G.V. v. Department of Public Welfare

*449DISSENTING OPINION BY

Judge SIMPSON.

Because I discern no constitutional flaw in the statutory “substantial evidence” standard for an indicated child abuse report which will be entered in the ChildLine Registry, I respectfully dissent.

I agree with the majority that a Mathews analysis is the proper method for assessing procedural due process here. As our Supreme Court explained in the very similar expungement case of R. v. Department of Public Welfare, 535 Pa. 440, 449, 636 A.2d 142, 146 (1994) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)), under this analysis the following three factors are to be considered:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements will entail.

Further, I agree with the majority that G.V.’s private interest in his reputation deserves careful consideration. However, my evaluation of the impact of official action is closer to the evaluation made by our Supreme Court in R.: any adverse effects on his reputation occasioned by the existence of the indicated report on the Child-Line Registry are very limited because of the numerous “legislatively imposed controls” in the Child Protective Services Law.1 R., 535 Pa. at 456, 636 A.2d at 150. G.V. does not claim he wants to work or volunteer with children, and there is no suggestion that he faces any specific financial or associational deprivations from the existence of the report on the ChildLine Registry.

I find less guidance in the decision in A.Y. v. Department of Public Welfare, Allegheny County Children & Youth Services, 537 Pa. 116, 641 A.2d 1148 (1994). The appellant in A.Y. was a person whose opportunity for employment in her field of study was effectively denied by placing her name on the registry. That is not the situation in the present case. Moreover, the Court did not undertake a full Mathews analysis, especially of the “legislatively imposed controls” of the Child Protective Services Law. For these reasons, the Court’s brief, undeveloped comment about registry on a “black list” is not particularly instructive. Id. at 124-25, 641 A.2d at 1152.

Regarding the risk of an erroneous deprivation of G.V.’s reputational interest by use of the less-demanding substantial evidence standard, I part company with the majority. I believe the result in this case would be the same even with a “clear and convincing” evidence standard. This is because the fact-finder accepted the testimony of the child victim and rejected the exculpatory testimony of G.V. Given these credibility determinations, no change in the burden of proof would alter the result. Therefore, I discern little or no risk of erroneous deprivation of G.V.’s reputational interest.2

*450Finally, I evaluate the government’s interest, which is expressed at length in Sections 6302(a), (b) of the Child Protective Services Law, 23 Pa.C.S. § 6302(a), (b), with emphasis added:

(a) Findings. — Abused children are in urgent need of an effective child protective service to prevent them from suffering further injury and impairment
(b) Purpose. — It is the purpose of this chapter to encourage more complete reporting of suspected child abuse; to the extent permitted by this chapter, to involve law enforcement agencies in responding to child abuse; and to establish in each county protective services for the purpose of investigating the reports swiftly and competently, providing protection for children from further abuse and providing rehabilitative services for children and parents involved so as to ensure the child’s well-being and to preserve, stabilize and protect the integrity of family life wherever appropriate or to provide another alternative permanent family when the unity of the family cannot be maintained. It is also the purpose of this chapter to ensure that each county children and youth agency establish a program of protective services with procedures to assess risk of harm to a child and with the capabilities to respond adequately to meet the needs of the family and child who may be at risk and to prioritize the response and services to children most at risk.

In pursuit of the “urgent need of an effective child protective service to prevent [children] from suffering further injury and impairment,” the General Assembly crafted a system of “more complete reporting of suspected child abuse....” Id. The conscious choice was made for more reporting rather than less reporting. In light of this choice, reporting based on a substantial evidence standard is rationally related to the government’s interest. In contrast, a reporting system based on some higher level of proof would not be consistent with “more complete reporting of suspected child abuse.” 23 Pa.C.S. § 6302(b).

I conclude that the substantial evidence standard is designed to serve the state’s interest. Reports of suspected child abuse which meet this standard are made available on the ChildLine Registry for a specified period. Information on the ChildLine Registry is shared “only with persons and agencies performing investigative and child protective functions.” R., 535 Pa. at 459, 636 A.2d at 151. Thus, the General Assembly “has circumscribed access to [information on the registry] to such an extent that no one other than those persons in a position to serve the government’s interest” is authorized to learn of G.V.’s identity. See id. at 459-60, 636 A.2d at 51-52. These considerations, together with the very limited risk of erroneous deprivation of G.V.’s reputational interest, lead me to conclude that G.V. received all the process that was due.

In sum, I would not disturb the careful balance drawn by the General Assembly in favor of child victims of abuse. Instead, I would affirm.

Judge LEADBETTER joins in this dissenting opinion.

. 23 Pa.C.S. §§ 6301-6386.

. Any risk of erroneous deprivation here flows from the risk that the fact-finder will make unwanted credibility determinations. This risk is present in all adjudications, both civil and criminal, no matter what the standard of proof.

The risk is mitigated by the presence of a fair tribunal to make the credibility determinations. The risk is further mitigated by judicial review of the credibility determinations *450on the substantial evidence test and the requirement that the fact-finder explain its decision in sufficient detail to permit meaningful appellate review. See R., 535 Pa. at 446, 636 A.2d at 145 (credibility recommendations made by administrative hearing officer who did not personally see all the witnesses).