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B. K v. Department of Public Welfare

February 1, 2012

B. K.,
PETITIONER
v.
DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Submitted: September 9, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1

HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE McCULLOUGH

B.K. petitions for review of the February 3, 2011, order of the Western Regional Manager (Manager) of the Bureau of Hearings and Appeals (Bureau) of the Department of Public Welfare (DPW). The Manager‟s order adopted in its entirety the Recommendation of a DPW administrative law judge (ALJ) that an appeal filed by B.K. under the provisions of the Child Protective Services Law (Law)*fn2 be denied and that the indicated report*fn3 of child abuse*fn4 naming her as a perpetrator*fn5 should not be expunged from the ChildLine Registry. We affirm.

R.D.C. is a male child born on February 27, 2008, to B.K., his natural mother, and R.C., his natural father. B.K. and R.C. are husband and wife.

On August 5, 2009, when R.D.C. was 17 months old, he was taken to the Uniontown Hospital emergency room and treated for exposure to cocaine. Anthony Zinobile, M.D., examined R.D.C. at the hospital, and a drug screen of his urine tested positive for the presence of cocaine. R.D.C. was transferred to Children‟s Hospital in Pittsburgh where he was examined by Janet Squires, M.D., and admitted as a patient. R.C. contacted Fayette County Children and Youth Services (CYS) and an investigation into the incident ensued.

On October 2, 2009, CYS filed an "indicated" Investigative Report (CY 48) which was entered on the ChildLine Registry.*fn6 The CY 48 alleged that B.K. had inflicted physical injuries on R.D.C. due to his exposure to cocaine. On November 4, 2009, B.K. appealed CYS‟s decision to file the indicated report and requested expunction of her name from the ChildLine Registry.*fn7

] The ALJ conducted two hearings. Dr. Zinobile, Dr. Squires, and Davine Michelle Arnold, a Greene County Children and Youth Services caseworker, testified by telephone; Robert Madison, CYS‟s investigating caseworker, B.K. and R.C. testified in person.

R.C. testified that he knew his wife had a drug problem. (N.T. 9/14/10*fn8 at 101.) He stated that his son and his wife had been missing for three days when he came home from work on August 5, 2009, and found out they were staying with a girlfriend in Nemacolin, Greene County. (Id.) R.C. said that he went to the girlfriend‟s house and found his son. (Id. at 102.) It appeared that his son had not been bathed in three days. (Id.)

According to R.C., B.K. first told him that she had their son in a crack house and then told him she had their son in a car while she was smoking crack cocaine. (Id. at 105, 107.) R.C. testified that B.K. acknowledged that R.D.C. was with her when she was using cocaine. (Id. at 107.) He added that B.K. told him that she had a drug problem and wanted help. (Id. at 107.) R.C. stated that he took his son from the girlfriend‟s house to Uniontown Hospital. (Id. at 108.)

Dr. Zinobile testified that he treated R.D.C. at the Uniontown Hospital emergency room. (N.T. 5/24/10*fn9 at 10.) A drug screen of R.D.C.‟s urine revealed the presence of cocaine. (Id. at 13, 17.) Dr. Zinobile determined that R.D.C. should be admitted for cardiac monitoring, but there were no monitors available so R.D.C. was transferred to Children‟s Hospital. (Id. at 18, 19.) Dr. Zinobile stated that the effects of cocaine on a child of this age could be death, stroke, bleeding into the brain and permanent disability. (Id. at 22-23.)

Dr. Squires testified that she treated R.D.C. at Children‟s Hospital and that the urine screen revealed the presence of cocaine and its metabolites. (N.T. 5/24/10 at 33, 35, 36.) She stated that a child of this age could have cocaine in his system by either ingestion or inhalation, but that there was no medical reason for cocaine to be in his system. (Id. at 36, 37.) Dr. Squires also testified that its presence affects the brain and the way the child acts. (Id.) She opined that the change in R.D.C.‟s neurological status reflected in the medical records indicated a significant impairment, even if only temporary, due to his exposure to cocaine. (Id. at 42-43, 44-45.)

Arnold testified that she had an ongoing case with B.K. with Greene County Children and Youth Services in regards to one or more of her children. (N.T. 5/24/10 at 49, 50.) Arnold testified that she spoke with B.K. on August 5, 2009, and asked B.K. where she had been during the preceding two or three days. (Id. at 52.) According to Arnold, B.K. stated that she had been with a friend at the friend‟s house with R.D.C. for that time period and had been out of contact because her cell phone was broken. (Id. at 52-54.)

Madison testified that he conducted the CYS investigation into the incident involving R.D.C. (N.T. 5/24/10 at 61.) Madison testified that he went to Uniontown Hospital and met with the social worker, a nurse, and the family. (Id. at 62, 63.) He observed R.D.C. and stated that he was very lethargic, slept throughout his time at the hospital, and was very attached to R.C. (Id. at 62-63.) Madison testified that he spoke with B.K. by telephone on October 15, 2009, and she stated she did not do crack in front of R.D.C. but had left R.D.C. somewhere where they did do crack in front of him. (Id. at 67.)

B.K. testified that she and R.C. were married prior to the incident in August of 2009. (N.T. 9/14/10 at 89-93.) B.K. invoked her Fifth Amendment rights regarding self-incrimination when questioned about her cocaine use while caring for R.D.C. in August of 2009. (Id. at 119-120.)

On January 12, 2011, the ALJ issued an Adjudication finding the testimony of CYS‟s witnesses to be credible and B.K.‟s testimony to be not credible. (Adjudication at 3.) The ALJ also found that the indicated report of child abuse was accurate, stating:

[T]he medical evidence established that the child was found to have cocaine in his system during the period of time he was in the care of his mother. The caseworker testified that when they first saw the child the child was lethargic. Dr. Squires testified that cocaine in a child‟s system would indeed impair the child‟s functioning if only temporarily. . Non-accidental is defined [in section 6303 of the Law] as "an injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk." Clearly, whatever the mother‟s intention, the smoking of the cocaine in the car was intentional. Further, . Dr. Squires testified that the cocaine in the child‟s system did significantly impair his functioning albeit temporarily. Dr. Squires did not anticipate that the child would suffer permanent or long lasting effects.

Nevertheless, this 17 month old child was found to have levels of cocaine in his system while in the care and control of his mother. The mother‟s actions, quite simply were unconscionable. Happily, the child did not suffer any permanent or long lasting injuries. Nevertheless, the impairment he did sustain qualifies as "a serious physical injury" under §6303 of the [Law]. It is clear finally that the evidence shows that the indicated report is warranted and the recommended request by [B.K.] for ...


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