IN THE COMMONWEALTH COURT OF PENNSYLVANIA

T.K. and M.K., :

Petitioners :

: CASE SEALED

v. : No. 1029 C.D. 2016

: Submitted: January 27, 2017

Department of Human Services, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: May 8, 2017

T.K. (Father) and M.K. (Mother) (collectively, Parents) petition for 

review of an adjudication of the Pennsylvania Department of Human Services 

(Department), Bureau of Hearings and Appeals (Bureau), that adopted an 

Administrative Law Judge’s recommendation to deny Parents’ request to expunge 

an indicated report of abuse of their son, L.K. (Child), from the ChildLine 

Registry.1 Parents argue that the indicated report was untimely filed under Section 

6337(b) of the Child Protective Services Law (Law),

2

23 Pa. C.S. §6337(b), and 

must be expunged. They further argue that the evidence of intervenor County 

Children and Youth Services (CYS) was insufficient to establish a presumption of 

 

1 ChildLine, a unit within the Department, operates a statewide system for receiving reports of 

suspected child abuse; refers the reports for investigation; and maintains the reports for 

reference. 55 Pa. Code §3490.4. 

2

23 Pa. C.S. §§6301-6386.
2

abuse under Section 6381(d) of the Law, 23 Pa. C.S. §6381(d). We agree and 

reverse.

Background

Father and Mother are married and the biological parents of Child and 

his brother, who is two years older. On December 20, 2014, when Child was 

approximately four months old, Parents took him and his brother to their on-call 

pediatrician’s office for their persistent cough and congestion. The on-call 

pediatrician (On-Call Pediatrician) examined them and ordered a chest x-ray. 

Child’s x-ray revealed “healing left lateral 6th and 7th rib fractures,” which, 

according to the physician who reviewed the x-ray, “raises concern for 

nonaccidental trauma and further investigation is required.” Certified Record 

(C.R.) Item 4, Exhibit C-6, at 4. Both children were then transferred to the 

emergency room for a skeletal x-ray. The tests were negative, except that Child’s 

report revealed the same “healing or healed fracture of the left seventh rib ... with 

what appears to represent a more recent fracture of the adjacent sixth rib.” C.R. 

Item 4, Exhibit C-6, at 7. No other fractures were identified. Child then

underwent a retina scan and a CT scan for signs of Shaken Baby Syndrome or 

other kinds of abuse; both results were negative. 

On December 20, 2014, CYS received a report of suspected child 

abuse related to Child’s rib fractures.3 C.R. Item 4, Exhibit C-1. A caseworker 

conducted an investigation. On-Call Pediatrician, who examined Child on 

 

3 Although the record shows that a written notice of suspected child abuse was sent to CYS on 

December 23, 2014 (C.R. Item 4, Exhibit C-1), the parties agreed, and the ALJ found, that CYS

received a phone call from ChildLine with the allegation of abuse on December 20, 2014. ALJ 

Opinion (11/2/2015) at 5. 
3

December 20, 2014, was then hired by the Children’s Advocacy Center to review 

the matter. Parents proposed two potential causes of the rib fractures. They 

explained that Child had recently fallen off a bed when the family was in New 

York for Thanksgiving. Parents consulted with Father’s sister, who is a physician, 

and she told them that it was unnecessary to visit the emergency room. Parents 

also explained that Child’s brother jumped on Child on at least two or three 

occasions, when he attempted to use a “bouncy chair” in which Child was sitting. 

These incidents caused Child to cry. 

On-Call Pediatrician prepared a report on behalf of the Children’s 

Advocacy Center, which report stated, in relevant part, as follows:

Chart reviewed completed and negative ... Chest x-ray done on 

02/12/2014 revealing healing left lateral 6th and 7th rib 

fractures. Reading was performed by Dr. Eric Vilbert. Skeletal 

survey performed by Dr. Weimer was negative with the 

exception of again anterior lateral left 6th and 7th rib fractures 

with what appeared to represent a more recent fracture of the 

adjacent sixth rib. No other fractures identified. Review of xrays performed by Dr. Faruq, Geisinger Medical Center 

radiology, in agreement with readings. CAT scan of the head 

performed on 12/29/2014 was within normal limits. Laboratory 

workup including calcium phosphorus, alkaline phosphatase, 

parathyroid hormone, vitamin D within normal limits. 

Ophthalmologic evaluation performed by Dr. Wilson, Geisinger 

Medical Center, reportedly within normal limits. 

C.R. Item 4, Exhibit C-6, at 2. The report concluded as follows:

A 4-month-old white male with anterior lateral rib fracture of 

ribs sixth and seventh possibly of different ages. Those injuries 

are inconsistent with the history of the mechanism reported and 

are highly suspicious for nonaccidental trauma. Case reviewed 

with [Consulting Physician who is] in agreement with 

evaluation and medical conclusion. 
4

C.R. Item 4, Exhibit C-6, at 2-3. 

On January 8, 2015, a multidisciplinary investigative team4met to 

discuss Child’s case and recommended that CYS file an indicated report of child 

abuse. On January 22, 2015, CYS filed an indicated report with ChildLine listing

the perpetrator as “unknown.” C.R. Item 4, Exhibit C-2, at 1. The report, filed on

Form CY-48, stated:

Child had injuries which could not have been caused by 

himself, and for which there was no explanation which was 

supported by medical opinion. A specific, known perpetrator 

could not be identified[,] however. Although the parents are the 

sole caretakers, there was no other evidence to identify either as 

the perpetrator. Report is indicated against Unknown. 

C.R. Item 4, Exhibit C-2, at 2. 

ChildLine rejected the report because it did not identify a perpetrator. 

On March 19, 2015, CYS decided to amend the initial report by identifying Parents 

as the perpetrators. The report, again filed on Form CY-48, stated:

Indicated on both parents. Child had injuries which could not 

have been caused by himself, and for which there was no 

explanation which was supported by medical opinion. The 

parents are the sole caretakers. 

C.R. Item 4, Exhibit C-3, at 2. 

 

4 By way of background, Section 6365 of the Law provides that the county agency shall make 

available among its services a multidisciplinary review team for the prevention, investigation, 

and treatment of child abuse. It further provides that the multidisciplinary investigative team 

shall be used to coordinate child abuse investigations between county agencies and law 

enforcement. The multidisciplinary investigative team shall consist of individuals and agencies 

responsible for investigating the abuse or for providing services to the child, including health 

care providers, county caseworkers, and law enforcement officials. 23 Pa. C.S. §6365(b)-(c). 
5

On April 3, 2015, the Department notified Parents that they were 

listed as perpetrators of physical abuse of Child in the ChildLine Registry. Parents 

appealed. On June 8, 2015, a hearing was held before an Administrative Law 

Judge (ALJ). CYS presented testimony from the CYS caseworker (Caseworker),

who conducted the investigation, and from On-Call Pediatrician. Parents presented 

testimony from a board-certified pediatric radiologist (Radiologist) and Child’s 

regular treating pediatrician (Treating Pediatrician). Parents also testified. 

Caseworker testified that she visited Parents at the hospital and again 

at their home, and they “continued to say that they couldn’t think of any way this 

[injury] could have happened unless it was from either [Child’s brother] jumping 

on [Child] when he was in his bouncy chair, or from the fall off the bed that 

occurred in New York State.” Notes of Testimony, 6/8/2015, at 40 (N.T. __). 

Caseworker testified that she talked to Father’s sister, a physician, who confirmed 

that she examined Child and did not believe he needed emergency room 

treatment.5 N.T. 74-75. Caseworker testified that she saw the “bouncy chair” 

during the home visit and described it as a little chair that sits on the floor. 

Caseworker described the chair as metal framed, coated in plastic and covered with 

fabric. 

Caseworker testified that Parents informed her that they were the sole 

caretakers of Child. She observed that Child’s two-year-old brother appeared to be 

in good health; the house was safe; and the boys were “healthy and clean.” N.T. 

70. She also testified that she spoke to the daycare attended by Child’s brother, 

which reported no concerns. She also spoke to Child’s pediatricians and was told 

 

5 At the hearing, the parties stipulated that Father’s sister examined Child shortly after he fell off 

the bed and did not see anything “amiss.” N.T. 149-50. 
6

that Child had never missed wellness visits. Caseworker testified that a safety plan 

had been undertaken during the investigation but was later terminated because

there were no ongoing safety concerns for either child. 

Caseworker testified that at the January 8, 2015, multidisciplinary 

investigative team meeting, On-Call Pediatrician opined that the rib fractures could 

not have been caused in either of the two ways Parents suggested. The District 

Attorney, who was also present at the meeting, stated that there was insufficient 

evidence to charge Parents. Caseworker testified that the District Attorney’s 

assessment was a “significant factor” in the team’s recommendation that CYS file 

an indicated report listing an unknown perpetrator. N.T. 78. 

Caseworker testified that she contacted the police “because [she was] 

required to notify police in [such] instances”; however, she had not heard back

from the police at the time she prepared the report. N.T. 30; 48. She testified that 

on January 21, 2015, right before she filed the report with ChildLine, she visited 

Parents again, telling them that “[CYS was] going to be indicating the case on 

unknown perpetrator, and that technically ... would mean [that] the report would 

be unfounded against them.” N.T. 49. 

