            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philadelphia County Department of :       SEALED CASE
Human Services,                   :
                  Petitioner      :
                                  :
             v.                   :
                                  :
Department of Human Services,     :       No. 101 C.D. 2019
                  Respondent      :
                                  :
Philadelphia County Department of :       SEALED CASE
Human Services,                   :
                  Petitioner      :
                                  :
             v.                   :
                                  :
Pennsylvania Department of Human :
Services,                         :       No. 102 C.D. 2019
                  Respondent      :       Argued: November 12, 2019


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                               FILED: December 6, 2019

            The Philadelphia County Department of Human Services (DHS)
petitions this Court for review of the Pennsylvania Department of Human Services’
(Department) Bureau of Hearings and Appeals’ (BHA) December 31, 2018 order
adopting the Administrative Law Judge’s (ALJ) recommendation to sustain the
subject child’s (Child) father’s (Father) and Child’s Grandmother’s (Grandmother)
appeals, and expunge their indicated reports1 of child abuse from the ChildLine2 and
Abuse Registry (ChildLine Registry).               DHS presents one issue for this Court’s
review: whether the ALJ erred by holding that, in order to prove serious medical
neglect, DHS was required to show that the increased risk of an adverse outcome
from the lack of medical treatment for Child’s burn actually resulted in a different,
more negative outcome for Child. After review, we affirm.


                                                Facts
               On March 6, 2018, Child’s mother (Mother) placed Child in a sink, and
gave Child a bath. At the time of the bath, Father was asleep in Mother’s home and
was awakened by Child and Mother and discovered that Child sustained a burn.
Father took Child from Mother and notified his mother, Grandmother, of the burn,
and took Child to Grandmother’s house so she could treat the burn. Grandmother
agreed that she was able to treat Child’s burn and did so for approximately two
weeks, including giving Child Tylenol and Motrin, as well as cleaning the burn,




       1
          Section 6303(a) of the Child Protective Services Law (CPSL) defines an “indicated report”
as a report issued by DHS if it “determines that substantial evidence of the alleged abuse by a
perpetrator exists based on any of the following: (i) [a]vailable medical evidence[;] (ii) [t]he child
protective service investigation[; or] (iii) [a]n admission of the acts of abuse by the perpetrator.” 23
Pa.C.S. § 6303(a); see also Section 3490.4 of the Department’s Regulations, 55 Pa. Code § 3490.4.
        2
          Section 3490.4 of the Department’s Regulations defines “ChildLine” as
               [a]n organizational unit of the Department which operates a
               [s]tatewide toll-free system for receiving reports of suspected child
               abuse established under [S]ection 6332 of the CPSL (relating to
               establishment of [s]tatewide toll-free telephone number), refers the
               reports for investigation and maintains the reports in the appropriate
               file. . . .
55 Pa. Code § 3490.4. “The ChildLine Registry is maintained in accordance with the [CPSL.]” In
re: S.H., 96 A.3d 448, 450 n.2 (Pa. Cmwlth. 2014).


                                                   2
which began to heal. Between March 6 and March 18, 2018, Father visited Child
daily at Grandmother’s house.
             On March 18, 2018, Grandmother became concerned about spots visible
on the burn. Grandmother called Mother and instructed her to take Child to the
doctor because Grandmother believed Child had a fungal wound infection, although
the burn appeared to be healed. At an unspecified time between March 18 and March
20, 2018, Grandmother called Father to inquire whether Mother had taken Child to
the doctor. Father replied no, that Mother went to work, and neither Mother nor
Father had taken Child to the doctor. Grandmother travelled to Mother’s house and
told both Mother and Father that if they did not take Child to the doctor, she was
going to call DHS.
             Child was eventually taken to and treated at St. Christopher’s Children’s
Hospital on or about March 20, 2018, and discharged on or about March 22, 2018.
Child had a second-degree burn on her left leg, extending across the genital area and
onto the right leg, well beyond Child’s diaper on both thighs, comprising between 9%
and 10% of Child’s total body surface area. The burn subjected Child to significant
pain at both the time of the injury and thereafter as a result of damage and destruction
to the nerves in the skin dermis, and because of the location of the burn, which would
cause Child pain when Child either urinated or defecated, or when Child needed to be
wiped or cleaned. Child’s burn was healing without infection or additional necessary
ongoing specific burn care in the hospital.
             On March 20, 2018, the Department’s Investigating Intake Social
Worker Jaabir Butler (Butler) received a report of child abuse naming Father and
Grandmother as the perpetrators of Child’s abuse. That same day, Butler commenced
an investigation into the allegations by visiting Child at the hospital, by speaking to
Mother, Father and Grandmother, and by taking three photographs of Child. On May
4, 2018, an indicated report of child abuse was filed with the ChildLine Registry
                                              3
alleging physical abuse of Child as a result of serious physical neglect of Child due to
Mother’s, Father’s and Grandmother’s failure to provide medical treatment or care.
              On July 11, 2018, Father and Grandmother filed appeals from DHS’
decision, and both filed requests to bypass the administrative review and proceed
directly to a hearing. On October 30, 2018, the ALJ held a hearing on the merits of
their appeals. On December 27, 2018, the ALJ recommended that Father’s and
Grandmother’s appeals be sustained and the Department be directed to expunge the
indicated reports of child abuse from the ChildLine Registry. On December 31,
2018, the BHA adopted the ALJ’s recommendation. DHS filed two separate but
identical appeals to this Court.3 By March 27, 2019 order, this Court consolidated the
appeals.


