K.J. v. Pennsylvania Department of Public Welfare

767 A.2d 609, 2001 Pa. Commw. LEXIS 6

• Court: Commonwealth Court of Pennsylvania
• Decided: January 10, 2001
• Status: Published

Opinions

MIRARCHI, Jr., Senior Judge.

K.J. appeals from the final order of the Secretary of the Department of Public Welfare (DPW) affirming a decision of the Bureau of Hearings and Appeals (BHA), which in turn adopted an Adjudication and Recommendation by a hearing officer to deny K.J.’s request to expunge an indicated report, filed against him, of sexual abuse of a child. We affirm.

The Schuylkill County Children and Youth Services (CYS) received a report of suspected child abuse occurring in September 1995, involving K.J. and B.R., a female minor born in December 1988. Gwendolyn Schock, a child abuse investigator for CYS, interviewed B.R., her parents, K.J., and a family friend who disclosed the alleged abuse. After determining that substantial evidence supported the allegations, an indicated report of child abuse was filed against KJ. No criminal charges were brought against K.J., although the police investigated the matter.

K.J. appealed the indicated report filed against him, and a hearing was held. Testifying at the hearing were Ms. Schock, B.R., K.J., and a character witness for K.J. Also introduced at the hearing was a transcription of an audiotaped interview of B.R. by Ms. Schock taken on February 14, 1996, which interview formed the principal basis of the indicated report of child abuse. The hearing officer found the following relevant facts. K.J. was a friend of B.R.’s father and had babysat for B.R. and her sister on a number of occasions. On the day of the incident, K.J. and his wife and infant child babysat for B.R., her sister and one other child at K.J.’s house. KJ.’s wife and child, B.R.’s sister, and the other child went for a fifteen-twenty minute walk. B.R. stayed behind in the house with K.J. at K.J.’s request. K.J. told B.R. that he wanted to play a game and told her to kneel down in front of him while he remained on the sofa. B.R. reported that K.J. pointed to his genital area and asked her to kiss between his legs because he had a boo-boo and it hurt. K.J. tried to push B.R.’s head down between his legs several times, placing his hand on the back of her head. B.R. tried to resist. K.J. then carried B.R. upstairs to his bedroom and repeated his request. K.J. again tried to push B.R.’s head down between his legs several times. B.R. was fully clothed and K.J. was wearing short pants during the incident. Both upstairs and downstairs, B.R. asked K.J. to stop and began crying because he would not. K.J. told B.R. that the game was a secret and began to cry until B.R. promised him that she would not tell. K.J. then took a checkers game from the bedroom and carried it downstairs. When K.J.’s wife returned, K.J. and B.R. were playing checkers on the living room floor. B.R. told no one about the incident until three months later.

Schock testified that there was no skin-to-skin contact between KJ.’s genitalia and B.R., but that there was contact with his pants. B.R., however, testified that she was able to keep her face from his pants. Following the incident, there was no ongoing social contact between K. J. and B.R. K.J. denied the allegations against him and also presented the testimony of his uncle, a Monsignor, who testified that he never witnessed mistreatment by K.J. of children. The Monsignor lived next door to K.J., had almost daily conversations with him, and infrequently had breakfast with him.

Based upon these findings of fact, the hearing officer, finding the testimony of B.R. and Ms. Schock to be credible, determined that the Department presented substantial evidence that the indicated report of child abuse was accurate. One issue that the hearing officer was forced to resolve was whether a sexual assault occurred where it was unclear whether there was any actual contact between B.R.’s face and K.J.’s groin area. The hearing officer concluded that K.J.’s act of forcibly moving B.R.’s head with his hand towards his groin with a request that she kiss it was an attempt to involve B.R. in a sexual act, thus creating an imminent risk of sexual abuse.

After the hearing officer’s Adjudication and Recommendation was adopted by BHA and affirmed by the Secretary, K.J. filed the present appeal with this Court. Our scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether legal error has been committed, or whether constitutional rights have been violated. B.E. v. Department of Public Welfare, 654 A.2d 290 (Pa.Cmwlth.1995). K.J. questions (1) whether the “substantial evidence” test, used by the hearing officer to determine whether the report of child abuse is accurate, is a constitutionally sufficient test given the seriousness of the proceedings; (2) in the alternative, whether there was substantial evidence to support the hearing officer’s findings of fact and conclusions of law; and (3) whether the acts attributed to K.J. fall within the statutory definition of child abuse.

K.J. first argues that the seriousness of the charges against him and the consequences of his inclusion on the central register for child abusers renders the substantial evidence standard used by the hearing officer inadequate to protect his rights. K.J. argues that because the proceedings are allegedly quasi-criminal, threatening to deprive him of his property interests, including his reputation, the hearing officer should have used a “clear and convincing” standard of proof. In support, K.J. cites, among other things, a footnote from a 1991 decision of our Supreme Court in J.S. v. Department of Public Welfare, 528 Pa. 243, 248 n. 2, 596 A.2d 1114, 1116 n. 2 (1991), in which the Court stated:

Although the Appellant did not question the standard of proof required by the Appellee [DPW] in order to maintain the indicated report [of child abuse], this Court is quite troubled by the use of any standard less than requiring clear and convincing evidence. Even though the statute requires substantial evidence, it is quite possible that such a standard does not adequately protect the rights of the accused given the nature of these proceedings. See Santosky v. Kramer, 455 U.S. 745 [102 S.Ct. 1388, 71 L.Ed.2d 599] (1982). However, since the issue has not been raised, we will defer consideration until such time as it is properly briefed and argued.

Although the concerns voiced by our Supreme Court in this dictum have logic and strength, like the appellant in J.S., K.J. has failed to properly preserve the issue of the appropriate standard of evidence. K.J. failed to raise the issue before any proceeding at the agency level and has set forth the argument for the first time in this appeal. Our case law is unwavering that when a party fails to raise an issue, even one of a constitutional dimension, in an agency proceeding, the issue is waived and cannot be considered for the first time in a judicial appeal. S.T. v. Department of Public Welfare, 681 A.2d 853 (Pa.Cmwlth.1996). Thus, as in J.S., the issue must be deferred until it is properly preserved, raised, and argued before the Court.¹

K.J. next argues that substantial evidence does not support a finding of child abuse or sexual abuse. K.J.’s argument is several fold and focuses upon the issue of whether CYS made an adequate investigation before filing the indicated report rather than upon the issue of whether the report is accurate. Ignoring the testimony presented by CYS at the hearing, which the hearing officer found credible and which clearly constitutes substantial evidence supporting the accuracy of the indicated report, K.J. argues, erroneously, that the indicated report should not have been filed because Ms. Schock only based the report on interviews of B.R. K.J. argues that the report was deficient because it was not based upon medical or psychological evidence regarding the participants and family members or any “in-depth” interviews with the family members of B.R. or interviews with the police. K.J. also incorrectly states that Ms. Schock did not interview him.

The issue regarding whether an indicated report of child abuse should be expunged or maintained is whether the report is accurate or not. See 23 Pa.C.S. § 6341. Nowhere does the Law provide that the indicated report must include all or any of the matters that K.J. argues were lacking in Ms. Schock’s investigation. In fact, DPW’s regulations provide that medical evidence is only one basis upon which an indicated report of child abuse may be based; an indicated report may also be based, as here, exclusively on the child protective service investigation. See 55 Pa.Code § 3490.4. Our scope of review is limited, in pertinent part, to whether substantial evidence supports the necessary findings of fact of the agency. Our review of the proceedings before the hearing officer demonstrates that substantial evidence, particularly in the form of the consistent testimony of B.E., fully supports the findings of fact, upon which the determination was made, that the indicated report of child abuse was accurate. K.J.’s argument is therefore wholly without merit.

K.J. also argues that the hearing officer erred by “refusing” to consider the character testimony offered by him. Specifically, K.J. argues that the testimony of the Monsignor was sufficient to “raise a reasonable doubt” as to whether K.J. committed the acts against B.R. This argument is completely without merit. A review of the hearing officer’s Adjudication clearly demonstrates that the hearing officer did consider the testimony of the Monsignor, but simply found that it was not persuasive enough to rebut the factually direct, and credible, testimony of B.R. and Ms. Schock. The hearing officer specifically concluded that the Monsignor’s evidence “did not raise a reasonable doubt to form the basis of an expunction.” Adjudication, p. 7. The hearing officer was well within his authority to make such a finding. Weight and credibility of evidence are matters solely within the province of the fact finder. Bedford County Children and Youth Services v. Department of Public Welfare, 149 Pa.Cmwlth. 127, 613 A.2d 48 (1992).

Finally, K.J. argues that the acts described by B.R. do not rise to the level of sexual abuse as defined by law or regulation because there was no physical touching between KJ.’s intimate parts and B.R. and because there was no exposure of intimate parts. Contrary to K.J.’s assertions, however, the regulations of the Public Welfare Code do not limit the definition of sexual abuse to a touching or exposure of intimate parts. Indeed, the Public Welfare Code defines sexual abuse or exploitation, in relevant part, as “[t]he employment, use, persuasion, inducement, enticement or coercion of a child to engage in ... sexually explicit conduct.” 55 Pa. Code § 8490.4. KJ.’s acts, as found by DPW, fall well within this definition.

Further, the Law defines child abuse as including “sexual abuse or sexual exploitation of a child under 18 years of age. ’ 23 Pa. C .S. § 6303. “Sexual abuse or exploitation” is further .defined in the Law as including “sexual assault ... or other form of sexual exploitation of children.” Id. K.J.’s acts, as found by DPW, clearly support the conclusion that K.J., at the very least, sexually exploited B.R. DPW therefore correctly concluded that the indicated report of child abuse was in accordance with the Law.

Accordingly, the final administrative order of DPW is affirmed.

ORDER

AND NOW, this 10th day of January, 2001, the order of the Pennsylvania Department of Public Welfare in the above-captioned matter is hereby affirmed.

1 . We note parenthetically, however, that since the Supreme Court’s 1991 statement, the legislature amended (and consolidated) the Child Protective Services Law (Law), 23 Pa.C.S. §§ 6301-6385. It did not, however, amend the provisions regarding the standard of proof required of the county agency to support, at a hearing, the indicated report of child abuse. Under the current legislation, amended in 1994, 1995, and 1999, an indicated report of child abuse must be supported by substantial evidence that the abuse occurred. See 23 Pa.C.S. §§ 6303, 6341. Moreover, our Supreme Court has since J.S. at least twice reviewed constitutional claims regarding ex-punction proceedings before DPW but has not repeated the concerns stressed in footnote 2 of J.S. Indeed, in A.Y. v. Department of Public Welfare, 537 Pa. 116, 641 A.2d 1148 (1994), the Court discussed matters necessary for DPW to meet its burden of proving by substantial evidence its conclusion that child abuse has occurred. Therefore, DPW's decision in this case was made in accordance with the current state of the law.