Philadelphia County DHS v. DHS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philadelphia County Department :

of Human Services, :

Petitioner :

:

v. : No. 292 C.D. 2024

: Argued: November 7, 2024

Department of Human Services, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: July 2, 2025

The Philadelphia County Department of Human Services (Agency) petitions

for review of a final order of the Department of Human Services (Department), dated

February 15, 2024, upholding an adjudication of the Department’s Bureau of

Hearings and Appeals (BHA), which adopted an Administrative Law Judge’s (ALJ)

Recommendation sustaining Intervenor J.R.’s (Mother) appeal from an indicated

report of child abuse on the ChildLine Registry (Registry).1 Agency argues, among

other things, that evidence of near-fatal opioid ingestion is sufficient to establish the

1

“ChildLine, a unit within [] Department . . . , operates a statewide system for receiving

indicated and actual reports of child abuse; refers the reports for investigation; and maintains the

reports for reference.” In re S.H., 96 A.3d 448, 450 n.2 (Pa. Cmwlth. 2014); see also 55 Pa. Code

§ 3490.4 (providing the definition of “ChildLine”). “The ChildLine Registry is maintained in

accordance with the Child Protective Services Law, 23 Pa.C.S. §§ 6301-6386.” In re S.H., 96 A.3d

at 450 n.2.

presumption of abuse under Section 6381(d) of the Child Protective Services Law

(CPSL), 23 Pa.C.S. § 6381(d), and the ALJ erred in refusing to apply that

presumption. Department and Mother contend Agency was not entitled to

application of the presumption because Agency did not establish, by substantial,

credited evidence, that Mother failed to supervise the subject child (Child), that the

incident was a non-accident, and that opioid ingestion is determinative of abuse.

Upon review, we affirm.

I. BACKGROUND

The facts are not in dispute. On April 12, 2022, Child, who was 20 months

old, was receiving speech therapy in the basement of Mother’s home, where both

Mother and the speech therapist (Therapist) were present. During the therapy

session, both Mother and Therapist saw Child place something in its mouth and

appeared to begin choking on it. (Adjudication, Findings of Fact (FOF) ¶¶ 19, 28,

53, 56-57, 59-60.) Therapist told Mother to make Child sit while eating to avoid

choking. (Id. ¶ 62.) Child was in the care of Therapist within 5 to 10 minutes of

Child experiencing symptoms of distress in the middle of the therapy session. (Id.

¶¶ 53, 56.) Shortly after Child began experiencing symptoms, Therapist left the

home and Mother sought medical attention for Child. (Id. ¶ 61.)

Child was taken to the hospital. (Id. ¶ 9.) Dr. Norrell Atkinson, the treating

physician and a qualified expert in child abuse pediatrics, evaluated and treated

Child at the hospital. (Id. ¶¶ 10-11.) During the hospital visit, Mother reported to

Dr. Atkinson that the night before, Mother was packing for a trip and old pill bottles

fell out of a piece of luggage and spilled on the ground. (Id. ¶ 16.) Child picked up

an Ibuprofen, but Mother retrieved it from Child’s mouth. (Id. ¶ 17.) Mother further

2

reported to Dr. Atkinson that she was in the basement with Child and Therapist when

Child was believed to have picked up an unidentified object and began choking. (Id.

¶¶ 19, 28.) Mother further reported to Dr. Atkinson that Child began wheezing and

turned colors, then Child became unresponsive and 911 was called. (Id. ¶ 20.)

Dr. Atkinson tested Child’s urine and blood, and Child tested positive for

fentanyl, norfentanyl (which is the metabolic breakdown of fentanyl), morphine, and

codeine. (Id. ¶ 21.) Mother reported that Ibuprofen, cyclobenzaprine, gabapentin,

morphine, and codeine were in the home. (Id. ¶ 22.) However, Dr. Atkinson

determined that none of these medications would yield a positive result for fentanyl.

(Id. ¶ 23.) Dr. Atkinson further noted that, although the time of the opioid ingestion

could not be pinpointed, Child likely ingested the opioids that morning because

opioids are fast acting and have a quick onset, resulting in signs of lethargy,

tiredness, and difficulty breathing shortly after ingestion. (Id. ¶¶ 31-32.)

Dr. Atkinson determined that Child presented at the hospital with symptoms

of unexplained opioid ingestion, was unresponsive, and having difficulty breathing.

(Id. ¶ 13.) Child, as observed by Dr. Atkinson, was also bluish in color, had

constrained pupils, and a low oxygen saturation. (Id. ¶ 14.) Child did not present at

the hospital with any other injuries. (Id. ¶ 30.) Child was subsequently administered

Narcan and the symptoms improved, with Child becoming more alert and breathing

on its own. (Id. ¶ 15.) Dr. Atkinson certified Child’s injuries as near fatal in

accordance with the designation required under state law. (Id. ¶ 26.) Child was

subsequently returned to Mother’s care. (Id. ¶ 51.)

As a result of this incident, a caseworker from Agency (Caseworker) was

assigned to investigate allegations of child abuse. (Id. ¶ 37.) Caseworker

interviewed Mother, and, during the interview, Mother reported that while preparing

3

for a trip the night before the incident, old pill bottles fell out of a piece of luggage

in the closet and spilled on the ground. (Id. ¶¶ 16, 39.) Mother further reported that

she picked up all the pills visible on the ground, flushed the contents of the old pill

bottles in the toilet, and threw the pill bottles away. (Id. ¶ 40.) Mother then gathered

dirty clothes from the closet and took the pile of dirty clothes down to the basement

to start a load of laundry. (Id. ¶ 41.) Mother told Caseworker that some of the spilled

pills may have been mixed up in the dirty laundry that was gathered from the closet

and taken to the basement. (Id. ¶ 42.) Mother also reported during the interview

that she had a party in the home the weekend before the incident. (Id. ¶ 46.)

Caseworker also interviewed Child’s sibling and maternal aunt, who both live in the

home, and Child’s biological father, who was briefly present in the home on the day

of the incident. (Id. ¶¶ 44-45.) Mother and Father were drug tested for opioids,

which returned negative, and no illicit substances were located during the police

search of the home. (Id. ¶¶ 49-50.)

Caseworker also interviewed Therapist. (Id. ¶ 44.) Child was in the care of

Therapist for 5 to 10 minutes (concurrently with Mother) prior to Child becoming

ill. (Id. ¶ 53.) Therapist reported, like Mother, that in the middle of the therapy

session, Child placed something in its mouth. (Id. ¶¶ 56-57.) Therapist further

reported that shortly after Child began experiencing symptoms of distress, Therapist

left the home. (Id. ¶¶ 58-59, 61.)

As a result of Caseworker’s investigation, Mother was indicated for child

abuse because Child was in Mother’s primary care at the time of the incident. (Id.

¶ 47.) However, Caseworker did not indicate Therapist in the report. (Id. ¶ 54.)

Caseworker’s report indicated Mother for “[c]ausing serious physical neglect of a

child[,]” pursuant to Section 6303(b.1)(7) of the CPSL, under the subcategory of

4

“repeated, prolonged or egregious failure to supervise a child in a manner that is

appropriate considering the child’s developmental age and abilities,” pursuant to

Section 6303(a), 23 Pa.C.S. § 6303(a), (b.1)(7). (Reproduced Record (R.R.) at 6a.)

On June 8, 2022, Mother filed an administrative appeal of the indicated report

of abuse with BHA, requesting that the indicated report be expunged from the

Registry. (R.R. at 3a-18a.) BHA granted the request for administrative review, and

the ALJ held a hearing, where Caseworker and Dr. Atkinson testified on behalf of

Agency. (Id. at 32a-33a.) Neither Mother nor Therapist testified.

At the beginning of the hearing, Agency attempted to invoke the presumption

of child abuse under Section 6381(b). (FOF ¶ 4.) Mother objected on lack of notice

and due process grounds, asserting that, because the burden shifts to Mother once

the presumption is invoked, Mother has been unable to prepare a challenge to the

presumption. (Id. ¶ 5.) Agency indicated that it believed notice was provided. (Id.

¶ 6.) However, the ALJ reviewed Agency’s unified pre-filing and determined that

notice was not provided, and, as such, sustained Mother’s objection. (Id. ¶ 8.)

During closing arguments, Agency again raised the presumption to preserve the

issue for reconsideration. (Id. ¶ 64.) Neither party participated in post-trial briefing;

however, letter “briefs” were filed. (Id. ¶¶ 64-69.)

In the Adjudication, the ALJ reasoned that Agency’s choice not to provide an

offer of proof after the ALJ sustained Mother’s objection to application of the

presumption, and Agency’s decision to only raise the presumption again at closing

arguments, rendered the issue inadequately preserved for appeal. (Adjudication,

R.R. at 45a-46a.)2 The ALJ determined that Agency had not met its burden

establishing that Mother had engaged in child abuse and recommended that the

2

The Adjudication is not separately paginated; thus, we will refer to the page of the

Reproduced Record on which it appears.

5

indicated report be expunged. (Id. at 47a.) The ALJ reasoned, based on the

testimony of both Caseworker and Dr. Atkinson, that the information Mother

provided during Caseworker’s investigation and to Dr. Atkinson at the hospital

coincided, and concluded that “[t]he medical report [issued by Dr. Atkinson]

included the same account of the incident that [Mother] provided to the

[Caseworker] during the investigation.” (Id. at 46a.) The ALJ further reasoned that,

while the presumption may be self-executing, the presumption only stands if it is

proven. (Id. at 45a.) The ALJ concluded:

[Agency’s] evidence falls short of demonstrating a causal link between

the [Mother’s] conduct or lack thereof and the injuries of . . . [C]hild.

The record does not support a conclusion that [Mother] knew or should

have known of a danger posed to [C]hild, or that she disregarded any

warning signs of injury or inappropriately acted when it became clear

. . .[C]hild was in distress. The record does not support a conclusion

that the [Mother] left . . . [C]hild unattended on any occasion.

As such, [Agency] did not present substantial evidence that it is

correctly maintaining an indicated report in the [] Registry regarding

allegations against [Mother].

(Id. at 47a.)

On August 15, 2023, BHA adopted the ALJ’s recommendation sustaining the

administrative appeal and directing expunction of the indicated report. (Id. at 30a.)

Agency requested reconsideration of BHA’s decision, which was granted by

Department. (Id. at 48a-53a.) On February 15, 2024, Department issued the final

order upholding BHA’s decision. (Id. at 54a.) Agency petitioned this Court for

review.

6

II. PARTIES’ ARGUMENTS

A. Agency’s Arguments

Agency first contends, citing our Supreme Court’s decision in In re L.Z., 111

A.3d 1164, 1185 (Pa. 2015), that Section 6381(d) of the CPSL was enacted to

address the problem in child abuse cases involving children arriving at the hospital

with serious physical injuries and the entirely implausible explanations proffered by

parents or responsible persons for the child’s injuries. (Agency’s Brief (Br.) at 20.)

Agency asserts that, while child welfare agencies can easily prove the existence of

child abuse, they cannot easily ascertain which parent or responsible person is

responsible for the child abuse and, as such, the presumption was enacted to allow

agencies to assign responsibility. (Id.)

Therefore, Agency explains, the Supreme Court “‘emphasize[d] that, when a

child is in the care of multiple parents or other persons responsible for care, those

individuals are accountable for the care and protection of the child whether they

actually inflict the injury or failed in their duty to protect the child.’” (Id. at 21 (citing

L.Z., 111 A.3d at 1185).) Agency contends the presumption is satisfied as they

proffered evidence of an injury to child that “would not ordinarily be sustained but

for the acts or omissions of the parent,” and it is up to the parent to rebut that

presumption. (Agency’s Br. at 21). Additionally, citing our decision in E.M. v.

Department of Human Services, 191 A.3d 44 (Pa. Cmwlth. 2018), and our sister

court’s decision in In the Interest of G.R., 282 A.3d 376 (Pa. Super. 2022), Agency

asserts, that in cases where the parent does not testify, the parent or caregiver’s

claims are outside the scope of the record and do not constitute rebuttal evidence.

Agency acknowledges, however, that the evaluation of the validity of the

7

presumption and any rebuttal evidence from a parent or responsible person rests in

the sole discretion of the factfinder. (Agency’s Br. at 22.)

Agency next argues that the application of the presumption depends on the

nature of the injury, rather than a causal link between the injury and an act or

omission of a parent or responsible person. (Id. at 23.) Citing Justice Wecht’s

concurrence in In the Interest of N.B.-A., 224 A.3d 661, 679 (Pa. 2020), Agency

asserts that “it is the character or nature of the abuse that determines the applicability

of the presumption and not evidence [of] an act or omission of the parent or

caregiver. Hence, common childhood injuries are not subject to the presumption,

but abusive-type injuries are subject to it.” (Agency’s Br. at 23.)

Agency further asserts that because this Court has not yet addressed whether

a child’s unexplained, near-fatal ingestion of opioids or other substances is an

“abusive-type injury that is subject to the presumption,” this Court should look to

the Superior Court for guidance. (Id. at 24.) Specifically, Agency cites In re A.S.

(Pa. Super., No. 2178 EDA 2020, filed May 28, 2021), and In re B.E. (Pa. Super.,

No. 505 EDA 2023, filed October 3, 2023),3 for the proposition that near-fatal

fentanyl ingestion is subject to the presumption. (Agency’s Br. at 24) Agency

argues that under this line of cases, because Child ingested a near-fatal amount of

fentanyl, and none of the medications Mother said were in the home would yield a

positive result for fentanyl, Agency established that “near-fatal ingestion of fentanyl

and other substances is an abusive-type injury that is subject to the presumption.”

(Id. at 25.)

3

Similar to unreported memorandum opinions of this Court, unpublished non-precedential

memorandum decisions of the Superior Court may be cited for their persuasive value.

Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b).

8

Agency also argues that it did not waive the presumption under Section

6381(d) of the CPSL because it was only required to raise the presumption “at” or

“in” the administrative hearing, instead of prior to the hearing. (Agency’s Br. at 16,

18.) Citing our decisions in C.E. v. Department of Public Welfare, 917 A.2d 348

(Pa. Cmwlth. 2007), and J.W. v. Department of Public Welfare, 9 A.3d 270 (Pa.

Cmwlth. 2010), Agency asserts that, the application of the presumption is waived

only if the moving party does not raise the presumption at the hearing. Agency

further contends, according to the Superior Court’s holding in In the Interest of La.-

Ra. W., 266 A.3d 1071 (Pa. Super. 2021), the presumption is self-executing.

(Agency’s Br. at 26-27.) Agency asserts that because it was sufficient to raise the

presumption at the beginning of the hearing, it was error for the ALJ to sustain

Mother’s objection and to refuse to apply the presumption. (Id. at 27-29.)

In its final argument, Agency contends that the ALJ’s preclusion of the

application of the presumption based on untimeliness amounts to “an excessive and

draconian remedy” that effectively results in a dismissal. (Id. at 30.) Agency asserts

that because there is no procedural rule, statutory mandate, or case law indicating

that notice must be provided prior to seeking the presumption, it was error to

preclude the presumption on these grounds. Again, citing our Supreme Court’s

decision in L.Z., Agency claims that the presumption was enacted “to prove the

identity of the perpetrator when the agency is not otherwise [] able to do so,” and if

the presumption is precluded, Agency will be unable to identify the perpetrator of

the abuse, thus amounting to an effective dismissal the case. (Id. at 30.)

B. Department’s and Mother’s Arguments

Department first argues that it was not error for the ALJ to decline to apply

the presumption because Agency never established prima facie evidence of abuse

9

under Section 6381(d) of the CPSL. Department asserts that the presumption is

precluded because Caseworker did not consider Therapist as a possible perpetrator

under Section 6303 of the CPSL, 23 Pa.C.S. § 6303, and Therapist had direct contact

with Child leading up to the incident. (Department’s Brief (Br.) at 5-6.)

Specifically, in recalling Caseworker’s testimony during the hearing, Department

asserts that Caseworker did not provide a legitimate reason for eliminating Therapist

as a perpetrator because the same testimony was used to indicate Mother as an

abuser. (Id. at 8-9.) Department asserts that not considering Therapist as a

perpetrator “created a ‘break’ in the custodial chain associated with the prima facie

presumption.” (Id. at 9.)

Department next contends that there was no evidence presented by Agency

indicating that the incident was anything but accidental. (Id. at 11.) Department

asserts that “there is a lack of events to support mens rea, in addition to an overt act

or omission on [Mother’s] part that led to [C]hild’s hospitalization.” (Id.)

Department asserts that, as in J.M.K. v. Department of Human Services (Pa.

Cmwlth., No. 1590 C.D. 2019, filed October 23, 2020), a caregiver is not reckless

for not perceiving that something is a risk of bodily injury to a child. (Department’s

Br. at 12.) Department also argues, citing S.K. v. Department of Human Services,

206 A.3d 644 (Pa. Cmwlth. 2020), that because Mother attempted to dispose of the

pills after they spilled on the ground, threw away the pill bottles, and that two of the

drugs in Child’s system were types of drugs Mother admitted were spilled, Agency

could not establish that Mother glaringly or obviously deviated from the standard of

care and, thus, the incident should instead be considered an accident. (Id. at 15.)

Mother agrees with Department that our decision in J.M.K. is applicable here

and that Agency failed to establish the requisite mens rea for the presumption to

10

apply. (Mother’s Br. at 13-14.) Mother also relies on our decision in S.H. v.

Department of Human Services, 228 A.3d 22 (Pa. Cmwlth. 2020), for the proposition

that, where the record is devoid of evidence indicating that a parent made a conscious

decision to disregard hazards that could cause bodily injury to a child, the agency

cannot establish culpability for abuse. (Id. at 13-14.) According to Mother, Agency

presented evidence, which BHA weighed and determined did not establish abuse.

(Id. at 15.)

Mother also maintains that Agency never established serious physical abuse

through a prolonged or repeated lack of supervision, which was the basis of the

indicated report and necessary to trigger the presumption. (Id. at 10.) Mother,

relying on K.Y.M. v. Department of Human Services (Pa. Cmwlth., No. 137 C.D.

2018, filed January 7, 2019), argues that cases involving findings of prolonged and

repeated lack of supervision “involved evidence of significant lapses in parental

supervision.” (Mother’s Br. at 10) Mother further asserts that because Agency

presented no evidence showing that Child was unsupervised leading up to the

incident, and conversely, that the record is clear that Child was with Mother and

Therapist, there was no lack of supervision. (Id. at 11.) Mother asserts BHA

correctly found that Agency “failed to meet its burden to show by substantial

evidence that there was a ‘repeated, prolonged, or egregious’ failure to supervise

[Child] that would constitute child abuse.” (Id. at 12.)

Mother next argues that the ingestion of fentanyl is not categorically child

abuse, and there is a lack of authority supporting same. (Id. at 16.) Mother asserts

that, while Agency relies on Justice Wecht’s concurrence in N.B.-A. for the

proposition that ingestion of opioids is determinative of abuse, the majority opinion

“reject[ed] the idea that certain categories of injuries could lead directly to a

11

presumption of abuse.” (Id. at 16.) On this point, Mother concludes that, because

the ALJ found Mother’s account of the incident plausible and because the medical

report confirmed that the accidental ingestion of pills was a plausible explanation,

Department correctly found that the adjudication was supported by the record and,

thus, the presumption was never triggered. (Id. at 19-20.)

Mother also distinguishes A.S. and B.E., maintaining that Agency’s reliance

on this set of Superior Court cases is improper because these cases lack precedential

value and contain dissimilar facts. (Id. at 17-18.) Mother asserts that A.S. is

distinguishable because, unlike the instant matter, both parents in A.S. had an

extensive history of drug abuse and no evidence was presented that the ingestion of

drugs was accidental. (Id. at 18.) Mother also distinguishes B.E., asserting that this

case dealt with a mother’s version of events leading to a child’s injury that were not

credible because medical evidence supported a finding of bodily harm and the

mother’s explanation did not comport with the injury to the child. (Id. at 19.) Mother

concludes that Agency’s reliance on these cases is misplaced given the contrasting

factual backgrounds and evidence presented in each case.

Mother’s final argument asserts that the failure of Agency to provide notice

of its intent to invoke the presumption prior to the hearing amounted to a violation

of Mother’s due process rights. (Id. at 22.) Mother, like Agency, notes that this

Court has never addressed the issue of notice under Section 6381(d) of the CPSL.

However, because placement on the Registry “causes significant reputational and

employment harms that implicate a high level of due process,” “meaningful notice

and the ability to prepare for and respond” is required under the due process

framework. (Id. at 22-23.) Mother concludes that it was proper to object to

Agency’s attempted application of the presumption on lack of notice and due process

12

grounds and, therefore, the ALJ did not err in denying Agency’s request to raise the

presumption. (Id. at 24.)

III. DISCUSSION4

In instances of suspected child abuse, an indicated report of abuse is prepared

by a caseworker and issued by a county child welfare agency or the Department,

which is then entered into the Registry. T.H. v. Dep’t of Hum. Serv., 145 A.3d 1191,

1198 (Pa. Cmwlth. 2016). The CPSL mandates that an indicated report must be

supported by substantial evidence. 23 Pa.C.S. § 6303(a).5 Section 6303(a) states

that substantial evidence of abuse may be established through “(i) [a]vailable

medical evidence[,] (ii) [t]he child protective service investigation[, or] (iii) [a]n

admission of the acts of abuse by the perpetrator.” Id. In turn, with this statutory

mandate in mind, our Supreme Court has defined an indicated report as follows:

4

“Our [] review is limited to determining whether an error of law was committed, whether

constitutional rights were violated, or whether the necessary findings of fact are supported by

substantial evidence.” R.L. v. Dep’t of Hum. Servs., 236 A.3d 1183, 1186 n.4 (Pa. Cmwlth. 2020)

(citation omitted); see also Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

“Where the issue is one of law, our standard of review is de novo and our scope of review is

plenary.” J.F. v. Dep’t of Hum. Servs., 204 A.3d 1042, 1045 n.3 (Pa. Cmwlth. 2019) (citing St.

Elizabeth’s Child Care Ctr. v. Dep’t of Pub. Welfare, 963 A.2d 1274, 1276 (Pa. 2009)). Where

the issue is one of substantial evidence, “[o]ur [] review is limited, in pertinent part, to whether

substantial evidence supports the necessary findings of fact of the agency.” K.J. v. Dep’t of Pub.

Welfare, 767 A.2d 609, 612 (Pa. Cmwlth. 2001).

5

The Department notes that BHA’s Adjudication states “[t]he presumption of evidence

standard is self-executing where [Agency’s] evidence clearly and convincingly provided the

requisite evidence under [S]ection 6381(d),”and that “[t]his is a harmless error and does not affect

the outcome of the case . . .” (Department’s Br. at 9 n.4.) We agree. Where a finder of fact applies

the wrong standard, it is harmless error where those facts are not necessary for the ultimate legal

determination. See Ret. Bd. of Allegheny Cnty. v. Colville, 852 A.2d 445, 451 n.12 (Pa. Cmwlth.

2004) (“even if discovery were to establish that the [factfinder] made factual findings that are not

supported by the record [or substantial evidence], this merely would constitute harmless error

where those findings would not be necessary for the legal determination”).

13

An “indicated” report is one wherein the determination relies on

[Department’s] or the county agency’s own assessment that their

investigation revealed “substantial evidence of the alleged abuse by a

perpetrator exists based on” available medical records, the child

protective services investigation, or an “admission of the acts of abuse

by the perpetrator.”

J.F. v. Dep’t of Hum. Servs., 245 A.3d 658, 660 (Pa. 2021) (citation omitted).

In the context of child abuse proceedings, the CPSL defines 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). The agency or Department “ha[s] the burden of proving, by substantial

evidence, that its investigation revealed substantial evidence to register [an

individual] as an indicated child abuser.” R.J.W. v. Dep’t of Hum. Servs., 139 A.3d

270, 280 (Pa. Cmwlth. 2016). Since “[t]he burden of proof in an expungement

hearing is on the county agency to show, by substantial evidence, that the indicated

report is accurate [], if it fails to meet that burden, the request for expungement will

be granted.” R.W. v. Dep’t of Hum. Servs., 128 A.3d 839, 843-44 (Pa. Cmwlth.

2015) (citation omitted).

Pursuant to Section 6381(d) of the CPSL, in expungement cases, an agency

or Department may apply for an evidentiary presumption “that a parent or person

responsible for the welfare of the child is the perpetrator of any alleged child abuse.”

T.H., 145 A.3d at 1195. Section 6381(d) provides:

Evidence that a child has suffered child abuse of such a nature as would

ordinarily not be sustained or exist except by reason of the acts or

omissions of the parent or other person responsible for the welfare of

the child shall be prima facie evidence of child abuse by the parent or

other person responsible for the welfare of the child.

23 Pa.C.S. § 6381(d).

14

Our Supreme Court has made clear that “evidence that a child suffered injury

that would not ordinarily be sustained but for the acts or omissions of the parent or

responsible person is sufficient to establish that the parent or responsible person

perpetrated that abuse unless the parent or responsible person rebuts the

presumption.” L.Z., 111 A.3d at 1185. To rebut this presumption, a “parent or

responsible person may present evidence demonstrating that they did not inflict the

abuse, potentially by testifying that they gave responsibility for the child to another

person about whom they had no reason to fear or perhaps that the injuries were

accidental rather than abusive.” Id. “The evaluation of the validity of the

presumption would then rest with the [factfinder] evaluating the credibility of the

prima facie evidence presented by the [] agency and the rebuttal of the parent or

responsible person.” Id. (emphasis omitted).

On appeal, Agency contends that Department erred in upholding the

Adjudication, asserting that near-fatal opioid ingestion is sufficient to establish a

presumption of abuse under Section 6381(d) of the CPSL, and that prior notice of

the presumption is not required, rendering the ALJ’s decision to decline application

of the presumption an error. However, we need not reach these issues because, under

the facts as found by the ALJ, by which we are bound, Agency did not establish it

was entitled to application of the presumption.

A. Substantial Evidence for the Indicated Report

In the instant matter, Agency’s investigation report listed the nature of the

abuse or neglect as “serious physical neglect of a child” through “repeated,

prolonged, or egregious failure to supervise” the child. (R.R. at 29a.) (emphasis

added). Pursuant to Section 6303(b.1)(7) of the CPSL, child abuse is defined, in

pertinent part, as “[c]ausing serious physical neglect of a child.” 23 Pa.C.S. §

15

6303(b.1)(7). Additionally, under Section 6303(a) of the CPSL, serious physical

neglect occurs when an individual commits “(1) [a] repeated, prolonged or egregious

failure to supervise a child in a manner that is appropriate considering the child's

developmental age and abilities[,] [or] (2) [t]he failure to provide a child with

adequate essentials of life, including food, shelter or medical care.” 23 Pa.C.S.

§ 6303(a).6

In C.F. v. Department of Public Welfare, 804 A.2d 755 (Pa. Cmwlth. 2002),

we held that evidence establishing that a mother who left a 10-month-old child alone

in a bedroom for 15 minutes, where the child subsequently died, did not support an

indicated report of abuse. The caseworker’s investigation observed that the home

was neat and clean, and the family was supportive of each other, but nevertheless

indicated the mother for child abuse. Id. at 756. The medical examiner’s report

concluded, however, that the child’s death was accidental. Id. In reversing the

Department, we reasoned that because the mother left the room to prepare the child’s

bottle, the child showed no signs of neglect, and the family home was kept neat and

clean, viewing these circumstances together, there was no prolonged or repeated lack

of supervision amounting to serious neglect under the CPSL. Id. at 760-61.

Additionally, in Fayette County Children and Youth Services v. Department

of Public Welfare (Pa. Cmwlth., No. 310 C.D. 2008, filed August 11, 2008), slip op.

at 7, we held that “[a]s defined by the [] [CPSL] . . . just because a caretaker leaves

a child alone does not mean there was child abuse – there has to be prolonged lack

of supervision.” (italics in original) (emphasis added). In that case, the mother was

6

Beyond citing the statutory sections of the CPSL applicable to “serious physical neglect”

and “prolonged or repeated lack of supervision,” Agency’s Brief does not address the applicable

standards for either type of conduct, nor is there any argument asserted on these issues. This

oversight seems problematic given the type of abuse Mother allegedly engaged in as identified in

the indicated report and BHA’s Adjudication.

16

indicated for child abuse after her 4-month-old child burned itself on a space heater.

Id. at 3. Mother claimed she left the child in a child carrier atop an infant rocker

chair, which was a couple feet from the heater when she went downstairs to speak

with a customer. Id. During the expungement hearing, the ALJ concluded that,

although the mother’s testimony was not totally credible and there were

inconsistences in the mother’s story, this did not mean the mother committed child

abuse because it was not reasonable to believe a child of that age could have

extricated himself from the seat and fallen on the heater. Id. at 5-6. Thus, the ALJ

recommended that the indicated report should be expunged, which Department

adopted. Id. In affirming the Department’s grant of a request for expungement, we

determined that the 4-month-old child was not a victim of prolonged or repeated lack

of supervision where evidence established that the child was left alone for 5 minutes,

and no evidence was presented showing that the child was not cared for properly.

Id. at 8.

Here, based upon the unchallenged findings of fact, we agree with Department

that Agency did not meet its burden of establishing, by substantial evidence, that

Child was injured as a result of Mother’s “repeated, prolonged or egregious failure

to supervise” Child, as was alleged in the indicated report. (R.R. at 6a.) When the

incident occurred, Child was at home in the basement receiving speech therapy,

where both Mother and Therapist were present. (FOF ¶¶ 19, 38, 56.) Approximately

5 to 10 minutes into the therapy session, Mother and Therapist noticed Child place

something in its mouth and begin coughing, and shortly thereafter, Child became ill.

(Id. ¶¶ 19-20, 53, 57-58, R.R. at 47a.) Once Child began experiencing symptoms, a

family member splashed water on Child’s face to see if it would respond, 911 was

17

called, and Child was taken to the hospital by ambulance. (Id. ¶¶ 20, 61, R.R. at 68a,

89a, Tr. at 35.)

Importantly, the ALJ found that although Caseworker testified Mother gave

inconsistent accounts of what occurred, Mother’s account of the incident that was

provided to Caseworker during Agency’s investigation was consistent with the

medical report. (FOF ¶ 58.) Additionally, following the incident, Mother was drug

tested for opioids, which returned negative, and no illicit substances were located

during the police search of the home. (Id. ¶¶ 49-50.) Moreover, similar to C.F., 804

A.2d 755, the ALJ credited the fact that “[t]he[re] was no testimony or reference that

the home was unkept, evidence of residual effect of the prior week’s party or that

the home was otherwise in such disarray or a state that it is presumable that . . .

[C]hild could be harmed.” (R.R. at 46a.) Furthermore, Child was returned to

Mother’s care after the incident, and Child is not subject to any dependency actions.

(FOF ¶¶ 51-52.)

In ruling that Agency did not meet the criteria to establish that Mother was

the cause of the Child’s injury, the ALJ found:

There was no correlation where the [] [Mother’s] conduct was

inappropriate, negligent, reckless, intentional or to such degree that it

had to be known that such conduct would cause harm to . . . [C]hild.

The[re] was not testimony or evidence presented that [Mother] left . . .

[C]hild alone once much less on a repeated basis.

(R.R. at 46a.) Moreover, as aptly concluded by the ALJ:

[Agency’s] evidence falls short of demonstrating a causal link between

the [Mother’s] conduct or lack thereof and the injuries of . . . [C]hild.

The record does not support a conclusion that [Mother] knew or should

have known of a danger posed to [C]hild, or that she disregarded any

warning signs of injury or inappropriately acted when it became clear

18

. . .[C]hild was in distress. The record does not support a conclusion

that the [Mother] left . . . [C]hild unattended on any occasion.

As such, the [Agency] did not present substantial evidence that it is

correctly maintaining an indicated report in the ChildLine Registry

regarding allegations against the [Mother].

(Id. at 47a.)

We agree. Considering the chain of events and the credited evidence, there

are no facts in the record supporting Agency’s contention that Mother engaged in a

pattern of “repeated, prolonged or egregious failure to supervise” leading to Child’s

opioid ingestion. 23 Pa.C.S. § 6303(a).

In sum, the presumption does not apply here because there is no indication

that an act or omission by Mother caused Child to ingest opioids. As Dr. Atkinson

testified, symptoms related to opioid ingestion are fast acting and usually occur close

in time to opioid ingestion. (Adjudication, FOF ¶¶ 31-32.) Mother and Therapist

were with Child when they both saw Child place something in its mouth and, within

5 to 10 minutes, Child began experiencing symptoms and became ill. (Id. ¶¶ 19, 28,

53, 56-57, 59-60.) To obtain the benefit of the presumption, Agency was required

to establish that Child suffered abuse of such a nature as would ordinarily not be

sustained or exist absent Mother’s acts or omissions. Agency did not do so here and,

as such, the burden never shifted to Mother. To hold otherwise would ignore the

express limiting language included in the text of the statute.

Accordingly, given the credited evidence, we discern no error or abuse of

Department’s discretion in refusing to apply the presumption in a case, such as this,

where Agency did not establish, by substantial evidence, that Mother intentionally,

knowingly or recklessly engaged in conduct that would result in serious physical

neglect of Child, 23 Pa.C.S. § 6303(b.1), or that the injury sustained here “would

19

ordinarily not be sustained or exist except by reason of the acts or omissions of”

Mother, 23 Pa.C.S. § 6381(d).

IV. CONCLUSION

For the foregoing reasons, we affirm Department’s final order upholding

BHA’s adjudication sustaining Mother’s administrative appeal and directing

expunction of the indicated report of child abuse from the Registry.7

__________________________________________

RENÉE COHN JUBELIRER, President Judge

7

In light of our decision, we need not confront the notice requirements applicable to a

presumption of abuse under Section 6381(d) of the CPSL or address the parties’ arguments with

regard to whether Agency waived the presumption.

20

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philadelphia County Department :

of Human Services, :

Petitioner :

:

v. : No. 292 C.D. 2024

:

Department of Human Services, :

Respondent :

ORDER

NOW, July 2, 2025, the Order of the Department of Human Services, dated

February 15, 2024, is AFFIRMED.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philadelphia County Department :

of Human Services, :

Petitioner :

:

v. : No. 292 C.D. 2024

: Argued: November 7, 2024

Department of Human Services, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION BY

JUDGE DUMAS FILED: July 2, 2025

I respectfully dissent. The Philadelphia County Department of Human

Services (Agency) was entitled to the Section 6381(d) of the Child Protective

Services Law (CPSL) evidentiary presumption because Child’s near-fatal ingestion

of fentanyl was abuse that would not ordinarily occur but for J.R.’s (Mother) acts or

omissions. See 23 Pa.C.S. § 6381(d).1 The Administrative Law Judge (ALJ) erred

by misapplying the presumption.

The CPSL protects children from abuse. 23 Pa.C.S. § 6302. To protect

children from abuse, the CPSL establishes a rebuttable presumption of “child abuse”

when a child has suffered abuse that could not occur but for the parent’s acts or

omissions. Id. § 6381(d). “Child abuse” includes “causing serious physical neglect

1

Section 6381(d) of the CPSL follows: “Evidence that a child has suffered child abuse of

such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions

of the parent or other person responsible for the welfare of the child shall be prima facie evidence

of child abuse by the parent or other person responsible for the welfare of the child.” 23 Pa.C.S. §

6381(d).

of a child,” which is relevantly defined as a “repeated, prolonged or egregious failure

to supervise a child in a manner that is appropriate considering the child’s

developmental age and abilities.” Id. § 6303(b.1)(7). The disjunctive “or” means a

single egregious failure to supervise may constitute child abuse when that failure

involves leaving deadly narcotics accessible to a toddler. See id. “Child abuse” also

includes injuring a child through a failure to act or creating a reasonable likelihood

of bodily injury through a failure to act. Id. § 6303(b.1)(1), (5).2

The Agency properly invoked the Section 6381(d) presumption.3 In my

view, the presumption is self-executing as nothing in Section 6381 requires

additional action before the Agency can invoke the presumption. See id. § 6381; see

also In re La.-Ra. W., 266 A.3d 1071, 1081 (Pa. Super. 2021).4 Nevertheless, even if

the presumption is not self-executing, the Agency timely invoked it in this case. Cf.

C.E. v. Dep’t of Pub. Welfare, 917 A.2d 348, 356 (Pa. Cmwlth. 2007); J.W. v. Dep’t

of Pub. Welfare, 9 A.3d 270, 272 (Pa. Cmwlth. 2010), abrogated on other grounds

by In re L.Z., 111 A.3d 1164, 1181 (Pa. 2015).

2

Specifically, Section 6303(b.1)(1) states “causing bodily injury to a child through any

recent act or failure to act” and Section 6303(b.1)(5) states “creating a reasonable likelihood of

bodily injury to a child through any recent act or failure to act.” 23 Pa.C.S. § 6303(b.1)(1), (5)

(citation modified).

3

Cf. In re A.S. (Pa. Super., No. 2178 EDA 2020, filed May 28, 2021), 2021 WL 2287455,

at *2 (resolving an agency’s invocation of the presumption because the child had ingested

fentanyl); In re B.E. (Pa. Super., No. 505 EDA 2023, filed Oct. 3, 2023), 2023 WL 6441352, at *6

(affirming the application of the presumption after the child ingested a near fatal dose of fentanyl).

I may cite to Superior Court decisions for their persuasive value. See Lerch v. Unemployment

Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018); see also Pa.R.A.P. 126.

4

The La.-Ra. W. Court suggested that the presumption is self-executing when the

caregivers were given the opportunity to present rebuttal evidence. La.-Ra. W., 266 A.3d at 1081

(agreeing with the agency “that the presumption is self-executing where [the agency’s] evidence

clearly and convincingly provided the requisite elements under section 6381(d) and where [the

parents] were given the opportunity to present rebuttal evidence through expert witnesses”).

Respectfully, the statutory language contains no such qualifiers. The Superior Court probably

intended to mean that the caregivers did not rebut the presumption.

LAD - 2

Turning to the record, I am reluctant to second guess the ALJ. However,

the caseworker, Sharina Johnson, testified that Mother did not present any

prescriptions for the pills spilled on the ground one day before Child’s near-fatal

fentanyl overdose—pills that Mother flushed down the toilet. See ALJ Op., 8/15/23,

at Findings of Fact, ¶¶ 39-40; Notes of Testimony (N.T.), 12/5/22, at 31, 51. Child

almost swallowed a pill that was on the ground before Mother removed it from

Child’s mouth, which reflects her knowledge of the risk to Child. See ALJ Op., at

Findings of Fact ¶ 17. Johnson also testified that Mother did not know everyone at

the party held the weekend prior and never provided contact information for any

invitees. See id. ¶ 46. While the speech therapist was present, Mother, as parent,

bore primary responsibility as the person who knew about the spilled pills and the

party. The therapist had no apparent knowledge of Mother’s prior conduct.

In my view, this record clearly and convincingly evidences Mother’s

insufficient actions or omissions. Mother knew of the risk after she removed a pill

from Child’s mouth. The record does not reflect any subsequent search by Mother

for any remaining pills prior to Child’s overdose. Someone irresponsibly left

fentanyl on the floor for Child to ingest while in Mother’s care.

Child’s near-fatal ingestion of fentanyl is “child abuse” triggering the

Section 6381(d) presumption. Child’s overdose is prima facie evidence of an injury

that could not occur but for Mother’s acts or omissions. Mother’s insufficient

cleanup efforts, whether from the spillage or the party, resulted in Child ingesting a

near fatal dose. Specifically, either (1) Mother egregiously failed to supervise Child;

(2) Mother recently failed to act by not cleaning up all of the spilled pills or

insufficient after-party cleaning; or (3) Mother created a reasonable likelihood of

injuring Child through her actions or omissions. Mother knew or should have known

LAD - 3

of the risk of injury to Child and disregarded it.5

In rejecting the presumption, the ALJ reasoned that the Agency’s

“evidence falls short of demonstrating a causal link between [Mother’s] conduct or

lack thereof and” Child’s injuries. ALJ Op. at 16 (emphasis added). In my view, the

Agency need not prove a causal link between Mother’s conduct and Child’s injury

because the presumption itself establishes that very connection. See In re N.B.-A.,

224 A.3d 661, 674 (Pa. 2020) (stating “evidence that a child has suffered child abuse

of such a nature as would ordinarily not be sustained or exist except by reason of the

acts of omissions of the parent . . . shall constitute prima facie evidence of child

abuse by the parent” (first emphasis in original)). The Legislature created this

presumption precisely to relieve agencies from the burden of proving causation in

cases when a child suffers injuries that ordinarily would not occur absent a parent’s

acts or omissions. See id. The ALJ’s apparent misapplication of the presumption

justifies vacating and remanding to have the ALJ correctly apply the law.6

I respectfully dissent, as I cannot support a result that contradicts the

CPSL’s purpose of protecting children from abuse.

LORI A. DUMAS, Judge

5

The majority discusses C.F. v. Department of Public Welfare, 804 A.2d 755 (Pa. Cmwlth.

2002), and Fayette County Children and Youth Services v. Department of Public Welfare (Pa.

Cmwlth., No. 310 C.D. 2008, filed Aug. 11, 2008) (Fayette), 2008 WL 9404950. C.F. involved a

mother’s brief absence. C.F., 804 A.2d at 756. Fayette addressed a parent leaving the child to

speak with a customer. Fayette, 2008 WL 9404950, at *1. Unlike those cases, which involve brief

absences, Mother’s own conduct created the conditions that almost led to Child’s death.

6

The ALJ also appears to suggest that because multiple adults had access to Child, the

presumption could not apply. ALJ Op. at 15-16. Any suggestion conflating access to Child with

Mother’s conduct has no basis in law. See 23 Pa.C.S. § 6381.

LAD - 4