Opinion
No. 1548 C.D. 2011
03-14-2012
K. C., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
K.C. petitions for review of the July 20, 2011, corrected order of the Regional Manager (Manager) of the Bureau of Hearings and Appeals (Bureau) of the Department of Public Welfare (DPW). The Manager's order adopted in its entirety the Recommendation of a DPW administrative law judge (ALJ) that an appeal filed by K.C. under the provisions of the Child Protective Services Law (Law) be denied and that the indicated report of child abuse naming her as a perpetrator should not be expunged from the ChildLine Registry. We affirm.
23 Pa.C.S. §§6301 - 6385.
Section 6303(a) of the Law defines "indicated report" as follows:
[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:
23 Pa.C.S. §6303(a). See also section 3490.4 of DPW's regulations, 55 Pa. Code §3490.4.(1) Available medical evidence.
(2) The child protective service investigation.
(3) An admission of the acts of abuse by the perpetrator.
Section 6303(b)(1) of the Law defines "child abuse," in pertinent part, as "[a]ny recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age." 23 Pa.C.S. §6303(b)(1)(i). In turn, section 6303(a) defines "nonaccidental" as an injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk." 23 Pa.C.S. §6303(a). Finally, section 6303(a) of the Law defines "serious physical injury," in pertinent part, as "[a]n injury that ... [s]ignificantly impairs a child's physical functioning, either temporarily or permanently." Id. See also section 3490.4 of DPW's regulations, 55 Pa. Code §3490.4.
In pertinent part, section 6303(a) of the Law defines "perpetrator" as "[a] person who has committed child abuse and is a parent of a child...." 23 Pa.C.S. §6303(a).
K.P. is a female child born on June 29, 2010 to K.C., her mother, and A.P., her father and K.C.'s paramour. (Findings of Fact Nos. 1, 3.) A.P. is a semi-professional boxer. (Finding of Fact No. 4.) In the summer of 2010, K.P. lived with A.P. and K.C. and her other child. (Finding of Fact No. 3.) During that summer, A.P. worked for periods of time and left the home for job interviews when he was unemployed and K.C. stayed at home with her children. (Findings of Fact Nos. 6, 7.)
Prior to August 1, 2010, when K.P. was just four weeks old or younger, K.C. saw A.P. hit K.P. in the ribs on two separate occasions after he became upset with the infant. (Finding of Fact No. 8.) On August 1, 2010, when K.P. was just over four weeks old, A.P. punched K.C. several times and punched the infant three times in the ribs. (Finding of Fact No. 9.) K.C. noted that K.P. was fussy for weeks after A.P. had punched her in the ribs on August 1, 2010. (Finding of Fact No. 10.) A.P.'s punches had fractured four of K.P.'s ribs. (Finding of Fact No. 13.) K.C. thought that the infant was fussy due to colic. (Finding of Fact No. 12.) K.C. did not disclose A.P.'s punching K.P. to the infant's pediatrician during her July and August 2010 wellness visits. (Finding of Fact No. 11.)
On August 27, 2010, when K.P. was just eight weeks old, A.P. physically assaulted both K.C. and K.P. (Finding of Fact No. 14.) A.P. punched K.P.'s left leg, fracturing the infant's femur. (Id.) K.C. and A.P. took K.P. to the hospital for treatment of the infant's leg injury. (Finding of Fact No. 16.) K.C. reported to the hospital staff that her injuries and K.P.'s injuries were the result of a mugging and she could not offer a cause for K.P.'s rib fractures. (Finding of Fact No. 21.) As of August 28, 2010, K.P.'s rib fractures were two to three weeks old and no skin bruising was present. (Finding of Fact No. 17.)
On August 30, 2010, the York County CYS received an allegation regarding K.P.'s physical abuse and began an investigation, and K.C. admitted to CYS caseworker Ashley Rohrbaugh that the infant had been in her care since birth. (Findings of Fact Nos. 18, 19.) Between August 27, 2010, and September 1, 2010, K.C. repeatedly told hospital staff, CYS, and law enforcement that her injuries and K.P.'s injuries were the result of a mugging and that she could not explain the cause of K.P.'s rib fractures. (Finding of Fact No. 21.) As of September 20, 2010, K.C. was no longer living with A.P. (Finding of Fact No. 25.)
During a September 20, 2010, interview with the York Police Department, K.C. admitted that she saw A.P. punch K.P. in the ribs on multiple occasions, and she specifically recalled three instances when it occurred. (Finding of Fact No. 26.) K.C. stated that she was beaten when she tried to stop A.P. from hitting K.P. and that she did not disclose A.P.'s violent behavior to anyone. (Id.)
On September 29, 2010, CYS filed an "indicated" Investigative Report (CY 48) which was entered on the ChildLine Registry. (Finding of Fact No. 29.) The CY 48 alleged the following:
Section 6331 of the Law states, in pertinent part:
There shall be established in the department:23 Pa.C.S. §6331(2).
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(2) A Statewide central register of child abuse which shall consist of founded and indicated reports.
[K.P.] was treated at Hershey Medical Center and they discovered that the femur in her left leg was fractured. She also had 4 healing rib fractures on her right side that were 2 to 3 weeks older than the leg fracture. [A.P.] admitted to punching the baby 2 times in the leg, causing the femur fracture. He also admitted to "playfully" hitting [K.P.] in the ribs, which resulted in the rib fractures. [A.P.] is being charged with aggravated assault, simple assault and endangering the welfare of a child. [K.C.] witnessed [A.P.] hitting the baby in the ribs 3 weeks prior to the incident where the femur was fractured. She failed to remove the child from the situation and she was injured again as a result. [K.C.] meets the [Law's] criteria for a Perpetrator by omission.(Certified Record (C.R.) Item No. 3 Exhibit C-1 at 2.)
On October 6, 2010, DPW notified K.C. that she was listed as a perpetrator on the ChildLine Registry. (Finding of Fact No. 30.) On October 29, 2010, K.C. appealed CYS's decision to file the indicated report and requested expunction of her name from the ChildLine Registry. (Finding of Fact No. 31.)
Section 6341 of the Law states, in pertinent part:
(a) General rule.—At any time:23 Pa.C.S. §6341(a)(2), (c).
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(2) Any person named as a perpetrator ... in an indicated report of child abuse may, within 45 days of being notified of the status of the report, request the secretary to amend or expunge an indicated report on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this chapter.
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(c) Review of refusal of request.—If the secretary refuses the request under subsection (a)(2) ... the perpetrator ... shall have the right to a hearing before the secretary or a designated agent of the secretary to determine whether the summary of the indicated report in the [central register] should be amended or expunged on the grounds that it is inaccurate or that it is being maintained in a manner inconsistent with this chapter...
On April 18, 2011, the ALJ conducted a hearing. Detective Dana Ward of the York Police Department testified by telephone; Ashley Rohrbaugh, CYS'S investigating caseworker, K.C., and K.C.'s mother, K.A., testified in person. On July 19, 2011, the ALJ issued a corrected adjudication and recommendation that K.C.'s appeal be denied. On July 20, 2011, the Manager issued the corrected order adopting the recommendation in its entirety. K.C. then filed the instant petition for review.
The ALJ initially issued an adjudication and recommendation on June 29, 2011 that was adopted by the Manager by order dated July 8, 2011. The ALJ issued a corrected adjudication and recommendation on July 19, 2011, adding the fact that K.C. filed a brief on June 27, 2011, which was adopted by the Manager by the corrected order of July 20, 2011.
This Court's scope of review in expunction proceedings is limited to determining whether constitutional rights have been violated, whether an error of law has been committed, and whether necessary findings of fact are supported by substantial evidence. D.T. v. Department of Public Welfare, 873 A.2d 850, 852 (Pa. Cmwlth. 2005).
The proper inquiry into whether an indicated report of child abuse should be expunged is whether the report is accurate. A.O. v. Department of Public Welfare, 838 A.2d 35, 39 (Pa. Cmwlth. 2003). Thus, in an appeal of a refusal to expunge an indicated report, the county agency must present evidence that outweighs any contrary evidence that the actions of the perpetrator constitute child abuse within the meaning of the Law. D.T., 873 A.2d at 852-853. In determining whether a parent is a perpetrator by omission under the Law, the relevant inquiry is whether a reasonable person in the position of the parent knew or should have known that the acts of abuse were occurring and the parent failed to take steps to remove the child from the harm. Bucks County Children and Youth Social Services Agency v. Department of Public Welfare, 616 A.2d 170, 174 (Pa. Cmwlth. 1992). It is for the fact finder to determine whether a perpetrator acted reasonably under the circumstances. Id.
See section 6341(c) of the Law ("[T]he burden of proof at the hearing shall be on the appropriate county agency...."; section 3490.106(f) of DPW's regulations, 55 Pa. Code §3490.106(f) ("The burden of proof in hearings held under this section is on the appropriate county agency.")
In this appeal, K.C. claims that the Manager erred in adopting the ALJ's recommendation and denying her appeal because the finding of child abuse by omission is not supported by substantial evidence. Specifically, K.C. asserts that the indicated report is not accurate because: (1) Rohrbaugh, the CYS caseworker, testified that the indicated report is based on K.C.'s knowledge that A.P. fractured K.P.'s ribs and K.C. did not know that the ribs were fractured until after the incident in which the baby's femur was fractured; and (2) she acted reasonably under the circumstances and she took steps to protect K.P. even though both she and the baby were being abused by A.P.
The substantial evidence needed to maintain an indicated report of child abuse is "'evidence which so preponderates in favor of a conclusion that it outweighs, in the mind of the fact finder, any inconsistent evidence and reasonable inferences drawn therefrom.'" D.T., 873 A.2d at 853 (citation omitted). In determining whether substantial evidence exists to support a finding of fact, this Court must give the party in whose favor the appealed decision was rendered the benefit of all inferences that can be logically and reasonably drawn from the evidence. B.J.K. v. Department of Public Welfare, 773 A.2d 1271, 1276 (Pa. Cmwlth. 2001).