                                           Discussion
              DHS argues that the ALJ erred by holding that, in order to prove serious
medical neglect, DHS was required to prove that the increased risk of an adverse
outcome from the lack of medical treatment to Child’s burn actually resulted in a
different, more negative outcome for Child. Specifically, DHS contends that the core
element of recklessness is the actor’s choice to engage in conduct that constitutes a
gross deviation from the standard of conduct that a reasonable person would observe;
thus, a finding of recklessness does not require a finding that the conduct harmed the
victim.
              The Department rejoins that the facts of this case demonstrate that DHS
only filed the indicated reports against Father and Grandmother because Child would
have benefitted from medical care on the day of the burn. The Department further

       3
          “This Court’s scope of review in expunction proceedings is limited to determining whether
constitutional rights have been violated, whether an error of law has been committed, and whether
necessary findings of fact are supported by substantial evidence.” B.K. v. Dep’t of Pub. Welfare, 36
A.3d 649, 653 n.10 (Pa. Cmwlth. 2012).
                                                 4
asserts that DHS lacked evidence that Father and Grandmother acted recklessly under
the Child Protective Services Law (CPSL).4
              Initially, Section 6303(b.1) of the CPSL defines “child abuse,” in
pertinent part, as “intentionally, knowingly or recklessly . . . [c]ausing serious
physical neglect of a child.” 23 Pa.C.S. § 6303(b.1) (emphasis added). Section
6303(a) of the CPSL defines “serious physical neglect” as:

              Any of the following when committed by a perpetrator that
              endangers a child’s life or health, threatens a child’s well-
              being, causes bodily injury or impairs a child’s health,
              development or functioning:
              (1) A repeated, prolonged or egregious failure to supervise a
              child in a manner that is appropriate considering the child’s
              developmental age and abilities.
              (2) The failure to provide a child with adequate essentials
              of life, including food, shelter or medical care.

23 Pa.C.S. § 6303(a) (emphasis added).
              Further, Section 6303(c) of the CPSL provides:

              Conduct that causes injury or harm to a child or creates a
              risk of injury or harm to a child shall not be considered
              child abuse if there is no evidence that the person acted
              intentionally, knowingly or recklessly when causing the
              injury or harm to the child or creating a risk of injury or
              harm to the child.

23 Pa.C.S. § 6303(c) (emphasis added). Finally, in defining “recklessly,” Section
6303(a) of the CPSL refers to the Crimes Code5 definition.6 Section 302(b)(3) of the
Crimes Code specifies:


       4
         23 Pa.C.S. §§ 6301-6386.
       5
         18 Pa.C.S. §§ 101-9402.
       6
         Specifically, Section 6303(a) of the CPSL provides that “[t]he term shall have the same
meaning as provided in [Section 302 of the Crimes Code,] 18 Pa.C.S. § 302 (relating to general
requirements of culpability).” 23 Pa.C.S. § 6303(a).
                                               5
            A person acts recklessly . . . when he consciously disregards
            a substantial and unjustifiable risk that the material element
            exists or will result from his conduct. The risk must be of
            such a nature and degree that, considering the nature and
            intent of the actor’s conduct and the circumstances known
            to him, its disregard involves a gross deviation from the
            standard of conduct that a reasonable person would observe
            in the actor’s situation.

18 Pa.C.S. § 302(b)(3).
            Here, relative to Father, the ALJ explained:

            [F]ollowing the burn to [Child], [Father] cared for [Child]
            by immediately taking [Child] to his mother, [Grandmother]
            who agreed to further care for [Child] and her burn, which
            she did for a period of two (2) weeks. [Father] came to
            check on [Child] every day. Such conduct by [Father]
            during this period of time was neither negligent nor
            reckless, as he had taken steps to have his mother,
            [Grandmother] care for [Child’s] burn, and [Grandmother]
            assured [Father] that she was able to do so. Father was not
            reckless in relying on [Grandmother’s] representations,
            given the specific facts in this case.
            The closest [Father] came to engaging in reckless behavior
            was when [Father] was informed by his mother,
            [Grandmother], that [Child’s] burn had ‘spots’ visible on
            the burn around March 18, 2018, and [Grandmother] called
            [Mother] and told [Mother] to take [Child] to the doctor,
            because [Grandmother] believed [Child] had a ‘fungal
            wound infection,’ although the burn appeared to
            [Grandmother] to be healed. [Reproduced Record (R.R.) at
            142a.] At an unspecified time between March 18, 2018,
            and March 20, 2018, [Grandmother] called her son, [Father]
            to inquire whether [Child] had been taken to the doctor by
            [Mother]. [Father] replied ‘No,’ that [Mother] went to
            work, but neither [Mother] nor [Father] had taken [Child] to
            the doctor; [Grandmother] travelled to [Mother’s] house,
            and also told both [Mother] and [Father] that ‘if they didn’t
            take [Child] to the doctor, that [Grandmother] was going to
            call DHS.’ I find [Father’s] delay at this period of time to
            be negligent; however, [Grandmother’s] actions eventually
            resulted in [Child] being taken to [] St. Christopher’s
            Hospital for Children.

                                          6
            There is insufficient evidence regarding [Father’s] mens rea
            at that time to establish that [Father] was reckless as
            opposed to being merely negligent in not seeking medical
            attention immediately upon [Grandmother’s] insistence. As
            the Department stated in closing argument, [Father’s] state
            of mind at this time was unknown. [R.R. at 148a.]
            However, the evidence does not prove that [Father] was
            reckless given the facts in this case, the length of delay, and
            the nature and extent of the injury to [Child], which
            [Marita] Lind[, M.D.] testified was not infected, nor was
            there any determined need for ongoing specific burn care in
            the hospital. As it is the Department’s burden of proof, I
            would have to guess to find that [Father’s] actions, or
            inactions rose beyond ordinary negligence to recklessness,
            and I cannot guess.

ALJ Op. 13-14.
            This Court discerns no error in the ALJ’s reasoning. Because the record
does not support a finding that Father “disregard[ed] a substantial and unjustifiable
risk that [injury or harm to the child would] result from his conduct,” 18 Pa.C.S. §
302(b)(3), this Court is constrained to hold that Father did not engage in conduct that
constitutes a gross deviation from the standard of conduct that a reasonable person
would observe.
            With respect to Grandmother, the ALJ expressly opined:

            [Grandmother] believed she could care for [Child’s] wound,
            and did care for it for a period of approximately two (2)
            weeks. [Grandmother] gave [Child] Tylenol and Motrin,
            and cleaned and cared for [Child] and the burn to the best of
            her ability. When the burn appeared to have suspicious
            ‘spots’ on it, [Grandmother] immediately told both
            [Mother] and . . . her son, [Father], insisting that [Child] be
            seen by a doctor. When [Child] was not taken to a
            physician within a day or so by either [Mother] or [Father],
            [Grandmother] went so far as to threaten to call [] DHS in
            order to insure that [Child] was, in fact, taken to a
            physician, which did occur shortly thereafter when [Child]
            was taken to St. Christopher’s Hospital for Children.
            ....

                                          7
             Accordingly, I find that . . . [Grandmother’s] conduct was
             not reckless. It is unclear that there would have been a
             different result had [Child] been brought to the hospital
             earlier, and it has not been established that . . .
             [Grandmother’s] care of [Child] was improper, negligent, or
             reckless.

ALJ Op. at 13. This Court discerns no error in the ALJ’s reasoning. Because the
record does not support a finding that Grandmother “disregard[ed] a substantial and
unjustifiable risk that [injury or harm to the child would] result from [her] conduct,”
18 Pa.C.S. § 302(b)(3), this Court holds that Grandmother did not engage in conduct
that constitutes a gross deviation from the standard of conduct that a reasonable
person would observe.


                                     Conclusion
             For all of the above reasons, the Department failed to satisfy its burden
of proving by substantial evidence that either Father or Grandmother is a perpetrator
of physical abuse of Child, by serious physical neglect. Accordingly, the BHA’s
order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philadelphia County Department of :      SEALED CASE
Human Services,                   :
                  Petitioner      :
                                  :
             v.                   :
                                  :
Department of Human Services,     :      No. 101 C.D. 2019
                  Respondent      :
                                  :
Philadelphia County Department of :      SEALED CASE
Human Services,                   :
                  Petitioner      :
                                  :
             v.                   :
                                  :
Pennsylvania Department of Human :
Services,                         :      No. 102 C.D. 2019
                  Respondent      :


                                    ORDER

            AND NOW, this 6th day of December, 2019, the Pennsylvania
Department of Human Services’ Bureau of Hearings and Appeals’ December 31,
2018 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
