IN THE COMMONWEALTH COURT OF PENNSYLVANIA

K.G., :

Petitioner :

:

v. : CASE SEALED

: No. 1101 C.D. 2017

: Argued: April 12, 2018

Department of Human Services, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY

PRESIDENT JUDGE LEAVITT FILED: May 18, 2018

K.G. (Mother) petitions for review of an order of the Secretary of 

Human Services denying her request for reconsideration of a decision of the 

Department of Human Services’ (Department) Bureau of Hearings and Appeals 

(Bureau) to dismiss her appeal of an indicated report of child abuse. The narrow 

issue before this Court is whether the Secretary erred or abused his discretion in 

denying reconsideration of the Bureau’s dismissal order. Because Mother does not 

address the reason for the Bureau’s dismissal, i.e., her failure to respond to a rule to 

show cause, we must affirm. 

The county Office of Children, Youth and Families filed an indicated 

report of child abuse with the ChildLine and Abuse Registry.1 The report named 

Mother as a perpetrator of physical abuse of her four-year-old child, J.L. (Child). 

 

1 ChildLine is a unit of the Department that operates a statewide toll-free system for receiving and 

maintaining reports of suspected child abuse, along with making referrals for investigation. 55 Pa. 

Code §3490.4. The ChildLine Registry is maintained in accordance with the Child Protective 

Services Law, 23 Pa. C.S. §§6301-6386.
2

Mother timely requested expunction of the indicated report and a hearing. An 

administrative law judge (ALJ) was assigned to hear Mother’s appeal.

While her appeal was pending, Mother was charged with simple 

assault, 18 Pa. C.S. §2701(a)(1), and harassment, 18 Pa. C.S. §2709(a)(1). On 

February 14, 2017, Mother entered a plea of guilty to the harassment charge; the 

assault charge was nolle prossed. Based on Mother’s guilty plea, the Office of 

Children, Youth and Families notified the Department that Mother’s ChildLine 

report should be changed from indicated to founded. On April 17, 2017, the ALJ 

issued a rule to show cause to the Office of Children, Youth and Families to provide 

documentation, including relevant court orders, to support the founded report. On 

April 26, 2017, the Office of Children, Youth and Families provided the documents 

from Mother’s criminal proceeding, including the information charging her with 

simple assault and harassment and a copy of the trial court’s order sentencing Mother 

to pay a $300 fine for the harassment offense. Mother asserts that she never received

her copy of these documents and, thus, believed they were still outstanding.

On May 4, 2017, the ALJ issued a rule to show cause to Mother to 

explain

why the above-captioned appeal should go to a hearing rather 

than be dismissed as the status of the above-captioned ChildLine 

report was changed from indicated to founded. [Section 6341 of 

the Child Protective Services Law,] 23 Pa. C.S.A. [sic] § 6341 

affords appellants a right to timely appeal indicated reports but 

the statute does not afford such a right with respect to founded 

reports.

Certified Record (C.R.), Item No. 7 (emphasis added). The rule directed Mother to 

respond to the rule within 30 days with “a written response that specifically 

addresses the above concern including a concise explanation detailing the basis for 
3

the party’s argument that the appeal should not be dismissed.” Id. The rule 

specifically stated that Mother’s “failure to timely respond in writing will result in 

the dismissal of the above-captioned appeal.” Id. Mother did not respond and, on 

June 14, 2017, the Bureau dismissed her appeal.2 Mother did not petition for this 

Court’s review of the Bureau’s dismissal order.

On June 27, 2017, Mother filed an application for reconsideration of 

the Bureau’s June 14, 2017, order with the Secretary of Human Services. Mother’s 

sole argument for reconsideration was that she was entitled to an expunction hearing 

because the Office of Children, Youth and Families improperly changed her 

indicated report to founded based solely upon her conviction for harassment. On 

July 11, 2017, the Secretary issued an order denying reconsideration “for the reasons 

stated by the Bureau of Hearings and Appeals in its Final Administrative Action 

Order.” C.R. Item No. 10. On August 10, 2017, Mother petitioned this Court to 

review the Secretary’s order.

On appeal, Mother argues that the conduct for which she was convicted 

did not establish the level of bodily injury necessary to satisfy the definition of child 

abuse under the Child Protective Services Law, 23 Pa. C.S. §§6301-6386. Thus, her 

conviction could not serve as a legal basis for automatically changing the child abuse 

 

2 The Bureau’s order stated:

AND NOW, having received documentary evidence demonstrating that on 

February 14, 2017 ... [Mother] was sentenced after pleading guilty to Harassment 

based on the same factual circumstances referenced in the above-captioned founded 

report, and after [Mother] having been afforded an opportunity to demonstrate that 

said conviction was not related to the above-captioned allegation of child abuse or 

that the outcome should not result in dismissal of this matter on the basis of 

collateral estoppel, the above-captioned appeal is hereby DISMISSED in 

accordance with 23 Pa. C.S.A. [sic] § 6303 as the report is founded.

C.R. Item No. 8.
4

report from indicated to founded. Mother asks this Court to vacate the Secretary’s 

order denying reconsideration and remand for a hearing.

The Department responds that Mother’s argument on the merits of the 

decision of the Office of Children, Youth and Families is beside the point. Mother 

did not respond to the rule to show cause or timely petition for review of the Bureau’s 

dismissal of her appeal. The only issue properly before this Court is whether the 

Secretary erred or abused his discretion in denying Mother’s request for 

reconsideration, and Mother does not address the merits of the Secretary’s decision.

An agency’s decision to grant or deny a request for reconsideration is a 

matter of discretion and will be reversed only where that discretion is abused. Keith 

v. Department of Public Welfare, 551 A.2d 333, 336 (Pa. Cmwlth. 1988). An abuse 

of discretion will only be found where the evidence shows there was fraud, bad faith, 

capricious action or abuse of power. J.B. Steven, Inc. v. Department of 

Transportation, 627 A.2d 278, 280 (Pa. Cmwlth. 1993) (citing Keith, 551 A.2d at 

336). Reversal of a denial of reconsideration requires a remand because we do not 

decide the merits.

In her brief, Mother argues that pleading guilty to the summary offense 

of harassment did not authorize the filing of a founded report in the ChildLine 

Registry. The Bureau dismissed her appeal of the indicated report because she did 

not reply to the rule to show cause. Mother did not petition for review of the 

Bureau’s dismissal order.3 The only question is whether the Secretary erred or 

 

3 As this Court noted in Keith, a party aggrieved by a Bureau order has four options: (1) do nothing; 

(2) appeal that order to this Court within 30 days; (3) seek reconsideration from the Secretary 

within 15 days; or (4) seek reconsideration from the Secretary within 15 days and appeal the final 

order to this Court within 30 days. Keith, 551 A.2d at 335. Those seeking review of the merits of 

a Bureau adjudication must file a petition for review with this Court. Id. at 337 n.8. Mother did 

not do so, making an appeal of the merits of the June 14, 2017, order untimely.
5

abused his discretion in denying reconsideration of the Bureau’s dismissal on 

grounds that Mother did not respond to the rule to show cause. Neither Mother’s 

petition for review nor her brief address this question. Accordingly, Mother’s 

challenge to the validity of the Secretary’s decision has been waived. See City of 

Philadelphia v. Workers’ Compensation Appeal Board (Ford-Tilghman), 996 A.2d 

569, 572 (Pa. Cmwlth. 2010) (noting that issues not raised in a party’s petition for 

review and brief are deemed waived).

Notably, the Department also addresses the question of whether 

Mother’s guilty plea established the basis for a founded report. The harassment 

charge was for “Harrassment/Strike, Shove, Kick, Etc.” C.R. Item No. 6, at 6. The 

criminal information further stated:

The Actor did, with intent to harass, annoy or alarm another 

person, namely, [Child] (DOB 1/18/12), strike, shove, kick 

and/or otherwise subject[] said person to physical contact or 

attempted or threatened to do the same by striking said victim 

multiple times.

Id. The Department observes that excessive spanking constitutes child abuse. See, 

e.g., J.S. v. Department of Public Welfare, 565 A.2d 862, 864 (Pa. Cmwlth. 1989). 

According to the Department, the actions that supported the conviction for the 

summary offense of harassment constituted child abuse. We will not address the 

Department’s position because it is beyond the scope of the instant appeal.

As this Court has held, the Child Protective Services Law does not give 

perpetrators named in a founded report the right to appeal that report to the Bureau. 

D.M. v. Department of Public Welfare, 122 A.3d 1151, 1155 n.3 (Pa. Cmwlth. 2015). 

However, the perpetrator has a remedy under the Administrative Agency Law, 2 Pa. 

C.S. §§501-508, 701-704, to a determination of “whether or not the underlying 
6

adjudication supports a founded report that the named perpetrator is responsible for 

the abuse.” J.G. v. Department of Public Welfare, 795 A.2d 1089, 1093 (Pa. 

Cmwlth. 2002). The indicated report naming Mother as a perpetrator has been 

dismissed, but this does not foreclose Mother’s ability to challenge the founded 

report under the aegis of the Administrative Agency Law.

4

 That is the appropriate 

vehicle for determining whether the adjudication of the summary offense of 

harassment by Mother constituted an adjudication of child abuse by Mother. That 

question, which requires the development of a record, is not before us in this appeal.

For all of the reasons discussed above, we affirm the Secretary’s order 

denying reconsideration.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

 

4 The General Rules of Administrative Practice and Procedure, Title 1 Pennsylvania Code, Part II, 

Chapters 31-35, would apply to an administrative hearing on a founded report under the 

Administrative Agency Law.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

K.G., :

Petitioner :

:

v. : CASE SEALED

: No. 1101 C.D. 2017

Department of Human Services, :

Respondent :

O R D E R

AND NOW, this 18th day of May, 2018, the order of the Secretary of 

Human Services in the above-captioned matter dated July 11, 2017, is AFFIRMED.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge