ALLOCATUR WATCH

The Pennsylvania Supreme Court has taken up a case on the evidentiary standard for the state Department of Public Welfare to maintain information from certain child-abuse reports on its ChildLine and Abuse Registry, the agency’s toll-free system for disclosing reports of child abuse to certain designated government officials, law enforcement and other third parties.

Under the state’s Child Protective Services Law, a person seeking employment in which there is a significant likelihood of direct contact with children or residing in a family day-care home must provide certification that he or she is not on the ChildLine registry.

And in July, a split en banc panel of the Commonwealth Court ruled the DPW must adhere to the "clear and convincing evidence" standard when deciding whether to maintain a summary of such a report on its ChildLine registry, effectively making it more difficult for the DPW to maintain summaries of indicated child-abuse reports filed by Children and Youth Services agencies on the registry.

At the time of the Commonwealth Court’s ruling, Frank Cervone, executive director of the Support Center for Child Advocates, called the decision "red-hot" in light of Pennsylvania’s recent child sex-abuse scandals.

Cervone said the ruling places "a huge limitation on our ability to protect kids" and serves as an indication that "the court doesn’t understand the phenomenon of child abuse."

The issue has been under a national spotlight with the trials of former Penn State defensive coordinator and convicted serial child molester Jerry Sandusky and officials in the Catholic Church, locally in the Archdiocese of Philadelphia.

In a 5-2 decision in G.V. v. Department of Public Welfare, the majority, led by Judge Anne E. Covey, found that while CYS agencies are bound by the "substantial evidence" standard when issuing an indicated child-abuse report, the DPW must adhere to the stricter "clear and convincing evidence" standard when deciding whether to maintain a summary of such a report on its ChildLine registry.

Covey said cases in which a party faces "a significant loss of freedom or livelihood require clear and convincing evidence."

"Even though the statute seeks to minimize disclosure of the ChildLine registry information, its actual use by the statutorily designated government officials, law enforcement and other entities and individuals in responding to the inquiries of employers, school districts, churches, Boy and Girl Scouts, and other organizations creates the very real potential and probability for disclosure to groups and individuals not specifically authorized to receive the information," she said. "Accordingly, the potential loss of reputation and stigma associated with being named a child abuser on the ChildLine registry demands a higher standard of proof."

Covey was joined by President Judge Dan Pellegrini and Judges Mary Hannah Leavitt, P. Kevin Brobson and Patricia A. McCullough.

Leaving the petitioner DPW’s statement of the issue intact, the high court’s March 21 grant of allocatur said the court would determine whether the Commonwealth Court below it "erred in requiring a ‘clear and convincing’ evidentiary standard of proof in child-abuse expunction cases under the Child Protective Services Law … where the legislature had established substantial evidence as the required standard of proof."

When the Commonwealth Court had the case, Judge Robert Simpson dissented, saying the risk of erroneously harming an accused child abuser’s reputation by maintaining a summary of an indicated report on the ChildLine registry is already "very limited" under the substantial evidence standard, which serves the state’s interest by supporting the legislature’s intention to encourage more reporting of suspected child abuse.

"The conscious choice was made for more reporting rather than less reporting," Simpson said. "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.’"

Judge Bonnie Brigance Leadbetter joined Simpson’s dissent and wrote separately to say that G.V. should not be remanded, citing Simpson’s assertion that a tougher evidentiary standard would not alter the outcome of this case.

"The administrative law judge was positive and unequivocal in his fact-finding, including his assessment of the credibility of witnesses," Leadbetter said. "Under these circumstances, I believe that the clear and convincing evidence standard has easily been satisfied."

In G.V., according to Covey, Lancaster County CYS, an intervenor in this case, received a referral in September 2009 that alleged that G.V. was sexually abusing his great-niece, C.S., of whom he and his wife, T.V., had custody.

CYS investigated the allegations and filed an indicated report against G.V. with the ChildLine registry in November 2009, according to Covey.

That December, G.V. requested a hearing, which was held in June 2010 before an administrative law judge, Covey said.

At the hearing, G.V., C.S. and several other witnesses testified, and in December 2010, the judge issued a recommendation that the Bureau of Hearings and Appeals deny G.V.’s appeal seeking to expunge the indicated report, according to Covey.

Later that month, the BHA adopted the recommendation and in January 2011, G.V. appealed to the Commonwealth Court, Covey said.

On appeal, G.V. argued that the indicated report should be expunged because there had not been substantial evidence — which is defined by Pennsylvania law as "evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion" — to support the administrative law judge’s ruling, but Covey disagreed.

Covey agreed, however, with G.V.’s assertion that there should be a higher evidentiary standard with regard to the DPW’s ability to maintain summaries of indicated reports on the ChildLine registry.

"It is undisputed that the General Assembly has pronounced that substantial evidence must support an indicated report. However, there is no similar legislative mandate regarding the standard of proof to be met for maintaining the indicated report summary on the ChildLine registry," Covey noted.

Covey said indicated reports impact three competing interests: the child, the accused and the limited government officials, law enforcement and other individuals who are privy to such information.

In addition to employers offering positions that require contact with children, according to Covey, school districts and civic organizations often prohibit adults from participating in any activities involving children without first providing certification that they are not on the ChildLine registry. Similarly, Covey said, prospective adoptive or foster parents, self-employed day-care providers and child care service operators are often required to provide such certification.

Covey also cited the state Supreme Court’s 1994 ruling in A.Y. v. DPW, in which the justices referred to the ChildLine registry as a "black list."

"Thus, although there may be a limited disclosure of the names on the ChildLine registry, our Supreme Court recognizes that there is a stigma attached to the mere existence of the record on the ChildLine registry that implicates adverse effects on an alleged child-abuse perpetrator’s reputation which cannot be underestimated," Covey said, adding that it’s worth requiring a higher evidentiary standard to protect against erroneously damaging an alleged abuser’s reputation.

According to Covey, Lancaster County CYS argued that the clear and convincing evidence standard — which the state Supreme Court has defined as requiring "evidence that is so clear, direct, weighty and convincing as to enable the [trier of fact] to come to a clear conviction" — would effectively keep all matters that do not result in criminal prosecution from making it to the ChildLine registry.

Covey disagreed, however.

"First, the clear-and-convincing-evidence standard is less burdensome than the beyond-a-reasonable-doubt standard," she said. "Second, a lesser burden of proof does not offer adequate protection against a potential erroneous deprivation of an individual’s inherent rights and freedoms. Accordingly, as we are statutorily constrained to protect the child from injury or impairment, we hold that substantial evidence must support a determination of whether child abuse has occurred, but there must be clear and convincing evidence of child abuse to maintain statutorily designated information from an indicated report on the ChildLine registry."

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.