IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J. R., : CASES SEALED

Petitioner :

:

v. : No. 61 C.D. 2017

:

Department of Human Services, :

Respondent :

T. H., :

Petitioner :

:

v. : No. 86 C.D. 2017

: Submitted: September 14, 2017

Department of Human Services, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: October 5, 2017

Before us are the separate appeals filed by T.H. (Mother) and J.R. 

(Father) (collectively, Petitioners), the parents of S.R. (Child), who petitions for 

review from the order of the Department of Human Services (Department), Bureau 

of Hearings and Appeals (BHA) on remand from our decision in T.H. v. 

Department of Human Services, 145 A.3d 1191 (Pa. Cmwlth. 2016) (T.H.), where 

we directed a new opinion to make credibility determinations and findings of fact. 
2

Upon remand, BHA did not remove Petitioners from the ChildLine Registry 

(Registry) because they did not overcome the presumption set forth in Section 

6381(d) of the Child Protective Services Law (CPSL), 23 Pa.C.S. § 6381(d), that 

any person responsible for the welfare of a child is presumed responsible for any 

abuse of that child. For the following reasons, we affirm.

I.

Child was born on September 16, 2012. At that time, parents were 

unmarried and did not reside together, although Father stayed every other weekend 

at Mother’s residence to visit Child. When Child was approximately four months 

old, Mother noticed that Child had some bruises and took photographs, notifying 

Pike County Children and Youth Services (CYS) of suspected abuse by Father. 

Following this discovery, Child was taken to the doctor several times for excessive 

vomiting. At the last of these visits, Dr. LaFranco, Child’s pediatrician, observed a 

bruise on Child’s pelvic region, which Mother purportedly believed to be diaper 

rash. Upon closer examination and the discovery of another bruise on Child’s 

neck, Dr. LaFranco called CYS and Child was transported to Geisinger Hospital 

where an array of tests was performed. Child was diagnosed with “Shaken Baby 

Syndrome,” having exhibited retinal hemorrhages, bilateral subdural hematoma 

and six fractured ribs. Doctors opined that Child was shaken in the days prior to 

December 24, 2012, at which time the ribs were fractured.
3

Shelter care was granted to CYS, Child was deemed dependent, and 

CYS filed indicated reports against both Petitioners, naming them as perpetrators 

of child abuse.1

A dependency hearing before the Pike County Court of Common 

Pleas (common pleas court) was conducted. At this hearing, multiple testimonies 

were taken, including that of Jessica Wright (Wright), the initial CYS caseworker 

on Petitioners’ case. Wright testified that Mother called her on January 2, 2013,

and said that “father couldn’t be left alone with the child.” (Mother’s Reproduced 

Record (R.R.) at 307a.) The testimony of Angela Fucci (Fucci), the CYS 

caseworker who was later assigned to Petitioners’ case, was also taken. Fucci 

stated that when Mother spoke to her on January 21, 2013, she told her that Father 

had visited Child as recently as that very weekend. (Mother’s R.R. at 277a.) 

Father also testified to the following:

Q: Sir, if [Mother] takes a shower are you alone with 

[Child]?

A: Yes.

Q: If she fixes his bottles are you alone with [Child]?

A: Yes.

Q: When she walks the dogs are you alone with [Child]?

 

1 The Department maintains indicated reports of child abuse “if an investigation by the 

department or county agency determines that substantial evidence of the alleged abuse by a 

perpetrator exists based on any of the following: (i) [a]vailable medical evidence[,] (ii) [t]he 

child protective service investigation[,] or (iii) [a]n admission of the acts of abuse by the 

perpetrator.” 23 Pa.C.S. § 6303(a).
4

A: Yes.

(Mother’s R.R. at 435a.)

Common pleas court ordered that Child be returned to Mother and 

dependency status was lifted because the judge was never able to determine which 

parent was the perpetrator of the abuse. However, the Department maintained the 

indicated reports in the Registry against both Petitioners. The Department 

appealed to the Superior Court, which affirmed the common pleas court order 

returning Child to Mother’s custody.

Petitioners filed separate appeals to have their reports expunged from 

the Registry, arguing that there existed no clear and convincing evidence as to 

which parent was the perpetrator of the abuse. Petitioners did not testify at the 

hearing before the Administrative Law Judge (ALJ), but each submitted transcripts 

and exhibits from the dependency action in the common pleas court.

At the hearing, the Department acknowledged that it could not 

positively identify which of the Petitioners had committed physical abuse of the

Child. However, the Department argued that the presumption set forth in Section 

6381(d) of the CPSL should apply. Pursuant to that section:

(d) Prima facie evidence of abuse. – 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 
5

facie evidence of child abuse by the parent or other 

person responsible for the welfare of the child.

23 Pa.C.S. § 6381(d).

Each of the Petitioners attempted to establish that the other was 

responsible for the abuse. Father presented evidence that he did not have sufficient 

opportunity to abuse Child, as he was never alone with him. Mother, on the other 

hand, presented evidence that she was the one who contacted CYS in the first place 

with concerns that Child had been abused by Father, and that it was she who took 

Child to his various doctor appointments.

The ALJ reviewed the evidence and determined that Petitioners were 

Child’s sole caretakers during the relevant time period when the abuse would have 

taken place because Mother had primary custody of Child and Father had visitation 

and custodial rights to visit Child every other weekend. He went on to find that, 

notwithstanding the fact that the Department was unable to establish who abused 

the child, our Supreme Court held in In re L.Z., 111 A.3d 1164 (Pa. 2015), that the 

Section 6381(d) presumption had to be overcome by each caretaker individually 

presenting sufficient evidence that they were not responsible for the abuse. The 

ALJ determined that neither Petitioner presented sufficient evidence to rebut the 

presumption and denied each of their separate administrative appeals. BHA 

adopted the ALJ’s recommended decision, and Petitioners then separately 

petitioned this Court for review.
6

In T.H., we determined that because each Petitioner accused the other 

of abusing Child, there was conflicting evidence regarding which parent was 

caring for Child when the abuse occurred. We also determined that there was a 

conflict regarding whether each parent had a reason to question whether leaving 

Child with the other parent was safe. Ultimately, we held that the ALJ did not 

resolve these conflicts. We acknowledged, though, that the ALJ was correct in 

applying the Section 6381(d) presumption and the principles in In re L.Z. Citing In 

re L.Z., we noted that “[t]he evaluation of the validity of the presumption . . . 

rest[s] with the [fact finder] evaluating the credibility of the prima facie evidence 

presented by the CYS agency and the rebuttal of the parent or responsible person.” 

T.H., 145 A.3d at 1204 (citing In re L.Z., 111 A.3d at 1185). We held that CYS 

did, in fact, meet its initial burden of proof using the Section 6381(d) presumption, 

and thereby successfully shifted the burden to Petitioners to rebut that

presumption. We also held that:

In light of the conflicting rebuttal evidence presented by 

Mother and Father, the Bureau had to determine whether 

that evidence offered by Mother and Father rebutted the 

presumption. Because these issues were not resolved by 

the fact finder, it is necessary to remand this matter for a 

new determination.

T.H., 145 A.3d at 1204. We then issued an order (Remand Order) vacating BHA’s 

order and remanded the matter “for a new decision that [would] include credibility 

determinations and findings of fact.” Id.

On remand, BHA issued an opinion which included findings of fact 

per our instruction. Among these was a finding that “[n]either [Petitioner] ha[s] 
7

submitted countervailing competent, substantial evidence sufficient to rebut the 

presumption.” (Mother’s R.R. at 591a.) Specifically, with regard to the evidence 

Mother presented, the opinion stated:

[Mother] argues she did not commit abuse and points to 

her taking the subject child to numerous medical 

appointments for diagnosis and treatment and contacting 

CYS to report her concerns the subject child was being 

abused as evidence of the same. However, the evidence 

submitted demonstrated that while [Mother] contacted 

CYS on December 24, 2016 to report her concerns about 

[Father] possibly abusing the subject child, she then 

continued to spend time with [Father] and allow the 

subject child to sit with [Father] for the next three (3) 

weeks. If [Mother] had legitimate concerns about 

[Father] committing child abuse on the subject child it is 

unlikely that she would have allowed the subject child to 

be with [Father] until an investigation could be 

completed. By doing so she would have been 

committing physical child abuse by omission. 

