Opinion
No. 1213 C.D. 2016
11-21-2017
C.F., IV, Petitioner v. DEPARTMENT OF HUMAN SERVICES, Respondent
Caroline G. Donato, West Chester, for petitioner. Jeffrey P. Hoeflich, Assistant Counsel, Philadelphia, for respondent. Scot R. Withers, West Chester, for intervenor Chester County Department of Children, Youth and Families.
Caroline G. Donato, West Chester, for petitioner.
Jeffrey P. Hoeflich, Assistant Counsel, Philadelphia, for respondent.
Scot R. Withers, West Chester, for intervenor Chester County Department of Children, Youth and Families.
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE J. WESLEY OLER, JR., Senior Judge
OPINION BY JUDGE McCULLOUGHC.F., IV (Petitioner), petitions for review of the July 15, 2016 order of the Secretary of the Department of Human Services (Secretary) denying his motion for reconsideration of the June 21, 2016 order of the Bureau of Hearings and Appeals (BHA). In the latter order, the BHA adopted the recommendation of an Administrative Law Judge (ALJ) to deny Petitioner's appeal contesting, and seeking to expunge, a founded report of child abuse from the ChildLine & Abuse Registry (ChildLine).
In this case, to support the change from an indicated report to a founded report, the Chester County Department of Children, Youth and Families (DCYF) relied solely on the admission that Petitioner made in a juvenile court proceeding and the juvenile court's order adjudicating Petitioner delinquent based upon that admission. , (Reproduced Record (R.R.) at 60a.) All parties agree that in order for the founded report to be legally valid, Petitioner must be a "perpetrator" as that term is defined in Section 6303 of the Child Protective Services Law (Law) to mean "[a]n individual who is 14 years of age or older" at the time of the abuse and/or delinquent act. 23 Pa.C.S. § 6303. On review, the primary issue for us to decide is whether the record of the juvenile court proceedings sufficiently verifies that Petitioner was adjudicated delinquent for conduct that he committed when he was 14 or older.
An admission in juvenile court is the functional equivalent to a guilty plea in a criminal case. In re A.M. , 766 A.2d 1263, 1264 (Pa. Super. 2001) ; see Pa.R.J.C.P. 407.
In the juvenile legal system, a juvenile court finds or adjudicates a juvenile "delinquent" for committing acts that technically constitute a crime, but does not "convict" the juvenile of committing a crime. See generally Commonwealth v. Hale , 85 A.3d 570, 579–83 (Pa. Super. 2014), aff'd 633 Pa. 734, 128 A.3d 781 (2015).
23 Pa.C.S. §§ 6301 –6386.
Petitioner was born on January 10, 2000. On October 7, 2014, DCYF received a report from Petitioner's mother who stated that she observed Petitioner's then 11–year–old sister (Sister) performing oral sex on him the day before. (Finding of Fact (F.F.) at No. 3.) At the time this incident occurred, Petitioner was 14 years old.
On October 8, 2014, the local police conducted an investigation and interviewed Sister. In a juvenile affidavit of probable cause (Affidavit), the police stated that Sister told them that she and Petitioner started to engage in physical conduct of a sexual nature a little over two years ago, when Sister "was at the end of 4th grade." (R.R. at 137a.) Sister further stated that "during the past [2] years the incidents escalated to oral sex between the two." Id. Without providing any specific dates or time frame within this two-year period, Sister said that, in total, Petitioner performed oral sex on her approximately four times, and she performed oral sex on him approximately eight times. According to Sister, the last incident occurred a few days before the interview, on or about October 6, 2014, and this was the only incident of which Sister stated happened on a certain date. Id. Notably, Petitioner would have been under the age of 14 during any incident that occurred prior to January 10, 2014.
