For the Defense - Vol. 8, Issue 3 - 32

Litigating the Expungement Request
The actual hearing in an appeal of an indicated report is like a
bench trial, but with a little more formality. The hearings occur in one
of the BHA regional offices, which are in Pittsburgh, Plymouth, Erie,
Harrisburg, Philadelphia, and Reading. When I say more formality,
I mean the administrative law judge literally reads a script at the
beginning and end of every hearing. The script before the hearing
outlines the Agency's burden, the Appellant's rights, the prohibition
on recording, and the procedure for getting a copy of the transcript.
After the hearing, the script asks the litigants whether they want to
submit written briefs, confirms everyone's address, and again gives
instructions on getting a copy of the transcript.
Of course, the astute practitioner will be more concerned with
what happens between the two scripts. Before we get there, let's
examine what happens before the hearing and the critical filings
for any counsel representing an appellant.
Discovery from the Agency
The county agency that indicated the report is required to
" 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 " absent certain confidentiality
requirements.6
But the rules do not require specific timelines for
this disclosure. Instead, parties are directed to exchange discovery
" as soon as practicable after a hearing date has been scheduled in
order to avoid delay of the hearing date. " 7
It is recommended that counsel for appellants submit a request
for discovery to the solicitor for the county agency concurrent with
an entry of appearance. This can be as simple as a letter request and
need not be in the form of a motion. Unlike criminal law, it would
be extremely unusual to file a pro forma discovery request with the
BHA. Litigants should be prepared to get access to witnesses and
records via subpoena and should consider requesting subpoenas as
soon as the case is scheduled so they are received in time to produce
documents (or a fight over the actual subpoena).
Pre-Hearing Filing
The pre-hearing filing is the second-most important document
in the entire process. After the request for a hearing, the prehearing
filing is the other document that, if not done right, can ruin
your client's chances of an expungement. The pre-hearing filing is
available online.8
The filing itself is not complicated, but to defense attorneys it will
feel intrusive. As defense attorneys, we are used to keeping some
cards close to the chest. As appellants with the BHA, we do not have
this luxury. On the pre-hearing filing, you must disclose all witnesses
you intend to call or even may call, describe what they will testify
to, and attach any documents you plan to use at the hearing. Most
importantly, this document is the only way to request a subpoena
for potential witnesses, which may include caseworkers, doctors,
police officers, etc.
The Administrative Hearing
Now, we are onto the actual hearing. As in a criminal case, the
party with the burden goes first. Appellants do not have any duty
to present evidence or testify. At the hearing, the Agency has the
burden of proving the report meets the definition of abuse in the
CPSL listed in the CY-48 by substantial evidence.9
The hearing, as mentioned above, is very much like a nonjury
trial. The ALJs tend to jump in with questions of their own, and
most take copious notes. Most of these cases are he-said-she-said, so
the main issue is credibility. Thus, the more inconsistencies, delays,
and factual improbabilities an appellant can point out, the better
the chance of success.
Post-Hearing Procedures
After the hearing, litigants can submit written briefs. In thirteen
years of handling these cases, I have submitted briefs less than five
times. The judges are familiar with the law, so unless the record is
convoluted or facts need to be brought together more succinctly, it
is my practice to rest on my closing argument.
You will receive a ruling on the case in, theoretically, sixty days.
Although the 'rule', this is also not standard. Cases usually take four
to nine months to get a decision back. I have had cases take as long
as fifteen months, even after COVID.
If you win and the case is expunged, it will take sixty to ninety days
for DHS to remove the client's name from the statewide registry.
32 For The Defense l Vol. 8, Issue 3
For the Defense - Vol. 8, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 3
