While having an ALJ rule in your client’s favor in a DHS matter is certainly a good thing for your client, there is a likelihood that it will have little, if any, impact on a parallel custody matter.
It is not uncommon for a custody matter to involve a parallel issue, investigation, or case with the Department of Human Services (DHS). DHS typically investigates and makes determinations regarding child abuse, child neglect, and similar issues. If an administrative law judge presiding over a DHS case makes a ruling as to child abuse, what, if any, authority does that carry with it in a custody matter involving the same child and parties? The recent matter of A.C. v. J.B., 1751 EDA 2022, attempts to shed some light on that question.
The matter in A.C. involved an allegation that the father sexually abused the child-at-issue (child) when the child was about 3 and a half years old. In December 2014 the court entered an order whereby the father and mother of the child would share custody over the child, with the mother having primary custody and the father having partial custody. The parties shared legal custody. This arrangement, with some minor variations, persisted until 2018 when the mother alleged that the child reported that he was sexually abused by the father. In light of this, the court entered a temporary order granting the mother sole physical and legal custody over the child.
Simultaneously, the DHS investigated the allegation of sexual abuse, which resulted in a finding that the abuse was “indicated.” In the beginning of 2019, the father filed a timely appeal of this DHS finding, and sought to have the finding of “indicated” expunged. A hearing was held on the father’s appeal before the Bureau of Hearings and Appeals (BHA). It may be noteworthy that the father represented himself at this hearing and directly cross-examined the child at the same.
After the hearing before the BHA, the administrative law judge (ALJ) issued an adjudication finding that DHS failed to meet its burden of proof to establish the father committed the abuse of which he was accused. As a result, the DHS was directed to expunge the indicated report mentioned above.
By 2020, based on his success before the BHA, the father filed to modify the custody order granting the mother sole custody. After a multiday trial at the end of 2021, during which multiple mental health experts testified, the court ruled that the mother would retain sole physical and legal custody, with two provisos: first, the father would have the right to be informed about the child’s medical care and education and other personal issues, and, second, the father and child would undergo reunification therapy.
In making its ruling, the court specifically found while the ALJ’s decision was admissible as evidence, the court was not bound by his decision, and did not accord it any weight accordingly. The father filed an appeal from the trial court’s decision to the Pennsylvania Superior Court on several grounds, all of which were found to be either waived or without merit; however, for the purposes of this article, the focus will be on the issue of the authority of the ALJ’s adjudication on the trial court’s order.
The Superior Court acknowledged that the ALJ ruled in the father’s favor due to the DHS not presenting substantial evidence. In so doing, the c ourt pointed out that the standard of proof before a BHA ALJ is “substantial evidence,” whereas the burden of proof before the trial court was “preponderance of the evidence.” Furthermore, the Superior Court also noted that the purpose of the BHA hearing is different from the custody hearing. The BHA hearing is to determine whether the commonwealth’s maintaining a record of an “indicated” finding is consistent with the Child Protective Services Law, whereas the trial court hearing a custody matter must make a decision according to what is in the best interests of the child, which is a much broader and significantly different purpose.
In addition, the trial court disagreed with the ALJ as to the credibility of the child. The Superior Court noted that, pursuant to normative and well-established law, it would not interfere with the trial court’s credibility determinations. Furthermore, the trial court’s reasons for disagreeing with the ALJ’s decision on credibility were reasonable. The trial court took issue with the fact that the child had to testify in open court at only 7 years old and without the support of his mother or the guardian ad litem, and had to get cross-examined by his alleged abuser (namely, the father).
Based on all of the above, the Superior Court affirmed the trial court’s decision not to accord the ALJ’s adjudication any weight in the custody matter. Ironically, however, the trial court itself also found that there was insufficient evidence to find that the father sexually abused the child, yet, due to the facts that the child himself appeared to have a sincere belief that he was sexually abused by the father, and that the father had not had any custody time with the child for about four years, the court did not believe it was in the best interest of the child to simply grant the father custody again without requiring reunification therapy to help them transition back into having a parent-child relationship.
The matter of A.C. v. J.B. serves as a cautionary tale to custody practitioners. While having an ALJ rule in your client’s favor in a DHS matter is certainly a good thing for your client, there is a likelihood that it will have little, if any, impact on a parallel custody matter.
By James W. Cushing, Esquire and published on June 23, 2023 in The Legal Intelligencer and can be found here and reprinted in the PA Family Lawyer in its Fall 2023 issue and can be found here.
James W. Cushing is senior associate at the Law Office of Faye Riva Cohen and managing attorney for Legal Research Inc., and sits on the executive committee of the family law section of the Philadelphia Bar Association.
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