Thursday, May 23, 2013

Child abuse expungement - nunc pro tunc appeal - hearsay - "perpetrator" - etc.

Beaver Co,. CYS v. DPW – Cmwlth Court. – May 23, 2013


Nunc pro tunc appeal allowed
ALJ properly allowed a nunc pro tunc appeal based on In C.S. v. Department of Public Welfare, 879 A.2d 1274, 1280 (Pa. Cmwlth. 2005), the Court held that notice letters stating that a perpetrator “may have a right to a hearing,” on whether to amend or destroy an indicated report the perpetrator believes to be inaccurate, “do not satisfy the exacting requirements of 23 Pa. C.S. § 6338(a) and, thus, this breakdown in the administrative process.  In the instant case, the notice said that R.G. "will have the right to appeal."   The court held that the instant notice fell within the C.S. rule.

Inadequacy of CYS evidence
CYS did not present any witnesses at the hearing regarding the report of the alleged sexual abuse of A.A.   There was no audio or video recording of the interview by CYS of A.A. entered into evidence at the hearing.  CYS did attempt to enter into evidence pages fifty (50) to seventy-nine (79) from a transcript of a hearing in a separate expunction appeal addressing allegations of physical abuse of A.A. by R.G.  CYS did not present evidence to establish that A.A. was emotionally unavailable to testify. R.G. objected to the admission of the transcript on the grounds that sexual abuse was not before the ALJ in the earlier hearing, and that a proper cross-examination on the issue of sexual abuse had not taken place.

R.G. testified and presented the testimony of C.B., his paramour and A.A.’s grandmother, and the testimony of C.G., his paramour’s daughter and A.A.’s Aunt. On May 9, 2012, the ALJ issued an opinion and order recommending that the Bureau sustain R.G.’s appeal seeking to expunge the indicated report of child abuse. The ALJ concluded that the earlier hearing transcript was inadmissible, because A.A. was not emotionally unavailable and CYS failed to advise R.G. that it intended to use the hearing transcript as evidence and failed to list the hearing transcript as an intended exhibit in the Unified Pre-Hearing Filing, as required by the Standing Practice Order for Bureau Appeals.

The ALJ also concluded that because there was no admission, no eyewitness, and no medical evidence, whether or not the appeal was sustained had to be resolved by examining the credibility of the witnesses.  Due to the absence of testimony from the alleged child victim and the absence of evidence to corroborate the hearsay statements of the child in the CY-48 report, the ALJ concluded that CYS failed to meet its burden of demonstrating by substantial evidence that A.A. was the victim of sexual abuse by R.G.

No proof that R.G was a "perpetrator"
Separately, the ALJ concluded that CYS failed to establish that R.G. met the definition of perpetrator as provided by the CPS Law and its implementing regulations. The ALJ found that R.G. was not the parent of A.A., that CYS had not established that R.G. was responsible for the welfare of A.A., and that the CY-48 Report established that R.G. and A.A. did not reside in the same household at the time of the report and no evidence was presented to establish that they resided in the same household at the time of the alleged abuse in or around 2005.   There is no evidence in the record to establish that R.G. is a perpetrator as defined by the CPS Law. The CY-48 report establishes that A.A. and R.G. did not reside in the same household at the time of the report, and there was no evidence offered to demonstrate that the two had resided together in 2005. R.G. is the paramour of A.A.’s grandmother, not one of A.A.’s parents. CYS also did not present any evidence to show that R.G. was responsible for the welfare of A.A.6 The ALJ did not err in concluding that CYS failed to establish that R.G. was a perpetrator as defined by the CPS Law.

CYS brief "failied to include a single citation of authority
We note that in its brief in support of the issues raised on appeal, CYS has failed to include a single citation of authority, and while only those authorities “deemed pertinent” are required by our Rules of Appellate Procedure, see Pa. R.A.P. 2119(a), we do question why CYS has chosen to appeal this matter if it does not deem a single law or decision of the courts of this Commonwealth or these United States pertinent to its appeal.

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