          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.W.,                                     :
                    Petitioner            :
                                          :
             v.                           :   No. 1422 C.D. 2017
                                          :   SUBMITTED: May 11, 2018
Department of Human Services,             :
                 Respondent               :   CASE SEALED



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                     FILED: July 19, 2018

             S.W. (Father) petitions pro se for review of an order of the Secretary of
Human Services, of the Department of Human Services (Department) upholding the
decision of the Bureau of Hearings and Appeals to deny his appeal and request to
expunge the indicated report of mental child abuse against him. Following a remand
pursuant to S.W. v. Department of Human Services, (Pa. Cmwlth., No. 162 C.D.
2016, filed March 20, 2017) (S.W. I), we affirm.
             M.W. (Child) was born in 2004. During the relevant time periods, his
parents (Father and Mother) were separated and experiencing acrimonious
separation and custody issues. Having already been diagnosed with ADHD, Child
began treating with a licensed child psychiatrist in April 2014 due to focusing issues.
The psychiatrist diagnosed Child with acute adjustment disorder with anxiety, which
occurs when stress produces anxiety that impairs functioning. (August 16, 2017,
Adjudication, Finding of Fact (F.F.) Nos. 1, 3, 6 and 8.)
             In October 2014, the psychiatrist found that Child suffered from tics,
including excessive sneezing and blinking, and increased anxiety. (Id., No. 9.) In
December 2014, Child presented at her office with increased anxiety and tics,
including constant coughing and repetitive blinking. (Id., No. 12.) The psychiatrist
opined that Child’s escalating anxiety was due to Father forcing him to call (1) the
Franklin County Children and Youth Services (CYS) to state that Mother attempted
suicide; and (2) the police and falsely state that his stepbrother had purposefully
bruised him. The psychiatrist also testified that Child did not want to leave Mother’s
side and was afraid of being at school because he feared Father taking him away
from Mother or hurting her in Child’s absence. (S.W. I, slip op. at 5.)
             By March 2015, Child was missing multiple days of school each week
due to disruptive coughing. That month, he was hospitalized on two separate
occasions due to severe anxiety. (F.F. Nos. 13 and 14.) On March 25th, CYS
received and investigated a report of alleged child abuse regarding Child. (Id., Nos.
23 and 24.) Around the end of that month, Child no longer had visitation with Father.
Shortly thereafter, opining that Child’s main stressor was his relationship with
Father, the psychiatrist reported that Child showed a dramatic decrease in anxiety
levels. (Id., Nos. 16-18.) She stated that he was going to school every day and
staying in class, that he was sleeping well, and that he had no tics. (S.W. I., slip op.
at 6.) In addition, she noted that, for the first time, Child was angry with Father and
neither wanted to see him nor speak with him on the phone. (Id.)
             In June 2015, the psychiatrist diagnosed Child with Asperger’s. In July
2015, she opined that he was not anxious, had no tics, made no complaints regarding



                                           2
his medications, and was sleeping well. (S.W. I, slip op. at 7.) Although she
acknowledged on cross-examination that he had changed schools at some point, she
nonetheless reiterated that Child’s main stressor was his relationship with Father. In
support, she cited Child’s complaints and the dramatic decrease in his anxiety since
the discontinuation of visitation with Father.      (Id.)   Subsequently, once CYS
determined that there was substantial evidence of child abuse, it filed an April 2015
indicated report of abuse listing Father as perpetrator. Father appealed. (F.F. Nos.
25 and 26.)
              At the hearing that followed, neither Father nor Mother testified. Father
via counsel presented the testimony of his sister, brother, and brother-in-law. CYS
proffered the testimony of Child, the psychiatrist, and the CYS investigator. It also
presented the psychiatrist’s report detailing Child’s diagnosis, therapy, treatment,
and familial interactions.    The Administrative Law Judge (ALJ) accepted the
testimony of all of the witnesses as credible. In addition, he admitted the report in
part and excluded it in part, stating that he would give whatever weight he deemed
necessary to the admissible portions and not consider the rest. (S.W. I, slip op. at
17.) Ultimately concluding that Father had committed mental child abuse, the ALJ
cited Father’s (1) degrading of Mother in front of Child; (2) questioning of Child
about Mother; (3) threats to take Child away from Mother; and (4) intentional
withholding of prescribed medications. (Id. at 16.) In January 2016, the Bureau
adopted the ALJ’s recommendation in its entirety.
              In March 2017, this Court in S.W. I concluded that there were two bases
for the child abuse determination: (1) Father’s failure to give Child his medications;
and (2) Father’s relationship with Child. Concluding that the record did not support
a determination that the first basis was actionable, we turned to the second. (S.W. I,



                                           3
slip op. at 22.) Reciting that Child credibly testified that Father’s behavior bothered
him, we also noted the psychiatrist’s observation that Child’s anxiety decreased
dramatically after the termination of visitation. We further noted, however, that the
record contained conflicting evidence that Father alleged outweighed any evidence
supporting a finding that he substantially contributed to Child’s serious mental
injury. This conflicting evidence included Child’s congenital disorders and Mother
and Maternal Grandmother allegedly filling Child’s head with misinformation about
Father and causing Child to fear for Mother’s loneliness when Child was with Father.
In addition, Father alleged that the factfinder had ignored the fact that Child’s issues
were greatly improved by a change in school and an Asperger’s diagnosis that
resulted in a positive medication change. (Id. at 17-18.) Accordingly, citing the
ALJ’s failure to address such evidence, we remanded for specific findings regarding:
(1) the admissibility of the psychiatrist’s report due to the ALJ’s lack of clarity in
determining which portions were admissible; and (2) the weight given to conflicting
evidence suggesting other causes for Child’s serious mental injury. (Id. at 23.)
             Subsequently, the ALJ issued an August 2017 recommended
adjudication combining his original decision with the new findings made on remand.
Once again, the Bureau adopted the ALJ’s recommendation in its entirety. Father’s
petition for review followed. On appeal, we consider whether the Secretary erred in
concluding that the Department met its burden of establishing by substantial
evidence that Father intentionally, knowingly or recklessly caused or substantially
contributed to serious mental injury to Child.
             Section 6303 of the Child Protective Services Law (CPSL) defines
“substantial evidence” as “[e]vidence which outweighs inconsistent evidence and
which a reasonable person would accept as adequate to support a conclusion.” 23



                                           4
Pa. C.S. § 6303. It is the equivalent of the preponderance of the evidence standard.
S.T. v. Dep’t of Pub. Welfare, 681 A.2d 853, 857 n.4 (Pa. Cmwlth. 1996). This
substantial evidence/preponderance of the evidence standard means that the
factfinder must be satisfied that the evidence shows that a fact is probably true, i.e.,
more likely true than not. In re S.H., 96 A.3d 448, 455 n.7 (Pa. Cmwlth. 2014). In
addition, the Secretary is the ultimate finder of fact in expunction appeals. K.J. v.
Dep’t of Pub. Welfare, 767 A.2d 609, 613 (Pa. Cmwlth. 2001). Consequently,
absent an abuse of discretion, we will not disturb his credibility determinations and
the weight that he accorded to the evidence. D.T. v. Dep’t of Pub. Welfare, 873 A.2d
850, 853 (Pa. Cmwlth. 2005). Further, in ascertaining whether the fact-findings are
supported by substantial evidence, we must review the evidence and the inferences
reasonably drawn therefrom in the light most favorable to the party who prevailed
below. W. Ctr., Dep’t of Pub. Welfare v. Hoon, 598 A.2d 1042, 1045 (Pa. Cmwlth.
1991).
             Section 6303(b.1)(3) of the CPSL provides, in pertinent part, that the
term “child abuse” shall mean intentionally, knowingly or recklessly doing any of
the following: “Causing or substantially contributing to serious mental injury to a
child through any act or failure to act or a series of such acts or failures to act.” 23
Pa. C.S. § 6303(b.1)(3). “Serious mental injury” is defined as follows:

                   A psychological condition, as diagnosed by a
             physician or licensed psychologist, including the refusal
             of appropriate treatment, that:
                    (i) renders a child chronically and severely anxious,
             agitated, depressed, socially withdrawn, psychotic or in
             reasonable fear that the child’s life or safety is threatened;
             or
                    (ii) seriously interferes with the child’s ability to
             accomplish age-appropriate developmental or social tasks.


                                           5
Section 6303(a) of the CPSL.
             In the present case, Father argues that the Secretary should have
determined that Child’s serious mental injury resulted from the other potential
causes described in the aforementioned conflicting evidence. To that end, he alleges
that the factfinder improperly evaluated and/or failed to accord proper weight to that
evidence. In addition, Father contends that Child’s “cocktail of medications” had a
definite impact on his wellbeing such that Father was not the source of a serious
mental injury. In support, Father has attached an addendum to his brief depicting
purported side effects to certain medications. Father’s contentions are without merit.
             On remand, the factfinder considered and disregarded other alleged
causes of Child’s serious mental injury. In concluding that there was substantial
evidence that Father’s actions substantially contributed to a serious mental injury to
Child, the Secretary reasoned:

                     First of all, . . . the “conflicting evidence” . . . is
             minimal at best and in many cases does not exist. [Child’s]
             Asperger’s diagnosis had no effect on [his] injury.
             [Child’s] anxiety levels began to lower in March of 2015,
             when he stopped seeing [Father]. [Child] was diagnosed
             with Asperger’s at the end of June, 2015. [Child’s]
             anxiety levels were still low throughout that time period,
             and continued to be low after said diagnosis. (N.T. 55-57)
             There was very limited questioning regarding [Child’s]
             change of schools, and no pertinent analysis on the effect
             of the school change (positive or negative). [Child]
             testified that [Mother] did not tell him what to say, nor did
             she suggest how bruises may have been received. (N.T.
             122-123, 128-129)
                   As stated previously, there are other factors that
             have some effect on [Child’s] mental health. The
             contentious relationship between his parents, until
             resolved, will always be a stressor in [his] life. However,
             what is abundantly clear in the hearing record, and


                                           6
             acknowledged by Commonwealth Court, is that [Child]
             suffered anxiety related to visitation with [Father]. The
             two most important witnesses at hearing, [Child] and the
             psychiatrist are unequivocal that [Father’s] words and
             actions toward [Child] are the main factor regarding his
             mental injury. Even [Father’s] sister testified that
             [Father] spoke in derogatory terms about [Mother], and
             that some of those times were in front of [Child]. (N.T.
             170-171) Additionally, when the stressor (visitation with
             [Father]) was removed from [Child’s] life, [his] mental
             condition improved greatly.
                   Looking at the totality of the hearing record, . . .
             [Father] clearly acted recklessly in degrading [Mother],
             constantly asking questions about what was going on in
             her household, and threatening to take [Child] away from
             her.

(August 16, 2017, Adjudication at 13) (emphasis added).
             Moreover, Father’s assertion regarding the side effects of certain
medications is tantamount to a post-hearing attempt to present extra-record
evidence. A court may not accept appendices attached to a petitioner’s brief that are
dehors the record. Rossi v. Unemployment Comp. Bd. of Review, 675 A.2d 390, 392
(Pa. Cmwlth. 1996).
             By way of further analysis, we conclude that Father is improperly
urging this Court to reweigh the evidence and to accept his version of the facts.
Mindful that the Secretary accepted the testimony of both the psychiatrist and Child
as credible and afforded it substantial evidentiary weight, we turn first to the
evidence pertaining to the psychiatrist. The factfinder noted that she testified to the
totality of Father’s actions in causing mental injury to Child, including: frequently
calling Mother unseemly names despite Child asking Father to stop; making Child
lie to CYS about accidental bruises received while in Mother’s care; and telling
Child that he would hurt Mother. As the Secretary stated regarding the importance


                                          7
of considering the totality of circumstances surrounding the subject child in mental
abuse cases and analyzing what or who has impacted a mental injury: “In most cases
regarding mental abuse, causation does not involve a single event, but a pattern of
behaviors over time that lead to any injury or an exacerbation of an injury.” (August
16, 2017, Adjudication at 11.) In that regard, the psychiatrist consistently opined
over the course of treatment that Child’s relationship with Father was Child’s main
stressor and the source of his anxiety.
             In addition, in response to this Court’s directive in S.W. I, the Secretary
carefully analyzed each segment of the psychiatrist’s report. In so doing, he stated:
“It is important to note that I gave less weight to the admissible portions of this report
than was given to the credible testimony of [Child] and [the psychiatrist].” (August
16, 2017, Adjudication at 8.) In any event, below is a summary of those segments
of the report that the Secretary deemed admissible:

             Paragraph One: Introductory information that but for
             diagnosis information carries no weight;
             Paragraph Two: Admissible statements pertain to Father
             calling Child every night and asking him many questions
             regarding Mother and Father calling Child nicknames;
             Paragraph Three: Admissible in toto in that it pertained to
             the psychiatrist’s direct interactions with Father which she
             testified to without rebuttal;
             Paragraph Four: Admissible statements include the fact
             that Child felt relieved when he did not have to spend
             weekends with Father and that Father told him to spit out
             his medication;
             Paragraph Five: Admissible statements include Father
             making Child call CYS to report Mother’s suicide attempt,
             Child working with Father at BJ’s at three a.m., and Father
             making Child lie to police regarding source of bruises;



                                            8
               Paragraph Six: Admissible statement includes Child
               reporting that he was afraid that Father would hurt Mother
               while Child was at school.

(August 16, 2017, Adjudication at 8.) Also in accordance with our directive on
remand, the Secretary explained why he determined that the rest of the report was
inadmissible.1 (Id. at 9.)
               Finally, as noted, the Secretary accepted as credible and afforded
weight to Child’s testimony that some of Father’s actions bothered him a great deal.
(Id. at 11.) These actions included: degrading Child’s mother to him; calling Mother
unseemly names; asking Child questions about Mother including whom she was
with, what she was feeding him, and who was in the room during phone
conversations; and telling Child that Father was going to take him away from
Mother. (July 30, 2015, Hearing, Notes of Testimony (N.T.) at 102-03, 112-15;
Reproduced Record (R.R.) at 213-14, 223-26.) Regarding the latter, Child testified
that Father would try anything to get him away from Mother, including bribing him
with the promise of a dog and sometimes following them in Father’s car. (Id. at 112;
R.R. at 223.)

    1
      In rejecting specified portions of the report, the factfinder observed that Child’s statements
made during therapy that were not part of his testimony presented a problem with admissibility.
The factfinder reasoned:

               The problem is twofold. First, [the psychiatrist] testified that she
               did not keep record of sessions when she spoke to [Child] alone
               versus speaking to [him] and [Mother] together in therapy. (N.T.
               76) Without this delineation, it is impossible to determine whether
               the information provided was done so by [Child] or [Mother]. As
               neither party called [Mother] as a witness, this information is
               inadmissible hearsay. Second, without similar direct testimony
               from [Child], these statements are double hearsay. As such, said
               statements are inadmissible.

(August 16, 2017, Adjudication at 8) (footnote omitted).


                                                 9
             Moreover, Child also testified regarding a panic attack brought on by
the idea of seeing Father at a school function and feeling unsafe in Father’s home.
(Id. at 97-99; R.R. at 208-10.) Specifically regarding school, Child testified as
follows:
             Well, I did feel anxious, like, scared a bunch of times,
             because – well, first, the time I can remember was because
             I didn’t want to go to my school concert because I was
             afraid he would be there. . . . I don’t like whenever I’m
             around him. I think it was because of the fist mark. And
             so I was, like – I was coughing a lot and really scared. I
             couldn’t even focus on math.

(Id. at 99; R.R. at 210.)
             It is well settled that the factfinder may base his determination that an
indicated report is accurate on the consistent testimony of a child abuse victim. G.V.
v. Dep’t of Pub. Welfare, 52 A.3d 434, 439 (Pa. Cmwlth. 2012); D.T., 873 A.2d at
854. Here, Child’s testimony, combined with the other credible evidence of record,
constituted substantial evidence that Father substantially contributed to Child’s
serious mental injury and that such injury rendered Child severely anxious and
interfered with his ability to accomplish age-appropriate developmental or social
tasks under the CPSL.
             Accordingly, we affirm.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge




                                         10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.W.,                                 :
                 Petitioner           :
                                      :
           v.                         :   No. 1422 C.D. 2017
                                      :
Department of Human Services,         :
                 Respondent           :   CASE SEALED


                                 ORDER


           AND NOW, this 19th day of July, 2018, the final order of the Secretary
of Human Services, of the Department of Human Services is hereby AFFIRMED.



                                    _____________________________________
                                    BONNIE BRIGANCE LEADBETTER,
                                    Senior Judge
