J. S. v. Department of Human Services

          Argued: December 13, 2018

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge

          OPINION

          MICHAEL H. WOJCIK, JUDGE.

         J.S. (Father) petitions for review of the November 3, 2017 order of the Department of Human Services (Department), Bureau of Hearings and Appeals (BHA), which adopted the recommendation of an administrative law judge (ALJ) denying Father's appeal to expunge an indicated report of child abuse. We reverse.

         I. Facts and Procedural History

         Father and Je.S. (Mother) are the biological parents of Ja.S. (Child).^[1]Father and Mother divorced in 2013 and share custody of Child. In November 2015, Child was exhibiting behavior problems, and he was asked to leave the daycare center he attended. F.F. No. 2. Father and Mother jointly decided not to return Child to that center. F.F. No. 3. Child's behavior issues continued, and Father "tried everything" to correct Child's behavior. F.F. No. 4. Father had discussions with Child about his conduct and took away privileges and other things. Id. Father gave Child a stress ball to manage his anger, and Father tried various de-escalation techniques recommended by a school psychologist. Id.; Reproduced Record (R.R.) at 252a-53a.

         Father and Mother enrolled Child at a new daycare, where Child's behavior problems persisted. On February 3, 2016, Father received a call and an email from the daycare informing him that Child had been misbehaving and needed to be picked up. F.F. No. 8. The email stated that Child's misconduct included four specific behaviors: disrespecting his teachers; climbing on furniture; taking toys away from and being aggressive toward another child by trying to slam the child's head into the ground and laughing; and "potty talk." F.F. No. 9. Father picked Child up from the daycare shortly after 3:00 p.m. F.F. No. 8.

         When they arrived home, Father sent Child to his room. Father decided to try corporal punishment, a strategy his own parents had used, to help modify Child's behavior. F.F. No. 10. Father had never spanked Child before; on his way to Child's room, Father smacked his own leg multiple times "to make sure he did not hit [Child] too hard." F.F. Nos. 11, 43. Father pulled Child's outer pants down, read Child the email, bent Child over his knee, and hit Child with an open palm four times on his buttocks; afterward, Father hugged Child and they both cried. F.F. No. 10.

         At approximately 3:40 p.m., Father took Child with him to basketball practice at the school where Father is an assistant coach. F.F. No. 12. A few minutes after they arrived, Father's wife, who is employed at the same school as Father and Mother, picked Child up. F.F. No. 13. Later that evening, when Father's wife gave Child a bath, Father noticed red marks on Child's buttocks. F.F. No. 14. Although Child did not complain of discomfort to Father or Father's wife, Father called his parents. F.F. No. 15. Based on his parents' advice, Father applied ice to Child's buttocks that night and the following day; Child protested that the ice was cold. F.F. No. 16. Other than not attending daycare on Thursday and Friday, February 4-5, 2016, Child went about his normal activities those days, and he rode his bike on Saturday, February 6, 2016. F.F. No. 17.

         Father did not contact Mother to advise her that he spanked Child or that he kept him home for two days. F.F. No. 18. Mother and Father "have a somewhat acrimonious relationship, do not communicate well and usually have no contact with each other when one of them has custody of [Child]." F.F. No. 19.

         Child returned to Mother's home on Monday, February 8, 2016. F.F. No. 20. When Child undressed for a bath, Mother was shocked to see big bruises on his buttocks. F.F. No. 21. Child ran to his room and said that Father hit him so hard that it hurt; he wanted to scream and yell and hit Father back; and Father had put ice on his bottom. F.F. No. 22. Mother took photographs of Child's buttocks that evening. F.F. No. 23. She recalled that Child went about his normal activities that night and had no complaints of pain or any issues with sitting. F.F. No. 24.

         On the night of February 8, 2016, the York County Office of Children, Youth and Families (CYF) received a referral alleging that Child had been physically abused by Father on February 3, 2016, when Father spanked Child. R.R. at 196a; 5/31/17 Ex. C-5. CYF intake caseworker Irene Franzis initiated an investigation by interviewing Mother and Child on February 9, 2016. She then contacted Detective Donald Hopple of the York Area Regional Police Department, who assisted CYF with investigations. R.R. at 200a. Detective Hopple interviewed Father on February 10, 2016. R.R. at 43a. Thereafter, Detective Hopple forwarded the case to an assistant district attorney (ADA), who directed him to file a citation against Father for harassment based on the spanking incident.^[2] R.R. at 46a.

         A month later, on March 9, 2016, Mother sought a Protection from Abuse order (PFA) based on the February 3, 2016 spanking incident. F.F. No. 29. Custody litigation was ongoing at the time; the PFA was dismissed when Child's parents entered into a new custody agreement. F.F. No. 30. There was no disruption to the custody or visitation schedule as a result of the allegations or the PFA. F.F. No. 31.

