                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.K.,                                            :    SEALED CASE
                       Petitioner                :
                                                 :
                       v.                        :
                                                 :
Department of Human Services,                    :    No. 685 C.D. 2018
                 Respondent                      :    Argued: February 11, 2019


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge (P.)
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION BY
JUDGE COVEY                                           FILED: March 27, 2019

               S.K. petitions this Court for review of the Department of Human
Services (DHS) Bureau of Hearings and Appeals’ (BHA) April 20, 2018 order
denying S.K.’s request to expunge his indicated report1 of child abuse from the
ChildLine & Abuse Registry (ChildLine Registry).2 Essentially, S.K. presents two
issues for this Court’s review: (1) whether the BHA erred by concluding that S.K.’s
actions were reckless and, thus, constituted child abuse; and (2) whether the BHA


        1
          Section 6303(a) of the Child Protective Services Law (Law) defines an “indicated report”
as a report issued by DHS if it “determines that substantial evidence of the alleged abuse by a
perpetrator exists based on any of the following: (i) [a]vailable medical evidence[;] (ii) [t]he child
protective service investigation[; or] (iii) [a]n admission of the acts of abuse by the perpetrator.” 23
Pa.C.S. § 6303(a); see also Section 3490.4 of DHS’ Regulations, 55 Pa. Code § 3490.4.
        2
          Section 3490.4 of the DHS Regulations defines “ChildLine” as
               [a]n organizational unit of [DHS] which operates a Statewide toll-free
               system for receiving reports of suspected child abuse established
               under [S]ection 6332 of the [Law] (relating to establishment of
               Statewide toll-free telephone number), refers the reports for
               investigation and maintains the reports in the appropriate file. . . .
55 Pa. Code § 3490.4. “The ChildLine Registry is maintained in accordance with the [Law.]” In
re: S.H., 96 A.3d 448, 450 n.2 (Pa. Cmwlth. 2014).
erred by concluding that S.K. did not use reasonable force.3                 Upon review, we
reverse.
              S.K. was a staff member at a Pennsylvania residential facility (Facility)
for children who have been adjudicated dependent or delinquent, or have mental
health issues. On September 16, 2017, DHS’ Office of Children, Youth and Families
(OCYF) received a report that, on September 15, 2017, S.K. caused bodily injury to a
minor (Minor) who resided at the Facility. See Reproduced Record Volume I (R.R. I)
at 1-2. OCYF conducted an investigation, whereby it determined, in pertinent part:

              [S.K.] is [] residential staff who had duties meeting the
              definition of a child care worker. [Minor] and [S.K.] were
              interviewed. Medical records and video were reviewed.
              The video shows that [Minor] was grabbed around [his]
              waist, lifted off of the floor, rotated in the air, and put on
              ground with force causing [Minor] to land on [his]
              shoulders, neck and back. The force was enough to cause
              [Minor’s] legs/feet to approach [his] head when [Minor]
              landed on [his] shoulders/head. [Minor] has a diagnosed
              concussion as a result of [] being thrown on the ground by
              [S.K.]. [Minor’s] and [S.K.’s] statements are consistent
              with the video and support the evidence of [S.K.] causing
              bodily harm to [Minor] through a recent act.

R.R. I at 2 (OCYF Investigation Report at 2). On October 10, 2017, OCYF filed an
indicated report against S.K. as a perpetrator of abuse against Minor. See R.R. I at 4.

       3
            S.K. presents six issues in his Statement of Questions Involved: Whether the
Administrative Law Judge (ALJ) erred and abused her discretion by denying S.K.’s expunction
request where evidence demonstrates that (1) S.K. accidentally inflicted injury on Minor and no
mens rea was established; (2) S.K.’s contact with Minor is excluded from the definition of child
abuse in Section 6304(c)(1) of the Law, 23 Pa.C.S. § 6304(c)(1); (3) S.K.’s contact with Minor is
excluded from the definition of child abuse in Section 6304(c)(2)(i) of the Law, 23 Pa.C.S. §
6304(c)(2)(i); (4) S.K.’s contact with Minor is excluded from the definition of child abuse in
Section 6304(c)(2)(ii) of the Law, 23 Pa.C.S. § 6304(c)(2)(ii); (5) S.K.’s contact with Minor is
excluded from the definition of child abuse in Section 6304(c)(2)(iii) of the Law, 23 Pa.C.S. §
6304(c)(2)(iii); and (6) the ALJ applied a standard of care less than criminal negligence. See S.K.
Br. at iii-iv, 18-24. Because these issues are subsumed in this Court’s analysis of whether the BHA
properly applied a recklessness standard in concluding that S.K.’s actions constituted child abuse
and whether S.K. used reasonable force, they have been combined herein.
                                                2
              On November 21, 2017, S.K. requested review of OCYF’s report by
DHS’ Secretary. See R.R. I at 5-9. By December 7, 2017 letter, the Secretary’s
designee stated: “We believe the report is accurate and being maintained in a manner
consistent with the Child Protective Services Law [(Law)4]. Thus[,] the report will
remain on file as originally reported.” R.R. I at 10. S.K. appealed to the BHA. A
hearing was held on March 14, 2018, before an Administrative Law Judge (ALJ).
See Reproduced Record Volume II (R.R. II) at 1-241. On April 2, 2018, the ALJ
issued an adjudication and recommendation denying S.K.’s appeal and declaring that
OCYF proved that S.K.’s actions were reckless and, thus, constituted child abuse.
See R.R. II at 243-267.           On April 20, 2018, the BHA adopted the ALJ’s
recommendation in its entirety. See R.R. II at 242. S.K. appealed to this Court.5
              Initially, Section 6341(a)(2) of the Law authorizes “the [S]ecretary to . . .
expunge an indicated report on the grounds that it is inaccurate or it is being
maintained in a manner inconsistent with [the Law].” 23 Pa.C.S. § 6341(a)(2).
“[T]he proper inquiry into whether an indicated report of child abuse should be
expunged is whether the report is accurate.” B.K. v. Dep’t of Pub. Welfare, 36 A.3d
649, 653 (Pa. Cmwlth. 2012). Moreover, “[OCYF] has the burden of establishing by
substantial evidence that an indicated report of child abuse is accurate.” Bucks Cty.
Children & Youth Soc. Servs. Agency v. Dep’t of Pub. Welfare, 808 A.2d 990, 993
(Pa. Cmwlth. 2002).
              The facts of this case are not in dispute. The parties agree that S.K. was
responsible for Minor’s welfare and he was trained in and authorized to use Safe

       4
         23 Pa.C.S. §§ 6301-6386.
       5
          “Our review [of BHA’s order] determines whether constitutional rights were violated,
whether errors of law were committed or whether necessary findings of fact are supported by
substantial evidence.” S.H., 96 A.3d at 453 n.4. Section 6303(a) of the Law 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(a); see also G.V. v. Dep’t of
Pub. Welfare, 91 A.3d 667 (Pa. 2014); S.H.
                                                3
Crisis Management (SCM) restraint techniques when a child presents a danger to
himself or to others.6 See R.R. II at 11-12, 111-113, 137, 175, 187. On September
15, 2017, Minor did not want to attend school. See R.R. II at 26, 45. At breakfast,
Minor notified staff that he intended to get kicked out of school, turn the building
upside down and be restrained. See R.R. II at 166. S.K. attempted choice theory
techniques with Minor, asking him how such behavior would assist him in the
program. See R.R. II at 167-168. Minor went to school but, rather than participate,
he wrote “I don’t care” on his paper and put his head down, prompting his teacher to
direct him to leave. R.R. II at 27, 46-47. After S.K. witnessed Minor storm out of
school, S.K. and staff member D.F. followed Minor to his room to insure Minor’s
safety and that he did not damage the room. See R.R. II at 49, 172-173. Due to
Minor’s behavior in his room, S.K. and D.F. took Minor to a time-out room.7 See
R.R. II at 27, 173-175. Minor struggled against S.K. on the way to the time-out
room. See R.R. II at 174-175.
               For approximately the first 10 minutes in the time-out room, Minor
paced the floor and hit the walls as S.K. stood in the doorway speaking to him. See
R.R. II at 28, 54-55, 100, 177-179. Eventually, Minor asked S.K. to turn the lights
off at the hallway switch so Minor could sleep, but S.K. explained that the lights had
to remain on for the video recording that was in place for both their safety. See R.R.


       6
          For 2½ years, S.K. had been a clinical manager in the Facility’s Special Needs 7 unit. See
R.R. II at 164. S.K. held a bachelor’s degree with a psychology minor and, at the time of this
incident, he was pursuing a graduate degree in clinical mental health counseling. See R.R. II at 164-
166.
       7
         The time-out room was approximately 5 feet wide and 6 or 7 feet long, with padding on the
walls and the floor. See R.R. II at 53, 103. The hallway immediately outside the time-out room
was constructed of concrete, with carpet over the concrete floor. See R.R. II at 53, 59, 103.
       D.F. testified that he assisted S.K. in escorting Minor to the time-out room, but was called
away to help staff member A.W. with another child and did not witness anything that occurred
while Minor and S.K. were in the time-out room. See R.R. II at 160-161.


                                                 4
II at 55-58. Minor nevertheless made two additional attempts to push past S.K. to the
hallway to turn the time-out room lights off, and each time made contact with S.K.
See R.R. II at 28-29, 56, 58-62, 96-97, 104. On Minor’s third attempt to reach out of
the room, S.K. attempted to use an SCM-approved method to restrain Minor, but
ended up restraining Minor in a manner that deviated from his Facility training.8 See
R.R. II at 89-92, 112-113, 131, 187-190. Specifically, S.K. lifted up Minor and
delivered him to the floor in such a manner that Minor’s head and neck struck the
floor first. See R.R. II at 29-32, 181-182, 186; see also S.K. Br. at viii. S.K. held
Minor on the floor in a kneeling torso hold until S.K. thought Minor was calm.9 See
R.R. II at 31, 64, 181-182, 184.
               Immediately after the incident, S.K. escorted Minor back to his room
and contacted the infirmary to check Minor. See R.R. II at 184. Thereafter, Minor’s
head and back hurt, and he vomited several times. See R.R. II at 30-31. Minor
received medical treatment first at the Facility, then at Grove City Medical Center
emergency room, and finally at UPMC Children’s Hospital of Pittsburgh. See R.R. II
at 32-36, 38-41, 124-125. Minor was diagnosed with a concussion. See R.R. II at 40,
138, 191, 193. The Facility discharged S.K. for his use of improper technique on
September 15, 2017. See R.R. II at 95, 100.
               Section 6303(b.1) of the Law provides, in pertinent part: “The term
‘child abuse’ shall mean intentionally, knowingly or recklessly . . . [c]ausing bodily



       8
         S.K. reported that he called out for help twice before the incident occurred, and once after
he had Minor on the ground, but D.F. and A.W. were occupied with the other incident. See R.R. II
at 179-180.
       9
          Although it was standard practice for Facility staff to carry panic alarms with them to
summon assistance when necessary, when this incident occurred, S.K. did not have a panic alarm
available to him. See R.R. II at 101, 176-177. There were three Facility staff (S.K., D.F. and A.W.)
on duty on September 15, 2017, and A.W. had the only panic alarm, since the night staff either took
one home or misplaced it. See R.R. II at 160.
                                                 5
injury to a child through any recent act or failure to act.”10 23 Pa.C.S. § 6303(b.1).
Section 6303(c) of the Law specifies:

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

23 Pa.C.S. § 6303(c). The BHA in this case adopted the ALJ’s conclusion that S.K.
did not intentionally or knowingly harm Minor, but that his actions were reckless and,
thus, constituted child abuse under the Law. See R.R. II at 242, 264-265.
                  S.K. argues that the BHA erred by applying a recklessness standard and
concluding that he committed child abuse. He claims that since he accidentally
injured Minor on September 15, 2017, pursuant to the Supreme Court’s decision in
P.R. v. Department of Public Welfare, 801 A.2d 478 (Pa. 2002), the BHA should
have applied a criminal negligence standard.
                  Preliminarily, in P.R., an indicated report of child abuse was filed
naming the mother as the perpetrator after she inflicted a serious eye injury on the
child while attempting to strike the child with a belt as punishment for writing on the
walls.        DHS applied a foreseeability standard, concluded that the child’s injury
resulted from abuse, and denied the mother’s request to expunge the indicated report.
This Court reversed DHS’ order, “finding that foreseeability alone was an insufficient
basis to sustain a conclusion that the injury resulted from abuse rather than an
accident.” Id. at 479.




          “Bodily injury” is defined in Section 6303(a) of the Law as “[i]mpairment of physical
         10

condition or substantial pain.” 23 Pa.C.S. § 6303(a).
                                              6
            On appeal, the Pennsylvania Supreme Court affirmed this Court’s
conclusion that the mother’s indicated report should be expunged, but did not endorse
this Court’s foreseeability standard. Rather, our Supreme Court held:

            To balance the competing objectives of protecting children
            from abuse while maintaining the parental right to use
            corporal punishment, the legal standard for differentiating
            abuse from accident must acknowledge some level of
            culpability by the perpetrator that his actions could
            reasonably create a serious injury to the child. The standard
            that best comports with the problem of defining abuse in
            terms of nonaccidental injury is criminal negligence.
            Criminal negligence intertwines the concepts of
            foreseeability and intent to a degree that this [Supreme
            C]ourt finds appropriate for differentiating cases of
            accidental and nonaccidental injury in keeping with the
            legislative directive contained within the [Law]. The
            legislature has defined criminal negligence as follows:
                A person acts negligently with respect to a material
                element of an offense when he should be aware of a
                substantial and unjustifiable risk that the material
                element exists or will result from his conduct. The
                risk must be of such a nature and degree that the
                actor’s failure to perceive it, considering the nature
                and intent of his conduct and the circumstances
                known to him, involves a gross deviation from the
                standard of care that a reasonable person would
                observe in the actor’s situation.
            18 Pa.C.S.[] § 302(b)(4). This definition satisfies the
            parameters of defining an injury caused by abuse as
            something that occurs in contrast to an injury caused by
            accident.
            Accordingly, . . . in cases where a child suffers a serious
            injury arising from the administration of corporal
            punishment, a finding that the injury resulted from
            abuse versus accident will depend upon a showing, by
            the agency, through substantial evidence, that the injury
            resulted from criminal negligence.

Id. at 486-87 (emphasis added).
                                          7
               Although the Law has been amended since P.R. was decided, this Court
has held that “the criminal negligence standard proffered by our Supreme Court in
P.R. is now codified in the [Law] under the auspices of the definition of
‘nonaccidental.’ The result is that P.R. remains controlling precedent, and criminal
negligence is still the proper standard in corporal punishment cases.” F.R. v.
Dep’t of Pub. Welfare, 4 A.3d 779, 787 (Pa. Cmwlth. 2010) (bold and underline
emphasis added).        However, because the instant matter does not involve corporal
punishment, P.R. is inapposite.11 Accordingly, the BHA properly declined to apply a
criminal negligence standard, and applied a recklessness standard when reviewing
S.K.’s appeal.
               Section 6303(a) of the Law states that the term “recklessly” as used in
the Law “shall have the same meaning as provided in [Section 302 of the Crimes
Code,] 18 Pa.C.S. § 302 (relating to general requirements of culpability).” 23 Pa.C.S.
§ 6303(a). Section 302(b)(3) of the Crimes Code establishes:

               A person acts recklessly with respect to a material element
               of an offense when he consciously disregards a
               substantial and unjustifiable risk that the material
               element exists or will result from his conduct. The risk
               must be of such a nature and degree that, considering the
               nature and intent of the actor’s conduct and the
               circumstances known to him, its disregard involves a
               gross deviation from the standard of conduct that a
               reasonable person would observe in the actor’s
               situation.
18 Pa.C.S. § 302(b)(3) (emphasis added).
               At the hearing, OCYF presented the September 15, 2017 video
recording, the Facility’s Emergency Safety Physical Intervention (ESPI) Report,
OCYF’s Investigation Report, Minor’s medical records, and testimony from Minor,

       11
           Notably, Section 3800.32(b) of DHS’ Regulations applicable to child residential facilities
specifies that “[a] child may not be . . . subject to corporal punishment.” 55 Pa. Code § 3800.32(b).
Therefore, S.K. was prohibited from inflicting corporal punishment on Minor.
                                                 8
the Facility’s Vice President of Treatment Services S.D. (S.D.), and OCYF Human
Services Program representative Wilson Smith (Smith). S.K. testified and presented
D.F.’s testimony.
             Minor testified that he could not recall specifically how S.K. restrained
him in the time-out room, only that he was lifted off the ground and then was on the
ground. See R.R. II at 29-30, 52-53. He claimed that he was tired, not angry, acting
out or clenching his fists, and stated he was touching or tapping the time-out room
walls rather than hitting them. See R.R. II at 31, 47, 49, 54-55, 63. Minor admitted
making contact with S.K. every time he attempted to reach the light switch, but
maintained that it was “not forcefully.” R.R. II at 60.
             S.D. testified that after she learned of S.K.’s restraint of Minor, she
reviewed the ESPI Report, the video recording and Minor’s medical records. See
R.R. II at 85-89. She acknowledged that S.K. clearly attempted to talk to Minor for
approximately 10 minutes, yet Minor appeared to be agitated and was punching the
walls, and tried to push past S.K. more than once. See R.R. II at 96-97. S.D. further
opined that “[v]erbal behavior is not a danger,” and that no approved restraint method
authorized S.K. to subdue Minor to the floor. R.R. II at 113; see also R.R. II at 111-
112. She expressed that take-downs would only be appropriate in the most extreme
cases and this was not one of them. See R.R. II at 115-116. However, based upon
Minor’s position in the time-out room, S.D. acknowledged the possibility that if S.K.
had effectuated a proper upper torso restraint, Minor would have had access to the
doorway and the hall. See R.R. II at 104.
             Smith, the OCYF employee assigned to investigate the incident, testified
that he reviewed the video footage and Minor’s medical records, and interviewed
Minor, whose recollection of the incident was the same as his testimony, in that he
could not recall details of the restraint itself. See R.R. II at 130, 132. Smith agreed
that Minor needed to be in the time-out room and, although Minor’s reaching outside
                                            9
the room was sufficient justification for S.K. to restrain Minor, the take-down was not
necessary since it was evident that S.K. was in complete control of Minor at that
point. See R.R. II at 137, 146-148.
              S.K. testified that, although he was not aware of Minor’s specific
diagnosis, the youth in the Facility unit he supervised on September 15, 2017, had
been adjudicated delinquent, had behavioral health issues, or both. See R.R. II at
169-171. He acknowledged that he was taught that any time a restraint is used, there
is potential for injury, and that there was an increased injury risk if an unapproved
restraint is used. See R.R. II at 186-187, 189-190. S.K. explained that he had a good
relationship with Minor, he cared about him and wanted him to do well. See R.R. II
at 171.
              S.K. stated that Minor’s demeanor when he left the classroom that
morning was “like a combination of sarcastic and angry[; he] wanted to show that he
got kicked out of school and he’s in charge.” R.R. II at 173. S.K. recalled that
because Minor took a fighting stance with clenched fists in his room, S.K. used an
SCM-approved extended arm escort technique when he and D.F. took Minor to the
time-out room. See R.R. II at 174-175. S.K. reported that, in the time-out room,
Minor was walking in circles with clenched fists and threatening to assault S.K., his
peers and staff members, and to get out of the Facility “his way.” R.R. II at 177. He
described that, during this time, he was talking to Minor (using choice techniques)
and asking how he could help Minor. See R.R. II at 177-178.
              S.K. stated that, after Minor contacted him to get past him the second
time, S.K. warned Minor that if he tried it again, S.K. would have to restrain him.
See R.R. II at 180. S.K. recounted that the other staff members did not respond to his
two calls for help12 and Minor’s behavior in the time-out room was escalating, so

       12
           At the time, D.F. and A.W. were dealing with an incident involving another child. See
R.R. II at 160-161.
                                              10
when Minor approached him the third time, he intended to place Minor in an upper
torso restraint13 to keep him from leaving the room and either fulfilling his threats or
getting hurt in the concrete hallway. See R.R. II at 179-182. S.K. testified:

              In a split second, I had to think -- I had to think outside of
              this time-out room, it is concrete floors, concrete walls,
              there are other youth out there who he may or may not try
              to harm, other staff members that [Minor] may or may not
              try to harm, and that I have to keep him in the time-out
              room for everybody’s safety.
              It’s a small room. I was initially in a doorway, which
              makes it difficult to get around. And I got him by the waist.
              I intended for an upper torso. It did not happen. I made a
              mistake. But I had to commit, or a more serious injury
              could have happened.

R.R. II at 181. He reported that he tried to pull Minor back in the room, but ended up
lifting him. See R.R. II at 182. S.K. testified that he was not angry and he did not
intend to lift Minor or for Minor to hit his head or otherwise get hurt in any way. See
R.R. II at 182-183. S.K. acknowledged his mistake and admitted that his take-down
was improper. See R.R. II at 131, 183, 185.
              “In child abuse expunction proceedings, the [BHA], as the [DHS]
Secretary’s designee, is the ultimate finder of fact, and the ultimate arbiter of the
weight to be assigned to the evidence presented.” Beaver Cty. Children & Youth
Servs. v. Dep’t of Pub. Welfare, 68 A.3d 44, 47 n.4 (Pa. Cmwlth. 2013); see also D.T.
v. Dep’t of Pub. Welfare, 873 A.2d 850 (Pa. Cmwlth. 2005). Here, the BHA adopted
the ALJ’s finding that all of the witnesses testified credibly, and the ALJ’s conclusion
that S.K.’s actions were reckless and, therefore, constituted child abuse under the
Law. See ALJ Dec. at 11, 21-23. The BHA also relied upon the ALJ’s reasoning:


       13
         S.K. described the SCM upper torso restraint: “You’re standing up, and you swoop your
arms over the shoulders (indicating), and you hold your arms together . . . [with the child] facing
away.” R.R. II at 93-94.
                                                11
            [A]ny reasonable adult knows that picking a child up off the
            ground and slamming him head first to the ground creates a
            substantial and unjustifiable risk of serious injury to the
            child. In this case, although [S.K.] had to act quickly, he
            nevertheless slammed [Minor] to the ground head first,
            disregarding a substantial and unjustifiable risk [Minor]
            would suffer bodily injury as a result.
            Not only was [S.K.’s] take-down of [Minor] in violation of
            his SCM training, it was a gross deviation from the standard
            of conduct that a reasonable person would observe in his
            situation.    [Minor] was certainly agitated; making
            inappropriate comments about wanting to get out of the
            [time-out room], turn off the lights, etc.; and repeatedly
            moved toward (and made physical contact with) [S.K.] in
            [an] attempt to turn the lights off. But [Minor’s] action’s
            did not warrant the kind of ‘take-down’ [S.K.] performed.
            . . . . This was a situation where a troubled child was
            frustrated, verbally acting out, and disobeying [S.K.’s]
            verbal commands not to turn off the time-out room lights.
            No reasonable person in [S.K.’s] situation, especially a
            person with [S.K.’s] specialized SCM training, would have
            picked [Minor] up off the floor and slammed him head first
            into the ground and with as much force as [S.K.] did. . . .
            [S.K.] repeatedly testified he ‘made a mistake’ and did not
            mean to take [Minor] to the ground as hard as he did.
            Regardless, [S.K.] intentionally used a non-SCM technique
            in violation of his training, knowing it increased the risk of
            injury to [Minor]; intentionally put [Minor] in a bear-hug;
            intentionally lifted [Minor] up off the ground; and
            intentionally and forcefully slammed [Minor] to the ground
            head first. While [S.K.] may believe, in retrospect, that his
            actions were a ‘mistake,’ what matters is that in the
            moment, [S.K.] acted in disregard of a substantial and
            unjustifiable risk [Minor] would suffer bodily injury.

ALJ Dec. at 21-22; R.R. II at 264-265. Accordingly, the BHA held that the evidence
supporting S.K.’s indicated report of child abuse was accurate and the report is being
maintained in accordance with the Law.




                                         12
             “It goes without saying that an appellate court may not find facts or
reweigh the evidence.       Nevertheless, whether [OCYF’s] evidence satisfied the
standard set forth in the statute is a question of law.” In re: S.H., 96 A.3d 448, 455
(Pa. Cmwlth. 2014) (citations omitted). Under the Law, S.K. acted recklessly if there
was a “substantial and unjustifiable risk” about which S.K. was aware but
“consciously disregard[ed],” and his disregard of that risk “gross[ly] deviat[ed]”
from what another reasonable person in his situation would have done. 18 Pa.C.S. §
302(b)(3). Because those key terms are not defined in either the Crimes Code or the
Law, they “must be construed in accordance with [their] common and ordinary
meaning[s]. See 1 Pa.C.S. § 1903(a). It is well-established that the common and
approved meaning of a word may be ascertained from an examination of its
dictionary definition.” Chamberlain v. Unemployment Comp. Bd. of Review, 114
A.3d 385, 394 (Pa. 2015).
             Merriam-Webster’s Collegiate Dictionary (11th ed. 2004) (Merriam-
Webster’s) defines “risk” as the “possibility of loss or injury:   PERIL[.]”   Id. at 1076.
The risk must be substantial and unjustifiable.            Merriam-Webster’s defines
“substantial” as “not imaginary or illusory:    REAL, TRUE[.]”   Id. at 1245. Although
“unjustifiable” is not separately defined, Merriam-Webster’s defines “justifiable” as
“capable of being justified:   EXCUSABLE.”   Id. at 680. By extension, “unjustifiable”
means incapable of being justified or inexcusable. Accordingly, here, the substantial
and unjustifiable risk would be the real possibility that Minor would sustain a bodily
injury for which there is no justification, excuse or defense.
             To meet the definition of reckless, S.K. had to have consciously
disregarded that risk.      Merriam-Webster’s defines “conscious” as “perceiving,
apprehending, or noticing with a degree of controlled thought or observation[.]” Id. at
265. Merriam-Webster’s defines “disregard” as “to pay no attention to: treat as


                                           13
unworthy of regard or notice[.]” Id. at 362. Thus, S.K. had to have perceived, but
ignored the risk or deemed it unworthy of regard.
              Finally, S.K.’s conscious disregard of the risk had to have grossly
deviated from what a reasonable person in S.K.’s circumstances would have found
acceptable.   Merriam-Webster’s defines “gross” as “immediately obvious[;] . . .
glaringly     noticeable     usu[ally]   because    of    inexcusable    badness   or
objectionableness[.]”      Id. at 551.   Merriam-Webster’s defines “deviation” as a
“noticeable or marked departure from accepted norms of behavior.” Id. at 342.
Therefore, S.K. had to have glaringly obviously deviated from conduct a reasonable
person would find acceptable in the same circumstances.

              In Fitsko v. Gaughenbaugh, . . . 69 A.2d 76 ([Pa.] 1949),
              [the Pennsylvania Supreme Court] cited with approval the
              Restatement (Second) of Torts definition of ‘reckless
              disregard’ and its explanation of the distinction between
              ordinary negligence and recklessness. Specifically, the
              Restatement (Second) of Torts defines ‘reckless disregard’
              as follows:

                 The actor’s conduct is in reckless disregard of the
                 safety of another if he does an act . . . knowing or
                 having reason to know of facts which would lead a
                 reasonable man to realize, not only that his conduct
                 creates an unreasonable risk of physical harm to
                 another, but also that such risk is substantially
                 greater than that which is necessary to make his
                 conduct negligent.
              Restatement (Second) of Torts § 500 (1965). The
              Commentary       to     this    Section    emphasizes   that
              ‘[recklessness] must not only be unreasonable, but it
              must involve a risk of harm to others substantially in
              excess of that necessary to make the conduct negligent.’
              Id., cmt. a. Further, as relied on in Fitsko, the Commentary
              contrasts negligence and recklessness:



                                           14
               Reckless misconduct differs from negligence in
               several important particulars. It differs from that
               form of negligence which consists in mere
               inadvertence, incompetence, unskillfulness, or a
               failure to take precautions to enable the actor
               adequately to cope with a possible or probable
               future emergency, in that reckless misconduct
               requires a conscious choice of a course of action,
               either with knowledge of the serious danger to
               others involved in it or with knowledge of facts
               which would disclose this danger to any reasonable
               man. . . . The difference between reckless
               misconduct and conduct involving only such a
               quantum of risk as is necessary to make it
               negligent is a difference in the degree of the risk,
               but this difference of degree is so marked as to
               amount substantially to a difference in kind.

           Id., cmt. g; see also AMJUR Negligence § 274
           (‘Recklessness is more than ordinary negligence and more
           than want of ordinary care; it is an extreme departure
           from ordinary care, a wanton or heedless indifference to
           consequences, an indifference whether or not wrong is
           done, and an indifference to the rights of others’). Our
           criminal laws similarly distinguish recklessness and
           negligence on the basis of the consciousness of the action or
           inaction. See 18 Pa.C.S.[] § 302(b)(3), (4) (providing that a
           person acts recklessly when he ‘consciously disregards a
           substantial and unjustifiable risk,’ while a person acts
           negligently when he ‘should be aware of a substantial and
           unjustifiable risk’).

           This conceptualization of recklessness as requiring
           conscious action or inaction not only distinguishes
           recklessness from ordinary negligence, but aligns it more
           closely with intentional conduct.

Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190, 1200-01 (Pa. 2012) (emphasis
added).




                                        15
             Section 302(b)(3) of the Crimes Code, incorporated by Section 6303(a)
of the Law, specifies that a determination of whether the risk was of such a nature
and degree that its disregard vastly departed from acceptable conduct must be
determined “considering the nature and intent of [S.K.’s] conduct and the
circumstances known to [S.K.]” when the incident occurred.                18 Pa.C.S. §
302(b)(3) (emphasis added).
             Here, the credible testimony does not support the BHA’s denial of S.K.’s
expungement request. The record evidence demonstrates that S.K. was a concerned
staff person who tried everything within his means to de-escalate Minor’s behavior.
The circumstances known to S.K. were that Minor was agitated and threatening, and
he had already carried out one of his threats – to get thrown out of school. S.K.
maintained self-control. He talked and acted calmly toward Minor, using SCM-
approved choice theory techniques, but Minor’s agitation escalated. S.K. did not
have a panic button or staff assistance available to him, and he was aware that a
camera was recording his actions. Minor twice attempted to reach or get outside the
time-out room, each time physically contacting S.K. in the process. S.K. warned
Minor that a third try would result in restraint, and S.K.’s requests for assistance were
futile. S.K. intended to use an SCM-approved upper torso restraint but, in a split-
second decision to protect Minor and other residents, S.K.’s upper torso restraint did
not go as planned, S.K. used a modified wrestling move and Minor landed on the
floor. S.D. acknowledged the possibility that if S.K. had effectuated a proper upper
torso restraint, Minor would have had access to the doorway and the hall.
             This Court acknowledges that S.K. was aware that bodily injury could
occur when SCM-approved manual restraints are used, and the risk increased if other
restraint techniques are used. However, the OCYF failed to establish that, under the
circumstances facing S.K. on September 15, 2017, S.K. consciously disregarded or
was indifferent to the risk that Minor could be injured when S.K. restrained him. Nor
                                           16
is there any credible record evidence that S.K. grossly deviated from what a
reasonable person would have found acceptable under the same circumstances.
Accordingly, the BHA erred by concluding that S.K. acted recklessly and, thus,
committed child abuse.14
               Based on the foregoing, the BHA’s April 20, 2018 order is reversed.



                                             ___________________________
                                             ANNE E. COVEY, Judge




        In light of this Court’s disposition of the first issue, it need not address the second issue
       14

which was S.K.’s defense under Section 6304(c) of the Law.
                                                 17
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.K.,                                   :   SEALED CASE
                  Petitioner            :
                                        :
                  v.                    :
                                        :
Department of Human Services,           :   No. 685 C.D. 2018
                 Respondent             :



                                    ORDER

            AND NOW, this 27th day of March, 2019, the Department of Human
Services Bureau of Hearings and Appeals’ April 20, 2018 order is reversed.



                                     ___________________________
                                     ANNE E. COVEY, Judge
