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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Venango County Children and Youth :
Services,

:

Petitioner

:

: No. 1175 C.D. 2004

v.

: Submitted: February 1, 2005

:
Department of Public Welfare,
:

Respondent

:
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE
JIM
FLAHERTY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SMITH-RIBNER

FILED: February 24, 2005

The Venango County Children and Youth Services (CYS) petitions
for review of the April 30, 2004 order of the Department of Public Welfare,
Bureau of Hearings and Appeals (DPW) adopting in its entirety the
recommendation of the Administrative Law Judge (ALJ). The ALJ recommended
that the appeal of D.B., the father of J.B., be sustained; that DPW be directed to
expunge D.B.'s name from the ChildLine Registry; and that pursuant to 1 Pa. Code
§35.187 the appeal of S.B., the mother, be dismissed as moot due to her death.

On December 27, 2001, D.B. and S.B. requested that DPW expunge
their names from the ChildLine Registry. CYS had previously filed an indicated
report of child abuse on July 9, 2001 with the ChildLine Registry naming D.B. and
S.B. as the perpetrators of child abuse against their son, J.B., who was born on
March 13, 1990. Based on the testimony presented, the ALJ found that J.B. was
removed from his parents' home on December 28, 1999 after a CYS caseworker

visited the home with two Pennsylvania State troopers and two Sheriff's deputies.
The child was nine years old at the time; he was not enrolled in the Cranberry
School District or any other school district during the 1999 - 2000 school year and
he was not in an approved home school plan. The home was not habitable, was not
properly heated and did not have electricity or running water and the child slept in
a crib. After his removal from the home, J.B. became anxious, depressed and
socially withdrawn, and several months later, beginning in August 2000, he was
evaluated by Dr. Robert Craig, a licensed psychologist. J.B. was unable to
accomplish age-appropriate developmental and social tasks when evaluated, and in
his first evaluation report Dr. Craig indicated possible "borderline intellectual
functioning" and the need for assessment of the child to rule out a learning
disability. In his second evaluation Dr. Craig listed a diagnosis impression of
"mental retardation, severity unspecified."

The ALJ determined that DPW offered credible testimony of a former
CYS caseworker (Julie Baxter) and a supervisor (Amie Wood) who established
that the home was not habitable in December 1999 when the child was removed
and that the parents did not provide an adequate and approved home school
education for the child. However, the witnesses did not convince the ALJ that the
child was socially isolated by his parents from non-household members, including
other children. The child interacted with others at church and with children nearby
in his large-farm rural community. The ALJ noted that the parents' choice to live
on their 80-acre farm in a rural area cannot be considered an act by them that
caused serious mental injury. Moreover, Dr. Craig did not examine J.B. until
seven months after his removal, and the psychologist's testimony and the
evaluations admitted into the evidence did not convince the ALJ that the parents
2

caused the child to suffer serious mental injury. Based on the evaluations, the ALJ
could not conclude that the parents' failure to provide an adequate education at the
time J.B. was removed caused him to be anxious, depressed, socially withdrawn
and unable to accomplish age-appropriate developmental and social tasks.

The ALJ concluded that it was conceivable that the child was anxious,
depressed and withdrawn because of his mental status and not because of any
failure on the part of his parents. Also the child's removal could have contributed
to his difficulties. The ALJ further concluded that CYS failed to provide
substantial evidence that any act or failure to act on the part of D.B. and S.B.
caused the child's inability to accomplish age-appropriate developmental and social
tasks at the time of his removal, and it failed to provide substantial evidence that
any act or failure by the parents caused the child to be anxious, depressed or
socially withdrawn. CYS' evidence did not outweigh other inconsistent evidence
presented in the case.

CYS argues that it met its burden of proof under L.A.J. v. Department
of Public Welfare, 726 A.2d 1133 (Pa. Cmwlth. 1999), by presenting evidence that
outweighs any contrary evidence that the alleged perpetrators' actions constituted
child abuse. In addition, CYS argues that the ALJ capriciously disregarded
material, competent evidence and reached conclusions that were not supported by
substantial evidence. Specifically, the ALJ disregarded substantial evidence
presented by CYS that D.B.'s acts of commission and omission caused his child to
be incapable of accomplishing age-appropriate developmental and social tasks at
the time of his removal and that such acts caused the child to be anxious, depressed
and socially withdrawn. Furthermore, the ALJ failed to give sufficient weight to
the unrebutted testimony of Dr. Craig.
3

The CYS caseworker testified, inter alia, that the child was backward,
had low socialization skills and was very angry with others at the time of his
removal. Thereafter, the child improved. The supervisor testified that the child
was very immature for his age, that he was very anxious, easily agitated by
conversation and difficult to engage in conversation. She confirmed that after his
removal he improved to the point where he could engage in conversation and was
not as anxious and agitated. CYS asserts that the evidence of J.B.'s improvement
along with Dr. Craig's testimony overwhelmingly leads to the conclusion that D.B.
caused the child to be anxious, depressed and socially withdrawn and caused his
inability to accomplish age-appropriate developmental and social tasks.

CYS notes that despite Dr. Craig's testimony, the ALJ concluded that
Dr. Craig did not establish a specific causal connection between the child's mental
condition and any acts or failures on the part of D.B. and S.B. CYS contends that
under the ALJ's analysis CYS could never prove child abuse and that in most cases
removal from the home has occurred by the time a psychologist evaluates a child.
Also, although Dr. Craig opined within a reasonable degree of medical certainty
that the child's parents caused him serious mental injury, the ALJ apparently found
that Dr. Craig's testimony was not credible and then impermissibly substituted his
own psychological opinion for that of the psychologist. Therefore, CYS argues,
the ALJ's conclusions are not supported by the unambiguous testimony of
Dr. Craig, and, as a result, the Court should hold that the ALJ capriciously
disregarded competent and material evidence and reverse the order of the Bureau
of Hearings and Appeals.

CYS is permitted by law to file an indicated report of child abuse if it
determines that there is substantial evidence of alleged abuse based on available
4

medical evidence, based on an investigation by the agency or based on the
admission of acts of abuse by the perpetrator. 55 Pa. Code §3490.4. In such cases,
CYS has the burden of proof and must establish by substantial evidence that an
indicated report of child abuse is in fact accurate. Bucks County Children and
Youth Social Services Agency v. Department of Public Welfare, 808 A.2d 990 (Pa.
Cmwlth. 2002); L.S. v. Department of Public Welfare, 828 A.2d 480 (Pa. Cmwlth.
2003). Substantial evidence is defined as evidence that so "preponderates in favor
of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent
evidence and reasonable inferences drawn therefrom." L.S., 828 A.2d at 483 - 484
(quoting R.P. v. Department of Public Welfare, 820 A.2d 882, 885 (Pa. Cmwlth.
2003)). The ultimate factfinder in these cases is the ALJ (or Attorney Examiner).
R. v. Department of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994); Bucks
County Children and Youth Social Services Agency.

"Child abuse" is defined at 55 Pa. Code §3490.4 to include "an act or
failure to act by a perpetrator which causes nonaccidental serious mental injury to
... a child." "Serious mental injury" is defined at 55 Pa. Code §3490.4 as a
psychological condition as diagnosed by a physician or licensed psychologist,
including the refusal of appropriate treatment, which does either of the following:
(i) Renders the child chronically and severely
anxious, agitated, depressed, socially withdrawn,
psychotic or in reasonable fear that the child's life or
safety is threatened.

(ii) Seriously interferes with the child's ability to
accomplish age-appropriate developmental and social
tasks.
A "perpetrator" is defined as a "person who has committed child abuse and is a
parent of a child, a person responsible for the welfare of a child, an individual
residing in the same home as the child or a paramour of the child's parent." Id.
5

Furthermore, the definition of child abuse in 55 Pa. Code §3490.4 provides in
relevant part that "a child will not be deemed to be physically or mentally abused
based on injuries that result solely from environmental factors that are beyond the
control of the parent or person responsible for the child's welfare, such as
inadequate housing, furnishings, income, clothing and medical care."

The ALJ correctly determined that CYS failed to prove that D.B. and
S.B. committed acts or failures to act which caused nonaccidental serious mental
injury to J.B. 55 Pa. Code §3490.4. The ALJ's findings, adopted by the Bureau of
Hearings and Appeals, were supported by substantial evidence in the record, which
supports the ALJ's determination that the appeal of D.B. should be sustained. The
ALJ was not persuaded that CYS met its burden of proving child abuse when the
psychologist opined that J.B.'s behavior may be due to borderline intellectual
functioning and/or mental retardation and when CYS' witnesses could not prove
that an act or failure to act on the part of the parents that caused serious mental
injury to J.B. Because CYS failed to present such evidence that "so preponderates
in favor of a conclusion that it outweighs ... any inconsistent evidence and
reasonable inferences drawn therefrom," L.S., 828 A.2d at 483- 484, the Court is
constrained to uphold the findings of the ultimate fact finder in this case and to
affirm the order under review.

DORIS A. SMITH-RIBNER, Judge
6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Venango County Children and Youth :
Services,

:

Petitioner

:

: No. 1175 C.D. 2004

v.

:

:
Department of Public Welfare,
:

Respondent

:

O R D E R

AND NOW, this 24th day of February, 2005, the order of the
Department of Public Welfare, Bureau of Hearings and Appeals, is hereby
affirmed.

DORIS A. SMITH-RIBNER, Judge