Opinion
No. 968 C.D. 2014
01-08-2015
E.B., Petitioner v. Department of Public Welfare, Respondent
SEALED CASE
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
E.B. (E.B.) petitions for review from a final order of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (BHA) adopting the recommendation of an Administrative Law Judge (ALJ) to deny her request for expunction of an indicated report of child abuse by omission under the Child Protective Services Law (Law). E.B. contends the record does not support BHA's determination that she knew, or should have known, of a significant risk that her minor daughter would be sexually abused or that she did not take protective measures to ensure her safety. She also contends BHA erred in determining the risk of sexual abuse was "imminent." Discerning no error, we affirm.
The Department of Public Welfare is now called the "Department of Human Services."
I. Background
E.B. is the natural mother of minor daughter and subject child, K.B. (Child), adult daughters, K.R. (Oldest Daughter) and K3.B (Daughter), and minor son, S.B. (Son). Child was born in 1999, and she was 12-years-old at the time of the abuse.
In 2012, Adams County Children and Youth Services (CYS) received a referral that Child was raped by E.B.'s boyfriend, T.H. (Boyfriend), a known child sex offender, while he was babysitting her. After its investigation, CYS filed an indicated report of child abuse listing E.B. as a perpetrator of child abuse by omission for permitting Child to have unsupervised contact with Boyfriend. Based on CYS's investigation, DPW notified E.B. it listed her on the ChildLine and Abuse Registry (ChildLine Registry) as a perpetrator of child abuse in an indicated report. Certified Record at 10. E.B. requested DPW to reconsider the findings against her, which it denied. Thereafter, E.B. appealed and requested a hearing. BHA assigned an ALJ to hear the appeal.
We shield Boyfriend's identity solely to protect the identity of E.B. and her family.
The ChildLine Registry is a statewide system for receiving reports of suspected child abuse, referring reports for investigation, and maintaining those reports. 23 Pa. C.S. §6331. A report of suspected child abuse may be either "indicated," "founded," or "unfounded." 23 Pa. C.S. §§6337, 6338. In the case of "indicated" or "founded," reports, the information is placed in the statewide central registry. 23 Pa. C.S. §6338(a). Notice of the determination must be given to the perpetrators of the child abuse indicating that their ability to obtain employment may be adversely affected. Id.
A report of child abuse is characterized as an "indicated report" if an investigation by the county agency or DPW determines that "substantial evidence" of the alleged abuse exists based on available medical evidence, the child protective service investigation, or an admission of the facts of abuse by the perpetrator. 23 Pa. C.S. §6303(a).
Before the ALJ, CYS presented the testimony of CYS caseworkers and E.B.'s ex-husband. In response, E.B. testified on her own behalf, and she presented the testimony of her adult daughters as well as character witnesses. Based on the evidence, the ALJ made the following findings.
In 2004, E.B. met Boyfriend, who worked in the mobile home park where she lived, and she began dating him the following year. Boyfriend was convicted in 1997 on two counts of indecent assault of a 12-year-old girl, sentenced to four to twenty-three months in prison, and required to register as a sexual offender until 2009 under what is commonly referred to as the Megan's Law Registry. ALJ Op., 5/12/14, Findings of Fact (F.F.) Nos. 3-6; see Reproduced Record (R.R.) at 232a, 234a.
Section 3126(a) of the Crimes Code, 18 Pa. C.S. §3126(a), provides in relevant part with emphasis added:
A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:
* * *
(7) the complainant is less than 13 years of age ....
At some point in 2005, E.B. became aware that Boyfriend was listed on the Megan's Law Registry as a child sex offender for indecent assault involving a 12-year-old girl. Based on this information, E.B. stopped dating Boyfriend. F.F. Nos. 7-8.
E.B. initiated her own investigation of Boyfriend's indecent assault conviction. About six months later, after completing her investigation, E.B. renewed her paramour relationship with Boyfriend. E.B.'s investigation did not include talking with a psychiatrist, psychologist or any doctor regarding child abusers. E.B. gave Boyfriend free access and a key to her home. Boyfriend stayed there two to four nights a week. He used E.B.'s address for his registration with the Pennsylvania State Police (PSP) in the Megan's Law Registry. E.B. placed no restrictions on Boyfriend with respect to access to her children. F.F. Nos. 9-13.
In January 2006, CYS received information that E.B. allowed a convicted child sex offender to come into her home and have access to her children. CYS assessed E.B.'s household situation. E.B. admitted she allowed Boyfriend to live in her home with her children without restrictions, even though she knew about his previous conviction for indecent assault of a minor and his listing on the Megan's Law Registry. F.F. Nos. 14-15.
In February 2006, after completing its assessment, CYS issued a letter to E.B. The letter advised E.B. she could benefit from further services to "ensure the safety of the children." F.F. No. 16. In addition, the letter stated:
The agency would like to stress the importance of the issues discussed with you during our involvement. As the mother of the above named children, you have deemed it appropriate to allow a convicted child sexual offender to come into your home and have access to your children. You are aware of his history and continue to deny that he presents a risk to your children. You need to understand that if inappropriate contact occurs between [Boyfriend] and your children you will be held responsible as will [Boyfriend].F.F. No. 16 (quoting Ex. C-1, CYS Ltr., 2/7/06) (emphasis added); see R.R. at 250a.
In May 2009, PSP notified Boyfriend that his requirement to register on the Megan's Law Registry for the indecent assault conviction expired. The removal of his name from the Megan's Law Registry did not alter Boyfriend's status as a convicted child sex offender. F.F. No. 17.
In late July 2012, E.B. left for Arizona with her Oldest Daughter to help her relocate. E.B. left Child and Son in the temporary care of Daughter and Boyfriend. Daughter was 18-years-old at the time and lived in her own mobile home in the same park as E.B. E.B. told Daughter and Boyfriend to decide between themselves who would watch the children while she was away. E.B. knew Boyfriend would occasionally stay overnight at her home while she was in Arizona. E.B. did not prohibit Boyfriend from babysitting Child unsupervised. F.F. Nos. 18-23.
On August 3, 2012, while E.B. was still in Arizona, Daughter asked Boyfriend if he was going to stay at E.B.'s home and, if so, would he watch Child and Son. Boyfriend informed her he was staying at the home and agreed to watch the children. F.F. Nos. 24-26.
On August 4, 2012, in the early morning hours, Boyfriend repeatedly raped Child in E.B.'s home. Later that day, CYS received a referral that Boyfriend raped Child while babysitting her. During the CYS interview, E.B. admitted she placed her minor children under the care of both Daughter and Boyfriend while she was in Arizona. CYS filed an indicated report of child abuse that E.B. was a perpetrator of child abuse by omission for permitting Child to have unsupervised contact with a known sexual predator, which resulted in Child being raped by him. DPW then notified E.B. she was listed on the ChildLine Registry as a perpetrator of child abuse in an indicated report, which she appealed. F.F. Nos. 28-34.
Boyfriend was convicted of multiple counts of rape, forcible compulsion, involuntary deviate sexual intercourse-juvenile, kidnapping, aggravated indecent assault without consent-juvenile, aggravated indecent assault-juvenile, false imprisonment, and corruption of minors. He was sentenced to an aggregate sentence of 45-95 years in state prison and designated as a sexually violent predator. F.F. No. 35.
For the most part, the ALJ credited all of the witnesses' testimony. F.F. Nos. 36-45. However, the ALJ did not credit the testimony of E.B., Daughter, and Oldest Daughter to the extent they testified E.B. only authorized Daughter, not Boyfriend, to watch Child and Son while E.B. was in Arizona. F.F. Nos. 43-45. The ALJ explained all three held a personal interest in the outcome of the appeal to protect E.B. The ALJ credited the testimony of CYS caseworkers on this point as they testified E.B. admitted to them in the CYS investigation that she left Child in the joint care of both Boyfriend and Daughter.
Ultimately, the ALJ determined CYS presented substantial evidence that E.B. was a perpetrator of child abuse by omission. First, E.B. knew Boyfriend was a convicted child sex offender, who indecently assaulted a 12-year-old girl - the same age as Child; she knew Boyfriend was listed as a child sex offender on the Megan's Law Registry - one of the most important tools available to keep safe children at risk; and, CYS warned E.B. of the great risk of having her children around Boyfriend. Based on this information, E.B. knew or should have known Boyfriend posed a significant risk to Child.
Second, E.B. did not take protective measures to keep Child safe. E.B. allowed Boyfriend unrestricted access to her children. The ALJ opined, E.B. "willingly offered" Child up to Boyfriend allowing him "full opportunity to abuse [Child] for years until it finally happened." ALJ Op. at 13.
The ALJ determined the record supported an indicated status for E.B.'s abuse by omission. Thus, the ALJ recommended the denial of E.B.'s appeal.
Thereafter, BHA adopted the ALJ's findings and recommendation in their entirety. E.B. petitioned the Secretary of DPW to reconsider, which was denied. E.B. now petitions for review to this Court.
In addition, E.B. filed a motion to strike DPW's brief, which this Court denied by order dated December 17, 2014.
II. Issues
On appeal, E.B. asserts BHA erred in denying her request for expunction because CYS did not meet its burden to establish by substantial evidence that she knew, or should have known, of a significant risk to Child and that she did not take protective measures to prevent abuse. In addition, she avers the evidence shows a lack of imminent risk of child abuse by Boyfriend given the 16-year intervening period between the original incident and the incident in question.
Our review in expunction cases is limited to determining whether substantial evidence supports the necessary findings of fact, whether errors of law were committed or whether constitutional rights were violated. G.V. v. Dep't of Pub. Welfare, 91 A.3d 667 (Pa. 2014); In re S.H., 96 A.3d 448 (Pa. Cmwlth. 2014). --------
III. Discussion
A. Substantial Evidence
First, E.B. contends substantial evidence does not support the BHA's findings that she knew, or should have known, of a significant risk to Child and that she did not take protective measures to prevent abuse. E.B. claims BHA gave little consideration to her evidence regarding protective measures taken and her reasonable belief that there was no significant risk of abuse. She asserts her evidence outweighs the evidence relied on by BHA and the reasonable inferences to be drawn therefrom.
"Child abuse" is defined under the Law to include "[a]ny recent act, or failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of ... sexual abuse ... of a child under 18 years of age." 23 Pa. C.S. §6303(b)(1)(iii) (emphasis added); accord 55 Pa. Code §3490.4. A perpetrator commits abuse by omission by failing to reasonably protect her child from a third party the perpetrator knew, or should have known, presented a threat of danger. C.K. v. Dep't of Pub. Welfare, 869 A.2d 48 (Pa. Cmwlth. 2005); accord Bucks Cnty. Children & Youth Social Servs. Agency v. Dep't of Pub. Welfare, 616 A.2d 170 (Pa. Cmwlth. 1992).
In an expunction hearing, the proper standard of evidence is the substantial evidence standard. G.V. v. Dep't of Pub. Welfare, 91 A.3d 667 (Pa. 2014). The proper standard of proof is preponderance of the evidence, which is the lowest standard and is tantamount to "more likely true than not" inquiry. In re: S.H., 96 A.3d 448, 455 n.7 (Pa. Cmwlth. 2014). Pursuant to the Law, "[s]ubstantial evidence" is "[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); accord G.V. Thus, to reach a conclusion of abuse, the "evidence must so preponderate in favor of a conclusion that it outweighs ... any inconsistent evidence and reasonable inferences therefrom." S.H., 96 A.3d at 453 n.4 (quoting J.S. v. Dep't of Pub. Welfare, 596 A.2d 1114, 1115 (Pa. 1991)). Whether the evidence satisfies the standard is a question of law. Id.
The burden is on the appropriate county agency to show that the indicated report of abuse is accurate and is maintained in a manner consistent with the Law. G.V.; Bucks Cnty. More particularly, the agency must show the parent knew, or should have known, of a significant risk of child abuse to the child and failed to take protective measures. L.S. v. Dep't of Pub. Welfare, 828 A.2d 480 (Pa. Cmwlth. 2003).
It is for the fact-finder to determine whether a parent acted reasonably under the circumstances and whether other evidence weighs in favor of expunging the record. Bucks Cnty. Indeed, what a parent knew or should have known is a question of fact to be resolved by the fact-finder based on his conclusions as to the credibility of the witnesses and the weight to be assigned to the evidence. Id. An appellate court may not find facts or reweigh the evidence. S.H.
Here, CYS bore the burden of proving, by substantial evidence, the indicated report of child abuse filed against E.B. was accurate. To that end, CYS established: Boyfriend was convicted of indecent assault of a 12-year-old child; Boyfriend was listed as a child sex offender on Megan's Law Registry until 2009; E.B. knew of Boyfriend's criminal history and registry requirement; CYS, a professional agency that deals with child abuse and protection of children, warned E.B. of the possible risk to her children by allowing Boyfriend access to her home and children; and, Boyfriend raped Child when E.B. was not home, but across the country, and Child was in Boyfriend's care. These facts are undisputed.
Notwithstanding, E.B. argues she is not a perpetrator of abuse by omission because she took protective measures to ensure her children's safety and she reasonably believed Boyfriend did not pose a threat of danger to her children. She asserts BHA ignored her evidence, which she claims outweighs CYS's evidence.
Specifically, E.B. testified, upon learning of Boyfriend's conviction, she immediately ended relations and conducted her own investigation. ALJ's Hr'g, 9/26/13, Notes of Testimony (N.T.) at 156. She verified Boyfriend's conviction for indecent assault of a minor and his listing as a child sex offender on the Megan's Law Registry. Id. at 156-157. E.B. informed her older daughters, then ages 10- and 13-years-old, that Boyfriend was a registered sex offender and she asked the girls if Boyfriend exhibited any inappropriate behavior. Id. at 159; see Pet'r's' Br. at 17. The girls advised Boyfriend did not do anything inappropriate, and they were not uncomfortable around him. N.T. at 159. In addition, she interviewed Boyfriend's family members, including his ex-wife, who advised they gave Boyfriend unrestricted access to their children without hesitation or incident. Id. at 158, 159. E.B. also testified she consulted PSP, who advised her there were no restrictions on Boyfriend's access to children.
In addition, E.B. presented the testimony of her neighbor and Boyfriend's ex-wife, both of whom testified they did not believe Boyfriend posed a threat to any child. However, neither of them knew exactly why Boyfriend was on the Megan's Law Registry or what his underlying conviction entailed. The neighbor testified she confirmed Boyfriend's listing on the Megan's Law Registry, but it provided few details about the 1996 incident, and it did not restrict him from being around children. Id. at 104. She did not know the original conviction involved sexual contact with a 12-year-old until after the rape of Child. Id. at 108. Although she did not think Boyfriend posed a risk to children, the neighbor admitted she never allowed him to be alone with her foster children based on the advice of a CYS caseworker. Id. at 106-107.
Similarly, Boyfriend's ex-wife testified she did not know the 1996 incident involved indecent contact with a 12-year-old girl until the day before her testimony. Id. at 89; see id. at 177. Boyfriend told her the original conviction was for indecent exposure. Id. at 89. She told E.B. she did not believe Boyfriend to be a threat. She admitted her whole basis for advice to E.B. was based on a falsehood. Id.
Contrary to E.B.'s assertions, the ALJ considered her evidence and the efforts she made in assessing the threat to her children. Specifically, the ALJ found E.B. conducted her own investigation. F.F. No. 9. Although the ALJ did not detail E.B.'s efforts, the ALJ summarized E.B. interviewed "other people she knew [who] did not think he was a risk." ALJ Op. at 14. The ALJ found E.B.'s "investigation" did not include talking with a psychiatrist, psychologist or any doctor regarding child sex abuse and whether there was a potential risk to her children. F.F. No. 10; N.T. at 177.
Ultimately, the ALJ concluded the information E.B. gathered in her personal investigation did not supersede the concrete and substantial evidence regarding Boyfriend's risk. Id. Significantly, the information E.B. garnered in her investigation did not alter the fact that Boyfriend was a convicted child sex offender, that the victim of his crime was a 12-year-old girl - the same age as Child, or that he was listed on the Megan's Law Registry as a child sex offender until 2009. The expiration of his registry requirement did not erase his past as a child sex offender.
As for E.B.'s protective measures, substantial evidence shows E.B. trusted Boyfriend and left Child in his unsupervised care. Although E.B. denied actual knowledge Child would be with Boyfriend on the date of the incident, the ALJ rejected her testimony and that of her daughters in this regard as not credible and self-serving. F.F. Nos. 43-45. The ALJ credited the testimony of the CYS caseworkers, and he found E.B. left Child in the joint care of Boyfriend and Daughter based on E.B.'s admissions in the CYS interview conducted after the incident.
The ALJ reasoned, even assuming E.B. did not specifically leave Child and Son in Boyfriend's care on the incident date, there was an implicit understanding that Boyfriend possessed full authority to watch them. In fact, E.B. herself testified it was "okay" for Boyfriend to watch her children, and there were no restrictions on him. N.T. at 170-71, 184. In so doing, E.B. did not take reasonable protective measures, which at the very least would have included ensuring that Boyfriend did not have unsupervised access to her children.
Upon review, we conclude substantial evidence supports the ALJ's findings and preponderates in favor of a conclusion of abuse by omission. E.B. knew that Boyfriend was a convicted child sex offender, that he indecently assaulted a young girl the same age as Child, and that he was required to register on the Megan's Law Registry until 2009. Significantly, CYS warned E.B. that Boyfriend presented a safety risk to her children, and it would hold her responsible if anything occurred. Therefore, E.B. knew or should have known it was not safe to leave Child in Boyfriend's unsupervised care. E.B.'s efforts did little to protect Child because she allowed Boyfriend unrestricted access to her home and children while she was in Arizona. E.B.'s evidence to the contrary did not outweigh this evidence.
B. Imminent Risk
Next, E.B. contends BHA erred as a matter of law in determining her failure to act created an imminent risk of sexual abuse. She claims the fact that Boyfriend abused another child 16 years before the incident in question did not create a "significant risk of imminent danger" of sexual abuse as there was no evidence of any allegations of abuse or inappropriate behavior in the intervening period. Pet'r's' Br. at 21.
As discussed above, the definition of "child abuse" is a "recent act, failure to act ... by a perpetrator which creates an imminent risk of ... sexual abuse ... of a child." 23 Pa. C.S. §6303(b)(iii) (emphasis added). The operative term is "imminent risk," which the Law does not define. See C.K.
When words of a statute are undefined, they must be construed in accordance with their common and approved usage. Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. §1903(a); Adams Outdoor Adver., L.P. v. Zoning Hr'g Bd. of Smithfield Twp., 909 A.2d 469 (Pa. Cmwlth. 2006). "Where a court needs to define an undefined term, it may consult definitions in statutes, regulations or the dictionary for guidance, although such definitions are not controlling." Id. at 483; see THW Group, LLC v. Zoning Bd. of Adjustment, 86 A.3d 330 (Pa. Cmwlth.), appeal denied, 101 A.3d 788 (Pa. 2014) (citing Adams). In addition, courts may consult an agency's proposed regulations for guidance. See C.K.; E.D. v. Dep't of Pub. Welfare, 719 A.2d 384, 389 n.3 (Pa. Cmwlth. 1998).
According to the dictionary, the term "imminent" means "ready to take place ... hanging threateningly over one's head." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 602 (9th ed. 1987). The term "risk" means "possibility of loss or injury ...." Id. at 1018.
In C.K., this Court examined DPW's proposed regulations in its OCYF (Office of Children, Youth and Families) Bulletin in interpreting the term "imminent risk." C.K., 869 A.2d at 53. We prefaced "[a] proposed regulation does not have the force of law, as does one duly promulgated. As such, it remains a statement of policy of the agency that has persuasive, but not binding, power if it tracks the meaning of the related statute." Id. (quoting E.D., 719 A.2d at 389 n.3) (emphasis omitted).
According to DPW's proposed regulations, to substantiate "imminent risk" of sexual abuse, a specific act or failure to act must be documented, which results in the risk of abuse. Id. (quoting OCYF Bulletin, 3490-95-02, p.1). Further, the risk of "sexual abuse" must be "imminent," meaning "the specific time frame during which the child was exposed to risk of such abuse." Id. (quoting OCYF Bulletin, 3490-95-02, p.1) (emphasis added).
In addition, the proposed regulations provide:
(F) [f]or alleged imminent risk of sexual abuse or sexual exploitation:
(1) there must be substantial evidence that an action on the part of the alleged perpetrator placed the child at imminent risk of sexual abuse/exploitation; or
(2) there must be substantial evidence that the alleged perpetrator had known or should have known of the risk of sexual abuse and failed to exercise reasonable judgement [sic] in preventing such risk.Id. at 54 (quoting OCYF Bulletin, 3490-95-02, pp. 3-4, 2(b)(II)) (emphasis omitted).
We opined DPW's interpretation of the term "imminent risk" in the proposed regulations is consistent with common usage, sufficiently tracks the meaning of the Law, and is persuasive. Id.; E.D.
In C.K., we considered DPW's interpretation in determining whether a mother placed her children in "imminent risk" of sexual abuse. There, DPW listed the mother as a perpetrator of sexual abuse by repeatedly residing with her children at the residence of a couple listed on the ChildLine Registry as indicated perpetrators of sexual abuse. Prior to the issuance of the indicated report, caseworkers for the county agency warned the mother on three occasions of the risks and informed her that her children should not have any contact with the couple. Despite the family's physical removal from the couple's residence into a safer home, the family repeatedly moved back in with the couple. The caseworker determined this "contact" of living with the couple placed the children in "imminent risk" of sexual assault. Id. at 51.
On appeal, the ALJ observed "[n]o one can know with certainty if the subject children herein would have been molested by [the couple]. It is simply a mat[t]er of probabilities. If the intent of the [Law] ... [is] to protect children to the very best of our abilities, then those probabilities must always be considered and weighed." Id. at 52.
On further appeal, this Court upheld the ALJ's determination, adopted by BHA, that the mother placed her children in an imminent risk of sexual abuse by repeatedly living with the couple despite the numerous warnings by caseworkers and despite the family's physical removal from the couple's residence into a safer home. We determined the mother's "bad judgment" in residing with her children in the home of indicated sexual predators on repeated occasions exposed her children to "imminent risk of sexual abuse." Id. at 55. The mother's "action provided the indicated perpetrators of sexual abuse an ongoing opportunity to abuse her children, which placed the children in 'imminent risk.'" Id. at 56.
Here, like the mother in C.K., E.B. knew or should have known of the risk of sexual abuse and did not exercise reasonable judgment in preventing such risk. CYS specifically warned E.B. of the risks to her children of allowing her children to be around Boyfriend. Contrary to E.B.'s assertions, the mere passage of time between Boyfriend's commission of indecent assault in 1996 and the incident in question in 2012 did not make the threat any less imminent. Each time E.B. left Child with Boyfriend, a convicted child sex offender, without appropriate supervision, the threat of sexual abuse was "imminent." See id. (residing with perpetrators of sexual abuse exposed children to imminent risk of abuse, even though no molestation or abuse ever occurred). E.B.'s lack of action provided Boyfriend with an ongoing opportunity to abuse Child until it finally occurred. Thus, BHA did not err in determining E.B.'s failure to protect Child from Boyfriend and allowing him to watch Child unsupervised created an "imminent risk of sexual abuse."
IV. Conclusion
Upon review, the evidence preponderates in favor of a conclusion of abuse by omission outweighing E.B.'s evidence to the contrary. E.B. knew or should have known of the imminent risk of sexual abuse. By allowing Boyfriend unrestricted access to Child, E.B. did not take proper precautions to protect her. Although we have great sympathy for E.B. and Child, we believe E.B. exercised poor judgment in ignoring warnings and in trusting a known child sex offender with her children. Accordingly, we affirm BHA's order denying E.B.'s appeal.
/s/_________
ROBERT SIMPSON, Judge
SEALED CASE
ORDER
AND NOW, this 8th day of January, 2015, the order of the Department of Public Welfare, Bureau of Hearings and Appeals is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge