In re E.A.
Commonwealth of Pennsylvania, Department of Public Welfare and Wyoming County Human Services, Intervenor, Appellants. R.A., Appellee
Argued May 8, 2013.
Appeal from the order of Commonwealth Court at No.
650 CD 2011 dated January 9, 2012 reversing the order of the Department of
Public Welfare, Bureau of Hearings and Appeals, at No. 21-09-1195 dated
March 10, 2011. Intermediate Court Judges: Dan Pellegrini, Judge, Mary
Hannah Leavitt, Judge, Johnny J. Butler, Judge.
Sandra D. Boyle, Esq., Wyoming County Human Services, Inc. (Children & Youth), Nicholson, for Wyoming County Human Services.
Mary Patricia Patterson, Esq., Kenneth J. Serafin, Esq.,Department of Public Welfare, Harrisburg, for Department of Public Welfare.
Brenda M. Kobal, Esq., Kobal & Frederickson, Moosic, for R.A.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.
The Commonwealth of Pennsylvania, Department of Public Welfare (DPW) and the Wyoming County Human Services (Wyoming Co. CYS)  appeal the order of the Commonwealth Court reversing DPW's Bureau of Hearings and Appeals' order refusing to expunge an indicated report of child sexual abuse relating to a father's alleged abuse of his four-year-old daughter. The questions presented by this case involve the admissibility of a videotape of the daughter's allegations under
the relevant hearsay exception for child victims and, if admissible, whether that videotape constitutes the requisite substantial evidence for denying the father's request to expunge. Upon careful review of the record, we conclude that the father in this case waived any challenge to the admissibility of the videotape by failing to object before the Administrative Law Judge (ALJ), both when the father was unrepresented on the first day of the hearing and when he was represented by counsel on the second day of the hearing. Moreover, we reverse the Commonwealth Court's determination that DPW failed to present substantial evidence to support the indicated report of sexual abuse under the Child Protective Services Law, 23 Pa.C.S. §§ 6301-6386.
E.A. was born in January 2005 to Appellee R.A. (Father) and J.A. (Mother).  Mother and Father were involved in a brief romantic affair, which quickly transitioned into a highly antagonistic relationship involving contentious custody transfers of E.A. At the time of the events in this case, E.A. lived with Mother in Broome County, New York, but visited Father, who lived in nearby Wyoming County, Pennsylvania, from Friday evening to Sunday evening every other week, certain holidays, and a few non-consecutive weeks in the summers.
Mother alleged that in late June 2009, following a weekend visit with Father, she witnessed E.A. lying on her bed in a dress but without underwear. Mother asserted that E.A. was playing with her dolls with one doll's head " around her vaginal area." Notes of Testimony (N.T.), March 15, 2010, at 42-44, 56-58. When asked what she was doing, Mother averred that E.A. said, " Daddy does it" and that he " puts his butt in my butt." Id. at 43, 57, and 111. Soon thereafter, Mother called Broome County Children and Youth Services (Broome Co. CYS) which referred the case to Wyoming Co. CYS, given that the alleged sexual assault occurred in Pennsylvania.
In investigating the case, Wyoming Co. CYS asked Broome Co. CYS to interview E.A. An investigator with the New York State Police (Broome Co. Investigator) interviewed E.A. on June 26, 2009, at the Broome County Child Advocacy Center, a few days after Mother observed E.A. on the bed. The Broome Co. Investigator had extensive training in forensic interviewing, especially relating to child sexual abuse, and performed approximately fifty interviews per year. N.T., March 15, 2010, at 30. The interview with E.A. was recorded and simultaneously watched, via closed circuit television, by a Broome County case worker/investigator (Broome Co. Caseworker), who also had substantial training in sexual abuse and forensic interviewing and who had performed thousands of child abuse investigations. N.T., March 15, 2010, at 107-108.
As will be discussed infra, the ALJ made the following findings of fact concerning the content of the hour-long videotaped interview:
12. During the interview, E.A. 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" . (N.T.[, March 15, 2010, at] 24-25, Exhibit E-2)
13. E.A. stated— that her father licked her " front butt" and " back butt", that Appellant placed his fingers in her " butt", that Appellant put his " butt" inside her " butt", and that the aforementioned behavior hurt her vagina, but that
E.A. couldn't put a [B]and-[A]id on the injury. (N.T.[, March 15, 2010, at] 27-29, 88-89 Exhibit E-2)
14. During the interview, E.A. identified the Appellant as the perpetrator of sexual abuse on her. (N.T.[, March 15, 2010, at] 88; Exhibit C-1)
DPW Bureau of Hearings and Appeals Adjudication (Adjudication) at 3. Broome Co. CYS forwarded the video and its Caseworker's notes to Wyoming Co. CYS. Upon review of these materials, Wyoming Co. CYS filed an indicated report  with the ChildLine and Abuse Registry. Exhibit C-1.
Father appealed to DPW's Bureau of Hearings and Appeals (the Bureau) to expunge the report, and an ALJ presided over a three-day hearing. On the first day of the hearing, on March 15, 2010, Father requested a continuance to allow him to obtain counsel, which was denied based upon the late date of the request.
At the beginning of the hearing on March 15, 2010, Wyoming Co. CYS indicated that E.A. would not testify but that it intended to present her videotaped interview, which all parties acknowledged constituted hearsay. Pursuant to the relevant hearsay exception for child victims, 42 Pa.C.S. § 5986, infra at 12 n.10, the ALJ held an in camera hearing. N.T., March 15.2010, at 12.  Wyoming Co. CYS presented the Broome Co. Investigator, via phone from New York, to testify to the relevance and reliability of the videotaped interview. In response to the ALJ's questions, the Investigator discussed her extensive training in forensic interviewing. The investigator next described the interview process. She related that the interview began with a series of questions to obtain the child's stage of cognitive development and her ability to understand the difference between the truth and a lie. Turning to the heart of the interview, she detailed the allegations summarized above suggesting that Father engaged in cunnilingus, digital penetration, and vaginal intercourse upon E.A. Based upon the interviewer's experience, the interview process, the persons present during the interview, and the proximity of the interview to the alleged abuse, the ALJ found " that the hearsay testimony has, at this point, met the first prong, that it's relevant, reliable and definitely probative in this matter." N.T., March 15, 2010, at 32.
As required by Section 5986, the ALJ observed that CYS next needed to demonstrate that E.A. was unavailable to testify. CYS presented the testimony of Mother who asserted that E.A. " gets very emotional" and that she did not believe E.A. could testify because she refused to speak with the CYS attorney the week before the hearing. Id. at 35-37. Based
on Mother's testimony, the ALJ found that E.A. was unavailable because she " would have emotional distress or could not reasonably communicate to this court or in this courtroom." Id. at 38.
The ALJ then stated, " With that being said, at the appropriate time, I will allow the videotape or the DVD testimony and interview of the child. Any objections?" Id. at 39. Father asserted that he did not object. Id. The Court continued, " With that being said, the in camera is finished" and instructed CYS to call its first witness. Id. The ALJ, however, specifically did not admit the videotape during the March 15, 2010, hearing because it could not be viewed due to technical difficulties. Id. at 133. As discussed below, it was eventually played during the second day of the hearing on April 20, 2010, and Father, who was then represented by counsel, again did not object to the viewing of the recorded interview. N.T., April 20, 2010, at 9. Moreover, when the ALJ formally admitted the videotaped interview into evidence at the close of CYS's case, Father's counsel stated " No objection" to the admission of the video. Id. at 26. Accordingly, we conclude that Father waived any objections to the admission of the videotaped interview by failing to preserve the issue before the ALJ, and we will not discuss the merits of its admission further.,Pa.R.A.P. 302 (" Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." ).
During the merits portions of the hearing on March 15, April 20, and July 12, 2010, CYS presented the testimony of Mother, the Wyoming Co. CYS Caseworker, the Broome Co. Caseworker who viewed the E.A. interview via closed circuit, and a police officer who was present at several of the custody transfers. Father and his mother testified on Father's behalf.
During the first day of the hearing on March 15, 2010, in addition to setting forth the doll incident described above, Mother testified to the long-standing contentious relationship between Father and her and the difficult custody transfers. During his pro se cross-examination, Father attempted to emphasize inconsistencies in Mother's testimony regarding the doll incident, including the exact time of day, whether E.A.'s door was closed or merely ajar, and whether she was in a dress or a nightgown. Significantly, he questioned Mother as to why she was willing to allow E.A. to go to the scheduled Father's Day visit, days after E.A. alleged that he sexually abused her. Mother responded that Father had previously threatened her with contempt for denying visitation. On re-direct,
Mother testified that, upon the advice of CYS after the videotaped interview, she did not allow E.A. to visit Father the following regular visitation weekend. Father also elicited Mother's admission that E.A. had called one of Mother's former boyfriend's " daddy; " however, Mother noted that she had been separated from the boyfriend for several years and was confident that E.A. was accusing Father of the sexual assault. N.T., April 20, 2010, at 82.
Wyoming Co. CYS next presented its caseworker, who recounted her decision to file an indicated report of sexual abuse with ChildLine regarding Father, based upon her review of the progress notes of the Broome Co. Caseworker and after viewing the video. She asserted that " child was consistent and clear" in her statements. Id. at 89.
Via telephone, Wyoming Co. CYS called the Broome Co. Caseworker who watched the interview and prepared the progress notes of the investigation utilized at the hearing. Regarding the interview, the caseworker opined that E.A.'s descriptions were " credible for [her] being four years old." Id. at 122. She emphasized that E.A. indicated her understanding of what a lie was by saying that " if it's a lie, it didn't really happen." Id. at 114. The Caseworker displayed her insights regarding young children in sexual assault cases by explaining why E.A. might have described ...