What is the PA ChildLine and Abuse Registry
Mandated by 23 Pa.C.S. § 6331 of the Child Protective Services Law (CPSL), ChildLine is a statewide database in Pennsylvania that contains information related to suspected, indicated and founded reports of child abuse, including sexual abuse. The database includes and is limited to the types of data listed in 23 Pa.C.S. § 6336, which among other items, includes 1) the names, social security numbers, age, race, ethnicity and sex of the subjects of the reports, and 2) the date or dates and the nature and extent of the alleged instances that created the need for protective services.
Why are Individuals Placed on the ChildLine and Abuse Registry?
Individuals' names and other personal information appear on this registry as a result of a mandated reporter (23 Pa.C.S. § 6311) or any other individual having made a report of alleged child abuse. Names and information remain on the registry in several situations, including during pending investigations; when reports have been deemed "indicated" or "founded;" and when unfounded reports of child abuse are awaiting expunction.
Who Has Access to this Information?
Although reports are not generally available to the public, Child Protective Services Law gives numerous persons access to indicated reports, including physicians and hospital administrators who treat children, a guardian ad litem, agency and court personnel, federal auditors, law enforcement officials and designated county officials (See 23 Pa.C.S. § 6340).
What Occurs Once an Individual is Reported to ChildLine?
Upon receiving a report of suspected child abuse by a perpetrator from an individual, the "county agency" will immediately begin an investigation in order to assess the validity of the allegation. Among other actions, the Agency will interview the child (within 24 hours or sooner if in an emergency); determine if he or she would be at risk if not removed from the current residence; provide a medical screening if warranted; and interview witnesses. In accordance with 23 Pa.C.S. § 6368(j)(1), investigations to determine whether to accept the family for service and whether a report is founded, indicated or unfounded must be completed within 60 days.
What if I am Asked to be Interviewed as a Part of the Investigation?
The county agency is required by law to attempt to interview all "subjects" of the report, including the alleged perpetrator. (If you are asked to be interviewed, invoke your right to counsel.) Before conducting an interview of any subject with the exception of the alleged victim, the Agency must give oral notification of (i) the existence of the report; (ii) the subject’s rights under 42 Pa.C.S. § 6337 (relating to right to counsel) and 6338 (relating to other basic rights); (iii) the subject’s rights pursuant to this chapter in regard to amendment or expungement, and (iv) the subject’s right to have an attorney present during the interview. Written notice of this information is required to be given within 72 hours after oral notification.
What is an "Indicated Report," and What Proof is Necessary for This Finding?
At the conclusion of an investigation, a report of child abuse is characterized as an "indicated report" if the investigation by the county agency or the Pennsylvania Department of Human Services (formerly Department of Public Welfare (DPW)) determines that "substantial evidence" of the alleged abuse exists based on available medical evidence, the child protective service investigation, or an admission of the facts of abuse by the perpetrator. “Substantial evidence” is evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion (23 Pa.C.S. § 6303) (this will be discussed in detail later).
What if the Report Against Me Was Deemed "Indicated?" Can I Appeal?
Although currently being subject to legal scrutiny, Pennsylvania law does not require a pre-deprivation hearing before the indicated report goes into the registry, i.e., an alleged perpetrator's name and other personal information is added to the ChildLine and Abuse Registry even before an opportunity to be heard at an evidentiary hearing is given.
"Within 90 days of being notified of the status of the report, one must 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." (23 Pa.C.S. § 6341(a)(2))
If an administrative review is requested, the Department of Human Services must within 60 days send notice of the secretary’s decision. If the secretary refuses a request to amend or expunge an indicated report, or does not act within the prescribed time, the alleged perpetrator has the right to appeal and request a hearing before the secretary – this request must be made within 90 days of notice of the initial decision. Upon receiving a request for a hearing, the Department must within 10 days schedule the hearing. Unless a continuance is agreed upon by all parties, the hearing must be held before the Bureau of Hearings and Appeals within 90 days of the date the scheduling order is entered.
Administrative Hearings in ChildLine Cases
Prior to the hearing, the Department or county agency must provide a person (and hopefully his or attorney) making an appeal with evidence gathered during the child abuse investigation (subject to certain confidentiality laws). The hearing is similar to a criminal trial, but different in several aspects. The evidence, including live testimony from all parties, is heard by an Administrative Law Judge (AJL), who governs all aspects of the case under Administrative Agency Law. The Department or county agency bears the burden of proving by substantial evidence that the report should remain categorized as an indicated report. However, given that the definition of substantial evidence is "evidence which outweighs inconsistent evidence…," the appellant implicitly has the burden of assuring that all inconsistent evidence is presented before the ALJ.
Substantial Evidence Burden in ChildLine Cases
As opposed to a criminal trial where the burden of evidence is "beyond a reasonable doubt," the burden of evidence in a ChildLine administrative hearing is the much-less-burdensome standard of "substantial evidence," which is defined as "evidence that outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion" (23 Pa.C.S. § 6303). Generally speaking, the standard of proof is lower because a finding of "indicated" does not automatically yield criminal liability, and because the law was designed to err on the side of caution in regard to potential victims of child abuse. As mentioned previously, the Department or county agency bears the burden of providing evidence that outweighs inconsistent evidence, but the appellant implicitly bears the burden of producing or eliciting through testimony the inconsistent evidence.
Inconsistent Evidence in ChildLine Cases
The key focus for an appellant's counsel is producing "inconsistent evidence," but this term is not explicitly defined under 23 Pa.C.S. § 6303. Although it is commonly understood to mean evidence that does not stay the same throughout, it's actual meaning is much more expansive. After all, if the only evidence that was to be considered was that which has been inconsistent, other evidence such as consistent lies and impossibilities would be ignored. Instead, after examining numerous appellate court cases, this author opines that this term might be better defined as all evidence that conflicts with the County's evidence, whether produced from the County's evidence or produced independently by the appellant (see generally A.P. v. Dep't of Pub. Welfare, 98 A.3d 736, 2014).
The overarching goal of the Administrative Law Judge (AJL) is to judge the credibility of allegations. In cases where these is no physical evidence, the law requires him or her to consider all of the child's testimony, not just the selective parts that described the alleged abuse (G.H. v. Dep't of Pub. Welfare (In re S.H.), 96 A.3d 448, 2014, Appeal Denied). In doing so, he or she might consider the following factors in the analysis: demeanor, taint (adult influence), motivation, lapses in memory, falsehoods, implausibilities, inconsistencies, contradictions, impossibilities, vagueness of testimony, opposing testimony and reputation evidence. At the conclusion of the case, the ALJ is tasked with utilizing a "weighing dynamic" in order to determine whether the Agency has demonstrated by substantial evidence that the report should be maintained (see G.V. v. Dep't of Pub. Welfare, 625 Pa. 280, 2014). The ALJ's decision must be rendered, filed and served upon the parties within 45 days of the date upon which the proceeding or hearing is concluded, with certain exceptions.
What are My Options if the ALJ Maintains the Report?
Under 23 Pa.C.S. § 6341(g), parties have "15 calendar days from the mailing date of the final order of the Bureau of Hearings and Appeals to request the secretary to reconsider the decision, and have 30 calendar days from the mailing date of the final order of the Bureau of Hearings and Appeals to perfect an appeal to Commonwealth Court." It is imperative to understand that the 15-day time limit for filing for reconsideration is included in the 30 days provided to perfect an appeal to the Commonwealth Court.
It's unfortunate that Pennsylvania law allows potentially innocent people to be placed on a list of suspected child abusers even before given the opportunity to testify at an evidentiary hearing. Although the ChildLine Registry is not open to the public as is the Megan’s Law registry, it is made available to professional agencies and is also used when issuing certain clearances for employment.
Although the outcome of such a hearing does not automatically trigger criminal penalties or even charges, all evidence that is produced can in fact be used in a subsequent criminal case should one be started. Therefore, one cannot afford to navigate this process without the direction of an attorney who is highly experienced with these types of cases. Premier Defense Group approaches these hearings, despite being civil in nature, with the same level of commitment as it does a criminal case.
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