IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J. R., : CASES SEALED

Petitioner :

:

v. : No. 61 C .D. 201 7

: Department of Human Services, :

Respondent :

T. H., :

Petitioner :

:

v. : No. 86 C.D. 2017

: Submitt ed: September 1 4, 2017 Department of Human Services, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. M c CULLOUGH, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FIL ED: 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 determination s and findings of fact.2

Upon remand , BHA did not rem ove Petitioners from the ChildLine Registry

(Registry) because they di d 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 p erson responsible for the wel fare of a child is p resumed 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 res idence to visit C hild. W hen 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 wa s taken to the doctor several times for excessive

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

bruis e 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 H ospital

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

Syndrome, ” having exhibited retinal hemorrhages, bilateral su bdural 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 agai nst 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 o n 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 Fucc i (Fucci), the CYS

caseworker who was later assigned to Petitioner s’ 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 indicate d 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 protecti ve 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.)

C ommon 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 R egistry, arguing that there existed no clear and convincing evidence as to

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

hearing before the A dministrative Law Judge (A LJ ) , but each submitted transcripts

and exhibits fr om the dependency action in the common pleas court

.

At the hearing, the Department acknowledged that it could not

positively identify which of the Petitioner s h ad 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 a cts or omissions of the parent or other person responsible for the welfare of the child shall be prima5 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 Petitioner s a ttempted 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 w ho contact ed CYS in the first place

with concerns that Ch ild 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 duri ng the relevant time period whe n the abuse would have

take n 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 Dep artment 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

Sec t ion 6381(d) presumption had t o be overcome by each caretaker individually

present ing sufficient evidence that they were not r esponsible for the abuse. The

ALJ determined that neither Petitioner presented sufficient evidence to rebu t the

presumption and denied each of their separ ate administrative appea ls. BHA

adopted the ALJ’s recommended decision, and P etitioners then separat ely

petitioned this Court for review.6 In T.H. , w e 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 the re was a

conf lict 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

, th at the ALJ was correct in

applying the Section 6381(d) presumption and the principles in I n 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 b y 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 succe ssfully shifted the burden to Petitioners to rebut th at

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 o rder (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 count ervailing competent, substantial evidence sufficient to rebut the

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

Mothe r presented, the opinion stat ed:

[Mother] argues she did not commit abuse and points to her taking th e 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 C YS on December 24, 2016 to report her concerns about [Father] possibly abusing the subject child, she the n 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 conc erns 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 th e 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 determinat ion of whether [Petitioners] were properly indicated for child abuse. Therefore, the evidence presented on behalf of [Mother] has f ailed to rebut the presumption.

(Mother’s R.R. at 597a.) With r egard 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 had8 little contact with the subject chi ld 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 presum

ption.

(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 r egarding conflicting evidence entitled them to an

ev identiary 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. Lev y 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 f inal 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.” Lev

y , 94 A.3 d at 442 (citing Emery Worldwide v. Unemployment

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

. O ur

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

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

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

conduct an evidentiary hearing.

Accordi ngly, BHA properly denied Petitioners’ request for an

e videntiary hearing on remand.

III.

Petitioners a lso separately argue 3 th at BHA erred by determining that

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

presented, that they each were perpetrat ors of Child’s abuse

. 4

3 Mother argue s that the Department retains the burden to prove substantial evidence in order to maintain a repor t against Petitioners. We already held in T.H. that it was appropriate to apply the reasoning of In Re L.Z. and th e 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 D epartment 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 ple as 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 parent s 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 cr edible 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, [Mothe r] 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 in sufficient 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 th is broader interpretation that the ALJ used in the Adjudication here.

T.H. , 145 A.3d at 1201. We

, therefore

, decline to addr ess this issue again, as we already decided that BHA was not obligated to come to the sam e result as the common pleas court

.

4 Fa ther 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 th at . . . [C]hild suffered injur [ies] that would not ordinarily be sustained but for the acts or omissio ns 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. , 1 45 A.3d at 1201

- 02. Furthermore, we stated that “[t]his satisfie[d] CYS’s burden of pr oof through the use of the presumption.” Id. a t 1202.

B ecause this Court already decided this issue, t here 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, i n explain ing why Mother was not credible and did not

overcome the presumption, t he 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. Bec ause 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

.

W e may not reweigh or examine credibility de terminations. R.J.W. v.

Department of Human Services , 139 A.3d 270, 280 (Pa. Cmwlth. 201 6).

Therefore, based on those findings

, the ALJ properly determined that neither of the

Petitioner s presented sufficient evidence to rebut the presumption.12 Accordin gly, f

or the foregoing reasons, we affirm BHA’s December

20, 2 016 decision denying Petitioner s ’ appeals to have their Registry reports

expunged.

__________________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNS YLVANIA

J. R., :

Petitioner :

:

v. : No. 61 C .D. 201 7

: 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