Opinion
No. 515 C.D. 2012
01-23-2013
T.C., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
T.C. (Mother) petitions for review of an adjudication of the Department of Public Welfare (DPW) denying her request to expunge two indicated reports of child abuse filed by Mifflin County Children and Youth Services (Mifflin CYS) and remove her name from the ChildLine Registry. DPW found that Mother had placed two of her children in imminent risk of sexual abuse by allowing an indicated perpetrator of sexual abuse to reside with her and her children. We affirm.
ChildLine is a unit of the DPW that operates a Statewide toll free system for receiving reports of suspected child abuse, refers the reports for investigation and maintains the reports in the appropriate file. 55 Pa. Code §3490.4; 23 Pa. C.S. §6332. A report of suspected child abuse by the appropriate county agency can be "founded" or "indicated." In either case, the information concerning suspected child abuse is removed immediately from the pending complaint file and placed in the statewide central register. After the report is placed in the statewide central registry, a perpetrator must be notified that her ability to obtain employment in a child-care facility or school may be adversely affected. 23 Pa. C.S. §6338. The Child Protective Services Law (Law) provides that the reports of child abuse may be made available to certain individuals such as: county agency officials, physicians, the Attorney General, federal auditors, and district attorneys. 23 Pa. C.S. §6340.
Mother is the biological mother of A.W. Jr. (Son), K.K. (Daughter-1) and S.S. (Daughter-2). A.W. Sr. (Boyfriend) is the father of Son, who lived with Mother from 2002 until 2007 and again from March 2010 until August 24, 2010. J.S. is the father of Daughter-1 and Daughter-2 and he lived with Mother from November 2009 until February 2010. M.C. (Husband) married Mother sometime in 2007 and he resided with her until October 2009.
The record is unclear as to whether Mother and Husband are still married. Their marital status is not relevant to the issue before this Court.
On November 24, 2008, Northumberland County Children and Youth Services (Northumberland CYS) filed an indicated report listing Boyfriend as the perpetrator of sexual abuse of Daughter-1 and Daughter-2. In December 2009, Daughter-2 recanted her allegations against Boyfriend, claiming that Husband coerced her into making the accusations; Daughter-2 alleged that Husband sexually abused her and Son. In January 2010, Mifflin CYS filed an indicated report identifying Husband as a perpetrator of abuse of Daughter-2.
In March 2010, Mifflin CYS discovered that Boyfriend was again living with Mother and her children. In April 2010, following an investigation, Mifflin CYS concluded that Boyfriend did not pose a threat to the children because Daughter-1 claimed that she had no recollection of Boyfriend abusing her or reporting such abuse, and because of Mother's statement that she never believed that Boyfriend abused her daughters. Mifflin CYS did not require Mother to separate Boyfriend from the children, but reminded her that Boyfriend was still an indicated perpetrator of abuse and that she was responsible for the safety of her children. Notes of Testimony September 21, 2011 at 23-24 (N.T. ___). Despite the warning, Mother continued to allow Boyfriend to reside with her and her children.
In DPW's Findings of Fact, it states that Northumberland CYS made this discovery. However, the testimony and exhibits indicate that it was Mifflin CYS that made this discovery and performed the subsequent investigation. N.T. 26-27, 33-34, 53.
On August 23, 2010, Mother, Daughter-1 and Daughter-2 appeared at the Mifflin CYS office. Mother reported to Mifflin CYS that on August 20, 2010, Daughter-2 had disclosed to her that Husband had never touched her and that she had lied at her father's suggestion. Daughter-2 reported that Boyfriend had sexually abused her and Daughter-1 and had physically abused all three children. Daughter-2 further reported that Husband was going to move back into the home. Mother denied that she planned on having Husband move into the home but admitted that she had permitted the children to speak with him on the phone even though a protection from abuse order was in place. Mother agreed to sign a Voluntary Placement agreement for all three children because no safety plan could be developed. On August 24, 2010, Boyfriend moved out of Mother's residence. On the same day, Mother reported to Mifflin CYS that because she believed that Boyfriend had sexually abused her daughters, she had never allowed him to be alone with the children from the time he moved in in March 2010 until he moved out. N.T. 29-30; 41-42.
On September 9, 2010, Mifflin CYS completed its investigation and concluded that Mother had placed the children in imminent risk of sexual abuse by allowing Boyfriend to reside in her home. Mifflin CYS filed indicated reports of abuse against Mother with respect to Daughter-1, Daughter-2 and Son. On September 15, 2010, the Mifflin County Court of Common Pleas, Juvenile Division, adjudicated Daughter-1, Daughter-2, and Son as dependent children and awarded custody of the children to Mifflin CYS.
On September 28, 2010, DPW notified Mother that her name had been placed on the ChildLine Registry as a result of the three indicated reports of child abuse filed against her. On November 10, 2010, Mother filed her first level appeal and requested that the records concerning the allegations of child abuse be expunged from the ChildLine Registry. On December 28, 2010, DPW denied Mother's request based on a review of the record. On February 10, 2011, Mother filed her second level appeal and requested a hearing.
On March 1, 2011, while awaiting her hearing with DPW, Mother pled nolo contendere to endangering the welfare of a child by allowing Boyfriend to live in the same home as Daughter-2.
By entering a plea, the abuse findings against Mother regarding Daughter-2 were converted from indicated to founded. This divested DPW of jurisdiction to further review the report of abuse regarding Daughter-2; therefore this appeal only concerns the indicated reports of abuse regarding Daughter-1 and Son.
On September 21, 2011, a hearing was held before an Administrative Law Judge (ALJ). At the hearing, Mifflin CYS presented the testimony of Megan Kauffman, the Mifflin CYS caseworker who handled the children's case; her testimony was found credible. Mother also testified at the hearing; her testimony was found credible except for her attempt to recant her prior statement that she always believed Boyfriend had abused the children. On February 23, 2012, the ALJ recommended that Mother's appeal be denied because she had placed the children in an imminent risk of sexual abuse by allowing Boyfriend to reside in her home. On February 28, 2012, DPW entered an adjudication, adopting the ALJ's recommendation. Mother then petitioned for this Court's review.
Appellate review of this matter is limited to determining whether constitutional rights were violated, whether errors of law were committed or whether necessary findings of fact are supported by substantial evidence. P.R. v. Department of Public Welfare, 759 A.2d 434, 436 (Pa. Cmwlth. 2000).
On appeal, Mother raises two arguments. First, Mother contends that Mifflin CYS was estopped from filing an indicated report of abuse against her because its caseworkers had permitted Boyfriend to reside in her home. Second, Mother contends that she did not knowingly place the children at risk of imminent harm because Mifflin CYS gave her permission to allow Boyfriend to reside in her home after determining that he did not pose a threat to the children.
In her first issue, Mother argues that Mifflin CYS should be equitably estopped from filing indicated reports of abuse against her. Mother argues that Mifflin CYS conducted its own investigation and questioned the accuracy of the indicated report of abuse filed against Boyfriend by Northumberland CYS in 2008, primarily because Daughter-1 had recanted her allegations of abuse by Boyfriend. Mifflin CYS informed Mother that the 2008 abuse allegations against Boyfriend were false and that he posed no threat to her children. Mother contends that she relied on this information when she allowed Boyfriend to reside in her home with the children. Mother argues that this reliance was to her detriment because Mifflin CYS referenced the 2008 indicated report against Boyfriend when it filed the indicated reports of abuse against her for allowing Boyfriend to reside with her and her children.
The doctrine of equitable estoppel prevents a party from assuming a position to the disadvantage of another that is inconsistent with a previous position. Quinn v. Department of State, Bureau of Professional & Occupational Affairs, 650 A.2d 1182, 1184 (Pa. Cmwlth. 1994). The doctrine may be applied to a Commonwealth agency when the party asserting estoppel establishes by clear, precise and unequivocal evidence that: "(1) the agency intentionally or negligently misrepresented a material fact; (2) the agency knew or had reason to know that the party would justifiably rely on the misrepresentation; and (3) the party acted to his or her detriment by justifiably relying on the misrepresentation." Id.
We disagree with Mother's assertion that Mifflin CYS should be equitably estopped from filing indicated reports of abuse against her. Mifflin CYS never misrepresented a material fact to Mother or assured her that she could not be held liable for abuse should Boyfriend stay in the home. In April 2010, Mifflin CYS informed her that there was no legal basis to remove Boyfriend or the children from Mother's home because Daughter-1 had recanted her claims of abuse. Although Mifflin CYS did not prevent Mother from allowing Boyfriend to live in the same house as the children, she was reminded that Boyfriend was still listed as an indicated perpetrator of abuse and that she was ultimately responsible for the safety of the children. In short, there is no foundation for Mother's estoppel argument.
In her second issue, Mother argues, alternatively, that the indicated reports of abuse against her should be expunged because her actions did not place her children at imminent risk of sexual abuse. She argues that she did not know that Boyfriend posed a risk to her children because Mifflin CYS allowed Boyfriend to reside in her home. She further argues that she exercised reasonable judgment while he was living with them because she never allowed Boyfriend to be alone with the children.
The Law defines an "indicated report" as follows:
A child abuse report made pursuant to this chapter if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on any of the following:
23 Pa. C.S. §6303(a). In an expungement case, the county agency bears the burden of proving that the actions of the perpetrator constitute child abuse within the meaning of the statute. B.J.K. v. Department of Public Welfare, 773 A.2d 1271, 1275 (Pa. Cmwlth. 2001). The county's evidence must outweigh any contrary evidence. Id.(1) Available medical evidence.
(2) The child protective service investigation.
(3) An admission of the acts of abuse by the perpetrator.
Substantial evidence is "evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." 23 Pa. C.S. §6303(a).
Child abuse is defined as "[a]ny recent act, failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age." 23 Pa. C.S. §6303(b)(1)(iii).
The term "imminent risk" has not been defined by the statute or by the appellate courts. DPW's proposed regulations, published in September 1995 in the Office of Children, Youth and Families (OCYF) Bulletin, provide guidance on what must be shown to substantiate a claim. The proposed regulations provide in part:
This Court discussed the effect of these proposed regulations in E.D. v. Department of Public Welfare, 719 A.2d 384 (Pa. Cmwlth. 1998), and stated:
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. We believe the proposed regulations quoted in this opinion do sufficiently track the meaning of the related amendments to the Child Protective Services Law and are persuasive in our interpretation of "imminent risk." The OCYF Bulletin publishing the proposed regulations indicates that they are to be treated as guidelines until publication as final rulemaking in the Pennsylvania Bulletin. OCYF Bulletin, 3490-95-02, p. 1.
(II) To substantiate imminent risk of serious physical injury or sexual abuse/exploitation:
(A) a specific act or failure to act must be documented;
(B) the act or failure to act must result in risk of abuse; i.e., be supported by substantial evidence that serious physical injury or sexual abuse/exploitation would have occurred;
(C) the risk of abuse must have been imminent;
(1) For risk of serious physical injury, "imminent" means during and/or immediately following the act or failure to act.
(2) For risk of sexual abuse/exploitation, "imminent" means the specific time frame during which the child was exposed to risk of such abuse.
(D) [f]or an alleged act of imminent risk of serious physical injury:
(1) there must be substantial evidence that, but for happenstance, the intervention of a third party or actions by the alleged victim, serious injury would have occurred; and
(2) the injury would have been serious; i.e., would have:
(i) caused the child severe pain; or
(ii) significantly impaired the child's physical functioning.
* * *
(F) [f]or alleged imminent risk of sexual abuse or sexual exploitation:
(OCYF Bulletin, 3490-95-02, pp. 3-4, 2(b)(II)). These proposed regulations were relied upon by this Court in C.K. v. Department of Public Welfare, 869 A.2d 48, 56 (Pa. Cmwlth. 2005) (holding that a mother placed her children in imminent risk of sexual abuse because her "bad judgment" in having her children live with people she knew to be indicated perpetrators of sexual abuse gave the perpetrators an ongoing opportunity to abuse the children). Whether an imminent risk exists is determined from the totality of the circumstances. Id.(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 judgment in preventing such risk.
Applying the above guidelines, we disagree with Mother's assertion that she did not place her children at imminent risk of abuse. Mother was aware at all relevant times that Boyfriend was the subject of a 2008 indicated report of sexual abuse. Mother admitted to Mifflin CYS in August 2010 that she had always believed that Boyfriend had abused her children. Her later attempt to recant that statement was discredited by the ALJ. Mother attempts to shift blame to Mifflin CYS because it did not prohibit Boyfriend from living with her and her children. However, Mifflin CYS did remind her that Boyfriend was still an indicated perpetrator of abuse and that she was responsible for the safety of the children. Mother may have misconstrued the instructions from Mifflin CYS to mean that it was safe to have Boyfriend live with her children; however, she was never excused from having to exercise reasonable judgment to prevent abuse of her children. Mother's claim that she exercised reasonable judgment by never leaving the children alone with Boyfriend is irrelevant. By allowing Boyfriend to reside in her home she placed her children in close proximity to an indicated perpetrator of sexual abuse on a daily basis for several months, i.e., at imminent risk.
In short, there was substantial evidence that Mother knew or should have known of the risk of sexual abuse of her children and failed to exercise reasonable judgment in preventing such a risk. Therefore, DPW did not err in denying Mother's request to expunge the indicated report of abuse against her.
For all of the foregoing reasons, DPW's adjudication is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 23rd day of January, 2013, the order of the Department of Public Welfare dated February 28, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
E.D., 719 A.2d at 389 n.3 (citation omitted).