On November 18, 2014, the Commonwealth filed a juvenile petition (Petition), alleging that Petitioner committed nine delinquent acts between "June 2012–October 6, 2014." (R.R. at 134a.) More precisely, the Commonwealth asserted that Petitioner committed four counts of involuntary deviate sexual intercourse—graded as a first-degree felony; four counts of indecent assault (complainant less than 13 years of age)—graded as a first-degree misdemeanor; and one count of indecent assault (complainant less than 13 years of age)—graded as a third-degree felony. On the face of the Petition, there were no allegations directly accompanying, or corresponding to, each charge in the Petition on an individual or separate basis. Instead, the conduct that formed the basis of the charges was apparently contained in the lump-sum format of the Affidavit attached to the Petition. However, the Petition and the attached Affidavit neither cross-referenced each other, nor otherwise connected each count to particular instances of misconduct. Consequently, the Petition and the Affidavit did not correlate any specific acts, or the dates or time frame in which they occurred, to any of the nine counts asserted against Petitioner in the Petition. (R.R. at 134a–36a.)
The Rules of Juvenile Court Procedure provide that juvenile proceedings may be commenced by submitting a written petition. See Pa.R.J.C.P. 200(1) ; Pa.R.J.C.P. 231.
"A person commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age." Section 3123(b) of the Crimes Code, 18 Pa.C.S. § 3123(b). The crime of involuntary deviate sexual intercourse can occur when the actor and the victim engage in oral intercourse. Commonwealth v. Zingarelli , 839 A.2d 1064, 1070 (Pa. Super. 2003).
"A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and ... the complainant is less than 13 years of age." Section 3126(a)(7) of the Crimes Code, 18 Pa.C.S. § 3126(a)(7). "Indecent contact" is defined in section 3101 of the Crimes Code as "any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person." 18 Pa.C.S. § 3101.
"An offense under [18 Pa.C.S. § 3126(a)(7) ] is a misdemeanor of the first degree unless any of the following apply, in which case it is a felony of the third degree .... The indecent assault was committed by touching the complainant's sexual or intimate parts with sexual or intimate parts of the person." Section 3126(b)(3)(ii) of the Crimes Code, 18 Pa.C.S. § 3126(b)(3)(ii).
Following the filing of the Petition, ChildLine filed an indicated report of child abuse against Petitioner on December 12, 2014, and issued a notice informing his parents of its determination. (R.R. at 1a–3a; F.F. at No. 1.) In response, Petitioner filed an administrative appeal. By order dated June 15, 2015, the Department of Human Services (Department) automatically stayed the appeal pending the outcome of the juvenile proceedings. (R.R. at 16a; see section 6341(d) of the Law, 23 Pa.C.S. § 6341(d).)
In due course, Petitioner and DCYF filed status updates with respect to the juvenile proceedings, and the records in the juvenile proceedings were released to DCYF. On January 13, 2016, DCYF issued a supplemental report amending Petitioner's report from "indicated" to "founded," based upon his June 1, 2015 admission and adjudication of delinquency in juvenile court. An ALJ then entered an order scheduling a hearing for March 8, 2016; however, the order limited the scope of the hearing to the issues of whether DCYF properly amended the report to founded, and whether the juvenile court's adjudication established that Petitioner was a "perpetrator" for purposes of the Law. The ALJ's order expressly stated that he would not consider the underlying merits at the hearing, i.e. , receive evidence from both parties and make factual determinations regarding the abuse and/or when it had occurred. (R.R. at 23a–28a, 60a–63a, 152a.)
On March 8, 2016, the ALJ convened a telephonic hearing. Petitioner and DCYF each presented argument as to whether the juvenile court's adjudication of delinquency proved that he was 14 at the time of the delinquent act, therefore making him a "perpetrator" under the Law, and whether the record of the juvenile proceedings was sufficient to support the founded report. (R.R. at 158a–97a.)
In an adjudication and recommendation dated June 15, 2016, the ALJ concluded that DCYF correctly changed the status of the report from indicated to founded. In doing so, the ALJ found that the juvenile court adjudicated Petitioner delinquent for committing involuntary deviate sexual intercourse and indecent assault. The ALJ further found that the delinquency proceedings involved the same factual circumstances as the founded report. (F.F. at Nos. 10–11.)
In rejecting Petitioner's assertion that the record failed to demonstrate that he was a 14–year–old "perpetrator" for purposes of the Law, the ALJ reasoned:
Counsel argues that [Petitioner] should not be considered a "perpetrator" because the related delinquency allegations date back to when [Petitioner] was 12 years old and the majority of the allegations occurred prior to [Petitioner] turning 14 years of age, and therefore, [Petitioner] does not meet the definition of "perpetrator."
The definition of "perpetrator" includes an individual who is 14 years of age or older and resides in the same home as the child. However, it is irrelevant as to when the majority of the allegations took place. The only question is whether an incident of abuse occurred after [Petitioner] reached 14 years of age. In this case, the [indicated] report shows that [Petitioner] resided with the subject child and reached 14 years of age on January 10, 2014. The date of the oral report listed on the [indicated report] is October 7, 2014. Additionally, the narrative of the [indicated report] refers to an incident the day prior to the [ ] report date, and the date of incident listed on the [report] is October 6, 2014. Similarly, the affidavit of probable cause refers to an incident in October 2014. Since the [indicated report] and affidavit of probable cause refer to an incident in October 2014, [Petitioner] meets the definition of perpetrator in this case.
(ALJ's Adjudication at 2–3.)
On June 21, 2016, the BHA upheld the ALJ's decision, adopting that decision in its entirety. Thereafter, Petitioner filed a motion for reconsideration, which the Secretary denied by order dated July 15, 2016. Petitioner then filed a timely petition for review from both orders, which is now before this Court. In his appellate brief, Petitioner contends that the record of the juvenile proceedings was inadequate to establish that he was adjudicated delinquent for an act that occurred when he was at least 14 years old.
Because Petitioner filed a timely appeal of the June 21, 2016 merits order of the BHA, our scope of review is limited to a determination of whether constitutional rights have been violated, an error of law was committed, or necessary findings of fact were unsupported by substantial evidence. J.G. v. Department of Public Welfare , 795 A.2d 1089, 1091 n.7 (Pa. Cmwlth. 2002).
Discussion
Under the Law, an "indicated" report is defined, in pertinent part, as "a report of child abuse made pursuant to this chapter if an investigation by the [D]epartment or [DCYF] determines that substantial evidence of the alleged abuse by a perpetrator exists based on ... [t]he child protective service investigation." Section 6303 of the Law, 23 Pa.C.S. § 6303. However, for an "indicated" report to attain the status of a "founded report," there must be a judicial adjudication. 23 Pa.C.S. § 6303 ; D.M. v. Department of Public Welfare , 122 A.3d 1151, 1155 (Pa. Cmwlth. 2015). More specifically, a "founded" report can be sustained with evidence of "a judicial adjudication" in which there is "a finding that [the] child who is a subject of the report has been abused and the adjudication involves the same factual circumstances involved in the allegation of child abuse ." 23 Pa.C.S. § 6303 (emphasis supplied). According to the Law, a "judicial adjudication ... may include ... [a] finding of delinquency under [Section 6341 of the Juvenile Act]. " 23 Pa.C.S. § 6303.
This Court has held that, pursuant to this statutory paradigm, DCYF must demonstrate that the factual circumstances of the judicial adjudication and the indicated report are identical, and, if it does, the report is properly designated as a founded report. D.M. , 122 A.3d at 1155. This is so because the adjudication, in and of itself, normally encompasses "not only a judicial finding that the child has been abused, but that the perpetrator has been found guilty of abuse ...." J.G. v. Department of Public Welfare , 795 A.2d 1089, 1093 (Pa. Cmwlth. 2002). Consequently, "[w]here a founded report is based upon such an adjudication, an appeal would, in most instances, constitute a collateral attack of the adjudication itself, which is not allowed." Id.
Nonetheless, under the Administrative Agency Law, a perpetrator may appeal a founded report for the limited purpose of determining whether or not the underlying adjudication supports the founded report. J.G. , 795 A.2d at 1093. Even if a juvenile is adjudicated delinquent for acts of abuse against a child, that juvenile must have been adjudicated delinquent for the same incident described in the indicated report and for an act that rendered him a "perpetrator" under the Law. See G.M. v. Department of Public Welfare , 957 A.2d 377, 380–81 (Pa. Cmwlth. 2008) ; R.F. v. Department of Public Welfare , 845 A.2d 214, 218 (Pa. Cmwlth. 2004). By way of definition, a "perpetrator" is strictly limited to certain classes of persons, including, as relevant here, "[a]n individual who is 14 years of age or older" when he or she committed the act of abuse. 23 Pa.C.S. § 6303.
2 Pa.C.S. §§ 101 –106, 501 –508, 701 –704.
Here, in the indicated report, DCYF represented that it received a report from Petitioner's mother who stated that on October 6, 2014, she observed Petitioner, then 14, performing oral sex on his Sister, then 11. (R.R. at 2a.) This was the only incident or factual circumstance listed in the report. Id.
However, the record of the juvenile court proceedings was markedly insufficient to prove that Petitioner was adjudicated delinquent for "the same factual circumstance" of this incident. 23 Pa.C.S. § 6303. In the Petition, under the heading "Date/Time of Offense," the affiant recorded: "June 2012–October 6, 2014." (R.R. at 134a.) Significantly, and perhaps evidencing inartful pleading under the Rules of Juvenile Court Procedure, the Petition did not contain any specific allegations that explained the factual basis for each—or any—of the nine counts that Petitioner was alleged to have committed. (R.R. at 134a.) Although the Affidavit was attached to the Petition to describe the factual bases for all the charges, the Affidavit detailed a variety of instances where conduct of a sexual nature had occurred between Petitioner and Sister "during the past two years" and some months prior to that. (R.R. at 137a.) Critically, the Affidavit did not provide a more definite time frame for the individual incidents, except for the one that occurred in October 2014. However, the Petition, in a seemingly impolitic approach to pleading under the Rules of Juvenile Court Procedure, did not link the incident in October 2014 to any particular count(s) in the Petition.
See Pa.R.J.C.P. 332(A) ("When more than one offense is alleged to have been committed ... by a juvenile arising from different delinquent episodes ... each incident shall be described separately in conformity with the requirements of Rule 330(C)(4)-(6)."); Pa.R.J.C.P. 330(6)(a)(i)-(ii) (stating that "[e]very petition shall set forth ... a summary of the facts sufficient to advise the juvenile of the nature of the offense alleged [and] the official or customary citation of the statute and section, or other provision of law which the juvenile is alleged to have violated ...."); see also 42 Pa.C.S. § 6341(b) ("If the court finds on proof beyond a reasonable doubt that the child committed the acts by reason of which he is alleged to be delinquent it shall enter such finding on the record and shall specify the particular offenses, including the grading and counts thereof which the child is found to have committed.").
See Pa.R.J.C.P. 332(A) ("[E]ach incident shall be described separately in conformity with the requirements of Rule 330(C)(4)...."); Pa.R.J.C.P. 330(C)(4) (stating that "[e]very petition shall set forth ... the date the offense is alleged to have been committed.").
Because the numerous sexual incidents outlined in the Affidavit are not coupled or conjoined in any manner with the counts in the Petition, it is unclear what conduct formed the basis for the individual counts. Assuming that the October incident was included in a count in the juvenile petition, it is just as likely to be count 1 as it is any other count, or it could possibly be a combination of multiple counts. The lack of specificity is also evident as to when the conduct occurred with respect to each count, and what Petitioner's age was in relation to each count. Notably, in the time period of which the incidents of abuse allegedly took place, from June 2012 to October 2014, Petitioner would have been under the age of 14 for 19 months, and over the age of 14 for nine months. The point is that, given the current state of the record, we simply do not know how the counts in the Petition match up with the particular allegations of misconduct, as well as Petitioner's age at the time of each incident of misconduct when viewed in connection with the counts in the Petition.
