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L.W.B. v. M. JEAN SOSNOWSKI ET AL. (06/13/88)

decided: June 13, 1988.

L.W.B., PETITIONER
v.
M. JEAN SOSNOWSKI ET AL., RESPONDENT



Appeal from the Order of the Office of Hearings and Appeals of the Department of Welfare, in case of Appeal of: L.W.B., File No. 21-84-60.

COUNSEL

Lloyd William Bell, petitioner, for himself.

Ruth O'Brien, Assistant Counsel, for respondent, Department of Public Welfare.

James E. McErlane, with him, Ellen M. Resinski, Lamb, Windle & McErlane, P.C., for appellee, Lori Clifton Gibbons.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Craig. Judge Colins concur in the result only.

Author: Craig

[ 117 Pa. Commw. Page 122]

This child abuse registry expungement case involves a re-examination of the law relating to the admissibility of hearsay evidence before the administrative agency in such a proceeding.

L.W.B., without representation by counsel, appeals a decision of the Office of Hearings and Appeals of the Department of Public Welfare (DPW) which adopted a hearing officer's recommendation not to expunge an indicated report of child abuse maintained under the Child Protective Services Law.*fn1 The Law requires maintenance of a central statewide registry containing records of all "founded"*fn2 and "indicated"*fn3 reports of child abuse.

The Chester County Office of Child and Youth Services (CYS) filed an indicated report of child abuse against L.W.B. after it had investigated allegations that he had abused his three-year old daughter, B.L.B. L.W.B. petitioned the Secretary of DPW to expunge the report, in accordance with section 15(d) of the Law, 11 P.S. § 2215(d), claiming that it was inaccurate. After

[ 117 Pa. Commw. Page 123]

    the department refused expungement, L.W.B. sought a hearing, at which he and the CYS investigator testified. The hearing officer concluded that substantial evidence supported the allegations against L.W.B., and recommended that the indicated report of child abuse remain in the registry.

Our scope of review requires that we determine whether DPW's adjudication comports with the applicable law, whether its findings are supported by substantial evidence, and whether the appellant's constitutional rights were violated. Cruz v. Department of Public Welfare, 80 Pa. Commonwealth Ct. 360, 472 A.2d 725, 727 (1984).

On appeal, L.W.B. presents both constitutional and evidentiary issues.

1. Constitutional Questions

The first constitutional claim is that L.W.B. was subjected to double jeopardy in having to pursue two separate appeals (the expungement matter before this court and an earlier appeal of the Family Services Plan proposed by CYS stemming from a single accusation of child abuse.) The concept of double jeopardy is peculiar to criminal law; it has no application to civil proceedings before an administrative agency. Jordan v. Gore, 288 Pa. Superior Ct. 86, 431 A.2d 300 (1981).

L.W.B. also contends that section 17 of the Law, 11 P.S. § 2217, is so vague and indefinite that it violates due process and the Sixth Amendment. However, that section simply delineates the duties of child protective services; it does not deal with accusations against individuals.

L.W.B. argues that the statute does not provide safeguards against false accusations, that it is susceptible to selective enforcement, and that there is no statutory requirement that court action be initiated so that an accused

[ 117 Pa. Commw. Page 124]

    abuser may "defend his due process rights under the presumption of innocence." Again, L.W.B. is transferring concepts of criminal law to administrative procedure. The Law seeks to protect children from abuse,*fn4 not to punish alleged abusers. Section 2215(d) provides a process for implicated persons to request that a report be amended, sealed or expunged, and provides for an appeal of the Secretary's decision.

Finally, L.W.B. claims that various other sections of the Law violate due process rights. L.W.B. is not specific as to which rights were at stake or how they were violated, stating only that the law should not allow a child to be removed from a loving parent without a showing of need for protection. In this argument, L.W.B. appears to be challenging matters relating to the custody suit before the court of common pleas. However, the appeal before this court relates strictly to the department's refusal to expunge the indicated report of child abuse.

2. Evidentiary Issues

The central evidence question raised by L.W.B. is the claim that the hearing officer improperly relied on inadmissible hearsay evidence presented by the CYS investigator, and that, without such hearsay, there was no substantial evidence to support the officer's findings.

The allegations of abuse had arisen during a previously scheduled custody hearing before Judge Lawrence E. Wood, Chester County Court of Common Pleas. Judge Wood notified CYS, which began an investigation.

According to the record of testimony by Lori Clifton Gibbons, a CYS caseworker, before the DPW hearing officer in the matter here under review, Gibbons separately

[ 117 Pa. Commw. Page 125]

    interviewed L.W.B., his estranged wife, T.L.B., and their three children, M.K.B., C.B.B. and B.L.B. During an initial interview, conducted in a playroom environment, B.L.B. told Gibbons that "Daddy showed me how to feel good and rubbed me all over," demonstrating by rubbing a doll's stomach, arms, back chest ...


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