Monday, August 11, 2008

child abuse - expungement - lack of supervision - noaccidental serious injury

Fayette County CYS v. DPW - Cmwlth. Court - 08/11/08 - UNREPORTED MEM. DECISION

The court affrmed DPW's grant of an expungement petition. The case involved the mother leaving a 4-month child alone for 5 minutes, during which time the child got out of a car seat and burned its hand on a nearby heater. The parties stipulated that the mother did not act intentionally.

The court found that mother's acts did not satisfy the legal standard for child abuse. 23 Pa. C.S. sec. 6303(a) requires an "injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk.” Mother's acts were not intentional, as stipulated by the parties.

Nor did mother's leaving the child alone, under the circumstances, constitute "serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision ...which endangers a child’s life or development or impairs the child’s functioning. 23 Pa. C.S. §6303(b)(1)(iv). The court agreed with DPW that the child was the not the victim of a “prolonged or repeated lack of supervision when he was only left for five minutes and there was no evidence that the child was not cared for properly.

CYS argued that it had established child abuse consisting of a “non-accidental serious physical injury” under 23 Pa. C.S. §6303(b)(1)(i). The court rejected this, appling the rule in P.R. v. DPW, 569 Pa. 123, 801 A.2d 478 (2002), where the Supreme Court held that child abuse was established “upon a showing by the agency, through substantial evidence, that the injury resulted from criminal negligence.”

It defined criminal negligence as follows: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

"Applying the standard from P.R., Mother’s act or failure to act in this case did not rise to the level of criminal negligence. As the ALJ noted, “[l]eaving the child for a brief (and not prolonged) period of time cannot be construed as a gross deviation from the standard of care that a reasonable person would observe. The mother could not have reasonably believed the child could have extricated himself from the seat and fallen into the heater.” We agree then that Mother’s act or failure to act did not cause a “non-accidental” serious physical injury to subject child."