother]; she
intended to injure [Child].” (Adjudication, Mother’s Br. at 47). He also found that,
“[e]ven if [Mother] did not intend to burn both of the [Child’s] hands, her actions
were beyond reckless.” (Adjudication, Mother’s Br. at 46). The evidence satisfies



                                            4
the clear and convincing standard. Allegheny Cty., 202 A.3d at 168. Mother’s
actions in heating a spoon on a gas burner and holding it over Child’s hands were
clearly unreasonable. Mother’s arguments are based on her version of the facts,
which the ALJ discredited. The facts found by the ALJ, which are supported by the
record, fully justify the conclusion of abuse under the Law.
             For the reasons stated, Mother’s petition for review nunc pro tunc is
denied and the matter is quashed.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge




                                         5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

L. C.,                                 :
                       Petitioner      :
                                       :
                 v.                    :   No. 1282 C.D. 2018
                                       :
Department of Human Services,          :
                      Respondent       :   CASE SEALED



                                    ORDER


           AND NOW, this 2nd day of October, 2019, the petition for review nunc
pro tunc is DENIED and the matter is QUASHED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge
