           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chester County Department of              : CASE SEALED
Children, Youth and Families,             :
                  Petitioner              :
                                          :
              v.                          : No. 1812 C.D. 2017
                                          : Argued: June 7, 2018
Department of Human Services,             :
                 Respondent               :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                         FILED: June 26, 2018


              Chester County Department of Children, Youth and Families (CYF)
petitions for review of the order of the Commonwealth of Pennsylvania,
Department of Human Services, Bureau of Hearings and Appeals (BHA) adopting
in its entirety the Administrative Law Judge’s (ALJ) recommendation sustaining
B.M.’s (Father) appeal to expunge a founded report of child abuse maintained in
the ChildLine and Abuse Registry (Registry) pursuant to the Child Protective
Services Law (CPS Law).1 For the following reasons, we affirm.


       1
         23 Pa.C.S. §§ 6301–6384. The Registry 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
(Footnote continued on next page…)
                                                   I.
                 The subject child, I.M. (Child), is a female born on March 27, 2014,
and is one of Father’s six children. On November 23, 2016, CYF received an oral
report of child abuse that Father allegedly committed against Child, who was two
years old at the time. Specifically, on November 21, 2016, Father was arrested for
allegedly threatening to slit Child’s and her mother’s, A.M.’s (Mother), throats
while he stood outside of their vehicle with a box cutter. Chester County law
enforcement filed criminal charges against Father for, inter alia, simple assault,
terroristic threats with intent to terrorize another, possession of weapon, and four
counts of harassment.2


                 Following an investigation by Child Protective Services (CPS), CYF
filed an indicated report3 naming Father as perpetrator of physical abuse against

(continued…)

“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).

       2
         18 Pa.C.S. §§ 2701(a)(3) (one count - simple assault), 2706(a)(1) (one count - terroristic
threats with intent to terrorize another), 907(b) (one count - possession of a weapon), 2709(a)(1)
(one count - harassment), 2709(a)(3) (two counts - harassment), 2709(a)(4) (one count -
harassment).

       3
           As pertinent, an “indicated report” is defined 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:

                        (1) Available medical evidence.

(Footnote continued on next page…)

                                                   2
Child. That report was later amended to a founded report4 based upon Father’s
guilty plea to two counts of summary harassment and admission to the following
colloquy of facts:

                The facts in support of the plea before Your Honor now
                are that on November 21, 2016, at approximately noon[,]
                . . . [Father] and victim in this case, [Mother], were
                engaged in an oral verbal argument. [Mother] was in her
                car with her children. [Father] was outside of the
                vehicle.

                The two were talking, discussing a PFA [protection from
                abuse order] that at the time existed. [Father] made a
                comment to the victim [Mother’s] child that he would

(continued…)

                        (2) The child protective service investigation.

                        (3) An admission of the acts of abuse by the perpetrator.

23 Pa.C.S. § 6303(a).

       4
           As pertinent, the Law defines a “founded report” as:

                A child abuse report involving a perpetrator that is made pursuant
                to this chapter, if any of the following applies:

                       (1) There has been a judicial adjudication based on a
                finding that a child who is a subject of the report has been abused
                and the adjudication involves the same factual circumstances
                involved in the allegation of child abuse. The judicial adjudication
                may include any of the following:

                                (i) The entry of a plea of guilty or nolo
                contendere. . . .

23 Pa.C.S. § 6303(a).




                                                  3
              slit their family’s throats based on the fact that he was
              upset that the family at the time was not together and not
              cohabitating.

              The PFA has since been dropped. [Father’s] conduct in
              making that statement served no legitimate purpose and
              was threatening.

              The couple is back together. [Mother] has contacted both
              the police officers and the District Attorney’s office
              multiple times expressing her disinterest in proceeding
              forward with the case. She’s indicated that it was a
              misunderstanding and that her statement at the time may
              not be completely accurate based on the stress. She has
              been cohabitating again with [Father] I believe for the
              past couple weeks to a month.


(Reproduced Record (R.R.) at 48a-49a) (emphasis added).


              Although the above colloquy does not identify which child Father
specifically threatened, the founded report nevertheless identifies Child as the
subject child and lists the category of abuse as “Creating A Reasonable Likelihood
Of Bodily Injury To a Child Through Any Recent Act/Failure to Act.” (R.R. at
43a.)5 The founded report explains the basis for amending as follows:

              Upon completion of investigation, [F]ather did create a
              reasonable likelihood of bodily injury by threatening to
              slit the [C]hild’s and [M]other’s throats. Only [Mother]
              and [Child] were present in the car while [F]ather was
              outside holding a box cutter making threats. Father was

       5
         See 23 Pa.C.S. § 6303(b.1)(1) (“The term ‘child abuse’ shall mean intentionally,
knowingly or recklessly doing any of the following: (1) Causing bodily injury to a child through
any recent act or failure to act.”).




                                               4
             upset with [M]other for having a PFA against him. At
             the time of this incident there was a current PFA order in
             place because ten days prior [F]ather threatened to shoot
             the family and walked to his car to get a gun. Mother
             subsequently drove away after [F]ather made threats to
             slit their throats and went to the police. Father was
             arrested and charged with possession of a weapon,
             harassment, terroristic threats, and simple assault. There
             is currently a no contact order in place.

             On February 15, 2017 before the Honorable Judge Gavin
             in Chester County Court, [Father] plead [sic] guilty to
             two counts of harassment. The underlying facts recited
             on the record are consistent with the allegations made in
             the original [Indicated Report]; specifically that he
             threatened to slit the throats of his family members. He
             received a total of 6 months probation, with required
             anger management and domestic violence counseling.


(R.R. at 44a.) Father appealed CYF’s decision to amend and a hearing was held
before the ALJ.


             At the hearing, CYF submitted Father’s guilty plea colloquy as well as
the criminal docket sheet listing Father’s charges and guilty plea. None of these
documents, however, listed the name of the specific child and/or children that were
present when Father made the threat or which child the threat was directed toward.
CYF did not offer any testimony.


             After CYF presented its case, Father opted to provide testimony. Not
specifically stating that he directed his comments at Child or that she was involved
in the incident, he did admit, “I made a mistake and I am aware of that. And I just
don’t want it to affect, you know, what I can do with and what I can’t. . . . I’m just



                                          5
simply asking the courts, yes, I understand I made a mistake. I’ve done everything
the [c]ourts have asked me to do. So can we try to work something out?” (R.R. at
33a-34a.)


            The ALJ recommended sustaining Father’s appeal to expunge the
founded report. As the ALJ reasoned:

            At the time of the fair hearing, CYF did not call any
            witnesses but submitted several exhibits. Based upon the
            evidence submitted, it is clear that [Father] pled guilty to
            two (2) counts of harassment relating to an incident
            where he threatened one (1) of [Mother’s] children that
            he would slit the family members’ throats. However, the
            evidence submitted does not specifically identify the
            alleged victim on the harassment convictions. While it is
            clear from the guilty plea colloquy that the victim is one
            of [Father’s] children, the evidence submitted
            demonstrates that he has six (6) children. Therefore, the
            undersigned is unable to determine if the victim of the
            criminal conviction is the subject child of the Founded
            Report.

            Furthermore, [Father] pled guilty to the crime of
            harassment, [18 Pa.C.S. § 2709(a), which] states a person
            commits the crime of harassment when, with the intent to
            harass, annoy or alarm another, the person: (1) strikes,
            shoves, kicks or otherwise subjects the other person to
            physical contact, or attempts or threatens to do the same.
            The elements of the crime of harassment do not equate to
            a judicial finding that [Father] intentionally, knowingly
            or recklessly . . . caus[ed] bodily injury to a child through
            any recent act or failure to act pursuant to [23 Pa.C.S. §
            6303(b.1)(1)]. Consequently, it cannot be determined . . .
            that the criminal conviction involved the same factual
            circumstances involved in the allegation of child abuse
            leading to the indicated report.




                                         6
(ALJ’s Recommendation at 9.) On November 8, 2017, BHA issued an order
adopting the ALJ’s recommendation in its entirety without further explanation.
CYF filed this petition for review.6


                                               II.
              On appeal, CYF contends that the ALJ erred in concluding that it
failed to sustain its burden of demonstrating that Child, who is the subject of the
founded report, was involved in the same factual circumstances leading to Father’s
guilty plea to two summary harassment charges.


              Under the Law, an “indicated” report is defined, in pertinent part, as
“a report of child abuse made pursuant to this chapter if an investigation by the
[D]epartment or [CYF] determines that substantial evidence of the alleged abuse
by a perpetrator exists based on . . . [t]he child protective service investigation.”
23 Pa.C.S. § 6303.7 However, for an “indicated” report to attain the status of a
“founded report,” there must be a judicial adjudication. 23 Pa.C.S. § 6303; D.M. v.

       6
         The CPS Law does not provide a right to appeal for perpetrators named in a founded
report. However, pursuant to the Administrative Agency Law, a founded report of child sexual
abuse is appealable for the “limited purpose of determining whether or not the underlying
adjudication supports a founded report that the named perpetrator is responsible for the abuse.”
J.G. v. Department of Public Welfare, 795 A.2d 1089, 1093 (Pa. Cmwlth. 2002). Our scope of
review is limited to a determination of whether constitutional rights have been violated, whether
an error of law was committed, or whether necessary findings of fact were unsupported by
substantial evidence. Id. at 1091 n.7.

       7
         The CPS Law defines a “perpetrator” as a person who has committed child abuse and is
responsible for the child’s welfare, including “[a] parent of the child.” 23 Pa.C.S. §
6303(a)(1)(i). A “child” is defined as “[a]n individual under 18 years of age.” 23 Pa.C.S. §
6303(a).




                                               7
Department of Public Welfare, 122 A.3d 1151, 1155 (Pa. Cmwlth. 2015).
Specifically, a “founded” report can be sustained with evidence of “a judicial
adjudication” in which there is “a finding that [the] child who is a subject of the
report has been abused and the adjudication involves the same factual
circumstances involved in the allegation of child abuse.” 23 Pa.C.S. § 6303
(emphasis added).


             This Court has held that for a report to become “founded,” CYF must
demonstrate that the factual circumstances of the judicial adjudication and the
indicated report are identical. D.M., 122 A.3d at 1155. These requirements are in
place because the adjudication, itself, constitutes a judicial finding that the child
has been abused and that the perpetrator has been found guilty of the abuse. C.F.,
IV v. Department of Human Services, 174 A.3d 683, 688 (Pa. Cmwlth. 2017). In
other words, to convert an indicated report to a founded report, “the adjudication
must resolve all of the issues in the indicated report definitively and conclusively.
It is for this reason that this Court, while highlighting that an adjudication cannot
usually be collaterally attacked in an administrative proceeding, has stated that the
only way to properly challenge an adjudication upon which a founded report is
based is to appeal and contest the adjudication.” Id. at 692 (emphasis added).


             Upon review, it is clear that CYF failed to demonstrate that the
underlying adjudication involved Child. Although CYF produced ample evidence
that Father pled guilty to harassment because he threatened Mother and one or
more of his six children, none of the evidence definitively and conclusively
demonstrates that he specifically threatened Child. Accordingly, the ALJ was



                                         8
bound to sustain Father’s appeal. To hold otherwise would have required the ALJ
to base a determination of Child’s abuse on “suspicion or conjecture or piling
inference upon inference.” Id. at 691 (quoting Commonwealth v. Turner, 133 A.2d
187, 199 (Pa. 1957)).


               Accordingly, for the foregoing reasons, we affirm BHA’s order.8



                                             _____________________________
                                             DAN PELLEGRINI, Senior Judge




       8
         CYF also contends that the ALJ erred because “[t]his Court held in D.M. that where a
perpetrator pleads guilty to a count of harassment involving the same factual circumstances
involved in the allegation of child abuse, the founded report is sustained.” (CYF’s Brief at 13.)
Because of the manner that we dispose of this matter, we need not reach this issue.

        In any event, D.M. involved a perpetrator making comments and attempting to engage in
sexual activities with a female child while grabbing his penis. Such conduct clearly constituted
“child abuse” because it involved “[t]he employment, use, persuasion, inducement, enticement or
coercion of a child to engage in or assist another individual to engage in sexually explicit
conduct” – i.e., “sexual abuse or exploitation.” 23 Pa.C.S. § 6303(a)(1), (b.1)(4). Conversely,
Father’s alleged verbal threat to Child does not meet the definition of “child abuse” because he
did not “[c]aus[e] bodily injury to a child through any recent act or failure to act.” 23 Pa.C.S. §
6303(b.1).



                                                9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chester County Department of          :
Children, Youth and Families,         :
                  Petitioner          :
                                      :
            v.                        : No. 1812 C.D. 2017
                                      :
Department of Human Services,         :
                 Respondent           :




                                   ORDER


            AND NOW, this 26th day of June, 2018, the order of the
Commonwealth of Pennsylvania, Department of Human Services, Bureau of
Hearings and Appeals, in the above-captioned matter, is affirmed.



                                      _____________________________
                                      DAN PELLEGRINI, Senior Judge
