For the Defense - Vol. 9, Issue 2 - 34

with abuse must outweigh any inconsistent evidence and the
reasonable inferences derived therefrom.22
CPS must analyze
evidence and apply the law to the circumstances of the case within
60 days. This combination of a strict timeline without effective
procedural safeguards for the accused to immediately challenge
CPS determinations can yield erroneous and dangerous results. In
a criminal case, when law enforcement files criminal charges the
accused is entitled to challenge the Commonwealth's evidence at
a preliminary hearing where a judge determines if there is prima
facie evidence that the accused committed a crime; but, under the
CPSL, there is no comparable procedural safeguard to challenge
allegations of child abuse. Only after a report is " Indicated " can the
accused demand due process by filing an appeal.
Individuals who have an " Indicated " status have 90 days to
This
request an administrative or secretary review or to appeal the
decision to the Bureau of Hearings and Appeals ( " BHA " ).23
is the only opportunity for the accused to demand and receive
due process-after the damage is already done. In comparison
to criminal procedure, an example of how this process applies in
practice would be to only permit the accused to challenge the
evidence and outcome against them post-conviction. In cases
where there is both an " Indicated " status and criminal charges are
pending, an administrative appeal will be automatically stayed
until the conclusion of the criminal prosecution.24
Individuals who
have a " Founded " status due to a collateral finding of abuse by
a court must submit a court order indicating that the underlying
adjudication that formed the basis of the founded report has been
reversed or vacated to appeal the CPS determination.25
The CPS Process
Due Process - Only for Teachers?
The decision-making process in ChildLine investigations is
systemically flawed. The lack of a standardized process creates
unique challenges for defense attorneys to navigate on a case-bycase
basis. Certain variables influence how cases become Indicated.
For example, allegations of sexual abuse are more frequently
investigated and " Indicated " than any other kind of alleged child
abuse.26
The CPSL delegates decision-making to CPS caseworkers and
their supervisors. The CPSL only requires that county agencies have
" sufficient staff of sufficient qualifications " to fulfill the purposes
of child protective services.27
Qualifications for CPS caseworkers
vary from county to county and there is no standardized training
in areas necessary for conducting investigations. At a minimum,
in addition to some schooling or experience in social services, a
CPS caseworker is required to have 12 college credits in sociology,
social welfare, psychology, gerontology, criminal justice or other
related social sciences.28
The variety of acceptable qualifications
translates to sporadic backgrounds for county CPS caseworkers and
a lack of uniform training. These are the professionals responsible
for determining if substantial evidence of child abuse exists
without court oversight and without due process. From a defense
perspective, it is important to understand this context behind CPS
decision-making in order to prepare for, and have confidence in,
challenging that same decision in a court of law during the appeal.
The Department of Human Services Data Shows that
County CPS Agencies Get it Wrong...A Lot
The CPSL requires the Department of Human Services to produce
annual reports to the Governor and General Assembly with full
statistical analysis of the reports of suspected child abuse and
neglect.29
The results of these reports show that the CPSL system, as
it currently stands, is not working fairly.
When an individual is placed on the ChildLine Registry, that
individual has 90 days to seek an appeal and ask the court to remove
34 For The Defense l Vol. 9, Issue 2
Unlike the Megan's Law Registry, the list of individuals on the
ChildLine Registry is not accessible to the public. Information
related to individuals on the Megan's Law Registry is discoverable
by any person with Internet access, whereas the ChildLine Registry
is maintained by the Commonwealth and a person's status on that
Registry is only revealed by a specific background check through a
Child Abuse Clearance by the Pennsylvania Department of Human
Services.37
Many employees are required to provide their potential
employers with certification from ChildLine as to whether they
are named in the Statewide database as an alleged perpetrator
in a pending child abuse investigation or as the perpetrator of a
" Founded " report or an " Indicated " report.38
For teachers, in
addition to the reputational harm of being listed as a perpetrator
of child abuse, being listed on the ChildLine Registry results in
an employment bar-the most severe form of infringement on
an employee's liberty and property interest associated with their
employment.39
In July of 2023, the Commonwealth Court decided that teachers
facing allegations of child abuse are entitled to a pre-deprivation
hearing to confront and challenge allegations prior to being listed
as a perpetrator of abuse on the ChildLine Registry.40
In S.F. v. Pa.
Department of Human Services, the Commonwealth Court found
that teachers who receive an educator's license have a protected
interest in the practice of their profession and a protected
liberty interest in their reputation.41
While the government has
a paramount interest in preventing child abuse, the government
has an equal interest in not stigmatizing those who are innocent
or wrongfully accused or foreclosing them from employment and
other opportunities prior to being named on an " Indicated " report
of child abuse.42
While the Commonwealth Court officially demands due process
for teachers, the court in S.F. provides little guidance as to what due
process should look like for everyone else. The S.F. court limited its
finding to individuals accused of child abuse who hold professional
them from the ChildLine Registry. The BHA is the administrative
court that adjudicates those appeals, and, after a hearing, either
maintains the individual on the ChildLine Registry or overturns the
CPS agency's " Indicated " determination, thereby removing that
individual from the ChildLine Registry.30
In 2022, there were 61
appeal hearings of " Indicated " reports conducted and completed
throughout the BHA after an administrative or secretary review.31
Of those 61 appeal hearings, 60 CPS agency determinations were
overturned by the BHA and only 1 CPS agency determination was
upheld.32
Stated differently, the BHA overturned approximately
of " Indicated " reports that reached a hearing and were
ultimately decided before the BHA after an administrative or
secretary review.34
98%33
This staggering statistic does not even account
for the number of cases dismissed or withdrawn by CPS prior to the
accused having their day in court, on appeal.35
In 2014, the General Assembly amended the CPSL to require
county CPS solicitors to review CPS determinations before an
" Indicated " status is reached.36
Notwithstanding CPSL's legal
requirements, the practitioner should not assume that the CPS
solicitor will thoroughly review the case at this time. Rather, it
has been the authors' experience that the solicitor may only
provide such a review after the appeal is filed by the accused and
the CPS agency is required to review their evidence with an eye
towards their burden of proof in a court of law. The deadline
of an impending BHA hearing provides an opportunity for the
practitioner to facilitate pre-hearing discussions with the CPS
solicitor, which likewise presents an opportunity to negotiate a
non-pursuit (withdrawal) of the " Indicated " status by CPS before,
or even in the middle of the BHA hearing process.
For the Defense - Vol. 9, Issue 2

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