A.P. v. DHS ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A. P., :
Petitioner :
: CASE SEALED
v. : No. 1929 C.D. 2016
: Submitted: June 2, 2017
Department of Human Services, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JOSEPH M. COSGROVE, Judge1
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: January 5, 2018
A.P., pro se, petitions for review of an adjudication of the Department
of Human Services (Department) denying his request to expunge an indicated report
of child abuse from the ChildLine Registry.2 The Department’s Bureau of Hearings
and Appeals adopted, in its entirety, the recommended adjudication of the
Administrative Law Judge (ALJ), which was issued following a second remand from
this Court. The ALJ found that the County Children and Youth Services agency
(CYS) established that A.P. (Uncle) had sexually abused his nephew, V.P. (Child),
1
This case was decided before Judge Cosgrove’s service on the Court ended on December 31,
2017.
2
ChildLine is a unit of the Department that operates a statewide toll free system for receiving and
maintaining reports of suspected child abuse, along with making referrals for investigation. 55 Pa.
Code §3490.4. The ChildLine Registry is maintained in accordance with the Child Protective
Services Law, 23 Pa. C.S. §§6301-6386.
in 2006, when Child was 13 years old.3 Uncle argues that the ALJ erred and abused
his discretion in concluding that Child’s testimony outweighed the evidence that
contradicted Child’s accusation. We agree.
Background
We begin with a summary of the case, which is more fully recited in
our two prior opinions: A.P. v. Department of Public Welfare, 98 A.3d 736 (Pa.
Cmwlth. 2014) (A.P. I) and A.N.P. v. Department of Human Services (Pa. Cmwlth.,
No. 567 C.D. 2015, filed February 10, 2016) (A.P. II).4
In 2010, Child accused Uncle of sexually abusing him five years earlier,
during a time when Uncle was temporarily residing in Child’s home during Uncle’s
separation from his wife. Uncle lived with Child’s family from September 2005 to
August 2006. On June 15, 2010, CYS filed an indicated report naming Uncle as a
perpetrator pursuant to Section 6338(a) of the Child Protective Services Law.5 Uncle
3
On August 22, 2017, this Court issued a rule upon Uncle to show cause why his petition for
review is not moot pursuant to Section 6338(b) of the Child Protective Services Law, 23 Pa. C.S.
§6338(b) (requiring expungement of information when the subject child attains 23 years of age).
Uncle responded that Section 6338(c) of the Child Protective Services Law states that the
ChildLine Registry “shall indefinitely retain the names of perpetrators of child abuse … who are
subjects of founded or indicated reports only if the individual’s Social Security number or date of
birth is known to the department.” 23 Pa. C.S. §6338(c). In its response to the rule to show cause,
the Department confirmed that it has Uncle’s birthdate, which is on the indicated report, and it will
indefinitely retain his name on the ChildLine Registry. The matter is not moot.
4
In November 2014, the Department of Public Welfare was renamed the Department of Human
Services. See Act of September 24, 2014, P.L. 2458, as amended, 62 P.S. §103 (effective
November 24, 2014).
5
Section 6338(a) states in relevant part:
When a report of suspected child abuse ... is determined by the appropriate county
agency to be ... an indicated report, the information concerning that report of
suspected child abuse ... shall be made in the Statewide central register. Notice of
the determination must be given to the subjects of the report, other than the abused
2
requested expungement of the indicated report, and the ALJ conducted two days of
hearings.
Child testified that one night, in the basement recreation room while
watching a DVD entitled “When a Stranger Calls”6 after drinking spiked lemonade,
Uncle touched Child’s “crotchal area” and then masturbated in view of Child. Notes
of Testimony (N.T.), 3/7/2013, at 33. Child “guessed” that this incident was
followed by others but could not name the year, month, day, what he was wearing
or what movies were playing. Id. at 38. Child described the subsequent incidents
as involving either Child or Uncle engaging in masturbation while watching a movie.
Child did not “remember” if oral sex occurred. Id. at 40.
On cross-examination about the first incident, Child did not know if it
took place before or after Christmas. Child could not remember whether he was
wearing sweatpants, pajamas, a t-shirt or sweatshirt. Child did not see Uncle’s penis;
however, he observed Uncle’s act of masturbation from the corner of his eye. Child
did not know if he experienced an orgasm. Child acknowledged that his testimony
before the ALJ was different from his statements to police and to his juvenile
child, and to the parent or guardian of the affected child or student along with an
explanation of the implications of the determination. Notice given to perpetrators
of child abuse and to school employees who are subjects of indicated reports for
school employees or founded reports for school employees shall include notice that
their ability to obtain employment in a child-care facility or program or a public or
private school may be adversely affected by entry of the report in the Statewide
central register. The notice shall also inform the recipient of his right, within 45
days after being notified of the status of the report, to appeal an indicated report,
and his right to a hearing if the request is denied.
23 Pa. C.S. §6338(a) (amended by the Acts of December 18, 2013, P.L. 1170; April 7, 2014, P.L.
388; and December 31, 2014, P.L. 653, effective December 31, 2014).
6
This was the only movie Child could recall; it was released on DVD on May 16, 2006.
3
probation officers with respect to the number of incidents and the period of time
during which they took place.
Father testified. He stated that Child would let Uncle in the house if it
were late and Father was in bed. Father acknowledged that at first he did not believe
Child’s accusation of Uncle, who is Father’s brother, but he changed his mind. He
now believed Child’s accusation.
Uncle presented the testimony of his girlfriend (Girlfriend), who
testified that when Uncle’s wife discovered their relationship, the two separated, and
Uncle began spending most nights at Girlfriend’s house. In January 2006, Uncle
obtained weekend custody of his son and stayed at Father’s house during those visits.
Girlfriend acknowledged that Uncle did not move his personal effects to her house;
he brought clothes in an overnight bag. Girlfriend’s relationship with Uncle ended
when he reunited with his wife. At the time of the hearing, Girlfriend and Uncle had
not dated in six years.
Uncle presented evidence relevant to his reputation and character and
to that of Child. Child’s paternal grandmother (Grandmother) testified that Child
had a reputation for being “absolutely not truthful. Never truthful.” N.T., 3/7/2013,
at 133. Grandmother, the mother of both Uncle and Father, testified that Uncle was
“[v]ery moral” in character. Id. at 138. Uncle’s two brothers (Uncle I and Uncle II)
testified. Uncle I testified that Uncle had a reputation for being truthful and having
“[g]reat moral character.” Id. at 146. He also testified that Child had a reputation
of lying to save his own hide. Id. at 147. Uncle II testified that everyone loved
Uncle, that he enjoyed a reputation for truthfulness and has a high moral character.
Id. at 150.
4
Uncle presented testimony from a police officer who investigated
Child’s accusation. He stated that criminal charges were not lodged against Uncle
because the accusation lacked any corroboration.
The daughter of Uncle I, Child’s cousin (Cousin), testified. She
explained that she and Child were close growing up because they were the same age.
She testified that in the summer of 2010, she drove Child to a meeting with his
probation officer while Child’s parents were overseas. Cousin asked Child about his
accusation of Uncle and found Child’s response strange because he did not defend
his accusation as true, which she expected.
Uncle testified that in 2005, he began doing audit work for a company
that involved extensive out-of-town travel. He stated that he spent most nights at
Girlfriend’s home because it was closer to his office. Uncle testified that other than
the weekends with his six-year-old son, he stayed at Father’s home only a few nights
a month. He presented a personal paper calendar from that period, which
documented his out-of-town travel and visits with his children.
Uncle denied that he had ever watched a movie alone with Child, in any
room, or that he ever gave him alcohol. He described learning of Child’s accusation
during a phone call from his brother while he was on a business trip to Chicago:
He said, “you know, [Child’s] in [name of drug treatment
facility].” And he said -- told me what [Child] had said. “[Child]
said that you touched him and you masturbated in front of him.[”]
And, you know, I was shocked. I was repulsed by it.
And, you know, I said, “[Father’s name] I never did any of those
things.”
And he said back to me, he said, “I know. [Child] is a bit -- a
habitual liar.” He said, “He engages in different types of lying. I
believe you 98 percent, but because he’s my son,” he’s saying,
“yet I got to believe him 2 percent.”
5
N.T., 4/11/2013, at 44-45. Uncle categorically denied Child’s accusation. He
testified that Child never unlocked the door for him. The only times he was ever
alone with Child were the two or three times he drove Child to school. He was never
alone with child in the house.
On rebuttal, CYS called Father and Mother to testify. Father
acknowledged that Uncle travelled for his job but testified that Uncle slept at his
house “most nights.” Id. at 79. He testified that Child let Uncle in the house after
he and Mother went to bed and that Uncle took Child to school on more than two or
three occasions. Mother also testified that from September 2005 through September
2006 Uncle spent “most nights” at their home. She conceded that Uncle may have
also stayed at Girlfriend’s house during this period. She also testified that Uncle
took Child to school in the morning “fairly regularly.” Id. at 94. Father did not
know how many times Uncle took Child to school, but did state that Mother normally
took Child to school on her way to work. Id. at 80.
The ALJ found Child’s testimony so credible that it met the clear and
convincing standard of proof.7 Specifically, the ALJ found that the facts to which
Child testified “are remembered distinctly, and that [his] testimony is so clear…and
convincing” that the ALJ was able “to come to a clear conviction, without hesitancy,
of the truth of the precise facts in issue.” Suber v. Pennsylvania Commission on
Crime and Delinquency, 885 A.2d 678, 682 (Pa. Cmwlth. 2005). The ALJ found
that the sexual abuse began in May of 2006 and ended several months later when
Uncle moved out. The ALJ rejected Uncle’s calendar as having no probative value
because it could have been altered. The ALJ found Father and Mother credible. He
7
The ALJ employed the clear and convincing standard that was later rejected by our Supreme
Court in G.V. v. Department of Public Welfare, 91 A.3d 667 (Pa. 2014). In G.V., the Supreme
Court held that the proper standard of proof is the substantial evidence standard. Id. at 674.
6
found Uncle not credible, noting, inter alia, that Uncle had engaged in an extra-
marital affair. The ALJ found Uncle’s reputation and character witnesses not
reliable because they were family members. The ALJ found Uncle to be a
perpetrator of abuse, and the Department’s Bureau of Hearings and Appeals adopted
the ALJ’s recommended adjudication.
First Appeal
On appeal, Uncle argued that CYS’s evidence did not meet the clear
and convincing standard of proof; his evidence outweighed Child’s uncorroborated
and vague testimony; and the Department erred by arbitrarily and capriciously
disregarding his evidence. We concluded that the ALJ did not address the evidence
that contradicted Child’s testimony, which is required under the statutory standard
for a fair hearing, and the ALJ did not explain his credibility determinations. We
further concluded that the ALJ capriciously disregarded Cousin’s testimony and
employed an impermissible double standard in evaluating the evidence.8
Because the ALJ’s stated rationale for his findings did not withstand
close scrutiny, we vacated and remanded with instructions for the ALJ to
undertake this weighing of the evidence with reference to
demeanor and substance of the testimony and all other evidence
8
For example, the ALJ rejected Uncle’s character witnesses because of a perceived familial bias
but did not invoke the concept of familial bias against Father and Mother; (2) the ALJ rejected
Girlfriend’s testimony as biased even though Girlfriend and Uncle had not dated for six years; (3)
the ALJ criticized Uncle for not calling Child’s teachers or friends to testify about Child’s
reputation but did not observe that neither Father nor Mother testified that Child was truthful; (5)
the ALJ excused Child’s false statements to police about the abuse as lapses in memory due to the
passage of time but did not so excuse Uncle’s statement about the number of times he drove child
to school, which conflicted with the recollection of Child’s Parents; and (6) the ALJ found that
Child was credible because he risked alienation from family members by making an accusation
against Uncle but did not consider that Child might experience alienation from Mother and Father
were he to recant that accusation.
7
to enable meaningful appellate review. A dismissal of one side’s
evidence with a conclusory credibility determination does not
suffice.
A.P. I., 98 A.3d at 745.
First Remand Adjudication
On remand, the ALJ again credited Child’s “clear, credible” statements
that Uncle had sexually abused him by summarily concluding that Child’s
“testimony is of the quality that it outweighs inconsistent evidence.” ALJ
Recommended Adjudication, 12/15/2014, at 11, 15. The Department adopted the
ALJ’s recommended adjudication, and Uncle again petitioned for this Court’s
review.
Second Appeal
On appeal, Uncle argued that no reasonable person would accept
Child’s vague accusation, full of inconsistencies, as outweighing the evidence he
presented in opposition. Uncle argued that the ALJ capriciously disregarded
Cousin’s testimony despite this Court’s specific instruction to make findings
thereon. Finally, Uncle asserted that the ALJ employed an impermissible double
standard in evaluating the evidence. We agreed and vacated the Department’s order
and remanded for further findings and conclusions. A.P. II, (Pa. Cmwlth., No. 567
C.D. 2015, filed February 10, 2016).9
9
We cited a number of deficiencies in the ALJ’s analysis, most of which were the same as in A.P.
I. See n.8, supra.
8
We did so because the ALJ again ignored Cousin’s testimony and
glossed over deficiencies in Child’s testimony.10 Because there was no
corroborative evidence, physical or otherwise, Child’s testimony had to “be of such
a quality” to allow the factfinder to conclude that it outweighed inconsistent
evidence. In re: S.H., 96 A.3d at 462. We held that the ALJ had to consider all of
Child’s testimony, not just the selective parts that recited abuse, and explain his
rationale for his credibility decision. We again cautioned the ALJ not to apply a
double standard for evaluating the evidence presented by CYS and by Uncle.
Second Remand Adjudication
On remand, the ALJ again held that Uncle was a perpetrator of abuse.
The ALJ found Child’s testimony credible and Uncle’s testimony not credible on the
basis of demeanor. On October 31, 2016, the Department’s Bureau of Hearings and
Appeals adopted the ALJ’s recommendation. Uncle petitioned for this Court’s
review.11
Present Appeal
10
Child’s account of the number of incidents of abuse varied. For example, Child told police there
were 30 to 40 incidents over six or seven months and testified before the ALJ that the incidents
averaged one every other week. The ALJ acknowledged that there could not have been 30 to 40
incidents between May and August but concluded there could have been 10 to 20. The ALJ
excused the discrepancy between 10 to 20 and 30 to 40 as “not glaring, but minor,” and attributable
to the effect of the passage of time on Child’s memory. ALJ Recommended Adjudication,
12/15/2014, at 14. An average of one incident every other week for the three-month period would
equal seven or eight incidents, not 10 to 20 and certainly not 30 to 40. The ALJ did not address
these discrepancies.
11
Our review determines whether constitutional rights were violated, whether errors of law were
committed or whether necessary findings of fact are supported by substantial evidence. J.M. v.
Department of Public Welfare, 94 A.3d 1095, 1098 n.8 (Pa. Cmwlth. 2014).
9
On appeal, Uncle raises three issues. First, he argues that the evidence
in this case weighed so heavily in his favor that the ALJ’s finding of abuse does not
satisfy the statutory standard of substantial evidence. Second, he contends that the
ALJ arbitrarily and capriciously disregarded the competent evidence that supported
Uncle’s denial. Third, he asserts that the ALJ’s refusal to expunge the indicated
report was arbitrary and capricious.12 Thus, Uncle contends that the Department
erred and abused its discretion in adopting the ALJ’s recommended report.
Analysis
In an expungement hearing, the county agency bears the burden of
proving that the perpetrator committed child abuse within the meaning of the statute.
B.J.K. v. Department of Public Welfare, 773 A.2d 1271, 1275 (Pa. Cmwlth. 2001).
Section 6303(a) of the Child Protective Services Law defines “substantial evidence”
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). To meet this statutory burden of proof, the county must submit
evidence of abuse that a reasonable person will find to outweigh contrary evidence.
A.P. I., 98 A.3d at 742-43. Whether evidence meets a prescribed standard of proof
is “always a question of law and therefore reviewable by the appellate court.”
Stafford v. Reed, 70 A.2d 345, 346 (Pa. 1950). To meet the statutory standard, the
child’s “testimony must be of such a quality to allow the factfinder to conclude that
it outweighs ‘inconsistent evidence.’” In re: S.H., 96 A.3d 448, 462 (Pa. Cmwlth.
12
For purposes of this appeal, we treat Uncle’s second and third issues together as one issue.
10
2014) (holding that where there is no physical evidence of abuse all of the child’s
testimony must be considered, not just selective parts).
Where “a witness actually testifies before an ALJ, the judge may base
his credibility determinations on the demeanor of the witness.” R.J.W. v.
Department of Human Services, 139 A.3d 270, 287 (Pa. Cmwlth. 2016). The
Pennsylvania Supreme Court has further explained:
In such an instance, there often is not much to say, nor is there a
need to say much, in order for a reviewing body to determine that
the decision was reasoned. Such a credibility determination may
involve nothing more than the fact-finder’s on-the-spot, and
oftentimes instinctive, determination that one witness is more
credible than another. The basis for the conclusion that certain
testimony has the “ring of truth,” while other testimony does not,
may be difficult or impossible to articulate-but that does not
make such judgments invalid or unworthy of deference.
Daniels v. Workers’ Compensation Appeal Board (Tristate Transport), 828 A.2d
1043, 1053 (Pa. 2003).
Uncle asserts that Child’s testimony was not of such a quality that it
could reasonably be found to outweigh Uncle’s testimony, which was corroborated
by both documentary and testimonial evidence. Four members of Child’s family
testified that Child had a reputation for lying and developed his habit for lying in
childhood. Uncle, by contrast, was reported to enjoy a reputation for a high moral
character. Neither Father nor Mother rebutted this testimony. To the contrary,
Father admitted to Uncle that Child engaged in “different types of lying” and was an
“habitual liar.” N.T., 4/11/2013, at 44-45. Uncle also impeached Child’s testimony
by pointing out the prior inconsistent statements Child had made about the purported
abuse.
11
Uncle also points out that the ALJ found that the first incident of abuse
took place on the date of the DVD release, i.e., May 16, 2016. This means that the
alleged abuse took place during a period when Uncle was traveling and spending
most weeknights with Girlfriend. These facts were corroborated by documentary
evidence, i.e., Uncle’s paper calendar, and by Girlfriend’s sworn testimony. Uncle’s
account was not refuted by CYS.
By contrast, Child’s testimony lacked any detail or specifics on the time
and place of the masturbation incidents. His testimony was at odds with his prior
statements to law enforcement authorities. To them, Child reported that the abuse
happened when he was 11 or 12 (when he was actually 13) and was repeated 30 to
40 times. In his testimony to the ALJ, Child gave different estimates or “guesses”
about the frequency of the incidents and stated that he “did not know” how many
times it happened. N.T., 3/7/2013, at 38. Child never confided to a friend, “his close
cousin,” a teacher or his brother about the abuse. N.T., 3/7/2013, at 41.13 Child’s
version of the events lacked any corroboration.
The Department counters that it is the job of the factfinder to weigh and
credit the evidence, and the ALJ did not err or abuse his discretion in discharging
his role as factfinder.
The ALJ emphasized Child’s demeanor, which he found to have the
ring of truth. The ALJ reasoned that it was Uncle’s burden to impeach Child’s
13
The ALJ was untroubled by the absence of corroboration of Child’s accusation, such as
contemporaneous statements by Child about the alleged abuse. He explained, “[u]nfortunately, it
is all too common for a child not to immediately report it to anyone when they [sic] are sexually
abused. They may be experiencing fear, mistrust, guilt, etc.” Recommended Adjudication,
7/7/2016, at 17. There is zero evidence in the record to support the ALJ’s factual finding about
what is “common” among sexually abused children. This is demonstrable error.
12
testimony by establishing Child’s reputation for lying.14 The ALJ rejected the
testimony of Uncle’s witnesses regarding Child’s reputation because they did not
include persons outside the family.15 We reject the ALJ’s reasoning in this regard.
First, for Uncle to go outside the family for any character and reputation
witnesses would require Uncle to damage his reputation. This would defeat the
entire purpose of an expungement appeal.
Second, there is no authority for the ALJ’s view that Uncle had to prove
Child’s reputation for lying with testimony from Child’s “friends, teachers [or]
classmates.” Recommended Adjudication, 11/7/2016, at 18. Child’s propensity for
lying could be proved by testimony from Uncle I, Uncle II, Cousin and
Grandmother. Each was in a position to know Child’s tendency to lie and each chose
to offer sworn testimony to that point. They did so with the knowledge that their
testimony could only alienate their equally consanguineous family member, i.e.,
Child’s Father. Even the ALJ conceded that family members are in the best position
to know a person’s character. ALJ Recommended Adjudication, 11/7/2016, at 18.
Third, the ALJ dismissed the impeachment testimony by stating, first,
that “there was no testimony from either of the subject child’s parents or brother that
[Child] had a reputation for lying.” Id. That Child’s Parents did not confirm Uncle’s
impeachment evidence is to be expected. Far more relevant is that neither Child’s
14
Pennsylvania Rule of Evidence 608(a) provides:
A witness’s credibility may be attacked or supported by testimony about the
witness’s reputation for having a character for truthfulness or untruthfulness. But
evidence of truthful character is admissible only after the witness’s character for
truthfulness has been attacked. Opinion testimony about the witness’s character for
truthfulness or untruthfulness is not admissible.
PA. R.E. 608(a).
15
Notably, the ALJ did not make any credibility determinations with respect to Uncle I, Uncle II,
Grandmother or Cousin. Recommended Adjudication, 11/7/2016, at 6.
13
Parents nor his brother (who did not testify at all) refuted the testimony of Uncle I,
Uncle II, Grandmother or Cousin. Indeed, Father admitted to Uncle that Child had
a habit of lying. The rebuttal testimony of Father and Mother concerned only how
often Uncle drove Child to school.
In the end, the ALJ found Child’s history of, and reputation for, lying
irrelevant. The ALJ reasoned that “just because someone has a reputation for lying,
does not automatically mean that everything they say is a lie …. [E]ven if I accept
it as true that the subject child has a reputation for lying, I do not believe he was
lying regarding these particular instances ….” Id. This easy dismissal was made in
the face of the numerous problems with Child’s testimony, which was vague,
contradicted by prior inconsistent statements and marked by “guesses,” “I don’t
remembers” or “I don’t know.” See, e.g., N.T., 3/7/2013, at 38. Further, Child’s
testimony lacked any corroboration from any other person because he did not tell
any person about the alleged abuse for over five years. Id. at 41. In these ways, the
ALJ erred and abused his discretion.16
The ALJ found that the abuse took place between May 16, 2006, the
day the movie “When a Stranger Calls” was released on DVD, and August 12, 2006,
when Uncle moved out.17 The ALJ acknowledged that this timetable made Child’s
statement to police that the abuse occurred 30 to 40 times over a period of seven
months impossible and, therefore, false. Again, however, the ALJ reasoned that
16
Where, as here, there is no physical evidence of abuse or any witnesses to the abuse, it is only
the statement of the child victim that forms the basis for the indicated report. This leaves the
perpetrator with the burden to prove a negative, i.e., that the abuse did not happen. Where the
accusation is stale by the passage of five years and does not specify a date and time, the perpetrator
cannot proffer an alibi defense. All he can do is attempt to bolster his denial with reputation
evidence on his behalf and to impeach the testimony of the accusing child.
17
By the ALJ’s logic, Uncle purchased the DVD on the day of its release and that very night
popped it into the family’s video equipment for viewing with Child.
14
Child’s false statements to police did not affect the truthfulness of his testimony to
the ALJ. All discrepancies in Child’s testimony were explained, and excused, by
the passage of time between the incident of abuse and the hearing thereon. By
contrast, the ALJ gave no such leniency to Uncle. The ALJ found, as fact, that Uncle
drove Child to school multiple times and, thus, Uncle’s testimony that he drove child
two or three times was intentionally false and not explained by an inability to
remember events that took place years earlier.
The ALJ started with the premise that Child’s demeanor showed
truthfulness and Uncle’s demeanor did not. From that point, the ALJ evaluated all
other evidence to match this initial premise. For example, the ALJ credited Mother’s
estimate that Uncle took Child to school “a couple times a week” even though it was
not supported by Father. The ALJ then found Uncle’s different recollection a
knowing lie. N.T., 4/11/2013, at 94. In actuality, the number of times Uncle drove
Child to school is far afield from the central issue in this case.
Due process requires a fair hearing before a neutral factfinder. The
neutrality of the factfinder may be questioned here because the ALJ found in his first
recommended adjudication that Child’s testimony satisfied the clear and convincing
standard of proof. Under this standard, the testimony of the witness must be so clear
and distinct that the factfinder can “come to a clear conviction, without hesitancy, of
the truth of the precise facts in issue.” Commonwealth v. Lee, 935 A.3d 865, 883
(Pa. 2007) (quoting Commonwealth v. Maldonado, 838 A.2d 710, 715 (Pa. 2003)).
Child’s testimony does not meet the clear and convincing standard of proof. To the
contrary, Child’s testimony is so vague, it reads like the testimony of one hoping to
be discredited. Child could not say what he was wearing during the first incident;
the month or year it occurred; or even whether he had an orgasm. The facts reported
15
by Child were not “remembered distinctly,” and his testimony lacked the precision
that would allow the factfinder to come to a conviction “without hesitancy.” Suber,
885 A.2d at 682. Whether testimony meets the requisite standard of proof is a legal
question that can be reviewed on appeal. Stafford, 70 A.2d at 346. Likewise,
whether Child’s testimony is of a quality that it outweighs Uncle’s contrary evidence
presents a legal question that can be reviewed on appeal. We conclude that the ALJ
erred and abused his discretion in applying the substantial evidence standard set forth
in Section 6303(a) of the Child Protective Services Law.
“Determinations as to credibility and evidentiary weight will not be
disturbed on appeal absent an abuse of discretion.” F.V.C. v. Department of Public
Welfare, 987 A.2d 223, 228 (Pa. Cmwlth. 2010). As this Court has explained:
An abuse of discretion “occurs not merely when the [lower
tribunal] reaches a decision contrary to the decision that the
appellate court would have reached. Rather, an abuse of
discretion occurs ‘when the course pursued represents not
merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or where
the record shows that the action is a result of partiality,
prejudice, bias or ill will.’”
Id. (quoting Payne v. Workers’ Compensation Appeal Board (Elewyn, Inc.), 928
A.2d 377, 379 (Pa. Cmwlth. 2007) (emphasis added)). The ALJ’s judgment is
manifestly unreasonable and demonstrated bias.
First, the ALJ held in the first recommended adjudication that Child’s
accusations satisfied the clear and convincing standard of proof and never moved
off that position. Plainly, for the reasons set forth above, Child’s testimony was
neither clear nor convincing. Nevertheless, upon remand, the ALJ stuck to his
original legally erroneous conclusion and gave, at best, token consideration of the
remand directive.
16
Second, the ALJ applied a different standard to the evidence, depending
on the party proffering it. All of Uncle’s witnesses were disbelieved or their
testimony was given no weight because they were his family members or “cared”
for Uncle, as in the case of Girlfriend. Father and Mother were believed even though
they were Child’s family members and presumably cared for Child. Child’s prior
inconsistent statements on material facts made to law enforcement authorities were
excused by the passage of time. Discrepancies between Uncle’s memory of the
number of times he drove Child to school and Father’s and Mother’s memory were
not excused by the passage of time. Rather, the ALJ decided that discrepancy
showed that Uncle was a liar.
Third, the ALJ decided the case was solely a matter of demeanor
evaluation. The statute, however, requires more. It requires the weighing dynamic
set forth in 23 Pa. C.S. §6303(a), which means that the evidence that conflicts with
the accusation must be considered. The factfinder must explain why a reasonable
person would agree that Child’s testimony outweighed all conflicting evidence. The
ALJ largely disregarded this responsibility by assigning zero weight to all the
testimony and documentary evidence presented by Uncle.
Here, every credibility determination and every weighing of the
evidence by the ALJ favored CYS and damned Uncle. These uniform rulings do not
in themselves require disqualification. Subaru, 842 A.2d at 1009. However, the
ALJ’s uniform rulings, critique of this Court’s remand, and clear error in finding that
Child’s testimony satisfied the clear and convincing standard of proof show bias.
The ALJ immediately decided that Child was truthful and that Uncle was a
perpetrator and then evaluated all other evidence to fit his conclusion that Uncle was
a perpetrator.
17
Error or abuse of discretion by an ALJ will support a reversal of an
adjudication. See, e.g., J.C. v. Department of Human Services, (Pa. Cmwlth., No.
1867 C.D. 2016, filed October 19, 2017). Here, the ALJ made up his mind based
solely on his assessment of the demeanor of the witnesses. The Child Protective
Services Law requires more. It requires substantial evidence of abuse, which means
that the evidence of abuse must be of a quality that it outweighs any conflicting
evidence. 23 Pa. C.S. §6303(a). Whether the record satisfies the statutory standard
is a question of law subject to appellate review. In this respect, it is no different than
the review of a record to determine whether the evidence satisfies the clear and
convincing standard of proof. See Stafford, 70 A.2d at 346. We hold that the ALJ
erred and abused his discretion in holding that Child’s testimony was of a quality
that it rendered all of Uncle’s rebuttal evidence meaningless. Accordingly, we will
reverse the Department’s adoption of the ALJ’s recommendation.
Conclusion
For the above reasons, we reverse the adjudication of the Department
of Human Services.
______________________________________
MARY HANNAH LEAVITT, President Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A. P., :
Petitioner :
:
v. : No. 1929 C.D. 2016
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 5th day of January, 2018, the order of the Department
of Human Services, Bureau of Hearings and Appeals, dated October 31, 2016, is
hereby REVERSED.
______________________________________
MARY HANNAH LEAVITT, President Judge