Opinion
No. 2287 C.D. 2012
08-22-2013
A.S., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
A.S. petitions for review of an adjudication of the Department of Public Welfare denying his request to expunge a founded report of child abuse held in the ChildLine Registry. In doing so, the Department held that the findings made in a Protection from Abuse (PFA) proceeding established the basis for the Cambria County Children, Youth, and Family Services (CYS) to file a founded report of child abuse naming A.S. as the perpetrator. A.S. argues that the PFA proceeding did not find that he had caused serious physical injury and, thus, did not establish child abuse for purposes of the ChildLine Registry. We reverse and remand.
The Secretary of Public Welfare denied reconsideration.
ChildLine is a unit of the Department of Public Welfare 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.
The child named in the founded report is Y.S. (Son), who was born March 29, 1994, to A.S. (Father) and R.S. (Mother). The parents have lived separately for many years, and Father has visitation rights. On February 6, 2011, during a weekend visitation, a fight broke out between Father and Son. Son called the police, who investigated and issued criminal charges against Father. This was followed by Mother's request for a PFA order.
At the PFA hearing, Roger Burkhart, a criminal investigator with the Pennsylvania State Police, testified that he and two troopers were dispatched to Father's residence on February 6, 2011. They discovered that Son had a cut on his cheek, "a little bit of abrasion under his eye and a little cut on his nose." Reproduced Record at 26a (R.R. ___). Burkhart clarified that Son's facial injury did not really look like a cut but "more like a scratch on his face and abrasion." R.R. 35a. Father had a red mark on his chest.
Son told the troopers that Father had hit him in the face, the chest and the leg with a metal bar. Father responded that he had acted in self-defense after Son attacked him. Burkhart described the bar as a "Y" shaped, hollow, metal bar, approximately three feet long and one inch in diameter. R.R. 27a-28a. Burkhart explained that the bar "goes up against the doorknob to the floor" to secure the front door. R.R. 27a. Son informed the troopers that he did not need medical attention but agreed to go to the hospital upon Burkhart's request. Burkhart later learned that Son had received 24 stitches to his face. Father was questioned by the other officers at the scene and then charged with assault and harassment.
The next day, Father, who had installed a video security system in his house, provided a copy of a video recording. Because the camera was fixed in one location, it did not record the entire fight. However, the video did show Father pushing Son, and Son pushing Father. The video also showed Father swinging the Y-shaped bar at Son's leg, but it did not show how Son received his facial injury.
Son then testified. He stated that he was 16 years old, 5'7" tall and weighed 247 pounds. He outweighed Father by approximately one hundred pounds; was stronger than Father; and was not afraid of Father. Son disliked Father. He stated that there had been occasions when Father drove him in his car even though he had consumed alcoholic beverages. On the day of the fight, Son was visiting Father for the weekend as required by the visitation order. Son does not speak to Father during these weekend visits, except when absolutely necessary.
Son has been required to attend counseling sessions with Father. However, he refuses to speak at the counseling sessions, other than to reiterate that he does not want to see Father.
On the day in question, Son was impatient for Father to wake up and drive him home. At 10:00 a.m. Son began tapping on the wall. Father asked Son to stop tapping, but he continued to tap. Father then opened the front door, pushed Son and told him to leave the house. Son pushed Father back. Father then picked up the bar and poked Son in the ribs, who responded with a push. Father responded by hitting Son in the leg with the bar. When Son tried to push him again, Father hit him in the face with the bar. Son then punched Father and took the bar. At the hospital, the doctor put "six stitches in [his] face." R.R. 45a. Mother then took Son to a plastic surgeon, who put in 24 stitches: 20 in his cheek and four inside his mouth. Son stated his injuries were not painful. His face hurt only during the ten minutes required to sew the stitches. Son stated that there was a chance he would develop a scar.
A computerized assisted tomography scan was performed, which ruled out internal head injuries.
Father then testified. He explained that Son had refused to see him for four years after they had an argument over a haircut. Father had to go to court to enforce his visitation rights. He stated that Son hates him. During the fight, Son punched him; pushed him to the floor; and kicked him in the head and neck. He testified that he threw the bar at Son to stop the kicking and believed that Son was trying to kill him. Father intended to relinquish his visitation rights because he was physically afraid of Son.
Father, who is a surgeon, testified about Son's stitches. He explained that if he had swung the bar at Son's face, as claimed, it would have caused massive injuries. He stated that 24 stitches sounds significant, but the injury was in an area of the cheek where "you have to check on something called Stensen's duct." R.R. 73a. It is the duct from the parotid salivary gland. If not properly treated, the patient may develop a stricture in the duct; the doctor will be liable. "So number of stitches and all that kind of impression and stuff - and lay people [think] that it's a massive injury, no. You have to explore an injury." R.R. 73a.
The trial court found that the video established Father as the aggressor. The video did not show Son being hit, but it showed Son bending over, picking up the bar and walking out the door, providing some corroboration to Son's version of events. Accordingly, the trial court entered a protection from abuse order against Father.
Based on the trial court's findings in the PFA proceeding, CYS issued a founded report of child abuse listing Father as the perpetrator. Father appealed the founded report to the Department's Bureau of Hearings and Appeals, requesting expunction. The matter was assigned to an Administrative Law Judge (ALJ).
At the hearing, the ALJ explained that the scope of the hearing was limited to the legal issue of whether the PFA order was sufficient to support the founded report of child abuse. Father acknowledged that he did not appeal the PFA order, but he contended that it did not support the founded report of child abuse entered by CYS. Father then asserted that the preliminary hearing on his criminal charges had raised a serious question about Son's credibility. Accordingly, the Commonwealth was unable to establish a prima facie case of aggravated assault at the preliminary hearing, which left only simple assault and harassment charges. On April 19, 2012, Father entered into the Accelerated Rehabilitation Disposition Program to resolve the remaining charges.
Testimony was not presented. Argument was heard and exhibits admitted.
Photocopies of photographs of Son's face submitted at the preliminary hearing were presented into evidence at the hearing before the ALJ. The photocopies, contained in both the certified and reproduced records, are of poor quality, making it impossible to see the extent of Son's injuries. R.R. 162a-163a, Certified Record Exhibits 1-3.
In his brief on his expunction request, Father argued, inter alia, that the Protection From Abuse Act and the Child Protective Services Act are not parallel. The former defines "abuse" as "[a]ttempting to cause or intentionally, knowingly or recklessly causing bodily injury...." 23 Pa. C.S. §6102 (emphasis added). Conversely, the Child Protective Services Act requires a showing of "serious physical injury" or "an imminent risk of serious physical injury." 23 Pa. C.S. §6303(b)(1). Thus, the PFA order established "bodily injury," as opposed to "serious physical injury." Accordingly, the PFA order did not provide the support for a founded report of child abuse, requiring expunction.
In full, "abuse" is defined as:
The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:
23 Pa. C.S. §6102(a).(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.
(2) Placing another in reasonable fear of imminent serious bodily injury.
(3) The infliction of false imprisonment....
(4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).
(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury....
It provides, in full:
(1) The term "child abuse" shall mean any of the following:
23 Pa. C.S. §6303(b)(1).(i) Any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age.
(ii) An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iii) Any recent act, failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iv) Serious physical neglect by a perpetrator constitution prolonged or repeated lack of supervision or the failure to provide essentials of life, including adequate medical care, which endangers a child's life or development or impairs the child's functioning.
The ALJ did not respond to this argument but held that the underlying adjudication was sufficient to form the basis of the founded report. The ALJ relied upon Philadelphia County Department of Human Services, Division of Children and Youth v. Department of Public Welfare, 953 A.2d 860 (Pa. Cmwlth. 2008) (Philadelphia), which held that the findings in a PFA proceeding can support a founded report of child abuse. The ALJ recommended that Father's expunction appeal be denied, and the Department adopted the recommendation in its entirety.
Father petitioned for this Court's review. On appeal, Father argues that the PFA order does not provide a basis for the founded report of child abuse.
Our review is limited to a determination of whether constitutional rights have been violated, an error of law was committed, or necessary findings of fact are supported by substantial evidence. Bird v. Department of Public Welfare, 731 A.2d 660, 663 (Pa. Cmwlth. 1999).
We begin with a review of the law. CYS may issue a founded report of child abuse
if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused, including the entry of a plea of guilty or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse.23 Pa. C.S. §6303(a). As noted above, "child abuse" is defined, inter alia, as a "nonaccidental serious physical injury" or an act "which creates an imminent risk of serious physical injury." 23 Pa. C.S. §6303(b)(1)(i) and (iii). "Serious physical injury" is defined as an injury that
(1) causes a child severe pain; or
(2) significantly impairs a child's physical functioning, either temporarily or permanently.23 Pa. C.S. §6303(a).
A founded report of child abuse is issued where there has been an adjudication of child abuse in a court of law. In that case, the perpetrator of abuse is not entitled to another hearing on the issue of guilt. J.G. v. Department of Public Welfare, 795 A.2d 1089, 1092 (Pa. Cmwlth. 2002). To do so would allow a collateral attack on a prior adjudication, which is impermissible. Id. at 1093. However, an appeal may be taken for the limited purpose of determining whether the underlying adjudication supports a founded report of child abuse. Id.
Father contends that because the PFA proceeding did not establish that Father caused a serious physical injury, CYS lacked a basis to issue a founded report of child abuse. Although Father raised this issue in his hearing, it was not addressed by the ALJ. Likewise, the Department does not address this issue in its brief to this Court. Instead, it reiterates that Philadelphia, 953 A.2d 860, established that any PFA order is sufficient to support a founded report and, thus, is controlling.
In Philadelphia, 953 A.2d at 860, a four-year-old child reported to Child Protective Services (CPS) that his father "licked me on [my] pee-pee," and that his father "puts his pee-pee in [child's] mouth." CPS initially filed an indicated report of child abuse. The child's mother then sought a PFA order, which the trial court granted after finding, as fact, the sexual abuse occurred. CPS then changed its report from indicated to founded. The father appealed, arguing that the PFA order did not support a founded report of child abuse. The Department upheld the father's appeal because the PFA order found abuse had occurred but did not name the father as the abuser.
An indicated report is a child abuse report made following an investigation by a county agency or the Department of Public Welfare wherein it is determined that substantial evidence of abuse exists based on "[a]vailable medical evidence," a CYS investigation or "[a]n admission of the acts of abuse by the perpetrator." 23 Pa. C.S. §6303(a).
This Court reversed. We reasoned as follows:
Where only one defendant is charged with abuse in a PFA action, only one person defends those charges, an adjudication finds that such abuse occurred and prohibits further contact between the victim child and that defendant, the PFA order is an adjudication containing a sufficient definitive finding upon which [to base] the [f]ounded [r]eport.Id. at 864. Thus, we concluded that the PFA order in question was a sufficient judicial adjudication upon which to base a founded report.
A [f]ounded [r]eport may be based upon any judicial adjudication finding that the child who is the subject of the report has been abused, including, but not limited to, criminal charges.
We distinguished the case from adjudications in dependency proceedings, wherein the court may determine that a child was abused without naming a perpetrator of the abuse. Philadelphia, 953 A.2d at 863. In such cases, no one can be presumed to be the perpetrator and, thus, the dependency adjudication is insufficient to form the basis of a founded report.
The present case is distinguishable. In Philadelphia, a finding that the named perpetrator committed either of the alleged sexual acts conclusively established sexual abuse, as defined by the Child Protective Services Act. Here, the issue is not as straightforward. In the PFA proceeding, the trial court rejected Father's claim of self-defense and found him to be a perpetrator of abuse, but it did not make a finding about the severity of the injury. Under the Child Protective Services Act, child abuse requires a "serious physical injury" that "causes a child severe pain" or "significantly impairs a child's physical functioning." 23 Pa. C.S. §6303(a). By contrast, the Protection From Abuse Act defines abuse as causing "bodily injury," which is a lesser standard than that required under the Child Protective Services Act, i.e., a "serious physical injury."
"Sexual abuse" is defined as "employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in sexually explicit conduct." 23 Pa. C.S. §6303(a). --------
Unlike Philadelphia, the factual findings in this case are not complete to meet the definition of child abuse. There has been no adjudication on the severity of Son's injury, and conflicting evidence was presented on that issue. In the PFA proceeding, the trooper testified that Son's facial injury looked like a scratch, and Son stated it did not cause him pain, except for ten minutes. On the other hand, the injury required 24 stitches. Father, a surgeon, testified that the number of stitches does not establish the severity of a wound. Based on the conflicting testimony, we cannot say that the trial court adjudicated that Son sustained a serious physical injury.
The ALJ explained that res judicata prevented her from revisiting the finding of the trial court. "[T]he doctrine of res judicata precludes the relitigation of issues decided in a prior valid judgment in any future suit between the parties on the same cause of action[.]" Bell v. Township of Spring Brook, 30 A.3d 554, 557 (Pa. Cmwlth. 2011). The "doctrine of collateral estoppel operates to preclude the relitigation of issues of fact or law determined in a prior proceeding." Id. Res judicata and collateral estoppel apply not only to matters decided, but to matters that should have been raised and decided in an earlier action. Id at 558.
The doctrines of res judicata and collateral estoppel are not applicable here. The seriousness of Son's injury was not decided in the PFA proceeding, nor was it necessary for the trial court to make that determination before issuing a PFA order.
Accordingly, the PFA order did not form a proper basis for the founded report of child abuse. As such, the Department's order is reversed and the case is remanded for the Department to expunge from the ChildLine Registry the founded report of child abuse naming Father as a perpetrator.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 22nd day of August, 2013, the order of the Department of Public Welfare (Department), dated November 20, 2012, is REVERSED and the matter REMANDED to the Department to expunge from the ChildLine Registry the founded report of child abuse naming A.S. as a perpetrator.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY PRESIDENT JUDGE PELLEGRINI
Because Philadelphia County Department of Human Services, Division of Children and Youth v. Department of Public Welfare, 953 A.2d 860 (Pa. Cmwlth. 2008) controls, I respectfully dissent.
/s/_________
DAN PELLEGRINI, President Judge