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J.H. v. DEPARTMENT PUBLIC WELFARE (04/11/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 11, 1983.

J.H., PETITIONER
v.
DEPARTMENT OF PUBLIC WELFARE, RESPONDENT

Appeal from the Order of the Office of Hearings and Appeals, Department of Public Welfare, in the case of Appeal of: J.H., File No. 21-80-1 J.S.

COUNSEL

Leon Ehrlich, for petitioner.

Mary Frances Grabowski, Assistant Counsel, for respondent.

Alfred W. Crump, Jr., for Berks County Children and Youth Services.

Robert J. Manara, Guardian Ad Litem on behalf of J.S.

President Judge Crumlish, Jr. and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 73 Pa. Commw. Page 370]

J.H. appeals from a Department of Public Welfare (DPW) order which adopted the recommendation of the Hearing Officer denying his request to expunge his child abuse record. We affirm.

On January 31, 1980, J.H. attempted to administer corporal punishment to his stepson, J.S., by striking him across the buttocks with an oak stick. The child, however, spun around and ducked and the blow struck him on the head resulting in a laceration requiring six sutures.

A report of alleged abuse about the incident was filed with the Berks County Child Protective Service. After an investigation, the report was assigned the status of "indicated"*fn1 by the Service and filed in the statewide Central Registry. J.H. requested the Department to expunge the report. When this was denied, J.H. requested a hearing. The Hearing Officer

[ 73 Pa. Commw. Page 371]

    recommended that J.H.'s record of child abuse not be expunged.

Section 15(d) of the Child Protective Services (CPS) Law*fn2 specifies the grounds upon which a child abuse report must be expunged: first, the report is inaccurate and/or second, the report is being maintained inconsistently with the provisions of the Law.

The CPS law*fn3 defines an "abused child" as a child under 18 years of age who exhibits evidence of serious physical or mental injury not explained by the available medical history as being accidental, sexual abuse, or serious physical neglect, if the injury, abuse or neglect has been caused by the acts or omissions of the child's parents or by a person responsible for the child's welfare. . . . (Emphasis added.)

J.H. contends that the report is not being maintained in accord with the Law for two reasons: (1) the child did not suffer a serious physical injury, and (2) that the injury was accidental in nature.

Serious physical injury is defined by DPW regulation as that which:

     significantly jeopardizes the child's safety, causes the child severe pain, significantly impairs the child's physical functioning, either temporarily or permanently, or is accompanied by physical evidence of a continuous pattern of separate unexplained injuries to the child.

DPW Social Services Manual ยง 2-23-43.

J.H. admits striking the child on the head with an oak stick. It is obvious that such a blow, causing an injury requiring six sutures, will cause severe pain, especially when administered to an eleven year old child.

[ 73 Pa. Commw. Page 372]

All parties agree that accidental injuries are beyond the scope of the CPS Law. J.H. contends that the injury to his stepson was accidental because it was unintentional. The record supports the Hearing Officer's conclusion that J.H. intended to inflict pain. J.H. was aware of the natural consequences of his action, i.e., that it would generate the child's reaction even though not intentional. Accordingly, we conclude that the Hearing Officer did not err as a matter of law in not characterizing the injury as accidental.

We affirm.

Order

The order of the Director of the Office of Hearings and Appeals for the Department of Public Welfare, dated August 25, 1981, is hereby affirmed.

Disposition

Affirmed.


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