Opinion
No. 1441 C.D. 2011
04-27-2012
Lackawanna County Children and Youth Services, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Lackawanna County Children and Youth Services (CYS) appeals from the order of the Pennsylvania Department of Public Welfare (DPW), Bureau of Hearings and Appeals (BHA), which adopted the Administrative Law Judge's (ALJ), Recommendation to expunge an indicated report of child abuse against A.B.
The alleged victim in this case is J.J., a minor female child who was between the ages of 11 and 14 at the time of the alleged sexual abuse. A.B., the alleged perpetrator, was the live-in boyfriend of J.J.'s mother, M.J.
On September 27, 2010, CYS conducted an investigation and determined that substantial evidence existed to maintain an indicated report of child sex abuse against A.B.
On November 16, 2010, A.B. requested an expunction hearing. The hearing was scheduled for June 28, 2011. The parties exchanged discovery and pursuant to Rule 26 of the BHA's Standing Practice Order #20, CYS submitted a "Unified Pre-Hearing Filing" which listed Tara Fuller (Ms. Fuller), the investigating caseworker, as a witness.
SPOs are procedural rules issued by DPW pursuant to 67 Pa.C.S. §1102(g) that govern practice before the Bureau.
The Unified Pre-Hearing Filing is a form through which each party submits an initial witness list and an exhibit list, requests subpoenas, and makes any pre-hearing motions.
However, Ms. Fuller, who had been out on maternity leave, resigned from CYS, effective as of June 28, 2011, the date of the expunction hearing.
Because Ms. Fuller was no longer employed at CYS, CYS moved to substitute Ms. Fuller's testimony with the testimony of her Supervisor, Jerri Regan (Ms. Regan). According to CYS, Ms. Regan conducted the initial investigation but then assigned the matter to Ms. Fuller to conduct interviews, investigate the allegations and complete the indicated report. CYS sought to have Ms. Regan testify as to CYS's investigation and the bases for its determination that A.B. sexually abused J.J.
Hearing Transcript, June 28, 2011, (H.T.) at 5-6; Reproduced Record (R.R.) at 35a-36a.
A.B.'s counsel objected to Ms. Regan's testimony because it was "unfair to be blindsided with the last-minute addition of a witness that wasn't provided in the pretrial filings." H.T. at 8; R.R. at 38a. Counsel further explained the basis for his objection:
More importantly is the fact that she [Ms. Regan] only has just a superficial background with regard to this specific case. She [Ms. Regan] was the intake officer who assigned it to someone else, and that's the person who investigated it and compiled the report who should be here to testify as to what her investigation found, if anything.H.T. at 9; R.R. at 39a.
Ms. Regan, she's going to be really referring to documents prepared by Tara Fuller and offering testimony in Tara Fuller's absence, and I find that objectionable.
The ALJ did not permit Ms. Regan to testify about "anything regarding her investigation purely because she was not listed in the Unified Pre-hearing Statement" and that it "would be a violation of Standing Order 20." H.T. at 9; R.R. at 39a. The ALJ restricted Ms. Regan's testimony to a general explanation of indicated reports and "how those are filed pertaining to the case." Id.
A.B.'s counsel offered the testimony of J.J.'s mother, M.J. Because M.J. was not listed on the Unified Pre-hearing Statement, the ALJ also precluded her testimony, except to the extent it was offered for rebuttal.
J.J., who was 15 years old at the time of the hearing, testified that when she was between the ages of 11 and 14, she lived in the same house as her mother's boyfriend, A.B. A.B. told J.J. that he had a "heart problem" and that he "needed to speed up." H.T. at 19; R.R. at 49a. Approximately three times a week, A.B. locked his bedroom door and performed sexual acts on her while the other occupants were sleeping and her mother was at work.
J.J. was frightened to tell anyone and she "really didn't know how I was going to tell people this." H.T. at 19; R.R. at 49a. J.J. first told her best friend, Bryan, about the alleged abuse when she was a junior counselor at Camp St. Andrew's. Bryan, in turn, told his superior, who reported it to CYS.
J.J. underwent a physical examination at the Children's Advocacy Center. It was concluded that she "was not a virgin" and that her "hymen was teared (sic)." H.T. at 40; R.R. at 70a. J.J. denied ever having sex with her best friend, Bryan.
On cross-examination, J.J. explained that she did not have a good relationship with her mother because they "don't talk much" and J.J. "used to lie to her a lot" about "taking money from her purse" and "getting things from [her] friends." H.T. at 42-43; R.R. at 71a-72a. J.J. admitted that she was angry with her mother for not allowing J.J. to associate with her friend Bryan, who was four years older. However, J.J. denied making up allegations against A.B. to "get out of the house" and out from under her mother's "strict supervision." Id. When her mother brought up a polygraph, J.J. told her mother "if she wanted" she "would take one." Id.
J.J. also admitted on cross-examination that she signed a handwritten statement on November 14, 2010, which recanted the allegations of abuse. It read:
To whom it may concern:H.T. at 45; R.R. at 75a.
A.B. has done nothing to me. I lied to get out of the house. No one has forced me to confess. I've done it freely.
On redirect, J.J. explained that when she wrote the document she was in a "police station" in Haiti and that she was "scared" that her mother "was going to leave me there if I didn't say it." H.T. at 44; R.R. at 74a. She said her mother originally told her they were going to the "Bahamas." However, once on the airplane, her mother said: "I'm taking you to Haiti." H.T. at 49; R.R. at 79a. According to J.J., her mother was "angry" when the allegations came out. J.J. believed her mother, M.J. "just wanted [J.J.] to say that it didn't happen, because she [M.J.] was tired of all of it." H.T. at 49; R.R. at 79a.
J.J. explained in detail what happened in Haiti when she signed the statement:
Q. What were the circumstances around it being written?
A. What happened was we were in, like, the --- our home in Haiti, and my mom -- my mom was in the room, and I was on my knees, because she was yelling at me about it. And I told her that it did happen repeatedly, and I answered every question she gave me. And she said she was going to leave me there, and I got scared, because Haiti is not a nice place.
So, C. - she's my aunt - she told me to - she's my aunt. She told me that I should just tell my mom that it didn't happen, and I said it because I didn't want to - I didn't want to stay.
Q. So, you were in a room in Haiti with your mother?
A. Yeah.
Q. And she's yelling at you, and you're on your knees?H.T. at 47; R.R. at 77a.
A. (Witness nods head.)
Q. And then she wants you to write this statement out?
A. That we went to the police station down in Haiti and, yeah, that's where I wrote it.
Q. In the police station she made you write it out?
A. Yeah.
Q. And then you wrote that statement that's right there and signed it?
A. Yeah.
Q. Is that statement true?
A. What I wrote on the paper?
Q. What you wrote on the paper.
A. No.
Ms. Regan testified next. She worked at CYS for seven years. Ms. Fuller was the caseworker assigned to the case who completed the CYS investigation and that Ms. Fuller's "resignation took effect today." H.T. at 59; R.R. at 89a. "She was on maternity leave and she chose not to return to work, to stay home to care for her child." H.T. at 69; R.R. at 99a.
Ms. Regan explained generally that a report is "indicated" if "there is enough evidence to substantiate the allegations and if the child is consistent and credible in their (sic) testimony." H.T. at 62; R.R. at 92a. In this case, the reason stated for the indicated status was: "Child was seen at Children's Advocacy Center and disclosed abuse. Child was consistent and credible with statements. A.B. refused to speak to assigned worker regarding the allegations." H.T. at 65; R.R. at 95a. Ms. Regan explained that "consistent and credible" means "the child has told the story consistently on more than one occasion" and that credibility "is based on the consistency and how believable they (sic) actually are." H.T. at 66; R.R. at 96a.
In rebuttal, A.B. offered the testimony of J.J.'s mother, M.J. The ALJ permitted M.J. to rebut two subjects raised by "unanticipated testimony:" (1) M.J.'s relationship with her daughter, J.J., and (2) whether she asked J.J. to submit to a polygraph. M.J. testified that J.J. brought up the subject of taking a polygraph and offered to take one if M.J. thought she was lying. H.T. at 84; R.R. at 114a. M.J. also testified that, contrary to her daughter's testimony, she had a "wonderful relationship" with her daughter. Id.
After the hearing, the ALJ made the following findings of fact:
1. The subject child, J.J., is a female born on December 12, 1995 who was between 11 and 14 years old at the time of the alleged abuse.
2. A.B., the Appellant, is the paramour of J.J.'s mother, M.J.
3. At the time of the alleged abuse, Appellant was residing with J.J. at M.J.'s residence.
4. The alleged sexual abuse included J.J. performing fellatio on A.B., A.B. performing cunnilingus on J.J., A.B. touching her vagina and using a vibrator on J.J. and performing vaginal and anal intercourse on J.J.
5. Over a three (3) year period, the alleged sexual abuse occurred several times per week in Appellant's bedroom between 11:00 p.m. and 7 a.m., which is when M.J. would be at work.
6. During the summer of 2010, J.J. initially told her eighteen (18) year old male friend, B.A.R., about the alleged sexual abuse.
7. On August 2, 2010, CYS received a referral regarding J.J. alleging that A.B. committed child sexual abuse upon her.
8. On September 27, 2010, CYS filed an indicated report naming Appellant as a perpetrator of sexual abuse on J.J.
9. J.J. never told any family member residing with her about the alleged sexual abuse, and no other family member in the house ever saw any sexual abuse occur.
10. J.J. never told any school teacher, counselor, or any school official about the sexual abuse prior to CYS's investigation.
11. On November 14, 2010, the subject child wrote and signed a note stating the following: "To whom it may concern: A.B. (redacted name) has done nothing to me. I lied to get out of the house. No one has forced me to confess. I have done it freely."
12. J.J. did not have a good relationship with her mother and frequently lied to her during the course of their relationship.
13. The alleged abuse began when J.J. was 11 years old and was residing with the following people: A.B., M.J., two uncles, a brother and an aunt.
14. During the three year period when the alleged child abuse occurred, the composition of family members changed at J.J.'s residence, but it steadily remained at about 7 people residing in the house at any one time.ALJ's Recommendation, July 7, 2011, Findings of Fact (FOF) ¶¶1-19 at 3-4.
15. During the three year period when the alleged abuse occurred, all household members slept upstairs in the house, which is where the alleged sexual abuse occurred in A.B.'s bedroom.
16. J.J. alleges that her two uncles saw her occasionally walk into A.B.'s bedroom during the night, but never asked her the purpose of her entering A.B.'s bedroom.
17. The testimony of Caseworker J.R. is credible.
18. The testimony of M.J. is credible.
19. The testimony of J.J. is not credible.
In his Decision and Recommendation, the ALJ noted that neither side presented medical evidence and the only evidence presented by CYS consisted of J.J.'s testimony and written statements. The ALJ found that J.J. was "not credible" because of inconsistencies between her testimony and written statement.
The ALJ also based his decision on the "lack of corroboration" of J.J.'s testimony. He noted that CYS did not present evidence such as the testimony of J.J.'s two uncles who could have testified that they saw her walk into A.B.'s bedroom, or Bryan, who could have corroborated her initial disclosure in the summer of 2010. The ALJ concluded "based on the subject child's conflicting statements and lack of any corroboration, the subject child's testimony is not credible." ALJ's Corrected Adjudication and Recommendation, July 7, 2011, at 5.
The DPW adopted the ALJ's findings of fact in their entirety and sustained A.B.'s appeal to expunge the indicated report of child abuse.
CYS appeals and raises two issues: (1) whether the ALJ erred by not considering the circumstances under which J.J. signed the recantation; and (2) whether the DPW erroneously restricted Ms. Regan's testimony?
This Court's scope of review from adjudications of the DPW is limited to determining whether there is substantial evidence to support the adjudication, whether the constitutional rights of the Petitioner have been violated, and whether the adjudication is contrary to law. Montgomery County Child Welfare Services v. Sarah Hull, Respondent, 413 A.2d 757 (Pa. Cmwlth. 1980). --------
A child protective services agency, such as CYS, is permitted to file an indicated report of abuse under the Child Protective Services Law (CPSL), 23 Pa. C.S. §6303, and under 55 Pa. Code §3490, if the investigation by the agency determines that there is substantial evidence of the alleged abuse based on either the available medical evidence, the investigation by the agency, or the admission of the acts by the perpetrator. 55 Pa. Code §3490.4. Substantial evidence is defined in 23 Pa.C.S. §6303(a) as "evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion."
The county agency carries the burden of proving that the indicated report filed against the alleged perpetrator was filed and is being maintained in a manner which is consistent with the regulations. 55 Pa. Code §3490.106(f). The critical issue as to whether an indicated report of child abuse should be expunged or maintained is whether the report is accurate. The burden of proof in an expunction case rests with the county agency to present evidence, which outweighs any contrary evidence, that the alleged perpetrator's actions constituted child abuse. L.S. v. Department of Public Welfare, 828 A.2d 480, 483 (Pa. Cmwlth. 2003). The standard of proof required by the county agency to support, at the hearing, an indicated report of child abuse is substantial evidence that the abuse occurred. 23 Pa. C.S. §6303; A.O. v. Department of Public Welfare, 838 A.2d 35, 38 (Pa. Cmwlth. 2003).
The Secretary of DPW, through his designee, the Director of the BHA, is the statutory finder of fact in expunction cases. City of Philadelphia Office of Children and Youth Services v. Department of Public Welfare, 767 A.2d 10 (Pa. Cmwlth. 2003). It is the function of the fact finder to resolve conflicts in testimony and make specific findings of fact to apprise the Commonwealth Court of the legal and factual basis for conclusion. Lackawanna County Children and Youth Services v. Department of Public Welfare, 616 A.2d 170 (Pa. Cmwlth. 1992).
