The opinion of the court was delivered by: Anne E. Covey, Judge
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
G.V. petitions this Court for review of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals‟ (BHA) December 29, 2010 order adopting the Administrative Law Judge‟s (ALJ) recommendation denying G.V.‟s appeal. The issues before this Court are: (1) whether there was substantial evidence to support BHA sustaining the report of child abuse; (2) whether BHA erred in its interpretation of "sexual abuse or exploitation," as defined by Section 6303(a) of the Child Protective Services Law (Law),*fn1 23 Pa.C.S. § 6303(a); and, (3) whether BHA erred by applying a "substantial evidence" standard of proof.*fn2 We vacate and remand.
On September 9, 2009, Lancaster County Children and Youth Services (CYS) received a referral alleging that G.V. was sexually abusing his 16-year-old great niece, C.S., of whom G.V. and his wife, T.V., had custody. CYS conducted an investigation and, on November 5, 2009, it filed an indicated report against G.V. as a perpetrator of sexual child abuse against C.S. CYS filed the report with the ChildLine & Abuse Registry (ChildLine Registry)*fn3 on the same day. By notice mailed November 16, 2009, G.V. was informed that he was listed on the ChildLine Registry as a perpetrator of child abuse. On December 23, 2009, G.V. requested a hearing because he disagreed with the indicated report. A hearing was held on June 2, 2010 before the ALJ, at which several witnesses, including C.S. and G.V., testified. On December 17, 2010, the ALJ issued a recommendation that BHA deny G.V.‟s child abuse expungement appeal. By order issued December 29, 2010, BHA adopted the ALJ‟s recommendation in its entirety.*fn4 On January 26, 2011, G.V. appealed to this Court.*fn5 On June 6, 2012, the standard of proof issue was argued before this Court en banc. G.V. seeks expungement of the indicated report designating him a perpetrator of child abuse. "Child abuse" is defined by the Law, inter alia, as "[a]n act . . . by a perpetrator which causes . . . sexual abuse or sexual exploitation of a child under 18 years of age." 23 Pa.C.S. § 6303(b)(1)(ii). "Sexual abuse or exploitation" is defined in DPW‟s Regulations as, inter alia:
(i) Any of the following if committed on a child by a perpetrator:
(A) The employment, use, persuasion, inducement,
enticement or coercion of a child to engage in or assist another person to engage in sexually explicit conduct.
(C) Any of the following offenses as defined by the crimes code:
(6) Indecent assault as defined by [S]section 3126 [of the Pennsylvania‟s Crimes Code (Crimes Code)] (relating to indecent assault).
(D) Exploitation which includes any of the following:
(1) Looking at the sexual or other intimate parts of a child for the purpose of arousing or gratifying sexual desire in either person.
55 Pa. Code § 3490.4. Section 3126(a) of the Crimes Code states, in relevant part:
A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person . . . for the purpose of arousing sexual desire in the person or the complainant and:
(1) the person does so without the complainant‟s consent; [or]
(4) the complainant is unconscious or the person knows that the complainant is unaware that the indecent contact is occurring[.]
18 Pa.C.S. § 3126(a). "Indecent contact" is defined by Section 3101 of the Crimes Code as "[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person." 18 Pa.C.S. § 3101. An indicated report of child abuse is defined as a report issued by DPW if it "determines that substantial evidence of the alleged abuse exists based on any of the following: (1) [a]vailable medical evidence[;] (2) [t]he child protective service investigation[; or,] (3) [a]n admission of the acts of abuse by the perpetrator." 23 Pa.C.S. § 6303; 55 Pa. Code § 3490.4. Substantial evidence is defined in the Law as "[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." 23 Pa.C.S. § 6303(a). "[CYS] has the burden of establishing by substantial evidence that an indicated report of child abuse is accurate. If CYS fails to sustain that burden, a request for expungement will be granted." Bucks Cnty. Children & Youth Soc. Servs. Agency v. Dep't of Pub. Welfare, 808 A.2d 990, 993 (Pa. Cmwlth. 2002).
