Opinion
No. 922 C.D. 2013
03-11-2014
D. W., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
D.W. petitions for review of the final order of the Secretary of the Department of Public Welfare (DPW) upholding the decision of the Bureau of Hearings and Appeals (Bureau) to deny D.W.'s appeal from the decision of the Lancaster County Children and Youth Services (CYS) to file an "indicated report" of child abuse against him pursuant to the Child Protective Services Law (CPSL), 23 Pa. C.S. §§ 6301-6386. The Bureau adopted in its entirety the recommendation of the Administrative Law Judge (ALJ), who concluded that CYS provided clear and convincing evidence to support its decision. We affirm.
The background of this matter is as follows. After CYS received an oral report of child abuse in July 2011, the Lancaster County Children's Alliance (LCCA) interviewed H.F., the purported victim, and CYS completed an investigation. As a result, CYS filed an indicated report of child sexual abuse in September 2011 and named D.W., H.F.'s stepfather, as the perpetrator. D.W. appealed from the indicated report and, opting to forego a preliminary DPW review of the findings, requested an administrative hearing. At the February 2012 hearing, CYS presented the following witnesses: H.F.; LCCA child forensic interviewer Kari Stanley; certified nurse practitioner (CRNP) Julie Stover; CYS abuse case worker Christian Britton and H.F.'s biological father. D.W. did not testify.
Accepting as credible the testimony of H.F., who was born in 2005, the ALJ found as follows. During the relevant time period, H.F. lived with her biological mother J.W., stepfather D.W., and a younger half-sister. When J.W. went to work, D.W. cared for H.F. and her sister. On more than one occasion, D.W. caused H.F. to put her hand and/or her mouth on his penis. Determining that CYS met its burden, the ALJ recommended that D.W.'s appeal be denied. The Bureau entered an order adopting the ALJ's recommendation in its entirety and the Secretary entered a final order upholding the Bureau's order. D.W.'s timely appeal to this Court followed.
In G.V. v. Department of Public Welfare, 52 A.3d 434, 446 (Pa. Cmwlth. 2012), petition for allowance of appeal granted, ___ Pa. ___, 66 A.3d 252 (2013), we held that while county children and youth services agencies are bound by the substantial evidence standard when they issue an indicated child abuse report, DPW must follow the stricter clear and convincing evidence standard when it determines whether to maintain a summary of such report on the ChildLine Registry. Because we have determined that the county agency must present clear and convincing evidence to establish the accuracy of an indicated report of child abuse, we will evaluate the record under that standard.
D.W. first argues that the ALJ erred in denying his request for a continuance in order to secure an expert witness to rebut the testimony of the CRNP regarding H.F.'s physical examination. As the individual who completed H.F.'s physical examination, the CRNP testified that the examination was "normal" and did not indicate medical evidence of vaginal injury or penile penetration. She further explained that a normal examination was consistent with the history presented and neither confirmed nor denied sexual abuse. In support of his denial of D.W.'s continuance request, the ALJ stated as follows:
The CRNP was simply a fact witness for [DPW], as she was never moved to be deemed to have an expert opinion for hearing purposes, even though several unobjected to opinion questions were asked of her. Her report and testimony showed that there was no medical evidence of vaginal injury or penile penetration.... The report continues, stating that the normal exam is consistent with the history presented and neither confirms nor denies abuse did occur.... As a fact witness, the CRNP's testimony and evidence basically tells me nothing, and I find no persuasive value in her testimony. [I agree] with [D.W.'s] argument that the testimony of the CRNP was of no corroborative value and, as such, has no need to be rebutted by an expert. Additionally, and perhaps most importantly, the testimony of the CRNP was limited to alleged vaginal contact of [H.F.]. The CRNP was not a witness to affirm or refute any oral sexual contact or digital sexual contact between [D.W.] and [H.F.], which would make an expert useless in rebuttal of that sexual contact.ALJ's Decision at 7.
In considering D.W.'s argument, we are mindful that, absent prejudice or an abuse of discretion, we cannot reverse the ALJ's decision to deny a continuance request. Commonwealth v. Small, 559 Pa. 423, 453, 741 A.2d 666, 682 (1999). This is no indication of either here. Because the ALJ found no persuasive value in the CRNP's testimony, his decision to deny D.W.'s request to secure an expert witness to rebut it was neither prejudicial nor an abuse of discretion.
D.W. next maintains that the record lacks substantial evidence to support the ALJ's adjudication in that the evidence relied upon, H.F.'s testimony, was inconsistent and patently incredible. Specifically, D.W. contends that H.F.'s testimony at the hearing was inconsistent with her video interview and otherwise fantastical. For example, he maintains that H.F. inconsistently testified regarding whether her clothes were on or off during the sexual contact, which adult she first told about the contact and where she was when she made the disclosures. In addition, D.W. notes H.F.'s testimony that he gave her $2000 in exchange for sexual contact, which she asserted filled a large bag and would stretch from one end of the courtroom to the other. February 21, 2012 Hearing, Notes of Testimony (N.T.) at 47; Reproduced Record (R.R.) at 49a.
In considering D.W.'s argument, we note that credibility determinations in expungement proceedings are made by the fact finder and are not subject to appellate review. S.T. v. Dep't of Pub. Welfare, Lackawanna Cnty. Office, Children, Youth & Family Servs., 681 A.2d 853, 856 (Pa. Cmwlth. 1996). Additionally, in determining whether a fact-finding is supported by substantial evidence, we "must give the party in whose favor the decision was rendered the benefit of all reasonable and logical inferences that may be drawn from the evidence of record; the weight and credibility to be accorded to the evidence is solely within the province of the attorney examiner as fact finder." Id. Further, it is well settled that an ALJ can base his or her determination that an indicated report was accurate on the consistent testimony of a child abuse victim. G.V. v. Dep't of Pub. Welfare, 52 A.3d 434, 439 (Pa. Cmwlth. 2012), petition for allowance of appeal granted, ___ Pa. ___, 66 A.3d 252 (2013); D.T. v. Dep't of Pub. Welfare, 873 A.2d 850, 854 (Pa. Cmwlth. 2005).
Here, we conclude that the record supports the ALJ's findings and that any minor inconsistencies in H.F.'s testimony go to the weight of her testimony, which is within the province of the ALJ. At the beginning of the hearing, the ALJ carefully established that H.F. knew the difference between telling the truth and a lie. February 21, 2012 Hearing, N.T. at 14-15; R.R. at 16-17a. He found that she was a good witness for a six-year-old child, testifying clearly and concisely regarding the sexual abuse. In addition, he noted that H.F. did not appear to be rehearsed and that there was no evidence that she had any bias, motive or prejudice against D.W. Specifically, he noted that, "[w]ithout motive, it is unreasonable to believe that a young girl [H.F.'s] age would make up allegations of sexual abuse by a man who she called 'dad;' and then continue with the allegations through the LCCA interview and an administrative hearing." ALJ's Decision at 9.
Moreover, acknowledging some of the potentially implausible aspects of H.F.'s testimony, e.g. the $2000, the ALJ emphasized that "what was very consistent about [H.F.'s] testimony was that she had sexual contact with someone and that person was [D.W.]." Id. In that regard, H.F. consistently maintained that D.W. caused her to put her hand and/or her mouth on his penis and "the only person she accused of such contact [was D.W.]." Id. at 10. Finally, the ALJ took into account H.F.'s detailed drawing of D.W.'s penis. The ALJ observed that the "anatomically correct drawing of a penis from a six[-]year[-]old girl demonstrates a hypersexual knowledge way beyond her years, which could only have come from first hand contact with an adult penis." Id. at 9-10.
Determining that the specifics of the drawing gave even more credibility to H.F.'s testimony, the ALJ noted as follows:
[H.F.] testified that [D.W.] would be seated in the bathroom when he would call her over to put her mouth on his penis. (N.T. 36) [H.F.'s] illustration shows the scrotal and penile raphe, located on the ventral side of [D.W.'s] penis. If [D.W.] was in the seated position, with his erect penis exposed, [H.F.] would have been looking at the underside of [his] penis.
Accordingly, for the above reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 11th day of March, 2014, the final order of the Secretary of the Department of Public Welfare is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
ALJ's Decision at 9 n.2.