IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J. G., : SEALED CASE

Petitioner :

: No. 381 C.D. 2018

v. : Submitted: March 14, 2019

: 

Department of Human Services, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge 

HONORABLE ANNE E. COVEY, Judge (P.)

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: April 23, 2019

I. Introduction

In this sealed child abuse expunction case, J.G. (Mother) petitions for 

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

Hearings and Appeals (BHA), that denied her appeal from an indicated report 

identifying Mother and her husband, R.W. (Stepfather), as perpetrators of child 

abuse as defined by the Child Protective Services Law (CPSL), 23 Pa. C.S. §§6301-

6386. The report identified Mother’s then six-year-old son, J.P. (Child), as the 

victim of the abuse. The BHA adopted, in its entirety, a recommendation by Barbara 

Shadie Nause (ALJ Nause) to deny Mother’s appeal on the basis that the County of 

Philadelphia Department of Human Services (County DHS) successfully met its 

burden of producing substantial evidence of Mother’s physical abuse of Child.
2

Mother contends ALJ Nause’s recommendation, which the BHA 

adopted, is legally erroneous and unsupported by substantial evidence. In particular,

Mother asserts ALJ Nause erroneously applied the rebuttable evidentiary 

presumption of abuse in Section 6381(d) of the CPSL, 23 Pa. C. S. §6381(d). Mother 

also argues that ALJ Nause’s conclusion that Child’s injury resulted from child 

abuse, rather than a fall at school, was not supported by substantial evidence. Rather, 

Mother asserts the ALJ based her decision on a clear but unstated finding that Child’s 

inconsistent reports of abuse were credible.

The Department, however, contends Mother waived her right to 

challenge the BHA’s January 19, 2018 order on the merits by failing to file a petition 

for review within 30 days of that order. Further, the Department asserts Mother 

waived the right to challenge the Secretary’s February 7, 2018 order denying 

reconsideration by failing to address the Secretary’s denial of reconsideration in her 

petition for review or brief.

For the reasons that follow, we dismiss Mother’s petition for review of 

the BHA’s order denying her administrative appeal.

II. Background

In July 2017, based upon its investigation, County DHS filed an 

indicated report of child abuse identifying Mother and Stepfather as perpetrators of 

physical abuse of Child. In response, Mother and Stepfather filed appeals. In 

November 2017, ALJ Joseph Woitko (ALJ Woitko) presided over an evidentiary 
3

hearing on the appeals. In lieu of submitting briefs, the parties presented closing 

arguments. In December 2017, the record closed.

In January 2018, ALJ Nause issued a recommended adjudication and 

made the following findings. Child, six years old at the time of the alleged abuse, 

resided with Mother and Stepfather. In May 2017, County DHS received a referral 

alleging Child had a left femur fracture as a result of being beaten by Mother and 

Stepfather. County DHS assigned Intake Caseworker John Garvin (Caseworker) to 

investigate the alleged abuse of Child. Caseworker proceeded to a hospital and 

interviewed Child. He also interviewed Mother, Stepfather, and Child’s attending 

nurse. At the hospital, Child disclosed, without prompting, that Mother and 

Stepfather beat him.

During her interview with Caseworker, Mother disclosed that Child 

experienced pain for approximately three weeks prior to his hospitalization. Mother 

denied beating Child. However, she acknowledged that she used physical discipline 

in the household and that she administered the discipline. During his interview, 

Stepfather denied the allegations of abuse against him.

Caseworker also interviewed individuals from Child’s school. 

According to school personnel, Child fell on May 12, 2017.

At the hospital, Caseworker observed a full-length cast, from hip to 

ankle, on Child’s left leg. Prior to being placed in the cast, Child could not walk. 

Child’s maternal grandmother carried him to the hospital. While in the cast, Child 
4

could not bathe without assistance or attend school. As a result of his injuries, 

County DHS placed Child with his biological father, T.P. (Father), in August 2017.

At the hearing, Dr. Peter Pizzutollo, M.D. (Pediatrician), a boardcertified orthopedic surgeon, qualified as an expert in children’s orthopedic surgery 

and child abuse evaluation. Pediatrician obtained a history and examined Child 

during an office visit. About five days prior to the office visit, Pediatrician obtained 

Child’s X-rays and a lab test performed at the hospital. Child’s grandmother 

transported him to Pediatrician’s office and provided Child’s medical history.

During the office visit, Child disclosed to Pediatrician that Mother and 

Stepfather told him to hold onto a pole while they beat him because he wet the bed 

three times. When Pediatrician attempted to examine Child’s left hip, Child could 

barely move his left hip without experiencing severe pain. Child also experienced 

severe pain when attempting to flex his leg about 20 degrees above the table. 

Pediatrician could not examine Child’s range of motion in his hip because of Child’s 

severe pain. Pediatrician opined that although Child appeared to be comfortable 

while sitting, he would experience pain with motion. Pediatrician determined that 

Child’s nerve function, blood vessels and circulation were fine. However, any 

attempt to move Child’s hip was painful.

Pediatrician reviewed Child’s X-rays and lab studies. He opined that 

Child’s lab studies were normal. However, Pediatrician opined that Child’s X-rays 

indicated a significant widening of the growth center of the upper end of the left 

thigh, which would coincide with an injury through the growth zone. Pediatrician 
5

diagnosed Child with a Salter-Harris Type One (Salter One) fracture, which 

indicates a fracture that goes through the growth plate. However, the bone above it 

and below it did not become displaced.

As a result of the diagnosis, and in order to allow for proper healing, 

Pediatrician admitted Child to the hospital and placed him in a spica cast. The cast 

went around Child’s waist and down his entire left leg in order to keep him from 

moving.

Pediatrician opined that a Salter One fracture could be caused by a 

motor vehicle accident or a fall from a significant height. However, Pediatrician 

opined that a Salter One fracture could not be caused from being pushed by a peer 

at school or from rough play.

Pediatrician also explained why the hospital did not initially diagnose 

Child with a Salter One fracture. He explained that the injury is a subtle change in 

the growth plate. Therefore, the radiologist may not have noticed the change based 

on a lack of subspecialty or expertise in this area.

Pediatrician based his diagnosis of a Salter One fracture on his physical 

examination of Child and a review of Child’s X-rays, which showed that the growth 

plate on the left side was wider than the growth plate on the right side. Pediatrician 

further opined that Child’s Salter One fracture indicated that Child was a victim of 

physical child abuse. Pediatrician also opined that Child would have experienced 
6

severe pain and discomfort from the inflicted injury. Pediatrician testified that his 

opinions were within a reasonable degree of medical certainty.

At the hearing, Mother denied the allegations of physical abuse. 

Mother acknowledged that she used physical discipline in her household. However, 

Mother claimed she stopped using physical discipline in May 2017. Mother 

suggested that Claimant’s injuries could have been caused by a fall at school.

Stepfather and Child did not testify at the hearing. Father did not 

provide any testimony regarding the allegations of child abuse.

ALJ Nause found the testimony of Caseworker and Pediatrician to be 

credible. However, ALJ rejected the testimony of Mother as to how Child sustained 

his injuries as not credible. 

In analyzing the applicable law, ALJ Nause recognized that County 

DHS has the burden of presenting substantial evidence that Mother and Stepfather 

committed child abuse in violation of the CPSL. Substantial evidence, in the context 

of a child abuse proceeding, has been defined as “evidence which outweighs 

inconsistent evidence and which a reasonable person would accept as adequate to 

support a conclusion.” 23 Pa. C.S. §6303(a); A.O. v. Dep’t of Pub. Welfare, 838 

A.2d 35 (Pa. Cmwlth. 2003). In an expunction case, the burden is on the county 

agency to present evidence that outweighs any contrary evidence that the petitioner 

committed child abuse. L.S. v. Dep’t of Pub. Welfare, 828 A.2d 480 (Pa. Cmwlth. 

2003).
7

Further, Section 6303(a) defines “perpetrator” as a “person who has 

committed child abuse,” including: a parent of a child, a paramour or former 

paramour of the child’s parent, an individual, 14 years of age or older who is 

responsible for the welfare of a child, and an individual, 14 years of age or older who 

resides in the same home as the child. 23 Pa. C.S. §6303(a). Section 6303(b.1) of 

the CPSL defines “child abuse” as the intentional, knowing or reckless causation of 

bodily injury to a child through any recent act or failure to act. 23 Pa. C.S. 

§6303(b.1). “Bodily Injury” is defined as “Impairment of physical condition or 

substantial pain.” 23 Pa. C.S. §6303(a).

Here, ALJ Nause noted that in this multi-caregiver case, Mother 

qualified as a perpetrator because she is Child’s biological mother. The ALJ further 

noted that Stepfather qualified as a perpetrator because he is the child’s stepfather 

and lives in the same residence as Child.

ALJ Nause also recognized that Section 6381(d) of the CPSL, relating 

to prima facie evidence of abuse in court proceedings, provides:

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 the 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.

23 Pa. C.S. §6381(d).
8

The ALJ also reviewed our Supreme Court’s decision in In re L.Z., 111 

A.3d 1164 (Pa. 2015). The L.Z. Court examined prior intermediate appellate 

interpretations of Section 6381(d), which limited the prima facie presumption of 

abuse to one parent who was present at the time of the injury. The Court concluded 

these prior decisions were too restrictive. Like here, the situation in L.Z. involved 

multiple caregivers. Ultimately, the Supreme Court determined that, when 

applicable, the presumption of abuse in Section 6381(d) required each parent or 

person responsible for the child’s care to provide evidence rebutting the presumption 

that he or she actually inflicted the injury or failed in their duty to protect the child.

Summarizing the evidence presented by County DHS, including 

Pediatrician’s medical opinions, ALJ Nause observed that Child’s injuries impaired 

his ability to walk and caused him substantial pain. ALJ’s Adj., 1/9/18, at 15. 

Therefore, ALJ Nause concluded that the evidence clearly showed that Child 

suffered physical child abuse. Id. 

ALJ Nause also determined that the prima facie presumption in 23 Pa. 

C.S. §6381(d) applies in the present case because Mother and Stepfather were 

Child’s caretakers during the time period in which the abuse occurred. L.Z. To that 

end, ALJ Nause determined Mother could not rebut the presumption and was unable 

to provide a plausible explanation for Child’s injury. In particular, ALJ Nause 

reasoned:

[Mother] acknowledged that she has used physical 

discipline in her household, yet claims she stopped using 

physical discipline in May 2017. In addition, [Mother] 

suggested that [Child’s] injury could have been caused 

from a fall at school. However, [Mother’s] theory 
9

regarding [Child’s] injury was implausible and 

contradicted by the credible medical testimony. 

[Pediatrician] opined that a Salter One fracture could be 

caused from a motor vehicle accident or a fall from a 

significant height but could not be caused from being 

pushed by a peer at school or from rough play. Therefore, 

the testimony of [Mother] regarding the possible cause of 

[Child’s] injury was not credible.

ALJ’s Adj. at 15.

ALJ Nause further observed that Stepfather did not submit any 

evidence or testimony to rebut the presumption that he committed child abuse. 

Therefore, ALJ Nause determined that neither Mother nor Stepfather rebutted the 

presumption of abuse. Accordingly, ALJ Nause found that Mother and Stepfather 

failed to rebut the presumption that they were the individuals who committed child 

abuse upon Child. Id.

In making this determination, ALJ Nause explained that she need not 

determine “beyond all doubt” whether the physical abuse occurred. Id. Rather, the 

County DHS had the burden to provide substantial evidence of child abuse 

committed by Mother and Stepfather. Here, County DHS met this burden. 

Therefore, ALJ Nause concluded that Mother’s and Stepfather’s appeals should be 

denied. ALJ’s Adj. at 16.

Thereafter, the BHA, after reviewing ALJ Nause’s recommended 

adjudication, adopted it in its entirety. See BHA Order, 1/19/18. Stepfather did not 

seek review of the BHA’s order. Mother filed a request for reconsideration, which 

the Secretary denied by order dated February 7, 2018. Mother eventually filed a 
10

petition for review, which this Court deemed filed on February 26, 2018, the date of 

Mother’s pro se letter of appeal.1 

 

III. Discussion

A. Waiver

We first address the Department’s contentions regarding waiver. The 

Department argues: (a) Mother waived the right to challenge the BHA’s January 19, 

2018, order on the merits by failing to file a petition for review within 30 days of the 

order; and (b) Mother waived the right to challenge the Secretary’s February 7, 2018, 

order denying reconsideration by failing to address the order in her brief.

1. Argument

First, the Department contends that Mother lacks any authority to 

challenge the BHA’s January 19, 2018, decision on the merits because Pa. R.A.P. 

1512(a) requires that a petition for review of a quasi-judicial order be filed within 

30 days after the entry of the order. A party who fails to file a petition for review 

within the 30-day appeal period loses the ability to challenge the merits of the 

decision. Keith v. Dep’t of Pub. Welfare, 551 A.2d 333 (Pa. Cmwlth. 1988).

Here, the Department asserts, Mother filed a pro se letter on February 

26, 2018, which this Court preserved as the date of filing her appeal. On March 26, 

2018, Mother filed a petition for review identifying the BHA’s January 19, 2018, 

 

1 Appellate review of an agency decision is limited to determining whether the agency’s 

findings were supported by substantial evidence, whether the agency committed an error of law, 

or whether the agency violated the appellant’s constitutional rights. R.J.W. v. Dep’t of Human 

Servs., 139 A.3d 270 (Pa. Cmwlth. 2016).
11

order as the order over which this Court has jurisdiction. However, because the 30-

day appeal period expired, the Department argues the only order that Mother could 

appeal is the February 7, 2018, order denying her request for reconsideration. 

Therefore, the Department argues Mother’s challenge to the merits of the BHA’s 

decision and order is waived.

Second, the Department contends Mother’s petition for review and 

brief challenge only the BHA decision and the only matter this Court may review is 

the order denying reconsideration. Therefore, the Department contends Mother 

waived any argument that the Secretary abused her discretion in denying 

reconsideration. Issues must be raised in a party’s petition for review and in the 

Statement of Questions and Argument sections of the party’s appellate brief. City 

of Philadelphia v. Workers’ Comp. Appeal Bd. (Ford-Tilghman), 996 A.2d 569 (Pa. 

Cmwlth. 2010).

In support of its position, the Department cites K.G. v. Dep’t of Human 

Services, 187 A.3d 276 (Pa. Cmwlth. 2018), wherein a mother named as a 

perpetrator of child abuse in an indicated report challenged the merits of a BHA 

decision denying her appeal. In response, the Department argued that the only issue 

properly before this Court was whether the Secretary abused his discretion by 

denying the mother’s request for reconsideration. In so doing, the Department noted 

that the mother did not address the merits of the Secretary’s decision.

In K.G., this Court determined the mother waived her challenge to the 

Secretary’s denial of reconsideration by failing to raise it in her petition for review 
12

or in her appellate brief. The Department maintains that the issues in K.G. mirror

the pending issues in this matter. In short, Mother failed to challenge the appropriate 

issues in her petition for review and brief.

As a result of these waivers, the Department argues this case must be 

considered moot. Under the mootness doctrine, a case may be dismissed for 

mootness at any time by the court, because, generally, an actual case or controversy 

must exist at all stages of the judicial or administrative process. Pa. Liquor Control 

Bd. v. Dentici, 542 A.2d 229 (Pa. Cmwlth. 1988). The Department asserts, in light 

of K.G., Mother’s failure to raise arguments pertinent to the Secretary’s order 

denying reconsideration renders this case moot.

2. Analysis

With respect to the BHA’s decision and order, Mother filed her pro se

appeal letter on February 26, 2018, more than 30 days after the BHA issued its order 

on January 19, 2018. Timeliness of an appeal is jurisdictional in nature; if an appeal 

is untimely, this Court is without jurisdiction to review the merits of the case. Keith; 

Peace v. Dep’t of Pub. Welfare, 501 A.2d 1164 (Pa. Cmwlth. 1985). Consequently, 

Mother’s untimely challenge to the merits of the BHA’s decision must be deemed

waived. Keith.

With respect to the Secretary’s order denying reconsideration, we note 

that Mother initially indicated in her pro se letter, dated February 26, 2018, that she 

was appealing the Secretary’s February 7, 2018 order denying reconsideration. 

However, in her ancillary petition for review, dated March 26, 2018, Mother sought 
13

review of the BHA’s January 19, 2018 decision on the merits. In so doing, Mother 

abandoned her challenge to the Secretary’s order denying reconsideration. 

Therefore, given these circumstances, we must dismiss Mother’s alleged pro se

appeal of the Secretary’s order denying reconsideration because she abandoned any 

right to review of that order by not challenging it in her ancillary petition for review. 

See Walsh v. Dep’t of Human Servs. (Pa. Cmwlth., Nos. 2018 C.D. 2015, 2558 C.D. 

2015, filed July 1, 2016) (unreported)2 2016 WL 3571386 (where the petitions for 

review do not address the order denying reconsideration, we will not review it).

B. Merits of BHA Decision and Order

As discussed above, we must hold Mother failed to preserve her 

challenge to the merits of the BHA’s decision and order. Keith. Consequently, we 

dismiss Mother’s challenge to the merits of the BHA’s decision denying her 

administrative appeal. Id. Nonetheless, even if not waived, Mother’s arguments

fail.

1. Presumption of Abuse

a. Argument

Mother contends that ALJ Nause, who did not preside at the hearing, 

erroneously applied the prima facie presumption of abuse in 23 Pa. C.S. §6381(d) in 

this case. In addition, Mother asserts, even assuming the ALJ properly applied the 

presumption, proof that the child was not in the parent’s care when the injury 

occurred will rebut the presumption. T.H. v. Dep’t of Human Servs., 145 A.3d 1191 

 

2 This Court’s unreported opinions may be cited for their persuasive value, but not as 

binding precedent. Section 414(a) of the Commonwealth Court’s Internal Operating Procedures; 

210 Pa. Code §69.414(a).
14

(Pa. Cmwlth. 2016). As such, Mother maintains that the preponderance of the 

evidence in this case established that Child’s injury occurred when he was pushed 

and fell at school.

b. Analysis

In an expunction case, the county agency bears the burden of 

establishing the report of abuse is accurate and supported by substantial evidence, 

which the CPSL defines as evidence which outweighs inconsistent evidence and 

which a reasonable person would accept as adequate to support a conclusion. R.J.W.

v. Dep’t of Human Servs., 139 A.3d 270 (Pa. Cmwlth. 2016). An ALJ is free to 

accept or reject the testimony of any witness, in whole or in part. Id. Further, 

determinations regarding credibility and the weight of the evidence are solely within 

the province of the ALJ. Id.

Pediatrician opined that Child’s fracture could not be caused by being 

pushed at school or engaging in rough play. ALJ’s Adj., Finding of Fact (F.F.) No. 

39; ALJ’s Hr’g, Notes of Testimony (N.T.), 11/28/17, at 131. Child experienced 

severe pain from his femur fracture. F.F. No. 44; N.T. at 121. Pediatrician opined, 

within a reasonable degree of medical certainty, that child abuse was the most likely 

diagnosis. F.F. No. 43; N.T. at 136. To that end, Pediatrician noted there was no 

history of any significant injury, and Child’s history of what was being done to him 

supported a conclusion of child abuse. N.T. at 136. In short, Pediatrician testified 

that Child’s injuries could not have resulted from a fall at school. ALJ Nause 

accepted Pediatrician’s testimony and opinions as credible. F.F. No. 51. Therefore, 

Mother’s competency challenge to Pediatrician’s testimony fails.
15

In addition, we recognize that the presumption of abuse only establishes 

prima facie evidence of abuse, which can be rebutted. L.Z. In light of the ALJ’s 

negative credibility finding regarding Mother’s testimony that Child’s fall at school 

caused his injury, Mother failed to rebut the presumption in 23 Pa. C.S. §6381(d).

2. ALJ’s Credibility Determinations

a. Argument

Mother also argues that ALJ Nause, who did not preside at the hearings, 

obviously credited Child’s reports of abuse over Mother’s denials of abuse without 

explaining her credibility determination in favor of Child. Mother cites Daniels v. 

Workers’ Compensation Appeal Board (Tristate Transport), 828 A.2d 1043 (Pa. 

2003), a workers’ compensation case where our Supreme Court held that credibility 

determinations based upon review of a transcript must be explained by some 

articulation of an objective basis for the determination. Mother points out that this 

Court applied Daniels in A.G. v. Department of Human Services (Pa. Cmwlth., No. 

965 C.D. 2017, filed June 6, 2018), 2018 WL 2708530, and remanded for the 

issuance of a new decision.

b. Analysis

Unlike the situation in A.G., ALJ Nause’s credibility determinations 

are sufficient to meet the Daniels standard. ALJ Nause found Pediatrician’s 

testimony credible. F.F. No. 51. ALJ Nause also specifically credited Pediatrician’s 

testimony that Child’s Salter One fracture could not have been caused by a push 
16

from a peer at school or by rough play. F.F. No. 39; N.T. at 136. Moreover, ALJ 

Nause recapped Pediatrician’s testimony and opinions and stated:

The credible medical testimony provided coupled with the 

medical records and the [County DHS] testimony 

introduced at the time of the hearing demonstrated 

[Child’s] injury impaired his ability to walk and caused 

him substantial pain; therefore [County DHS] met its 

burden to show [Child] suffered bodily injury. Therefore, 

the undersigned finds the evidence clearly supports that 

[Child] was physically abused.

ALJ’s Adj. at 15. ALJ Nause further stated Mother’s theory regarding Child’s 

injury was implausible and contradicted by Pediatrician’s credible medical 

testimony. Id. Therefore, ALJ Nause rejected Mother’s testimony as not credible. 

Id. ALJ Nause’s credibility determinations are adequate for appellate review. 

Daniels; A.G.

IV. Conclusion

As discussed above, Mother’s untimely petition for review of the 

BHA’s order adopting ALJ Nause’s recommendation to deny Mother’s and 

Stepfather’s administrative appeals in this case deprives this Court of jurisdiction to 

address the merits of Mother’s appeal. Therefore, we dismiss Mother’s appeal of 

the BHA order on that basis. However, even assuming that the merits of Mother’s 

appeal were properly before the Court, we discern no error or abuse of discretion in 

the BHA’s decision and order denying Mother’s administrative appeal.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J. G., : SEALED CASE

Petitioner :

: No. 381 C.D. 2018

v. :

: 

Department of Human Services, :

Respondent :

O R D E R

AND NOW, this 23rd day of April, 2019, for the reasons stated in the 

foregoing opinion, Petitioner J.G.’s petition for review of the order of the 

Department of Human Services, Bureau of Hearings and Appeals, dated January 19, 

2018, is DENIED and DISMISSED as untimely filed.

 

ROBERT SIMPSON, Judge