§ 3490.4. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Accept for service—The county agency decides on the basis of the needs and problems of an individual to admit or receive the individual as a client of the agency or as required by a court order entered under the Juvenile Act.

   Agent of the county agency—A person who provides a children and youth social service either directly or under contract or through agreement with a county agency.

     (i)   An agent of the county agency includes:

       (A)   Preadoptive parents.

       (B)   Foster parents.

       (C)   Staff and volunteers of public and private residential child care facilities.

       (D)   Staff and volunteers of public and private day care centers, group day care homes and family day care homes.

       (E)   Staff and volunteers of public and private social service agencies.

       (F)   Staff and volunteers of county detention centers.

       (G)   Persons residing in the home of foster or preadoptive parents.

       (H)   A school employe of a facility or agency that is an agent of a county agency.

     (ii)   The term does not include staff of Commonwealth-operated youth development centers and youth forestry camps.

   Arrange—Make a service available to a client accepted for service through another agency or service provider which is not paid for by the county agency.

   Certified medical practitioner—A licensed physician, a licensed physician’s assistant or a certified registered nurse practitioner.

   CPSL—The Child Protective Services Law, 23 Pa.C.S. § §  6301—6385.

   Child—A person under 18 years of age.

   Child abuse

     (i)   The term child abuse means any of the following:

       (A)   Any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child.

       (B)   An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or exploitation of a child.

       (C)   A recent act, failure to act or series of the acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or exploitation of a child.

       (D)   Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide the essentials of life, including adequate medical care, which endangers a child’s life or development or impairs the child’s functioning.

     (ii)   A child will not be deemed to be physically or mentally abused based on injuries that result solely from environmental factors that are beyond the control of the parent or person responsible for the child’s welfare, such as inadequate housing, furnishings, income, clothing and medical care.

     (iii)   If, upon investigation, the county agency determines that a child has not been provided needed medical or surgical care because of seriously held religious beliefs of the child’s parents, guardian or person responsible for the child’s welfare, which beliefs are consistent with those of a bona fide religion, the child will not be deemed to be physically or mentally abused. The county agency shall closely monitor the child and shall seek court-ordered medical intervention when the lack of medical or surgical care threatens the child’s life or long-term health. In cases involving religious circumstances, all correspondence with a subject of the report and the records of the Department and the county agency may not reference ‘‘child abuse’’ and shall acknowledge the religious basis for the child’s condition, and the family shall be referred for general protective services, under Subchapter C of the CPSL (relating to general protective services), if appropriate.

   ChildLine—An organizational unit of the Department which operates a Statewide toll-free system for receiving reports of suspected child abuse established under section 6332 of the CPSL (relating to establishment of Statewide toll-free telephone number), refers the reports for investigation and maintains the reports in the appropriate file. In addition, it also receives reports of student abuse under Subchapter C.1 of the CPSL (relating to students in public and private schools).

   Child protective services—Those services and activities provided by the Department and each county agency for child abuse cases.

   County agency——

     (i)   The county children and youth social service agency established under section 405 of the County Institution District Law (62 P. S. §  2205), or its successor, and supervised by the Department under Article VII of the Public Welfare Code (62 P. S. § §  701—774).

     (ii)   The term also includes the Department’s Office of Children, Youth and Families’ regional offices when the report of suspected child abuse or student abuse involves an agent of the county agency.

   County plan—A needs-based plan and budget estimate which serves as the basis for administration of the county children and youth social services program required by Chapter 3140 (relating to planning and financial reimbursement requirements for county children and youth social service programs).

   Court designated advocate—A trained citizen volunteer appointed by the court to advocate on behalf of dependent children and alleged dependent children involved in juvenile court proceedings.

   Crimes Code—Title 18 of the Pennsylvania Consolidated Statutes.

   Department—The Department of Public Welfare of the Commonwealth.

   Director of a hospital or other medical facility—The director or a person specifically designated in writing by the director to perform the functions under section 6315 of the CPSL (relating to taking child into protective custody) and this chapter.

   Expunge—To strike out or obliterate entirely so that the stricken information may not be stored, identified or later recovered by any means—mechanical, electronic or otherwise.

   Family members—Spouses, parents and children or other persons related by consanguinity or affinity. The term does not include foster parents, foster children and paramours.

   Founded report—A child abuse report made under the CPSL and this chapter if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused, including the entry of a plea of guilty or nolo contenderee or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse.

   Indicated report—A child abuse report made under the CPSL and this chapter if an investigation by the county agency or the Department determines that substantial evidence of the alleged abuse exists based on any of the following:

     (i)   Available medical evidence.

     (ii)   The child protective service investigation.

     (iii)   An admission of the acts of abuse by the perpetrator.

   Individual residing in the same home as the child—An individual who is 14 years of age or older and who resides in the same home as the child.

   Juvenile Act—42 Pa.C.S. Chapter 63.

   Law enforcement official—The term includes the following:

     (i)   The Attorney General.

     (ii)   A county district attorney.

     (iii)   A State Police officer.

     (iv)   A county sheriff.

     (v)   A county police officer.

     (vi)   A county detective.

     (vii)   A local or municipal police officer.

   Medical evidence—Evidence provided by a licensed health care professional, including a physician, nurse practitioner, registered nurse, psychiatrist or licensed psychologist.

   Paramour—A person who is engaged in an ongoing intimate relationship with a parent of the child but is not married to and does not necessarily reside with the child’s parent.

   Parent—A biological parent, adoptive parent or legal guardian.

   Pending criminal court action—The status assigned to a report when the county agency cannot complete the investigation within 30-calendar days because criminal court action has been initiated.

   Pending juvenile court action—The status assigned to a report when the county agency cannot complete the investigation within 30-calendar days because juvenile court action has been initiated.

   Performance audit—A review of a county agency’s practices and implementation of the CPSL and this chapter by persons designated by the Secretary.

   Perpetrator—A person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as the child or a paramour of the child’s parent.

   Person responsible for the child’s welfare——

     (i)   A person who provides permanent or temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision and control.

     (ii)   The term does not include a person who is employed by or provides services or programs in a public or private school, intermediate unit or area vocational-technical school.

   Physician—A person licensed under the statutes and regulations of the Commonwealth to practice medicine.

   Protective services—Services and activities provided by the Department and each county agency for children who are abused or in need of general protective services under this chapter.

   Provide—To perform an activity directly through county agency staff or ensure the performance of an activity through a purchase of service agreement with another agency or individual.

   Recent act or failure to act—An act or failure to act committed within 2 years of the date of the report of suspected child abuse to the Department or county agency.

   Regional staff—Department employes who license and monitor public and private children and youth social service agencies and facilities within a specific geographical area of this Commonwealth.

   Required reporters

     (i)   Persons who, in the course of their employment, occupation or practice of their profession come into contact with children and have reasonable cause to suspect, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is a victim of child abuse.

     (ii)   Except with respect to confidential communications made to an ordained member of the clergy which are protected under 42 Pa.C.S. §  5943 (relating to confidential communications to clergymen), the privileged communication between any professional person required to report and the patient or client of that person does not apply to situations involving child abuse and does not constitute grounds for failure to report as required by this subchapter.

     (iii)   Persons required to report include:

       (A)   A licensed physician, medical examiner, coroner, funeral director, dentist, optometrist, osteopath, chiropractor, psychologist, podiatrist, intern, registered nurse or licensed practical nurse.

       (B)   Hospital personnel engaged in the admission, examination, care or treatment of persons.

       (C)   A Christian Science practitioner, member of the clergy, school administrator, school teacher, school nurse, social services worker, day care center worker or another child care or foster care worker, mental health professional, peace officer or law enforcement official.

   Secretary—The Secretary of the Department or a person specifically designated in writing by the Secretary to perform the Secretary’s functions under the CPSL and this chapter.

   Serious bodily injury—Injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function of a body member or organ.

   Serious mental injury—A psychological condition as diagnosed by a physician or licensed psychologist, including the refusal of appropriate treatment, that does either of the following:

     (i)   Renders the child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child’s life or safety is threatened.

     (ii)   Seriously interferes with the child’s ability to accomplish age-appropriate developmental and social tasks.

   Serious physical injury—An injury that does either of the following:

     (i)   Causes the child severe pain.

     (ii)   Significantly impairs the child’s physical functioning, either temporarily or permanently.

   Serious physical neglect—A physical condition caused by the act or failure to act of a perpetrator which endangers the child’s life or development or impairs the child’s functioning and is the result of one of the following:

     (i)   Prolonged or repeated lack of supervision.

     (ii)   Failure to provide essentials of life, including adequate medical and dental care.

   Sexual abuse or exploitation

     (i)   Any of the following if committed on a child by a perpetrator:

       (A)   The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in sexually explicit conduct.

       (B)   A simulation of sexually explicit conduct for the purpose of producing a visual depiction, including photographing, videotaping, computer depicting or filming, of sexually explicit conduct.

       (C)   Any of the following offenses as defined by the crimes code:

   (1)  Rape as defined by section 3121 (relating to rape).

   (2)  Statutory sexual assualt as defined by section 3122.1 (relating to statutory sexual assault).

   (3)  Involuntary deviate sexual intercourse as defined by section 3123 (relating to involuntary deviate sexual intercourse).

   (4)  Sexual assault as defined by section 3124.1 (relating to sexual assault).

   (5)  Aggravated indecent assault as defined by section 3125 (relating to aggravated indecent assault).

   (6)  Indecent assault as defined by section 3126 (relating to indecent assault).

   (7)  Indecent exposure as defined by section 3127 (relating to indecent exposure).

   (8)  Incest as defined by section 4302 (relating to incest).

   (9)  Prostitution as defined by section 5902 (relating to prostitution and related offenses).

       (D)   Exploitation which includes any of the following:

   (1)  Looking at the sexual or other intimate parts of a child for the purpose of arousing or gratifying sexual desire in either person.

   (2)  Engaging or encouraging a child to look at the sexual or other intimate parts of another person for the purpose of arousing or gratifying sexual desire in any person involved.

   (3)  Engaging or encouraging a child to participate in sexually explicit conversation either in person, by telephone, by computer or by a computer aided device.

   Statewide Central Register—A register of child abuse and student abuse, established in the Department, which consists of founded and indicated reports of child abuse and student abuse.

   Status determination—The decision made by the county agency that a child abuse or student abuse report is founded, indicated, unfounded, pending juvenile court action or pending criminal court action.

   Subjects of the report—A child, parent, guardian or other person responsible for the welfare of a child or any alleged or actual perpetrator or school employe named in a report made to the Department or county agency under this subchapter.

   Substantial evidence—Evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion.

   Unfounded report—A report made under the CPSL and this chapter unless the report is a founded report or an indicated report.

Source

   The provisions of this §  3490.4 adopted December 20, 1985, effective January 1, 1986, 15 Pa.B. 4547; amended April 27, 1990, effective April 28, 1990 and apply retroactively to January 5, 1988, 20 Pa.B. 2286; amended July 2, 1999, effective July 3, 1999, 29 Pa.B. 3513. Immediately preceding text appears at serial pages (211715) to (211718), and (236831) to (236832).

Notes of Decisions

   Child Abuse

   Failure to raise the issue of whether the actions of the abuser fell within the statutory definition of child abuse constituted a waiver of that issue. B. E. v. Department of Public Welfare, 654 A.2d 290 (Pa. Cmwlth. 1995).

   The natural mother’s boyfriend lacked standing to appeal an order adjudicating the child to be dependent and awarding custody to the natural father, even though a report filed by Children and Youth Services implicating the boyfriend had been given ‘‘indicated’’ status. In re Interest of Garthwaite, 619 A.2d 356 (Pa. Super. 1993).

   A finding that a child suffered severe pain may be supported by circumstantial evidence and need not be supported by either testimony from the victim, or by unequivocal medical testimony to that effect. D. N. v. Department of Public Welfare, 562 A.2d 433 (Pa. Cmwlth. 1989).

   The court will not overturn factual findings and a conclusion of law by the Office of Hearings and Appeals regarding whether particular conduct constituted sexual assault where the issue raised by petitioner involved OHA’s specific findings as to the nature and extent of bodily contact considering height differences of the child and her father. J. S. v. Department of Public Welfare, 565 A.2d 862 (Pa. Cmwlth. 1989).

   Record failed to reveal substantial evidence of child abuse, where only evidence of severe pain was hearsay testimony of social worker and there was not evidence of impairment. N. B. v. Department of Public Welfare, 527 A.2d 623 (Pa. Cmwlth. 1987).

   Father is not entitled to expungement of indicated report of child abuse when substantial evidence indicates that he touched his daughter’s bare buttocks and insisted on bathing her and rubbing her ‘‘bottom real hard.’’ G. S. v. Department of Public Welfare, 521 A.2d 87 (Pa. Cmwlth. 1987).

   If a child’s injury is nonaccidental, then it is considered child abuse. To determine if an injury is nonaccidental, the Supreme Court has directed that a criminal negligence standard be applied. P. R. v. Department of Public Welfare, 801 A.2d 478 (Pa. 2002).

   Child Abuse-Pain

   Day care operator’s argument that because neither the child’s mother nor the child’s doctor testified regarding any pain, the Department of Public Welfare failed to sustain its burden of proof under this regulation was rejected. The evidence demonstrated that the child winced when the bruised area was touched and that the child screamed when the mother attempted to apply a cold compress or ice to the bruised area; thus, demonstrating an injury that resulted in severe pain. S. T. v. Department of Public Welfare, 681 A.2d 853 (Pa. Cmwlth. 1996); appeal denied 690 A.2d 1165 (Pa. 1997).

   Serious Physical Injury

   Wincing when a bruised area is touched and screaming when an attempt is made to apply cold compresses or ice to a bruised area are sufficient to establish an injury resulting in severe pain. S. T. v. Department of Public Welfare, Lackawanna County Office, Children Youth & Family Services, 681 A.2d 853 (Pa. Cmwlth. 1996), appeal denied, 690 A.2d 1165 (Pa. 1997).

   Serious Physical Neglect

   Mother’s conduct on one occasion where she left a 10 1/2 month old child alone on an upper bunk bed for 15 minutes, during which time the child died from asphyxiation, determined by medical examiner as an accident, does not constitute ‘‘serious physical neglect’’ as defined in §  3490.4. Therefore, it was error not to expunge petitioner’s record of indicated child abuse. C. F. v. Department of Public Welfare, 804 A.2d 755 (Pa. Cmwlth. 2002).

Cross References

   This section cited in 28 Pa. Code § §  611.5 (relating to definitions); 28 Pa. Code §  611.53 (relating to child abuse clearance); 55 Pa. Code §  3490.143 (relating to definitions); and 55 Pa. Code §  3490.223 (relating to definitions).



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