         As part of CYF's investigation, Ms. Franzis interviewed Father, his wife, and Child; spoke with Child's play therapist; consulted with law enforcement; attended the PFA hearing; reviewed Mother's photographs of Child's buttocks; took a photograph of Child's buttocks and observed brownish-green markings; noted that Child did not seem to be fearful of Father; and received no information that Child suffered any impairment of functioning.^[3] F.F. No. 28.

         On March 15, 2016, CYF issued an indicated report of physical child abuse against Father to the ChildLine & Abuse Registry.^[4] On March 21, 2016, Father pled guilty to a summary offense citation of harassment. On or about April 12, 2016, Father appealed the indicated report and requested an expunction hearing. On April 14, 2016, CYF changed the status of its report to founded, ^[5] based on Father's guilty plea of harassment.

         A hearing was held in June 2016 for the limited purpose of determining whether CYF properly amended the report. On August 12, 2016, an ALJ recommended that Father's appeal be sustained and that the founded report of child abuse be expunged. Certified Record, Item No. 5. The BHA adopted the ALJ's findings by August 23, 2016 order.

         Thereafter, CYF filed an application for reconsideration with the Secretary of Human Services (Secretary) and requested a hearing on the former indicated report of child abuse. The Secretary granted reconsideration. On February 28, 2017, the Secretary issued an order upholding the expungement of the founded report and remanding the matter to the BHA for a hearing on the merits of Father's appeal of the indicated report.

         The ALJ held a hearing on May 3, 2017. H.M., Child's daycare teacher, testified that Child had been in the daycare program since November 30, 2015. She described Child as having ongoing behavioral issues, including verbal and physical aggression. H.M. said that on February 3, 2016, she notified Child's parents that Child was misbehaving and needed to be picked up from daycare. She stated that Child was verbally abusive to the teachers, was taking toys from other children and at one point tackled another child. R.R. at 23a-26a.

         Detective Hopple testified that he contacted Father on February 10, 2016, and met with him that morning. Father explained that he received an email stating that Child was acting very aggressively with other children. Father said everything he had tried to improve Child's behavior, such as timeouts and removal of privileges, had failed. Father admitted that he spanked Child. He described to Detective Hopple how he first hit himself on the leg to see how hard he might be spanking his son. Detective Hopple testified that Father felt terrible and expressed remorse for spanking Child. He said Father reported being shocked when he saw the marks on Child's bottom. Father concluded that the spanking was obviously a mistake and said that he "did overdo it." R.R. at 45a. Detective Hopple said he suggested that Father take parenting classes and they discussed that for a while before finishing the interview. R.R. at 43a-46a.

         Child was five-and-a-half years old at the time of the hearing. Child testified that he liked kindergarten, playing with his dad, and football. When asked what he would like to do on his upcoming birthday, Child said he would like to wrestle with his dad. Child said that when he gets in trouble, he normally is sent to his room. He remembered that Father once spanked him, but he did not recall why. Child testified that Father hit him with an open hand on his bottom and it really hurt. He said it happened just one time in his room and that Father struck him just once. He denied that anybody gave him ice and initially did not remember what he did afterwards or whether it hurt the next day. R.R. at 67a-90a.

         On cross-examination, Child testified that after the spanking, Father took him to basketball practice. Child said he sat and watched practice and was able to sit and ride his bike and do other activities. Child subsequently testified that he did not remember what he did the day after he was spanked or where he was before he arrived home with his dad. R.R. at 92a-99a.

         Responding to questions from the ALJ, Child testified that he remembered hurting himself when he was about four years old and fell off his bike. He was wearing shorts and his knees hit rocks on the ground. Child said it hurt but he could not say how much. When the ALJ asked Child if the spanking was the worst pain Child ever felt, he said yes. Then he answered that his bottom did not hurt at all while he was sitting on his bed after the spanking. Immediately thereafter, Child said that he cried for a long time because it hurt a lot. He next stated that his bottom did not hurt when he was sitting in the basketball stands. Child concluded his testimony by stating that he "felt good" about both of his parents and that no one told him what to say at the hearing. R.R. at 101a-11a.

         Mother testified that under the parents' custody arrangement, Child was with her on Mondays and Tuesdays, with Father on Wednesdays and Thursdays, and the parents alternated custody on weekends. Mother explained that she saw the February 3, 2016 email from daycare, but Father picked Child up because it was his custodial day.

         Mother stated that she picked Child up from daycare in the late afternoon on February 8, 2016. She said she first noticed something was wrong at approximately 7:00 p.m., when Child was getting ready for a bath, and she saw big bruises on his bottom. Mother described Child as ashamed and said he covered his bottom and ran back to his room. Child told her that Father had hit him and that it hurt so bad he wanted to yell and scream and hit him back. Child also said that it was his fault. Mother testified that she took pictures of Child's bottom on the evening of February 8 and again the following day. Mother noted that Child returned to his ordinary activities on February 8 and February 9, 2016. R.R. at 121a-28a, 130a-44a.

         Mother testified that she allowed Father to have custody of Child on the following Wednesday and Thursday because she believed he was remorseful. She said she did not call him immediately afterward and has never discussed the incident with him. Mother stated that she had no motivation to cause Father to lose his job as a teacher and said that she tried very hard to keep the situation out of their school. She said that she eventually told a school administrator what was happening on the advice of her attorney. R.R. at 145a-57a, 169a-70a.

         Ms. Franzis testified that she made a finding of child abuse based on Child's age, Child's report that Father spanked him and it hurt, the visible bruising on Child's bottom five and six days after the spanking, conversations with Father and his wife, the fact that ice had been applied to Child's bottom, and the fact that Child cried. Ms. Franzis identified the photographs Mother had shown her and said she had considered those as well. However, Ms. Franzis acknowledged that when she viewed Child's bottom on February 9, 2016, "there [were] possibly some marks," but she did not see bruises. R.R. at 218a-19a. She added that she observed redness on Child's bottom that could have been caused by sitting on the floor. R.R. at 198a, 212a-13a, 219a, 227a.

         Father testified that after using multiple alternatives, such as loss of privileges and de-escalation techniques, without success, he decided to try corporal punishment. Father stated that his parents had used this strategy when he was a child, and he believed it might help curb Child's misbehavior. He testified that he wanted to discipline Child, not hurt him. Father described hitting his own thigh on his way to Child's room to make sure he did not spank Child too hard. Father stated that he spanked Child four times, once for each infraction identified in the email. Father explained that he bent Child over his knee, hit Child's "upper left butt cheek, lower left butt cheek, upper right butt cheek, lower right butt cheek," to avoid spanking Child twice in the same area. Afterward, he and Child hugged, they cried, and then it was over. Father testified that when he saw Child's bare bottom that evening, he did not observe any bruising, only red marks, which were not raised. Father stated that "from the bottom of [his] heart, [he] never expected there to even be a mark based on how hard that [he] spanked [Child's] butt." R.R. at 255a-57a, 259a, 272a-74a, 278a.

         Father said that he kept Child home from daycare on February 4 and February 5 to give both Child and daycare a fresh start. He explained that he and Mother had agreed in the past to keep Child home from daycare after disciplinary problems so Child could regroup. When asked if keeping Child home after the spanking was not suspicious, Father said that Child uses the bathroom on his own and no one at the daycare would have reason to see Child's bottom. Father further testified that he did not inform Mother of the spanking or Child's absence from daycare because Child was not injured and did not complain of pain. Father explained that he and Mother got along for a period after their divorce, but by February 2016, their communication was at a minimum. R.R. at 279a-92a.

         The ALJ found the testimony of each witness credible^[6] and issued the findings of fact summarized above. The ALJ began her analysis by noting the relevant statutory provisions. Section 6303(b.1) of the Law states that "[t]he term 'child abuse' shall mean intentionally, knowingly or recklessly doing any of the following: . . . Causing bodily injury to a child through any recent act or failure to act." 23 Pa. C.S. §6303(b.1). Section 6303(a) of the Law defines "bodily injury" as "[i]mpairment of physical condition or substantial pain." 23 Pa. C.S. §6303(a).

         The ALJ determined that Father "exercised poor judgement and made a bad decision." R.R. at 320a. Although the ALJ credited Father's testimony, she concluded that Father's conduct was a gross deviation from the standard of care that a reasonable person would observe in the same situation and amounted to "recklessness, or criminal negligence." R.R. at 320a-21a. The ALJ stated Father should have known that it was "practically certain" that his spanking Child "would result in injuries to [Child]." R.R. at 321a.

         Ultimately, the ALJ's decision rested on her determination that Child suffered "substantial pain." In making that determination, the ALJ repeatedly emphasized that bruises could be seen on Child's buttocks five days after the spanking. R.R. at 320a-24a.

[B]y definition, corporal punishment induces pain. [Child] credibly testified how [sic] when [Father ] spanked him on his bottom with his open hand it "really hurt" and he cried for a long time and then they went to basketball practice. [Child] relayed how [Father] applied ice to his buttocks. Ice was applied not just on the night of the spanking but the next day as well. While [Child] did not complain to either parent that he experienced pain from either sitting around or riding his bike at any point after [Father] utilized corporal punishment[, ] and there was no medical testimony or evidence since neither parent took [Child] to see a doctor or administered medication for pain, the photographs of [Child's] buttocks are particularly compelling.

R.R. at 321a. The ALJ relied on reddish, brownish bruising, apparent five days after the spanking, Child's testimony that the spanking "really hurt," Father's application of ice to Child's buttocks over two days, Father's failure to take Child back to daycare, and Father's failure to inform Mother of the spanking to conclude ...