             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


T. H.,                                       :
                                Petitioner   :   CASES SEALED
                                             :
                         v.                  :   No. 1181 C.D. 2015
                                             :
Department of Human Services,                :
                      Respondent             :
                                             :
J. R.,                                       :
                                Petitioner   :
                                             :
                  v.                         :   No. 1205 C.D. 2015
                                             :   Submitted: February 12, 2016
Department of Human Services,                :
                      Respondent             :



BEFORE:           HONORABLE RENÉE COHN JUBELIRER, Judge
                  HONORABLE ANNE E. COVEY, Judge
                  HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION BY
JUDGE COHN JUBELIRER                                    FILED: August 22, 2016


         Before this Court are the separate petitions for review of T.H. (Mother) and
J.R. (Father) from the Order of the Department of Human Services (Department),
Bureau of Hearings and Appeals (Bureau), adopting an Administrative Law
Judge’s (ALJ) Recommendation denying Mother’s and Father’s separate appeals
from indicated reports identifying them as perpetrators of child abuse on the
ChildLine Registry (Registry) under the Child Protective Services Law (CPSL).1

         1
             23 Pa. C.S. §§ 6301-6386.
On appeal, Mother argues the Bureau erred in finding that the County Children and
Youth Services (CYS) met its burden of proving that she was a perpetrator of child
abuse based on the presumption set forth in Section 6381(d) of the CPSL, 23 Pa.
C.S. § 6381(d), and, even if it had, she rebutted that presumption. Father asserts
that his appeal should have been granted because the record lacked clear and
convincing evidence establishing that he was the perpetrator of child abuse and
that the presumption relied upon should not have applied to him because he had
only limited access to Child. Because the fact finder did not resolve evidentiary
conflicts regarding Mother’s and Father’s rebuttal evidence and whether that
evidence did rebut the Section 6381(d) presumption against Mother and/or Father,
we vacate and remand for a new decision.

      I.     Background
      S.R. (Child) was born on September 16, 2012, and was approximately one
month to four months old at the time of the abuse. Mother and Father are Child’s
biological parents but do not live together. It is undisputed that between Child’s
birth and January 2013, Child was the victim of multiple instances of non-
accidental physical abuse resulting in:

      bruising on the chest area on December 23, 2012, six (6) broken ribs
      on the subject child’s right side between ribs three (3) and eight (8),
      several bilateral subdural hematomas of varying ages, retinal
      hemorrhaging, all of which are consistent with Shaken Baby
      Syndrome.




                                          2
(ALJ Adjudication, Findings of Fact (FOF) ¶ 9.) “[C]hild suffered severe pain as a
result of the injuries.” (Id. ¶ 10.) On January 21, 2013, CYS received a referral
indicating that Child was being physically abused.2
       Following an investigation, during which CYS reviewed Child’s medical
records and neither Mother nor Father offered an explanation for how Child’s
injuries occurred beyond blaming each other, CYS filed indicated reports
identifying Mother and Father as perpetrators of child abuse.3 (Id. ¶ 13.)                      CYS

       2
           CYS has intervened in these petitions for review.
       3
           At the time the abuse occurred here, the CPSL defined “child abuse,” in relevant part,
as:

       (b) Child abuse.
               (1) The term “child abuse” shall mean any of the following:
                      (i) Any recent act or failure to act by a perpetrator which causes
                      nonaccidental serious physical injury to a child under 18 years of
                      age.
                                                 ***
                      (iii) Any recent act, failure to act or series of such acts or failures
                      to act by a perpetrator which creates an imminent risk of serious
                      physical injury to or sexual abuse or sexual exploitation of a child
                      under 18 years of age.
                      (iv) Serious physical neglect by a perpetrator constituting
                      prolonged or repeated lack of supervision or the failure to provide
                      essentials of life, including adequate medical care, which
                      endangers a child’s life or development or impairs the child’s
                      functioning.

23 Pa. C.S. § 6303(b). “Serious physical injury” was defined at the time of Child’s injury as
“[a]n injury that: (1) causes a child severe pain; or (2) significantly impairs a child’s physical
functioning, either temporarily or permanently.” 23 Pa. C.S. § 6303(a). These definitions,
among others, were amended, effective December 31, 2014, to significantly broaden the term
“child abuse.” Section 6303(b) now provides, in relevant part:

       Child abuse.—The term “child abuse” shall mean intentionally, knowingly or
       recklessly doing any of the following:
       (1) Causing bodily injury to a child through any recent act or failure to act.
                                                                                   (Continued…)
                                                 3
also filed a dependency petition alleging that Child had been a victim of child
abuse, and after several dependency hearings were held, on April 16, 2013, the
Court of Common Pleas (common pleas) adjudicated Child dependent and a victim
of child abuse.       Common pleas did not determine that either parent was the
perpetrator. Mother’s motion for expedited permanency review was granted and,
on June 11, 2013, common pleas ordered that the Child be returned to Mother’s
home with certain conditions. Upon appeal by CYS, the Superior Court affirmed
common pleas’ order returning Child to Mother’s physical custody.4
       After the Superior Court decision, Mother and Father timely filed appeals
seeking expunction of their indicated reports from the Registry. Neither Mother
nor Father testified at the hearing before the ALJ.                 However, they submitted
transcripts and exhibits from the dependency action in common pleas.                            Also
entered into the record were common pleas’ opinion filed pursuant to Rule 1925(a)
of the Pennsylvania Rules of Appellate Practice, Pa. R.A.P. 1925(a),5 and the


                                                ***
       (5) Creating a reasonable likelihood of bodily injury to a child through any recent
       act or failure to act.
                                                ***
       (7) Causing serious physical neglect of a child.

23 Pa. C.S. § 6303(b.1). “Bodily injury” is now defined as “[i]mpairment of physical condition
or substantial pain.” 23 Pa. C.S. § 6303(a).
        4
          The Superior Court’s opinion can be found at Mother’s R.R. at 418a-42a.
        5
          Rule 1925(a) provides, in pertinent part,

       [e]xcept as otherwise prescribed by this rule, upon receipt of the notice of appeal,
       the judge who entered the order giving rise to the notice of appeal, if the reasons
       for the order do not already appear of record, shall forthwith file of record at least
       a brief opinion of the reasons for the order . . . .

Pa. R.A.P. 1925(a).

                                                 4
Superior Court’s opinion affirming common pleas’ order returning physical
custody of Child to Mother with visitation rights for Father.
      CYS acknowledged at the hearing “that it could not positively identify
which [parent] had committed physical abuse upon . . . [C]hild.” (FOF ¶ 15.)
However, it argued that the record clearly shows that physical child abuse
occurred, both parents had custody of Child during the time period when the child
abuse occurred, and it established a prima facie case of child abuse against both
Mother and Father. Thus, applying the presumption set forth in Section 6381(d) of
the CPSL, 23 Pa. C.S. § 6381(d), that a parent or person responsible for the welfare
of the child is the perpetrator of any alleged child abuse, CYS asserted that both
Mother and Father were perpetrators unless they rebutted the presumption. Mother
and Father did not dispute that Child had been abused, but denied having any
personal involvement in the physical abuse of Child. Instead, both claimed that the
other parent was responsible for the injuries. Additionally, Mother and Father
argued that CYS cannot maintain indicated reports against both of them because
CYS cannot definitively prove which parent abused Child.
      The ALJ reviewed the evidence and found that Mother and Father were
Child’s sole caretakers during the relevant time period. (FOF ¶ 5.) Mother had
primary custody of Child, and Father had visitation and custodial rights to visit
Child every other weekend. (Id. ¶¶ 6-7.) When Father would visit Child, Mother
would go to Father’s house, pick him up and bring him back to her house for the
night, and then would return Father to his home on Saturday or Sunday. (Id. ¶ 8.)
The ALJ then considered Section 6381(d) of the CPSL, which provides:

      (d) 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

                                          5
      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). The ALJ noted that in In re L.Z., 111 A.3d 1164 (Pa. 2015),
the Supreme Court had recently rejected this Court’s interpretation of Section
6381(d) that the presumption could be applied only where there was one caretaker,
as set forth in J.W. v. Department of Public Welfare, 9 A.3d 270, 273 (Pa. Cmwlth.
2010). Citing to Babcock & Wilcox, Co. v. Workmen’s Compensation Appeal
Board, 437 A.2d 778, 780 (Pa. Cmwlth. 1981), the ALJ concluded that this change
applied to the pending appeals of Mother and Father and that he could use the L.Z.
interpretation of Section 6381(d) to determine whether the presumption could be
applied to both Mother and Father notwithstanding CYS’s inability to prove which
of the two actually abused Child. (ALJ Adjudication at 7.)
      The ALJ determined that CYS established a prima facie case of child abuse,
citing the clear evidence of child abuse and the fact that Mother and Father “were
the two people retaining control and custody of the child during the time frame in
which the abuse occurred.”       (Id. at 10.)     Therefore, the Section 6381(d)
presumption applied to Mother and Father and the burden then shifted to them to
rebut the presumption. L.Z., 111 A.3d at 1185. Because Mother and Father did
not present evidence that rebutted the presumption, instead relying on pre-L.Z.
cases holding that the presumption cannot be applied where there are multiple
caregivers and on documentary evidence in which each asserted that the other was
responsible for Child’s injuries, the ALJ denied Mother’s and Father’s
administrative appeals. (ALJ Adjudication at 10-11.) After review, the Bureau




                                         6
adopted the Recommendation in its entirety.               Mother and Father separately
petitioned this Court for review.6

       II.    Arguments on Appeal
              A. Mother’s and Father’s Arguments
       Mother argues that the Bureau erred because CYS has not presented
substantial evidence identifying her as the perpetrator in the physical abuse of
Child where that same evidence was rejected by common pleas and the Superior
Court in the dependency action as not even establishing a prima facie case against
Mother. Mother points out that common pleas noted that “‘no court has found
Mother to have perpetrated abuse on the minor child in any way.’” (Mother’s Br.
at 21 (quoting common pleas’ 1925(a) Op. at 8, Mother’s R.R. at 417a).) Mother
argues that, even applying the presumption from Section 6381(d) as interpreted in
L.Z., CYS could not meet the heightened substantial evidence burden of proof in
the present matter on the evidence rejected by common pleas and the Superior
Court. Mother maintains that this is not a situation where she “failed to act” on
Child’s behalf because she took Child to the physician on numerous occasions and
it was unknown that Child had any internal injuries until after 11 physician’s
visits.7
       Mother also contends that the Bureau erred in denying her appeal based on
its conclusion that she did not present evidence to rebut the presumption. Mother
asserts that she submitted testimony and exhibits from the dependency proceedings

       6
         “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. Department of Public Welfare, 4 A.3d 779, 782 n.7
(Pa. Cmwlth. 2010).
       7
         Mother’s third issue in her brief essentially reiterates her arguments on this issue.

                                              7
that rebuts the presumption that she was a perpetrator, namely that she was the one
who initially reported Child’s injuries to CYS and she sought treatment for Child
once she became aware of any injuries.
       Father also argues, citing evidence from Child’s dependency hearing and
common pleas’ determination that there was insufficient evidence to determine
which parent abused Child, that maintaining an indicated report naming him as a
perpetrator is erroneous. Father asserts that L.Z. is distinguishable because a
different level of proof was required in the dependency hearing at issue in L.Z.,
than required in the present matter.8 Father further maintains that he had limited
access to Child and what access he had was under Mother’s supervision. In
contrast, Father argues, Child was alone with Mother the majority of the time, was
with the child of one of Mother’s paramours, or with one of Child’s half-siblings.
Father claims that this is not an L.Z. situation where the alleged perpetrators had
equal access to or daily interactions with the child because he had little opportunity
to be alone to inflict injuries on Child and, therefore, it does not make sense to
apply the presumption and L.Z. to him.




       8
          Father also asserts that the ALJ erred in relying on evidence presented at Child’s shelter
care hearing, where hearsay testimony is permissible and the rules of evidence are relaxed.
However, our review of the record reveals that the only document offered at the ALJ hearing
related to the shelter care proceedings was common pleas’ January 28, 2013, addendum order,
which made “certain findings of fact relevant to broken ribs, bruising,” indicated that Child was
the victim of Shaken Baby Syndrome, and stated that the identity of the abusers had not been
determined yet. (Mother’s R.R. at 3a-5a, 452a.) The ALJ accepted the document for the
purpose of “going towards the scope of the fact that there was physical child abuse in this case,
not revealing the identities” of the perpetrators. (Mother’s R.R. at 457a (emphasis added).)
Thus, we disagree that the ALJ relied on any evidence from the shelter care hearing to make
findings regarding the identity of the perpetrators in the Adjudication.

                                                 8
              B. The Department’s and CYS’s Arguments
        The Department argues that the Bureau did not err in concluding that CYS
established a prima facie case against Mother and Father so as to trigger the
presumption because, following L.Z.’s interpretation of Section 6381(d), there is
no longer a requirement that CYS prove that the individual was physically present
at the time the actual physical abuse occurred. L.Z., 111 A.3d at 1183-85. The
Department asserts that the Supreme Court’s holding in L.Z. is particularly
relevant here where Child is too young to describe the abuse and where the two
parties found to be Child’s primary caretakers are pointing the finger at each other.
CYS agrees with the Department that, as in L.Z., this is precisely the type of
situation to which the presumption set forth in Section 6381(d) was meant to apply
because Child is too young to identify the abuser and the evidence is inconclusive
as to which of Child’s primary caretakers committed the abuse. L.Z., 111 A.3d at
1185.    According to CYS, the Legislature recognized the difficulty in such
situations and enacted Section 6381(d) to reduce a child services agency’s burden
of proof by creating the presumption in order to “‘avoid this evidentiary
conundrum and protect children from future abuse.’” (CYS’s Br. at 7 (quoting
L.Z., 111 A.3d at 1185).) CYS maintains that it presented a prima facie case as
permitted under Section 6381(d), thereby creating the presumption that Mother and
Father were the perpetrators of Child’s abuse and shifting the burden to Mother
and Father to prove otherwise.
        The Department argues that evidence offered by Mother and Father was
insufficient to rebut the presumption. With regard to Mother’s assertions, the
Department reiterates that the fact that common pleas and the Superior Court did
not find that there was prima facie evidence that Mother abused Child or was


                                         9
aware of Child’s abuse was based on those courts’ understanding of Section
6381(d) before L.Z. Further, the Department argues that the evidence relied on by
common pleas and the Superior Court, while relevant for deciding whether to
return Child to Mother’s custody, is not relevant to rebutting the presumption,
which, pursuant to L.Z., would require Mother to establish that Child was not in
her care or that she had no reason to question leaving Child with Father. L.Z., 111
A.3d at 1186. Finally, the Department contends that Father’s assertions that he
was not alone with Child and his visits were under the constant supervision of
Mother is not supported by the record, in which he admits that he was alone with
Child at various points during his visits. Because Child was in the care of both
Mother and Father, and Father had unsupervised access to Child, the Department
argues that Father’s bases for distinguishing L.Z. are insufficient.

      III.   Discussion
             A. Whether the presumption established by Section 6381(d), as
                interpreted by the Supreme Court in L.Z., applies here.
      An indicated report is issued by a county agency or the Department if, after
an investigation, “‘substantial evidence’ of the alleged abuse exists based on
available medical evidence, the child protective services investigation, or an
admission of the facts of abuse by the perpetrator.” G.V. v. Dep’t of Pub. Welfare,
91 A.3d 667, 671 (Pa. 2014) (citing Section 6303 of the CPSL, 23 Pa. C.S. §
6303). The 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 Pa. C.S. § 6303, and it is the equivalent of the
preponderance of the evidence standard, S.T. v. Department of Public Welfare, 681
A.2d 853, 857 n.4 (Pa. Cmwlth. 1996). CYS bears the burden of showing that the


                                          10
indicated report of abuse is accurate and is being maintained in a manner consistent
with the CPSL. G.V., 91 A.3d at 671.
      Mother and Father do not dispute that Child was the victim of physical
abuse; they initially question whether indicated reports can be maintained against
both of them, as Child’s parents and primary caregivers, where CYS cannot
definitively prove which parent abused Child. CYS and the Department assert that
the answer is “yes” through the use of the presumption established in Section
6381(d) if that presumption is not rebutted. Section 6381(d) states:

      (d) Prima facie evidence of abuse. - - Evidence that a child has
      suffered 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) (second emphasis added).
      As referenced by the parties’ arguments, the Supreme Court recently
addressed the interpretation of Section 6381(d). L.Z. involved a twenty-one month
old child who lived with and was cared for by his mother and maternal aunt, the
non-accidental physical injuries the child sustained while in their joint care,
whether the child should be found dependent, and whether the child’s caretakers
should be identified as the perpetrators of the abuse. Common pleas found that the
child was dependent and the victim of child abuse, the mother was a perpetrator by
omission of that abuse as she was the child’s primary caretaker, and the child
should be removed from the mother’s home. L.Z., 111 A.3d at 1168. On appeal to
the Superior Court, a divided en banc majority affirmed common pleas’ decision in




                                        11
part and vacated in part,9 and, focusing on the phrase “at the time of abuse” in
Section 6381(d), 23 Pa. C.S. § 6381(d), and several multiple caregiver cases from
both that Court and this Court, stated that “Section 6381(d) does not . . . permit the
court to designate a parent a perpetrator of abuse where the record fails to establish
that the child was in the parent’s care at the time of the injury.” L.Z., 111 A.3d at
1170 (internal quotation omitted).               The dissent would have held that
notwithstanding the fact that the mother may not have been present when the actual
injuries occurred, she could be listed as a perpetrator of abuse based on her “failure
to properly care for and protect [the] child” because the mother and the aunt
primarily were responsible for the child and neither testified as to who was
responsible for the child when the injuries occurred. Id. at 1171 (internal quotation
omitted).
       On appeal, the Supreme Court concluded that the intermediate appellate
courts had erred in their interpretation of Section 6381(d), and stated that:

       child 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

       9
         A three-judge panel of the Superior Court initially affirmed the finding of dependency
but vacated the finding that the mother was a perpetrator of abuse. The child’s Guardian ad litem
petitioned for reargument en banc, which was granted.

                                               12
      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 the interest of] J.R.W., 631 A.2d [1019,] 1023 [Pa. Super.
      1993]. We 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.

      . . . [T]he Legislature balanced the presumption of Section 6381(d) by
      making it rebuttable as it merely establishes “prima facie evidence”
      that the parent perpetrated the abuse. 23 Pa.[]C.S. § 6381(d). As
      commonly understood, prima facie evidence is “[s]uch evidence as, in
      the judgment of the law, is sufficient to establish a given fact, or the
      group or chain of facts constituting the party’s claim or defense, and
      which if not rebutted or contradicted, will remain sufficient.” Black’s
      Law Dictionary 825 (6th ed. abridged 1991). Accordingly, evidence
      that a child suffered injury that would not ordinarily be sustained but
      for the acts or omissions of the parent or responsible person is
      sufficient to establish that the parent or responsible person perpetrated
      that abuse unless the parent or responsible person rebuts the
      presumption. The parent or responsible person 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.[] The evaluation of the validity
      of the presumption would then rest with the trial court evaluating the
      credibility of the prima facie evidence presented by the CYS agency
      and the rebuttal of the parent or responsible person.

Id. at 1185 (footnote omitted).
      Applying these principles to the facts in L.Z., the Supreme Court affirmed
common pleas’ determination that the mother was the perpetrator, using Section
6381(d)’s presumption, because: the child’s injuries were not accidental and were
“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”; and the child was in the care of only the mother and the aunt. L.Z., 111

                                          13
A.3d at 1186 (internal quotation omitted). “Ergo, either [a]unt or [m]other or both
inflicted the abuse [c]hild suffered or failed to protect [child] from the other’s
abuse.” Id. While the mother had the opportunity to rebut the presumption, the
Court held that she failed to do so because she did not “present[] evidence or
testimony from her[self], [a]unt, or her boyfriend establishing that [the c]hild was
not in her care when the injuries were suffered and that she had no reason to
question her decision to leave [the c]hild in [the a]unt’s care.” Id.
      We must apply the reasoning of L.Z. to the instant case. It is undisputed that
Child suffered physical injuries and, because Child was an infant when the abuse
occurred, incapable of describing that abuse. Mother’s and Father’s arguments are
premised, essentially, on their assertions that they were not personally present at
the time Child sustained the injuries, the other parent was present and responsible
for Child, and, therefore, that parent was the perpetrator of the abuse. Moreover,
they both argue that the Bureau could not deny their appeals based on evidence
that was rejected by common pleas and the Superior Court as not satisfying the
prima facie evidentiary standard. Therefore, they assert, the evidence presented
could not meet the heightened “substantial evidence” requirement of the CPSL.
      However, a parent does not have to be actually responsible for the child or
physically present with the child at the time of the abuse for the presumption to
apply to the child’s parent. L.Z., 111 A.3d at 1185-86. “[P]arents are always
responsible for their children, absent extenuating circumstances,” and, while
establishing their lack of physical presence at the time of the abuse could be a way
of rebutting the presumption, whether Mother or Father or both were physically
present when Child was abused is not determinative of whether the presumption is



                                          14
triggered in the first instance.10 Id. at 1184-85. Both Mother and Father can be
presumed to be the perpetrators of Child’s abuse until one or both rebut the
presumption in accordance with L.Z. and, therefore, there was no error in the
Bureau’s applying the presumption to both Mother and Father.
       The decisions of common pleas and the Superior Court in the dependency
proceedings do not require a different result. We note that common pleas initially
declined to make any finding as to whether either parent was the perpetrator
because it did not “have sufficient information to make that finding at this point”
and it did “not believe that the specific identity of the perpetrator or perpetrators
ha[d] to be made in a [d]ependency proceeding[].” (Mother’s R.R. at 406a.)
Common pleas further indicated that “[t]he issue of the identification or findings
that may be made with regard to the perpetrator or perpetrators can be addressed in
further proceedings if appropriate or other proceedings beyond the [d]ependency
proceeding. So I am not going to make that finding in this proceeding . . . ” (Id.)
Subsequently, in its 1925(a) opinion related to the order returning Child to
Mother’s physical custody, common pleas stated that CYS “ha[d] not presented
credible evidence that Mother was the source” of the abuse and that it was
“satisfied, at this time, that there is insufficient evidence to find that Mother
committed the physical abuse on [Child] or that she was aware that such abuse
was occurring.” (Mother’s R.R. at 413a-14a (emphasis added).) Common pleas
also stated, in justifying Child’s return:

       [t]o this date, no court has found Mother to have perpetrated abuse on
       the minor child in any way. The Agency’s determination that Mother,
       in addition to Father, is an indicated child abuser is, at the present
       10
         In doing so, it appears that the Supreme Court in L.Z. has established that the
presumption creates strict liability for parents unless and until the presumption is rebutted.

                                             15
       time, a determination by the Agency alone. The Court has not made
       that specific determination, nor has it been found that Mother was
       culpable for the injuries sustained by the child.

(Mother’s R.R. at 417a.) However, it is unclear from the dependency hearing
transcript or common pleas’ 1925(a) opinion whether common pleas applied or
considered the presumption set forth in Section 6381(d) in making these
determinations. Even if it had done so, the Supreme Court clarified and broadened
the interpretation of that presumption in L.Z. after common pleas issued its 1925(a)
opinion, and it was this broader interpretation that the ALJ used in the
Adjudication here.11, 12
       Finally, we address the arguments pertaining to the differing burdens of
proof associated with dependency proceedings under the Juvenile Act and
expungement proceedings under the CPSL.                   Father is correct that L.Z., a
dependency proceeding, involved a different burden of proof (clear and convincing
evidence), than the proceeding here, which requires CYS to meet its burden by



       11
           We note that common pleas had additional evidence to consider when making these
subsequent determinations, i.e., a permanency review hearing held on June 5, 2013, that was not
provided to the ALJ in this matter. Although the hearing transcripts from the shelter care and
dependency proceedings were entered as evidence at the ALJ’s hearing, the transcript for the
permanency review hearing was not. (Mother’s R.R. at 445a.)
        12
           In affirming common pleas’ order returning Child to Mother’s physical custody, the
Superior Court concluded that CYS, in its appeal of that order, was arguing that returning Child
to Mother was erroneous where common pleas should have found, based on Section 6381(d),
that Mother and Father were the perpetrators of the abuse. (Mother’s R.R. at 434a.) The
Superior Court held that common pleas “had made a determination as to the credibility and
weight of the evidence with regard to Mother,” that CYS was attempting “to impeach [common
pleas’] finding of fact as to Mother,” and that it would “not reweigh the evidence.” (Mother’s
R.R. at 439a.) Again, as with common pleas’ 1925(a) opinion, the Superior Court was using a
pre-L.Z. interpretation of the presumption, which may have been narrower than the Supreme
Court’s subsequent interpretation set forth in L.Z.

                                              16
presenting substantial evidence, i.e., a preponderance of the evidence. However, as
our Supreme Court explained in L.Z., in enacting Section 6381(d),

      [t]he Legislature . . . carved out a very limited exception to these more
      stringent evidentiary standards, allowing for the possibility of
      identifying the perpetrator of abuse 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.” 23
      Pa.[]C.S. §[]6381(d).

L.Z., 111 A.3d at 1184-85 (first emphasis added). Accordingly, the standard set
forth in Section 6381(d) for a prima facie case based on the presumption which we
apply here is in accordance with L.Z.
      In sum, CYS presented “evidence that . . . [C]hild suffered injur[ies] that
would not ordinarily be sustained but for the acts or omissions of [Child’s]
parent[s]” and, therefore, “establish[ed] that [Child’s] parent[s] . . . perpetrated that
abuse unless the parent . . . rebuts the presumption.” L.Z., 111 A.3d at 1185. This
satisfies CYS’s burden of proof through the use of the presumption. We now turn
to whether Mother and Father presented evidence to rebut the presumption that
they were the perpetrators of Child’s abuse.

                    a. Whether Mother and/or Father rebutted the presumption
                       that they were the perpetrators of Child’s serious physical
                       abuse.
      Once established, the presumption set forth in Section 6381(d) may be
rebutted by presenting evidence that the child was not in the parent’s care when the
injuries were suffered or that the parent had no reason to question the parent’s
decision to leave the child in the other person’s care. Id. at 1185-86.
      Mother argues that she rebutted the presumption because she was the one
who initially reported the injuries to CYS, she repeatedly questioned what was
                                           17
happening with Child, and she sought treatment for Child. She further argues that
common pleas returned Child to Mother’s care effective July 1, 2013, that Child
has flourished since that date, and CYS has closed its case and is no longer
supervising Mother or Child.13 Mother’s contention and testimony throughout the

       13
           Whether or not these arguments rebut the presumption, we note that they could be
evidence under the new provisions of the CPSL that permit for expungement of an indicated
record for good cause shown as set forth in Section 6341(a) of the CPSL. That section provides,
in pertinent part:

       (a) General rule.--Notwithstanding section 6338.1 (relating to expunction of
       information of perpetrator who was under 18 years of age when child abuse was
       committed):

            (1) At any time, the secretary may amend or expunge any record in the
            Statewide database under this chapter upon good cause shown and notice to
            the appropriate subjects of the report. The request shall be in writing in a
            manner prescribed by the department. For purposes of this paragraph, good
            cause shall include, but is not limited to, the following:
                ....
                (ii) A determination that the perpetrator in an indicated report of abuse no
                longer represents a risk of child abuse and that no significant public
                purpose would be served by the continued listing of the person as a
                perpetrator in the Statewide database.

            (2) Any person named as a perpetrator, and any school employee named, in an
            indicated report of child abuse may, within 90 days of being notified of the
            status of the report, request an administrative review by, or appeal and request
            a hearing before, the secretary to amend or expunge an indicated report on the
            grounds that it is inaccurate or it is being maintained in a manner inconsistent
            with this chapter. The request shall be in writing in a manner prescribed by the
            department.

23 Pa. C.S. § 6341(a) (emphasis added). Thus, Section 6341(a) sets forth two ways for
challenging a record on the Registry. The way utilized by Mother and Father here, i.e., seeking
administrative review or appealing from the indicated report placing them on the Registry. 23
Pa. C.S. § 6341(a)(2). Alternatively, an individual can show good cause for the amendment or
expungement of the record at any time based, inter alia, upon a determination that the individual
named in the indicated report “no longer represents a risk of child abuse and that no significant
                                                                                  (Continued…)
                                                18
dependency hearings were that Father abused Child while he was alone with Child
and, therefore, she was not responsible for the abuse.                  Father argues that he
rebutted the presumption because he was not alone with Child, but was always
supervised by Mother during his visits, and that Mother was alone with Child the
majority of the time.        This testimony was an attempt by Mother and Father,
respectively, to demonstrate, as required by L.Z., that “Child was not in [his or] her
care when the injuries were suffered.” Id. at 1186.
       We observe that one of the main reasons the Supreme Court held in L.Z. that
the mother did not rebut the presumption was because she did not testify. L.Z., 111
A.3d at 1167, 1186.           Here, Mother’s and Father’s arguments rely on their
testimony at the dependency hearings which set forth their respective versions of
the events that resulted in Child’s abuse, and these transcripts, along with other
evidence, were presented as evidence at the ALJ hearing. Mother and Father
acknowledged that they each spent time alone with Child but they also testified
that the other parent also was alone with Child at various times during the time

public purpose would be served by the continued listing of the person” on the Registry. 23 Pa.
C.S. § 6341(a)(1)(ii). Notably, although the General Assembly provides examples of good cause
in the CPSL, good cause is not limited to those examples. 23 Pa. C.S. § 6341(a)(1) (stating
“good cause shall include, but is not limited to, the following . . . .”) (emphasis added). Mother’s
arguments that common pleas returned Child to Mother’s care effective July 1, 2013, that Child
has flourished since that date, and that CYS has closed its case and is no longer supervising
Mother or Child could demonstrate that she “no longer represents a risk of child abuse and that
no significant public purpose would be served by the continued listing of the person” on the
Registry. 23 Pa. C.S. § 6341(a)(1)(ii). We note that, in discussing the Superior Court’s decision
in J.R.W., our Supreme Court in L.Z. observed that the prima facie standard was meant to
“‘provide[] maximum protection for the child victim or other children in the community who
might be subject to similar abuse if the alleged abuser was not identified and permitted free
access to the victim or other vulnerable children’” thereby “balanc[ing] the needs of society and
children for protection against the abuser’s possible patterned behavior and his/her right to
freedom unless found guilty beyond a reasonable doubt.’” L.Z., 111 A.3d at 1178 (quoting
J.R.W., 631 A.2d at 1024).

                                                19
periods in question. For example, Mother agreed that Child slept in her room and
that she alone cared for Child in the middle of the night during Father’s visits, and
Father acknowledged that he was alone with Child when Mother went to the
bathroom, made bottles, or took her dog for a walk. (Mother’s R.R. at 329a-30a,
344a-45a, 349a, 393a-94a, 398a-99a.) Thus, they each contend that the other
abused Child while alone with Child and their own indicated report should be
expunged. Accordingly, there is conflicting evidence regarding which parent was
caring for Child when Child was abused.
       However, the ALJ did not resolve these conflicts to determine whether Child
was in Mother’s care or Father’s care “when the injuries were suffered” or to
determine whether “the [other] parent had no reason to question th[at] parent’s
decision to leave the child in the other [parent’s] care.”14 L.Z., 111 A.3d at 1185-
86.   Rather, the ALJ concluded that Mother and Father did not rebut the
presumption because they “have each asserted that the other party must be
responsible” and provide “assurance[s] that each of them did not personally
commit the physical abuse.” (ALJ Adjudication at 10.) But the Supreme Court
indicated that an individual could rebut the presumption “potentially by testifying
that they gave responsibility for the child to another person about whom they had
no reason to fear.” Id. at 1185. In a multiple caregiver situation, when the fact
finder is confronted with multiple individuals “testifying that they gave
responsibility for the child to another person about whom they had no reason to
fear,” id., the fact finder will be called upon to weigh the evidence and render a

       14
         “In expungement proceedings, the Bureau is the ultimate fact finder with authority to
make credibility determinations.” F.R., 4 A.3d at 781. Here, the Bureau adopted the ALJ’s
Adjudication without making its own findings of fact or determinations of evidentiary weight.
(Bureau Order.)

                                             20
credibility determination, as would be done in any other situation involving a
conflict of evidence.
      “The evaluation of the validity of the presumption . . . rest[s] 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. We believe that
this is particularly important where the presumption is being utilized against
multiple individuals and those individuals have attempted to individually rebut the
presumption.    CYS was able to meet its initial burden of proof using the
presumption set forth in Section 6381(d) thereby shifting the burden to Mother and
Father to provide rebuttal evidence, which they did. In light of the conflicting
rebuttal evidence presented by Mother and Father, the Bureau had to determine
whether that evidence offered by Mother and Father rebutted the presumption.
Because these issues were not resolved by the fact finder, it is necessary to remand
this matter for a new determination. Bucks County Children and Youth Services
Agency v. Department of Public Welfare, 616 A.2d 170, 174 (Pa. Cmwlth. 1992).
      Accordingly, we vacate the Bureau’s Order, and we remand this matter for a
new decision that will include credibility determinations and findings of fact.




                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge




                                         21
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


T. H.,                                     :
                            Petitioner     :   CASES SEALED
                                           :
                      v.                   :   No. 1181 C.D. 2015
                                           :
Department of Human Services,              :
                      Respondent           :
                                           :
J. R.,                                     :
                            Petitioner     :
                                           :
                      v.                   :   No. 1205 C.D. 2015
                                           :
Department of Human Services,              :
                      Respondent           :



                                         ORDER


         NOW, August 22, 2016, the Order of the Department of Human Services, in
the above-captioned matter, is hereby VACATED, and this matter is
REMANDED for a new decision in accordance with the foregoing opinion.

         Jurisdiction relinquished.


                                           ________________________________
                                           RENÉE COHN JUBELIRER, Judge
