Transcription

1 ATTACHMENTS: FORMAL

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. RECOMMENDATION It is hereby Recommended that the Appellant s appeal be denied/sustained [and the Department of Public Welfare is directed to expunge Appellant s name from the ChildLine Registry at the number indicated above]. Date [ ], Esq. Administrative Law Judge

49 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. Opening Statement ADJUDICATION This is an administrative adjudication from the Appellant s appeal of a decision of the [ ] County Children and Youth Services (CYS)/the Department of Public Welfare (Department concerning the filing of indicated reports of child abuse with the ChildLine Registry. An administrative hearing was held on [ ] at the Bureau of Hearings and Appeals, in [ ] PA. The witnesses were sworn in by the Administrative Law Judge (ALJ) and testified under oath. [After the hearing transcript was received, the parties were afforded the opportunity to file a brief on or before [ ]. Counsel for CYS filed a brief on [ ]. The Appellant s Counsel filed a brief on [ ].] The hearing record closed on [ ]. ALJ [ ] adjudicated. Appearances For the Department/CYS: [ ], Esq., Solicitor for [ ] County CYS For Appellant: Appellant, pro se Witnesses For the Department/CYS: [ ] Caseworker, [ ] County CYS [ ], Subject Child For Appellant: Appellant

50 Exhibits For the Department/CYS: C-1 For Appellant: A-1 Transcripts Issue The issue is whether the Department s/cys s decision to maintain an indicated report of child abuse against the Appellant, as the result of an allegation of [ ] abuse by omission of the subject child, is consistent with the regulations. Findings of Fact 1. The subject child,[ ], is a [ ] child born on [ ] to [ ] and [ ]. 2. On [ ], the [ ] CYS caseworker received an oral report from Childline that the [ ] of the subject child [abuse]. The report also alleged the Appellant[s] was/were present at the time of the alleged abuse/ aware of the alleged abuse and did nothing to protect the subject child. OR The alleged abuse occurred on [ ] at the Appellant s [ ] and was reported to the [ ] CYS on [ ]. 3. The subject child s injuries included [ ]. 4. The subject child did/ did not receive medical treatment for [injuries]. 5. The subject child did/did not suffer severe pain or experience any limitation of function, temporarily or permanently, as a result of Appellant s actions on [ ]. 6. The testimony of [ ] was not accepted as credible as it related to the events of [ ] 7. During an in camera hearing, subject child was available /not available to testify. 8. During the in camera hearing, the ALJ ordered subject child s hearsay statements to be/not to be admitted into testimony. 9. The testimony of subject child is/ is not credible as it related to the events of [ ]. 10. The Appellant s testimony is/ is not credible that he/she did not know about the events of [ ]. 11. On [ ], the [ ] County CYS filed an indicated report of child abuse against 2

51 Appellant. 12. On [ ], the Appellant filed an appeal requesting expunction of his/her name from the ChildLine Registry. Discussion The Department s Position: The Department argues The Appellant s Position: The Appellant argues Applicable Law Child abuse is defined as: (i) Any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age. (ii) An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age. (iii) Any recent act, failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age. (iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide essentials of life including adequate medical care, which endangers the child s life or development or impairs the child s functioning. 23 Pa. C.S.A. 6303(b); 55 Pa. Code A perpetrator is defined as a person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as the child or a paramour of the child s parent. 55 Pa. Code A "person responsible for the child's welfare" is defined in the same regulations as a person who "provides permanent or temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision and control." 55 Pa. Code A Child Protective Services (CPS) agency is permitted to file an indicated report if the investigation by the Agency determines that there is substantial evidence of the alleged abuse based upon either available medical evidence, the investigation by the 3

52 CPS agency, or the admission of the acts of abuse by the perpetrator. 55 Pa. Code Substantial evidence is defined in 23 Pa. C.S.A. 6303(a) as "evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." 23 Pa. C.S.A (d) PRIMA FACIE EVIDENCE OF ABUSE.-- Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by 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 burden of proof in an expunction hearing is on the Child Protective Services county agency and/or the Department of Public Welfare to show, by substantial evidence, the indicated report is accurate. Bucks County Children and Youth Social Services Agency v. Dept. of Public Welfare, 808 A.2d 990 (Pa. Cmwlth. 2002). See also 55 Pa. Code a(g). The standard for Child Abuse By Omission is whether a reasonable person in the position of the parent knew or should have known that acts of abuse were occurring and whether the parent failed to take steps to remove child from harm's way. Bucks County C.Y.S. v. Dept. of Public Welfare, 151 Pa. Cmwlth. 110, 616 A.2d 170 (1992). An allegation of abuse by omission requires the Department to present substantial evidence that the Appellant knew or should have known of the significant risk to the subject child and failed to take protective measures. L.S. v. Dept. of Public Welfare, 828 A.2d 480 (Pa. Cmwlth. 2003). Mother who was identified as a child abuse perpetrator in a statewide central register maintained under the Child Protective Services Law, former 11 P.S et seq. (now 23 Pa. C.S et seq.), was not entitled to expungement of the record where substantial evidence showed that abuse resulted from her acts or omissions. K.S. v. Dept. of Public Welfare, 129 Pa. 31, 564 A.2d 561 (1989). Administrative Law Judge s Opinion In this case, [apply facts to law] After reviewing all the evidence and testimony, I find that [ ]. Therefore, for all the foregoing reasons, it is my recommendation that the Appellant s appeal be denied/sustained [and the Department of Public Welfare directed to expunge Appellant s name from the ChildLine Registry at the number listed above]. 4

53 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [ ] [ ] Appeal Docket No. ORDER AND NOW, this [ ] day of [ ], 20XX, after careful review and consideration, it is hereby ORDERED that the Recommendation be adopted in its entirety. Either party to this proceeding has fifteen (15) calendar days from the date of this decision to request reconsideration by the Secretary of the Department. To seek reconsideration, you must fully complete the enclosed application/petition for reconsideration. The application/petition shall be addressed to the Secretary, but delivered to the Director, Bureau of Hearings and Appeals, P.O. Box 2675, Harrisburg, Pennsylvania, , and must be received in the Bureau of Hearings and Appeals within fifteen (15) calendar days from the date of this Order. This action does not stop the time within which an appeal must be filed to Commonwealth Court. The Applicant/Petitioner shall serve a copy of the application/petition for reconsideration on the opposing party(ies). The appropriate party(ies), where permitted, may take issue with this Adjudication, and Order, and may appeal to the Commonwealth Court of Pennsylvania, within thirty (30) days from the date of this order. This appeal must be filed with the Clerk of Commonwealth Court of Pennsylvania, 601 Commonwealth Avenue, Suite 2100, P. O. Box 69185, Harrisburg, PA If you file an appeal with the Commonwealth Court, a copy of the appeal must be served on the government unit which made the determination in accordance with Pa. R.A.P In this case, service must be made to: Department of Public Welfare, Bureau of Hearings and Appeals, 2330 Vartan Way, 2 nd Floor, Harrisburg, Pennsylvania , AND Department of Public Welfare, Office of General Counsel, 3 rd Floor West, Health & Welfare Building, Harrisburg, PA Bureau of Hearings and Appeals Final Administrative Action And Mailing Date [Name typed] Regional Manager Bureau of Hearings and Appeals cc: Appellant Appellant s Attorney Department Attorney Department Agency File

54 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE BUREAU OF HEARINGS & APPEALS IN THE MATTER OF: NOTICE OF NON-PURSUIT CHILD ABUSE EXPUNCTION APPEAL The undersigned representative of the child protective service agency responding to the appeal in the above captioned matter hereby gives notice that: 1. The child protective service agency shall not appear for any hearing on the merits that is or may be scheduled before the Bureau of Hearings and Appeals in the above-captioned matter. 2. The child protective service agency shall not submit any evidence in the abovecaptioned matter. 3. The child protective service agency shall not submit any further motions or applications in the above-captioned matter. 4. All parties of record in this proceeding have been served a copy of this notice in accordance with the requirements of 1 Pa. Code (relating to service by a participant). Date: Attorney for Children and Youth Services

55 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE BUREAU OF HEARINGS AND APPEALS IN THE APPEAL OF: _._. In re: _. _. CL No: xxxxxxxxxxxxxx BHA Docket No(s): xx-xx-xxx & xx-xx-xxx Child Abuse Expunction HEARING SCHEDULING ORDER It is hereby ORDERED as follows: 1. Hearing date and location: The hearing in the above-captioned appeal is hereby scheduled to commence at 9:15 a.m., prevailing Eastern time, on (date), at the Bureau of Hearings and Appeals, 2330 Vartan Way 2 nd Floor, Harrisburg, PA This is the ONLY written notice of the in-person hearing that you will receive from this office. The parties are expected to make their own arrangements to appear in person with their witnesses at the specified hearing date, time and location. 2. Special Needs: You shall, within 20 days of this notice, notify the Regional Manager in writing if you, your witnesses or your attorney will require special accommodations (for example, a language translator, a hearing interpreter or witness(es) testimony by telephone) to participate in the hearing. Note that the Bureau of Hearings and Appeals telephone participation policy is more fully set forth in the Appendix to the enclosed Standing Practice Order. 3. Standing Practice Order and Pre-Hearing Unified Filing: You shall follow all directions and satisfy all requirements set forth in the Bureau of Hearings and Appeals Standing Practice Order incorporated herein by reference. (The Standing Practice Order is enclosed if you are the Appellant as well as accessible on the DPW website at You shall also submit the Pre-Hearing Unified Filing to the Regional Manager within twenty (20) days of the date of this Order. (The Unified Pre-Hearing Filing form and instructions are enclosed with this Order if you are the Appellant as well as accessible under Appendices in the above-referenced link). Should you not have internet access and need a copy of the Standing Practice Order or the Pre- Hearing Unified Filing form, please call and ask Formals Pre-

56 Hearing Unit clerical to send you one. 4. Contact information: Use the below listed address, telefacsimile and telephone numbers for all future pre-hearing matters: Regional Manager Bureau of Hearings and Appeals 2330 Vartan Way 2 nd Floor Harrisburg, PA Telephone: Telefacsimile (FAX): DO NOT send any documents or messages by telefacsimile (FAX) without first obtaining oral permission from the Bureau of Hearings and Appeals. 5. Legal Representation: Although not provided by the Bureau of Hearings and Appeals, you have the right to be represented in the hearing by an attorney of your choosing at your own expense but you are not required to have a lawyer and may represent yourself. Date Sharon Fox Zanotto, Esq. Administrative Law Judge Pre-Hearing Official c: Parties and other recipients of this Order are identified on the attached mailing list.

57 CHILD ABUSE EXPUNCTION MAILING LIST DOCKET NO(s). 21-xx-xxx CL#s xxxxxxxx 21-xx-xxx xxxxxxxx DATE OF HEARING xx/xx/09 APPELLANT # 1 _._. (address) TEL: APPELLANT # 2 APPELLANT S ATTORNEY TEL: FAX: COUNTY SOLICITOR TEL: TEL: FAX: OTHER CC S (name), Director, (county name) County CYS Terry Clark, Director, Division of Operations and Quality Management FILE COMMENTS:

58 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. RECOMMENDATION It is hereby Recommended that the Appellant s appeal be dismissed due to Appellant's failure to proceed with this appeal or to answer the Rule to Show Cause. Date [ ], Esq. Administrative Law Judge

59 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. Opening Statement ADJUDICATION This Recommendation concerns the Appellant s administrative appeal from a decision of the [( ) County Children and Youth Services (CYS)/the Department of Public Welfare (Department)] concerning its filing of an indicated report of child abuse with the ChildLine Registry. The Department denied the Appellant s request for expunction of [his/her] name from the ChildLine Registry on [ ]. Administrative Law Judge (ALJ) [ ] issued a Rule to Show Cause upon the Appellant on [ ]. The Rule was returnable on [ ]. No reply to the Rule was received; therefore, the undersigned prepared this Recommendation and Order. Findings of Fact 1. Appellant filed an appeal that received by the Department on [ ]. 2. On [ ], a Notice of Scheduled Hearing was sent to Appellant at Appellant's last known address and to Appellant s counsel scheduling a hearing at the Bureau of Hearings and Appeals, [ ], PA on [ ] at [ ] a.m.. 3. On [ ], this office issued a Rule to Show Cause upon Appellant which ordered Appellant to show cause why the appeal should not be dismissed as [ ]. Said Rule was returnable within ten (10) days. 4. The Rule to Show Cause was mailed to Appellant s last known address, which was [ ]. 5. On [ ], the United States Postal Service returned the Rule to Show Cause, [indicating that the last known address was no longer valid/with the notation, Attempted, Not Known. ] OR 5. The United States Postal Service did not return the Rule. 6. Appellant has not contacted this office to inquire as to the status of his appeal.

60 Discussion I find that this appeal must be dismissed because Appellant failed to proceed with his appeals [and failed to provide this office or the Department of Public Welfare with a valid address]. The Bureau of Hearings and Appeals is empowered to issue a Rule to Show Cause upon a party if the party fails to proceed with an appeal. 1 Pa. Code A person upon whom a Rule to Show Cause is issued shall respond to the Rule by filing, within the time specified, an answer to the Rule in writing. Failure to file an answer within the time allowed shall be deemed a default by the respondent and relevant facts stated in the Rule shall be deemed admitted. 1 Pa. Code Appellant failed to proceed or prosecute this appeal. In addition, Appellant failed to respond to the Rule to Show Cause issued on [ ] [or to provide this office with a valid mailing address]. In accordance with 1 Pa. Code 35.14; 35.37; and 35.51, it is my Recommendation that this appeal be dismissed due to Appellant's failure to proceed with this appeal or to answer the Rule to Show Cause. 2

61 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE BUREAU OF HEARINGS AND APPEALS UNIFIED PRE-HEARING FILING INSTRUCTION SHEET 1. Remove this instruction sheet from the attached Unified Pre-Hearing Filing form. Read the Standing Practice Order. 2. The Unified Pre-Hearing Filing form must be received by the Regional Manager no later than twenty (20) days after the mailing date stamped on the Hearing Scheduling Order. 3. Section A (Caption). You must fill in the caption exactly as it appears on the Hearing Scheduling Order that was sent to you with this document. If more than one appeal is involved, fill in the additional appeal caption information on the provided lines. 4. Section B (Submitted for) identifies to the Bureau of Hearings and Appeals who is submitting this filing. You must check the box that identifies you. If you are the person who requested this appeal, check the box marked appellant. Attorneys shall check the box that indicates the party whom they represent. 5. Section C (Legal issues to be considered at hearing) identifies what you consider to be the questions that must be decided by this hearing. Check as many boxes as you believe apply to this appeal. 6. Section D (Witnesses) is the initial Witness List that you must file to satisfy the requirements of the Standing Practice Order. If you are the appellant, you do not have to list yourself. If you have more than two witnesses, attach additional pages to the back of the Unified Pre-Hearing Filing and provide the same information requested under Section D for your witnesses. Mark the top of the first additional page with the caption and the title Section D - Initial Witness List. If there is more than one additional page, number the pages. Refer to the Standing Practice Order under Disclosure for further information and instruction regarding witnesses and witness lists. If you need a subpoena to compel the attendance of any of the witnesses listed under Section D or the additional Witness List pages, check the box under that witness name and attach a completed subpoena form for that person to the back of the Unified Pre- Hearing Filing and check the box on the first page of the Unified Pre-Hearing Filing that reads Subpoena application submitted with completed subpoena forms. You do not have to submit a separate application for subpoenas requested under Section D if you have provided all the required information on the intial Witness List. For instructions on how to fill out the subpoena forms and how to request additional subpoenas after you have submitted the Unified Pre-Hearing Filing, refer to the Standing Practice Order.

62 7. Section E (Exhibits) is the initial Exhibits List that you must file to satisfy the requirements of the Standing Practice Order. If you have more than four exhibits, attach additional pages to the back of the Unified Pre-Hearing Filing and provide the same information requested under Section E for your exhibits. Mark the top of the first additional page with the caption and the title Section E - Initial Exhibits List. If there is more than one additional page, number the pages. Refer to the Standing Practice Order under Disclosure for further information and instruction regarding exhibits and exhibits list. You must attach photocopies of your paper exhibits to the back of the Unified Pre-Hearing Filing form if they are available to you. 8. Section F (Continuance Motion) is your request to change the hearing date you are assigned by the Hearing Scheduling Order you received. Fill out this section only if you are requesting a change in the hearing date. If you fill out this section, check the box on the first page of the Unified Pre-Hearing Filing that reads Continuance motion submitted. You may request a continuance by a separate motion before or after you submit the Unified Pre-Hearing Filing. Refer to the Standing Practice Order for more information about continuances and motions. 9. Section G (Telephonic Testimony Motion) is your request to have one or more of your witnesses participate in the hearing by telephone instead of being physically present in the hearing room. Fill out this section only if you believe that your witness has a valid excuse for not coming to the hearing but will be available to participate by telephone. If you fill out this section, check the box on the first page of the Unified Pre-Hearing Filing that reads Telephonic testimony motion submitted. 10. Section H (Certificate of Service). Fill in the date on which you are actually mailing or delivering the Unified Pre-Hearing Filing form and attachments. 11. Section I (Signature) requires you to sign the first line in your own handwriting and in ink. Printing, rubber stamps and pencil signatures are not acceptable. If you fail to properly sign the Unified Pre-Hearing Filing, your motions and applications will be defective and denied. You must print or type your name on the second line of the signature section. You must provide your current mailing address and telephone number on the marked lines. You must also check the box that identifies who you are. Refer to the Standing Practice Order under Form, filing and service of papers for more information and instruction. 12. When you have completed the Unified Pre-Hearing Filing form, send the original (signed in ink) form with all attachments to the Regional Manager. Do not send your documents to the Regional Manager by telefacsimile. Send one copy with all attachments to the other parties and retain one copy for your records. You will find the addresses of the other parties on the mailing sheet attached to the back of the Hearing Scheduling order. 2

63 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE BUREAU OF HEARINGS AND APPEALS UNIFIED PRE-HEARING FILING - CHILD ABUSE EXPUNCTION Subpoena request submitted with completed subpoena forms Continuance motion submitted Telephonic testimony motion submitted Notice of Appearance submitted (Attorneys only) Additional Witness List attached Additional Exhibits List attached Copies of exhibits attached A. CAPTION - IN THE APPEAL OF: In re: Child Abuse Expunction CL No. Docket No. Additional appeals: In re: Docket No. CL No. In re: Docket No. CL No. In re: Docket No. CL No. In re: Docket No. CL No. In re: Docket No. CL No. In re: Docket No. CL No. B. SUBMITTED FOR (check box): Appellant Appellant Appellant Appellant Appellant Child Protective Service Agency Guardian ad Litem/CASA

64 C. LEGAL ISSUES TO BE CONSIDERED AT HEARING (check boxes): The incidents described in the report of child abuse did not happen. The incidents described in the report of child abuse do not correctly state what happened. What did happen was: The incidents described in the report of child abuse happened, but I/we did not cause or know about the incidents. The incidents described in the report of child abuse are not child abuse under the Child Protective Services Law. I/we was/were not a paramour(s), household member(s), caretaker(s) or teacher(s) subject to the provisions of the Child Protective Services Law. The CY-48 Report of Child Abuse was not timely submitted to ChildLine within sixty days of the oral report. For reports submitted to ChildLine before July 1, 1995, the abused child(ren) is/are age 23. The Department of Public Welfare is not maintaining the report of child abuse in accordance with law or regulation because Other (explain): 2

65 D. WITNESSES (Do not list the appellant. If more than two persons, check this box and attach additional pages titled Witness List: with this information for each witness): 1. Name I request a subpoena for this person s attendance. Address What will this person say at the hearing? Identify what documents you want this person to bring to the hearing and explain what these documents will show and prove. (Answer only if you are requesting a subpoena.) 2. Name I request a subpoena for this person s attendance. Address What will this person say at the hearing? Identify what documents you want this person to bring to the hearing and explain what these documents will show and prove. (Answer only if you are requesting a subpoena.) 3

66 E. EXHIBITS (If more than four, check this box and attach additional pages titled Exhibits List with this information for each exhibit): 1. Item This item is attached. Description Explain what this item will show and prove 2. Item This item is attached. Description Explain what this item will show and prove 3. Item This item is attached. Description Explain what this item will show and prove 4. Item This item is attached. Description Explain what this item will show and prove 4

67 F. CONTINUANCE MOTION 1. I am requesting a hearing on a date later than that assigned by the hearing scheduling order because: 2. I am attaching the following documents with this request for continuance to support the reason given in paragraph F I am requesting that the hearing be moved to any of the following ten dates. The other parties agree/ disagree with these dates. 4. I have/ have not contacted all parties of record in this appeal and informed them that I am requesting this continuance. The other parties agree/ do not agree to my request or have not informed me whether they will or will not oppose my request. G. TELEPHONIC TESTIMONY MOTION 1. I am requesting that the following persons (must be listed in Section D above or on attached Witness List) be permitted to testify by telephone: Witness A (name): Witness B (name): Witness C (name): 2. The reason why each witness cannot personally appear at the hearing is Witness A (name): Witness B (name): Witness C (name): 3. I have/ have not contacted all parties of record in this appeal and informed them that I am requesting telephonic testimony. The other parties agree/ do not agree to my request or have not informed me whether they will or will not oppose my request. 5

68 H. CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing document and attachments upon all parties of record in this proceeding in accordance with the requirements of 1 Pa. Code (relating to service by a participant). Dated this day of 20 I. SIGNATURE (Handwritten signature in ink) (Type or print name) (Mailing address) (Telephone number) (Telephone number) (Telefacsimile number) Signed by (check box) Appellant (representing myself) Appellant s attorney Solicitor - Child Protective Service Guardian ad Litem 6

69 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. ORDER And now, this [ ] day of [month year], it is hereby ORDERED the Motion for Stay of Proceedings filed by counsel for [ ] County Children & Youth Services on [ ], is GRANTED. This matter is STAYED pending resolution of a current [criminal/dependency/delinquency] matter against Appellant pending in [ ] County Court of Common Pleas concerning subject child [initials]. The underlying facts in the [ ] proceeding involve the same facts at issue in the above-listed appeal. Under the requirements of 23 Pa.C.S.A. 6341, any administrative appeal proceeding pursuant to 23 Pa.C.S.A. 6341(b) shall be automatically stayed upon notice to the Department by either of the parties when there is a pending criminal proceeding or a dependency or delinquency proceeding pursuant to 42 Pa.C.S.A. Ch. 63 (relating to Juvenile matters), including any appeal thereof, involving the same factual circumstances as the administrative appeal. Furthermore, the parties are ordered to notify the Bureau of Hearings and Appeals when a final resolution or disposition is made in the criminal matter and all relevant appeals have been resolved. Date [ ], Esq. Administrative Law Judge cc: Appellant Appellant s Attorney Agency Attorney

70 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. RECOMMENDATION It is hereby Recommended that the Appellant s appeal be denied/sustained [and the Department of Public Welfare is directed to expunge Appellant s name from the ChildLine Registry at the number indicated above]. Date [ ], Esq. Administrative Law Judge

71 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. Opening Statement ADJUDICATION This is an Adjudication, Recommendation, and Order on the appeal of the above named Appellant from a decision of the [ ] County Children and Youth Services (CYS)/the Department of Public Welfare (Department) concerning its filing of an indicated report of child abuse with the ChildLine Registry. The Department/CYS denied the Appellant s request for expunction of [his/her] name from the ChildLine Registry on [ ]. An administrative hearing was conducted on [ ] at the Bureau of Hearings and Appeals, [ ], PA. The witnesses were sworn in by the undersigned and testified under oath. The transcript was received on [ ]. The parties submitted briefs to the Bureau of Hearings and Appeals on [ ]. The hearing record closed on [ ]. Upon review of the testimony, briefs and exhibits, the undersigned prepared this Recommendation and Order. Administrative Law Judge (ALJ) [ ] presided. Appearances For the Department/CYS: [ ], Esq., Solicitor for [ ] County CYS For Appellant: Appellant, pro se Witnesses For the Department/CYS: [ ] Caseworker, [ ] County CYS [ ], Subject Child For Appellant: Appellant

72 Exhibits For the Department/CYS: C-1 For Appellant A-1 Transcript Issue The issue is whether the Department s/cys s decision to maintain an indicated report of child abuse against Appellant is consistent with the regulations, as concerns an allegation of sexual abuse inflicted upon [ ] on or about [ ]. Findings of Fact 1. The subject child,[ ], is a [ ] child born on [ ] to [ ] and [ ]. 2. The alleged abuse occurred on / between [ ] in [ ] and was reported on [ ]. 3. From [ ] to [ ], the subject child resided with [ ] in [ ]. 4. [Facts regarding who discovered the alleged abuse/how the abuse was discovered/physician s findings from a physical examination of the subject child.] 5. On [ ], the [ ] County CYS received a report of alleged sexual abuse regarding the subject child. 6. [Facts concerning the County CYS s investigation of the alleged abuse.] 7. On [ ], the [ ] County CYS filed an indicated report of sexual abuse against the Appellant. 8. By letter dated [ ], the Appellant filed an appeal requesting expunction of his/her name from the Childline Registry. 9. The testimony of the Department s/cys s witnesses was credible OR the testimony of the Department s/cys s witnesses concerning [ ] was not credible. 10. The Appellant s testimony was credible OR the Appellant s testimony concerning [ ] was not credible. 2

73 11. The testimony of subject child was credible/not credible OR the subject child was excused from testifying as [ ]. Discussion The Department s Position: The Department argues The Appellant s Position: The Appellant argues Applicable Law According to 23 Pa. C.S.A. 6341(a), a child abuse record may be expunged by the Secretary if good cause is shown and proper notice provided to the appropriate subjects of the report, or if the alleged perpetrator appeals an indicated report of abuse within 45 days of being notified of the report on the grounds that the report is inaccurate or is being maintained in a manner inconsistent with the Child Protective Services Law. 23 Pa. C.S.A. 6341(a) and (b). 55 Pa. Code Definitions Child abuse (i) The term child abuse means any of the following: (A) Any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child. (B) An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or exploitation of a child. (C) A recent act, failure to act or series of the acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or exploitation of a child. (D) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide the essentials of life, including adequate medical care, which endangers a child s life or development or impairs the child s functioning. (ii) A child will not be deemed to be physically or mentally abused based on injuries that result solely from environmental factors that are beyond the control of the parent or person responsible for the child s welfare, such as inadequate housing, furnishings, income, clothing and medical care. (iii) If, upon investigation, the county agency determines that a child has not been provided needed medical or surgical care because of seriously held religious beliefs of the child s parents, guardian or person responsible for the child s welfare, which beliefs are consistent with those of a bona fide religion, the child will not be deemed to be physically or mentally abused. The county agency shall closely monitor the child and shall seek court-ordered medical intervention when the lack of medical or surgical care 3

74 threatens the child s life or long-term health. In cases involving religious circumstances, all correspondence with a subject of the report and the records of the Department and the county agency may not reference child abuse and shall acknowledge the religious basis for the child s condition, and the family shall be referred for general protective services, under Subchapter C of the CPSL (relating to general protective services), if appropriate. Sexual abuse or exploitation (i) Any of the following if committed on a child by a perpetrator: (A) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in sexually explicit conduct. (B) A simulation of sexually explicit conduct for the purpose of producing a visual depiction, including photographing, videotaping, computer depicting or filming, of sexually explicit conduct. (C) Any of the following offenses as defined by the crimes code: (1) Rape as defined by section 3121 (relating to rape). (2) Statutory sexual assualt as defined by section (relating to statutory sexual assault). (3) Involuntary deviate sexual intercourse as defined by section 3123 (relating to involuntary deviate sexual intercourse). (4) Sexual assault as defined by section (relating to sexual assault). (5) Aggravated indecent assault as defined by section 3125 (relating to aggravated indecent assault). (6) Indecent assault as defined by section 3126 (relating to indecent assault). (7) Indecent exposure as defined by section 3127 (relating to indecent exposure). (8) Incest as defined by section 4302 (relating to incest). (9) Prostitution as defined by section 5902 (relating to prostitution and related offenses). (D) Exploitation which includes any of the following: (1) Looking at the sexual or other intimate parts of a child for the purpose of arousing or gratifying sexual desire in either person. (2) Engaging or encouraging a child to look at the sexual or other intimate parts of another person for the purpose of arousing or gratifying sexual desire in any person involved. (3) Engaging or encouraging a child to participate in sexually explicit conversation either in person, by telephone, by computer or by a computer aided device. The Child Protective Services Law defines child abuse to include any act or failure to act by a perpetrator which causes sexual abuse or sexual exploitation of a child under 18 years of age; or any recent act, failure to act or series of acts or failures which create an imminent risk of sexual abuse or sexual exploitation of a child under 18 years of age. 23 Pa. C.S.A. 6303(b). Except as provided in sections 3121 (relating to rape), (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse) and 4

75 (relating to sexual assault), a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if: (1) the person does so without the complainant's consent; (2) the person does so by forcible compulsion; (3) the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; (4) the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring; (5) the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance; (6) the complainant suffers from a mental disability which renders him or her incapable of consent; (7) the complainant is less than 13 years of age; or (8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other. 18 Pa. C.S.A A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm. 18 Pa. C.S.A A person is guilty of incest if that person knowingly marries or cohabits or has sexual intercourse with an ancestor or descendant, a brother or sister of the whole or half blood or an uncle, aunt, nephew or niece of the whole blood. The relationships referred to in this section include blood relationships without regard to legitimacy, and relationship of parent and child by adoption. 18 Pa. C.S.A A person is guilty of prostitution if he or she: (1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or (2) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity. 18 Pa. C.S.A Sexual abuse or exploitation is defined at 23 Pa. C.S.A as the employment, use, persuasion, inducement, enticement or coercion of any child to engage in or assist any other person to engage in any sexually explicit conduct or any simulation of any sexually explicit conduct for the purpose of producing any visual depiction, including photographing, videotaping, computer depicting or filming, of any sexually explicit conduct or the rape, sexual assault, involuntary deviate sexual intercourse, aggravated 5

76 indecent assault, molestation, incest, indecent exposure, prostitution, statutory sexual assault or other form of sexual exploitation of children. A perpetrator" is defined under 23 Pa. C.S.A as a person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child's parent. The Child Protective Services Law further defines a "person responsible for the child's welfare" as a person who provides permanent or temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision and control. See 55 Pa. Code An "individual residing in the same home as the child" is defined under 23 Pa. C.S.A as an individual who is 14 years of age or older and who resides in the same home as the child. The Department, through a Child Protective Services (CPS) agency, should file an indicated report if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on any of the following: (1) Available medical evidence. (2) The child protective service investigation. (3) An admission of the acts of abuse by the perpetrator. 23 Pa. C.S.A The CPS agency must present substantial evidence in order to maintain an indicated report against an alleged perpetrator on the ChildLine Registry. Substantial evidence is defined as "evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." 23 Pa. C.S.A. 6303(a). The burden of proof in an expunction hearing is on the Child Protective Services county agency and/or the Department of Public Welfare to show, by substantial evidence, the indicated report is accurate. Bucks County Children and Youth Social Services Agency v. Com., Dept. of Public Welfare, 808 A.2d 990 (Pa. Cmwlth. 2002). See also 55 Pa. Code a(g). The county agency s evidence must outweigh any contrary evidence. C.F. v. Com., Dept. of Public Welfare, 804 A.2d 755 (Pa. Cmwlth. 2002). It is beyond dispute that Commonwealth agencies are not bound by technical rules of evidence at agency hearings and may receive all relevant and reasonably probative evidence." Franklin Plastics Corp. v. Com., Dept. of Environmental Resources, 657 A.2d 100 (Pa. Cmwlth. 1995). See also 2 Pa. C.S.A (a) General rule. A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise 6

77 admissible by statute or court ruling, is admissible in evidence in a dependency proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either; (i) testifies at the proceeding; or (ii) is found by the court to be unavailable as a witness. (b) Emotional distress.-in order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress such that the child cannot reasonably communicate. In making this determination, the court may do all of the following: (1) Observe and question the child victim or child material witness, either inside or outside the courtroom. (2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting. 42 Pa. C.S.A A child witness is competent to testify if he/she possesses such capacity to communicate, including both an ability to understand questions and to frame and express intelligent answer, mental capacity to observe the occurrence itself and the capacity of remembering what it is that he/she is called to testify about, and a consciousness of the duty to speak the truth. A.O. v. Com., Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). The Bureau of Hearings and Appeals is permitted to consider hearsay testimony to be substantial evidence (needed to prove the correctness of the Indicated Report) if the hearsay testimony is corroborated with a sufficient degree of reliability. L.S. v. Com., Dept. of Public Welfare, 828 A.2d 480 (Pa. Cmwlth. 2003). The Bureau of Hearings and Appeals must determine the admissibility of a child s hearsay testimony in accordance with the provisions set forth at 42 Pa. C.S.A and that determination, made in an in camera hearing, must determine if the statements are relevant and reliable, and if the child does not testify and is found to be unavailable to testify. D.P. v. Com., Dept. of Public Welfare, 733 A.2d 661 (Pa. Cmwlth. 1999). Due to the fragile nature of young children, a child s out-of-court statement is admissible if the child is a victim of sexual abuse. Courts should determine whether a child s hearsay statements show spontaneity, repetition, mental state of the declarant, use of terminology unexpected of a child of tender years, and a lack of motive to fabricate. A.O. v. Com., Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). Pennsylvania courts should engage in a pretrial exploration of whether a child s testimony or statements are the result of taint, when there is some evidence that 7

78 improper interview techniques, suggestive questioning, vilification of the accused and interviewer bias may have influenced a child witness to such a degree that the proffered testimony may be irreparably compromised, in cases involving complaints by young children of sexual abuse. Com. v. Delbridge, 150 MAP 2001 (Pa. Supreme Court September 25, 2003). When considering whether taint corrupted a child s testimony, the question is whether the memory is so infected by the implantation of distorted memories so as to make it difficult for the child to distinguish fact from fantasy. Commonwealth v. Delbridge, 150 MAP 2001 (Pa. Supreme Court September 25, 2003). Medical evidence can provide sufficient corroboration of the hearsay statements to justify a conclusion of substantial evidence. B.E. re: G.M., Jr. v. Com., Dept. of Public Welfare, 654 A.2d 290 (Pa. Cmwlth. 1995). A child s hearsay testimony may be admitted through the testimony of investigating professionals or the child s family provided the statement has sufficient indicia of reliability as evidenced by the time, content and circumstances. Mortimore v. Com., Dept. of Public Welfare, 697 A.2d 1031 (Pa. Cmwlth. 1997). Also S.T. v. Com., Dept. of Public Welfare, 681 A.2d 853 (Pa. Cmwlth. 1996), alloc. den. 690 A.2d Hearsay testimony can, in toto, constitute the substantial evidence required to justify a conclusion of abuse provided it is admitted into evidence in conjunction with admissible corroborative evidence of the act in question. A.Y. v. Com., Dept. of Public Welfare, 537 Pa. 116, 641 A.2d 1148 (1994). Hearsay evidence not otherwise admissible in a court proceeding can generally be received and considered by an administrative agency, however, in the administrative forum there has not been an abandonment of all rules of evidence, and the courts have circumscribed the occasion and the use of hearsay evidence under the following circumstances: 1. Hearsay testimony of a child victim will be admitted in accordance with the standards set forth in 42 Pa. C.S.A. 5986, and this rule shall be applied to permit the testimony of the victim's parents and other family members as well as those professionals charged with investigating incidents of child abuse. 2. Hearsay testimony in conjunction with admissible corroborative evidence of the act(s) in question can in toto constitute substantial evidence which will satisfy the Agency's burden to justify a conclusion of abuse. 3. However, uncorroborated hearsay cannot satisfy the Agency's burden unless it comports with the following requirements: a) the statement was accurately recorded by audio or video equipment; b) the audio-visual record discloses the identity and at all times included the images and/or voices of all individuals present during the interview of the minor; and 8

79 c) the statement was not made in response to questioning calculated to lead the minor to make a particular statement and was not the product of improper suggestion. A.Y. v. Com., Dept. of Public Welfare, 537 Pa. 116, 641 A.2d 1148 (1994). Pennsylvania Rule of Evidence 803 does not exclude an excited utterance as hearsay, even though the declarant is available as a witness. Pa.R.E An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Pa.R.E. 803(2). Section 5986 of 42 PA. CONS. STAT. ANN. provides, in pertinent part, as follows: A statement made by a child describing acts and attempted acts of... sexual intercourse... performed with or on the child by another, not otherwise admissible by statute or court ruling is admissible in evidence in a dependency proceeding initiated under Chapter 63 (relating to juvenile matters), involving that child or other members of that child s family, if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is found by the court to be unavailable as a witness. A witness competence is presumed and the objecting party must demonstrate incompetency when a court evaluates the competence of a child witness. Courts must conduct a searching judicial inquiry as to mental capacity when a witness is under 14 years of age but the judge makes the ultimate decision as to competency. A.O. v. Com., Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). A child is competent to testify if the child can communicate, including understanding questions and framing intelligent answers, has the mental capacity to observe the alleged occurrence, has the capacity to remember the event about which the child is called to testify, and is conscious of the duty to speak the truth. Rosche v. McCoy, 156 A.2d 307 (Pa. 1959). See also A.O. v. Com., Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). Competence concerns revolve around determining whether a witness has the minimal capacity to communicate, observe an event, accurately recall the event observed and understand the responsibility and need to tell the truth. Credibility concerns revolve around an assessment by the fact finder whether what the witnesses says is, in fact, true or not. Com. v. Delbridge, 150 MAP 2001 (Pa. Supreme Court September 25, 2003). An alleged perpetrator s due process rights are not violated or diminished when 9

80 he or she is not in the same room when subject child testifies. R. v. Com., Dept. of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994). See also 42 Pa. C.S.A. 5986(c)(2). The Secretary of the Department of Public Welfare, through her designee, the Director of the Bureau of Hearings and Appeals, is the statutory finder of fact in expunction cases. R. v. Com., Dept. of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994). It is the job of the factfinder to resolve conflicts in the testimony and make specific findings of fact in order to apprise Commonwealth Court of the legal and factual basis for the conclusion. Bucks County CYS v. Com., Dept. of Public Welfare, 151 Pa. Cmwlth. 110, 616 A.2d 170 (1992). Exploitation The Department s regulations do not limit the definition of sexual abuse to include only touching or exposure of intimate parts but defines exploitation as the employment, use, persuasion, inducement, enticement or coercion of a child to engage in sexually explicit conduct. Exploitation was evidenced by the alleged perpetrator forcibly moving the subject child s head with his hand towards his groin while requesting she kiss it. These actions evidence an attempt to involve the subject child in a sexual act, thus creating an imminent risk of sexual abuse. K.J. v. Com., Dept. of Public Welfare, 767 A.2d 609 (Pa. Cmwlth. 2001). Expert Testimony The Frye Rule is applied in Pennsylvania tribunals when courts must determine when scientific evidence is reliable and should be admitted. The one who proposes to admit expert scientific evidence into the record bears the burden of establishing all of the elements required for admission under Pa. R.E. 702; must show the methodology used is generally accepted by scientists in the relevant field; must use a witness who is qualified as an expert by knowledge, skill, experience, training or education; and the admission of the expert scientific testimony is an evidentiary matter for the tribunal s discretion. Grady v. Frito-Lay, Inc., 839 A.2d 1038 (2003). ALJ s Opinion In this case, On [ ], Appellant [ ] to subject child. The county agency did/did not present sufficient evidence to prove Appellant [ ] to subject child on [ ]. Therefore, for all the foregoing reasons, it is my Recommendation that the Appellant s appeal be denied/sustained [and the Department of Public Welfare directed to expunge Appellant s name from the ChildLine Registry at the number listed above]. 10

81 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. RECOMMENDATION It is hereby Recommended that the Appellant s appeal be denied/sustained [and the Department of Public Welfare is directed to expunge Appellant s name from the ChildLine Registry at the number indicated above]. Date [ ], Esq. Administrative Law Judge

82 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. Opening Statement ADJUDICATION This is an administrative adjudication from the Appellant s appeal of a decision of the [ ] County Children and Youth Services (CYS)/the Department of Public Welfare (Department concerning the filing of indicated reports of child abuse with the ChildLine Registry. An administrative hearing was held on [ ] at the Bureau of Hearings and Appeals, in [ ] PA. The witnesses were sworn in by the Administrative Law Judge (ALJ) and testified under oath. [After the hearing transcript was received, the parties were afforded the opportunity to file a brief on or before [ ]. Counsel for CYS filed a brief on [ ]. The Appellant s Counsel filed a brief on [ ].] The hearing record was closed on [ ]. ALJ [ ] adjudicated. Appearances For the Department/CYS: [ ], Esq., Solicitor for [ ] County CYS For Appellant: Appellant, pro se Witnesses For the Department/CYS: [ ] Caseworker, [ ] County CYS [ ], Subject Child For Appellant: Appellant

83 Exhibits For the Department/CYS: C-1 For Appellant: A-1 Transcripts Issue The issue is whether the Department s/cys s decision to maintain an indicated report of child abuse against the Appellant is consistent with the regulations as the result of an allegation of physical abuse inflicted upon the subject child. Findings of Fact 1. The subject child,[ ], is a [ ] child born on [ ] to [ ] and [ ]. 2. The alleged abuse occurred on / between [ ] in [ ] and was reported on [ ]. 3. From [ ] to [ ], the subject child resided with [ ] in [ ]. 4. [Facts regarding who discovered the alleged abuse/how the abuse was discovered/physician s findings from a physical examination of the subject child.] 5. The subject child s injuries included [ ]. 6. The subject child did/did not suffer severe pain or experience any limitation of function, temporarily or permanently, as a result of Appellant s actions on [ ]. 7. On [ ], the [ ] County CYS received a report of alleged physical abuse regarding the subject child. 8. [Facts concerning the County CYS s investigation of the alleged abuse.] 9. On [ ], the [ ] County CYS filed an indicated report of physical abuse against the Appellant alleging serious physical injury. 10. By letter dated [ ], the Appellant filed an appeal requesting expunction of his/her name from the Childline Registry. 11. The testimony of the Department s/cys s witnesses was credible OR the testimony of the Department s/cys s witnesses concerning [ ] was not credible. 2

84 12. The Appellant s testimony was credible OR the Appellant s testimony concerning [ ] was not credible. 13. The testimony of subject child was credible/not credible OR the subject child was excused from testifying as [ ]. Discussion The Department s Position: The Department argues The Appellant s Position: The Appellant argues Applicable Law According to 23 Pa. C.S.A. 6341(a), a child abuse record may be expunged by the Secretary if good cause is shown and proper notice provided to the appropriate subjects of the report, or if the alleged perpetrator appeals an indicated report of abuse within 45 days of being notified of the report on the grounds that the report is inaccurate or is being maintained in a manner inconsistent with the Child Protective Services Law. 23 Pa. C.S.A. 6341(a) and (b). The Child Protective Services Law defines child abuse as any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age. See 23 Pa. C.S.A. 6303(b) and 55 Pa. Code According to 23 Pa. C.S.A. 6303(a), nonaccidental is defined as an injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk. Serious bodily injury is defined at 23 Pa. C.S.A. 6303(a) as any bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of function of any bodily member or organ. The Child Protective Services Law defines serious physical injury as an injury that causes a child severe pain; or significantly impairs a child's physical functioning, either temporarily or permanently. 23 Pa. C.S.A A bruise does not in and of itself necessarily lead to a finding of severe pain. L.A.J. v. Com., Dept. of Public Welfare, 726 A.2d 1133 (Pa. Commw. 1999). A finding of severe pain does not require a child victim s testimony to that effect or unequivocal testimony. Such a finding can be supported by circumstantial evidence. D.N. v. Com., Dept. of Public Welfare, 562 A.2d 433 (Pa. Cmwlth. 1989). According to 55 Pa. Code , serious physical injury is defined as "an injury that does either of the following: causes the child severe pain, [or] significantly impairs the child s physical functioning, either temporarily or permanently. 3

85 A perpetrator" is defined under 23 Pa. C.S.A as a person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child's parent. Parents or guardians may use corporal punishment to discipline their children absent a substantial risk of death, disfigurement, serious bodily injury, gross degradation, extreme pain or mental distress, and provided that the parent does not act with malicious intent in punishing the child. B.J.K. v. Dept. of Public Welfare, 773 A.2d 1271 (Pa. Cmwlth. 2001), citing Boland v. Leska, 308 Pa. Superior Ct. 169, 454 A.2d 75 (1982). Both J.K.'s mother and Ms. Davis-Palermo testified that J.K. winced when the bruised area was touched. J.K.'s mother also testified that J.K. would scream when she attempted to apply a cold compress or ice to the bruised area. This evidence is sufficient to establish that J.K. suffered an injury that resulted in severe pain. S.T. v. Dept. of Public Welfare, Lackawanna County Office, Children, Youth & Families, 681 A.2d 853, 857, fn 4 (1996). Mother was entitled to expungement of indicated report of child abuse where she struck her 13-year-old child with a belt, but the child did not suffer severe pain. Although the child testified that the welts hurt initially, both pain and welts disappeared during the course of the school day to the point that, at evening time, the child had no pain and could not see any welts on her legs, and the school nurse who examined the child that day did not believe further medical treatment of any kind was warranted. L.A.J. v. Dept. of Public Welfare, 726 A.2d 1133 (Pa. Cmwlth. 1999). Evidence that mother hit her 13-year-old child with her hand on the first floor of their house, followed child upstairs, hit child with a belt repeatedly while on the second floor of the house, and child suffered a split lip, bruised finger, cut nose, bruised chin, and hurt shoulder as a result of being hit by her mother, supported the denial of mother s petition to expunge an indicated report of child abuse. B.J.K. v. Dept. of Public Welfare, 773 A.2d 1271 (Pa. Cmwlth. 2001), citing Boland v. Leska, 308 Pa. Superior Ct. 169, 454 A.2d 75 (1982). A "person responsible for the child's welfare" is defined as a person who "provides permanent or temporary care, supervision or control of a child in lieu of parental care, supervision and control either by legal authorization or consent of the parent." See 23 Pa. C.S.A and 55 Pa. Code The Department, through a Child Protective Services (CPS) agency, should file an indicated report if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on any of the following: (1) Available medical evidence. (2) The child protective service investigation. (3) An admission of the acts of abuse by the perpetrator. 23 Pa. C.S.A. 4

86 6303. The CPS agency must present substantial evidence in order to maintain an indicated report against an alleged perpetrator on the ChildLine Registry. Substantial evidence is defined as "evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." 23 Pa. C.S.A. 6303(a). The burden of proof in an expunction hearing is on the Child Protective Services county agency and/or the Department of Public Welfare to show, by substantial evidence, the indicated report is accurate. Bucks County Children and Youth Social Services Agency v. Com., Dept. of Public Welfare, 808 A.2d 990 (Pa. Cmwlth. 2002). See also 55 Pa. Code a(g). The county agency s evidence must outweigh any contrary evidence. C.F. v. Com., Dept. of Public Welfare, 804 A.2d 755 (Pa. Cmwlth. 2002). It is beyond dispute that Commonwealth agencies are not bound by technical rules of evidence at agency hearings and may receive all relevant and reasonably probative evidence." Franklin Plastics Corp. v. Com., Dept. of Environmental Resources, 657 A.2d 100 (Pa. Cmwlth. 1995). See also 2 Pa. C.S.A (a) General rule. A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or court ruling, is admissible in evidence in a dependency proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either; (i) testifies at the proceeding; or (ii) is found by the court to be unavailable as a witness. (b) Emotional distress.-in order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress such that the child cannot reasonably communicate. In making this determination, the court may do all of the following: (1) Observe and question the child victim or child material witness, either inside or outside the courtroom. (2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting. 42 Pa. C.S.A An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing 5

