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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
D.W.,

:

Petitioner
:

:

v.

: No. 1178 C.D. 2004

: Argued: February 3, 2005
Department of Public Welfare,
:

Respondent
:
BEFORE: HONORABLE DAN PELLEGRINI, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE PELLEGRINI

FILED: February 18, 2005

D.W. appeals from an order of the Commonwealth of Pennsylvania,
Department of Public Welfare (DPW) adopting the recommendation of the
Administrative Law Judge (ALJ) to deny her appeal and refuse to expunge her
name from an indicated report of child abuse.

This matter arose on December 18, 2002, when the Fayette County
Children and Youth Services (FCCYS) received a report of suspected sexual abuse
involving A.C., a 13-and-a-half year old girl.1 The report did not list her mother,

1 A.C. was born on July 13, 1989, to D.W. and D.C. She also has two sisters, H.C. and
S.W.

D.W., as the actual perpetrator of the sexual abuse, but she was listed as a
perpetrator by omission or failure to act. The case was assigned to FCCYS
caseworker Scott Patterson (Patterson) who interviewed both A.C. and D.W. Upon
completion of his investigation, Patterson filed an indicated report of child abuse
listing D.W. as a perpetrator of sexual abuse by omission because she watched her
husband, J.W., and A.C.'s stepfather, make A.C. take her shirt off and walk around
the house in her bra and underwear to get privileges back and on another occasion
watched J.W.'s brother, B.W.,2 hold A.C. down while J.W. removed A.C.'s clothes
and did nothing to protect A.C.

D.W. requested that the indicated case against her be expunged, but
her request was denied. She filed an appeal with the DPW's Bureau of Hearings
and Appeals, and a hearing was held before an ALJ. A.C. first testified that she
was currently living in a group home in the custody of FCCYS as a result of her
stepfather sexually abusing her for about a year-and-a-half prior to the two
reported incidents. She explained that she had not told her mother about the abuse
because she did not think she would believe her due to two incidents that had
occurred more recently prior to her change of residence. A.C. stated that the first
incident involved a punishment by J.W. where he made her walk around the house
wearing only her bra and underwear. A.C. stated that her mom was sitting at the
table while this was taking place and her mom thought it was a joke "so sometimes
she'd laugh." (Notes of testimony at 12.) On a separate occasion, A.C. testified
that her cousin was visiting the house in December and he held her down while

2 In the record, B.W. is referred to as both A.C.'s cousin and as J.W.'s brother.

2

J.W. took her shirt off. Again, D.W. was sitting at the table in the kitchen and did
nothing to help her. A.C. explained that she finally told her uncle about the abuse
and he helped her contact FCCYS. However, after she was interviewed by
FCCYS, D.W. was mad at her because J.W. was taken to jail and D.W. told her to
lie about the allegations. A.C. stated that she was scared of J.W., as was everyone
in the household, and he threatened to kill her if she told anyone that he was
sexually abusing her.

Mr. Patterson also testified at the hearing on behalf of A.C. He, too,
explained that A.C. had told him that J.W. had recently grounded her from using
her t.v. and radio due to bad grades in school and she was forced by J.W. to take
off her clothes and walk around the house in her bra and underwear to regain those
privileges. A.C. had told him that her mother, D.W. was present while this was
transpiring, but did nothing to intervene. Mr. Patterson also stated that A.C. told
him that just a few nights prior to his investigation, her cousin, B.W., held her
down in the kitchen while J.W. removed her shirt and that the button on her pants
had also broken. She stated that her mother was present during this but she did not
help her. A.C. told him that she ran upstairs after this happened and stayed there
for the rest of the night. Mr. Patterson testified that he specifically asked D.W.
about these events and at first she denied even being present. However, when he
confronted her with statements from A.C.'s siblings who were also present and
witnessed these events, she admitted that she had not intervened to protect her
child. Mr. Patterson continued to state that he subsequently spoke with A.C. who
told him that her mother told her that if she lied about the allegations regarding
J.W. to get him out of jail, A.C. and one of her sisters could go live with one of
3

their friends. When Mr. Patterson confronted D.W. with that information, she
initially denied it and said A.C. was lying, but later she confessed to its accuracy.

D.W. then testified that she did watch J.W. forcibly remove A.C.'s
clothing on two occasions and did nothing to intervene, but that was because she
was scared of J.W. because he threatened to kill her in the past. D.W. also stated
that she bailed J.W. out of jail after he had been arrested on the sexual abuse
charges because J.W.'s sister threatened her that if she didn't bail him out of jail,
his sister would go the state police and allege that D.W.'s brother-in-law actually
sexually abused A.C. However, D.W. admitted that she never sought a Protection
From Abuse (PFA) order from the courts to keep J.W. away from her and he had
never struck her. D.W. also admitted that she bailed J.W. out of jail because she
thought that they could get back together as a family and "it would work out itself."
(Notes of testimony at 47.) However, D.W. admitted that after they were living
together when he was out on bail and it was just the two of them at home together
because the children had been taken away from her, she and J.W. were constantly
arguing and she finally told him to move out. She explained further that she was
told by FCCYS that she would not be able to get her children back until J.W. was
no longer living at the home.

The ALJ determined that in order to prove child abuse by omission,
FCCYS had to prove that D.W. knew or should have known that acts of abuse
were occurring and that she failed to take steps to remove A.C. from harm's way.
The ALJ then reasoned that J.W.'s actions constituted sexual abuse/exploitation,
and even though D.W. was unaware of the more serious incidents of sexual abuse
4

against A.C. by J.W., she did nothing to prevent the known behavior. The ALJ
also found that there was no single action which constituted abuse by D.W., but
there was a continuum of behavior by D.W. that constituted child abuse. She then
recommended to DPW that D.W.'s request to have her name expunged from the
record be denied. The DPW adopted that recommendation and denied D.W.'s
appeal. D.W. then filed a petition for review with this Court, and FCCYS filed a
petition to intervene which was granted.

On appeal, D.W. first contends that the ALJ's decision should be
reversed because it lacked adequate support as the ALJ did not identify which
definition of abuse she relied upon in denying D.W.'s appeal. D.W. argues that
the decision was decided under either subsection (ii) or (iii) of 23 Pa. C.S.
§6303(b)(1), but the ALJ did not specify which subsection applied.3

Child abuse is defined as follows:4

(1) The term "child abuse" shall mean any of the
following:

* * *

3 D.W. also argues that the ALJ erred by using the term "omission" even though that
word is not found in either of those sections and is not part of the current law. While the ALJ
stated that D.W. was guilty of "child abuse by omission" rather than stating she was guilty of
child abuse by "failing to act," they mean the same thing.
4 Under 23 Pa. C.S. §6303(b)(1), there are two other definitions of child abuse as well as
(i) and (iv), but they have no application or relevance to the matter before us.

5

(ii) An act or failure to act by a perpetrator which
causes nonaccidental serious mental injury to or sexual
abuse or sexual exploitation of a child under 18 years of
age.

(iii) Any recent act, failure to act or series of such
acts or failure to act by a perpetrator which creates an
imminent risk of serious physical injury to or sexual
abuse or sexual exploitation of a child under 18 years of
age.

23 Pa. C.S. §6303(b)(1). Sexual abuse or exploitation is defined as:

the employment, use, persuasion, inducement, enticement
or coercion of any child to engage in or assist any other
person to engage in any sexually explicit conduct or any
simulation of any sexually explicit conduct for the
purpose of producing any visual depiction, including
photographing, videotaping, computer depicting or
filming, of any sexually explicit conduct or the rape,
sexual assault, involuntary deviant sexual intercourse,
aggravated indecent assault, molestation, incest, indecent
exposure, prostitution, statutory sexual assault or other
form of sexual exploitation of children.

23 Pa. C.S. §6303(a). See also 55 Pa. Code §3490.4(D)(1) which defines sexual
exploitation in part as "looking at the sexual or other intimate parts of a child for
the purpose of arousing or gratifying sexual desire in either person."

Here, although the ALJ did not specify under which subsection her
decision was made, it appears that she relied upon subsection (iii) in finding that
D.W. was guilty of child abuse by omission/failing to act and by allowing J.W. to
sexually exploit A.C. The ALJ explained as follows:
6

Sexual abuse is present if an alleged perpetrator (J.W.) in
some way coerced or persuaded subject child to engage
in or assist another person (in this case B.W.) to engage
in sexually explicit conduct. By making her disrobe,
J.W. persuaded subject child to disrobe down to her bra
and underwear. Although she did not reveal any intimate
body parts, clearly subject child revealed more of her
body than would be socially acceptable. By forcibly
removing her clothes (again without removing her bra
and underwear), not only did J.W. coerce subject child to
reveal more of her body than would be socially
acceptable, but he also persuaded or encouraged or
assisted B.W. to do the same thing. Lastly, even if J.W.'s
behavior described above does not constitute sexual
abuse (as that term is defined in the Child Protective
Services Law), it certainly qualifies as sexual
exploitation. Although he did not look at her intimate
body parts, by watching her dressed in nothing more than
a bra and panties, J.W. looked at subject child's sexual
body parts and encouraged B.W. to do the same. The
stepfather engaged in this behavior in order to satisfy
some prurient desire within himself to see subject child
disrobed in public, and as such, his actions qualified as
child abuse and/or child exploitation.

Based on this explanation, the ALJ believed that D.W.'s failure to act created the
imminent risk of sexual exploitation of A.C. by J.W. D.W. then argues that
because the ALJ stated in her adjudication that no single action resulted in the
finding of abuse but that there was a continuum of behavior that resulted in the
finding, it seems likely that the "continuum of her behavior" refers to a series of
failures to act, but there was no series of inactions. However, subsection (iii)
provides that abuse can be found by any recent act, failure to act or series of such
acts. Therefore, even a single act can be cause for abuse.

7

D.W. also argues that the ALJ's decision was erroneous because she
mistakenly relied on an assumption that D.W. knew or should have known that
J.W. was sexually abusing or exploiting A.C. when, in fact, she did not know that,
and the ALJ further relied on that assumption in finding that there was a continuum
of behavior by D.W. that she did not protect A.C. We disagree. In her decision,
the ALJ specifically stated:

But those sexual abuse allegations, never explained in
detail during the administrative hearing herein, were
revealed after the incidents witnessed by Appellant.

* * *
However, at the time of the two alleged events in
Findings #5 and #9,5 Appellant was unaware her
husband had perpetrated more serious and egregious
incidents of sexual abuse against subject child. She
was only aware he forced subject child to disrobe,
even to the point of holding down subject child in
order to forcibly wrench her clothes off. (ALJ's May
6, 2004 adjudication at 8.)

5 Findings of Fact #5 and #9 state:

5. Sometime between May 2002 and December 2002, Appellant
was present when J.W. forced subject child to remove her clothes
and walk around the house wearing only a bra and underwear.
(NT 11, 25, 36, 37).

9. In December 2002, J.W.'s brother, B.W., held down subject
child while J.W. removed subject child's shirt and attempted to
remove her pants. (NT 12, 13, 19, 25).

8

There was no assumption by the ALJ that D.W. knew or should have known that
J.W. was sexually abusing A.C. Moreover, the ALJ did not rely on that
assumption when she found there was a continuum of behavior by D.W. not to
protect A.C. The ALJ continued to explain:

The most disturbing aspects of Appellant's behavior were
her laughter while J.W. and B.W. forcibly disrobed
subject child, and her continued support and assistance
provided to J.W. after the allegations were revealed, even
to the point of posting bail for him and living with him
while her children were kept away from her due to his
presence in the household.
No one action or inaction by Appellant illustrates child
abuse by omission, but the continuum of her behavior
from the time of the events in Findings #5 and #9 until
she threw J.W. out of her residence in July 2003
demonstrate a general refusal to protect subject child
from further abuse.

(ALJ's May 6, 2004 adjudication at 8.) The ALJ's finding of a continuum of
behavior by D.W. of abuse by omission was not based on D.W.'s knowledge of
J.W.'s actual sexual abuse of A.C. prior to the two incidents where D.W. was
present, but on her failure to protect A.C. when J.W. ordered A.C. to remove her
clothes on one occasion and when J.W. forcibly removed A.C.'s clothes on another,
as well as her continuing relationship and living arrangements with him after A.C.
was removed from her mother's custody. Because the ALJ did not base her
decision on whether D.W. was aware of J.W.'s sexual abuse of A.C. prior to the
two incidents which D.W. witnessed, D.W.'s argument is without merit.

9

Finally, D.W. argues that the ALJ erred in her decision because she
failed to consider that D.W. did not protect A.C. due to her own fear of J.W. D.W.
alleges that she was physically, emotionally and intellectually incapable of
opposing anything J.W. did because she physically feared him and he was a
controlling individual, even when he was in jail. However, our review of the
record indicates that the ALJ did consider such facts. In her decision, the ALJ
stated:

Appellant's Position
Appellant argues J.W. threatened the life of Appellant if
she left him and, as a result, Appellant was afraid of her
husband. Appellant argues she did whatever he husband
told her to do. Appellant admits she did not intervene in
her daughter's behalf during either of the two events or
after the two events. Appellant admits she told subject
child to lie and recant the allegations. Appellant admits
she bailed J.W. out of jail but contends she did so out of
fear of him and his family.

* * *
Hearing Official's Opinion
Appellant testified credibly and admitted she witnessed
the events alleged by subject child and admitted she
failed to intervene with the stepfather. Appellant
contended she had reason to fear the stepfather and she
was not aware that more serious incidences of sexual
abuse were occurring between the stepfather and subject
child.

(ALJ's May 6, 2004 adjudication at 4, 7.) Clearly, the ALJ considered D.W.'s
allegation that she did not intervene on A.C.'s behalf because she was scared of
10

J.W., but did not find that allegation believable in light of her other testimony that
she was never struck by J.W., never sought a PFA, bailed her husband out of jail
despite the sexual abuse charges against him, lived with him after he made bail and
her daughters had been taken away from her and into the custody of FCCYS,
argued with him while living with him, and ultimately told him to move out of her
house. Because the ALJ is responsible for making credibility determinations and
did not find that portion of D.W.'s testimony to be credible,6 D.W.'s argument is
without merit.

Accordingly, the decision of the DPW is affirmed.

________________________________

DAN
PELLEGRINI,
JUDGE

6 See DePaolo v. Department of Public Welfare, ___ A.2d ___ (Pa. Cmwlth., No. 995
C.D. 2004, filed January 4, 2005.)
11

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
D.W.,

:

Petitioner
:

:

v.

: No. 1178 C.D. 2004

:
Department of Public Welfare,
:

Respondent
:

O R D E R

AND
NOW,
this
18th day of February, 2005, the order of the
Department of Public Welfare, dated May 6, 2004, is affirmed.

________________________________

DAN
PELLEGRINI,
JUDGE