No. 705 C.D. 2012
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Dauphin County Social Services for Children and Youth (Social Services) petitions for review of the order of the Department of Public Welfare's Bureau of Hearings and Appeals (Department), which sustained the appeal of S.M. from an indicated report of child abuse and directed that the indicated report against her be expunged from the ChildLine Registry. In addition to challenging the Department's fact-finding, Social Services contends on appeal that the Department applied the incorrect burden of proof and erred when it concluded that the presumption set forth in Section 6381(d) of the Child Protective Services Law (Law), 23 Pa. C.S. § 6381(d), as amended, did not apply. We affirm.
The record reflects that S.M. ["Mother"] is the biological mother of J.M., who was approximately twenty months old during the time period at issue. Periodically during August of 2010, including August 4 and 5, S.M. and J.M. lived with S.M.'s mother, P.M. ["Grandmother"]. At some point between August 4 and the morning of August 5, J.M. sustained a broken arm; the injury was determined to be "a non-accidental trauma caused by the twisting of [J.M.'s] arm." Administrative Law Judge's (ALJ) Adjudication, Finding of Fact No. 9. Social Services received a report of suspected child abuse regarding the injury and following its investigation, filed an indicated report of child abuse, naming Mother as the perpetrator. Mother appealed and a hearing followed before the ALJ.
Mother has a young daughter who lives with her and J.M. too.
Mother took J.M. to the hospital in the morning on August 5th.
Before the ALJ, Scott Cray, the Social Services child protective case worker who investigated the incident, testified that he went to Grandmother's home on August 16 to interview Mother. According to Cray, Grandmother answered his questions rather than Mother. Cray reported that he was told that on the evening of August 4, Mother, Grandmother, and another unidentified adult were in the home with J.M. On the morning of August 5, Mother and Grandmother were home with J.M. Cray further testified that Grandmother told him that on August 4, she was sleeping downstairs on the second floor and J.M. was sleeping upstairs on the third floor when they (presumably Mother and Grandmother) heard a crash and when they went to J.M.'s room, they discovered that a heavy rocking chair had fallen on him. He testified later on redirect examination that Grandmother "indicated that [Mother] was in the home and she was there when the incident happened." Notes of Testimony (N.T.) at 35, Reproduced Record (R.R.) at 38a. He also noted that Mother was present for a majority of his conversation with Grandmother and she did not object or correct anything that was said. According to Cray, Mother was the only parent/caretaker in the home on August 4 and 5. He acknowledged on cross-examination, however, that it appeared that Grandmother would assume baby-sitting and caretaking roles for J.M. and his sister, as well.
Cray also testified that Grandmother's boyfriend lived in the house but it is not clear from his testimony whether that boyfriend was the unidentified adult who was at the house on the evening of August 4.
Tynesha Robinson, a coordinator for Social Services, also testified. According to Robinson, she visited the home on August 5 and spoke to Mother; Mother told Robinson that J.M. was in the dining room on the rocking chair and the chair fell over on top of him. Mother did not observe any injuries on J.M. at that time and she put him to bed later in the evening. According to Robinson, Mother noticed the next morning that J.M.'s arm was "dangling," so Mother took him to the hospital. Robinson informed Grandmother that she would be the 24 hour caretaker at which time Grandmother indicated that her boyfriend would be J.M.'s other caretaker while she (Grandmother) was at work. Robinson did not know who else was at home when J.M. was injured or where they were in the house. She also testified that Mother never told her that she was not at home when J.M. was injured.
According to Grandmother's testimony, in August 2010, her boyfriend, son and niece lived with her, and her daughter (Mother) and her two children would stay at her house periodically. When asked where J.M. lived, she replied, "[h]e was back and forth between his mom and me." N.T. at 40, R.R. at 43a. Grandmother testified that she was home on the evening of August 4 but left the house at 6:30 or 7:00 in the morning on the 5th to go to work. She further admitted that she told both investigators that Mother was home when the rocking chair fell on J.M. but that she was not being truthful when she said that. She further stated that when the rocking chair fell on J.M., she was home, along with her son, who was an older teenager, and Mother's boyfriend; Mother was not at home at the time. She recalled that the incident occurred sometime between 11:30 p.m. on the 4th and 4:00 a.m. on the 5th. According to Grandmother, Mother's boyfriend was playing video games in the room next to J.M.'s bedroom and he was the first one to go to him when he heard the chair fall. The boyfriend knocked on Grandmother's door, woke her up, and then she went to see if J.M. was injured. Grandmother explained that she told Social Services that Mother was home rather than Mother's boyfriend because she did not want the agency to know that the boyfriend was staying there because he "was fronting for a drug charge" and she was afraid that would affect her status as a "kinship worker" for her niece. N.T. at 48, R.R. at 51a. Grandmother testified that Mother left the house that night around 9:30 or 10:00 p.m. to have a girls' night out. She further indicated that J.M. did not always stay with his mother; J.M. was primarily with his mother during the week and primarily with Grandmother on the weekends. While she stated that Mother's boyfriend was "overseeing" J.M. because she had gone to bed, she also noted that everyone in the house kept an eye on the child. Grandmother noted that while she would not lie under oath, she would lie to Social Services because she did not trust them and they had lied to her in the past.
Similarly to her mother, Mother testified that she was not present when J.M. was injured. She also denied that she told Robinson that she was at Grandmother's house when J.M. was injured or that it happened in the dining room. She stated that she returned to her mother's house around four or five in the morning and her boyfriend told her that a rocking chair had fallen on J.M. She noticed that when J.M. woke up, he could not use his arm. She admitted that she did not object or correct her mother when she told the investigators that she was present when her son was injured. She also admitted that she never told Social Services that her boyfriend was at Grandmother's house when the injury occurred. She also echoed her mother's testimony that the adults primarily responsible for watching the children were Mother, Mother's boyfriend, and Grandmother.
The ALJ specifically discredited the testimony of Mother and Grandmother, including their assertions that a rocking chair fell on J.M. The ALJ credited the medical evidence and found that J.M. was the victim of child abuse. The ALJ concluded that it was not clear who was home when J.M. was injured and Mother's presence as a care-giver at some point on August 4 and on the morning of August 5 was insufficient to apply the presumption set forth in Section 6381(d) or support the indicated report. Accordingly, the ALJ concluded that Social Services failed to demonstrate that Mother caused J.M.'s injuries. Based thereon, the ALJ sustained the appeal and recommended that the record be expunged. The Department adopted the ALJ's recommendation. This appeal followed.
We begin by noting that when an alleged perpetrator appeals an indicated report of abuse seeking expungement, the child protection services agency bears the burden to establish with substantial evidence that the indicated report is accurate. B.B. v. Dep't of Pub. Welfare, 17 A.3d 995, 999 (Pa. Cmwlth. 2011). "Substantial evidence" is defined 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. The child protective services agency's burden is aided by the presumption appearing in Section 6381(d), which provides as follows:
We note that after this case was litigated, this court held that while "substantial evidence must support a determination of whether child abuse has occurred, . . . there must be clear and convincing evidence of child abuse to maintain statutorily-designated information from an indicated report on the ChildLine Registry." G.V. v. Dep't of Public Welfare, 52 A.3d 434, 446 (Pa. Cmwlth. 2012) (en banc), petition for allowance of appeal filed and docketed at 619 MAL 2012.
An "indicated report" is defined as:
A child abuse report made pursuant to the [Child Protective Services Law (Law)] if an investigation by the county agency or the [Department] determines that substantial evidence of the alleged abuse exists based on any of the following: (1) [a]vailable medical evidence[;] (2) [t]he county agency's investigation[;] (3) [a]n admission of the acts of abuse by the perpetrator.
Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child.
23 Pa. C.S. § 6381(d). It is now well settled that the above presumption does not apply, however, if the child was in the care of more than one individual at the time of the abuse and the evidence is insufficient to narrow the presumption's application to only one caretaker. In B.B., the abused children sustained injury while in the care of their grandmother and grandfather but only the grandmother was the subject of an indicated report. The Department and ALJ denied the appeal concluding that no competent evidence of record rebutted the presumption or established that the grandmother was not one of the persons responsible for the injuries. On review, we concluded that the presumption did not apply when more than one person was responsible for the care of the child during the time of injury. Specifically, we stated:
[Based upon the express and unambiguous language of Section 6381(d)], the presumption embodied therein cannot be applied where more than one individual was entrusted with a child's care during the period in which medical evidence shows the injuries were inflicted. On its own, the language of Section 6318(d) resolves this issue. Therein, the General Assembly in setting forth the presumption refers only to the "parent or other person" responsible for the welfare of the child. . . . The clear use of the singular tense therein cannot be read as an accident, and cannot therefore be read to apply to any situation in which the presumption is sought to be applied to more than one "parent or person."
B.B., 17 A.3d at 1001 (statutory citation and footnote omitted). See also J.W. v. Dep't of Pub. Welfare, 9 A.3d 270, 272-73 (Pa. Cmwlth. 2010) (stating that presumption does not apply where a child was in the care of multiple persons during timeframe for injury and it is not possible to determine which person actually caused the injury); C.E. v. Dep't of Pub. Welfare, 917 A.2d 348 (Pa. Cmwlth. 2007).
The arguments asserted on appeal overlap one another. We begin with Social Services's challenge to the Department's fact-finding. Social Services contends that contrary to the Department's findings, the record demonstrates that Mother was taking care of J.M. when he was injured. In making this argument, Social Services points to: (1) Mother's testimony that she did not correct Grandmother when her Grandmother told the investigators that Mother was home when J.M. was injured; (2) Mother admitted that she was at Grandmother's house during the day on August 4 and took J.M. to the hospital on August 5; and (3) Mother admitted that she let the hospital employees believe that she was present when J.M. was injured. Social Services also points to the testimony of investigator Robinson, who testified that Mother told her that she was there when J.M. was injured. Essentially, Social Services is asking us to reweigh the evidence, something this court cannot do.
The Department is the fact-finder in expungement proceedings and the weight and credibility of evidence falls solely within its province. Children & Youth Servs. Div., Dep't of Human Servs. v. Commonwealth, 520 A.2d 1246, 1249 (Pa. Cmwlth. 1987). Accordingly, this court cannot reweigh the evidence on appeal. Id. Here, the investigators relied primarily on Mother and Grandmother to determine who was present when J.M. was injured. The Department ultimately found the two women completely incredible, thereby undermining the reliability of the information gathered by the investigators as well. While the Department did not expressly find Robinson's testimony incredible, it implicitly rejected her evidence when it found that the record is "unclear as to who was home at the time the subject child was injured. . . . [T]he testimonies of the CYS caseworkers were based on the statements of [Grandmother], an individual with zero credibility." ALJ's Adjudication at 8. Accordingly, we discern no error in this regard.
Social Services also maintains that the Department erred when it failed to apply the presumption set forth in Section 6381(d) because its investigation was not based upon a "multiple caretaker scenario." Petitioner's brief at 22. According to Social Services, Mother admitted during the investigation that she was J.M.'s only caretaker at the time of his injury, thereby establishing that she was the only responsible person, and it notes that Mother was the only perpetrator named in the indicated report. At root, this argument is another challenge to the Department's fact-finding. The Department simply did not credit Social Services's evidence because it stemmed primarily from information gleaned from witnesses found to be incredible. In addition, both Mother and Grandmother, as well as Cray, testified that other adults were in the house during the time period in question. Furthermore, both Mother and Grandmother, while discredited, testified that Mother was not the only caretaker during the time in question; other adults in the house watched over the children too (which, common experience reveals to be a frequent practice when toddlers run about). Accordingly, this argument lacks merit as well.
The witnesses, including the investigators, described J.M. as a very active child. --------
Finally, Social Services contends that in failing to apply the presumption, the Department imposed an incorrect burden of proof. Specifically, Social Services argues that the presumption properly applies once substantial evidence is offered that the child sustained injuries of a type that would ordinarily not be sustained except by reason of the acts or omissions of a person responsible for the child's care. It contends that the presumption should have been applied here because there is no dispute that the injury at issue constitutes an injury that would not ordinarily occur but for the acts of a responsible person and the evidence established that the child's parent was present when the injury occurred. According to Social Services, rather than applying the presumption as required, the Department held it to a higher standard of proof, requiring it to demonstrate who actually caused the injuries. We disagree.
As already noted, the Department did not err in refusing to apply the presumption because there was a lack of substantial evidence to demonstrate who was responsible for J.M. when the injury occurred. Not only was it unclear who was in the house at the time of the injury, but it was not clear which adults took responsibility for his well-being. The presumption simply cannot be applied absent substantial evidence that the child was actually in the care of the named perpetrator during the period of time in which the injury was sustained. Second, absent the presumption, we agree that Social Services was required to offer substantial evidence to establish who actually caused the injury; without such evidence, the report could not stand. As this court stated in C.S. v. Department of Public Welfare, 972 A.2d 1254, 1260 (Pa. Cmwlth. 2009) (citation and internal quotation omitted), "an administrative adjudication of suspected child abuse is of the most serious nature" and it may adversely affect the perpetrator's reputation and employment. Therefore, a higher standard of proof is applied in expungement proceedings (than dependency proceedings) to prove the identity of the perpetrator because of the inherent and indefeasible rights which are at stake. Id.
For these reasons, we affirm.
BONNIE BRIGANCE LEADBETTER,
AND NOW, this 3rd day of December, 2012, the order of the Department of Public Welfare in the above-captioned matter is hereby AFFIRMED.
BONNIE BRIGANCE LEADBETTER,
23 Pa. C.S. § 6303. A "perpetrator" is defined in turn by the Law as "[a] person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child's parent." Id.