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J.M. In Re: I.M v. Department of Public Welfare

September 12, 2012

J.M. IN RE: I.M., PETITIONER
v.
DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Submitted: July 13, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

J.M. (Father) petitions for review of the December 8, 2011, final order of the Secretary of the Department of Public Welfare (DPW), which upheld the July 22, 2011, order of the DPW's Bureau of Hearings and Appeals (BHA). The BHA adopted the recommendation of the Administrative Law Judge (ALJ) dismissing Father's administrative appeal to expunge the indicated report of sexual abuse of his daughter, I.M. (Child). We reverse.

On April 18, 2009, a caseworker from the Philadelphia Department of Human Services (DHS) received an oral report from Childline that Father had allegedly placed his finger in the vagina of Child while he was bathing her during a visit at his home.*fn1 (ALJ's Findings of Fact, Nos. 3-4.) Child was three years old and resided with C.Z. (Mother), at the time of the incident.*fn2 (ALJ's Findings of Fact, Nos. 1-2.)

Mother reported that Child "touched a female playmate's pee-pee" while the girl was visiting their home. (ALJ's Findings of Fact, No. 13.) Child disclosed to Mother that Father "had placed his finger in her vagina while he was washing her there."*fn3 (ALJ's Findings of Fact, Nos. 14-15.) At the time of the incident, Child washed her vaginal area by herself and did not need the help of an adult. (ALJ's Findings of Fact, No. 18.)

DHS initiated an investigation of suspected child abuse and, on or before May 24, 2009, a forensic interviewer interviewed Child at the Philadelphia Children's Alliance (PCA). (ALJ's Findings of Fact, Nos. 5-6.) The interview of Child was recorded using audio and video equipment (DVD) and shows all individuals present during the interview.*fn4 (ALJ's Findings of Fact, Nos. 7-8.) The investigation revealed that Father "placed his moving finger in the vagina of . . . [C]hild" and "[i]t hurt a lot."*fn5 (ALJ's Findings of Fact, Nos. 10-11; Ex. C-4, DVD.)

On May 27, 2009, Philadelphia County Children and Youth Services (CYS) filed an indicated report of sexual abuse against Father. (ALJ's Findings of Fact, No. 19.) On June 15, 2009, Father appealed, requesting expunction of his name from the Childline registry. (ALJ's Findings of Fact, No. 20.)

On February 8, 2010, a hearing was held before the ALJ, who found the testimony of DHS' witnesses credible and Father's testimony of how he washed the vagina of Child with a washcloth not credible. (ALJ's Findings of Fact, Nos. 21-22.) The ALJ excused Child from testifying at the hearing because she "was suffering from serious emotional distress and could not reasonably communicate with the Court." (ALJ's Findings of Fact, No. 23.) The ALJ further found that the statements made by Child in the DVD were not made in response to questioning calculated to lead the minor to make particular statements and was not the product of improper suggestion. (ALJ's Findings of Fact, No. 9.) The ALJ recommended that Father's appeal be denied. BHA ordered that the ALJ's recommendation be adopted and the Secretary of DPW upheld BHA's decision. Father now petitions this court for review.*fn6

Initially, Father contends that DPW abused its discretion and erred as a matter of law in dismissing Father's appeal and admitting, over objection, the DVD, which was videotaped hearsay testimony of Child, without corroboration or any testimony as to the date and time of the DVD interview.

The burden of proof in an expunction hearing is on DHS to show by substantial evidence that the indicated report is accurate. Bucks County Children and Youth Social Services Agency v. Department of Public Welfare, 808 A.2d 990, 993 (Pa. Cmwlth. 2002). A child protective services agency will file an indicated report if the investigation by the agency determines that there is substantial evidence of the alleged abuse based upon available medical evidence, the investigation by the child protective services agency, or the admission of the acts of abuse by the perpetrator. Section 6303 of the Child Protective Services Law, 23 Pa. C.S. §6303. In this matter, there was no medical evidence that indicated abuse and the alleged perpetrator denied the act; therefore, the only support of the indicated report is the child protective services investigation.

DPW relies upon the hearsay statement of Child to support its indicated finding.*fn7 Section 5986 of the Judicial Code creates an exception to the hearsay rule for statements made by a child describing acts of sexual abuse. Section 5986 provides:

(a) General rule.-A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or court ruling, is admissible in evidence in a dependency proceeding initiated under Chapter 63 (relating to juvenile matters), involving that child or other members of that child's family, if:

(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide ...


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