                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

K.B. In Re: M.B.,                               :   SEALED CASE
                              Petitioner        :
                                                :
                      v.                        :
                                                :
Department of Human Services,                   :   No. 1070 C.D. 2016
                      Respondent                :   Submitted: January 27, 2017


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: May 1, 2017

               K.B. petitions this Court for review of the Department of Human
Services (DHS) Secretary’s (Secretary) June 7, 2016 Final Order upholding the
Bureau of Hearings and Appeals’ (BHA) denial of K.B.’s appeal as untimely. The
sole issue for this Court’s review is whether the BHA properly dismissed K.B.’s
appeal. After review, we affirm.
               On April 20, 2015, DHS mailed K.B. a notice advising him that he was
listed on the ChildLine1 & Abuse Registry (ChildLine) as a perpetrator in an
indicated report2 of child abuse (Notice). The Notice stated:

       1
          ChildLine is defined as “[a]n organizational unit of [DHS] which operates a Statewide toll-
free system for receiving reports of suspected child abuse established under [S]ection 6332 of the
[Law] (relating to establishment of Statewide toll-free telephone number), refers the reports for
investigation and maintains the reports in the appropriate file. . . .” 55 Pa. Code § 3490.4.
        2
           Section 6303(a) of the Child Protective Services Law (Law) states that an “[i]ndicated
report” is

               a report of child abuse . . . if an investigation by [DHS] or county
               agency determines that substantial evidence of the alleged abuse by a
               A copy of the report of abuse is enclosed. Please read the
               report carefully.
               If you disagree with the decision that you committed abuse,
               you have the right to a review of that decision. You must
               request a review within 90 days of the mailing date listed
               at the top of this notice.[3]

Reproduced Record (R.R.) at 11a (emphasis in original). The review request form
that accompanied the Notice also clearly stated: “YOU MUST SEND THIS FORM SO THAT
IT IS POSTMARKED WITHIN        90 DAYS OF THE MAILING DATE ON THE ENCLOSED NOTICE.
IF THE FORM IS NOT POSTMARKED WITHIN              90   DAYS, YOU WILL LOSE THE RIGHT TO A

REVIEW OR HEARING.”        R.R. at 13a.
               On July 30, 2015, K.B. submitted his review request. See R.R. at 13a;
see also R.R. at 15a. In addition, K.B. requested a deferral, stating:

               On June 29, 2015, the Court found that the minor child in
               the above[-]referenced matter was Not Dependent.
               The matter has not been heard by the Court of Common
               Pleas of Cambria County [(trial court)]. Until such time,
               there is no abuse, we ask this organization to defer a review
               or hearing on this matter until this case has been disposed of
               at the [trial court].

R.R. at 14a.
               By September 23, 2015 letter, DHS notified K.B., in relevant part:

               We cannot review your appeal because the request was
               not received within 90 days of the [Notice] . . . dated
               4/20/2015. As explained in that letter, the Pennsylvania


               perpetrator exists based on any of the following: (i) [a]vailable
               medical evidence[;] (ii) [t]he child protective service investigation[;
               or,] (iii) [a]n admission of the acts of abuse by the perpetrator.
23 Pa.C.S. § 6303(a) (emphasis omitted); see also 55 Pa. Code § 3490.4.
       3
         A timely response to the Notice was due on or before July 20, 2015 (since the 90-day
deadline expired on Sunday, July 19, 2015, the actual due date would have been Monday, July 20,
2015).
                                                 2
               Child Protective Services Law [(Law)4] requires that
               appeals of child abuse reports be made within 90 days of
               the date you were informed in writing of the status of the
               report. Therefore, the abuse report will remain on file as
               submitted by the investigating agency.
               If you believe your appeal should be considered even
               though it was not received within the time required by law,
               you must request in writing that the [BHA] . . . review the
               indicated finding of the child abuse report. . . . This written
               request must be received within 90 days of the date of this
               letter[.]

R.R. at 16a (emphasis added).
               By December 17, 2015 letter, K.B.’s counsel informed Cambria County
Children and Youth Services (CYS) that “the criminal charges against [K.B.] . . .
have been withdrawn[,]” and “request[ed] that [K.B.’s] name be removed from
[ChildLine].” R.R. at 17a. On January 27, 2016, BHA was notified that a hearing
was requested “to determine if [K.B.’s] late request for an appeal should be
accepted.” R.R. at 6a. On February 25, 2016, a telephone hearing was held before an
administrative law judge (ALJ).
               At the February 25, 2016 hearing, K.B.’s counsel argued that since the
trial court declared that “there was no dependency on behalf of [K.B.,]” R.R. at 47a,
and “[t]he [trial court] found there was no [criminal] case, and dismissed it,” R.R. at
46a, “there is no abuse . . . [a]nd the matter should be disposed of ab initio.” R.R. at
46a; see also R.R. at 45a-49a. K.B.’s counsel acknowledged that K.B. received the
April 20, 2015 Notice, but did not file an appeal within 90 days,

               [b]ecause it was irrelevant. It didn’t matter. There was no
               case against [K.B.] I usually would say this is similar to a
               [s]upersedeas. Any time I’ve seen these things before, you
               can write a letter to the [BHA] and say, delay the matter
               until we have a finding. All right? And they would do that,


      4
          23 Pa.C.S. §§ 6301-6386.
                                             3
             too. They wouldn’t make a decision on this until there was
             a finding by the court. . . . This is the same.

R.R. at 49a. The ALJ stated: “You’re correct. But an appeal has to be filed before
we can . . . delay an appeal, but there wasn’t an appeal filed.” R.R. at 50a.
             By March 2, 2016 adjudication, the ALJ made the following findings of
fact:

             1. On April 20, 2015, ChildLine mailed [K.B.] a letter
             giving notice that [K.B.] is listed on the statewide central
             register of child abuse as a perpetrator in an indicated report
             of child abuse.
             2. The April 20, 2015 letter notified [K.B.] of the right to
             request the indicated report be amended or destroyed and
             instructed [K.B.] a request must be made within 90 days of
             the date of the [N]otice.
             3. [K.B.] received the April 20, 2015 [N]otice.
             4. On July 30, 2015, [K.B.], through counsel, filed an
             appeal of the April 20, 2015 [N]otice.
             5. [K.B.’s] July 30, 2015 appeal was postmarked 101 days
             after the mailing of the April 20, 2015 [N]otice.
             6. At the hearing, no evidence was presented to show the
             delay in filing of the late appeal was caused by fraud or its
             equivalent on the part of administrative authorities, a
             breakdown in the administrative process, or the non-
             negligent conduct of [K.B.] or someone acting on [K.B.’s]
             behalf or the negligent conduct of`a third party.

R.R. at 27a. The ALJ reasoned:

             In this case, counsel for [K.B.] stated he did not file an
             appeal within the 90[-]day limit because it was irrelevant
             and it did not matter as there was a related dependency
             matter which would have resulted in the above-captioned
             matter being stayed. However, [Section 6341(d) of the
             Law,] 23 Pa. C.S. § 6341(d)[,] states that ‘any
             administrative appeal’ will be automatically stayed upon
             notice to [DHS] of a pending dependency proceeding.
             Thus, an appeal must first be filed before a stay of the
                                           4
               proceeding can be issued, and therefore, it is very relevant
               and it does matter that a timely appeal was not filed in this
               case. Yet, [K.B.’s] counsel failed to take due diligence to
               preserve [K.B.’s] appeal rights by filing a timely appeal in
               this case. As a result, I do not find [K.B.] has shown
               sufficient grounds to allow the appeal to proceed nunc pro
               tunc in this case.

R.R. at 28a (italic emphasis added). Accordingly, the ALJ concluded that “[K.B.’s]
appeal was not timely filed in accordance with [Section 6341 of the Law]. Further,
[K.B.] has not shown sufficient reasons to allow the appeal to proceed nunc pro tunc,
and the appeal should be dismissed.” R.R. at 28a (italic emphasis added). By March
3, 2016 order, the BHA adopted the ALJ’s adjudication and dismissed K.B.’s appeal.
See R.R. at 24a.
               K.B. filed a request for reconsideration of the BHA’s order with the
Secretary, arguing that the BHA overlooked that his criminal case had been
dismissed.     See R.R. at 30a.       On April 11, 2016, the Secretary granted K.B.’s
reconsideration request. See R.R. at 31a-32a. On April 11, 2016, CYS responded
that “the only excuse given for the delay was that [K.B. was] waiting to see what
would happen to the criminal charges filed against [K.B.]” R.R. at 34a. By Final
Order issued June 7, 2016, the Secretary upheld the BHA’s March 3, 2016
adjudication dismissing K.B.’s appeal as untimely. See R.R. at 36a. K.B. appealed to
this Court.5
               Initially, Section 6341(a)(2) of the Law requires that a perpetrator must
request that an indicated report of child abuse be amended or expunged within 90
days of being notified of the indicated report. 23 Pa.C.S. § 6341(a)(2). “It is well

       5
          “Our ‘scope of review in expunction proceedings is limited to a determination of whether
constitutional rights were violated, whether errors of law were committed, or whether necessary
findings of fact are supported by substantial evidence.’” K.R. v. Dep’t of Pub. Welfare, 950 A.2d
1069, 1073 n.6 (Pa. Cmwlth. 2008) (quoting E.D. v. Dep’t of Pub. Welfare, 719 A.2d 384, 387 (Pa.
Cmwlth. 1998)).


                                                5
established that the failure to timely appeal an administrative agency’s action is a
jurisdictional defect. The time for taking an appeal therefore cannot be extended as a
matter of grace or mere indulgence.” J.C. v. Dep’t of Pub. Welfare, 720 A.2d 193,
197 (Pa. Cmwlth. 1998) (citation omitted).
            Here, K.B. admits that he did not timely appeal from the April 20, 2015
Notice, but claims that this requirement to do so was stayed pending the outcome of
the dependency proceeding and the related criminal charges. See K.B. Br. at 5, 6.
We disagree.
            Section 6341(d) of the Law states:

            Any administrative appeal proceeding pursuant to
            [Section 6341(b) of the Law, 23 Pa.C.S. § 6341(b) (relating
            to review of grant request),] shall be automatically stayed
            upon notice to the [D]epartment by either of the parties
            when there is a pending criminal proceeding or a
            dependency or delinquency proceeding pursuant to 42
            Pa.C.S. Ch. 63 (relating to juvenile matters), including any
            appeal thereof, involving the same factual circumstances
            as the administrative appeal.

23 Pa.C.S. § 6341(d) (bold and underline emphasis added); see also 55 Pa. Code §
3490.106a. The express wording of the statute clearly establishes that the timely
filing of an appeal is an essential prerequisite to the automatic stay. In re Gorham,
414 A.2d 712, 713 (Pa. Super. 1979). Where there has been a “failure to comply with
the requirements of a statute or a general rule in perfecting an appeal,” there is no
appeal proceeding over which the reviewing body has jurisdiction. City of Phila. v.
Silverman, 497 A.2d 689, 692 (Pa. Cmwlth. 1985); see also J.C. By extension, where
there is no appeal proceeding, there can be no stay under Section 6341(d) of the Law.
            Arguably, although K.B. in his July 30, 2015 letter sought to have the
BHA’s review of his ChildLine listing stayed pending the results of the trial court’s




                                          6
disposition of “the matter,”6 K.B. did not request a review of the April 20, 2015
Notice. R.R. at 14a. Even assuming that K.B.’s July 30, 2015 letter was his appeal
from the Notice, since it was filed 10 days past the 90-day deadline, it was untimely
and, thus, there was no appeal proceeding to stay pursuant to Section 6341(d) of the
Law. K.B. supplied no case law to support his argument that the stay afforded by
Section 6341(d) of the Law was automatic in the absence of an appeal, and we have
found none.
               K.B. contends that his appeal should nevertheless be allowed nunc pro
tunc. This Court has held:

               An exception allows perpetrators to proceed nunc pro tunc
               where he or she can demonstrate that the delay in
               requesting an appeal was caused by extraordinary
               circumstances involving fraud, a breakdown in the
               administrative     processes,       or      non-negligent
               circumstances related to the petitioner, his counsel or a
               third party.

Beaver Cnty. Children & Youth Servs. v. Dep’t of Pub. Welfare, 68 A.3d 44, 48 (Pa.
Cmwlth. 2013) (bold and underline emphasis added). Moreover,

               [a] party seeking permission to file a nunc pro tunc appeal .
               . . needs to establish that: (1) [he] filed the appeal shortly
               after learning of and having an opportunity to address the
               untimeliness; (2) the elapsed time is one of very short
               duration; and (3) the respondent will not suffer prejudice
               due to the delay.

Smith v. Pa. Bd. of Prob. & Parole, 81 A.3d 1091, 1094 n.4 (Pa. Cmwlth. 2013)
(quoting J.A. v. Dep’t of Pub. Welfare, 873 A.2d 782, 785 n.4 (Pa. Cmwlth. 2005)).
“However, it must first be found that the failure to file untimely was non-
negligent[.]” In Re Appeal of Tenet HealthSystems Bucks Cnty., LLC, 880 A.2d 721,

       6
         It is unclear based on the face of the July 30, 2015 letter what K.B. meant by “the matter.”
R.R. at 14a. However, since the letter also stated that the dependency proceeding was concluded,
we can only assume that “the matter” referred to K.B.’s pending criminal charges. R.R. at 14a.
                                                 7
728 n.15 (Pa. Cmwlth. 2005). Moreover, “mere neglect or administrative oversight
of counsel cannot justify the allowance of an appeal nunc pro tunc[.]” Lawrence
Cnty. v. Pa. Labor Relations Bd., 469 A.2d 1145, 1149 (Pa. Cmwlth. 1983) (italics
and bold emphasis added).
             In this case, K.B. was aware of the appeal deadline upon his receipt of
the April 20, 2015 Notice, yet waited 100 days to act. At no point did K.B. or his
counsel claim that K.B. was unaware of the appeal deadline, or that K.B.’s delay was
caused by any “extraordinary circumstances involving fraud, a breakdown in the
administrative processes, or non-negligent circumstances.” Beaver Cnty. Children &
Youth Servs., 68 A.3d at 48. Rather, K.B. chose not to appeal, but to proceed under
the presumption that the disposition of the dependency and criminal cases would
establish that no abuse occurred.
             At the February 25, 2016 hearing, K.B.’s counsel argued that since the
trial court declared that “there was no dependency on behalf of [K.B. [sic],]” R.R. at
47a, “there is no abuse . . . [a]nd the matter should be disposed of ab initio.” R.R. at
46a; see also R.R. at 45a-49a.       However, it is undisputed that CYS instituted
dependency proceedings on or about May 6, 2015 by filing a petition. See R.R. at
57a-61a. Therein, CYS represented that court action was necessary because M.B.
was “without proper care or control.” R.R. at 57a; see also R.R. at 59a. The
dependency petition further reflected that M.B. had been placed in her maternal
grandparents’ care in the meantime. See R.R. at 57a. By May 11, 2015 notice, the
trial court scheduled M.B.’s dependency hearing for June 1, 2015. See R.R. at 62a.
On May 15, 2015, CYS issued recommendations to the trial court that M.B. remain in
her maternal grandparents’ custody. On June 29, 2015, the trial court issued the
following order:

             [A]fter a hearing on June 1, 2015, and after consideration of
             the petition presented [by CYS,] the Court finds that clear

                                           8
            and convincing evidence does not exist to substantiate the
            allegations set forth in the petition. Furthermore[,] it is
            ORDERED that [M.B.] is found not to be a Dependent
            Child pursuant to the [Juvenile Act,] and that the petition
            for dependency is dismissed.
            Legal and Physical Custody is to remain with the maternal
            grandparents . . . .