87 physical abuse, indecent contact or any of the offenses enumerated in 18 Pa. C.S. Chapter 31 (relating to sexual offenses) performed with or on the child by another, not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia or reliability, and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness. 42 Pa. C.S.A (A.1) Emotional Distress. Before the court makes a finding under subsection (A)(2)(II), the court must determine, based on evidence present to it, that testimony by the child as a witness will result in the child suffering serious emotional distress such that the child cannot reasonably communicate. In making this determination, the court may do all of the following: (1) Observe and question the child victim or child material witness, either inside or outside the courtroom. (2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting. 42 Pa. C.S.A (A.2) Counsel and Confrontation. If the court hears testimony in connection with making a finding under subsection (A)(2)(II), all of the following apply: (1) Except as provided in paragraph (2), the defendant, the attorney for the defendant and the attorney for the Commonwealth or, in the case of a civil proceeding, the attorney for the plaintiff has the right to be present. (2) If the court observes or questions the child, the court shall not permit the defendant to be present. 42 Pa. C.S.A (b) Notice required. A statement otherwise admissible under subsection (A) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement. 42 Pa. C.S.A A child witness is competent to testify if he/she possesses such capacity to 6

88 communicate, including both an ability to understand questions and to frame and express intelligent answer, mental capacity to observe the occurrence itself and the capacity of remembering what it is that he/she is called to testify about, and a consciousness of the duty to speak the truth. A.O. v. Com., Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). The Bureau of Hearings and Appeals is permitted to consider hearsay testimony to be substantial evidence (needed to prove the correctness of the Indicated Report) if the hearsay testimony is corroborated with a sufficient degree of reliability. L.S. v. Com., Dept. of Public Welfare, 828 A.2d 480 (Pa. Cmwlth. 2003). The Bureau of Hearings and Appeals must determine the admissibility of a child s hearsay testimony in accordance with the provisions set forth at 42 Pa. C.S.A and that determination, made in an in camera hearing, must determine if the statements are relevant and reliable, and if the child does not testify and is found to be unavailable to testify. D.P. v. Com., Dept. of Public Welfare, 733 A.2d 661 (Pa. Cmwlth. 1999). Courts should determine whether a child s hearsay statements show spontaneity, repetition, mental state of the declarant, use of terminology unexpected of a child of tender years, and a lack of motive to fabricate. A.O. v. Com., Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). Medical evidence can provide sufficient corroboration of the hearsay statements to justify a conclusion of substantial evidence. B.E. re: G.M., Jr. v. Com., Dept. of Public Welfare, 654 A.2d 290 (Pa. Cmwlth. 1995). A child s hearsay testimony may be admitted through the testimony of investigating professionals or the child s family provided the statement has sufficient indicia of reliability as evidenced by the time, content and circumstances. Mortimore v. Com., Dept. of Public Welfare, 697 A.2d 1031 (Pa. Cmwlth. 1997). Also S.T. v. Com., Dept. of Public Welfare, 681 A.2d 853 (Pa. Cmwlth. 1996), alloc. den. 690 A.2d Hearsay testimony can, in toto, constitute the substantial evidence required to justify a conclusion of abuse provided it is admitted into evidence in conjunction with admissible corroborative evidence of the act in question. A.Y. v. Com., Dept. of Public Welfare, 537 Pa. 116, 641 A.2d 1148 (1994). A witness competence is presumed and the objecting party must demonstrate incompetency when a court evaluates the competence of a child witness. Courts must conduct a searching judicial inquiry as to mental capacity when a witness is under 14 years of age but the judge makes the ultimate decision as to competency. A.O. v. Com., Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). A child is competent to testify if the child can communicate, including understanding questions and framing intelligent answers, has the mental capacity to observe the alleged occurrence, has the capacity to remember the event about which 7

89 the child is called to testify, and is conscious of the duty to speak the truth. A.O. v. Com., Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). Hearsay evidence not otherwise admissible in a court proceeding can generally be received and considered by an administrative agency, however, in the administrative forum there has not been an abandonment of all rules of evidence, and the courts have circumscribed the occasion and the use of hearsay evidence under the following circumstances: 1. Hearsay testimony of a child victim will be admitted in accordance with the standards set forth in 42 Pa. C.S.A. 5986, and this rule shall be applied to permit the testimony of the victim's parents and other family members as well as those professionals charged with investigating incidents of child abuse. 2. Hearsay testimony in conjunction with admissible corroborative evidence of the act(s) in question can in toto constitute substantial evidence which will satisfy the Agency's burden to justify a conclusion of abuse. 3. However, uncorroborated hearsay cannot satisfy the Agency's burden unless it comports with the following requirements: a) the statement was accurately recorded by audio or video equipment; b) the audio-visual record discloses the identity and at all times included the images and/or voices of all individuals present during the interview of the minor; and c) the statement was not made in response to questioning calculated to lead the minor to make a particular statement and was not the product of improper suggestion. A.Y. v Com., Dept. of Public Welfare, 537 Pa. 116, 641 A.2d 1148 (1994). A statement made by a child describing acts and attempted acts of... sexual intercourse... performed with or on the child by another, not otherwise admissible by statute or court ruling is admissible in evidence in a dependency proceeding initiated under Chapter 63 (relating to juvenile matters), involving that child or other members of that child s family, if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is found by the court to be unavailable as a witness. 42 Pa. C.S.A An alleged perpetrator s due process rights are not violated or diminished when he or she is not in the same room when subject child testifies. R. v. Com., Dept. of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994). The Secretary of the Department of Public Welfare, through her designee, the Director of the Bureau of Hearings and Appeals, is the statutory finder of fact in expunction cases. R. v. Com., Dept. of Public Welfare, 535 Pa. 440, 636 A.2d 142 8

90 (1994). It is the job of the factfinder to resolve conflicts in the testimony and make specific findings of fact in order to apprise Commonwealth Court of the legal and factual basis for the conclusion. Bucks County CYS v. Com., Dept. of Public Welfare, 151 Pa. Cmwlth. 110, 616 A.2d 170 (1992). A bruise does not in and of itself necessarily lead to a finding of severe pain. A child spanked 9 to 12 times with a paddle causing bruises on child's buttock was not abused where there was no evidence of impairment, no medical testimony, and child did not recall being in great pain. N.B. v. Com., Dept. of Public Welfare, 107 Pa. Cmwlth. 26, 527 A.2d 623 (1987). A finding of severe pain does not require a child victim s testimony to that effect or unequivocal testimony. Such a finding can be supported by circumstantial evidence. D.N. v. Com., Dept. of Public Welfare, 562 A.2d 433 (Pa. Cmwlth. 1989). Administrative Law Judge s Opinion In this case, After reviewing all the evidence and testimony, I find that the county agency did/did not present sufficient evidence to prove subject child suffered severe pain or experienced a functional impairment on [ ]. Therefore, for all the foregoing reasons, it is my recommendation that the Appellant s appeal be denied/sustained [and the Department of Public Welfare directed to expunge Appellant s name from the ChildLine Registry at the number listed above]. 9

91 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [ ] in re: Child Abuse Expunction CL No. [ ] Docket No. [ ] RECOMMENDATION It is my recommendation that the above captioned appeal be SUSTAINED. The Department of Public Welfare (DPW), Office of Children, Youth and Families (OCYF) is hereby directed to expunge the indicated report of abuse which was the subject of this appeal. Findings of Fact 1. On [ ], the Appellant filed an appeal from the decision of DPW to deny the Appellant's request for expunction of the Appellant s record of an indicated report of child abuse. 2. By letter dated [ ], [ ], Esquire, Solicitor for [ ] County Children and Youth Services (County) advised the Bureau of Hearings and Appeals that it was not pursuing the case. 3. On [ ], Appellant filed a withdrawal based upon the County s intention to not to pursue this case against the Appellant. 4. The County s non-pursuit of the case supersedes the Appellant s withdrawal notice. 5. The hearing scheduled for [ ] has been cancelled. Conclusion Pursuant to 55 Pa. Code and (f), and 23 Pa. C.S.A , the burden of proof in an expunction hearing is on the County to provide substantial evidence that abuse has occurred and that the person(s) so charged committed the abuse. In this case, the County has declined to appear and prosecute the charge(s) of abuse alleged. Therefore, it is my Recommendation that the Appellant's appeal be sustained. Date [Name] Administrative Law Judge

92 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [ ]. in re: Child Abuse Expunction C.L. No. Docket No. RECOMMENDATION It is hereby Recommended that the Appellant s appeal be sustained and that the Department of Public Welfare be directed to expunge the indicated report of child abuse at the number set forth above. Date [ ] Administrative Law Judge

93 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [ ]. in re: Child Abuse Expunction C.L. No. Docket No. Findings of Fact ADJUDICATION 1. This is an administrative adjudication of the above named Appellant seeking expunction of an indicated report of child abuse naming him as the perpetrator of child abuse against [ ]. 2. The Bureau of Hearings and Appeals, Department of Public Welfare, scheduled the hearing for [ ]. 3. Prior to the hearing, the County Solicitor for the [ ] County Children and Youth Services (CYS), upon consideration of all the circumstances in this case, informed the Administrative Law Judge of [ ] CYS s decision not to pursue this case against the Appellant, and that [ ] CYS did not oppose expunction of the allegations against the Appellant. 4. In that the agency bearing the burden of proof in this matter decided not to go forward to meet that burden, it is my recommendation that this appeal be sustained in favor of the Appellant. Conclusion The Child Protective Services Agency bears the burden of proof that an indicated report of child abuse is supported by substantial evidence and is being maintained in a manner consistent with the Child Protective Services Law. 55 Pa. Code a(g). Accordingly, it is my Recommendation that Appellant s appeal be sustained and that the indicated report of child abuse at the number set forth above be expunged.

94 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. RECOMMENDATION It is hereby Recommended that the Appellant s appeal be denied/sustained [and the Department of Public Welfare is directed to expunge Appellant s name from the ChildLine Registry at the number indicated above]. Date [ ], Esq. Administrative Law Judge

95 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. Opening Statement ADJUDICATION This is an administrative adjudication from the Appellant s appeal of a decision of the [ ] County Children and Youth Services (CYS)/the Department of Public Welfare (Department concerning the filing of indicated reports of child abuse with the ChildLine Registry. An administrative hearing was held on [ ] at the Bureau of Hearings and Appeals, in [ ] PA. The witnesses were sworn in by the Administrative Law Judge (ALJ) and testified under oath. [After the hearing transcript was received, the parties were afforded the opportunity to file a brief on or before [ ]. Counsel for CYS filed a brief on [ ]. The Appellant s Counsel filed a brief on [ ].] The hearing record closed on [ ]. ALJ [ ] adjudicated. Appearances For the Department/CYS: [ ], Esq., Solicitor for [ ] County CYS For Appellant: Appellant, pro se Witnesses For the Department/CYS: [ ] Caseworker, [ ] County CYS [ ], Subject Child For Appellant: Appellant

96 Exhibits For the Department/CYS: C-1 For Appellant: A-1 Transcripts Issue The issue is whether the Department s/cys s decision to maintain an indicated report of child abuse against the Appellant in a manner which is consistent with the regulations as the result of an allegation of neglect from prolonged or repeated lack of supervision/failure to provide the essentials of life inflicted upon the subject child. Findings of Fact 1. The subject child,[ ], is a [ ] child born on [ ] to [ ] and [ ]. 2. At the time of the alleged incident of child abuse, the subject child resided with [ ]. 3. On [ ], [ ] received a report that the subject child suffered [ ] as the result of [ ]. 4. The subject child s condition was [ ]. 5. The testimony of [ ] was not accepted as credible as it related to the events of [ ] 6. During an in camera hearing, subject child was available /not available to testify. 7. During the in camera hearing, the ALJ ordered subject child s hearsay statements to be/not to be admitted into testimony. 8. The testimony of subject child is/ is not credible as it related to the events of [ ]. 9. The Appellant s testimony was/was not accepted as credible as it related to the events of [ ]. 10. On [ ], the [ ] County CYS filed an indicated report of child abuse against Appellant. 11. On [ ], the Appellant filed an appeal requesting expunction of his/her name from the ChildLine Registry. Discussion 2

97 The Department s Position: The Department argues The Appellant s Position: The Appellant argues Applicable Law 55 Pa. Code Definitions. Person responsible for the child s welfare - (i) A person who provides permanent or temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision and control. (ii) The term does not include a person who is employed by or provides services or programs in a public or private school, intermediate unit or area vocational-technical school. 23 Pa. C.S.A. 6341(a)(2) Any person named as a perpetrator in an indicated report of child abuse may, within 45 days of being notified of the status of the report, request the secretary to amend or expunge an indicated report on the grounds that it is inaccurate or is being maintained in a manner inconsistent with this chapter. 23 Pa. C.S.A. 6341(c) The county agency that filed the report bears the burden of proving that the actions of the perpetrator constitute child abuse. 23 Pa. C.S.A. 6303(a) "INDICATED REPORT." A child abuse report made pursuant to this chapter if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on any of the following: (1) Available medical evidence. (2) The child protective service investigation. (3) An admission of the acts of abuse by the perpetrator. "NONACCIDENTAL." An injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk. "SERIOUS BODILY INJURY." Bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of function of any bodily member or organ. "SERIOUS PHYSICAL INJURY." An injury that: 3

98 (1) causes a child severe pain; or (2) significantly impairs a child s physical functioning, either temporarily or permanently. "SUBSTANTIAL EVIDENCE." Evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion. 23 Pa. C.S.A. 6303(b) (1) The term "CHILD ABUSE" shall mean any of the following: (iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide essentials of life, including adequate medical care, which endangers a child s life or development or impairs the child s functioning. (2) No child shall be deemed to be physically or mentally abused based on injuries that result solely from environmental factors that are beyond the control of the parent or person responsible for the child's welfare, such as inadequate housing, furnishings, income, clothing and medical care. (3) If, upon investigation, the county agency determines that a child has not been provided needed medical or surgical care because of seriously held religious beliefs of the child's parents, guardian or person responsible for the child's welfare, which beliefs are consistent with those of a bona fide religion, the child shall not be deemed to be physically or mentally abused. The county agency shall closely monitor the child and shall seek court-ordered medical intervention when the lack of medical or surgical care threatens the child's life or long-term health. In cases involving religious circumstances, all correspondence with a subject of the report and the records of the Department of Public Welfare and the county agency shall not reference "child abuse" and shall acknowledge the religious basis for the child's condition, and the family shall be referred for general protective services, if appropriate. 23 Pa. C.S.A. 6381(d) Prima facie evidence of abuse. -- Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by 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. 42 Pa. C.S.A (a) General rule. A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or court ruling, is admissible in evidence in a dependency proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either; (i) testifies at the proceeding; or (ii) is found by the court to be unavailable as a witness. 4

99 (b) Emotional distress.-in order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress such that the child cannot reasonably communicate. In making this determination, the court may do all of the following: (1) Observe and question the child victim or child material witness, either inside or outside the courtroom. (2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting. 42 Pa. C.S.A An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing physical abuse, indecent contact or any of the offenses enumerated in 18 Pa. C.S. Chapter 31 (relating to sexual offenses) performed with or on the child by another, not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia or reliability, and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness. 42 Pa. C.S.A (A.1) Emotional Distress. Before the court makes a finding under subsection (A)(2)(II), the court must determine, based on evidence present to it, that testimony by the child as a witness will result in the child suffering serious emotional distress such that the child cannot reasonably communicate. In making this determination, the court may do all of the following: (1) Observe and question the child victim or child material witness, either inside or outside the courtroom. (2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim or child material witness in a medical or therapeutic setting. (A.2) Counsel and Confrontation. If the court hears testimony in connection with making a finding under subsection (A)(2)(II), all of the following apply: (1) Except as provided in paragraph (2), the defendant, the attorney for the defendant and the attorney for the Commonwealth or, in the case of a civil proceeding, the attorney for the plaintiff has the right to be present. (2) If the court observes or questions the child, the court shall not permit the defendant to be present. 42 Pa. C.S.A (b) Notice required. A statement otherwise admissible under subsection (A) 5

100 shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement. Although the infant was deemed underweight by his pediatrician, his two ounce weight loss without other medical problems was not sufficiently significant to be characterized as "failing to thrive" while in the mother's custody as a result of being deprived of the essentials of life. A.B. v. Com., Dept. of Public Welfare, No C.D Looking at the totality of the circumstances, leaving a ten and-a-half-month-old child alone for fifteen (15) minutes on a bunk bed is not a prolonged lack of supervision given that the Appellant left to prepare his bottle and that the child was otherwise cared for properly. C.F. v. Dept. of Public Welfare, 804 A.2d 755 (Pa. Cmwlth. 2002) The Appellant s actions did not rise to the level of criminal negligence because leaving the child for a brief period of time cannot be construed as a gross deviation from the standard of care that a reasonable person would observe. The mother could not have reasonably believed the child could have extricated himself from the seat and fallen into the heater. Fayette County Children and Youth Services v. Com., Dept. of Public Welfare, No. 310 C.D The county agency bears the burden of proving in an expungement case that the actions of the perpetrator constitute child abuse within the meaning of the statute. The county s evidence must outweigh any contrary evidence. B.J.K. v. Dept. of Public Welfare, 773 A.2d 1271 (Pa. Cmwlth. 2001) The burden of proof in an expunction hearing is on the Child Protective Services county agency and/or the Department of Public Welfare to show, by substantial evidence, the indicated report is accurate. Bucks County Children and Youth Social Services Agency v. Dept. of Public Welfare, 808 A.2d 990 (Pa. Cmwlth. 2002). See also 55 Pa. Code a(g). The county agency s evidence must outweigh any contrary evidence. C.F. v. Dept. of Public Welfare, 804 A.2d 755 (Pa. Cmwlth. 2002). It is beyond dispute that Commonwealth agencies are not bound by technical rules of evidence at agency hearings and may receive all relevant and reasonably probative evidence." Franklin Plastics Corp. v. Dept. of Environmental Resources, 657 A.2d 100 (Pa. Cmwlth. 1995). See also 2 Pa. C.S.A A child witness is competent to testify if he/she possesses such capacity to communicate, including both an ability to understand questions and to frame and express intelligent answer, mental capacity to observe the occurrence itself and the 6

101 capacity of remembering what it is that he/she is called to testify about, and a consciousness of the duty to speak the truth. A.O. v. Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). The Bureau of Hearings and Appeals is permitted to consider hearsay testimony to be substantial evidence (needed to prove the correctness of the Indicated Report) if the hearsay testimony is corroborated with a sufficient degree of reliability. L.S. v. Dept. of Public Welfare, 828 A.2d 480 (Pa. Cmwlth. 2003). The Bureau of Hearings and Appeals must determine the admissibility of a child s hearsay testimony in accordance with the provisions set forth at 42 Pa. C.S and that determination, made in an in camera hearing, must determine if the statements are relevant and reliable, and if the child does not testify and is found to be unavailable to testify. D.P. v. Dept. of Public Welfare, 733 A.2d 661 (Pa. Cmwlth. 1999). Courts should determine whether a child s hearsay statements show spontaneity, repetition, mental state of the declarant, use of terminology unexpected of a child of tender years, and a lack of motive to fabricate. A.O. v. Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). Medical evidence can provide sufficient corroboration of the hearsay statements to justify a conclusion of substantial evidence. B.E. re: G.M., Jr. v. Dept. of Public Welfare, 654 A.2d 290 (Pa. Cmwlth. 1995). A child s hearsay testimony may be admitted through the testimony of investigating professionals or the child s family provided the statement has sufficient indicia of reliability as evidenced by the time, content and circumstances. Mortimore v. Dept. of Public Welfare, 697 A.2d 1031 (Pa. Cmwlth. 1997). Also S.T. v. Dept. of Public Welfare, 681 A.2d 853 (Pa. Cmwlth. 1996), alloc. den. 690 A.2d Hearsay testimony can, in toto, constitute the substantial evidence required to justify a conclusion of abuse provided it is admitted into evidence in conjunction with admissible corroborative evidence of the act in question. A.Y. v. Dept. of Public Welfare, 537 Pa. 116, 641 A.2d 1148 (1994). A witness competence is presumed and the objecting party must demonstrate incompetency when a court evaluates the competence of a child witness. Courts must conduct a searching judicial inquiry as to mental capacity when a witness is under 14 years of age but the judge makes the ultimate decision as to competency. A.O. v. Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). A child is competent to testify if the child can communicate, including understanding questions and framing intelligent answers, has the mental capacity to observe the alleged occurrence, has the capacity to remember the event about which the child is called to testify, and is conscious of the duty to speak the truth. A.O. v. Dept. of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). 7

102 Hearsay evidence not otherwise admissible in a court proceeding can generally be received and considered by an administrative agency, however, in the administrative forum there has not been an abandonment of all rules of evidence, and the courts have circumscribed the occasion and the use of hearsay evidence under the following circumstances: 1. Hearsay testimony of a child victim will be admitted in accordance with the standards set forth in 42 Pa. C.S.A. 5986, and this rule shall be applied to permit the testimony of the victim's parents and other family members as well as those professionals charged with investigating incidents of child abuse. 2. Hearsay testimony in conjunction with admissible corroborative evidence of the act(s) in question can in toto constitute substantial evidence which will satisfy the Agency's burden to justify a conclusion of abuse. 3. However, uncorroborated hearsay cannot satisfy the Agency's burden unless it comports with the following requirements: a) the statement was accurately recorded by audio or video equipment; b) the audio-visual record discloses the identity and at all times included the images and/or voices of all individuals present during the interview of the minor; and c) the statement was not made in response to questioning calculated to lead the minor to make a particular statement and was not the product of improper suggestion. A.Y. v. Dept. of Public Welfare, 537 Pa. 116, 641 A.2d 1148 (1994). An alleged perpetrator s due process rights are not violated or diminished when he or she is not in the same room when subject child testifies. R. v. Dept. of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994). The Secretary of the Department of Public Welfare, through her designee, the Director of the Bureau of Hearings and Appeals, is the statutory finder of fact in expunction cases. R. v. Dept. of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994). It is the job of the factfinder to resolve conflicts in the testimony and make specific findings of fact in order to apprise Commonwealth Court of the legal and factual basis for the conclusion. Bucks County CYS v. Dept. of Public Welfare, 151 Pa. 110, 616 A.2d 170 (1992). Administrative Law Judge s Opinion In this case, After reviewing all the evidence and testimony, I find that the county agency did/did not present sufficient evidence to prove subject child suffered severe pain or experienced a functional impairment on [ ]. Therefore, for all the foregoing reasons, it is my recommendation that the 8

103 Appellant s appeal be denied/sustained [and the Department of Public Welfare directed to expunge Appellant s name from the ChildLine Registry at the number listed above]. 9

104 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. RECOMMENDATION It is hereby Recommended that the Appellant s appeal be dismissed as moot. Date [ ], Esq. Administrative Law Judge

105 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. Opening Statement ADJUDICATION This is an Adjudication, Recommendation, and Order on the appeal of the above named Appellant from a decision of the [ ] County Children and Youth Services (CYS)/the Department of Public Welfare (Department) concerning its filing of an indicated report of child abuse with the ChildLine Registry. The Department/CYS denied Appellant s request for expunction of his/her name from the ChildLine Registry on [ ]. An administrative hearing was conducted on [ ] at the Bureau of Hearings and Appeals, [ ], PA. The witnesses were sworn in by the undersigned and testified under oath. The transcript was received on [ ]. The parties submitted briefs to the Bureau of Hearings and Appeals on [ ]. The hearing record closed on [ ]. Upon review of the testimony, briefs and exhibits, the undersigned prepared this Recommendation and Order. Administrative Law Judge (ALJ) [ ] presided. Appearances For the Department/CYS: [ ], Esq., Solicitor, [ ] County CYS For Appellant: Appellant, pro se Witnesses For the Department/CYS: [ ], Caseworker, [ ] County CYS Subject Child For Appellant: Appellant

106 Exhibits For the Department/CYS: C-1 For Appellant: A-1 Transcripts Issue The issue is whether the Bureau of Hearings and Appeals has jurisdiction to consider the Appellant's request to expunge his/her name from the Childline Registry. Findings of Fact 1. Subject child,[ ], is a [ ] child born on [ ] to [ ] and [ ]. (NT [ ]). 2. On [date], [ ] County CYS received an oral report of suspected child abuse from Childline alleging that the Appellant had [ ]. 3. As a consequence of receiving this report, the [ ] CYS caseworker initiated an investigation of suspected child abuse. 4. The subject child, [ ] suffered [ ] as a result of the suspected child abuse. 5. On [ ], the Appellant [ ] was arrested and charged with [ ]. 6. On [ ], the [ ] CYS filed an indicated report against the Appellant with Childline. 7. On [ ], [ ] filed an appeal of the indicated report of child abuse. 8. On [ ], the Appellant [entered a plea of ( ) / was convicted of ( )] before the Honorable [ ] in the [ ] Court of Common Pleas. 9. The criminal charges arose from the same incident that the [ ] CYS was investigating and involved the same subject child, [ ]. 10. [ ], did not appeal the [ ]. 11. After [ ] [pleaded ( ) / was convicted of the criminal charge of ( )], the [ ] CYS amended its report of child abuse to founded. 12. On [ ], [ ] CYS forwarded the amended report to Warren Lewis, Division of State 2

107 Services, so that he could amend the report to founded in the Childline Registry. 13. On [ ], Warren Lewis, Division of State Services, changed the status of the case from indicated to founded and notified the Bureau of Hearings and Appeals. (OR if no hearing) 1. By Order dated [ ], the Bureau of Hearings and Appeals (BHA) scheduled this appeal for an administrative hearing on its merits for [ ] in its offices in [ ]. 2. On [ ], counsel for [ ] CYS filed an Objection to Proposed Exhibits in which counsel alleged Appellant was convicted of criminal charges arising from the same factual pattern at issue in the instant appeal. 3. By Order dated [ ], BHA ordered the [ ] CYS to provide the criminal complaint, the plea disposition and any other documents concerning Appellant s no contest plea. 4. On [ ], BHA received a certified copy of the criminal information, a copy of a [ ] Court opinion dated [ ], and [ ] denials of Petitions for Allowance of Appeal filed with [ ] and [ ] by [ ]. 5. On [ ], BHA issued an order canceling the hearing scheduled for [ ] based on Collateral Estoppel and Res Judicata. Parties were granted an opportunity to submit briefs on the issues. Discussion The Department s Position: The Department argues The Appellant s Position: The Appellant argues Applicable Law A court will dismiss an appeal as moot unless an actual case or controversy exists at all stages of the judicial or administrative process. An issue is moot if the court cannot enter an order that has any legal force or effect. Britt v. Com., Dept. of Public Welfare, 787 A.2d 457 (Pa. Commw. 2001). Where there is an entry of a guilty plea, plea of nolo contendere, or an adjudication of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse, an administrative appeal under the Child 3

108 Protective Services Law regulations would usually constitute a collateral attack on the criminal adjudication or plea itself. Such collateral attack is not permitted. J.G. v. Com., Dept. of Public Welfare, 795 A.2d 1089 (Pa. Commw. 2002). The effect of a nolo contendere plea to criminal charges is equivalent to a guilty plea because it is an implied confession of guilt. Eisenberg v. Com., Dept. of Public Welfare, 512 Pa. 181, 516 A.2d 333 (1986). Collateral estoppel, otherwise known as issue preclusion, is established if the following elements are present: 1. The issue decided in the previous adjudication is identical with the one presented in the present action. 2. There was a final judgment on the merits in the previous adjudication. 3. The party against whom the plea of collateral estoppel is asserted was a party or in privity with a party to the previous adjudication. 4. The party against whom the plea is asserted has had a full and fair opportunity to litigate the issue in question in the previous action. 5. The determination in the previous adjudication was essential to the judgment in the previous adjudication. See Lehigh Valley Power Committee v. Pennsylvania Public Utility Commission, 128 Pa.Commw. 259, 563 A.2d 548 (1989), and City of Pittsburgh v. Zoning Board of A.D.J., 522 Pa. 44, 559 A.2d 896 (1989). Res judicata, otherwise known as claim preclusion, applies when four elements are present. There must be (1) identity of the thing sued for, (2) identity of the causes of action, (3) identity of the persons and parties to the action, and (4) identity of the quality in the persons for or against whom the claim is made. City of Pittsburgh v. Zoning Board of A.D.J., 522 Pa. 44, 559 A.2d 896 (1989). The Department erred when it found a nolo contendere plea formed a proper basis for changing the status of an Indicated report to Founded, because the Department did not have sufficient evidence the plea was based on the same factual circumstances involved in the regulatory child abuse allegation. Because the Indicated report involved an allegation of child abuse, the criminal proceeding must have resulted from a charge based on child abuse. The criminal charges filed against the Appellant did not mandate an inference of child abuse and the Department was wrong to infer the nolo contendere plea was to an act of child abuse. R.F. v. Com., Dept. of Public Welfare, 845 A.2d 214 (Pa. Commw. 2004). ALJ s Opinion In this case, [Discussion of facts} Therefore, for all the foregoing reasons, it is my Recommendation that this appeal be dismissed as moot. 4

109 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. RECOMMENDATION It is hereby Recommended that the Appellant s appeal be sustained and the Department of Public Welfare is directed to expunge Appellant s name from the ChildLine Registry at the numbers indicated above. OR It is hereby Recommended that the Appellant s appeal be denied. Date [Name] Administrative Law Judge

110 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. OPENING STATEMENT ADJUDICATION This is an administrative adjudication from the Appellant s appeal of a decision of the [ ] County Children and Youth Services (CYS)/the Department of Public Welfare (Department concerning the filing of indicated reports of child abuse with the ChildLine Registry. An administrative hearing was held on [ ] at the Bureau of Hearings and Appeals, in [ ] PA. The witnesses were sworn in by the Administrative Law Judge (ALJ) and testified under oath. [After the hearing transcript was received, the parties were afforded the opportunity to file a brief on or before [ ]. Counsel for CYS filed a brief on [ ]. The Appellant s Counsel filed a brief on [ ].] ALJ [ ] adjudicated. APPEARANCES For CYS/the Department: [ ], Esquire [ ], Solicitor, [ ] County CYS For Appellant: WITNESSES For CYS/the Department: For Appellant:

111 EXHIBITS For CYS/the Department: C-1 Child Protective Services Report (CY 48) For Appellant: A-1 ISSUE The issue is whether the Department/CYS is maintaining an indicated report of child abuse against Appellant in a manner consistent with the regulations concerning allegations of serious mental injury inflicted upon the subject child/children. FINDINGS OF FACT 1. The subject child, [ ], is a [male/female] child born on [ ]. 2. From [ ] to [ ], the subject child resided with [ ]. 3. The alleged abused occurred from [ ] to [ ] and was reported on [ ]. 4. The Appellant is the subject child s [relationship of the Appellant to the subject child]. 5. [Findings concerning the alleged abuse and its effect upon the child]. 6. On [ ], the Department/ CYS filed an indicated report of abuse against Appellant alleging he/she caused serious mental injury to subject child. 7. On [ ], Appellant appealed the Department s/cys s decision denying the request for expunction of his/her name from the ChildLine Registry. 8. The testimony of the Department s/cys s witnesses was credible OR the testimony of the Department s/cys s witnesses concerning [ ] was not credible. 9. The Appellant s testimony was credible OR the Appellant s testimony concerning [ ] was not credible. 10. The testimony of subject child was credible/not credible OR the subject child was excused from testifying as [ ]. DISCUSSION The Department s Position: 2

112 The Department argues The Appellant s Position: The Appellant argues APPLICABLE LAW In this matter, the burden rests with the Department/CYS to prove by substantial evidence that the indicated report of abuse should not be expunged. 55 Pa. C.S.A (f)(2). "Evidence is substantial where it so preponderates in favor of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent evidence and reasonable inferences drawn therefrom." Children & Youth Serv. v. Dept of Public Welfare, 103 Pa. Cmwlth. 617, , 520 A.2d 1246, 1249 (1987). Substantial evidence is defined in 23 Pa. C.S.A. 6303(a) as "evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." The Department/CYS carries the burden of proving that the indicated report filed against Appellant was filed and is being maintained in a manner that is consistent with the regulations. 55 Pa. Code a(g). A Child Protective Services (CPS) agency is permitted to file an indicated report if the investigation by the county agency or the Department determines that there is substantial evidence of the alleged abuse based upon either available medical evidence, the investigation by the CPS agency, or the admission of the acts of abuse by the perpetrator. 55 Pa. Code A perpetrator is defined as a person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as the child or a paramour of the child s parent. A person responsible for a child s welfare is defined as a person who provides permanent or temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision and control. An individual who resides in the same home is defined as an individual who is 14 years of age or older and who resides in the same home as the child. See 23 Pa. C.S.A and 55 Pa. Code According to 55 Pa. Code , Child abuse is defined as follows: (A) Any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child. (B) An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or exploitation of a child. (C) A recent act, failure to act or series of the acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or exploitation of a child. (D) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide the essentials of life, including adequate medical care, which endangers a child s life 3

113 or development or impairs the child s functioning. Child abuse does not include injuries that result solely from environmental factors that are beyond the control of the parent or person responsible for the child s welfare, such as inadequate housing, furnishings, income, clothing and medical care. 55 Pa. Code Serious mental injury is defined as, A psychological condition as diagnosed by a physician or licensed psychologist, including the refusal of appropriate treatment that does either of the following: (i) Renders the child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child s life or safety is threatened. (ii) Seriously interferes with the child s ability to accomplish ageappropriate developmental and social tasks. 55 Pa. Code The Secretary of the Department of Public Welfare, through her designee, the Director of the Bureau of Hearings and Appeals, is the statutory finder of fact in expunction cases. R. v. Com., Dept. of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994). It is the job of the factfinder to resolve conflicts in testimony and make specific findings of fact in order to apprise Commonwealth Court of the legal and factual basis for the conclusion. Bucks County CYS v. Com., Dept. of Public Welfare, 151 Pa. Cmwlth. 110, 616 A.2d 170 (1992). ALJ S OPINION In this case, [apply law to facts]. Therefore, for all the foregoing reasons, it is my Recommendation that that Appellant s appeal be sustained/denied [and the Department of Public Welfare directed to expunge Appellant s name from the ChildLine Registry at the numbers listed above.] 4

114 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. RECOMMENDATION It is hereby Recommended that the Appellant s appeal be denied/sustained [and the Department of Public Welfare is directed to expunge Appellant s name from the ChildLine Registry at the number indicated above]. Date [ ], Esq. Administrative Law Judge

115 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. OPENING STATEMENT ADJUDICATION This is an adjudication of the appeal of the above named Appellant from a decision of the [ ] County Children and Youth Services (CYS) concerning the filing of an indicated report of child abuse with the ChildLine Registry. An administrative hearing was conducted on [ ] at the Bureau of Hearings and Appeals in [ ], PA. The witnesses were sworn in by the undersigned and testified under oath. Administrative Law Judge (ALJ) [ ] presided. APPEARANCES For the Department of Public Welfare (Department): [ ], Esq., Solicitor for [ ] County CYS For Appellant: Appellant WITNESSES For the Department: [ ] Caseworker, [ ] County CYS [ ], Subject Child For Appellant: Appellant EXHIBITS For the Department: C-1

116 For Appellant: A-1 ISSUE The issue is whether the Department is maintaining an indicated report of child abuse against the Appellant in a manner which is consistent with the regulations concerning an allegation that the Appellant placed the subject child in imminent risk of [serious physical/sexual abuse or exploitation]. FINDINGS OF FACT 1. The subject child, [ ], is a [ ] child born on [ ] to [ ] and [ ]. 2. At the time of the alleged abuse, the subject child resided with [ ] in [ ], [ ] County, Pennsylvania. 3. The alleged abuse occurred on [ ], and it was reported on [ ]. 4. For the relevant time period, the Appellant cared for the subject child. 5. [Additional Findings based on circumstances in case]. 6. On [ ], [ ] County CYS filed an indicated report against the Appellant, [ ], alleging imminent risk of serious physical injury/sexual abuse or exploitation because [ ]. 7. On [ ], the Appellant filed an appeal requesting expunction of his/her name from the ChildLine Registry. 8. The testimony of [ ] is/is not credible. 9. The Appellant s testimony is/is not credible. DISCUSSION The Department s Position: The Department argues The Appellant s Position: The Appellant argues 2

117 APPLICABLE LAW According to 23 Pa. C.S.A. 6341(a), a child abuse record may be expunged by the Secretary if good cause is shown and proper notice provided to the appropriate subjects of the report, or if the alleged perpetrator appeals an indicated report of abuse within 45 days of being notified of the report on the grounds that the report is inaccurate or is being maintained in a manner inconsistent with the Child Protective Services Law. 23 Pa. C.S.A. 6341(a) and (b). Child abuse is defined as: (i) Any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age. (ii) An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age. (iii) Any recent act, failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age. (iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide essentials of life including adequate medical care, which endangers the child s life or development or impairs the child s functioning. 23 Pa. C.S.A. 6303(b); 55 Pa. Code A perpetrator is defined as a person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as the child or a paramour of the child s parent. An individual who resides in the same home is defined as an individual who is 14 years of age or older and who resides in the same home as the child. 55 Pa. Code A "person responsible for the child's welfare" is defined as a person who "provides permanent or temporary care, supervision or control of a child in lieu of parental care, supervision and control either by legal authorization or consent of the parent." See 23 Pa. C.S.A and 55 Pa. Code An "individual residing in the same home as the child" is defined under 23 Pa. C.S.A as an individual who is 14 years of age or older and who resides in the same home as the child. A Child Protective Services (CPS) agency is permitted to file an indicated report if the investigation by the Agency determines that there is substantial evidence of the alleged abuse based upon either available medical evidence, the investigation by the CPS agency, or the admission of the acts of abuse by the perpetrator. 55 Pa. Code Substantial evidence is defined in 23 Pa. C.S.A. 6303(a) as "evidence which 3

118 outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." The CPS agency bears the burden of demonstrating that the actions of the perpetrator constitute child abuse within the meaning of the Child Protective Services Law (CPSL) and Department regulation. B.J.K. v. Dep t. of Public Welfare, 773 A.2d 1271 (Pa. Cmwlth. 2001). The Department has published proposed regulations or guidelines for its interpretation of imminent risk. In E.D. v. Dep t. of Public Welfare, 719 A.2d 384, 389 (Pa. Cmwlth. 1998), the Commonwealth Court found the Department s proposed regulations persuasive in their interpretation of the term imminent risk. These proposed regulations or guidelines indicate that to substantiate imminent risk of serious physical injury or sexual abuse/exploitation: (A) a specific act or failure to act must be documented; (B) the act or failure to act must result in risk of abuse; i.e. be supported by substantial evidence that serious physical injury... would have occurred; (C) the risk of abuse must have been imminent; (1) For risk of serious physical injury, imminent means during and/or immediately following the act or failure to act. (2) For risk of sexual abuse/exploitation, "imminent" means the specific time frame during which the child was exposed to risk of such abuse. (D) for an alleged act of imminent risk of serious physical injury: (1) there must be substantial evidence that, but for happenstance, the intervention of a third party or actions by the alleged victim, serious injury would have occurred; and (2) the injury would have been serious; i.e., would have: (i) caused the child severe pain; or (ii) significantly impaired the child s physical functioning. (E) for an alleged failure to act suggesting imminent risk of serious physical injury there must be substantial evidence that: (1) the alleged perpetrator had known or should have known that the failure to act created risk of serious injury to the child; and (2) the alleged perpetrator failed to exercise reasonable judgment to keep the child out of a situation which created imminent risk of serious physical injury. (F) for alleged imminent risk of sexual abuse or sexual exploitation: (1) there must be substantial evidence that an action on the part of the alleged perpetrator placed the child at imminent risk of sexual abuse/exploitation; or (2) there must be substantial evidence that the alleged perpetrator had known or should have known of the risk of sexual abuse and failed to exercise reasonable judgment in preventing such risk. 4

119 OCYF (Office of Children, Youth, and Families) Bulletin, , pp. 3-4, 2(b)(II))(emphasis added) [WARNING: this was not codified as of 1/2009] Imminent risk has been defined under the Child Protective Services Law as an act or failure to act that would have resulted in sexual abuse or exploitation. E.D. v. Dep t. of Public Welfare, 719 A.2d 384, 389 (Pa. Cmwlth. 1998). In order to meet the definition of imminent risk for physical abuse, there must be evidence that would make it likely that the subject child would have suffered a serious physical injury without the intervention of a third party. E.D., 719 A.2d at 389. In order to meet the definition of imminent risk for sex abuse or sexual exploitation, the appellant must know or should have been aware of the risk of sex abuse or sexual exploitation to the child and failed to exercise reasonable judgment to prevent that risk. C.K. v. Dep t. of Public Welfare, 869 A.2d 48 (Pa. Cmwlth 2004). A mother placed her children in imminent risk of sexual abuse when she repeatedly left them with indicated sexual perpetrators even though the local children and youth agency repeatedly moved the mother and her children out of the residence of the sexual perpetrators and repeatedly warned her not to reside at their residence with her children. The mother s repetitive conduct of living with the sexual perpetrators placed her children in a situation where they were exposed to indicated sexual perpetrators for an extended and consecutive amount of time. C.K. v. Dep t. of Public Welfare, 869 A.2d 48 (Pa. Cmwlth. 2005). The Department must demonstrate by substantial evidence that the Appellant put the child at risk of serious physical injury, sex abuse, or sexual exploitation and that the risk was imminent, or in other words, during and/or immediately following the act or failure to act. For instance, where the county agency failed to present substantial evidence the subject child would have suffered abuse but for the intervention of a third party, no imminent risk of harm was present to maintain the indicated report of child abuse against the alleged perpetrator. E.D. v. Com., Department of Public Welfare, 719 A.2d 384 (Pa. Cmwlth. 1998). Serious Physical Injury Serious physical injury is defined as an injury that: (i) causes a child severe pain; or (ii) significantly impairs a child s physical functioning, either temporarily or permanently. 23 Pa.C.S.A. 6303; 55 Pa. Code Section According to 23 Pa. C.S.A. 6303(a), nonaccidental is defined as an injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk. Serious bodily injury is defined at 23 Pa. C.S.A. 6303(a) as any bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of function of any bodily member or organ. The 5

120 Child Protective Services Law defines serious physical injury as an injury that causes a child severe pain; or significantly impairs a child's physical functioning, either temporarily or permanently. 23 Pa. C.S.A A bruise does not in and of itself necessarily lead to a finding of severe pain. L.A.J. v. Com., Dept. of Public Welfare, 726 A.2d 1133 (Pa. Commw. 1999). A finding of severe pain does not require a child victim s testimony to that effect or unequivocal testimony. Such a finding can be supported by circumstantial evidence. D.N. v. Com., Dept. of Public Welfare, 562 A.2d 433 (Pa. Commw. 1989). Parents or guardians may use corporal punishment to discipline their children absent a substantial risk of death, disfigurement, serious bodily injury, gross degradation, extreme pain or mental distress, and provided that the parent does not act with malicious intent in punishing the child. B.J.K. v. Department of Public Welfare, 773 A.2d 1271 (Pa. Cmwlth. 2001), citing Boland v. Leska, 308 Pa. Superior Ct. 169, 454 A.2d 75 (1982). Both J.K.'s mother and Ms. Davis-Palermo testified that J.K. winced when the bruised area was touched. J.K.'s mother also testified that J.K. would scream when she attempted to apply a cold compress or ice to the bruised area. This evidence is sufficient to establish that J.K. suffered an injury that resulted in severe pain. S.T. v. Department of Public Welfare, Lackawanna County Office, Children, Youth & Families, 681 A.2d 853, 857, fn 4 (1996). Mother was entitled to expungement of indicated report of child abuse where she struck her 13-year-old child with a belt, but the child did not suffer severe pain. Although the child testified that the welts hurt initially, both pain and welts disappeared during the course of the school day to the point that, at evening time, the child had no pain and could not see any welts on her legs, and the school nurse who examined the child that day did not believe further medical treatment of any kind was warranted. L.A.J. v. Department of Public Welfare, 726 A.2d 1133 (Pa. Cmwlth. 1999). Evidence that mother hit her 13-year-old child with her hand on the first floor of their house, followed child upstairs, hit child with a belt repeatedly while on the second floor of the house, and child suffered a split lip, bruised finger, cut nose, bruised chin, and hurt shoulder as a result of being hit by her mother, supported the denial of mother s petition to expunge an indicated report of child abuse. B.J.K. v. Department of Public Welfare, 773 A.2d 1271 (Pa. Cmwlth. 2001), citing Boland v. Leska, 308 Pa. Superior Ct. 169, 454 A.2d 75 (1982). A bruise does not in and of itself necessarily lead to a finding of severe pain. A child spanked 9 to 12 times with a paddle causing bruises on child's buttock was not abused where there was no evidence of impairment, no medical testimony, and child did not recall being in great pain. N.B. v. Com., Dept. of Public Welfare, 107 Pa. Commw. 26, 527 A.2d 623 (1987). A finding of severe pain does not require a child victim s testimony to that effect or unequivocal testimony. Such a finding can be supported by circumstantial evidence. 6

121 D.N. v. Com., Dept. of Public Welfare, 562 A.2d 433 (Pa. Commw. 1989). Sexual Injury Sexual abuse or exploitation (i) Any of the following if committed on a child by a perpetrator: (A) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in sexually explicit conduct. (B) A simulation of sexually explicit conduct for the purpose of producing a visual depiction, including photographing, videotaping, computer depicting or filming, of sexually explicit conduct. (C) Any of the following offenses as defined by the crimes code: (1) Rape as defined by section 3121 (relating to rape). (2) Statutory sexual assault as defined by section (relating to statutory sexual assault). (3) Involuntary deviate sexual intercourse as defined by section 3123 (relating to involuntary deviate sexual intercourse). (4) Sexual assault as defined by section (relating to sexual assault). (5) Aggravated indecent assault as defined by section 3125 (relating to aggravated indecent assault). (6) Indecent assault as defined by section 3126 (relating to indecent assault). (7) Indecent exposure as defined by section 3127 (relating to indecent exposure). (8) Incest as defined by section 4302 (relating to incest). (9) Prostitution as defined by section 5902 (relating to prostitution and related offenses). (D) Exploitation which includes any of the following: (1) Looking at the sexual or other intimate parts of a child for the purpose of arousing or gratifying sexual desire in either person. (2) Engaging or encouraging a child to look at the sexual or other intimate parts of another person for the purpose of arousing or gratifying sexual desire in any person involved. (3) Engaging or encouraging a child to participate in sexually explicit conversation either in person, by telephone, by computer or by a computer aided device. Except as provided in sections 3121 (relating to rape), (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse) and (relating to sexual assault), a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if: (1) the person does so without the complainant's consent; (2) the person does so by forcible compulsion; (3) the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; (4) the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring; 7

122 (5) the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance; (6) the complainant suffers from a mental disability which renders him or her incapable of consent; (7) the complainant is less than 13 years of age; or (8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other. 18 Pa. C.S.A A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm. 18 Pa. C.S.A A person is guilty of incest if that person knowingly marries or cohabits or has sexual intercourse with an ancestor or descendant, a brother or sister of the whole or half blood or an uncle, aunt, nephew or niece of the whole blood. The relationships referred to in this section include blood relationships without regard to legitimacy, and relationship of parent and child by adoption. 18 Pa. C.S.A A person is guilty of prostitution if he or she: (1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or (2) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity. 18 Pa. C.S.A Sexual abuse or exploitation is defined at 23 Pa. C.S.A as the employment, use, persuasion, inducement, enticement or coercion of any child to engage in or assist any other person to engage in any sexually explicit conduct or any simulation of any sexually explicit conduct for the purpose of producing any visual depiction, including photographing, videotaping, computer depicting or filming, of any sexually explicit conduct or the rape, sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, molestation, incest, indecent exposure, prostitution, statutory sexual assault or other form of sexual exploitation of children. ALJ S OPINION In this case, Therefore, for all the foregoing reasons, it is my Recommendation that the Appellant s appeal be denied/sustained [and the Department of Public Welfare is directed to expunge Appellant s name from the ChildLine Registry at the number listed 8

123 above]. 9

124 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. RECOMMENDATION It is hereby Recommended that the Appellant s appeal be dismissed/sustained. Date [ ], Esq. Administrative Law Judge

125 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: [Appellant] In Re: Child Abuse Expunction CL. No. Docket No. Opening Statement ADJUDICATION This is an Adjudication, Recommendation, and Order on the appeal of the above named Appellant from a decision of the [ ] County Children and Youth Services (CYS)/the Department of Public Welfare (Department) concerning its filing of a founded report of child abuse with the ChildLine Registry. The Department/CYS denied the Appellant s request for expunction of [his/her] name from the ChildLine Registry on [ ]. An administrative hearing was conducted on [ ] at the Bureau of Hearings and Appeals, [ ], PA. The witnesses were sworn in by the undersigned and testified under oath. The transcript was received on [ ]. The parties submitted briefs to the Bureau of Hearings and Appeals on [ ]. The hearing record closed on [ ]. Upon review of the testimony, briefs and exhibits, the undersigned prepared this Recommendation and Order. Administrative Law Judge (ALJ) [ ] presided. Appearances For CYS/the Department: [ ], Esq., Solicitor for [ ] County CYS For Appellant: Appellant, pro se Witnesses For CYS/the Department: [ ] Caseworker, [ ] County CYS [ ], Subject Child For Appellant: Appellant

126 Exhibits For CYS/the Department: C-1 For Appellant: A-1 Transcripts Issue The issue is whether the CYS s/the Department s decision to maintain a founded report of child abuse against Appellant is consistent with the regulations, as concerns an allegation of [ ] abuse inflicted upon the subject child. Findings of Fact 1. On [ ], the Department/CYS notified the Appellant that a founded report of child abuse had been filed against her/him. 2. By letter dated [ ], the Appellant filed an appeal contesting the Department s decision to maintain a founded report of child abuse against her/him. 3. [On ( ), the ( ) County Court found in a (non-criminal) proceeding that ( ).] 4. [On ( ), the Appellant entered a guilty plea/plea of nolo contendere to the charge of ( ).] 5. [On ( ), the [ ] County Court found the Appellant guilty of the charge of ( ).] 6. [Condition that causes lack of jurisdiction for founded report]. Discussion The Department s Position: The Department argues The Appellant s Position: The Appellant argues Applicable Law 2

127 According to 23 Pa. C.S.A. 6341(a), a child abuse record may be expunged by the Secretary if good cause is shown and proper notice provided to the appropriate subjects of the report, or if the alleged perpetrator appeals an indicated report of abuse within 45 days of being notified of the report on the grounds that the report is inaccurate or is being maintained in a manner inconsistent with the Child Protective Services Law. 23 Pa. C.S.A. 6341(a) and (b). 18 Pa. C.S.A Endangering welfare of children (a) Offense defined. A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support. (b) Grading. An offense under this section constitutes a misdemeanor of the first degree. However, where there is a course of conduct of endangering the welfare of a child, the offense constitutes a felony of the third degree. 23 Pa. C.S.A. 6303(a) [a] child abuse report made pursuant to this chapter if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on any of the following: (1) Available medical evidence. (2) The child protective service investigation. (3) An admission of the acts of abuse by the perpetrator. 23 Pa. C.S.A Founded report. A child abuse report made pursuant to this chapter if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused, including the entry of a plea of guilty or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse. 55 Pa. Code Founded report A child abuse report made under the CPSL and this chapter if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused, including the entry of a plea of guilty or nolo contenderee or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse. The scope of an appeal of a founded report of child abuse is limited to determining whether or not the underlying adjudication supports a founded report that a named perpetrator is responsible for the abuse and does not permit a named perpetrator to collaterally attack or otherwise challenge the underlying judicial adjudication. J.G. v. Com., Dept. of Public Welfare, 795 A.2d 1089 (Pa. Commw. 2002). A report is deemed founded if there has been any judicial adjudication based 3

128 upon a finding that a child who is a subject of the report has been abused, and includes the entry of a guilty plea, a nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse. J.G. Where there is an entry of a guilty plea, plea of nolo contendere, or an adjudication of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse, an administrative appeal under the Child Protective Services Law regulations would usually constitute a collateral attack on the criminal adjudication or plea itself. Such collateral attack is not permitted. J.G. Where a founded report of child abuse is based upon a judicial adjudication in a non-criminal proceeding, such as a dependency action, in which a court enters a finding that a child was abused, but does not issue a corresponding finding that a named perpetrator was responsible for the abuse, the named perpetrator is entitled to an administrative appeal before the Secretary of the Pennsylvania Department of Public Welfare to determine whether the underlying adjudication of child abuse supports a founded report of abuse. J.G. Where an individual does not challenge the criminal nolo contendere plea but only challenges the designation of a founded status, he is not collaterally attacking the trial court s determination but only the characterization given to that plea. Because he is not attacking the underlying matter, the individual is entitled to an administrative hearing as to whether the nolo contendere plea was properly characterized. R.F. v. Com., Dept. of Public Welfare, 845 A.2d 214 (Pa. Commw. 2004). Where only one defendant is charged with abuse in a PFA action, only one person defends those charges, an adjudication finds that such abuse occurred and prohibits further contact between the victim child and that defendant, the PFA order is an adjudication containing a sufficient definitive finding upon which DHS based the Founded Report.. Philadelphia Co. Dep t of Human Servs., Div. of Children & Youth v. Dep t of Pub. Welfare, No C.D (July 10, 2008) A Founded Report may be based upon any judicial adjudication finding that the child who is the subject of the report has been abused, including, but not limited to, criminal charges. Philadelphia Co. Dep t of Human Servs., Div. of Children & Youth v. Dep t of Pub. Welfare, No C.D (July 10, 2008) ALJ s Opinion In this appeal, [apply law to facts] [The Department/CYS erred when it found a nolo contendere plea formed a proper basis for changing the status of the Indicated report to Founded, because the Department did not have sufficient evidence the plea was based on the same factual circumstances involved in the regulatory child abuse allegation.] OR 4

129 [The Department/CYS correctly changed the status of the Indicated report to Founded as the nolo contendere plea was based on the same factual circumstances involved in the regulatory child abuse allegation.] OR [The ( ) County Court found in a (non-criminal) proceedings that the subject child was abused while under the care of ( ).] Therefore, for all the foregoing reasons, it is my Recommendation that the appeal of Appellant be denied/sustained. 5

130 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE APPEAL OF: In re: CL # Docket No. Child Abuse Expunction ORDER AND NOW, this day of [ ] the Department of Public Welfare, Office of Children, Youth and Families, Division of State Services, having provided written notice to the Bureau of Hearings and Appeals that the instant report is unfounded (see attachment hereto), it is hereby ORDERED and DECREED that the appeal of the Appellant is DISMISSED as MOOT and that the Office of Children, Youth and Families is directed to expunge the instant report. Either party to this proceeding has fifteen (15) calendar days from the date of this decision to request reconsideration by the Secretary of the Department. To seek reconsideration, you must fully complete the enclosed application/petition for reconsideration. The application/petition shall be addressed to the Secretary, but delivered to the Director, Bureau of Hearings and Appeals, P.O. Box 2675, Harrisburg, Pennsylvania, , and must be received in the Bureau of Hearings and Appeals within fifteen (15) calendar days from the date of this Order. This action does not stop the time within which an appeal must be filed to Commonwealth Court. The Applicant/Petitioner shall serve a copy of the application/petition for reconsideration on the opposing party(ies). The appropriate party(ies), where permitted, may take issue with this Adjudication, and Order, and may appeal to the Commonwealth Court of Pennsylvania, within thirty (30) days from the date of this order. This appeal must be filed with the Clerk of Commonwealth Court of Pennsylvania, 601 Commonwealth Avenue, Suite 2100, P.O. Box 69185, Harrisburg PA If you file an appeal with the Commonwealth Court, a copy of the appeal must be served on the government unit which made the determination in accordance with Pa. R.A.P and In this case, the service must be made to: Department of Public Welfare, Bureau of Hearings and Appeals, 2330 Vartan Way, 2 nd Floor, Harrisburg, Pennsylvania , AND Department of Public Welfare, Office of General Counsel, 3 rd Floor West, Health & Welfare Building, Harrisburg, PA Final Administration Action and Mailing Date Thomas E. Cheffins, Esquire Chief Administrative Law Judge Bureau of Hearings and Appeals cc: Appellant Esquire County CYS Terry Clark

131 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE BUREAU OF HEARINGS & APPEALS PO BOX 2675 HARRISBURG, PA (717) Fax (717) [Date], Esquire Appeal of: CL No: Docket No: In re: Dear Attorney : Pursuant to your letter of [date], the hearing scheduled for [date] has been cancelled. Your client s appeal has been marked as withdrawn. The file has been closed. You will be receiving no further correspondence from this office regarding this appeal. Very truly yours, Matthew J. McFadden Regional Manager cc:, Esq. County C&Y Svcs. Terry Clark, Division of State Services

132 ATTACHMENTS: MISCELLANEOUS APPEALS

133 ADJUDICATION REVIEW FORM ALJ Reviewed By Date Reviewed Case Name Case Number and Appeal Number Issue(s) TANF GA FS MA LIHEAP CCIS CAE Category (Check one or more) Prvdr MCO Other A. HEARING FILE All exhibits are clearly marked Hearing record is appropriately completed including the Hearing Record Summary YES NO B. HEARING DECISION Issues clearly stated and to the point Findings of Fact are actual facts supported by competent evidence in the hearing record Findings of Fact are sufficient to support decision Relevant regulations, law, statutues are cited DPW's position and arguments are identified Appellant's position and arguments are identified ALJ's decision is stated in a clear and concise manner and supported by regulation or statute Order/Recommendation is consistent with the Discussion section Decision outcome and directions are clearly stated and framed for understandable implementation by Grammar, spelling and math correct and decision proofread for typographical errors Reviewer concurs with ultimate decision (If no, reason in Comments) ALJ explains how regulations apply to the facts of the case Acronyms are spelled out and explained when first used in the decision C. COMMENTS YES NO

134 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE BUREAU OF HEARINGS AND APPEALS DATE: September 17, 2009 TO: FROM: RE: All BHA Staff Thomas Cheffins, Esquire Director, Bureau of Hearings and Appeals Internal Policy Memorandum # 24G Perfecting Recipient Appeals This memo is intended to outline the method for the initial processing of MAPPER Department 89 recipient and recipient-related appeals that do not comply with the procedural filing guidelines provided by regulation at 55 Pa. Code 275 and 1 Pa. Code 31, 33, and 35. Appeals that are not in compliance with these regulations are considered unperfected. This memo replaces all previous versions of Internal Policy Memo #24. Functions previously assigned to the Site Administrator in other versions of this memo are now to be performed by the Appeal Perfector. I. In General - 1) The Appeal Perfector in each BHA region will track unperfected appeals using the region s Access Database, MAPPER, and logs and monthly reports. 2) Appeals with both a perfected issue and an unperfected issue will not be separated. If the perfected issue involves Food Stamps, the Perfector will notate the perfecting issue (i.e. untimely MA, unsigned CA etc ) on the cover sheet and forward the appeal for scheduling. The perfected issue will be addressed by the ALJ at the hearing. A Rule to Show Cause will not be issued under these circumstances in order to ensure the timely adjudication of Food Stamp issues. 3) If the perfected issue does not involve Food Stamps, the Appeal Perfector will issue a Rule to Show Cause. 4) The Appeal Perfector will adjust the Interim Relief (IR) due date 10 calendar days for appeals which require the Appellant or representative to submit additional information or respond to a Rule to Show Cause in order to perfect the appeal. 5) One appeal or hearing request may contain a maximum of three issues. An appeal or hearing request containing more than three issues will be separated into additional appeals, each containing a maximum of three issues. The appeal cover

135 sheet will be copied and the copy placed on the separated appeal with the appropriate modifications. 6) Rules to Show Cause, Dismissal Orders and other correspondence will be clear, concise and in plain language. 7) The Rules to Show Cause, Dismissal Orders and other correspondence will be printed in a font that is at least a 10 point font. 8) If a Rule to Show Cause must be issued, the Appeal Perfector may extend the Interim Relief (IR) Date 10 calendar days. ***All Regions Perfectors will prepare long dismissals with Findings when the responses to the RTSC warrant such. II. Timeliness - 1) In the majority of cases, the Appeal Perfector will determine the timeliness of the appeal prior to scheduling. However, if a factual dispute exists regarding the timeliness of the appeal and/or notice of the adverse action, the Appeal Perfector shall send the appeal to be scheduled for a hearing. At the time of the hearing, the Administrative Law Judge (ALJ) will take testimony on the issue of timeliness and notice prior to the hearing on the merits. The adjudicating ALJ will rule on the timeliness/notice issues in the written adjudication. 2) In computing timeliness, calendar days rather than business days should be counted. However, if a deadline falls on a weekend or holiday, the deadline will be extended to the next business day. (See regulation at 1 Pa. Code 31.12). 3) The timeliness of each issue on appeal will be calculated separately. 4) In cases where a written notice was issued to the Appellant and/or representative, the deadline to timely file the appeal is calculated based on the date the adverse action notice was issued to the Appellant or representative. In order to calculate timeliness, the Appeal Perfector will begin counting the days on the day after the written notice was issued and up to and including the postmark date of the appeal. The Appeal Perfector will compare the number of days to the filing deadline (see #15 below) to determine if the appeal has been timely filed. a) On April 12, 2004, the Secretary of Public Welfare ordered that all recipient/client appeals are deemed timely if they are postmarked or received by the filing deadline. If the appeal is timely filed only by using the postmark date, the Appeal Perfector must change the date the appeal was filed on the Appeal Cover Sheet to the postmark date. 2

136 5) If the Department of Public Welfare agency or provider failed to date stamp the appeal upon receipt, the Appeal Perfector will use the date of the postmark on the envelope in which the appeal was received to determine the file date. If the appeal was not date-stamped and the envelope was not included or the post mark cannot be read, the date the Appellant or representative signed the appeal will be used. 6) Absent evidence to the contrary, the date the notice is issued is the date the caseworker signed a handwritten notice or the date an automated notice was generated. 7) The timeliness of each issue is determined primarily based upon the regulations at 55 Pa. Code (b). 55 Pa. Code 275.3(b) provides the following deadlines: a) 30 days from the date of a written notice for a non-food stamp issue. (See regulations at 55 Pa. Code 275.3(b)(1)). b) 60 days from the date of a decision or action regarding a non-food stamp issue when a written notice was not sent and was not required or 60 days from a failure to act. (See regulations at 55 Pa. Code 275.3(b)(2)). c) When the Department of Public Welfare agency or provider did not send a required written notice, or because of administrative error, ongoing delay, or failure to take corrective action that should have been taken, the appellant may file an appeal for 6 months after the action or failure to act. This applies to both food stamp and non-food stamp issues (See regulations at 55 Pa. Code 275.3(b)(3)). d) After 6 months an appeal may be accepted provided it is accompanied by an affidavit signed by the Appellant stating the following: i) He/she did not know of his/her right of appeal or believed the problem was being resolved administratively. ii) He/she actually believes the county office erred in its actions. iii) The appeal is being made in good faith. (a) This applies to both food stamp and non-food stamp issues. (See regulation at 55 Pa. Code 275.3(b)(3)). e) For food stamp issues, 90 days from the date of an action or loss of benefits. This includes a denial of a request to restore benefits that were lost more than 90 days but less than one year prior to the request. (55 Pa. Code 275.3(b)(4)). f) A food stamp household, may request an appeal of the current amount of benefits at any time within the certification period. (55 Pa. Code 275.3(b)(4)). 3

137 8) Exceptions: a) If the specific program related to the issue on appeal has regulations that provide for an appeal filing deadline and that deadline differs from the above, timeliness will be based upon the specific program regulation. b) Likewise, if the written notice issued to the appellant has a deadline which extends beyond the deadlines outlined in 55 Pa Code 275.3(b), use the deadline provided on the written notice. (Example: Notices from BCSE grant 90 days. Therefore, an appeal of a cash overpayment received/postmarked on the 90th day will be considered timely filed, etc.) 9) Rules to Show Cause and Dismissal Orders for Untimely Filing: BHA may issue Rules to Show Cause under the authority of 1 Pa. Code If an appeal appears to be untimely filed, the Appeal Perfector will issue a Rule to Show Cause to the Appellant and copy the Department of Welfare agency and/or provider (and the Appellant s representative, if applicable). a) The Rule to Show Cause will require that the Appellant or representative respond in writing to the Appeal Perfector indicating why the appeal should be considered timely filed. The Rule to Show Cause will be returnable in ten (10) days and will indicate that if a response is not received/postmarked within ten (10) days, the appeal will be dismissed. b) If the Appeal Perfector has not received a response to the Rule to Show Cause at the expiration of the ten day period, the appeal shall be dismissed using the automated dismissal (R-DISS-0107 N OHA107) available on MAPPER. c) If the Appeal Perfector receives a response to the Rule to Show Cause, the Appeal Perfector will evaluate the response to determine whether the appeal shall be scheduled for a hearing. d) The appeal will be scheduled for hearing if the response addresses the issue of timeliness and raises disputes of fact or indicates possible grounds for an appeal nunc pro tunc such as: the appeal was filed untimely due fraud, administrative error, breakdown in the administrative process, or unique and compelling factual circumstances establishing a non-negligent failure to file a timely appeal. If the appeal is to be scheduled, the scheduling letter shall advise the parties that the timeliness issue as well as the substantive issue will be heard at the time of the hearing. e) At the time of the hearing, the hearing Administrative Law Judge shall take evidence and testimony on the timeliness issue. The Administrative Law Judge may, at his/her discretion, also take testimony on the substantive issue on 4

138 appeal. The Administrative Law Judge will rule on the timeliness issue in his/her written adjudication. f) If the Appeal Perfector determines that the response to the Rule to Show Cause does not merit the scheduling of a hearing, in that it admits that the appeal was untimely filed without good cause or that it does not address the issue of untimely filing, the Appeal Perfector will dismiss the appeal via Dismissal Order. The regulatory authority is 55 Pa. Code 275.3(b). III. Jurisdiction 1) The Appeal Perfector will evaluate appeals received by BHA to determine whether they are appeals of issues under BHA s jurisdiction. See regulations at 55 Pa. Code 275.1(a)(4)(i) for a general description of BHA s jurisdiction. The Appeal Perfector will use BHA issue codes, regulations, statutes, DPW bulletins, state plans, and other resources, to determine whether the issue on appeal may be heard by BHA. 2) If the Appeal Perfector determines that the issue on appeal does not fall under BHA s jurisdiction, but does fall under the jurisdiction of another state agency, the Appeal Perfector will send the original appeal back to the Appellant with the cover letter. 3) Rules to Show Cause and Dismissal Orders for Lack of Jurisdiction - If jurisdiction cannot be determined, the Appeal Perfector will issue a Rule to Show Cause to the Appellant with a copy to the Department or provider (and Appellant s representative if applicable) asking the Appellant to respond in writing to the Appeal Perfector why the Bureau of Hearings and Appeals has jurisdiction over the matter. The Rule to Show Cause will be returnable in ten days and will indicate that if a written response is not received within ten days, the appeal will be dismissed. a) If the Appellant does not respond to the Rule to Show Cause, after the expiration of the ten day period, the Appeal Perfector will have the appeal dismissed using the automated dismissal numbered R-DISS-0116 N OHA116 that is available on MAPPER. b) If the Appellant responds to the Rule to Show Cause, the Appeal Perfector will evaluate the response and determine if the Bureau of Hearings and Appeals may hear the appeal. If based on the response to the Rule to Show Cause, the appeal is under BHA s jurisdiction, the Appeal Perfector will submit it to be scheduled for a hearing. c) If the response confirms that the appeal is not under BHA s jurisdiction, the Appeal Perfector will dismiss the appeal with a written Dismissal Order. The regulatory authority is 55 Pa. Code 275.1(a)(4)(i) & (ii). 5

139 d) If after review of the response to the Rule to Show Cause, jurisdiction is still undetermined, the Appeal Perfector will submit the appeal to be scheduled for a hearing with instructions to the hearing Administrative Law Judge (ALJ) to address jurisdiction as the first issue at the hearing. The ALJ will address the issue of jurisdiction in the written adjudication. IV. Specificity 1) Appeals must specify the action appealed from under 55 Pa. Code 275.4(a)(2)(ii). The Appellant is not required to submit a copy of the adverse action notice. However, if the adverse action notice is not submitted with the appeal, we may request that the Appellant specify what action being appealed by other means such as a brief written narrative. 2) The Department also shares the responsibility of clarifying the action on appeal. The Department is required to forward the proposed action to BHA along with the Appellant s appeal letter. See regulation at 55 Pa. Code 275.4(a)(2)(i). 3) The Appeal Perfector shall contact the Department to obtain a copy of the adverse action notice or may print a copy of the adverse action notice from CIS or the OIM intranet if the notice is automated. 4) Rules to Show Cause and Dismissal Orders for Lack of Specificity If the issue on appeal cannot be otherwise determined, the Appeal Perfector may issue a Rule to Show Cause on the Appellant requesting that the Appellant further clarify the issue on appeal. The Rule to Show Cause will be copied to the Department and the Appellant s representative. The regulatory authority is 55 Pa. Code 275.4(a)(2)(ii). See previous sections on Rules to Show Cause and Dismissal Orders for procedures. A copy of the appeal should be attached to the Rule to Show Cause for the Appellant s reference. If the Appellant does not respond to the Rule to Show Cause, a MAPPER automated dismissal number R-DISS-0117 N OHA117 should be issued at the direction of the Appeal Perfector. V. Signature (Non-Food Stamp Appeals) 1) All non-food stamp appeals must be signed by the Appellant (or Appellant s representative) per 55 Pa. Code 275.4(a)(2)(i). Food stamp appeals are exempt from this requirement and need not be signed, according to 55 Pa. Code 275.4(a)(2)(vi). 2) The signature of the Appellant s authorized representative will be accepted in place of the Appellant s signature. (See the section on Authorization to Represent below) 3) A fax or copy of a signed appeal will also be accepted. If the Appeal Perfector or Administrative Law Judge questions the authenticity of a signature, the original signed appeal may be requested. 6

140 4) Rules to Show Cause and Dismissal Orders for Lack of Signature - If the Appellant (or representative) fails to sign a non-food stamp appeal, the Appeal Perfector shall issue a Rule to Show Cause to the Appellant with a copy to the Department (and representative if applicable) returning the original appeal requesting that the Appellant (or representative) sign the appeal and return it to the Appeal Perfector within ten days. The Appeal Perfector will retain a copy of the appeal while returning the original appeal to the Appellant/representative. a) If a signed appeal is not received, at the expiration of the ten day period, the Appeal Perfector will authorize the dismissal of the appeal using MAPPER automated dismissal numbered R-DISS-0109 N OHA109. b) If a signed appeal is received in response to the Rule to Show Cause, the Appeal Perfector will submit the appeal to be scheduled for a hearing. VI. Oral Appeals (Non-Food Stamp) 1) A non-food stamp appeal may be filed orally but must be followed up with a written appeal within three days. 55 Pa. Code 275.4(a)(2)(iv). Food Stamp appeals are exempt from this requirement and need not be reduced to writing. (55 Pa. Code 275.4(a)(2)(vi)). The Department will document the date of the oral appeal and forward a copy of the documentation to BHA along with the appeal cover sheet. The Department will forward the documentation of the oral appeal and cover sheet to the BHA even if the written appeal was not received. If the written appeal is received the Department will forward it to BHA. 2) Rules to Show Cause and Dismissal Orders for Oral Appeals not Reduced to Writing a) If the written appeal has not been received at the time the Perfector reviews the appeal, a Rule to Show Cause letter will be issued to the Appellant with a copy to the Department (and the Appellant s representative if applicable). The Rule to Show Cause will require the Appellant (or representative) to reduce the oral appeal to writing. The Rule to Show Cause will include a copy of the oral appeal documentation and an appeal form to be completed and returned. The Appellant or representative must complete and submit the appeal form or otherwise reduce the appeal to writing, sign it and return it to the Appeal Perfector within 10 days from the date of the Rule to Show Cause. b) If a written response is not received at the expiration of the 10 day period, the Appeal Perfector will authorize a MAPPER automated dismissal numbered R- DISS-0110 N OHA110. c) If a signed, written appeal is received, the Appeal Perfector shall submit the appeal for scheduling. 7

141 VII. Authorization to Represent - 1) The Appeal Perfector may not raise the issue of standing by sending a Rule to Show Cause asking the representative to provide proof of authorization to show he/she has standing to file the appeal and represent the Appellant. The Pennsylvania Supreme Court determined in In Re Nomination Petition of Marie DeYoung, 588 Pa. 194, 201, 903 A.2d 1164, 1168 (2006) that standing is not a jurisdictional defect and that courts, including BHA, cannot raise the issue sua sponte. The Appeal Perfector cannot dismiss a claim based on lack of standing, unless raised by a party. Likewise, ALJ s are not permitted to raise the issue of standing sua sponte and, therefore, cannot dismiss on those grounds, unless raised by a party. Accordingly, if the CAO or other Dept. Agency makes a motion to dismiss the appeal for lack of standing, the ALJ or Perfector may issue a Rule to Show Cause and potentially dismiss the appeal if there is a motion to dismiss for lack of standing and they find that the representative lacks standing. Standing will not be applicable in the following situation: A stipulation has been completed between the CAO and the Appellant s family member. Another representative (e.g. Schutjer-Bogar) files a motion to have the case reopened, even though they were not part of the original agreement. An order should not be issued under the original appeal number denying for lack of standing. Instead, an order should be issued stating that there appears to be no dispute over the terms of the stipulation and therefore, BHA will not reopen the case. Since the request was put in the form of a motion, BHA must respond with an order. Either of the following principles should be used to dismiss the motion: non-justiciable, which encompasses the doctrines of ripeness (the requirement that a circumstance must exist before a court will decide a controversy) and mootness (no longer any actual controversy). Note: If the request to have the case reopened is received via a letter from the representative, BHA should respond using a letter, not an order. 2) If the Perfector receives a motion to dismiss for standing and subsequently receives a response to the RTSC: The following guidelines below shall be used to determine whether an individual has standing. If a representative has signed the appeal on behalf of an Appellant, the Appeal Perfector shall determine if the representative is the authorized representative of the Appellant. The regulations at 55 Pa. Code state that a hearing request may be made by the client or the person acting for him, such as his legal representative, relative or friend. 55 Pa. Code 275.3(a) states, an appellant has the right to appear in person at the hearing and he may represent himself, or he may be represented. The Bureau of Hearings and Appeals may request that the representative show proof that he/she is the authorized representative of the Appellant as per 1 Pa. Code (c), a person appearing or practicing before an agency in a representative capacity may be required to file a power of attorney with the agency showing his authority to act in such capacity. 8

142 a) The following shall be considered authorized representatives: 1. The Appellant s court-appointed guardian 2. A person who has Power of Attorney to act for the Appellant 3. A person (or agency) who has written/signed authorization from the Appellant to act on behalf of the Appellant. 4. A relative of the Appellant acting in the interest of the Appellant. Relatives shall include those who are related by blood, marriage or adoption. Relatives may also include foster parents acting on behalf of their foster children. 5. A licensed attorney who has been retained by the Appellant and/or represents the appellant s interests. This does not include attorneys retained by the provider unless the provider s attorney also has a written, signed authorization from the Appellant to act on his/her behalf. 6. A substitute decision maker will be considered an authorized representative for an Appellant who is a Mental Retardation services applicant or recipient. The local County Mental Health and Mental Retardation agency will have a record of the substitute decision maker for each applicant/recipient. The substitute decision maker will usually be a relative or guardian. In some cases the substitute decision maker may be the administrator of the facility where the Appellant resides. In the event that both the representative and the Appellant have signed the appeal, authorization of the representative is implied by the Appellant s signature and an additional written authorization is not required. Representatives who are providers, or hired by providers (ex: nursing home administrators, agencies representing hospital applicants for medical assistance, etc.) must have a signed, written authorization from the Appellant. Exception: if the representative indicates that the Appellant is a minor child, or is currently unable to understand and/or sign because he/she is not competent or is incapacitated, the authorization may be signed by the Appellant s authorized representative (as described above). However, under this exception the hearing Administrative Law Judge will voir dire (i.e. question) the representative to determine if the representative is representing the Appellant s interests. A provider who is a mere creditor of the Appellant is not an authorized representative of the Appellant. Providing services to a recipient does not establish that a provider is a friend of the recipient Beverly Healthcare-Murrysville v. DPW 828 A 2d 491). Exception: a provider may file a Doe appeal (prior authorization or program exception) without the recipient s authorization. If the Appellant is deceased see paragraph 35 below. 9

143 If the Appellant is deceased, the appeal must be signed by a personal representative duly appointed by the register of wills i.e. an executor or executrix of the estate. (Finn v. Dugan 260 Pa. Super. 367, 394 A 2d 595 (Pa. Super. 1978) cited in Beverly Healthcare-Murrysville v. DPW 828 A 2d 491, 496) or by a relative of the appellant. If the Appellant was incapacitated at the time of hospitalization and unable to sign and/or understand the authorization, but is now able to understand and sign an authorization, the representative must present an authorization statement that is signed by the Appellant. If the representative requests additional time to do so, the appeal should be sent to schedule with instructions to the hearing ALJ to request the authorization to represent at the time of the hearing with 5 additional days to be granted if necessary. A paralegal is required to have signed written authorization from the Appellant and does not fall under the exception for attorneys retained by the Appellant as described above. If the Appeal Perfector cannot determine from the information submitted with the appeal whether the representative is authorized, the Appeal Perfector or other BHA staff may: a) A Contact the CAO (or other departmental agency) to determine if a Power of Attorney or Authorization is on file at the CAO or if the caseworker knows if the representative is a relative etc. b) Telephone the representative to ascertain if the representative is authorized by the Appellant and/or request that the representative fax or mail the written authorization. The appeal should then be sent to schedule with an Authorization to Represent Request Form. The form shall document the date and time of the telephone request(s) and comments regarding the conversation(s) with the representative. Instructions to the ALJ should also be attached, instructing the ALJ to request the authorization statement at the time of the hearing and to voir dire (question) the representative to determine if the representative is representing the Appellant s interests. VIII. Res Judicata Duplicate Appeals - 1) Res judicata is a legal doctrine Black s Law Dictionary defines as, an issue that has been definitively settled by judicial decision. Res judicata applies only where the previous proceeding and the current matter share (1) identity of things sued for; (2) identity of causes of action; (3) identity of parties; and (40 identity of the quality or capacity of the parties suing or being sued. Re: Donald T. Jones, Deceased, 442 Pa. Super. 463; 660 A. 2d (1995). Under res judicata, a duplicate filing of an appeal that was already decided by an Administrative Law Judge (by adjudication or dismissal) is barred. 10

144 a) A duplicate appeal is an appeal of the same adverse action notice. b) If the appeal appears to be a duplicate of an appeal that has already been adjudicated or dismissed by the Bureau of Hearings and Appeals, the Appeal Perfector may issue a Rule to Show Cause to the Appellant with a copy to the Department and the Appellant s representative. The Rule to Show Cause will request that the Appellant distinguish the current appeal from the appeal that was adjudicated or dismissed. The Appeal will be returnable in ten days to the Appeal Perfector. If possible a copy of the adjudication or dismissal and previous appeal will be included with the Rule to Show Cause. c) If a response is not received after the expiration of the ten day period, the Appeal Perfector may authorize its dismissal using automated MAPPER dismissal numbered R-DISS N OHA108. d) Note: res judicata does not apply to withdrawn appeals. In order for res judicata to apply the matter must be a decision by an Administrative Law Judge (or by the courts). If a duplicate of a withdrawn appeal is filed within 30 days of the date of the withdrawal, the original appeal will be re-activated and the duplicate appeal, the appeal will be consolidated and processed as a new appeal. The Appellant/representative may rescind the withdrawal within 30 days of the date of the withdrawal. See 1 Pa Code In this instance, the Appellant or representative should rescind the withdrawal in writing. The appeal will then be re-activated on the MAPPER database and re-opened on Access. e) If a duplicate appeal is filed and neither hearing has been held, the appeals will be consolidated under the same appeal number and placed together in the same file. The duplicate appeal will be deleted ( backed out ) from MAPPER and the Access ID number may be recycled. The doctrine of res judicata will not apply because neither appeal has been decided. Please address any concerns regarding this memorandum to your supervisor. 11

145

146

147

148

149

150