A.Y., Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF PUBLIC WELFARE, ALLEGHENY COUNTY CHILDREN & YOUTH SERVICES, Appellee.
Supreme Court of Pennsylvania.
Decided May 10, 1994.
1148
Submitted March 11, 1992.
John Kane, Chief Counsel, Myra Werrin Sacks, Asst. Counsel, Dept. of Public Welfare, Harrisburg, for appellee.
James Dodaro, Allegheny County Sol., James Esler, Carla F. Hobson, John T. McVay, Jr., Asst. County Solicitors, for Children and Youth Services.
Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.
OPINION
MONTEMURO, Senior Justice, Sitting by Designation.
On December 7, 1988, the Allegheny County Children and Youth Services Office (“Agency“) filed an indicated report of child abuse against appellant, A.Y., and listed her on the Statewide Child Line and Abuse Registry as a suspected child abuser.1
The listing of appellant on this registry occurred after the parents of a three-year old girl, L.K., reported an incident to the Child Protective Services Department of the Agency. The parents alleged that appellant
On November 15, 1988, L.K.‘s parents took her to the Family Intervention Center at Children‘s Hospital and was interviewed jointly by an Agency case worker and a representative of the Family Intervention Center. L.K. allegedly told the interviewers that the appellant had licked her vaginal area and buttocks. L.K. was given an anatomically correct doll and she demonstrated the same by licking its vaginal area and buttocks. After letters were sent informing appellant of the investigation, a representative of the Agency interviewed the appellant. Appellant denied all allegations, and further denied that she had behaved in any inappropriate manner. After this interview, the agency concluded that child abuse was “indicated” and filed the appellant‘s name with the child abuse registry. The appellant received proper notice of the report as dictated by the statutory guidelines.
The appellant made a request for the expungement of her name from the registry, which was denied. She then filed an appeal with the Commonwealth Department of Public Welfare Office of Hearings and Appeals (“Department“), and a hearing was conducted by an administrative hearing officer.2
The hearing officer also gave no weight to the testimony of any of A.Y.‘s witnesses on the grounds that they had no direct knowledge of what had transpired on the night in question, but concluded that the testimony from the Agency workers and L.K.‘s mother provided substantial evidence in support of the indicated report of child abuse. Denial of the appeal was accordingly recommended. The Director of the Office of Hearings and Appeals fully adopted this decision. On appeal, the Commonwealth Court affirmed 136 Pa.Commw. 451, 583 A.2d 515 (1990). The appellant thereafter filed a petition for allowance of appeal with this Court, which was granted. 527 Pa. 594, 588 A.2d 915 (1991).
Appellant now raises three issues: (1) whether the Office of Hearings and Appeals erred in basing its decision solely on hearsay evidence; (2) whether appellee‘s evidence met the necessary standards for admissibility of hearsay evidence; and (3) whether the evidence in toto satisfied the standard to support a report of indicated abuse.
In response, the Agency and the Department contend: (1) that, because this was an administrative hearing, the relaxed evidentiary standards used by the hearing officer were proper; and, (2) that there existed substantial evidence in support of the Agency‘s conclusion. For the reasons set forth below, we reverse the order of the Commonwealth Court.
Under the Commonwealth‘s Administrative Agency Law: Commonwealth agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonably probative value may be received. Reasonable examination and cross-examination shall be permitted.
In the case of McCauley v. Imperial Woolen Co., et al., 261 Pa. 312, 104 A. 617 (1918), this Court, discussing the statutory relaxation of evidentiary standards, stated:
These provisions do not mean, however, that either the referee or board has the right to find material facts on hearsay alone, whether such evidence is developed in the course of formal hearings or in less formal investigations; for, in the first place, the rule which forbids the making of material findings on hearsay alone, is more than a technical rule of evidence, and, next, there is nothing in the act before us which justifies the conclusion that the legislature
intended any such loose method for determining material facts.
Id. at 325-326, 104 A. at 622.
The Court in McCauley was addressing itself to the conduct of a Workmen‘s Compensation proceeding. However, the Commonwealth Court in unemployment compensation proceedings has consistently held that:
Hearsay evidence, properly objected to, is not competent evidence to support a finding of the Board. Hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record, but a finding of fact based solely on hearsay will not stand.
Walker v. Unemployment Compensation Board of Review, 27 Pa.Commw. 522, 527, 367 A.2d 366, 370 (1976). (Citations omitted.)
In other administrative agency proceedings, the Commonwealth Court has held that the hearsay rule is not a mere technical rule of evidence, but a fundamental rule of law which ought to be followed by agencies when facts crucial to the issue are sought to be placed on the record and an objection is made thereto. See Commonwealth, State Board of Medical Education and Licensure v. Contakos, 21 Pa.Commw. 422, 346 A.2d 850 (1975); Bleilevens v. Commonwealth, State Civil Service Commission, 11 Pa.Commw. 1, 312 A.2d 109 (1973).4
However, in child abuse expungement cases, the Commonwealth Court has significantly relaxed the principles it had previously announced concerning hearsay evidence. See L.W.B. v. Sosnowski, 117 Pa.Commw. 120, 543 A.2d 1241 (1988).
In Sosnowski, a case similar to the one at bar, the Commonwealth Court determined that the same statutory standard regarding hearsay testimony involving a child in dependency proceedings would be applicable in administrative expungement hearings involving child sexual abuse. This dependency statute provided in relevant part:
A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise 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 a court finds that the time, content and circumstances of this statement provide sufficient indicia of reliability.5
Additionally, in both the Sosnowski case and the instant case, the Commonwealth
The threshold question for us to resolve is whether the Commonwealth Court‘s “new” standards for the reliance upon hearsay evidence in expungement cases are proper.
Child abuse cases pose unique problems of proof, especially where there exists no independent physical evidence of abuse. For this reason, we cannot, especially in the format of administrative proceedings, categorically bar the hearsay testimony of the child victim.
However, there is a significant difference between admitting hearsay evidence and according it the proper weight. In acknowledging this distinction, we emphasize that an accused person even in the context of a “non-criminal” proceeding is not without his or her rights to due process. Although less process is due in an administrative proceeding than where criminal charges have been brought, an administrative adjudication of suspected child abuse is of the most serious nature. Therefore, this society, which was founded upon, inter alia, its citizens’ “inherent and indefeasible rights ... of acquiring, possessing and protecting property and reputation,”6 cannot blithely surrender those rights in the name of prosecutorial convenience.
The problem with Sosnowski and its progeny is not the standard announced for the admission of hearsay testimony, it is the fact that it has made it possible for accusations of child abuse, as reported by a third party, to constitute sufficient substantive evidence to register an individual citizen on a “black list” for all time. Moreover, because of the nature of these charges, the existence of a record involving such charges cannot be underestimated.7
In this instance, the appellant‘s name was placed on a statewide registry without there having been any adjudication; then when appellant was required to institute an expungement proceeding, the Agency was able to justify its action without producing the victim, any independent corroborative evidence, any recording of the victim‘s interview, not even a verbatim transcript of the victim‘s statement. Instead, the Agency was able to rely on its own employees’ recitation of what the three-year old child stated had occurred. The effect of this procedure was to totally deny the appellant the ability to review or challenge the evidence against her, and perhaps more importantly, it prevented the hearing officer from having any opportunity to judge the evidence except through the prism provided by the Agency. We think more is required.
Consequently, in keeping with these concerns, we are compelled to hold that the appellant here was entitled to far more protections than she received, and to that end, we announce the following guidelines8 to be employed in these types of proceedings:9
- 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; - 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.
- However, uncorroborated hearsay cannot satisfy the Agency‘s burden unless it comports with the following requirements:
- the statement was accurately recorded by audio or video equipment;
- 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
- 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.
Accordingly, the Order of the Commonwealth Court is reversed and this case is remanded to the Commonwealth Department of Public Welfare Office of Hearings and Appeals for a proper determination consistent with this decision.
CASTILLE, J., files a concurring opinion which is joined by PAPADAKOS, J.
MONTEMURO, J., is sitting by designation as Senior Justice pursuant to Judicial Assignment Docket No. 94 R1800, due to the unavailability of LARSEN, J., see No. 127 Judicial Administration Docket No. 1, filed October 28, 1993.
CASTILLE, Justice, concurring.
I agree that the Commonwealth Court should be reversed. I also agree that a remand of this case, consistent with the guidelines established by the majority, is appropriate to reevaluate the facts as alleged in this case.
I write separately, however, to advance the simple but critical proposition that the fact finder on remand must equally dispense credibility determinations. Below, both of appellant‘s parents with whom she resides offered character testimony. They testified as to appellant‘s good character and lack of propensity to engage in the acts of which are the subject of this case. Also, the appellant offered character evidence from prior employers who knew her and had observed her working with children. However, the hearing officer refused to consider testimony of the appellant‘s good character. She excluded such testimony because the witnesses preferred by the appellant had no direct knowledge of the events alleged to have occurred on the evening in question. On the other hand, the hearing officer credited the Commonwealth‘s witnesses’ testimony although they too had no direct knowledge of the incident at issue. As such, the hearing officer unjustifiably held the two parties’ witnesses to different standards. She subjected the appellant‘s witnesses to a “direct knowledge” standard but allowed the Commonwealth‘s witnesses to testify freely about events that they directly had no knowledge concerning. Such a disparate application of the admittedly relaxed rules of evidence in administrative hearings cannot withstand this Court‘s scrutiny.
Moreover, in Pennsylvania evidence of good character has long been held to be sufficient to raise a reasonable doubt in a criminal proceeding and form the basis of an acquittal in and of itself. Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). Here, the hearing officer refused to consider testimony as to the appellant‘s good character. Although the Scott rule is limited to criminal proceedings, its application has a strong foothold in administrative adjudications, and it is especially appropriate in a case in which an adverse decision could seriously injure the appellant‘s chances for future professional success. See Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970); Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981) (both cases applying criminal due process requirements to administrative proceedings). In the instant case, the hearing officer‘s decision may well have been different if she had given weight to appellant‘s character testimony.
I also write separately to criticize the lower tribunals’ cavalier treatment of the appellant‘s interests in this case. The appellant worked in family counseling and child care since earning her psychology degree in 1987. Her career ambitions were to work with families in crisis. As she seeks employment involving direct contact with children, the Department of Public Welfare must certify to the prospective employer whether an indicated report of abuse was made within the preceding one-year period.
PAPADAKOS, J., joins in this concurring opinion.