P.N. v. DHS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
P.N., : CASE SEALED
Petitioner :
:
v. : No. 302 C.D. 2020
: Submitted: March 18, 2021
Department of Human Services, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: April 27, 2021
P.N. petitions for review from the February 24, 2020 order of the
Commonwealth of Pennsylvania, Department of Human Services (DHS), Bureau of
Hearings and Appeals (BHA), which adopted the recommendation of the
Administrative Law Judge (ALJ) denying P.N.’s request to expunge the January 4,
2019 indicated report of child abuse filed by the County Children and Youth
Services (CYS), in which P.N. was named as a perpetrator of sexual abuse. CYS is
the intervenor in the present matter.1 Upon review, we affirm.
1
The county agency bears the burden of proving in an expungement case that the actions
of the perpetrator constitute child abuse within the meaning of the statute. B.J.K. v. Dep’t of Pub.
Welfare, 773 A.2d 1271 (Pa. Cmwlth. 2001). “[T]he burden is on the appropriate county agency
to show the indicated report of abuse is accurate and is maintained in a manner consistent with the
(Footnote continued on next page…)
I. Background
On November 6, 2018, CYS received a report of suspected sexual abuse
committed by P.N. against a minor child (Child). P.N. is Child’s biological
grandfather. CYS conducted an investigation of the allegation and filed an indicated
report of child abuse, stating:
The reported allegation was investigated and parties relevant to the case
were interviewed. [Child] was interviewed and positively identified
[P.N.] by name. [Child] provided consistent and credible statements
regarding [P.N.’s] sexual actions toward [Child]. [Child] stated that
[P.N.] would show [her] pornographic videos and then force [her] to
perform oral sex on [P.N.] [P.N.] was not involved in good faith
medical or hygienic care to [Child] at [the] date of [the] incident. One
can only conclude that [P.N.’s] actions were for the purpose of sexual
arousal and/or gratification. There was no indication that [Child] had
been prepared prior to interview nor did [Child’s] statement have a
rehearsed quality. As a result, the investigation is assigned an
INDICATED status as it meets the criteria set forth in the CPSL.
Certified Record (CR)-11, Child Protective Services Investigation Report
(capitalization in original).
For our purposes here, it is helpful to understand the following key
definitions2 from the CPSL.
Child abuse.-- The term “child abuse” shall mean any of the
following:
....
[Child Protective Services Law (CPSL), 23 Pa.C.S. §§6301-6387].” R.J.W. v. Dep’t. of Hum.
Servs., 139 A.3d 270, 282 (Pa. Cmwlth. 2016).
2
As noted in the ALJ’s proposed adjudication, which was adopted by DHS, the alleged
incidents of abuse in the present matter occurred prior to January 2015. Thus, the law in effect,
including the definitions therein, prior to the 2015 amendments to the CPSL is applicable herein.
Certified Record (CR)-83.
2
(ii) An act or failure to act by a perpetrator which causes
nonaccidental serious mental injury to or sexual abuse or sexual
exploitation of a child under 18 years of age.
....
“Expunge.” To strike out or obliterate entirely so that the expunged
information may not be stored, identified or later recovered by any
mechanical or electronic means or otherwise.
....
“Indicated report.”
(1) . . . a report of child abuse made pursuant to this chapter if an
investigation by the department or county agency determines that
substantial evidence of the alleged abuse by a perpetrator exists based
on any of the following:
(i) Available medical evidence.
(ii) The child protective service investigation.
(iii) An admission of the acts of abuse by the perpetrator.
....
“Sexual abuse or exploitation.” Any of the following:
(1) The employment, use, persuasion, inducement, enticement or
coercion of a child to engage in or assist another individual to engage
in sexually explicit conduct, which includes, but is not limited to, the
following:
(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.
23 Pa.C.S. §6303.
3
P.N. appealed the indicated report and a hearing was conducted before
an ALJ.3 The ALJ found that Child was approximately six to seven years old at the
time of alleged sexual abuse, which occurred between 2013 and 2014. CR-79, ALJ’s
Findings of Fact (FOF) Nos. 1, 2. During the subject period of alleged abuse, Child
lived with P.N., her mother, her stepfather, her brother, and another individual
identified in the record as C2.F.4 CR-80, FOF No. 4. As part of the CYS
investigation, the CYS caseworker interviewed Child as well as Child’s mother and
brother and observed a detective’s interview of P.N. in regard to the alleged incidents
of sexual abuse. CR-80, FOF No. 6. On November 28, 2018, Child was interviewed
by a forensic interviewer and indicated that P.N. showed her pornographic videos
and forced her to perform oral sex on him on multiple occasions. CR-80, FOF No.
