J. S., Petitioner
Department of Human Services, Respondent
Argued: December 13, 2018
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H.
MICHAEL H. WOJCIK, JUDGE.
(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
Facts and Procedural History
and Je.S. (Mother) are the biological parents of Ja.S.
(Child).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.
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.
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.
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.
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.
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.
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. R.R. at 46a.
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.
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. F.F. No. 28.
March 15, 2016, CYF issued an indicated report of physical
child abuse against Father to the ChildLine & Abuse
Registry. 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,  based on Father's guilty plea of
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.
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
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.
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.
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.
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
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.
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.
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
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.
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.
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,
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.
found the testimony of each witness credible 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.
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.
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
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