J.K.
v. Dept. of Human Services – Cmwlth. Court – January 30, 2018
Finding
of abuse reversed where
* on remand, ALJ made opposite
findings from his initial findinds, based on same record
* child’s testimony was tainted
Initial
decision appealed and remanded, because of change in standard of proof from
clear+convincing to preponderance, G.V. v. DPW, 91 A.3d 667 (Pa. 2014, GV II).
On remand, the same ALJ did a complete about face (or volte face, as the Court stated),
without any “articulated, reasoned basis”
for doing so. The intial objections to
the child’s testimony (vague, conclusory, lacking in precision, etc.) were not
obviated by the application of a different standard of proof.
In
addition, the court held that the evidence showed that the child was not
competent to testify because her testimony was tainted.
“Examples of relevant factors showing “some evidence” of taint,
are as follows: (1) the age of the child; (2) the existence of a motive hostile
to the defendant on the part of the child’s primary custodian; (3) the
possibility that the child’s primary custodian is unusually likely to read
abuse into normal interaction; (4) whether the child was subjected to repeated
interviews by various adults in positions of authority; (5) whether an
interested adult was present during the course of any interviews; and (6) the
existence of independent evidence regarding the interview techniques employed.
Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006) (citing Delbridge,
855 A.2d at 41). The list is not exhaustive; further, the party asserting taint
need not satisfy each and every factor.... The uncontroverted and accepted
evidence of record establishes that every factor is applicable to this case.
and
that “the Child’s testimony was tainted.
A witness whose testimony has been deemed tainted must be dismissed as
incompetent.”