Rohrbaugh initially testified that she filed the indicated report because K.C. was aware that the infant's ribs were fractured three weeks before her femur was fractured and K.C. did not remove herself or the children from the harmful situation. (N.T. 4/18/11 at 41.) However, Rohrbaugh later amended her testimony, stating, "I - let me think for a second. I don't believe she was aware. She was aware of the incident where he punched the child three times in the midsection and that the child had been fussy afterwards to the point they had taken the child to the pediatrician which was about two weeks after it had happened. But I am not saying that she was aware at that right incident [sic] that the rib fractures had occurred." (Id. at 49.) This testimony is consistent with the allegation in the CY 48 that Rohrbaugh filed which stated, "[K.C.] witnessed [A.P.] hitting the baby in the ribs 3 weeks prior to the incident where the femur was fractured. She failed to remove the child from the situation and she was injured again as a result. [K.C.] meets the [Law's] criteria for a Perpetrator by omission." (Certified Record (C.R.) Item No. 3 Exhibit C-1 at 2.) Thus, contrary to K.C.'s contention, the indicated report was based on K.C.'s failure to remove the infant after watching A.P. punch her in the ribs, and not on K.C.'s knowledge that the infant's ribs were fractured due to the physical abuse.
K.C. relies upon her testimony at the hearing in support of her assertion that she acted reasonably under the circumstances and that she took steps to protect K.P. even though both she and the baby were being abused by A.P. However, K.C.'s testimony in this regard was specifically rejected as not credible:
The Bureau is the ultimate finder of fact in proceedings to expunge an indicated report and this Court will not disturb its weight and credibility determinations on appeal. D.T., 873 A.2d at 854. Moreover, as noted above, it is for the fact finder to determine whether a perpetrator acted reasonably under the circumstances. Bucks County Children and Youth Social Services Agency, 616 A.2d at 174 Thus, we will not accede to K.C.'s request to reweigh the evidence in this case. --------
[K.C.] failed to take any protective measures to protect [K.P.] from A.P.'s physical assaults. [K.C.] did nothing to protect her children from A.P.'s violence until mid-September 2010. Her explanation that A.P. prevented her from seeking to protect her children is unbelievable. First, [K.C.] had numerous opportunities to take the children and leave A.P. A.P. was not always home. He worked for part of the summer and left the home for job interviews. These were times when [K.C.] could have taken the children and gone to live with her mother, whom [K.C.] knew would always welcome her and the children. Second, [K.C.] chose not to request assistance or divulge the household's domestic violence while she lived with A.P. ... [K.C.] never disclosed A.P. punched the child's ribs during the child's wellness visits or to hospital staff when the rib fractures were discovered. Even after [K.C.] brought [K.P.] to the hospital to treat the broken femur, she did not divulge that A.P. assaulted the child when questioned by hospital staff, the CYS, and law enforcement, who informed her that they would protect her if A.P. was a threat. Instead, she sought to conceal the abuse and protect A.P. by offering a fabricated story that the child's injuries resulted from a mugging. Third, [K.C.] revealed that her motivation to disclose the domestic violence was to get her
children back from their foster care placement rather than to protect them from A.P. Finally, [K.C.] being a victim of A.P.'s abuse did not excuse her failure to protect [K.P.] from further harm from A.P. after he repeatedly assaulted the child. For these reasons, the CYS clearly showed that [K.C.] unreasonably failed to take steps to protect [K.P.] from further assaults by A.P. and this failure to protect her child allowed A.P. further opportunities to physically assault [K.P.].Adjudication at 8-9.
Moreover, each of the findings of fact specifically cites record evidence supporting such finding. (See Adjudication at 2-5.) Based on these substantiated findings, the Manager did not err in denying K.C.'s appeal because the evidence demonstrates that the indicated report is accurate and supports the conclusion that K.C. is a perpetrator by omission under the Law. As this Court has explained:
Whether K.S. personally committed physical abuse is not conclusive. Because J.S. sustained severe physical injuries while K.S., a primary caretaker, was responsible for her welfare, K.S.'s omissions (in this case-failure to protect or leave the child in the hands of a responsible caretaker) alone fulfill the definitions of both "child abuse" and "perpetrator," quoted above. Therefore, we conclude that substantial evidence does support the Office of Hearings and Appeals' conclusion to deny expungement of the indicated report.K.S. v. Department of Public Welfare, 564 A.2d 561, 564 (Pa. Cmwlth. 1989) (emphasis in original).
Accordingly, the Manager's corrected order is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 14th day of March, 2012, the July 20, 2011, corrected order of the Regional Manager of the Bureau of Hearings and Appeals of the Department of Public Welfare is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge