J.M. v. Department of Public Welfare
2012 Pa. Commw. LEXIS 270
| Pa. Commw. Ct. | 2012Background
- J.M. (Father) seeks review of DPW’s December 8, 2011 order upholding a July 22, 2011 BHA dismissal of his expunction appeal concerning an indicated report of sexual abuse of his daughter, 1.M.
- DHS/ChildLine reported in April 2009 that Father allegedly inserted his finger in Child’s vagina during a bathing visit at Father’s home; Child was three years old and resided with Mother at the time.
- Mother reported that Child touched a playmate’s genitals; Child later disclosed that Father touched her vagina while washing her there.
- DHS conducted an investigation; a May 2009 PCA forensic interview of Child was recorded; the interview is the basis for the indicated finding.
- In February 2010 an ALJ conducted a hearing, found DHS witnesses credible and Father’s testimony about washing the vagina not credible, and recommended denial of expunction, which BHA adopted and the Secretary upheld; Father challenges the admissibility and reliability of the DVD interview and the availability of Child as a witness.
- The reviewing court ultimately reversed, finding errors in how the ALJ treated witness availability under 42 Pa.C.S. § 5986, authentication of the DVD, and the sufficiency of substantial evidence to sustain an indicated report.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the DVD interview can be admitted as hearsay evidence. | Father argues the DVD is hearsay without corroboration. | DPW relies on § 5986 to admit child statements. | No; insufficient indicia of reliability and unauthenticated DVD. |
| Whether Child was properly deemed unavailable under § 5986(c)(2). | Father was present during questioning, violating § 5986. | DPW did not admit testimony improperly. | Incorrect; presence violated § 5986, invalidating unavailability finding. |
| Whether substantial evidence supports the indicated report given the evidentiary gaps. | DVD alone cannot constitute substantial evidence. | Hearsay plus corroboration can support a finding of abuse. | Not substantial; relies on double hearsay without corroboration. |
| Whether the ALJ’s findings were internally consistent and supported by the record. | Findings misstate dates, residence, and disclosures. | ALJ’s credibility determinations control. | ALJ’s decision not supported by substantial evidence. |
Key Cases Cited
- A.Y. v. Department of Public Welfare, 537 Pa. 116 (1994) (admissibility of out-of-court child interviews under 42 Pa.C.S. § 5986)
- R.A. v. Department of Public Welfare, 41 A.3d 131 (Pa. Cmwlth. 2012) (testimony about the interview cannot corroborate the DVD; need corroboration)
- Bucks County Children and Youth Social Services Agency v. Department of Public Welfare, 808 A.2d 990 (Pa. Cmwlth. 2002) (burden of proof for indicated report; substantial evidence standard)
- D.P. v. Department of Public Welfare, 733 A.2d 661 (Pa. Cmwlth. 1999) (guidelines for child hearsay under former § 5986)
- G.V. v. Department of Public Welfare, 52 A.3d 434 (Pa. Cmwlth. 2012) (substantial evidence vs. clear and convincing showing for indicated report)