Furthermore, neither her taking the subject child for 

medical treatment, nor her contacting CYS regarding 

suspected abuse absolves her from abusing the subject 

child as it is not uncommon for the person committing 

the abuse to try and deflect the blame to someone else. 

Finally, while [Mother] argues no prior court has 

determined that she committed child abuse, this argument 

fails and is not dispositive of whether the undersigned, 

who unlike the dependency court is tasked with making a 

determination of whether [Petitioners] were properly 

indicated for child abuse. Therefore, the evidence 

presented on behalf of [Mother] has failed to rebut the 

presumption.

(Mother’s R.R. at 597a.) With regard to Father’s evidence, BHA wrote:

[Father] argues he did not commit abuse and points to the 

lack of opportunity he had to commit abuse as he had 
8

little contact with the subject child and when he did have 

contact, [Mother] was present. However, at the 

Dependency hearing, [Father] admitted that at times, he 

was alone with the subject child; therefore, [Father]

clearly had the opportunity to commit the abuse. 

Furthermore, the simple fact that [Mother] was present 

the majority of the time [Father] visited with the subject 

child does not preclude [Father] from abusing the subject 

child. Since [Father] admittedly was alone with the 

subject child at times when the abuse occurred he clearly 

had opportunity to commit the abuse. Therefore, 

[Father’s] argument completely fails and is insufficient to 

rebut the presumption.

(Mother’s R.R. at 596-97a.) Accordingly, BHA denied Petitioners’ separate 

appeals. Petitioners then separately appealed to this Court.

2

II.

Initially, Petitioners contend that our Remand Order directing BHA to 

make credibility determinations regarding conflicting evidence entitled them to an 

evidentiary hearing where they could present new testimony.

Where a case is remanded for a specific and limited purpose, “issues 

not encompassed within the remand order” may not be decided on remand. Levy v. 

Senate of Pennsylvania, 94 A.3d 436, 442 (Pa. Cmwlth. 2014) (citing In re 

Independent School District Consisting of the Borough of Wheatland, 912 A.2d 

 

2 When a petitioner challenges a decision by an administrative agency, our scope of 

review is limited to “determining whether or not the final adjudication was in accordance with 

law, constitutional rights were violated, or all necessary findings of fact were supported by 

substantial evidence.” Holloway v. Department of Public Welfare, 445 A.2d 1329, 1331 (Pa. 

Cmwlth. 1982).
9

903, 908 (Pa. Cmwlth. 2006)). A remand does not grant a litigant a “second bite of 

the apple.” Levy, 94 A.3d at 442 (citing Emery Worldwide v. Unemployment 

Compensation Board of Review, 540 A.2d 988, 990 (Pa. Cmwlth. 1988)). Our 

Remand Order only directed that BHA issue “a new decision that [would] include 

credibility determinations and findings of fact.” T.H., 145 A.3d at 1204. No 

evidentiary hearing was ordered. BHA complied with our Remand Order not to 

conduct an evidentiary hearing.

Accordingly, BHA properly denied Petitioners’ request for an 

evidentiary hearing on remand.

III.

Petitioners also separately argue3that BHA erred by determining that 

they did not sufficiently rebut the presumption, with the evidence they separately 

presented, that they each were perpetrators of Child’s abuse.

4

 

3 Mother argues that the Department retains the burden to prove substantial evidence in 

order to maintain a report against Petitioners. We already held in T.H. that it was appropriate to 

apply the reasoning of In Re L.Z. and the Section 6831(d) presumption in this case. 145 A.3d at 

1200. Per that line of reasoning, it is the Petitioners, not the Department, who hold the burden of 

rebutting the presumption, which the Department has already succeeded in holding against 

Petitioners.

Mother also argues that because the Department was unable to prove that she was the 

perpetrator of abuse in the common pleas court decision to lift Child’s dependency status and 

return Child to Mother’s custody, it should have been unable to do so at the expungement 

proceeding before BHA and, therefore, BHA abused its discretion by finding that the 

Department established a prima facie case. Again, we addressed this in T.H. when we held:

[I]t is unclear from the dependency hearing transcript or common 

pleas’ 1925(a) opinion whether common pleas applied or 

considered the presumption set forth in Section 6381(d) in making 

(Footnote continued on next page...)
10

Once the Section 6381(d) presumption is established, it may be 

rebutted by presenting evidence that the child was not in the parents’ care when the 

injuries were suffered or that the parents had no reason to question their decision to 

leave the child in the other person’s care. In re L.Z., 111 A.3d at 1185-86. The 

ALJ found that the Father was not credible and did not overcome the presumption 

because:

[Father] . . . points to the lack of opportunity he had to 

commit abuse as he had little contact with the subject 

child and when he did have contact, [Mother] was 

present. However, at the Dependency hearing, [Father] 

admitted that at times, he was alone with the subject 

child; therefore, [Father] clearly had the opportunity to 

commit the abuse. . . . Therefore, [Father’s] argument 

completely fails and is insufficient to rebut the 

presumption.

 

(continued...)

these determinations. Even if it had done so, the Supreme Court 

clarified and broadened the interpretation in L.Z. after common 

pleas issued its 1925(a) opinion, and it was this broader 

interpretation that the ALJ used in the Adjudication here.

T.H., 145 A.3d at 1201. We, therefore, decline to address this issue again, as we already decided 

that BHA was not obligated to come to the same result as the common pleas court.

4 Father argues that BHA erred because it did not have evidence that he was a perpetrator 

of abuse. However, as we held in T.H., “CYS presented ‘evidence that . . . [C]hild suffered 

injur[ies] that would not ordinarily be sustained but for the acts or omissions of [Child’s] 

parent[s]’ and, therefore ‘establish[ed] that [Child’s] parent[s] . . . perpetrated that abuse unless 

the parent . . . rebuts the presumption.’” T.H., 145 A.3d at 1201-02. Furthermore, we stated that 

“[t]his satisfie[d] CYS’s burden of proof through the use of the presumption.” Id. at 1202. 

Because this Court already decided this issue, there is no need for us to examine it further.
11

(Mother’s R.R. at 596a.) Because Father’s rebuttal evidence was contradictory to 

his past testimony, the ALJ did not find Father credible and, therefore, he failed to 

rebut the presumption against him.

Similarly, in explaining why Mother was not credible and did not 

overcome the presumption, the ALJ stated:

[Mother] . . . points to her taking the subject child to 

numerous medical appointments for diagnosis and 

treatment and contacting CYS to report her concerns the

subject child was being abused as evidence [that she did 

not commit abuse]. However, the evidence submitted 

demonstrated that while [Mother] contacted CYS on 

December 24, 2016 to report her concerns about [Father] 

possibly abusing the subject child, she then continued to 

spend time with [Father] and allow the subjected child to 

visit with [Father] for the next three (3) weeks.

(Mother’s R.R. at 597a.) This evidence speaks to whether or not Mother had 

reason to trust leaving Child in Father’s care. Because there is countervailing 

evidence against Mother that she had reason to question leaving Child in Father’s 

care but did so anyway, the ALJ found that she was not credible and did not rebut 

the presumption.

We may not reweigh or examine credibility determinations. R.J.W. v. 

Department of Human Services, 139 A.3d 270, 280 (Pa. Cmwlth. 2016). 

Therefore, based on those findings, the ALJ properly determined that neither of the

Petitioners presented sufficient evidence to rebut the presumption.
12

Accordingly, for the foregoing reasons, we affirm BHA’s December 

20, 2016 decision denying Petitioners’ appeals to have their Registry reports 

expunged.

__________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J. R., :

Petitioner :

:

v. : No. 61 C.D. 2017

:

Department of Human Services, :

Respondent :

T. H., :

Petitioner :

:

v. : No. 86 C.D. 2017

:

Department of Human Services, :

Respondent :

O R D E R

AND NOW, this 5

th day of October , 2017, the December 20, 2016 

order of the Bureau of Hearings and Appeals in the above-captioned matter is 

affirmed.

__________________________________

DAN PELLEGRINI, Senior Judge