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C.S. v. Dep't of Public Welfare

May 1, 2009

C.S., PETITIONER
v.
DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



The opinion of the court was delivered by: Judge Cohn Jubelirer

Argued: February 25, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

C.S. petitions for review of an order of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (BHA), which adopted an Administrative Law Judge's (ALJ) recommendation and dismissed C.S.'s appeal of his request for expungement of the indicated report of child abuse made against him with the Childline Registry. BHA relied on the factual findings of the Philadelphia County Court of Common Pleas -- Family Court Division (family court) in a dependency hearing in upholding the indicated report that C.S. physically abused his son, C.S., Jr. (minor). BHA did not conduct an administrative hearing on the merits in this matter. On appeal, C.S. argues that BHA erred in dismissing his appeal without holding an administrative hearing on the merits because DPW had to prove with substantial evidence that he was the perpetrator of abuse of the minor. C.S. contends that it was an error to rely on the findings of the family court, which found him to be the perpetrator of abuse by the lesser standard of prima facie evidence.

The relevant facts are as follows. C.S. is the father of the minor, born September 2, 2006. On November 17, 2006, the Philadelphia Department of Human Services (DHS) filed a Child Protective Service Investigation Report (Report) showing that the minor was physically abused on November 14, 2006, while in the care of C.S. and the minor's mother. C.S. and the minor's mother were both named as the perpetrators of the abuse. The report reflected that the case status was "indicated" based upon medical evidence. DHS provided the following explanation for the indicated status:

Social worker learned from the hospital that the child was admitted with acute subdural hematoma, acute ret[i]nal hemorrhaging, and healing rib fractures: impairment, severe pain, serious physical injury. Doctor's examinations at the hospital concluded that the injuries were consistent with a high suspicion of child physical abuse. The alleged perpetrator father denied causing the injuries, but admitted that the child was in his and the mother's care when the first symptoms of the child's injuries appeared. The alleged perpetrator mother denied causing the injuries, but admitted that the child was in her and the father's care when the first symptoms of the child's injuries appeared. Neither gave any reasonable explanation for the injuries.

(Child Protective Service Investigation Report at 2.) On January 22, 2007, C.S. appealed to BHA and requested a hearing to determine whether the indicated report of abuse was accurate.

In the interim, the family court conducted a judicial dependency hearing on March 12, 2007. On April 17, 2007, the family court adjudicated the minor dependent, committed the minor to DHS, and "concluded that DHS presented clear and convincing evidence that [the minor] was abused and presented prima facie evidence that the parents were the perpetrators of the abuse." In re: C.S., a Minor, Appeal of C.S., Sr., Father, (C.P. Pa., Family Ct. Div., No. D33480611, filed July 13, 2007) (Family Ct. Op.), slip op. at 9. The family court stated:

In this case, there is clear and convincing evidence that [the minor] was abused....

....

Here, [the minor] clearly meets the definition of an abused child. Dr. DiGiorgio-McColgan gave extensive testimony about the nature and extent of [the minor]'s injuries. All of the injuries, subdural hemorrhage, retinal hemorrhage, and a fracture of the posterior ribs, were serious injuries that could have possible long-term visual and development defects on [the minor]. She testified that these are the types of injuries that occur from the shaking of a child. They are the hallmark features for a type of child abuse commonly known as Shaken Baby Syndrome. Dr. DiGiorgio-McColgan also testified that the injuries were not caused by [the minor]'s premature birth and that it was incredibly unlikely that the injuries were caused by an accidental trauma. Therefore, the Court found that there is clear and convincing evidence that [the minor] was abused.

There is also prima facie evidence in this case that the parents were the abusers of [the minor]....

Here, [the minor] has suffered serious physical injury which could not have been sustained without [the minor] being shaken by someone. While the Court could not determine with absolute certainty that the parents were the ones who injured [the minor], Dr. DiGiorgio-McColgan did testify that [the minor] probably would have been symptomatic when the shaking occurred, which is when [the minor] was with his parents and that, while it is possible, it is less likely that [the minor] would have been shaken earlier in the day by someone else and not had any symptoms until 3:00 a.m. when he was with his parents. Furthermore, there was no evidence presented to show that [the minor]'s other caretakers that day were the possible abusers of [the minor]. Mr. Bucher testified that none of the caretakers whom he interviewed during his investigation, Edna Parker [who is the minor's day care provider], the maternal grandmother, and the paternal grandmother and paternal great-grandmother, aroused his suspicion as the possible perpetrators of abuse.

The parents also did not raise any concerns about Edna Parker or any of the other relatives and the parents had a good relationship with Edna Parker. Therefore, the Court found that there is prima facie evidence that the parents had abused [the minor]. (Family Ct. Op., slip op. at 7-9 (emphasis added).) C.S. appealed the family court's order adjudicating the minor dependent to the Superior Court.

The Superior Court affirmed the family court's dependency adjudication and stated that the only evidence needed to support the finding that C.S. abused the minor was "that [C.S.] may have caused the abuse" and it was because the allegations against C.S. were "[l]eft uncontradicted and unexplained" that C.S. was found to be responsible for the abuse. In Re: C.S., Jr., a Minor, Appeal of C.S., Sr., Father, (Pa. Super. No. 1353 EDA 2007, filed December 31, 2007) (Superior Ct. Op.), slip op. at 2, 4 (emphasis added). The Superior Court further stated that "[i]t is true that there is a possibility -- although not a probability -- that the abuse took place several hours before the symptoms manifested themselves; however, there is unrebutted prima facie evidence that the parents as primary caretakers are responsible." (Superior Ct. Op., slip op. at 3).

On January 8, 2008, DHS filed a motion to dismiss C.S.'s appeal of the indicated report. Generally, the Child Protective Services Law (CPSL), 23 Pa. C.S. §§ 6301 -- 6386, provides that when an indicated report of abuse is filed with the ChildLine Registry, the alleged perpetrator has a statutory right to a hearing on the merits.*fn1 However, DHS argued that C.S.'s appeal of the indicated report should be dismissed because it would be a collateral attack on the family court adjudication, which was affirmed by the Superior Court. On January 10, 2008, a hearing on the motion to dismiss occurred in lieu of a hearing on the merits. Subsequently, the ALJ for DPW issued an adjudication and recommendation to dismiss C.S.'s appeal. The ALJ relied on this Court's decision in J.G. v. Department of Public Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002), and stated:

In J.G., the family court found that the child was abused, but it did not decide who committed the abuse. In response, the Commonwealth Court ordered that the appellant have a hearing before the BHA on the sole issue of whether the appellant committed the abuse.

If the J.G. court believed that a family court decision on identity could not preclude a BHA appeal because of the prima facie part of the burden of proof, it would have said so. Instead, it indicated that the reason for the remand was because the family court made no finding on the identity of the perpetrator. In other words, the fact that the J.G. court spent time analyzing whether the family court identified the perpetrator means that if the family court did identify the J.G. appellant as the perpetrator, then J.G.'s appeal would have been denied. In the instant case, the family court identified [C.S.] as the perpetrator.

(ALJ Adjudication at 6, February 5, 2008 (citations omitted).) On February 11, 2008, BHA adopted the recommendation of the ALJ in its entirety, and dismissed C.S.'s appeal. C.S. now petitions this Court for review.*fn2

On appeal,*fn3 C.S. argues that he should have been afforded a hearing on the merits of the expungement before BHA. C.S. contends that, in dependency proceedings, the county agency need only prove that C.S. was the perpetrator of abuse by prima facie evidence, while, in expungement proceedings, which are fundamentally different from dependency proceedings, DPW must prove that C.S. was the perpetrator of abuse by substantial evidence. C.S. argues:

A dependency court proceeding is different from a BHA appeal of [an] indicated [report on] the ChildLine Registry. In a dependency case the state has the best interest of the child in mind when determining if abuse occurred so that it might step in and protect the child immediately and protect that child from any party who may have hurt or may continue to hurt [the] child. A p[r]ima facie level of evidence for the best interests of the child... is acceptable since society has an overwhelming interest in keeping children immediately safe from someone who may hurt them. The legislature contemplated this when setting the standard of proof as prima facie.

In contrast, the legislature requires a higher level standard of proof of substantial evidence for a person to be placed on the ChildLine Registry. The two are mutually exclusive.

(C.S.'s Br. at 10.) Because of the differences in the proceedings and the burdens of proof, C.S. argues that BHA erred in relying on the family court's factual finding that C.S. was the perpetrator of abuse.

In opposition, DPW argues that a perpetrator, who is identified in a dependency proceeding, like C.S. was in this case, cannot collaterally attack a judicial proceeding in which he is so identified. DPW contends that this Court, in K.R. v. Department of Public Welfare, 950 A.2d 1069 (Pa. Cmwlth. 2008), recently rejected a similar argument in which a parent argued that the finding that she was a perpetrator of abuse in a dependency adjudication should not be used in the expungement action because the prima facie evidence standard was lower than the substantial evidence standard. As such, DPW asks this Court to likewise reject C.S.'s argument made on appeal.

It is important to begin our discussion by examining the difference between dependency proceedings and expungement proceedings. In dependency proceedings, which are held pursuant to the Juvenile Act, 42 Pa. C.S. §§ 6301 -- 6375, the county agency first has the burden of establishing through clear and convincing evidence that a minor was abused, but then need only prove the identity of the perpetrator by prima facie evidence. K.R., 950 A.2d at 1075. The Superior Court has defined the prima facie evidence standard in dependency cases as a mere presumption "that the abuse normally would not have occurred except by reason of acts or omissions of the parents." In re R.P., 957 A.2d 1205, 1218 (Pa. Super. 2008) (quoting In the Interest of J.R.W., 631 A.2d 1019, 1024 (Pa. Super. 1993)).

By contrast, in expungement proceedings, the county agency or DPW has the burden of proving by substantial evidence that the alleged perpetrator's conduct falls within one of the definitions of child abuse set forth in Section 6303(b)(1) of the CPSL. E.D. v. Department of Public Welfare, 719 A.2d 384, 388 (Pa. Cmwlth. 1998). Section 6303(a) of the CPSL defines an "indicated report" as a child abuse report based on a determination by the county agency or the Department that, "substantial evidence of the alleged abuse exists." 23 Pa. C.S. § 6303(a). For the purpose of an expungement proceeding, substantial evidence is "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." D.T. v. Department of Public Welfare, 873 A.2d 850, 853 (Pa. Cmwlth. 2005). Thus, the standard for determining the identity of a perpetrator in dependency matters is a significantly lower burden of proof than in expungement proceedings. The different burdens of proof set forth for the proceedings highlight the fundamentally different purposes that dependency proceedings and expungement proceedings serve.

The Juvenile Act, which governs dependency proceedings, is focused on taking swift action in removing children from a neglectful or abusive home. The Juvenile Act is a procedural act establishing jurisdiction in the courts to legally intervene in cases where children are neglected and the only available resource for custody, change of custody, or detention of a child who is suspected of being abused under the CPSL. The Juvenile Court, through the Juvenile Act, is empowered to remove children from the family environment when necessary for their welfare or in the interest of public safety. Interest of J.R.W., 631 A.2d 1019, 1022 (Pa. Super. 1993). Thus, the prima facie evidence standard for ...


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