Opinion
No. 1854 C.D. 2017
12-06-2018
H.S., Petitioner v. Department of Human Services, Respondent
CASE SEALED
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI
H.S. petitions for review of the order of the Department of Human Services, Bureau of Hearings and Appeals (BHA) adopting in its entirety the Administrative Law Judge's (ALJ) recommendation denying H.S.'s request for expunction of an indicated report of child abuse for sexual exploitation of a child pursuant to the Child Protective Services Law (CPS Law) maintained on the ChildLine and Abuse Registry (ChildLine). The issue in this case is whether there is substantial evidence of abuse that "outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." 23 Pa.C.S. § 6303(a). For the following reasons, we affirm.
23 Pa.C.S. §§ 6301-6384. ChildLine is a statewide system for receiving reports of suspected child abuse, referring reports for investigation, and maintaining those reports. 23 Pa.C.S. § 6332. 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).
I.
A.
The subject child, M.G., was 16 years old at the time of the incident. H.S. operates a dance studio in Philadelphia where he trains students from young children to teenagers in various categories of dance. M.G. was a student at H.S.'s dance studio. On October 23, 2015, the Philadelphia Department of Human Services (Philadelphia DHS) received a report that H.S. sexually abused M.G. while he was in his custody. The alleged sexual exploitation occurred on October 10, 2015, when M.G.'s parents left him in the custody of H.S. for an extracurricular social activity. Following an investigation of the allegations, Philadelphia DHS filed an indicated report of child abuse for sexual exploitation against H.S. and he appealed that determination.
An "indicated report" is defined under the CPS Law, in pertinent part, 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:
23 Pa.C.S. § 6303(a).(i) Available medical evidence.
(ii) The child protective services investigation.
(iii) An admission of the acts of abuse by the perpetrator.
The definition of "child abuse" under the CPS Law includes "intentionally, knowingly or recklessly . . . (4) Causing sexual abuse or exploitation of a child through any act or failure to act." 23 Pa.C.S. § 6303(b.1)(4).
The CPS Law defines a "perpetrator" of child abuse as including, inter alia, "[a] person 14 years of age or older and responsible for the child's welfare or having direct contact with children as an employee of child-care services, a school or through a program, activity or service." 23 Pa.C.S. § 6303(a).
B.
At a hearing before ALJ Derrick Crago (ALJ Crago), M.G. testified that he lived with his mother (Mother), her fiancé (J.E. or fiancé), and J.E.'s daughter (G.E. or stepdaughter). M.G. testified that he had known H.S. for some time because his aunt and G.E. were also part of H.S.'s dance group. M.G. stated that H.S. had "been a part of the family." (Reproduced Record (R.R.) at 150a.)
M.G. testified that at dance practice on October 10, 2015, H.S. stated that he was going to the movies and invited a few of the students, telling them to meet at the studio at 3:30 p.m. M.G. and Mother were running late so they met up with H.S. at another location. M.G. testified that when he got into the back seat of H.S.'s car, several female dance students - L.H., A.E., K.S. and B. - were already there, and he believed B. was in the front seat. M.G. stated that H.S. drove them to a shopping plaza where they went in several stores and then to a restaurant to get something to eat.
After eating, H.S. told M.G. to sit in the front seat of his car and for B. to get in the back. M.G. testified that H.S. said he wanted to get some drinks, so they went to a liquor store where H.S. bought a six-pack of wine coolers. H.S. said he was not sure if he wanted to give the alcohol to the girls because he did not know if they could handle it. H.S. said that M.G. was older than the girls were and knew what he was doing. M.G. testified that H.S. gave the girls in the back seat two of the wine coolers and told them to split it equally. H.S. kept two bottles for himself and gave two to M.G. M.G. testified that he tried the wine cooler but that it was "nasty" and he did not want to finish it. The girls then said they would take it so M.G. gave them one of the bottles. M.G. testified that when they got to the mall parking lot, he had a little bit left of his drink and H.S. told him to hurry up and finish so they could go in the mall. Everyone started cheering M.G. on saying, "chug it," so he did. M.G. testified that he then started to feel sick and threw up in the parking lot, after which H.S. told him since he threw it all up he would not feel drunk anymore.
Later in his testimony, M.G. stated that the wine cooler "was still like pretty much full" when he chugged it, which is why he threw up.
M.G. testified that once they were inside the mall, he and H.S. went to a clothing store and H.S. sent the girls somewhere else. H.S. told M.G. that if he wanted anything, H.S. would buy it for him, but M.G. told him he was fine. M.G. testified that H.S. pointed out a pair of pants, told him to grab his size and to come with H.S. to the fitting room, which M.G. did. When they entered the fitting room, H.S. started telling him to try on the pants so he did, but they were too tight. M.G. testified that H.S. gave him another pair of pants to try on, but he did not like them either, and that H.S. ended up buying him a shirt.
H.S. and M.G. met back up with the girls and they all left the mall and went to the movie theater to see Peter Pan. M.G. testified that H.S. told him to sit on H.S.'s left and the girls to sit on H.S.'s right. The group began throwing popcorn at each other. M.G. testified that H.S. threw a handful of popcorn around his crotch area and then grabbed his crotch. M.G. stated that H.S. hit and grabbed his crotch at the same time, but in a playful way, and that H.S. just laughed it off and they continued watching the movie.
After they left the movie, M.G. stated that H.S. started dropping off the girls at their houses one by one until it was just H.S., M.G., and B. in the car. H.S. then stopped at another liquor store and bought two cans of an alcoholic drink called "Four Loko" - one for M.G. and one for himself. M.G. testified that H.S. gave B. a sip of his "Four Loko" before he dropped her off. M.G. stated that when he was alone in the car with H.S., H.S. said that he and another male dancer from the studio watched pornography together. H.S. then started playing a pornographic video on his cell phone and asking M.G. questions of a sexual nature. M.G. stated that H.S. had one hand on the steering wheel and the other was holding his phone so they both could see it. M.G. testified that he tried to avoid H.S., looked out the window, and tried to give H.S. signs he was not comfortable with the playing of pornography. When H.S. received a call, he turned off the video to receive the call.
M.G. testified that H.S. said they were going to go to his house so he could change his clothes before they went to the clubs. M.G. stated that when they arrived at H.S.'s house, it was after 11:00 p.m., all the lights were off and H.S. did not turn any lights on. M.G. told H.S. that he did not want to finish his drink so they emptied it out in the sink and H.S. told him to wait downstairs. M.G. testified that H.S. went upstairs but then came back down the steps and told M.G. to sit next to him on the sofa. H.S. then started playing pornography again on his phone and asking M.G. questions, including if he could give M.G. a massage. M.G. testified that was when he said no, that it was too much and asked if H.S. could just take him home. M.G. said that was his "eye-opener," that it was clear to him then that H.S. "was definitely trying to like put himself on me. He was trying to like have me engage in sexual activities with him or something." (R.R. at 184a.) M.G. testified that H.S. "said okay. I'm sorry. Like, you know, I'm sorry if I made you feel uncomfortable. I'll take you home. I'll take you home." (R.R. at 157a.)
On the ride home, M.G. testified that H.S. said he was planning to throw a hotel party and invite one of his friends that was a masseuse to give M.G. a massage. M.G. told H.S. he did not want that, and H.S. said the masseuse could give someone else a massage and M.G. could watch. M.G. testified that he told H.S. he did not want that either. M.G. stated that when H.S. dropped him off it was late so he went right to bed, and the next morning he told Mother everything that happened. Mother tried to contact H.S. after M.G. told her what happened the night before, but H.S. did not answer his telephone. M.G. testified that Mother then called her fiancé and all three of them went to the police station to file a report. M.G. denied being hungover or acting strange the day after the incident.
M.G. testified that he never spoke to H.S. again about this incident. M.G. stated that he had a great relationship with H.S. prior to this and considered him a friend or mentor. M.G. testified that he was not sure how to feel about what happened or how to react. He did not expect H.S. to do what he did because he had known H.S. for a long time and they had a good relationship. M.G. admitted that since this incident, he went back to H.S.'s dance studio on one occasion because a friend of his was having a practice there for her sweet 16 party. M.G. testified that he was not aware that H.S. was the individual choreographing the party until he went into the studio with his friend and saw H.S. there.
