Opinion
No. 1381 C.D. 2012
06-06-2013
L.H. and T.H., Petitioners v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioners L.H. and T.H. petition for review of an order of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (BHA), dated June 21, 2012. The BHA's order adopted an Administrative Law Judge's (ALJ) recommendation to deny Petitioners' four consolidated appeals requesting to expunge indicated reports of child abuse by omission filed by Bedford County Children and Youth Services (CYS). For the reasons set forth below, we now vacate and remand.
D.K. is the biological mother of two girls, G.K. and S.H. D.H. is the biological father of S.H. Petitioners are the parents of D.H., and, thus, they are the paternal grandparents of S.H. D.K., D.H., and the two children, G.K. and S.H., lived together, and their residence was located within walking distance of Petitioners' residence.
Da.K., who is the biological father of G.K., is deceased.
On July 14, 2008, CYS received a report of suspected child abuse against D.H. involving D.S., a female child who would accompany D.H.'s biological son on visitations with D.H. (Certified Record (C.R.), Item No. 3, Ex. C-1.) As a result of investigating this incident, CYS believed that G.K. and S.H. were at risk of being sexually abused by D.H., and, consequently, CYS developed a safety plan prohibiting unsupervised contact between the children and D.H. CYS conducted a home visit on September 4, 2008, with D.K. and Petitioners to discuss the safety plan and the risk of leaving D.H. unsupervised with the children. D.K. signed the safety plan on September 4, 2008, but Petitioners did not. Subsequently, on September 25, 2009, D.K. and Petitioners signed a second safety plan, providing that they would not allow unsupervised contact between D.H. and the subject children, G.K. and S.H.
On February 1, 2010, CYS received a report of suspected child abuse of G.K., and, on that same day, CYS removed G.K. and S.H. from their living situation and placed the children in foster care. Thereafter, on February 24, 2010, CYS received a report of suspected child abuse of S.H. As a result of CYS's investigation into both reports, DPW informed Petitioners that it would list them on the ChildLine Registry as perpetrators of an indicated report of child abuse by omission as to both G.K. and S.H. for allowing unsupervised contact between D.H. and the children, in violation of the September 25, 2009 safety plan that Petitioners had signed. Petitioners then requested a hearing to determine whether DPW, pursuant to the Child Protective Services Law, 23 Pa. C.S. §§ 6301-6386, correctly registered Petitioners on the ChildLine Registry with an indicated status for sexually abusing G.K. and S.H. by omission.
On December 1, 2011, the ALJ held an evidentiary hearing on the consolidated appeals at which G.K., D.K., Petitioners, and Lisa C. Cairo, in her capacity as a supervisor at CYS, all testified. The parties stipulated relating to the specific abuse perpetrated by D.H. with regard to both G.K. and S.H. On June 18, 2012, the ALJ issued his recommendation to deny Petitioners' consolidated appeals, which BHA adopted. Petitioners then petitioned this Court for review.
On appeal, Petitioners challenge several of the ALJ's findings of fact, arguing that substantial evidence does not exist to prove that they engaged in abuse by omission as to G.K. and S.H. More specifically, Petitioners argue that there is a lack of substantial evidence to show that they left G.K. and S.H. unsupervised with D.H. during the time period at issue (i.e., September 25, 2009, to February 1, 2010). Petitioners also challenge BHA's credibility determination contained in finding of fact number 31, which provides that Petitioners' testimony that they did not allow D.H. to be alone with the children after they signed the safety plan was not credible. In support of that argument, Petitioners contend that the dismissal of the criminal charges against them relating to this matter constitutes substantial evidence rendering their testimony credible.
"Our scope of review is limited to determining whether constitutional rights have been violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence." J.M. v. Dep't of Pub. Welfare, 52 A.3d 552, 554 n.6 (Pa. Cmwlth. 2012).
Although not preserved in their petition for review, Petitioners further contend that substantial evidence does not exist to prove that they knew or should have known that the acts of abuse were occurring, and they also contend that the ALJ improperly relied upon uncorroborated hearsay in rendering the findings of fact. In accordance with Pa. R.A.P. 1513(d), where a petitioner fails to include an issue in his petition for review, but addresses the issue in his brief, this Court has declined to consider the issue, because it was not raised in the stated objections in the petition for review, nor fairly comprised therein. See Tyler v. Unemployment Comp. Bd. of Review, 591 A.2d 1164, 1168 (Pa. Cmwlth. 1991).
First, we will address Petitioners' argument that substantial evidence does not exist to prove that they allowed G.K. and S.H. to be unsupervised with D.H. on occasions between September 25, 2009, and February 1, 2010. Rather, Petitioners contend that any instances where they allowed the children to be unsupervised with D.H. occurred before September 25, 2009, and that the ALJ misconstrued the testimony in finding otherwise. In expungement proceedings, DPW has the burden to prove that the indicated report is accurate. T.T. v. Dep't of Pub. Welfare, 48 A.3d 562, 567 (Pa. Cmwlth. 2012). Traditionally, DPW had to produce substantial evidence to meet this burden. Id. In G.V. v. Department of Public Welfare, 52 A.3d 434 (Pa. Cmwlth. 2012), appeal granted, No. 619 MAL 2012 (Pa. March 21, 2013), this Court held, however, "that substantial evidence must support a determination of whether child abuse has occurred, but there must be clear and convincing evidence of child abuse to maintain statutorily-designated information from an indicated report on the ChildLine Registry." G.V., 52 A.3d at 446. We described the clear and convincing standard as follows:
This Court has determined "substantial evidence in that context to mean '[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion.'" T.T., 48 A.3d at 567 n.7 (quoting A.O. v. Dep't of Pub. Welfare, 838 A.2d 35, 39 (Pa. Cmwlth. 2003)).
Clear and convincing evidence is the highest burden in our civil law and requires that the fact-finder be able to come to clear conviction, without hesitancy, of the truth of the precise fact in issue. To meet that standard, it necessarily means that the witnesses must be found to be credible, that the facts to which they have testified are remembered distinctly, and that their testimony is so clear, direct, weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.T.T., 48 A.3d at 567 (citation omitted).
At the time the ALJ rendered his recommendation and BHA adopted it, this Court had not yet decided G.V. Thus, the ALJ and BHA did not analyze whether DPW met its burden to show by clear and convincing evidence that the indicated reports of child abuse by omission are accurate.
Accordingly, because BHA may have weighed the evidence differently under the current standard of proof, we vacate BHA's order and remand for a new determination as to whether DPW met its burden to prove by clear and convincing evidence that the indicated reports of child abuse by omission are accurate and, consequently, whether expungement of the report summaries from the ChildLine Registry is appropriate.
As a result of our disposition above, we need not address Petitioners' argument that BHA erred in rendering its credibility determination. Nevertheless, we note that "[i]t is well settled that credibility determinations in expungement proceedings are made by the fact finder and are not subject to appellate review." G.V., 52 A.3d at 439. --------
Accordingly, we vacate and remand BHA's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 6th day of June, 2013, we vacate the order of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (BHA), and remand for a new determination as to whether DPW met its burden to prove by clear and convincing evidence that the indicated reports of child abuse by omission are accurate, such that expungement of the report summaries from the ChildLine Registry is not warranted.
/s/_________
P. KEVIN BROBSON, Judge