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CHILDREN & YOUTH SERVICES DIVISION v. COMMONWEALTH PENNSYLVANIA (07/14/88)

decided: July 14, 1988.

CHILDREN & YOUTH SERVICES DIVISION, DEPARTMENT OF HUMAN SERVICES, COUNTY OF NORTHAMPTON, PENNSYLVANIA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE AND J. K., RESPONDENTS



Appeal from the Order of the Department of Public Welfare, Office of Hearings and Appeals, in the case of Appeal of: J. K., Re: A. K. File No. 21-84-055.

COUNSEL

Augustine C. Concilio, with him, Jack A. Panella, Assistant County Solicitor, for petitioner.

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

Judges Craig and MacPhail, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 117 Pa. Commw. Page 602]

Northampton County Children and Youth Services (CCYS) has appealed from an order of the Department

[ 117 Pa. Commw. Page 603]

    of Public Welfare (DPW) adopting a hearing examiner's recommendation to expunge the indicated report of sexual abuse by J.K. maintained under the Child Protective Services Law (Law), Act of November 26, 1975, P.L. 438, as amended, 11 P.S. §§ 2201-2224.*fn1

On Sunday, June 3, 1984, A.K., a child almost four years old, returned from a weekend visitation with her father, J.K. That evening, as A.K.'s mother, M.K., was bathing her, she observed redness and swelling in the child's vaginal area. Upon inquiry as to the source of the redness, the mother testified that the child stated: "Daddy stuck a stick in my heiney." On Wednesday, June 6, M.K. took A.K. to a physician to be examined. The doctor noted red striations of approximately one inch in depth in a clockwise position around the inside of the child's vagina. He stated that this could have resulted from the introduction of any number of foreign objects, including a finger or other instrument. Some seven and one-half months later, A.K. was examined by a psychologist who, following a play therapy session, opined that the child had been sexually abused by her father.

The hearing examiner received testimony from A.K.'s parents, paternal grandparents and babysitter. The caseworker who investigated the indicated report testified as well, along with the physician and the psychologist who had examined A.K. On the basis of the evidence presented at the hearing, the hearing examiner

[ 117 Pa. Commw. Page 604]

    concluded that, while the medical evidence was strongly suggestive of abuse, the only evidence identifying J.K. as the perpetrator was in the form of hearsay testimony. Accordingly, the hearing officer recommended expungement of the indicated report.

On a hearing to establish the accuracy of an indicated report of child abuse, the local agency has the burden of establishing that the report is accurate. Children and Youth Services Division v. Department of Public Welfare, 103 Pa. Commonwealth Ct. 616, 520 A.2d 1246 (1987). Thus, if the agency fails to establish that the report is accurate, the request for expungement will be granted. Our scope of review in an appeal from an order of an administrative agency is limited to a determination of whether constitutional rights have been violated, an error of law committed, or whether necessary factual findings are supported by substantial competent evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704. G.S. v. Department of Public Welfare, 104 ...


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