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July 2, 1997


Appealed From No. 21-95-100. State Agency, Department of Public Welfare.

Before: Honorable James Gardner Colins, President Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Senior Judge Lord.

The opinion of the court was delivered by: Lord


FILED: July 2, 1997

A.P. files a petition for review of an order of the Pennsylvania Department of Public Welfare, Office of Hearings and Appeals (OHA), which adopted a hearing officer's recommendation to deny A.P.'s request to expunge an indicated report of child abuse naming him as perpetrator. See the Child Protective Services Law (CPSL), Act of December 19, 1990, P.L. 1240, as amended, 23 Pa. C.S. §§ 6301-6385.

The following facts were found by the hearing officer and adopted by OHA. J.L. is a female child born in 1986. In 1987, her mother, T.P., married A.P., who is not J.L.'s biological father, and lived with him, J.L. and two other children continuously during the relevant time period. While being bathed by her mother on or about March 1, 1991, J.L., then four years old, would not let T.P. wash between her legs, telling her mother that J.L.'s cousin, A., who was four years older, "touched her down there." T.P. took J.L. to Washington County Children and Youth Services (CYS) on March 21, 1991 and J.L. was subsequently transported to a hospital emergency room, where she was examined by Dr. Jan Hecker.

Dr. Hecker's emergency room record indicated that, when asked if anyone hurt her, J.L. stated "yes, '[A.] put a shooter in my privates.'" That record stated that, when asked if anyone else hurt her, J.L. "paused, shook her head no and then said 'yes, daddy put his fingers in my privates.'" Dr. Hecker reported that J.L. was unable to state specifically when this happened, but that J.L. related it occurred at home when her mother was at work. Dr. Hecker further wrote that, when asked if her father had done this prior to what A. had done, J.L. said "yes," and that sexual abuse by the father occurred on multiple occasions. According to the report, when asked to demonstrate, J.L. readily spread her legs and pointed to her vagina, and when asked if the father put his fingers anywhere else, the child "pointed to the rectum."

Dr. Hecker's report continued that his medical examination of J.L. revealed "the introitus is gaping and the hymen is perforated and gaping." The report stated that the "history and physical exam is consistent with penetration of the vagina with an object of some type." Dr. Hecker wrote that J.L. willingly volunteered that she was afraid her mother was mad at her, and that he was concerned that T.P. had attempted to get J.L. "to change her story."

In July 1991, J.L. was evaluated by a psychologist, Dr. Anthony P. Mannarino. His report stated that J.L was in foster care, placed there because her mother did not believe her and could not protect her. Dr. Mannarino's report indicated that J.L. was accompanied by her foster father and a CYS caseworker. According to the report, J.L. related that she was in a foster home because her stepfather had touched the private parts of her body. She suggested that her stepfather touched her many times at the family residence, typically while the mother was working. The report further indicated J.L. "specifically stated that the stepfather touched her vaginal area and digitally penetrated her...[and] claimed that she had made a 'mistake' when she told the Judge that her stepfather had not touched her when in fact he really had." When asked about other possible perpetrators, J.L. stated that A. "'stuck her fingers in my privates.'" Dr. Mannarino wrote that the information provided was consistent with previous interviews and there was no indication J.L. had been coached or influenced. He noted serious concerns that J.L. might later recant the allegations because of lack of emotional support from her mother.

By court order J.L. was returned to her mother in July 1991. Vickie Amos, a CYS caseworker, wrote a report that J.L. demonstrated the sexual abuse verbally and with anatomically correct dolls. Amos filed a child abuse report. It is stipulated that J.L. has recanted the allegations that A.P. sexually abused her.

An indicated report of child abuse of J.L. by A.P. was filed on May 8, 1995. *fn1 A.P. requested his name be expunged from the Statewide register of child abuse, which consists of indicated reports. *fn2 That request was denied and A.P. then appealed to the hearing officer.

At the hearing, CYS presented the reports of Drs. Hecker and Mannarino and rested its case. A.P. and T.P. testified. A.P. filed a "motion to dismiss," asserting that his appeal should be granted because CYS presented no witnesses and therefore was unable to proceed with its case. The hearing officer denied the motion, determining that the entire record including the medical reports, which counsel for A.P. agreed to be presented as evidence without hearsay objection, constituted sufficient evidence for a hearing. *fn3 The hearing officer next concluded that A.P.'s request for expungement should be denied, relying on the reports of Drs. Hecker and Mannarino, crediting the statements attributed to J.L., and affording no weight to T.P.'s testimony. *fn4 The hearing officer stated in part:

There is remarkable consistency between the hearsay statements attributed to the subject child, thus making it believe that the subject child was ...

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