            IN THE COMMONWEALTH COURT OF PENNSYLVANIA



R.W.,                                       :
                                            :
                               Petitioner   :   CASE SEALED
                                            :
                 v.                         :   No. 26 C.D. 2015
                                            :
Department of Human Services,               :   Submitted: August 28, 2015
                                            :
                               Respondent   :



BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE P. KEVIN BROBSON, Judge
                 HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge



OPINION BY
JUDGE COHN JUBELIRER                                  FILED: November 17, 2015

        R.W. (Mother) petitions for review of the Order of the Department of
Human Services (DHS), Bureau of Hearings and Appeals (BHA), that adopted the
Adjudication and Recommendation of an Administrative Law Judge (ALJ) to deny
Mother’s appeal and request to expunge an indicated report naming her as a
perpetrator of child abuse by omission under the Child Protective Services Law
(CPSL).1 Mother argues that the County Office of Children & Youth Services
(CYS) did not meet its burden of proof because there is no evidence that Mother
knew or should have known that any acts of abuse were occurring or that there was
a significant risk to her minor child (Child). Mother contends that her knowledge

        1
            23 Pa. C.S. §§ 6301-6386.
of father’s untreated mental health issues is not sufficient to support the conclusion
that Mother was a perpetrator of child abuse by omission. Mother also argues that
the evidence CYS relied upon was uncorroborated hearsay. Because we conclude
that CYS did not meet its burden of proving that Mother was a perpetrator by
omission, we reverse.


      The facts in this matter, as found by the ALJ and adopted by the BHA, are as
follows. Child is the biological child of Mother and M.B. (Father) (together,
Parents), and was twenty-six months old when, on February 22, 2013, Child
drowned in the bathtub of Parents’ home while in Father’s care. Child was born in
Georgia and lived with Mother’s parents (Grandparents) for about one and one-half
years while Mother finished medical school “because it was too stressful for
[Father] to care for [Child].” (Findings of Fact (FOF) ¶ 10.) While living with
Grandparents, Child took swimming lessons, frequently played in a swimming
pool that contained twelve inches of water, could stand in the pool, and, if water
got on Child’s face, knew to wipe the water off. Child moved to Pennsylvania,
where Parents resided, approximately three months before February 22, 2013.


      On that day, Child was in Father’s care while Mother was at work at a local
hospital as a resident. At some point during the day, Father placed Child in the
bathtub, with five inches of water in it, for a bath. Both Parents “allowed [Child]
to be unsupervised in the bathtub.” (FOF ¶ 21.)


      Child drowned in the bathtub, vomit was found in the bathtub, and there
were bruises on Child’s head. The County District Attorney’s Office (DA Office)


                                          2
conducted a criminal investigation; it was determined that “[C]hild died from
cardiac arrest and asphyxiation/drowning[,] and the death was deemed a
homicide.” (FOF ¶¶ 22-23.) During an interview with the DA Office’s Detective
(Detective), Mother was asked “what she thought happened to [Child], [and
Mother] disclosed that [Father] may have done something to her [C]hild.” (FOF ¶
27 (internal quotation marks omitted).) However, Mother also stated that “she
believed [that Father] would never hurt anyone especially [Child]” and Child could
have gotten into Father’s sleeping pills. (Detective’s Report at 2, R.R. at 148a.)


      CYS performed an investigation that reviewed Child’s medical records, the
reports of law enforcement officials, and some of Father’s medical records. From
these records, CYS learned that “[C]hild was non-verbal and [Mother] was
concerned about [Child’s] lack of speech.” (FOF ¶ 28.) CYS also learned that
Father “had a history of mental health issues, including paranoid schizophrenia and
psychosis,” of which Mother was aware.2 (FOF ¶ 15.) About a month prior to the
February 22, 2013 incident, Father “had become increasingly paranoid and
believed that his family was involved in a conspiracy with the FBI and Homeland
Security and they were after him.” (FOF ¶ 16.) Father “moved out of the master
bedroom, would put tape on the light switches and record phone calls.” (FOF ¶
17.) Mother knew that Father had seen a psychiatrist before Child’s death and had
been prescribed medication; had not returned to the psychiatrist and was not taking
the prescriptions; and was not receiving any mental health treatment. Mother’s
father, a retired psychiatrist, had expressed concerns to Mother regarding Father
caring for Child.

      2
          Father was admitted into a hospital on the night of February 22, 2013.

                                                 3
       Based on its investigation, CYS filed an indicated report naming Mother “as
the perpetrator, for physical neglect, by omission, upon [Child], specifically in the
form of lack of supervision.”3 (FOF ¶ 1.) Mother appealed and a hearing was held
before the ALJ. CYS presented the testimony of various keepers of Child’s and
Father’s medical records, Detective, and the CYS caseworker that investigated this
matter. CYS also entered as evidence, among other things, the Detective’s Report,
Child’s medical records, and Father’s medical records in which Mother made
statements reflecting her knowledge of Father’s history of mental illness. Mother
did not testify at the hearing.


       CYS argued that Mother “failed to protect [Child] from [Father] and knew
or should have known that [Father] presented a threat of danger to [Child].”
(Adjudication at 5.) Specifically, CYS contended that Mother, “who is employed
in the health care field,” knew that Father’s mental health issues were not treated
and were getting worse and did not “remove [Child] from harm’s way.”
(Adjudication at 5.) Mother asserted that CYS had not met its burden of proving
that she was a perpetrator by omission.


       The ALJ set forth the following applicable law: in reviewing an allegation
of child abuse by omission, the standard “is whether a reasonable person in the
position of the parent knew or should have known that acts of abuse were
occurring and whether the parent failed to take steps to remove child from harm’s


       3
         CYS also filed an indicated report of child abuse against Father “as the perpetrator, for
physical neglect, upon [Child], specifically in the form of lack of supervision.” (FOF ¶ 2.)
Father did not appeal his indicated report.

                                                4
way.” (Adjudication at 6, 8 (citing Bucks County Children and Youth Social
Services Agency v. Department of Public Welfare, 616 A.2d 170 (Pa. Cmwlth.
1992) (Bucks County)).) The ALJ further indicated that, to meet its burden, CYS
had “to present substantial evidence that [Mother] knew or should have known of
the significant risk to the subject child and failed to take protective measures.”
(Adjudication at 6 (citing L.S. v. Department of Public Welfare, 828 A.2d 480 (Pa.
Cmwlth. 2003)).)


       After reviewing the facts under these standards, the ALJ concluded that “a
reasonable person in [Mother’s] position would have known that [Father], with his
untreated mental health issues, presented a threat of danger to [Child] and failed to
remove [Child] from harm’s way.” (Adjudication at 8.) The ALJ observed that
Mother had ignored her father’s warning and her own observations regarding
Father’s mental condition and allowed Father to be alone with Child. The ALJ
also stated that Mother knew that Father “regularly allowed [Child] to be in the
bathtub without supervision,” did not correct that behavior, and “[a] reasonable
person knows or should have known that leaving a two year old child unsupervised
in the bathtub places a child at risk for drowning,” particularly where Child
appeared to have developmental delays4 and was left with an individual with
untreated mental health issues. (Adjudication at 9.) The ALJ concluded that:

       the evidence clearly establishes that [Mother] totally disregarded the
       complete danger to [Child’s] life when she left [Child], a

       4
          We note that the ALJ, and CYS, repeatedly refer to Child as having been
developmentally delayed. Although Child had not yet learned to speak, Mother indicated that,
otherwise, Child “was a healt[h]y normal 2 year old.” (Detective’s Report at 1, R.R. at 147a.)



                                              5
       developmentally delayed two year old, unsupervised in a bathtub and
       was aware of [Father’s] extensive past and recent untreated mental
       health issues and continued to allow him to care for [Child].
       [Mother’s] behavior in this case can be construed as a gross deviation
       from the standard of care that a reasonable person would observe.

(Adjudication at 9.) Accordingly, the ALJ recommended that Mother’s appeal be
denied. The BHA adopted the ALJ’s Adjudication and Recommendation in its
entirety and denied Mother’s appeal. Mother now petitions this Court for review.5


       On appeal, Mother argues that CYS did not meet its burden of proving that
she was a perpetrator by omission. This standard, Mother asserts, required CYS to
establish that a reasonable person in her position “knew or should have known that
acts of abuse were occurring” and “failed to take steps to remove [Child] from
harm’s way.”       (Mother’s Br. at 18 (citing Bucks County, 616 A.2d at 174)
(emphasis provided by Mother).) According to Mother, there was no reason for
her to know that Father was a threat to Child’s safety because there was no
evidence that acts of abuse were occurring, that Father had attempted to abuse
Child, threatened Child’s safety, or that it was not unreasonable for Father, like
her, to leave Child, who had swimming lessons and was familiar with water,
briefly unattended in the bathtub. Mother argues that, in focusing on Father’s
mental health issues, CYS is attempting to create a new standard for child abuse by
omission that suggests that those who have mental illnesses are “unfit to rear a
child” and acts to “put the other parent on notice, despite the lack of any evidence


       5
        “This Court’s review is limited to determining whether legal error has been committed,
whether constitutional rights have been violated, or whether the necessary findings of fact are
supported by substantial evidence.” F.R. v. Department of Public Welfare, 4 A.3d 779, 782 n.7
(Pa. Cmwlth. 2010).

                                              6
demonstrating the other parent is a danger, that he or she is committing child abuse
by omission because they [sic] do not take [the] child away.” (Mother’s Reply Br.
at 10-11.)


       CYS does not dispute that there was no evidence of prior abuse of Child by
Father. CYS asserts, however, that such evidence was not required to prove that
Mother committed child abuse by omission by placing Child’s safety at risk when
she left Child with Father, whom Mother knew had untreated and deteriorating
mental health conditions. CYS contends that Mother’s actions in saving two
emails written by Father in 2008, and her statement to Detective that she thought
that maybe Father had done something to Child, demonstrates that Mother knew
that Child was in danger if left in Father’s care and is proof that she is a perpetrator
of child abuse by omission. Furthermore, CYS argues that because a reasonable
person would not leave a two year old child unattended in a bathtub, Mother’s
actions in allowing Father to do so also demonstrated that she did not remove
Child from harm’s way when she left Child in Father’s care.


       At the time this matter arose, “child abuse” was defined in the CPSL, in
pertinent part, as “[a]ny recent act or failure to act by a perpetrator which causes
nonaccidental serious injury to a child under 18 years of age.” Section 6303(b)(i)
of the CPSL, 23 Pa. C.S. § 6303(b)(i) (emphasis added).6 Because Mother is

       6
         Many of the definitions in the CPSL, including the definition of “child abuse,” were
recently amended and new definitions were added effective December 31, 2014 and July 1,
2015. However, because the allegations here arose on February 22, 2013, the prior versions of
the definitions apply in this matter. Child abuse is now defined as, inter alia, “intentionally,
knowingly or recklessly . . . [c]ausing the death of the child through any act or failure to act.”
Section 6303(b.1)(9) of the CPSL, 23 Pa. C.S. § 6303(b.1)(9).

                                                7
accused of being a perpetrator of abuse by omission, it is Mother’s “failure to act”
which must have “cause[d] nonaccidental serious physical injury” in this case. Id.
“Nonaccidental” was defined as “[a]n injury that is the result of an intentional act
that is committed with disregard of a substantial and unjustifiable risk,” 23 Pa. C.S.
§ 6303(a), and is considered the same standard as criminal negligence, Section
302(b)(4) of the Crimes Code, 18 Pa. C.S. § 302(b)(4).7 F.R. v. Department of
Public Welfare, 4 A.3d 779, 787 (Pa. Cmwlth. 2010). The burden of proof in an
expungement hearing is on the county agency to show, by substantial evidence,
that the indicated report is accurate and, if it fails to meet that burden, the request
for expungement will be granted.              Bucks County, 616 A.2d at 174. Section
6303(a) of the CPSL defines substantial evidence as “[e]vidence which outweighs
inconsistent evidence and which a reasonable person would accept as adequate to
support a conclusion.” 23 Pa. C.S. § 6303(a). “[I]n determining whether a finding
of fact is supported by substantial evidence, the Court must give the party in whose
favor the decision was rendered the benefit of all reasonable and logical inferences
that may be drawn from the evidence . . . .” S.T. v. Department of Public Welfare,
681 A.2d 853, 856 (Pa. Cmwlth. 1996).

       7
           Section 302(b)(4) defines “criminal negligence” as:
       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). The new definition of “child abuse” does not refer to nonaccidental
injuries or criminal negligence, but refers to various levels of culpability, including intentionally,
knowingly, and recklessly, which are defined in Section 302 of the Crimes Code, 18 Pa. C.S. §
302. Section 6303(a), (b.1) of the CPSL, 23 Pa. C.S. § 6303(a), (b.1).

                                                  8
       The parties focus on two cases, Bucks County and L.S., in which our Court
evaluated whether a parent or caretaker should remain named as a perpetrator of
child abuse by omission. In these cases, this Court considered whether the alleged
perpetrators disregarded a substantial and unjustifiable risk of abuse to a child by
failing to act to remove the child from harm’s way. In Bucks County, a mother
was identified as a perpetrator by omission for allegedly “fail[ing] to protect [her
daughter] and plac[ing] her in the care of [her mother’s paramour] in spite of the
fact that [mother] knew or should have known that [paramour] had propensities
toward inappropriate sexual conduct with the victim.” Bucks County, 616 A.2d at
173. To establish that mother knew or should have known of the substantial and
unjustifiable risk of paramour’s conduct, the local agency cited an instance
wherein the daughter, mother, and paramour “were in bed together and [paramour]
said: [l]et’s show [daughter] where Mr. Microphone goes,” and a second instance
where paramour struck daughter, knocking out a tooth, and, when daughter told
mother that her mouth was bleeding, mother said shut up and took daughter to the
dentist.   Id. at 172 (internal quotation marks omitted) (second alteration in
original). However, daughter denied telling her mother about the incidents of
sexual abuse that had occurred, and the mother denied knowing about such abuse
until shortly before being contacted by the local agency.        Id. at 174.    The
expungement was initially granted and the local agency appealed to this Court.
Because the factfinder did not resolve conflicts in the testimony and make specific
findings as fact, we remanded for such findings and described the legal standard as
follows:

       the appropriate standard to use to determine whether a parent or
       caretaker is a perpetrator by omission is whether a reasonable person
       in the position of the caretaker[] knew or should have known that acts

                                         9
      of abuse were occurring and the parent or caretaker failed to take
      steps to remove the child from harm’s way.

Id. (bold emphasis added).


      In L.S., an indicated report was filed against a daycare worker after one of
the children she was supervising assaulted another child she was supervising while
she was occupied with other classroom work. L.S., 828 A.2d at 482. The local
agency asserted that the daycare worker was a “perpetrator of child abuse [by
omission] because she did not properly supervise the room,” the assaulting child
had been diagnosed with Attention Deficit Hyperactivity Disorder, was on
medication, and previously had an incident with the victim. Id. The expungement
was initially granted, but the Secretary of Public Welfare (Secretary) disagreed,
instead concluding that the daycare worker “knew or should have known that [the
assaulting child] posed a significant risk to [the victim’s] safety because of [his]
psychological history and his earlier assault on [victim,] and [daycare worker]
failed to take any protective measures.” Id. at 483. On appeal, this Court reversed
the Secretary, finding that the local agency failed to present evidence that the
daycare worker “knew or should have known of the significant risk posed” because
there was no evidence that the daycare worker “had actual knowledge of [the
assaulting child’s] behavioral background,” which was a psychological disorder
and a history of assaulting the victim. Id. at 484.


      After applying the analysis in Bucks County and L.S. to the record here, we
conclude that CYS did not meet its burden of proving that Mother was a
perpetrator by omission based on her leaving Child in the care of Father. Under
the CPSL, in order for Mother to be a perpetrator by omission, she must have
                                          10
disregarded the substantial and unjustifiable risk that Father would abuse Child if
Child was left in Father’s care. 23 Pa. C.S. § 6303(a). CYS argues that, although
in Bucks County this Court phrases the standard as whether the parent “knew or
should have known that acts of abuse were occurring,” Bucks County, 616 A.2d at
174 (emphasis added), a history of abuse is not required. Instead, as described in
L.S., Mother can be a perpetrator by omission if she “knew or should have known
of the significant risk posed by [Father] and failed to take protective measures.”
L.S., 828 A.2d at 484.


       Based on the finding that Mother knew of Father’s history of untreated
mental health issues, that Father left Child in the bathtub without supervision, and
Mother’s after-the-fact statement to Detective that Father may have done
something to Child,8 CYS argues that Mother also knew or should have known that
Father posed a significant risk of physically abusing Child and did not take steps to
protect Child. The parties agree there is no evidence that Father had abused Child
prior to the date of Child’s death, had physically harmed Child, threatened to harm
Child, or had harmed another person, unlike in Bucks County, 616 A.2d at 172-73
or L.S., 828 A.2d at 484. See also C.K. v. Department of Public Welfare, 869
A.2d 48, 57 (Pa. Cmwlth. 2005) (mother was perpetrator where she placed her
children in imminent risk of physical injury or sexual abuse by taking her children
to live with indicated perpetrators of sexual abuse despite being warned of their
status and that she should not leave the children with them); K.S. v. Department of

       8
          The two emails from 2008 cited by CYS neither demonstrated that Father had a history
of abuse nor dangerous or threatening behavior. They appear to reflect Father’s struggles with
his employment at that time, his desire to improve his situation and not to “hit rock bottom,” and
to take things “day by day.” (CYS’s Ex. C-3, R.R. at 150a-52a.)

                                               11
Public Welfare, 564 A.2d 561, 563-64 (Pa. Cmwlth. 1989) (mother was a
perpetrator of child abuse by omission because she knew that her infant sustained
numerous unexplained injuries, including fractures on both legs, while in the care
of others but continued to leave the infant in the care of those individuals).
Mother’s after-the-fact statement is not evidence that she was aware of any such
behavior on Father’s part. In this case, Father had some delusions and paranoia,
which manifested in Father’s sleeping in the basement, placing tape over light
switches, and recording his phone calls. Mother knew that Father and Child had
just returned from a two week vacation during which there were no indications that
anything amiss occurred. (Hr’g Tr. at 94, R.R. at 97a; Detective’s Report at 1,
R.R. at 147a.) Mother also knew that Child had taken swimming lessons and was
familiar with water, which is apparently one of the reasons law enforcement
deemed Child’s drowning in five inches of water a homicide. (Hr’g Tr. at 16-18,
R.R. at 19a-21a.)


      Under these circumstances, Mother’s knowledge of Father’s mental illness
and that he would periodically leave Child unattended in the bathtub did not make
Mother aware that Father posed a significant risk of physically abusing Child such
that her failure to remove Child from Father’s care made her a perpetrator of child
abuse by omission under the CPSL. We recognize that the death of Child under
these circumstances was a tragedy that has unquestionably changed the lives of all
involved and that CYS understandably wants to assure that the responsible parties
are identified; however, even under these tragic circumstances, we cannot focus
solely on the existence of a parent’s mental illness as the basis for placing the other
parent on notice that a child is at substantial risk of child abuse. To do otherwise


                                          12
could conflate the diagnosis and treatment of a mental illness with being a danger
to one’s child. Based on the evidence presented in this case, CYS did not meet its
burden of proving that Mother was a perpetrator by omission.9


       Accordingly, the Order is reversed.


                                              ________________________________
                                              RENÉE COHN JUBELIRER, Judge




       9
        Because of our conclusion that CYS did not meet its burden of proof, we do not address
Mother’s argument regarding the use of uncorroborated hearsay evidence.

                                             13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA



R.W.,                                 :
                                      :
                       Petitioner     :   CASE SEALED
                                      :
             v.                       :   No. 26 C.D. 2015
                                      :
Department of Human Services,         :
                                      :
                       Respondent     :


                                    ORDER

        NOW, November 17, 2015, the Order of the Department of Human
Services, in the above-captioned matter, is hereby REVERSED.




                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
