Thursday, July 12, 2012

child abuse - expungement - standard of proof - clear and convincing

G.V. v. DPW - Cmwlth. Court - July 12, 2012 (5-2)

The "clear and convincing" standard must apply to child abuse registry cases, since basing an indicated report on substantial evidence, as was done by the ALJ and as set forth in the Law, "does not adequately protect the rights of the accused perpetrator given the nature of the proceedings and the adverse consequences which flow from a finding of abuse and registration in the statewide Child[Line] Registry." J.S. v. Department of Public Welfare, 528 Pa. 243, 596 A.2d 1114 (1991). The standard of proof in expungement proceedings must be one of clear and convincing evidence.

Article I, Section 1 of the Pennsylvania Constitution provides: "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting . . . reputation . . . ." Pa. Const. art. I, § 1. Because reputation is a protected fundamental interest under Article I, Section 1 of the Pennsylvania Constitution, the loss of reputation, the stigma associated with being named a child abuser, and the effect of such a determination on one's ability to gain employment all demand a higher standard of proof in order to satisfy due process.

The court applied a balancing test under R. v. Department of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994) and Mathews v. Eldridge, 424 U.S. 319, 335 (1976), using the following factors to be considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‟s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements will entail.

After weighing these factors, the Court held that "substantial evidence must support a determination of whether child abuse has occurred, but there must be clear and convincing evidence of child abuse to maintain statutorily-designated information from an indicated report on the ChildLine Registry."