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D.J.P. v. COMMONWEALTH PENNSYLVANIA (08/15/88)

decided: August 15, 1988.

D.J.P., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeals from the Orders of the Department of Public Welfare, in the case Appeal Of: D.J.P., Docket No. 21-85-131, CL No. 02-13452, dated August 20, 1986 and November 18, 1986.

COUNSEL

William C. Kaczynski, with him, Vera S. Sanchas, for petitioner.

Ruth O'Brien, Assistant Counsel, with her, James A. Esler, for respondent.

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

Author: Craig

[ 118 Pa. Commw. Page 570]

D.J.P. 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

In this case, a child, while under the treatment of her psychotherapist, Ms. Hesky, told Ms. Hesky that D.J.P., a friend of the child and her parents, had kissed

[ 118 Pa. Commw. Page 571]

    her. When Ms. Hesky asked the child where D.J.P. kissed her, the child indicated that D.J.P. had kissed her all over her body, including between her legs. Ms. Hesky then asked the child to show her, on an anatomically correct doll, what D.J.P. did, and the child picked up the female doll and touched that doll all over, including between the legs. Based on this information, Ms. Hesky filed a report of suspected abuse with DPW.

DPW determined the report of Ms. Hesky to be an "indicated" report.*fn2 D.J.P. petitioned the Secretary of DPW to expunge the "indicated" report. The department refused expungement, and D.J.P. sought a hearing, at which Ms. Hesky testified on behalf of DPW. D.J.P., Dr. Rubin, a psychologist who subsequently treated the child, and the child's parents testified in support of the petition to expunge.*fn3 The hearing officer concluded that substantial evidence supported the allegations against D.J.P., and recommended that the indicated report of child abuse remain in the registry.

D.J.P. asserts that the hearing examiner erred in refusing to expunge the indicated report because the only evidence of the child abuse was the hearsay testimony of

[ 118 Pa. Commw. Page 572]

Ms. Hesky. Based on this court's recent decision in L.W.B. v. J. Jean Sosnowski, 117 Pa. Commonwealth Ct. 120, 543 A.2d 1241 (1988), we must remand this case for ...


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