           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

P.L.,                                           :
                      Petitioner                :
                                                :   SEALED CASE
               v.                               :   No. 1047 C.D. 2019
                                                :   Submitted: May 12, 2020
Department of Human Services,                   :
                 Respondent                     :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE J. ANDREW CROMPTON, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                              FILED: July 24, 2020

               P.L. (Mother) petitions for review of an adjudication of the Department
of Human Services (Department) that denied her request to expunge an indicated
report from the ChildLine and Abuse Registry (ChildLine)1 naming Mother a
perpetrator of child abuse.        Mother injured her son, J.L. (Child), when she used a
broom handle to stop him from jumping on a sofa. Instead of tapping his shoulder,
she hit his head and caused a laceration to his scalp. Mother contends that she did
not act with criminal negligence and, thus, the Department erred in refusing to
expunge the indicated report of child abuse. For the following reasons, we agree
and reverse.
               On August 6, 2018, Children and Youth Services (CYS) received a
report of suspected physical abuse of Child and began an investigation. It determined
that on July 28, 2018, Mother hit Child with a broom and caused an injury to his
head. On September 12, 2018, CYS filed an indicated report of child abuse, naming

1
  ChildLine is “[a]n organizational unit of the Department [of Human Services] which operates a
Statewide toll-free system for receiving reports of suspected child abuse [and] refers the reports
for investigation and maintains the reports in the appropriate file.” 55 Pa. Code §3490.4.
Mother as the perpetrator. Mother filed an appeal, and a hearing was conducted by
an administrative law judge (ALJ) appointed by the Department’s Bureau of
Hearings and Appeals (Bureau).
              At the hearing, the parties stipulated to the admission of Child’s
medical records, photographs of Child’s head injury, an email exchange between
CYS and its consulting physician, the CYS Investigation Report, and the file notes
of the CYS caseworker. Given Mother’s acknowledgment she caused Child’s injury,
the ALJ suggested that CYS “simply rest on their [sic] documents[.]” Notes of
Testimony, 4/8/2019, at 16 (N.T. __); Reproduced Record at 137a (R.R. __). CYS
agreed and did not present any witnesses. Mother was the sole person to testify.2
              Mother testified that she and her husband, Je.L. (Father), have three
children, ranging in age from four to seven years of age. Child is the youngest. On
the day in question, Mother took the children to the barbershop where Father works.
While Mother was sitting on a sofa in the back of the shop doing her school work on
a computer, Child and his brother began to fight over a broom, which Mother took
from them. Child then started jumping up and down on the sofa. Concerned that he
would fall, Mother told him several times to stop, but he ignored her. Still seated,
Mother picked up the broom to tap Child on the shoulder. Instead, the broom hit
Child on the head. Child ran to Father and started crying. When Mother saw blood
on Child’s head, she wrapped his head in a towel and took him to the hospital.
              Mother testified that Child stopped crying before they left for the
hospital. She reported that she was the one that cried at the hospital because of




2
  Mother’s children were present and ready to testify but the ALJ questioned the need for their
testimony in light of the fact that the only issue was Mother’s mens rea. N.T. 15; R.R. 136a.
                                              2
Child’s injury. The hospital did not medicate Child because he did not complain of
pain. The doctor used three staples to repair the cut.
             The medical record reported that Child sustained a “small laceration at
the crown of the head” that was two centimeters in length. R.R. 56a. By email, CYS
requested Mark Reuben, M.D., to review photographs of Child and render an opinion
on whether Child had suffered significant pain from the injury. By email, Dr.
Reuben responded that “[u]nder the circumstances of requiring staples, I feel that
[Child] suffered significant pain at the time the injury was inflicted.” R.R. 88a.
             The CYS Investigation Report states that Mother disclosed that she hit
Child on the head with a broom. It also states that Child provided inconsistent
statements about the injury. Finally, it states that on the basis of photographs, Dr.
Reuben opined that Child suffered significant pain. Based on this information, CYS
filed an indicated report of child abuse naming Mother as a perpetrator.
             The CYS case notes that were admitted into evidence include the
caseworker’s interviews of all three children. The interview notes report that Child
was not sure how he got the injury, but he stated his head got hurt and he went to the
hospital. Child’s older brother stated that Mother hit Child with the broom, but he
also stated that Mother had never hit any of them prior to this incident. Child’s older
sister stated that when she and her siblings misbehave Mother does not hit them; she
sends them to their room. All of the children informed the caseworker that they felt
happy and safe at home. The CYS case notes report that the caseworker examined
all three children but found no suspicious bruises on any of them.
             The ALJ denied Mother’s appeal.             The ALJ reasoned that the
administration of corporal punishment constitutes child abuse where the perpetrator
has acted with criminal negligence. The ALJ found that because “[Mother] struck


                                          3
the subject child with what amounts to [be] a weapon,” she acted with criminal
negligence. ALJ Recommended Decision at 9. Specifically, the ALJ found that
Mother’s use of a broom handle, instead of her hand, was not the use of reasonable
force. The ALJ recommended that Mother’s expungement request be denied.
              The Bureau adopted the ALJ’s recommendation in its entirety. Mother
sought reconsideration of the Bureau’s adjudication, which was denied by the
Secretary of Human Services. Mother then petitioned this Court for review.
              On appeal,3 Mother raises three assignments of error by the
Department. First, Mother contends that the Department failed to consider the fact
that the injury to Child’s head was an accident, explaining that she did not aim for
or intend to hit Child’s head. Second, she contends that the Department erred in
concluding that she acted with mens rea, which is required for a finding of criminal
negligence. Third, she contends that the Department erred in treating the broom as
a weapon and in holding that corporal punishment is lawful only if it is administered
by the parent’s hand.
              We begin with a review of the law. Section 6303(b.1) of the Child
Protective Services Law (Child Services Law) defines “child abuse” as
“intentionally, knowingly or recklessly … [c]ausing bodily injury to a child through
any recent act or failure to act.” 23 Pa. C.S. §6303(b.1). Section 6303(a) of the
Child Services Law defines “bodily injury” as the “[i]mpairment of physical
condition or substantial pain.” 23 Pa. C.S. §6303(a). However, when the alleged



3
  Our review of an adjudication in an expunction proceeding determines whether constitutional
rights were violated, whether errors of law were committed, and whether the necessary findings of
fact are supported by substantial evidence. E.D. v. Department of Public Welfare, 719 A.2d 384,
387 (Pa. Cmwlth. 1998). Whether CYS’s evidence satisfied the evidentiary standard necessary to
meet its burden of proof is a question of law. In re S.H., 96 A.3d 448, 455 (Pa. Cmwlth. 2014).
                                               4
perpetrator of physical abuse is a parent, consideration must be given to Section
6304(d) of the Child Services Law, which states as follows:

             Rights of parents.--Nothing in this chapter shall be construed to
             restrict the generally recognized existing rights of parents to use
             reasonable force on or against their children for the purposes of
             supervision, control and discipline of their children. Such
             reasonable force shall not constitute child abuse.

23 Pa. C.S. §6304(d).
             This Court has explained that “[w]here the allegation of child abuse
involves a parent’s administration of corporal punishment for the purpose of
disciplining a child, the ultimate question is whether the parent used ‘reasonable
force.’” J.S. v. Department of Human Services, 221 A.3d 333, 343 (Pa. Cmwlth.
2019) (citing 23 Pa. C.S. §6304(d)). Notably, the focus is “on the parent’s conduct
rather than the result.” Id.
             To differentiate “abuse” from an “accident” in the context of corporal
punishment, our Supreme Court has offered the following guidance:

             To balance the competing objectives of protecting children from
             abuse while maintaining the parental right to use corporal
             punishment, the legal standard for differentiating abuse from
             accident must acknowledge some level of culpability by the
             perpetrator that his actions could reasonably create a serious
             injury to the child. The standard that best comports with the
             problem of defining abuse in terms of nonaccidental injury is
             criminal negligence.

P.R. v. Department of Public Welfare, Office of Hearings and Appeals, 801 A.2d
478, 486-87 (Pa. 2002) (emphasis added).         Criminal negligence is defined as
follows:



                                          5
               A person acts negligently with respect to a material element of
               an offense when he should be aware of 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 the actor’s failure to perceive it, considering the nature and
               intent of his conduct and the circumstances known to him,
               involves a gross deviation from the standard of care that a
               reasonable person would observe in the actor’s situation.

18 Pa. C.S. §302(b)(4) (emphasis added).
               In ChildLine cases, the CYS agency bears the burden of proof. 23 Pa.
C.S. §6341(c).4 “[I]n an expunction hearing the standard of proof is preponderance
of the evidence, and the statutory standard for the evidence is ‘[e]vidence which
outweighs inconsistent evidence and which a reasonable person would accept as
adequate to support a conclusion.’” A.P. v. Department of Public Welfare, 98 A.3d
736, 742-43 (Pa. Cmwlth. 2014) (quoting 23 Pa. C.S. §6303(a)). To reach a
conclusion that abuse occurred, “the ‘evidence must so preponderate in favor of
[that] conclusion that it outweighs ... any inconsistent evidence and reasonable
inferences therefrom.’” R.J.W. v. Department of Human Services, 139 A.3d 270,
282 (Pa. Cmwlth. 2016) (quoting In re S.H., 96 A.3d at 453 n.4). Whether the
evidence satisfies the statutory standard is a question of law. A.P., 98 A.3d at 743.
               With these principles in mind, we consider Claimant’s contention that
the Department erred in holding that she was a perpetrator of child abuse because
the evidence did not establish criminal negligence. Mother’s testimony was not
challenged by CYS nor was it discredited by the ALJ. She argues that the evidence
did not establish a gross deviation from the standard of care a “reasonable person
would observe, in [her] situation.” 18 Pa. C.S. §302(b)(4).

4
  Section 6341(c) of the Child Services Law states, in relevant part, “[t]hat the burden of proof in
the hearing shall be on the appropriate county agency.” 23 Pa. C.S. §6341(c).
                                                 6
             The Department responds that Mother’s actions were not accidental
because she intended to “make contact with [Child] by using the broom.”
Department Brief at 11. It argues that the use of a broom to tap a child on the
shoulder represented a “gross deviation” from the standard of care a reasonable
person would observe in the situation. 18 Pa. C.S. §302(b)(4). The Department also
argues that Mother was not administering corporal punishment because she
described her action as trying to coax Child off of the sofa.
             We reject the Department’s argument that this is not a corporal
punishment case because Mother was not attempting to punish Child for bad
behavior. Section 6304(d) of the Child Services Law is not limited to punishment.
It covers actions by parents “on or against their children for the purposes of
supervision, control and discipline of their children.”         23 Pa. C.S. §6304(d)
(emphasis added). It is undisputed that Mother was attempting to supervise and
control Child’s behavior, after Child ignored her verbal commands to stop jumping
on the sofa. Mother’s conduct falls within the scope of Section 6304(d) of the Child
Services Law.
             The question, then, is whether Mother used reasonable force within the
meaning of Section 6304(d). In support of her claim that CYS failed to demonstrate
her actions were criminally negligent, Mother directs the Court to P.R., 801 A.2d
478.
             In that case, the mother discovered her six-year-old daughter writing on
the walls of their home and punished her by hitting her with a belt. When her
daughter ran to evade the blows, the belt buckle hit the child in the eye. Three days
later the mother sought medical treatment for her daughter’s swollen eye, which
required surgery. The Department filed an indicated report of child abuse. It


                                          7
acknowledged that the mother did not intend to strike her daughter in the eye, but
concluded that the injury was a foreseeable result of using a belt with a buckle to
administer punishment.       On appeal, this Court reversed, concluding that
foreseeability of the harm is insufficient to prove child abuse. The Supreme Court
granted an appeal.
              In affirming this Court, the Supreme Court held that when a child
suffers a serious injury from corporal punishment, CYS must demonstrate criminal
negligence by the parent. The Supreme Court held that CYS did not meet its burden,
even though “[o]ne can question the wisdom of a parent’s decision to use a belt with
a buckle attached to administer a spanking.” P.R., 801 A.2d at 487. The Supreme
Court concluded that the mother did not grossly deviate from the standard of care a
reasonable person would observe in the situation and, thus, did not act with criminal
negligence.
              After P.R. was decided, the legislature amended the Child Services Law
to add Section 6304(d), which authorizes a parent to use reasonable force to
supervise, control and discipline a child. 23 Pa. C.S. §6304(d). In Allegheny County
Office of Children, Youth and Families v. Department of Human Services, 202 A.3d
155 (Pa. Cmwlth. 2019), this Court explained that P.R. and Section 6304(d) are to
be read harmoniously. As such, the factfinder must determine whether reasonable
force was used “and in doing so, must consider whether the parent was criminally
negligent in that he disregarded a substantial and unjustifiable risk or deviated from
a standard of care that a reasonable person would observe in his situation[.]”
Allegheny County, 202 A.3d at 167.




                                          8
               In Allegheny County, the father punished his five-year-old daughter by
smacking her in the face, on her thigh and on her bottom.5 The child sustained
bruises and abrasions on her face, as well as two long scratches and red marks. She
also had abrasions on her thigh that were tender to the touch. The child’s pediatrician
opined the injuries caused the child substantial pain. The ALJ found that the father
had not used excessive force, noting that the child’s pain had subsided by the next
day, when she saw her pediatrician.                 The Department adopted the ALJ’s
recommendation, and CYS appealed to this Court. We affirmed.
               In so holding, we reviewed other cases where a parent had inflicted
even more serious injuries in the course of administering corporal punishment. For
example, in W.S. v. Department of Public Welfare, 882 A.2d 541 (Pa. Cmwlth.
2005), a father hit his daughter in the ear with his hand, causing her to fall on the
floor. He struck her twice more in the ear while she remained on the floor. By the
following day, the child’s ear was swollen. Medical tests established a 20-decibel
hearing loss, although she recovered her hearing in a week. This Court held that the
father’s conduct did not constitute a gross deviation from the standard of care a
reasonable person would observe in the parent’s situation. Likewise, in Children
and Youth Services for County of Berks v. Department of Human Services (Pa.
Cmwlth., No. 1175 C.D. 2017, filed May 7, 2018),6 the parent hit the child with a
stick with enough force to break the stick and leave a large bruise. The child
described the pain he experienced as an “8” on a scale of “0” to “10,” although the




5
  The father denied hitting the child in the face and on the thigh; the ALJ found him not credible.
6
  An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
                                                9
injury was not considered severe. The conduct was held not to constitute criminal
negligence.
              In the present case, Mother was seated when she raised a broom to hit
Child’s shoulder but, instead, hit his head. This action resulted in a scalp laceration.
In determining whether this action constituted criminal negligence, the focus is “on
the parent’s conduct rather than the result.” J.S., 221 A.3d at 343.
              In P.R., 801 A.2d 478, the mother was swinging at a moving target, and
the injury was not caused by the belt but by the buckle. Similarly, here, Mother was
swinging at a moving target, and the injury was caused by where the broom handle
landed, i.e., on Child’s head instead of his shoulder. Child suffered a cut, with no
bruising or swelling reported. CYS offered no evidence that Mother used excessive
force, and it was its burden to produce such evidence. 23 Pa.C.S. §6341(c). It is
uncontroverted that Mother was seated when she used the broom handle.
              The Department characterized the broom as a “weapon.” It held that
Mother’s use of this weapon, constituted criminal negligence because she should
have used her hand. This is clear error.
              The broom had a “thin” handle and was not constructed of wood. N.T.
33; R.R. 154a. The broom was “white,” four feet in length and had “thin” plastic
bristles. N.T. 35; R.R. 156a. The broom was a handy tool that Mother explained
she “grabbed” so she did not have to stand. N.T. 37; R.R. 158a. The record does not
support the Department’s exaggeration.
              More to the point, the Department’s conclusion that corporal
punishment may only be administered by hand to avoid a finding of criminal
negligence has no support in the Child Services Law or in the case law. In P.R., the
corporal punishment was administered by a belt, and in County of Berks by a stick.


                                           10
We may question the “wisdom” of using a broom handle, even a light-weight one,
to stop a child from jumping on a sofa. P.R., 801 A.2d at 487. However, an absence
of wisdom does not constitute criminal negligence. As in P.R., Mother’s use of a
broom handle, in itself, did not demonstrate mens rea.
             Mother’s testimony was fully credited. As Mother explained, she used
“timeout and [loss] of privileges” to discipline her children, and the documentary
evidence supports this claim. N.T. 26; R.R. 147a. Specifically, the notes from the
interviews of Mother’s children by the CYS caseworker support her testimony on
her methods of child discipline.
             CYS did not demonstrate that Mother used unreasonable force on Child
or disregarded a substantial and unjustifiable risk or grossly deviated from the
standard of care a reasonable parent would observe in her situation. Under P.R., 801
A.2d at 487, and Section 6304(d) of the Child Services Law, 23 Pa. C.S. §6304(d),
this demonstration is necessary to prove child abuse. See also Allegheny County,
202 A.3d at 167. Without that evidence, CYS did not prove that Mother acted with
criminal negligence.
             For the above reasons, we reverse the Department’s adjudication and
remand with the direction that the Department expunge Mother’s indicated report
from the ChildLine and Abuse Registry.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                         11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

P.L.,                                  :
                  Petitioner           :
                                       :   SEALED CASE
            v.                         :   No. 1047 C.D. 2019
                                       :
Department of Human Services,          :
                 Respondent            :


                                  ORDER
            AND NOW this 24th day of July, 2020 the order of the Department of
Human Services, Bureau of Hearings and Appeals, dated July 8, 2019, is hereby
REVERSED and the above-captioned matter is REMANDED with the direction that
the Department order the expunction of P.L.’s indicated report from the ChildLine
and Abuse Registry.
            Jurisdiction relinquished.
                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

P.L.,                            :
                                 :
                      Petitioner : CASE SEALED
                                 :
             v.                  : No. 1047 C.D. 2019
                                 : Submitted: May 12, 2020
Department of Human Services,    :
                                 :
                      Respondent :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE J. ANDREW CROMPTON, Judge


DISSENTING OPINION
BY JUDGE WOJCIK                                            FILED: July 24, 2020

             I respectfully dissent.
             Although I agree with the Majority’s well-stated assessment of the law,
I disagree with its application of the law to the facts presented here. Giving the
Department of Human Services (Department) the benefit of all reasonable and
logical inferences, its determination that P.L. (Mother) acted with the requisite mens
rea when she struck and injured her child J.L. (Child) with a broom is supported by
substantial evidence and is correct as a matter of law.
             The Majority concludes that the injury was accidental. The “injury was
caused by where the broom handle landed, i.e., on Child’s head instead of his
shoulder.” Maj. Op. at 10. “There is no evidence that Mother used excessive force”
because “she was seated when she used the broom handle.” Id. In addition, the
Majority surmises that the broom handle was not a weapon because it was “thin,”
“light-weight,” and made of plastic. Id.
            However, in my view, I believe that the evidence demonstrates that
Mother acted with the requisite mens rea to meet the definition of abuse. The injury
was not accidental. Although Mother may not have intended the outcome, she
intended to make contact with Child by using a broom. Although she meant to hit
Child’s shoulder and hit his head instead, she struck Child with such force that,
despite her sedentary position and use of a lightweight broom handle, she inflicted
severe bodily injury to Child. Specifically, she lacerated Child’s head, which
necessitated an emergency room visit and three medical staples to repair. This was
no mere “swat” or “tap” to stop a four-year-old child from jumping on the sofa, but
was a forceful and intentional strike. Reproduced Record at 13a, 133a. As the
Department’s administrative law judge (ALJ) reasoned, “[Mother] could have
swatted [Child] on his bottom; she could have hit him with the soft bristled end; as
the . . . [C]hild was only four, she could have simply got up off her chair and
removed him from the couch.” ALJ Opinion, 6/28/19, at 9. Instead, she lost her
patience, grabbed a broom and swung the handle with such force as to cause Child
serious bodily injury. This is not “reasonable force” within the meaning of Section
6304(d) of the Child Protective Services Law, 23 Pa. C.S. §6304(d).
            For these reasons, I would affirm.




                                      MICHAEL H. WOJCIK, Judge




                                     MHW - 2
