           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.F.,                                           :
                      Petitioner                :   CASE SEALED
                                                :
               v.                               :   No. 462 C.D. 2018
                                                :   Argued: December 13, 2018
Department of Human Services,                   :
                 Respondent                     :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                            FILED: March 7, 2019

               J.F. (Mother) petitions for review of a final order of the Department of
Human Services (Department), Bureau of Hearings and Appeals (Bureau), that
dismissed her request for a hearing on two founded reports naming her as a
perpetrator of abuse of her twin daughters.1 The County Children & Youth Social
Service Agency (CYS) initially issued an indicated report. However, after Mother
entered an accelerated rehabilitative disposition (ARD) program to resolve a
criminal charge of child endangerment, CYS amended the reports to founded. The
Department dismissed Mother’s request for a hearing for the stated reason she had
no right to an administrative hearing on a founded report. In this case of first
impression, Mother argues that because the ARD proceeding did not adjudicate any
of the facts that were recited in the founded reports, she is entitled to an evidentiary
hearing. We reverse and remand.



1
 Two founded reports were filed, one for each child, but both reports arose from a single incident
of “serious physical neglect.” Stated otherwise, the two reports involve a single incident.
                                        Background

              On July 6, 2017, CYS filed indicated reports that named Mother as a
perpetrator of abuse of her twin daughters, C.F. and Chl.F., then 15 months old. The
two reports were identical, except for the name of the child. The reports stated that
on May 7, 2017, at 2:00 a.m., the police found Mother semi-conscious and
intoxicated on a public street and transported her to a hospital for suspected alcohol
poisoning. At 6:30 a.m., the hospital contacted police because Mother informed the
staff that her two children were home alone. The police went to Mother’s residence,
where they met W.F. (Father), who worked the late shift. He had been called to the
hospital but headed home when he learned that the children were alone. Father and
the police found the twins asleep in their cribs. The report stated that Mother
admitted that she had left the twins home alone to go to a bar.
              The police charged Mother with the crime of “endangering the welfare
of children.” 18 Pa. C.S. §4304(a)(1).2 The criminal complaint stated as follows:

              [Mother] did on or about, May 7th 2017, in the County of [ ],
              while supervising the welfare of a child under 18 years of age
              commit[] an offense [by] knowingly endanger[ing] the welfare
              of the child by violating a duty of care, protection or support, that
              is to say [Mother] did leave her two (2), 15[-]month[-]old
              children alone in their respective cribs, with no other adult
              supervision in the home and left the residence during the hours
              of 0100 through 0800 hours. This is in violation of Section



2
 The Crimes Code defines “endangering the welfare of children” as follows:
       (1) A parent, guardian or other person supervising the welfare of a child under 18
       years of age, or a person that employs or supervises such a person, commits an
       offense if he knowingly endangers the welfare of the child by violating a duty of
       care, protection or support.
18 Pa. C.S. §4304(a)(1).


                                               2
             4304(a)(1) of the Pennsylvania Crimes Code, as amended, 18
             Pa.C.S. [§]4304(a)(1).

Criminal Complaint at 2; Reproduced Record at 4a (R.R. ___). The affidavit of
probable cause filed in support of the criminal complaint stated, in relevant part, as
follows:

             2. On 7 May 2017 at 0643 hours, [police officers were]
             dispatched to [Mother’s residence] for a check on the welfare
             complaint. The complainant was the Charge Nurse at the [ ]
             Emergency Room. The request made at the time was for the
             [police] to check on (2) two children who were left alone at the
             residence. The complainant reported the person making the
             request was the children’s mother who was in the Emergency
             Room and was intoxicated.
             3. [An officer] responded to the residence and attempted to
             make contact with the occupants…. He had no other information
             as to who the children were or how old they were. There was no
             response from the residence after repeated knocking on the door.
             [The officer] contacted the Charge Nurse for more information
             and was advised [Father] had just arrived at the [h]ospital,
             learned that the children were alone, and [was on his way to the
             residence]. [The officer] stayed at [the residence] awaiting
             [Father’s] arrival.
             4. At approximately 0745 hours, [Father] arrived at his
             residence and entered the residence with Officer [ ]. No persons
             were found in the home except for [C.F. and Chl.F.]. [C.F. and
             Chl.F.] are 15[-]month[-]old twin females. They were found
             asleep in their respective cribs on the 2nd floor of the residence.
             5. While waiting for the arrival of [Father at the residence],
             [the officer] was contacted by the [ ] Borough Police and
             informed that [Mother] had been transported to the [hospital] at
             about 0230 hours on May 7th 2017 due to being extremely
             intoxicated.
             6. On 9 May 2017, [Mother] was interviewed [by the police].
             [Mother] admitted to leaving the residence sometime after 0001
             (sic) hours on May 7th 2017 and going to [a bar] and consuming
             alcohol to the point that she lost consciousness.
                                          3
Affidavit of Probable Cause, ¶¶2-6; R.R. 6a.
             On August 3, 2017, Mother appealed the indicated reports and
requested a hearing. The Department assigned her appeal to an Administrative Law
Judge (ALJ) to conduct a hearing. Prior to the hearing, CYS amended the reports,
changing their status from indicated to founded. This was based on Mother’s
acceptance into an ARD program on the criminal charge of “child endangerment.”
CYS filed a motion to dismiss Mother’s appeals, asserting that because Mother was
named as a perpetrator in a founded report, she had no right to a hearing.
             Mother filed a response, asserting that the facts recited in the affidavit
of probable cause for the criminal charges did not constitute serious physical neglect
under the Child Protective Services Law. See 23 Pa. C.S. §6303(a). She further
asserted that acceptance into the ARD program to resolve a criminal charge of child
endangerment did not constitute an adjudication of the facts set forth in the criminal
complaint or in the founded reports.
             The ALJ issued a recommended report that Mother’s request for a
hearing be dismissed. The ALJ noted that the Child Protective Services Law, inter
alia, defines a “founded report” as one issued where “[t]here has been an acceptance
into an accelerated rehabilitative disposition program and the reason for the
acceptance involves the same factual circumstances involved in the allegation of
child abuse.” 23 Pa. C.S. §6303(a). The ALJ concluded that the reason for Mother’s
acceptance into ARD on the child endangerment charge involved the same factual
circumstances covered in the founded reports. Accordingly, CYS appropriately
revised the indicated reports to founded reports. Because the Child Protective
Services Law does not authorize an administrative hearing on a founded report, the
ALJ granted CYS’s motion to dismiss Mother’s hearing request.


                                          4
               The Bureau adopted the ALJ’s recommended adjudication in its
entirety.
                                            Appeal

               Mother petitioned for this Court’s review, raising one issue.3 She
asserts that the Bureau erred in dismissing her appeal without an evidentiary hearing.
Her acceptance into ARD did not adjudicate the factual allegations in the criminal
complaint or in the affidavit of probable cause. There has never been a hearing in
any tribunal to adjudicate those facts. Stated otherwise, the factual claims in the
founded reports to support the conclusion that Mother committed “serious physical
neglect”4 have never been adjudicated. Further, a defendant may be innocent of the
criminal charge but choose ARD simply to avoid the risk of an unfair verdict.
Mother contends that she is entitled to an evidentiary hearing to provide her version
of events and to explain her reasons for entering into ARD.
               The Department responds that the affidavit of probable cause contains
the same statements as those recited in the founded reports.                   Thus, Mother’s
acceptance into ARD constitutes a founded report of child neglect, and the Child


3
  Our review determines whether constitutional rights have been violated, an error of law was
committed, or necessary findings of fact were unsupported by substantial evidence. Bird v.
Department of Public Welfare, 731 A.2d 660, 663 (Pa. Cmwlth. 1999). Where the issue is one of
law, our standard of review is de novo and our scope of review is plenary. St. Elizabeth’s Child
Care Center v. Department of Public Welfare, 963 A.2d 1274, 1276 (Pa. 2009).
4
  “Serious physical neglect” is defined, in relevant part, as:
       Any of the following when committed by a perpetrator that endangers a child’s life
       or health, threatens a child’s well-being, causes bodily injury or impairs a child’s
       health, development or functioning:
               (1) A repeated, prolonged or egregious failure to supervise a child
               in a manner that is appropriate considering the child’s
               developmental age and abilities.
23 Pa. C.S. §6303(a) (emphasis added).
                                                5
Protective Services Law does not authorize any perpetrator a hearing on a founded
report.
                             The Child Protective Services Law

               There are two different types of child abuse reports that are maintained
by the ChildLine Registry:5 indicated and founded. The Child Protective Services
Law defines an indicated report as follows:

               (1) Subject to paragraphs (2) and (3), a report of child abuse
               made pursuant to this chapter if an investigation by the
               department or county agency determines that substantial
               evidence of the alleged abuse by a perpetrator exists based on
               any of the following:
                      (i)      Available medical evidence.
                      (ii)     The child protective service investigation.
                      (iii) An admission of the acts of abuse by the
                      perpetrator.
               (2) A report may be indicated under paragraph (1)(i) or (ii) for
               any child who is the victim of child abuse, regardless of the
               number of alleged perpetrators.
               (3) A report may be indicated under paragraph (1)(i) or (ii)
               listing the perpetrator as “unknown” if substantial evidence of
               abuse by a perpetrator exists, but the department or county
               agency is unable to identify the specific perpetrator.

23 Pa. C.S. §6303(a). By contrast, a founded report of child abuse is issued, inter
alia, in the following circumstances:




5
  ChildLine, a unit within the Department, operates a statewide system for receiving indicated and
actual reports of child abuse; refers the reports for investigation; and maintains the reports for
reference. 55 Pa. Code §3490.4 (definition of “ChildLine”). The ChildLine Registry is maintained
in accordance with the Child Protective Services Law, 23 Pa. C.S. §§6301–6386.
                                                6
            A child abuse report involving a perpetrator that is made pursuant
            to this chapter, if any of the following applies:
            (1) There has been a judicial adjudication based on a finding
            that a 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. The judicial
            adjudication may include any of the following:
                   (i) The entry of a plea of guilty or nolo
                   contendere.
                   (ii) A finding of guilt to a criminal charge.
                   (iii) A finding of dependency under 42 Pa. C.S.
                   §6341 (relating to adjudication) if the court has
                   entered a finding that a child who is the subject of
                   the report has been abused.
                   (iv) A finding of delinquency under 42 Pa. C.S.
                   §6341 if the court has entered a finding that the
                   child who is the subject of the report has been
                   abused by the child who was found to be delinquent.
            (2) There has been an acceptance into an accelerated
            rehabilitative disposition program and the reason for the
            acceptance involves the same factual circumstances involved in
            the allegation of child abuse.

23 Pa. C.S. §6303(a) (emphasis added).
            The Child Protective Services Law allows a perpetrator of child abuse
named in an indicated report to request the expunction of that report from the
ChildLine Registry. Section 6341states, in relevant part, as follows:

            (a) General rule. – Notwithstanding section 6338.1 (relating
            to expunction of information of perpetrator who was under 18
            years of age when child abuse was committed):
                                             ***
                   (2) Any person named as a perpetrator, and any
                   school employee named, in an indicated report of

                                         7
                   child abuse may, within 90 days of being notified of
                   the status of the report, request an administrative
                   review by, or appeal and request a hearing before,
                   the secretary to amend or expunge an indicated
                   report on the grounds that it is inaccurate or it is
                   being maintained in a manner inconsistent with this
                   chapter. The request shall be in writing in a manner
                   prescribed by the department.
                                              ***
            (c) Review of refusal of request.--Subject to subsection (c.1), if
            the secretary refuses a request under subsection (a)(1) or a
            request for administrative review under subsection (a)(2), or does
            not act within the prescribed time, the perpetrator or school
            employee shall have the right to appeal and request a hearing
            before the secretary to amend or expunge an indicated report on
            the grounds that it is inaccurate or it is being maintained in a
            manner inconsistent with this chapter….
            (c.1) Founded reports.--A person named as a perpetrator in a
            founded report of child abuse must provide to the department a
            court order indicating that the underlying adjudication that
            formed the basis of the founded report has been reversed or
            vacated.
            (c.2) Hearing.--A person making an appeal under subsection
            (a)(2) or (c) shall have the right to a timely hearing to determine
            the merits of the appeal….

23 Pa. C.S. §6341 (emphasis added). The hearing guaranteed by Section 6341(c.2)
of the Child Protective Services Law is limited to indicated reports and does not
apply to founded reports. The Child Protective Services Law is silent with respect
to hearings on founded reports.
                                  Relevant Precedent

            In J.G. v. Department of Public Welfare, 795 A.2d 1089, 1090 (Pa.
Cmwlth. 2002), the CYS issued an indicated report of child abuse against both
parents because their two-month-old son suffered from “a condition commonly

                                          8
known as ‘Shaken Baby Syndrome.’” J.G. (the mother) appealed. In a civil
proceeding involving both parents, the child was found to be the victim of child
abuse and adjudicated dependent by a trial court.                   Based on the trial court’s
adjudication, CYS amended the indicated report to founded. The Department
dismissed the mother’s appeal because the Child Protective Services Law does not
provide for a hearing on founded reports. The mother petitioned for this Court’s
review, and we concluded that the mother was entitled to a hearing before the
Department.
                 We acknowledged that the Child Protective Services Law did not
provide a mechanism for a perpetrator to challenge a founded report. However, we
concluded that “[t]his statutory omission does not mean that a named perpetrator in
a founded report does not have any right of appeal.” Id. at 1092. In reaching this
conclusion, we looked to the Administrative Agency Law, which defines an
“adjudication” as a final order that affects a person’s personal or property rights or
privilege. 2 Pa. C.S. §101.6 A founded report of child abuse constitutes an
“adjudication” because it impacts a “perpetrator’s personal rights by branding him
or her as a child abuser in a Statewide central register of child abuse.” J.G., 795
A.2d at 1092. The Administrative Agency Law expressly states that no agency
adjudication is valid unless the parties thereto are given a hearing. 2 Pa. C.S. §504.7

6
    It defines “[a]djudication” as follows:
        Any final order, decree, decision, determination or ruling by an agency affecting
        personal or property rights, privileges, immunities, duties, liabilities or obligations
        of any or all of the parties to the proceeding in which the adjudication is made. The
        term does not include any order based upon a proceeding before a court or which
        involves the seizure or forfeiture of property, paroles, pardons or releases from
        mental institutions.
2 Pa. C.S. §101.
7
  It provides:
                                                  9
Thus, a founded report issued without a hearing on the factual statements in the
report constitutes an invalid adjudication.
              In the dependency proceeding that took place in J.G., the trial court
found that the child suffered physical abuse while under the supervision of both
parents. However, it did not find that the mother was the one who committed the
abuse. Because this critical factual question had not been decided, the mother was
entitled to an administrative hearing before the Department to challenge the accuracy
of the founded report naming her as a perpetrator of child abuse. We reversed the
Department’s dismissal of her appeal and remanded the matter for hearing.
              In reaching this conclusion, this Court cautioned that an administrative
hearing on a founded report will not be allowed where it would constitute a collateral
attack of a judicial adjudication. We stated:

              Where … a founded report is based upon a judicial adjudication
              in a non-criminal proceeding, such as a dependency action, in
              which the court enters a finding that the child was abused, but
              does not issue a corresponding finding that the named perpetrator
              was responsible for the abuse, a named perpetrator is entitled to
              an administrative appeal before the secretary to determine
              whether the underlying adjudication of child abuse supports a
              “founded report” of abuse.

J.G., 795 A.2d at 1093 (emphasis added).




       No 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. All testimony shall be stenographically recorded and a full and complete
       record shall be kept of the proceedings.
2 Pa. C.S. §504 (emphasis added).



                                              10
              In R.F. v. Department of Public Welfare, 801 A.2d 646 (Pa. Cmwlth.
2002), the CYS filed a founded report that named the father, who pled nolo
contendere “to count 4 of the complaint,” i.e., child endangerment, as the perpetrator
of child sexual abuse. The father appealed the founded report, noting that he did not
plead guilty to sexual abuse, which had been “a condition of his plea.” Id. at 648.
On appeal, this Court held that the father was entitled to a hearing as to whether the
nolo contendere plea itself established child sexual abuse. We remanded the matter
for an administrative hearing before the Department.

                                       Analysis

              Mother argues that under the principles established in J.G. and R.F.,
she is entitled to an evidentiary hearing under the Administrative Agency Law to
provide her version of the incident and to explain her reasons for entering the ARD
program. None of the facts recited in the founded reports have ever been adjudicated
in a court of law. Mother asserts that the criminal charge of “child endangerment”
is not the same as “serious physical neglect,” which must be “repeated, prolonged or
egregious.”    23 Pa. C.S. §6303(a).        The Department responds that J.G. is
distinguishable because it involved a dependency proceeding. Mother cannot be
permitted to lodge a collateral attack on her entry into an ARD program, which
involves a criminal, not a civil, matter.
              It is well established that a judgment of a court of law cannot be
subjected to collateral attack in a subsequent proceeding. Our Supreme Court has
held that “a judgment, order or decree rendered by a court having jurisdiction of the
parties and the subject matter, unless reversed or annulled in some proper
proceeding, is not open to collateral attack in any other proceeding.” Moeller v.
Washington County, 44 A.2d 252, 254 (Pa. 1945). This principle was followed in

                                            11
J.G., 795 A.2d 1089. Here, there has been no judgment. Indeed, “admission into an
ARD program ‘places the criminal proceedings in abeyance’” and “successful
completion of ARD ‘is not equivalent to a conviction under any circumstances.’”
Kearney v. Bureau of Professional and Occupational Affairs, 172 A.3d 127, 136
(Pa. Cmwlth. 2007) (quoting Commonwealth v. Brown, 673 A.2d 975, 979 (Pa.
Super. 1996)).8 Mother has not been convicted, and there has been no final judgment
rendered.
              In J.G., this Court held that a dependency adjudication will support a
founded report where the court has entered a “finding that a child who is the subject
of the report has been abused.” J.G., 795 A.2d at 1092. Because the dependency
adjudication in J.G. was silent on whether the mother was the perpetrator, there was
no finding on that question. Accordingly, there was no possibility of a collateral
attack upon the Court’s judgment. Likewise, in R.F., 801 A.2d 646, the father’s
underlying plea did not involve a judicial adjudication of child sexual abuse, and this
entitled him to a hearing on the founded report of child sexual abuse.
              The Child Protective Services Law states that acceptance into an ARD
program constitutes a founded report where “the reason for the acceptance involves
the same factual circumstances involved in the allegation of child abuse.” 23 Pa.
C.S. §6303(a). A founded report is unquestionably an adjudication. See J.G., 795
A.2d at 1092. However, “[n]o adjudication … shall be valid … [without] notice of


8
  There is an express exception for driving under the influence. In Whalen v. Department of
Transportation, Bureau of Driver Licensing, 32 A.3d 677 (Pa. 2011), the Supreme Court held that
entry into ARD counts as a prior offense for purposes of restoring operating privileges of repeat
drunk driving offenders by mandating installation of an ignition interlock system. The holding
was based on statutory language specifically defining acceptance into an ARD program as a “prior
offense” under Section 3806(a) of the Vehicle Code, 75 Pa. C.S. §3806(a). Notably, the Child
Protective Services Law does not define an ARD as a conviction.
                                               12
a hearing and an opportunity to be heard.” 2 Pa. C.S. §504. Where a founded report
is based on facts not yet adjudicated, the perpetrator is entitled to a hearing before
the Department conducted in accordance with the Administrative Agency Law.
J.G., 795 A.2d at 1092.
               As Mother observes, there has been no judicial finding about the risk in
which she placed her children “because no record of the ARD proceeding was
submitted.” Mother’s Brief at 8.9 She argues that the allegations in the criminal
complaint and the statements in an affidavit of probable cause cannot become
adjudicated facts based solely on entry into ARD. We agree. No facts were
adjudicated in the ARD proceeding. Accordingly, Mother’s appeal of the founded
report does not lodge a collateral attack on a judicial determination. J.G., 795 A.2d
at 1093. Thus, Mother is entitled to a hearing on whether CYS correctly amended
the indicated reports of child abuse to make them founded reports.

                                         Conclusion

               For all these reasons, we reverse the order of Bureau of Hearings and
Appeals and remand the matter for hearing in accordance with the Administrative
Agency Law.

                                         _____________________________________
                                         MARY HANNAH LEAVITT, President Judge




9
  Even if a record existed, it would likely be inconclusive. Generally, a defendant does not admit
to any facts, and a judge does not adjudicate any facts as a condition to entry into ARD.
                                               13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.F.,                                      :
                   Petitioner              :   CASE SEALED
                                           :
            v.                             :   No. 462 C.D. 2018
                                           :
Department of Human Services,              :
                 Respondent                :


                                   ORDER

            AND NOW, this 7th day of March, 2019, the final administrative order
of the Department of Human Services, Bureau of Hearings and Appeals, dated
March 28, 2018, is hereby REVERSED and the matter is REMANDED for hearing
in accordance with the attached opinion.
            Jurisdiction relinquished.

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


J.F.,                            :
                                 :
                      Petitioner : CASE SEALED
                                 :
                 v.              : No. 462 C.D. 2018
                                 : Argued: December 13, 2018
Department of Human Services,    :
                                 :
                      Respondent :




BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge


DISSENTING OPINION
BY JUDGE WOJCIK                                      FILED: March 7, 2019


            Respectfully, I disagree. The Majority opinion effectively expands
our case law to hold that an evidentiary hearing must be afforded by the
Department of Human Services (Department) to support every founded report of
child abuse. In doing so, I believe that the Majority reframes J.F.’s (Petitioner)
appeal as asserting a denial of due process instead of a substantial evidence
challenge based on an inapplicable statutory provision. Further, I perceive our
decisions in J.G. v. Department of Public Welfare, 795 A.2d 1089 (Pa. Cmwlth.
(Pa. Cmwlth. 2002), and R.F. v. Department of Public Welfare, 801 A.2d 646 (Pa.
Cmwlth. 2002), as materially distinguishable, such that the Majority’s reliance on
them is misplaced. Finally, I believe that the plain language of Section 6303 of the
Child Protective Services Law (CPSL), 23 Pa. C.S. §6303, as amended in 2013,
demonstrates a need to revisit and clarify our analysis in J.G.


                               Facts/procedural history
              The record reflects that Petitioner admitted to police on May 8, 2017,
and again to the County Children & Youth Social Service Agency (CYS) on May
22, 2017, that she left her 15-month-old twin daughters, C.F. and Chl.F., alone in
their cribs at approximately 1:00 a.m. on May 7, 2017, went to a bar, and drank
until she lost consciousness. Affidavit of Probable Cause, Reproduced Record
(R.R.) at 6a; CY48-Investigation/Assessment Outcome Reports, Supplemental
Reproduced Record (S.R.R.) at 3b-22b. Police found Petitioner intoxicated and
semi-conscious and transported her to a hospital. At 3:30 a.m., police went to
Petitioner’s home to inform someone of her whereabouts. There was no answer,
and police were unaware that the children were inside. Subsequently, a charge
nurse contacted police, who went to Petitioner’s home again at 6:30 a.m. and again
found no response. The children’s father went to the hospital and was directed to
go home. He arrived at approximately 7:30 a.m. and entered with police. The
children were left alone for about six and a half hours. See S.R.R. at 11b.1
              Petitioner was charged with two counts of Endangering the Welfare of
a Child under Section 4304(a)(1) of the Crimes Code, 18 Pa. C.S. §4304(a)(1). It
states:

              (a)(1) A parent, guardian or other person supervising the
              welfare of a child under 18 years of age, or a person that
              employs or supervises such a person, commits an offense

          1
        The Investigation/Assessment Outcome Reports identify the investigating worker by
name, S.R.R. at 12b, 22b, and identify the police referral source by name, S.R.R. at 8b, 18b.


                                         MHW - 2
             if he knowingly endangers the welfare of a child by
             violating a duty of care, protection or support.

             Subsequently, CYS completed two Child Protective Services
Investigative Reports and determined that Petitioner caused serious physical
neglect of her two children by a repeated, prolonged, or egregious failure to
supervise them. Bureau of Hearings and Appeals Adjudication, Finding of Fact
No. 5. The Office of Children, Youth and Families (OCYF) mailed Petitioner
notices that she was listed in the statewide database of child abuse as a perpetrator
of indicated reports of child abuse against C.F. and Chl.F.

             Section 6303(a) of the CPSL defines an “indicated report” as follows:

             (1) Subject to paragraphs (2) and (3), a report of child
             abuse made pursuant to this chapter if an investigation by
             the department or county agency determines that
             substantial evidence of the alleged abuse by a perpetrator
             exists based on any of the following:

               (i) Available medical evidence.

               (ii) The child protective service investigation.

               (iii) An admission of the acts of abuse by the
             perpetrator.

23 Pa. C.S §6303(a)(1).
             In relevant part, Section 6303(b.1) defines “child abuse” as follows:

             The term “child abuse” shall mean intentionally,
             knowingly or recklessly doing any of the following:

               (1) Causing bodily injury to a child through any recent
             act or failure to act.

                                     *    *   *

                                      MHW - 3
                (7) Causing serious physical neglect of a child.

23 Pa. C.S. §6303(b.1). Section 6303(a) of the CPSL defines “serious physical
neglect” as

              Any of the following when committed by a perpetrator
              that endangers a child’s life or health, threatens a child’s
              well-being, causes bodily injury or impairs a child’s
              health, development or functioning:

                    (1) A repeated, prolonged or egregious failure to
              supervise a child in a manner that is appropriate
              considering the child’s developmental age and abilities.

                    (2) The failure to provide a child with adequate
              essentials of life, including food, shelter or medical care.

23 Pa. C.S. §6303(a). The OCYF notices of indicated reports advised Petitioner
that the identified category of child abuse was “causing serious physical neglect”
and the subcategory was “repeated, prolonged or egregious failure to supervise”
for leaving the children home alone. Petitioner appealed the notices of indicated
reports.2
              Subsequently, on November 29, 2017, the Common Pleas Court
granted a motion to admit Petitioner into an accelerated rehabilitative disposition
program (ARD) for disposition of the two counts of Endangering the Welfare of a
Child. Criminal docket, S.R.R. at 33b. Based on Petitioner’s admission into ARD,
CYS amended the indicated reports of child abuse to founded reports of child
abuse, in accord with Section 6303 of the CPSL, 23 Pa. C.S. §6303.



      2
         Section 6341(a) of the CPSL, 23 Pa. C.S. §6341(a), allows for amendment or
expunction of information.

                                      MHW - 4
             On December 18, 2017, the County Solicitor filed a Motion to
Dismiss Petitioner’s appeal from the indicated reports because the reports were
amended from indicated to founded based on Petitioner’s admission into ARD.
Thereafter, Petitioner requested a hearing, asserting that the findings in the
affidavit of probable cause do not meet the definition of child abuse and that an
ARD disposition on charges of Endangering the Welfare of a Child does not
provide a basis for a founded report of child abuse. Specifically, citing Section
6303(b.1) of the CPSL, Petitioner alleged that the facts supporting probable cause
for the charges of Endangering the Welfare of a Child do not establish that
Petitioner created an imminent risk of serious physical injury.
             An administrative law judge (ALJ) of the Department of Human
Services, Bureau of Hearings and Appeals (BHA) considered Petitioner’s request
“to overturn founded reports of child abuse.” R.R. at 8a. The ALJ explained that
Section 6303(b.1) does not require that a child suffer serious physical injury or that
a perpetrator create an imminent risk of serious physical injury. Instead, under
Section 6303(b.1), causing serious physical neglect of a child constitutes child
abuse. R.R. at 12a. Further, the ALJ explained, “serious physical neglect” is
defined in part as a repeated, prolonged, or egregious failure to supervise a child in
a manner that is appropriate considering the child’s developmental age and
abilities, and that endangers a child’s life or health or threatens the child’s well-
being. The ALJ noted that the criminal complaint stated that Petitioner left her 15-
month-old children home alone for approximately seven hours and that the CYS
investigative reports concluded that by doing so she caused serious physical
neglect of C.F. and Chl.F. As set forth in investigative reports, the agency’s
investigations confirmed the relevant facts.


                                      MHW - 5
             The ALJ determined that the identical actions that are described in the
affidavit of probable cause and the CYS investigative reports “unequivocally meet
the definition of child abuse. [Petitioner] failed to supervise two 15-month-old
children for at least seven hours while [she] was drinking at a bar, constituting a
prolonged and egregious failure to supervise that endangered the children’s life,
health and well-being.” R.R. at 12a. Finally, the ALJ explained that the ARD
disposition on charges of Endangering the Welfare of a Child provided a basis for
a founded report of child abuse under Section 6303 of the CPSL because the
reason for the acceptance “involves the same factual circumstances involved in the
allegation of child abuse.” Id.
             The ALJ issued a decision on February 28, 2018, recommending that
Petitioner’s appeal be dismissed. R.R. at 7a. The ALJ’s recommendation was
adopted in its entirety by Final Administrative Action dated March 28, 2018.


                                  Issue on appeal
             On appeal to this Court, Petitioner argues that the record does not
establish that “the ARD disposition produced a judicial finding concerning the
severity of any injuries or level of risk Petitioner created by her actions because
there is no record of the ARD proceeding.” Petitioner’s brief at 8 (emphasis
added). She further contends that, without a record of the ARD proceeding, “there
is no reliable way to determine if there has been an acceptance into ARD and [that]
the reason for the acceptance involves the same factual circumstances involved in
the allegation of child abuse.” Petitioner’s brief at 9. Simply, Petitioner argues
that in the absence of a transcript of the ARD proceeding, the criteria for issuing a
founded report set forth in Section 6303 of the CPSL were not established in this


                                     MHW - 6
case. Petitioner’s argument specifically relies on a different definition of “child
abuse” than CYS has consistently cited.
                 As to Petitioner’s first argument, the ALJ already explained that the
definition of “child abuse” in Section 6303(b.1) of the CPSL does not require a
determination concerning the severity of injuries or the level of risk created by
Petitioner’s actions. As to her second contention, the criminal docket sufficiently
demonstrates that Petitioner was accepted into ARD to resolve pending charges of
Endangering the Welfare of a Child. S.R.R. at 31b-38b. Petitioner has never
challenged the accuracy of the documents reflecting that she admittedly left her
15-month-old daughters alone in their cribs overnight. Petitioner’s assertion that
the statutory criteria for issuance of a founded report have not been met
necessarily fails.3 To the extent Petitioner raises the question, the remaining issue


       3
           Indeed, Petitioner distills the essence of her two pages of argument as follows:

                 Facts supporting an ARD disposition may change from the time of
                 the filing of a criminal complaint and an ARD disposition. In fact,
                 a defendant may be completely innocent of an allegation, but
                 choose ARD disposition as a matter of expedience or as a way to
                 avoid the risk of an unfair verdict.

                 Respondent erred by relying entirely on information contained in a
                 criminal complaint and affidavit of probable cause of a criminal
                 complaint to support its determination. Petitioner should be
                 granted [an] evidentiary hearing to provide her version of the
                 incident and to explain her reasons for entering the ARD program.

Petitioner’s brief at 9 (emphasis added). Petitioner’s additional contention, that facts supporting
an ARD disposition may change, entirely misses the mark. In this case, the statutory criteria for
a founded report are Petitioner’s acceptance into ARD involving “the same factual circumstances
involved in the allegation of child abuse.” 23 Pa. C.S. §6303(a). The language of the statute
reflects that the criteria for a founded report involve Petitioner’s past actions, on May 7, 2017.
Past factual circumstances cannot be changed. Petitioner’s reasons for subsequently choosing
(Footnote continued on next page…)
                                 MHW - 7
is whether the provisions of the CPSL are sufficient to satisfy due process
concerns. The Majority concludes that a hearing not afforded under the CPSL is
required.


                             J.G. and R.F. are distinguishable
                Our decision in J.G. does not support this result.4 To the contrary, in
J.G., where both parents were named in a founded report of child abuse, we
sustained the mother’s appeal and held that a founded report of abuse is appealable
“for the limited purpose of determining whether or not the underlying adjudication

(continued…)

ARD disposition of the criminal charges are not relevant to establishing the specifics of her
conduct, i.e., the “factual circumstances,” on May 7, 2017.

               Our Supreme Court has repeatedly cautioned us to avoid addressing constitutional
issues whenever possible. Although Petitioner’s meager argument makes no reference to the
Administrative Agency Law, 2 Pa. C.S. §§501-508, 701-704, rights (constitutional or otherwise),
or due process, the Majority implicitly concludes that the failure of Section 6341 to provide for a
hearing to appeal a founded report is unconstitutional and amends the CPSL to require a hearing
to support every founded report of child abuse.

       4
           At the time J.G. was decided, “founded report” was 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, Historical and Statutory Notes. The provision now states that a founded
report also can be based upon a finding of dependency; a finding of delinquency; acceptance into
ARD; a consent decree entered in a juvenile proceeding; or a final protection from abuse order.
The 2013 legislation also amended Section 6341 of the CPSL (relating to amendment or
expunction) by adding Subsection (c.1) (founded reports).


                                            MHW - 8
supports a founded report that the named perpetrator is responsible for the abuse.”
Id. (emphasis added). Here, there is no confusion as to the identity of the person
who left the two 15-month-old children alone in their cribs overnight.
               In J.G., this Court also stated, without elaboration, that a “founded
report of child abuse constitutes an adjudication as it is a final determination [that]
affects a named perpetrator’s personal rights by branding him or her as a child
abuser on a Statewide central register of child abuse.” 795 A.2d at 1092 (emphasis
added). We have often repeated that conclusory statement. However, a founded
report does not decide disputed charges or facts. Rather, a founded report has
always been premised upon a prior adjudication, or, as now amended, a voluntary
disposition of charges. Consequently, it is more accurate to say that a founded
report is a reflection of an adjudication, not an adjudication in and of itself.
               Our decision in R.F. is likewise distinguishable. Therein, the founded
report named a parent who pled nolo contendere to child abuse as a perpetrator of
child sexual abuse. We held that the parent was entitled to a hearing to determine
whether the plea itself established child sexual abuse. Here, however, and as
explained by the ALJ, Petitioner does not dispute that her entry into the ARD
program and the founded report of child abuse were based on identical factual
circumstances: Petitioner’s leaving her 15-month-old children alone for more than
seven hours.
               This case does not raise questions as to the identity of the perpetrator
or to Petitioner’s conduct on May 7, 2017. Because the facts in this appeal are
completely dissimilar to the facts in J.G. and R.F., I believe the Majority’s reliance
on these opinions is misplaced.




                                       MHW - 9
                           R. v. Department of Public Welfare
              In R. v. Department of Public Welfare, 636 A.2d 142 (Pa. 1994), our
Supreme Court more thoroughly examined the impact of being named in an
indicated report of child abuse on an individual’s constitutionally protected right to
reputation. The appellant in R. appealed this Court’s decision affirming the denial
of his motion to expunge an indicated report of child abuse. In relevant part, the
appellant asserted that, because he was not permitted to be present when his
daughter testified, he was denied his rights to due process as guaranteed by the
Fourteenth Amendment to the United States Constitution and Sections 1 and 11 of
Article I of the Pennsylvania Constitution.5
              Relevant here, the Supreme Court addressed the appellant’s assertions
that the indicated report of child abuse posed a risk to his reputation. The Court
first observed:

              [I]n Pennsylvania, reputation is an interest that is
              recognized and protected by our highest state law: our
              Constitution. Sections 1 and 11 of Article I make explicit
              reference to ‘reputation,’ providing the basis for this
              Court to regard it as a fundamental interest which cannot
              be abridged without compliance with constitutional
              standards of due process and equal protection.
Id. at 149. After recognizing that the appellant had a protected interest in his
reputation, the Court assessed the extent to which he would be deprived of that
interest by the indicated report. The Court noted that indicated reports of child


       5
         The Supreme Court addressed three assertions of adverse impact raised by the appellant.
The Court observed that Section 6344 of the CPSL, related to “clearances,” does not implicate a
liberty or property interest recognized under Pennsylvania law. Additionally, the Court noted
that the appellant did not have a protectable property interest in any prospective employment
opportunities.


                                         MHW - 10
abuse are recorded in a confidential statewide registry, and the identity of the
perpetrator in such reports is revealed only in a limited set of situations. The Court
reviewed some of the specific exceptions to confidentiality set forth in Section
6340(a) of the CPSL6 and concluded:

               It is apparent from these legislatively imposed controls
               that R. is not being stigmatized in the eyes of the general
               public. To the contrary, his identity is disclosed to a
               small number of persons in a very narrow range of
               situations with the understanding that it will not be
               revealed to any unauthorized individuals. Therefore, any
               adverse effects on his reputation are very limited.

Id. at 149-50.
               More recently, the Supreme Court affirmed those conclusions in G.V.
v. Department of Public Welfare, 91 A.3d 667 (Pa. 2014).
               [In] R., an appeal from a denial of expungement, this
               Court focused on the extent to which the information
               contained in an indicated report is readily available or
               accessible, and specifically on the circumstances under
               which R.’s identity could be revealed. We observed that
               Section 6340(a) of the [CPSL] provides that only a
               limited number of people in a limited set of situations
               have access to the confidential statewide Registry. We
               thus concluded that R. was not being stigmatized in the

       6
         Section 6339 of the CPSL states that generally, reports of child abuse and other related
information in the possession of the Department or a county agency shall be confidential. As
emphasized by the Supreme Court in R., limited exceptions to the general rule are identified in
Section 6340(a), providing that reports shall only be made available to limited persons under
specific circumstances, such as: (1) an authorized official of a child protective service in the
course of official duties; (2) a physician examining or treating a child when the physician
suspects child abuse; (3) a child’s guardian ad litem; (4) a court of competent jurisdiction
pursuant to a court order; and (5) law enforcement officials in the course of investigating cases of
homicide, sexual abuse, sexual exploitation, or serious bodily injury. 23 Pa. C.S. §6340(a). I
would add that the regulations at 55 Pa. Code §§3490.102 and 3490.126 provide civil sanctions
and criminal penalties for breaching the confidentiality required by the CPSL.

                                           MHW - 11
              eyes of the general public, and the adverse effects on his
              reputation were very limited.

              Here, the Commonwealth Court did not hew to our
              extended analysis in R. pertaining to the statutory
              limitations on dissemination of the information contained
              in the Registry.
Id. at 672-73. The Court further explained that maintenance of the statewide
central registry identifying perpetrators of child abuse fosters the Commonwealth’s
interests in preventing child abuse and protecting abused children from further
injury. “This goal of protection of any potential victims of a perpetrator identified
in an indicated [or founded] report” cannot be ignored. Id. at 674.
              In a concurring opinion, Justice Saylor complains that the decision in
R. was “overly dismissive” to the reputational concerns of persons whose names
are entered in the child abuse registry. 91 A.3d at 675. Nevertheless, as set forth
in these precedential majority decisions, the Supreme Court’s analysis of the CPSL
as implicating the right to privacy protected under the Pennsylvania Constitution
applies equally here.
              In light of our Supreme Court’s more in-depth consideration of the
consequences of being named a perpetrator of child abuse on the statewide
registry, I conclude that placement on the statewide registry in a founded report of
child abuse is not an inevitable deprivation of one’s constitutional right to
reputation.    G.V.; R.    Consequently, I would revisit this Court’s implicit
assumption to the contrary in J.G. and our continuing reliance thereon. I believe
that the conclusory statement in J.G. is inconsistent with controlling authority and
does not support a holding that a founded report under Section 6303 must be
supported by an adjudication in every case. Further, as explained below, I believe



                                     MHW - 12
that the CPSL’s criteria regarding indicated and founded reports provide adequate
safeguards to protect an individual’s right to reputation.


                                        ARD
             Because Petitioner’s argument involves ARD proceedings, a brief
review of Chapter 3 of the Rules of Criminal Procedure (Rules), which govern
ARD, is provided. The Rules do not specify classes of offenses or offenders that
are eligible for inclusion in ARD.        Generally, the district attorney has the
responsibility for determining which cases will be recommended for entry into
ARD. See Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985); Commonwealth v.
Corrigan, 992 A.2d 126 (Pa. Super. 2010). A request for inclusion into ARD may
be made to the district attorney, the defendant, or an interested agency or
institution. Pa.R.Crim.P. 310, comment.
             After criminal proceedings are instituted, the Commonwealth attorney
may move that the case be considered for ARD.                Pa.R.Crim.P. 310.   The
Commonwealth attorney provides notice to the defendant and any victims of the
offense(s) charged that he or she will present the ARD motion to a judge.
Pa.R.Crim.P. 311.
             The common pleas court judge holds a hearing on the motion for
ARD in open court, during which “it is ascertained on the record whether the
defendant understands” that: (1) acceptance into and satisfactory completion of the
ARD program offers her an opportunity to earn a dismissal of the pending charges;
and (2) failure to complete the program waives any applicable statute of limitations
as well as the right to a speedy trial. Pa.R.Crim.P. 312. When the defendant
agrees, the stenographer closes the record. Pa.R.Crim.P. 313(A). The judge then


                                     MHW - 13
hears the facts of the case, as well as any information the defendant wishes to
present. Pa.R.Crim.P. 313(B).            No statement or information provided by the
defendant may be used against her in any criminal proceeding, 7 except in a
prosecution based on the falsity of the information provided. Id.
               If, after hearing the facts,8 the judge believes that the case warrants
ARD disposition, the judge orders the stenographer to reopen the record and states
the conditions of the program. Pa.R.Crim.P. 313(C). The conditions imposed
under the program “may be such as may be imposed with respect to probation after
conviction of a crime . . . .” 9 Pa.R.Crim.P. 316(A). If the defendant indicates
acceptance of the conditions and agrees to comply, the judge may grant the motion.
Pa.R.Crim.P. 313(D). At that time, bail is terminated and any money or security
deposit is returned. Pa.R.Crim.P. 313(E).
               The period of an ARD program “shall not exceed two years.”
Pa.R.Crim.P. 316(B). Upon successful completion of the program, a defendant
may move the court for an order dismissing the charges. Pa.R.Crim.P. 319. At
that time, the judge also orders expungement of the defendant’s arrest record.
Pa.R.Crim.P. 320. Notably, then, the rehabilitative purpose of an ARD program is




       7
         The phrase “or civil” was deleted from paragraph (B) in the 1989 revision of the ARD
rules. Pa.R.Crim.P. 313, comment.

       8
           The five-page questionnaire used to determine Petitioner’s eligibility for ARD
disposition of the criminal charges, accessed via the internet, specifically asks the applicant to
briefly state why she committed the crime with which she was charged.

       9
         The conditions of Petitioner’s ARD include drug and alcohol evaluation; community
service hours; attendance at retail theft school; and maintaining full-time employment. S.R.R. at
33b.


                                          MHW - 14
served by offering the defendant the possibility of a clean record if he or she
successfully completes the program.


                                  Founded report
             When J.G. was decided, the statutory predicate for a founded report of
child abuse was “any judicial adjudication” based on a finding that a child who is a
subject of the report has been abused. In other words, a founded report was not,
itself, an adjudication of facts, but a consequence of facts previously decided in a
judicial adjudication.
             As amended in 2013, Section 6303(a) of the CPSL now states:
             “Founded report.” —A child abuse report involving a
             perpetrator that is made pursuant to this chapter, if any of
             the following applies:
               (1) There has been a judicial adjudication based on a
             finding that a 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. The judicial adjudication may include any of the
             following:
                (i) The entry of a plea of guilty or nolo contendere.
                (ii) A finding of guilt to a criminal charge.
                (iii) A finding of dependency under 42 Pa. C.S.
             §6341 (relating to adjudication) if the court has entered a
             finding that a child who is the subject of the report has
             been abused.
                (iv) A finding of delinquency under 42 Pa. C.S.
             §6341 if the court has entered a finding that the child
             who is the subject of the report has been abused by the
             child who was found to be delinquent.
             (2) There has been an acceptance into an accelerated
             rehabilitative disposition program and the reason for the
             acceptance involves the same factual circumstances
             involved in the allegation of child abuse.

                                     MHW - 15
             (3) There has been a consent decree entered in a juvenile
             proceeding under [Section 6340 of the Juvenile Act, 42
             Pa. C.S. §6340], the decree involves the same factual
             circumstances involved in the allegation of child abuse
             and the terms and conditions of the consent decree
             include an acknowledgment, admission or finding that a
             child who is the subject of the report has been abused by
             the child who is alleged to be delinquent.

             (4) A final protection from abuse order has been granted
             under section 6108 . . . .
23 Pa. C.S. §6303(a).
             Thus, in addition to the judicial adjudications identified in subsections
(1) and (4), a founded report will issue under subsections (2) and (3) based on a
voluntary occurrence, participation in an ARD program, or a consent decree
entered in a juvenile proceeding.        The voluntary occurrences identified in
subsections (2) and (3) as criteria for a founded report must involve the same
factual circumstances involved in the allegation of child abuse, but they do not
involve an adjudication. Each of these voluntary occurrences offers the individual
an opportunity for rehabilitation and the expungement of her criminal records,
under terms and conditions that balance the community’s need for protection. In
any event, a founded report always requires that the adjudication or voluntary
predicate involves the same factual circumstances that are involved in the
allegation of child abuse.
             Here, Petitioner does not argue that the factual circumstances are not
the same, but instead sets forth an irrelevant argument, that the facts do not
establish the “severity of any injuries or level of risk Petitioner created by her
actions.” Petitioner’s brief at 8. Petitioner does not assert that the criminal
charges disposed of by ARD were not based on facts evincing a “failure to
supervise” as contemplated by Section 6303(a) of the CPSL. Because she does not

                                     MHW - 16
argue that the factual circumstances are not the same, J.G. and R.F. are materially
distinguishable, and a hearing could serve no discernable purpose.


                                           Section 6341
                Section 6341 allows a hearing for amendment or expunction of
information in limited circumstances.10 For an indicated report, which may be



      10
           In relevant part, Section 6341 states:

                (a) General rule. — Notwithstanding section 6338.1 (relating to
                expunction of information of perpetrator who was under 18 years
                of age when child abuse was committed):

                  (1) At any time, the secretary may amend or expunge any record
                in the Statewide database under this chapter upon good cause
                shown and notice to the appropriate subjects of the report. The
                request shall be in writing in a manner prescribed by the
                department. For purposes of this paragraph, good cause shall
                include, but is not limited to, the following:
                    (i) Newly discovered evidence that an indicated report of child
                abuse is inaccurate or is being maintained in a manner inconsistent
                with this chapter.
                    (ii) A determination that the perpetrator in an indicated report of
                abuse no longer represents a risk of child abuse and that no
                significant public purpose would be served by the continued listing
                of the person as a perpetrator in the Statewide database.

                  (2) Any person named as a perpetrator . . . in an indicated report
                of child abuse may, within 90 days of being notified of the status
                of the report, request an administrative review by, or appeal and
                request a hearing before, the secretary to amend or expunge an
                indicated report on the grounds that it is inaccurate or it is being
                maintained in a manner inconsistent with this chapter. . . .

                                              *     *   *

(Footnote continued on next page…)
                                MHW - 17
based on an investigation and does not require a prior adjudication, those
circumstances include newly discovered evidence or evidence that the perpetrator
no longer represents a risk of child abuse. 23 Pa. C.S. §6341(a)(1). The agency
supports an indicated report of child abuse by way of substantial evidence.
              For a founded report, which is based on a prior judicial adjudication
or a voluntary judicial disposition, the circumstances constituting good cause to
amend or expunge a report are a court order reflecting that the adjudication that
formed the basis of the founded report has been reversed or vacated. 23 Pa. C.S.
§6341(c.1). When a founded report is premised on entry in ARD, the requisite
order becomes available upon successful completion of the program.

(continued…)

              (c.1) Founded reports. — A person named as a perpetrator in a
              founded report of child abuse must provide to the department a
              court order indicating that the underlying adjudication that formed
              the basis of the founded report has been reversed or vacated.

              (c.2) Hearing. — A person making an appeal under subsection
              (a)(2) or (c) shall have the right to a timely hearing to determine
              the merits of the appeal. A hearing shall be scheduled according to
              the following procedures:
                                           * * *
               (4) The department or county agency shall provide a person
              making an appeal with evidence gathered during the child abuse
              investigation within its possession that is relevant to the child
              abuse determination, subject to sections 6339 (relating to
              confidentiality of reports) and 6340 (relating to release of
              information in confidential reports).

               (5) The department or county agency shall bear the burden of
              proving by substantial evidence that the report should remain
              categorized as an indicated report.

23 Pa. C.S. §6341.


                                         MHW - 18
              In my view, the CPSL affords different but adequate due process for
challenging both indicated and founded reports.


                                     Conclusion
              Consistent with their distinct underlying purposes, the Rules
governing ARD and the provisions of the CPSL allow for different consequences
for Petitioner’s leaving her 15-month-old daughters alone and unsupervised
overnight. ARD offers Petitioner an opportunity to avoid a criminal conviction
based on her admitted conduct and start over with a “clean slate.” The lack of a
transcript of the ARD hearing is required by the Rules and serves to benefit
defendants.    The CPSL serves different purposes, including the swift and
competent investigation of reported child abuse and “providing protection for
children from further abuse.” Section 6302 of the CPSL, 23 Pa. C.S. §6302. In
furtherance of those purposes, the CPSL provides that judicial adjudications and
voluntary dispositions of criminal charges based on facts establishing child abuse
support the issuance of a founded report. By now recognizing that persons can
avoid adjudication of criminal charges by way of ARD or consent decree, the
legislature has arguably filled a preexisting statutory gap.
              Our Supreme Court has recognized that harm to one’s constitutionally
protected right to reputation is not, as suggested by J.G., an inevitable result of
being named in a founded report. Moreover, an individual who does not contest
that the adjudication or voluntary disposition “involves the same factual
circumstances” involved in the allegation of child abuse does not fall within the
narrow application of J.G. or R.F.




                                     MHW - 19
            The Majority concludes that Petitioner “is entitled to a hearing on
whether CYS correctly amended the indicated reports of child abuse to make them
founded reports.” Majority op. at 13. Because Petitioner does not argue that her
ARD disposition involves different factual circumstances than are involved in the
allegation of child abuse, she raises no issue necessitating a hearing under the
CPSL.
            Based on the foregoing, I would clarify our analysis in J.G., and I
would affirm the final order of the BHA.




                                     MICHAEL H. WOJCIK, Judge




                                   MHW - 20
