The opinion of the court was delivered by: Mary Hannah Leavitt, Judge
Submitted: September 9, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1 HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge*fn2
R.A. (Father) petitions for review of an adjudication of the Department of Public Welfare, Bureau of Hearings and Appeals (Bureau) denying his request to expunge an indicated report of child abuse of E.A., his daughter (Daughter). The Bureau‟s factual finding that Father abused Daughter was based upon a single, videotaped interview of Daughter taken in another state, of which Father had no advance notice. Father contends that this hearsay statement did not constitute substantial evidence to support the finding that he abused Daughter and that he was denied due process.
Daughter was born January 25, 2005. She lives with her mother, J.A. (Mother), in Broome County, New York, but spends time with Father, who lives in
Wyoming County, Pennsylvania. Father and Mother never married and, by all accounts, have a contentious relationship, fraught with support and visitation disputes.
On June 22, 2009, Mother contacted Broome County, New York Children and Youth (New York Agency) to report that she believed that Daughter, age four, had been sexually abused by Father. Mother reported that several days earlier she found Daughter lying on her bed wearing a dress, but no underwear, and holding a doll‟s head next to her genital area. When asked what she was doing, Daughter responded "Daddy does this." Because Daughter‟s visits with Father took place in Pennsylvania, New York Agency referred the matter to Wyoming County Children and Youth (Wyoming County).
Jessica Dunfee, a caseworker with Wyoming County, requested the New York authorities to interview Daughter, and this was done on June 26, 2009, at the New York Children‟s Advocacy Center. Diane Hall, of the New York State Police, conducted the interview, and Jessica Osterhout, of New York Agency, watched it on a closed circuit television. Osterhout sent Dunfee a DVD of the televised interview and a copy of her notes of the interview. On August 25, 2009, Dunfee filed a report of "indicated" sexual abuse against Father.*fn3
Father appealed, requesting the report be expunged. The Bureau appointed a hearing officer to conduct a hearing on the expungement request. Three days of hearings took place between March 2010 and July 2010.
At the first day of the hearing, Father requested a continuance so that he could find counsel. His prior counsel, engaged to represent him in a criminal investigation of Mother‟s charges of child abuse, decided not to handle the expungement appeal. The hearing officer denied the request and then conducted an in camera hearing to determine whether Wyoming County would be allowed to present the DVD recording of Daughter‟s interview in New York in lieu of her testimony at the expungement hearing.
At the in camera proceeding, Hall, of the New York State Police, testified by telephone. Hall explained the New York Advocacy Center‟s procedures for interviewing children believed to be victims of child abuse. Hall opined that Daughter appeared competent and credible in the course of the one-hour interview. Hall reported that Daughter identified her genital region as both a "we[e]nie" and "butt" and stated that Father "licked her front butt and her back butt." Notes of Testimony, 3/15/10 at 27 (N.T. __/__/10 at__); Reproduced Record at 17 (R.R. ___). Hall further reported that Daughter said Father "put his butt inside her butt" and that it hurt when he did so. Hall stopped the interview when Daughter became emotional.
Mother testified in person. She stated that it would be emotionally harmful for Daughter to testify. She explained that Daughter had never testified at a hearing and had spoken only to Hall about the incidents. Further, when Mother brought Daughter to speak with the Wyoming County attorney, Daughter was not forthcoming. Based on this experience, Mother did not think Daughter would be responsive to questioning in a hearing. Finally, Mother testified that lately Daughter gets easily emotional. Although Daughter had been brought to meet with Wyoming County on an earlier occasion, she was not present for an in camera interview by the hearing officer. The adjudication does not explain why Mother did not produce Daughter for questioning by the hearing officer or why the hearing officer did not request a personal interview of the child.*fn4
At the conclusion of the in camera hearing, the hearing officer determined that the New York DVD recording would be admissible in lieu of Daughter‟s testimony. Father did not object to the admission of the New York DVD. The hearing then proceeded to the merits of the case with Wyoming County presenting evidence in support of its burden of proving that the expungement request should be denied.
Mother testified first, acknowledging her contentious relationship with Father. She stated that Father visits Daughter every other weekend and some holidays. He picks Daughter up, and drops her off, at her parents‟ house. Mother repeated her account of the incident that caused her to contact New York Agency.
On Father‟s cross-examination, Mother acknowledged that Daughter had called Mother‟s former boyfriend "daddy." Mother conceded that her memory of the incident where she found Daughter with the doll was weak. Accordingly, she told Dunfee the incident took place during the day but told Hall and Osterhout it took place on the Friday night before Daughter‟s next visit with Father. She also changed her story about whether Daughter was in a dress or nightgown when found with the doll and about what prompted her to enter Daughter‟s room on the day or evening in question. Mother conceded that notwithstanding Daughter‟s shocking disclosure, she did not try to stop Daughter‟s next scheduled visit with Father.
Dunfee of Wyoming County testified in person. She stated that her review of the DVD recording of the New York interview and Osterhout‟s notes summarizing that interview prompted her to file an indicated sexual abuse report against Father. The report stated that Father "put his butt in [Daughter‟s] butt," noting that "child called her vagina a butt and a penis a butt." Certified Record, Exhibit C-1, at 2 (C.R.___). The report stated that Father also committed vaginal penetration with his fingers and "performed cunnilingus on child while in her bed for the night." Id. Dunfee stated that because New York Agency conducted the interview, no one from Wyoming County interviewed either Daughter or Mother. Dunfee contacted Father on August 11, 2010, to arrange an interview, but he declined to be interviewed on advice of counsel.
Osterhout testified by telephone about Daughter‟s interview, which she had observed. Osterhout noted that Hall began by asking Daughter questions such as whether she knew the alphabet, colors and could count; Daughter responded affirmatively to these questions. Osterhout believed that Hall established that Daughter knew the difference between a lie and the truth. When Hall asked Daughter about Father, Osterhout reported that Daughter spontaneously stated that he put his "butt" in her "butt" and did not want to visit him anymore because he did bad things. N.T. 3/15/10 at 114; R.R. 39. At other points in the one-hour interview, Osterhout reported that Daughter stated that Father was "rubbing and rubbing," which hurt her and caused her to cry. N.T. 3/15/10 at 118; R.R. 40. Osterhout reported that Daughter stated that "daddy‟s pee came out" onto, or near, her vagina. Id. Then they got in the tub to clean up. Finally, Osterhout reported that Daughter stated that Father got into bed with her while she was sleeping and unzipped her pajamas and licked her front and back. Osterhout opined that Daughter was telling the truth because Daughter was clear and consistent in her statements.
The hearing next convened in April, at which time the New York DVD was viewed, for the first time, by the hearing officer. By that point, Father had retained counsel, who represented him in the remainder of the proceeding. Wyoming County did not prepare a written transcript of the interview. However, it offered Osterhout‟s notes recording Hall‟s interview of Daughter. C.R., Exhibit 3.
Wyoming County called its final witness, Andrew Gennken, who is a full-time deputy with the Susquehanna County Sheriff‟s Department and a part-time patrolman with the Montrose Borough Police. He testified that on two occasions he had been present for the transfer of Daughter to Father at the house of Mother‟s parents. He stated that on both occasions, Daughter was hysterical and did not go with Father willingly.
Father then testified in support of his expungement request. He elaborated on his contentious relationship with Mother. He stated that every time he picked up Daughter, a fight would take place that caused Daughter to cry. On numerous occasions, he called the police to intervene. He blamed Mother for the problem, noting that she would scream, call him names and refuse to hand over Daughter. The transfers became peaceable for a while after Mother was held in contempt of court. Father stated that Daughter always calmed down within blocks of the transfer point.
Father explained that because of his military service,*fn5
there were long periods of time when he did not see Daughter.
He stated that he works as a mechanic for the military and that G.A.,
his wife, works at the county courthouse. At one point, he stopped
paying support because Mother would not let him see Daughter. He
testified that Mother has been threatening him with a termination of
his visitation rights.
Father categorically denied all claims of sexual abuse. He testified that during visitations, his wife bathes Daughter; that Daughter wears pull-up pajamas, not zip-up pajamas, at his house; and that it is impossible to put more than 100 pounds in Daughter‟s bed because of its construction. He stated that he cooperated with the Pennsylvania State Police investigation, and it has not filed criminal charges. Father stated that Daughter uses the term "butt" to refer to the buttocks, and not to any other body part, and that he never heard Daughter use the term "we[e]nie" or "nuts," as she did in the interview. Father declined the opportunity to have supervised visits with Daughter because he believed that to do so would suggest that Mother‟s sexual abuse charges had some validity.
At the third and final day of the hearing in July, Father offered the testimony of his mother, F.A. (Grandmother), who testified that Daughter always behaved normally during visits and demonstrated no fear of Father. She confirmed that at the transfers she attended, Daughter quickly calmed down once she was beyond the influence of Mother. Grandmother reiterated that Daughter used the term "butt" to refer to her buttocks and that she had never heard Daughter use the term "nut" or "we[e]nie," which were terms used in Hall‟s interview. Grandmother stated that, aside from one instance when Daughter had a urinary tract infection, she had never noticed any redness at or near Daughter‟s genitals. Her testimony corroborated that of Mother, who had attributed Daughter‟s occasional redness to her child‟s inability to "wipe effectively." C.R., Exhibit C-3. Finally, Grandmother testified that Daughter told her that the son of Mother‟s boyfriend, "Little R.," would "change her" and saw her naked. N.T. 7/12/10 at 14; R.R. 172. When Grandmother asked what she meant, Daughter stood up and wiggled her buttocks. Grandmother testified that she did not pursue the issue further.
The hearing officer*fn6 made the following findings of fact:
12. During the interview, [Daughter] identified both her vaginal area and anal area as her "butt", referring to her vaginal area as her "front butt" and her anal area as her "back butt".
13. [Daughter] stated that her father licked her "front butt" and "back butt", that [Father] placed his fingers in her "butt", that [Father] put his "butt" inside her "butt", and that the aforementioned behavior hurt her vagina, but ...