E.M. v. Dep't of Human Servs.
| Decision Date | 19 July 2018 |
| Docket Number | No. 1185 C.D. 2017,No. 1159 C.D. 2017,1159 C.D. 2017,1185 C.D. 2017 |
| Parties | E.M., Petitioner v. DEPARTMENT OF HUMAN SERVICES, Respondent J.K., Petitioner v. Department of Human Services, Respondent |
| Court | Pennsylvania Commonwealth Court |
Timothy M. Michaels, Tunkhannock, for petitioner E.M.
Paul P. Ackourey, Tunkhannock, for petitioner J.K.
Shane J. Langan, Assistant Counsel, Wilkes-Barre, for respondent.
Thomas R. Daniels, Tunkhannock, for intervenor Children and Youth Services.
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
SEALED CASE
OPINION BY JUDGE SIMPSON
In these consolidated cases, E.M. (Boyfriend) and J.K. (Mother) petition for review of an order of the Department of Human Services (Department), Bureau of Hearings and Appeals (BHA), which adopted a recommendation by an Administrative Law Judge (ALJ) to deny their respective appeals seeking to expunge an indicated report of child abuse from the ChildLine and Abuse Registry.1 The indicated report named Mother and Boyfriend as perpetrators of child abuse, as defined by the terms of the Child Protective Services Law (CPSL), 23 Pa. C.S. §§ 6301 - 6386. The report identified Mother's then two-year-old son, Z.L. (Child), as the victim of the abuse. Wyoming County Human Services, Inc., formerly known as Wyoming County Children and Youth Services (CYS),2 filed a notice of intervention in each appeal. For the reasons that follow, we affirm the BHA's order.
The ALJ found the following facts. The alleged abuse occurred when Child, born in January 2014, was approximately two-and-a-half years old. Boyfriend is Mother's paramour and resided with Mother and her children at the time the abuse occurred. Mother shared custody with Z2L (Father), Child's biological father.
In September 2016, CYS received a referral regarding concerns over physical abuse of Child. CYS assigned Kyle Verrill as the Child Protective Services Caseworker (Caseworker). During the investigation, Caseworker and other CYS personnel took and viewed photographs of Child's injuries. They also spoke with Mother and medical personnel and reviewed Child's medical records.
Caseworker learned that Child spent Friday, September 2, and Saturday, September 3, 2016, until 2 p.m. in Father's custody. Thereafter, Child was in the custody of Mother from 2 p.m. on September 3, through Monday, September 5, 2016. Boyfriend was present in the home with Child during that time.
On September 5, 2016, Mother took Child to Geisinger-Wyoming Valley Hospital with a left leg injury. Geisinger immediately flew Child to its medical center in Danville, Pennsylvania. Based on X-rays, lab tests, a CT scan
and physical examinations, Geisinger's doctors diagnosed Child with a left femur fracture, lacerated liver and multiple bruises to different areas of his body, which were in various stages of healing.
In November 2016, CYS filed an Investigation/Assessment Outcome Report (Investigation Report), also referred to as a CY-48 Report. See ALJ Hr'g, 6/16/17, Ex. C-1; E.M.'s Reproduced Record (R.R.) at 25a-29a. The Investigation Report indicated Mother and Boyfriend as perpetrators of physical abuse to Child.
In December 2016, Boyfriend and Mother each appealed the indicated report. An evidentiary hearing before the ALJ followed.
At the hearing, the parties stipulated to the qualifications of CYS's medical expert, Dr. Edward Fannon (CYS's Pediatrician), as an expert in pediatric medicine. CYS's Pediatrician testified by telephone. He treated Child during his stay at Geisinger-Danville. Mother told CYS's Pediatrician that on the Monday morning she brought Child to the hospital, Child awoke in the morning with left leg swelling. However, on the previous Saturday evening, Mother took Child to a fair, where he ran around and played with his sister and other children. Mother also initially told CYS's Pediatrician that Child lived with her and his sibling, and that there were no other adults present.
Upon examination, CYS's Pediatrician observed multiple bruises, in different stages of healing, to Child's ear, chest, abdomen, groin and right thigh. The bruise to the ear
was to the pinna and the scalp behind the ear. The bruise indicated that either someone intentionally grabbed the ear with a knuckle pressing on the scalp, or forcefully pinned the ear against the scalp.
CYS's Pediatrician further testified that although a fall could have caused the bruise to Child's chest, a child's torso is usually spared because a child will break the fall with his or her hands. The chest bruise could have been caused by someone or something striking Child. CYS's Pediatrician also testified the bruise-like abrasion to Child's groin could have been caused by a fall or some type of trauma. The bruises to Child's thigh were not likely from a fall as most children bruise their shins, not their thighs.
CYS's Pediatrician further testified that Child's chest and thigh bruises could have happened as early as the Friday before his hospital admission. However, the bruising to the ear occurred more recently. Mother told CYS's Pediatrician that she noticed various bruises on Child over the past two months after he began visitation with Father. CYS's Pediatrician also observed that laboratory testing ruled out a Factor V clotting disorder
as a cause of Child's bruising.
In addition, CYS's Pediatrician testified he ordered lab testing and a CT scan
because Child had a tender abdomen. The test results revealed a lacerated liver. The doctor testified it takes a significant amount of force to cause a liver laceration. A fall from a couch or chair would not cause a liver laceration. If the liver laceration occurred a day or two prior to the femur fracture, Child would not have been playful and happy during that time.
CYS's Pediatrician acknowledged that a fall from an all-terrain vehicle (ATV) could cause a liver laceration
. However, if Child fell from a moving ATV and lacerated his liver, he would have been in a significant amount of pain. Moreover, abrasions, rather than bruising, should have been present.
CYS's Pediatrician also noted that Child suffered from a comminuted oblique fracture
of the shaft of the left femur, associated with a rotational component. The doctor placed Child in a spica cast for several weeks. This limited Child's ability to move his injured leg or ambulate.
Ultimately, CYS's Pediatrician opined that Child's liver and left femur injuries were the result of child abuse. CYS's Pediatrician further opined that Child would have experienced pain and discomfort from the inflicted injuries.
In response, Mother presented medical testimony via telephone from Dr. Vincent Deeney (Mother's Pediatrician), a physician board certified in the field of pediatric orthopedic medicine. Mother's Pediatrician met with Child's family five weeks after Child's femur fracture. Mother's Pediatrician provided a second opinion as to the mechanism of Child's leg injury.
Based solely on a review of Child's X-rays and a history provided by Child's grandmother, Mother's Pediatrician opined that Child's left femur injury could have occurred when Child's sibling pushed him off a couch.
On cross-examination, however, Mother's Pediatrician testified that at the time he issued his report, he had not reviewed the medical records of Child's treatment at Geisinger. Therefore, he did not know Child suffered a liver laceration
and had bruising to multiple parts of his body. Mother's Pediatrician further testified that in view of Child's femur fracture, lacerated liver and multiple bruising, he would have been concerned about child abuse.
Mother, 26 years old at the time of the hearing, testified she is Child's primary caretaker. In July 2016, two months before the alleged abuse, Mother became concerned about Child's frequent bruising and began taking pictures to document it. Mother stated she also scheduled and attended doctor appointments trying to determine if someone was hurting Child.
In addition, Mother testified that she and her mother have a Factor V clotting disorder
, which may cause Child to bruise easily. Mother also expressed concerns that Child's Father was injuring him during visitation. Because of the bruising, Mother took Child to a doctor in July 2016. CYS caseworker Kelly Riley contacted Mother at that time. Mother told the caseworker that she did not know what caused the bruising. Mother stated she discussed the bruising with Father on multiple occasions, and he became angry with her.
During the afternoon of Saturday, September 3, 2016, Father returned Child to Mother a day early. Father told Mother that Child misbehaved and that he had other things to do. Mother learned that Child rode on an ATV with Father. Mother suggested that Child could have been injured when riding an ATV with Father during his custody on September 2-3, 2016.
On the evening of September 3, 2016, Mother and Boyfriend took Child to the county fair. Child appeared happy and played with the couple's other children. The next evening, Mother and Boyfriend returned to the fair and left Child with a babysitter. When Mother picked Child up from the babysitter, he had no trouble walking.
Mother further testified that her five-year-old daughter admitted that she pushed Child off a couch while playing with him on the morning of September 5, 2016, causing the left leg injury. Child would not use his leg, which became swollen.
However, on cross-examination Mother admitted that CYS caseworkers came to her home and met with her, her two children and Boyfriend in July 2016. Mother, her two children and Boyfriend again met with a CYS caseworker in their home in August 2016. Mother admitted that she did not report that she suspected Father of child abuse prior to September 6, 2016.
Boyfriend did not testify or present any...
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