The remaining documents of the juvenile proceedings do not clarify the discrepancy and, in fact, only exacerbate it.
After conducting a hearing on May 29, 2015, the juvenile court issued an adjudicatory/dispositional hearing order dated June 1, 2015. In this order, the juvenile court found that Petitioner "tendered an admission to some or all of the delinquent acts alleged in the Petition as indicated in Exhibit A," and accepted Petitioner's admission as being made knowingly, intelligently, and voluntarily. (R.R. at 129a.) Yet, Exhibit A does not contain any delinquent acts and simply charts the nine counts in sequential order, with horizontal headings that list the criminal statutes, grades of the offenses, and disposition of the charges. (R.R. at 131a.)
In ruling on "the offenses set forth in Exhibit A," the juvenile court: (1) adjudicated Petitioner delinquent for indecent assault (complainant less than 13 years of age)—graded as a first-degree misdemeanor (hereinafter "Indecent Assault"), and (2) entered a "finding of fact" for one count of involuntary deviate sexual intercourse—graded as a first-degree felony (hereinafter "IDSI"). Id. According to Exhibit A, seven of the nine counts in the Petition were withdrawn. Petitioner admitted to count 1, IDSI, with the juvenile court entering a finding of "substantiated" on this count, and count 3, Indecent Assault, with the juvenile court entering a finding of "adjudicated delinquent" on this count. (R.R. at 131a.) Ultimately, the juvenile court placed Petitioner on two years of probation, ordered that he undergo psychosexual assessment, and deferred final disposition. (R.R. at 129a–30a.)
In the May 29, 2015 juvenile admission form—which is akin to a written guilty plea colloquy in a criminal case —Petitioner, with the assistance of counsel, admitted to an adjudication of delinquency for Indecent Assault and a finding of fact without an adjudication for IDSI. In an addendum to the admission form (Addendum), Indecent Assault was recorded as the only "delinquent act." In Part A of the Addendum, entitled "Sexual Offender Registration—14 years or older," Petitioner was asked whether he committed one of the delinquent acts enumerated on the form, including IDSI, on or after his 14th birthday, and this section was crossed out. (R.R. at 144a–147a.) In Part B of the Addendum, pertaining to "Civil Commitment for Involuntary Treatment," Petitioner stated that he committed the delinquent act of Indecent Assault. (R.R. at 147a–51a.) Contrary to the finding of the ALJ, the juvenile court adjudicated Petitioner delinquent for Indecent Assault only, and not for IDSI. See In the Interest of M.W. , 614 Pa. 633, 39 A.3d 958, 966 (2012). Importantly, although the form had a space to "list the delinquent acts" that Petitioner committed, no details were provided to shed light on the factual basis that comprised his adjudication of delinquency for count 3, Indecent Assault. (R.R. at 138a.)
See Pa.R.J.C.P. 407 ; Pa.R.Crim.P. 409.
Pursuant to Pa.R.J.C.P. 406(c), if a juvenile tenders an admission, the colloquy shall be in writing, reviewed and completed with the juvenile by an attorney, submitted to and reviewed by the court, and substantially in the same form that is reproduced within the rule.
On August 4, 2015, the juvenile court entered a dispositional hearing order, placing Petitioner on probation indefinitely, with additional conditions, and directing him to continue psychotherapy. (R.R. at 132a–33a.)
Based on the record of the juvenile court proceedings as a whole, including the Petition, Affidavit, Petitioner's admission form, and the juvenile court's orders, we can confirm very little: as a result of his admission, Petitioner was adjudicated delinquent of count 3, Indecent Assault. But this is as far as this Court can go. As we have already explained, there is nothing in the record to demonstrate, with even an iota of certainty, that this count, as opposed to the other eight counts, was lodged against Petitioner for conduct occurring in October 2014 or at a point when he was 14. Indeed, the Affidavit catalogued 12 discrete instances where Petitioner and Sister engaged in oral sex, as well as many other allegations of sexual conduct, including times where Petitioner would "grind" with Sister, grab her "buttocks," and "touch her breasts." (R.R. at 137a.) We only know with certainty that one incident happened when Petitioner was 14, the one in October 2014; the dates of the allegations stem from June 2012 to October 2014; and Petitioner would have been under the age of 14 during any incident that occurred prior to January 2014. Because count 3 in the Petition is not bonded with any particular factual allegation in the Affidavit, count 3 could be based on any one of the allegations of sexual abuse in the Affidavit. Given all this uncertainty, and the multiple variables at play, Petitioner's adjudication of delinquency for count 3 merely proves that, at some unknowable point of time in a span of two years and four months, Petitioner committed the act of Indecent Assault.
Moreover, unlike some of the other statutory sexual assault offenses, Petitioner's count of Indecent Assault is not defined by or graded in terms of the age of the offender or the age gap between the offender and the victim, and it applies in all instances where the complainant is under the age of 13. See 18 Pa.C.S. § 3126(a)(7) ; see also infra n.6. Consequently, the definition of the crime to which Petitioner was adjudicated delinquent does not verify that he was adjudicated delinquent for acts occurring when he was 14 or older.
Quite possibly, one could hypothesize, as the Department and DCYF do in their briefs, that it would make sense, or be somewhat logical, for Petitioner to admit guilt to the October 2014 incident because it was the most recent event discussed in the Affidavit. This Court, however, declines to draw such an inference in a cloud of fortuity and happenstance, where nothing more than a gut feeling as to what is theoretically plausible—but not actually proven—serves as our guide and foundation for a decision. Cf. R.F. , 845 A.2d at 218 ("[S]imply because R.F. entered a plea of nolo contendere to Endangering the Welfare of a Child, [the Department] may not infer that the plea was to an act of sexual abuse, especially in light of the colloquy surrounding the entering of that plea."). As our Supreme Court said: "To be of independent probative value, [an] admission of guilt should be complete in itself if it is to establish the facts for which it is offered. It is not to be implemented by suspicion or conjecture or by piling inference upon inference." Commonwealth v. Turner , 389 Pa. 239, 133 A.2d 187, 199 (1957).
See, e.g. , the Department's brief at 16 ("Although the Juvenile Affidavit expands beyond the October 6 incident to other incidents of sexual misconduct by [Petitioner], it contains the same allegations reported to ChildLine when the mother observed [Petitioner] receiving oral sex from his 11 year old sister."); accord DCYF's brief at 3.
See also Commonwealth v. Borrin , 12 A.3d 466, 475 (Pa. Super. 2011) (en banc), aff'd 622 Pa. 422, 80 A.3d 1219 (2013) ("Where the evidence of record equally supports two inconsistent inferences, it proves neither."); Holmes' Appeal , 379 Pa. 599, 109 A.2d 523, 529 (1954) (Musmanno, J., dissenting) ("And no matter how trained and experienced a ... judge may be, he cannot by any magical fishing rod draw forth the truth out of a confused sea of speculation, rumor, suspicion and hearsay.").
Although the Supreme Court in Turner made this statement in a different legal situation than the one presently before this Court, the basic principle that an admission of guilt must unambiguously speak for itself, with the utmost certainty, applies here with full force. After all, the reason that an adjudication allows an indicated report to become a founded report is because the adjudication is supposed to constitute a court's legal determination of the "same factual circumstances," 23 Pa.C.S. § 6303, depicted in the indicated report. In this scenario, the adjudication verifies the indicated report via the factual findings/admissions that a court makes/accepts in connection with a conviction, a verdict of guilt, an adjudication, etc., and rightfully confers upon the report the status of being "founded." See J.G. , 795 A.2d at 1093–94. Stated differently, for an indicated report to be independently "founded," the adjudication must resolve all of the issues in the indicated report definitively and conclusively. It is for this reason that this Court, while highlighting that an adjudication cannot usually be collaterally attacked in an administrative proceeding, has stated that the only way to properly challenge an adjudication upon which a founded report is based is to appeal and contest the adjudication. See id. at 1093 n.8.
Here, however, the record of the juvenile court proceedings is too vague and ambiguous for us to confirm that Petitioner was adjudicated delinquent for the same incident that occurred on October 6, 2014. Unable to find that the juvenile court's adjudication of delinquency verifies—or even pertains to—the misconduct in the indicated report, we cannot conclude that the adjudication supports the founded report. Accordingly, we conclude that DCYF erred in relying solely on the adjudication to effectuate a change in the report to founded and that the Secretary committed an error of law in sanctioning the modification.
In its brief, the Department contends that Petitioner admitted at the telephonic hearing that the delinquency proceedings resulted in an adjudication involving the same factual circumstances as the indicated report. (Department's brief at 11–12.) This assertion is refuted by the record. At the outset, Petitioner contended that his adjudication of delinquency for indecent assault failed to establish that he admitted that he was 14 years of age or older when he committed that offense. (R.R. at 178a.) Although Petitioner later stated the adjudication of delinquency involved the "same subject child" that was listed in the indicated report, (R.R. at 178a), Petitioner continued to maintain that he was not "a perpetrator," (R.R. at 179a), "because he would have had to have been 14." (R.R. at 184a.) In response, the Department argued that the adjudication of delinquency included "the time period in which Petitioner was 14." (R.R. at 190a.)
In reaching his decision, the ALJ failed to analyze the Petition, Petitioner's admission, and the juvenile court's adjudicatory documents. Rather than focus on these extremely important pieces of information, the ALJ placed heavy emphasis on the fact that the incident date listed on the indicated report was October 6, 2014, and the Affidavit refers to the same incident and date. (ALJ's Adjudication at 2–3.) However, the Affidavit is by no means an adjudication, and the information in the indicated report, even if corroborated by the Affidavit and supported by substantial evidence, cannot convert an indicated report into a founded report. If we allowed such, then this Court would effectively permit avoidance of section 6303 of the Law and its requirement that the adjudication independently sustain the incident in the indicated report both factually and legally. Although in some rare instances an ALJ may use an indicated report to fill in gaps that result from the absence of express elements in an adjudicated crime, the ALJ may do so only when the "judicial adjudication and the factual basis for that adjudication is identical to the factual basis of the [indicated] report." D.M. , 122 A.3d at 1155. However, that is not the case here, and the gap that exists between the event that constituted the adjudication and the occurrence listed in the indicated report is of such monumental proportions that it makes it impossible for us to identify any overlap between the two.
In D.M. , the petitioner pled no contest to the crime of harassment for making statements and gestures to a minor at an adolescent facility that were "identical to the factual basis of the [indicated] report." 122 A.3d at 1155. In designating the petitioner a perpetrator under the Law, the agency determined in the indicated report that the petitioner was employed at the adolescent facility as a supervisor who was responsible for the child's welfare. However, the place of the petitioner's employment was immaterial to the criminal charge of harassment. Nonetheless, the petitioner admitted in his plea that "the address where the incidents occurred [was] the adolescent facility." Id.
In this limited situation, we permitted the ALJ to look beyond the adjudication, and rely upon the indicated report, to fill in the "gap" and find that the petitioner was an employee of the facility and was responsible for the child. In doing so, we emphasized that "there [was] no question in the instant matter that the conduct underlying [the] [p]etitioner's judicial adjudication [was] the conduct identified as child sexual abuse in the founded report." 122 A.3d at 1156 n.5.
Here, by contrast, we cannot conclude that the juvenile court's adjudication of delinquency was for the same conduct listed in the indicated and founded reports. As such, D.M. is inapposite legal authority.
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Therefore, for the above-stated reasons, we reverse the Secretary's order upholding the ALJ's determination that DCYF correctly changed the report from indicated to founded. Due to our disposition, we do not address Petitioner's remaining arguments.
Judge Cosgrove did not participate in this decision.
ORDER
AND NOW, this 21st day of November, 2017, the July 15, 2016 order of the Secretary of the Department of Human Services (Secretary) is hereby reversed.