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LEHIGH COUNTY OFFICE CHILDREN AND YOUTH SERVICES v. COMMONWEALTH PENNSYLVANIA (11/10/88)

decided: November 10, 1988.

LEHIGH COUNTY OFFICE OF CHILDREN AND YOUTH SERVICES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



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.

COUNSEL

Catharine M. Roseberry, Assistant County Solicitor, for petitioner.

Myra Werrin Sacks, Assistant Counsel, for respondent.

W. Thomas Anthony, Jr., for Intervenor, L.R., III.

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

Author: Barbieri

[ 121 Pa. Commw. Page 76]

Lehigh County Office of Children and Youth Services (OCYS) appeals an order of the Pennsylvania Department of Public Welfare's (DPW) Office of Hearings and Appeals, adopting the recommendation of its hearing officer that an indicated report of child abuse naming L.R., III as the perpetrator be expunged pursuant to Section 15(d) of the Child Protective Services Law (Law).*fn1

On January 3, 1984, OCYS filed an indicated report*fn2 of sexual abuse against L.R., III after investigating an allegation that he had sexually abused his daughter, C.R. At the time of the alleged abuse L.R., III and C.R.'s mother, B.R. were separated. C.R. resided with her mother, and along with her older sister M.R., had three overnight visitations with L.R., III between April and June of 1983. At that time C.R. was 2 1/2 years old. The alleged sexual abuse occurred during these visits but was not reported until November of 1983. There was no medical evidence of abuse and the indicated report was based solely on the OCYS caseworker's investigation.

In accordance with Section 15(d) of the Law, L.R., III petitioned the Secretary of DPW to expunge the indicated report on the grounds that it was inaccurate.

[ 121 Pa. Commw. Page 77]

This petition was denied and L.R., III then requested a hearing at which only the caseworker, B.R., and L.R., III appeared and testified.

The caseworker testified that during an interview with C.R. in November of 1983, the child stated that L.R., III touched her and that this touching hurt. C.R. wrinkled her nose when she related this to the caseworker. When asked to demonstrate the manner in which her father touched her on anatomically correct dolls, C.R. placed the father's doll's hand on the child doll's vaginal area and then flipped the child doll over and placed the father doll's hand on the child doll's buttocks. The caseworker testified further that C.R. told her the touching occurred in the bathroom but not in the shower.*fn3

On cross-examination, the caseworker admitted that in close cases such as this, she would file an indicated report if the evidence was 51-49 against the alleged perpetrator. She further testified that at a conference in February of 1984, apparently concerning visitation, she informed Judge Davison of the Lehigh County Court of Common Pleas that she could not be ...


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