Caseworker further testified that before she filed the report, she 

contacted ChildLine to see if any additional paperwork was needed to indicate 

unknown perpetrators; she was told that a Form CY-48 was enough. N.T. 54. 

After she filed the report, however, ChildLine informed her that CYS could not 

indicate unknown perpetrators but should rather “either ... unfound or indicate 

both parents. [CYS] can’t have it both ways.” N.T. 77. This prompted CYS to 

convene a meeting on March 19, 2015, and then name Parents as perpetrators. The 

District Attorney was not at the March meeting. Following the meeting, 
7

Caseworker filed a new Form CY-48 naming Parents as perpetrators, with the 

intent to replace “the one that [she] submitted in January that ChildLine rejected.” 

N.T. 57. She testified that between January 22, 2015, and March 19, 2015, CYS

did not receive new evidence. 

On-Call Pediatrician testified that under her contract with the 

Children’s Advocacy Center, she does medical examinations for any child who is

referred there for suspected physical or sexual abuse. She was trained in 

evaluating physical abuse in medical school and for “more than 17 years, [she had] 

always maintained some educational expertise in [] physical abuse.” N.T. 96. OnCall Pediatrician testified that she received “in-depth training of physical and 

sexual abuse ... through the regional CAC [Children’s Advocacy Center] training.” 

N.T. 96.

On-Call Pediatrician testified that she reviewed Child’s medical 

record with Consulting Physician, who is a “nationally renowned expert in child 

abuse.” N.T. 87-88. She testified that she sent Consulting Physician the 

examination report, which included the proposed mechanism of injury (i.e., falling 

off the bed onto the floor), without sending her the x-ray images. As a result of 

this consultation, On-Call Pediatrician concluded that “[t]he mechanism of trauma 

was not consistent with the findings of a rib fracture.” N.T. 89. She testified:

Rib fractures typically on a [] child with normal bones will only 

occur with an abnormal force of squeezing or compression or a 

crush injury such as a motor-vehicle accident. 

We do have, as well, lab reports as far as bone fragility testing, 

calcium phosphorus, alkaline phosphorus, that are all within 

normal limits, including vitamin D, testifying to the fact that his 

bones are normal, in addition to he has no other fractures on the 

skeletal survey. 
8

N.T. 90. On-Call Pediatrician testified that the report she prepared was based on

her own training and expertise and that she conferred with other physicians “to 

confirm [her] opinion.” N.T. 99. 

On-Call Pediatrician also testified that Child could not have been 

injured by his brother jumping on him in the bouncy chair. She explained: “Again, 

you’re not having a significant compression or squeezing force. That bouncy chair 

is very flexible, so there’s not a hard force ... that would cause fracture of the 

ribs.” N.T. 91. On-Call Pediatrician opined that “injuries such as this ... are 

highly specific for abuse.” N.T. 93. She explained:

The most recent article from the American Academy of 

Pediatrics, which is a compilation of research, has indicated that 

rib fractures are high specificity in regards to child abuse with 

specifically infants. Mainly because of the developmental age, 

they’re unable to cause any injuries to themselves.

And, again, there was no neurologic or radiologic evidence of 

bone disease. Multiple rib fractures are concerning for physical 

abuse. Fractures that are sequential, meaning as in this case, 

ribs six and seven, could be where placement of the fingers 

were creating that anterior/posterior compression causing the 

rib fracture.

N.T. 92. 

On-Call Pediatrician testified that she could rule out the possibility of 

inherited diseases and “all other matters that would come up in the differential for 

causes for this case[.]” N.T. 96-97. She testified that a child would experience 

severe pain at the time of the rib fracture and would scream continuously. On-Call 

Pediatrician opined that Parents should be identified as perpetrators of abuse of 

Child. 
9

On cross-examination, On-Call Pediatrician conceded that rib 

fractures could indicate either an accidental trauma or a non-accidental trauma. 

She testified:

[Question]: And you cannot look at an x-ray and actually tell 

from the x-ray whether that particular bone ... is a strong bone 

or a weak bone. You can tell really weak bones, but in the 

middle, you can’t. Is that not correct?

[Answer]: Correct.

* * *

[Question]: And since we don’t know the actual structure of 

the bone, how weak or how strong it is, we wouldn’t be able to 

give any reasonable opinions about how much force it would 

take to cause rib fractures in [Child]; isn’t that correct?

[Answer]: Correct. But at the same time, [Child] had no other 

fractures of any of his other bones. 

[Question]: No, I understand that. And so if a child has an 

older sibling and that sibling jumps or lands or causes some 

force to the child, that can explain an accidental injury, can it 

not?

[Answer]: If there is an anterior/posterior [front and back] 

compression. 

[Question]: Sure. So what you’re saying is the fall [off] the 

bed does not describe it, but you can’t tell us how, in fact,[] to a 

reasonable degree of medical certainty how this injury 

occurred; is that correct?

[Answer]: Correct.

* * *

[Question]: So the actual read of an x-ray is not diagnostic for 

abuse; is that not correct?
10

[Answer]: Correct. 

* * *

[Question]: And you would agree with [Radiologist’s] report, 

that just because there might be ... a difference in the callus of 

each fracture, that’s not the diagnostic of two separate injuries. 

Is that not correct?

[Answer]: That it’s difficult to ascertain that fact, correct.

[Question]: Right. So we can say within a reasonable degree 

of medical certainty that we have two rib fractures that could 

have happened in one incident. Is that not right?

[Answer]: It could have happened in one incident. It could 

have happened in two incidents. 

[Question]: Right. And that it could have happened from the 

trauma that’s accidental or non-accidental?

[Answer]: Correct. 

N.T. 102-05. The parties stipulated that the cause of the injury was not

demonstrated by the medical exams. 

Radiologist, who is board-certified in pediatric radiology, testified for 

Parents. She stated that the x-ray images appear to show that “[o]ne fracture ... 

[is] probably a complete fracture and the other may have been incomplete because 

[she] can only see the callus on one side of it.” N.T. 115. Radiologist testified that 

a callus, a healing response to bone fractures, starts to form “anywhere from a 

couple of weeks to a month or more” after the fracture. N.T. 115. Therefore, “[the 

fractures were] not just a few days of age.” N.T. 115. Beyond that, Radiologist

testified, she was not able to be precise. 

Radiologist testified that, because the injured ribs are right next to 

each other, “the likelihood is that [the fractures] occurred together.” N.T. 115-16. 
11

Radiologist agreed with On-Call Pediatrician that rib fractures could indicate either 

an accidental trauma or a non-accidental trauma: 

[Question]: Okay. Now, taking a look at those x-rays, are 

those x-rays diagnostic, in and of themselves, a non-accidental 

trauma to a four month old?

[Answer]: Absolutely not.

[Question]: And can you explain that? ....

[Answer]: X-rays can only tell you about the ... imaging 

presence or absence of certain types of anatomic findings. So 

on an x-ray, I can say a fracture is present. I can tell you if it’s 

healing. I can sometimes give a rough estimate of dates, but 

beyond that, there’s nothing about the x-ray that can tell us 

anything about whether they were inflicted ....

So for an inflicted injury – I think I sent you the references. 

Those children have been diagnosed, again, not by x-ray, but by 

evidence from a wide variety of sources. Bone fractures tend to 

be greater in number. It’s often associated with additional 

injuries, and from my review of the records these were isolated. 

* * *

[Question]: Okay. So ... medical evidence that takes it more to 

a conclusion of a non-accidental injury includes something 

more than two rib fractures; is that not correct?

[Answer]: Well, again, x-rays can’t tell you anything about 

intent.... So you have to look at the context of other things. In 

this case, there was additional imaging evaluation. That was 

negative.... X-rays are simply images. They can’t tell you 

anything – from the x-ray of this. I don’t have additional 

factors that would suggest abuse. All I have are two rib 

fractures.... 

N.T. 116-18. 
12

Treating Physician, Child’s primary treating pediatrician, also testified

for Parents. He and On-Call Pediatrician are partners in the same pediatric group, 

and he is the medical director of the Children’s Advocacy Center. Treating 

Physician testified that he had seen both Child and his brother for most of their 

wellness visits and some of their sick visits. Parents brought both children in on a

regular basis. He testified that “[he] typically see[s] a baby two or three days after 

they [sic] leave the hospital, and then a two-week visit and a two-months visit.” 

N.T. 141. Regarding Child’s general health, Treating Physician testified that 

“[o]verall, [Child] had been healthy. His biggest issue had been ... some eczema 

issues, but other than that, he’d been healthy and appropriate on all their visits.” 

N.T. 141. Treating Physician also testified to the rib fractures:

[Question]: So after the work-up had been done and the testing 

had been done, did your opinion change as to whether you had 

any concern regarding the parents and their care of their son?

[Answer]: Any time that you have rib fractures that are 

unexplained, it always is a concern for non-accidental trauma. 

Personally, I did not have specific concerns with [Child]’s 

parents, but ... nobody knew where these came from, and how 

they were obtained, so it puts everybody that had had contact 

with him as a potential inflictor of this.

N.T. 143. Treating Physician further testified that rib fractures in young children 

are difficult to detect:

Sometimes they have just generalized fussiness. Sometimes 

there is ... physical findings ... where they had significant 

trauma to their chest. Sometimes it’s unknown, basically an 

incidental finding with something else ... a respiratory illness 

where you happen to find something like this.

N.T. 145. 
13

Parents also testified. Mother testified that she had been a “stay-athome mom” since her pregnancy with Child. N.T. 154. She did not notice “any 

sort of fussiness” in the past months that would have led her to think that Child

may have rib fractures. N.T. 156. When she learned of the fractures, she was 

“absolutely heartbroken, very shocked.” N.T. 156. Both Parents denied that they 

had ever abused Child or his brother. 

Father testified that Child fell off of a bed when the family was in 

New York at his father’s house for Thanksgiving. Father placed Child on the bed 

and briefly left the room; he heard a thump and rushed back, finding Child crying 

on the floor on his stomach. Father testified that “[Child] was crying more loudly 

than I had ever heard him cry before.” N.T. 182. Father testified he did not 

believe that Child could fall, and he “was very surprised [that] he did fall.” N.T. 

181. Father then took Child to the other room; laid him on the bed; and checked 

his condition including pulse, pupils, and bones. Father testified that he had taken 

classes in first aid and was “current in CPR [cardiopulmonary resuscitation], [but]

not advanced first aid.” N.T. 182. Father thought Child was okay but he called his 

sister, a physician, who checked Child the next day. She concluded Child was 

fine. Father testified that he did not notice anything “out of the ordinary” 

thereafter. N.T. 184.

Mother testified that Child was “crying pretty hard for several 

minutes” after the fall. N.T. 158. She “tried to nurse him, which he nursed right 

away. And after that, he was fine and then he slept fine, too.” N.T. 158-59. 

Mother testified that the bed Child fell from was king-size and at least two and a 

half to three feet high. The floor was carpeted.
14

Parents also testified that Child’s brother was seen jumping onto Child

several times while Child was propped up in a bouncy chair. According to Mother, 

Child’s brother “would just run across the room and jump on top of him.” N.T. 

163. Father testified that they “would catch him most of the time, but not every 

time.” N.T. 180.

The ALJ recommended sustaining Parents’ appeal. He found that 

both the January 22, 2015, and March 19, 2015, indicated reports were defective. 

The January 22, 2015, report, the ALJ reasoned, should have identified a 

perpetrator of the alleged abuse; ChildLine had rejected the filing for the same 

reason. As to the March 19, 2015, report, it was not filed within the 60-day 

timeframe under Section 6337(b) of the Law, 23 Pa. C.S. §6337(b). Accordingly, 

the ALJ concluded that the report must be deemed unfounded. ALJ Opinion 

(11/2/2015) at 5. By order dated November 4, 2015, the Bureau adopted the ALJ’s 

recommendation in its entirety. 

CYS requested reconsideration, claiming that it had timely filed the 

indicated report on January 22, 2015, and the March 19, 2015, report was an 

amendment, not a new report. Further, CYS argued that it was allowed to list an 

unknown perpetrator in an indicated report. On November 20, 2015, the Secretary

of Human Services granted reconsideration and remanded the case to the Bureau to 

decide the merits of the matter. The parties requested that the appeals be 

adjudicated based on the June 8, 2015, hearing transcripts and the briefs filed. 

On remand, the ALJ reversed his prior recommendation. Crediting 

the testimony of On-Call Pediatrician and Radiologist, the ALJ found that Child’s 

ribs were likely injured at the same time. At least one rib was completely 

fractured, which “would have been extremely painful when it occurred.” ALJ 
15

Opinion (5/26/2016) at 13. The ALJ further found that unexplained rib fractures in 

an infant are highly suspicious for abuse because an infant’s ribs are highly elastic 

and difficult to break. No evidence, the ALJ found, suggested that Child had a 

medical condition or history of being involved in a vehicular accident or other nonabuse event involving significant forces that could explain the rib fractures.

Discrediting Parents’ testimony, the ALJ found their two possible 

explanations implausible because neither involved sufficient force to compress 

Child’s chest and fracture his ribs. The ALJ reasoned that one expects head or 

clavicle injuries to occur in a fall. Further, Child did not cry continuously after 

either incident; rather, Parents described that he was quickly consoled. The ALJ 

concluded that, “[a]s no plausible accidental explanation for the serious physical 

injuries was provided after non-abuse medical or congenital explanations were 

excluded, and the injuries would have caused the child to experience severe pain

... CYS provided substantial evidence that the subject child was the victim of 

physical child abuse.” ALJ Opinion (5/26/2016) at 12. 

The ALJ further concluded that CYS demonstrated by substantial 

evidence that the presumption under Section 6381(d) of the Law should apply to 

find that Parents abused Child. 23 Pa. C.S. §6381(d). Further, Parents failed to 

overcome the presumption that one of them abused Child by offering a plausible 

explanation for Child’s injuries. Accordingly, the ALJ recommended that Parents’ 

appeal be denied. On June 2, 2016, the Bureau adopted the ALJ’s proposed 

adjudication in its entirety. Parents then filed the subject petition for review with 

this Court.
16

Appeal

On appeal,6Parents raise two issues. They first argue that the Bureau 

erred in denying their expungement request because CYS’s March 19, 2015, report 

was filed well beyond the 60-day deadline under Section 6337(b) of the Law, 23 

Pa. C.S. §6337(b). Second, Parents argue that the Bureau erred in finding that 

CYS provided substantial evidence that Child’s rib fractures were the result of 

abuse. We address these issues seriatim. 

I.

In their first issue, Parents argue that the Bureau erred in denying their 

expungement request because CYS did not file an indicated report against them 

until March 19, 2015, which was well beyond the 60-day deadline imposed by

Section 6337(b) of the Law. Failure to file a report within the statutory timeframe, 

Parents argue, rendered the report unfounded. CYS counters that it timely filed an 

indicated report on January 22, 2015; the March 19, 2015, report simply amended

the previous report to identify the perpetrators. CYS further argues that the 60-day 

period did not begin to run until “the agency [CYS] reported a named perpetrator 

to ChildLine.” CYS Brief at 11. Parents respond that if the March 19, 2015,

report was indeed an amendment, it should have been filed on Form CY-49. 

We begin with an examination of the law relevant to the timeliness of 

an indicated report. Section 6337(b) of the Law provides:

 

6

“This Court’s review is limited to determining whether legal error has been committed, whether 

constitutional rights have been violated, or whether the necessary findings of fact are supported 

by substantial evidence.” T.H. v. Department of Human Services, 145 A.3d 1191, 1196 n. 6 (Pa. 

Cmwlth. 2016) (quoting F.R. v. Department of Public Welfare, 4 A.3d 779, 782 n.7 (Pa. Cmwlth. 

2010)). Whether a county agency’s evidence satisfied the evidentiary standard set forth in the 

statute is a question of law. In re S.H., 96 A.3d 448, 455 (Pa. Cmwlth. 2014). 
17

(b) Absence of other determination. – If an investigation of a 

report of suspected child abuse conducted by the appropriate 

county agency pursuant to this chapter does not determine 

within 60 days of the date of the initial report of the instance of 

suspected child abuse that the report is a founded report, an 

indicated report or an unfounded report, or unless within that 

same 60-day period court action has been initiated and is 

responsible for the delay, the report shall be considered to be 

an unfounded report, and all information identifying the 

subjects of the report shall be expunged no later than 120 days 

following the expiration of one year after the date the report 

was received by the department....

23 Pa. C.S. §6337(b) (emphasis added). In accordance with Section 6337(b), 

Section 3490.69 of the Department’s regulations provides that, “[w]hen the CY-48 

form is not filed with ChildLine within 60-calendar days of receipt of the report by 

ChildLine, the report shall be unfounded.” 55 Pa. Code §3490.69. This Court has 

construed this provision to mean that a report is deemed unfounded when a county 

agency fails to file the report as founded, indicated, or unfounded within the 60-

day deadline. J.C. v. Department of Public Welfare, 138 A.3d 57, 62 n. 16 (Pa. 

Cmwlth. 2016). 

The Department’s regulations also provide a procedure for a county 

agency to amend a founded or indicated report. Section 3490.67(d) of the 

Department regulations states:

(d) A supplemental child abuse report form shall be submitted

to ChildLine on founded and indicated reports when additional 

case information is obtained, including dates of birth, identity 

of the subjects, additional information about the nature of the 

abuse, or the case is presented before a court and there is a 

change in the status of the report.
18

55 Pa. Code §3490.67(d) (emphasis added). The Department has designated Form 

CY-49 as “Child Protective Service Supplemental Report.”7

The parties do not dispute, and the ALJ found, that in this case CYS 

intended to file an indicated report. Section 6303(a) of the Law defines an 

“indicated report” as:

[A] report of child abuse made pursuant to this chapter 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) Available medical evidence.

(ii) The child protective service investigation.

(iii) An admission of the acts of abuse by the 

perpetrator. 

23 Pa. C.S. §6303(a). Effective December 31, 2014, an indicated report based on

(i) or (ii) may list the perpetrator as “unknown” if “substantial evidence of abuse 

by a perpetrator exists, but the department or county agency is unable to identify 

the specific perpetrator.” 23 Pa. C.S. §6303(a), added by Act of December 18, 

2013, P.L. 1170. 

Here, CYS received a report of suspected abuse of Child on December 

20, 2014; it filed an indicated report with ChildLine on January 22, 2015, listing 

the perpetrators as “unknown.” This filing was permitted under Section 6303(a), 

which had become effective on December 31, 2014. Nevertheless, ChildLine

rejected the filing8based upon former Section 6303, which required identification 

 

7

See 55 Pa. Code §3490.91(a)(5)(i). 

8

The ALJ found that ChildLine had rejected CYS’s January 22, 2015, indicated report. ALJ 

Opinion (5/26/2016) at 5, Finding of Fact No. 38. This finding, as part of the ALJ’s 

(Footnote continued on the next page . . .)
19

of a specific perpetrator of the alleged abuse. Regardless of whether ChildLine’s 

interpretation of the Law was reasonable under the circumstances, the January 22, 

2015, report had been rejected and, as a result, could not be amended. 

Further, the March 19, 2015, report was filed on a Form CY-48. The 

Department regulation provides that, to amend a previously filed report, “[a]

supplemental child abuse report form shall be submitted to ChildLine on founded 

and indicated reports when additional case information is obtained....” 55 Pa. 

Code §3490.67(d) (emphasis added). Form CY-49 is the designated supplemental 

child abuse report form. Furthermore, between January 8, 2015, and March 19, 

2015, CYS did not obtain additional information on the cause of Child’s rib 

injuries or that indicated Parents were perpetrators of abuse. 

For the above reasons, we conclude that the March 19, 2015, report 

was not an amendment to the January 22, 2015, report, which had been rejected 

and, thus, no longer existed. The March 19, 2015, indicated report constituted a 

new filing.

The March 19, 2015, indicated report was untimely. CYS received 

the report of suspected abuse on December 20, 2014. Nearly 90 days passed 

before CYS filed the indicated report on March 19, 2015. Under Section 6337(b) 

of the Law, the report had to be filed within 60 days of the initial report of abuse. 

23 Pa. C.S. §6337(b). Because the report was untimely, it should have been 

deemed unfounded under Section 6337(b) of the Law, 23 Pa. C.S. §6337(b), and 

its accompanying regulation, 55 Pa. Code §3490.69.

 

(continued . . .)

Recommendation, was adopted by the Bureau on June 2, 2016. The parties do not contest this 

finding on appeal before this Court. 
20

II.

Parents argue, next, that the Bureau erred in finding that CYS

provided substantial evidence that Child’s rib fractures resulted from abuse. They 

contend that the evidence presented by both parties showed that rib fractures can 

be caused by either accidental or non-accidental trauma. Further, Parents argue, 

the Bureau erred in applying the presumption of abuse because the evidence

established only a suspicion of abuse. By doing so, the Bureau improperly shifted 

the burden of proof to Parents. The Department responds that substantial evidence 

existed to establish a prima facie case of child abuse because every medical 

witness testified that rib fractures are significant injuries caused by strong force 

that will cause severe pain. Further, Parents did not offer a plausible explanation 

as to how Child’s injury occurred and therefore failed to rebut the presumption of 

abuse. 

An indicated report is issued by a county agency or the Department if, 

after an investigation, “‘substantial evidence’ of the alleged abuse exists based on 

available medical evidence, the child protective services investigation, or an 

admission of the facts of abuse by the perpetrator.” G.V. v. Department of Public 

Welfare, 91 A.3d 667, 671 (Pa. 2014) (quoting 23 Pa. C.S. §6303(a)). Section 

6303(a) of the 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). Further, Section 6303(b.1) defines 

the term “child abuse” as follows:

The term “child abuse” shall mean intentionally, knowingly or 

recklessly doing any of the following: 

(1) Causing bodily injury to a child through any recent act or 

failure to act.
21

***

(5) Creating a reasonable likelihood of bodily injury to a child 

through any recent act or failure to act.

***

(7) Causing serious physical neglect of a child.

23 Pa. C.S. §6303(b.1) (emphasis added).9 Section 6303(c) of the Law recites the 

requirement for finding an individual culpable of child abuse as follows: 

Conduct that causes injury or harm to a child or creates a risk of 

injury or harm to a child shall not be considered child abuse if 

there is no evidence that the person acted intentionally, 

knowingly or recklessly when causing the injury or harm to the 

child or creating a risk of injury or harm to the child. 

23 Pa. C.S. §6303(c). 

The “substantial evidence” standard, as articulated under Section 

6303(a) of the Law, is “the equivalent of the preponderance of the evidence 

standard.” T.H. v. Department of Human Services, 145 A.3d 1191, 1198 (Pa. 

Cmwlth. 2016). CYS bears the burden of showing that the indicated report of 

abuse is accurate and is consistent with the Law. Id.; 23 Pa. C.S. §6341(c). 

Section 6381(d) of the Law establishes a presumption of child abuse

in certain cases. It states:

 

9 At the time the alleged abuse occurred in this case, the Child Protective Services Law defined 

“child abuse,” in relevant part, as “any recent act or failure to act by a perpetrator which causes 

nonaccidental serious physical injury to a child under 18 years of age.” 23 Pa. C.S. §6303. This 

definition was amended to the current version quoted in the body of this opinion, effective 

December 31, 2014, to broaden the term “child abuse” significantly. Act of December 18, 2013, 

P.L. 1170; see also In re L.Z., 111 A.3d 1164, 1168 n.3 (Pa. 2015). In this case, CYS filed the 

indicated report with ChildLine after December 31, 2014, when the current version of Section 

6303 was in effect. Therefore, the indicated report at issue is governed by the current, rather 

than the previous, version of Section 6303 of the Law. 
22

(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 parents 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). Prima facie evidence is “[s]uch evidence as, in the judgment 

of the law, is sufficient to establish a given fact, or the group or chain of facts 

constituting the party’s claim or defense, and which if not rebutted or contradicted, 

will remain sufficient.” In re L.Z., 111 A.3d 1164, 1185 (Pa. 2015) (quoting 

BLACK’S LAW DICTIONARY 825 (6th ed. abridged 1991)). “[E]vidence that a child 

suffered injury that would not ordinarily be sustained but for the acts or omissions 

of the parent or responsible person is sufficient to establish that the parent or 

responsible person perpetrated that abuse unless the parent or responsible person

rebuts the presumption. The parent or responsible person may present evidence 

demonstrating that they [sic] did not inflict the abuse[.]” Id.

Here, crediting On-Call Pediatrician’s testimony, the ALJ found that 

rib fractures in infants are “highly suspicious for child abuse.” ALJ Opinion

(5/26/2016) at 3, Finding of Fact No. 15. On-Call Pediatrician admitted, however, 

that a rib fracture is a type of injury derived from either an accidental or nonaccidental trauma. Radiologist testified that x-ray images of two rib fractures, 

without more, cannot establish abuse. On-Call Pediatrician also conceded that an 

older sibling jumping onto an infant could cause rib fractures “[i]f there is an 

anterior/posterior [front and back] compression.” N.T. 103-04. Both physicians

testified that reading an x-ray image, by itself, cannot support a conclusion that 

abuse occurred. The ALJ credited the above testimony; in fact, he credited the 

testimony of all witnesses except Parents. ALJ Opinion (5/26/2016) at 13. 
23

The evidence, taken as a whole, did not establish that the alleged 

abuse is “of such a nature as would ordinarily not be sustained or exist except by 

reason of the acts or omissions of the parent.” 23 Pa. C.S. §6381(d). An injury 

that is “highly suspicious for child abuse” does not establish abuse. CYS did not 

establish, by substantial evidence, the occurrence of “child abuse,” which is 

defined as “intentionally, knowingly or recklessly ... [c]ausing bodily injury to a 

child through any recent act or failure to act....” 23 Pa. C.S. §6303(b.1)(1)

(emphasis added). Section 6303(c) further states that “[c]onduct that causes injury 

or harm to a child ... shall not be considered child abuse if there is no evidence that 

the person acted intentionally, knowingly or recklessly when causing the injury or 

harm to the child....” 23 Pa. C.S. §6303(c) (emphasis added). Stated otherwise, 

the mere existence of an injury, without additional evidence, cannot support a 

finding of abuse. Here, CYS offered no evidence of Parents’ culpability. For all 

of the foregoing reasons, we conclude that CYS failed to establish, with substantial 

evidence, a prima facie case of abuse under Section 6381(d) of the Law, 23 Pa. 

C.S. §6381(d). The Bureau, therefore, erred by shifting the burden of proof to 

Parents to rebut a claim that they abused their child. 

Conclusion

For all of the foregoing reasons, we reverse the Bureau’s decision and 

direct the expunction of Parents’ indicated report from the ChildLine Registry and 

deny Parents’ request for oral argument as moot.

 ________________________________________________

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

T.K. and M.K., :

Petitioners :

: CASE SEALED

v. : No. 1029 C.D. 2016

:

Department of Human Services, :

Respondent :

 

O R D E R

AND NOW, this 8th day of May, 2017, the order of the Department of 

Human Services, Bureau of Hearings and Appeals, dated June 2, 2016, in the 

above-captioned matter is hereby REVERSED and T.K. and M.K.’s indicated 

report is ORDERED to be removed from the ChildLine Registry. Petitioners’ 

application for oral argument is DENIED.

 _________________________________________________

 MARY HANNAH LEAVITT, President Judge