R.R. at 65a; see also R.R. at 53a. M.B.’s dependency matter was concluded nearly
three weeks before K.B.’s appeal filing deadline expired.
            Moreover, K.B.’s counsel erroneously represented at the hearing and in
its brief to this Court, that because there was not clear and convincing evidence of
M.B.’s dependency, “there was no finding of abuse.” R.R. at 46a; see also K.B. Br.
at 9. However, our Supreme Court has explained:

            A court is empowered by [Section 6341(a) and (c) of the
            Juvenile Act,] 42 Pa.C.S. § 6341(a)[,](c)[,] to make a
            finding that a child is dependent if the child meets the
            statutory definition by clear and convincing evidence. If
            the court finds that the child is dependent, then the court
            may make an appropriate disposition of the child to protect
            the child’s physical, mental and moral welfare, including
            allowing the child to remain with the parents subject to
            supervision, transferring temporary legal custody to a
            relative or a private or public agency, or transferring
            custody to the juvenile court of another state. 42 Pa.C.S. §
            6351(a).

            The definition of a dependent child contained in [S]ection
            6302 [of the Juvenile Act] clearly states that a child must
            lack a parent, guardian or other legal custodian who can
            provide appropriate care to the child.
In re M.L., 757 A.2d 849, 850-51 (Pa. 2000) (emphasis added).
            In M.B.’s dependency proceeding, the trial court held that “clear and
convincing evidence does not exist to substantiate the allegations set forth in the
petition.” R.R. at 65a. The allegations contained in the petition were that M.B. was
“without proper care or control.” R.R. at 57a; see also R.R. at 59a. However, because
                                          9
M.B. was in her grandparents’ safe custody at the time of the dependency hearing,
she did not “lack a . . . guardian or other legal custodian who [could] provide [her]
appropriate care” and, thus, there was not clear and convincing evidence that M.B.
was a dependent child requiring the trial court’s immediate protection under the
Juvenile Act.7 M.L., 757 A.2d at 851.
              The law is clear that “[t]he dependency laws focus on the needs and
welfare of neglected and abused children. Dependency court decisions are based on
the children’s best interests.        The purpose underlying the proceedings is not
punishment of the parents or restriction of their liberty.” In re J.Y., 754 A.2d 5, 10-
11 (Pa. Super. 2000). Accordingly, the dependency proceeding in this case related to
M.B.’s safe placement, and did not in any way adjudicate whether K.B.’s alleged
abuse of M.B. was substantiated.
              K.B.’s counsel also argued at the February 25, 2016 hearing that since
“[t]he [trial court] found there was no [criminal] case, and dismissed it,” R.R. at 46a,
“there is no abuse . . . [a]nd the matter should be disposed of ab initio.” R.R. at 46a;
see also R.R. at 45a-49a.        We acknowledge, based upon the documents K.B.’s
counsel supplied to CYS with his December 17, 2015 letter, that a criminal complaint
was filed against K.B. on April 1, 2015 containing twelve counts related to his
alleged sexual assault of a minor. See R.R. at 17a-23a; see also R.R. at 9a. Those
charges were not dismissed by the trial court, but rather the district attorney withdrew
them on December 17, 2015. See R.R. at 17a, 21a. Although the record does not
reflect why the charges were withdrawn, K.B.’s counsel stated that it was because
M.B. failed to appear at K.B.’s hearing. See R.R. at 47a-48a. If that is the case, there


       7
        CYS’ counsel’s statements at the February 25, 2016 hearing confirmed that the trial court
declared M.B. not dependent because M.B. could continue in the care and custody of her
grandparents. See R.R. at 51a, 53a.


