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In re S.H.

Commonwealth Court of Pennsylvania

July 24, 2014

In Re: S.H.; G.H., Petitioner
v.
Department of Public Welfare, Respondent

Submitted December 27, 2013.

Page 449

Appealed from No. 021-10-0158. Department of Public Welfare.

William A. Hebe, Wellsboro, for petitioner.

Thomas R. Shaffer, Coudersport, for intervenor Potter County Children and Youth Services.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE LEAVITT. Judge Leadbetter concurs in the result only.

OPINION

Page 450

MARY HANNAH LEAVITT, Judge

G.H. (Father) petitions for review of an adjudication of the Secretary of Public Welfare, which denied Father's request to expunge an indicated report of sexual abuse of his son, S.H. (Child), from the ChildLine Registry. This adjudication was issued upon this Court's remand to the Department of Public Welfare (Department) to consider the evidence in light of this Court's holding that the county must prove the perpetrator's abuse of a child by clear and convincing evidence. On remand, the Secretary edited her earlier adjudication to use the words " clear and convincing" where previously the word " substantial" had been used to describe the evidence and reached the same conclusion she had in the first adjudication. Thereafter, while this appeal was pending, the Supreme Court reversed our holding that the clear and convincing standard of proof governed in an expungement case. Instead, it held that the standard of proof was that set forth in the applicable statute, i.e., " evidence which outweighs inconsistent evidence and which a reasonable person would accept as evidence to support a conclusion." 23 Pa. C.S. § 6303(a). Concluding that the County's evidence was insufficient to satisfy this statutory standard, we reverse.

Background

On Monday, November 9, 2009, Child's mother, K.Z. (Mother), reported to the " hotline" that her three-year-old son (Child) had been sexually abused by Father one or two days earlier.[1] On January 6, 2010, the County Children and Youth Services Agency (County) named Father as a perpetrator of child sexual abuse in a report it filed with the Statewide Central Register, also known as the ChildLine Registry.[2] The County's indicated report stated that Father denied the abuse; that Father had passed a polygraph administered by the Pennsylvania State Police; and that a " polygraph has been requested for victim's mother and maternal grandmother." Reproduced Record at 3a (R.R. __). Upon learning of the County's report, Father requested a hearing from the Department to have the County's report expunged from the ChildLine Registry.

Page 451

The hearing on Father's appeal was held on July 7, 2010. In support of its report, the County presented testimony from Mother, Child, Child's pediatrician and a child psychologist who interviewed Child on one occasion. Child, who was four years old at the time of the hearing, testified about the incident that prompted the County's report. Child stated that Father inserted a finger and a Q-tip into Child's anus during his weekend visit with Father. Ricardo Ilustre, M.D., Child's pediatrician, testified by telephone that he examined Child on November 11, 2009, several days after the alleged incident. During this exam, Child repeated his account of Father's conduct. Dr. Ilustre found no physical evidence of anal insertion nor any basis for Child's abdominal and rectal pain reported by Mother. One month after the visit with Dr. Ilustre, Mother took Child to Susan Nathan, Ph.D., a clinical psychologist in Pittsburgh, who conducted a forensic interview. Dr. Nathan testified by telephone that Child spontaneously stated during her interview of him that " Daddy pokes his finger in my butt." R.R. 85a. Finally, Mother testified. She acknowledged that she and Father were involved in a custody dispute, but she denied giving Child the idea that Father had committed abuse. Mother stated that she learned of the abuse incident from her mother (Maternal Grandmother) on November 9, 2009, the Monday after Child's overnight visit with Father. Maternal Grandmother, who babysits for Child each day, informed her that Child stated that Father had put his finger into Child's anus during the weekend visit.

For his part, Father adamantly denied Child's account, and his denial was corroborated by his mother, N.H. (Paternal Grandmother), who was present during Child's weekend visit with Father. Paternal Grandmother testified that she and her husband (Paternal Grandfather), who lived two hours away, had stayed with Father in his home during Child's weekend overnight visit. Paternal Grandmother testified that she neither saw nor heard anything to support Child's story and stated that Father and Child had not been alone during the weekend. The County stipulated that Paternal Grandfather would corroborate her testimony. Finally, Father presented the testimony of William G. Allenbaugh, MA, CAC, a psychologist and expert in the area of sexual abuse, who testified in person about his psychological testing of Father. Allenbaugh opined that Father did not meet the profile of a sexual abuser or a person who would commit such an act in retaliation against Mother. Father also offered polygraph test reports that had been administered by the Pennsylvania State Police; Father passed but Mother did not.

The Department's administrative law judge (ALJ) recommended the denial of Father's expungement request. The ALJ credited the testimony of the County's witnesses. The ALJ reasoned that the hearing statements of Child and his hearsay statements to Dr. Nathan and Dr. Ilustre constituted " substantial evidence to support [the County's] burden of proof that the indicated report against [Father] is being correctly maintained." R.R. 203a. The ALJ found Father credible, with the exception of his denial of the act of anal penetration of Child, and she made no credibility decisions as to Paternal Grandmother or of Father's expert witness, Allenbaugh. The ALJ admitted the polygraph reports for purposes of appellate review but noted that such reports are generally inadmissible. The ALJ went on to explain that even had she accepted Father's polygraph results as having probative value, her recommendation to deny Father's appeal would not change. R.R. 204a.

Page 452

Father appealed to the Bureau of Hearings and Appeals (Bureau), and it adopted the ALJ's proposed adjudication in its entirety. Father then sought reconsideration from the Secretary of Public Welfare, which was granted on February 9, 2011, for the resubmission of legal arguments " limited to the facts contained in the record developed before the [ALJ]." R.R. 212a.

On August 2, 2011, the Secretary upheld the Bureau. In doing so, the Secretary made additional factual findings, as follows:

37. [Paternal Grandmother] testified in support of [Father]. She stated that she and [Paternal Grandfather] were visiting [Father] and [Child] at [Father's] home during the entire weekend in question. Her testimony indicates that she did not observe anything unusual occurring between [Father] and [Child] and presents a timeline that precludes time for the incident to have occurred.
38. [Paternal Grandmother's] testimony was not credible.
39. [Child's] description of the incident of sexual abuse has been consistent since the initial disclosure which was very shortly after the alleged incident. Over time additional detail has been added, but this is to be expected in a child of three and one-half to four years of age and the additional details have not undermined the elements of the alleged sexual abuse. Therefore, the Subject Child's testimony carries substantial weight.
40. Testimony by the Department's other witnesses, [Mother], Dr. Ilustre and Dr. Nathan was credible, compelling, well balanced and not undermined during cross or by subsequent testimony. This testimony established the consistency of the Subject Child's description of the incident prior to the hearing. Accordingly, this evidence was also given substantial weight.
41. Dr. Allenbaugh testified that he performed a series of tests on [Father] and that no evidence was found to suggest [Father] has a persistent sexual interest in children nor was there evidence of paraphilia in his sexual background. This testimony, while credible and authoritative, is of no probative value. [Father] is not accused of a pattern of interests, behaviors or criminogenic thinking, but of a single incident of inappropriate sexual contact. Dr. Allenbaugh did not offer a specific opinion regarding this alleged offense and as such his testimony cannot be afforded any weight.

R.R. 213a.

On March 8, 2013, this Court, on reconsideration, vacated the Secretary's adjudication and remanded the matter to the Department. The remand was necessitated by a ruling from our Court, issued after the Department's proceeding, which held that the standard for such cases is clear and convincing evidence. See G.V. v. Department of Public Welfare, 52 A.3d 434 (Pa. Cmwlth. 2012) ( G.V. I ), reversed, 91 A.3d 667 (Pa. 2014).[3] After remand, the Secretary issued a new adjudication that replaced her earlier factual findings, which read as follows:

Page 453

37. [Paternal Grandmother's] testimony was credible, except for the timeline that she presented which precludes time for the incident to have occurred.
38. The Subject Child's description of the incident of sexual abuse has been consistent since the initial disclosure which was very shortly after the alleged incident. Over time additional detail has been added, but this is to be expected in a child of three and one-half to four years of age and the additional details have not undermined the elements of the alleged sexual abuse. Therefore, the Subject Child's testimony was clear and convincing.
39. Testimony by the Department's other witnesses, [Mother], Dr. Ilustre and Dr. Nathan was credible, compelling, consistent, and not undermined during cross examination or by subsequent testimony. This testimony established the consistency of the Subject Child's description of the incident prior to the hearing. Therefore, this testimony was also clear and convincing.
40. Dr. Allenbaugh testified that he performed a series of tests on [Father] and that no evidence was found to suggest [Father] has a persistent sexual interest in children nor was there evidence of paraphilia (defined as abnormal sexual behaviors) in his sexual background. This testimony, while credible and authoritative, is of no probative value. [Father] is not accused of a pattern of interests, behaviors or criminogenic thinking, but of a single incident of inappropriate sexual contact. Dr. Allenbaugh did not offer a specific opinion regarding this alleged offense and as such his testimony cannot be afforded any weight.

R.R. 275a-276a. The Secretary substituted the words " clear and convincing" where " substantial" had previously appeared. The Secretary also revised her earlier rejection of Paternal Grandmother's testimony; this time the Secretary found Paternal Grandmother credible, with the exception of " the timeline." Otherwise, the Secretary's adjudication remained unchanged. Father petitioned for this Court's review.[4]

On appeal, Father contends that the Secretary of Public Welfare erred. He argues that the County's evidence consisted of the " inconsistent and incredible" testimony of a four-year-old child, which testimony is not supported by physical evidence. Father also argues that Child's testimony is outweighed by the countervailing evidence, i.e., the expert testimony of the psychologist, Allenbaugh; the consistent testimony of adult witnesses that was found credible for the most part; and Father's successful polygraph. Accordingly, Father contends that the County did not make its case. The County counters that Father simply disagrees with the factual findings and credibility

Page 454

determinations made by the ALJ and Secretary, and these findings cannot be disturbed on appeal because they are supported by substantial evidence.

Standard of Proof

Under the Child Protective Services Law, a county may file an indicated report of child abuse that names a perpetrator of child abuse. 23 Pa. C.S. § 6338(a).[5] The indicated report is based solely on the county's investigation.[6] A hearing does not take place unless and until the perpetrator challenges the report. 23 Pa. C.S. § 6341(c). There is no administrative pleading that precedes this hearing that identifies the facts the county intends to prove, and there is no pre-hearing discovery. The hearing, where the county bears the burden of production and proof, is conducted by an ALJ appointed by the Department. The ALJ makes recommended findings of fact and conclusions of law, which may be accepted or rejected by the Bureau. From there, either party may seek reconsideration from the Secretary of Public Welfare.

In G.V. I, this Court held that a county must prove its case by the clear and convincing evidence standard of proof, as opposed to the preponderance of evidence standard. We explained that this more exacting standard was appropriate because of the indicated report's impact upon an alleged perpetrator's ability to earn a living as well as the " potential loss of reputation and stigma associated with ...


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