7. As a result of the investigation, CYS filed an indicated report of sexual child
abuse in which it identified P.N. as the perpetrator and Child as the subject child.
CR-80, FOF No. 8. On April 4, 2019, P.N. requested a fair hearing to expunge the
indicated report against him. CR-80, FOF No. 9.
At the time of hearing, Child was 12 years old and was deemed
competent to testify. CR-80, FOF No. 10. Child testified that P.N. lived with her
and that he would watch her while her mother went to work. CR-80, FOF Nos. 12,
13. Child testified that P.N. made her watch a pornographic video of oral sex when
she was six years old and subsequently forced her to perform oral sex on him. CR-
3
The ALJ who conducted the hearing was David A. Dudley, Esquire. However, another
ALJ, James L. Bobeck, Esquire, reviewed the testimony and the exhibits from the hearing and
wrote the adjudication recommending that P.N.’s appeal be denied. On February 24, 2020, Mr.
Dudley, who had, at that point, transitioned into a new position at DHS as a regional manager,
signed the order adopting ALJ Bobeck’s recommendation.
4
It is not readily apparent from the record who C2.F is or whether this individual is related
to Child in any way.
4
80, FOF Nos. 14, 15. Child testified that this occurred on multiple occasions where
P.N. would make her go to his room and forced her to perform oral sex on him. CR-
80, FOF No. 16. Child testified that she began getting headaches when she was
younger and that she currently experiences stomachaches. CR-81, FOF No. 17.
Child’s mother testified that Child requested never to have to go
anywhere with P.N. again, after P.N. had taken Child shopping in September 2018.
CR-81, FOF No. 18. Child’s mother testified to going through Child’s phone and
finding text messages that Child sent to a friend, in which she told the friend that she
had to touch P.N.’s penis. CR-81, FOF No. 19.
The husband of Child’s mother, from whom she is now separated,
testified that P.N. was still residing in the home in 2015, at the time he moved out
due to the separation. CR-81, FOF No. 23. He further testified that while he was
still residing in the home, P.N. was responsible for watching Child and her brother
about 50% of the time. CR-81, FOF No. 24.
P.N. offered the testimony of character witnesses who testified that P.N.
had a reputation in the community for being “sexually appropriate.” CR-81, FOF
Nos. 25, 26. P.N. denied showing Child pornography and denied directing her to
touch him in a sexual manner. CR-81, FOF No. 28. In his findings, the ALJ stated
that P.N. testified “that he routinely Facetimed [Child] after moving to another state
and once took [Child] shopping in September 2018.” CR-81, FOF No. 29.
A licensed clinical social worker (Clinical Social Worker) testified that
she evaluated Child after the alleged abuse and that Child told her she experiences
digestive issues and stomach pain. CR-82, FOF No. 30. Clinical Social Worker also
testified that it would not be abnormal for a victim of sexual abuse to maintain
contact with her abuser after the abuse occurred. CR-82, FOF No. 31.
5
The ALJ found the testimony of Child, the CYS intake supervisor who
testified in regard to the notes of the investigating caseworker, Child’s mother,
Child’s mother’s husband, and Clinical Social Worker credible. The ALJ also found
all of P.N.’s character witnesses to be credible to the extent of their knowledge of
P.N.’s reputation for sexual appropriateness. The ALJ found that P.N. was not
credible, concluding that “[P.N.’s] testimony is directly contradicted by [Child’s]
credible testimony that the abuse occurred. Furthermore, his testimony can be
deemed self-serving at best and as general denials.” CR-82, FOF Nos. 32-40; CR-
91.
Based on the above testimony and a review of the evidence, the ALJ
recommended that P.N.’s appeal be denied. DHS adopted the ALJ’s
recommendation in its entirety, and P.N. now petitions this Court for review.5
II. Arguments
A. P.N.’s Arguments
P.N. argues that the DHS order was based on impermissible credibility
determinations because those determinations were made by an ALJ who did not hear
the case and, thus, did not observe the witnesses when they testified. P.N. asserts
that DHS regional manager, and former ALJ Dudley, not ALJ Bobeck, should have
5
On appeal from an order of DHS, this Court’s review is limited to a determination of
whether constitutional rights have been violated, whether an error of law has been committed, or
whether necessary facts are supported by substantial evidence. Bucks Cnty. Child. & Youth Soc.
Servs. Agency v. Dep’t of Pub. Welfare, 808 A.2d 990 (Pa. Cmwlth. 2002). “In expungement
cases, the testimony of the victim alone constitutes substantial evidence to support an indicated
report of child abuse.” R.J.W. 139 A.3d at 283. The proper inquiry into whether an indicated
report of child abuse should be expunged or maintained is whether the report is accurate. D.T. v.
Dep’t of Pub. Welfare, 873 A.2d 850 (Pa. Cmwlth. 2005). The county agency bears the burden of
proving in an expungement case that the actions of the perpetrator constitute child abuse within
the meaning of the statute. The county’s evidence must outweigh any contrary evidence. B.J.K.,
773 A.2d 1271. This Court will not disturb determinations of weight and credibility on review.
Id.6
made the determinations regarding weight and credibility because ALJ Dudley was
the one who heard the case, and ALJ Bobeck did not observe the demeanor of the
witnesses. Quoting In re S.H., 96 A.3d 448, 459 (Pa. Cmwlth. 2014), P.N. states:
Where a fact finder has not seen the witness testify and cannot assess
witness demeanor, a mere conclusion on credibility is inadequate. See
Daniels v. Workers’ [Comp.] Appeal [Bd.] (Tristate Transp.), . . . 828
A.2d 1043, 1053 ([Pa.] 2003) (establishing that a workers’
compensation judge must articulate an “objective basis for the
credibility determination” of an expert who testifies by deposition in
order to permit effective appellate review).
P.N.’s Br. at 10. Thus, P.N. asserts that “[a]s the determination of this case was
made entirely on credibility, it was error for [ALJ] Bobeck to make the credibility
determinations. The findings of ALJ Bobeck must be reversed.” Id.Referencing the ALJ’s conclusions of law finding him not credible
because his testimony was self-serving and consisting of general denials, P.N. argues
that “[i]t is fundamentally unfair to expect [him] to give specific denials . . . ,
particularly when there is a huge range of dates involved” and “[a]ll testimony by
appellants in abuse cases could be seen as self-serving.” P.N.’s Br. at 11-12. P.N.
asserts that, in the present matter, there was no evidence of physical abuse or
evidence of “hypersexualization of [Child],” which might indicate sexual abuse had
occurred, as “[Child’s] testimony was consistent with what a child of her age would
understand.” P.N.’s Br. at 13-14. P.N. contends that, when properly considered,
Child’s testimony was not of such a quality as to allow the factfinder to believe it
outweighed P.N.’s testimony and evidence. P.N.’s Br. at 14.
Further, P.N. argues that the ALJ’s findings ignore information
favorable to him, specifically the testimony of Child’s mother’s husband that he saw
no abnormal or unusual behavior between P.N. and Child, as well as the testimony
7
of a neighbor of P.N. and Child, who also had a child around the same age as Child,
and who saw no unusual behavior between P.N. and Child. P.N.’s Br. at 14-15. P.N.
notes that Child had a younger brother who was in the house at the times of the
alleged abuse, and states that “[i]t was unlikely that abuse would have occurred with
another child nearby.” P.N.’s Br. at 15. P.N. acknowledges that he had an earlier
criminal record for a drug delivery offense but states that the ALJ’s findings ignore
the fact that he had never been accused of, or charged with, sexually inappropriate
behavior, arguing that “[c]hild abusers often have some type of prior criminal record
that indicates sexually abnormal behavior,” and his “lack of a prior record should
been considered.” P.N.’s Br. at 15-16.
Finally, P.N. argues that, at the hearing before the ALJ, he objected to
“any medical/psychiatric conclusions from [Clinical Social Worker] being
admitted.” P.N.’s Br. at 16. P.N. states that Clinical Social Worker is a licensed
clinical social worker who can interview clients and make observations about their
physical condition but that there is no legal authority to support the assertion that
such social workers can make medical/physical conclusions or render an opinion
about sexual assault. P.N. maintains that “[i]n Pennsylvania, medical or psychiatric
conclusions have always been left to doctors, psychiatrists and psychologists.”
P.N.’s Br. at 17. P.N. contends that the ALJ erred by allowing Clinical Social
Worker to provide “expert testimony” over his objection to it, and in direct
contravention of the ALJ’s own prohibition of such testimony when he stated that
he was “not going to allow her talk about any type of diagnoses or impressions about
a diagnosis.” P.N.’s Br. at 17; CR-135.
8
B. CYS’s Arguments
In response to P.N.’s arguments, CYS asserts that there was no error in
ALJ Bobeck making the credibility determinations in this matter, as adjudicators are
allowed to make credibility determinations based upon the reading of a hearing
transcript. Further, CYS notes that it is not uncommon for administrative agencies
to utilize a system whereby an administrative law judge or hearing examiner presides
at the hearing and takes evidence but that a board or commission serves as the
ultimate fact finder based on its review of the record. In support of its argument that
it was appropriate for ALJ Bobeck to prepare the adjudication in the present matter,
CYS quotes the Pennsylvania Code which states, in pertinent part: “‘If a presiding
officer becomes unavailable to the agency, the agency head will either designate
another qualified officer to prepare a proposed report or will cause the record to be
certified to it for decision, as may be deemed appropriate.’” CYS’s Br. at 10
(quoting 1 Pa. Code §35.203). CYS argues that ALJ Dudley became unavailable
after hearing this matter due to his transition from the role of ALJ to Regional
Manager of BHA, and, thus, ALJ Bobeck was designated to prepare the proposed
adjudication, which ALJ Dudley adopted in a final order as BHA Regional Manager.
CYS further argues that the credibility of its witnesses was apparent in
the record, stating:
The record shows that [Child] had nothing to gain by sharing her
account of sexual abuse by [P.N.] At 12 years old, she recounted
personal, awkward, and confusing sexual assaults before strangers. She
was forced to discuss the events multiple times over the course of an
investigation. She was self-conscious about verbally discussing what
happened, which is indictive of her truthfulness, and she chose to write
down words to avoid further embarrassment. She described details of
the assaults in a descriptive manner: how [P.N.] forced her to watch a
pornographic video on his phone before he inserted his penis into her
9
mouth, how his hands would be at his sides, and she would kneel on the
floor while he either laid on the bed or stood up. She noted that no one
else was in the room when the victimization occurred, and that her
brother was usually home and in another room of the house.
CYS’s Br. at 12-13 (internal citations to the record omitted). CYS adds:
Where there is no conclusive evidence regarding [a] minor victim’s
comprehension of [the] offensive acts in question, other factors must be
considered to determine whether that victim may have had legitimate
reason for delay in reporting. Reasons may include the victim’s age,
mental and physical condition . . . atmosphere and physical setting in
which incidents took place, [and the] extent to which [the] accused may
have been in [a] position of authority, domination, or custodial control
over [the] victim.
CYS’s Br. at 13-14 (citing Commonwealth v. Ables, 590 A.2d 334 (Pa. Super.
1991)).
In addition, CYS argues that the credibility determinations in the
present matter were corroborated by the timeline, noting that the assaults on Child
stopped when P.N. moved out of the home and that Child began talking about her
feelings and concerns about seeing P.N. once he moved back to the area. CYS’s Br.
at 14. Further, CYS states that Clinical Social Worker testified that it is not abnormal
for sexual abuse victims to maintain contact with the abuser and that it was common
for a child who has experienced sexual abuse to experience the kinds of digestive
issues that Child experienced here.
CYS contends that P.N.’s testimony corroborated all of Child’s
testimony except for the “acts of victimization themselves.” CYS’s Br. at 16. “He
corroborated the details relative to supervision of Child, that he lived in the home
and had exclusive access to her, that they would be together in this [sic] room, that
he watched pornography, and that he had a smart phone.” Id. In sum, CYS asserts
that the ALJ had every reason to believe Child and to disbelieve P.N. and that it was
10
his prerogative to accept or reject evidence in arriving at his determination in the
present matter. CYS adds:
[P.N.’s] witnesses did not raise any doubt regarding the allegations.
[Child’s mother’s husband] corroborated the timeline established by
Child and corroborated that [P.N.] was responsible for watching [Child
when she was a] kindergartner. The testimonies of [P.N.’s character
witnesses] were generally irrelevant, because the acts of victimization
occurred in secret, so [these witnesses did not have] the capacity to
reflect upon the truthfulness of the allegations. Furthermore, whether
or not [P.N.] appears to be sexually appropriate among adults in public
does not negate that [P.N.] took advantage of a vulnerable [c]hild in
secret.
CYS’s Br. at 17.
CYS rejects P.N.’s argument that Clinical Social Worker testified to
matters to which she was not qualified, asserting that she offered an opinion within
her training and 18 years of experience as a licensed clinical social worker working
with sexual abuse victims and that she did not make any medical or psychiatric
conclusions. CYS notes that “[Clinical Social Worker] did not offer an opinion
regarding the veracity of [Child]. She offered [an] opinion regarding victim
behavior.” CYS’s Br. at 20. Citing Rule 702 of the Pennsylvania Rules of Evidence,
Pa.R.E. 702,6 and Portside Investors, L.P. v. Northern Insurance Company of New
6
Pa.R.E. 702 states:
Rule 702. Testimony by Expert Witnesses.
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge is
beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant field.
11
York, 41 A.3d 1 (Pa. Super. 2011), CYS states “[t]he standard for expert witnesses
is liberal.” CYS’s Br. at 19. CYS adds: “A witness who is qualified as an expert
by knowledge, skill, experience, training, or education may testify in the form of an
opinion or otherwise if [her] knowledge is ‘beyond that possessed by the average
layperson’ and ‘will help the trier of fact to understand the evidence or to determine
a fact in issue.’” CYS’s Br. at 19 (citing Pa.R.E. 702). CYS states that “[BHA]
followed legal precedent when it accepted [Clinical Social Worker] as an expert
witness and applied her testimony to the overall determination of the case in a
manner fit for its purpose.” CYS’s Br. at 20.
In sum, CYS requests that this Court affirm the February 24, 2020 order
denying P.N.’s appeal so that he remains listed on the ChildLine and Abuse Registry
as a perpetrator of sexual abuse.
III. Discussion
At the outset, we note that “[w]hen the fact finder has determined the
weight and credibility of evidence, [this Court] will not disturb such determinations
on review.” B.J.K. v. Dep’t of Pub. Welfare, 773 A.2d 1271, 1276 (Pa. Cmwlth.
2001). In addition, the “[w]eight and credibility of evidence are matters solely
within the province of the fact finder.” Bedford Cnty. Child. & Youth Servs. v. Dep’t
of Pub. Welfare, 613 A.2d 48, 50 (Pa. Cmwlth. 1992). “The BHA is the ultimate
fact[]finder in expunction appeals.” F.V.C. v. Dep’t of Pub. Welfare, 987 A.2d 223,
228 (Pa. Cmwlth. 2010). “Absent an abuse of discretion, we will not disturb the
BHA’s determinations as to credibility and evidentiary weight.” R.J.W. v. Dep’t of
Hum. Servs., 139 A.3d at 285. “An abuse of discretion is not merely an error of
judgment but occurs, inter alia, when the law is misapplied in reaching a
12
conclusion.” Westinghouse Elec. Corp. v. Workers’ Comp. Appeal Bd. (Weaver),
823 A.2d 209, 213-14 (Pa. Cmwlth. 2003).
P.N. cites In re S.H. for the proposition that a fact finder must state an
objective basis for his or her credibility determinations when he or she has not seen
the witness testify and thus did not have the opportunity to assess the witness’s
demeanor. In the present matter, we acknowledge that the ALJ who wrote the
proposed adjudication was not the same ALJ who presided at the hearing. As to this
point, there is no dispute. However, ALJ Bobeck, who wrote the proposed
adjudication, reviewed the record, and provided more than mere conclusory
statements in support of his credibility determinations.
In his proposed adjudication, ALJ Bobeck provided considerable
narrative as to whether, and why, he found each witness credible or not credible. For
example, in regard to Child’s testimony, ALJ Bobeck wrote:
She was able to recall specific details and did not exhibit any sort of
coaching. In particular, her statements are consistent with her earlier
statements made during the [f]orensic [i]nterview in November of
2018. [Child’s] statements are not contradicted by any evidence in the
record except for [P.N.’s] own statements that he never showed [Child]
pornography and forced her to perform oral sex on him.
CR-90, 91.
In addition, ALJ Bobeck summarized P.N.’s testimony, noting that it
was “directly contradicted by the subject child’s credible testimony that the abuse
occurred.” CR-91. These are just two examples of the analysis that ALJ Bobeck
provided in regard to the testimony of record. However, he did the same in regard
to the testimony of the other witnesses, explaining why he did or did not find them
credible. Thus, he offered substantially more than mere conclusory statements in
support of his credibility determinations. Further, in the present matter, there was
13
the unique circumstance that the individual who ultimately signed off on ALJ
Bobeck’s proposed adjudication on behalf of BHA, i.e., ALJ Dudley, was the same
person who had presided at the hearing when he was an ALJ. And, in his former
role, ALJ Dudley had, in fact, had the opportunity to witness the demeanor of the
witnesses. Accordingly, we see no error in the credibility determinations leading to
BHA’s adoption of the ALJ’s recommendations which affirmed the indicated report
of child abuse against P.N.
Further, we reject P.N.’s argument that the ALJ ignored evidence that
was favorable to him. The testimony of his character witnesses added little to his
argument, as none of the testimony offered information relative to the veracity of
Child’s testimony, and P.N.’s behavior in public provided no tangible support for
his assertion that he did not sexually abuse Child in private. In addition, we note
that “[a]n ALJ is not required to address all the evidence that is presented. A.P. v.
Dep’t of Pub. Welfare, 98 A.3d 736, 744 (Pa. Cmwlth. 2014); Pistella v. Workmen’s
Comp. Appeal Bd. (Samson Buick Body Shop), 633 A.2d 230, 234 (Pa. Cmwlth.
1993) (factfinder must “make crucial findings of fact on all essential issues necessary
for [appellate] review . . . but is not required to address specifically each bit of
evidence offered”).” Carbon Cnty. Child. & Youth Servs. v. Dep’t of Pub. Welfare
(Pa. Cmwlth., No. 533 C.D. 2014, filed Oct. 19, 2015), slip op. at 31.7
7
Coincidentally, Carbon County Children and Youth Services was another case involving
the issue of whether ALJ Bobeck, specifically, could render a proposed adjudication when he was
not the ALJ who had presided over the hearing. We determined there:
In short, the [BHA] is the ultimate factfinder, not the ALJ. Here, [BHA]
adopted the credibility determinations of ALJ Bobeck, who issued the
recommended adjudication. ALJ Bobeck did not observe the witnesses testify, but
this does not mean that he could not make credibility determinations. It means only
(Footnote continued on next page…)
14
As to P.N.’s contention that the testimony of Clinical Social Worker
went beyond her authority as a licensed clinical social worker and that she was not
permitted by law to make medical/physical conclusions or render an opinion about
sexual assault, we disagree. First, we note that Clinical Social Worker merely
confirmed that Child’s digestive issues were not unusual for someone who has
experienced sexual abuse. She did not opine as to whether the abuse occurred but
merely testified to the fact that such a physical reaction could be consistent with
same, and she permissibly relied upon her professional experience, over an 18-year
period, to make such a statement. There was nothing impermissible or inappropriate
about Clinical Social Worker’s testimony in this regard, and while important to
CYS’s case, this testimony was not obviously dispositive to the outcome. Further,
the Commonwealth’s Administrative Agency Law8 reads as follows:
“Commonwealth agencies shall not be bound by technical rules of evidence at
agency hearings, and all relevant evidence of reasonably probative value may be
received. Reasonable examination and cross-examination shall be permitted.” 2
Pa.C.S. §505 (relating to evidence and cross-examination). Clinical Social Worker’s
testimony was relevant and offered probative value, and she was subject to cross-
examination. See CR-144. Given the relaxed evidentiary standards applicable in
that he had to explain his credibility determinations by identifying his reasons for
accepting or rejecting a particular witness’s testimony.
Carbon Cnty. Child. & Youth Servs. v. Dep’t of Pub. Welfare (Pa. Cmwlth., No. 533 C.D. 2014,
filed Oct. 19, 2015), slip op. at 26. We added: “Notably, in Casne v. Workers’ Compensation
Appeal Board (Stat Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008), this Court further
explained that ‘even where [the factfinder] has based a credibility determination on a cold record,
substantial deference is due.’” Carbon Cnty. Child. & Youth Servs., slip op. at 26.
8
Administrative Agency Law, 2 Pa.C.S. §§501-508, 701-704.
15
administrative settings, and the nature of Clinical Social Worker’s testimony, the
ALJ and BHA did not err by affording the testimony its proper consideration.
Based on our review of the law and the evidence of record in the present
matter, we see no error in BHA’s order affirming the indicated report of child abuse
by CYS.
IV. Conclusion
For the reasons above, we affirm the February 24, 2020 order of BHA
denying P.N.’s appeal to expunge the January 4, 2019 indicated report of child abuse
filed by CYS.
______________________________
J. ANDREW CROMPTON, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
P.N., : CASE SEALED
Petitioner :
:
v. : No. 302 C.D. 2020
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 27th day of April 2021, the February 24, 2020 order
of the Department of Human Services is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge