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F. V. C. v. Dep't of Public Welfare

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


January 12, 2010

F. V. C., PETITIONER
v.
DEPARTMENT OF PUBLIC WELFARE, RESPONDENT

The opinion of the court was delivered by: Judge Simpson

Submitted: October 30, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Representing herself, F.V.C. (Mother), the mother of O.D., (Child), petitions for review of an order of the Department of Public Welfare (Department) granting the request of D.D., Sr., (Grandfather) to expunge his name from the ChildLine Registry.*fn1 On appeal, we consider whether Mother has standing to challenge the Department's order granting expungement and, if so, whether the record supports the Department's order. We conclude Mother has standing to appeal, but we affirm the Department's expungement order.

Child was born April 9, 2002 to Mother and D.D., Jr. (Father). Prior to their divorce, Mother and Father lived in various places including Grandfather's home in Washington County, Pennsylvania. Mother, Father, and Child lived with Grandfather on two separate occasions: the first time was when Child was one year old and the second time was for a period of one to two months beginning late July or early August, 2005. Child's grandmother and paternal aunt also lived at Grandfather's residence. Grandfather also spent time with Mother, Father, and Child when they did not live with him.

During a visit to Mother's parents' home in West Virginia in September, 2005, the three-year old Child allegedly reported to Mother that Grandfather bit, tickled and kissed her in the vaginal area. Mother contacted the West Virginia Department of Health and Human Resources. West Virginia authorities interviewed Child and, based on the interview, contacted the Washington County Department of Children and Youth Service (CYS). In turn, CYS issued an indicated report of child abuse naming Grandfather as perpetrator.

Grandfather requested the Department expunge the indicated report; however, the Department's Office of Children, Youth and Families denied his request. Accordingly, Grandfather appealed to the Department's Bureau of Hearings and Appeals (BHA). A hearing examiner conducted several days of hearings during which Child, Mother, Grandfather, Father, paternal grandmother, paternal aunt, Child's counselor, and officials from West Virginia and CYS testified.

The hearing examiner recommended sustaining Grandfather's appeal. In particular, the hearing examiner determined the record supported Grandfather's position Mother was hyper-vigilant as to Child's diapering. The hearing examiner also found Mother's testimony not credible where she testified that she saw Grandfather digitally penetrate Child while applying ointment when Child was two months old. After this alleged incident, Mother nevertheless left Child in Grandfather's care. The hearing examiner also found it incredible that Mother did not take Child to the doctor when, at the age of 2, she allegedly started wetting herself and complained of vaginal pain and itching.

The hearing examiner further found it notable that Child could not answer most of the questions asked of her. In addition, Child testified she was three years old when the abuse occurred but later stated Mother told her that she was three when Grandfather touched her. Child also testified Mother was mad at Grandfather. These statements led the hearing examiner to conclude Mother spoke to Child and tainted her statements to authorities. Thus, the hearing examiner found Child's testimony credible in part but of little weight.

The hearing examiner recommended Grandfather's appeal be sustained and his name expunged from the ChildLine Registry. The BHA adopted the hearing examiner's recommendation in its entirety. Mother now petitions for review.*fn2

Initially, the Department challenges Mother's standing to appeal the order expunging Grandfather's name from the ChildLine Registry. It contends Mother is not aggrieved by the Department's order inasmuch as her interest in the expungement order is not direct. Mother did not reply to the Department's assertion.

Our courts have not decided whether the parent of an allegedly abused child has standing to appeal the grant of an expungement request of an indicated report of abuse. Generally, any person aggrieved by an adjudication of a Commonwealth agency who has a direct interest in the adjudication may appeal to a court vested with jurisdiction of such appeals. 2 Pa. C.S. §702.*fn3 Thus, Mother's standing to appeal is dependent on her status as a person with a direct interest in the expungement order.

Initially, the purpose of the Child Protective Services Law (Law)*fn4 is to "encourage more complete reporting of suspected child abuse", "establish protective services for the purpose of investigating the reports swiftly and competently," and protect children from further abuse. 23 Pa. C.S. §6302(b). Thus, the Law places a duty on local child protective services agencies to investigate reports of suspected child abuse and issue an appropriate report based upon the investigation. 23 Pa. C.S. §§6334-37. When a report of child abuse is determined to be indicated,*fn5 as here, the Law requires the local agency to enter the information in the statewide central registry. 23 Pa. C.S. §6338.

The Law further sets forth the procedure by which any person named as perpetrator in an indicated report of child abuse may request the Department to expunge the report on the grounds it is inaccurate or maintained in a manner inconsistent with the Law. In relevant part and with emphasis added, Section 6341 of the Law provides:

(a) General rule.--At any time:

(1) The secretary may amend or expunge any record under this chapter upon good cause shown and notice to the appropriate subjects of the report.

(2) Any person named as perpetrator. in an indicated report of child abuse may, within 45 days of being notified of the status of the report, request the secretary to amend or expunge an indicated report on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this chapter.

(b) Review of grant of request.-- If the secretary grants the request under subsection (a)(2), the Statewide central register, appropriate county agency, appropriate law enforcement officials and all subjects[*fn6 ] shall be so advised of the decision. The county agency and any subject have 45 days in which to file an administrative appeal with the secretary. If an administrative appeal is received, the secretary or his designated agent shall schedule a hearing pursuant to Article IV of the act of June 13, 1967 (P.L. 31, No. 21), known as the Public Welfare Code, and attending departmental regulations. If no administrative appeal is receive within the designated time period, the Statewide central register shall comply with the decision of the secretary and advise the county agency to amend or expunge the information in their records so that the records are consistent at both the State and local levels.

(c) Review of refusal of request.--If the secretary refuses the request under subsection (a)(2) or does not act within a reasonable time, but in no event later than 30 days after receipt of the request, the perpetrator. shall have the right to a hearing before the secretary or a designated agent of the secretary to determine whether the summary of the indicated report in the Statewide central register should be amended or expunged on the grounds that it is inaccurate or that it is being maintained in a manner inconsistent with this chapter. The perpetrator. shall have 45 days from the date of the letter giving notice of the decision to deny the request in which to request a hearing. The appropriate county agency and appropriate law enforcement officials shall be given notice of the hearing. The burden of proof in the hearing shall be on the appropriate county agency. The department shall assist the county agency as necessary.

Section 6341(b) of the Law clearly permits any subject to file an administrative appeal of the secretary's grant of a request for expungement and request an evidentiary hearing. 23 Pa. C.S. §6341(b). A "subject" includes a parent or other person responsible for welfare of a child. 23 Pa. C.S. §6303.

In this case, the Department's Office of Children and Youth Services initially denied Grandfather's expungement request. Grandfather appealed pursuant to 23 Pa. C.S. §6341(c), and Mother participated in the administrative hearings.

The Department's regulations echo the statutory procedures outlined above for hearings and appeal proceedings for indicated reports of abuse. Similar to the Law, Section 3490.106a(b) authorizes "other subjects of the [child abuse report] and the county agency [to] appeal the Secretary's decision to grant the request to expunge the report.." 55 Pa. Code §3490.106a(b). The regulations also address further review. With emphasis added, Section 3490.106a(h) provides:

Parties to a hearing held under this section have 15-calendar days from the date of mailing of the final order of the Bureau of Hearings and Appeals to request the Secretary to reconsider or 30-calendar days to appeal the final order to the Commonwealth Court.

55 Pa. Code §3490.106a(h).

Neither the Law nor the Department's regulations define the term "party." However, Section 101 of the Administrative Agency Law, 2 Pa. C.S. §101, identifies a "party" as [a]ny person who appears in a proceeding before an agency who has a direct interest in the subject matter of such proceeding.

Applying the definition of "party" found in the Administrative Agency Law here, Mother appeared before the Department and clearly has a direct interest in the accurate reporting of child abuse perpetrated against her daughter. We therefore conclude Mother has standing to appeal.*fn7 Cf. Lower Allen Citizens Action Group, Inc. v. Dep't of Envtl. Resources, 546 A.2d 1330 (Pa. Cmwlth. 1988) (regulations authorizing any "person" to appear and participate in matters before Environmental Hearing Board conferred standing on citizens group to challenge application for mine drainage permit); see also 20 West's Pennsylvania Appellate Practice §501:14 (2008-09) ("if an appeal from an administrative agency is initially taken to the Commonwealth Court, under [42 Pa. C.S. §763], expanded concepts of standing (that is, "person" plus aggrievement to a "direct" interest) apply pursuant to Section 702 of the Administrative Agency Law, [2 Pa. C.S. §702])."

We next address Mother's claims the DPW failed to give proper weight to witness testimony supporting the finding Grandfather sexually abused Child. We disagree.

The county agency bears the burden of proof in an action for expunction of an indicated report of child abuse, and in order to discharge this burden, it must present substantial evidence that the report is accurate. L.S. v. Dep't of Pub. Welfare, 828 A.2d 480 (Pa. Cmwlth. 2003). Substantial evidence is such evidence that outweighs any conflicting evidence that alleged perpetrator's conduct constituted child abuse. Id. The BHA is the ultimate fact-finder in expunction appeals. K.J. v. Dep't of Pub. Welfare, 767 A.2d 609 (Pa. Cmwlth. 2001). Determinations as to credibility and evidentiary weight will not be disturbed on appeal absent an abuse of discretion. D.T. v. Dep't of Pub. Welfare, 873 A.2d 850 (Pa. Cmwlth. 2005).

Here, Mother challenges the BHA's credibility determinations and weight given the evidence, citing instances where the BHA allegedly mischaracterized the testimony to support its expungement order. On review, however, we conclude the record supports the BHA's findings and credibility determinations. D.T.*fn8

Accordingly, we affirm.

ROBERT SIMPSON, Judge

ORDER

AND NOW, this 12th day of January, 2010, the order of the Department of Public Welfare is AFFIRMED.


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