The opinion of the court was delivered by: Opinion BY Judge Pellegrini
Argued: November 16, 2011
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge*fn1 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
T.W. (Perpetrator) petitions for review of an adjudication of the Secretary of the Pennsylvania Department of Public Welfare (Department) which granted Crawford County Children and Youth Services‟ (CYS) application for reconsideration of the decision entered by the Bureau of Hearings and Appeals (Bureau), set aside CYS‟ decision, and denied the Perpetrator‟s appeal to expunge an indicated report of child abuse by the Perpetrator from the ChildLine Registry.*fn2 For the reasons that follow, we affirm the Department‟s adjudication.
This case involves C.H. (the child), a female child who was born on February 3, 2005, and was three years old at the time of the allegations that she was sexually abused by the Perpetrator, her step-grandfather. S.H. is the child‟s mother, and the Perpetrator is married to L.W., the child‟s maternal grandmother. From July 2005 through July 2007, the Perpetrator and the child‟s maternal grandmother were the child‟s court-appointed guardians and had physical custody of her. In July 2007, the child was returned to the custody of her mother. In September 2008, at the time of the alleged sexual abuse, the child lived in an apartment with her mother and her younger sister, E.H.
On September 10, 2008, CYS received an oral report that an incident of
child abuse had occurred on September 8, 2008, while the child and her
mother had been visiting the Perpetrator at his home. Specifically,
the child had told her mother that the Perpetrator had "touched her
down there‟ and went in all the way with his fingers." (Reproduced
Record at 3.) The child was examined by a physician several days
after the alleged incident but no evidence of trauma was found, only a
possible yeast or urinary tract infection. As part of CYS‟
investigation, on September 18, 2008, the child was medically examined
at the Emergency Department at Saint Vincent Health Center (SVHC) by
Rhonda Henderson (Nurse Henderson), a Forensic Nurse Examiner. On that
date, Nurse Henderson made a report noting findings of a vaginal tear
and swelling. The report also noted her conversation with the child
in which the child stated that the Perpetrator had put his finger into
her vaginal area while she was in the tub
naked. CYS also conducted an interview with the child at the end of
September 2008, in which she identified the Perpetrator as her abuser.
The child was again physically examined at SVHC on October 1, 2008,
with Nurse Henderson finding that the vaginal or hymenal tear was
healing and there was also evidence of several anal tears that were
also healing. As a result of this information, the Department issued
an indicated report on November 7, 2008, that the Perpetrator had
sexually abused the child. The Perpetrator denied the allegations
and filed a request to expunge the indicated report.
A hearing was held before an Administrative Law Judge (ALJ) on June 15, 2009,*fn3 at which time Lisa Pierro (Pierro), a forensic interviewer for CYS, testified that she interviewed the child on September 26, 2008, recorded the interview by audio and video and had three other individuals watching the interview from outside the room.*fn4 The child told her that "Poppy" had touched her in her private area, pointing to her vaginal area, and told Pierro that that part of her body was used for peeing. The child told her that she was naked when it happened and that she was in the bathtub. The child also told her "Poppy‟s" first name was "T." Pierro stated that the child was fairly comfortable talking about the incident while she was coloring and doing things during the 15-minute interview, and at one point, she stood up and showed Pierro "what he did and where it was." (June 15, 2009 Hearing, Notes of Testimony at 97.) Pierro also noted that the child told her these things with very little prompting, very matter of fact. The child, who was four years old and four months at the time of the hearing, testified that she did not remember that she had ever discussed the alleged abuse with anyone at CYS or that she had gone to the hospital for examinations. She denied being touched inappropriately by the Perpetrator. However, she admitted that the Perpetrator had taken a bath with her while he was naked (June 15, 2009 Hearing, Notes of Testimony at 33), and stated that the last time she had a bath with him she did not want to but her mother made her. (June 15, 2009 Hearing, Notes of Testimony at 37.) The child also stated that her mother and grandmother were home at the time of the baths but the door was closed, and they did not come into the bathroom at all. (June 15, 2009 Hearing, Notes of Testimony at 35.)
Nurse Henderson testified regarding her first examination of the child on September 10, 2008, stating that the child told her that she was familiar with the male genitalia by calling a man‟s "private part" a "stick-out thing" and then spontaneously stating that "Poppy showed me his stick-out thing." (June 15, 2009 Hearing, Notes of
Testimony at 56.) When Nurse Henderson asked who "Poppy" was, the child identified the Perpetrator‟s first name. Nurse Henderson continued to state that the child volunteered to her that Poppy showed her his stick-out thing all the time, had his clothes off in the bathtub, got in the tub with her, and put his finger in her private part. The child told Nurse Henderson that it hurt and she told the Perpetrator not to do that anymore. The child told Nurse Henderson that she told the Perpetrator that she would wash herself and not to do that.
Nurse Henderson then described the actual physical exam on September 10, 2008, with the child‟s mother in attendance. She stated that she generally used two positions to examine children: a frog-leg position for the vaginal exam and a knee-chest position for the anal exam. While doing the frog-leg position with the child on her back and her feet in the air and using a clock as a reference, Nurse Henderson stated that from ten o‟clock to 12 o‟clock and 12 o‟clock to three o‟clock there was a hypo-vascularity - a redness present caused by some sort of irritation. There was an appearance of a tear from nine o‟clock to six o‟clock. From the labia major, she noted a healing superficial tear at six o‟clock approximately one centimeter. Nurse Henderson stated that the injury that the child had was consistent with a penetrating type of injury and was consistent with digital penetration. She also stated that when she attempted to do the knee-chest position for an anal exam, the child began sobbing and she could not perform the examination.
Regarding the October 1, 2008 exam, Nurse Henderson stated that the child told her that she remembered her first visit and when asked if anyone had touched her, she said "Poppy." When Nurse Henderson asked the child where she had been touched, the child pointed to her crotch and anal area. When asked with what she had been touched, the child replied, "his finger." Regarding her physical exam, Nurse Henderson stated that she was able to perform both types of tests and found evidence of healing tears to the vaginal and anal areas, specifically, four separate tears in the child‟s anal tissue.*fn5 Nurse Henderson opined that the injuries she saw on September 18, 2008, likely occurred within two weeks before her first examination, and the anal injuries also occurred during that same time frame and perhaps during the same reported incident. She presented photographs of the injuries she described along with her reports.
The Perpetrator testified that he had been married to the child‟s grandmother for 10 years and had two children, a girl age 14 who lived with him and a son age 24. He also had a total of five grandchildren. The Perpetrator adamantly denied that he ever sexually abused the child and he did not bathe with her or sexually abuse her on September 8, 2008. He admitted that he did take baths with her prior to September 2008 but when he did, it was because his wife would bring her in and ask him to clean her up. However, he would always have swimming trunks on. (June 15, 2009 Hearing, Notes of Testimony at 108.) He explained that either his wife or the child‟s mother would be in there with him to clean her up and wash her hair. (June 15, 2009 Hearing, Notes of Testimony at 123). The Perpetrator could not remember the last time he actually took a bath with the child because it had been so long ago and he did not make it a habit. He also told the child that she was getting too old to take a bath with him even though she was bound and determined to come into the bathtub while he was bathing. (June 15, 2009 Hearing, Notes of Testimony at 111.) The Perpetrator testified that he did take baths by himself to relax after work. The Perpetrator noted that whenever a child was getting a bath, the door always remained open. He also denied that the child called him "Poppy" and instead stated that she always called him "Papa." (June 15, 2009 Hearing, Notes of Testimony at 117.)
The child‟s grandmother testified that she was the child‟s grandmother. She stated that previously, her daughter had been unstable and irresponsible due to substance abuse problems and she and her husband had received primary physical custody of the child from July 2005 through July 2007. The child‟s grandmother admitted that her husband had bathed with the child at times but it was always with her in the bathroom. The child‟s grandmother denied that the Perpetrator was ever naked in the bath with the child or any of the grandchildren, and she was always in the bathroom helping him bathe the child. The child‟s grandmother stated that the Perpetrator never exposed himself to the child, the child never complained of pain and never cried. The child‟s grandmother could not remember the last time a bath took place at her home, but she said it was not a common occurrence and only happened when her daughter was over their house when the girls were little. On cross-examination, however, the child‟s grandmother stated that sometime in September, her daughter came over to her home to do laundry, and the child did take a bath with the Perpetrator.*fn6 The child‟s grandmother also admitted that she talked to the child prior to the hearing and asked her "do you remember talking to some strange people that I don‟t know and that you probably don‟t remember, but saying something that you said Papa did to you." (June 15, 2009 Hearing, Notes of Testimony at 143.)
Last to testify was L.B. (Aunt), also a step-daughter of the Perpetrator and aunt to the child. The Aunt stated that she had two young boys and she allowed the Perpetrator to baby-sit them whenever she did not want to pay for a babysitter, which was just a few months prior. She testified that she never had any concerns with the Perpetrator being alone with her children and described him as the perfect grandfather. She did not believe what her sister and niece were accusing him of doing. She stated that whenever the Perpetrator would bathe his granddaughters, he would always wear swim shorts. Further, everyone would always be in the house and the bathroom was not far from the living room. "And you can pretty much see from all the back bedroom areas, the bathroom. And you can hear, from the living room, anything that goes on in the bathroom. And when he gave baths, the door was always open." (June 15, 2009
Hearing, Notes of Testimony at 156.) She stated that her mom would sometimes go in there and sometimes she would go in there. As for her sister, she stated that sometimes her sister would drop her girls off at the Perpetrator‟s house and ask them to take the kids. However, she was not at the Perpetrator‟s house in September on the date in question.
The ALJ admitted the child‟s hearsay disclosures to Pierro based upon Pierro‟s testimony and found the testimony of Pierro and Henderson credible. She rejected the child‟s testimony on the day of the hearing as not credible because the child‟s grandmother had questioned the child prior to the hearing and tainted the child‟s testimony. The ALJ also found the Aunt‟s testimony credible, but rejected the testimony of the Perpetrator and the child‟s grandmother as not credible. Based on these credibility determinations and the physical evidence of penetration, the ALJ found that the Perpetrator had sexually abused the child. However, pursuant to Section 6303(a) of the Child Protective Services Law (Law), 23 Pa. C.S. §6303(a), the ALJ found that the Perpetrator was not a "perpetrator" of sexual abuse within the meaning of that statute. Under that section of the Law, a "perpetrator" is defined as "[a] person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child‟s parent." Because the injuries alleged to have occurred in September 2008 happened when the child no longer lived in the Perpetrator‟s house and he was no longer her legal guardian, the ALJ determined that the Perpetrator did not meet any of these definitions.*fn7
The Bureau adopted the ALJ‟s recommendation and ordered the indicated report of abuse by the Perpetrator be expunged. CYS requested reconsideration from the Department arguing that a "perpetrator" included anyone who was responsible for the welfare of a child, which included a person who provided temporary care or supervision. It contended that the record established that the abuse occurred when the Perpetrator was the only adult in the bathtub, and he was at least temporarily responsible for the welfare of the child, thereby satisfying the statutory definition. The Department agreed, granted reconsideration, and issued a final order setting aside the Bureau‟s order and denying the Perpetrator‟s appeal. The Department stated:
Regulations, in pertinent part, define a "person responsible for the child‟s welfare" as a person, who provides permanent or temporary care, supervision...in lieu of parental care, supervision and control. 23 Pa. C.S.A. §6303(a).
Here, the hearing transcript reveals that the Appellant babysat the child and even bathed her at times, with no other adult present. As such, I find that the Appellant is a person, who was responsible for the child‟s welfare and provided temporary care, when the parent was not present.
(Reproduced Record at 72.) This appeal by the Perpetrator followed.*fn8
23 Pa. C.S. §6303(a) defines "Perpetrator" as "[a] person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child‟s parent." 23 Pa. C.S. §6303(a) then defines "Person responsible for the child's welfare," in pertinent part, as:
A person who provides permanent or temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision and control.
(Emphasis added.) If a child is injured while in the temporary care, supervision and control of a person, that person could be held criminally responsible if that conduct was deemed to be criminally negligent. "In lieu of parental care, supervision and control" does not necessarily mean that the parent has actually entrusted the child to the temporary care of the other person, but it presumes that the person who has taken over that responsibility will provide the same care and supervision while the child is on his or her watch.
In this case, the Perpetrator argues that he did not even have temporary control of the child because he was never alone with the child in September 2008 as the child‟s mother or grandmother was in the bathroom during the bath. The Perpetrator‟s argument fails for two reasons.
First, although he contends that he only took a bath with the child in September 2008 while either the child‟s mother or grandmother was present, neither the ALJ nor the Department found him credible. They also did not find his wife credible that someone was always in the bathroom with him while he bathed his grandchildren. (See Finding of Facts 25 and 30.)*fn9 While the ALJ did not find the child‟s testimony credible, the Secretary of the Department did, and the Secretary is designated with final fact finding authority in expunction cases. See A.O. v. Department of Public Welfare, 838 A.2d 35 n.4 (Pa. Cmwlth. 2003). In stating that "the hearing transcript reveals that the [Perpetrator] babysat the child and even bathed her at times, with no other adult present" (June 23, 2010 Order), the Secretary implicitly found that portion of the child‟s testimony credible when she stated that the door to the bathroom was closed when she took baths with the Perpetrator who was naked, and that no one came into the bathroom during those times. Because the Secretary did not find the Perpetrator credible but did find the child‟s statement that she bathed alone with the Perpetrator to be credible, that constitutes substantial evidence to support the Department‟s conclusion that the Perpetrator bathed the child at times with no other adult present.
Second, even if the Perpetrator was not alone with the child and the child‟s mother was in the bathroom while the Perpetrator was bathing the child, the Perpetrator‟s argument still fails because he still would have had temporary care of the child in lieu of her mother as he was primarily responsible for the child‟s safety while bathing her. He would have been supervising and controlling the child because he alone was in charge of her safety while in the bathtub. As for the grandmother being present, the ...