Argued: June 4, 2018
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ELLEN
CEISLER, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior
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. 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),  filed a notice of intervention in each
appeal. For the reasons that follow, we affirm the BHA's
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
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.
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.
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
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.
December 2016, Boyfriend and Mother each appealed the
indicated report. An evidentiary hearing before the ALJ
CYS' Medical Testimony
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.
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.
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
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
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.
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.
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.
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.
Mother's Pediatrician's Testimony
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.
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
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.
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
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.
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.
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.
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.
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.
did not testify or present any witnesses. Because of his
young age, Child did not testify.
accepted as credible the testimony of Caseworker, CYS's
Pediatrician, and Mother's Pediatrician. The ALJ rejected
Mother's testimony regarding her explanations of
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.
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).
6381(d) of the CPSL, 23 Pa. C.S. §6381(d), relating to
prima facie evidence of abuse in court proceedings,
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.
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.
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
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.
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
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
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
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
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
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
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.
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.
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.
also observed that Boyfriend did not submit any evidence or
testimony to rebut the presumption that he committed child
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
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.
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.