Opinion
No. 1980 C.D. 2011
09-17-2012
D.J. In Re: R.P., Petitioners v. Department of Public Welfare, Respondent
CASE SEALED
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS
D.J., pro se, petitions for review of the September 30, 2011, Final Order of the Secretary of the Department of Public Welfare (Department) upholding the October 12, 2010, order entered by the Bureau of Hearings and Appeals (Bureau) denying D.J.'s request to expunge an indicated report of child abuse, resulting from lack of supervision, as defined by Section 6303(b)(1)(iv) of the Child Protective Services Law (Law), 23 Pa. C.S. § 6303(b)(1)(iv). We affirm.
23 Pa. C.S. §§ 6301-6386. Section 6303(b)(1) of the Law provides that child abuse "shall" include: "(iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide essentials to life, including adequate medical care, which endangers a child's life or development or impairs the child's functioning." 23 Pa. C.S. § 6303(b)(1)(iv).
Our review of an expungement request is limited to a determination of whether constitutional rights were violated, whether errors of law were committed, whether substantial evidence supports a determination that child abuse has occurred, or whether clear and convincing evidence of child abuse exists to support maintenance of statutorily-designated information from an indicated report on the ChildLine registry. G.V. v. Dep't of Public Welfare, ___A.3d___, 2012 WL 2849501 at *9 (Pa. Cmwlth. No. 125 C.D. 2011, filed July 12, 2012); C.S. v. Dep't of Public Welfare, 972 A.2d 1254, 1258 n.2 (Pa. Cmwlth. 2009).
On May 20, 2005, the Department received an oral report of suspected abuse involving D.J. An investigation was conducted by the Department and, on July 14, 2005, an indicated report of child abuse was filed against D.J. On January 25, 2006, D.J. appealed the Department's finding and requested a hearing before the Bureau to expunge the indicated report of child abuse. On September 27, 2006, the matter was stayed, see 23 Pa. C.S. § 6341(d) , pending an action in the Philadelphia County Court of Common Pleas involving the same factual situation as the indicated report. On April 13, 2010, an Administrative Law Judge (ALJ) conducted a hearing in this matter and on October 4, 2010, the ALJ issued an opinion and recommendation that was adopted entirely by the Bureau in its subsequent order. The ALJ's opinion included extensive findings of fact and credibility determinations, which can be summarized as follows.
"Stay of proceedings.—Any administrative appeal proceeding pursuant to subsection (b) shall be automatically stayed upon notice to the department by either of the parties when there is a pending criminal proceeding or delinquency proceeding pursuant to 42 Pa. C.S. Ch. 63 (relating to juvenile matters), including any appeal thereof, involving the same factual circumstances as the administrative appeal." 23 Pa. C.S. § 6341(d).
Although petitioner appears before this Court pro se, petitioner was represented by counsel in her hearing before the ALJ.
R.P. and his brother were foster children in the custody of and residing in the house belonging to D.J. from August 3, 2000 until July 30, 2002, during which the events giving rise to the indicated report occurred. (Record Item (R. Item) 6, Adjudication and Opinion of the ALJ (ALJ Op.) at 5-6, Finding of Facts (F.F.) ¶¶6, 22; R. Item 3, Exhibit C-2 CY-48 Report.) R.P. is a male, who was between the ages of four and five years old at the time of the indicated abuse, and was thirteen years of age when he testified as a witness in the hearing regarding the indicated abuse. (ALJ Op. at 5, F.F. at ¶¶7, 9.) R.P. testified that he would be left alone with D.J.'s biological son, D.A., who would play pornographic videos and then engage in forcible sexual activity with R.P. (ALJ Op. at 5, F.F. ¶¶13, 14, 16, 17.) R.P. also testified that D.J. was not at the residence when D.A. sexually abused him and that he did not inform D.J. of the abuse because D.A. threatened him. (ALJ Op. at 5, F.F. ¶¶15-16.) The ALJ noted in his opinion that R.P. was clear and consistent in his testimony concerning both when he would be left alone with D.A. and the abuse that ensued, but that R.P. "appeared reluctant and distressed to discuss further the details of the abuse he suffered at the hands of D.A." (ALJ Op. at 16.) The ALJ found R.P. to be credible and reliable. (ALJ Op. at 7, F.F. ¶37.)
Prior to R.P.'s testimony, the ALJ questioned R.P. and determined that he was competent to be sworn and offer testimony. (R. Item 13, Hearing Transcript (H.T.) at 8-11); See A.O. v. Dep't of Public Welfare, 838 A.2d 35, 40 (Pa. Cmwlth. 2003). In his opinion, the ALJ included a thorough review of the proper procedure to follow in admitting and the use of testimony elicited from a child under the age of fourteen in the courts of the Commonwealth. (ALJ Op. at 11-13.)
An investigator from the Department, Richard C. Walker (Investigator), testified that on May 12, 2005, he interviewed R.P. as part of the Department's original investigation, and that R.P. stated that D.J.'s biological son D.A. and other foster children "would place their penises into his buttocks, as well as to have him suck on their penises." (ALJ Op. at 6, F.F. ¶23.) That same month, Investigator attempted to interview D.J. at her home; D.J. was not present, but her son D.A. and other children were present, alone on the front porch of D.J.'s residence. (ALJ Op. at 6, F.F. ¶24.) Investigator was able to interview D.J. and D.A. on July 13, 2005. (ALJ Op. at 6, F.F. ¶¶25-26.) As a part of his testimony, Investigator introduced the CY-47 and CY-48 reports detailing the allegations and the investigation he conducted in response to the allegations of abuse. (R. Item 3, Exhibit C-1 CY-47 Report; R. Item 3, Exhibit C-2 CY-48 Report; ALJ Op. at 15.) Investigator testified that based on his investigation, the report of abuse should have the status of "indicated." (R. Item 3, Exhibit C-2 CY-48; ALJ Op. at 6, 15, F.F. ¶27.)
D.J. testified on her own behalf and also offered the testimony of her neighbor M.G. (ALJ Op. at 6, 7, F.F. ¶¶28, 36.) D.J. testified that R.P. was sexually abused prior to coming into her care and that while in her care, she became aware that R.P. and his brother would engage in sexual acts with each other where R.P. was the aggressor. (ALJ Op. at 6-7, F.F. ¶¶ 31, 33.) D.J. stated that she informed the foster care agency and was referred to a doctor in Norristown, but could not remember the doctor's name. (ALJ Op. at 7, F.F. ¶33.) D.J. offered no documentary evidence in support of her statement. D.J. also testified that R.P. and his brother were never home alone with her son. (ALJ Op. at 7, F.F. ¶34.) The ALJ did not accept the testimony of D.J. as credible. (ALJ Op. at 7, 16, F.F. ¶38.) With regard to D.J.'s testimony that R.P. and his brother regularly engaged in sexual acts with each other, including anal penetration, the ALJ specifically identified the credibility finding as based upon the "physical aspect (R.P. was allegedly four (4) or five (5) years old), and that no record of this is in the file and if reported to the Department, surely extensive evaluation and treatment would be forthcoming, as occurred after this abuse was revealed at R.P.'s next foster home." (ALJ Op. at 16.)
D.J.'s neighbor M.G. testified that R.P. and his brother would take the school bus to her house each day and that D.J. would pick them up every day between five and six o'clock, but the boys would never be picked up or left alone with D.A. (ALJ Op. at 7, F.F. at ¶36.) The ALJ did not find M.G. fully credible, specifically rejecting M.G.'s testimony that D.J. would pick R.P. up at her house every day. (ALJ Op. at 7, 16, F.F. at ¶39.)
In addition to the testimony and Department reports introduced by Investigator, the record before the ALJ, and before this Court on appeal, contains the February 12, 2007 Order of the Philadelphia County Court of Common Pleas, Juvenile Division, Criminal Section, adjudicating D.A. delinquent and ordering continued sex offender treatment with the John J. Peters Institute. (ALJ Op. at 16; R. Item 3, Exhibit C-3 Adjudication of D.A. in the Juvenile Division, Court of Common Pleas of Philadelphia County (Delinquency Order) and Petition #488/489-05-08 (Petition).) The ALJ specifically noted in his opinion:
The Court Order and the petition submitted by the Assistant District Attorney clearly shows that the adjudication was based on sexual abuse of the subject child in this case, R.P., and was accepted into evidence, with raised seal and certification from the Philadelphia Court of Common Pleas in accordance with the provisions of 42 Pa. C.S. § 6103[] and 42 Pa. C.S. § 6104.[](ALJ Op. at 16.)
42 Pa. C.S. § 6103 "Proof of official records" provides:
(a) General Rule.—An official record kept within this Commonwealth by any court, magisterial district judge, or other government unit, or an entity therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record or by that officer's deputy, and accompanied by a certificate that the officer has the custody. The certificate may be made by any public officer having a seal of office and having official duties with respect to the government unit in which the record is kept, authenticated by the seal of that office, or if there is no such officer, by:
(1) The Department of State, in the case of any Commonwealth Agency.
(2) The clerk of the court of common pleas of the judicial district embracing any county in which the government unit has jurisdiction, in the case of any government unit other than a Commonwealth agency.
42 Pa. C.S. § 6104 "Effect of official records generally" provides:
(a) General Rule.—A copy of a record of governmental action or inaction authenticated as provided in section 6103 (relating to proof of official records) shall be admissible as evidence that the governmental action or inaction disclosed therein was in fact taken or omitted.
(b) Existence of facts.—A copy of a record authenticated as provided in section 6103 disclosing the existence or nonexistence of facts which have been recorded pursuant to an official duty or would have been so recorded had the facts existed shall be admissible as evidence of the existence or nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness.
On appeal, D.J. disputes the credibility determinations made by the ALJ, reiterates the testimony she offered before the ALJ that the sexual abuse of R.P. by her biological son underlying the abuse by lack of supervision did not take place, and generally argues that the Department did not meet its evidentiary burden.
Per this Court's May 23, 2012 Order, the Department was precluded from filing a brief in this matter for failure to do so within the allotted time, which included a fourteen day extension per this Court's April 19, 2012 Order.
An indicated report of child abuse must be supported by substantial evidence and it is the Department which bears the burden to demonstrate that the indicated report is accurate. Bucks County Children and Youth Social Services Agency v. Dep't. of Public Welfare, 808 A.2d 990 (Pa. Cmwlth. 2002). Substantial evidence is defined by the Law as "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." 23 Pa. C.S. § 6303(a).
Section 6303(a) of the Law defines an "indicated report" as:
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).(1) Available medical evidence.
(2) The Child protective service investigation.
(3) An admission of the acts of abuse by the perpetrator.
Credibility determinations are within the discretion of the finder of fact. D.T. v. Dep't of Public Welfare, 873 A.2d 850, 853 (Pa. Cmwlth. 2005). In expunction proceedings, the Bureau is the ultimate finder of fact. Id. Absent an abuse of discretion, the Bureau's determinations as to credibility and evidentiary weight will not be disturbed on appeal. Id. Here, the ALJ identified each credibility determination and carefully and clearly articulated the bases for the determinations. The ALJ's credibility determinations included a specific rejection of the testimony D.J. presses on appeal, her contention that her son did not sexually abuse R.P., and that instead R.P. and his brother regularly engaged in sexual acts together. The ALJ found this testimony incredible and unsupported by both the physical and documentary evidence. The ALJ did, however, credit the testimony of Investigator and R.P. The Bureau, acting within its discretion, adopted the ALJ's credibility determinations, and the record here supports the findings of the Bureau. In addition to the credibility determinations made by the ALJ, the ALJ's conclusion that the Department demonstrated by substantial evidence that R.P. suffered abuse due to lack of supervision is supported by the exhibits offered at the hearing and detailed in the recommendation and opinion, including the Investigator's reports made contemporaneously with the allegations of abuse and the juvenile adjudication of D.J.'s son. (ALJ Op. at 15-16.)
This Court, in G.V. v. Department of Public Welfare, ___A.3d___, 2012 WL 2849501 at *8 (Pa. Cmwlth. No. 125 C.D. 2011, filed July 12, 2012), recently addressed the standard of proof that must be satisfied in order to maintain an indicated report of child abuse on the ChildLine Registry and concluded that the standard required is clear and convincing evidence or "evidence that is so clear, direct, weighty, and convincing as to enable the [trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts [in] issue." Here, the ALJ's opinion and recommendation was adopted by the Bureau prior to our decision in G.V. and the clear and convincing evidence standard was not addressed. However, we conclude that it is not necessary to vacate and remand to allow the Department to issue a new determination as to whether the denial of expungement is supported by clear and convincing evidence so as to allow for maintenance of the indicated report of abuse on the ChildLine Registry, because the evidence of record in this case satisfies the clear and convincing standard.
The evidence of record here consists of more than the testimony of witnesses, which may have been weighed differently under the clear and convincing standard. Compare, T.T. v. Department of Public Welfare, ___A.3d___(Pa. Cmwlth., No. 1890 C.D. 2011, filed July 13, 2012). The record contains the juvenile criminal adjudication of D.J.'s son as delinquent for his sexual abuse of R.P. (Delinquency Order and Petition.) The adjudication of D.A. is consistent with the testimony of both Investigator and R.P., as well as the Department reports created by Investigator as he was investigating the allegations of abuse. (Id.) The adjudication of D.A. directly contradicts the testimony given by D.J. and M.G. that D.A. was never left alone with R.P. (Id.) Finally, the adjudication of D.A. unequivocally refutes D.J.'s persistent arguments that any evidence of sexual abuse was the result of R.P.'s voluntary sexual acts with his brother, not the actions of D.A., and that she reported her observations of R.P. and his brother's sexual acts to the foster care agency. (Id.)
Accordingly, we find that the Department has sustained its burden of demonstrating that the indicated report of child abuse, resulting from lack of supervision, is accurate and that the evidence of record demonstrates by clear and convincing evidence that disclosure on the ChildLine Registry is appropriate. The September 30, 2011, Final Order of the Secretary of the Department upholding the October 12, 2010, Order entered by the Bureau denying D.J.'s request to expunge an indicated report of child abuse is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 17th day of September, 2012, the September 30, 2011, Final Order of the Secretary of the Department of Public Welfare upholding the October 12, 2010, order entered by the Bureau of Hearings and Appeals denying D.J.'s request to expunge an indicated report of child abuse is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY PRESIDENT JUDGE PELLEGRINI
I respectfully dissent from the majority's holding because an indicated report of child abuse resulting from a lack of supervision, as defined by Section 6303(b)(1)(iv) of the Child Protective Services Law (Law), 23 Pa. C.S. §6303(b)(1)(iv), should not be sustained where there is no evidence of record demonstrating that the alleged perpetrator had any knowledge that abuse was occurring in his or her absence.
Here, R.P. and his brother were foster children in the custody of and residing in the house belonging to D.J. from August 2000 through July 2002. An indicated report of child abuse was filed as a result of an investigation that found that D.J.'s biological son, D.A., engaged in forcible sexual activity with R.P. Even though no evidence was offered or alleged that D.J. knew of the activity, the Administrative Law Judge (ALJ) denied D.J.'s request to expunge the indicated report of child abuse. The Bureau of Hearings and Appeals (Bureau) adopted the ALJ's opinion in its entirety.
The record also contains an order of the Philadelphia County Court of Common Pleas, Juvenile Division, Criminal Section, dated February 12, 2007, adjudicating D.A. delinquent for sexually abusing R.P. --------
I dissent from the majority because the type of child abuse alleged here does not fit within the definition of 23 Pa. C.S. §6303(b)(1)(iv). Rather, it falls within 23 Pa. C.S. §6303(b)(1)(ii) which is the provision that specifically deals with sexual abuse and provides that the term "child abuse" includes:
(ii) An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age.The Department conceded that it did not proceed under that subsection because "[D.J.] did not know abuse was occurring." (April 13, 2010 Hearing Transcript at 29).
Because it could not make out a charge under that provision, the Department charged under 23 Pa. C.S. §6303(b)(1)(iv), which deals with physical neglect, not physical or sexual abuse, and provides that the term "child abuse" includes:
(iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide essentials of life, including adequate medical care, which endangers a child's life or development or impairs the child's functioning.
In order to prove child abuse under that subsection then, the Department must demonstrate by substantial evidence that an alleged perpetrator (1) seriously physically neglected the child, either by prolonged or repeated lack of supervision or failure to provide essentials of life; (2) resulting in endangerment of the child's life or development or impairment of the child's functioning.
The only allegation of abuse here is that D.J. left R.P. alone with D.A. and that unbeknownst to her, D.A sexually abused R.P. That allegation simply does not meet those criteria because there is no allegation of serious physical neglect due to lack of supervision or failure to provide the essentials of life.
Accordingly, because the criteria under 23 Pa. C.S. §6303(b)(1)(iv) has not been met, I respectfully dissent and would reverse the order of the Secretary.
/s/_________
DAN PELLEGRINI, President Judge