R. v. Com., Dept. of Public Welfare

• Decision Date: 04 January 1994
• Citation: 636 A.2d 142,535 Pa. 440
• Parties: R., Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF PUBLIC WELFARE and Montgomery County Office of Children and Youth, Appellees.
• Court: Pennsylvania Supreme Court

Page 142

636 A.2d 142

535 Pa. 440

R., Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF PUBLIC WELFARE and Montgomery County Office of Children and Youth, Appellees.

Supreme Court of Pennsylvania.

Argued Jan. 25, 1993.

Decided Jan. 4, 1994.

Jean B. Green, Norristown, for "R."

Kathleen Grogan, Harrisburg, for D.P.W.

Stephen P. Imms, Jr., Ambler, for Mtgy. Co. Office of Children & Youth.

Stephen T. O'Neill, Guard. Ad Litem.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.

OPINION

NIX, Chief Justice.

In this appeal, Appellant R. raises several constitutional challenges to the procedures that were followed when he was denied his request to expunge his record of a report indicating that there was substantial evidence showing that he committed child abuse. For the reasons that follow, we reject his constitutional claims.

This case arose out of the following set of facts. In January 1987, the Montgomery County Office of Children and Youth received a report of suspected child abuse alleging that R. sexually abused his daughter. A caseworker investigated the report by interviewing the child and her mother, but R. refused to be interviewed. The caseworker also obtained a psychiatric, psychological and medical evaluation of the child. Based upon the caseworker's investigation, the Montgomery County Office of Children and Youth filed its report classifying the matter as "indicated" for child abuse. ¹

Initially, R. wrote to the Department of Public Welfare (DPW) to request an expungement of the "indicated" report. The DPW denied that request. Soon thereafter, R. sought relief through the statutorily provided administrative channels by filing an appeal with the DPW's Office of Hearings and Appeals.

There were five days of hearings during which the child, her then-treating psychiatrist, and the agency's consultant testified. The child gave her testimony in camera over R.'s objections. The first four days of hearings were presided over by Hearing Examiner John F. Liebau, while Hearing Examiner Thomas G. Devlin presided over the final day of hearings. Hearing Examiner Devlin also issued the Adjudication and Recommendation that the request for expungement be denied. That report was adopted in full by the Office of Hearings and Appeals.

A divided panel of the Commonwealth Court affirmed the Department's adjudication. Thereafter, R. sought allowance for appeal, which was granted with respect to two issues. The first is whether R. was denied due process when a hearing examiner made credibility determinations of witnesses he did not see or hear testify. The second is whether permitting his daughter to testify in camera denied R. any constitutional rights to confront a witness. Upon review of R.'s arguments addressing these two issues, we affirm the judgment below.

We begin by considering the first issue. Appellant argues that, because Hearing Examiner Devlin neither saw nor heard the testimony of witnesses who appeared during the first four days of hearings, he should not be permitted to decide the case and make recommendations. Appellant supports this contention by relying on Commonwealth ex rel. Davis v. Davis, 268 Pa.Super. 401, 408 A.2d 849 (1979). In Davis, the Superior Court explained that when facts, and inferences that can be drawn from them, depend on the credibility of the testifying witnesses, a decision can only be made by a judge before whom the witnesses appeared. Id. at 403, 408 A.2d at 850. However, R.'s reliance on Davis is misplaced because that case involved a judicial proceeding, while the instant matter involves an administrative hearing, which must comply with a different set of standards to satisfy due process requirements.

Those standards were cogently articulated in Peak v. Unemployment Compensation Bd. of Review, 509 Pa. 267, 501 A.2d 1383 (1985). In Peak, the Unemployment Compensation Board of Review rejected a referee's decision to award benefits to a claimant, and the claimant challenged the Board's action as a violation of due process. The claimant argued that, because the referee's decision was based on the resolution of a question of credibility, the Board, which did not hear the evidence, could not reject the referee's decision without explaining its reasons for doing so. We disagreed.

First, we emphasized that the Board, not the referee, was statutorily designated as the ultimate finder of fact. Id. at 276-77, 501 A.2d at 1388 (citing Miller v. Unemployment Compensation Bd. of Review, 45 Pa.Commw. 539, 541, 405 A.2d 1034, 1036 (1979)). We said that the Legislature could constitutionally confer this power on the Board as long as there was sufficient protection against the risk of an arbitrary decision by the Board to reverse any referee's assessment of testimonial credibility. Id. at 277, 501 A.2d at 1388-89 (citing Moore v. Ross, 687 F.2d 604 (2d Cir.1982), cert. denied, 459 U.S. 1115, 74 L.Ed.2d 969 (1983)). In concluding that sufficient safeguards existed to protect the claimant in Peak, we said that

we perceive no due process violation in permitting the Board to reassess a referee's credibility determinations, so long as the Board is subject to judicial review on the substantial evidence test and is required to explain its decision in sufficient detail to permit meaningful appellate review.

Id. at 278, 501 A.2d at 1389. R. had the benefit of both safeguards in his expungement hearings.

We begin by noting that the Office of Hearings and Appeals functions as the finder of fact in expungement hearings. It was designated as such by the Secretary of the Department of Public Welfare, 55 Pa.Code § 3490.106(c), who is authorized to appoint a designee to perform her statutorily assigned duties to find facts and decide whether to expunge an indicated report. ²

Because the Office of Hearings and Appeals, not the hearing examiner, is the ultimate finder of fact in this case, it is of no moment that the hearing examiner who issued the Adjudication and Recommendation did not hear the testimony given during the first four days of hearings. The hearing examiners are assistants who are constitutionally permitted to help the agency by taking, sifting through, and analyzing evidence. Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288, 1295 (1936). The critical issue is whether there are sufficient safeguards, as measured by Peak, to protect against arbitrary action by the Office of Hearings and Appeals.

Both conditions articulated in Peak for satisfying due process requirements are met here. First, as with any administrative agency adjudication, a reviewing court must determine, inter alia, whether substantial evidence exists to support the decision. 2 Pa.C.S. § 704. Second, the reasons the Office of Hearings and Appeals denied R.'s request to expunge his record are clear enough to permit meaningful appellate review. The Office summarily adopted the recommendation of Hearing Examiner Devlin, whose nine-page report thoroughly describes the basis for his recommendation. Therefore, we find that R. was not denied due process when the Office of Hearings and Appeals accepted the recommendation of a hearing examiner who presided over one of the five days during which testimony was heard.

Next, we consider R.'s contention that, because his daughter testified in camera, he was denied a constitutional right to confront a witness face-to-face. He supports this claim by relying, in part, on this Court's decisions in Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991), and Commonwealth v. Lohman, 527 Pa. 492, 594 A.2d 291 (1991). However, those cases do not control the instant matter because in each one we discussed the constitutional protections that criminal defendants enjoy under Section 9 of Article I of the Pennsylvania Constitution. ³ That provision is explicitly addressed to "criminal prosecutions." However, R. was not criminally prosecuted; he had his expungement request considered in an administrative hearing. Therefore, Section 9 of Article I does not apply, and R.'s reliance on Ludwig and Lohman is misplaced.

R. also argues that, because he was not permitted to be present when his daughter testified, he was denied his rights to due process as guaranteed by the Fourteenth Amendment to the United States Constitution and Sections 1 and 11 of Article I of the Pennsylvania Constitution. However, none of these three provisions is offended by what occurred here.

We begin by considering the Fourteenth Amendment. It provides, in pertinent part, "nor shall any State deprive any person of life, liberty, or property, without due process of law...." U.S. Const. amend. XIV, § 1. In Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the United States Supreme Court formulated a methodology for assessing whether state action offends the Fourteenth Amendment's due process guarantees. The Court stressed that procedural due process calls for protections tailored to the demands of the particular situation, making it necessary to balance competing interests. Id. at 334, 96 S.Ct. at 902, 47 L.Ed.2d at 33 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). The Court identified three distinct factors that must be considered:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements will entail.

Id. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33 (citing Goldberg v. Kelly, 397 U.S. 254, 263-71, 90 S.Ct. 1011, 1018-22, 25 L.Ed.2d 287 (1970)).

Before proceeding to perform the Matthews analysis, it will be helpful to...