V.M., Sr. v. Department of Public Welfare (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA V.M., Sr., Petitioner v. Department of Public Welfare, Respondent BEFORE: : : : : : : : No. 1837 C.D. 2007 Submitted: January 18, 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 SENIOR JUDGE KELLEY FILED: April 15, 2008 V.M., Sr. petitions for review of a final order issued by the Secretary of the Department of Public Welfare (Department) reversing the order of the Department s Bureau of Hearings and Appeals (Bureau), and denying V.M. Sr. s appeal under the provisions of the Child Protective Services Law (Law).1 In that appeal, V.M., Sr. sought the expunction of an indicated report2 of child abuse3 1 23 Pa.C.S. §§ 6301 6385. 2 Section 6303(a) of the Law defines indicated report as follows: Indicated report. A child abuse report made pursuant to this chapter if an investigation by the county agency or [the Department] determines that substantial evidence of the alleged abuse exists based on any of the following: (1) Available medical evidence. (Continued....) naming him as a perpetrator4 from the ChildLine Registry. We reverse and remand. V.M., Jr. is a male child born on June 29, 1994 to P.M., his mother and V.M., Sr., his father. From birth until November of 1994, V.M., Jr. resided with both of his parents and I.M., his sister. However, in November of 2004, V.M., Jr. s parents separated and V.M., Sr. moved out of the family home. On December 16, 2004, V.M., Jr. s mother, P.M., filed for a divorce from V.M., Sr. In December of 2001 or January of 2002, V.M., Jr. was diagnosed as suffering from irritable bowel syndrome. V.M., Jr. s irritable bowel syndrome arose out of his being bullied while in the first grade. As a result, V.M., Jr. s parents moved him to a different elementary school. While V.M., Sr. still lived with the family, he called V.M., Jr. names, cursed at him, and told him that he was no kind of f---ing son . V.M., Sr. would (2) (3) perpetrator. The child protective service investigation. An admission of the acts of abuse by the 23 Pa.C.S. § 6303(a). See also Section 3490.4 of the Department s regulations, 55 Pa. Code § 3490.4. 3 Section 6303(b)(1) of the Law defines child abuse , in pertinent part, as [a]n act ¦ by a perpetrator which causes nonaccidental serious mental injury to ¦ a child under 18 years of age ¦. 23 Pa.C.S. § 6303(b)(1)(ii). See also Section 3490.4 of the Department s regulations, 55 Pa. Code § 3490.4. In turn, Section 6303(a)(1) of the Law defines serious mental injury , in pertinent part, as [a] psychological condition, as diagnosed by a physician or licensed psychologist ¦ that ¦ renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child s life or safety is threatened ¦ or [s]eriously interferes with a child s ability to accomplish age-appropriate developmental and social tasks. 23 Pa.C.S. § 6303(a)(1). See also Section 3490.4 of the Department s regulations, 55 Pa. Code § 3490.4. 4 In pertinent part, Section 6303(a) of the Law defines perpetrator as [a] person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a (Continued....) 2. come home drunk late at night, become angry and yell at the family, and throw up in the middle of the night. When V.M., Sr. arrived at home, V.M., Jr. would hide in his mother s room because he did not want to see V.M., Sr. When V.M., Sr. yelled and cursed at V.M., Jr., V.M., Jr. would have problems with his irritable bowel syndrome. After V.M., Sr. left the family home, V.M., Sr. obtained supervised visits with V.M., Jr. V.M., Jr. no longer had any problems with his irritable bowel syndrome after these supervised visits ended. V.M., Jr. becomes frightened when he sees V.M., Sr. On December 28, 2005, Lehigh County Children and Youth Services (CYS) received a referral of mental abuse regarding V.M., Jr., and the matter was assigned to Ashley Gorga, a CYS caseworker. On December 30, 2005, Gorga interviewed V.M., Jr. During the interview, V.M., Jr. indicated: he was frightened by his father; he found drugs in his father s top dresser drawer; his father came home under the influence of alcohol; his father became violent at times and threw things; his father yelled and cursed at him; and he would become incontinent when he saw his father. On January 30, 2006, Gorga interviewed V.M., Sr. During the interview, V.M., Sr. denied the allegations of mental abuse. Gorga also contacted V.M., Jr. s treating physicians, and obtained medical records from Dr. Cathleen Kaissis, Dr. Kevin Kelly, and Dr. Joan DiPalma.5 child, [or] an individual residing in the same home as a child ¦. 23 Pa.C.S. § 6303(a). 5 The records obtained from Dr. Kaissis and Dr. DiPalma predate the abuse that was alleged to have occurred in 2004 and 2005, and relate to the diagnosis and treatment of V.M., Jr. s underlying irritable bowel syndrome. See Exhibits A-1, A-3. Only Dr. Kelly s medical records relate to the period in which the abused was alleged to have occurred. See Exhibit A-2. (Continued....) 3. On February 15, 2006, CYS filed an indicated report of child abuse against V.M., Sr. which stated that the investigation established substantial evidence to support the reported mental abuse that had occurred in 2004 and 2005, In a report dated May 26, 2005, Dr. Kelly made the following assessment of, and recommendations regarding, V.M., Jr. s medical condition: Assessment: My impression is [V.M., Jr.] s past history of fecal impaction, fecal incontinence, and rectal pain have all normalized. He does have soiling of his underclothing in association with emotional distress. This is actually compatible with irritable bowel syndrome. He is otherwise without symptoms and he is gaining and growing at the 90th percentile for his weight and the 25th for his height. Recommendations: My recommendation is no further evaluation or treatment. I asked the family to continue his present management. I did endorse the idea that he seek counseling, and I recommended follow-up visit here in the office on an as needed basis. Exhibit A-2 at 3. In addition, in a report dated September 13, 2005, Dr. Kelly made the following assessment of, and recommendations regarding, V.M., Jr. s medical condition: Assessment: Our impression is that [V.M., Jr.] has a history of fecal soiling. [V.M., Jr.] does not have a history of constipation. He denies having any stool withholding behaviors. He admits that the soiling only occurs in association with his visits with his father. This is consistent with irritable bowel syndrome. Despite his symptoms his growth parameters continue to advance well. Recommendations: Our recommendation for [V.M., Jr.] s fecal soiling is mostly supportive. We recommended to [his mother] that [V.M., Jr.] can have 2 teaspoons of Imodium 2 hours prior to [V.M., Jr.] s visitation with his father to help with his fecal soiling. We supported the continuation of [V.M., Jr.] s counseling for his feelings of anxiety and depression. We have requested that the family follow-up here in the office on an as needed basis. Id. at 5. 4. and it was entered on the ChildLine Registry.6 On June 12, 2006, CYS determined that the indicated report of mental abuse was accurate and would remain on file. On July 25, 2006, V.M., Sr. timely appealed CYS s decision and requested expunction of his name from the ChildLine Registry.7 6 Section 6331 of the Law states, in pertinent part: There shall be established in the department: * * * (2) A Statewide central register of child abuse which shall consist of founded and indicated reports. (3) A file of unfounded reports awaiting expunction. 23 Pa.C.S. § 6331(2), (3). 7 Section 6341 of the Law states, in pertinent part: (a) General rule. At any time: * * * (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 it is being maintained in a manner inconsistent with this chapter. * * * (c) Review of refusal of request. If the secretary refuses the request under subsection (a)(2) ¦ the perpetrator ¦ shall have the right to a hearing before the secretary or a designated agent of the secretary to determine whether the summary of the indicated report in the [central register] should be amended or expunged on the grounds that it is inaccurate or that it is being maintained in a manner inconsistent with this chapter ¦ 23 Pa.C.S. § 6341(a)(2), (c). 5. On January 17, 2007, a hearing was conducted before one of the Department s administrative law judges (ALJ).8 On May 31, 2007, the ALJ issued a Recommendation which stated the following, in pertinent part: Although [CYS] presented the testimony of the subject child and ¦ the investigating caseworker, [CYS] failed to present any expert medical opinion detailing the diagnosis of the subject child s mental injuries and possible causes of those injuries. A serious mental injury is defined as a psychological condition, as diagnosed by a physician or licensed psychologist, including the refusal of appropriate treatment, that (1) renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child s life or safety is threatened; or (2) seriously interferes with a child s ability to accomplish ageappropriate developmental and social tasks. 23 Pa.C.S. § 6303; 55 Pa. Code § 3490.4 (emphasis added). There is no evidence in the record detailing the subject child s psychological condition and the cause or causes of the psychological condition. Although ¦ the medical records of Dr. Kevin Kelly[ were admitted], these records fail to diagnose a psychological condition along with the cause or causes of the psychological condition. Dr. Kelly simply states that the subject child soils his underclothing in association with emotional distress , which is compatible with irritable bowel syndrome. While medical records are admissible to establish a medical diagnosis, they are not admissible to establish causation because such evidence requires the medical opinion of a physician. Since the record lacks any opinion from a medical expert regarding the diagnosis of a psychological condition and the possible causation of that condition, [CYS] failed to establish that V.M., Sr. caused a non-accidental serious mental injury to the subject child. 8 At the hearing, counsel for both parties stipulated to the admission of the medical reports of Dr. Kaissis, Dr. Kelly, and Dr. DiPalma in lieu of their testimony at that hearing. See N.T. 1/17/07 at 9-14. 6. Recommendation at 10-11 (citation omitted). Based on the foregoing, the Recommendation directed that V.M., Sr. s appeal be sustained, and that the Department expunge V.M., Sr. s name from the ChildLine Registry. Id. at 1. On June 8, 2007, the Regional Manager of the Department s Bureau issued an order adopting the Recommendation in its entirety. On June 18, 2007, CYS filed an application with the Department s Secretary seeking reconsideration of the Bureau s order. On June 28, 2007, the Secretary issued an order granting CYS s application for reconsideration. On August 31, 2007, the Secretary issued the instant Final Order which states the following, in pertinent part: I find that the medical reports of Dr. Kelly, coupled with the stipulation of the parties, satisfy the requirement of an expert medical opinion, and that the connection of the aggravated Irritable Bowel Syndrome, with [V.M., Sr.] s abusive behavior, meets the existence of a defined serious mental injury. 23 Pa.C.S.[ § ]6303. Final Order at 1. Based on the foregoing, the Final Order reversed the Bureau s order and denied V.M., Sr. s appeal. V.M., Sr. then filed the instant petition for review.9 In this appeal, the sole claim raised by V.M., Sr. is that the Secretary erred in determining that there was substantial evidence to support CYS s burden of proof in this case. More specifically, V.M., Sr. claims the indicated report should be expunged because CYS failed to introduce any medical evidence 9 This Court s scope of review in expunction proceedings is limited to a determination of whether constitutional rights have been violated, whether an error of law has been committed, and whether necessary findings of fact are supported by substantial evidence. D.T. v. Department of Public Welfare, 873 A.2d 850 (Pa. Cmwlth. 2005). 7. establishing that he caused V.M., Jr. to suffer serious mental injury as required under the Law. We agree. We initially note that the proper inquiry into whether an indicated report of child abuse should be expunged is whether the report is accurate. A.O. v. Department of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003). Thus, in an appeal of a refusal to expunge an indicated report, the county agency must present evidence that outweighs any contrary evidence that the actions of the perpetrator constitute child abuse within the meaning of the Law. D.T.; A.O. The substantial evidence needed to maintain an indicated report of child abuse is 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. D.T., 873 A.2d at 853 (quoting R.P. v. Department of Public Welfare, 820 A.2d 882, 885 (Pa. Cmwlth. 2003)). As noted above, Section 6303(b)(1) of the Law defines child abuse , in pertinent part, as an act ¦ by a perpetrator which causes nonaccidental serious mental injury to ¦ a child under 18 years of age ¦. 23 Pa.C.S. § 6303(b)(1)(ii). In turn, Section 6303(a)(1) of the Law defines serious mental injury , in pertinent part, as a psychological condition, as diagnosed by a physician or licensed psychologist ¦ that ¦ renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child s life or safety is threatened ¦ or seriously interferes with a child s ability to accomplish age-appropriate developmental and social tasks. 23 Pa.C.S. § 6303(a)(1). Thus, the foregoing provisions set forth the elements that CYS must prove in order to establish that V.M., Jr. s purported serious mental injury constitutes child abuse under the Law. Luzerne County Children and Youth 8. Services v. Department of Public Welfare, 550 A.2d 604 (Pa. Cmwlth. 1988). Contrary to the Secretary s determination, our review of Dr. Kelly s medical reports demonstrates that CYS has utterly failed to meet its burden of proof in this regard.10 More specifically, in assessing V.M., Jr. s condition, Dr. Kelly noted in his May 26, 2005 report that V.M., Jr. s [p]ast history of fecal impaction, fecal incontinence, and rectal pain have all normalized. Exhibit A-2 at 3. Dr. Kelly noted that V.M., Jr. does have soiling of his underclothing in association with emotional distress. Id. However he also noted that [t]his is actually compatible with irritable bowel syndrome ¦ and that [h]e is otherwise without symptoms and he is gaining and growing at the 90th percentile for his weight and the 25th for his height. Id. In addition, in his September 13, 2005 report, Dr. Kelly noted that V.M., Jr. admits that the soiling occurs in association with his visits with his father ¦ , that [t]his is consistent with irritable bowel syndrome ¦ , and that [d]espite his symptoms his growth parameters continue to advance well. Id. at 5. It is true that Dr. Kelly initially recommended that V.M., Jr. seek counseling, and that he subsequently recommended that V.M., Jr. continue his counseling for his feelings of anxiety and depression. Id. However, nowhere in either of these reports does Dr. Kelly diagnose V.M., Jr. as suffering from any psychological condition that renders him chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the 10 As noted above, the medical records obtained from Dr. Kaissis and Dr. DiPalma predate the abuse that was alleged to have occurred in 2004 and 2005, and relate to the diagnosis and treatment of V.M., Jr. s underlying irritable bowel syndrome that dates back to December of 2001 or January of 2002 when he was being bullied while in the first grade at his initial elementary school. See Exhibits A-1, A-3. 9. child s life or safety is threatened ¦ as required under the Law. Likewise, nowhere in either of these reports, does Dr. Kelly diagnose V.M., Jr. as suffering from a psychological condition that seriously interfere[d] with [his] ability to accomplish age-appropriate developmental and social tasks ¦ as required under the Law. In short, the certified record in this case demonstrates that CYS failed to produce sufficient substantial evidence to support its burden of proof in this case.11 As a result, the order of the Secretary must be reversed, and the indicated report of child abuse naming V.M., Sr. as a perpetrator must be expunged from the ChildLine Registry. Accordingly, the Secretary s order is reversed, and the case is remanded for the Department to expunge from the ChildLine Registry the indicated report of child abuse naming V.M., Sr. as a perpetrator. _________________________________ JAMES R. KELLEY, Senior Judge 11 See, e.g., Luzerne County Children and Youth Services, 550 A.2d at 606-607 ( Although Dr. Denaro testified that, of the two, C.H. was more responsible for the breakdown in [her relations with her stepson, T.H.,] the witness did not state that C.H. caused serious mental injury to T.H. nor that C.H. caused the child to attempt suicide. Finally, the psychiatrist testified that returning T.H. to the home of Mr. H. and C.H. would place T.H. at risk of serious mental injury ¦. After careful review of the record in this case, we conclude that the hearing officer properly determined that CYS had not met its burden of proving that C.H. had engaged in any acts or omissions which caused serious mental injury to T.H. The evidence presented demonstrates only that T.H. had a strong aversion to C.H. based upon C.H. s mere presence in the home and her attempts to impose more discipline and supervision upon T.H ¦.. While we are aware that returning T.H. to the home of Mr. H. and C.H. may have placed T.H. at a risk of serious mental injury and further deterioration, this alone is not substantial evidence that C.H. was the perpetrator of child abuse against T.H. ) (citations and footnote omitted). 10. IN THE COMMONWEALTH COURT OF PENNSYLVANIA V.M., Sr., Petitioner v. Department of Public Welfare, Respondent : : : : : : : No. 1837 C.D. 2007 ORDER AND NOW, this 15th day of April, 2008, the order of the Secretary of the Department of Public Welfare, dated August 31, 2007 at Docket No. 21-06493, is REVERSED, and the matter is REMANDED to Department of Public Welfare to EXPUNGE from the ChildLine Registry the indicated report of child abuse naming V.M., Sr. as a perpetrator. Jurisdiction is RELINQUISHED. _________________________________ JAMES R. KELLEY, Senior Judge
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