Ms. C. v. Commonwealth

Dissenting Opinion by

President Judge Crumlish, Jr.;

I respectfully dissent.

The majority upholds the DPW hearing officers conclusion that the county youth social services agency *607(county agency) failed to meet its burden of proving the accuracy of the indicated report of child abuse.1 In doing so, the majority allows the hearing officer complete discretion to disregard substantial record evidence.

The county agency offered medical evidence, in the form of a pediatricians testimony, that a large bruised area, measuring approximately 3-4 inches by 9-10 inches, extending from the lower rib cage over the right back area to the right buttock. This area contained two distinct overlapping bruised areas, one area 72-96 hours old and a second 24-48 hours old. It was the doctors opinion that these bruises were inflicted by a flat, hard object. There was also testimony by R.D., the father of the child, that he owned a paddle 18-24 inches long with which he threatened the child and which he admittedly used to strike the child while he was in diapers.

This Court has recently held that there is no absolute requirement of expert medical evidence to support indicated reports in all cases. Cruz v. Department of Public Welfare, 80 Pa. Commonwealth Ct. 360, 472 A.2d 725 (1984). Even so, the record reveals substantial medical testimony affirming the allegation of child abuse which the hearing officer apparently chose to ignore.

The DPW hearing officer recommended expungement based on the conclusion that there was no evidence to show that the injury resulted in severe pain or *608impaired r.d.’s physical function. Direct evidence is hardly necessary to the determination that a bruise of that size would cause severe pain. Moreover, to require a showing of impaired physical function directly conflicts with the prophylactic purpose of the Act, which is to provide “protection for children from further abuse.” Section 2 of the Child Protective Services Law (Law).2

In addition, I believe that DPW exceeded its authority in expunging the record pertaining to P.D., the wife of R.D. Section 15(d) of the Law3 states that ex-pungement may be granted upon the request of a subject of the report. P.D. failed to make such a request. Because I believe that the county agency met its burden of proving the accuracy of the indicated report, I would not find good cause to expunge P.D.s record, as authorized by Section 14(o) of the Law.4

An “indicated” report is made pursuant to the Child Protective Services Law, Act of November 26, 1975, P.L. 438, as amended, 11 P.S. §§2201—2224, when an investigation by a child protective service determines that substantial evidence of alleged abuse exists based on (1) available medical evidence, (2) the child protective service investigation or (3) an admission of abuse by the child’s parent or person responsible for the child’s welfare. Section 3 of the Law, 11 P.S. §2203.

11 P.S. §2202.

11 PS. §2215(d).

11 P.S. §2214(o).