J.W., et al. v. Dept. of Public Welfare - Cmwlth. Court - December 1, 2010
http://www.pacourts.us/OpPosting/Cwealth/out/408CD10_12-1-10.pdf
The court upheld the challenge of grandmother, father and father's paramour to DPW indicated reports of abuse to an infant child, because DPW's application of the presumption under 23 Pa. C.S. §6381(d) was "waived because it was not raised as an issue at the hearing, thereby depriving Petitioners of a meaningful opportunity to rebut the presumption at the hearing."
Post-hearing, the ALJ applied the sec. 6381(d) presumption, which states that "Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child." The court cited a similar prior holding in In C.E. v. DPW, 917 A.2d 348 (Pa. Cmwlth. 2007).
The court also held that "[e]ven if the presumption had not been waived, Petitioners correctly argue that it does not apply in situations where a child was in the care of multiple persons during the period when the abuse occurred and it is not possible to determine which person actually abused the child."
