R.A. v. Commonwealth, Department of Public Welfare

82 A.3d 370, 623 Pa. 146, 2013 WL 6096790, 2013 Pa. LEXIS 2785
Supreme Court of Pennsylvania·Decided November 20, 2013·Published·Cited by 14 cases

Opinions

OPINION

Justice BAER.

The Commonwealth of Pennsylvania, Department of Public Welfare (DPW) and the Wyoming County Human Services (Wyoming Co. CYS)1 appeal the order of the Commonwealth Court reversing DPWs Bureau of Hearings and Appeals’ order refusing to expunge an indicated report of child sexual abuse relating to a father’s alleged abuse of his four-year-old daughter. The questions presented by this case involve the admissibility of a videotape of the daughter’s allegations under [372]*372the relevant hearsay exception for child victims and, if admissible, whether that videotape constitutes the requisite substantial evidence for denying the father’s request to expunge. Upon careful review of the record, we conclude that the father in this case waived any challenge to the admissibility of the videotape by failing to object before the Administrative Law Judge (ALJ), both when the father was unrepresented on the first day of the hearing and when he was represented by counsel on the second day of the hearing. Moreover, we reverse the Commonwealth Court’s determination that DPW failed to present substantial evidence to support the indicated report of sexual abuse under the Child Protective Services Law, 23 Pa.C.S. §§ 6301-6386.

E.A. was born in January 2005 to Appel-lee R.A. (Father) and J.A. (Mother).2 Mother and Father were involved in a brief romantic affair, which quickly transitioned into a highly antagonistic relationship involving contentious custody transfers of E.A. At the time of the events in this case, E.A. lived with Mother in Broome County, New York, but visited Father, who lived in nearby Wyoming County, Pennsylvania, from Friday evening to Sunday evening every other week, certain holidays, and a few non-consecutive weeks in the summers.

Mother alleged that in late June 2009, following a weekend visit with Father, she witnessed E.A. lying on her bed in a dress but without underwear. Mother asserted that E.A. was playing with her dolls with one doll’s head “around her vaginal area.” Notes of Testimony (N.T.), March 15, 2010, at 42-44, 56-58. When asked what she was doing, Mother averred that E.A. said, “Daddy does it” and that he “puts his butt in my butt.” Id. at 43, 57, and 111. Soon thereafter, Mother called Broome County Children and Youth Services (Broome Co. CYS) which referred the case to Wyoming Co. CYS, given that the alleged sexual assault occurred in Pennsylvania.

In investigating the case, Wyoming Co. CYS asked Broome Co. CYS to interview E.A. An investigator with the New York State Police (Broome Co. Investigator) interviewed E.A. on June 26, 2009, at the Broome County Child Advocacy Center, a few days after Mother observed E.A. on the bed. The Broome Co. Investigator had extensive training in forensic interviewing, especially relating to child sexual abuse, and performed approximately fifty interviews per. year. N.T., March 15, 2010, at 30. The interview with E.A. was recorded and simultaneously watched, via closed circuit television, by a Broome County case worker/investigator (Broome Co. Caseworker), who also had substantial training in sexual abuse and forensic interviewing and who had performed thousands of child abuse investigations. N.T., March 15, 2010, at 107-108.

As will be discussed infra, the ALJ made the following findings of fact concerning the content of the hour-long videotaped interview:

12. During the interview, E.A. identified both her vaginal area and anal area as her “butt”, referring to her vaginal area as her “front butt” and her anal area as her “back butt”. (N.T.[, March 15, 2010, at] 24-25, Exhibit E-2)
13. E.A. stated — that her father licked her “front butt” and “back butt”, that Appellant placed his fingers in her “butt”, that Appellant put his “butt” inside her “butt”, and that the aforementioned behavior hurt her vagina, but that [373]*373E.A. couldn’t put a [B]and-[A]id on the injury. (N.T.[, March 15, 2010, at] 27-29, 88-89 Exhibit E-2)
14. During the interview, E.A. identified the Appellant as the perpetrator of sexual abuse on her. (N.T.[, March 15, 2010, at] 88; Exhibit C-l)

DPW Bureau of Hearings and Appeals Adjudication (Adjudication) at 3.3 Broome Co. CYS forwarded the video and its Caseworker’s notes to Wyoming Co. CYS. Upon review of these materials, Wyoming Co. CYS filed an indicated report4 with the ChildLine and Abuse Registry. Exhibit C-l.

Father appealed to DPWs Bureau of Hearings and Appeals (the Bureau) to expunge the report, and an ALJ presided over a three-day hearing. On the first day of the hearing, on March 15, 2010, Father requested a continuance to allow him to obtain counsel, which was denied based upon the late date of the request.

At the beginning of the hearing on March 15, 2010, Wyoming Co. CYS indicated that E.A. would not testify but that it intended to present her videotaped interview, which all parties acknowledged constituted hearsay. Pursuant to the relevant hearsay exception for child victims, 42 Pa. C.S. § 5986, infra at 12 n.10, the ALJ held an in camera hearing. N.T., March 15.2010, at 12.5 Wyoming Co. CYS presented the Broome Co. Investigator, via phone from New York, to testify to the relevance and reliability of the videotaped interview. In response to the ALJ’s questions, the Investigator discussed her extensive training in forensic interviewing. The investigator next described the interview process. She related that the interview began with a series of questions to obtain the child’s stage of cognitive development and her ability to understand the difference between the truth and a lie. Turning to the heart of the interview, she detailed the allegations summarized above suggesting that Father engaged in cunnilingus, digital penetration, and vaginal intercourse upon E.A. Based upon the interviewer’s experience, the interview process, the persons present during the interview, and the proximity of the interview to the alleged abuse, the ALJ found “that the hearsay testimony has, at this point, met the first prong, that it’s relevant, reliable and definitely probative in this matter.” N.T., March 15, 2010, at 32.

As required by Section 5986, the ALJ observed that CYS next needed to demonstrate that E.A. was unavailable to testify. CYS presented the testimony of Mother who asserted that E.A. “gets very emotional” and that she did not believe E.A. could testify because she refused to speak with the CYS attorney the week before the hearing. Id. at 35-37.6 Based [374]*374on Mother’s testimony, the ALJ found that E.A. was unavailable because she “would have emotional distress or could not reasonably communicate to this court or in this courtroom.” Id. at 38.

The ALJ then stated, “With that being said, at the appropriate time, I will allow the videotape or the DVD testimony and interview of the child. Any objections?” Id. at 39. Father asserted that he did not object. Id. The Court continued, “With that being said, the in camera is finished” and instructed CYS to call its first witness. Id.

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R.A. v. Commonwealth, Department of Public Welfare, 82 A.3d 370, 623 Pa. 146, 2013 WL 6096790, 2013 Pa. LEXIS 2785 (Pa. 2013).

82 A.3d 370 (R.A. v. Commonwealth, Department of Public Welfare) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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