G.V. v. Dep't of Pub. Welfare

• Decision Date: 12 July 2012
• Citation: 52 A.3d 434
• Parties: G.V., Petitioner v. DEPARTMENT OF PUBLIC WELFARE, Respondent.
• Court: Pennsylvania Commonwealth Court

52 A.3d 434

G.V., Petitioner

v.DEPARTMENT OF PUBLIC WELFARE, Respondent.

Commonwealth Court of Pennsylvania.

Argued June 6, 2012.

Decided July 12, 2012.

Janice L. Martino Longer, Lancaster, for petitioner.

Mary P. Patterson, Senior Counsel, Harrisburg, for respondent.

Anne L. Cooper, Lancaster, for intervenor Lancaster County Children and Youth Social Service Agency.

BEFORE: PELLEGRINI, President Judge, and LEADBETTER, Judge, and SIMPSON, Judge, and LEAVITT, Judge, and BROBSON, Judge, and McCULLOUGH, Judge, and COVEY, Judge.

OPINION BY Judge COVEY.

G.V. petitions this Court for review of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals' (BHA) December 29, 2010 order adopting the Administrative Law Judge's (ALJ) recommendation denying G.V.'s appeal. The issues before this Court are: (1) whether there was substantial evidence to support BHA sustaining the report of child abuse; (2) whether BHA erred in its interpretation of “sexual abuse or exploitation,” as defined by Section 6303(a) of the Child Protective Services Law (Law), ¹23 Pa.C.S. § 6303(a); and, (3) whether BHA erred by applying a “substantial evidence” standard of proof.² We vacate and remand.

On September 9, 2009, Lancaster County Children and Youth Services (CYS) received a referral alleging that G.V. was sexually abusing his 16–year–old great niece, C.S., of whom G.V. and his wife, T.V., had custody. CYS conducted an investigation and, on November 5, 2009, it filed an indicated report against G.V. as a perpetrator of sexual child abuse against C.S. CYS filed the report with the ChildLine & Abuse Registry (ChildLine Registry) ³ on the same day. By notice mailed November 16, 2009, G.V. was informed that he was listed on the ChildLine Registry as a perpetrator of child abuse. On December 23, 2009, G.V. requested a hearing because he disagreed with the indicated report. A hearing was held on June 2, 2010 before the ALJ, at which several witnesses, including C.S. and G.V., testified. On December 17, 2010, the ALJ issued a recommendation that BHA deny G.V.'s child abuse expungement appeal. By order issued December 29, 2010, BHA adopted the ALJ's recommendation in its entirety.⁴ On January 26, 2011, G.V. appealed to this Court.⁵ On June 6, 2012, the standard of proof issue was argued before this Court en banc.

G.V. seeks expungement of the indicated report designating him a perpetrator of child abuse. “Child abuse” is defined by the Law, inter alia, as “[a]n act ... by a perpetrator which causes ... sexual abuse or sexual exploitation of a child under 18 years of age.” 23 Pa.C.S. § 6303(b)(1)(ii). “Sexual abuse or exploitation” is defined in DPW's Regulations as, inter alia:

(i) Any of the following if committed on a child by a perpetrator:

(A) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in sexually explicit conduct. ....

(C) Any of the following offenses as defined by the crimes code:

....

(6) Indecent assault as defined by [S]ection 3126 [of the Pennsylvania's Crimes Code (Crimes Code) ] (relating to indecent assault).

....

(D) Exploitation which includes any of the following:

(1) Looking at the sexual or other intimate parts of a child for the purpose of arousing or gratifying sexual desire in either person.

55 Pa.Code § 3490.4. Section 3126(a) of the Crimes Code states, in relevant part:

A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person ... for the purpose of arousing sexual desire in the person or the complainant and:

(1) the person does so without the complainant's consent; [or]

....

(4) the complainant is unconscious or the person knows that the complainant is unaware that the indecent contact is occurring[.]

18 Pa.C.S. § 3126(a). “Indecent contact” is defined by Section 3101 of the Crimes Code as “[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.” 18 Pa.C.S. § 3101.

An indicated report of child abuse is defined as a report issued by DPW if it “determines that substantial evidence of the alleged abuse exists based on any of the following: (1)[a]vailable medical evidence[;] (2)[t]he child protective service investigation[; or,] (3)[a]n admission of the acts of abuse by the perpetrator.” 23 Pa.C.S. § 6303; 55 Pa.Code § 3490.4. Substantial evidence is defined in the Law as “[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion.” 23 Pa.C.S. § 6303(a). “[CYS] has the burden of establishing by substantial evidence that an indicated report of child abuse is accurate. If CYS fails to sustain that burden, a request for expungement will be granted.” Bucks Cnty. Children & Youth Soc. Servs. Agency v. Dep't of Pub. Welfare, 808 A.2d 990, 993 (Pa.Cmwlth.2002).

G.V. argues that the evidence relied upon by the ALJ to find that the indicated report was properly maintained does not, by itself, constitute substantial evidence to support the finding. G.V. asserts that C.S.'s testimony was inconsistent and did not outweigh the evidence G.V. submitted. G.V. also argues that BHA committed an error of law in its interpretation of “sexual abuse or exploitation,” as defined by Section 6303(a) of the Law. We disagree.

The testimony before the ALJ revealed that, between 2003 and 2009, C.S. spent time living with her mother (T.D.), her father, and her mother's aunt (T.V.) and T.V.'s husband (G.V.), with the majority of her time spent living with G.V. and T.V. G.V. regularly gave backrubs to C.S. and his daughters, M.H. and B.V. M.H. moved out of their home in 2004. In September 2007, C.S. was placed permanently with G.V. and T.V. by court order. As of 2009, when C.S. was 16 years old, G.V. and T.V.'s household consisted of G.V., T.V., C.S. and B.V., but B.V. frequently spent evenings and nights with her boyfriend rather than at her parents' home.

From February 2009 to May 2009, T.V. and T.D. fought over T.D.'s having to pay child support for raising C.S. During that time, C.S. did not have visitation with her mother. C.S. made the following allegations against G.V.: “In April and May 2009, after T.V. went to bed upstairs, [G.V.] attempted to touch [C.S.'s] crotch three (3) times while giving her a backrub in the living room.” Reproduced Record (R.R.) at 26a. During the same time period, and after T.V. went upstairs to bed, G.V. “twice pulled down [C.S.'s] shorts and underwear to massage her buttocks while giving her backrubs in the living room.” R.R. at 26a. C.S. felt uncomfortable when G.V. was massaging her buttocks but she did not tell G.V. to stop. Early in the summer of 2009, C.S. fell asleep in B.V.'s bed after receiving a backrub and she awoke to G.V. fondling her breasts. After this “incident, C.S. declined [G.V.'s] subsequent offers for backrubs.” R.R. at 26a. During each incident, G.V. was clothed. G.V. acknowledged that T.V. sometimes went to bed and fell asleep before he joined her. C.S. also testified that when she would ask G.V. for a cigarette, every now and then G.V. would respond: “If I am not having sex with you, then I am not supporting you.” R.R. at 75a. Finally, C.S. testified that G.V. told her on multiple occasions that she “had a cute butt.” R.R. at 76a. T.V. testified that immediately before C.S. levied the allegations, T.V. had punished C.S. and C.S. was facing a loss of privileges. T.V. also testified that, in September 2009, after CYS issued the indicated report against G.V., custody of C.S. reverted to T.D., thereby ending T.D.'s obligation to pay T.V. and G.V. child support.

CYS Investigator, Karen Gerber, testified that while she did not interview C.S., she observed the forensic interview where C.S. asserted that G.V. made inappropriate sexual comments towards her, twice pulled down her shorts and rubbed her bare buttocks, and fondled her breasts while she was sleeping in her cousin's bed. Ms. Gerber stated that when she later visited C.S., C.S. reported that there was nothing that she wanted to add or change about her original disclosure.

The ALJ found C.S.'s testimony credible. He also deemed credible the testimony of Ms. Gerber, and M.H. The ALJ found T.W.⁶ and T.V. generally credible. The ALJ did not credit G.V.'s testimony that he did not touch C.S.'s buttocks or breasts, and that he did not attempt to touch her between her legs. In finding G.V.'s testimony not credible, the ALJ explained that G.V. was “proficient in hiding his activities from family members and neighbor T.W.,” citing the fact that G.V. hid that he smoked “marijuana at his home 2–3 times per month for many years and only stopped in the last few years. This demonstrates that [G.V.] acted clandestinely at home unbeknownst to his daughter, spouse, and neighbor.” R.R. at 34a. The ALJ further cited inconsistencies in G.V.'s testimony, particularly his testimony that he was never alone with C.S. and his admission that he slept downstairs after his wife went to bed. The ALJ concluded that C.S.'s credible testimony supported the finding that G.V. was a perpetrator of child abuse as defined by Section 3490.4 of DPW's Regulations, 55 Pa.Code § 3490.4, and that the indicated report was being maintained consistent with the Law and DPW's Regulations. Accordingly, the ALJ recommended denying G.V.'s appeal. BHA agreed, and adopted the ALJ's recommendation and opinion as its own.

It is well settled that credibility determinations in expungement proceedings are made by the fact finder and are not subject to appellate review. S.T. v. Dep't of Pub. Welfare, Lackawanna Cnty. Office, Children, Youth & Family Servs., 681 A.2d 853 (Pa.Cmwlth.1996). This Court has held that:

in determining whether a finding of fact is supported by substantial evidence, the Court must give the party in whose favor the...