Opinion
No. 1565 C.D. 2011
03-08-2013
In Re: S.H. G.H., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
G.H. (Father) petitions for review of the August 2, 2011 final order of the Secretary of the Department of Public Welfare (Secretary or DPW), which upheld the January 12, 2011 order of DPW's Bureau of Hearings and Appeals (BHA). The BHA adopted, in its entirety, the adjudication of an Administrative Law Judge (ALJ) dismissing Father's administrative appeal to expunge the indicated report of sexual abuse of his son, S.H. (Child). We vacate and remand for further proceedings.
On November 15, 2012, this Court filed an unpublished memorandum opinion and accompanying order in this case, but on January 25, 2013, we granted Father's application for reconsideration and withdrew our opinion and order.
On November 9, 2009, Potter County Children and Youth Services (CYS) received information that Child was sexually abused by Father on November 7, 2009. CYS conducted an investigation and, on January 6, 2010, pursuant to section 6388(a) of the Child Protective Services Law (CPSL), filed an indicated report against Father as a perpetrator of sexual child abuse with the ChildLine and Abuse Registry (ChildLine Registry), 23 Pa. C.S. §6338(a). Besides noting Child's description of the incident, the indicated report stated that Father denied that he committed sexual abuse, that Father took and passed a polygraph administered by law enforcement officials, and that a polygraph had been requested for K.Z. (Mother). (Reproduced Record (R.R.) at 2a-4a).
On January 12, 2010, Father was informed that the indicated report was listed on the ChildLine Registry, and Father requested a hearing to challenge the validity and/or accuracy of the allegations in the indicated report. The ALJ conducted a hearing on July 7, 2010, and thereafter issued an adjudication. The ALJ's pertinent findings of fact are as follows.
Child is a male born on July 2, 2006, to Mother and Father. In 2008, Mother and Father divorced, and Mother was the primary custodial parent while Father retained partial custody. Also, in 2008, Mother threatened to report Father for sexually abusing Child if Father tried to obtain primary custody of Child. At the time of the hearing before the ALJ, Mother and Father were involved in a custody dispute because Father wanted to obtain additional time with Child, whom Father has not seen since the date of the alleged abuse. (ALJ's Findings of Fact Nos. 1, 2, 4-6).
When the alleged abuse occurred on Saturday, November 7, 2009, Child was with Father for the weekend pursuant to the partial custody arrangement. Child returned to Mother late night on Sunday, November 8, 2009. The next day, Child (then 3 years and 4 months old) complained to Mother that he was experiencing pain when urinating and had blood in his stool. Mother made an appointment with Dr. R. Illustre, who examined Child on November 11, 2009. During the examination, Child told Dr. Illustre that Father had put his finger and a Q-tip in Child's anus and that the Q-tip appeared to have blood on it when it was removed. Dr. Illustre examined Child, observed that Child had good anal sphincter tone and no fissures, and found no physical evidence of rectal pain. (ALJ's Findings of Fact Nos. 9-12).
On December 8, 2009, Dr. Susan Nathan, Ph.D., conducted a forensic interview of Child (now 3 years and 5 months old). During the interview, Child spontaneously declared to Dr. Nathan that "daddy pokes his finger in my butt." Dr. Nathan inquired into the matter, and Child explained that Father took him into Father's bedroom and removed all of Child's clothes. When Dr. Nathan handed an anatomically correct doll to Child, he pointed to the doll's backside and stated, "there's where daddy pokes my butt first with the finger and then with a Q-tip." (ALJ's Findings of Fact Nos. 15-17).
The ALJ subsequently conducted a competency hearing and found that Child (now 4 years old) was competent to testify. Child testified and described the incident of abuse as follows:
Q. Do you ever go visit your father?
A. No, not anymore because he has been bad to me.
Q. Your dad has been bad to you? Is that what you said?
A. Uh-hmm.
Q. How has your father been bad to you?
A. He got his finger and poked it in my butt, and it hurt.
Q. He got his finger, and he poked it in your butt; and it hurt? Is that what you said?
A. Uh-hmm. That's true.
Q. Say that again.
A. That's true.
Q. Where did this happen?
A. At my dad's house when I was in his bed.
Q. At your dad's house on his bed?
A. Uh-hmm, in his bedroom.
Q. Where were your clothes?
A. On the ground. He took them off and spread out my legs.
Q. He spread out your legs?
A. Uh-hmm.
Q. What did it feel like when he did this?
A. It feels like it was bad.
Q. Like it was bad?
A. Uh-hmm.
Q. Did he just use a finger, or did he -
A. No. He got a Q-tip and put it in my butt, and it really, really hurt.
Q. I want to get a doll and give him to you. Can I do that?
A. Uh-hmm.
Q. This is a little doll of a boy. Now, when you say that he had his clothes off, did your dad take your clothes off?
A. Uh-hmm.
Q. How did he do it? Can you show me on the doll what he did?
A. He unbuttoned my shirt.
Q. Okay. He unbuttoned your shirt. Then what happened? Did he take your shirt off or leave it on?
A. He took it off.
Q. Then what else happened? Did you leave the pants on?
A. He took the pants off too.
Q. He took the pants off. How did he do that?
A. He unbuttoned them.
Q. He unbuttoned them. Then did he leave the underpants on like this (indicating)?
A. Uh-uh. He took the underpants off too.
Q. He did? Show me how he did that.
A. (indicating.)
Q. He took them all the way off. What is this part (indicating) of the doll called? Do you know?
A. The jigger.
[Attorney for CYS]: The jigger. Let the record reflect that I'm pointing to the penis of an anatomically correct doll.
Q. Show me with this doll on the floor here how you were on the bed. Were you on your back or on your stomach?
A. On my back.
Q. Laying on your back like this (indicating)?
A. Uh-hmm, spreading my legs out.
Q. Okay. Show me what he did.
A. (indicating).
[Attorney for CYS]: Let the record reflect that he took the doll's legs and spread them apart from the ankles.
Q. And then what did your dad do to you?
A. He bended my leg.
Q. He bent your leg? Can you show me on the doll?
A. (indicating).
Q. That way?
A. Uh-hmm.
Q. Then what else did he do to you?
A. He did it, and he flipped him over.
Q. He flipped you over?
A. Uh-hmm.
Q. Okay. Then what did he do to you?
A. He put it in there (indicating).
Q. Can you show me with your finger?
A. (indicating).
Q. He put his finger in your butt?
A. Uh-hmm.
[Attorney for CYS]: Let the record reflect that the child placed his finger into the anus of the anatomically correct doll.
Q. Now, it's really important that you tell us the truth. Is what you're telling us the truth, or is this just a story that you made up?
A. This is a story that's not made up.
* * *
Q. Did you like it when you dad did this to you?
A. No, uh-uh. I thought it was bad, and it's bad.
Q. You thought it was bad. Did it hurt you?
A. Uh-hmm.
Q. Tell me about that. Did he just put his finger in one time or more than one time? How did that work?
A. He put his finger in one time. Then he put a Q-tip in my butt too, and it went in the hole where my poop goes out.
Q. What did the Q-tip look like? Did you see it after he did that?
A. Uh-hmm.
Q. What did it look like?
A. It looked like pee and - no, poop and blood.
Q. It looked like poop and blood?
A. Uh-hmm.
Q. Did your dad say anything to you while any of this was going on?
A. Yes. I said, "Stop it," and he laughed at me, and he laughed and laughed and laughed; and I said, "Stop it, stop it, stop it, stop it," and he kept on laughing.(R.R. at 35a-40a; see ALJ's Findings of Fact Nos. 18, 20, 22, 23).
Q. He kept on laughing?
A. Uh-hmm.
During cross-examination, Child testified that Father said he was taking Child into his room to "hurt" him. (R.R. at 44a). On recross-examination, Child testified that sometime during the incident, Father picked him up by the ankles and dropped him. (R.R. at 48a-49a).
Mother also testified at the hearing. She denied that she "coached" or otherwise convinced Child into saying that Father abused him. (R.R. at 60a-61a).
In rebuttal, Father offered William Allenbaugh, M.D., as an expert in the area of sexual abuse evaluation. Dr. Allenbaugh testified that based upon his examination of Father, he found nothing to suggest that Father has a persistent sexual interest in children, nor any indication of paraphilia in his sexual background.
Father testified and denied that he committed the abuse. During his testimony, Father recounted his acrimonious relationship with Mother and the difficulties he had in trying to arrange for overnight visits with his son. Father's mother, N.H., (Paternal Grandmother) also testified that she spent the weekend of November 7-8, 2009, with Father and Child. According to Maternal Grandmother, Child appeared to be his normal self the entire weekend, and she offered a timeline of events that made it impossible for Father to have committed the abuse. (ALJ's Findings of Fact Nos. 24-26, 27, 34; DPW's Final Order, 08/02/2011, Findings of Fact Nos. 37-38).
At the conclusion of the hearing, Father sought to admit the results of the polygraph tests that he and Mother took as part of a criminal investigation. Mother's polygraph stated "Deception Indicated" in response to questions whether she "coached" Child to "say those things about [Father.]" (R.R. at 176a). Father's polygraph stated "Deception Not Indicated" when asked whether he did "anything sexual to [Child.]" (R.R. at 179a). It is unclear whether the ALJ officially admitted the polygraph results into evidence.
In its adjudication, the ALJ stated that it found the testimony of Child, Mother, Dr. Illustre, and Dr. Nathan credible. The ALJ further found that Father's testimony denying that he committed the abuse was not credible. Ultimately, the ALJ observed that Child's credible testimony concerning the abuse was consistent with his reports to Drs. Nathan and Illustre and constituted "substantial evidence to support [DPW's] burden of proof that the indicated report against [Father] is being correctly maintained." (ALJ's Finding of Fact No. 34; ALJ Adjudication, at 11). Accordingly, the ALJ recommended the dismissal of Father's expungement appeal.
Father filed a timely appeal to the BHA, which affirmed and adopted the ALJ's adjudication and recommendation in its entirety. Father then filed a petition seeking reconsideration with the DPW, which the Secretary granted on February 9, 2011. In its reconsideration order, the Secretary permitted the resubmission of legal arguments "limited to the facts contained in the record developed before the [ALJ.]" (R.R. at 206 and 212).
On August 2, 2011, the Secretary issued a final order upholding the decision of the BHA. In this order, the Secretary, acting in a fact-finder capacity, additionally found that: (1) Maternal Grandmother's testimony was not credible; (2) although Child testified in more elaborate details at the hearing, Child's description of the sexual abuse at the hearing was entirely consistent with his prior statements to Drs. Illustre and Nathan; (3) Child's testimony was entitled to "substantial weight;" (4) the testimony of Drs. Illustre and Nathan was "credible [and] compelling," established the consistency of Child's description of the incident prior to the hearing, and is to be accorded "substantial weight;" and (5) Dr. Allenbaugh's testimony was irrelevant and not entitled to "any weight" because Father was not accused of engaging in a pattern of deviate sexual conduct and Dr. Allenbaugh's testimony "did not offer a specific opinion regarding this alleged offense." (R.R. at 213; DPW Final Order, 08/02/2011, at 1). Father now petitions this Court for review.
Our scope of review is limited to determining whether constitutional rights have been violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
On appeal, Father first complains that the Secretary, after granting reconsideration, made additional findings of fact and credibility determinations as evidenced in its final order. Father argues that because the Secretary does not observe the witnesses first-hand, the Secretary is not in a position to act as a fact-finder and lacks authority to make findings of fact and credibility determinations. However, it is well-settled that the Secretary of DPW is the ultimate fact finder who determines whether an indicated report of child abuse should be expunged. City of Philadelphia, Office of Children, Youth & Family Services v. Department of Pub. Welfare, 767 A.2d 10, 12 (Pa. Cmwlth. 2001); Siemon's Lakeview Manor Estate v. Department of Public Welfare, 703 A.2d 551, 555 (Pa. Cmwlth. 1997); G.S. v. Department of Public Welfare, 521 A.2d 87, 89 (Pa. Cmwlth. 1987). Therefore, we conclude the Secretary is empowered to supplement the findings and credibility determinations of the ALJ.
In his remaining arguments, Father contends that CYS failed to adduce substantial evidence that the indicated report is accurate, and he challenges the credibility and weight of the evidence.
A child protective services agency will file an indicated report if the investigation by the agency determines that there is substantial evidence of the alleged abuse based upon available medical evidence, the investigation by the child protective services agency, or the admission of the acts of abuse by the perpetrator. Section 6303 of the CPSL, 23 Pa. C.S. §6303. An indicated report can be based on allegations of "sexual abuse or exploitation," which is defined in section 6303 of the CPSL to include the criminal offense of aggravated indecent assault. A person commits the crime of aggravated indecent assault when the "person engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures [and]... the complainant is less than 13 years of age." Section 3125(a)(7) of the Crimes Code, 18 Pa. C.S. §3125(a)(7).
Pursuant to section 6338(a) of the CPSL, CYS is obligated to file an indicated report on the ChildLine Registry, and the alleged perpetrator is notified of the indicated report. 23 Pa. C.S. §6338(a). Under section 6341(a)(2) of the CPSL, an alleged perpetrator may request the Secretary to expunge the indicated report, within 45 days after receiving notice of the report, "on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with [the CPSL]." 23 Pa. C.S. §6341(a)(2). If the Secretary refuses a request under section 6341(a)(2), the alleged perpetrator has a statutory right to a hearing before the Secretary or a designated agent to seek expungement of the indicated report because it is inaccurate or improperly maintained. Section 6341(c) of the CPSL, 23 Pa. C.S. §6341(c).
Traditionally, the burden of proof in an expunction hearing is on CYS to show by "substantial evidence" that the indicated report is accurate, and this Court has equated "substantial evidence" with the "preponderance of the evidence" standard of proof. Bucks County Children and Youth Social Services Agency v. Department of Public Welfare, 808 A.2d 990, 993 (Pa. Cmwlth. 2002); S.T. v. Department of Public Welfare, Lackawanna County Office, Children, Youth & Family Services, 681 A.2d 853, 857 n.4 (Pa. Cmwlth. 1996). Section 6303(a) of the CPSL defines substantial evidence 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).
Recently, however, an en banc panel of this Court abrogated the substantial evidence/preponderance of the evidence standard with respect to the agency's burden in an expungement proceeding. G.V. v. Department of Public Welfare, 52 A.3d 434 (Pa. Cmwlth. 2012) (en banc). Out of concern for the alleged perpetrator's potential loss of reputation and stigma associated with being named a child abuser, this Court adopted a higher standard of proof and held that, in order to maintain an indicated report summary on the ChildLine Registry, CYS must prove that the indicated report is accurate by clear and convincing evidence. Our holding was based, in large part, on the fact that "reputation" is a protected fundamental interest under Article I, Section 1 of the Pennsylvania Constitution and the awareness that various third-parties have access to the information on the ChildLine Registry. See Sections 6340(a) and 6344 of the CPSL, 23 Pa. C.S. §6340(a) (listing 17 third-parties that may obtain an indicated report on the ChildLine Registry), 23 Pa. C.S. §6344 (listing prospective employment and other situations where an individual must provide certification that he or she does not have an indicated report on the ChildLine Registry). Notably, "[c]lear and convincing evidence is the highest burden in our civil law." T.T. v. Department of Public Welfare, 48 A.3d 562, 567 (Pa. Cmwlth. 2012). In order to meet that standard, the fact finder must find the witnesses were credible, that the facts to which they have testified are remembered distinctly, and that their testimony "is so clear, direct, weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Id.
Here, at the time of the hearing and agency appeals, the Secretary did not have the benefit of our decision in G.V. and, therefore, considered only whether substantial evidence supported a finding that Father committed child abuse. Accordingly, because the Secretary may have weighed the evidence differently under the clear and convincing evidence standard, we vacate and remand this case to the Secretary to reevaluate the evidence and issue a new determination as to whether the clear and convincing standard of proof has been met. See T.T., 48 A.3d at 567 (remanding where DPW did not apply the clear and convincing standard provided in G.V.).
Based on the foregoing, we vacate and remand.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 8th day of March, 2013, the August 2, 2011 order of the Secretary of the Department of Public Welfare is vacated and the matter is remanded to the Secretary to issue a new determination as to whether clear and convincing evidence supports maintaining the indicated child abuse report on the ChildLine Registry. The Secretary shall issue a determination within 90 days of the date of this order, from which any aggrieved party may appeal.
Jurisdiction is relinquished.
/s/_________
PATRICIA A. McCULLOUGH, Judge