Opinion
No. 163 C.D. 2014
12-04-2014
C.H., Petitioner v. Department of Public Welfare, Respondent
CASE SEALED
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
C.H. (Mother) petitions for review of the January 8, 2014 final order of the Secretary of the Department of Public Welfare (DPW) that denied Mother's request for expunction of an indicated report of child abuse by omission from the ChildLine Registry in accordance with the Child Protective Services Law. This appeal was previously before this Court and was remanded to DPW for a determination consistent with the clear and convincing evidence standard this Court held applicable to requests for expunction in G.V. v. Department of Public Welfare, 52 A.3d 434 (Pa. Cmwlth. 2012) (en banc). G.V. was subsequently appealed to our Supreme Court and the Court reversed, 91 A.3d 667 (Pa. 2014), holding that substantial evidence, rather than clear and convincing evidence, is the evidentiary standard necessary to maintain an indicated report of child abuse. Our standard of review is, therefore, limited to determining whether constitutional rights have been violated, whether errors of law have been committed, and whether necessary findings of fact are supported by substantial evidence or "evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." 23 Pa. C.S. § 6303; Bedford County Children and Youth Services v. Department of Public Welfare, 613 A.2d 48, 50 (Pa. Cmwlth. 1992). Because we conclude that the record contains the evidence necessary to maintain an indicated report of child abuse by omission, we affirm the final order issued by DPW.
Act of December 19, 1990, P.L. 1240, as amended, 23 Pa. C.S. §§ 301-6384. The ChildLine Registry is a statewide system for receiving reports of suspected child abuse, referring reports for investigation, and maintaining those reports. 23 Pa. C.S. § 6332. A report of suspected child abuse may be either "indicated," "founded," or "unfounded." 23 Pa. C.S. §§ 6337, 6338. In the case of "indicated" or "founded" reports, the information is placed in the statewide central registry. 23 Pa. C.S. § 6338(a). An indicated report is defined as a "child abuse report made pursuant to this chapter if an investigation by the county agency or [DPW] determines that substantial evidence of the alleged abuse exists based on any of the following: (1) available medical evidence; (2) the child protective services investigation; (3) an admission of the acts of abuse by the perpetrator." 23 Pa. C.S. § 6303(a).
The substantial evidence standard statutorily mandated by the Child Protective Services Law is akin to the preponderance of evidence standard used by the factfinder to weigh evidence in a civil action, and differs from the appellate review for substantial evidence conducted in accordance with the Administrative Agency Law, 2 Pa. C.S. § 704. In re S.H., 96 A.3d 448, 455 (Pa. Cmwlth. 2014); S.T. v. Department of Public Welfare, Lackawanna County Office, Children, Youth & Family Services, 681 A.2d 853, 856 (Pa. Cmwlth. 1996).
Child abuse is defined under the Child Protective Services Law to include any failure to act by a perpetrator which creates an imminent risk of sexual abuse of a child under 18 years of age. 23 Pa. C.S. § 6303. A perpetrator commits abuse by omission if a reasonable person in the position of the parent or caretaker, "knew or should have known that the acts of abuse were occurring and the parent or caretaker failed to take steps to remove the child from harm's way." Bucks County, Children and Youth Social Services Agency v. Department of Public Welfare, 616 A.2d 170, 174 (Pa. Cmwlth. 1992) (emphasis in original). In determining whether a caretaker or parent is a perpetrator of child abuse by omission, the question of whether a parent or caretaker knew or should have known that the abuse was occurring and the question of whether the parent or caretaker acted reasonably under the circumstances are questions of fact. Id. In an action to expunge an indicated report of child abuse, the Bureau of Hearings and Appeals as the designee of the Secretary of DPW is the ultimate finder of fact. 23 Pa. C.S. § 6341; R. v. Department of Public Welfare, 636 A.2d 142, 145 (Pa. 1994); B.B. (B.L.) v. Department of Public Welfare, 17 A.3d 995, 999 (Pa. Cmwlth. 2011). As the ultimate finder of fact, the Bureau of Hearings and Appeals is vested with the discretion to make credibility determinations and weigh and resolve conflicts in the evidence. D.T. v. Department of Public Welfare, 873 A.2d 850, 853 & n.3 (Pa. Cmwlth. 2005); K.J. v. Pennsylvania Department of Public Welfare, 767 A.2d 609, 613 (Pa. Cmwlth. 2001). Where a factfinder has not observed witness testimony firsthand and is therefore unable to base credibility determinations on an assessment of witness demeanor, the factfinder must provide an objective basis for the credibility determinations. R. v. Department of Public Welfare, 636 A.2d at 145; In re S.H., 96 A.3d 448, 459 (Pa. Cmwlth. 2014).
The initial hearing in this case was held on August 30, 2010 before Administrative Law Judge Richard E. Guida. On January 18, 2012, the parties were informed that Administrative Law Judge Guida was no longer with the Bureau of Hearings and Appeals. The Adjudication was subsequently issued by Administrative Law Judge Andrew P. Maloney based on his review of the record.
Our previous decision in the instant matter, C.H. v. Department of Public Welfare, (Pa. Cmwlth. No. 815 C.D. 2012, filed September 28, 2012), thoroughly reviewed the factual history giving rise to this appeal. Therefore we will discuss only those facts necessary to resolve this appeal.
Mother argues that the findings of fact made by the Administrative Law Judge (ALJ) appointed by the Bureau of Hearings and Appeals are not supported by substantial evidence. There is no dispute that R.H. (Child) was sexually abused by J.A. (Stepfather). There is also no dispute that after Child's second disclosure to Mother that Stepfather was sexually abusing her, Mother confronted Stepfather and took action to stop the abuse. The issue is whether Mother knew or should have known that the abuse was occurring following Child's first disclosure of abuse and, at that time, should have taken action to prevent the abuse from recurring.
The ALJ found that "about the end of [Child's] fifth grade, [Child] told [Mother] that [Stepfather] digitally penetrated her vagina with his hand. This was [Child's] first abuse disclosure." (ALJ Finding of Fact (F.F.) ¶5.) The ALJ further found that after "[Child's] first disclosure, [Mother] confronted [Stepfather], who admitted to touching [Child's] genitals with his hand and apologized to [Child] for his conduct." (F.F. ¶6.) The ALJ based these findings on the testimony of Children and Youth Services Investigator Kayal, Detective Galloway, and the testimony of Child. The ALJ found Investigator Kayal and Detective Galloway credible, but did not find the testimony of Child credible regarding her failure to recall what she communicated to Mother at the time of her first abuse disclosure. (F.F. ¶¶26-28.)
Investigator Kayal testified that on May 21, 2008 Mother "reported that her daughter did come to her after the first incident and told her [] that her stepfather had touched her privates. At that time, [Mother, Child, and Stepfather] sat down and had a discussion in regards to what had happened." (Hearing Notes of Testimony (N.T.) at 8-9, 17.) Investigator Kayal testified that she also spoke with Stepfather and he related that "he had touched [Child] on three occasions. He did state after the first occasion, he had sat down with his wife and stepdaughter. They had prayed about the incident. He did promise not to do it again and then it happened two more times." (N.T. at 9.) Investigator Kayal testified that Child had made consistent statements throughout her investigation. (N.T. at 9.) When asked on redirect examination whether Mother told her during her investigation that Mother was aware of the first incident of sexual assault, Investigator Kayal stated: "There's no doubt in my mind that she told me that, no." (N.T. at 17.)
Investigator Kayal's testimony reflected the conclusion reached in her contemporaneous child protective services report, where she found that Child was twice more sexually assaulted by Stepfather after she had reported to Mother that Stepfather had digitally penetrated her vagina and Mother had promised "she would take care of it." (N.T. Exhibit 1 CY-48 report.)
Detective Galloway interviewed Mother on August 6, 2008. (N.T. at 21.) Detective Galloway testified about his interview with Mother and Child and the statements made by both Mother and Child during his investigation. (N.T. at 20-33.) Detective Galloway's testimony concerning the statements made by Child on June 3 and July 24, 2008 are consistent with the testimony given by Investigator Kayal. Like Investigator Kayal, Detective Galloway testified that Child told him she twice disclosed to Mother that Stepfather had sexually assaulted her. (N.T. at 20, 24, 26, 31.)
Detective Galloway's testimony concerning the statements Mother made during his interview differ from the testimony given by Investigator Kayal concerning the statements Mother made during her interview. Unlike Investigator Kayal, Detective Galloway testified that Mother reported that during the first disclosure, Child was very vague, and that Mother did not understand what Child meant by being touched, in part Mother stated because Child was trying to describe being digitally penetrated in her vagina, a method of sexual touching that was not a part of Mother and Stepfather's sexual interactions. (N.T. at 27, 31.) Mother told Detective Galloway that during the first disclosure, she did not ask Child for specifics, and that she told Child that the touching Child was disturbed by may have been a result of Child jumping up on and being clingy with Stepfather. (N.T. at 27.)
Although both Investigator Kayal and Detective Galloway testified that Child was consistent in her statements that she disclosed the nature of Stepfather's sexual assaults to Mother on two occasions, Child testified at the hearing that she could not recall the specifics of her statements to Mother. (N.T. at 35-36.) Child further testified that when she first spoke with Mother about the abuse that, "she led me to believe that she didn't really know what I meant." (N.T. at 38.) Child was eleven (11) years old at the time of the sexual assaults and the hearing did not take place until she was seventeen (17) years old. (N.T. at 33-34, 37, 43.)
The ALJ incorrectly found that Child was thirteen (13) at the time of the abuse based on the date of report rather than the date of incident. (F.F. ¶1; see also N.T. at 41a & Exhibit 1 CY-48 Report.)
Mother testified and described Child's first disclosure. (N.T. at 45.) Mother stated that Child "came into the living room and said, Mommy, I have to tell you something and I said okay. We sat down on the sofa [and] she said, he touched me. I said, what do you mean he touched you. She never said a word after that," and Mother described that Child then stood up and slapped herself on the right leg and right buttock. (N.T. at 45.) Mother further testified that Stepfather had complained recently about Child hanging on him and being clingy, and that she believed Child was describing Stepfather pushing her off him in an unkind manner. (N.T. at 46-47.) She stated that, following the first disclosure, she spoke with Stepfather about being more careful with his treatment of Child, and that there was nothing in this conversation that led her to believe the touching had been sexual in nature. (N.T. at 47-48.) She also testified that her daughter was not nervous or upset during the first disclosure. (N.T. at 48.) Mother stated that the second disclosure came two weeks later when she was brushing Child's hair and that Child stated that Stepfather had touched her again, began crying, and then used her hands to indicate how Stepfather had touched her. (N.T. at 49-50.) Mother testified that she confronted Stepfather, that they prayed as a family, that Stepfather was never alone with Child again, and that the abuse stopped. (N.T. at 51-54.) On cross-examination, Mother admitted that she knew that Stepfather had committed a crime and that she did not report what happened to Child to police "because we took care of it in our home." (N.T. at 57.) When Stepfather was subsequently arrested, Mother stated that she cooperated with police. (N.T. at 55.)
In reaching his determination that the report of child abuse by omission was indicated, the ALJ relied heavily on the testimony of Investigator Kayal and Detective Galloway. The ALJ found that their testimony was credible "as it was provided in a straightforward manner, supported by their respective contemporaneous investigation notes, and they lacked a personal interest in the appeal's outcome." (ALJ Adjudication at 11.) The ALJ concluded that Mother's statements as reported by Investigator Kayal were consistent with Mother's statements as reported by Detective Galloway. (Id. at 10.) However, the hearing transcript does not support the ALJ's conclusion. (N.T. at 26.) Detective Galloway testified about what Child had reported in his interview of her, but when pressed on what Mother had reported, Detective Galloway stated: "I don't clearly recall that interview. I would have to review that report and if I could just review my report. If I could just have a moment." (N.T. at 26.) Following review of his notes, Detective Galloway's recollection of Mother's statements aligns with the testimony given by Mother and is inconsistent with the testimony given by Investigator Kayal. (N.T. at 27-33.) The ALJ's conclusion that Mother's statements against interest made to Detective Galloway corroborate those made to Investigator Kayal and undermine Mother's credibility is unsupported by the record. (ALJ Adjudication at 10.)
The remaining evidence supporting the ALJ's determination that the report of child abuse by omission was indicated, consists of Investigator Kayal's testimony concerning Mother's statements against interest, and Investigator Kayal's and Detective Galloway's testimony that Child reported during their interviews that she disclosed the full nature of the sexual abuse to Mother twice. The ALJ found that Investigator Kayal's testimony that Mother admitted she was aware of the sexual assault following Child's first disclosure was not hearsay because it constituted a statement against interest. (ALJ Adjudication at 10.) The ALJ also found that Mother's admission to Investigator Kayal further corroborated the statements Child made to Investigator Kayal and Detective Galloway, and that Child's statements testified to by Investigator Kayal and Detective Galloway were closer in time to the event than Child's testimony at the hearing and likely more accurate. (Id. at 11.)
Mother's admission to Investigator Kayal that she had knowledge of Stepfather's sexual abuse after Child's first disclosure is not hearsay; however, Child's statements to Investigator Kayal and Detective Galloway are hearsay. The testimony concerning earlier, out-of-court statements made by Child was properly objected to. The use of out-of-court statements by children in expungement cases is controlled by our Supreme Court's decision in A.Y. v. Commonwealth, Department of Public Welfare, 641 A.2d 1148 (Pa. 1994), which applied the statutory hearsay exception for dependency cases to cases brought under the Child Protective Services Law and set forth the standard for admission of hearsay in expungement proceedings. In re E.A., 82 A.3d 370, 381 (Pa. 2013). The Court in A.Y. adopted the following guidelines:
See Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976) ("We set forth the following guidelines: (1) Hearsay evidence, Properly objected to, is not competent evidence to support a finding of the Board[;] (2) Hearsay evidence, Admitted without objection, will be given its natural probative effect and may support a finding of the Board, If it is corroborated by any competent evidence in the record, but a finding of fact based Solely on hearsay will not stand.") (internal citations omitted).
1. Hearsay testimony of a child victim will be admitted in accordance with the standards set forth in 42 Pa.C.S. § 5986[], and this rule shall
be applied to permit the testimony of the victim's parents and other family members as well as those professionals charged with investigating incidents of child abuse;
2. Hearsay testimony in conjunction with admissible corroborative evidence of the act(s) in question can in toto constitute substantial evidence which will satisfy the Agency's burden to justify a conclusion of abuse.
3. However, uncorroborated hearsay cannot satisfy the Agency's burden unless it comports with the following requirements:
A.Y., 641 A.2d at 1153 (emphasis in original); accord In Re E.A., 82 A.3d at 381. Child was available to and did testify at the hearing, but failed to corroborate any earlier statements concerning Mother's knowledge following the first disclosure; therefore, her hearsay statements cannot be admitted under the statutory exception for hearsay statements in dependency and Child Protective Services cases. See 42 Pa. C.S. § 5986(2). The record does not contain audio or visual recordings of Investigator Kayal's and Detective Galloway's interviews with Child. Therefore, Investigator Kayal's and Detective Galloway's testimony concerning Child's out-of-court statements cannot constitute substantive evidence unless they are corroborated by other admissible evidence.a) the statement was accurately recorded by audio or video equipment;
b) the audio-visual record discloses the identity and at all times included the images and/or voices of all individuals present during the interview of the minor; and
c) the statement was not made in response to questioning calculated to lead the minor to make a particular statement and was not the product of improper suggestion.
In relevant part, Section 5986, entitled "Hearsay," provides:
(a) General rule.--A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or court ruling, is admissible in evidence in a dependency proceeding initiated under Chapter 63 (relating to juvenile matters), involving that child or other members of that child's family, if:
(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is found by the court to be unavailable as a witness.
(b) Emotional distress.--In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child's ability to reasonably communicate. In making this determination, the court may do all of the following:
(1) Observe and question the child, either inside or outside the courtroom.
(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting.
The sole corroboration for Child's hearsay statements regarding the first disclosure of abuse is Investigator Kayal's statement that Mother admitted having knowledge of the abuse following the first disclosure. Investigator Kayal's testimony is supported by her contemporaneous report, where she also recorded that Mother admitted to having knowledge of the abuse following the first disclosure. Mother's statement to Investigator Kayal is not hearsay. See Pa. R.E. 803(25). Mother's statement was a party admission not subject to exclusion under the rule against hearsay because "it is fair in an adversary system that a party's prior inconsistent statements be used against [her] if they are inconsistent with [her] position at trial. In addition, a party can hardly complain of [her] inability to cross-examine [herself]. A party can put [herself] on the stand and explain or contradict [her] former statements." Commonwealth v. Chimel, 738 A.2d 406, 420 (Pa. 1999); see also Dillion v. Unemployment Compensation Board of Rewview, 68 A.3d 1054, 1059-1060 (Pa. Cmwlth. 2013) (claimant's own admissions on internet claim form and blood alcohol content (BAC) testing form were sufficient to support denial of unemployment compensation); Rackley v. Pennsylvania Board of Probation and Parole, 881 A.2d 69, 71 (Pa. Cmwlth. 2005) (board's decision to rescind parole on basis of good cause supported by parolee's out-of-court admission to parole officer); Alessandro v. Workers' Compensation Appeal Board (Precision Metal Crafters, LLC), 972 A.2d 1245, 1252 (Pa. Cmwlth. 2009) (claimant's statement in tax affidavit was admission of opposing party and could be relied upon as substantive evidence). Mother testified and offered her version of events, but Mother did not address her statements to Investigator Kayal. In contrast, Mother did address testimony given by Detective Galloway, stating, "What the officer said, that I thought she was dishonest, I never said that." (N.T. at 47.) Mother's statement against interest to Investigator Kayal is fully admissible evidence of her knowledge and serves to corroborate the statements made by Child during Investigator Kayal and Detective Galloway's interviews with Child.
The ALJ made errors in reviewing the evidence of record. However, even accounting for these errors, there is substantial evidence in the record that Mother knew or should have known that Child was sexually assaulted by Stepfather following Child's initial disclosure. Mother took no action following this disclosure. Child was sexually assaulted by Stepfather twice after Child's initial disclosure to Mother. The evidence of record, including the child protective services report, Child's statements to Investigator Kayal and Detective Galloway, and Mother's admission to Investigator Kayal, supports the ALJ's finding that Mother failed to take reasonable steps to protect Child from further abuse by Stepfather following Child's first disclosure of sexual assault and is adequate to support DPW's conclusion that the report of child abuse by omission should be placed in the statewide central registry as indicated.
The final order of the Secretary of DPW is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 4th day of December, 2014, the final Order of the Secretary of the Department of Public Welfare in the above-captioned matter is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge
42 Pa. C.S. § 5986(a)-(b).