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decided: October 24, 1986.


Appeal from the Order of the Director of the Office of Hearings and Appeals, Department of Public Welfare, in case of Appeal of: L.R., III, File No. 21-84-31, dated December 10, 1984.


Malcolm J. Gross, for petitioner.

W. Thomas Anthony, Jr., for respondent, Louis Reitbauer.

Judges MacPhail and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Colins dissents. Judge Palladino did not participate in this case.

Author: Barbieri

[ 101 Pa. Commw. Page 492]

The Lehigh County Office of Children and Youth Services (OCYS) appeals here the final administrative action of the Department of Public Welfare's (DPW) Office of Hearings and Appeals adopting the recommendation of the hearing officer that the OCYS be directed to expunge any and all records of child abuse maintained pursuant to the Child Protective Services Law*fn1 implicating L.R.

The Child Protective Services Law (Law) establishes a procedure for maintenance of a central state-wide registry which contains record of all "founded"*fn2 and "indicated"*fn3 reports of child abuse. L.R., father of C.R.,

[ 101 Pa. Commw. Page 493]

    had been implicated in an "indicated report" of sexual abuse involving C.R. filed by the OCYS. L.R., as subject of the report, requested the Secretary of DPW, in accordance with Section 15(d) of the Law, 11 P.S. § 2215(d), to expunge the report on the grounds the report was inaccurate. See J.H. v. Department of Public Welfare, 73 Pa. Commonwealth Ct. 369, 457 A.2d 1346 (1983). When the Secretary refused to expunge the report, L.R. requested a fair hearing at which L.R., B.R., his ex-wife who reported the suspected child abuse to the OCYS, and the OCYS caseworker appeared and testified.

The hearing officer, in her adjudication issued subsequent to the hearing, recited the contentions of each party. L.R. argued that there was no support for the indicated report except for the caseworker's hearsay testimony regarding C.R.'s response during doll therapy, employed by the caseworker in interviews with C.R. to determine whether a report should be filed. The hearing officer agreed stating that, because there was no corroborating first hand testimony or medical evidence to support the caseworker's conclusions, and because she found L.R.'s statements denying the accusations credible, she would recommend that L.R.'s appeal be sustained and that the report be expunged. The Office of Hearings and Appeals accepted the hearing officer's recommendation and OCYS has appealed.

On appeal OCYS argues that the hearing officer's determination that the caseworker's conclusion is unsupported due to the lack of corroborating eyewitness accounts or medical reports is erroneous and contrary to the intent of the Act. Pointing to Section 2203 which

[ 101 Pa. Commw. Page 494]

    defines "indicated report," OCYS argues that the Law intends that a caseworker's investigation may stand on its own as substantial evidence of sexual abuse without corroborating evidence in the form of eyewitness accounts or medical reports.

OCYS is correct that, for the Child Protective Service, their investigation may, by itself, constitute substantial evidence of the alleged abuse for purposes of filing the indicated report initially. Under subsection (d) of Section 15 of the Law, 11 P.S. § 2215(d), however, the Child Protective Service, on appeal from a refusal to expunge the report, has the burden of establishing that the report is accurate. Ms. C and Dauphin County Social Services for Children and Youth v. Commonwealth of Pennsylvania, Department of Public Welfare, 100 Pa. Commonwealth Ct. 603, 515 A.2d 339 (1986). The Office of Hearings and Appeals, as the fact finding agency, assesses the weight and credibility of the record evidence and may reject the testimony of one party in favor of the testimony of the opposing party.

Our function then when the burdened party does not prevail before an administrative agency is to review the agency's decision to determine whether constitutional rights were violated, an error of law committed, or evidence capriciously disregarded. Milbourne v. Pennsylvania Crime Victim's Compensation Board, 82 Pa. Commonwealth Ct. 259, 475 A.2d 899 (1984).

The caseworker's testimony relating what C.R. said to her during her interviews with C.R., to which L.R. objected, was hearsay rendering that testimony, under the general rule,*fn4 incompetent to support any finding of

[ 101 Pa. Commw. Page 495]

    fact which the hearing officer might make. That fact brings to the foreground the most basic issue implicit in this appeal: since sexual abuse is not likely to have eyewitnesses, must the Child Protective Service, in the absence of an admission or medical testimony confirming the suspicion, insist that the alleged victim appear and testify at the expungement hearing, no matter his or her age, or risk losing the appeal upon assessment of the respective competency of the opposing parties' evidence? Of course in certain circumstances there is the possibility of in camera questioning.*fn5 In this case, however, the OCYS was without a choice in offering hearsay testimony since a three-year-old child is not really able to verbalize complaints about possible sexual abuse, let alone respond to direct and cross-examination.

[ 101 Pa. Commw. Page 496]

Not all of the caseworker's testimony was hearsay, however. The caseworker's testimony regarding C.R.'s physical response to questions asked her by the caseworker was not hearsay since it was simply the child's actions and not her words that the caseworker was relating. Thus, the caseworker's testimony that when she asked C.R. to show her using the dolls what her father did that she did not like, C.R. took the hand of the father doll and, with it, touched the child doll's vaginal area, then flipped the child doll over and, using the father doll's hand, touched the child doll's buttocks, was not hearsay. Nor was the mother's testimony that during the time of the alleged on-going sexual abuse, C.R. was having nightmares, and that C.R.'s vaginal area was red and inflamed, hearsay testimony.

We acknowledge the obvious hostility between the parents of C.R. and the possibility for abuse of the system established by the Child Protective Service Law that that hostility engenders. We acknowledge also the difficulty presented where a three-year-old child is concerned in determining the exact context in which the allegedly offensive contact between C.R. and her father occurred. L.R. admits on the record that he touched C.R.'s vaginal area and buttocks but only while bathing her. Thus, although DPW need not credit the above testimony of the caseworker and C.R.'s mother, it must at least consider it as part of the competent evidence of record when issuing an adjudication. Therefore, we will remand the matter to the Office of Hearings and Appeals to allow it to reconsider its prior decision.

[ 101 Pa. Commw. Page 497]


And Now, this 24th day of October, 1986, the order of the Department of Public Welfare, Office of Hearings and Appeals, in the above-captioned matter, issued December 10, 1984, is hereby vacated and this matter is remanded to that Office for proceedings consistent with this opinion. Jurisdiction relinquished.

Judge Colins dissents.

Judge Palladino did not participate in this case.


Vacated and remanded.

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