A.R. v. DHS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A.R., :
Petitioner : SEALED CASE
:
v. :
:
Department of Human Services, : No. 481 C.D. 2020
Respondent : Submitted: March 26, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 7, 2021
A.R. petitions this Court for review of the Department of Human
Services (DHS), Bureau of Hearings and Appeals’ (BHA) April 22, 2020 order
adopting the Administrative Law Judge’s (ALJ) recommendation denying A.R.’s
request to expunge her indicated report1 of child abuse from the ChildLine & Abuse
1
Section 6303(a) of the Child Protective Services Law (Law) defines an “indicated report”
as a report issued by DHS if an investigation “determines that substantial evidence of the alleged
abuse by a perpetrator exists based on . . . [t]he child protective service investigation[.]” 23 Pa.C.S.
§ 6303(a); see also Section 3490.4 of DHS’ Regulations, 55 Pa. Code § 3490.4.
Registry (ChildLine Registry).2 The sole issue before this Court is whether BHA’s
decision was supported by substantial evidence.3 Upon review, this Court affirms.
2
Section 3490.4 of the DHS Regulations defines “ChildLine” as
[a]n organizational unit of [DHS] which operates a [s]tatewide toll-
free system for receiving reports of suspected child abuse
established under [S]ection 6332 of the [Law, 23 Pa.C.S. § 6332]
(relating to establishment of [s]tatewide toll-free telephone number),
refers the reports for investigation and maintains the reports in the
appropriate file. . . .
55 Pa. Code § 3490.4. “The ChildLine Registry is maintained in accordance with the [Law.]” In
re S.H., 96 A.3d 448, 450 n.2 (Pa. Cmwlth. 2014).
3
A.R. presents four issues in her Statement of Questions Involved: (1) whether BHA’s
ALJ abused his discretion by finding minor M.C.’s testimony credible and A.R.’s testimony not
credible; (2) whether the ALJ’s recommendation, adopted by BHA, was supported by substantial
evidence; (3) whether A.R.’s constitutional rights, particularly her right to a fair hearing, were
violated because Luzerne County Children and Youth Services (CYS) failed to turn over all
evidence in its possession gathered during the child abuse investigation; and (4) whether A.R.’s
right to a fair hearing was violated because CYS failed to turn over all evidence in its possession
gathered during the child abuse investigation. See A.R. Br. at 4. Because the first and second
issues are subsumed in this Court’s analysis of whether BHA’s decision was supported by
substantial evidence, those have been combined and will be addressed accordingly herein.
A.R. raises her third and fourth issues for the first time before this Court.
“Our case law is unwavering that when a party fails to raise an issue,
even one of a constitutional dimension, in an agency proceeding, the
issue is waived and cannot be considered for the first time in a
judicial appeal.” K.J. v. Dep’t of Pub. Welfare, 767 A.2d 609, 612
(Pa. Cmwlth. 2001) . . . . Further, failure to preserve an issue by
raising an objection before an ALJ results in waiver.
R.J.W. v. Dep’t of Hum. Servs., 139 A.3d 270, 292 (Pa. Cmwlth. 2016). The fact that A.R.
represented herself before the ALJ does not mitigate the error. “[A]ny lay person choosing to
represent [herself] in a legal proceeding must, to some reasonable extent, assume the risk that [her]
lack of expertise and legal training will prove [her] undoing.” City of Phila. v. Shih Tai Pien, 224
A.3d 71, 82 (Pa. Cmwlth. 2019) (quoting D.Z. v. Bethlehem Area Sch. Dist., 2 A.3d 712, 720 (Pa.
Cmwlth. 2010)). Because A.R. failed to raise the third and fourth issues before the ALJ, they are
waived, and will not be addressed by this Court herein.
2
A.R. is minor M.C.’s (Minor) older sister. In the fall of 2018, A.R. and
her boyfriend, J.K.,4 lived with Minor5 and her mother (Mother) in Mother’s house.6
On July 31, 2019, Luzerne County Children and Youth Services (CYS) received a
referral alleging that A.R. and J.K. gave Minor alcohol and sexually abused her in
the fall of 2018, when Minor was 14 years old. CYS conducted an investigation
with the assistance of the local police department (Police Department). Minor
participated in a Child Advocacy Center (CAC) interview, during which she
disclosed that A.R. and J.K. had given her alcohol and engaged in oral and vaginal
intercourse with her. Based on CYS’s investigation, Minor was deemed credible
and, on September 27, 2019, CYS filed an indicated report against A.R. and J.K. as
perpetrators7 of sexual child abuse against Minor. See Reproduced Record (R.R.) at
4a-14a.
CYS issued a Child Protective Services Investigation Report (CY-48)
declaring therein that the child abuse allegations against A.R. were indicated, as facts
supported A.R.’s sexual abuse or exploitation of Minor by: Unlawful Contact with
a Minor (see R.R. at 4a-5a); Statutory Sexual Assault (see R.R. at 7a); Indecent
Assault (see R.R. at 8a); Rape (see R.R. at 9a-10a); Involuntary Deviate Sexual
Intercourse (see R.R. at 10a); Aggravated Assault (see R.R. at 10a-11a); and Sexual
Assault (see R.R. at 12a).
4
A.R.’s birth date is May 16, 1994; she was 24 years old in the fall of 2018. See
Reproduced Record (R.R.) at 4a. J.K.’s birth date is May 14, 1993; he was 25 years old in the fall
of 2018. See R.R. at 4a.
5
Minor’s birth date is December 6, 2003; she was 14 years old in the fall of 2018. See
R.R. at 4a, 47a.
6
A.R. and J.K. lived at Mother’s house until June 2019. See R.R. at 13a.
7
Section 6303 of the Law defines perpetrator as “[a] person who has committed child
abuse as defined in this section. . . . The term includes . . . [a]n individual 14 years of age or older
who resides in the same home as the child.” 23 Pa.C.S. § 6303. Moreover, “[a] person 18 years
of age or older who resides in the same home as the child[,]” “may be considered a perpetrator for
failing to act[.]” Id.
3
By notice mailed October 7, 2019, A.R. was informed that she was
listed on the ChildLine Registry as a perpetrator of child abuse. See Certified Record
(C.R.) at 21. On December 28, 2019, A.R. filed an expungement appeal and
requested a hearing because she disagreed with the indicated report. See R.R. at 2a.
A hearing was held on March 2, 2020, before the ALJ, at which Minor, a CYS intake
caseworker (Caseworker), Police Department Sergeant (Police Sergeant), and A.R.
testified.8 See R.R. at 35a-109a. On April 22, 2020, the ALJ issued a
recommendation that BHA deny A.R.’s expungement appeal. See R.R. at 17a-33a.
BHA adopted the ALJ’s recommendation in its entirety. See R.R. at 16a. On May
22, 2020, A.R. appealed to this Court.9 On July 27, 2020, this Court granted CYS’s
application to intervene.10
A.R. argues that BHA’s decision was not supported by substantial
evidence. In particular, she asserts that the ALJ abused his discretion by finding that
Minor’s testimony was credible, and that A.R.’s testimony was not credible.
Section 6341(a)(2) of the Child Protective Services Law (Law)
authorizes “[DHS’s S]ecretary to . . . expunge an indicated report on the grounds
that it is inaccurate or it is being maintained in a manner inconsistent with [the
Law].” 23 Pa.C.S. § 6341(a)(2). This Court has explained:
“[T]he proper inquiry into whether an indicated report of
child abuse should be expunged is whether the report is
8
J.K. attended the hearing, but declined to testify.
9
[This Court’s] review of an adjudication in an expunction
proceeding determines whether constitutional rights were violated,
whether errors of law were committed, and whether the necessary
findings of fact are supported by substantial evidence. Whether
CYS’s evidence satisfied the evidentiary standard necessary to meet
its burden of proof is a question of law.
P.L. v. Dep’t of Hum. Servs., 236 A.3d 1208, 1211 n.3 (Pa. Cmwlth. 2020) (citation omitted).
10
On December 28, 2020, DHS notified this Court that it would not participate in this
appeal, and that it agreed with CYS’s position.
