Opinion
No. 815 C.D. 2012
11-13-2012
C.H., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, C.H. (Mother), petitions for review from a final order of the Secretary of the Department of Public Welfare (DPW) upholding a determination of the Bureau of Hearings and Appeals (BHA) to deny her request for expunction of an indicated report of child abuse by omission against her from the ChildLine Registry. Mother contends DPW erred in affirming BHA's determination because its findings are not supported by the record. Specifically, Mother asserts the record does not support DPW's determination that she knew, or should have known, of a significant risk that her daughter, R.H., would be sexually abused if she did not take protective action. Upon review, in light of this Court's recent decision in G.V. v. Department of Public Welfare, ___ A.3d ___ (Pa. Cmwlth., No. 125 C.D. 2011, filed July 12, 2012) (en banc), petition for allowance of appeal filed, (August 12, 2012), and in light of the nature of the factual determinations at issue here, we remand for a determination consistent with the standard provided in that case.
The ChildLine Registry operates as 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). Notice of the determination must be given to the perpetrators of the child abuse indicating that their ability to obtain employment may be adversely affected. Id.
I. Background
Mother is the natural mother of two girls, R.H. (Daughter) and B.H. (Sister). From 2004 until sometime in 2005, Mother, Daughter and Sister lived with J.A. (Stepfather) and his daughter. At that time, Daughter was approximately 10 years old.
In 2008, the Northampton County Children and Youth and Families Division (CYF) received a report that in 2004, Stepfather sexually abused Daughter, and that Mother knowingly failed to report the abuse. As a result of CYF's investigation, DPW informed Mother that it would list her on the ChildLine Registry as a perpetrator of an indicated report of child abuse. Mother requested DPW reconsider, which it denied. Thereafter, Mother appealed to BHA, and an administrative law judge (ALJ) was assigned to hear the appeal.
An indicated report is defined in the Law as follows:
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:
23 Pa. C.S. §6303(a).(1) Available medical evidence
(2) The child protective service investigation
(3) An admission of the acts of abuse by the perpetrator.
ALJ Richard E. Guida presided over the hearing; however, the matter was reassigned to ALJ Andrew P. Maloney, and he issued the adjudication and recommendation to DPW.
Before the ALJ, CYF presented the testimony of the involved child abuse investigator, Kristin Kayal (Investigator Kayal), a special victims investigator with the Bethlehem Police Department, Thomas Galloway (Detective Galloway), and Daughter. In response, Mother testified on her own behalf, and presented four character witnesses.
At the opening of the hearing, the parties stipulated that Stepfather was convicted of indecent assault for his 2004 abuse of Daughter. Thereafter, Investigator Kayal testified that in 2008, she investigated Stepfather's abuse of Daughter, and whether Mother knowingly failed to protect Daughter. Investigator Kayal testified that she first met with Daughter at her school, and Daughter confirmed the report that her Stepfather abused her. Investigator Kayal testified the police conducted all further interviews with Daughter.
Thereafter, Investigator Kayal met with Mother. Investigator Kayal testified that, according to Mother, Daughter came to her and told her Stepfather touched her privates. Investigator Kayal testified that Mother indicated that around the same time, Stepfather complained of Daughter jumping and hanging onto him. She further testified that Mother informed her that at that time she and Stepfather had a discussion, and Stepfather promised to never do it again.
However, Mother told Investigator Kayal that Daughter informed her that Stepfather continued to touch her inappropriately. Investigator Kayal testified Mother informed her that after the second time her daughter came to her, she threatened Stepfather with calling the police, and the abuse stopped.
Investigator Kayal next testified she met with Stepfather. She testified Stepfather admitted to abusing Daughter on approximately three occasions. He explained to Investigator Kayal that after the first and third incidents, he, Mother, and Daughter talked and prayed about his actions, and he apologized. According to Investigator Kayal, Stepfather claimed he touched Daughter after she jumped on him.
Detective Galloway testified he interviewed Daughter in conjunction with the criminal charges against Stepfather and Mother. He testified that at that time Mother was charged with corruption of a minor and endangering the welfare of a child. According the Detective Galloway, during the interview Daughter stated that after the first incident of abuse she told Mother that Stepfather touched her. Specifically, she described to Mother that Stepfather digitally penetrated her vagina. In response, the three of them talked about it, and Stepfather apologized and promised it would not happen again. However, subsequent incidents occurred. Thereafter, the three of them again met, and Stepfather made similar promises.
Detective Galloway testified Mother's criminal charges where ultimately dismissed and her record expunged after she participated in an accelerated rehabilitative disposition program.
Furthermore, Detective Galloway testified he interviewed Mother. He testified that Mother explained to him that her daughter told her on two occasions that Stepfather sexually assaulted her. Specifically, Mother informed him that the first time Daughter told her that Stepfather touched her, she did not understand what Daughter meant because she was rather vague. Mother explained she did not ask for specifics at that time and believed the incident was related to the jumping and hanging onto Stepfather. Detective Galloway testified that Mother told him she did not think Stepfather would touch Daughter's vagina, because Stepfather did not touch her in that manner when they were intimate. As such, Mother told Detective Galloway that it was not until the second time Daughter spoke to her that she believed Stepfather sexually abused Daughter.
However, Detective Galloway testified Mother stated that after both times Daughter reported the touching, the three talked and prayed about the incident. Furthermore, he testified Mother told him Stepfather admitted touching Daughter both times, but she could not recall how Stepfather described touching Daughter.
Next, CYF called Daughter to testify. Daughter testified that in the summer around fifth or sixth grade, Stepfather sexually assaulted her several times. She testified that after the first time, she told Mother and a friend. However, Daughter testified she could not remember the words she used to tell Mother. Daughter recalled Mother asking her if she was sure and informing her she would handle it.
Daughter testified Stepfather abused her approximately five more times. At some point, Daughter informed Mother again. In response, Mother said she would take care of it, and Stepfather apologized. Daughter testified that no abuse occurred after the second time she informed Mother that Stepfather sexually abused her.
In opposition, Mother testified she did not understand the sexual nature of the contact when it was first mentioned by Daughter. Specifically, Mother testified Daughter was vague about how Stepfather touched her, and Daughter did not act unusual when she told her. However, Mother conceded Daughter whispered her allegation. According to Mother, she asked Daughter what she meant, and Daughter did not say anything but indicated Stepfather slapped her on the right leg and buttock. She testified she did not believe Stepfather's actions were sexual in nature, but were an innocent result of Daughter jumping and hanging on him. Mother explained that she told Daughter she would talk to Stepfather about it. Therefore, she told Stepfather to be more careful when pushing Daughter off of himself. Mother acknowledged she did not take protective steps to prevent Stepfather from sexually abusing Daughter at that time.
Mother testified that approximately two weeks later, Daughter told her that Stepfather touched her again. When Mother asked what she meant, Daughter cupped her hand and began crying. Mother testified that at this moment she understood that Stepfather sexually abused her daughter. Thereafter, Mother spoke to Stepfather, and then both of them spoke to Daughter. Mother further testified Stepfather asked for forgiveness, and the three of them prayed. Afterwards, Mother threatened Stepfather with legal action, monitored his interactions with Daughter, and prevented Stepfather from being alone with Daughter.
Additionally, the parties introduced the stipulated testimony of Sister. Sister's testimony was: Stepfather did not abuse her; she did not observe any abuse of Daughter; and, Daughter did not tell Sister Stepfather abused her. Furthermore, Mother introduced four witnesses, who swore to her law-abiding and peaceful character.
Thereafter, the ALJ determined CYF presented substantial evidence that Mother was a perpetrator of child abuse by omission. Specifically, Mother failed to take reasonable steps to protect Daughter from a known risk of sexual abuse by Stepfather. The ALJ determined that, based on Daughter's statements to Investigator Kayal and Detective Galloway during the initial investigation, Daughter told Mother that Stepfather touched her genitals, including the digital penetration of her vagina, the first time she disclosed any abuse to Mother. Furthermore, Stepfather admitted that when confronted by Mother regarding the first incident, he admitted he touched Daughter in an inappropriate manner and promised it would not happen again. Thus, the ALJ concluded Mother knew, or should have known, that Stepfather posed a risk to Daughter.
The ALJ further determined Mother failed to take reasonable steps to protect Daughter; rather, she merely relied on Stepfather's promise not to repeat his behavior. As a result of Mother's lack of action, Stepfather continued to sexually abuse Daughter. Therefore, the ALJ determined the record supported an indicated status for Mother's abuse by omission.
In reaching his conclusion, the ALJ deemed the testimonies of Investigator Kayal and Detective Galloway credible as their testimonies were supported by their respective investigatory notes. Additionally, the ALJ deemed Daughter's statements to Investigator Kayal and Detective Galloway more credible than her statements at the hearing, as the earlier statements were made closer in time to the event. Furthermore, the ALJ determined Daughter's testimony was not credible regarding her inability to remember what she told Mother after the first incident of abuse. The ALJ did not credit Mother's testimony. Thereafter, BHA adopted the ALJ's findings and recommendation. Mother filed an appeal to DPW, which was denied. Mother now petitions for review to this Court.
II. Issues
On appeal, Mother asserts DPW erred in denying her request for expunction because DPW did not meet its burden to establish that she knew, or should have known, of a significant risk to Daughter. Furthermore, Mother contends many of DPW's findings are not supported by the record.
Our review in expunction cases is limited to determining whether substantial evidence supports the necessary findings of fact, whether errors of law were committed or whether constitutional rights were violated. F.V.C. v. Dep't of Pub. Welfare, 987 A.2d 223 (Pa. Cmwlth. 2010). In addition to determining whether substantial evidence supports a finding that the abuse occurred, we must consider whether clear and convincing evidence of abuse exists to maintain an indicated report of abuse on the ChildLine Registry. G.V. v. Department of Public Welfare, ___ A.3d ___ (Pa. Cmwlth., No. 125 C.D. 2011, filed July 12, 2012) (en banc), petition for allowance of appeal filed, (August 12, 2012).
III. Discussion
Child abuse is defined under the Child Protective Services Law to include "[a]ny . . . 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 (emphasis added). A perpetrator commits abuse by omission by failing to reasonably protect her child from a third party the perpetrator knew, or should have known, presented a threat of danger, and the third party abuses the child. Bucks Cnty. Children & Youth Social Servs. Agency v. Dep't of Pub. Welfare, 616 A.2d 170 (Pa. Cmwlth. 1992). In an indicated report of abuse based on an omission by a parent to protect her child, the question of what the parent knew or should have known is a question of fact. Id.
23 Pa. C.S. §§301-6384. --------
When a party seeks to expunge an indicated report of child abuse, DPW must meet a higher standard of proof, clear and convincing evidence, to maintain the reported abuse on the ChildLine Registry. G.V. Under this heightened standard, DPW must present "evidence that is so clear, direct, weighty, and convincing as to enable [BHA] to come to a clear conviction, without hesitancy, of the truth of the precise facts [in] issue." Id. at ___; slip op. at 18 (quoting Commonwealth v. Maldonado, 576 Pa. 101, 109-110, 838 A.2d 710, 715 (2003)). BHA is the ultimate fact-finder in expunction appeals; therefore, determinations of credibility and evidentiary weight will not be disturbed on appeal absent an abuse of discretion. D.T. v. Dep't of Pub. Welfare, 873 A.2d 850 (Pa. Cmwlth. 2005).
Here, at the time of the hearing and agency appeal, BHA lacked this Court's instruction in G.V. Therefore, BHA considered only whether substantial evidence supported a finding that Mother committed child abuse by omission. ALJ Op., 3/26/12, at 9. See F.V.C. v. Dep't of Pub. Welfare, 987 A.2d 223 (Pa. Cmwlth. 2010).
The primary fact in this case concerned Mother's state of mind, which was established not by direct evidence but by inference based on circumstantial evidence. Moreover, one of the primary witnesses, Daughter, retreated from prior statements. Under these circumstances, it is not clear that the same result would be reached regardless of the standard of proof applied. Therefore, we remand this case to DPW to issue a determination consistent with the standard provided in G.V. See T.T. v. Dep't of Pub. Welfare, 48 A.3d 562 (Pa. Cmwlth. 2012) (remanding where DPW did not apply the clear and convincing standard provided in G.V.).
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 13th day of November, 2012, the order of the Secretary of the Department of Public Welfare is VACATED and this matter is REMANDED to the Department of Public Welfare to issue a new determination as to whether clear and convincing supports maintaining the indicated child abuse report on the ChildLine Registry. The Department of Public Welfare shall issue its determination within 90 days of the date of this order, from which any aggrieved party may appeal.
Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge