Opinion
No. 1639 C.D. 2011
07-05-2012
W.M., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
W.M. 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 W.M.'s appeal from an "indicated report" of child abuse filed by Cumberland County Children and Youth Services (CYS) 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 met its burden of showing that W.M. should remain listed as a perpetrator of sexual child abuse. On appeal, W.M. argues that there is no substantial evidence to uphold an "indicated report" of child abuse. We disagree and, accordingly, affirm.
A CYS agency or DPW may issue an "indicated report" when, after investigation, it is determined that substantial evidence of the child abuse exists based on (1) available medical evidence; (2) the child protective service investigation; or (3) an admission of the acts of abuse by the perpetrator. Section 6303 of the CPSL, as amended, 23 Pa. C.S. § 6303. When an indicated report is filed, the appropriate information is entered in the Statewide Central Register of Child Abuse and notice is provided to the subjects of the report together with an explanation of the implications of the entry. Section 6338(a) of the CPSL, as amended, 23 Pa. C.S. § 6338(a).
A perpetrator may request that DPW expunge the information contained in the Central Register and, if his or her request is denied, has a right to a hearing regarding the accuracy or maintenance of the report. Section 6341 of the CPSL, as amended, 23 Pa. C.S. § 6341. The CYS agency has the burden of proving by substantial evidence that an indicated report of child abuse is accurate and, if the agency fails to sustain that burden, the request for expungement will be granted. T.W. v. Dep't of Pub. Welfare, 38 A.3d 1067 (Pa. Cmwlth. 2012). 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.
In November 2008, CYS received a referral that W.M. had abused L.L. when she was twelve years old and living in Cumberland County. In December 2008, L.L. participated in a forensic interview regarding the allegation of abuse. In January 2009, CYS completed its child abuse investigation and filed an indicated report with ChildLine naming W.M. as the perpetrator. Upon receiving notification in February 2009 that he had been listed as a perpetrator, W.M. appealed. When W.M.'s first-level appeal was denied in March 2009, he requested an administrative hearing. After a hearing held in February 2010, an ALJ found the testimony of L.L. and the CYS witnesses to be credible. W.M. did not testify.
CYS witnesses included Mr. Tom McClernon, intake caseworker for CYS, Ms. Susan Husson, then a counselor at Clear Vision Residential Treatment Services, Ms. Sherry Moroz, the forensic interviewer employed by the Child Advocacy Center for the Central Susquehanna Valley, and Pennsylvania State Trooper Rodney Fink. In addition, L.L.'s mother, S.S., and her younger sister, S.L., testified.
In relevant part, the ALJ made the following findings. In the summer of 2005, L.L. was twelve years old and W.M., then married to L.L.'s older sister, Wh.M., was approximately twenty. On the day of the alleged abuse, L.L.'s mother, S.S., dropped off L.L. and S.L., L.L.'s five to six year old sister, at Wh.M.'s house so that she could babysit them. S.S. instructed Wh.M. not to leave L.L. and S.L. alone with W.M. Contrary to those instructions, Wh.M. permitted W.M. to take their child, D., and W.M.'s two sisters-in-law, L.L. and S.L., to Laurel Lake. Leaving D. and S.L. near his car, W.M. accompanied L.L. to the bathroom so that she could use the facilities. Once L.L. was done, W.M. took her behind the bathroom building, told her that she was pretty, placed his hand between the front of her shorts and bikini bottom and rubbed her genitals. When W.M. tried to reach under her bathing suit, she pulled away to prevent it. W.M. then placed her hand on his penis over his clothes. The ALJ found that "[t]he incident ended when [W.M.] pushed L.L. away when she went to yell out of fear from continuing to touch his genitals." ALJ's August 30, 2010 Decision, Finding of Fact No. 6. After W.M. and L.L. returned to the car, all of them played at the lake until S.S. telephoned W.M. and told him that she was "upset that he was alone with the children and ordered him to bring L.L. and S.L. back to Wh.M.'s home." Finding of Fact No. 7. On the drive home, W.M. "told L.L. that she looked sexy when the wind blew her hair and threatened to hurt L.L. if she revealed that he touched her at the bathroom." Finding of Fact No. 8.
Determining that CYS met its burden, the ALJ recommended that W.M.'s appeal be denied. In September 2010, the Bureau entered an order adopting the ALJ's recommendation in its entirety. In August 2011, the Secretary entered a final order upholding the Bureau's order. W.M.'s timely appeal to this Court followed.
On appeal, W.M. maintains that the ALJ erred in finding L.L.'s testimony to be credible and in relying upon it to conclude as a matter of law that W.M.'s behavior constituted sexual child abuse. Specifically, W.M. argues that there is insufficient consistent evidence to support the determination of abuse, citing apparent discrepancies in L.L.'s various disclosures over the course of the investigation, and points outs that L.L. was in juvenile placement at the time of her initial disclosure. W.M. contends that such a combination of factors should have fatally compromised L.L.'s credibility. We reject W.M.'s arguments.
As the ALJ stated, "[t]his case comes down to an issue of credibility." ALJ's Decision at 8. The ALJ made his credibility determinations in favor of L.L.:
First, the testimony of L.L. was credible. L.L. testified in a straightforward, consistent, and candid manner. She confronted [W.M.] in the hearing room and was clear and appropriately specific as to how the abuse occurred while [W.M.] brought her to Laurel lake. She provided a detailed description of the abuse and corrected her therapist's mistaken assumption that she was digitally penetrated. L.L. stressed that [W.M.] was unsuccessful when he attempted to touch under her bathing suit. Her testimony was also supported by S.L. [little sister] recalling being left alone with D. while [W.M.] and L.L. went behind the bathroom at Laurel Lake. Finally, L.L.'s explanation for keeping the abuse secret for over a year was reasonable based upon her fear then [sic] she would be disbelieved and [W.M.'s] threat of harming her if she did.
Second, no credible reason was given to support L.L. fabricating the allegation. There was no evidence of coaching, suggestive questioning, improper interviewing techniques, or bias suggesting that L.L.'s testimony or
statements were tainted or otherwise unreliable. There simply is nothing to undermine L.L.'s credibility.ALJ's Decision at 8-9 (footnote added).
Third, [W.M.] admitted that he once brought the children to Laurel Lake to play against the wishes of their mothers, which is consistent with the circumstances described by L.L.
Trooper Fink testified that W.M. made this admission during the course of their January 2009 interview. February 18, 2010 Hearing, Notes of Testimony ("N.T.") at 139-40; Reproduced Record ("R.R.") at 201-2a. --------
It is well established that the testimony of the alleged child victim, in and of itself, can constitute substantial evidence to support an indicated report of child abuse. See D.T. v. Dep't of Pub. Welfare, 873 A.2d 850, 854 (Pa. Cmwlth. 2005) (testimony of the victim alone may be sufficient to support an indicated report of abuse). In the present case, L.L.'s testimony was key to the ALJ's determination that CYS met its burden.
Moreover, inasmuch as there were apparent inconsistencies in the precise details of L.L.'s disclosures of W.M.'s abuse, we note that both L.L.'s former counselor, Ms. Husson, and the forensic interviewer, Ms. Moroz, corroborated L.L.'s essential testimony. They testified that, during their respective sessions, L.L. related to them the key facts of the Laurel Lake visit: W.M. accompanied L.L. to the restroom; W.M. left behind the other children; W.M. fondled L.L.'s vaginal area; and W.M. warned L.L. not to tell anyone. February 8, 2010 Hearing, Notes of Testimony ("N.T.") at 72-73, 89-90 and 95-96; Reproduced Record ("R.R.") at 134-35a, 151-52a and 157-58a. In addition, contrary to W.M.'s suggestion that any inconsistencies in the disclosures, e.g. whether digital penetration occurred, should have rendered L.L.'s testimony faulty, the ALJ found that L.L.'s correction of her therapist's mistaken assumption in that regard only bolstered L.L.'s credibility. Similarly, although the ALJ did not allude to the fact that L.L. had been in juvenile placement at the time of her initial disclosure, the record reflects that he was aware of that fact and, nonetheless, found L.L.'s testimony to be credible. Id. at 74; R.R. at 136a.
In this matter, we are bound to view the evidence, and every reasonable inference deducible therefrom, in the light most favorable to CYS as the prevailing party. Bedford County Children and Youth Servs. v. Dep't of Pub. Welfare, 613 A.2d 48 (Pa. Cmwlth. 1992). Additionally, we note that it is within the fact-finder's purview to weigh the witnesses' testimony and to make the relevant credibility determinations. F.V.C. v. Dep't of Pub. Welfare, 987 A.2d 223 (Pa. Cmwlth. 2010). We may not revisit the ALJ's credibility determinations or second-guess the weight assigned to any potentially conflicting testimony. Id. Finally, we conclude that substantial evidence supports the ALJ's findings.
For the above reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 5th day of July, 2012, the final order of the Secretary of the Department of Public Welfare is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge