IN THE COMMONWEALTH COURT OF PENNSYLVANIA

M.L., :

Petitioner :

: CASE SEALED

v. : No. 2356 C.D. 2015

: Submitted: June 10, 2016 

Department of Human Services, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: March 6, 2017

M.L. (Father) petitions for review of an adjudication of the 

Department of Human Services (Department) denying his request to expunge an 

indicated report of sexual abuse of his daughter, L.S. (Child), from the ChildLine 

Registry.1 Child was four years old at the time of the alleged abuse and seven 

when she testified. The Department’s Bureau of Hearings and Appeals (Bureau)

adopted, in its entirety, the recommended adjudication of the Administrative Law 

Judge (ALJ). The ALJ found that Child’s testimony, unsupported by physical 

evidence, proved that Father had committed acts of digital penetration on one or 

two occasions. Father has appealed, contending that the ALJ’s finding of abuse is 

 

1 ChildLine is a unit of the Department that operates a statewide toll free system for receiving 

and maintaining reports of suspected child abuse, along with making referrals for investigation. 

55 Pa. Code §3490.4. The ChildLine Registry is maintained in accordance with the Child 

Protective Services Law, 23 Pa. C.S. §§6301-6386.
2

not supported by substantial evidence, as that term is defined in the applicable 

statute. We vacate and remand.

Background

Child, who was born on May 20, 2007, lives with her mother, K.S.

(Mother), and her maternal grandmother (Grandmother). In May 2009, Father, 

who shares legal custody with Mother, obtained greater visitation rights. His twice 

monthly weekend custody began Thursday at 5:00 p.m. and continued through 

Sunday at 6:00 p.m. He also had Child between 4:30 p.m. and 8:00 p.m. on 

alternating Mondays and Wednesdays.

On December 20, 2011, Children and Youth Services (CYS) filed an 

indicated report (2011 report) with the Department that named Father as a 

perpetrator of child sexual abuse. The indicated report specified that “due to 

[Child] making disclosure of penetration and of it hurting ... case meets the criteria 

for child abuse....” Certified Record (C.R.) Exhibit C-4. Father appealed and

requested a hearing. In September 2012, CYS filed a second indicated report 

(2012 report) with the Department, again stating that Father had digitally 

penetrated Child and, in addition, had exposed her to pornography. Father 

appealed the 2012 report and requested a hearing.

On May 27, 2014, the ALJ conducted a hearing on both indicated 

reports.

2

 On behalf of CYS, Child testified, as did Mother, a counselor, a forensic 

interviewer, and a former CYS intake caseworker. Father, represented by counsel, 

testified in opposition to CYS’ case. 

 

2 By the time of the hearing, Child was seven years old; she was four years old when the abuse 

was alleged to have occurred. The ALJ inquired into Child’s ability to testify and concluded that 

Child had the capacity to testify truthfully.
3

At the hearing before the ALJ, Child testified that she was seven years 

old and in kindergarten. She lives with Mother and Grandmother. She stated that 

Father had hurt her by “putting his finger inside [her] pee-pee and [her] boompty

[sic].” Notes of Testimony, 5/27/2014, at 17 (N.T. at __); Reproduced Record at 

114a (R.R. __). Child stated that after using the toilet, she needed help wiping 

herself. Instead of helping her, Father hurt her by putting one finger inside her 

“pee-pee.” N.T. at 20-21; R.R. 114a-115a. When she cried, Father locked her in 

the bedroom without food or anything to drink. Child testified that Father had 

touched her this way “once or twice” when she was four years old. N.T. at 25, 30; 

R.R. 116a, 117a.

On cross-examination, Child stated that she did not remember anyone 

else being at Father’s house when she was there. N.T. at 35; R.R. 118a. Also, she 

did not recognize the name of her Father’s sister (Aunt). Id. Finally, Child could

not remember having practiced her testimony with Mother before a January 2013 

habeas corpus proceeding, where she described Father’s acts of digital penetration. 

Id. at 38-39; R.R. 119a.

Mother testified that, on November 16, 2011, while she, Child and 

Grandmother were decorating the Christmas tree, Child told them that her “pee-pee 

[was] hurting really, really bad.” N.T. at 50; R.R. 122a. Child said that Father had 

touched her. Mother asked Child to demonstrate what happened, and Child pulled 

her underpants down, spread her legs apart, put her finger inside her vagina and 

said that Father was pinching her in her hole. Mother recalled that Child said, 

“Mommy, he didn’t clean me. He put his finger inside my pee-pee, and it felt like 

pinching; [] it hurt really, really bad, and I was crying....” N.T. at 52; R.R. 122a. 

She asked Child why she had not said something before, and Child replied, “Well, 
4

I didn’t know if what [Father] was doing was right or wrong.” N.T. at 53; R.R. 

123a. Prior to this account, Mother had observed Child on all fours rocking back 

and forth in what looked like a sexual motion to Mother.3 She also recalled that 

Child would ask her questions, like “What happens if you jab soap in your peepee?” and “what happens if you jab a doll up your pee-pee?” N.T. at 57-58; R.R. 

124a. Finally, Mother testified that Child told her that Father would rub her chest, 

which Child did not like.

A child and family counselor (Counselor) testified that she began 

working with Child in January 2012, seeing her once a week for anxiety and 

aggressive behavior. During one counseling session, Child told her that her dad

hurt her pee-pee, and it scared her. Mother had previously advised Counselor that 

Child was the victim of sexual abuse. 

A former forensic interviewer (Interviewer) testified about her 

December 2011 interview of Child, which was done as a result of the November 

18, 2011, report of abuse to CYS.

4

 Interviewer prepared a report of her interview 

of Child, in which she wrote:

[Child] reported she was brought [here] because, “[she] go[es] 

visiting and well ... [Father] hurts [her.]” [Child] reported 

[Father] is mean and takes [her] away from [Mother].... 

[Child] reported [Father] touches her “pee-pee” on the inside. 

[Child] reported her clothes are off when this happens. [Child] 

reported this happened after she had got a bath. [Child] 

reported [Father] said he was cleaning her “pee-pee,” [b]ut he 

wasn’t, he was hurting [her].” [Child] reported she is laying 

down when this happens. [Child] reported [Father] uses his 

 

3 Mother testified that Grandmother told her that on one occasion, Child got on all fours above 

Grandmother, who was lying on the sofa, and rocked back and forth.

4

It is not clear who made the report, Mother or Child’s pediatrician.
5

hand when he does this.... [Child] reported that she goes on 

visits with [Father] because he thinks she likes it, “but [she 

doesn’t]....”

C.R. Exhibit C-2 at 1-2. On August 31, 2012, Interviewer again interviewed Child. 

This interview report stated as follows:

[Child] reported her dad put his finger in her “pee-pee” and 

“poopy.” [Child] reported her dad moves his finger around in a 

circle with both hands at the same time. [Child] reported it 

feels like “pinching.” [Child] reported her dad took her clothes 

off. [Child] reported this happens in different rooms in her 

dad’s home. [Child] reported her dad’s clothes are off during 

the incidents. [Child] reported she can see her dad’s private 

parts during the incidents, but does not remember what they 

look like.... [Child] reported her dad says he is cleaning her 

when he does this. [Child] reported her dad did not clean her, 

“He hurt [her]”....[Child] reported an incident when she was in 

the shower and her dad put his finger inside of her “pee-pee.” 

[Child] reported her dad used his pointer finger to do this. 

[Child] reported she tells her dad to stop, but “he [doesn’t].” 

[Child] reported this to have occurred more than one time. 

[Child] reported her dad has shown her “bad movies.” When 

asked what “bad movies” are, [Child] stated, “sex”.... 

C.R. Exhibit C-3 at 1-2.

On cross-examination, Interviewer stated that she did not know that 

Mother had filed a protection from abuse petition against Father on November 18, 

2011, before her first interview of Child. Further, at the time of her December 20, 

2011, interview of Child,5she did not know how long Child had been in the 

exclusive custody of Mother. 

 

5

It is unclear from the record the actual date Interviewer interviewed Child. Interviewer’s report 

indicates an interview date of December 20, 2011, and she testified that she interviewed Child on 

this date. However, on cross-examination, Interviewer explained that, in her report, “DOS” 

(Footnote continued on the next page . . . )
6

Lastly, CYS offered the testimony of a caseworker for CYS

(Caseworker) who investigated the 2011 and 2012 claims that Father had abused 

Child. Because Caseworker believed Child, CYS issued the 2011 and 2012 

indicated reports.

Father testified in response. He reported on the strained nature of his 

relationship with Mother that began before Child was born. He was not able to see 

Child until July 2007 and only after he petitioned the court and obtained a paternity 

test. In May 2009, Father received increased visitation with Child, seeing her

every other weekend and alternating Mondays and Wednesdays. 

Father testified that he did all the transportation for his visits with 

Child. For weekday visits, Father took child to the home of his sister (Aunt), who 

lives closer to Mother than he does. Aunt was also present for the weekend visits.

In late August of 2011, he took Child on a vacation to South Carolina with Aunt 

and other members of his family. Father testified that Child never objected to 

visiting him. To the contrary, Child sometimes asked to stay with him or teared up 

because she did not want to return to Mother. Child called him “Daddy” or “Dad.”

Father categorically denied that he ever inserted a finger into Child, 

anywhere for any reason. He denied laying Child on the floor so that he could 

wipe her bottom. He acknowledged that, because of her age, Child sometimes 

needed help wiping after she used the toilet. He denied ever exposing child to 

pornography. As a result of the indicated reports, Father has not been able to see 

 

(continued . . . )

refers to Date of Service, which is the date Child was interviewed. Her report indicates the Date 

of Service was December 15, 2011. The ALJ found that the forensic interview was conducted on 

December 20, 2011; accordingly, that is the date that the interview occurred. ALJ 

Recommended Adjudication at 34; Finding of Fact No. 22.
7

Child in over three years and has had to stop his longtime volunteer activity as a

Boy Scout leader.

The remainder of Father’s evidence consisted of transcripts and 

documents from other proceedings. He contended that they refuted Child’s 

accusations.

First, Father offered a copy of the transcript from a January 2013

habeas corpus proceeding, which showed that Mother had coached Child. At the 

hearing, Child testified:

[Attorney:] Did [Mother] or your [grandmother] talk to you about 

what you are going to say today?

[Child:] Yeah. I told her and she repeated and then we keep 

taking turns saying it.

[Attorney:] You kept taking turns saying what you were going to say 

today?

[Child:] Yeah.

[Attorney:] Right. How many times do you think you kept taking 

turns saying what you were going to say today?

[Child:] Like five or six times.

[Attorney:] Did you do this this morning?

[Child:] Um, yeah.

[Attorney:] You did it today; right?

[Child:] Yeah.

[Attorney:] To make sure you remembered everything; right?

[Child:] Uh-huh.

[Attorney:] Is that right?
8

[Child:] Uh-huh.

[Attorney:] You have to say yes or no.

[Child:] Yeah.

[Attorney:] Did you do it last night before you went to bed?

[Child:] Yeah.

C.R. Exhibit A-1 at 72-73.

Second, Father offered Mother’s petition for a protection from abuse

order, which offered a different account of the alleged abuse. The petition stated 

that Child told Mother that the alleged abuse occurred in a room “with the two 

turning chairs and big T.V.,” she didn’t have any pants on, and that Father 

“pinched her down there in her ‘hole.’” C.R. Exhibit A-2 at 6. 

Third, Father offered reports from Child’s pediatrician from 2011 and 

2012. They showed that Child’s complaints of pain in her genital area long 

preceded the November 2011 accusation of digital penetration. Likewise, they 

continued to be made long after Father was prohibited from seeing Child. 

Finally, Father offered the January 2014 District Attorney’s

Application for Nolle Prosequi of the criminal charges pending against Father 

citing “[a]n inability to successfully prosecute this matter due to the minor 

victim[’]s young age.” C.R. Exhibit A-9. The Court of Common Pleas granted the 

motion and the criminal charges were nolle prossed. C.R. Exhibit A-10.

CYS did not present any evidence or witnesses in rebuttal to Father’s 

testimony or to any of his documentary evidence.

The ALJ issued a recommended adjudication. 

With respect to the 2012 report, the ALJ recommended that Father’s 

appeal be sustained because CYS offered no testimony to support the claim that
9

Father had Child watch pornography. Child did not state to anyone other than 

Interviewer that Father had her watch pornography, and Father categorically 

denied that claim. Neither Mother nor Child testified that Father exposed Child to 

pornography, let alone where or when. The ALJ recommended that the 2012 

report be expunged.

With respect to the 2011 report, the ALJ made the following relevant

findings of fact:

11. [Father] hurt [Child] by “putting his fingers inside [her] 

pee-pee and [her] bompty [sic].” (N.T. 17).

12. [Father] told [Child] he was going to clean her in the 

bathroom after she pooped and “instead of cleaning [her], he 

hurt [her].” (N.T. 18)

13. [Father] put his finger inside [Child’s] “pee-pee and [her] 

bompty [sic] while on the floor in the bathroom.” (N.T. 19)

14. [Child] pointed to her crotch when asked where her “peepee” was located. (N.T. 20).

15. [Father] put one finger in her “pee-pee” and it hurt. (N.T. 

20-22)

16. [Child’s] pants were down at the time of the incident and 

she cried. (N.T. 21-23)

17. The alleged abuse occurred once or twice at [Father’s] 

home. (N.T. 25)

18. [Child] spontaneously told her mother what happened at 

[Father’s] house in November 2011. (N.T. 27, 50)

* * *

65. The testimony of [Father] with regard to the allegation he 

put his finger in [Child’s] vagina is not credible.
10

ALJ Recommended Adjudication at 34-37. 

The ALJ found that Child knew the difference between the truth and a 

lie and, based on her demeanor, testified credibly. The ALJ found it 

“inconceivable that a child of such tender years could tell such a consistent story to 

so many different people over such a protracted period of time.” Id. at 46. The 

ALJ found the testimony of Counselor credible, noting that Child

spontaneously disclosed during her counseling that [Father] had 

hurt her pee-pee and he scared her. 

Id. Likewise, the ALJ found Mother credible and did not believe she had

influenced Child’s accusation.

On October 29, 2015, the Bureau adopted the recommended 

adjudication in its entirety. Father requested reconsideration by the Secretary of 

Human Services, but his request was denied. Father then petitioned for this 

Court’s review. 

On appeal,6Father argues that the Bureau erred. First, he contends

that the 2011 report should be expunged because it contained some of the same

accusations that appeared in the 2012 report. The expunction of the 2012 report 

requires the expunction of the 2011 report. Second, Father argues that there were 

procedural irregularities in the issuance of the 2011 indicated report that require its 

expunction. Third, he contends that the ALJ did not do the job required of a 

factfinder in a fair hearing. Specifically, the ALJ did not consider all of Child’s 

testimony, such as her wild statements that Father deprived her of food and water

 

6 Our review is to determine whether constitutional rights were violated, errors of law were 

committed, or necessary findings of fact are supported by substantial evidence. A.P. v. 

Department of Public Welfare, 98 A.3d 736, 741 n.2 (Pa. Cmwlth. 2014). 
11

or the fact that over the years she has told very different versions of the touching

incidents. The ALJ did not consider the possibility of taint, notwithstanding the 

evidence that Mother rehearsed Child for the January 2013 habeas corpus hearing;

that there was a long period of time between the report of abuse to CYS and 

Child’s interview by a forensic examiner while she was in Mother’s exclusive 

custody; and that Child was aware that Mother did not like Father. Father argues 

that the ALJ’s finding that he digitally penetrated Child on one or two occasions is 

not supported by substantial evidence. He asks the Court to reverse the 

adjudication and expunge the 2011 indicated report from the ChildLine Registry.

Child Protective Services Law

An expungement hearing, or “Fair Hearing,” determines the accuracy 

of information in an indicated report. Section 6341(c.2) of the Child Protective 

Services Law states, in relevant part, as follows:

A hearing shall be scheduled according to the following 

procedures:

* * *

(4) The department or county agency shall 

provide a person making an appeal with evidence 

gathered during the child abuse investigation 

within its possession that is relevant to the child 

abuse determination, subject to sections 6339 

(relating to confidentiality of reports) and 6340 

(relating to release of information in confidential 

reports).

(5) The department or county agency shall bear 

the burden of proving by substantial evidence that 

the report should remain categorized as an 

indicated report.
12

23 Pa. C.S. §6341(c.2).

The accuracy of a report turns, in large part, on the credibility of 

testimonial evidence. R. v. Department of Public Welfare, 636 A.2d 142, 144-45 

(Pa. 1994). The county agency bears the burden of proving that the actions of the 

alleged perpetrator constitute child abuse within the meaning of the statute. B.J.K. 

v. Department of Public Welfare, 773 A.2d 1271, 1275 (Pa. Cmwlth. 2001). This 

is done with substantial evidence of abuse that outweighs contrary evidence. 

Specifically, Section 6303(a) of the Child Protective Services Law defines 

“substantial evidence” as

[e]vidence which outweighs inconsistent evidence and which a 

reasonable person would accept as adequate to support a 

conclusion.

23 Pa. C.S. §6303(a).

To meet this standard, “the child’s testimony must be of such a 

quality” to allow the factfinder to conclude that it outweighs inconsistent evidence. 

In re: S.H., 96 A.3d 448, 462 (Pa. Cmwlth. 2014). In re: S.H. considered the 

application of the statutory standard to a case where the child victim’s testimony 

formed the sole basis for the finding of sexual abuse, i.e., there was no physical 

evidence of abuse. Applying the statutory standard of proof, we explained, first, 

that all of the child’s testimony must be considered, not just the selective parts that 

described abuse. Second, a young child’s testimony that provides information 

generally outside the knowledge of a child can be probative of sexual abuse. See, 

e.g., D.W. v. Department of Public Welfare (Pa. Cmwlth., No. 922 C.D. 2013, filed 

March 11, 2014), slip op. at 5-6 (the “anatomically correct drawing of a penis from 

a six[-]year[-]old girl demonstrates a hypersexual knowledge way beyond her 

years, which could only have come from first hand contact with an adult penis.”). 
13

Third, the child’s statement of abuse must not be elicited by leading questions and 

should be free of pre-hearing coaching.

It is axiomatic that the Department is the factfinder in expungement 

appeals and responsible for credibility determinations. F.V.C. v. Department of 

Public Welfare, 987 A.2d 223, 228 (Pa. Cmwlth. 2010). A child’s accusations of 

abuse must be evaluated carefully in light of the fact that a child is vulnerable to 

adult influence. “Taint” is defined as

the implantation of false memories or the distortion of real 

memories caused by interview techniques of law enforcement, 

social service personnel, and other interested adults, that are so 

unduly suggestive and coercive as to infect the memory of a 

child....

Commonwealth v. Delbridge, 855 A.2d 27, 35 (Pa. 2003). In Delbridge, the 

Supreme Court explained that a child’s testimony is incompetent 

where there is some evidence that improper interview 

techniques, suggestive questioning, vilification of the accused 

and interviewer bias may have influenced a child witness to 

such a degree that the proffered testimony may be irreparably 

compromised.

Id. at 39 (emphasis added). In short, where a witness’s memory of the event has 

been tainted, the testimony is incompetent. Id. at 40. A fortiori, incompetent 

testimony cannot be found credible.

Analysis

In his first issue, Father contends that the 2011 report must be 

expunged because the 2012 report was expunged. 

The 2011 report described the abuse as follows: “[Child] reported to 

caseworker that [Father] touches her booty. She made a rotary motion with her 
14

fingers on the dolls bottom. [Child] says he does that in [her] booty, inside of her 

body.” C.R. Exhibit A-5. It also stated that “[v]ictim child had stuffed animals 

from home in the interview and picked one up and showed interviewer how perp 

rubbed victim child.” Id. 

The 2012 report focused on pornography. During her interview with 

Interviewer, Child reported that Father made her watch “bad movies,” which she 

defined for Interviewer as “sex.” C.R. Exhibit A-6. The 2012 report also stated 

that “[C]hild demonstrated for [mother] what they did in the videos.” Id. CYS

concluded that exposing Child to such movies constituted child abuse. The ALJ 

held that the County did not meet its burden on the 2012 report because not a 

single witness, neither Child nor Mother, testified that “[Father] had [Child] watch 

porn, bad movies or anything of that nature.” ALJ Recommended Adjudication at 

13. 

The two reports overlap because the 2012 report repeated the 

accusation of Father’s digital penetration of Child. It is obvious that this allegation 

referred to the one covered in the 2011 report because Father has not seen Child 

since 2011. In expunging the 2012 report, the ALJ could have clarified that he was 

not expunging the claim of digital penetration reported in the 2011 report. It does 

not follow, however, that the 2011 report should be expunged for this lack of 

precision on the part of the ALJ. In his recommended adjudication on the 2012 

report, the ALJ stated that “the allegation of penetration is contained in the 2011 

report and will be decided” in his adjudication of the 2011 report. ALJ 

Recommended Adjudication at 13. We reject Father’s first assignment of error.

In his second issue, Father argues that 32 days passed between the

November 18, 2011, report of Child’s abuse and the filing of the investigation 
15

report with ChildLine on December 20, 2011. The Department’s regulation 

requires an investigation report to be filed within 30 days.

7

 Father argues that 

because CYS did not timely file its investigation report, the 2011 report must be 

expunged from the ChildLine Registry. 

The Department acknowledges that CYS filed its report two days late. 

Section 6368(n)(2) of the Child Protective Services Law also requires the county 

agency to do its investigation report within 30 days. 23 Pa. C.S. §6368(n)(2).

8

 

 

7

The regulation states as follows:

The report of the investigation shall be submitted to ChildLine within 30-calendar 

days of when the report was received at ChildLine.

55 Pa. Code §3490.32(e).

8

Section 6368(n) states:

Completion of investigation.--Investigations shall be completed in accordance 

with the following:

(1) Investigations to determine whether to accept the family for 

service and whether a report is founded, indicated or unfounded 

shall be completed within 60 days in all cases.

(2) If, due to the particular circumstances of the case, the county 

agency cannot complete the investigation within 30 days, the 

particular reasons for the delay shall be described in the child 

protective service record and made available to the department for 

purposes of determining whether either of the following occurred:

(i) The county agency strictly followed the 

provisions of this chapter. 

(ii) The county agency is subject to action as 

authorized under section 6343 (relating to 

investigating performance of county agency).

(3) Where a petition has been filed under 42 Pa.C.S. Ch. 63 

(relating to juvenile matters) alleging that a child is a dependent 

child, the county agency shall make all reasonable efforts to 

complete the investigation to enable the hearing on the petition to 

be held as required by 42 Pa.C.S. §6335 (relating to release or 

holding of hearing).

23 Pa. C.S. §6368(n) (emphasis added).
16

Further, upon receiving a report of suspected child abuse, the county agency “shall 

immediately commence an investigation” and see the child, at the latest, within 24 

hours. 23 Pa. C.S. §6368(b). 

As part of the investigation, a caseworker, minimally, must interview 

the victim and the perpetrator, if the perpetrator can be located. 23 Pa. C.S. 

§6368(d)(4). In D.C. v. Department of Human Services, 150 A.3d 558, 563 (Pa. 

Cmwlth. 2016), this Court recognized that the Department’s regulations encourage 

“a broader investigation.” See 55 Pa. Code §3490.55(d). Regardless of the scope 

of the investigation, time is of the essence because within 60 days of the date of the 

initial report of child abuse, there must be a decision about whether the report is a 

founded, indicated or an unfounded report. 23 Pa. C.S. §6337(b). An indicated

report of child abuse must be approved by a CYS administrator or the Secretary of 

Human Services, depending on which agency initiated the investigation. 23 Pa. 

C.S. §6368(e).

Here, the 2011 report gives no indication that Child was seen within 

24 hours after CYS received a report of suspected child abuse. At the hearing, 

Caseworker testified:

[Counsel for Department:] When this report comes in on 

November 18, 2011, is it assigned to you that day or shortly 

thereafter?

[Caseworker:] Shortly thereafter.

[Counsel for Department:] And what did you commence to do, 

if anything?

[Caseworker:] We waited for the forensic interview to be 

scheduled, because it came in on a call; and a courtesy was 

asked of [another] County of the child.
17

N.T. at 111-112; R.R. 137a. The forensic interview did not take place until 

December 20, 2011. Likewise, the 2011 report does not record that CYS spoke to 

Father and what, if anything, Father stated. Again, at the hearing, Caseworker

stated that she interviewed Father “once [she] got a hold of him by telephone.” Id.

at 114; R.R. 138a. But, on cross-examination, Caseworker could not recollect the 

date she contacted Father. Id. at 127; R.R. 141a. Although it took CYS more than 

30 days to complete its investigation, the 2011 report is silent regarding a reason 

for this delay.

In numerous ways, CYS did not comply with the statute. It did not do 

a prompt interview or issue an investigation report in a timely manner. However,

neither the statute nor the regulations state that these failures of CYS render the 

indicated abuse report invalid. Rather, such a failure authorizes the Department 

“to begin an inquiry into the performance of the county agency.” 23 Pa. C.S. 

§6343(a). We are constrained to conclude that the Department did not err in 

failing to expunge the 2011 report on the basis of the procedural irregularities on 

the part of CYS. 

In his third issue, Father argues that the County’s evidence, i.e., the 

testimony of Child, Mother and caseworkers, lacked the quality needed to satisfy

the statutory definition of substantial evidence. The ALJ disregarded the many 

inconsistencies in Child’s accusation of abuse and the evidence of Child’s

coaching by Mother before the hearing. Further, the ALJ overlooked Mother’s 

opportunity to plant false memories in Child because CYS did not interview Child

for a month after Mother contacted CYS. Likewise, the ALJ disregarded the 

evidence of Child’s motive for fabrication, i.e., Mother’s animus toward Father. 

Interviewer was unaware that Mother had already initiated a proceeding to restrain 
18

Father from seeing Child even before Interviewer spoke with Child. The 

Department responds that the record contains ample evidence that Father sexually 

abused Child on one or two occasions.

Father directs this Court to In re: S.H., 96 A.3d 448 (Pa. Cmwlth. 

2014), which he contends requires a reversal.9 In that case, the father had 

requested expunction of an indicated report of sexual abuse. At the hearing, the 

child, who was 31⁄2 years old at the time of the incident, testified that his father 

inserted a finger and a Q-tip into his anus during a weekend visit. The child’s 

pediatrician, who testified by telephone, stated that several days after the incident, 

the child repeated his account of the father’s conduct to the pediatrician. However, 

the pediatrician found no evidence of anal insertion or any basis for the child’s 

abdominal and rectal pain reported by the mother. A clinical psychologist also 

testified, by telephone, that child spontaneously told her “Daddy pokes his finger 

in my butt.” Id. at 451. Finally, the mother testified that she learned of the 

incident from her mother (maternal grandmother), who babysits the child each day. 

The mother and the father were involved in a custody dispute.

The father denied the child’s account, and his denial was corroborated 

by the father’s mother, who was present during the visit when the alleged incident 

occurred. The father also offered the testimony of a psychologist, an expert in the 

area of sexual abuse, who opined that the father did not meet the profile of a sexual 

abuser. Finally, the father offered the results of polygraph tests that had been 

administered by the Pennsylvania State Police, which he passed and the mother did 

not. 

 

9

Father cited this case as G.H. v. Department of Public Welfare, 2014 Pa. Cmmw. LEXIS 379 

(Commw. Ct. 2013).
19

This Court directed the expunction of the report from the ChildLine 

Registry. In doing so, this Court observed that the child’s testimony did not 

contain the type of information that in and of itself will corroborate sexual abuse, 

such as information that is generally outside the knowledge of a young child. 

Although the child had related the incident to his maternal grandmother, a critical 

witness, CYS did not interview her. Finally, the Secretary found the paternal 

grandmother, who had been present when the alleged abuse occurred, to be

credible on most of the important and material facts. Those facts exonerated the 

father.

There are similarities between this case and In re: S.H. Both cases 

involve charges of sexual abuse by a young child that are not corroborated by

physical evidence. In both cases, the criminal authorities declined to prosecute. 

Both cases involved a custody dispute. Unlike In re: S.H., however, Father’s 

categorical denial of abuse was not corroborated by other witnesses. We cannot 

conclude, as a matter of law, based upon the record before us, that In re: S.H. 

requires a reversal of the Department’s adjudication. 

The testimony of an accuser, alone, can be sufficient to prove child 

abuse. However, the ALJ must consider and address all relevant evidence and 

determine whether the child’s testimony outweighs the contrary evidence 

presented. The ALJ must explain the rationale for the decision. The statute 

requires the ALJ to make findings, whether in favor of the county agency or in 

favor of the alleged perpetrator, on the basis of

[e]vidence which outweighs inconsistent evidence and which a 

reasonable person would accept as adequate to support a 

conclusion.

23 Pa. C.S. §6303(a). 
20

Here, Child was four years old when the alleged abuse occurred, and 

seven years old by the time she testified before the ALJ. Over the course of years, 

she has told many different versions of this abuse on many occasions. On 

November 18, 2011, Child told the pediatrician that Father touched her vaginal 

area, which she demonstrated by rotating her finger in that area on a stuffed animal

she brought with her. On that day, however, the doctor found “[n]o redness, no 

discharge, no obvious change of vaginal opening.” C.R. Exhibit A-3. On 

December 20, 2011, Child told Interviewer that Father touched her inside her peepee after a bath while she was laying down on the bathroom floor. This started, 

according to Child, when Child was a baby. C.R. Exhibit C-4. On August 31, 

2012, Child told Interviewer that Father put his finger in her “poopy” and in her 

“pee-pee” while she was in the shower with Father. On January 31, 2013, in the

criminal proceeding before the charges were dropped, Child testified that Father

put his finger in her “pee-pee” and “poopy” when she was in the bathroom. 

Finally, on May 27, 2014, before the ALJ, Child testified that Father came into the 

bathroom to wipe her but, instead, he put one finger inside her “pee-pee” and 

“boompty,” which hurt her. N.T. at 18, 20-21; R.R. 114a-115a. Child testified 

that this happened “once or twice.” N.T. at 25; R.R. 116a.

The ALJ acknowledged that some of Child’s statements “could be 

hard to believe” and conceded there were inconsistencies between the various 

accounts of abuse stated by Child. ALJ Recommended Adjudication at 16. 

Nevertheless, the ALJ found Child credible:

I carefully observed the subject child testify. I find that her 

testimony was credible. [Child] was able to understand the 

questions and convey her answers. For a child of her age, who 

has been required to repeat her story many times since the age 

of 41⁄2, she was a good witness. 
21

Id. at 15. Further, the ALJ found no evidence that Child

had any bias, motive, or prejudice against [Father] prior to 

making her initial disclosure in 2011 at the age of 41⁄2.... 

Without motive, it is unreasonable to believe that a young girl 

[Child’s] age would make up allegations of sexual abuse by a 

man who she at the time called “dad” and loved visiting; and 

then continue with the allegations through the forensic 

interview, criminal hearings and an administrative hearing. 

There was no credible testimony or tangible proof that leads me 

to believe that [Child] would make up this story.

Id. 

It is the factfinder’s job not only to make credibility determinations, 

but to explain those determinations when doing the “weighing dynamic” required 

by 23 Pa. C.S. §6303(a). A.P. v. Department of Public Welfare, 98 A.3d 736, 744 

(Pa. Cmwlth. 2014). The ALJ did not believe Father’s denial that he ever put his 

finger in Child’s vagina but did, apparently, believe Father’s denial that he ever 

exposed Child to pornography. The ALJ also credited Father’s testimony that 

Child loved visiting him and their summer vacation together. However, the ALJ 

used this against Father, noting that it was unreasonable to believe that Child 

would make up a story about someone she liked and called “dad.” The ALJ made 

no observations about Father’s demeanor as he did for Child. The ALJ did not 

explain why Child’s inability to remember Aunt did not undermine her credibility. 

 The ALJ found that “there was no evidence of an underlying reason or 

motivation to suggest that [Child] would have lied or [Mother] would have 

fabricated these allegations with [Child].” ALJ Recommended Adjudication at 15. 

The ALJ did not consider the transcript from a hearing in a habeas corpus

proceeding conducted on January 31, 2013, at which Child and Mother testified. 

At that proceeding, Child testified that Mother did not like Father, stating:
22

[Attorney:] And you have talked with [Mother] about [Father]; right?

[Child:] Uh-huh.

[Attorney:] She doesn’t really – she doesn’t really like [Father]; 

right?

[Child:] Right.

[Attorney:] When I asked you if she doesn’t really like [Father] and 

you say right, how do you know she doesn’t like him?

[Child:] Because she never like him.

[Attorney:] She never liked him?

[Child:] Yeah.

R.R. 59a-60a. Also, at this proceeding, Mother testified about her ongoing custody 

disputes with Father, stating:

[Attorney:] And when you told him that the baby was not his, 

he did not accept that so to speak; is that fair to say?

[Mother:] Yes.

[Attorney:] And you maintained that it wasn’t his to the point 

where he had to go to the courts and do what we commonly call 

paternity tests?

[Mother:] Yes.

***

[Attorney:] This first thing you did was you told him it wasn’t 

his daughter; correct?

[Mother:] I was really upset because I was trying – I was 

trying to get him to – we were trying to have some kind of 

relationship because I was pregnant....

***
23

[Attorney:] Okay. You do remember him taking a paternity 

test?

[Mother:] I do remember that.

***

[Attorney:] ... you were resisting [Father’s attempt to get 

greater visitation with Child] or fighting that; correct?

[Mother:] Well no. Whenever we went to court, like any 

mother, I was just – I wasn’t fighting anything. I thought that 

going Friday through Sunday was enough time, because he had 

a full-time job and I was a stay-at-home mom. So being a stayat-home mom, I didn’t understand why he needed to have her 

all day Thursday or Thursday night and all day Friday when I 

was a stay-at-home mom staying at home for the reasons that I 

could watch her so that he wouldn’t have to work and watch her 

at the same time.

***

[Attorney:] ... Ma’am, you filed for modifications of visitation 

during this period of time. When he would get more, you 

actually went in, at least on one occasion, and asked the Court

to change it back to less; correct?

[Mother:] ... I don’t remember. But when he got Thursday 

night through Sunday, I believe that I didn’t understand why he 

would want Friday during the day when he works full-time and 

I’m a stay-at-home mom. So I just thought it would only be 

reasonable that he would pick her up Friday evening and return 

her Sunday night.

R.R. 18a, 20a-21a, 24a, 26a. In her interview with Interviewer, Child stated, 

“Father is mean and takes [her] away from Mother.” C.R. Exhibit C-2 at 2. 

A child is vulnerable to adult influence. Delbridge, 855 A.2d at 35. 

A child who believes her mother does not like her father could provide a motive

for a child to fabricate. Likewise, a mother’s dislike of a father, with whom she 
24

has a custody dispute, could taint a child’s statement. The ALJ found “no evidence 

of an underlying reason or motivation” for Child to lie without addressing

Mother’s animus toward Father that was identified by Child.

The ALJ stated that the transcript “only shows that mother rehearsed 

the child, perhaps to accurately repeat the same allegations she had consistently 

made over the years prior to the criminal hearing.” ALJ Recommended 

Adjudication at 16. The ALJ did not consider the significant problem of any 

coaching of a young child at any time. It renders that child’s testimony 

incompetent. Delbridge, 855 A.2d at 39. It causes

[t]he implementation of false memories or the distortion of real 

memories caused by interview techniques of law enforcement, 

social service personnel, or other interested adults, that are so 

unduly suggestive and coercive as to infect the memory of the 

child....

Id. at 35. The fact that Child has repeated the central part of her accusation, i.e., 

digital penetration, does not support her credibility, as suggested by the ALJ. The 

other facts surrounding that accusation have changed, such as where in the house 

the alleged abuse took place, the frequency of the alleged abuse, and what Child 

was doing at the time of the alleged abuse. Further, Child has been in the sole 

custody of Mother since November of 2011. Finally, the ALJ did not consider the 

gaps in Child’s memory. For example, Child could not recall Aunt’s identity, in 

spite of spending significant time with her.

The ALJ relied upon selective portions of the evidence, instead of 

considering the totality of the evidence. The ALJ reasoned that the pediatrician’s 

reports supported Child’s credibility, but they do not. Monthly, starting in June 

2011, Child saw the pediatrician with complaints of painful urination and bowel 
25

movements. In October 2011, the pediatrician discounted Child’s complaints, 

attributing them to “attention seeking behavior.” C.R. Exhibit A-3 (emphasis 

added). In May 2012, six months after Child’s last visit with Father, she returned 

to the pediatrician with the very same complaints. Child’s visits to the pediatrician 

with these complaints did not coincide in time with her visits with Father.

10

 More 

problematic is that Child’s complaints persisted into 2012, even though Child did 

not see Father after November 2011, when the accusation of sexual abuse was 

made.

Because the ALJ did not consider all the evidence that weighed 

against Child’s testimony, we will vacate the adjudication and remand the matter

for this exercise. The ALJ must consider all the above-discussed evidence that 

conflicts with the Child’s accusation and explain all credibility decisions in order 

to satisfy the “weighing dynamic” required by 23 Pa. C.S. §6303(a).

11

 The ALJ 

must address, specifically, the evidence of Mother’s motive to influence Child and 

Child’s statements regarding Mother’s dislike of Father. The ALJ must consider 

the fact that Mother coached Child’s testimony for the January 2013 habeas corpus

 

10 The notes of Child’s August 3, 2011, visit to the pediatrician did not record Mother’s claim 

that on that visit she reported Child’s “rocking motion” to the pediatrician. This visit took place 

before Child’s vacation with Father and his family from August 12, 2011, to August 20, 2011. 

R.R. 131a.

11 In G.V. v. Department of Public Welfare, 91 A.3d 667 (Pa. 2014), Justice Saylor, now Chief 

Justice, contrasted the “substantial evidence” standard of Section 6303(a) of the Child Protective 

Services Law, 23 Pa. C.S. §6303(a), with the traditional substantial evidence standard of review 

under Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. Justice Saylor observed 

that “substantial evidence” under the Child Protective Services Law incorporates “a weighing 

dynamic generally reserved for fact-finding. Traditional appellate substantial-evidence review 

... omits all such weighing – instead, this deferential form of review entails only an examination 

of whether the evidence, viewed in a light most favorable to the prevailing party, is adequate to 

support the administrative agency’s factual findings.” G.V., 91 A.3d at 674 (Saylor, J., 

concurring).
26

hearing. The ALJ must consider whether Interviewer’s interview techniques 

excluded the possibility of suggestion. Finally, the ALJ must consider the limited 

scope of the investigation because CYS did not interview Child’s Grandmother, for 

example. 

Conclusion

For these reasons, we vacate the Bureau’s adjudication and remand 

for a new adjudication.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

M.L., :

Petitioner :

: CASE SEALED

v. : No. 2356 C.D. 2015

: 

Department of Human Services, :

Respondent :

ORDER

AND NOW, this 6th day of March, 2017, the order of the Department 

of Human Services, Bureau of Hearings and Appeals, dated October 29, 2015, in 

the above-captioned matter is hereby VACATED, and this matter is REMANDED

to the Department for further consideration consistent with this opinion.

Jurisdiction relinquished.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge