From Casetext: Smarter Legal Research

Lackawanna Cnty. Dep't of Human Servs. v. Dep't of Pub. Welfare

COMMONWEALTH COURT OF PENNSYLVANIA
May 15, 2015
No. 1595 C.D. 2014 (Pa. Cmmw. Ct. May. 15, 2015)

Opinion

No. 1595 C.D. 2014

05-15-2015

Lackawanna County Department of Human Services - Office of Youth and Family Services, Petitioner v. Department of Public Welfare, Respondent


BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McGINLEY

Lackawanna County Department of Human Services, Office of Youth and Family Services (CYS) petitions for review of the order of the Department of Public Welfare Bureau of Hearings and Appeals (BHA) which adopted an Administrative Law Judge's (ALJ) recommendation to expunge an indicated report of child abuse against B.J.

The Department of Public Welfare has changed its name to Department of Human Services.

On October 17, 2013, CYS received a report of suspected abuse involving a four-month old female child, O.J. The report alleged that B.J., the biological father of O.J., punched O.J. in the stomach several times while he was changing her diaper. The alleged incident was observed by S.D., O.J.'s mother, who intervened. After witnessing the alleged abuse, S.D. consulted her attorney and following the consultation, took O.J. to seek medical treatment at Wayne Memorial Hospital Emergency Room. The physicians who examined O.J. at the Emergency Room, and a pediatrician who examined O.J. several days later, failed to find any evidence of physical injury or child abuse.

CYS conducted an investigation and determined that substantial evidence existed to maintain an indicated report of child physical abuse in the form of imminent risk of physical injury against B.J.

Subsequently, B.J. requested expungement of the indicated report. The ChildLine and Abuse Registry denied his request and B.J. requested an expunction hearing. The ALJ heard testimony on June 2, 2014.

At the outset of the hearing, the parties stipulated that there was no medical evidence of physical injury to the child. The child's mother was subpoenaed to testify at the hearing. However, for reasons unknown, she failed to appear.

In an attempt to meet its burden of proof without S.D.'s eye-witness testimony, CYS sought to introduce through the testimony of Patrick Pugliese, M.D. (Dr. Pugliese) and Lori Shipsky, M.D. (Dr. Shipsky), the hearsay statements of S.D., wherein she described for the doctors the physical abuse she allegedly witnessed. Specifically, the Emergency Room physician, Dr. Pugliese was asked: "What were the injuries that she [O.J.] presented for?" In response, Dr. Pugliese read from the medical notes he made at the time of his physical examination of O.J.:

All I have is from what I've written. This four-month-old female brought by the biological mother with complaints the biological father punched infant in the lower abdomen at approximately 5:00 to 5:30 p.m. tonight at home.
Hearing Transcript, June 2, 2014, (H.T.) at 14; Reproduced Record (R.R.) at 84a.

B.J.'s counsel objected to the introduction of Dr. Pugliese's testimony on the grounds that it was impermissible hearsay. Counsel for CYS countered that the mother's statements as to what occurred should be admitted into evidence because they fell under the hearsay exception for statements made to medical professionals for the purpose of diagnoses or treatment. This argument was rejected by the ALJ. Later at the hearing, Dr. Shipsky was precluded from answering a similar question on the same grounds: "What did mom present as the cause for the visit that day to you in her conversations?" H.T. at 31; R.R. at 101a.

Stacey Vogler-Musil, (Vogler-Musil), the CYS caseworker assigned to the matter, testified that CYS received a report that "the mother [S.D.] had witnessed the child [O.J.] being punched into the stomach and had called out and stopped this from occurring." H.T. at 38; R.R. at 108a. Vogler-Musil investigated the allegations and prepared the Investigation Report (Form CY-48), which included the following description of what allegedly occurred:

Michelle, ER Nurse, Wayne Memorial Hospital, called to report that the mother [S.D.] brought in her 4 month old daughter [O.J.] and reported that she witnessed the child's father [B.J.] punch her in the abdomen twice.
Investigation Report (Form CY-48), August 24, 2013, at 1; R.R. at 4a.

Vogler-Musil determined that the incident occurred. This resulted in an indicated report of child abuse that was sent to ChildLine. The "type" of child abuse listed was "imminent risk." That is, "that harm would have been caused to the child had not there been an intervening person." H.T. at 38; R.R. at 108a. Vogler-Musil explained: "It's indicated for imminent risk because if the mother didn't act, the child may have been harmed." H.T. at 43; R.R. at 113a. The reason that Vogler-Musil did not conclude that there was "physical abuse" was because "the child didn't have any injuries...because the child wasn't harmed." H.T. at 43; R.R. at 113a.

Katheryn Foley (Foley), the emergency caseworker for CYS, testified that she was contacted on the evening of August 24, 2013, to respond to the hospital for a case of abuse. When she arrived she learned that S.D. "witnessed the father punch the child several times in the stomach and the child was taken to the hospital to be examined by the doctor." H.T. at 52; R.R. at 122a. Foley was asked whether she had any information regarding the lapse in the time between the alleged incident and presenting the child for medical care. Foley responded: "I know that the mother was afraid to bring the child to the hospital." H.T. at 54; R.R. at 124a.