G.V. argues that the evidence relied upon by the ALJ to find that the indicated report was properly maintained does not, by itself, constitute substantial evidence to support the finding. G.V. asserts that C.S.‟s testimony was inconsistent and did not outweigh the evidence G.V. submitted. G.V. also argues that BHA committed an error of law in its interpretation of "sexual abuse or exploitation," as defined by Section 6303(a) of the Law.
The testimony before the ALJ revealed that, between 2003 and 2009, C.S. spent time living with her mother (T.D.), her father, and her mother‟s aunt (T.V.) and T.V.‟s husband (G.V.), with the majority of her time spent living with G.V. and T.V. G.V. regularly gave backrubs to C.S. and his daughters, M.H. and B.V. M.H. moved out of their home in 2004. In September 2007, C.S. was placed permanently with G.V. and T.V. by court order. As of 2009, when C.S. was 16 years old, G.V. and T.V.‟s household consisted of G.V., T.V., C.S. and B.V., but B.V. frequently spent evenings and nights with her boyfriend rather than at her parents‟ home. From February 2009 to May 2009, T.V. and T.D. fought over T.D.‟s having to pay child support for raising C.S. During that time, C.S. did not have visitation with her mother. C.S. made the following allegations against G.V.: "In April and May 2009, after T.V. went to bed upstairs, [G.V.] attempted to touch [C.S.‟s] crotch three (3) times while giving her a backrub in the living room."
Reproduced Record (R.R.) at 26a. During the same time period, and after T.V. went upstairs to bed, G.V. "twice pulled down [C.S.‟s] shorts and underwear to massage her buttocks while giving her backrubs in the living room." R.R. at 26a. C.S. felt uncomfortable when G.V. was massaging her buttocks but she did not tell G.V. to stop. Early in the summer of 2009, C.S. fell asleep in B.V.‟s bed after receiving a backrub and she awoke to G.V. fondling her breasts. After this "incident, C.S. declined [G.V.‟s] subsequent offers for backrubs." R.R. at 26a. During each incident, G.V. was clothed. G.V. acknowledged that T.V. sometimes went to bed and fell asleep before he joined her. C.S. also testified that when she would ask G.V. for a cigarette, every now and then G.V. would respond: "If I am not having sex with you, then I am not supporting you." R.R. at 75a. Finally, C.S. testified that G.V. told her on multiple occasions that she "had a cute butt." R.R. at 76a. T.V. testified that immediately before C.S. levied the allegations, T.V. had punished C.S. and C.S. was facing a loss of privileges. T.V. also testified that, in September 2009, after CYS issued the indicated report against G.V., custody of C.S. reverted to T.D., thereby ending T.D.‟s obligation to pay T.V. and G.V. child support.
CYS Investigator, Karen Gerber, testified that while she did not interview C.S., she observed the forensic interview where C.S. asserted that G.V. made inappropriate sexual comments towards her, twice pulled down her shorts and rubbed her bare buttocks, and fondled her breasts while she was sleeping in her cousin‟s bed. Ms. Gerber stated that when she later visited C.S., C.S. reported that there was nothing that she wanted to add or change about her original disclosure. The ALJ found C.S.‟s testimony credible. He also deemed credible the testimony of Ms. Gerber, and M.H. The ALJ found T.W.*fn6 and T.V. generally credible. The ALJ did not credit G.V.‟s testimony that he did not touch C.S.‟s buttocks or breasts, and that he did not attempt to touch her between her legs. In finding G.V.‟s testimony not credible, the ALJ explained that G.V. was "proficient in hiding his activities from family members and neighbor T.W.," citing the fact that G.V. hid that he smoked "marijuana at his home 2-3 times per month for many years and only stopped in the last few years. This demonstrates that [G.V.] acted clandestinely at home unbeknownst to his daughter, spouse, and neighbor." R.R. at 34a. The ALJ further cited inconsistencies in G.V.‟s testimony, particularly his testimony that he was never alone with C.S. and his admission that he slept downstairs after his wife went to bed. The ALJ concluded that C.S.‟s credible testimony supported the finding that G.V. was a perpetrator of child abuse as defined by Section 3490.4 of DPW‟s Regulations, 55 Pa. Code § 3490.4, and that the indicated report was being maintained consistent with the Law and DPW‟s Regulations. Accordingly, the ALJ recommended denying G.V.‟s appeal. BHA agreed, and adopted the ALJ‟s recommendation and opinion as its own.
It is well settled that credibility determinations in expungement proceedings are made by the fact finder and are not subject to appellate review. S.T. v. Dep't of Pub. Welfare, Lackawanna Cnty. Office, Children, Youth & Family Servs., 681 A.2d 853 (Pa. Cmwlth. 1996). This Court has held that: in determining whether a finding of fact is supported by substantial evidence, the Court must give the party in whose favor the decision was rendered the benefit of all reasonable and logical inferences that may be drawn from the evidence of record; the weight and credibility to be accorded to the evidence is solely within the province of the attorney examiner as fact finder.
Id., 681 A.2d at 856. The consistent testimony of a victim of child abuse can support the findings of fact upon which a determination that an indicated report was accurate can be made. D.T. v. Dep't of Pub. Welfare, 873 A.2d 850 (Pa. Cmwlth. 2005); K.J. v. Dep't of Pub. Welfare, 767 A.2d 609 (Pa. Cmwlth. 2001).
Here, the ALJ was faced with a "he said/she said" situation and credited the testimony of C.S. and Ms. Gerber. The ALJ relied on the credited testimony to conclude that sexual abuse or exploitation occurred because G.V. engaged in activity that was consistent with indecent assault under Sections 3101(a) and 3126(a) of the Crimes Code. The ALJ held that rubbing and looking at C.S.‟s buttocks, fondling her breasts, and attempting to touch her genitals, was motivated for G.V.‟s and/or C.S.‟s sexual gratification, because there were no health reasons offered for the contact and because of where G.V. touched or attempted to touch C.S. Taking the testimony and the reasonable inferences drawn therefrom in favor of the prevailing party, there is substantial evidence to support the ALJ‟s findings.
An indicated child abuse report can be based exclusively on a child protective service investigation. K.J. The fact that G.V. provided other explanations for his contact with C.S. is of no moment where the ALJ did not credit those explanations. Finally, although there may have been no "direct" evidence that G.V. or C.S. experienced sexual gratification from the conduct or that such conduct was for the purpose of arousing sexual gratification, such finding is reasonably inferable from the evidence cited by the ALJ. Accordingly, there was substantial evidence to sustain the indicated report of child abuse, and BHA did not err in its interpretation of "sexual abuse or exploitation."
G.V. next argues that basing an indicated report on substantial evidence, as was done by the ALJ and as set forth in the Law "does not adequately protect the rights of the accused perpetrator given the nature of the proceedings and the adverse consequences which flow from a finding of abuse and registration in the statewide Child[Line] Registry." G.V. Br. at 21. Citing J.S. v. Department of Public Welfare, 528 Pa. 243, 596 A.2d 1114 (1991), G.V. maintains that to satisfy federal and state due process requirements, the standard of proof in expungement proceedings must be one of clear and convincing evidence. We agree, in part. It is undisputed that the General Assembly has pronounced that substantial evidence must support an indicated report. 23 Pa.C.S. § 6303; 55 Pa. Code § 3490.4.*fn7 However, there is no similar legislative mandate regarding the standard of proof to be met for maintaining the indicated report summary on the ChildLine Registry.*fn8 Cases involving a significant loss of freedom or livelihood require clear and convincing evidence. In the Matter of Lawrence D. Greenberg, 561 Pa. 154, 749 A.2d 434 (2000) (professional license reinstatement proceedings); In re S.B., 777 A.2d 454 (Pa. Super. 2000) (involuntary commitment proceedings). Other child- related civil proceedings likewise require the use of a clear and convincing standard. See In re: B., N.M., 856 A.2d 847 (Pa. Super. 2004) and In re In the Interest of B.L.L., 787 A.2d 1007 (Pa. Super. 2001) (parental rights termination/dependency proceedings). G.V. argues, and we agree, in J.S., the Pennsylvania Supreme Court acknowledged that the standard of proof in child abuse expungement proceedings should be revisited. Specifically, the J.S. Court noted:
Although [J.S.] did not question the standard of proof required by [DPW] in order to maintain the indicated report, this Court is quite troubled by the use of any standard less than requiring clear and convincing evidence. Even though the statute requires substantial evidence, it is quite possible that such a standard does not adequately protect the rights of the accused given the nature of these proceedings. See Santosky v. Kramer, 455 U.S. 745 . . . (1982). However, since the issue has not been raised, we will defer consideration until such time as it is properly briefed and argued.
J.S., 528 Pa. at 248 n.2, 596 A.2d at 1116 n.2. Because the instant case presents the issue, we will address the standard that must be met in order for the indicated report summary to be maintained on the ChildLine Registry.
It is important to note that the indicated report impacts upon three competing interests: (1) the child, (2) the accused perpetrator, and (3) limited government officials, law enforcement and individuals.*fn9 As stated above, the General Assembly has clearly stated that the lowest evidentiary standard is to be applied where the safety and well-being of the child is in question. Accordingly, any doubt of harm will be resolved in favor of providing protection to the child. However, completely absent from the statute is the standard of proof required to maintain designated information from the indicated report on the ChildLine Registry or to disclose it to limited outside third parties.
Article I, Section 1 of the Pennsylvania Constitution provides: "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting . . . reputation . . . ." Pa. Const. art. I, § 1. G.V. asserts that, because reputation is a protected fundamental interest under Article I, Section 1 of the Pennsylvania Constitution, the loss of reputation and the stigma associated with being named a child abuser demands a higher standard of proof in order to satisfy due process. We agree.
In R. v. Department of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994), our Supreme Court adopted the United States Supreme Court‟s methodology for reviewing claims of a violation of a citizen‟s right to their reputation under due process; specifically, one who is seeking to challenge expungement procedures under the Law as violating due process under the Pennsylvania Constitution. The Pennsylvania Supreme Court set forth the following factors to be considered:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‟s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements will entail.
R., 535 Pa. at 449, 636 A.2d at 146 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). We will address each factor in turn.
1. The Affected Private Interests
In A.Y. v. Department of Public Welfare, Allegheny County Children and Youth Services, 537 Pa. 116, 641 A.2d 1148 (1994), the Supreme Court stated:
Although less process is due in an administrative proceeding than where criminal charges have been brought, an administrative adjudication of suspected child abuse is of the most serious nature. Therefore, this society, which was founded upon, inter alia, its citizens‟ inherent and indefeasible rights . of acquiring, possessing and protecting property and reputation,‟ cannot blithely surrender those rights in the name of prosecutorial convenience.
Id., 537 Pa. at 124, 641 A.2d at 1152 (footnote omitted). Since the Supreme Court has already recognized there exists a constitutionally-protected interest in one‟s reputation, it is necessary for us to determine whether a higher standard of proof should be required in order for G.V.‟s name to be maintained on the ChildLine Registry.
The Law mandates that when a person seeks employment that would bring him/her in direct contact with children, or with a significant likelihood of regular contact with children, or when a person resides in a family day-care home, that person must provide a certification, obtained within the preceding year from DPW, of whether he/she was named in the ChildLine Registry as a perpetrator of an indicated report of child abuse. 23 Pa.C.S. §§ 6344(a), (b)(2),*fn10 6344.1(a),(b), 6344.2. Similarly, school districts and civic organizations regularly require all adults to obtain a certification that they are not on the ChildLine Registry before they can participate in any activities involving children. Prospective adoptive or foster parents, self-employed family day-care providers and operators of childcare services must also submit certification ...