Mortimore v. Pennsylvania Department of Public Welfare

697 A.2d 1031, 1997 Pa. Commw. LEXIS 294, 1997 WL 362208
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 11, 1997
DocketNo. 3258 C.D. 1995
StatusPublished
Cited by3 cases

This text of 697 A.2d 1031 (Mortimore v. Pennsylvania Department of Public Welfare) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mortimore v. Pennsylvania Department of Public Welfare, 697 A.2d 1031, 1997 Pa. Commw. LEXIS 294, 1997 WL 362208 (Pa. Ct. App. 1997).

Opinion

SMITH, Judge.

Richard Scott Mortimore (R.S.M.) petitions for review of a final order of the Department of Public Welfare, Office of Hearings and Appeals (OHA), that adopted in its entirety the recommendation of an attorney examiner denying R.S.M.’s appeal of an indicated report of child abuse listing him as the perpetrator. R.S.M. questions whether the child victim’s statements were properly admitted into evidence, where the interviews were not recorded, no established protocol was followed and no psychological evaluation of the child victim was obtained. He also questions whether OHA’s order is supported by substantial evidence, where identification of R.S.M. as the perpetrator allegedly was based upon uncorroborated and unrecorded hearsay.

A.M., the daughter of R.S.M., father, and D.S., mother, was born on February 17,1989. On August 7, 1993 at approximately 7:00 p.m., S.M. and R.M., the paternal grandparents picked up A.M. at the home of the maternal grandmother, J.C., for a 24-hour visitation period at their home. The child’s father, who resides with the paternal grandparents, was home during this visitation period. When A.M. returned to her maternal grandmother on August 8, 1993 at approximately 6:00 p.m., A.M. complained of pain in the area of her vulva. The maternal grandmother discovered swelling and redness in that area as well as blood in the child’s underwear. Thereafter, A.M.’s mother and maternal grandmother took A.M. to the emergency room at Bedford County Hospital where she was examined by Dr. Marc Finder and also interviewed by Doug Diehl, a local law enforcement officer. Dr. Finder examined the child without the mother or maternal grandmother present. His examination of A.M. revealed circular bruises on both hips, which were approximately a centimeter and a half in diameter, small vulva tears, redness in the vaginal area and a bleeding bruise on the hymen. Dr. Finder then reported an incident of suspected child sexual abuse to Childline.

Upon receipt of the suspected report of an incident of child sexual abuse, Bedford County Children and Youth Services (CYS) initiated a child protective service investigation. CYS caseworker Susan Gonzalez first interviewed A.M. on August 9, 1993. Gonzalez interviewed A.M. again on August 18 and August 25, 1993. CYS also interviewed A.M.’s father, mother and her husband, the paternal grandparents and maternal grandmother in August 1993. The child’s father stated that he was only allowed to help dress A.M. on occasion under supervision. Following its investigation, an indicated report of child abuse was filed naming the father as the perpetrator. He requested that CYS remove his name as the alleged perpetrator; CYS denied his request and an appeal followed.

At the appeal hearing, CYS presented the testimony of Dr. Finder, who stated that upon examining A.M., he observed fresh blood coming through the wound and opined that the injury was no more than 24 hours old. Dr. Finder further testified that the injuries sustained by A.M. resulted from direct contact to the genital area by an object. CYS also presented the testimony of Susan Gonzalez, who stated that she took contemporaneous notes of what A.M. said during the interviews. Gonzalez recalled that A.M. stated on three separate occasions that her daddy hurt her “pee pee” and that the assault occurred at the residence of the paternal grandparents. A.M. demonstrated the same with anatomically correct dolls.

The child’s father presented the testimony of the paternal grandparents, who stated that their son was never alone with A.M. during the 24-hour visitation period; however, they were busy entertaining out-of-town guests during the 24-hour period. The paternal grandmother testified that she observed redness in A.M.’s genital area as well as blood in her underwear, which she attributed to a urinary tract or kidney infection. Neither of the paternal grandparents disclosed to the maternal grandmother that A.M. had blood on her underwear.

Based upon the testimony presented, the attorney examiner found that A.M. was in the care and custody of her paternal [1033]*1033grandparents from 7:00 p.m. on August 7, 1993 until 6:00 p.m. on August 8, 1993; that A.M.’s father had access to A.M. during the visitation period; that A.M. was sexually assaulted within 24 hours of the medical examination; that other individuals who had access to the child were ruled out as perpetrators; and that her father was the perpetrator because A.M. clearly and consistently stated on three separate occasions that her daddy hurt her “pee pee.” The attorney examiner did not find the paternal grandmother to be credible, specifically with regard to her testimony that her son was never alone with A.M. during the 24-hour period. The attorney examiner denied the appeal and OHA affirmed.1

Initially, the Court will address whether the statements made by A.M. to Gonzalez met the evidentiary standards for expungement cases set forth by the Supreme Court in A.Y. v. Department of Public Welfare, Allegheny County Children & Youth Services, 537 Pa. 116, 641 A.2d 1148 (1994). There, the Supreme Court established guidelines for the admission of hearsay testimony of a child victim and stated that “[hjearsay testimony in conjunction with admissible corroborative evidence of the act(s) in question can in toto constitute substantial evidence which will satisfy the Agency’s burden of proof to justify a conclusion of abuse.” Id., 537 Pa. at 126, 641 A.2d at 1153.

This Court in B.E. re G.M. Jr. v. Department of Public Welfare, 654 A.2d 290 (Pa.Cmwlth.1995), followed the guidelines set forth in A.Y. and held that medical records corroborated evidence of hearsay statements attributed to a child. In Bedford County Children and Youth Services v. Department of Public Welfare, 149 Pa.Cmwlth. 127, 613 A.2d 48, 50 (1992), the Court defined substantial evidence in the context of child abuse expungement proceedings as “evidence which ‘so preponderates in favor of a conclusion that it outweighs, in the mind of the factfin-der, any inconsistent evidence and reasonable inferences drawn therefrom.’ ” In the case sub judice, A.M.’s statements were corroborated by medical evidence from Dr. Finder that the injuries were caused by direct trauma to the child’s genital area and were sustained within 24 hours of the medical examination. This evidence constituted substantial evidence to satisfy CYS’ burden of proof.

A.M.’s father asserts that the hearsay testimony lacks sufficient indicia of reliability and responsibility and he maintains that the three interviews between Gonzalez and A.M. were not recorded, that no established protocol was followed by Gonzalez and that no psychological evaluation of the child was obtained, and because Officer Diehl subjected A.M. to suggestive questioning, CYS should have interviewed the officer to determine the effect that his interview had on A.M.’s subsequent statements to Gonzalez.

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41 A.3d 131 (Commonwealth Court of Pennsylvania, 2012)
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Bluebook (online)
697 A.2d 1031, 1997 Pa. Commw. LEXIS 294, 1997 WL 362208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mortimore-v-pennsylvania-department-of-public-welfare-pacommwct-1997.