                                               10
is no adjudication from which K.B. could conclude that “there [wa]s no abuse” to
support maintaining his indicated report on ChildLine. R.R. at 46a.
              The Commonwealth was required to prove every element of the crimes
charged against K.B. “beyond a reasonable doubt.” Commonwealth v. Smith, 17 A.3d
873, 908 (Pa. 2011). “[T]he ‘beyond a reasonable doubt’ standard is the highest
standard of proof and applies to criminal proceedings that impact an individual’s
liberty interest, an interest worthy of the highest protection.” In re S.H., 96 A.3d 448,
455 n.7 (Pa. Cmwlth. 2014). Conversely, “[CYS] has the burden of establishing by
substantial evidence that an indicated report of child abuse is accurate. If CYS fails
to sustain that burden, a request for expungement will be granted.” Bucks Cnty.
Children & Youth Soc. Servs. Agency v. Dep’t of Pub. Welfare, 808 A.2d 990, 993
(Pa. Cmwlth. 2002). “The [substantial evidence/]‘preponderance of the evidence’
standard[8] is the lowest of the . . . standards [of proof,] and means that the fact finder
must be satisfied that the evidence shows that a fact is probably true, i.e., more likely
true than not.” S.H., 96 A.3d at 455 n.7; see also 23 Pa.C.S. § 6303(a); 55 Pa. Code §
3490.4.
              The consistent testimony of a child abuse victim can support the findings
of fact upon which a determination that an indicated report was accurate can be made.
D.T. v. Dep’t of Pub. Welfare, 873 A.2d 850 (Pa. Cmwlth. 2005); K.J. v. Dep’t of
Pub. Welfare, 767 A.2d 609 (Pa. Cmwlth. 2001). An indicated child abuse report can
also be based exclusively on a child protective service investigation. K.J.; see also 23
Pa.C.S. § 6303(a) (definition of indicated report at (ii)). Accordingly, successful


       8
       This Court has declared that “‘substantial evidence” in child abuse expungement cases is
synonymous with the ‘preponderance of the evidence’ standard.” S.T. v. Dep’t of Pub. Welfare,
Lackawanna Cnty. Office, Children, Youth & Family Servs., 681 A.2d 853, 857 n.4 (Pa. Cmwlth.
1996).



                                              11
prosecution of related criminal charges is not required to substantiate an indicated
report on ChildLine. The withdrawal of the criminal charges against K.B. was not an
adjudication that “there [wa]s no abuse,” such that his indicated report would be
expunged from ChildLine. R.R. at 46a.
             Based on the foregoing, there was no reasonable basis for K.B. or his
counsel to have concluded that his appeal “was irrelevant” and “didn’t matter” since
“[t]here was no case against him.” R.R. at 49a. There being no evidence that K.B.’s
appeal delay was caused by any “extraordinary circumstances involving fraud, a
breakdown in the administrative processes, or non-negligent circumstances,” Beaver
Cnty. Children & Youth Servs., 68 A.3d at 48, there is no basis upon which this Court
may permit K.B.’s appeal nunc pro tunc.
             Under the circumstances of this case, we have no choice but to hold that
the Secretary properly upheld the BHA’s order dismissing K.B.’s appeal as untimely
and without sufficient basis to allow a nunc pro tunc appeal. For all of the above
reasons, the Secretary’s Final Order is affirmed


                                       ___________________________
                                       ANNE E. COVEY, Judge




                                          12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

K.B. In Re: M.B.,                        :   SEALED CASE
                         Petitioner      :
                                         :
                    v.                   :
                                         :
Department of Human Services,            :   No. 1070 C.D. 2016
                      Respondent         :


                                      ORDER

            AND NOW, this 1st day of May, 2017, the Department of Human
Services’ June 7, 2016 Final Order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


K.B. In Re: M.B.,                      :   SEALED CASE
                    Petitioner         :
                                       :
            v.                         :
                                       :
Department of Human Services,          :   No. 1070 C.D. 2016
                 Respondent            :   Submitted: January 27, 2017


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                          FILED: May 1, 2017


            As I believe the equitable principles underlying the concept of nunc
pro tunc relief are present here, I cannot join the majority, and must therefore
dissent.




                                    ___________________________
                                    JOSEPH M. COSGROVE, Judge
