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LUZERNE COUNTY CHILDREN AND YOUTH SERVICES v. COMMONWEALTH PENNSYLVANIA (11/18/88)

decided: November 18, 1988.

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



Appeal from the Order of the Department of Public Welfare in the case of Appeal Of: C.H., File No. 21-87-013; CL # 4C-04491, Re: T.H.

COUNSEL

Anthony J. Lumbis, for petitioner.

Ruth O'Brien, Assistant Counsel, for respondent.

Charles D. McCormick, O'Connor, McCormick & MacDonald, for intervenor, C.H.

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

Author: Palladino

[ 121 Pa. Commw. Page 199]

Luzerne County Children and Youth Services (CYS) appeals an order of the Office of Hearings and Appeals of the Department of Public Welfare (DPW) adopting the recommendation of a hearing officer to expunge an indicated report of child abuse. We affirm.

[ 121 Pa. Commw. Page 200]

On April 30, 1986, an oral report of suspected child abuse was filed with CYS, naming C.H. as the perpetrator of serious mental injury against her stepson, T.H., who was approximately eight years old at the time. After conducting an investigation, CYS determined that the report was "indicated" under section 3 of the Child Protective Services Law (Law), Act of November 26, 1975, P.L. 438, as amended, 11 P.S. § 2203.*fn1 C.H. requested to have the report expunged under section 15(d) of the Law, 11 P.S. § 2215(d). This request was initially denied by DPW by letter dated January 7, 1987. C.H. then requested a hearing before DPW's Office of Hearings and Appeals.

The hearing officer determined that there was insufficient evidence that C.H. had engaged in any acts or omissions which caused the alleged serious mental injury. Accordingly, the hearing officer recommended that the report be expunged. DPW adopted that recommendation and directed expungement by order dated November 16, 1987.

On appeal to this court, CYS contends that the hearing officer's determination was not supported by substantial evidence, arguing that, under the Law, only the testimony of a physician or licensed psychologist is considered competent evidence, regardless of which party bears the burden of proof. CYS asserts that because only its evidence met this standard, such evidence was binding upon the hearing officer. CYS also argues that

[ 121 Pa. Commw. Page 201]

    the hearing officer abused his discretion by permitting, over CYS' objection, certain testimony by a clinical social worker who testified on behalf of C. H. Finally, CYS asserts that the hearing officer erred in refusing to dismiss the expungement action on the ground that the Court of Common Pleas of Luzerne ...


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