WHEREAS, the Philadelphia Bar Association, the oldest metropolitan association of lawyers in the United States, has a long history of supporting Pennsylvania residents’ rights to due process before being deprived of a fundamental right; and

WHEREAS, Article I, Section 1 of the Constitution of the Commonwealth of Pennsylvania guarantees the right “of acquiring, possessing and protecting property and reputation”;¹ and

WHEREAS, reputation is a fundamental interest which cannot be abridged without compliance with constitutional standards of due process;² and

WHEREAS, due process requires the Commonwealth to provide advance notice and an opportunity to respond to persons whose reputations are threatened by a state-sanctioned report;³ and

WHEREAS, the United States Supreme Court has found that the Due Process Clause of the Fourteenth Amendment of United States Constitution protects a fundamental right of parents to make decisions concerning the care, custody, and control of their children;⁴ and

WHEREAS, the Supreme Court of Pennsylvania has also found a fundamental right to parent one’s children;⁵ and

WHEREAS, the Child Protective Services Law (“CPSL”) requires the immediate listing on the ChildLine and Abuse Registry (“Registry”) all individuals accused of child abuse in an “indicated” report.⁶ An indicated report does not mean that an individual has been convicted of an abuse crime, nor does it mean that there has been a finding of abuse by a judge in a dependency or criminal proceeding. It means that a county child services caseworker or another county official has investigated and found substantial evidence of abuse or neglect;⁷ and

WHEREAS, individuals named in “indicated” reports of child abuse are immediately put on the Registry without providing those individuals prior notice or opportunity for a pre-deprivation evidentiary hearing; and

WHEREAS, the Commonwealth Court and the Supreme Court of Pennsylvania have expressed concerns that the CPSL may permit the deprivation of protected interests without required constitutional protections;⁸ and

WHEREAS, the names maintained in the Registry may be disclosed to third parties during background checks related to an individual’s employment, licensure, volunteer activities and/or recreational activities of the individual’s own children;⁹ and

WHEREAS, such disclosures have a significant impact on an individual’s liberty and property interests, including the loss or denial of employment, loss of opportunities or adverse actions in relation to custody or visitation rights;¹⁰ and

WHEREAS, such disclosures can cause long term harm to an individual’s ability to earn a living and disproportionality impact individuals struggling with poverty; and

WHEREAS, Black Pennsylvanians made up an average of 22% of all Pennsylvania child abuse investigations between 2015 and 2021, and 23% of those with indicated of founded cases, despite the fact that Black Pennsylvanians make up only 12% of Pennsylvania’s population;¹¹ and

WHEREAS, The CPSL requires child abuse clearances for a vast array of jobs, and some employers require clearances regardless of a would-be employee’s potential interaction with children barring people on the registry from many opportunities and contributing to poverty rather than helping children;¹² and

WHEREAS, there is little evidence that child line registries as employment screening tools protect children, and studies have found that a substantiation of neglect or abuse is a poor predictor of future maltreatment. ¹³

WHEREAS, because many unrepresented individuals cannot navigate the CPSL complex appeal process or comply with the appellate timeframes, they are on the Registry for life; and

WHEREAS, in post-deprivation evidentiary administrative hearings, 91 percent of “indicated reports” were overturned in 2021, 94 percent were overturned in 2020 and 91 percent were overturned in 2019. ¹⁴

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association urges the Commonwealth to amend the Child Protective Services Law, Pa.C.S. §§ 6301-6395, by including the following constitutional due process protections and substantive reforms:

1. Information about an alleged perpetrator of child abuse or neglect shall not be included in this state’s Registry prior to notice and hearing before the Bureau of Hearings and Appeals (“BHA”) of the Pennsylvania Department of Human Services.
   1. Such notice shall be written in a manner easily understandable by a person without legal training and shall include information on appeal options, consequences of being on the registry, and a number for free legal services.
2. Devote all necessary resources to the BHA to ensure that hearings can be adjudicated in a timely manner.
3. Establish a practice by which alleged perpetrators are informed of potential collateral criminal charges and risks. And that BHA hearings and appeals are automatically stayed pending criminal investigations and proceedings.
4. Establish that the minimum standard for listing an alleged perpetrator on the Registry based on an “indicated” report shall be a preponderance of the evidence.
5. Establish a limitation on the amount of time a person can be on the registry that is commensurate with the allegations that produced an indicated report.
6. Limit the kinds of employment for which an employer may seek a clearance to those jobs those jobs that involve the care, supervision, guidance or control of children.
7. Establish a process by which existing registrants can reopen their case and avail themselves of new due process procedures established pursuant to the above.
8. Establish an entitlement to counsel and/or a Guardian ad Litem for children victims and witnesses at BHA hearings.
9. Explore alternative measures to allow child victims and witnesses to be questioned in-camera.
10. Devote resources to expanding free legal services for alleged perpetrators in any initial hearings and subsequent appeals.

AND BE IT FURTHER RESOLVED that the Philadelphia Bar Association urges the Commonwealth of Pennsylvania to engage in a thorough and ongoing analysis of the efficacy of the Registry. ¹⁵

AND BE IT FURTHER RESOLVED that the Philadelphia Bar Association authorizes the Chancellor or the Chancellor's designee to communicate the content of these Resolutions to the members of the General Assembly, the Governor, the Pennsylvania Attorney General, other public officials, other bar associations, and the public at large, and to take such other action as may be appropriate.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: December 21, 2023

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¹ PA Constitution Article I, §1 “All [people] are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”

² R. v. Dept. of Pub. Welfare, 636 A. 2d 142, 148-149 (Pa. 1994).

³ Simon v. Commonwealth, 659 A.2d 631 (Pa Commonwealth Ct. 1995).

⁴ Troxel v. Granville, 530 U.S. 57, 66 (2000).

⁵ In re Y.W.-B., 265 A.3d 602, 625 (Pa. 2021) “[T]he care, custody, and control of one's children is one of the oldest fundamental liberty interests protected by due process.”) (citing See Troxel v. Granville, 530 U.S. 57, 66 (2000))

⁶ 23 Pa.C.S. § 6368 (c); 55 Pa. Code § 3490.67

⁷ 23 Pa.C.S. § 6303.

⁸ S.F. v. Pa. Dep’t Hum. Serv., 574 M.D. 2020, slip op. at 2-3 (Pa. Commw. Ct. July 11, 2023) ( “Although in recent years, this Court and our Supreme Court have expressed concerns that the CPSL may permit the deprivation of protected interests without required constitutional protections, no court has, until now, addressed whether due process requires pre-deprivation procedures in the CPSL with regard to teachers”).

⁹ 23 Pa.C.S. §6340 (a)

¹⁰ Schanne v, Addis, 121 A.3d 942, 946 n. 1 (Pa. 2015).

¹¹ GITTIS LEFAL CLINICS, UNIVERSITY OF PENNSYLVANIA CAREY SCHOOL OF LAW AND SCHELLER CENTER FOR SOCIAL JUSTICE TEMPLE UNIVERSITY BEASLEY SCHOOL OF LAW. PATHWAYS TO POVERTY: HOW THE CHILDLINE AND ABUSE REGISTRY DISPROPORTIONATELY HARMS BLACK FAMILIES (2023) at 6.

¹² ID. at 15.

¹³ Id. at 28; Colleen Henry & Vicki Lens, Marginalizing Mothers: Child Maltreatment Registries, Statutory Schemes, and Reduced Opportunities for Employment, 24 THE CITY UNIVERSITY OF N.Y. L. REV. 1, at 9 (2021). Available at: https://academicworks.cuny.edu/clr/vol24/iss1/3; Patricia L. Kohl et al., TIME TO LEAVE SUBSTANTIATION BEHIND: FINDINGS FROM A NATIONAL PROBABILITY STUDY, 14 CHILD MALTREATMENT 17, 23 (2009)
(explaining that multiple studies have demonstrated that future child risk is similar in both substantiated and unsubstantiated abuse and neglect investigations).

¹⁴ https://www.dhs.pa.gov/docs/Publications/Pages/Child-Abuse-Reports.aspx.

¹⁵ Roberts, Dorothy E., "Child Welfare and Civil Rights" (2003). All Faculty Scholarship. 585. https://scholarship.law.upenn.edu/faculty_scholarship/585