For the Defense - Vol. 9, Issue 2 - 35

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
Black Pennsylvanians45
teaching licenses and deferred further revision of the CPSL to the
General Assembly.43
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
Racial Socioeconomic Disparity in " Indicated " Reports
A study conducted by the University of Pennsylvania Carey
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
Law School and the Temple University Beasley School of Law
found a disproportionate impact of the CPSL on young, Black
Pennsylvanians.44
are represented on
the ChildLine Registry at nearly twice their proportion in the
general population.46
Specifically, neglect investigations lack clear
benchmarks for determining what is caused by parental inaction,
and CPS caseworkers can conflate issues caused by poverty or a lack
of resources as evidence of neglect, which is a form of child abuse
under the CPSL.47
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
Typical deprivations that low-income families
more commonly experience, such as inadequate food, housing,
and medical care, can become grounds for child abuse findings
instead of providing adequate social services to address those
inadequacies.48
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
This racial disparity extends to the employment consequences
of being listed on the ChildLine Registry. More employers in
Pennsylvania are requiring child abuse clearances, even for positions
not directly involving children, which is required under the CPSL.49
The expanded use of the ChildLine Registry for employment
clearances further exacerbates the negative impact on those listed,
particularly affecting Black communities.
False Reports of Child Abuse
Just as in any false report, false reports of child abuse can be
the product of custody disputes, mental health illnesses, motive,
or issues involving child competency; yet, false reports are rarely
prosecuted.50
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
A person commits the crime of False Reports of
Child Abuse " if the person intentionally or knowingly makes a
false report of child abuse under 23 Pa.C.S. Ch. 63 relating to child
protective services. " 51
A potential explanation for the rarity of
false report prosecutions is that one of the CPSL's main objectives
is to encourage more complete reporting of suspected child abuse
which supports the overall purpose of the CPSL, protecting children
from abuse.52
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
File your client's motion after the
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
5
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
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NOTES:
1
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Conclusion
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the PLSE clients did not know they were being investigated for
child abuse or neglect, other clients did not know their reports had
been Indicated, and some clients could not understand the letters
they received or figure out how to navigate the appeals process.60
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
5
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
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Depending on the county, CPS can also be referred to as Children, Youth
& Families ( " CYF " ), Children & Youth Services ( " CYS " ), or the Department of
Human Services ( " DHS " ).
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In November of 2023, the Superior Court interpreted the criminal
statute to include a parent who knowingly made a false report to
a mandated reporter as the report had the same effect as making
a direct disclosure to ChildLine or law enforcement.53
At trial, the
His
subject child alleged to be the victim of physical and sexual abuse
testified on behalf of the Commonwealth that he had never been
abused, nor had he informed anyone that he had been abused.54
mother, the accused, was convicted following a bench trial for false
reports of child abuse and was sentenced to two years' probation.55
This example shows that false reports can be prosecuted under
extreme circumstances.
Current Litigation Challenging the Constitutionality of
the CPSL
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
Parents and non-profit agencies are suing the Department of
Human Services in a civil action challenging the constitutionality
of the process of immediately placing individuals on the ChildLine
Registry based solely on " Indicated " reports without first providing
the individual with prior notice and a hearing.56
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
About the Author
Click here to view and/or print the
full notes section for this article.
About the Authors
About the Author
Click here to view and/or print the
full notes section for this article.
The individual petitioners include: A.W., a certified nursing
assistant; M.A., a nursing student; W.B., a therapist working with
children in the foster system in New York; T.W., a registered nurse;
and P.L., a single mother seeking employment as a home health
care worker.57
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
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Vol. 4, Issue 4 l For The Defense 9
Vol. 9, Issue 2 l For The Defense 35
Vol. 4, Issue 4 l For The Defense 9
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
Mary E. Lawrence and Caroline
G. Donato are practicing
attorneys at MacElree Harvey,
Ltd. in West Chester. Ms.
Lawrence is an Associate and
Ms. Donato is a Partner in
the firm's Criminal Defense
Practice Group. They focus
their practices on federal and
state criminal defense and
related civil and administrative
matters at both the trial and
appellate levels. Over the years,
independently and as a team,
they have had repeated success
challenging the overreach of
the CPSL and related county
agency actions.
The current state of the CPSL calls for a critical reassessment. Left
unchecked, CPS agencies have a dangerous and detrimental impact
on the reputation and liberty interests of parents, professionals, and
all people who find themselves accused of child abuse. Legislative
reforms are essential to providing meaningful interventions for
children at risk while safeguarding a citizen's rights. Until then, a
strong, competent, and informed defense led by criminal defense
practitioners will have to do.
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
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The non-profit petitioners include La Liga del Barrio, a youth
basketball league, and Philadelphia Lawyers for Social Equity
(PLSE), a legal service organization for low-income residents of
Philadelphia.58
La Liga del Barrio has experienced shortages in
volunteers and parent chaperones due to " Indicated " reports
hindering its ability to serve the children it was created to benefit.
One of the functions of PLSE is to host expungement clinics for
those facing barriers preventing them from working, and an issue of
growing concern is the amount of clients disqualified from working
in jobs such as home health care, senior care, and behavioral health
care due to their placement on the ChildLine Registry.59
Many of
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue2_2024/src/Lawrence_and_Donato_Childline_appeals.pdf https://www.macelree.com/ https://www.macelree.com/
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