Opinion
No. 418 C.D. 2012
04-11-2013
C.G., Jr., II, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
C.G. petitions for review of the February 14, 2012 final Order of the Department of Public Welfare's Bureau of Hearings and Appeals (Bureau) adopting in its entirety the recommendation of the Administrative Law Judge (ALJ) denying C.G.'s administrative appeal to expunge a report of sexual abuse of his daughter, B.G., indicated pursuant to the Child Protective Services Law (CPS Law), 23 Pa. C.S. §§ 6301-6386. For the reasons that follow, we vacate and remand for further proceedings.
Our scope of review is limited to determining whether constitutional rights have been violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. Where, as here, we are asked to determine on appeal whether the necessary findings of fact are supported by substantial evidence, we must give the party in whose favor the appealed decision was rendered the benefit of all reasonable and logical inferences that can be drawn from the evidence of record. Bedford County Children and Youth Services v. Department of Public Welfare, 613 A.2d 48, 50 (Pa. Cmwlth. 1992). In addition, once it has been determined by substantial evidence that child abuse has occurred, there must be clear and convincing evidence in order to maintain the statutorily-designated information from an indicated report on the ChildLine Registry. G.V. v. Department of Public Welfare, 559 A.3d 552 (Pa. Cmwlth. 2012).
On January 20, 2011, a Cambria County Children and Youth Services (CYS) caseworker interviewed B.G., a six-year old female child, concerning allegations that her father, C.G., had sexually abused her. (Record Item (R. Item) 3, Exhibit C-1 Child Protective Service Investigation Report (CY-48).) Following an investigation, CYS filed an indicated report of sexual abuse with the statewide central register of child abuse listing C.G. as the perpetrator. C.G. filed a request to expunge the indicated report and a hearing was conducted before the ALJ on October 27, 2011. (10/27/2011 Hearing Transcript (H.T.).)
"Sexual abuse or exploitation" is defined as "[a]ny of the following: (1) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in sexually explicit conduct. (2) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in simulation of sexually explicit conduct for the purpose of producing visual depiction, including photographing, videotaping, computer depicting and filming. (3) Any of the following offenses committed against a child:
(i) Rape.23 Pa. C.S. § 6303; see also 55 Pa. Code § 3490.4.
(ii) Sexual assault.
(iii) Involuntary deviate sexual intercourse.
(iv) Aggravated indecent assault.
(v) Molestation.
(vi) Incest.
(vii) Indecent exposure.
(viii) Prostitution.
(ix) Sexual abuse.
(x) Sexual exploitation."
The CPS Law defines an "indicated report" as "[a] child abuse report made pursuant to this chapter if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on any of the following: (1) Available medical evidence. (2) The child protective service investigation. (3) An admission of the acts of abuse by the perpetrator." 23 Pa. C.S. § 6303. A "perpetrator" is defined under the CPS law as "[a] person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child's parent." Id.
At the hearing, CYS Supervisor Michele Shannon testified that, as the supervisor of the caseworker who had conducted the investigation, she had no direct knowledge of the incident or contact with B.G., but that she had interviewed C.G. and authored a case note concerning that interview, which was introduced into the record. (H.T. at 6-8.)
In the ALJ's Adjudication, Findings of Facts 4 and 5, Michele Shannon is identified as "Michael Shannon" and "Mr." At all other points in the record, including the hearing transcript and exhibits, Michele Shannon is identified as "Michele Shannon" and referred to in the feminine.
A member of B.G.'s household, T.L., also testified. (H.T. at 24.) T.L. was seventeen at the time of the hearing, and although not technically a relative of B.G., his parents had welcomed B.G.'s mother into their home and T.L. thought of B.G. as his niece. (H.T. at 22, 36.) T.L. testified that at the time of the alleged abuse, his household consisted of ten people, including B.G., C.G., and himself, and that the household had one bathroom, which was down the hall from the bedroom he shared with his brother. (H.T. at 28, 31, 36-37.) T.L. further stated that he never bathed B.G., but that B.G.'s mother did, C.G. did, and T.L.'s mother did. (H.T. at 29, 30.) T.L. testified concerning an incident he observed between C.G. and B.G. in spring 2011, where C.G. insisted on bathing B.G. and B.G. protested, stating: "You don't have to wash me. I'm big enough to wash myself." (H.T. at 26-27.) T.L. stated that he informed his parents about the incident, because, "[B] was very upset about the fact that he kept pushing to bathe her. That's what struck me is odd is he kept pushing to bathe her. My thought was a five or six-year-old can bathe themselves [sic]." (H.T. at 29.) The ALJ found T.L.'s testimony to be credible. (ALJ Adjudication, F.F. ¶21.) However, the ALJ left unresolved the conflict between T.L.'s testimony and the documentary evidence, the CY-48 report and the January 24, 2011 Protection from Abuse Order, which clearly establish that C.G. was no longer present in the home in spring 2011, when T.L. testified to having observed conduct he found suspicious between C.G. and B.G. (ALJ Adjudication, F.F. ¶14; R. Item 3, Exhibit C-1, C-3.)
At the time of the hearing, B.G. was seven years old and, following a finding by the ALJ that she was competent, B.G. testified. (H.T. at 11-12.) On direct examination, the following exchange took place with B.G.:
Q: Can you tell me why you think we're here?
A: About C.
Q: Because What?
A: About C.
Q: What about him?
A: He used to touch me.
Q: Where did he touch you?
A: Here and here (indicating).
Q: Where were you living when that happened?
(H.T. at 14.) Following this exchange, B.G. testified that C.G. had touched her at the house where she lives now and in the two previous locations where she had lived with C.G. (H.T. at 15.) B.G. also testified that she did not tell anyone about the touching until C.G. had left the home. (H.T. at 16.)The Court: The child said "here" and "here" indicating her chest and pelvic area.
On cross-examination, B.G. stated that she did not talk about the hearing beforehand with any members of her household, that no one told her she had to come to the hearing, and that she referred to her father by his first name because she did not like him. (H.T. at 17-18.) In response to questioning, she then offered more detail about the circumstances surrounding her father's touching:
Q: Whenever you said that C would touch you, do you remember where that happened? When I say where, you said it was in your house, but where in your house? Do you remember?(H.T. at 18-19.) B.G. again testified that she did not tell anyone about the touching until her father left, and added that her father left the house because he had been hurting her and her mother. (H.T. at 19-20.) B.G.'s testimony continued with the following exchange:
A: In the bathroom.
Q: What was happening in there?
A: I was taking a shower.
Q: Would he ever help you take showers?
A: When I was a little kid.
Q: What do you mean by that?
A: Whenever I was a little baby.
Q: Do you remember him giving you showers whenever you were a little baby?
A: Yes.
Q: Did you ever take baths?
A: (Indicating affirmatively.)
Q: You said that he touched you and you didn't like it. That was during the shower?
A: (Indicating affirmatively.)
Q: Was he trying to bathe you whenever this happened?
A: No.
Q: Do you usually take showers, or do you usually take baths?(H.T. at 20-21.) The ALJ found B.G.'s testimony to be credible and consistent. (ALJ Adjudication, Findings of Fact (F.F.) ¶20.)
A: Sometimes I take a shower or a bath.
Q: Did anybody else ever help you while you were taking a shower or a bath?
A: No. I know how to wash myself now.
Q: I'm sorry?
A: I know how to wash myself now.
Q: When did you start being able to wash yourself?
A: Like, when I was six.
Q: You are seven-years-old now?
A: Yeah.
Q: When did you turn seven?
A: June....
Q: So when you were five, you had to have help washing yourself?
A: Yeah.
Q: Who would help you?
A: Sometimes my mom or C.
The ALJ did not credit the testimony of C.G., his mother Ma.G., or his mother's friend V.G. (ALJ Adjudication, F.F. ¶¶15, 17, 22, 23.) The ALJ did, however, rely on testimony from Ma.G. and the CYS Supervisor's case note recounting her interview with C.G. in making Findings of Fact. (Adjudication, F.F. ¶¶6-8, 18-19.) In the Opinion section of the ALJ's Adjudication, the ALJ concluded that there was substantial evidence to support an indicated report of child abuse, stating: "the evidence, while not voluminous, is substantial and is, in these kinds of cases, the best evidence, i.e., the direct testimony of the subject child herself. The Department has met its burden as required by law." (ALJ Adjudication, Opinion ¶9.)
The ALJ also stated that the indicated report of sexual abuse of B.G. perpetrated by C.G. should be maintained, based on the conclusion that "[t]he testimony of the subject child and of the CYS witnesses is both internally consistent and consistent with the various reports submitted into evidence and gathered prior to the hearing." (ALJ Adjudication, Opinion ¶10.) However, the ALJ offered no explanation as to why he found consistent evidence that appears contradictory on its face. For example, the ALJ found that B.G. did not tell anyone about the abuse until after C.G. left the home. (ALJ Adjudication, F.F. ¶10, Opinion ¶7.) Yet, the CY-48 report, as quoted by the ALJ in the Findings of Fact, recounts B.G.'s statement that C.G. retaliated against her for telling people about the abuse prior to leaving the home. (ALJ Adjudication, F.F. ¶3; R. Item 3, Exhibit C-1.) Similarly, T.L. testified that the incident he witnessed between C.G. and B.G. took place in spring 2011, but the CY-48 report and the January 24, 2011 Protection from Abuse Order, both exhibits submitted by CYS, establish that C.G. was no longer present in the home at the time T.L. testified to observing conduct he found suspicious between C.G. and B.G. (ALJ Adjudication, F.F. ¶14; R. Item 3, Exhibit C-1, C-3.)
When a report of child abuse has been indicated the question of whether the report should be expunged is a question of whether the report is accurate. See 23 Pa. C.S. §6341. CYS has the burden to demonstrate that the indicated report is accurate by substantial evidence. Bucks County Children and Youth Social Services Agency v. Department of Public Welfare, 977 A.2d 1254, 1256 (Pa. Cmwlth. 2009). Substantial evidence is defined in this context as "evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." See 23 Pa. C.S. §6303(a). The consistent testimony of a child allegedly victimized by abuse can, standing alone, constitute substantial evidence of an accurate and properly indicated report of child abuse. D.T. v. Department of Public Welfare, 873 A.2d 850, 854 (Pa. Cmwlth. 2005); G.S. v. Department of Public Welfare, 521 A.2d 87, 90 (Pa. Cmwlth. 1987).
C.G. argues on appeal that there is no evidence of record establishing that the touching alleged here was for a sexual purpose, rather than to aid B.G. in bathing. C.G. also argues that the testimony of B.G. does not meet the substantial evidence standard, because it is inconsistent with the CY-48 report.
In many sexual abuse cases, the location of the touching and the lack of other reasons for the contact provide the necessary basis for an inference of sexual gratification. See G.V. v. Department of Public Welfare, 52 A.3d 434, 439 (Pa. Cmwlth. 2012) (en banc) ("G.V. engaged in activity that was consistent with indecent assault under the...Crimes Code. The ALJ held that rubbing and looking at C.S.'s buttocks, fondling her breasts, and attempting to touch her genitals, was motivated for G.V.'s and/or C.S.'s sexual gratification, because there were no health reasons offered for the contact and because of where G.V. touched or attempted to touch C.S. Taking the testimony and the reasonable inferences drawn therefrom in favor of the prevailing party, there is substantial evidence to support the ALJ's findings.").
Here, the context in which the touching took place does not provide such an inference. Thus, we must examine the specifics of B.G.'s testimony. B.G.'s testimony offers no description of the manner in which C.G. touched her. B.G.'s testimony also lacks detail indicating C.G.'s arousal. However, B.G. testified that she did not like C.G. to touch her and that the touching took place in the shower. B.G. stated that she had been taught how to wash herself when she was six, her age at the time of the incident. B.G. also clearly articulated that the unwanted touching had been taking place for some time. When asked if the touching was a part of C.G. trying to bathe her, B.G. answered "No."
It is reasonable to infer from this testimony that B.G. understands what constitutes bathing and what does not, that C.G.'s touching of B.G.'s chest and pelvic region was for purposes other than bathing, and that this purpose was sexual gratification. Thus, we find the ALJ's decision is based on substantial evidence. At bottom, C.G.'s argument amounts to no more than a request for this Court to substitute its own factual determinations for that of the ALJ; however, this Court cannot and will not draw new inferences, disturb the credibility determinations, or reweigh evidence found by the fact-finder. B.B. (B.L.) v. Department of Public Welfare, 17 A.3d 995, 1000 (Pa. Cmwlth. 2011) ("As noted above, the Bureau is the ultimate fact finder, and the ultimate arbiter of the weight to be assigned to the evidence presented. It is axiomatic that in our appellate function, we will not disturb credibility determinations or the weight so assigned.") (internal citations omitted); Bucks County Children and Youth Social Services Agency, 977 A.2d at 1256.
Moreover, the same principle defeats C.G.'s argument concerning B.G.'s testimony. The ALJ credited B.G.'s testimony and did not credit the testimony of C.G. In his brief, C.G. points to conflicts between the CY-48 report and B.G.'s testimony. However, the ALJ did not base the conclusion that C.G. had sexually abused B.G. on the CY-48 report. Instead, the ALJ based his conclusion on B.G.'s testimony, which remained consistent throughout direct and cross-examination. As stated above, this Court cannot and will not invade the province of the fact-finder to make new determinations as to the weight and credibility of evidence. B.B. (B.L.), 17 A.3d at 1000; Bucks County Children and Youth Social Services Agency, 977 A.2d at 1256; see also Children and Youth Services Division, Department of Human Services, County of Northampton v. Department of Public Welfare, 520 A.2d 1246, 1249 (Pa. Cmwlth. 1987.)
As B.G.'s testimony constitutes substantial evidence of an accurate and properly indicated report of child abuse, we conclude that the department has met its burden and demonstrated that the child abuse occurred. However, this Court held in G.V. v. Department of Public Welfare, 52 A.3d 434 (Pa. Cmwlth. 2012), appeal granted, ___ Pa. ___, ___ A.3d ___ (Pa. No. 619 MAL 2012, Filed March 21, 2013) that the department must demonstrate by clear and convincing evidence that the child abuse occurred in order to maintain the report on the ChildLine Registry. Clear and convincing evidence is "evidence that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Id. at 445. Here, the ALJ's adjudication was adopted and affirmed by the Bureau prior to our decision in G.V. v. Department of Public Welfare and, as a result, the evidence was not evaluated in accordance with the clear and convincing standard. Consequently, we must vacate and remand for a new determination as to whether the clear and convincing evidence standard has been met so as to allow the indicated report of child abuse to be maintained on the ChildLine Registry.
The ChildLine Registry is a statewide central registry that maintains statutorily-designated information concerning perpetrators identified in founded or indicated reports of child abuse that is accessible by specifically authorized third parties. See 23 Pa. C.S. §§ 6331, 6336, 6340(a). --------
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 11th day of April, 2013, the Final Order of the Department of Public Welfare's Bureau of Hearings and Appeals denying C.G.'s request to expunge an indicated report of child abuse is vacated and this matter is remanded for a determination as to whether clear and convincing evidence supports maintaining the indicated report of child abuse on the ChildLine Registry.
Jurisdiction relinquished.
/s/ _________
JAMES GARDNER COLINS, Senior Judge