After Foley's testimony was concluded, the ALJ attempted to contact S.D. However, "despite two phone calls, she [did] not answer[] at her place of work." H.T. at 56; R.R. at 126a.

B.J. testified on his own behalf. He denied ever punching O.J. or abusing her in any way. He did not know why S.D. made the allegations against him. He posited: "She could've woken up on the wrong side of the bed that day." H.T. at 67; R.R. at 137a.

Following the hearing, the ALJ issued a recommended adjudication sustaining B.J.'s appeal. The ALJ made the following relevant Findings of Fact:

4. On August 24, 2013, the subject child was taken to the emergency room by her biological mother. (Exhibit C-1).

5. It was reported to the hospital that the subject child was punched in the abdomen by the Appellant [B.J.]. (Exhibit C-1).

6. The subject child was examined in the hospital on August 24, 2013, and by her primary care physician on August 28, 2013.

7. Both medical examinations revealed no evidence of physical injury to the child.

8. The parties stipulated that there is no documented evidence on any physical injury to the child.

9. Appellant [B.J.] denied any allegation of physical abuse.
****
11. The testimony of Dr. Pugliese was credible.

12. The testimony of Dr. Shipsky was credible.

13. The testimony of Ms. Vogler-Musil was credible.

14. The testimony of Ms. Foley was credible.

15. The testimony of the Appellant [B.J.] was credible.
Recommended Adjudication, ¶¶4-9, 11-15 at 4-5.

The ALJ explained the reasons for his recommendation as follows:

The undersigned ... finds the testimony of the Appellant [B.J.] credible. He denied that he ever struck the subject child. This testimony was supported by the lack of any medical evidence showing that a physical injury occurred to the subject child.

The undersigned also finds that the testimony of the OYFS [CYS] caseworkers credible. Both offered clear testimony regarding an investigation each conducted and neither had a personal outcome of the case. However, the undersigned finds that OYFS [CYS] has not met its burden of presenting substantial evidence that Appellant [B.J.] abused the subject child. The Appellant [B.J.] has been indicated for creating an imminent risk of physical injury to the subject child. In order to meet the definition of imminent risk, there must be evidence that would make it likely that the subject child would have suffered serious physical injury without the intervention of a third party. OYFS [CYS] argued that had the subject child's mother, the third party, not intervened, it was likely that the Appellant [B.J.] would have caused serious physical injury to the child. The record is void of any evidence supporting this conclusion. Initially, no physical injury occurred, despite one being reported. Furthermore, absolutely no evidence has been submitted showing that there was any risk of Appellant [B.J.] causing physical injury to the child. The subject child's mother was subpoenaed to appear at the fair hearing; however, failed to do so. Therefore, no testimony was offered from her verifying why she took the subject child to the hospital or what she may have witnessed the Appellant [B.J.] do. There is simply no evidence present in the record to support even a supposition that Appellant [B.J.] may have been a risk to the subject child.

In accordance with the foregoing, the Appellant's [B.J.] appeal should be sustained. A recommendation with [sic] be made to the Regional Manager consistent with these findings and conclusion.
Recommended Adjudication, at 9-10.

The recommendation was adopted in its entirety by the BHA on August 8, 2014.

CYS now appeals and argues (1) that the ALJ erred by not allowing the doctors' testimony of diagnosis and history under Pennsylvania Rule of Evidence 803(4); and (2) the ALJ erred by not sustaining the indicated status.

This Court's scope of review from adjudications of the Department of Human Services is limited to determining whether there is substantial evidence to support the adjudication, whether constitutional rights have been violated, and whether the adjudication is contrary to law. Montgomery County Child Welfare Services v. Hull, 413 A.2d 757 (Pa. Cmwlth. 1980). --------

Hearsay Exception Under Pa. R.E. 803(4)

CYS contends the ALJ erred by disregarding the testimony of Dr. Pugliese and Dr. Shipsky regarding statements made by S.D. as to the reasons why medical treatment was sought for O.J. CYS contends that this evidence should have been permitted under Pennsylvania Rule of Evidence 803(4), an exception to the hearsay rule for statements made for the purpose of receiving medical treatment, and which are necessary and proper for diagnosis and treatment. Pa. R.E. 803(4) provides:

Rule 803. Exceptions to the Rule against Hearsay - Regardless of Whether the Declarant is Available as a Witness.

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness - -

(4) Statement Made for Medical Diagnoses or Treatment. A statement that:
(A) is made for - and is reasonably pertinent to - medical treatment or diagnosis in contemplation of treatment; and

(B) describes medical history, past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to treatment, or diagnosis in contemplation of treatment.

"[T]here are essentially two requirements for a statement to come within this exception. First, the declarant must make the statement for the purpose of receiving medical treatment, and second, the statement must be necessary and proper for diagnosis and treatment..." Commonwealth v. Smith, 681 A.2d 1288, 1291 (Pa. 1996).

The exception only permits admission of those portions of the out-of-court statements which are relevant to diagnosis and treatment. Smith, 681 A.2d at 1292. Extraneous information, such as the identity of an alleged perpetrator or statements pertaining to culpability, does not fall within the exception. For example, a patient's report that he was hit by a car would be relevant for treatment, but adding that the car went through a red light would not.

In Smith, the defendant was charged with aggravated assault after his daughter was scalded in the bathtub. At trial, a nurse testified that the victim identified the defendant as the one that turned on the water and placed her in the tub. The nurse's testimony was allowed under the medical treatment exception to hearsay. On appeal, the defendant argued that the nurse's testimony constituted inadmissible hearsay. The Pennsylvania Supreme Court agreed and reversed the conviction. The Supreme Court held that the victim's statement about the identity of the person who placed her in the tub was not pertinent to medical treatment or diagnosis and, thus, did not meet the medical treatment exception. It reasoned that it made no difference regarding treatment whether the victim was burned by her father or a stranger.

Here, CYS contends that it did not present the doctors' testimony to prove that B.J. punched O.J. in the stomach. Rather, it was proof that S.D. took O.J. for medical treatment because she observed O.J. being punched in the stomach. CYS also contends it was evidence of why the hospital staff contacted ChildLine and CYS to report the alleged abuse for further investigation.

Here, S.D.'s statements to Dr. Pugliese and Dr. Shipsky about why she sought medical treatment for O.J. were "for the purpose of receiving medical treatment," and they were "necessary and proper for diagnosis and treatment." In order to treat O.J., the doctors were required to know the mechanism of injury. Thus, with the exception of B.J.'s identity, the statements fell within the medical diagnosis and treatment exception to hearsay and should have been admitted.

However, this Court is unable to conclude that the ALJ committed reversible error. It is well-settled that the erroneous exclusion of evidence constitutes harmless error where the excluded evidence is merely cumulative of other evidence admitted during the trial. Commonwealth v. Hawkins, 701 A.2d 492 (Pa. 1997). An erroneous evidentiary ruling does not warrant a new trial unless it was "harmful or prejudicial to the complaining party." Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa. Super. 2008).

Here, the evidence was cumulative of other evidence admitted during the hearing. There was independent evidence showing that the reason why S.D. took O.J. for medical treatment was because she allegedly witnessed B.J. punch O.J. in the stomach. Caseworkers, Vogler-Musil and Foley, both testified that S.D. witnessed O.J. being punched in the stomach. The Investigation Report (Form CY-48), which was introduced into evidence, included a detailed description of what allegedly occurred. In fact, the ALJ's Finding of Fact No. 5 stated: "It was reported to the hospital that the subject child was punched in the abdomen by the Appellant." (Emphasis added.)

Allowing the S.D.'s statements to Dr. Pugliese and Dr. Shipsky about why she sought medical treatment for O.J., sans the identity of B.J., would not have changed the outcome. There was nothing in these statements that was not introduced into evidence through other witnesses.

Accordingly, this Court finds this issue to be without merit.

Imminent Risk

Next, CYS argues that the ALJ erred when he recommended that B.J.'s appeal be sustained. CYS contends that it met its burden because the ALJ found Vogler-Musil to be credible. Vogler-Musil testified that she filed an indicated report against B.J. for "imminent risk" after investigating the parents, treating physicians and police officers. Vogler-Musil determined that S.D. had seen B.J. punch O.J. in the stomach and that he only stopped when S.D. intervened. CYS contends that Vogler-Musil's testimony constituted substantial evidence upon which the ALJ should have sustained the indicated status.

The burden of proof in an expunction hearing is on the Child Protective Services county agency and/or Department of Public Welfare to show, by substantial evidence, the indicated report is accurate. Bucks County Children and Youth Social Services Agency v. Com. Dep't. of Public Welfare, 808 A.2d 990 (Pa. Cmwlth. 2002). The ALJ's finding that Vogler-Musil was credible did not necessarily require him to adopt her findings and conclusions with respect to whether B.J. placed O.J. in imminent risk of danger. The ALJ found that Vogler-Musil testified truthfully during the hearing. That finding is different from whether Vogler-Musil's conclusions were legally accurate and factually substantiated. Although Vogler-Musil may have believed her report was accurate, the ALJ was not required to arrive at the same conclusion.

The Order of the BHA is affirmed.

/s/_________

BERNARD L. McGINLEY, Judge ORDER

AND NOW, this 15th day of May, 2015, the order of the Department of Public Welfare, Bureau of Hearings and Appeals in the above-captioned matter is hereby AFFIRMED.

/s/_________

BERNARD L. McGINLEY, Judge


Summaries of

Lackawanna Cnty. Dep't of Human Servs. v. Dep't of Pub. Welfare

COMMONWEALTH COURT OF PENNSYLVANIA
May 15, 2015
No. 1595 C.D. 2014 (Pa. Cmmw. Ct. May. 15, 2015)
Case details for

Lackawanna Cnty. Dep't of Human Servs. v. Dep't of Pub. Welfare

Case Details

Full title:Lackawanna County Department of Human Services - Office of Youth and…

Court:COMMONWEALTH COURT OF PENNSYLVANIA

Date published: May 15, 2015

Citations

No. 1595 C.D. 2014 (Pa. Cmmw. Ct. May. 15, 2015)