                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


A. G.,                                       :
                                Petitioner   :   CASE SEALED
                                             :
                         v.                  :   No. 965 C.D. 2017
                                             :   Argued: May 7, 2018
Department of Human Services,                :
                      Respondent             :


BEFORE:           HONORABLE RENÉE COHN JUBELIRER, Judge
                  HONORABLE ANNE E. COVEY, Judge
                  HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                             FILED: June 6, 2018


         A. G. (Mother) petitions for review of the Order of the Department of Human
Services (Department), Bureau of Hearings and Appeals (Bureau), denying
Mother’s appeal from an indicated report identifying her as a perpetrator of child
abuse on the ChildLine and Abuse Registry (Registry) under the Child Protective
Services Law (CPSL).1 The Bureau adopted an Administrative Law Judge’s (ALJ)
Recommendation, in which the ALJ found that Mother did not rebut, with her
testimony, the presumption of abuse in Section 6381(d) of the CPSL, 23 Pa. C.S.
§ 6381(d). Mother argues the ALJ’s findings are not supported by substantial
evidence and that the ALJ erred in applying the presumption.           Because the ALJ
issuing the Recommendation did not also preside over the hearings at which the


         1
             23 Pa. C.S. §§ 6301-6386.
witnesses testified, and the bases for the ALJ discrediting Mother’s testimony are
unclear, our ability to perform effective appellate review to determine whether the
presumption in Section 6381(d) was properly applied is hampered. Accordingly, we
vacate the Department’s Order adopting the ALJ’s Recommendation and remand for
issuance of a new decision clearly setting forth the reasons for crediting/discrediting
the evidence and a new order based upon those credibility determinations.
       On September 12, 2016, Mother was at home with her son, Ca. D. (Child),
who was almost three years old. Child was fine that evening. However, when
Mother awoke Child the following morning, she noticed a bump on his head. Mother
took Child to his daycare while she went to work. The daycare subsequently called
Mother to advise that the Child’s bruising had worsened and asked that she pick
Child up and take him to a doctor. Mother’s sister picked Child up from daycare
and met Mother at the hospital.
       A physician (Physician) examined Child and observed swelling and bruising
on his right cheek, right forehead, and right temple.2 She observed “very evident”
swelling on the right side of Child’s face. A CT scan of the head also revealed
swelling on the right side of Child’s head. Based upon her examination, Physician
found:

       The history provided of [Child] likely doing this to himself in
       frustration is not possible. These injuries are very concerning that this
       child has been struck. Further, an adult care taker must be aware of
       how this significant head trauma took place. These injuries are highly
       concerning for physical abuse.

(ALJ Finding of Fact (FOF) ¶ 24 (quoting Physician’s Report, Ex. C-5).)


       2
          Physician also observed scratches to the base of Child’s neck and left cheek, but the
parties stipulated that the only injuries at issue were those described above.


                                              2
       The County Children, Youth, and Family Services (CYFS) initiated an
investigation. A CYFS intake caseworker (Caseworker) went to the hospital and
interviewed Mother and Child. Child offered no insight into the origin of his
injuries; instead, he referenced a past car accident, licked Caseworker’s shoulder,
and looked out a window when Caseworker attempted to interview him.
       Mother told Caseworker she and Child were watching television until
approximately 10:30 p.m., when Mother put Child to bed. When she woke up the
following morning at 5:00 a.m., she noticed a bump on Child’s head. Child told
Mother he got the bump after falling out of bed.3 Mother then woke up her paramour
D. W. (Paramour),4 who occasionally spent the night at Mother’s residence, to ask
whether he checked on Child overnight. Paramour reported he had checked on
Child, who was fine.
       Caseworker interviewed Paramour by telephone a few days later. Paramour
told Caseworker he arrived at Mother’s house around 1:00 a.m. on September 13,
2016, and woke Child up to take him to the bathroom. He denied observing any
bumps or bruises on Child at that time.
       Although Mother and Paramour denied responsibility for Child’s injuries,
based upon her investigation, Caseworker filed an indicated report of child abuse
naming them both as perpetrators.5 According to the Child Protective Services

       3
          Mother testified that Child told her that he fell out of her bed, although Mother said she
placed Child in his own bed.
        4
          Paramour is not Child’s biological father.
        5
          At the time, “indicated report” was defined by the CPSL as “a report of child abuse made
pursuant to this chapter if an investigation . . . determines that substantial evidence of the alleged
abuse by a perpetrator exists based on . . . (i) [a]vailable medical evidence[;] (ii) [t]he child
protective service investigation[; or] (iii) [a]n admission . . . .” 23 Pa. C.S. § 6303(a). The CPSL
has been amended a number of times since then, but the definition of “indicated report” remains
unchanged.



                                                  3
Investigative Report, commonly called a CY-48, the Caseworker determined there
was substantial evidence that Mother and Paramour caused bodily injury to Child as
he was in the care of both Mother and Paramour at the time of injury.
       On December 14, 2016, Mother appealed requesting expunction of the
indicated report.6,7 A hearing was held on February 15, 2017, at which Child and
Caseworker testified, and on April 19, 2017, at which Physician and Mother
testified.   Child was found not competent and his testimony was ultimately
disregarded. Caseworker testified consistent with her report, as did Physician.
Mother’s testimony was also consistent with what she previously told Caseworker.
Mother did not contend that Child was injured accidentally, either from a fall from
a bed or otherwise. Instead, Mother testified that she believed Paramour, with whom
she broke up following Child’s removal from her home, was the perpetrator,
although he was never physically abusive towards Child or her in the past.
Importantly, Mother stipulated that Child was injured while in her care but denied
causing his injuries.




        The term “child abuse” has been broadened by recent amendments, but the provision
pertinent to this appeal remains unchanged: “child abuse” was and still is defined, inter alia, 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)(1).
        The term “perpetrator” has likewise been expanded, but at the time of the abuse and now,
the term was defined as “[a] person who has committed child abuse as defined in this section” and
included a parent or a paramour or former paramour of a child’s parent. 23 Pa. C.S. § 6303(a).
        6
          On the same date, Child was adjudicated dependent by the Court of Common Pleas. At
the time of the ALJ hearing, Child had been returned to Mother’s care but the dependency case
remained open.
        7
          Paramour also appealed but did not properly perfect the appeal, resulting in its dismissal
by the Bureau. Paramour did not testify at Mother’s hearing.



                                                 4
       Following the hearings, the matter was reassigned to a different ALJ to issue
a recommendation.8 The new ALJ reviewed the transcripts and exhibits before
issuing her decision. Based upon Mother’s stipulation that Child was a victim of
child abuse on September 12-13, 2016, the ALJ found there was prima facie
evidence of abuse, based on the presumption found in Section 6381(d) of the CPSL.9
(Adjudication at 12.) The ALJ further found that Mother failed to rebut the
presumption that she committed the abuse. (Id. at 13.) In doing so, the ALJ found
Mother did not credibly testify. (ALJ FOF ¶ 49.) Specifically, the ALJ found
“[o]ther than her testimony, [Mother] presented no other evidence to rebut the
presumption that she committed the abuse. [Mother]’s denials, although consistent,
are self-serving and are not corroborated by any other evidence in the record.”
(Adjudication at 13.) The ALJ further stated that as the parent, Mother is “always
responsible” for Child and never testified that she gave responsibility for care of
Child to anyone else. (Id.) To the extent Mother was now “point[ing] the finger” at
Paramour, the ALJ stated Mother testified Paramour was never physical with her or
Child, even when they broke up. (Id.) The ALJ noted that Mother never indicated
that Paramour may have been responsible when she spoke to Caseworker or




       8
           At oral argument, it was indicated that the original ALJ who presided over the hearings
retired, resulting in the reassignment.
         9
           Section 6381(d) provides:

       Prima facie evidence of abuse.--Evidence that a child has suffered child abuse of
       such a nature as would ordinarily not be sustained or exist except by reason of the
       acts or omissions of the parent or other person responsible for the welfare of the
       child shall be prima facie evidence of child abuse by the parent or other person
       responsible for the welfare of the child.

23 Pa. C.S. § 6381(d) (emphasis added).


                                                5
Physician; it was “[o]nly after she was indicated as a perpetrator of abuse [that] she
offer[ed] this as an explanation.” (Id.) In addition, the ALJ found it was:

       not reasonable that [Mother] would have waited until after [Child] was
       removed from her care to break up with [Paramour] if she truly
       thought he was the one who abused [Child]. It is also not reasonable
       that [Child] would have been the victim of child abuse, sustaining an
       injury causing substantial pain, without [Mother] waking up.
       [Mother’s] testimony is not credible and is not sufficient to rebut the
       presumption that she abused her son.

(Id. (emphasis in original).)
       Satisfied that CYFS met its burden and Mother did not rebut the presumption
of abuse, the ALJ recommended Mother’s appeal be denied. By Order dated June
19, 2017, the Bureau adopted the ALJ’s recommendation in its entirety.
       Mother now petitions this Court for review,10 arguing “the ALJ
misapprehended the way the presumption [in Section 6381] is rebutted.” (Mother’s
Brief (Br.) at 11.) Mother claims “the ALJ made an unreasonable finding about
credibility of [Mother’s] rebuttal of the prima facie evidence of abuse[,] which
created a fundamentally unfair shifting of the burden.” (Id. at 14.) She questions
what other evidence she could have presented, aside from her own testimony, to
rebut the presumption of abuse, particularly since Child was deemed incompetent to
testify due to his age. She argues “[i]f an ALJ can disregard the word of an appellant
simply because they [sic] are not there for entirely altruistic motives[,] then the right
to rebuttal might as well not exist.” (Id. at 16-17.) Mother cites the Pennsylvania
Supreme Court’s decision in In re L.Z., 111 A.3d 1164 (Pa. 2015), for support that


       10
         “This Court’s review is limited to determining whether legal error has been committed,
whether constitutional rights have been violated, or whether the necessary findings of fact are
supported by substantial evidence.” F.R. v. Dep’t of Pub. Welfare, 4 A.3d 779, 782 n.7 (Pa.
Cmwlth. 2010).


                                              6
a parent’s testimony can be used to rebut the presumption so long as the parent shows
he or she “gave responsibility for the child to another person about whom they [sic]
had no reason to fear.” (Mother’s Br. at 17 (quoting L.Z., 111 A.3d at 1185).) Here,
Mother contends, the evidence shows she gave responsibility to Paramour to care
for Child and she had no reason to fear him. Mother takes issue with the ALJ’s
findings related to her breakup with Paramour and whether she should have
awakened to hear Child in pain. Mother argues the ALJ is “making a credibility
determination not on the testimony of [Mother], which this ALJ never heard, but
rather on baseless inferences.” (Id. at 18.) Mother argues the record is devoid of
any evidence to support these findings.
      Intervenor CYFS11 acknowledges it cannot positively identify whether Mother
or Paramour was responsible for Child’s injuries but argues it was entitled to the
presumption under Section 6381(d) because only Mother and Paramour were at
home when Child was injured and Mother stipulated Child was a victim of child
abuse. It further argues the ALJ, as fact-finder, was the judge of credibility and was
entitled to find Mother not credible.                With no other evidence to rebut the
presumption, the ALJ was correct to dismiss the appeal.
      At the heart of this case is the so-called presumption found in Section 6381(d)
of the CPSL. Section 6381(d) provides:

      Prima facie evidence of abuse.--Evidence that a child has suffered
      child abuse of such a nature as would ordinarily not be sustained or
      exist except by reason of the acts or omissions of the parent or other
      person responsible for the welfare of the child shall be prima facie
      evidence of child abuse by the parent or other person responsible for
      the welfare of the child.



      11
           The Department did not participate in this appeal.


                                                 7
23 Pa. C.S. § 6381(d) (emphasis added).
      In In re L.Z., the Pennsylvania Supreme Court addressed the history of the
evolving interpretations of this presumption in cases involving multiple caretakers
that were previously decided by both this Court and the Superior Court. The
Supreme Court held that the presumption in Section 6381(d) was not limited to cases
where the abused child was in the parent’s physical care at the time of injury because
“parents are always responsible for their children.” L.Z., 111 A.3d at 1183-84. The
Supreme Court explained that the Legislature, with Section 6381(d), “carved out a
very limited exception,” which allows for identification of the perpetrator “based on
prima facie evidence in cases where the abuse is ‘of such a nature as would ordinarily
not be sustained or exist except by reason of the acts or omissions of the parent or
other person responsible for the welfare of the child.’” Id. at 1184-85 (quoting 23
Pa. C.S. § 6381(d)).     The Supreme Court explained the importance of the
presumption:

      [C]hild abuse cases often involve a child presenting to a hospital with
      significant injuries that are entirely consistent with common types of
      child abuse and entirely inconsistent with the implausible explanations
      concocted by the parents and responsible persons to avoid allegations
      of child abuse. As noted, in cases where multiple caregivers are
      involved, the individuals frequently “circle the wagons” or alternatively
      point fingers at each other. As the children may be too young or fearful
      to describe the abuse, CYS agencies are left to prove their case with
      only the physical evidence of injuries that would not ordinarily be
      sustained but for the action of the parents or responsible persons and
      the implausible statements of the parents and responsible persons.
      Thus, while they can prove the existence of abuse rather easily, they
      have no ability to assign responsibility for the heinous act among the
      responsible adults. As Judge Tamilia observed in 1993, “the
      Legislature deemed it wise and necessary to establish a different
      evidentiary standard” by enacting Section 6381(d)’s presumption to
      avoid this evidentiary conundrum and protect children from future
      abuse. [In re] J.R.W., 631 A.2d [1019], 1023 [(Pa. Super. 1993)]. We

                                          8
      emphasize that, when a child is in the care of multiple parents or other
      persons responsible for care, those individuals are accountable for the
      care and protection of the child whether they actually inflicted the
      injury or failed in their duty to protect the child.

Id. at 1185.
      The Supreme Court explained Section 6381(d) merely serves as prima facie
evidence of abuse and can be rebutted. Id. The Supreme Court stated alleged
perpetrators “may present evidence demonstrating that they did not inflict the abuse,
potentially by testifying that they gave responsibility for the child to another person
about whom they had no reason to fear or perhaps that the injuries were accidental
rather than abusive.” Id. (footnote omitted). Importantly, the Supreme Court stated
that “[t]he evaluation of the validity of the presumption would then rest with the
[fact-finder] evaluating the credibility of the prima facie evidence presented by
the CYS agency and the rebuttal of the parent or responsible person.” Id.
(emphasis added). The fact-finder is the judge of credibility when there is a conflict
in evidence. T.H. v. Dep’t of Human Servs., 145 A.3d 1191, 1203-04 (Pa. Cmwlth.
2016).
      Here, the ALJ properly applied the presumption based upon Mother’s
stipulation that child abuse occurred and that Mother and Paramour were the only
individuals home with Child at the relevant time.         In an effort to rebut that
presumption, Mother testified that she was not responsible for the abuse and that
Paramour must have caused Child’s injuries. The ALJ rejected Mother’s testimony
as not credible, but the ALJ’s reasons for rejecting Mother’s testimony are not clear.
In the ALJ’s Recommendation, the ALJ, on more than one occasion, calls Mother’s
testimony “self-serving” and “uncorroborated.” (Adjudication at 13.) However, all
testimony in some form is “self-serving.” Even a disinterested witness has an



                                          9
interest in having his or her testimony believed. See A.P. v. Dep’t of Pub. Welfare,
98 A.3d 736, 744-45 (Pa. Cmwlth. 2014) (vacating and remanding an adjudication
where an ALJ applied a double-standard in finding only one side’s witnesses were
biased, stating “a conclusory credibility determination does not suffice.”).
      The ALJ appears to proffer other explanations for the credibility
determination, such as Mother’s failure to identify Paramour as a possible
perpetrator earlier, the timing of her breakup with Paramour, and Mother not waking
up when Child was injured. However, the ALJ’s finding that Mother should have
awakened when Child was injured is not supported by substantial evidence. There
is no evidence of record related to how big the residence is, where Mother and Child
were located in relation to one another, whether Child would have cried out, or
whether Mother is a light or heavy sleeper. Thus, this explanation for discrediting
Mother’s testimony must be disregarded. It is not clear what weight the ALJ gave
this reason, as compared to the other two reasons for discrediting Mother’s
testimony. Nor is it clear from the Recommendation to what extent the ALJ’s
credibility determination was based upon Mother’s so called “self-serving” and
“uncorroborated” testimony.
      The importance of the ALJ’s credibility determination in this type of case
cannot be overstated. Because the presumption imposes responsibility for the abuse
on the parent based on relationship and duty, when there is a lack of any other
evidence of the perpetrator, often, as here, the only evidence an alleged perpetrator
will have to introduce to rebut the presumption in this type of case is his or her own
uncorroborated testimony. If an ALJ can outright find that testimony incredible
because it is self-serving, then the presumption becomes irrebuttable, which is
contrary to L.Z.



                                         10
      An ALJ must offer more than “conclusory” statements of credibility, A.P., 98
A.3d at 744-45, to explain his or her credibility determinations, especially in cases
where the ALJ did not preside over the hearings and have the benefit of observing
the witness’s demeanor or body language during his or her testimony, such as here.
We do not mean to suggest that all child abuse expunction proceedings require the
ALJ who presided over the hearing to also issue the recommendation to the
Department. We are cognizant that fact-finders for administrative agencies must
sometimes determine witness credibility based upon reading a transcript. Hammad
v. Bureau of Prof’l & Occupational Affairs, State Bd. of Veterinary Med., 124 A.3d
374, 381 n.11 (Pa. Cmwlth. 2015); Fisler v. State Sys. of Higher Educ., 78 A.3d 30,
41 (Pa. Cmwlth. 2013); Caldwell v. Clearfield Cty. Children & Youth Servs., 476
A.2d 996, 998 (Pa. Cmwlth. 1984). However, our Supreme Court has noted a
distinction between credibility determinations based on viewing live testimony and
those based upon a review of the record. When the credibility determination is based
on live testimony,

      it is appropriate for the judge to base his or her determination upon the
      demeanor of the witnesses. In such an instance, there often is not much
      to say, nor is there a need to say much, in order for a reviewing body to
      determine that the decision was reasoned. Such a credibility
      determination may involve nothing more than the fact-finder’s on-the-
      spot, and oftentimes instinctive, determination that one witness is more
      credible than another. The basis for the conclusion that certain
      testimony has the “ring of truth,” while other testimony does not, may
      be difficult or impossible to articulate—but that does not make such
      judgments invalid or unworthy of deference. To the contrary, people
      routinely undertake affairs of consequence based upon their judgment
      of the credibility and reliability of others, or their assessment of the
      mettle and character of the persons with whom they are dealing.
      Accordingly, in a case where the fact-finder has had the advantage of
      seeing the witnesses testify and assessing their demeanor, a mere


                                         11
      conclusion as to which witness was deemed credible, in the absence of
      some special circumstance, could be sufficient to render the decision
      adequately “reasoned.”

Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052-53
(Pa. 2003) (internal citation omitted).
      On the other hand, if the fact-finder’s credibility determinations are based
upon a review of the record,

      [s]ince the [fact-finder] did not observe the respective demeanors of the
      experts, her resolution of the conflicting evidence cannot be supported
      by a mere announcement that she deemed one [witness] more “credible
      and persuasive” than another. This is not to say that the [fact-finder]
      must actually observe competing witnesses on the stand in order to
      assess their relative credibility. To the contrary, as the cases that we
      have canvassed . . . demonstrate, there are countless objective factors
      which may support the decision to accept certain evidence while
      “rejecting or discrediting competent [conflicting] evidence.” . . . The
      point is that, absent the circumstance where a credibility assessment
      may be said to have been tied to the inherently subjective circumstance
      of witness demeanor, some articulation of the actual objective basis
      for the credibility determination must be offered for the decision to be
      a “reasoned” one which facilitates effective appellate review.

Id. at 1053 (footnote and internal citation omitted) (emphasis added).
      While Daniels is a workers’ compensation case, governed by a statute that
expressly requires a reasoned decision, our courts have looked to it for guidance in
other types of proceedings. See, e.g., Commonwealth v. $6,425.00 Seized from
Esquilin, 880 A.2d 523, 531 n.7 (Pa. 2005) (describing the need for objective
evaluation of a witness’s testimony when the trial judge in a forfeiture proceeding
did not hear live witnesses, which would enable him to make demeanor-based
credibility determinations); Spencer v. City of Reading Charter Bd., 97 A.3d 834,
842 n.8 (Pa. Cmwlth. 2014) (noting that a fact-finder in a local agency proceeding


                                          12
must explain the reasoning for his credibility determination if he did not observe the
witness testify). We discern no reason it should not be applicable in a case involving
serious allegations of child abuse.
      Moreover, due process “require[s] that the fact[-]finder’s decision be . . .
explained ‘in sufficient detail to permit meaningful appellate review.’” Fisler, 78
A.3d at 41 (quoting Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383,
1389 (Pa. 1985)). Without an adequate explanation, the Court’s ability to engage in
appellate review is hindered.
      Here, the ALJ did not find Mother credible. Because the ALJ who issued the
Recommendation was different than the ALJ who presided over the hearing and
heard Mother’s live testimony, the ALJ needed to proffer objective reasons for
discrediting Mother. The Recommendation leaves open the door that the ALJ did
not credit Mother’s testimony because it was self-serving and uncorroborated. As
we explained above, this would render the presumption in the CPSL irrebuttable,
which is contrary to L.Z. and notions of due process. Accordingly, we vacate the
Department’s Order and remand the matter for a new credibility determination. In
particular, on remand, the ALJ should determine what, if any, impact the lack of
corroborating evidence had on the ALJ’s credibility determination and should set
forth in greater detail all of her reasons for discrediting Mother’s testimony.



                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                          13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


A. G.,                                      :
                            Petitioner      :   CASE SEALED
                                            :
                      v.                    :   No. 965 C.D. 2017
                                            :
Department of Human Services,               :
                      Respondent            :


                                         ORDER


         NOW, June 6, 2018, the Order of the Department of Human Services dated
June 19, 2017, in the above-captioned matter is VACATED, and the matter is
REMANDED for further proceedings consistent with the foregoing opinion.
         Jurisdiction relinquished.



                                          _____________________________________
                                          RENÉE COHN JUBELIRER, Judge
