S.H. v. Department of Human Services, 021820 PACCA, 535 C.D. 2019

Docket Nº:535 C.D. 2019
Opinion Judge:MARY HANNAH LEAVITT, PRESIDENT JUDGE
Party Name:S.H., Petitioner v. Department of Human Services, Respondent
Judge Panel:BEFORE: HONORABLE MARY HANNAH LEAVITT, PRESIDENT JUDGE HONORABLE ANNE E. COVEY, JUDGE HONORABLE CHRISTINE FIZZANO CANNON, JUDGE
Case Date:February 18, 2020
Court:Commonwealth Court of Pennsylvania
 
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S.H., Petitioner

v.

Department of Human Services, Respondent

No. 535 C.D. 2019

Commonwealth Court of Pennsylvania

February 18, 2020

OPINION NOT REPORTED

Submitted: October 25, 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT, PRESIDENT JUDGE HONORABLE ANNE E. COVEY, JUDGE HONORABLE CHRISTINE FIZZANO CANNON, JUDGE

MEMORANDUM OPINION

MARY HANNAH LEAVITT, PRESIDENT JUDGE

S.H. (Father), pro se, petitions for review of an adjudication of the Pennsylvania Department of Human Services, Bureau of Hearings and Appeals (Department), that denied Father's request to expunge an indicated report of abuse of his daughter, A.H. (Child), from the ChildLine and Abuse Registry (ChildLine).1Father argues that the Department erred in holding that his actions were reckless and, thus, constituted child abuse under the Child Protective Services Law (Law).2 Upon review, we reverse.

The following facts are undisputed. Child was 18 months old at the time of her death on March 11, 2018. On the night of March 10, 2018, Father's sister supervised Child and placed her in a crib in Father's basement bedroom to sleep before she went upstairs to sleep. Father returned home from work between 3:30 a.m. and 4:30 a.m. on March 11, 2018, and went to the basement bedroom to sleep. Between 8:45 a.m. and 10:00 a.m., Father and Child were awake and ate breakfast. Sometime between 10:00 a.m. and noon, while Father fell back to sleep, Child pulled a key lanyard out of a laundry basket that was on a chair. Child then looped the lanyard around her neck and strangled herself by hanging on the lanyard in a near-prone position.

Upon awaking and finding Child unresponsive, Father cried out and carried Child upstairs to perform cardiopulmonary resuscitation (CPR), while his sister called 911 for assistance. Child was later pronounced dead. The County Coroner's Office ruled that Child died from accidental passive strangulation. Certified Record (C.R.), Item 3, Exhibit A-1, at 1.

The same day, the County Children and Youth Services (CYS) received a referral about child abuse related to Child's death. After investigation, CYS filed an indicated report with ChildLine listing Father as a perpetrator of child abuse for "fail[ing] to adequately supervise [C]hild." C.R., Item 3, Exhibit C-3, at 2. The report stated that "the criteria for Causing Serious Physical Neglect of a Child and Causing the Death of Child through any Act/Failure to Act has been met." Id.

Father appealed. The Department appointed an Administrative Law Judge (ALJ) to conduct a hearing, which took place on November 29, 2018. CYS presented testimony from a police detective (Detective) and a CYS caseworker (Caseworker). Detective testified that he responded to the scene on March 11, 2018, and authored the police report, which was submitted into the record. Detective described the basement bedroom as follows: [I]t was a smaller room with a fairly large bed, a television, an easy chair and a crib in the corner. And it was very - I'd consider it cluttered. There was not a lot of area available for a child to play. If [C]hild was not in the crib, there were a few hazards in that some of the drawers did not have safety locks on. I believe there was a knife on top of the dresser. [Father] did have a gate up to prohibit [C]hild from going back behind the television area where all the wires were. But there w[ere] not gates everywhere else in this little room.

Notes of Testimony, 11/29/2018, at 31 (N.T.___). Detective stated that he "saw the possibility of [Child] getting behind [the gate] barrier." N.T. 80.

Detective testified that the seat of the chair with the laundry basket was 23 inches off the floor; Child, 32 inches tall, was eye level with the lower portion of the basket when standing. The hole in the basket was about an inch-and-a-half wide; the keys became "wedged in" when Child pulled out the lanyard through the hole. N.T. 52. The basket contained laundry and other items. Detective did not believe Child had enough strength to pull the basket off the chair or pull the keys through the hole. Detective testified that Father told him during the interview that the laundry basket had sat on the chair for weeks. Father also told Detective that Child "had played with [the lanyard] at least two times." N.T. 64. Each time Father tucked the lanyard back into the basket.

Detective testified that the District Attorney reviewed the evidence and decided not to charge Father. In his 26 years of service, Detective had not encountered a case "involving a lanyard that strangled a child." N.T. 59. He had encountered strangulation by a window blind or crib.

Caseworker testified that she worked at CYS for three years as an intake caseworker and a screener. She did not meet with the law enforcement officers who investigated the case. She listened to the interview recordings; reviewed case notes by another caseworker who responded to the scene; and watched a video recording of the house. She described the bedroom as follows: a baby gate that was across...

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