           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lancaster County Children and                   :   SEALED CASE
Youth Social Services Agency,                   :
                        Petitioner              :
                                                :
               v.                               :   No. 1255 C.D. 2019
                                                :   Submitted: May 12, 2020
Department of Human Services,                   :
                      Respondent                :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION BY JUDGE BROBSON                            FILED: July 1, 2020


       Lancaster County Children and Youth Social Services Agency (CYS)
petitions for review of an order of the Department of Human Services (DHS), Bureau
of Hearings and Appeals (BHA), dated August 19, 2019, which sustained E.M.’s
(Mother) appeal and granted her request to expunge an indicated report of child
abuse from the ChildLine & Abuse Registry (ChildLine Registry).1 For the reasons
set forth below, we reverse.
                                    I. BACKGROUND
       CYS received a police report regarding an incident that occurred on
June 17, 2018, involving the Mother. According to the police report, the Mother
overdosed on heroin while in her vehicle, alone with the exception of her


       1
         ChildLine is an organizational unit of DHS that operates a statewide toll-free system for
receiving and maintaining reports of suspected child abuse, along with making referrals for
investigation. 55 Pa. Code § 3490.4; 23 Pa. C.S. § 6332. The ChildLine Registry is maintained
in accordance with the Child Protective Services Law (CPSL), 23 Pa. C.S. §§ 6301-6386.
eleven-month-old son (Child), who was strapped in a car seat. (Certified Record
(C.R.) at 25-30, 44.) As a result, CYS caseworker Andrea Tamayo (Caseworker
Tamayo) filed an indicated report of child abuse with DHS on August 16, 2018.2
(C.R. at 7-25.) The following day, DHS notified the Mother that she was listed in
the statewide database as a perpetrator in an indicated report of child abuse. (C.R.
at 12.) The Mother appealed the decision and requested an administrative hearing.
(C.R. at 13.) Administrative Law Judge (ALJ) Andrew P. Maloney conducted an
administrative hearing on May 29, 2019, to determine whether DHS was properly
maintaining an indicated report of child abuse. (C.R. at 44.) The hearing concerned
the allegation that the Mother committed child abuse by creating a reasonable
likelihood of bodily injury to the Child when the Mother overdosed on heroin during
the June 17, 2018 incident. (C.R. at 44.) In considering that issue, the ALJ focused
on whether the Child was in the vehicle while the Mother overdosed, and, if so,
whether there was a reasonable likelihood of bodily injury to the Child. (C.R.
at 41-51.)
                                           A. CYS’ Case
       CYS, through counsel, called Officer Joel Ayers of the Manheim Township
Police Department, who testified that while on patrol on June 17, 2018, at 3:57 p.m.,

       2
           An “indicated report” is defined, in part, as:
                 [A] report of child abuse made pursuant to this chapter if an
                 investigation by [DHS] or [CYS] determines that substantial
                 evidence of the alleged abuse by a perpetrator exists based on any
                 of the following:
                 (i) Available medical evidence.
                 (ii) The child protective service investigation.
                 (iii) An admission of the acts of abuse by the perpetrator.
Section 6303(a) of the CPSL, 23 Pa. C.S. § 6303(a).


                                                    2
he was dispatched to a local park because a person had suffered a drug overdose.
(C.R. at 64-67.) When he arrived at the park, he observed the Mother laying next to
the vehicle on the ground with the driver’s side door open. (C.R. at 67.) Two people
were standing next to her, whom he later identified as the Child’s father (Father) and
an acquaintance or friend of the Mother (Friend). (Id.) When Officer Ayers reached
the Mother, she was unconscious and not breathing, so he administered Narcan. (Id.)
A few moments later, the Mother began gasping for air and regained consciousness.
(C.R. at 68.) Emergency Medical Services (EMS) then arrived on the scene to
provide medical treatment to the Mother. (C.R. at 68-69.)
      Officer Ayers testified that, soon after EMS arrived at the scene, his police
partner arrived and found the Child buckled in a car seat in the backseat passenger
side of the Mother’s vehicle. (C.R. at 70, 74.) All the windows in the vehicle were
“up” and the only door that was open was the driver’s door. (Id.) Officer Ayers
testified that the Child did not appear to be in any kind of distress and was not crying
when the Father took him out of the car for EMS personnel to examine the Child at
the scene. (C.R. at 72, 73.)
      Officer Ayers testified that, after EMS transported the Mother away from the
scene by ambulance, he spoke with the Father and the Friend. (C.R. at 73.) The
Father and the Friend told him that the Child “was with [the Mother], and they were
to be meeting [the Father] and the Friend at the park so that [the Father] could . . .
see [the Child.]” (C.R. at 74.) The Father also told Officer Ayers that when the
Friend and he arrived at the Mother’s vehicle, they found the Mother passed out in
the driver’s seat. (Id.) They then opened the driver’s side door and brought the
Mother down to the pavement. (C.R. at 80.) Officer Ayers testified that, during the
course of his investigation, he learned that the Mother and the Father were married


                                           3
but were not living in the same house and that the meeting at the park that day was
like a “custody exchange” so that the Father could see the Child. (C.R. at 74.)
       In response to questions from the ALJ, Officer Ayers testified he was
uncertain how long the Mother was in that condition before he arrived, the car was
not parked under a tree, there was no shade where the car was parked, the color of
the Mother’s vehicle was black, and he did not believe that the Mother’s car windows
were tinted. (C.R. at 81-84.) Officer Ayers confirmed for the ALJ that, as stated in
the third paragraph of the Affidavit of Probable Cause, he knew the temperature
outside was 90 degrees because he checked the thermometer in his police vehicle.
(C.R. at 69.) The ALJ later admitted into evidence, without the Mother objecting,
the Criminal Complaint and Affidavit of Probable Cause that Officer Ayers
completed, describing the June 17, 2018 incident.3 (C.R. at 68, 69, 106, 107.)


       Officer Ayers’ signed Affidavit of Probable Cause, which was part of the Criminal
       3

Complaint filed against the Mother on June 17, 2018, contained the following averments:
                1.) On or about 1557 hours officers were dispatched to . . . [the park]
                for a report of a female [who] had overdosed. Upon arrival I found
                the [Mother], on the ground outside of her vehicle . . . not breathing
                and [with] a faint pulse. The [Mother] began to wake up after
                NARCAN was administered.
                2.) The [Mother] later admitted that she used heroin in the grass
                area of the park.
                3.) Inside the vehicle was [the Child] (one year old), the Mother’s
                son, strapped in his car seat. Upon arrival of [the Father], [the
                Mother’s] husband, he found that [the Mother] was seated in the
                vehicle, not running, and no windows down. The current
                temperature at the time was ninety degrees.
                4.) [The Mother] and [the Child] were the only ones present when
                [the Mother] went unconscious.
                5.) Based on the above facts and circumstances, I respectfully
                request that [the Mother] be made to answer these charges.
(C.R. at 30.)
                                                  4
      CYS next called Caseworker Tamayo, who testified that she is employed by
CYS and works in the Child Protective Services unit. (C.R. at 89, 90.) Caseworker
Tamayo, as part of the CYS investigation of the June 17, 2018 incident, testified that
she relied upon Officer Ayers’ Criminal Complaint and Affidavit of Probable Cause
and interviewed Officer Ayers, the Mother, and the Father. (C.R. at 97, 98.)
      Caseworker Tamayo testified that when she interviewed the Father a few days
after the incident, the Father told her that when he was answering questions from
Officer Ayers, he was “feeling flustered and confused . . . and nervous due to the
situation that was going on.” (C.R. at 95.) The Father told her that the Mother, the
Child, and he all arrived there together. (Id.) When the Mother walked away, he
did not know she was going to use heroin. (Id.) Similarly, Caseworker Tamayo
testified that the Mother, when she was interviewed, told her that the Father, the
Child, and she went to the park together, and she walked away from the Father and
Child to meet the Friend who was her drug dealer. (C.R. at 97, 98.) Caseworker
Tamayo testified that despite what the Mother and Father told her during their
investigation interviews, she relied on Officer Ayers’ report and her interview with
him when she concluded that the Child was with the Mother in the car when she
overdosed. (C.R. at 92.)
      Caseworker Tamayo further testified that she prepared the Investigation
Outcome Report about the June 17, 2018 incident when she completed her
investigation on August 16, 2018. (C.R. at 17-25, 92.) The ALJ later admitted into
evidence, without the Mother objecting, Caseworker Tamayo’s Investigation
Outcome Report and the Criminal Complaint and Affidavit of Probable Cause that
Officer Ayers completed describing the June 17, 2018 incident. (C.R. at 68, 69,
106, 107.)


                                          5
                               B. The Mother’s Case
       The Mother, pro se, called the Father to testify. (C.R. at 109.) The Father
testified that, on June 17, 2018, when the Mother, the Child, and he got to the park,
they crossed the street and walked up a trail. (C.R. at 116.) The parents played with
the Child, “having him walk as best he could at that young age.” (Id.) At some
point, the Mother told him that she had to go back to the car but would be “right
back.” (Id.) The Father stayed on the trail with the Child. (Id.) After a while, the
Father became concerned when the Mother did not return, and he then walked back
to the car. (Id.)
       The Father testified that, as he approached the car, he felt something was
wrong, so he “ran up there, and [he] put [the Child] in the car seat quickly because
[he] didn’t want him . . . in the parking lot [] [w]ith any, like, potential risks from
cars coming or going.” (C.R. at 117.) After he put the Child in the car seat, he saw
the Friend there. (Id.) At that point, the Friend ran over to ask him what was wrong,
so he handed her his cell phone and asked her to call 911. (Id.) He pulled the Mother
out of the car and tried to resuscitate her until the paramedics arrived within 5 to 10
minutes. (Id.) “Time was really . . . flying at that point,” and he was in a state of
shock, so his “perception of time was not very. . . precise.” (Id.)
       The Father testified that the police arrived, and they administered Narcan to
the Mother. (C.R. at 119.) After the paramedics started attending to the Mother, the
police asked him about the “needle” and began to search for paraphernalia when an
officer saw the Child in the back seat of the car. (Id.) The Father got the Child out
of the car and held the Child while the paramedics checked the Child to make sure
he was okay. (Id.) The Father testified that when he removed the Child from the



                                          6
vehicle, he was totally asleep and a “bit sweaty as to be expected,” but the Child did
not seem to be in distress. (C.R. at 120, 121.)
      As to his statement to the police, the Father testified that he was in a state of
“shock” and “does not remember all the details.” Specifically, he testified:
             I was, like, my mind was just racing at that point. But,
             like, so many different possibilities were racing through
             my mind of, like, really horrible scenarios and situations,
             and like what had just happened. And, like, where-where
             in God’s name you’d just gotten this drug. Like how long
             had-your relapse had been, and things like that. Like all
             these different factors that I didn’t-I wasn’t thinking. It
             kind of hit me from left field all at once in that situation.
             So I was kind of grappling with the situation
             psychologically.

(C.R. at 121.) The Father testified that he has Asperger’s Syndrome, which affects
social skills and communications, so he tends to take things more literally and is
awkward in social situations. (C.R. at 121, 122.) The Mother asked the Father if his
Asperger’s Syndrome affected him when the police questioned him, and he testified
“definitely,” because “there’s a reflex that kind of kicks in under a situation of
extreme stress . . . [i]t’s kind of a mental reflex that kicks in where . . . things . . .
don’t sink in . . . it doesn’t quite hit me that-the seriousness of whatever it was that
just happened . . . in the moment until afterward.” (Id.)
      When asked by the Mother if he read Officer Ayers’ Affidavit of Probable
Cause and agreed with that statement that the Mother was alone in the vehicle with
the Child, the Father replied that he read it but that the Mother was not alone with
the Child. (C.R. at 122, 123.) The Father testified that, when the police asked him
if the Mother was “alone” in the car, he said “yes,” but the police must have meant
“alone with the Child” when he meant the Mother was alone without the Child.
(C.R. at 123.)

                                            7
      The Father, on cross-examination, testified that he did not remember if the
windows in the car were “up” when he returned to the Mother’s vehicle and buckled
the Child into the backseat. (C.R. at 129.) The Father testified that he did not believe
that the Child would be harmed when he placed him in the car seat to revive the
Mother. (C.R. at 132.)
      After the Father’s testimony concluded, the Mother testified that the Child
was not alone in the car with her when she overdosed on June 17, 2018, and that the
Child was never alone in the car unattended without her husband being present, and,
therefore, she does not believe her Child was in any danger. (C.R. at 137, 138.) The
Mother testified that she picked the park that day because it was close to where her
Friend was going to be. (Id.) The day before, the Mother and the Father took both
their children to two other parks, which is why her daughter did not want to go with
them that day. (Id.) The Mother testified that her desire to use was caused by the
stress of having lost their house, and they were trying to regain a footing and find a
way to come back together as a family. (Id.) She did not want her husband to know
she was using again, so she had to orchestrate something so he would not be aware.
(C.R. at 139.)
      The Mother testified that the Father, the Child, and she went to the park
together and were there for about 20 minutes before the Friend got there and texted
her to meet her at the Friend’s car. (Id.) The Mother left her husband and the Child
in the trail area and walked back to the Friend’s car to meet her, where the Friend
gave her the drugs. The Mother returned to her own vehicle, and she overdosed.
(Id.) The Mother testified that the first thing she remembers is seeing, from the back
of the ambulance, the Father holding the Child, the Friend standing next to him, and
the police officer standing next to them. (C.R. at 139, 140.) The Mother concluded


                                           8
her direct testimony by saying that it is important to her that this incident does not
follow her, because she is an involved mother who takes her children to sports and
is involved with field trips at school, and she wants to continue to do that. (Id.)
      The Mother, on cross-examination, testified that the Father’s statement to the
police was in error because he was confused by the questions and that the police
claimed the Father made statements that he did not make. (C.R. at 154.) The Mother
testified that, although she observed the police talking to the Friend, the Affidavit of
Probable Cause does not mention the Friend. (Id.) The Mother testified that the
Father’s Asperger’s Syndrome makes him want to please people, and, because he
was concerned about the Mother and the Child, he could have been agreeing to what
the Friend was saying without even realizing what she was saying.
(C.R. at 154, 155.) The Mother testified that the Friend made up the whole story to
keep herself out of trouble. (C.R. at 155.)
               C. The ALJ’s Recommendation and Adjudication
      The ALJ issued a recommended adjudication on August 12, 2019, sustaining
the Mother’s appeal and directing DHS to expunge the indicated report from the
ChildLine Registry. (C.R. at 42.) The ALJ, in his adjudication, made the following
findings of fact:
             1. [The Child] is a male born in May 2017, 11[]months
             old during the alleged abuse, and two (2) years old as of
             the May 29, 2019 hearing.
             2. The Appellant E.M., is the [M]other of the subject
             [C]hild.
             3. As of June 2018, the [Mother] was separated from her
             husband, [the Father], but they remained amicable and
             shared physical custody of the [C]hild.
             4. On June 17, 2018, the [Mother] with the [C]hild and
             [the Father] went to Conestoga Park to spend time
             together.

                                           9
5. While at the park, the [Mother] met her drug dealer at
her vehicle, injected herself with heroin, and become [sic]
unconscious in the vehicle from overdosing on the heroin.
6. The [Mother’s] drug dealer took the needle the
[Mother] used to inject the heroin from the [Mother’s]
vehicle.
7. At some point, [the Father] went to the [Mother’s]
vehicle, discovered that the [Mother] overdosed,
called 911 around 3:52 p.m., put the [Mother] on the
ground next to the vehicle, and began CPR on her.
8. [Officer Ayers] arrive[d] within five (5) minutes of
the 911 call being placed to find the [Mother] on the
ground next to her vehicle while [the Father] provided her
with CPR.
9. [Officer Ayers] did not find the [C]hild was in distress
from heat despite the outside temperature being
90 degrees, the vehicle being located in full sunlight and
not running, and its windows and doors being shut, except
the driver’s door being open.
10. On June 17, 2018, [CYS] received a referral that the
[Mother] created a reasonable likelihood of bodily injury
to the [C]hild during the June 17, 2018 incident.
11. [Caseworker Tamayo] conducted the child abuse
investigation for [CYS] and interviewed the [Mother] and
[the Father].
12. On August 16, 2018, [CYS] completed its child abuse
investigation and filed an indicated report of child abuse
listing the [Mother] as a perpetrator of child abuse to the
[C]hild for creating a reasonable likelihood of bodily
injury based on [the Father] reporting to [Officer Ayers]
that he found the [Mother] in her vehicle unconscious with
the [C]hild when he went to meet them at the park on
June 17, 2018.
13. On August 17, 2018, [DHS] mailed [to] the [Mother]
notification that she was listed on the ChildLine Registry
as a perpetrator of child abuse to the [C]hild in an indicated
report of abuse.
14. On November 9, 2018, the [Mother] filed an appeal
requesting a hearing.

                             10
              15. The testimony of [Officer Ayers] and [Caseworker
              Tamayo] was credible.
              16. The testimony of [the Father] and the [Mother]
              asserting that [the Father] was always with the subject
              [C]hild while at the park on June 17, 2018[,] was not
              credible.

(C.R. at 44, 45 (citations omitted).) Nevertheless, the ALJ determined that CYS
provided less than substantial evidence that the Mother was alone with the subject
Child when she overdosed on heroin on June 17, 2018, because: (1) CYS’ case was
based upon uncorroborated hearsay evidence; and (2) the Child did not suffer any ill
effects, so, therefore, the Child was not without supervision for a very long period
of time. (C.R. at 50.) BHA adopted the ALJ’s recommended adjudication in its
entirety. (C.R. at 41.) CYS then petitioned this Court for review.
                                         II. ISSUES
       On appeal,4 CYS argues that DHS erred in concluding that Officer Ayers’
testimony regarding the Father’s statements on June 17, 2018, constituted
uncorroborated hearsay testimony that could not be considered in reaching a
determination. CYS also argues that DHS committed an error of law by incorrectly
applying the statute’s definition of “creating a likelihood of bodily injury to a child
through any recent act or failure to act.” See 23 Pa. C.S. § 6303(b.1)(5). In response,
DHS argues that it properly ordered the expungement of the indicated report of abuse
because CYS failed to establish the substantial evidence necessary to support the
finding of child abuse.




       4
        “This Court’s scope of review in expunction proceedings is limited to a determination of
whether constitutional rights were violated, whether errors of law were committed, or whether
necessary findings of fact are supported by substantial evidence.” E.D. v. Dep’t of Pub. Welfare,
719 A.2d 384, 387 (Pa. Cmwlth. 1998).
                                               11
                                 III. DISCUSSION
      “The proper inquiry into whether an indicated report of child abuse should be
expunged or maintained is whether the report is accurate.” L.S. v. Dep’t of Pub.
Welfare, 828 A.2d 480, 483 (Pa. Cmwlth. 2003). “[CYS] has the burden of
establishing by substantial evidence that an indicated report of child abuse is
accurate. If CYS fails to sustain that burden, a request for expungement will be
granted.” Bucks Cty. Children & Youth Soc. Servs. Agency v. Dep’t of Pub.
Welfare, 808 A.2d 990, 993 (Pa. Cmwlth. 2002).
                  A. Admissibility of Officer Ayers’ Testimony
      With regard to Officer Ayers’ testimony about the Father’s statements at the
scene, to which the Mother did not object, CYS argues that DHS erred in excluding
it from consideration as hearsay because: (1) corroborating evidence existed in the
form of Officer Ayers’ first-hand observations of the scene; and (2) the Father’s
statements constituted an “excited utterance” and, therefore, are subject to a hearsay
exception.   CYS seems to argue that, because the ALJ found Officer Ayers’
testimony credible, the ALJ should have found his testimony regarding the Father’s
statements at the scene to be substantial evidence that the Mother was alone with the
Child when the Mother overdosed on heroin.
      Hearsay is a statement, other than the one made by a declarant while testifying
at the trial or hearing, offered into evidence to prove the truth of the matter asserted
in the statement. Pa. R.E. 801(c). Generally, hearsay is not admissible under the
Pennsylvania Rules of Evidence. Pa. R.E. 802. We recognize, however, that
“Commonwealth agencies [are] not . . . bound by technical rules of evidence at
agency hearings, and all relevant evidence of reasonably probative value may be



                                          12
received.” A.Y. v. Dep’t of Pub. Welfare, Allegheny Cty. Children & Youth Servs.,
641 A.2d 1148, 1150 (Pa. 1994) (citing 2 Pa. C.S. § 505).
      We have consistently applied the following standard, referred to as the Walker
Rule, to determine whether hearsay evidence is admissible at administrative
proceedings:
               (1) Hearsay evidence, [p]roperly objected to, is not
               competent evidence to support a finding of [an agency][;]
               (2) Hearsay evidence, [a]dmitted without objection, will
               be given its natural probative effect and may support a
               finding of [an agency], [i]f it is corroborated by any
               competent evidence in the record, but a finding of fact
               based [s]oley on hearsay will not stand.

Rox Coal Co. v. Workers’ Comp. Appeal Bd. (Snizaski), 807 A.2d 906, 915
(Pa. 2002) (citing Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366,
370 (Pa. Cmwlth. 1976)). The Walker Rule “need not be considered if evidence is
admissible under an exception to the hearsay rule.” Estate of Fells by Boulding v.
Unemployment Comp. Bd. of Review, 635 A.2d 666, 669 (Pa. Cmwlth. 1993), appeal
denied, 647 A.2d 905 (Pa. 1994).
      One of the more well-established exceptions to the inadmissibility of hearsay
evidence is commonly referred to as the “excited utterance exception,” and it is set
forth among other hearsay exceptions in Pennsylvania Rule of Evidence 803.
Specifically, Rule 803(2) defines an “excited utterance” as:
               A statement relating to a startling event or condition, made
               while the declarant was under the stress of excitement that
               it caused. When the declarant is unidentified, the
               proponent shall show by independent corroborating
               evidence that the declarant actually perceived the startling
               event or condition.




                                           13
Pa. R.E. 803(2). A statement meets the requirements of this hearsay exception if it
is:
              A spontaneous declaration by a person whose mind has
              been suddenly made subject to an overpowering emotion
              caused by some unexpected and shocking occurrence,
              which that person had just participated in or closely
              witnessed, and made in reference to some phase of that
              occurrence which he perceived, and this declaration must
              be made so near the occurrence both in time and place as
              to exclude the likelihood of its having emanated in whole
              or in part from his reflective faculties.

Cmwlth. v. Jones, 912 A.2d 268, 282 (Pa. 2006). “[T]here is no clear-cut rule as to
the time sequence required for a statement to qualify as an excited utterance, but
rather that fact-specific determination is to be made on a case-by-case basis.”
Cmwlth. v. Boczkowski, 846 A.2d 75, 95-96 (Pa. 2004).
       “In assessing a statement offered as an excited utterance, the court must
consider, among other things, whether the statement was in the narrative form, the
elapsed time between the startling event and the declaration, whether the declarant
had an opportunity to speak with others and whether, in fact, she did so.” Cmwlth. v.
Carmody, 799 A.2d 143, 147 (Pa. Super. 2002). “‘[T]he crucial question, regardless
of the time lapse, is whether, at the time the statement is made, the nervous
excitement continues to dominate while the reflective processes remain in
abeyance.’” Id. (quoting Cmwlth. v. Gore, 396 A.2d 1302, 1305 (Pa. Super. 1978)).
“It is ‘the spontaneity of . . . an excited utterance [that] is the source of the reliability
and the touchstone of admissibility.’”            Id. (quoting Cmwlth. v. Chamberlain,
731 A.2d 593, 596 (Pa. 1999)).
       For example, a hearsay statement made fifteen minutes after an incident in
response to a question by a police officer may still be admissible as an excited
utterance. Cmwlth. v. Penn, 439 A.2d 1154, 1159 (Pa.), cert. denied, 456 U.S. 980
                                             14
(1982). In Penn, a child witnessed the stabbing death of his mother and immediately
ran to a neighbor’s house one block from the scene of the crime. Penn, 439 A.2d at
1159. The child and neighbor returned to the crime scene fifteen minutes later and,
while watching his mother, still alive, being carried out on a stretcher, the child
responded to a question by one of the officers, stating “Walter Penn stabbed his
mother.” Id. The trial court found that the child was visibly upset and shaken since
witnessing the stabbing of his mother and noted that the “fact that the boy’s
statement was not made immediately after the stabbing does not preclude its
spontaneity.” Id. The trial court admitted the child’s statement into evidence using
the “excited utterance” exception to the hearsay rule. Id.
      Based upon that legal framework, we must first consider whether Officer
Ayers’ testimony as to the Father’s statements constitute hearsay evidence admitted
without objection. If so, we must then consider whether the statements are subject
to an exception to hearsay, in this case the excited utterance exception, such that the
statements are admissible without consideration of the Walker Rule. If not, then we
must consider whether corroborating evidence exists within the record, such that the
statements are admissible under the Walker Rule.
      Officer Ayers testified that the Father and the Friend told him that the Child
“was with [the Mother], and they were to be meeting [the Father] and [the Friend] at
the park so that [the Father] could . . . see [the Child.]” (C.R. at 74.) Officer Ayers
testified that the Father told him that when the Friend and he arrived at the Mother’s
vehicle, they found the Mother passed out in the driver’s seat, opened the driver’s
side door, and brought the Mother down to the pavement. (C.R. at 74, 80.) Officer
Ayers’ testimony about what the Father told him on the day of the incident is
hearsay. Moreover, the Mother did not object to the hearsay testimony during the


                                          15
hearing. Thus, the Father’s statements as testified to by Officer Ayers constitute
hearsay testimony admitted without objection.
       As to whether the Father’s statements are subject to an exception to the
hearsay rule, specifically the “excited utterance” exception, the record establishes
that the Father’s discovery of the Mother unconscious in the vehicle from an
overdose was a sudden and stressful situation for him. Both the Father and Officer
Ayers provided competent evidence that the Father was attempting to resuscitate the
unconscious Mother moments before Officer Ayers arrived at the scene. The record
also establishes that the discussion between Officer Ayers and the Father occurred
when the Mother was with EMS in the ambulance receiving treatment from the
overdose and very close in time to the stressful event. The Father testified that, when
he spoke with Officer Ayers, he was in a “state of shock,” and Officer Ayers testified
that the Father was “distressed.” (C.R. at 121, 76.) In either case, it is clear that the
Father’s statements to Officer Ayers were made when the nervous excitement
continued to dominate him and the reflective process was still in abeyance. Further,
the Father had made the statements before he had the opportunity to discuss the
matter in detail with the Friend or the Mother. We, therefore, conclude that the
Father’s statements to Officer Ayers on the day of the incident constitute an “excited
utterance” and are admissible as an exception to the hearsay rule.
       Thus, we agree with CYS that DHS erred in excluding Officer Ayers’
testimony as to statements made by the Father at the scene of the incident. Based
upon the credibility determinations set forth in the adjudication, the Father’s
statements constitute substantial evidence that the Child was alone in the car with
the Mother who had overdosed.5

       5
         The substantial evidence standard established by Section 6303(a) of the CPSL, 23 Pa.
C.S. § 6303(a), differs from the substantial evidence standard typically used in administrative law.
                                                16
       We now consider whether DHS committed an error of law by incorrectly
applying the statute’s definition of child abuse. Section 6303(b.1) of the CPSL,
23 Pa. C.S. § 6303(b.1), provides, in part:
               (b.1) 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.
                      ....
                      (5) Creating a reasonable likelihood of bodily injury
                      to a child through any recent act or failure to act.

       CYS maintains that the Mother’s actions on June 17, 2018, constituted “child
abuse”6 because she intentionally, knowingly, or recklessly created a reasonable
likelihood of bodily injury7 to the Child when she overdosed on heroin while alone
with the Child in her vehicle. The ALJ stated in his adjudication:
               [CYS] provided less than substantial evidence that [the
               Mother] was alone with the [Child] when she overdosed
               on heroin on June 17, 2018. [CYS] relied upon [the
               Father’s] June 17, 2018 statement to [Officer Ayers] to
               conclude that the [Mother] arrived at the park with the
               [Child] in her vehicle[’s] back seat, overdosed on the
               heroin with the [C]hild in the vehicle and then the
               [Mother] and [the Child] were discovered by [the Father],

Courts typically define “substantial evidence” as “relevant evidence upon which a reasonable mind
could base a conclusion.” Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740
(Pa. Cmwlth. 1986). Substantial evidence, as defined by Section 6303(a) of the CPSL, however,
is “[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept
as adequate to support a conclusion.”
       6
         We note that the Child meets the CPSL’s age requirement to be classified as a victim of
child abuse because he was less than 18 years of age when this incident took place on
June 17, 2018. See 23 Pa. C.S. § 6303(a). Further, we note that the Mother may be classified as
a perpetrator of child abuse to the Child. See id.
       7
         “Bodily Injury” is defined as “[a]n impairment of physical condition or substantial pain.”
23 Pa. C.S. § 6303(a).

                                                17
             who called 911 and started CPR on the [Mother.]
             However, [the Father’s] hearsay to [Officer Ayers] could
             not be used to find the [Mother] was alone with the [Child]
             in her vehicle before [the Father] arrived as alleged in the
             report because it was not corroborated by other admissible
             evidence.
(C.R. at 50.) As a result of our decision that Officer Ayers’ testimony that the Father
told him that the Mother was alone with the Child in the vehicle constitutes
admissible evidence, Officer Ayers’ testimony can now be used to meet CYS’
burden to prove that the Mother was alone with the Child when she overdosed on
heroin.
      We also take into consideration Caseworker Tamayo’s testimony that despite
what the Mother and Father told her during their investigation interviews, she did
not find their information satisfactory, and she relied on Officer Ayers’ report and
her interview with him when she concluded that the Child was with the Mother in
the car when she overdosed. In this regard, we are mindful that the ALJ found
Officer Ayers’ and Caseworker Tamayo’s testimony credible, the Mother’s and
Father’s testimony not credible, and that Officer Ayers and Case Worker Tamayo
“lacked a demonstrated motivation to fabricate testimony.” (C.R. at 46, 50.)
      Based upon the ALJ’s credibility determinations and the now-admissible
statements of the Father, CYS met its burden to prove that the Mother created the
reasonable likelihood of bodily injury to the Child when she overdosed on heroin
while alone with the Child in the vehicle. The ALJ focused on Officer Ayers’
testimony that, when the Child was removed from the vehicle, he was not in distress.
The ALJ concluded that, in such a short period, the Child suffered no ill effect from
being in the hot vehicle. Thus, it appears that the ALJ considered whether the
Mother caused bodily injury to the Child—i.e., Section 6303(b.1)(1) of the CPSL—
rather than whether the Mother created a reasonable likelihood of bodily injury to

                                          18
the Child—i.e., Section 6303(b.1)(5) of the CPSL—through a recent act or failure
to act.8 Although how the Child appeared after being removed from the vehicle and
the duration of time he was in the vehicle are relevant considerations, other
considerations are relevant to the analysis as well. Here, the Mother overdosed while
alone with an eleven-month-old child strapped in a car seat in the back seat of the
car with the doors shut and the car windows rolled up on a hot day in a public park.
Moreover, based on the aforementioned circumstances, we conclude that the Mother
acted “recklessly” through her actions on June 17, 2018.9 Based on the record before
us, CYS met its burden to prove that the Mother created a reasonable likelihood of
bodily injury to the Child when she overdosed on heroin while alone with the Child
in her vehicle. For these reasons, we agree with CYS that DHS erred in concluding
that the Mother should not be placed on the ChildLine Registry based on CYS’
indicated report of child abuse.




       8
         Caseworker Tamayo’s Investigation Outcome Report specifically categorized the
“abuse/neglect” as “Creating A Reasonable Likelihood Of Bodily Injury To A Child Through Any
Recent Act/Failure To Act.” (C.R. at 10.)
       9
         Pursuant to Section 6303(a) of the CPSL, 23 Pa. C.S. § 6303(a), the terms “knowingly,”
“intentionally,” and “recklessly” have the same meaning under the CPSL as they do under
Section 302 of the Crimes Code, 18 Pa. C.S. § 302. Section 302(b)(3) of the Crimes Code, 18 Pa.
C.S. § 302(b)(3), defines “recklessly” as follows:
              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.

                                               19
                               IV. CONCLUSION
      Accordingly, we reverse DHS’ order which sustained the Mother’s appeal and
direct DHS to maintain the indicated report of child abuse on the ChildLine Registry.




                                         P. KEVIN BROBSON, Judge




                                         20
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lancaster County Children and          :   SEALED CASE
Youth Social Services Agency,          :
                        Petitioner     :
                                       :
            v.                         :   No. 1255 C.D. 2019
                                       :
Department of Human Services,          :
                      Respondent       :



                                     ORDER


      AND NOW, this 1st day of July, 2020, the order of the Department of Human
Services, Bureau of Hearings and Appeals, is hereby REVERSED.




                                       P. KEVIN BROBSON, Judge
