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E.M. v. Department of Human Services

Commonwealth Court of Pennsylvania

July 19, 2018

E.M., Petitioner
Department of Human Services, Respondent J.K., Petitioner
Department of Human Services, Respondent

          Argued: June 4, 2018




         In these consolidated cases, E.M. (Boyfriend) and J.K. (Mother) petition for review of an order of the Department of Human Services (Department), Bureau of Hearings and Appeals (BHA), which adopted a recommendation by an Administrative Law Judge (ALJ) to deny their respective appeals seeking to expunge an indicated report of child abuse from the ChildLine and Abuse Registry.[1] The indicated report named Mother and Boyfriend as perpetrators of child abuse, as defined by the terms of the Child Protective Services Law (CPSL), 23 Pa. C.S. §§6301-6386. The report identified Mother's then two-year-old son, Z.L. (Child), as the victim of the abuse. Wyoming County Human Services, Inc., formerly known as Wyoming County Children and Youth Services (CYS), [2] filed a notice of intervention in each appeal. For the reasons that follow, we affirm the BHA's order.

         I. Background

         A. Hearing (Generally)

         The ALJ found the following facts. The alleged abuse occurred when Child, born in January 2014, was approximately two-and-a-half years old. Boyfriend is Mother's paramour and resided with Mother and her children at the time the abuse occurred. Mother shared custody with Z2L (Father), Child's biological father.

         In September 2016, CYS received a referral regarding concerns over physical abuse of Child. CYS assigned Kyle Verrill as the Child Protective Services Caseworker (Caseworker). During the investigation, Caseworker and other CYS personnel took and viewed photographs of Child's injuries. They also spoke with Mother and medical personnel and reviewed Child's medical records.

         Caseworker learned that Child spent Friday, September 2, and Saturday, September 3, 2016, until 2 p.m. in Father's custody. Thereafter, Child was in the custody of Mother from 2 p.m. on September 3, through Monday, September 5, 2016. Boyfriend was present in the home with Child during that time.

         On September 5, 2016, Mother took Child to Geisinger-Wyoming Valley Hospital with a left leg injury. Geisinger immediately flew Child to its medical center in Danville, Pennsylvania. Based on X-rays, lab tests, a CT scan and physical examinations, Geisinger's doctors diagnosed Child with a left femur fracture, lacerated liver and multiple bruises to different areas of his body, which were in various stages of healing.

         In November 2016, CYS filed an Investigation/Assessment Outcome Report (Investigation Report), also referred to as a CY-48 Report. See ALJ Hr'g, 6/16/17, Ex. C-1; E.M.'s Reproduced Record (R.R.) at 25a-29a. The Investigation Report indicated Mother and Boyfriend as perpetrators of physical abuse to Child.

         In December 2016, Boyfriend and Mother each appealed the indicated report. An evidentiary hearing before the ALJ followed.

         B. CYS' Medical Testimony

         At the hearing, the parties stipulated to the qualifications of CYS's medical expert, Dr. Edward Fannon (CYS's Pediatrician), as an expert in pediatric medicine. CYS's Pediatrician testified by telephone. He treated Child during his stay at Geisinger-Danville. Mother told CYS's Pediatrician that on the Monday morning she brought Child to the hospital, Child awoke in the morning with left leg swelling. However, on the previous Saturday evening, Mother took Child to a fair, where he ran around and played with his sister and other children. Mother also initially told CYS's Pediatrician that Child lived with her and his sibling, and that there were no other adults present.

         Upon examination, CYS's Pediatrician observed multiple bruises, in different stages of healing, to Child's ear, chest, abdomen, groin and right thigh. The bruise to the ear was to the pinna and the scalp behind the ear. The bruise indicated that either someone intentionally grabbed the ear with a knuckle pressing on the scalp, or forcefully pinned the ear against the scalp.

         CYS's Pediatrician further testified that although a fall could have caused the bruise to Child's chest, a child's torso is usually spared because a child will break the fall with his or her hands. The chest bruise could have been caused by someone or something striking Child. CYS's Pediatrician also testified the bruise-like abrasion to Child's groin could have been caused by a fall or some type of trauma. The bruises to Child's thigh were not likely from a fall as most children bruise their shins, not their thighs.