4
accurate.” B.K. v. Dep[’]t of Pub[.] Welfare, 36 A.3d 649,
653 (Pa. Cmwlth. 2012). CYS bears the burden of
showing that the indicated report of abuse is accurate and
is consistent with the Law. T.H. v. Dep[’]t of Hum[.]
Serv[s.], 145 A.3d 1191, 1198 (Pa. Cmwlth. 2016); 23
Pa.C.S. § 6341(c).
An indicated report is issued by a county agency or [DHS]
if, after an investigation, “‘substantial evidence’ of the
alleged abuse exists based on available medical evidence,
the child protective service investigation, or an admission
of the facts of abuse by the perpetrator.” G.V. v. Dep[’]t
of Pub[.] Welfare, . . . 91 A.3d 667, 671 ([Pa.] 2014)
(quoting 23 Pa.C.S. § 6303(a)). Section 6303(a) of the
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). The “substantial evidence” standard
set forth in Section 6303(a) of the Law is “the equivalent
of the preponderance of the evidence standard.” T.H., 145
A.3d at 1198.
S.H. v. Dep’t of Hum. Servs., 228 A.3d 22, 27 (Pa. Cmwlth. 2020). “Notably, in
expungement cases, the testimony of the victim alone constitutes substantial
evidence to support an indicated report of child abuse.” R.J.W. v. Dep’t of Hum.
Servs., 139 A.3d 270, 283 (Pa. Cmwlth. 2016); see also D.T. v. Dep’t of Pub.
Welfare, 873 A.2d 850 (Pa. Cmwlth. 2005).
Moreover, the Law defines child sexual abuse or exploitation, in
relevant part, as:
Any of the following:
(1) The employment, use, persuasion, inducement,
enticement or coercion of a child[11] to engage in or assist
another individual to engage in sexually explicit conduct,
which includes, but is not limited to, the following:
11
A child is “[a]n individual under 18 years of age.” 23 Pa.C.S. § 6303.
5
(i) Looking at the sexual or other intimate parts of
a child or another individual for the purpose of
arousing or gratifying sexual desire in any
individual.
(ii) Participating in sexually explicit conversation
either in person, by telephone, by computer or by
a computer-aided device for the purpose of sexual
stimulation or gratification of any individual.
(iii) Actual or simulated sexual activity or nudity
for the purpose of sexual stimulation or
gratification of any individual.
(iv) Actual or simulated sexual activity for the
purpose of producing visual depiction, including
photographing, videotaping, computer depicting
or filming.
....
(2) Any of the following offenses committed against a
child:
(i) Rape as defined in [Section 3121 of the Crimes
Code,] 18 Pa.C.S. § 3121 (relating to rape).[12]
(ii) Statutory sexual assault as defined in [Section
3122.1 of the Crimes Code,] 18 Pa.C.S. § 3122.1
(relating to statutory sexual assault).[13]
12
Section 3121(a) of the Crimes Code states relative to rape: “A person commits a felony
of the first degree when the person engages in sexual intercourse with a complainant . . . [b]y threat
of forcible compulsion that would prevent resistance by a person of reasonable resolution.” 18
Pa.C.S. § 3121(a). Forcible compulsion is defined in Section 3101 of the Crimes Code as
“[c]ompulsion by use of physical, intellectual, moral, emotional or psychological force, either
express or implied.” 18 Pa.C.S. § 3101.
13
Regarding statutory sexual assault, Section 3122.1(a) of the Crimes Code describes it as
a second-degree felony to “engage[] in sexual intercourse with a complainant to whom the person
is not married who is under the age of 16 years and that person is . . . [8] years older but less than
11 years older than that complainant.” 18 Pa.C.S. § 3122.1(a). Sexual intercourse is defined in
Section 3101 of the Crimes Code as follows: “In addition to its ordinary meaning, includes
intercourse per os [(mouth)] or per anus, with some penetration however slight; emission is not
required.” 18 Pa.C.S. § 3101. A.R. was 10 years older than Minor in the fall of 2018. It is a first-
degree felony under Section 3122.1(b) of the Crimes Code for a “person [to] engage[] in sexual
intercourse with a complainant under the age of 16 years and that person is 11 or more years older
6
(iii) Involuntary deviate sexual intercourse as
defined in [Section 3123 of the Crimes Code,] 18
Pa.C.S. § 3123 (relating to involuntary deviate
sexual intercourse).[14]
(iv) Sexual assault as defined in [Section 3124.1 of
the Crimes Code,] 18 Pa.C.S. § 3124.1 (relating to
sexual assault).[15]
....
(vi) Aggravated indecent assault as defined in
[Section 3125 of the Crimes Code,] 18 Pa.C.S. §
3125 (relating to aggravated indecent assault).[16]
than the complainant and the complainant and the person are not married to each other.” 18 Pa.C.S.
§ 3122.1(b). J.K. was 11 years older than Minor in the fall of 2018.
14
Section 3101 of the Crimes Code defines deviate sexual intercourse as “[s]exual
intercourse per os . . . .” 18 Pa.C.S. § 3101. Under Section 3123(a) of the Crimes Code, a person
who “engages in deviate sexual intercourse with a complainant . . . who is less than 16 years of
age and the person is [4] or more years older than the complainant and the complainant and person
are not married to each other” commits a first-degree felony. 18 Pa.C.S. § 3123(a).
15
Section 3124.1 of the Crimes Codes specifies:
Except as provided in [S]ection 3121 [of the Crimes Code] (relating
to rape) or [Section] 3123 [of the Crimes Code] (relating to
involuntary deviate sexual intercourse), a person commits a felony
of the second degree when that person engages in sexual intercourse
or deviate sexual intercourse with a complainant without the
complainant’s consent.
18 Pa.C.S. § 3124.1.
16
Section 3125(a) of the Crimes Code provides:
[A] person who engages in penetration, however slight, of the
genitals or anus of a complainant with a part of the person’s body
for any purpose other than good faith medical, hygienic or law
enforcement procedures commits aggravated indecent assault if . . .
the complainant is less than 16 years of age and the person is [4] or
more years older than the complainant and the complainant and the
person are not married to each other.
18 Pa.C.S. § 3125(a).
7
(vii) Indecent assault as defined in [Section 3126
of the Crimes Code,] 18 Pa.C.S. § 3126 (relating
to indecent assault).[17]
....
(xii) Unlawful contact with a minor as defined in
[Section 6318 of the Crimes Code,] 18 Pa.C.S. §
6318 (relating to unlawful contact with minor).[18]
17
Section 3126(a) of the Crimes Code states:
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 or intentionally causes the
complainant to come into contact with seminal fluid, urine or feces
for the purpose of arousing sexual desire in the person or the
complainant and . . . the complainant is less than 16 years of age and
the person is [4] or more years older than the complainant and the
complainant and the person are not married to each other.
18 Pa.C.S. § 3126(a). Section 3101 of the Crimes Code defines indecent contact as “[a]ny touching
of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual
desire, in any person.” 18 Pa.C.S. § 3101.
18
Section 6318(a) of the Crimes Code states:
A person commits an offense if he is intentionally in contact with a
minor . . . for the purpose of engaging in an activity prohibited under
any of the following, and either the person initiating the contact or
the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual
offenses).
....
(5) Sexual abuse of children as defined in [S]ection 6312 [of the
Crimes Code] (relating to sexual abuse of children).
(6) Sexual exploitation of children as defined in [S]ection 6320 [of
the Crimes Code] (relating to sexual exploitation of children).
18 Pa.C.S. § 6318(a).
8
(xiii) Sexual exploitation as defined in [Section
6320 of the Crimes Code,] 18 Pa.C.S. § 6320
(relating to sexual exploitation of children).[19]
23 Pa.C.S. § 6303.
In the instant matter, Minor testified at the hearing that, in October
2018, when she was 14 years old and A.R. and J.K. lived at Mother’s house with
her, A.R. asked Minor if she would be willing to have a threesome with A.R. and
J.K., and Minor agreed. See R.R. at 51a-55a, 67a. She described that A.R. gave her
vodka and a soft drink, which she drank, and then the three of them proceeded to
A.R. and J.K.’s room. See R.R. at 53a.
Minor described that she sat on the bed, A.R. sat down next to her and
kissed Minor on the lips and used her tongue, then J.K. did the same and also bit her
lip and nicked her tooth. See R.R. at 54a, 56a-57a. Minor recalled that she laid on
the bed, J.K. removed her pants, and A.R. kissed her nipples and her stomach, “put
her mouth on [Minor’s] vagina[] and licked until she was done[,]” and then
penetrated Minor with her fingers. See R.R. at 57a; see also R.R. at 58a-59a. Minor
stated that, when she complained to A.R. that it hurt, A.R. did not stop; rather, A.R.
bit off her fingernail tips and continued. See R.R. at 58a-59a. She related that J.K.
then pulled her close to him and licked her clitoris. See R.R. at 58a. After A.R.
asked Minor if J.K. could “stick it in,” J.K. pulled Minor’s legs over his shoulders
and put his penis in her vagina as A.R. watched. See R.R. at 59a-60a. Minor
explained that, at some point he pulled out, she sat up, and J.K. put his penis in her
mouth. See R.R. at 60a. As she performed oral sex on him, J.K. said: “[I]t felt so
19
Section 6320(a) of the Crimes Code specifies that “[a] person commits the offense of
sexual exploitation of children if he procures for another person a child under 18 years of age for
the purpose of sexual exploitation.” 18 Pa.C.S. § 6320(a). Under Section 6320(c) of the Crimes
Code, procure means “[t]o obtain or make available for sexual exploitation[,]” and sexual
exploitation means “[a]ctual or simulated sexual activity or nudity arranged for the purpose of
sexual stimulation or gratification of any person.” 18 Pa.C.S. § 6320(c).
9
good, but he feels so bad.” R.R. at 60a. Minor continued: “He took his penis out of
my mouth and flipped me over to my side, . . . [h]e opened my legs and he inserted
his penis and had sex with me” for approximately four minutes. R.R. at 60a.
Thereafter, J.K. took his penis out of Minor’s vagina, had her lay on her stomach
and he penetrated her vagina from behind and “thrusted it” until he stopped. R.R. at
61a.
Minor testified that she sat up, A.R. left to smoke a cigarette, and Minor
and J.K. kissed until J.K. said that he could not do anything with Minor without
A.R.’s permission, and they joined A.R. to smoke. See R.R. at 62a. Minor recalled
that J.K. asked to speak to her, they went to the back patio without A.R., and J.K.
threatened that if Minor told anyone what happened, he would kill her and harm
Mother. See R.R. at 62a-63a, 67a. They returned to A.R., finished their cigarettes,
A.R. and J.K. went back to their room, and Minor went to her room. See R.R. at
63a-64a.
Minor stated that, while she was laying on her bed, J.K. entered her
room, closed the door, and said: “I’m sorry kid, I have to finish.” R.R. at 64a. She
recalled that he removed her pants, penetrated her with his penis, smacked her behind
and, after realizing how loud it was, he turned on the air conditioner. See R.R. at
63a-65a. Minor said: “[H]e continued doing what he was doing. [] [O]nce he was
done, he pulled out and ejaculated onto my back.” R.R. at 65a. Minor explained:
I laid there while looking for something to clean up with,
and then he said [“]I should be a gentleman, shouldn’t
I?[”] And he grabbed a towel off the floor and wiped it
off, and then once he left, I was laying down in my bed
scrambling to find my underwear, found them and I put
them on and went back to bed.
10
R.R. at 65a. Minor testified that, she, A.R., and J.K. smoked cigarettes and went to
Taco Bell the next morning and, when J.K. asked if this was going to be a thing,
Minor did not say anything, and A.R. said no. See R.R. at 65a-66a.
Minor stated that she was upset, but did not tell anyone about the
incident because J.K. lived with her and Mother and she did not want to take the
chance of him harming her or Mother. See R.R. at 67a-68a. Approximately one
month later, Minor attempted suicide and was hospitalized. See R.R. at 68a-69a.
She still did not tell anyone about the incident because she feared J.K. would harm
Mother while Minor was in the hospital. See R.R. at 68a-69a. She declared that she
finally told Mother about the incident in July 2019, after A.R. and J.K. had moved
out and she felt safe. See R.R. at 69a-71a. Mother took her to the Police Department
to report the incident. See R.R. at 70a-71a. Minor admitted that she and A.R. always
fought, and she has not had any contact with A.R. or J.K. since July 2019. See R.R.
at 71a.
Police Sergeant testified that, after he received the report in July 2019
that A.R. and J.K. had sexual relations with Minor in the fall of 2018, and there was
alcohol involved, he notified CYS and arranged Minor’s CAC interview. See R.R.
at 76a-77a, 83a. He recalled that he attempted to interview A.R. and J.K., but A.R.
referred him to her lawyer and J.K. did not respond. See R.R. at 78a-79a. He
declared that the criminal investigation into the allegations was still ongoing. See
R.R. at 80a-81a.
Caseworker testified that, when she received the initial referral that
Minor had been sexually abused by household members A.R. and J.K, Police
Sergeant asked that she allow him to contact A.R. and J.K. See R.R. at 86a-88a.
Caseworker was aware that Minor’s CAC interview had been arranged, and ensured
that Minor was safe in the meantime. See R.R. at 87a-89a. Caseworker stated that
she mailed letters to A.R. and J.K., and A.R.’s attorney responded about scheduling
11
an interview with her. See R.R. at 88a. Caseworker eventually interviewed A.R.,
but not J.K. See R.R. at 90a-91a. Caseworker recalled that A.R. denied Minor’s
allegations that the incident occurred, and claimed that the allegation arose from the
constant turmoil between her, Mother, and Minor. See R.R. at 90a-91a.
Caseworker described that she observed Minor’s CAC interview, she
conducted a supplemental interview, and she heard Minor’s testimony, all of which
were consistent. See R.R. at 88a-90a. Caseworker explained that, based on her
investigation, she issued the CY-48, reflecting that A.R. and J.K., who were
household members in their early 20’s, were perpetrators of abuse of Minor by
sexual assault, unlawful contact with a minor, rape, involuntary deviate sexual
intercourse, indecent assault, and statutory sexual assault. See R.R. at 91a-94a, 96a-
97a; see also R.R. at 4a-12a.
A.R. acknowledged that she and J.K. lived in Mother’s house with
Minor in the fall of 2018, and it was not out of the ordinary for them to have been
alone together. See R.R. at 103a-104a. She denied that the incident occurred. See
R.R. at 104a. She read the CY-48 aloud and declared that what she heard Minor
testify to at the hearing differed from the details reported in the CY-48, specifically
in terms of whether the vodka was mixed with Pepsi or iced tea, who was sitting
where on the bed, and which of the two digitally penetrated Minor. See R.R. at 99a-
102a. A.R. stated that A.R. and Mother had a fight a few days before Minor reported
the alleged incident and alluded that Minor “trie[d] to defend [Mother] in some sick
way.” R.R. at 103a.
Based upon the evidence, BHA adopted the ALJ’s conclusion that
A.R.’s appeal should be denied, reasoning:
[Minor] testified in a clear, consistent manner and was
explicit in detailing [A.R.’s and J.K.’s] sexual abuse. Her
testimony is supported by the statements she previously
made as reported by the other witnesses. Furthermore,
12
there were not any inconsistencies in her testimony, and
her testimony was not contradicted by specific testimony
from any other witnesses. Therefore, her testimony is
deemed credible.
At the fair hearing, [Caseworker] testified about [CYS’s]
investigation. On July 31, 2019, [DHS] received the initial
referral indicating that [A.R. and J.K.] sexually abused
[Minor]. After the referral, [Minor] participated in a
[CAC] interview in which she revealed that [A.R. and
J.K.] had given her alcohol and engaged in oral and
vaginal intercourse with her.
Based on the [CYS’s] investigation, [Minor] was deemed
credible, and [A.R. and J.K.] were indicated for child
abuse. [Caseworker] testified in a straightforward manner,
lacking any interest in the outcome of the case. Thus, her
testimony is deemed credible.
[DHS] also relied on testimony from [Police Sergeant,
who] testified about his investigation into the report that
his office received. [Police Sergeant] interviewed [Minor]
and observed the CAC interview. [Minor] disclosed an
incident of sexual activity with herself and both [A.R. and
J.K.] in which alcohol was involved. [Police Sergeant]
testified in a straightforward manner, lacking any interest
in the outcome of the case. Thus, his testimony is deemed
credible.
[] A.R. also testified at the fair hearing. [A.R.] denied that
the incident described by [Minor] ever occurred. [A.R.]
argued that she does not get along with [Minor] and the
allegations are not true. However, other than accusing
[Minor] of fabricating these allegations, [A.R.] provided
no evidence to discredit [Minor’s] testimony. [Minor]
testified clearly and in great detail about the events in
question, and there is nothing to indicate she had any
motive to fabricate these allegations. While [] A.R. argued
there were inconsistencies such as [Minor’s] statement at
the CAC interview that she was given vodka and [i]ced
[t]ea while testifying at the fair hearing to being given
vodka, these statements are not inconsistent. They are
consistent statements, and at worst, [Minor] simply
focused on the alcohol at the fair hearing because it was
13
used to coerce [Minor] into engaging in sexual acts with
[A.R. and J.K.]
Ultimately, [] A.R. provided nothing more than general
denials, which are self-serving at best, and she has not
provided any details to undermine [Minor’s] testimony.
As a result, [] A.R. is not credible as a witness.
. . . . [Minor’s] testimony, supported by the testimony of
the [] Caseworker and the [P]olice [S]ergeant, is sufficient
to meet [CYS’s] burden of proof. [] A.R.’s general denial
of inappropriate contact with [Minor] was clearly
contradicted at the hearing. Her assertions that the
allegations were fabricated are unsupported and
unpersuasive. [] J.K. did not offer any argument or
testimony to refute [Minor’s] statements. In looking at the
totality of the evidence, [CYS] has proved, by substantial
evidence, that [A.R. and J.K.] sexually abused the subject
child.
ALJ Rec. at 16-18; R.R. at 31a-33a.
The law 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. Off., Child., Youth & Fam. Servs., 681
A.2d 853 (Pa. Cmwlth. 1996). “In child abuse expunction proceedings, the [BHA],
as the [DHS] Secretary’s designee, is the ultimate finder of fact, and the ultimate
arbiter of the weight to be assigned to the evidence presented.” S.K. v. Dep’t of Hum.
Servs., 206 A.3d 644, 652 (Pa. Cmwlth. 2019) (quoting Beaver Cnty. Child. & Youth
Servs. v. Dep’t of Pub. Welfare, 68 A.3d 44, 47 n.4 (Pa. Cmwlth. 2013)); see also
D.T.
This Court has expounded:
[I]n determining whether a finding of fact is supported by
substantial evidence, the Court must give the party in
whose favor the decision was rendered the benefit of all
reasonable and logical inferences that may be drawn from
the evidence of record; the weight and credibility to be
14
accorded to the evidence is solely within the province of
the attorney examiner as fact finder.
S.T., 681 A.2d at 856.
Here, the ALJ was faced with a “she said/she said” situation and
credited the testimony of Minor over A.R. The ALJ relied on Minor’s credited
testimony to conclude that sexual abuse or exploitation occurred at A.R.’s and J.K.’s
hands in the fall of 2018. BHA adopted the ALJ’s adjudication in its entirety. In so
doing, BHA found that Minor was a competent and credible witness and A.R. was
not. Those determinations are not subject to this Court’s review. See S.T.
Giving Minor the benefit of all reasonable and logical inferences that
may be drawn from the evidence, as it must, this Court holds that substantial
evidence supported the ALJ’s recommendation that CYS met its burden of showing
that the indicated report of abuse is accurate and is consistent with the Law and, thus,
BHA did not err by denying A.R.’s expungement appeal.
Based on the foregoing, this Court affirms BHA’s order.
_________________________________
ANNE E. COVEY, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A.R., :
Petitioner : SEALED CASE
:
v. :
:
Department of Human Services, : No. 481 C.D. 2020
Respondent :
ORDER
AND NOW, this 7th day of May, 2021, the Department of Human
Services, Bureau of Hearings and Appeals’ April 22, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge