Submitted April 25, 2014
Appealed from No. BHA No. 021-10-0933. State Agency: Bureau of Hearings and Appeals.
Vincent P. DiFabio, Paoli, for petitioner.
Richard H. Morton, West Chester, for intervenor, Chester County Children, Youth & Families.
BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY JUDGE LEAVITT. Senior Judge Friedman concurs in the result only.
MARY HANNAH LEAVITT, Judge
A.P. (Uncle) petitions for review of an adjudication of the Department of Public Welfare denying his request to expunge an indicated report that named him as a perpetrator of child abuse. In so holding, the Department's Bureau of Hearings and Appeals adopted, in its entirety, the recommended adjudication of the Administrative Law Judge (ALJ), which found that Uncle had sexually abused his nephew (Child), seven years earlier. We vacate and remand.
Child was born in 1992, and is the adopted son of Father and Mother. In high school, Child developed behavioral problems that led to an expulsion from high school and a drug arrest. In 2010, he entered an in-patient drug treatment facility. While a patient, Child accused a staff counselor of making a sexual advance. In the course of the investigation of this accusation, Child disclosed that Uncle had sexually abused him five years earlier at a time when Uncle was living with Child's family. Uncle moved in with the family in September 2005 because of his marital problems and moved out in August 2006.
The County Office of Children, Youth and Families (County) investigated Child's claim under Section 6338(a) of the Child Protective Services Law. On June 9, 2010,
the County filed an indicated report of child abuse against Uncle. The District Attorney has decided not to file criminal charges against Uncle. Uncle requested expungement of the indicated report, on which the ALJ conducted two days of hearings.
The first day of the hearing, March 7, 2013, started with brief testimony from the County's investigator. She explained that she interviewed both Child and Uncle before making her decision to issue an indicated report of abuse by Uncle.
Next, Child testified. He described the basement in his parents' home where Uncle stayed. Located in the basement was a recreation room with a kitchen, videogames, music equipment and a television and sofa; a second room used by the family for the computer; and a bedroom with bathroom. Two staircases led down to the basement from the first floor. The doors to the basement stairs do not have locks. The recreation room has sliding glass doors that open onto a patio and swimming pool.
Child testified about the first incident of alleged abuse. He stated that one evening he let Uncle into the house late at night. Uncle was in a business suit when he arrived home from work, but then changed into more comfortable clothing. The two watched a DVD entitled " When a Stranger Calls." Reproduced Record at 91a (R.R. ). Uncle gave Child a " Mike's Hard Lemonade" that contained alcohol. While sitting on the floor watching the DVD, Uncle reached over and touched Child's " crotchal area." R.R. 98a. Then, at some point, Child's penis became exposed, i.e., " out." Child stated that he did not know " how that part came about." R.R. 100a. Specifically, Child could not say if it was Uncle or Child who exposed Child's penis. Id. Uncle masturbated, but Child could not say which " of those two things happened first." R.R. 101a. The touching stopped without any talking then or afterwards. These incidents continued sporadically " once every other week" in the basement. R.R. 103a. Child did not remember if these incidents occurred in places other than in the basement. R.R. 104a.
Child testified that he became " more comfortable" with masturbation, stating:
A. As far as -- just overall. That, you know -- and I -- the more comfortable I guess I became with, like kind of just my -- doing things to myself and --
Q. When you were doing things to yourself, was he doing anything?
A. Yeah. Again, not every time. It was sometimes -- he was mas- I didn't really look over too much.
A. Maybe. Most of the time -- actually, I rarely ever did. So --
Q. Did you ever see him doing anything?
A. Well, like, if I'm -- I see it, like, out of the corner of my eye but I -- it's not necessarily that I always paid attention.
Q. Okay. What did you see out of the corner of your eye?
A. Well, like a motion. Like -- like, the motion of masturbation. I -- again, even at the time I don't know if I was cognizant of it. I don't know if I -- remember happening and when I became cognizant of what that was, but now I -- now I --
Q. Was there ever any oral sex that occurred?
A. Not that I remember.
On cross-examination, Child was unable to date the first incident of this side-by-side masturbation. He could not say whether it was before or after Christmas, but he stated that it took place after Uncle had been living with the family for a while. He could not recall whether he was wearing sweatpants or pajamas, a t-shirt or sweatshirt. Child testified that he did not see Uncle's penis during the above-described incident. R.R. 125a. To the police, however, Child stated that Uncle had exposed himself. R.R. 21a. Child stated that he was 13 when the first incident occurred but told juvenile probation officers that he was 11. R.R. 135a. He also told police that 30 to 40 such incidents occurred over a six to seven month period. On redirect by the County, Child again stated that what he saw was a " masturbation motion" by Uncle but not his penis. R.R. 138a.
Next the County called Father to testify. Father stated that one time, after Uncle moved out of the house, Uncle invited Child and Child's brother to join Uncle and Uncle's son for a " boys night." R.R. 149a. Child declined the invitation. Otherwise, Father did not notice Child " shying away" from Uncle. R.R. 150a. Father believed Child's accusation.
Testifying for Uncle was D.C. (Girlfriend), with whom Uncle had a relationship during the time he lived with Child's family. Girlfriend testified that she and Uncle started dating in March 2005. When Uncle's wife discovered their relationship, Uncle moved out of his marital home and began spending most nights at Girlfriend's house. R.R. 186a. Girlfriend testified that after Uncle obtained partial custody of his son in January 2006, he ...