         CYS's Pediatrician further testified that Child's chest and thigh bruises could have happened as early as the Friday before his hospital admission. However, the bruising to the ear occurred more recently. Mother told CYS's Pediatrician that she noticed various bruises on Child over the past two months after he began visitation with Father. CYS's Pediatrician also observed that laboratory testing ruled out a Factor V clotting disorder as a cause of Child's bruising.

         In addition, CYS's Pediatrician testified he ordered lab testing and a CT scan because Child had a tender abdomen. The test results revealed a lacerated liver. The doctor testified it takes a significant amount of force to cause a liver laceration. A fall from a couch or chair would not cause a liver laceration. If the liver laceration occurred a day or two prior to the femur fracture, Child would not have been playful and happy during that time.

         CYS's Pediatrician acknowledged that a fall from an all-terrain vehicle (ATV) could cause a liver laceration. However, if Child fell from a moving ATV and lacerated his liver, he would have been in a significant amount of pain. Moreover, abrasions, rather than bruising, should have been present.

         CYS's Pediatrician also noted that Child suffered from a comminuted oblique fracture of the shaft of the left femur, associated with a rotational component. The doctor placed Child in a spica cast for several weeks. This limited Child's ability to move his injured leg or ambulate.

         Ultimately, CYS's Pediatrician opined that Child's liver and left femur injuries were the result of child abuse. CYS's Pediatrician further opined that Child would have experienced pain and discomfort from the inflicted injuries.

         C. Mother's Pediatrician's Testimony

         In response, Mother presented medical testimony via telephone from Dr. Vincent Deeney (Mother's Pediatrician), a physician board certified in the field of pediatric orthopedic medicine. Mother's Pediatrician met with Child's family five weeks after Child's femur fracture. Mother's Pediatrician provided a second opinion as to the mechanism of Child's leg injury.

         Based solely on a review of Child's X-rays and a history provided by Child's grandmother, Mother's Pediatrician opined that Child's left femur injury could have occurred when Child's sibling pushed him off a couch.

         On cross-examination, however, Mother's Pediatrician testified that at the time he issued his report, he had not reviewed the medical records of Child's treatment at Geisinger. Therefore, he did not know Child suffered a liver laceration and had bruising to multiple parts of his body. Mother's Pediatrician further testified that in view of Child's femur fracture, lacerated liver and multiple bruising, he would have been concerned about child abuse.

         D. Mother's Testimony

         Mother, 26 years old at the time of the hearing, testified she is Child's primary caretaker. In July 2016, two months before the alleged abuse, Mother became concerned about Child's frequent bruising and began taking pictures to document it. Mother stated she also scheduled and attended doctor appointments trying to determine if someone was hurting Child.

         In addition, Mother testified that she and her mother have a Factor V clotting disorder, which may cause Child to bruise easily. Mother also expressed concerns that Child's Father was injuring him during visitation. Because of the bruising, Mother took Child to a doctor in July 2016. CYS caseworker Kelly Riley contacted Mother at that time. Mother told the caseworker that she did not know what caused the bruising. Mother stated she discussed the bruising with Father on multiple occasions, and he became angry with her.

         During the afternoon of Saturday, September 3, 2016, Father returned Child to Mother a day early. Father told Mother that Child misbehaved and that he had other things to do. Mother learned that Child rode on an ATV with Father. Mother suggested that Child could have been injured when riding an ATV with Father during his custody on September 2-3, 2016.

         On the evening of September 3, 2016, Mother and Boyfriend took Child to the county fair. Child appeared happy and played with the couple's other children. The next evening, Mother and Boyfriend returned to the fair and left Child with a babysitter. When Mother picked Child up from the babysitter, he had no trouble walking.

         Mother further testified that her five-year-old daughter admitted that she pushed Child off a couch while playing with him on the morning of September 5, 2016, causing the left leg injury. Child would not use his leg, which became swollen.

         However, on cross-examination Mother admitted that CYS caseworkers came to her home and met with her, her two children and Boyfriend in July 2016. Mother, her two children and Boyfriend again met with a CYS caseworker in their home in August 2016. Mother admitted that she did not report that she suspected Father of child abuse prior to September 6, 2016.

         E. Boyfriend; Child

         Boyfriend did not testify or present any witnesses. Because of his young age, Child did not testify.

