Caroline G. Donato

An individual accused of child abuse, whether sexual or physical, is up against more than the criminal justice system. An initial accusation of child abuse travels through a ChildLine hotline, which taps the shoulder of the local district attorney’s office and the corresponding county child protective services (“CPS”) agency.¹ Both legal bodies initiate investigations which can yield different yet devastating results for the accused, as the ChildLine process differs greatly from its criminal counterpart.² Unlike the Child Protective Services Law (CPSL) system, the roles are clear in a typical criminal case: law enforcement investigates the allegations, attorneys litigate the facts and legal issues, and ultimately a jury or judge decides the outcome of a case. In the CPSL system, the allegations are investigated by CPS caseworkers and the outcome is determined by the county agency without any involvement of a court system, and the accused must appeal the CPS outcome to finally have their day in court.³ Unlike the criminal system where due process applies prior to any adjudication, the CPSL arena withholds due process until after CPS makes a determination and the accused petitions to be heard on appeal. The devastating consequences of CPS investigations often go undetected and are overshadowed by the criminal investigation until it is too late.

By way of background, the CPSL was expanded in 2014 to give broader protection to children as a result of the Jerry Sandusky Penn State child abuse scandal.⁴ Fit with worthy intentions, the CPSL delegates authority to CPS agencies within the Pennsylvania Department of Human Services (“DHS”) to brand the accused as a “perpetrator” of child abuse and place them on the ChildLine Registry after a quick investigation.⁵ Under the CPSL, the agency investigates, determines the outcome and imposes consequences within a span of 60 days, in contrast to the criminal justice system where allegations are investigated by law enforcement and challenged by attorneys prior to the deprivation of

personal liberties. This means that, upon a report of suspected child abuse to ChildLine, an individual can be labeled a perpetrator and put on the ChildLine Registry without the opportunity to defend themselves in court, and that same individual will remain on the ChildLine Registry as a perpetrator of child abuse until their record is expunged, if ever. Being listed on the ChildLine Registry can have detrimental consequences for employment, especially in fields involving children.⁶ It can also have negative consequences for an individual’s reputation and their parental rights.

The unique procedure of CPSL cases has faced criticism over the years for the lack of due process available before a determination is made, but without much progress to date. In 2001, Commonwealth Court Senior Judge Rochelle Friedman voiced concerns over this process in a dissenting opinion stating, “It shocks my conscience that the [CPSL] would allow the investigating caseworker to render a de facto adjudication that is adverse to an individual’s reputation without an independent adjudicator having had the opportunity to consider the investigator’s evidence of child abuse in accordance with established procedures of due process.”⁷ Additional progress is incrementally accomplished by the underlying effort and advocacy of the criminal defense bar. This article discusses the systemic flaws in the CPSL, unveils the process for what it has become, and provides fellow defense attorneys with the insight needed to defend and protect clients from the collateral consequences of any child abuse accusation.

The current state of the ChildLine process is flawed, in large part, because there is no standardized decision-making and no court oversight of the initial decision.⁸ Within a certain timeframe, the accused may seek review or appeal of that CPS decision, but they are not afforded counsel if indigent.⁹ Many people facing CPS accusations do not realize that they have been labeled as a perpetrator of child abuse until after the window to seek review or to appeal expires.

The CPSL system often fails because of its own infrastructure, and it is up to competent and persistent lawyers to fix the failure, which is an onerous, time consuming, and expensive process.¹⁰ The initial decision-making authority of CPS to put someone on the ChildLine Registry, without any court oversight, ignites debate over the constitutional fairness of the entire system. CS’s ability to place an individual on the ChildLine Registry without court oversight before filing an appeal infringes upon an individual’s rights to due process under the Fifth and Fourteenth Amendments to the United States Constitution and under the Pennsylvania Administration Code, as well as the right to reputation under Article I, Section 1 of the Pennsylvania Constitution.¹¹

Time Limits on CPS Investigations

Mandated reporters such as teachers, therapists, or doctors as well as others must make a referral to ChildLine when they have reasonable cause to suspect that a child is a victim of child abuse.¹² A mandated reporter has immunity from civil and criminal liability that might otherwise result from making a report of suspected child abuse and, what is more, the good faith of that mandated reporter shall be presumed.¹³ However, failure to report suspected abuse as a mandated reporter carries serious criminal sanctions¹⁴ and, as a result, there may be a tendency for mandated reporters to err on the side of caution when considering whether or not to report an allegation.

The CPSL requires swift action on the part of county agencies.

As soon as a referral is made to the ChildLine hotline, a person is placed on the ChildLine Registry with their determination marked as “pending.” ¹⁵ County caseworkers are required to start an investigation into reports of child abuse within 24 hours of a referral and to finish their investigation within 60 days.¹⁶

Following the 60-day investigation period, the investigation is either “Unfounded” or “Indicated.” An “Indicated” report means that the county CPS agency determined there is “substantial evidence” of child abuse and that the alleged perpetrator should remain on the ChildLine Registry.”¹⁷ An “Indicated” status can become “Founded” upon a collateral court making a finding of fact that abuse occurred. ¹⁸ The collateral findings of abuse include: guilty plea based on the same underlying factual circumstances as the CPS determination; finding of abuse in a dependency case based on the same underlying factual circumstances as the CPS determination; ARD admission based on the same underlying factual circumstances as the CPS determination; finding of abuse in a juvenile delinquency case based on the same underlying tactual circumstances as the CPS determination; and a final protection from abuse order when based on the same underlying factual circumstances as the CPS determination and issued after the accused defends against the allegations at a hearing. ¹⁹

In a criminal case, there is no time limit to investigate aside from a corresponding statute of limitations.²⁰ The investigative time limit imposed on county CPS agencies often results in the CPS agency deciding an outcome prior to law enforcement determining whether there is probable cause that a crime occurred. The 60-day CPS investigation period practically limits a CPS caseworker’s ability to thoroughly investigate allegations of child abuse and may result in CPS erring on the side of caution to protect children by making an “Indicated” determination. That “Indicated” determination must be appealed in order to introduce due process in the mix.

The burden of proof in a CPS “Indicated” determination is if the Agency finds there is “substantial evidence” of abuse. Substantial evidence is defined as: evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion.²¹ In other words, to conclude that there is substantial evidence that abuse occurred, the evidence consistent 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 request an administrative or secretary review or to appeal the decision to the Bureau of Hearings and Appeals (“BHA”). ²³ This 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

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-by-case 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 CPS 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 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 98%³³ of “Indicated” reports that reached a hearing and were ultimately decided before the BHA after an administrative or secretary review.³⁴ 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.

Due Process – Only for Teachers?

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 teaching licenses and deferred further revision of the CPSL to the General Assembly. ⁴³

Racial Socioeconomic Disparity in “Indicated” Reports

A study conducted by the University of Pennsylvania Carey Law School and the Temple University Beasley School of Law found a disproportionate impact of the CPSL on young, Black Pennsylvanians.⁴⁴ Black Pennsylvanians ⁴⁵ are represented 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 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

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 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

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 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 His 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

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

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

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 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

Conclusion

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.

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NOTES:

¹ 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”).

² If the suspected child abuse is alleged to have been committed by a perpetrator and the behavior constituting the suspected child abuse may include a violation of a criminal offense, the appropriate county agency and law enforcement officials shall jointly investigate the allegation. See 23 Pa.C.S.A. § 6334.1(2).

³ 23 Pa.C.S.A. § 6368.

⁴ 23 Pa.C.S.A. §§ 6301-6386; Diana Spurlin, Sandusky and Beyond: The Ever-Changing Landscape of Child Abuse Legislation, FOR THE DEFENSE Vol. 1, Issue 4 (Dec. 2016).

⁵ 23 Pa.C.S.A. §§ 6303, 6368(n).

⁶ 23 Pa.C.S.A. § 6341(a).

⁷ K.J. v. Dept. of Pub. Welfare, 787 A.2d 609, 616 n.9 (Pa. Cmwlth. 2001)(Friedman, J. dissenting).

⁸ 23 Pa.C.S.A. §6368.

⁹ Id. The accused may elect to have an attorney present for interviews with CPS and administrative hearings, but one will not be appointed in the event the accused cannot afford an attorney.

¹⁰ The Commonwealth Court recently held that procedural due process required teachers to be given a predeprivation hearing before being listed in state child abuse registry. S.F. v. Pa. Dept. of Hum. Servs., 298 A.3d 495 (Pa. Cmwlth. 2023).

¹¹ Petition for Review at 4, 29-35, A.W. v. Pa. Dep’t of Hum. Servs., No. 396 MD 2022 (Pa. Cmwlth. Aug. 10, 2022); see also S.F. v. Pa. Dept. of Hum. Servs., 298 A.3d at 526; U.S. Const. amends. V, XIV; 2 P.S. §504; Pa. Const. art. 1 § 1.

¹² 23 Pa.C.S.A. § 6311.

¹³ 23 Pa. C.S.A. § 6318.

¹⁴ 23 Pa.C.S.A. § 6319.

¹⁵ Samantha Melamed, Thousands in Pa. Are Put on a Child Abuse Registry with No Hearing. They Say It’s Ruining their Lives, THE PHILADELPHIA INQUIRER (Nov. 18, 2020).

¹⁶ 23 Pa.C.S.A. § 6368(b).

¹⁷ 23 Pa.C.S.A. §§ 6303(a); 6368(n).

¹⁸ 23 Pa.C.S.A. § 6303.

¹⁹ Id.

²⁰ There is no limitation for allegations involving sexual abuse, and a limitation of five years for all major offenses. See 42 Pa.C.S.A. §§ 5551; 5552.

²¹ Id.

²² See R.J.W. v. Dept. of Hum. Servs., 139 A.3d 270, 282 (Pa. Cmwlth. 2016) quoting In re S.H., 96 A.3d 448, 453 n.4 (Pa. Cmwlth. 2014).

²³ 23 Pa.C.S.A. § 6368(f)(6).

²⁴ 23 Pa.C.S.A. § 6341(d).

²⁵ 23 Pa.C.S.A. § 6341(c.1).

²⁶ https://capacity.childwelfare.gov/sites/default/files/media_pdf/decision-making-welfare-cp00051_0.pdf#Challenges%20in%20Child%20Welfare%20Decision-Making.

²⁷ 23 Pa.C.S.A. § 6361(b).

²⁸ https://www.governmentjobs.com/careers/pabureau/jobs/newprint/2353608.

²⁹ 23 Pa.C.S.A. § 6347(a).

³⁰ Hearings before the BHA are heard and decided by attorneys serving as an administrative law judge or hearing officer. See 23 Pa.C.S.A. § 6341(c.2).

³¹ https://www.dhs.pa.gov/docs/publications/pages/child-abuse-reports.aspx.

³² https://www.dhs.pa.gov/docs/OCYF/Documents/2022-PA-CHILD-PROTECTIVE-SERVICES-REPORT_8-102023_FINAL.pdf at p. 25. Of note, the authors of this article were involved in 4 BHA appeals in 2022, all of which resulted in overturned “Indicated” reports.

³³ https://www.dhs.pa.gov/docs/OCYF/Documents/2022-PA-CHILD-PROTECTIVE-SERVICES-REPORT_8-102023_FINAL.pdf at p. 25. While the statistics appear to show great success in the area of administrative review and appeals, the presentation of data is misleading unless carefully reviewed. In 2022, a total of 1,833 cases were appealed through an administrative review, secretary review, or directly to the Bureau of Hearings and Appeals. Only cases that are appealed to the BHA are heard by an administrative law judge or hearing officer. Of the 268 cases heard by the BHA, 181 remain pending without a decision, 21 were dismissed, and 5 were withdrawn. This leaves 61 cases actually decided by the BHA in 2022. Of the 61 decisions decided by the BHA in 2022, sixty “Indicated” reports were overturned and only one was upheld.

³⁴ https://www.dhs.pa.gov/docs/publications/pages/child-abuse-reports.aspx.

³⁵ Id.

³⁶ 23 Pa.C.S.A. § 6368(e).

³⁷ https://www.dhs.pa.gov/KeepKidsSafe/Clearances/Pages/PA-Child-Abuse-History-Clearance.aspx

³⁸ 23 Pa.C.S.A. § 6344(b)(2).

³⁹ S.F. v. Pa. Dep’t of Hum. Servs., 298 A.3d 495, 515 (Pa. Cmwlth. 2023).

⁴⁰ S.F., 298 A.3d at 503.

⁴¹ Id. at 511-12.

⁴² Id. at 503.

⁴³ S.F., 298 A.3d at 526.

⁴⁴ https://www.law.upenn.edu/live/files/12705-pathways-to-poverty-how-the-childline-andabuse#:~:text=This%20report%20seeks%20to%20highlight,trapping%20Black%20families%20in%20poverty.

⁴⁵ The term “Black Pennsylvanians” is not the preferred verbiage used by the authors of this article, but the term was initially used by the researchers at the University of Pennsylvania as the study did not include all people of color. For consistency with the study, we have used the same language.

⁴⁶ Id. p. 2.

⁴⁷ Id. p.12 (As noted in the study, “by conflating poverty and neglect, typical deprivations that low-income families more commonly confront, such as inadequate food, housing, and medical care, become grounds for child abuse findings. The current system accuses poor parents of neglecting their children for exactly the same behavior that is considered perfectly acceptable if wealthier parents engage in it.” ); 23 Pa.C.S.A. § 6303.

⁴⁸ Id. p. 12 citing DOROTHY ROBERTS, Torn Apart: HOW THE CHILDWELFARESYSTEM DESTROYS BLACK FAMILIES—AND HOW ABOLITION CAN BUILD A SAFER WORLD, , BASIC BOOKS 66, 70 (2022).

⁴⁹ Id. p. 13, 23 Pa.C.S.A. §§ 6303-6383.

⁵⁰ Case law is non-existent for prosecuted claims false reports in the context of child custody, the closest relevant example is in A.C. v. J.B., 296 A.3d 589 (Pa. Super. 2023), an unpublished child custody decision which references a father’s claim that his child was coached by the child’s mother to make a false report of child abuse, however no criminal investigation took place.

⁵¹ 18 Pa.C.S.A. § 4906.1.

⁵² 23 Pa.C.S.A. § 6302(b); Commonwealth v. Krankowski, 304 A.3d 1275, 1279 (Pa. Super. 2023).

⁵³ Id.

⁵⁴ Id. at 1277.

⁵⁵ Id. at 1276.

⁵⁶ Petition for Review at 9-10, A.W. v. Pa. Dep’t of Hum. Servs., No. 396 MD 2022 (Pa. Cmwlth. Aug. 10, 2022).

⁵⁷ Id. at 36-54.

⁵⁸ Id. at 54-56.

⁵⁹ Id. at 57-60.

⁶⁰ Id. at 58.