In the Interest of: L.S.-A., a Minor ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.S.-A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: L.A., MOTHER :
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: No. 750 EDA 2017
Appeal from the Order Entered February 21, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0002122-2016
BEFORE: PANELLA, MOULTON, and RANSOM, JJ.
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 10, 2017
L.A. (“Mother”) appeals from the February 21, 2017 orders entered in
the Philadelphia County Court of Common Pleas granting the petition of the
Philadelphia Department of Human Services (“DHS”) and adjudicating L.S.-
A. (“Child”) dependent pursuant to 42 Pa.C.S. § 6302, and finding
aggravated circumstances.1 We affirm.
The trial court summarized the procedural and factual history as
follows:
[L.S.-A] was born [i]n March [] 2016.
On September 15, 2016, DHS received a General
Protective Services (GPS) report alleging that [C]hild,
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Father has filed a separate appeal at Superior Court Docket No. 686
1
EDA 2017, which we address by separate Memorandum.
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L.S.[-A.,] was taken to Saint Christopher’s Hospital for
Children (SCHC) with multiple injuries. Injuries to the
child included: multi-layer retin[a]l hemorrhages, acute
subdural hematoma, unexplained brain bleeding and a
frenulum tear between his gums and lip believed to be
caused by an inflicted injury of abusive head trauma.
On September 16, 2016, DHS learned that the mother had
had her parental rights terminated as to the child’s, L.S.[-
A.]’s[,] three siblings.
On September 27, 2016[,] the child was scheduled to be
released from the hospital. DHS obtained an Order of
Protective Custody (OPC) for L.S.[-A.][2] L.S.[-A.] was
placed in a foster home through the Bethanna Agency.
On September 30, 2016, a shelter care hearing was held
before the Honorable Vincent W. Furlong. Judge Furlong
lifted the OPC and ordered the temporary commitment of
L.S.[-A.] to the care and custody of DHS.
Trial Court Opinion, 3/27/17, at 1-2 (unpaginated) (“1925(a) Op.”).
On October 4, 2016, DHS filed a dependency petition. The trial court
conducted an adjudicatory hearing on January 3, 2017 and February 10,
2017. DHS presented the testimony of Shanequa Lewis, DHS intake
investigative worker; Dr. Maria McColgan, child abuse pediatrician; L.A.,
maternal uncle; D.E.1, maternal uncle’s paramour; D.E.2, paramour’s
mother;3 and Melanie Davis, DHS intern.4 Mother and Father were present
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In its dependency order, the trial court based its findings of fact on
2
the dependency petition. Order of Adjudication and Disposition, 2/21/17.
The DHS petition states that Child was released and an OPC was obtained on
September 27, 2016. At the hearing, Ms. Lewis stated that this occurred on
September 26, 2016. N.T., 1/3/17, at 39.
3 L.A., D.E.1, and D.E.2 resided together.
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and represented by counsel, but did not testify or present evidence. At the
conclusion of the hearing on February 10, 2017, subsequent to argument,
the court held its decision under advisement. Thereafter, by order entered
February 21, 2017, the court adjudicated Child dependent pursuant to 42
Pa.C.S. § 6302 as a child “without proper parental care or control,
subsistence, education as required by law, or other care or control necessary
for his physical, mental, or emotional health, or morals.” Order of
Adjudication and Disposition – Child Dependent, 2/21/17; see also 42
Pa.C.S. § 6302 (definition of dependent child paragraph (1)). Further, by
separate order also entered February 21, 2017, the court found aggravated
circumstances, finding that “Child or another child of the parent has been
the victim of physical abuse resulting in serious bodily injury, sexual violence
or aggravated neglect by the parent; proven as to Mother and Father.” 5, 6
(Footnote Continued) _______________________
4 DHS also called Kina Sapp, the community umbrella agency case
manager to testify. Father and Mother objected, as her testimony was
irrelevant to the adjudication hearing. N.T., 2/10/17, at 91-92. The trial
court sustained the objection and informed DHS it could recall Ms. Sapp at
later proceedings if Child was adjudicated dependent. Id. at 92-93.
5 The trial court does not reference the prior terminations of parental
rights as to Mother in its aggravated circumstances order. Aggravated
Circumstances Order, 2/21/17.
6 Despite a finding of aggravated circumstances, the court ordered that
efforts were to continue to be made towards reunification. Aggravated
Circumstances Order, 2/21/17.
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Aggravated Circumstances Order, 2/21/17; see 42 Pa.C.S. §6302 (defining
“aggravated circumstances” paragraph (2)).7
On February 27, 2017, Mother filed a timely notice of appeal, along
with a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed its opinion pursuant to
Pa.R.A.P. 1925(a) on March 27, 2017.8
Mother raises the following issues for our review: (1) “The Trial Court
erred in that it failed to address inconsistency in the statements of witnesses
in assessing credibility”; (2) “[t]he Trial Court opinion cited a circumstance
in determining aggravated circumstances which was not cited in the notice
to the Appellant, violating due process”; (3) “[t]he Trial Court erred in
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7The court’s orders finding Child dependent and finding aggravated
circumstances did not include a finding of “child abuse” pursuant to 23
Pa.C.S. § 6303(b.1). Although the trial court stated at the hearing that it
found “child abuse” existed, N.T., 2/21/17, at 5, the court did not include a
finding of child abuse under section 6303 in either its adjudication order or
its aggravated circumstances order. Order of Adjudication and Disposition –
Child Dependent, 2/21/17. Rather, the trial court found “physical abuse” as
an aggravating circumstance under section 6302. The parties in their briefs
and the trial court in its Rule 1925(a) opinion discuss section 6303.
However, because the trial court did not include a finding of child abuse
under section 6303 in its final orders, any challenge to such a finding cannot
be addressed on appeal. See Pa.R.A.P. 341 (an appeal may be taken from
an order entered as a final order).
The trial court addressed both Mother’s and Father’s appeals in the
8
same opinion.
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adjudicating the child Dependent in that the basis for the adjudication was
the incorrect determination of child abuse.” Mother’s Br. at 1, 5.9
Counsel for Child argues that Mother’s appeal should be quashed
and/or dismissed for its substantial defects.
We have held that an appeal may be dismissed and/or quashed where
the deficiencies of the appellant’s brief are such that we are unable to
conduct a meaningful review. Karn v. Quick & Reilly, Incorp., 912 A.2d
329, 335 (Pa.Super. 2006); Branch Banking & Tr. v. Gesiorski, 904 A.2d
939, 943 (Pa.Super. 2006); Commonwealth v. Maris, 629 A.2d 1014,
1017 (Pa.Super. 1993). Mother’s brief contains only an Argument section.
It does not include a statement of jurisdiction, order or other determination
in question, statement of either the scope of review or the standard of
review, statement of the questions involved, statement of the case, or
summary of argument as required by Pennsylvania Rule of Appellate
Procedure 2111. Nevertheless, such defects in Mother’s brief, while serious,
do not hamper meaningful review. Despite failure to follow the appropriate
format and contain all of the appropriate sections and information, Mother’s
arguments on appeal are readily discernible. As we find Mother’s arguments
comprehensible, we decline to dismiss and/or quash Mother’s appeal.
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9Mother’s brief fails to contain a “statement of questions involved”
section. Her brief, however includes an argument section setting forth the
issues raised.
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We, therefore, turn to the merits and address Mother’s challenge to
the trial court’s findings of dependency and aggravated circumstances.
Our standard of review for dependency cases is as follows:
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by
the record, but does not require the appellate court to
accept the lower court’s inferences or conclusions of law.
Accordingly, we review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citations omitted); see also In
re L.Z., 111 A.3d 1164, 1174 (Pa. 2015). “The trial court is free to believe
all, part, or none of the evidence presented, and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.” In re M.G.,
855 A.2d 68, 73-74 (Pa.Super. 2004) (quoting In re Diaz, 669 A.2d 372,
375 (Pa.Super. 1995)).
Mother argues that “the trial court failed to address discrepancies in
the testimony of key witnesses. Therefore, dependency was not determined
by clear and convincing evidence.” Mother’s Br. at 5.10 We disagree.
This Court has stated:
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10 Mother references conflicting testimony between maternal uncle,
uncle’s paramour, and paramour’s mother. Mother’s Br. at 4 (“[D.E.1]
testified that she was holding the child, L.S.-A., from the time she went into
his room because of his crying until she passed him to her paramour so she
could dial 911. However, her mother testified, that when she went into the
bedroom and told her daughter to call 911, the child was actually in bed and
not being held by [D.E.1]. The paramour, L.A. further complicated matters
by referring to what occurred as an accident.”).
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[T]o adjudicate a child dependent, a trial court must
determine, by clear and convincing evidence, that the
child:
is without proper parental care or control,
subsistence, education as required by law, or
other care or control necessary for his physical,
mental, or emotional health, or morals. A
determination that there is a lack of proper
parental care or control may be based upon
evidence of conduct by the parent, guardian or
other custodian that places the health, safety
or welfare of the child at risk.
42 Pa.C.S.[] § 6302. “Clear and convincing” evidence has
been defined as testimony that is “so clear, direct,
weighty, and convincing as to enable the trier of facts to
come to a clear conviction, without hesitancy, of the truth
of the precise facts in issue.” In re C.R.S., 696 A.2d 840,
843 (Pa.Super. 1997) (citation omitted).
In accordance with the overarching purpose of the Juvenile
Act “[t]o preserve the unity of the family wherever
possible,” see 42 Pa.C.S.[] § 6301(b)(1), “a child will only
be declared dependent when he is presently without
proper parental care and when such care is not
immediately available.” In re R.T., [] 592 A.2d 55, 57
([Pa.Super.] 1991) (citation omitted). This Court has
defined “proper parental care” as “that care which (1) is
geared to the particularized needs of the child and (2) at a
minimum, is likely to prevent serious injury to the child.”
In re C.R.S., supra at 845 (citation omitted).
In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013).
In adjudicating Child dependent, the trial court concluded:
In the instant case, Dr. Maria McColgan, an expert in child
protection and child abuse, testified that she examined
L.S.[-A.] at SCHC on September 16, 2016. L.S.[-A.] was
five months old. Dr. McColgan observed that the child was
agitated and fussy. He had a frenulum tear which is a tear
to the tissue between the lips and gums. Additionally, the
child presented with a bulging fontanelle, the soft spot on
top of the head. The bulging indicated that there was
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increase[d] pressure in the fluid around the brain or in the
brain itself. After several tests including a [CAT] scan,
MRI, and x-rays, the child was diagnosed with a subdural
hemorrhage, bilateral retinal hemorrhages and a frenulum
tear. Furthermore, the child required neurosurgery to
relieve the pressure in his brain. Moreover, the child had a
drain placed into his head. The drain was necessary to
help alleviate the pressure to the brain and to enable the
brain to heal.
Dr. McColgan testified that the injuries may have been the
result of one incident or multiple incidents. There were
indications that the child had symptoms prior to
September 15, 2016. On September 10, 2016, the child
was taken to Einstein [H]ospital because he was vomiting
and not feeding well.[11] Vomiting is a symptom of
increased pressure in the head. Dr. McColgan was
concerned that the previous episode of vomiting was
caused by the pressure to the brain since there was no
other medical reason to explain it. At SCHC, the child
continued to suffer episodes of vomiting. Dr. McColgan
testified that additional testing was ordered to determine if
there were any underlying medical reasons for the brain
injury. The results were negative – there were no
underlying medical reasons for the brain injury.
Additionally, the doctor testified that the injuries were NOT
the result of accidental trauma. The doctor concluded that
the injuries were the result of child abuse.
The DHS investigative worker testified that on September
15, 2016 the mother took the child to the home of his
maternal uncle. The mother and father were working and
the uncle’s paramour was babysitting. The maternal uncle,
his paramour, and the paramour’s mother were present in
the home. The mother placed the child on a bed. She
informed the paramour that the child was asleep and the
mother left. Approximately ninety minutes later, the
paramour went to feed the child. The child was crying,
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11There is conflicting evidence as to the date Child was taken to
Einstein Hospital; however, it appears it was somewhere between
September 10 and September 12.
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appeared limp and very pale. The paramedics arrived and
transported the child to the hospital. The DHS
investigative worker stated that throughout the
investigation the paramour, the maternal uncle and the
paramour’s mother were cooperative with her and
consistent with their statements. Furthermore, the
paramour, the uncle and the paramour’s mother testified
at the dependency hearing and their statements were
consistent with those previously given to the DHS worker.
The DHS worker testified that the mother and father made
inconsistent statements throughout the investigation. The
mother and father were inconsistent regarding the number
of caregivers for the child, the timeline for the admission
to Einstein Hospital and their recollection of events.
Furthermore, the mother and the father denied having
other children to the DHS social worker. The DHS worker
learned that the father has adult children and the mother
has three other children. Moreover, on June 11, 2012 the
mother had her [parental] rights terminated for two of her
children. On May 5, 2014, the mother had her parental
rights terminated for the third child.[12] The DHS
investigation concluded that the perpetrators of the child
abuse were the mother and father.
1925(a) Op. at 2-4 (unpaginated) (citations to record omitted).
Upon careful review of the record, we conclude that the trial court
considered all the testimony and that the evidence supports the trial court’s
finding of dependency. We further conclude that the trial court did not
abuse its discretion when it adjudicated Child dependent.
Next, we address the trial court’s finding of aggravated circumstances.
Mother’s brief challenges the trial court’s determination of “child abuse”
under section 6303. However, the trial court’s orders did not include such a
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12 See DHS Exhibit 1.
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finding. See supra n.7. Mother did not challenge a finding of aggravated
circumstances due to physical abuse. Accordingly, Mother has waived a
challenge to the finding of aggravated circumstances. Further, even if we
were to construe Mother’s challenge to the finding of “child abuse” as a
challenge to the trial court’s finding of aggravated circumstances based on
physical abuse, we would conclude it lacks merit .13
Pursuant to 42 Pa.C.S. § 6341(c.1):
(c.1) Aggravated circumstances.--If the county
agency or the child’s attorney alleges the existence of
aggravated circumstances and the court determines that
the child is dependent, the court shall also determine if
aggravated circumstances exist. If the court finds from
clear and convincing evidence that aggravated
circumstances exist, the court shall determine whether or
not reasonable efforts to prevent or eliminate the need for
removing the child from the home or to preserve and
reunify the family shall be made or continue to be made
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13Mother also contends that the trial court failed to provide her with
notice, in violation of due process, with regard to the finding of aggravated
circumstances as to prior terminations of parental rights. Mother’s Br. at 5.
Mother states,
In his opinion, the trial judge found that aggravated
circumstances for the mother occurred because of child abuse
and past terminations of parental rights. The notice given to the
mother only cites child abuse as the reason for the
determination of aggravated circumstances. Therefore[,] the
notice issued to the mother is deficient and violates due process.
Id. at 5. We conclude this claim lacks merit. The order found aggravated
circumstances based on physical abuse. As discussed above, the finding of
aggravated circumstances due to physical abuse is supported by the record.
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and schedule a hearing as required in section 6351(e)(3)
(relating to disposition of dependent child).
“Aggravated circumstances” are defined by 42 Pa.C.S. § 6302, in part,
as:
Any of the following circumstances:
...
(2) The child or another child of the parent has been
the victim of physical abuse resulting in serious bodily
injury, sexual violence or aggravated physical neglect by a
parent.
...
(5) The parental rights of the parent have been
involuntarily terminated with respect to a child of the
parent.”
42 Pa.C.S. § 6302. In turn, “serious bodily injury” is defined as “[b]odily
injury which creates a substantial risk of death or which causes serious,
permanent disfigurement or protracted loss or impairment of the function of
any bodily member or organ.” Id. Further, “aggravated physical neglect”
is defined as “[a]ny omission in the care of a child which results in a life-
threatening condition or seriously impairs the child's functioning.” Id.
Moreover, as we stated in In re R.P.: “The court need not find the
existence of aggravated circumstances as to a particular party; rather, it
merely must determine whether they are present in the case. This is so . . .
because the focus is not on the rights of the [p]arents; instead, the
children’s safety, permanence, and well-being take precedence.” 957 A.2d
1205, 1219 (Pa.Super. 2008).
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In supporting the finding of aggravated circumstances the trial court
stated “due to the extensive injuries and physical trauma to the child – the
Trial Court found that aggravated circumstances . . . exist to the mother and
father.” 1925(a) Op. at 5 (unpaginated).
The evidence discussed above, including that the medical expert
opined that Child suffered “inflicted traumatic brain injury or physical
abuse,” N.T., 2/10/17, at 11, 36, requiring neurosurgery and the placement
of a drain to relieve the pressure on the brain, id. at 9, 11-12, supports a
finding of aggravated circumstances based upon physical abuse to Child.
See 42 Pa.C.S. § 6302. We conclude the trial court did not abuse its
discretion in finding aggravated circumstances.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
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