         F. Credibility Findings

         The ALJ accepted as credible the testimony of Caseworker, CYS's Pediatrician, and Mother's Pediatrician. The ALJ rejected Mother's testimony regarding her explanations of Child's injuries.

         G. Applicable Law

         In discussing the applicable law, the ALJ first noted that Section 6303(b.1) of the CPSL defines "child abuse" as the intentional, knowing or reckless causation of bodily injury to a child through any recent act or failure to act. 23 Pa. C.S. §6303(b.1). Section 6303(a) defines "perpetrator" as a "person who has committed child abuse," including: "(i) [a] parent of a child" and "(iii) [a] paramour or former paramour of the child's parent." 23 Pa. C.S. §6303(a)(i), (iii). The Department, through CYS, must file an "indicated report" of child abuse if it determines that substantial evidence exists of the alleged abuse by a perpetrator. Id. This determination may be based on (i) available medical evidence; (ii) the Child Protective Services (CPS) investigation; or (iii) an admission of acts of abuse by the perpetrator. Id.

         In an expunction case, the burden is on CYS to present evidence that outweighs any contrary evidence that the petitioner committed child abuse. L.S. v. Dep't of Pub. Welfare, 828 A.2d 480 (Pa. Cmwlth. 2003). Substantial evidence, in the context of a child abuse proceeding, has been defined as "evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." 23 Pa. C.S. §6303(a); A.O. v. Dep't of Pub. Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). In determining whether a finding of fact is supported by substantial evidence, a reviewing court must give the prevailing party the benefit of all reasonable and logical inferences that may be drawn from the evidence. R.W. v. Dep't of Human Servs., 128 A.3d 839 (Pa. Cmwlth. 2015); S.T. v. Dep't of Pub. Welfare, 681 A.2d 853 (Pa. Cmwlth. 1986).

         Section 6381(d) of the CPSL, 23 Pa. C.S. §6381(d), relating to prima facie evidence of abuse in court proceedings, provides:

Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by the reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child.

         The ALJ also reviewed our Supreme Court's decision in In re L.Z., 111 A.3d 1164 (Pa. 2015). The Court in L.Z. examined prior intermediate appellate interpretations of Section 6381(d), which limited the prima facie presumption of abuse to one parent who was present at the time of the injury. The Court concluded these prior decisions were too restrictive. Like here, the situation in L.Z. involved multiple caregivers. Ultimately, the Supreme Court determined that, when applicable, the presumption of abuse in Section 6381(d) requires each parent or person responsible for the child's care to provide evidence rebutting the presumption that he or she actually inflicted the injury or failed in his or her duty to protect the child.

         Interpreting L.Z., this Court observed that an individual could rebut the presumption "potentially by testifying that [he] gave responsibility for the child to another person about whom [he] had no reason to fear." T.H. v. Dep't of Human Servs., 145 A.3d 1191, 1203 (Pa. Cmwlth. 2016) (citation omitted). In cases where multiple caregivers testify they gave responsibility for the child to another person whom they had no reason to fear, the fact-finder must weigh the evidence and render a credibility determination. Id.

         Further, the ALJ recited various rules applying to fact-finding in expunction cases. Among those rules, the ALJ highlighted the permissible adverse inference arising in certain cases where a party fails to call an available witness with special knowledge who would naturally be in his interest to produce, without satisfactory explanation. The ALJ cited Murphy v. Department of Public Welfare, White Haven Center, 480 A.2d 382 (Pa. Cmwlth. 1984). ALJ's Op., 7/26/17, at 13.

         H. ALJ's Conclusions

         In her decision, the ALJ noted Caseworker and CYS's Pediatrician credibly testified in a straightforward manner, lacking interest in the outcome of the case. Following his investigation, Caseworker's report indicated Mother and Boyfriend as perpetrators of physical child abuse. Caseworker based his decision on his review of Child's medical records, discussions with medical staff and an interview with Mother.

         CYS's Pediatrician, a specialist in pediatric medicine, indicated Child suffered a fracture to his left femur and a liver laceration, and he had multiple bruises in various stages of healing on different parts of his body. CYS's Pediatrician testified that these types of injuries impaired Child's ability to walk and caused significant pain. Therefore, CYS's Pediatrician opined that Child unquestionably had been the victim of abuse. The ALJ found that Child's multiple injuries, and the lack of a plausible explanation for them, supported CYS's Pediatrician's opinion.

         The ALJ also credited Mother's Pediatrician's medical testimony. Mother's Pediatrician reviewed Child's X-rays and took a history from Child's grandmother. He opined that Child's femur fracture could have occurred when his sibling pushed him off the couch. However, at the hearing, Mother's Pediatrician testified he did not review Geisinger's medical records and was thus unaware of Child's liver laceration or his multiple bruises. In light of these additional injuries, Mother's Pediatrician testified he would have concerns that Child was the victim of child abuse.

         In sum, the ALJ reasoned that the credible medical testimony, coupled with the medical records and photographs introduced at the hearing, demonstrated that Child's injuries impaired his ability to walk and caused him substantial pain. Therefore, the ALJ determined CYS met its burden of showing that Child suffered bodily injury. As such, the ALJ determined the evidence supported a finding that Child suffered physical abuse.

         Citing L.Z., the ALJ determined the evidence shows Mother and Boyfriend were the caretakers present at the time the abuse occurred. Mother had custody of Child from 2:00 p.m. on September 3, 2016, until she took him to the hospital on September 5, 2016. During this time, Child was also in the presence of Boyfriend, who lived with Mother and Child. In addition, Mother outlined Child's activities during this period. On September 3-4, 2016, Child had no trouble walking and expressed no pain. It was not until the morning of September 5, 2016, that Child exhibited pain and an inability to walk.

         In accord with L.Z., the ALJ concluded there was prima facie evidence that Mother and Boyfriend caused Child's injuries. Consequently, the burden shifted to Mother and Boyfriend to rebut the presumption that they abused Child.

         Although Mother testified in an attempt to rebut the presumption that she abused Child, the ALJ rejected Mother's theories regarding Child's injuries as implausible and contrary to the credible medical testimony. In particular, Mother testified that she and her mother have a Factor V clotting disorder, which might have been passed on to Child. This would account for his bruising. Lab tests, however, were negative for the Factor V disorder.

         The ALJ also noted CYS's Pediatrician testified that some of the bruises appeared to be intentionally inflicted. CYS's Pediatrician also disputed Mother's theory that Child could have fallen off his Father's ATV earlier that weekend and that such a fall could have caused his liver laceration. Although CYS's Pediatrician admitted that a fall from an ATV could cause a liver laceration, he testified that Child would have been in severe pain. Moreover, CYS's Pediatrician testified that Child would have suffered more abrasions than bruises from such a fall.

         Further, although CYS's Pediatrician acknowledged that a fall from the couch could have caused Child's femur fracture, he opined that it would be unlikely that Child suffered separate accidental incidents causing unrelated injuries. Therefore, the ALJ rejected as not credible Mother's testimony regarding the possible causes of Child's injuries.

         The ALJ also observed that Boyfriend did not submit any evidence or testimony to rebut the presumption that he committed child abuse.

         Having determined that Boyfriend and Mother failed to successfully rebut the presumption that they were the individuals who committed child abuse upon Child, the ALJ recommended that Boyfriend and Mother's appeals be denied. The same day the BHA issued an order adopting the ALJ's recommendation. Boyfriend and Mother each filed petitions for review.[3]

         II. Issues

         A. Boyfriend

         Boyfriend contends the ALJ erred in determining CYS met its burden of proof with regard to Boyfriend where it failed to establish that he and Mother were paramours or that he resided with Mother at the time of the alleged abuse. More specifically, Boyfriend asserts the ALJ erred or abused her discretion: (a) by relying on Caseworker's testimony that Boyfriend resided with Mother and was Mother's paramour; and (b) by relying on Mother's testimony to prove Boyfriend and Mother were in a relationship and living together at the time of the alleged abuse. Boyfriend also argues that even assuming he and Mother lived together as paramours, no proof existed that he was a person responsible for Child's welfare. Further, even assuming the prima facie presumption of child abuse in 23 Pa. C.S. §6381(d) applies to him, he nevertheless rebutted the presumption because Mother testified he was not responsible for Child's welfare at that time.

         Further, Boyfriend contends the ALJ erred or abused her discretion by accepting CYS's post-hearing brief because he did not receive the hearing transcript prior to the submission deadline for post-hearing briefs, which resulted in his inability to file a post-hearing brief.

         B. ...

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