         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


J. R.,                                : CASES SEALED
                   Petitioner         :
                                      :
            v.                        : No. 61 C.D. 2017
                                      :
Department of Human Services,         :
                 Respondent           :

T. H.,                                :
                   Petitioner         :
                                      :
            v.                        : No. 86 C.D. 2017
                                      : Submitted: September 14, 2017
Department of Human Services,         :
                 Respondent           :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                      FILED: October 5, 2017


            Before us are the separate appeals filed by T.H. (Mother) and J.R.
(Father) (collectively, Petitioners), the parents of S.R. (Child), who petitions for
review from the order of the Department of Human Services (Department), Bureau
of Hearings and Appeals (BHA) on remand from our decision in T.H. v.
Department of Human Services, 145 A.3d 1191 (Pa. Cmwlth. 2016) (T.H.), where
we directed a new opinion to make credibility determinations and findings of fact.
Upon remand, BHA did not remove Petitioners from the ChildLine Registry
(Registry) because they did not overcome the presumption set forth in Section
6381(d) of the Child Protective Services Law (CPSL), 23 Pa.C.S. § 6381(d), that
any person responsible for the welfare of a child is presumed responsible for any
abuse of that child. For the following reasons, we affirm.


                                         I.
             Child was born on September 16, 2012. At that time, parents were
unmarried and did not reside together, although Father stayed every other weekend
at Mother’s residence to visit Child. When Child was approximately four months
old, Mother noticed that Child had some bruises and took photographs, notifying
Pike County Children and Youth Services (CYS) of suspected abuse by Father.
Following this discovery, Child was taken to the doctor several times for excessive
vomiting. At the last of these visits, Dr. LaFranco, Child’s pediatrician, observed a
bruise on Child’s pelvic region, which Mother purportedly believed to be diaper
rash. Upon closer examination and the discovery of another bruise on Child’s
neck, Dr. LaFranco called CYS and Child was transported to Geisinger Hospital
where an array of tests was performed. Child was diagnosed with “Shaken Baby
Syndrome,” having exhibited retinal hemorrhages, bilateral subdural hematoma
and six fractured ribs. Doctors opined that Child was shaken in the days prior to
December 24, 2012, at which time the ribs were fractured.




                                         2
              Shelter care was granted to CYS, Child was deemed dependent, and
CYS filed indicated reports against both Petitioners, naming them as perpetrators
of child abuse.1


              A dependency hearing before the Pike County Court of Common
Pleas (common pleas court) was conducted. At this hearing, multiple testimonies
were taken, including that of Jessica Wright (Wright), the initial CYS caseworker
on Petitioners’ case. Wright testified that Mother called her on January 2, 2013,
and said that “father couldn’t be left alone with the child.” (Mother’s Reproduced
Record (R.R.) at 307a.)          The testimony of Angela Fucci (Fucci), the CYS
caseworker who was later assigned to Petitioners’ case, was also taken. Fucci
stated that when Mother spoke to her on January 21, 2013, she told her that Father
had visited Child as recently as that very weekend. (Mother’s R.R. at 277a.)
Father also testified to the following:

              Q: Sir, if [Mother] takes a shower are you alone with
              [Child]?

              A: Yes.

              Q: If she fixes his bottles are you alone with [Child]?

              A: Yes.

              Q: When she walks the dogs are you alone with [Child]?

       1
         The Department maintains indicated reports of child abuse “if an investigation by the
department or county agency 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).




                                               3
            A: Yes.


(Mother’s R.R. at 435a.)


            Common pleas court ordered that Child be returned to Mother and
dependency status was lifted because the judge was never able to determine which
parent was the perpetrator of the abuse. However, the Department maintained the
indicated reports in the Registry against both Petitioners.      The Department
appealed to the Superior Court, which affirmed the common pleas court order
returning Child to Mother’s custody.


            Petitioners filed separate appeals to have their reports expunged from
the Registry, arguing that there existed no clear and convincing evidence as to
which parent was the perpetrator of the abuse. Petitioners did not testify at the
hearing before the Administrative Law Judge (ALJ), but each submitted transcripts
and exhibits from the dependency action in the common pleas court.


            At the hearing, the Department acknowledged that it could not
positively identify which of the Petitioners had committed physical abuse of the
Child. However, the Department argued that the presumption set forth in Section
6381(d) of the CPSL should apply. Pursuant to that section:

            (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 parent or other person
            responsible for the welfare of the child shall be prima



                                        4
             facie evidence of child abuse by the parent or other
             person responsible for the welfare of the child.


23 Pa.C.S. § 6381(d).


             Each of the Petitioners attempted to establish that the other was
responsible for the abuse. Father presented evidence that he did not have sufficient
opportunity to abuse Child, as he was never alone with him. Mother, on the other
hand, presented evidence that she was the one who contacted CYS in the first place
with concerns that Child had been abused by Father, and that it was she who took
Child to his various doctor appointments.


             The ALJ reviewed the evidence and determined that Petitioners were
Child’s sole caretakers during the relevant time period when the abuse would have
taken place because Mother had primary custody of Child and Father had visitation
and custodial rights to visit Child every other weekend. He went on to find that,
notwithstanding the fact that the Department was unable to establish who abused
the child, our Supreme Court held in In re L.Z., 111 A.3d 1164 (Pa. 2015), that the
Section 6381(d) presumption had to be overcome by each caretaker individually
presenting sufficient evidence that they were not responsible for the abuse. The
ALJ determined that neither Petitioner presented sufficient evidence to rebut the
presumption and denied each of their separate administrative appeals.         BHA
adopted the ALJ’s recommended decision, and Petitioners then separately
petitioned this Court for review.




                                         5
             In T.H., we determined that because each Petitioner accused the other
of abusing Child, there was conflicting evidence regarding which parent was
caring for Child when the abuse occurred. We also determined that there was a
conflict regarding whether each parent had a reason to question whether leaving
Child with the other parent was safe. Ultimately, we held that the ALJ did not
resolve these conflicts. We acknowledged, though, that the ALJ was correct in
applying the Section 6381(d) presumption and the principles in In re L.Z. Citing In
re L.Z., we noted that “[t]he 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.”
T.H., 145 A.3d at 1204 (citing In re L.Z., 111 A.3d at 1185). We held that CYS
did, in fact, meet its initial burden of proof using the Section 6381(d) presumption,
and thereby successfully shifted the burden to Petitioners to rebut that
presumption. We also held that:

             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.


T.H., 145 A.3d at 1204. We then issued an order (Remand Order) vacating BHA’s
order and remanded the matter “for a new decision that [would] include credibility
determinations and findings of fact.” Id.


             On remand, BHA issued an opinion which included findings of fact
per our instruction. Among these was a finding that “[n]either [Petitioner] ha[s]

                                            6
submitted countervailing competent, substantial evidence sufficient to rebut the
presumption.” (Mother’s R.R. at 591a.) Specifically, with regard to the evidence
Mother presented, the opinion stated:

            [Mother] argues she did not commit abuse and points to
            her taking the subject child to numerous medical
            appointments for diagnosis and treatment and contacting
            CYS to report her concerns the subject child was being
            abused as evidence of the same. However, the evidence
            submitted demonstrated that while [Mother] contacted
            CYS on December 24, 2016 to report her concerns about
            [Father] possibly abusing the subject child, she then
            continued to spend time with [Father] and allow the
            subject child to sit with [Father] for the next three (3)
            weeks. If [Mother] had legitimate concerns about
            [Father] committing child abuse on the subject child it is
            unlikely that she would have allowed the subject child to
            be with [Father] until an investigation could be
            completed.      By doing so she would have been
            committing physical child abuse by omission.
            Furthermore, neither her taking the subject child for
            medical treatment, nor her contacting CYS regarding
            suspected abuse absolves her from abusing the subject
            child as it is not uncommon for the person committing
            the abuse to try and deflect the blame to someone else.
            Finally, while [Mother] argues no prior court has
            determined that she committed child abuse, this argument
            fails and is not dispositive of whether the undersigned,
            who unlike the dependency court is tasked with making a
            determination of whether [Petitioners] were properly
            indicated for child abuse. Therefore, the evidence
            presented on behalf of [Mother] has failed to rebut the
            presumption.


(Mother’s R.R. at 597a.) With regard to Father’s evidence, BHA wrote:

            [Father] argues he did not commit abuse and points to the
            lack of opportunity he had to commit abuse as he had

                                        7
              little contact with the subject child and when he did have
              contact, [Mother] was present.           However, at the
              Dependency hearing, [Father] admitted that at times, he
              was alone with the subject child; therefore, [Father]
              clearly had the opportunity to commit the abuse.
              Furthermore, the simple fact that [Mother] was present
              the majority of the time [Father] visited with the subject
              child does not preclude [Father] from abusing the subject
              child. Since [Father] admittedly was alone with the
              subject child at times when the abuse occurred he clearly
              had opportunity to commit the abuse. Therefore,
              [Father’s] argument completely fails and is insufficient to
              rebut the presumption.


(Mother’s R.R. at 596-97a.)          Accordingly, BHA denied Petitioners’ separate
appeals. Petitioners then separately appealed to this Court.2


                                             II.
              Initially, Petitioners contend that our Remand Order directing BHA to
make credibility determinations regarding conflicting evidence entitled them to an
evidentiary hearing where they could present new testimony.


              Where a case is remanded for a specific and limited purpose, “issues
not encompassed within the remand order” may not be decided on remand. Levy v.
Senate of Pennsylvania, 94 A.3d 436, 442 (Pa. Cmwlth. 2014) (citing In re
Independent School District Consisting of the Borough of Wheatland, 912 A.2d

       2
          When a petitioner challenges a decision by an administrative agency, our scope of
review is limited to “determining whether or not the final adjudication was in accordance with
law, constitutional rights were violated, or all necessary findings of fact were supported by
substantial evidence.” Holloway v. Department of Public Welfare, 445 A.2d 1329, 1331 (Pa.
Cmwlth. 1982).




                                              8
903, 908 (Pa. Cmwlth. 2006)). A remand does not grant a litigant a “second bite of
the apple.” Levy, 94 A.3d at 442 (citing Emery Worldwide v. Unemployment
Compensation Board of Review, 540 A.2d 988, 990 (Pa. Cmwlth. 1988)). Our
Remand Order only directed that BHA issue “a new decision that [would] include
credibility determinations and findings of fact.” T.H., 145 A.3d at 1204. No
evidentiary hearing was ordered. BHA complied with our Remand Order not to
conduct an evidentiary hearing.


               Accordingly, BHA properly denied Petitioners’ request for an
evidentiary hearing on remand.


                                               III.
               Petitioners also separately argue3 that BHA erred by determining that
they did not sufficiently rebut the presumption, with the evidence they separately
presented, that they each were perpetrators of Child’s abuse.4

       3
         Mother argues that the Department retains the burden to prove substantial evidence in
order to maintain a report against Petitioners. We already held in T.H. that it was appropriate to
apply the reasoning of In Re L.Z. and the Section 6831(d) presumption in this case. 145 A.3d at
1200. Per that line of reasoning, it is the Petitioners, not the Department, who hold the burden of
rebutting the presumption, which the Department has already succeeded in holding against
Petitioners.

       Mother also argues that because the Department was unable to prove that she was the
perpetrator of abuse in the common pleas court decision to lift Child’s dependency status and
return Child to Mother’s custody, it should have been unable to do so at the expungement
proceeding before BHA and, therefore, BHA abused its discretion by finding that the
Department established a prima facie case. Again, we addressed this in T.H. when we held:

               [I]t 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
(Footnote continued on next page…)

                                                9
               Once the Section 6381(d) presumption is established, it may be
rebutted by presenting evidence that the child was not in the parents’ care when the
injuries were suffered or that the parents had no reason to question their decision to
leave the child in the other person’s care. In re L.Z., 111 A.3d at 1185-86. The
ALJ found that the Father was not credible and did not overcome the presumption
because:

               [Father] . . . points to the lack of opportunity he had to
               commit abuse as he had little contact with the subject
               child and when he did have contact, [Mother] was
               present. However, at the Dependency hearing, [Father]
               admitted that at times, he was alone with the subject
               child; therefore, [Father] clearly had the opportunity to
               commit the abuse. . . . Therefore, [Father’s] argument
               completely fails and is insufficient to rebut the
               presumption.




(continued…)

               these determinations. Even if it had done so, the Supreme Court
               clarified and broadened the interpretation 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.

T.H., 145 A.3d at 1201. We, therefore, decline to address this issue again, as we already decided
that BHA was not obligated to come to the same result as the common pleas court.

       4
          Father argues that BHA erred because it did not have evidence that he was a perpetrator
of abuse. However, as we held in T.H., “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.’” T.H., 145 A.3d at 1201-02. Furthermore, we stated that
“[t]his satisfie[d] CYS’s burden of proof through the use of the presumption.” Id. at 1202.
Because this Court already decided this issue, there is no need for us to examine it further.



                                                10
(Mother’s R.R. at 596a.) Because Father’s rebuttal evidence was contradictory to
his past testimony, the ALJ did not find Father credible and, therefore, he failed to
rebut the presumption against him.


             Similarly, in explaining why Mother was not credible and did not
overcome the presumption, the ALJ stated:

             [Mother] . . . points to her taking the subject child to
             numerous medical appointments for diagnosis and
             treatment and contacting CYS to report her concerns the
             subject child was being abused as evidence [that she did
             not commit abuse]. However, the evidence submitted
             demonstrated that while [Mother] contacted CYS on
             December 24, 2016 to report her concerns about [Father]
             possibly abusing the subject child, she then continued to
             spend time with [Father] and allow the subjected child to
             visit with [Father] for the next three (3) weeks.


(Mother’s R.R. at 597a.) This evidence speaks to whether or not Mother had
reason to trust leaving Child in Father’s care. Because there is countervailing
evidence against Mother that she had reason to question leaving Child in Father’s
care but did so anyway, the ALJ found that she was not credible and did not rebut
the presumption.


             We may not reweigh or examine credibility determinations. R.J.W. v.
Department of Human Services, 139 A.3d 270, 280 (Pa. Cmwlth. 2016).
Therefore, based on those findings, the ALJ properly determined that neither of the
Petitioners presented sufficient evidence to rebut the presumption.




                                         11
            Accordingly, for the foregoing reasons, we affirm BHA’s December
20, 2016 decision denying Petitioners’ appeals to have their Registry reports
expunged.



                                   __________________________________
                                   DAN PELLEGRINI, Senior Judge




                                     12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


J. R.,                             :
                  Petitioner       :
                                   :
             v.                    : No. 61 C.D. 2017
                                   :
Department of Human Services,      :
                 Respondent        :

T. H.,                             :
                  Petitioner       :
                                   :
             v.                    : No. 86 C.D. 2017
                                   :
Department of Human Services,      :
                 Respondent        :




                                 ORDER


             AND NOW, this 5th day of October , 2017, the December 20, 2016
order of the Bureau of Hearings and Appeals in the above-captioned matter is
affirmed.



                                   __________________________________
                                   DAN PELLEGRINI, Senior Judge
