C.S. v. Department of Public Welfare

1254 v, record, Compensation Appeal After a review of the we Workers’ con-

Brehm Co.), Sanitation 782 A.2d clude the Board did not err in affirm- (Hygienic Board a claimant (Pa.Cmwlth.2001)(holding ing order as are WCJ’s all financial informa- provide who refuses supported substantial evidence. Ac- necessary to ascertain whether a tion cordingly, the decision of the Board is may have working, claimant is his indemni- affirmed.

ty suspended benefits until such informa- .provided).

tion is ORDER finally argues despite his Claimant NOW, day April, AND this 30th proclamations' that he repeated has not Compensation Order of Workers’ worked for Mike’s Lot since October Car Appeal above-captioned Board mat- 2005, the suspended WCJ his benefits ter is affirmed. provides until he regarding information his earnings. current Claimant assérts that he any

because has done work for the subsequent to his work

dealership injury, impossible produce

it is for him to

information as it does not exist. He con- permanently

tends that he is precluded having suspension his lifted and permitted by this is not the Act. C.S., Petitioner assertions, Despite Claimant’s current v. rejected the WCJ Claimant’s evidence that DEPARTMENT OF PUBLIC currently he does not do work for Mr. WELFARE, Respondent. Instead, relying Bartow. on Claimant’s conjunction own Affidavit in with the evi- Pennsylvania. Commonwealth surveillance, dence obtained on found that doing is work Claimant for Mike’s Car Lot. Argued Feb. 2009. record, supported by This 1,May Decided credibility based on the determina- WCJ’s reviewable, tions that are not and must be Thus,

considered as fact. consistent with

Brehm, the no WCJ made error sus-

pending Claimant’s benefits. Claimant

can suspension by present- have the lifted earnings. evidence of his Alternative-

ly, he present can evidence that his medi-

cal changed point condition has to the

where a reinstatement of benefits is war- generally

ranted. See v. Dillon Work- Compensation Appeal

men’s Board

(Greenwich Collieries), 536 Pa. (1994).(noting

A.2d 386 both physical one’s

capacity job availability to do work and

may affect the extent of a claimant’s loss earning power). LEADBETTER,

BEFORE: President SMITH-RIBNER, PELLEGRINI, Judge, JUBELIRER, SIMPSON, COHN BUTLER, LEAVITT and JJ. Judge OPINION BY COHN JUBELIRER. petitions

C.S. for review of an order of (DPW), of Public Welfare (BHA), Hearings Appeals Bureau of adopted which an Administrative Law (ALJ) Judge’s recommendation and dis- request missed of his for expungement of the report indicated child abuse made him .with Registry. BHA Childline relied on the findings factual of the Philadelphia County Family Common Pleas — court) (family Division in a dependency hearing upholding son, C.S., physically that C.S. abused his (minor). Jr. BHA did not conduct an ad- hearing ministrative on the merits in this appeal, argues matter. On C.S. that BHA dismissing erred in his appeal without holding an administrative on the merits DPW because had to with substantial evidence that he was the of abuse of minor. C.S. rely contends that was an error to on the court, which found him to be the of abuse lesser standard of facie evidence. The relevant facts as follows. ar.e minor, September is the father of the born 17, 2006, 2006. On November the Phila- delphia Department of Human Services (DHS) filed Child Protective Service In- vestigation Report (Report) showing that physically the minor was No- 14, 2006, vember while in the care of C.S. mother. minor’s C.S. and Bennett, III, Philadelphia, Franklin A. mother minor’s were both named as the petitioner. for perpetrators of the abuse. The re- Ulan, Counsel, Deputy Howard Chief flected that case status was “indicated” pro- medical evidence. DHS Harrisburg, respondent. upon based Giorgio-MeColgan gave in- extensive testi- for the following explanation the’ vided mony about the nature and extent of status: dicated injuries. inju- All of the [the minor]’s hospi- learned from the Social worker ries, hem- hemorrhage, retinal subdural was admitted with the child tal that orrhage, posterior and a fracture of the hematoma, ret[i]nal acute acute subdural ribs, injuries were serious that could healing rib fractures: hemorrhaging, and possible long-term visual and de- have physi- serious pain, severe impairment, on She velopment [the minor]. defects examinations at the cal Doctor’s injury. inju- types testified that these are injuries were concluded that the hospital shaking a ries that occur from the of child high suspicion with a consistent They child. are the hallmark features alleged perpetrator The physical abuse. commonly injuries, but of child abuse causing type father denied Baby Syndrome. Dr. the child was in his and known as Shaken admitted that symp- care when the first also testified that DiGiorgio-McColgan the mother’s injuries appeared. injuries of the child’s not caused [the toms were perpetrator mother denied alleged premature birth and that it was minor]’s that causing injuries, but admitted incredibly unlikely injuries were that child was in and the father’s her by an accidental trauma. There- caused symptoms care when first fore, the found that there is clear Court injuries appeared. gave child’s Neither convincing evidence that [the minor] and any explanation inju- reasonable for the was abused. ries. There is also evidence

(Child Re- Investigation parents Protective Service that the were the abus- this case 2.) 22, 2007, January ap- at On port ers of [the minor].... hearing

pealed requested to BHA and Here, has suffered serious [the minor] report whether the determine indicated physical injury which could not have was accurate. abuse without be- [the minor] sustained interim, shaken someone. While the family In the court conduct- could not determine with absolute March judicial dependency hearing ed a on 17, 2007, 12, certainty parents that the were the ones April 2007. On minor], adjudicated dependent, injured DiGiorgio- the minor Dr. [the court who DHS, “con- McColgan, testify committed the minor to did that [the minor] clear and con- presented cluded that DHS probably symptomatic would have been vincing was occurred, [the minor] shaking when the which is abused facie evidence presented prima parents when with his [the minor] was the-parents perpetrators were the possible, while it is is less C.S., Minor, Appeal the abuse.” In re: likely that would have been [the minor] (C.P. Sr., Father, Pa., C.S., Family Ct. day by shaken earlier someone 2007) Div., D33480611, July No. filed any symptoms else and not had until (Family Op.-),slip op. at 9. The Ct. he parents. 3:00 a.m. when was with his court stated: Furthermore, there was no evidence con-

In this there is clear and minorjs to show that oth- presented [the vincing evidence that [the minor] day possible er caretakers that were the abused.... abusers of Mr. Bucher tes- [the minor]. none of the caretakers whom

tified that Here, during investigation, his clearly meets the he interviewed [the minor] day child. Dr. Di- Edna Parker is the minor’s [who definition of §§ grandmoth- provides the maternal provider], care when an indi- 6301— er, paternal grandmother cated of abuse is filed with the great-grandmother, aroused his paternal Registry, alleged ChildLine perpetra- suspicion possible perpetrators as the statutory tor has a to a also did not raise parents abuse. However, the merits.1 argued DHS any Parker or any concerns about Edna appeal of the should the other relatives and the be dismissed because it would be a collat- had a with Edna Par- good relationship eral attack on the family adjudica- Therefore, ker. tion, which was affirmed the Superior found there is the 10, 2008, January Court. On hearing a on minor], parents [the had the motion to dismiss occurred in lieu of a (Family Op., slip op. (emphasis at 7-9 héaring Ct. on the Subsequently, merits. the added).) appealed family C.S. the court’s ALJ adjudication for DPW issued an adjudicating dependent order the minor to recommendation to dismiss appeal. C.S.’s the Superior Court. The ALJ relied on this Court’s decision in J.G. v. Public Welfare, 795 Superior family

The affirmed the Court (Pa.Cmwlth.2002), A.2d 1089 and stated: dependency adjudication court’s and stated support J.G., evidence needed to In family the court the. found that the the abused the minor was C.S. abused, child was but it did not decide may “that have caused the abuse” [C.S.] who committed the abuse. In response, allegations against and it was because the the Commonwealth Court ordered that C.S. were uncontradicted and unex “[l]eft appellant the have a hearing before the plained” respon that C.S. was found to be BHA on the sole issue of whether the C.S., Jr., sible for the abuse. In Re: a appellant committed the abuse. (Pa.Su Minor, Sr., Father, of C.S., Appeal the family J.G. court believed that a If 2007, per. No. 1353 EDA filed December identity court pre- decision could not 2007) 31, 2, (Superior Op.), op. at 4 slip Ct. appeal clude a BHA pri- because of the added). (emphasis Superior The part ma facie of the burden of proof, it further is stated that true that there “[i]t Instead, would have said so. it indicated a possibility although probabili is not a — that' the reason for the remand was be- ty place the abusé took several —that family the court made no finding cause symptoms hours before the manifested on the perpetrator. of the In themselves; however, there is unrebutted words, other the fact that the J.G. court evidence that the as prima facie spent time analyzing family whether the (Su are primary responsible.” caretakers court the perpetrator identified means 3). perior Op., slip op. Ct. at that if identify court did J.G. 8, -2008, appellant perpetrator, as the then January On DHS a filed appeal J.G.’s would have been motion to dismiss of the indi denied. C.S.’s Generally, In the instant report. cated Child Protec (CPSL), perpetrator. tive Services Law 23 identified as the [C.S.] Pa.C.S. CPSL, 6338(a) given 1. Section Pa.C.S. Notice of the determination must be 6338(a), provides subjects report, § after a of the ... sus- shall also [and] pected recipient right, child abuse is determined to be an inform the of his within 45 days report, being the information contained in the status after notified pending complaint expunged report, report, file shall be an indicated and his request immediately, appropriate entry hearing "and an shall to a is denied.” 23 if 6338(a) added). register. (emphasis § be made in the Statewide central Pa.C.S. 5, (ALJ 6, February may continue to hurt child. A [the] at Adjudication omitted).) (citations February On p[r]ima facie level of evidence for adopted BHA recommendation of ... accept- interests of the child best entirety, in its and dismissed the ALJ society overwhelming able since has an petitions now appeal. C.S. keeping immediately interest in children review.2 safe from someone who hurt them. he argues that should appeal,3 legislature contemplated On C.S. this when on the merits have afforded setting proof the standard as expungement before BHA. facie. proceedings, in dependency contends contrast, legislature requires only prove need county agency sub- higher level standard by pri- of abuse C.S. was the person stantial evidence for be evidence, while, in expungement ma facie Registry. on the placed ChildLine fundamentally which are dif- proceedings, exclusive. mutually two are proceedings, ferent 10.) (C.S.’s Br. at Because of the differ- perpe- that C.S. was the DPW must in the and the burdens proceedings ences trator of abuse substantial .evidence. argues that BHA erred in proof, of C.S. argues: finding the factual relying on court’s proceeding is dif- A dependency the of abuse. perpetrator that C.S. was of indi- ferent from a BHA [an] opposition, argues perpe In DPW that a Regis- the ChildLirie [report cated on] trator, who in a dependency is identified try. dependency In a case the state has in proceeding, like C.S. was this can in interest of the child mind best collaterally judicial proceeding attack a if abuse occurred so determining when in which he is so identified. DPW con might step protect in and Court, in K.R. Depart tends v. immediately protect that child child and Welfare, ment 950 A.2d 1069 any party who have hurt or Public proceeding expungement expungement re when the tri- 2. This Court's review of an dependency proceeding quest a of wheth al court in the "is limited to determination violated, finding rights specific no of fact er were whether makes Üaat constitutional committed, parent perpetrator of law were or ’whether of the abuse errors was the supported by necessary fact are of the child. 3.) Department preclusion analysis evidence.” K.R. v. substantial Whether die issue 1069, Welfare, 1073 expungement Public 950 A.2d n. 6 be different in an should (Pa.Cmwlth.2008) (quoting Depart brought E.D. v. hearing challenge an indicated 384, Welfare, A.2d 387 brought challenge ment Public 719 report than in one (Pa.Cmwlth. 1998)). report. founded 4.) finding Whether a of abuse 15, 2009, January prepa 3. We note that on preclusive in an ex- should have effect argument, for Court ordered ration oral pungement hearing challenging an indi- parties, and invited several entities who cated of abuse. services, protective work in the area of child Order, (Per 2009.) January Curiam filed following addressing the to file-briefs issues: Order, response parties In to our filed briefs, following supplemental 1.) and the entities finding Whether a of fact or conclusion amici curiae: Juvenile Law Center filed briefs dependency pro- of law rendered in a Services; Community Legal Support and ceeding any preclusive effect should have Advocates; Philadelphia Child Center for expungement in an before the County Department of Human Services. In- Hearings Appeals. Bureau of 2.) deed, finding amici curiae aided this Court depen- of abuse in a briefs Whether legal binding examining complex important dency proceeding be should Hearings Appeals in issue raised C.S. Bureau (Pa.Cmwlth.2008), recently rejected person a simi- a would accept reasonable as ade- parent argued in which a argument quate support lar a conclusion.” D.T. v. that she was a that the Welfare, Public adjudication dependency of abuse in a (Pa.Cmwlth.2005). Thus, in the expungement not be used should determining identity standard for of a action because the facie evidence dependency matters is a lower than the substantial standard was significantly proof lower burden of than in such, As DPW asks evidence standard. expungement proceedings. The different .reject argu- to likewise this Court burdens of set forth the proceed- appeal. ment made on ings highlight fundamentally different important begin purposes It is our discussion proceedings and by examining the between de expungement proceedings'serve. difference pendency proceedings expungement Act, governs Juvenile which depen dependency proceedings, proceedings. dency proceedings, taking is focused on pursuant which are held the Juvenile action in removing swift children from a Act, 6801-6375, county §§ Pa.C.S. neglectful or abusive home. The Juvenile the-burden, of agency establishing first has procedural Act is a act establishing juris through convincing evidence that legally diction in the courts to intervene in abused, only a minor was but then need cases where children are neglected and the perpetrator by custody, available resource for change prima facie evidence. 950 A.2d at custody, or detention a child who Superior 1075. The Court has defined suspected of being abused under depen evidence standard Court, The Juvenile through CPSL. dency presumption cases as mere “that Act, empowered Juvenile is to remove chil normally would not have oc abuse dren from the environment when of except curred reason acts or omis for their welfare or in the inter necessary R.P., parents.” of the In re sions 957 A.2d J.R.W., public safety. est of Interest of 1205, (Pa.Super.2008) (quoting 1218 In the 597, 1019, Pa.Super. 428 631 A.2d 1022 J.R.W., 597, Pa.Super. Interest 428 631 of (1993). Thus, the prima facie evidence 1019, 1024(1993)). A.2d identity standard for the of a contrast, in By expungement pro acceptable readily is in order to protect an ceedings, county agency or DPW has child, once that abuse has been of proving by burden substantial evi proven by higher standard of clear and alleged perpetrator’s dence that the con convincing evidence. duct falls within one of the definitions of contrast, By CPSL, purpose of the 6303(b)(1) child abuse set forth in Section which is in a request invoked for an ex- v. Department of the CPSL. E.D. Public abuse, pungement of an (Pa.Cmwlth. 384, Welfare, 719 A.2d 388 bring quick is to about and effective re- 1998). 6303(a) Section CPSL de porting suspected child abuse so as to report” fines an “indicated as child abuse protective serve as a means providing based on a determination competently prevent services and to fur- county agency Department or the ther abuse children. 23 Pa.C.S. alleged “substantial evidence of the abuse 6302(b). .6303(a). § geared CPSL is more to- § exists.” 23 For the Pa.C.S. reporting perpetrators wards purpose expungement proceeding, of an “[ejvidence may adversely which affect a perpetrator’s evidence is substantial which outweighs reputation employment opportunities. inconsistent evidence and which

1260 Welfare, by subjecting Public children them to examina- A.Y. v. 1148, 7, 1152 n. Pa. 125 n. by psychiatrists, physicians tions 6338(a). (1994); § the Su counselors, As part, legitimize Pa.C.S. to further explained, in AT. preme Court quest prevent her the children from having any relationship is due in an with their fa- Although process less proceeding than where ther. administrative brought, have been charges

criminal adjudication suspected administrative compelling The most evidence that abuse is of the most serious nature. child prob- is the source of the [K.R.] [minors] Therefore, society, which was found- testimony vastly lems is their and their alia, its citizens’ ‘inherent upon, ed inter improved being condition after removed acquiring, ... rights and indefeasible place- care. Foster care [KR.’s] possessing protecting property supervised virtually ment and visits have blithely reputation,’ surrender cannot eliminated the fears of their [minor]’s prosecutorial in the name of rights those father. A.F. calls [the Dad. The father] convenience. excelled in the ... School [minors] Dis- A.Y., 537 Pa. at 641 A.2d at 1152 trict. M.F. suffers from mild con- Const, (footnote omitted) (quoting Pa. art. stipation. A.F. generally happi- much 1). I, Thus, higher § standard of longer er and no suffers from headaches. in an proof required expungement pro ceeding perpetra of a adjudicated are depen- [minors] of his light tor is reasonable “inherent dent because clear and evi- rights” neg which be indefeasible presented dence has been that the [mi- atively affected. proper parental are without care nors] Recently, in this Court concluded parent nécessary or control from either rely could on the factual BHA find- physical, for their mental or emotional ings dependency adjudication from a health and such care and control from upholding serve as the basis for a founded parent immediately either is not avail- report of abuse where there was substan- able. presented juvenile tial evidence to the K.R., 950 A.2d at (quoting 1072 Trial Ct. that K.R. abused her children. 18-20). Op. at There, BHA dismissed of her appeal KR.’s .16, 2007, July On BHA dismissed KR.’s request for expungement of the child request of her for an expungement abuse findings against her based on the report. explained: of a founded BHA by factual made a trial court in a Specifically, an Order issued the [tri- dependency proceeding. Specifically, the al Ap- which the Court found court] court found as fact that: n pellant “systematically inculcated both systematically [K.R.] has inculcated both fabricated, with [minors] unsubstantiat- fabricated, children with unsubstantiated ed, exaggerated and concerns of their exaggerated and concerns of their father father unhealthy which created an fear unhealthy which created an fear that that their father would harm them”. their father would harm them. This Further, the Court found the non-ending non-ending behavior caused [K.R.] by Appellant behavior caused M.F. to to suffer a spastic [M.F.] colon and with- holding spastic withholding suffer a colon and behaviors and resulted in [A.F.] behaviors, being diagnosed depression diagnosed with and A.F. was with anxiety. depression anxiety. has further harmed the The [K.R.] Court also

1261 harmed Appellant “further the trial court erred in finding found them to examina by subjecting [minors] they responsible were for the abuse of physicians, and by psychiatrists, tions their Initially, parents child. argued counselors, legitimize further part, to provide the CPSL did not a means to quest prevent [minors] her to adjudicate Alternatively, abuse. par- any relationship with their fa having argued ents if the Juvenile gives Act [minors], subject ther”. Finally, the trial court jurisdiction make a find- M.F., adjudicated depen A.F. and were of the abuser there dent because was clear [minors] may not be established a convincing evidence the [minors] basis, but must be established clear and proper parental “without care or were convincing Id. parents evidence. ar- necessary control from for parent either gued finding by the trial court mental, physical, their or emotional they abused their child could not es- health and such care and control from tablish a basis for a “founded” report of parent immediately either is not avail child Specifically, abuse. ar- § 6303 for able”. See Pa.C.S.A. defi 6381(d) gued that because Section “Founded”; see also R.F. v. nition of CPSL, 6381(d), § DPW, Pa.C.S. (Pa.Commw.2002), “establishes] A.2d 646 [8]01 (Pa. DPW, proven by v. A.2d 1089 that abuse be a and J.G. standard of Commw.2002)(which justi describes the prima facie applicable [it] change the status of a request fication to a under abuse the [Juvenile] child abuse from “Indicated” to Act, which be proven [must with] “Founded”). Id. Superior evidence-.” (quoting BHA 950 A.2d at 1073 Or- Court held that it was clear that under the 2007). der, On July to this Act, incorporates Juvenile which the later Court, K.R. BHA denied her asserted that legislation relating additional to child statutorily a mandated administrative CPSL, provided abuse under the “the Ju- challenge the evidence jurisdiction venile Court has the and the regarding custody her care her adjudicate child abuse and when This addressed the children. issue such an adjudication pursuant is made rely on of whether BHA could factual find- [CPSL], report” may be “founded made in ings dependency proceeding, lodged with of Welfare not in separate administrative hear- determining that are the per- the parents to establish that chil- ing, K.R. her J.R.W., responsible sons the abuse.” dren. added). 631 A.2d at 1025 (emphasis issue, addressing In this ex- this J.R.W., In amined J.R.W. and J.G. Court, K.R., This in also examined our Superior Court held that factual find- J.G., decision in in which this Court ulti- adjudication from a ings dependency may mately remanded the cáse to BHA for a as the basis for a upholding serve founded hearing on the of the perpetrator. J.R.W., of abuse. In a minor report was explained We that: J.G. adjudicated dependent after the trial court an report child abuse was unquestionably found the minor was an Following depen- filed J.G. a baby” “shaken and had suffered dency hearing, status of the report life-threatening injuries while in the care changed was from “indicated” to “found- custody parents. of her Id. at 1021. adjudication, ed.” the dependency appeal, the did not contest On rather, finding; they argued the trial court found: a bar, testimony plea is or nolo contendere or find- guilty case at In the uncontradicted, and well- unequivocal guilt charge a involv- to. criminal convincing stan- clear and beyond the ing the same factual circumstances in- The fact A.M. was abused. abuse, that in the of child allegation dard volved to is evidence no direct instances, that there would “in appeal an most con- dispositive. the mother is not implicate adjudi- a attack of the stitute collateral testimony that from the It is clear itself, J.G., allowed.” cation which is not were inflicted occurred that injuries holding at This 795 A.2d 1093. was while this child was under sometime distinction, subject to a which we made of both and control supervision as explained follows: Moreover, agency has parents. Where, however; report a founded is established judicial a upon adjudication based in a is presently the child as a proceeding, non-criminal such de- parental care or con- proper without action, in which the court pendency care or control is trol and such a the child finding enters was Therefore, immediately available. abused, but a does not issue corre- adjudi- will issue a decree the Court sponding finding that . named dependent. this-child as cating responsible for perpetrator was J.G., at a 795 A.2d 1093. As result abuse, a perpetrator named entitled in status from “indicated” change appeal to an administrative before the “founded,” the Bureau did not hear secretary to whether determine report. appeal as the indicated J.G.’s underlying adjudication of child abuse had no further concluded that J.G. It a supports report’ ‘founded of abuse. appeal report. from the founded right emphasize scope that the We appealed to this J.G. Court. then is for purpose the limited al- found that appeal, On determining or not the whether un- an indicated re- though .perpetrator a derlying adjudication supports right of child abuse has a port report perpe- founded that the named un- expungement, request of an denial responsible trator is for the abuse and [CPSL], correspond- is no der the “there permit would not a named ing provision within the [CPSL] collaterally attack or otherwise report’ in a ‘founded perpetrators named challenge underlying judicial adju- statutory abuse. omission of child This dication. mean that a does not named Id. at 1093. This Court held J.G. that any have in a founded does not dependency adjudication because the re- J.G., at appeal.” upon merely lied DPW indicated a a founded We fui’ther found that abused, finding A.M. was did abuse is adjudication of child not contain definitive that J.G. the Adminis- under Section 504 of guilty J.G. was enti- § Law, Agency trative 2 Pa.C.S. tled to an administrative de- adjudication aof Commonwealth “[n]o adjudication termine whether any party shall be as to agency valid evidence abuse constituted sufficient to rea- unless he shall have been afforded that J.G. com- support founded op- and an hearing sonable notice Accordingly, mitted abuse. Id. we we to be heard.” Id. While portunity the order of and reversed DPW remand- we appeal, that there was a to held conducting to DPW for purposes ed pro- noted in a criminal specifically ceeding, entry where an administrative to determine there is support recognizes if sufficient evidence existed to a Court now .that this statement founded J.G. committed in KR. fully Thus, was explained we abuse. Id. at 1094. to clarify separate wish that a administra- tive hearing before BHA is not necessary K.R., at 1077-78. if there is substantial support evidence thorough After a examination of the pur findings made in the dependency pro- Act, pose behind Juvenile the burdens ceeding the appellant was the perpe- dependency adjudications, and KR., trator of the abuse of the minor. In law, relevant case we concluded that BHA there was substantial presented evidence rely could findings the factual in that at the dependency hearing to support the dependency proceeding to dismiss KR.’s finding that K.R. perpetrator was the expungement request because the exten abuse. The one and testimony findings sive and factual in that named K.R. was herself. Additionally, “19 dependency adjudication established that K.R., witnesses testified at the dependency adju- K.R. minors. at A.2d dication, K.R., including minors, Specifically, we held that: sever- doctors, al and caseworkers.” Id. at 1079. J.G., pursuant to this Court’s decision findings of fact made in the dependen- KR. is not to an entitled administrative cy adjudication-were extensive, proceeding quite as would be a collateral and determined, the trial attack on the court findings ques- factual from the without tion, dependency adjudication- that K.R. was K.R. and given found, DPW were both a full fair abuse. and The trial court among other opportunity present their things, that K.R’. did everything her K.R. given was a full and fair oppor- power keep the minors from having a tunity to rebut evidence of abuse and relationship with their father. For exam- neglect. To allow K.R. an administra- ple, she made false reports alleging that tive hearing to confront the very same father; minors were abused witnesses to challenge very caused the minors to- fear their father abuse, same evidence of which she has based on fabricated and unsubstantiated already given an opportunity to claims; subjected them to unneces- refute, would be a collateral attack on sary examinations doctors and counsel- the trial court’s factual findings, which is Id. at ors. 1079. The trial court to J.G. prohibited pursuant Therefore, found that “the non-ending behavior process due does not require an admin- caused M.F. to spastic [K.R.] suffer a co- istrative hearing, as the material facts behaviors, lon withholding and A.F. found in the dependency proceeding can- diagnosed with depression and anxi- not be disputed. ety.” Id. at 1073. Because of the over- (citation omitted). 950 A.2d at 1080 whelming evidence identifying K.R. as the perpetrator of there was no legal

Contrary to DPW’s position, our justify reason to granting K.R. another decision in KR. require does not hearing before the BHA. To do so would to affirm BHA’s order and dismiss have caused the KR., minors relive the abuse appeal. we specifically held they endured at the hands K.R. that “if made in the dependen of, clearly violated the cy principles collateral proceeding in this case establish that minors, estoppel. Accordingly, K.R. abused the it is because there was unnecessary provide K.R. with a substantial separate presented adminis to the trial trative hearing minors, to establish that K.R. that K.R. abused the Id. abused the minors.” at 1078. This affirming Court was correct in the denial standard, the short hearing before evidence fell far of the administrative separate of a necessary BHA. substantial evidence standard to that the minor. prove C.S. abused by the findings factual made this in stark con family court in case are Here, deny expunge- order to C.S. court in by to those made the trial trast ment of the indicated on the Child- the in KR. K.R. was K.R. where Unlike must Registry, Line DHS or DPW perpetrator indicated the person sole as by substantial evidence that C.S. abused abuse, here, specifically never C.S. was minor, rely and on the the cannot factual In of abuse. perpetrator named as the family court findings by made the that stead, “the family the found that court perpetrator the of abuse on C.S. was based as parents” of the minor were indicated facie Not prima evidence. did the However, we perpetrators the abuse. family court state that the standard used par finding there is no that the note that identify perpetrator to C.S. as the was ents, minor. together, or the alone abused evidence, family facie the prima but court’s Further, present there was little evidence was clear opinion that its were not physically harmed the minor. ed that C.S. evidence. supported substantial While KR., family court Unlike the trial the is there this Court aware that be a readily in this case admits its uncer court in the repetition expunge- evidence tainty that was the C.S. it states it “could not proceeding, process requires abuse when that ment due certainty with absolute determine expungement hearing proceed. to parents injured” were the ones who family Because the court did not amake (Family at 9 Op., slip op. minor. finding perpetra- specific was C.S. added).) Further, family (emphasis supported by tor of abuse the minor that, expert wit court stated based on evidence, substantial we must vacate the testimony, “probably the minor ness’s dismissing appeal, BHA’s order symptomatic would have been when for a hearing remand before the BHA at occurred, mi shaking which is when [the time DHS has the which or DPW burden parents while it with his nor] was to prove, substantial that C.S. likely is it is less possible, [the minor] day abused minor.4 would have shaken earlier any symp else and not had someone 3:00 a.m. with toms until when he was his ORDER parents.” (Family slip op. at 9 Op., added).) family court also (emphasis NOW, 1, 2009, May the order of the who noted several other individuals cared Welfare, Public Bureau of leading up in the for the minor hours Hearings above-cap- in the Appeals, exhibited his the time minor hereby tioned matter is vacated However, being be symptoms shaken. is matter remanded for before cause none of those caretakers aroused Appeals Bureau of Hearings deter- worker, by the fam any suspicion case whether mine there is substantial evidence ily found that there facie court was support C.S. that the had abused the evidence was the of abuse. minor. While the found enough satisfy relinquished. Jurisdiction course, finding permitted because Of attack based court’s that the minor was evidence. (Petition- C.S., Sr., by is -a Judge petition OPINION BY This DISSENTING er), perpetrator the father and indicated BUTLER. the of a minor abuse referred to herein as majori- disagree with the respectfully I petition requests C.S. The this Court’s re- “[bjecause family the ty’s conclusion view of an Order and Decree of the Penn- specific finding make a court did not sylvania Department of Public Welfare perpetrator the of abuse C.S. was (DPW), Hearings Bureau of Appeals evidence, by substantial supported minor (BHA), affirming an Administrative Law the BHA’s order dismiss- we must vacate (ALJ) Judge’s ap- a hear- dismissal of Petitioner’s appeal, and remand for ing C.S.’s or peal Philadelphia before the BHA at which time DHS from the decision of the (DHS) prove, by the burden to substan- DPW has of Human Services minor.” tial that C.S. abused the to file an report the DPW 1264,n. 4. Majority Op. at . against child abuse the father with the Registry. specifically, Childline More the my view that specifically, More BHA concluded that Petitioner’s finding by The Phila- specific there was should be dismissed because it constituted County Pleas— delphia Court of Common court), improper collateral attack (family Division Family Court by Pennsylvania finding by Philadelphia Family affirmed which was Court, Superior perpe- that C.S. was the that Petitioner abused C.S. trator of abuse of the minor —not the sole Petitioner contends “BHA erred in but, nevertheless, perpetrator or exclusive dismissing appeal, finding Petitioner’s Moreover, perpetrator. that C.S. was the dependency related case was a collat- my specific findings it is view that eral attack when the related dependency by substantial evidence. supported

were applies case a lower of proof standard than view, majority in additionally, my And appeal.” the BHA Petitioner’s Brief at 9. in following erred characterization of majority characterizes the issue “proof’ requirement in this case: slightly different: Here, deny expunge- order C.S. appeal, argues On that BHA erred ment of the indicated on the dismissing holding his without Registry, Child Line DHS or DPW must an administrative on the merits prove by substantial evidence that C.S. because DPW had to with sub- minor, rely abused the and cannot on perpe- stantial evidence that he was the by the factual made trator of abuse of the minor. C.S. con- was the that C.S. rely that it error to on tends evidence. prima abuse based court, findings of the which found Majority Op. at 1264. But see In Interest him to be the of abuse J.R.W., Pa.Super. of 1019, the lesser facie evi- standard (1998) (wherein Superior dence. noted that the facie “standard Majority Op. at Í255-56. caretakers, establishing abuse DHS filed an indicated of child coupled convincing with the clear and evi- Registry against abuse with the Childline necessary dependency, dence to find has C.S., Petitioner as the father of the child in imposed by Legislature as the question. dependency also filed a DHS standard which the Juvenile Court must petition against the father on behalf of deciding abuse as the apply cases” fact matter, C.S. In the related abuse “must be established evidence”). Philadelphia Family decision was issued in presented that DHS clear higher proof prima Court is a burden of than convincing, that the subject evidence facie. abused, prima child was and that However, facie burden of that presented evidence was proof family part court is of a two perpetrators were the of the abuse. The step proof. Specifically, standard of Pennsylvania Superior Court affirmed issue of whether a child has been abused C.S., Jr., family court decision. In Re: using is decided the clear (Pa.Su- Minor, C.S., Sr., Father, Appeal of found, then, standard. If abuse is n 2007, EDA filed December per. No. 1353 identity of the perpetrator is decided 2007). regard to the With using the prima facie standard. The filed an. with the report, Petitioner Pennsylvania Superior explained Court BHA, DHS’ challenging filing of the indi- burden split proof: In the [in] with Registry. cated the Childline J.R.W., Interest Pa.Super. reiterate, To the latter referenced appeal (1993). 1019, 1024 BHA, was dismissed and is now such, family higher As court uses or petition before on a this Court review. comparable proof. burden of The clear BHA, adopting the recommendation and convincing higher standard is than entirety, of the ALJ its held that Peti- the BHA’s substantial evidence stan- appeal should be tioner’s dismissed be- dard. After there is clear and convinc- cause it constituted an unlawful collateral abuse, Legislature finding by attack the Philadel- with determined the above-[referenced] phia Family Court C.S. was abused appellate approval court’s that the likeli- Excerpts Petitioner. from the anyone hood of committing the abuse explain the ALJ with clarity,- considerable other than a custodian of the child is so the legal issues. small facie is sufficient case, In the instant the Philadelphia against a custodian of the child. Family Court Common Court Pleas — Furthermore, the more impact serious Division held commit- [Petitioner] family of a court’s decision in compari- against subject ted child abuse child. son to that of a BHA decision indicates Pennsylvania Superior af- principle of collateral attack firmed this decision. Since the applies. already court decided the issue that is subject appeal with [Petitioner’s] Adjudication of ALJ at 5. [(i.e., the BHA the existence of child So, my perspective, the issue be- . abuse and the of the father identification fore this Court is somewhat straightfor- abuse)] as the of that [Peti- ward. Did the BHA err as a matter of law BHA appeal is a collateral at- tioner’s] when it held that the appeal by C.S.’s tack on the court judgment. father should be dismissed because it was argues that the family [Petitioner] improper collateral attack on the Phila- decision does affect the BHA case delphia Family Court decision? because of the burden proof. different very This issue is similar to one of the added)]. [(Emphasis Specifically, issues raised and discussed in this Court’s family court, prima facie evidence is the opinion in K.R. Department v. Public proof burden of identify perpe- used to (Pa.Cmwlth.2008). Welfare, 950 A.2d 1069 trator of abuse. In a BHA held, alia: inter burden of is substantial evidence. Since before a court can make substantial evidence has de- a determination preponderance fined as dependent that a child is because of injuries peti- the burden is on the caused and whether there child caused, were injuries serious Father juvenile tioner to show have an might arguable claim. While by convincing clear and evidence. abused injuries the evidence of the caused must proven by be clear and convincing evi- convincing evidence is While clear and dence, shown, prima once that is facie in a required child abuse de- evidence is sufficient to establish adjudication, the pendency court’s find- primary responsible. caretakers are to the the abusers ings as unexplained, Left uncontradicted and we by prima only need be established facie prima conclude that established a DHS evidence. against case Father. facie added). K.R., (emphasis 950 A.2d at 1075 C.S., slip In Re: at 4. op. (These recently issues were most ad Moreover, K.R., in specifical- this Court by Depart Court in v. dressed' C.J. ly process addressed the issue of due (Pa. 960 A.2d 494 ment Public Welfare argu- which is at the heart of Petitioner’s Cmwlth.2008), cited, very ap which also being ment his barred from collat- K.R.; specifically provingly, pages note erally attacking the decision of the C.J.). 496 and 498-499 of court. K.R., referenced, principles also Based on the set In this Court forth DPW, J.R.W. J.G. 795 A.2d 1089 very [v. rejected, argument was simi- (Pa.Cmwlth.2002)], is clear that it lar that of the Petitioner in the case sub Secretary may rely on the factual find- appellants In “the judice. argued ings of the trial court in a juris- that if the Act affords the trial court adjudication to dismiss an for a to make a diction Here, request expungement. for similar identity of the abuser not be estab- J.G., K.R.’s is from a “found- basis, facie be prima lished on but must and, thus, ed” of child abuse by convincing clear and evi- established issue before this Court is one of law at dence.” Id. 1076. regarding the process due owed. Ac- argument rejected Petitioner’s was also if cordingly, findings made our in the Superior Court dependency proceeding this case es- judice. appeal related to the case sub minors, tablish that K.R. DHS, dependency, for had purposes unnecessary provide sep- K.R. with a convincing to establish clear and evi- arate administrative to establish K.R. abused the minors. dence that child abuse occurred. It did clear and con- have establish K.R., 950 A.2d at 1078. evidence,that it at vincing Father’s Though only there was an “indicated hand; rather, DHS had to establish report” involving of child abuse in this case case that the abuse oc- C.S., distinguished as from the “founded curred as a result of Father’s. acts or C.J., report” purposes in K.R. and for words, In other if the bur- omissions. analysis in our the difference is significant.1 den of were the same to show who not See Section 6303 of though evidentiary 1. Even the DHS chose not to convert ruination that of child report” dependency adju- its "indicated of abuse to'a "founded support abuse sufficient to county agencies in K.R and report,” as the did warrant and dications are also sufficient to C.J., judicial equiv- DHS was the action of reports founded of child abuse with sustain converting report” "indicated to a alent of its Registry. Evidentiary findings the Childline report” purposes "founded for of the instant reports of child sufficient to sustain founded review, petition given legislative deter- Law, Services Protective as amend- Child

ed, 6303; § DEPARTMENT and Section 6302 of OF LABOR & Pa.C.S. INDUS Act, amended, TRY, the Juvenile Justice as BUREAU OF WORKERS’ § each of the three cases COMPENSATION, Pa.C.S. Petitioner judicial findings there were that there was v. dependen- evidence of WORKERS’ COMPENSATION AP cy, facie evidence of abuse. I (ETHAN-ALLEN PEAL BOARD EL agree “family with the ALJ that court uses DRIDGE DIVISION and St. Paul higher comparable proof,” or burden of Company), Travelers Insurance Re in expunction proceedings than that used spondents. (Adjudication BHA. before the of ALJ at 5). Pennsylvania. Commonwealth Court of So, specifically rejected this Court in Submitted on Briefs Dec. 2008. herein, argument the Petitioner’s 6,May Decided dismissing that “BHA in erred Petitioner’s attack, on collateral based since collateral can not occur when attac[k] dif- proof standards exist in each

ferent (emphasis case.” Petitioner’s Brief at 8

added). The different standards of legally significant

in each case are not in

the matter before the Court. As this (as C.J.) applied

Court’s decision in K.R. in herein,

should control the outcome the or-

der of the BHA should be affirmed.

Therefore, majority I must dissent to the

opinion which vacates the order of the

BHA arid remands for a before

the BHA. certainly ceedings, county agencies abuse are sufficient to sustain an in K.R. and C.J. report. summarily changed reports of abuse from C.J., Very "founded,” much like in exclusively the facts K.R. and "indicated” to based report” there was an "indicated adjudicated decisions the trial abuse; a trial on the merits of reason, C.S., courts. For whatever DHS

petitions, upon with of abuse based summary change did not make from "in- and a report. dicated” to "founded” upon as to the of the abuser based notwithstanding, evidentiary legal latter evidence; appeals there were principles very of K.R. and C.J. are much Superior trial court’s decisions to (As aside, applicable to this case. if DHS Court, which affirmed the trial court deci- had chosen to convert the indicated sions; proceedings and there were collateral report, this case to a founded this case would challenging, unsuccessfully, abusers have been rendered moot because there is no reports. the indicated/founded report). a founded significant factual difference in the three pro- cases was that after the trial court

Case Details

Case Name: C.S. v. Department of Public Welfare

Court Name: Commonwealth Court of Pennsylvania

Date Published: May 1, 2009

Citation: 972 A.2d 1254

Docket Number: 426 C.D. 2008

Court Abbreviation: Pa. Commw. Ct.