J. S. v. Department of Human Services, 111519 PACCA, 1772 C.D. 2017

Docket Nº:1772 C.D. 2017
Opinion Judge:MICHAEL H. WOJCIK, JUDGE.
Party Name:J. S., Petitioner v. Department of Human Services, Respondent
Judge Panel:BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge
Case Date:November 15, 2019
Court:Commonwealth Court of Pennsylvania
 
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J. S., Petitioner

v.

Department of Human Services, Respondent

No. 1772 C.D. 2017

Commonwealth Court of Pennsylvania

November 15, 2019

Argued: December 13, 2018

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge

OPINION

MICHAEL H. WOJCIK, JUDGE.

J.S. (Father) petitions for review of the November 3, 2017 order of the Department of Human Services (Department), Bureau of Hearings and Appeals (BHA), which adopted the recommendation of an administrative law judge (ALJ) denying Father's appeal to expunge an indicated report of child abuse. We reverse.

I. Facts and Procedural History

Father and Je.S. (Mother) are the biological parents of Ja.S. (Child).1Father and Mother divorced in 2013 and share custody of Child. In November 2015, Child was exhibiting behavior problems, and he was asked to leave the daycare center he attended. F.F. No. 2. Father and Mother jointly decided not to return Child to that center. F.F. No. 3. Child's behavior issues continued, and Father "tried everything" to correct Child's behavior. F.F. No. 4. Father had discussions with Child about his conduct and took away privileges and other things. Id. Father gave Child a stress ball to manage his anger, and Father tried various de-escalation techniques recommended by a school psychologist. Id.; Reproduced Record (R.R.) at 252a-53a.

Father and Mother enrolled Child at a new daycare, where Child's behavior problems persisted. On February 3, 2016, Father received a call and an email from the daycare informing him that Child had been misbehaving and needed to be picked up. F.F. No. 8. The email stated that Child's misconduct included four specific behaviors: disrespecting his teachers; climbing on furniture; taking toys away from and being aggressive toward another child by trying to slam the child's head into the ground and laughing; and "potty talk." F.F. No. 9. Father picked Child up from the daycare shortly after 3:00 p.m. F.F. No. 8.

When they arrived home, Father sent Child to his room. Father decided to try corporal punishment, a strategy his own parents had used, to help modify Child's behavior. F.F. No. 10. Father had never spanked Child before; on his way to Child's room, Father smacked his own leg multiple times "to make sure he did not hit [Child] too hard." F.F. Nos. 11, 43. Father pulled Child's outer pants down, read Child the email, bent Child over his knee, and hit Child with an open palm four times on his buttocks; afterward, Father hugged Child and they both cried. F.F. No. 10.

At approximately 3:40 p.m., Father took Child with him to basketball practice at the school where Father is an assistant coach. F.F. No. 12. A few minutes after they arrived, Father's wife, who is employed at the same school as Father and Mother, picked Child up. F.F. No. 13. Later that evening, when Father's wife gave Child a bath, Father noticed red marks on Child's buttocks. F.F. No. 14. Although Child did not complain of discomfort to Father or Father's wife, Father called his parents. F.F. No. 15. Based on his parents' advice, Father applied ice to Child's buttocks that night and the following day; Child protested that the ice was cold. F.F. No. 16. Other than not attending daycare on Thursday and Friday, February 4-5, 2016, Child went about his normal activities those days, and he rode his bike on Saturday, February 6, 2016. F.F. No. 17.

Father did not contact Mother to advise her that he spanked Child or that he kept him home for two days. F.F. No. 18. Mother and Father "have a somewhat acrimonious relationship, do not communicate well and usually have no contact with each other when one of them has custody of [Child]." F.F. No. 19.

Child returned to Mother's home on Monday, February 8, 2016. F.F. No. 20. When Child undressed for a bath, Mother was shocked to see big bruises on his buttocks. F.F. No. 21. Child ran to his room and said that Father hit him so hard that it hurt; he wanted to scream and yell and hit Father back; and Father had put ice on his bottom. F.F. No. 22. Mother took photographs of Child's buttocks that evening. F.F. No. 23. She recalled that Child went about his normal activities that night and had no complaints of pain or any issues with sitting. F.F. No. 24.

On the night of February 8, 2016, the York County Office of Children, Youth and Families (CYF) received a referral alleging that Child had been physically abused by Father on February 3, 2016, when Father spanked Child. R.R. at 196a; 5/31/17 Ex. C-5. CYF intake caseworker Irene Franzis initiated an investigation by interviewing Mother and Child on February 9, 2016. She then contacted Detective Donald Hopple of the York Area Regional Police Department, who assisted CYF with investigations. R.R. at 200a. Detective Hopple interviewed Father on February 10, 2016. R.R. at 43a. Thereafter, Detective Hopple forwarded the case to an assistant district attorney (ADA), who directed him to file a citation against Father for harassment based on the spanking incident.2 R.R. at 46a.

A month later, on March 9, 2016, Mother sought a Protection from Abuse order (PFA) based on the February 3, 2016 spanking incident. F.F. No. 29. Custody litigation was ongoing at the time; the PFA was dismissed when Child's parents entered into a new custody agreement. F.F. No. 30. There was no disruption to the custody or visitation schedule as a result of the allegations or the PFA. F.F. No. 31.

As part of CYF's investigation, Ms. Franzis interviewed Father, his wife, and Child; spoke with Child's play therapist; consulted with law enforcement; attended the PFA hearing; reviewed Mother's photographs of Child's buttocks; took a photograph of Child's buttocks and observed brownish-green markings; noted that Child did not seem to be fearful of Father; and received no information that Child suffered any impairment of functioning.[3] F.F. No. 28.

On March 15, 2016, CYF issued an indicated report of physical child abuse against Father to the ChildLine & Abuse Registry.4 On March 21, 2016, Father pled guilty to a summary offense citation of harassment. On or about April 12, 2016, Father appealed the indicated report and requested an expunction hearing. On April 14, 2016, CYF changed the status of its report to founded, 5 based on Father's guilty plea of harassment.

A hearing was held in June 2016 for the limited purpose of determining whether CYF properly amended the report. On August 12, 2016, an ALJ recommended that Father's appeal be sustained and that the founded report of child abuse be expunged. Certified Record, Item No. 5. The BHA adopted the ALJ's findings by August 23, 2016 order.

Thereafter, CYF filed an application for reconsideration with the Secretary of Human Services (Secretary) and requested a hearing on the former indicated report of child abuse. The Secretary granted reconsideration. On February 28, 2017, the Secretary issued an order upholding the expungement of the founded report and remanding the matter to the BHA for a hearing on the merits of Father's appeal of the indicated report.

The ALJ held a hearing on May 3, 2017. H.M., Child's daycare teacher, testified that Child had been in the daycare program since November 30, 2015. She described Child as having ongoing behavioral issues, including verbal and physical aggression. H.M. said that on February 3, 2016, she notified Child's parents that Child was misbehaving and needed to be picked up from daycare. She stated that Child was verbally abusive to the teachers, was taking toys from other children and at one point tackled another child. R.R. at 23a-26a.

Detective Hopple testified that he contacted Father on February 10, 2016, and met with him that morning. Father explained that he received an email stating that Child was acting very aggressively with other children. Father said everything he had tried to improve Child's behavior, such as timeouts and removal of privileges, had failed. Father admitted that he spanked Child. He described to Detective Hopple how he first hit himself on the leg to see how hard he might be spanking his son. Detective Hopple testified that Father felt terrible and expressed remorse for spanking Child. He said Father reported being shocked when he saw the marks on Child's bottom. Father concluded that the spanking was obviously a mistake and said that he "did overdo it." R.R. at 45a. Detective Hopple said he suggested that Father take parenting classes and they discussed that for a while before finishing the interview. R.R. at 43a-46a.

Child was five-and-a-half years old at the time of the hearing. Child testified that he liked kindergarten, playing with his dad, and football. When asked what he would like to do on his upcoming birthday, Child said he would like to wrestle with...

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