Opinion
Argued February 7, 1989.
April 14, 1989.
Department of Public Welfare — Child abuse report expungement — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Burden of proof — Sexual abuse.
1. Review by the Commonwealth Court of Pennsylvania of a decision of the Department of Public Welfare denying a request to expunge a child abuse report is to determine whether constitutional rights were violated, an error of law was committed or findings of fact were unsupported by substantial evidence. [170-1]
2. In child abuse expungement cases, the burden is upon the child protective service to establish that the report is supported by substantial evidence which is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. [171]
3. Findings of facts of the Office of Hearings and Appeals of the Department of Public Welfare that fit the definition of sexual abuse will not be disturbed on appeal in a child abuse expungement case when such findings are supported by substantial evidence. [172]
Judge DOYLE filed a dissenting opinion which was substantially as follows:
1. When evidence given by a fifteen year old of incidents occurring when she was four to eight years old does not support a finding of sexual abuse, expungement of a child abuse report is improperly denied. [172]
Argued February 7, 1989, before Judges CRAIG, DOYLE and PALLADINO, sitting as a panel of three.
Appeal No. 1814 C.D. 1988, from the Order of the Department of Public Welfare, in the case of Appeal of: J.S., Docket No. 21-87-081, CL No. 02-16861.
Report of child abuse filed by Child Protective Services Department of Allegheny County Children and Youth Services. Request to expunge record filed with Department of Public Welfare. Hearing Officer recommended expungement of indicated report. Office of Hearing and Appeals rejected recommendation. Appeal filed in the Commonwealth Court of Pennsylvania. Held: Denial affirmed.
Harry R. Ruprecht, King, Ruprecht McQuoid, for petitioner.
Kathleen Harrington, for respondent.
Laura J. Whiteman, Assistant County Solicitor, with her, James A. Esler, Assistant County Solicitor, and James J. Dodaro, County Solicitor, for intervenor, Children and Youth Services of Allegheny County.
J.S. appeals a decision of the Office of Hearings and Appeals of the Department of Public Welfare (DPW) that rejected a hearing officer's recommendation to expunge an indicated report of child abuse maintained under the Child Protective Services Law implicating J.S., the father of A.S. We affirm.
Act of November 16, 1975, P.L. 438, as amended, 11 P. S. § 2201-2224.
On March 27, 1987, Allegheny County Children and Youth Services (CYS), received a report of suspected sexual abuse alleging that J.S. had sexually abused A.S. After an extensive investigation that consisted of interviews with A.S., her mother, J.S., and a telephone conversation with A.S.'s counselor, CYS concluded that the open mouth kissing J.S. inflicted on A.S.'s face and neck constituted sexual assault. On May 1, 1987, CYS filed an indicated report of child abuse naming J.S. as the perpetrator. On July 2, 1987, the Office of Child Welfare Services denied J.S.'s request to expunge the record.
After considering all of the evidence, hearing officer Strong made the following significant findings:
4. On numerous occasions between the times that she was ages four to eight, the appellant held the subject child down and kissed her on her face and neck with his mouth open. He did not use his tongue. (N.T. 38 and 95.)
5. The child does not allege that the appellant touched her breast or genital area, (N.T. 39 and 40.)
7. The subject child has had virtually no contact with the appellant outside of court since the appellant and the mother of the subject child were divorced in 1980. (N.T. 29.)
8. There is animosity between the appellant and his ex-wife.
As a result, the hearing officer concluded that "the events as described by [A.S.] do not constitute sexual assault as defined at 55 Pa. Code § 3490.4. The subject child may not have liked her father holding her down and kissing her, but these acts do not constitute sexual assault."
The Office of Hearings and Appeals rejected the hearing officer's recommendation for the reason that J.S. lay with his body on top of A.S., thereby touching "sexual or other intimate parts" of her body.
On appeal, J.S. contends that evidence of a father kissing his daughter on the face and neck does not support a conclusion of sexual abuse.
Our court must affirm the adjudication of the Office of Hearings and Appeals unless the adjudication is in violation of constitutional rights, and error of law was committed, or any factual finding made by the agency and necessary to support the adjudication is not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704. In an expungement case, the child protective service has the burden of establishing that the report is supported by substantial evidence. G.S. v. Commonwealth of Pennsylvania, Department of Public Welfare, 104 Pa. Commw. 84, 521 A.2d 87 (1987). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Murphy v. Department of Public Welfare, 85 Pa. Commw. 23, 480 A.2d 382 (1986).
Sexual abuse is defined by the Law as "the obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution, or other such forms of sexual exploitation of children under circumstances which indicate that the child's health and welfare is harmed or threatened thereby, as determined in accordance with regulations prescribed by the Secretary." Section 3 of the Law, 11 P. S. § 2203. The Public Welfare Code specifically defines sexual abuse as "any of the following when committed on a child by a perpetrator: . . . (iii) sexual assault — sexual involvement, including the touching or exposing of sexual or other intimate parts of a person, for the purpose of arousing or gratifying sexual desire in either the perpetrator or subject child." 55 Pa. Code § 3490.4.
On direct examination, A.S. testified:
Q. And what did you tell Family Resources that would have caused them to file a Childline report with Allegheny County Children and Youth Services?
. . .
A. Okay. And I guess you could say I had my first real kiss and I got a weird feeling inside and it bothered me for awhile and I told my mom about it; so she said maybe we should go see someone to be sure that everything's okay. So I went in and they asked me what happened. So I told her that my father used to play these games with me, okay, and he would, from my head like around my neck area, he would kiss me, he would get on top of me and do this, and his mouth would be open and he, they weren't the types of kisses that were normal. At least they made me feel uncomfortable.
Speculation as to the nature and extent of bodily contact, considering height differences between J.S, an adult, and A.S., a child, is not for the court. The Office of Hearings and Appeals is the final factfinder. G.S., 104 Pa. Commw. at 84, 521 A.2d at 87.
The decision of the Office of Hearings and Appeals is supported by substantial evidence.
Accordingly, we affirm.
ORDER
NOW, April, 14, 1989, the order of the Department of Public Welfare at No. 21-87-081, dated June 20, 1988, is affirmed.
I respectfully dissent on the basis that the only evidence in the record on which a finding of sexual assault could be found is that which the majority opinion recites (slip op. p. 4) by the "child," now fifteen years old, recounting experiences which occurred when she was a child of four to eight. That testimony, even if taken as absolutely true, simply does not, as a matter of law, support a finding of "sexual assault" defined as, "Sexual involvement, including the touching or exposing of sexual or other intimate parts of a person, for the purpose of arousing or gratifying sexual desire in either the perpetrator or subject child." 55 Pa. Code § 3490.4.