L.A. v. Department of Public Welfare (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA L.A., Petitioner v. Department of Public Welfare, Respondent BEFORE: : : : : : : : : : No. 1194 C.D. 2007 Submitted: March 17, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENà E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: May 7, 2008 L.A. petitions for review of an order of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (BHA), adopting the Recommendation of the Administrative Law Judge (ALJ) denying L.A. s request to expunge an indicated report of child abuse from the ChildLine Registry1 for sexually abusing his daughters. L.A. asserts, on appeal, that the ALJ erred in finding that there was substantial 1 ChildLine is a unit of DPW that operates a statewide toll-free system for receiving reports of suspected child abuse, makes referrals for investigation, and maintains the reports in the appropriate files. 55 Pa. Code § 3490.4; 23 Pa. C.S. § 6332. evidence to support a finding of child sexual abuse by L.A. upon his minor children as defined by the Child Protective Services Law (Law).2 On January 28, 2003, Pike County Children and Youth Services (CYS) received a report that L.A. was suspected of sexually abusing his daughter, T.A. Two days later, on January 30, 2003, another report, making similar claims as the first, was received by CYS that L.A. was suspected of sexually abusing his other daughter, A.A., who is the sister of T.A. Caseworker Tammy McCullough was assigned to investigate the allegations of suspected child abuse and conduct interviews. Ms. McCullough filed two Child Protective Service Investigation Reports (Reports), one for T.A. and one for A.A. (collectively referred to as minors). Both Reports indicated that the minors were sexually abused by L.A., which finding was based on the medical evidence collected and the child protective service investigation.3 Thereafter, L.A. requested that the indicated reports of sexual abuse against him be expunged and requested a hearing. A hearing was conducted before an ALJ on June 13, 2006. Subsequent to the hearing, the ALJ made the following findings of fact: 1. A.A. is a minor child with a date of birth of May 18, 1998. 2 23 Pa. C.S. §§ 6301-6386. 3 The Law defines an indicated report as follows: 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. Section 6303(a) of the Child Protective Services Law, as amended, 23 Pa C.S. § 6303(a). 2 2. T.A. is a minor child with a date of birth of November 27, 1999. 3. L.A. is the biological father of A.A. and T.A. 4. M.A. is the biological mother of A.A. and T.A. 5. L.A. and M.A. separated in 2001, and are now divorced. 6. In January of 2003, the minors, A.A. and T.A. resided in New Jersey with their mother M.A., her paramour, V.B., and her paramour s brother, Chris, and regularly visited with their father, L.A., every other weekend at his home in Pennsylvania. 7. M.A. is the primary custodian and caregiver of A.A. and T.A., and is responsible for bathing, dressing, and applying medication for them. 8. In January of 2003, L.A. resided in Pennsylvania with his paramour, M.B.D., and his mother, K.A. 9. The two (2) teenage sons of M.B.D. had regular weekend visits at the home shared by L.A. and M.B.D. 10. During the weekend visits of A.A. and T.A., L.A. is the sole caregiver, and is responsible for bathing, dressing, and applying medication for them. 11. On or about January 28, 2003, A.A. and T.A. returned home from a weekend visit with L.A., at which time M.A. personally observed blood in T.A. s underwear and that her genitals were red, irritated, and inflamed. 12. M.A. threw away the underwear and did not show it to any medical professional. 13. On or about January 30, 2003, Pike County Children and Youth Services received allegations of abuse involving A.A. and T.A. by L.A., the appellant. 14. CYS Caseworker Tammy McCullough began an investigation into these allegations, and conducted interviews of L.A., M.A., M.B.D., and K.A. 15. Ms. McCullough also interviewed A.A. and T.A. separately on two (2) different occasions in January and February of 2003 with Trooper James Travis at the Pennsylvania State Police barracks in Blooming Grove, Pennsylvania. 16. During these interviews of A.A. and T.A., the girls recounted numerous incidents of vaginal and anal penetration by L.A. 17. Dr. Andrea Taroli is a forensic pediatrician who specializes in child abuse. 18. On or about January 30, 2003, Dr. Taroli physically examined and interviewed both A.A. and T.A. 3 19. Dr. Taroli s physical examination of both girls revealed findings that were consistent with sexual abuse. 20. During Dr. Taroli s interviews with the girls, both A.A. and T.A. directly related specific incidents of sexual abuse and described digital and penile penetration by L.A. 21. L.A. did engage in vaginal and anal penetration of A.A. and T.A. 22. Dr. Andrea Taroli s testimony is credible. 23. The testimony of the CYS Caseworker, Tammy McCullough, is credible. 24. The testimony of M.A., the mother of A.A. and T.A., is credible. 25. The testimony of Appellant, L.A., is not credible. (ALJ Adjudication, Findings of Fact (FOF) ¶¶ 1-25 (citations omitted).) The ALJ noted that this is a credibility issue, which he did not resolve in favor of L.A. The ALJ noted that the minors were able to credibly report multiple incidents of sexual abuse consistently to Ms. McCullough and Dr. Taroli. The minors were able to recall the physical details as well as the resulting pain and discomfort of the sexual abuse that they experienced, and specifically stated that it was their father, L.A., who abused them. The ALJ did state that L.A. s testimony was consistent throughout the hearing, but that the physical examination and CYS investigation found that L.A. abused the minors. Accordingly, the ALJ recommended that the appeal be denied. On May 30, 2007, the BHA adopted the ALJ s Recommendation in its entirety. This appeal ensued.4 L.A. argues that the ALJ s decision not to expunge his name from the ChildLine Registry was not supported by substantial evidence. Specifically, L.A. contends the 4 Our review in expunction proceedings is limited to a determination of whether constitutional rights were violated, whether errors of law were committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; E.D. v. Department of Public Welfare, 719 A.2d 384, 387 (Pa. Cmwlth. 1998). 4 testimony of Dr. Taroli conflicts with a report by Judith T. Muñoz, M.A., a psychologist who examined L.A., M.A., and the minors for a separate legal matter involving custody. Additionally, L.A. contends that his cooperation in the investigation, the acrimonious divorce and custody case, and L.A. s passing a lie detector test are evidence contradictory to the ALJ s finding that he abused the minors. To uphold a denial of expungement, there must be substantial evidence to support the indicated report of CYS. A.O. v. Department of Public Welfare, 838 A.2d 35, 39 (Pa. Cmwlth. 2003). Substantial evidence, for purposes of child abuse expunction proceedings, is defined as evidence which so preponderates in favor of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent evidence and reasonable inferences drawn therefrom. E.D. v. Department of Public Welfare, 719 A.2d 384, 387 (Pa. Cmwlth. 1998) (quoting Bedford County Children and Youth Services v. Department of Public Welfare, 613 A.2d 48, 50 (Pa. Cmwlth. 1992)). In an expungement case, the county agency bears the burden of proving that the actions of the perpetrator constitute child abuse within the meaning of the Law.5 A.B. v. Department of Public Welfare, 869 A.2d 1129, 1131 n.2 (Pa. Cmwlth. 2005). The The Secretary of DPW county s evidence must outweigh any contrary evidence. Id. or her designee is the ultimate fact finder in expungement proceedings, with the authority to make credibility determinations. C.K. v. Department of Public Welfare, 869 A.2d 48, 57 n.9 (Pa. Cmwlth. 2005) (citing R. v. Department of Public Welfare, 535 Pa. 440, 446, 636 A.2d 142, 144-45 (1994)). On appeal, all reasonable and 5 Child abuse is defined, in pertinent part, as [a]n act . . . by a perpetrator which causes nonaccidential . . . sexual abuse or sexual exploitation of a child under 18 years of age. Section 6303(b)(1)(ii) of the Child Protective Services Law, as amended, 23 Pa. C.S. § 6303(b)(1)(ii). 5 logical inferences from existing evidence must be drawn in favor of the prevailing party below. Bedford County, 613 A.2d at 50. Here, the ALJ found that the credible evidence presented weighed against L.A. Specifically, the ALJ found the testimony and reports by Ms. McCullough credible, the testimony of M.A. credible, the consistent testimony as recounted by the minors that L.A. sexually abused them to be credible, and the forensic report prepared by Dr. Taroli to be credible. In support of the CYS indicated report of sexual abuse by L.A., M.A. credibly testified to the events that led up to her filing a report with CYS. M.A. testified that, after the minors returned from a visit with L.A., she became concerned about the minors because she found T.A. in the bathroom crying and in pain. (Hr g Tr. at 89.) M.A. explained that T.A. exclaimed how she didn t want to go to the bathroom, but she had to and that it hurt. (Hr g Tr. at 89.) When preparing T.A. to take a bath, M.A. said that T.A. looked uncomfortable and that she found blood in her underwear. (Hr g Tr. at 90.) At that time, M.A. made the first report to CYS regarding the suspected child abuse of T.A. by L.A. (Hr g Tr. at 93.) Two days after M.A. made the first report, CYS conducted an initial interview with the minors and also contacted the Pennsylvania State Police, who referred the minors to Dr. Taroli. Ms. McCullough, who conducted the initial interview with the minors for CYS, testified that T.A. reported to her that Daddy touches her pee-pee in his bedroom and also that there was a little bit of blood. (Hr g Tr. at 52.) A.A. reported similar acts to Ms. McCullough regarding T.A, saying: that Daddy always touches T. s pee-pee, that 6 it happens in Daddy s room, and that when she [T.A.] was three he [Daddy] touched her pee-pee. (Hr g Tr. at 53-54.) When asked what T.A. was wearing, A.A. stated that she didn t have any pants on or panties, that her Daddy took them off. (Hr g Tr. at 54.) A.A. subsequently clarified that T.A. was wearing Cinderella pajamas and that daddy took her pants off and her panties. (Hr g Tr. at 54.) When asked where the incidents occurred, A.A. reported Daddy s house in Shohola. (Hr g Tr. at 54.) Dr. Taroli testified that she interviewed and physically examined the minors one day after Ms. McCullough conducted the initial interview for CYS. (Hr g Tr. at 10.) During Dr. Taroli s interview of T.A., T.A. stated that she had a boo-boo on her pee-pee, that [h]e [Daddy] hurt me with his finger, and when asked where it happened, responded at Daddy s house in Daddy s room. (Hr g Tr. at 21.) T.A. also told Dr. Taroli that Daddy also puts his pee-pee in her pee-pee and in her hiney. (Hr g Tr. at 21.) During the physical examination of T.A., Dr. Taroli found some increase in pigmentation of the skin of her labia majora of the genitals, from recurrent rashes, and that she had a small defect of the hymenal membrane . . . . (Hr g Tr. at 22.) Dr. Taroli concluded that T.A. had been sexually abused and that the physical examination was consistent with T.A s statements before the exam. (Hr g Tr. at 2223.) During her interview with A.A., Dr. Taroli testified that A.A. reported to her that he [Daddy] touched my pee-pee really hard and it bleeded a little bit but not lots like T. (Hr g Tr. at 16.) Further, A.A. told Dr. Taroli that Dad touches his own pee pee with two fingers and a little bit of stuff comes out, and that she was hiding because she didn t want Daddy to touch her pee-pee . . . . (Hr g Tr. at 16-17.) During the physical examination of A.A., Dr. Taroli found very narrow hymen and a small a red scar. (Hr g Tr. at 18-19.) Dr. Taroli concluded that, based on the physical 7 examination and interview with A.A., there was past blunt force penetrating trauma that she believes was caused by sexual abuse. (Hr g Tr. at 19.) Dr. Taroli credibly testified that her physical examination findings were consistent with the statements of A.A. (Hr g Tr. at 19-20.) After Dr. Taroli s interview and examination revealed that A.A. had also been abused, a second report was filed with CYS regarding the suspected child abuse of A.A. by L.A. Two weeks later, Ms. McCullough conducted a second interview. Ms. McCullough testified that, at the second interview, T.A. reported a consistent story and A.A. disclosed that L.A. had touched her. (Hr g Tr. at 56.) All of the above testimony, in connection with the medical evidence, provides substantial evidence to support the findings of the ALJ. Regarding hearsay testimony of minor victims, this Court has established the following, relevant, guidelines: 1. Hearsay testimony of a child victim will be admitted in accordance with the standards set forth in 42 Pa. C.S. § 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 acts in question can in toto constitute substantial evidence which will satisfy the Agency's burden to justify a conclusion of abuse. A.Y. v. Department of Public Welfare, 537 Pa. 116, 125-26, 641 A.2d 1148, 1152-53 (1994). Furthermore, medical evidence can be used to corroborate hearsay testimony sufficient to meet the substantial evidence burden. B.E. v. Department of Public Welfare, 654 A.2d 290, 292 (Pa. Cmwlth 1995). 8 Here, the testimony of Ms. McCullough, Dr. Taroli, and M.A. is admissible with regards to the minors statements, and further, medical evidence, specifically that of Dr. Taroli, confirms the testimony of the minors. All of this evidence was consistent in supporting the finding that the minors were sexually abused by L.A. The minors explained specific details that only they would know, such as the geographic location of the touching and personal physical descriptions of the abuse. A.A. specifically reported what T.A., L.A., and herself were wearing. Therefore, because the medical evidence and hearsay testimony is taken together and consistent, it is considered substantial evidence sufficient to meet the burden of CYS. In support of expunction, L.A. had presented the reports of his expert, Dr. Muñoz, a psychologist who was evaluating L.A., M.A., and the minors in a separate legal matter regarding custody. L.A. contends that the testimony of Dr. Taroli and the reports of Dr. Muñoz are contradictory. Specifically, L.A. contends that during Dr. Muñoz s psychological evaluation, T.A. referred to V.B., M.A. s paramour, as daddy. Further, Dr. Muñoz s report reflected concerns about M.A., such as her history with drug use, numerous childhood psychological and mental problems involving her mother, and numerous incidents of marital infidelity during her marriage to L.A. Based on these concerns, Dr. Muñoz stated that [M.A.] s exaggeration and sexualization of her daughter s behaviors as well as her history of involvement and instability in multiple relationships with men raise concerns regarding [M.A. s] role in the report of sexual abuse by her children. (Hr g Ex. 2-A, Muñoz Report of Psychological Evaluation of M.A. at 7.) Thus, L.A. argues this evidence establishes that he was not the abuser, and the ALJ erred in denying his appeal. We disagree. 9 Questions of credibility and evidentiary weight are determinations for the fact finder. G.W.K. v. Department of Public Welfare, 558 A.2d 151, 153 (Pa. Cmwlth. 1989). Here, the ALJ did not find Dr. Muñoz s reports more credible than the testimony and reports of M.A., Ms. McCullough, and Dr. Taroli, which consistently identified L.A. as the perpetrator. There are reasons that support this finding. The interviews and physical examinations of the minors by Dr. Taroli and Ms. McCullough were conducted immediately after M.A. contacted CYS to report the suspected sexual abuse, while the psychological reports of Dr. Muñoz were made seven to eight months after M.A. first reported the suspected abuse to CYS. The subsequent reports of the findings by Dr. Taroli and Ms. McCullough consistently state that the minors specifically identified L.A. as the perpetrator. The minors also gave detailed information about the abuse, which only they would know. V.B. was never indicated as the perpetrator in these reports. Upon review of the evidence as a whole, we find substantial evidence to support the ALJ s finding that L.A. sexually abused the minors. The fact that T.A. referred to V.B. as daddy, on one occasion while being interviewed by Dr. Muñoz does not negate the finding that L.A. was the perpetrator. This is because the minors were able to describe the acts that took place, and A.A. clearly described the abuse as having occurred in L.A. s bedroom at his home. (See Hr g Tr. at 21, 54-55.) Moreover, the reports of Dr. Muñoz are not wholly inconsistent with the findings of Dr. Taroli. Dr. Muñoz s reports do include responses from the minors regarding the alleged sexual abuse in which each states that Daddy touched her pee-pee, (Hr g Ex. A-2, Muñoz Report of Psychological Evaluation of A.A. at 2, and Muñoz Report of Psychological Evaluation of T.A. at 2), although Dr. Muñoz s reports do not conclude who abused the minors. (See Hr g Ex. A-2, Muñoz Report of Psychological Evaluation of T.A., A.A., L.A., and M.A.) Further, we note that Dr. Muñoz s report recommended that both L.A. and M.A. undergo sex offender evaluations to further identify areas of risk of sexual abuse for 10 the minors. Thus, Dr. Muñoz s report does not provide substantial evidence that L.A. did not sexually abuse the minors. Accordingly, the ALJ did not abuse his discretion in giving less weight to Dr. Muñoz s report, and in finding substantial evidence to establish that L.A. was the perpetrator. L.A. further argues that there is additional contrary evidence that the ALJ did not consider, such as L.A. s cooperation in the investigation, the acrimonious divorce, and his submission to a lie detector test. However, as we have previously stated, questions of credibility and evidentiary weight are a determination for the fact finder. G.W.K., 558 A.2d at 153. Again, the ALJ acted properly within his discretion in weighing the evidence and finding against L.A. Furthermore, the ALJ noted that, although the testimony of L.A. was consistent, it was not credible. (ALJ Adjudication at 10.) The ALJ properly concluded that [i]t is not the undersigned s responsibility to determine beyond a reasonable doubt whether the alleged abuse occurred. (ALJ Adjudication at 10.) The ALJ properly found that the actions of L.A. constituted child abuse within the meaning of the Law. Accordingly, we will not disturb the holding of the BHA. Accordingly, we affirm the order of the BHA. ___________________________________ RENà E COHN JUBELIRER, Judge 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA L.A., Petitioner v. Department of Public Welfare, Respondent : : : : : : : : : No. 1194 C.D. 2007 ORDER NOW, May 7, 2008, the order of the Department of Public Welfare, Bureau of Hearings and Appeals, in the above-captioned matter is hereby affirmed. ___________________________________ RENà E COHN JUBELIRER, Judge
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