In its first issue, CYS argues that the ALJ erred because he did not consider whether J.J.'s November 14, 2010, written statement was the result of duress, coercion or undue influence. However, a review of the ALJ's Adjudication clearly demonstrates that he did consider the testimony about duress. The ALJ specifically stated that " even though CYS argues that the statement was done under duress the statement itself states that J.J. was 'not forced' to write anything, which creates a further situation in which J.J.'s testimony and her previously written statements are contradicting each other regarding the circumstances surrounding the writing of the document." ALJ's Corrected Adjudication and Recommendation, July 7, 2011, at 5.
The ALJ observed J.J.'s demeanor and found her to be not credible, including her explanation that she was forced to write the recantation in Haiti. For whatever reason, CYS presented no evidence to corroborate J.J. She did admit during her examination that she used to "lie a lot," "steal money from her mother's purse" and that she was "angry at her mother" for not letting her associate with her friend Bryan who was four years older. That, together with J.J.'s statement that she was "not forced" to write the recantation, created an inconsistency, which in turn, resulted in the ALJ's conclusion that the evidence did not weigh in favor of a finding that the sexual abuse occurred.
This comes down to an issue of credibility. Weight and credibility matters are matters solely within the province of the fact finder, so the ALJ was well within his authority to make such a finding. Bedford County Children and Youth Services v. Department of Public Welfare, 613 A.2d 48 (Pa. Cmwlth. 1992). As compelling as the testimony was, it is not for this Court to decide whether J.J.'s testimony was believable.
Next, CYS argues that the ALJ erred as a matter of law by restricting Ms. Regan's testimony to general statements about what the CY-48 form meant. Because her identity was not disclosed prior to the hearing in violation of a Standing Practice Order, she was not permitted to discuss the substance of the indicated report, or details of the assigned caseworker's investigation, interviews or conclusions. She was, however, permitted to read verbatim the "BASIS FOR THE CASE STATUS" and explain that the report was "indicated" because J.J.'s statements were found to be "consistent and credible." The ALJ applied the rule equally to A.B. because he precluded A.B.'s witness, M.J., on the same ground.
CYS argues that it should have been permitted to present evidence of the caseworker's investigation and the work she performed on the file. However, CYS did not explain to the ALJ, and does not explain on appeal, why it did not subpoena Ms. Fuller or ask for a continuance so that it could secure her testimony or amend the Unified Pre-Hearing Filing. CYS argues that there was no prejudice because Ms. Regan was going to testify as to the same information as Ms. Fuller. However, counsel for A.B. obviously came prepared to cross-examine the case worker about which interviews she decided to conduct, or not conduct, the questions she decided to ask, her substantive observations, and her personal observations as to the credibility of whatever witnesses she interviewed.
The Unified Pre-Trial Filing Instruction Sheet states that Section D of the Unified Pre-Hearing Filing pertaining to witnesses "is the initial Witness List that you must file to satisfy the requirements of the Standing Practice Order."
Part 8, Rule 26 of the Standing Order sets forth the "Special Rules for Child Abuse Expunctions." Rule 26 provides that parties to a child abuse expunction must file a Unified Pre-Hearing Filing which includes an "Initial Witness List." Rule 26(g) provides:
(g) After filing the Unified pre-Hearing Filing , a party may request additional subpoenas, file motions, amend witness or exhibit lists using the procedure outlined in SPO Part 5 for subpoenas, SPO Part 4 for motions and SPO Part 7 (relating to Discovery) for witnesses and exhibit submissions.
SPO, Part 7 (relating to Discovery) provides that an Initial Witness List may be amended or supplemented by serving the Regional Manager and every other party with an amended list containing the new witness(es).
This Court must reverse if the ALJ's adjudication is contrary to law. Montgomery County Child Welfare Services. Here, the ALJ correctly applied the Standing Practice Order which clearly required that the identity of witnesses must be disclosed prior to the hearing. The ALJ applied the Rule equally to the both parties and precluded both from presenting the testimony of witnesses who were not identified or disclosed prior to the hearing. Although this Court is aware that the evidentiary standards in administrative hearings are more relaxed, this does not mean that standards were not meant to exist. This Court will not conclude that the ALJ's Adjudication was contrary to law.
The Order of the DPW is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 27th day of April, 2012, the Order of the Department of Public Welfare in the above-captioned matter is hereby affirmed.
/s/_________
BERNARD L. McGINLEY, Judge