On cross-examination, M.G. denied taking the alcohol from H.S. or passing it on to the girls without H.S.'s permission, and stated that H.S. never yelled at him for taking the alcohol. M.G. admitted he had a cell phone with him that evening and could have called Mother or a friend but, again, stated that he did not do so because he was not sure how to react since he had a great relationship with H.S. prior to that night. M.G. also testified that every time he felt uncomfortable that night, H.S. would say he was sorry and try to reassure him. M.G. admitted that he had previously changed his clothes in front of H.S., but never when they were alone, there were always many other dancers around. M.G. denied meeting H.S.'s mother when he went to H.S.'s house that night.
M.G.'s Mother testified that she has known H.S. for 14-15 years and he has been to her house on a few occasions. M.G. was part of H.S.'s dance group for approximately two years, and Mother's stepdaughter also attended the group. Mother testified that after dance practice on October 10, 2015, M.G. told her that H.S. invited a few kids to go with him to the movies and the mall. Mother gave her permission for M.G. to attend and she drove M.G. to meet up with H.S. Mother stated this was not the first time H.S. had taken children from the dance studio out on social activities. Prior to this, M.G. never expressed to Mother any concerns about H.S.
Mother testified that she went to sleep around midnight that evening and did not see M.G. until the next morning. Later that day, M.G. told her he wanted to talk about something that happened the previous night that made him very uncomfortable, and he proceeded to tell her what happened when he was with H.S. Mother stated that she was hurt, shocked and furious, and she then told her fiancé what M.G. told her. She also testified that she absolutely believed M.G.
Mother stated that after speaking to M.G., she called H.S., but that he did not answer the telephone or get back to her right away so she and her fiancé took M.G. to the police station to file a report. While they were there, H.S. called Mother back and said he was near her house and available to talk. Mother testified that she was confused, did not know what to do, and her fiancé suggested that she stay at the police station while he went to talk to H.S. After meeting H.S., Mother's fiancé returned to the police station and Mother described him as upset, stating that he could not believe what happened.
Mother testified that H.S. began texting her after his encounter with her fiancé and Mother texted him back, asking, "how could you do this to my son? I trusted you, you know, this is not okay. What you did with my son is not acceptable." (R.R. at 81a.) H.S. responded, "nothing happened. It's not what you think. . . ." (Id.) Mother stated that after filing a report with the police, she reached out to the parents of the girls who were also in the car with H.S. the previous night and made them aware of what happened. Mother later learned that H.S. had a meeting with the parents of the other dance students, but he did not inform Mother of this meeting. Mother testified that neither M.G. nor her stepdaughter ever returned to the dance studio. While Mother followed up with the police, she was not aware of any criminal charges ever being filed against H.S.
On cross-examination, Mother testified that M.G. did not call or text her at all while he was with H.S. on October 10, 2015, but that was not unusual because M.G. never called her. She stated that, to her knowledge, M.G. never drank alcohol before that night, but she was aware he had smoked marijuana in the past. Mother testified that if she found out M.G. had drank alcohol or smoked marijuana, he would be in trouble - she would ground him or take away his privileges. Mother admitted that approximately a week before the hearing, M.G. went to the dance studio with a friend, but she insisted M.G. did not know H.S. would be there.
Mother's fiancé testified that on October 11, 2015, Mother and M.G. told him what occurred and he suggested they call H.S. to verify what happened. Mother then sent H.S. a text message but he was unavailable. Fiancé further testified that when H.S. came to their house later that day, he told H.S. that M.G. let them know what happened the night before and he just wanted H.S. to verify things in case "the stories were mixed up a little bit." (R.R. at 106a.) H.S. told fiancé that he was taking the kids to the movies and the mall when he stopped for some drinks. According to fiancé, H.S. admitted to giving M.G. wine. When fiancé asked H.S. what happened when he got back to H.S.'s house with M.G., H.S. put his head down and admitted that the two watched pornography, at which point fiancé began cursing and yelling and he hit H.S. Fiancé stated that he then told H.S. that Mother was with the police and they were going to press charges. Fiancé testified that he never spoke with H.S. again and never allowed G.E. to go back to the dance studio.
On cross-examination, fiancé testified that he punched H.S. in the face after he admitted to watching pornography with M.G. He stated that H.S. fell to the ground and he stood over him, yelling at him for what he did. Fiancé testified that H.S. kept apologizing, saying "I know. I'm sorry." (R.R. at 110a.) Fiancé then told H.S. "to get the F out of the house because [Mother] was at [the police station]." (R.R. at 119a.) Fiancé testified that this altercation took place right at the doorway of the house and that the door was wide open. Fiancé admitted there was blood in the house after he punched H.S. and that he may have hit H.S. a couple times, but he was not sure. Fiancé also admitted that he did not ask H.S. if he had touched M.G. before he reacted and hit him. However, he stated that he hit H.S. because he believed H.S. abused M.G. Fiancé testified that he was not aware if H.S. filed a police report against him for this incident, that no charges were ever brought and that he was never called down to the police station or questioned by police.
Fiancé read into the record the description of the incident from this police report, stating "on above date, on time below, male stepfather punched and kicked on the head, facial area, causing a gash to the left eye and a one-inch open insertion (sic) to the left side of his head." (R.R. at 121a.)
Amy Crescenzo (Crescenzo), a supervisor in Philadelphia DHS's sex abuse unit, testified that she has worked for Philadelphia DHS for 15 years, six of which were as a supervisor. Crescenzo supervises investigators throughout their investigation of child sexual abuse reports and helps make the ultimate determinations in those cases. Crescenzo stated that once her employees receive a report of abuse, they attempt to make contact with the family within 24 hours, and as part of their investigation, they speak to all parties involved, including the subject child, perpetrator, child's parents and any person known to be involved in the investigation or with vital information.
The Philadelphia DHS investigator assigned to the report of abuse involving H.S. and M.G. was unavailable to testify because she had since left her employment with the agency. Crescenzo testified that she was the supervisor assigned to the October 23, 2015 report of abuse involving H.S. and M.G. Crescenzo admittedly did not conduct any of the interviews with respect to this case, as that is the duty of the assigned investigator. Crescenzo testified that the report was marked indicated on December 22, 2015, meaning it was found valid, and H.S.'s name was therefore placed on the ChildLine registry. When asked what formed the basis of the determination that the report was indicated, Crescenzo stated that M.G. and other parties who were interviewed gave a clear and credible description of the abuse. Crescenzo explained that some of the alleged incidents took place outside the city of Philadelphia, in Bucks County; therefore, part of the investigation was completed by another agency and her unit considered this collaborating evidence. On cross-examination, Crescenzo admitted that she did not know if the other individuals in the vehicle with H.S. and M.G. on the night in question were interviewed by Philadelphia DHS staff or this other agency. When pressed, Crescenzo stated that she did not bring the entire file with her and admitted that she was not sure if her staff interviewed H.S. as part of the investigation.
A.E., a 16-year-old student at H.S.'s dance studio, testified on behalf of H.S. She stated that she was with him on October 10, 2015, when he went to the liquor store and purchased alcohol. A.E. stated the alcohol was pink, she thought it was wine and the name started with an "S." She testified that H.S. did not drink or open the alcohol in his car. Initially, A.E. denied that H.S. offered either her or M.G. alcohol, stating that M.G. drank the alcohol without H.S.'s permission. However, when questioned by ALJ Crago, she testified that H.S. saw M.G. take the alcohol, saw him pass it to her in the back seat, and that H.S. provided the alcohol to M.G. She also testified that H.S. told the girls not to drink. When questioned again by H.S.'s counsel, A.E. testified that H.S. placed the alcohol in the car where M.G. was sitting but he did not give him permission to drink it. A.E. admitted that she drank "[l]ike a sip" and then passed it onto the other girls. (R.R. at 205a.) A.E. could not recall if H.S. yelled at them or if he took the alcohol away from M.G., and testified that H.S. did not pull over and stop the car until they got to their destination. A.E. stated that M.G. drank the alcohol really fast, all at once, and he got sick when he got out of the car at the mall.
When they went to the movies that night, A.E. stated that she sat next to L.H. and that M.G. was on L.H.'s other side and she was "pretty sure" H.S. sat next to M.G. She testified that they were all throwing popcorn at each other, including H.S., and she did not see H.S. touch M.G. in any inappropriate manner. A.E. stated that M.G. was acting normal, she did not notice anything weird, and they were all laughing, joking and having fun. A.E. stated that she could not remember what movie they went to see, and she was the first one H.S. dropped off.
K.S., a 20-year-old dance student, testified that she was also with H.S. and M.G. on the night in question. She stated that H.S. stopped at the liquor store to buy alcohol and when he got back in the car, he put the bag on his lap. K.S. testified that H.S. did not give M.G. permission to take the alcohol, but that H.S. saw him do it, never told him he could not drink, and did not pull over or try to get the alcohol away from M.G. She testified that she did not have any alcohol that night and that she never drank alcohol. When the other girls said they drank alcohol before, H.S. told them it was not a good idea, but they kept insisting on drinking so M.G. gave them a bottle to share. K.S. testified that H.S. saw them drinking and did not yell or tell them to stop.
She confirmed that M.G. was seated next to H.S. at the movie theater and that she was on the other side of H.S. She testified that it was mostly M.G. and L.H. throwing popcorn in the movie theater, "[b]ut they were just goofing around." (R.R. at 221a.) She stated that M.G. was not upset during the movie and seemed fine, but admitted she was watching the movie and not him.
L.H., a 16-year-old dance student, testified that after H.S. purchased the alcohol, he put it in the back of the car near the girls' feet. She stated that H.S. did not offer any of them alcohol on the night in question and that M.G. grabbed the bottle after H.S. put it in the back of the car. She testified that when H.S. saw M.G. drinking the alcohol, "[h]e yelled at him and said you can't do that." (R.R. at 229a.) She stated that M.G. then passed the bottle to the girls in the back seat and they drank it even though H.S. told them it was wrong. L.H. testified that when M.G. threw up in the parking lot, H.S. said, "see, that's why I told you not to [drink]." (R.R. at 235a.) L.H. first testified that H.S.'s car had a trunk, but later said it was an SUV and did not have a closed trunk and that she could see straight to the back of the car. L.H. said she thought the car was a Ford but did not know the model name.
L.H. testified that M.G. sat between her and H.S. at the movie theater and that they were throwing popcorn at each other. She denied seeing H.S. hit, touch or do anything inappropriate to M.G.
C.
After L.H.'s testimony, ALJ Crago continued the hearing so that an interpreter could be present for the testimony of I.S., H.S.'s mother. The case was then reassigned to ALJ Joseph Woitko (ALJ Woitko) and I.S. testified at a hearing before him on May 24, 2017.
H.S. also brought numerous character witnesses to the hearings before both ALJ Crago and ALJ Woitko.
I.S. testified that she was home on the evening of October 10, 2015, when M.G. came to her house with H.S., who lives with her. I.S. stated that when she heard the door, she went downstairs, saw M.G. seated on the sofa by himself, and she greeted and blessed him. I.S. stated that her son then came downstairs, told her he was taking M.G. home and the two left. I.S. testified that H.S. did not sit on the sofa with M.G. She stated that she did not remember what time H.S. and M.G. got to the house that evening, but they did not stay long. I.S. testified that H.S. had been running his dance studio for about 21 years and that when H.S. brought students to her house, they were usually with their mothers.
H.S. did not testify in either of the hearings.
D.
In his decision, ALJ Woitko found that Philadelphia DHS presented substantial evidence that H.S. committed sexual abuse or exploitation of a child as that term is defined in 23 Pa.C.S. § 6303(a) and recommended that H.S.'s appeal be denied. He found that H.S. sexually abused M.G. "given [H.S.]'s coordinated and deliberate behavior on the evening of October 10, 2015 which was done to induce, entice, or coerce [M.G.] to engage in sexually explicit conduct with [H.S.] and was done for the purpose of arousing or gratifying sexual desire in [H.S.], [M.G.], or both." (ALJ Woitko's Adjudication at 14.) ALJ Woitko pointed to numerous behaviors of H.S. on the day in question that resulted in the commission of sexual abuse against M.G., including giving M.G. alcohol and taking him into a dressing room alone to try on tight clothes. In particular, he found that H.S.'s grabbing of M.G.'s crotch, repeatedly showing M.G. pornography while asking him questions of a sexual nature, repeatedly asking to massage M.G., and asking M.G. to attend a party where massages are given, "especially when combined together, result in a clear finding of substantial evidence of sexual abuse. . . ." (Id. at 15.)
That provision of the CPS Law defines "[s]exual abuse or exploitation", in pertinent part, as:
Any of the following:
(1) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in sexually explicit conduct, which includes, but is not limited to, the following:
(i) Looking at the sexual or other intimate parts of a child or another individual for the purpose of arousing or gratifying sexual desire in any individual.
(ii) Participating in sexually explicit conversation either in person, by telephone, by computer or by a computer-aided device for the purpose of sexual stimulation or gratification of any individual.
(iii) Actual or simulated sexual activity or nudity for the purpose of sexual stimulation or gratification of any individual.
ALJ Woitko found the testimony of M.G., J.E. and K.S. to be credible, found the testimony of A.E. and L.H. not credible, and found the testimony of I.S. was not relevant. ALJ Woitko explained that the high degree of detail provided by M.G. in his testimony stood up to extensive vigorous cross-examination and was supported by the testimony of K.S. ALJ Woitko noted that this, combined with H.S.'s admissions to J.E. and the candid testimony of J.E., who exposed himself to potential criminal liability by admitting under oath that he physically attacked H.S., supported his determination.
On November 17, 2017, BHA issued an order adopting ALJ Woitko's recommendation in its entirety without further explanation. H.S. then filed this petition for review.
Our review is limited to determining whether the agency committed an error of law or violated the appellant's rights, and whether the agency's findings were supported by substantial evidence. R.J.W. v. Department of Human Services, 139 A.3d 270, 279 n.2 (Pa. Cmwlth. 2016) (citing G.V. v. Department of Public Welfare, 91 A.3d 667 (Pa. 2014)). --------
II.
H.S.'s arguments on appeal all go to challenging the credibility determinations made by ALJ Woitko. Those arguments can be summarized as ALJ Woitko committed an abuse of discretion by employing a double standard when evaluating testimony given in support of H.S. versus that given in support of Philadelphia DHS. H.S. asserts that ALJ Woitko chose to ignore or dismiss competent evidence presented by H.S. that contradicted that of Philadelphia DHS. H.S. argues that ALJ Woitko failed to undertake the statutorily required "weighing dynamic," selectively used parts of certain witnesses' testimony, and never adequately reconciled the direct contradictions in the testimony of M.G. versus that given by credible witnesses. We disagree.
The burden of proof in an expunction hearing is on the agency to show, by substantial evidence, that the indicated report of child abuse is accurate. Bucks County Children and Youth Social Services Agency v. Department of Public Welfare, 977 A.2d 1254, 1256 (Pa. Cmwlth. 2009) (citation omitted). Substantial evidence is defined under the CPS Law 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); see also R.J.W. v. Department of Human Services, 139 A.3d 270, 282 (Pa. Cmwlth. 2016). Therefore, "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.'" R.J.W., 139 A.3d at 282 (quoting In re S.H., 96 A.3d 448, 453 n.4 (Pa. Cmwlth. 2014)). In determining whether substantial evidence exists, we must give the party in whose favor the decision was rendered the benefit of all reasonable and logical inferences that may be drawn from the evidence of record. R.W. v. Department of Human Services, 128 A.3d 839, 844 (Pa. Cmwlth. 2015) (citation omitted).
It is well established that "the ALJ is free to accept or reject the testimony of any witness . . . in whole or in part, and determinations regarding credibility and weight of the evidence are within the province of the ALJ." R.J.W., 139 A.3d at 287 (emphasis added) (quoting DePaolo v. Department of Public Welfare, 865 A.2d 299, 305 (Pa. Cmwlth. 2005)). We will not disturb determinations as to credibility and evidentiary weight absent an abuse of discretion. R.J.W., 139 A.3d at 285; F.V.C. v. Department of Public Welfare, 987 A.2d 223, 228 (Pa. Cmwlth. 2010) (citation omitted).
In essence, H.S. is asking this Court to do just that - to reweigh the evidence and overrule ALJ Woitko's credibility determinations. After recounting the testimony provided by all eight witnesses, ALJ Woitko determined that M.G.'s testimony was credible. He explained that he did so because M.G. provided a high level of detail regarding the allegations of abuse and his testimony did not change or falter despite extensive cross-examination. Moreover, M.G.'s testimony regarding the alcohol was supported by K.S., who testified that H.S. saw M.G. take it, never told him he could not drink it and did not pull over or try to get the alcohol away from M.G. Notably, K.S. was the only person to testify who was in the car on the night in question and who did not consume any alcohol.
M.G.'s allegations were further corroborated by the testimony of J.E., who testified that H.S. admitted that he gave M.G. wine and watched pornography with him. As ALJ Woitko pointed out, J.E. exposed himself to potential criminal liability by admitting under oath that he assaulted H.S. In his brief to this Court, H.S. argues that any admissions he may have made to J.E. were tainted, given the assault, as they were coercive in nature or the product of duress. H.S. repeatedly states that J.E. testified that he began punching H.S. almost immediately, as soon as H.S. confirmed that he stopped at the liquor store with M.G. and the other children in the car, and that the "beating" occurred contemporaneously with the admissions. However, this is not an accurate description of J.E.'s testimony. J.E. very clearly testified that he punched H.S. only after H.S. admitted to giving M.G. wine and watching pornography with him. Therefore, H.S.'s argument that these admissions should be discounted is without merit.
ALJ Woitko also adequately explained why he did not find the testimony of A.E. or L.H. to be credible. He pointed out that A.E. could not remember what movie the group went to see on the night in question and she "told an inconsistent and confusing story to the Court." (ALJ Woitko's Adjudication at 13.) Specifically, A.E. initially testified that H.S. did not provide alcohol to M.G., but then quickly changed her story and said that he did provide M.G. with alcohol. As for L.H., ALJ Woitko explained that her testimony was not credible because it was inconsistent with that of the other witnesses and was confusing. L.H. first testified that H.S.'s car had a trunk, then said it did not, and while she testified that the alcohol H.S. purchased that night was in tiny sample-sized bottles, she also said that several of the people in the car drank from one and that M.G. drank "a lot." We discern no abuse of discretion in these credibility determinations and will not disturb them on appeal.
H.S. correctly argues that the statutory standard for substantial evidence in expunction cases incorporates a "weighing dynamic" that goes beyond the traditional deferential review of an agency determination. See R.J.W., 139 A.3d at 288. However, ALJ Woitko employed this "weighing dynamic" by recounting all of the evidence presented, and specifically crediting the testimony of M.G., J.E. and K.S., while rejecting that of A.E. and L.H. As for the testimony of H.S.'s mother, I.S., she actually testified before ALJ Woitko and, therefore, he was free to base his credibility determination on her demeanor. Id. at 287. Moreover, despite H.S.'s argument to the contrary, "[a]n ALJ is not required to address all the evidence that is presented." Id. at 288 (citation omitted). Notably, the testimony of the victim in an expunction case, on its own, is enough to constitute substantial evidence in support of an indicated report of child abuse. Id. at 283 (citations omitted).
Here, ALJ Woitko's findings of fact and discussion adequately addressed the evidence necessary to arrive at the determination and we discern no abuse of discretion. The credible testimony also amounts to substantial evidence to support the determination that H.S. sexually abused M.G.
Accordingly, BHA's order is affirmed.
/s/_________
DAN PELLEGRINI, Senior Judge ORDER
AND NOW, this 6th day of December, 2018, the order of the Department of Human Services in the above-captioned matter is hereby affirmed.
/s/_________
DAN PELLEGRINI, Senior Judge
The definition goes on to state that "[t]his paragraph does not include consensual activities between a child who is 14 years of age or older and another person who is 14 years of age or older and whose age is within four years of the child's age." 23 Pa.C.S. § 6303(a). This provision is not at issue here because, while M.G. was 16 years old at the time of the alleged incident, H.S. is 20 years older than him. See R.R. at 10a.