J.K. v. DHS ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J.K., :
Petitioner :
: SEALED CASE
v. : No. 367 C.D. 2017
: Argued: December 4, 2017
Department of Human Services, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE J. WESLEY OLER, JR., Senior Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: January 30, 2018
J.K. (Stepfather) petitions for review of the Secretary of Human
Services’ refusal to remove an indicated report from the ChildLine Registry1 that
named Stepfather as a perpetrator of child abuse. The Secretary affirmed the
decision of the Administrative Law Judge (ALJ) who, on remand, reversed his prior
determination that Stepfather had not abused his young stepdaughter, M.K. (Child).
The Bureau of Hearings and Appeals of the Department of Human Services
(Department)2 adopted the ALJ’s remand findings and conclusions of law as it did
with respect to the ALJ’s first determination. Stepfather argues that the ALJ erred
by doing a volte face as factfinder on the identical evidentiary record and by finding
1
ChildLine is a unit of the Department of Human Services that operates a statewide toll free system
for receiving and maintaining reports of suspected child abuse, along with making referrals for
investigation. 55 Pa. Code §3490.4. The ChildLine Registry is maintained in accordance with the
Child Protective Services Law, 23 Pa. C.S. §§6301-6386.
2
In November 2014, the Department of Public Welfare became the Department of Human
Services. See Act of September 24, 2014, P.L. 2458, 62 P.S. §103 (effective November 24, 2014).
Child competent to testify after acknowledging that Child’s testimony had been
tainted. We agree and reverse.
Background
On April 4, 2011, D.K. (Mother) reported to the Carbon County Office
of Children and Youth Services (CYS) that Child, then seven years old, had been
sexually abused by Stepfather.3 On May 26, 2011, CYS issued an indicated report
naming Stepfather as a perpetrator of child abuse, and Stepfather appealed to the
Department. It appointed an ALJ to conduct an evidentiary hearing. After the
hearing was concluded, the task of preparing the recommended adjudication was
assigned to a second ALJ.4
At the hearing, which took place over two days in 2013, the ALJ first
inquired into whether Child, who was nine years old, was competent to testify. Six
months earlier, the court of common pleas had found Child incompetent to testify in
Stepfather’s criminal preliminary hearing because she could not remember what
happened. Notes of Testimony (N.T.), 3/27/2013, at 34; Reproduced Record at 35a
(R.R. ___). In response to the ALJ’s questioning, Child stated that she was at the
administrative hearing because Stepfather had done something “inappropriate.” Id.
at 33; R.R. 34a. When asked to explain what “inappropriate” meant, Child stated
that “[h]e was, like, doing things, like, with a private spot.” Id. at 34; R.R. 35a.
Child could not state when this inappropriate conduct took place, how old she was
or how many times it happened. Despite the ALJ’s concerns about these gaps in
3
A full summary of the case is set forth in Carbon County Children and Youth Services v.
Department of Public Welfare, (Pa. Cmwlth., No. 533 C.D. 2014, filed October 19, 2015) (County
Appeal).
4
The Department appointed Barbara Shade Nause to conduct the evidentiary hearing. After the
record closed, the Department appointed James Bobeck to prepare the recommended adjudication.
2
Child’s memory, she found Child competent to testify, noting that Child had “some
recollection of what occurred.” Id. at 38; R.R. 39a.
Child then testified that Stepfather did “inappropriate things.” N.T.,
3/27/2013, at 42; R.R. 43a. She stated that Stepfather showed her videos on his
cellphone of people doing “inappropriate things with their pee-pees.” Id. at 69; R.R.
70a. She also testified that she touched Stepfather by his “private spot” and that he
touched her “private spot.” Id. at 71-72; R.R. 72a-73a. Finally, she testified that
when she told Mother about what happened, Mother told her it was “inappropriate
for him to do that.” Id. at 46; R.R. 47a.
Mother testified that in April 2011, she found Child’s brother (Brother),
the biological son of Stepfather, watching pornography on Stepfather’s cellphone.
Mother asked Child if she watched these videos with Stepfather. Mother testified
that Child responded that she and Stepfather have secrets, that she watched the
videos with Stepfather and that she licked Stepfather’s “pee-pee.” N.T., 3/27/2013,
at 93; R.R. 94a. Mother acknowledged that at the time of the expungement hearing
she was involved in a contentious dispute with Stepfather over custody of Brother
and that she had filed for a Protection From Abuse Order against Stepfather, but later
withdrew it. Mother testified that she never observed any sexual abuse by
Stepfather.
CYS offered into evidence a video of an interview of Child that was
done one month after Mother accused Stepfather of abuse. The video shows the
forensic interviewer telling Child that she is a “hero” for telling her what happened;
that Stepfather did “bad things;” and that Child needed to tell other people about the
bad things Stepfather did. DVD, Exhibit C-1. The forensic interviewer praised
Child for telling her about the “wrong” things Stepfather did.
3
Stepfather testified in his defense. He admitted that he had
pornography on his cellphone, which his son accidentally discovered. He further
admitted that he had touched Child’s genital area on one occasion, but it took place
while applying cream to treat Child’s rash. He also testified that Mother falsely
accused him of having child pornography on his computer and that she accused both
the judge presiding over the custody dispute and Child’s urologist as being
pedophiles. All these accusations were false. Stepfather flatly denied the claims
made in the indicated report or by Child in her testimony before the ALJ.
Stepfather also called Ronald Esteve, Ph.D., a clinical psychologist, as
a witness. Dr. Esteve does work for children and youth agencies in cases of
suspected child abuse. In this case, however, Dr. Esteve was appointed by the court
of common pleas to evaluate both Stepfather and Mother for purposes of their
custody dispute over Brother.5 Dr. Esteve testified that Stepfather lacked the
psychological markers of a pedophile. He also testified about the indicators of taint
in child witnesses.
Dr. Esteve testified that a child whose testimony is tainted will open up
about the incident quickly; will use words to describe an incident that are not age-
appropriate; and will have difficulty describing specifics about the incident. He
testified that when he interviewed Mother in the custody matter, she volunteered to
him that the first question she put to Child was whether Child had been
“inappropriately touched by [Stepfather].” N.T., 5/13/2013, at 31; R.R. 160a. Dr.
Esteve explained that this question was marred by “confirmation bias” because it
immediately produces fear in a child, who wants to please a parent. Id. at 32-33;
5
Father has 50 to 51 percent custody of Brother. County Appeal, slip op. at 16.
4
R.R. 161a-62a. Dr. Esteve expressed concern that Mother’s leading questions and
use of the word “inappropriate” had suggested to Child what to say.
On rebuttal, CYS called one of its caseworkers to testify. She
acknowledged that Stepfather cooperated with the investigation, that his supervised
visits with Brother went well, and that Stepfather’s reports about Mother caused her
to question Mother’s mental health. However, she believed Mother.
The ALJ recommended that Stepfather’s appeal be sustained and the
indicated report naming Stepfather as a perpetrator be expunged from the ChildLine
Registry. Because there was no physical evidence of abuse, the ALJ reasoned that
the dispositive issue was whether Child’s testimony was credible.
The ALJ found Child not credible for two reasons. First, the ALJ found
that Child’s testimony did not meet the clear and convincing evidence standard. ALJ
Recommended Adjudication, 3/4/2014, at 12; R.R. 325a. The ALJ explained that
[a]s a result of relying only on the testimony of [Child] the
testimony must be so credible, that the facts to which [Child] has
testified are remembered distinctly, and that the testimony is so
clear and convincing as to enable either a judge or jury to come
to a clear conviction, without hesitancy, of the truth of the precise
facts in issue. [ ] However, examining the testimony, the
testimony is not remembered so distinctly or so clear and
convincing that the undersigned can come to a clear conviction.
Id. (emphasis added). Second, the ALJ found Child’s testimony not credible because
it was tainted. The ALJ found, inter alia, that the forensic interviewer’s affirmations
of Child along with Mother’s leading question to Child that described Stepfather’s
conduct as “inappropriate” tainted Child’s testimony. Id.
The ALJ found Mother not credible because “she has made false
allegations in the past against [Stepfather], and it is clear that she was involved to
some extent in [Child’s] testimony despite her testimony to the contrary.” Id. at 12;
5
R.R. 325a. Conversely, the ALJ found Stepfather credible because he was forthright
about having pornography on his phone, cooperated in the investigation, and his
testimony was not contradicted.
For these reasons, the ALJ concluded that CYS did not prove by clear
and convincing evidence that Stepfather had sexually abused Child. On March 4,
2014, the Department adopted the ALJ’s recommended adjudication as its own.
CYS then petitioned for this Court’s review.
This Court reversed and remanded the matter because of a change in
the law. The ALJ used the clear and convincing evidence standard of proof to make
his determination. Thereafter, the Pennsylvania Supreme Court in G.V. v.
Department of Public Welfare, 91 A.3d 667 (Pa. 2014) (G.V. II), held that the correct
evidentiary standard is preponderance of the evidence. Accordingly, this Court
remanded the matter to the Department “for a new decision that applies the correct
standard of proof to the evidence, including credibility determinations.” County
Appeal, slip op. at 33.
On remand, the same ALJ recommended that the Department deny
Stepfather’s appeal. Using the exact same record, the ALJ made directly opposite
credibility determinations. Despite Child’s inability to recall details of the sexual
abuse incidents, this time the ALJ described her testimony as “consistent” and
“straightforward” and, thus, credible. ALJ Remand Recommended Adjudication,
3/9/2016, at 13; R.R. 390a. Conceding that there was some evidence of taint, the
ALJ then stated that Child’s “testimony represents a far more organic description of
the abuse suffered by the subject child with negligible influence from external
persons.” Id. at 14; R.R. 391a. Finally, Stepfather’s testimony, which was
previously found credible, was dismissed by the ALJ as “self-serving.” Id.6
Nevertheless, the ALJ acknowledged that Stepfather was forthright, and his
testimony was not contradicted. Id. at 14. The ALJ found Stepfather’s testimony
inadequate because it was “only a refutation.” Id.The Department adopted the ALJ’s recommended adjudication as its
own. Stepfather requested reconsideration from the Secretary of Human Services,
who granted the request. Thereafter, on February 27, 2017, the Secretary upheld the
decision of the Department, and Stepfather petitioned for this Court’s review.
Appeal Issues
In his first issue, Stepfather challenges the ALJ’s new credibility
determinations. This Court’s remand directed an evaluation of the credibility of the
witnesses under a different standard of proof. Central to the remand was Child’s
testimony, which was the only evidence of sexual abuse. Child’s testimony did not
satisfy the clear and convincing standard of proof, and the question was whether it
would satisfy the statutory substantial evidence standard of proof. Notably, the
Department had argued in the first appeal that because of the taint found by the ALJ,
Child’s testimony could not be credited under either standard of proof. County
Appeal, slip op. at 30. Stepfather argues that the ALJ’s stated reasons for his initial
credibility determinations have not changed; the ALJ simply disregarded them in
making his about-face on the credibility of Child, Mother and Stepfather.
In his second issue, Stepfather contends that the ALJ erred in finding
that Child was competent to testify because her testimony was tainted. Stepfather
argues that the evidence on taint is copious. Child was found incompetent to testify
at the preliminary hearing on Stepfather’s criminal charge six months before the ALJ
hearing; used adult words to describe the purported abuse in conclusory fashion; and
accused Stepfather in response to Mother’s leading questions. The forensic
7
interviewer’s affirmations motivated Child to repeat her accusations. In light of this
evidence of taint, which was acknowledged by the ALJ in both recommended
adjudications, Stepfather contends that Child was not competent to testify.
We address these issues ad seriatim.
Credibility Determinations
In his first issue, Stepfather asserts that the ALJ erred in making directly
opposite credibility determinations on the same record. Because the ALJ did not
observe the witnesses testify, he had to explain his credibility determinations without
reference to demeanor. In his initial recommendation, the ALJ concluded that CYS
did not prove that Stepfather had abused Child. This was not found to be erroneous.
Rather, this Court’s remand was necessitated by the Supreme Court’s decision that
the standard of proof for an expungement appeal was not the one applied by the ALJ
to Stepfather’s initial claim. Stepfather contends that the ALJ went far beyond the
scope of the remand.
We begin with a review of the relevant law. The children and youth
agency that has filed an indicated report bears the burden of proving by “substantial
evidence” that the perpetrator named in the indicated report committed child abuse.
See In re E.A., 82 A.3d 370, 376 (Pa. 2013). The legislature has defined “substantial
evidence” as “[e]vidence which outweighs inconsistent evidence and which a
reasonable person would accept as adequate to support a conclusion.” 23 Pa. C.S.
§6303(a). In our early jurisprudence, this Court held that an expungement case is
governed by the preponderance of evidence standard of proof. S.T. v. Department
of Public Welfare, 681 A.2d 853, 857 n.4 (Pa. Cmwlth. 1996). Thereafter, this Court
held that due process required clear and convincing evidence in a case of alleged
child abuse. G.V. v. Department of Public Welfare, 52 A.3d 434, 439-40 (Pa.
8
Cmwlth. 2012). For testimony to satisfy the clear and convincing standard of proof,
the facts in issue must be remembered with precision. Commonwealth v. Lee, 935
A.3d 865, 883 (Pa. 2007). Clear and convincing evidence is defined as “evidence
that is so clear, direct, weighty, and convincing as to enable the trier of fact to come
to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Id.at 883 (citing Commonwealth v. Maldonado, 838 A.2d 710, 715 (Pa. 2003)). This
is the standard the ALJ applied to Child’s testimony in his initial recommended
adjudication.
After CYS appealed the ALJ’s initial adjudication, the Pennsylvania
Supreme Court decided G.V. II, 91 A.3d at 674, holding that the standard for an
expungement appeal is preponderance of the evidence, referring to the statutory
“substantial evidence” standard. In his concurrence, Justice Saylor, now Chief
Justice, explained that the statutory standard involves a “weighing dynamic.” Id.
This Court has explained that the statutory “weighing dynamic” requires that the
evidence of abuse must be of such quality that “it outweighs [ ] any inconsistent
evidence and reasonable inferences therefrom.” R.J.W. v. Department of Human
Services, 139 A.3d 270, 282 (Pa. Cmwlth. 2016) (quoting In re S.H., 96 A.3d 448,
453 n.4 (Pa. Cmwlth. 2014)).
In its remand, this Court instructed the Department to apply this
weighing dynamic to determine whether CYS proved abuse by Stepfather under the
statutory definition of substantial evidence and under the preponderance of evidence
standard. This Court instructed the ALJ to review its credibility determinations in
light of the different standard of proof. Remand proceedings are restricted to the
purpose indicated in the remand order. Riley v. Workers’ Compensation Appeal
Board (DPW/Norristown State Hospital), 997 A.2d 382, 388 (Pa. Cmwlth. 2010).
9
Stepfather acknowledges that the ALJ was directed to reassess the
credibility of the witnesses. See Budd Company v. Workers’ Compensation Appeal
Board (Kan), 858 A.2d 170, 179 (Pa. Cmwlth. 2004) (holding that a factfinder may
make different factual findings on remand). Stepfather also acknowledges that the
ALJ can use a cold record to make credibility determinations. See Casne v. Workers’
Compensation Appeal Board (Stat Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth.
2008) (“even where a [factfinder] has based a credibility determination on a cold
record, substantial deference is due.”). Stepfather argues, however, that it was error
for the ALJ to reach directly opposite credibility determinations where the evidence
has not changed.
Generally, “[d]eterminations as to credibility and evidentiary weight
will not be disturbed on appeal absent an abuse of discretion.” F.V.C. v. Department
of Public Welfare, 987 A.2d 223, 228 (Pa. Cmwlth. 2010). When the factfinder does
not observe the testimony that is the basis of the evidence, a more thorough review
of credibility determinations is required. See McElwee v. Southeastern Pennsylvania
Transportation Authority, 948 A.2d 762, 774 n.10 (Pa. 2008). In McElwee, the
Supreme Court stated that, “[t]he need for an articulated, reasoned basis for rejecting
such testimony seems especially pronounced where, as here, the trial court did not
observe witness demeanor but, instead, merely reviewed the deposition transcripts
and documentary exhibits.” Id. A factfinder’s credibility determinations cannot be
arbitrary. Id.Here, the ALJ’s credibility determinations on remand were directly
opposite to those made in his original decision. The purpose of the remand was to
have the ALJ evaluate the evidence using the correct standard of proof. As the ALJ
10
observed, the focus was on Child’s testimony because there was no physical
evidence of sexual abuse or witnesses to it.
In his initial adjudication, the ALJ found Child’s testimony not to meet
the clear and convincing standard of proof because it did not “enable the [factfinder]
to come to a clear conviction, without hesitancy, of the truth of the precise facts in
issue.” Lee, 935 A.2d at 883 (quotation omitted). Instead, the ALJ found her
testimony conclusory, vague and lacking in precision. The question on remand was
whether Child’s testimony met the statutory definition of “substantial evidence,” i.e.,
testimony of a quality sufficient to overcome any contradictory evidence. In
resolving this question, the problems with Child’s testimony identified by the ALJ
in his first recommended adjudication did not go away. Rather, the ALJ had to
consider whether the significance of these problems would be reduced under a
different standard of proof.
To the extent the ALJ revised his ultimate finding on sexual abuse, he
was required to relate all his revised credibility determinations to the correct standard
of proof. He did not do this, for any witness. The ALJ simply disregarded his earlier
findings of fact.
The ALJ’s remand credibility determination for Child cannot be
reconciled with his initial credibility determination. The ALJ’s finding that Child’s
testimony was vague and conclusory did not change because of a different standard
of proof. The ALJ’s finding that Child’s testimony was influenced by adult
suggestions did not go away by reason of the remand. The ALJ simply disregarded
the problems with Child’s testimony and the taint that informed his first evaluation
of Child’s credibility.
11
This is also the case with the ALJ’s other credibility determinations.
Initially, the ALJ found Mother not credible because of her acrimonious relationship
with Stepfather; her false accusations to police that Stepfather possessed child
pornography; and her effort to influence Child’s testimony. ALJ Recommended
Adjudication, 3/4/2014, at 11-12; R.R. 324a-25a. On remand, the ALJ did not
address any of these factors.
The same happened with Stepfather. Initially, the ALJ found Stepfather
credible. ALJ Recommended Adjudication, 3/4/2014, at 12; R.R. 325a. He found
Stepfather forthright when he admitted to possessing pornography on his phone and
when he admitted to touching Child’s genitals in the course of applying cream to a
rash. He found that Stepfather fully cooperated with the investigation. On remand,
Stepfather’s testimony was dismissed as “self-serving.” ALJ Remand
Recommended Adjudication, 3/9/2016, at 14; R.R. 391a. The ALJ simply
disregarded his earlier findings without explanation.
The unchanged record does not support the ALJ’s volte face. The ALJ
was directed to review the evidence and make credibility determinations in light of
the preponderance of the evidence standard, but this did not authorize the ALJ to
pretend that he had not already considered the evidence and made very specific
findings of fact. The different standard of proof did not vaporize the evidence of
taint. It did not turn Mother from a person with a motive to lie into an inherently
truthful person.6 The new standard did not turn Stepfather from forthright and
cooperative into a witness whose testimony was merely “self-serving.” Any denial
6
In his prior adjudication, the ALJ noted that Mother had repeatedly lied in the custody
proceedings, which led to her being held in contempt of court. County Appeal, slip op. at 19.
12
of a serious accusation can be dismissed as self-serving; this is not a useful insight
in explaining a credibility determination.
The ALJ criticized Stepfather for not producing more evidence in his
defense, but this criticism is misplaced. First, the finding of abuse turned solely
upon Child’s accusation. Second, it is not clear what evidence Stepfather could
produce to strengthen his defense. He could produce character witnesses, but this
would require widening the circle of people with knowledge of Child’s accusation.
The indicated report is supposed to be confidential. Stepfather did provide an expert
to testify in support of his denial of abuse and assertion that Child’s testimony was
tainted. Finally, the ALJ did not similarly criticize CYS, which did not call Mother
to respond to Stepfather’s evidence that Mother had a history of lodging unfounded
claims of sexual abuse of Child. CYS had the burden of proof, not Stepfather.
The ALJ erred on remand by disregarding the unchanged evidentiary
record and by failing to relate the change in his credibility determinations to the
appropriate standard of proof. Instead, the ALJ simply changed his mind without
any new evidence to warrant this change.
The only evidence of sexual abuse was Child’s testimony, and it was
not credible for the reasons stated in the initial adjudication. Child offered no
specifics as to time and place; used Mother’s language that Stepfather acted
“inappropriately;” lodged an accusation in response to Mother’s leading questions;
and had her accusation repeatedly affirmed by the forensic interviewer. Likewise,
Mother’s false allegations against Stepfather and accusations of child sexual abuse
by the judge in Brother’s custody case still adversely affect her credibility.
Stepfather cooperated with CYS, admitted to having pornography on his phone and
admitted that he touched Child’s genital area to apply cream to a rash.
13
The ALJ abused his discretion in reversing every credibility
determination made in his initial recommended adjudication. Because he did not
relate his new credibility determinations to the standard of proof and simply ignored
his prior factual findings based on the identical record, he acted arbitrarily.
Competency of Child to Testify
In his second issue, Stepfather asserts that the ALJ erred in finding
Child competent to testify. Stepfather argues that the evidence that Child’s
testimony was tainted rendered it incompetent.
In Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003), our Supreme
Court defined taint as
the implantation of false memories or the distortion of real
memories caused by interview techniques of law enforcement,
social service personnel, and other interested adults, that are so
unduly suggestive and coercive as to infect the memory of the
child, rendering the child incompetent to testify.
Id. at 35 (emphasis added). As this definition implies, “[a]n allegation that the
witness’s memory of the event has been tainted raises a red flag regarding
competency, not credibility.” Id. at 40. In Rosche v. McCoy, 156 A.2d 307, 310
(Pa. 1959), the Supreme Court held that in determining the competency of a child to
testify, the court must examine the child’s “mental capacity to observe the
occurrence itself and the capacity of remembering what it is that [the witness] is
called upon to testify about[.]” (emphasis omitted).
In Delbridge, the Supreme Court explained that “[i]n order to trigger
an investigation of competency on the issue of taint, the moving party must show
some evidence of taint.” Delbridge, 855 A.2d at 40. This requires “some evidence
that the child’s statements were the product of suggestive or coercive interview
14
techniques….” Id. at 38. Examples of relevant factors showing “some evidence” of
taint, are as follows:
(1) the age of the child; (2) the existence of a motive hostile to
the defendant on the part of the child’s primary custodian; (3) the
possibility that the child’s primary custodian is unusually likely
to read abuse into normal interaction; (4) whether the child was
subjected to repeated interviews by various adults in positions of
authority; (5) whether an interested adult was present during the
course of any interviews; and (6) the existence of independent
evidence regarding the interview techniques employed.
Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006) (citing Delbridge,
855 A.2d at 41). The list is not exhaustive; further, the party asserting taint need not
satisfy each and every factor.
All witnesses are presumed competent.7 Delbridge, 855 A.2d at 39.
This presumption may be rebutted by evidence that a witness’s testimony has been
tainted and, thus, is incompetent. Id. at 40. The party alleging taint must present
clear and convincing evidence of the same. Id. This court has applied the Delbridge
test for taint to expungement proceedings. See R.J.W., 139 A.3d at 288.
Commonwealth v. Davis, 939 A.2d 905 (Pa. Super. 2007), is illustrative
of the evaluation to be done where taint is alleged. In Davis, the defendant was
criminally charged with exposing his penis and having sexual contact with his nine-
year-old son, J.D. When police first interviewed J.D., they asked J.D. general
questions. In his responses, J.D. did not mention sexual contact with his father. The
police then asked leading questions, and J.D. affirmed sexual contact. At the
7
Pennsylvania Rule of Evidence 601 states, in relevant part, as follows:
(a) General Rule. Every person is competent to be a witness except as otherwise
provided by statute or in these rules.
PA. R.E. 601(a).
15
conclusion of the interview, the officers told J.D. that what his father had done was
wrong.
The Superior Court found J.D.’s testimony tainted by the manner by
which police questioned the child. It relied upon various factors that had been
identified in Delbridge:
[There are] various factors that cast doubt on the veracity of child
witnesses interviewed by police, social service workers and other
adults: they are highly suggestible, inclined to repeat [w]hat
they have been told, have a limited capacity for accurate memory,
and often answer questions in the way they believe most pleases
the adult interrogator.
Davis, 939 A.2d at 910 (citing to the factors “illuminated” by Delbridge, 855 A.2d
at 41) (emphasis added). The Superior Court found these Delbridge factors present
in Davis. First, J.D. had a limited recollection of the incident when he was asked
general questions by the police. Second, the officers told J.D. that his father had
done something wrong and made disparaging comments about his father during the
interview. Finally, the officers asked leading questions that described the alleged
sexual conduct. The Superior Court found that J.D.’s testimony was tainted by the
officers’ leading, suggestive questions and the disparaging statements about his
father. As such, J.D. was barred from testifying.
Stepfather argues that the same elements of taint in Davis are present
here. First, Child was only seven years old when she first made statements about
Stepfather’s alleged abuse. She was two years younger than J.D. at the time, and
her youth made her susceptible to adult influence. Second, as in Davis, Child had
difficulty recalling the events at issue. At the hearing on whether Child was
competent to testify at the preliminary hearing on Stepfather’s criminal charges,
Child was not able to remember any sexual contact. Six months later at the hearing
16
before the ALJ, Child’s recollection returned, but she still could not be specific about
times, dates, the number of incidents of abuse or how old she was when they
occurred. She simply repeated the same generalized description of Stepfather’s
“inappropriate” conduct. Stepfather notes that this Court should not overlook that
in the six months between the preliminary hearing and the administrative hearing,
Child was in the sole custody of Mother.
Child described Stepfather’s conduct as “inappropriate.” She stated
that she “did what the video did” but was unable to say what Stepfather’s private
part looked like. N.T., 3/27/2013, at 70-71; R.R. 71a-72a. Mother’s first question
of Child was whether Stepfather had touched her “inappropriately.” N.T.,
5/13/2013, at 31; R.R. 160a. Apart from its leading nature, the question identifies
Mother as the person who suggested the word “inappropriate” to Child. As in Davis,
Child repeated a word acquired from another to describe the alleged abuse.
Mother admitted to Dr. Esteve that she asked Child leading questions.
She also admitted that she told Child what Stepfather did was “inappropriate.” Her
impact on Child’s testimony is evident. Child repeated Mother’s words throughout
her testimony by using the word “inappropriate,” not a word to be expected from a
nine year old, as noted by the ALJ.
In Delbridge, the Supreme Court observed that a child witness will
provide answers in order to please the interviewer. When the forensic interviewer
spoke with Child, she told Child that she was a hero for telling her what happened.
She told Child that Child needed to help her tell others what happened. As with the
officers in Davis, the forensic interviewer disparaged Stepfather by telling Child,
“you’re a hero because you are going to help us stop daddy from doing that to you,
or anyone else, anymore.” DVD, Exhibit C-1. In short, the forensic interviewer’s
17
affirmations of Child’s accusation of abuse encouraged their repetition, whether true
or false.
Dr. Esteve testified that a child’s testimony is tainted where the child
opens up about the abuse quickly, uses words to describe an incident in adult
language, and has difficulty providing specifics about the incident. All these factors
are met here.
In the initial recommended adjudication, the ALJ found Child’s
testimony tainted. With regard to the forensic interviewer, he stated that
[a]fter the interview, [the forensic interviewer] told [Child] that
she was a hero, that she did not do anything wrong, that her dad
was bad, and that [Child] needed to help her tell other people
about the bad things that her father did. While the interview was
opened ended in its questioning, it ended with many affirmations
by the CYS of [Stepfather’s] alleged “wrong actions” and that
[Child] was doing a great job by telling CYS these allegations
and that she must continue telling these allegations to other
people so they will know of [Stepfather’s] bad behavior.
The affirmations become important because at the time of the
Fair Hearing which took place almost two years later in March
2013, [Child] testified definitively that [Stepfather] licked her.
ALJ Recommended Adjudication, 3/4/2014, at 11; R.R. 324a. The ALJ also found
that Mother tainted Child’s testimony, explaining:
during this two year time period, [Mother] made false
accusations of child pornography possession against
[Stepfather], which were unfounded. [Mother] also first told
[Child] that the behaviors were inappropriate. Furthermore, a
very contentious and protracted custody battle between
[Stepfather] and [Mother] continued. It is also noted that [Child]
testified that [Stepfather] only hurt her when he hit her once, and
that [Mother] was the person who told [Child] that the alleged
abuse was “inappropriate” and “shouldn’t be done,” which
[Child] then echoed several times at the Fair Hearing by calling
[Stepfather’s] behavior “inappropriate.”
18
Id. at 11-12; R.R. 324a-25a. The ALJ determined that there was “a clear pattern of
other people around [Child] either telling her that she was right to speak about the
allegations, that [Stepfather] was bad, that [Child] continue to say the allegations,
and [Child’s] own testimony became more affirmative as time passed in the case.”
Id. at 12; R.R. 325a. He concluded that “the testimony and the circumstances
surrounding the testimony demonstrate a strong likelihood of testimony that was
tainted and influenced to some degree by the actions and comments of other people
around [Child].” Id.
On remand, the ALJ stated that “[w]hile the phrase ‘inappropriate
things’ does not credibly appear to have come originally from the subject child, it
does not necessarily mean the child fabricated the allegations or was tainted by
another person.” ALJ Remand Recommended Adjudication, 3/9/2016, at 13; R.R.
390a. This time the ALJ glossed over the evidence of taint: Child’s inability to
testify in the criminal preliminary hearing; Child’s use of adult language; and the
influence by the forensic interviewer and Mother.
To reiterate, the factors to be considered when considering whether a
child’s testimony has been tainted are as follows:
(1) the age of the child; (2) the existence of a motive hostile to
the defendant on the part of the child’s primary custodian; (3) the
possibility that the child’s primary custodian is unusually likely
to read abuse into normal interaction; (4) whether the child was
subjected to repeated interviews by various adults in positions of
authority; (5) whether an interested adult was present during the
course of any interviews; and (6) the existence of independent
evidence regarding the interview techniques employed.
Judd, 897 A.2d at 1229 (citing Delbridge, 855 A.2d at 41). These factors were
disregarded by the ALJ upon remand.
19
The uncontroverted and accepted evidence of record establishes that
every factor is applicable to this case. First, Child was seven years old at the time
the accusations were made, and nine when she testified. A tribunal must make an
independent determination of competency when a witness is “under the age of 14.”
Commonwealth v. Walter, 93 A.3d 442, 451 (Pa. 2014). Second, the ALJ agreed in
both recommended adjudications that Mother and Stepfather were involved in a very
contentious custody battle over Brother. Recommended Adjudication, 3/4/2014, at
11; Remand Recommended Adjudication, 3/9/2016, at 13; R.R. 324a, 390a. Third,
the unchallenged testimony of record was that Mother had accused Child’s
biological father of sexually abusing Child; had accused the judge in Brother’s
custody case of being a pedophile; and had accused Child’s urologist of sexually
abusing Child. N.T., 5/13/2013, at 93, 101, 103-04, and 110; R.R. 222a, 231a, 233a-
34a, 240a. Fourth, Child was repeatedly questioned by persons with authority. Fifth,
Mother, who had an interest, did the first interview of Child. Sixth, Dr. Esteve, who
was credited by the ALJ in both recommended adjudications, provided independent
evidence regarding the interview technique employed by Mother. He testified that
Mother volunteered to him that the first question she asked of Child was whether
she had been “inappropriately touched by [Stepfather].” Id. at 31; R.R. 160a. As he
explained, this question was tainted by “confirmation bias” because it sought a
confirmation of the questioner’s belief. Id. at 32; R.R. 161a. A child, seeking to
please a parent will “be very sensitive to what they perceive as expectations and try
to fulfill those expectations.” Id. at 33; R.R. 162a.
Each of the Delbridge factors point to the conclusion that Child’s
testimony was tainted. A witness whose testimony has been deemed tainted must
20
be dismissed as incompetent. Delbridge, 855 A.2d at 39-40. The ALJ erred in
otherwise holding.
Conclusion
Child’s testimony constitutes the sole evidence that sexual abuse
occurred because there were no witnesses or medical evidence to support the alleged
abuse. Absent Child’s testimony, which is incompetent, CYS did not meet its burden
of proof. We hold that the evidence of sexual abuse in this case is not of a quality
that a reasonable person would find that it outweighs contradictory evidence.
R.J.W., 139 A.3d at 282. Accordingly, the order of the Secretary of Human Services
is reversed.
______________________________________
MARY HANNAH LEAVITT, President Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J.K., :
Petitioner :
: SEALED CASE
v. : No. 367 C.D. 2017
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 30th day of January, 2018, the final order of the
Secretary of Human Services, dated February 27, 2017, in the above-captioned
matter is REVERSED.
______________________________________
MARY HANNAH LEAVITT, President Judge