IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.W., :

Petitioner :

:

v. : No. 1422 C.D. 2017

: SUBMITTED: May 11, 2018

Department of Human Services, :

Respondent : CASE SEALED

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: July 19, 2018

S.W. (Father) petitions pro se for review of an order of the Secretary of 

Human Services, of the Department of Human Services (Department) upholding the 

decision of the Bureau of Hearings and Appeals to deny his appeal and request to 

expunge the indicated report of mental child abuse against him. Following a remand 

pursuant to S.W. v. Department of Human Services, (Pa. Cmwlth., No. 162 C.D. 

2016, filed March 20, 2017) (S.W. I), we affirm.

M.W. (Child) was born in 2004. During the relevant time periods, his 

parents (Father and Mother) were separated and experiencing acrimonious 

separation and custody issues. Having already been diagnosed with ADHD, Child 

began treating with a licensed child psychiatrist in April 2014 due to focusing issues. 

The psychiatrist diagnosed Child with acute adjustment disorder with anxiety, which 
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occurs when stress produces anxiety that impairs functioning. (August 16, 2017, 

Adjudication, Finding of Fact (F.F.) Nos. 1, 3, 6 and 8.)

In October 2014, the psychiatrist found that Child suffered from tics, 

including excessive sneezing and blinking, and increased anxiety. (Id., No. 9.) In 

December 2014, Child presented at her office with increased anxiety and tics, 

including constant coughing and repetitive blinking. (Id., No. 12.) The psychiatrist 

opined that Child’s escalating anxiety was due to Father forcing him to call (1) the 

Franklin County Children and Youth Services (CYS) to state that Mother attempted 

suicide; and (2) the police and falsely state that his stepbrother had purposefully 

bruised him. The psychiatrist also testified that Child did not want to leave Mother’s 

side and was afraid of being at school because he feared Father taking him away 

from Mother or hurting her in Child’s absence. (S.W. I, slip op. at 5.)

By March 2015, Child was missing multiple days of school each week 

due to disruptive coughing. That month, he was hospitalized on two separate 

occasions due to severe anxiety. (F.F. Nos. 13 and 14.) On March 25th, CYS

received and investigated a report of alleged child abuse regarding Child. (Id., Nos. 

23 and 24.) Around the end of that month, Child no longer had visitation with Father. 

Shortly thereafter, opining that Child’s main stressor was his relationship with 

Father, the psychiatrist reported that Child showed a dramatic decrease in anxiety 

levels. (Id., Nos. 16-18.) She stated that he was going to school every day and 

staying in class, that he was sleeping well, and that he had no tics. (S.W. I., slip op. 

at 6.) In addition, she noted that, for the first time, Child was angry with Father and 

neither wanted to see him nor speak with him on the phone. (Id.)

In June 2015, the psychiatrist diagnosed Child with Asperger’s. In July 

2015, she opined that he was not anxious, had no tics, made no complaints regarding 
3

his medications, and was sleeping well. (S.W. I, slip op. at 7.) Although she 

acknowledged on cross-examination that he had changed schools at some point, she 

nonetheless reiterated that Child’s main stressor was his relationship with Father. In 

support, she cited Child’s complaints and the dramatic decrease in his anxiety since 

the discontinuation of visitation with Father. (Id.) Subsequently, once CYS

determined that there was substantial evidence of child abuse, it filed an April 2015

indicated report of abuse listing Father as perpetrator. Father appealed. (F.F. Nos. 

25 and 26.)

At the hearing that followed, neither Father nor Mother testified. Father 

via counsel presented the testimony of his sister, brother, and brother-in-law. CYS 

proffered the testimony of Child, the psychiatrist, and the CYS investigator. It also 

presented the psychiatrist’s report detailing Child’s diagnosis, therapy, treatment, 

and familial interactions. The Administrative Law Judge (ALJ) accepted the 

testimony of all of the witnesses as credible. In addition, he admitted the report in 

part and excluded it in part, stating that he would give whatever weight he deemed 

necessary to the admissible portions and not consider the rest. (S.W. I, slip op. at 

17.) Ultimately concluding that Father had committed mental child abuse, the ALJ 

cited Father’s (1) degrading of Mother in front of Child; (2) questioning of Child 

about Mother; (3) threats to take Child away from Mother; and (4) intentional 

withholding of prescribed medications. (Id. at 16.) In January 2016, the Bureau 

adopted the ALJ’s recommendation in its entirety.

In March 2017, this Court in S.W. I concluded that there were two bases 

for the child abuse determination: (1) Father’s failure to give Child his medications; 

and (2) Father’s relationship with Child. Concluding that the record did not support 

a determination that the first basis was actionable, we turned to the second. (S.W. I, 
4

slip op. at 22.) Reciting that Child credibly testified that Father’s behavior bothered 

him, we also noted the psychiatrist’s observation that Child’s anxiety decreased 

dramatically after the termination of visitation. We further noted, however, that the 

record contained conflicting evidence that Father alleged outweighed any evidence 

supporting a finding that he substantially contributed to Child’s serious mental 

injury. This conflicting evidence included Child’s congenital disorders and Mother 

and Maternal Grandmother allegedly filling Child’s head with misinformation about 

Father and causing Child to fear for Mother’s loneliness when Child was with Father. 

In addition, Father alleged that the factfinder had ignored the fact that Child’s issues 

were greatly improved by a change in school and an Asperger’s diagnosis that 

resulted in a positive medication change. (Id. at 17-18.) Accordingly, citing the 

ALJ’s failure to address such evidence, we remanded for specific findings regarding: 

(1) the admissibility of the psychiatrist’s report due to the ALJ’s lack of clarity in 

determining which portions were admissible; and (2) the weight given to conflicting 

evidence suggesting other causes for Child’s serious mental injury. (Id. at 23.)

Subsequently, the ALJ issued an August 2017 recommended 

adjudication combining his original decision with the new findings made on remand. 

Once again, the Bureau adopted the ALJ’s recommendation in its entirety. Father’s 

petition for review followed. On appeal, we consider whether the Secretary erred in 

concluding that the Department met its burden of establishing by substantial 

evidence that Father intentionally, knowingly or recklessly caused or substantially 

contributed to serious mental injury to Child.

Section 6303 of the Child Protective Services Law (CPSL) defines 

“substantial evidence” as “[e]vidence which outweighs inconsistent evidence and 

which a reasonable person would accept as adequate to support a conclusion.” 23 
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Pa. C.S. § 6303. It is the equivalent of the preponderance of the evidence standard. 

S.T. v. Dep’t of Pub. Welfare, 681 A.2d 853, 857 n.4 (Pa. Cmwlth. 1996). This 

substantial evidence/preponderance of the evidence standard means that the 

factfinder must be satisfied that the evidence shows that a fact is probably true, i.e., 

more likely true than not. In re S.H., 96 A.3d 448, 455 n.7 (Pa. Cmwlth. 2014). In 

addition, the Secretary is the ultimate finder of fact in expunction appeals. K.J. v. 

Dep’t of Pub. Welfare, 767 A.2d 609, 613 (Pa. Cmwlth. 2001). Consequently, 

absent an abuse of discretion, we will not disturb his credibility determinations and 

the weight that he accorded to the evidence. D.T. v. Dep’t of Pub. Welfare, 873 A.2d 

850, 853 (Pa. Cmwlth. 2005). Further, in ascertaining whether the fact-findings are 

supported by substantial evidence, we must review the evidence and the inferences 

reasonably drawn therefrom in the light most favorable to the party who prevailed 

below. W. Ctr., Dep’t of Pub. Welfare v. Hoon, 598 A.2d 1042, 1045 (Pa. Cmwlth. 

1991).

Section 6303(b.1)(3) of the CPSL provides, in pertinent part, that the 

term “child abuse” shall mean intentionally, knowingly or recklessly doing any of 

the following: “Causing or substantially contributing to serious mental injury to a 

child through any act or failure to act or a series of such acts or failures to act.” 23 

Pa. C.S. § 6303(b.1)(3). “Serious mental injury” is defined as follows:

A psychological condition, as diagnosed by a 

physician or licensed psychologist, including the refusal 

of appropriate treatment, that:

(i) renders a child chronically and severely anxious, 

agitated, depressed, socially withdrawn, psychotic or in 

reasonable fear that the child’s life or safety is threatened; 

or

 (ii) seriously interferes with the child’s ability to 

accomplish age-appropriate developmental or social tasks.
6

Section 6303(a) of the CPSL.

In the present case, Father argues that the Secretary should have 

determined that Child’s serious mental injury resulted from the other potential 

causes described in the aforementioned conflicting evidence. To that end, he alleges 

that the factfinder improperly evaluated and/or failed to accord proper weight to that 

evidence. In addition, Father contends that Child’s “cocktail of medications” had a 

definite impact on his wellbeing such that Father was not the source of a serious 

mental injury. In support, Father has attached an addendum to his brief depicting 

purported side effects to certain medications. Father’s contentions are without merit.

On remand, the factfinder considered and disregarded other alleged 

causes of Child’s serious mental injury. In concluding that there was substantial 

evidence that Father’s actions substantially contributed to a serious mental injury to

Child, the Secretary reasoned:

First of all, . . . the “conflicting evidence” . . . is 

minimal at best and in many cases does not exist. [Child’s] 

Asperger’s diagnosis had no effect on [his] injury. 

[Child’s] anxiety levels began to lower in March of 2015, 

when he stopped seeing [Father]. [Child] was diagnosed 

with Asperger’s at the end of June, 2015. [Child’s] 

anxiety levels were still low throughout that time period, 

and continued to be low after said diagnosis. (N.T. 55-57) 

There was very limited questioning regarding [Child’s] 

change of schools, and no pertinent analysis on the effect 

of the school change (positive or negative). [Child] 

testified that [Mother] did not tell him what to say, nor did 

she suggest how bruises may have been received. (N.T. 

122-123, 128-129)

As stated previously, there are other factors that 

have some effect on [Child’s] mental health. The 

contentious relationship between his parents, until 

resolved, will always be a stressor in [his] life. However, 

what is abundantly clear in the hearing record, and 
7

acknowledged by Commonwealth Court, is that [Child] 

suffered anxiety related to visitation with [Father]. The 

two most important witnesses at hearing, [Child] and the 

psychiatrist are unequivocal that [Father’s] words and 

actions toward [Child] are the main factor regarding his 

mental injury. Even [Father’s] sister testified that 

[Father] spoke in derogatory terms about [Mother], and 

that some of those times were in front of [Child]. (N.T. 

170-171) Additionally, when the stressor (visitation with 

[Father]) was removed from [Child’s] life, [his] mental 

condition improved greatly.

Looking at the totality of the hearing record, . . . 

[Father] clearly acted recklessly in degrading [Mother], 

constantly asking questions about what was going on in 

her household, and threatening to take [Child] away from 

her.

(August 16, 2017, Adjudication at 13) (emphasis added).

Moreover, Father’s assertion regarding the side effects of certain 

medications is tantamount to a post-hearing attempt to present extra-record 

evidence. A court may not accept appendices attached to a petitioner’s brief that are 

dehors the record. Rossi v. Unemployment Comp. Bd. of Review, 675 A.2d 390, 392 

(Pa. Cmwlth. 1996).

By way of further analysis, we conclude that Father is improperly 

urging this Court to reweigh the evidence and to accept his version of the facts. 

Mindful that the Secretary accepted the testimony of both the psychiatrist and Child 

as credible and afforded it substantial evidentiary weight, we turn first to the 

evidence pertaining to the psychiatrist. The factfinder noted that she testified to the 

totality of Father’s actions in causing mental injury to Child, including: frequently 

calling Mother unseemly names despite Child asking Father to stop; making Child 

lie to CYS about accidental bruises received while in Mother’s care; and telling 

Child that he would hurt Mother. As the Secretary stated regarding the importance 
8

of considering the totality of circumstances surrounding the subject child in mental 

abuse cases and analyzing what or who has impacted a mental injury: “In most cases 

regarding mental abuse, causation does not involve a single event, but a pattern of 

behaviors over time that lead to any injury or an exacerbation of an injury.” (August 

16, 2017, Adjudication at 11.) In that regard, the psychiatrist consistently opined 

over the course of treatment that Child’s relationship with Father was Child’s main 

stressor and the source of his anxiety.

In addition, in response to this Court’s directive in S.W. I, the Secretary 

carefully analyzed each segment of the psychiatrist’s report. In so doing, he stated: 

“It is important to note that I gave less weight to the admissible portions of this report 

than was given to the credible testimony of [Child] and [the psychiatrist].” (August 

16, 2017, Adjudication at 8.) In any event, below is a summary of those segments 

of the report that the Secretary deemed admissible:

Paragraph One: Introductory information that but for 

diagnosis information carries no weight;

Paragraph Two: Admissible statements pertain to Father 

calling Child every night and asking him many questions 

regarding Mother and Father calling Child nicknames;

Paragraph Three: Admissible in toto in that it pertained to 

the psychiatrist’s direct interactions with Father which she 

testified to without rebuttal;

Paragraph Four: Admissible statements include the fact 

that Child felt relieved when he did not have to spend 

weekends with Father and that Father told him to spit out 

his medication;

Paragraph Five: Admissible statements include Father 

making Child call CYS to report Mother’s suicide attempt, 

Child working with Father at BJ’s at three a.m., and Father 

making Child lie to police regarding source of bruises;
9

Paragraph Six: Admissible statement includes Child 

reporting that he was afraid that Father would hurt Mother 

while Child was at school.

(August 16, 2017, Adjudication at 8.) Also in accordance with our directive on 

remand, the Secretary explained why he determined that the rest of the report was 

inadmissible.1 (Id. at 9.)

Finally, as noted, the Secretary accepted as credible and afforded 

weight to Child’s testimony that some of Father’s actions bothered him a great deal. 

(Id. at 11.) These actions included: degrading Child’s mother to him; calling Mother

unseemly names; asking Child questions about Mother including whom she was 

with, what she was feeding him, and who was in the room during phone 

conversations; and telling Child that Father was going to take him away from 

Mother. (July 30, 2015, Hearing, Notes of Testimony (N.T.) at 102-03, 112-15; 

Reproduced Record (R.R.) at 213-14, 223-26.) Regarding the latter, Child testified 

that Father would try anything to get him away from Mother, including bribing him 

with the promise of a dog and sometimes following them in Father’s car. (Id. at 112; 

R.R. at 223.)

 

1

In rejecting specified portions of the report, the factfinder observed that Child’s statements 

made during therapy that were not part of his testimony presented a problem with admissibility. 

The factfinder reasoned:

The problem is twofold. First, [the psychiatrist] testified that she 

did not keep record of sessions when she spoke to [Child] alone 

versus speaking to [him] and [Mother] together in therapy. (N.T. 

76) Without this delineation, it is impossible to determine whether

the information provided was done so by [Child] or [Mother]. As 

neither party called [Mother] as a witness, this information is 

inadmissible hearsay. Second, without similar direct testimony 

from [Child], these statements are double hearsay. As such, said 

statements are inadmissible.

(August 16, 2017, Adjudication at 8) (footnote omitted).
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Moreover, Child also testified regarding a panic attack brought on by 

the idea of seeing Father at a school function and feeling unsafe in Father’s home. 

(Id. at 97-99; R.R. at 208-10.) Specifically regarding school, Child testified as 

follows:

Well, I did feel anxious, like, scared a bunch of times, 

because – well, first, the time I can remember was because 

I didn’t want to go to my school concert because I was 

afraid he would be there. . . . I don’t like whenever I’m 

around him. I think it was because of the fist mark. And 

so I was, like – I was coughing a lot and really scared. I 

couldn’t even focus on math.

(Id. at 99; R.R. at 210.) 

It is well settled that the factfinder may base his determination that an 

indicated report is accurate on the consistent testimony of a child abuse victim. G.V. 

v. Dep’t of Pub. Welfare, 52 A.3d 434, 439 (Pa. Cmwlth. 2012); D.T., 873 A.2d at 

854. Here, Child’s testimony, combined with the other credible evidence of record,

constituted substantial evidence that Father substantially contributed to Child’s 

serious mental injury and that such injury rendered Child severely anxious and 

interfered with his ability to accomplish age-appropriate developmental or social 

tasks under the CPSL.

Accordingly, we affirm. 

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.W., :

Petitioner :

:

v. : No. 1422 C.D. 2017

:

Department of Human Services, :

Respondent : CASE SEALED

O R D E R

AND NOW, this 19th day of July, 2018, the final order of the Secretary 

of Human Services, of the Department of Human Services is hereby AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge