In the Interest of: I.L., a Minor ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: I.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: J.L., FATHER :
: No. 1457 EDA 2015
Appeal from the Order Entered April 8, 2015,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. DP# CP-51-DP-0000141-2015,
FN# 51-FN-002667-2014
IN THE INTEREST OF: I.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: J.L., FATHER :
: No. 1459 EDA 2015
Appeal from the Order Entered April 8, 2015,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. DP# CP-51-DP-0002926-2014,
FN# 51-FN-002667-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 09, 2016
J.L. (“Father” or “Putative Father”) appeals from the orders, dated and
entered on April 8, 2015, that found child abuse as to a female child, I.S.
(“Child 1”), born in March of 2007, and granted the petition filed by the
Philadelphia Department of Human Services (“DHS” or the “Agency”) to
adjudicate a second male child, I.L. (“Child 2”), born in January of 2015
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(collectively referred to as “Children”) dependent pursuant to the Juvenile
Act, 42 Pa.C.S.A. § 6302(1).1 We affirm.
In its opinion entered on August 31, 2015, the trial court set forth the
following factual background and procedural history regarding Father’s
appeal, which we incorporate herein, as follows.
On December 12, 2014, the Department of
Human Services (“DHS”) received a Child Protective
Services (CPS) report alleging that Child 1 had
vaginal discharge for two weeks; that on
December 10, 2014, Mother took Child 1 to the
pediatrician; that a culture was done and it indicated
that Child 1 contracted gonorrhea; that sexual abuse
had occurred and that the perpetrator was
unidentified. The report further alleged that
[M]other denied knowing who abused Child 1 and
Child 1 denied being touched in a sexual
inappropriate manner. The report also alleged that
Child 1’s [m]other was one of her primary caregivers
and that this family had a history with DHS. The
CPS report was indicated due to the fact that Mother
and [f]ather of Child 2 tested positive for gonorrhea.
(N.T. 4/8/15, pg. 50). Both Mother and [f]ather of
Child 2 live with the Children. (N.T. 4/8/15, pg. 47).
Father is only the biological [f]ather to Child 2.
On December 12, 2014, DHS obtained an
Order of Protective Custody (“OPC”) for Child 1 to
ensure her safety and well-being. Child 1 was placed
in foster care through Turning Points for Children,
where she currently remains. The whereabouts of
1
In separate orders entered on April 8, 2015, the trial court found Child 1
dependent pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6302(1), with
placement in foster care and a permanency goal of return to parent or
guardian, 42 Pa.C.S.A. § 6351, and found aggravated circumstances against
Mother pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6341([c])(1). Mother
(“Mother”) has filed a separate appeal, which we address in a separate
memorandum at Docket Nos. 1393 and 1395 EDA 2015. Mother has filed
her own appeal, and she is not a party in the present appeal.
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Child 1[’s] biological father [are] unknown. On
December 15, 2014, at the Shelter Care hearing, the
trial court ordered the OPC to be lifted and the
temporary commitment to DHS stand. DHS was
ordered to explore other family members as possible
placement resources. [On December 17, 2014, DHS
filed a dependency petition.] On December 19,
2014, the trial court granted [a] continuance and
deferred the adjudication hearing. On February 20,
2015, the trial court granted [a] continuance due to
Father’s attorney’s unavailability. [On April 8, 2015,
the trial court held the adjudicatory hearing on the
dependency petition.][Footnote 1] On April 8, 2015,
the trial court adjudicated the Children dependent,
found child abuse as to Child 1, as to [M]other and
also found that aggravated circumstances existed as
to Child 1 against [M]other[,] but DHS must make
reasonable efforts to reunify [Child 1] with [M]other.
Child abuse was also found against [F]ather of
Child 2 as to Child 1. (N.T. 4/8/15, pg. 92-96).
[Footnote 1] At the hearing, DHS
presented the testimony of Maria
McColgan, the director of the child
protection program at St. Christopher’s
Hospital for Children, and a stipulated
expert in child abuse pediatrics. N.T.,
4/8/15, at 6-8. DHS also presented the
testimony of Dawn George, a DHS social
worker investigator in the specialty unit
assigned to the case. Id. at 43. DHS
then presented the testimony of
Christina Cross, the Community Umbrella
Agency (“CUA”) case manager from
Turning Points for Children. Id. at 57.
Mother testified on her own behalf. Id.
at 65.
Trial court opinion, 9/3/15 at 1-2 [Father] (footnotes added).
On May 8, 2015, Father filed notices of appeal, along with concise
statements of errors complained of on appeal pursuant to
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Pa.R.A.P. 1925(a)(2)(i) and (b). On June 8, 2015, this court, sua sponte,
entered an order consolidating the appeals.
Father raises two issues on appeal:
Whether the trial court erred and/or abused its
discretion by adjudicating the child I.L. dependent
pursuant to 42 Pa.C.S.A. [§] 6301, 6302 and 6341.
Whether the trial court erred and/or abused its
discretion by determining that Appellant (and
Mother) had abused the child pursuant to
23 Pa.C.S.A. [§] 6301 and 6303.
Father’s brief, at 4.2
Father’s arguments in his brief amount to challenges to the sufficiency
of the evidence to support the trial court’s determinations in its orders on
appeal.
The Pennsylvania Supreme Court recently set forth our standard of
review in a dependency case as follows.
“The standard of review in dependency cases
requires an appellate court to accept 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.” In re
R.J.T., 608 Pa. 9, [27], 9 A.3d 1179, 1190 (Pa.
2010). We review for abuse of discretion[.]
In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).
Section 6302 of the Juvenile Act defines a “dependent child” as:
2
Father stated his issues somewhat differently in his concise statements.
We, nevertheless, find them preserved for this court’s review.
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[a] child who:
(1) 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.A. § 6302.
In In re G., T., 845 A.2d 870 (Pa.Super. 2004), this court clarified the
definition of “dependent child” further.
The question of whether a child is lacking proper
parental care or control so as to be a dependent
child encompasses two discrete questions: whether
the child presently is without proper parental care
and control, and if so, whether such care and control
are immediately available.
Id. at 872 (internal quotations and citations omitted); see also In re J.C.,
5 A.3d 284, 289 (Pa.Super. 2010). Additionally, we note that “[t]he burden
of proof in a dependency proceeding is on the petitioner to demonstrate by
clear and convincing evidence that a child meets that statutory definition of
dependency.” G., T., 845 A.2d at 872.
With regard to a dependent child, in In re D.A., 801 A.2d 614(Pa.Super. 2002) (en banc), this court explained:
[A] court is empowered by 42 Pa.C.S. § 6341(a)
and (c) to make a finding that a child is dependent if
the child meets the statutory definition by clear and
convincing evidence. If the court finds that the child
is dependent, then the court may make an
appropriate disposition of the child to protect the
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child's physical, mental and moral welfare, including
allowing the child to remain with the parents subject
to supervision, transferring temporary legal custody
to a relative or public agency, or transferring custody
to the juvenile court of another state. 42 Pa.C.S.
§ 6351(a).
Id. at 617.
The Juvenile Act defines “Aggravated circumstances” as including 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 the parent.
42 Pa.C.S.A. § 6302.
The Juvenile Act defines “serious bodily injury” as “bodily 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.” 42 Pa.C.S.A. § 6302. The Juvenile Act defines
“sexual violence” as follows.
“Sexual violence.” Rape, indecent contact as
defined in 18 Pa.C.S. § 3101 (relating to definitions),
incest or using, causing, permitting, persuading or
coercing the child to engage in a prohibited sexual
act as defined in 18 Pa.C.S. § 6312(a) (relating to
sexual abuse of children) or a simulation of a
prohibited sexual act for the purpose of
photographing, videotaping, depicting on computer
or filming involving the child.
42 Pa.C.S.A. § 6302.
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The Juvenile Act, in turn, defines “aggravated physical neglect” as,
“Any omission in the care of a child which results in a life-threatening
condition or seriously impairs the child’s functioning.” Id.
Upon a determination that aggravated circumstances exist, the
Juvenile Act at 42 Pa.C.S.A. § 6341(c.1), states the following.
(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 and
schedule a hearing as required in section 6351(e)(3)
(relating to disposition of dependent child).
42 Pa.C.S.A. § 6341(c.1).
Regarding the disposition of a dependent child, Section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for
its permanency plan for the subject child. Pursuant to those subsections of
the Juvenile Act, the trial court is to determine the disposition that is best
suited to the safety, protection and physical, mental and moral welfare of
the child.
Section 6351(e) of the Juvenile Act provides in pertinent part:
(e) Permanency hearings.--
(1) [t]he court shall conduct a
permanency hearing for the purpose of
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determining or reviewing the
permanency plan of the child, the date
by which the goal of permanency for the
child might be achieved and whether
placement continues to be best suited to
the safety, protection and physical,
mental and moral welfare of the child.
In any permanency hearing held with
respect to the child, the court shall
consult with the child regarding the
child’s permanency plan in a manner
appropriate to the child's age and
maturity. . . .
(2) If the county agency or the
child’s attorney alleges the existence
of aggravated circumstances and the
court determines that the child has
been adjudicated dependent, the
court shall then 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 child's parent,
guardian or custodian or to preserve
and reunify the family shall be made
or continue to be made and schedule
a hearing as provided in paragraph
(3).
....
42 Pa.C.S.A. § 6351(e) (some emphasis added).
Section 6351(f) of the Juvenile Act prescribes the pertinent inquiry for
the reviewing court:
(f) Matters to be determined at permanency
hearing.--
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At each permanency hearing, a court shall
determine all of the following:
(1) The continuing necessity for and
appropriateness of the placement.
(2) The appropriateness, feasibility and
extent of compliance with the
permanency plan developed for the child.
(3) The extent of progress made toward
alleviating the circumstances which
necessitated the original placement.
(4) The appropriateness and feasibility
of the current placement goal for the
child.
(5) The likely date by which the
placement goal for the child might be
achieved.
(5.1) Whether reasonable efforts were
made to finalize the permanency plan in
effect.
(6) Whether the child is safe.
(7) If the child has been placed outside
the Commonwealth, whether the
placement continues to be best suited to
the safety, protection and physical,
mental and moral welfare of the child.
....
(9) If the child has been in placement
for at least 15 of the last 22 months or
the court has determined that
aggravated circumstances exist and that
reasonable efforts to prevent or eliminate
the need to remove the child from the
child’s parent, guardian or custodian or
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to preserve and reunify the family need
not be made or continue to be made,
whether the county agency has filed or
sought to join a petition to terminate
parental rights and to identify, recruit,
process and approve a qualified family to
adopt the child unless:
(i) the child is being cared
for by a relative best suited
to the physical, mental and
moral welfare of the child;
(ii) the county agency has
documented a compelling
reason for determining that
filing a petition to terminate
parental rights would not
serve the needs and welfare
of the child; or
(iii) the child’s family has
not been provided with
necessary services to achieve
the safe return to the child’s
parent, guardian or custodian
within the time frames set
forth in the permanency
plan.
....
(f.1) Additional determination.--Based upon the
determinations made under subsection (f) and all
relevant evidence presented at the hearing, the court
shall determine one of the following:
(1) If and when the child will be
returned to the child’s parent, guardian
or custodian in cases where the return of
the child is best suited to the safety,
protection and physical, mental and
moral welfare of the child.
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(2) If and when the child will be placed
for adoption, and the county agency will
file for termination of parental rights in
cases where return to the child’s parent,
guardian or custodian is not best suited
to the safety, protection and physical,
mental and moral welfare of the child.
(3) If and when the child will be placed
with a legal custodian in cases where
return to the child’s parent, guardian or
custodian or being placed for adoption is
not best suited to the safety, protection
and physical, mental and moral welfare
of the child.
(4) If and when the child will be placed
with a fit and willing relative in cases
where return to the child’s parent,
guardian or custodian, being placed for
adoption or being placed with a legal
custodian is not best suited to the safety,
protection and physical, mental and
moral welfare of the child.
(5) If and when the child will be placed
in another living arrangement intended
to be permanent in nature which is
approved by the court in cases where the
county agency has documented a
compelling reason that it would not be
best suited to the safety, protection and
physical, mental and moral welfare of the
child to be returned to the child’s parent,
guardian or custodian, to be placed for
adoption, to be placed with a legal
custodian or to be placed with a fit and
wiling relative.
(f.2) Evidence.--Evidence of conduct by the parent
that places the health, safety or welfare of the child
at risk, including evidence of the use of alcohol or a
controlled substance that places the health, safety or
welfare of the child at risk, shall be presented to the
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court by the county agency or any other party at any
disposition or permanency hearing whether or not
the conduct was the basis for the determination of
dependency.
(g) Court order.--On the basis of the
determination made under subsection (f.1), the
court shall order the continuation, modification
or termination of placement or other
disposition which is best suited to the safety,
protection and physical, mental and moral
welfare of the child.
....
42 Pa.C.S.A. § 6351 (some emphasis added).
At the time of the decision in this matter, Section 6303(b) of the Child
Protective Services Law (“CPSL”), provided”
(b.1) Child abuse.--The term “child abuse” shall
mean intentionally, knowingly or recklessly doing
any of the following:
(1) Causing bodily injury to a child
through any recent act or failure to act.
(2) Fabricating, feigning or intentionally
exaggerating or inducing a medical
symptom or disease which results in a
potentially harmful medial evaluation or
treatment to the child through any
recent act.
(3) Causing or substantially contributing
to serious mental injury to a child
through any act or failure to act or series
of such acts or failures to act.
(4) Causing sexual abuse or exploitation
of a child through any act or failure to
act.
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(5) Creating a reasonable likelihood of
bodily injury to a child through any
recent act or failure to act.
(6) Creating a likelihood of sexual abuse
or exploitation of a child through any
recent act or failure to act.
(7) Causing serious physical neglect of a
child.
(8) Engaging in any of the following
recent acts:
(i) Kicking, biting, throwing,
burning, stabbing or cutting
a child in a manner that
endangers the child.
(ii) Unreasonably restraining
or confining a child, based on
consideration of the method,
location or the duration of
the restraint or confinement.
(iii) Forcefully shaking a
child under one year of age.
(iv) Forcefully slapping or
otherwise striking a child
under one year of age.
(v) Interfering with the
breathing of a child.
(vi) Causing a child to be
present at a location while a
violation of 18 Pa.C.S.
§ 7508.2 (relating to
operation of
methamphetamine
laboratory) is occurring,
provided that the violation is
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being investigated by law
enforcement.
(vii) Leaving a child
unsupervised with an
individual, other that the
child’s parent, who the actor
knows or reasonably should
have known:
(A) Is required to
register as a Tier II or
Tier III sexual offender
under 42 Pa.C.S. Ch. 97
Subch. H (relating to
registration of sexual
offenders),[Footnote 8]
where the victim of the
sexual offense was
under 18 years of age
when the crime was
committed.
(B) Has been
determined to be a
sexually violent
predator under
42 Pa.C.S. § 9799.12
(relating to definitions).
(9) Causing the death of the child
through any act or failure to act.
....
[Footnote 8] 42 Pa.C.S.A. § 9799.10 et seq.
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23 Pa.C.S.A. § 6303 (footnote in original).3
The identity of the abuser(s) may be established by prima facie
evidence that the abuse normally would not have occurred except by reason
of acts or omissions of the caregivers. Section 6381 of the CPSL provides as
follows:
6381. Evidence in court proceedings.
(d) Prima facie evidence of abuse.--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.A. § 6381(d).
This court has stated:
[T]he focus of all dependency proceedings,
including change of goal proceedings, must be on the
safety, permanency, and well-being of the child. The
best interests of the child take precedence over all
other considerations, including the conduct and the
rights of the parent. . . . [W]hile parental progress
toward completion of a permanency plan is an
important factor, it is not to be elevated to
determinative status, to the exclusion of all other
factors.
In re A.K., 936 A.2d 528, 534 (Pa.Super. 2007).
3
The CPSL was amended, effective December 31, 2014, to broaden the
term “child abuse,” as explained in In Interest of: L.Z., 111 A.3d at
1168 n.3. Our supreme court’s decision in In Interest of: L.Z. involved an
application of the statute as it existed prior to the effective date of the
amendment.
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In In Interest of: L.Z., our supreme court considered the question of
whether this court, sitting en banc, improperly reversed the determination
of the trial court that the child at issue suffered child abuse, and, through
the application of the presumption of prima facie evidence of abuse set
forth at 23 Pa.C.S.A. § 6381(d), that the abuse was perpetrated by his
mother.
The facts in In Interest of: L.Z. were similar to the facts in the
instant case. A 20-month-old male infant was brought to an emergency
room by his mother and his maternal aunt, to be treated for a deep cut
nearly halfway around the base of his penis. The physicians at the hospital
noted bruising to the child’s cheeks, severe diaper rash, and a yeast
infection on the front of his body. Both women cared for the child together.
The physicians suspected child abuse, as the women’s explanations for the
injuries to the child were consistent with abuse, and the injuries were
inconsistent with the women’s explanations. The physicians also suspected
that the injuries were non-accidental.
The physician who treated the child at the hospital testified at the
dependency adjudication hearing as an expert in pediatric medicine. When
the doctor was asked whether the dark bruising to Child’s cheeks would
“cause a child severe pain,” she responded, “I am sure it couldn’t have been
very comfortable.” In Interest of: L.Z., 111 A.3d at 1168. The doctor
testified that the injuries (the penile laceration, cheek bruises and diaper
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rash/yeast infection) were “consistent with a pattern of suspected child
abuse,” and that the child was a “victim of child abuse.” Id.
The trial court found that the child was a victim of child abuse as
defined at 23 Pa.C.S.A. § 6303, and that the mother was the perpetrator of
the abuse. In Interest of: L.Z., 111 A.3d at 1168-1169. The court
transferred temporary legal custody of the child to the county agency, and
placed the child in his maternal grandfather’s physical custody, with his
parents receiving supervised weekly visitation. The trial court also entered
an order finding that aggravated circumstances existed because the child
was “the victim of physical abuse resulting in serious bodily injury, sexual
violence, or aggravated neglect by the parent; proven as to Mother.” Id. at
at 1169. The trial court concluded that the county agency did not need to
make further efforts to reunify the child with his mother.
The mother filed an appeal to this court. Sitting en banc, the majority
of the court affirmed the dependency adjudication but vacated the abuse
determination. The majority of the court en banc recognized that the
mother had waived certain issues for purposes of appellate review, as she
had voluntarily relinquished her parental rights while the appeal was
pending, prior to reargument. Id. The mother waived her challenges to the
trial court’s rulings that aggravated circumstances existed, and that the
county agency need not make reasonable efforts at reunification.
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The dissenting Judges sitting on the court en banc would have
affirmed the trial court’s findings that the child’s injuries constituted abuse.
The dissent took the position that the majority improperly limited the
evidentiary presumption of Section 6381(d) to find prima facie evidence of
an abuser’s identity only when the abuser was proven to be present at the
time of the injuries. Id. at at 1171.
The guardian ad litem for the child successfully sought relief in our
supreme court. Our supreme court held that presumption set forth in
Section 6381(d) was applicable to the case, and that the mother offered no
testimony to rebut it. Id. at at 1186. Our supreme court concluded that the
trial court properly found that the mother perpetrated the abuse on the child
either by inflicting the injuries, or by failing to protect the child from his
maternal aunt. Thus, our supreme court reversed this court’s en banc
decision, and reinstated the trial court’s order. Id.
In reaching this conclusion, our supreme court stated as follows.
[C]hild abuse cases often involve a child
presenting to a hospital with significant injuries that
are entirely consistent with common types of child
abuse and entirely inconsistent with the implausible
explanations concocted by the parents and
responsible persons to avoid allegations of child
abuse. As noted, in cases where multiple caregivers
are involved, the individuals frequently “circle the
wagons” or alternatively point fingers at each other.
As the children may be too young or fearful to
describe the abuse, CYS agencies are left to prove
their case with only the physical evidence of injuries
that would not ordinarily be sustained but for the
action of the parents or responsible persons and the
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implausible statements of the parents and
responsible persons. Thus, while they can prove the
existence of abuse rather easily, they have no ability
to assign responsibility for the heinous act among
the responsible adults. As Judge Tamilia observed in
1993, “the Legislature deemed it wise and necessary
to establish a different evidentiary standard” by
enacting Section 6381’s(d)’s presumption to avoid
this evidentiary conundrum and protect children from
future abuse. [In the Interest of J.R.W., 631 A.2d
1019, 1023 (Pa. Super. 1993)]. . . . We emphasize
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 inflicted
the injury or failed in their duty to protect the child.
Moreover, the Legislature balanced the
presumption of Section 6381(d) by making it
rebuttable as it merely establishes “prima facie
evidence” that the parent perpetrated the abuse.
23 Pa.C.S. § 6381(d). As commonly understood,
prima facie evidence is “[s]uch evidence as, in the
judgment of the law, is sufficient to establish a given
fact, or the group or chain of facts constituting the
party’s claim or defense, and which if not rebutted or
contradicted, will remain sufficient.” Black’s Law
Dictionary 825 (6th ed. Abridged 1991). Accordingly,
evidence that a child suffered injury that would not
ordinarily be sustained but for 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. The
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. The evaluation of
the validity of the presumption would then rest with
the trial court evaluating the credibility of the
prima facie evidence presented by the CYS agency
and the rebuttal of the parent or responsible person.
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Applying Section 6381(d) as set forth above to
the case at bar, we affirm the trial court’s
determination that [the mother] perpetrated the
abuse in the form of the laceration, the cheek
bruising, and the severe diaper rash and yeast
infection. First, because the medical evidence
presented by [the agency] demonstrated that [the
child’s] injuries were neither accidental nor
self-inflicted and because [the child] was only in the
care of [his mother and aunt], the injuries were
shown to be “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[.]” 23 Pa.C.S. § 6381(d).
Ergo, either [the aunt or mother] or both inflicted
the abuse [the child] suffered or failed to protect him
from the other’s abuse. [The mother] failed to rebut
the presumption by presenting evidence or
testimony from her, [the aunt] or her boyfriend
establishing that [the child] was not in her care when
the injuries were suffered and that she had no
reason to question her decision to leave [the child] in
[his aunt’s] care. Likewise, neither [the aunt] nor
anyone on her behalf testified. [The mother and
aunt’s] self-serving claims made at the hospital were
neither under oath nor subject to cross-examination.
They were outside-the-record and do not constitute
rebuttal evidence.[Footnote 25]
[Footnote 25] Moreover, we would not
fault a trial court for failing to credit any
explanations that would have been given
considering the implausibility of the other
assertions provided at the hospital
regarding [the child’s] injuries.
Instead, ample, uncontested, unrebutted
evidence existed for the trial court to presume that
[the mother] perpetrated the abuse on [the child].
In regard to the diaper rash, it was put into evidence
that [the mother] acknowledged to the hospital staff
her awareness of the condition and blamed it on
weeks of diarrhea. Dr. Silver testified rejecting [the
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mother’s] extrajudicial contention because the rash
was on the front of [the child’s] body, indicative of
prolonged contact with urine, rather than on the
buttocks, which would have been consistent with
diarrhea. Thus, the trial court was well within its
discretion and fully supported by the record when it
properly concluded that [the child] suffered physical
neglect as a result of the severe diaper rash and
yeast infection due to his caregiver’s failure to
change his diaper (or obtain medical treatment).
Additionally, the trial court did not abuse its
discretion in discrediting [the mother’s] implausible
out-of-court explanation and instead crediting the
treating doctor’s testimonial determination that the
cheek bruising was classic child abuse. The court
found Dr. Silver credible given the pattern of bruises
showing that someone squeezed [the child’s] face
between her thumb and fingers, bruising which could
have occurred during the window of time [the
mother] acknowledged having control of [the child]
and bruising that the doctor testified would have
cause [the child] severe pain. Moreover, even
assuming [the mother] did not inflict the penile
laceration or the cheek bruising, she is still
responsible for [the child’s] injuries by failing to
protect him from [the aunt], absent rebuttal from
[the mother] that she had no reason to fear leaving
[the child] with [the aunt].
We conclude that the presumption of
Section 6381(d) is applicable to this case and that
[the mother] offered no testimony to rebut it. Thus,
the trial court properly found [the mother]
perpetrated the abuse on [the child] either by
inflicting the injuries or failing to protect [the child]
from [the aunt].
In Interest of: L.Z., 111 A.3d at 1185-1186 (footnote omitted).
Here, the trial court addressed Father’s issues, stating as follows.
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Father filed separate appeals, but the grounds
for both appeals were consolidated. On appeal,
Father raises the following issues:
1. The trial court erred in making a finding
of child abuse as to Child 1 against
[f]ather of Child 2 pursuant to
23 Pa.C.S.A. § 6301 as DHS failed to
meet its burden of proof.
2. The trial court erred when it found that
DHS met its burden of clear and
convincing evidence that Child 2 was
dependent pursuant to 42 Pa.C.S.A.
§ 6302.
Father’s first issue on appeal argues that the
trial court erred in determining that Child 1 was a
victim of child abuse. The Child Protective Services
Law (“CPSL”) 23 [Pa].C.S.A. § 6303(b)(ii)
establishes that any recent act or failure to act by a
perpetrator which causes sexual abuse to a child
under 18 years old constitutes child abuse.
Section 6303(b)(iii) establishes that any recent act,
failure to act or series of such acts or failures to act
by a perpetrator which creates an imminent risk of
sexual abuse of a child under 18 years of age also
constitutes child abuse. Sexual abuse under CPSL
23 [Pa.]C.S.A. § 6303(b) is defined as the
employment, use, persuasion, inducement,
enticement or coercion of a child to engage in or
assist another individual to engage in sexually
explicit conduct.
The record must show by clear and convincing
evidence that the child suffered abuse as defined by
the CPSL 23 [Pa.]C.S.A. § 6303(a). In the Matter
of L.Z., 111 A.3d 1164 (Pa. 2015). As to the
identity of the perpetrator of child abuse, the trial
court is required to find perpetrator’s identity by
prima facie standard. In Interest of J.R.W., 631
A.2d 1019, 1023-1024 (Pa. Super. 1993). CPSL
23 [Pa.]C.S.A. § 6303(d) establishes that evidence
that a child has suffered child abuse of such a nature
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as would ordinarily not be sustained or exist except
by reason of acts or omission 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 [sic]
child. This rule created an evidentiary presumption
against the child’s caregiver at the time of the abuse.
In re JG. [sic], 984 A.2d 541, 547 (Pa. Super.
2009). Thus, proof of the nature of the child’s harm,
alone, is prima facie evidence of child abuse by
anyone who is found to be responsible for the
welfare of the child at the time of the alleged
injuries. In re JG., 984 A.2d 541, 547 (Pa. Super.
2009), In the Matter of L.Z., 111 A.3d 1164 (Pa.
2015).
The record established that Child 1 was
diagnosed with gonorrhea in her throat, rectum and
vagina. (N.T. 4/8/15, pgs. 10, 14). Such a
diagnosis raised serious concerns to St. Christopher’s
Hospital medical staff given that gonorrhea is
typically transmitted by sexual contact. (N.T.
4/8/15, pgs. 9-11). Likewise, Child 1’s diagnosis
was highly concerning as to [c]hild abuse. (N.T.
4/8/15, pg. 12). Expert testimony established that
gonorrhea’s bacteria does not travel through the
human body and Child 1’s diagnosis of gonorrhea in
throat, rectum and vagina increased the sexual
contact as to the method of transmission. (N.T.
4/8/15, pgs. 11-12). In fact, the record established
that it is very unlikely to be infected with pharyngeal
gonorrhea through non-sexual contact. (N.T.
4/8/15, pg. 23). Other non-sexual ways of
transmission were considered and evaluated by
Dr. McColgan. (N.T. 4/8/15, pg. 21). Dr. Maria
McColgan’s testimony ruled out other possibilities of
getting infected with gonorrhea. (N.T. 4/8/15, pgs.
12-13, 15-16, 21-23, 32, 36). Accordingly,
Dr. McColgan concluded to a medical degree of
certainty that Child 1’s infection with gonorrhea was
the product of sexual abuse. (N.T. 4/8/15, pg. 16).
Dr. Maria McColgan’s testimony was very credible.
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In relation to the identity of the abuser, the
record established that [M]other was one of Child’s
primary caregivers at the moment in which Child 1
was infected. The other was Child 2’s [f]ather who,
like [M]other, admitted being infected with
gonorrhea. (N.T. 4/8/15, pgs. 15, 17, 44, 45). The
record established that Child 1 and Child 2 were
residing with [M]other and Father. (N.T. 4/8/15,
pgs. 44, 45, 47). Both Father of Child 2 and
[M]other were found to be responsible for the
welfare of the Children at the time of the alleged
injuries. Putative Father was as much responsible
for the care of Child 1 as was Mother. The
transmission of gonorrhea, a sexually transmitted
disease, would not have occurred except by
[P]utative Father’s acts or omissions. As a result,
the record established prima facie evidence of child
abuse as to [P]utative Father, and the trial court did
not hear competent evidence that rebutted such a
presumption. Thus DHS met its burden by clear and
convincing evidence that Child 1 suffered sexual
abuse at the time Child 1 was in the care of
[P]utative Father. Putative Father was responsible
for the welfare of Child 1.
Father’s second issue on appeal argued that
the trial court erred in adjudicating the Child 2
dependent. Under 42 Pa.C.S.A. § 6302 of the
definition of a “Dependent Child” paragraph(1) a
child will be adjudicated dependent if the trial court
determines, by clear and convincing evidence, that
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. Clear and convincing
evidence has been defined as the testimony that is
so clear, direct, weight and convincing as to enable
the trier of fact to come to a clear conviction without
hesitance of the truth of the precise facts in issue.
In re C.R.S., 696 [A.]2d 840, 843 (Pa. Super.
1997). The purpose of the Juvenile Act is to
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preserve the unity of the family whenever possible.
42 Pa.C.S.A. § 6301(b)(1), Nonetheless a child will
be adjudicated dependent when he is presently
without parental care and the care is not
immediately available. In re R.T., 405 Pa. Super.
156 (1991). The Superior Court has defined proper
parental care as the care which is geared to the
particularized needs of the child and, at the
minimum, is likely to prevent serious injury to the
child. In re C.R.S., supra at 845. In general, a
finding of abuse has been held sufficient under most
circumstances to support an adjudication of
dependency. In [I]nterest of J.M., 652 A.2d 877,
881 (Pa. Super. 1997). The trial court adjudicated
Child 1 dependent under 42 Pa.C.S.A. § 6301(b)(1)
by finding that Child 1 was sexually abused and
infected with a sexual transmitted disease.
The Pennsylvania Juvenile Act is now
significantly more sensitive to the facts that sexually
abused children may be without proper parental care
and control as required by the law. In re W.M., 842
A.2d 425m 429 (Pa. Super 2004). The Juvenile Act
takes in consideration the sense of vulnerability, fear
and helplessness that siblings may feel when living in
an environment where their sibling has been sexually
abused. Id. The focus is not on whether the other
sibling is actually at risk of sexual abuse but if the
siblings fit the definition of lacking proper parental
care. Id. It is within the trial court’s discretion to
determine that siblings of sexually abused children fit
that definition, even if there is no evidence that the
siblings will be sexually abused. Id. This major
sensitivity to sexually abused children without proper
parental care and control was also reflected in the
Pennsylvania Juvenile Act amendment effective,
since January 1, 1999. Such an amendment, added
the definitions of “aggravated circumstances” and
“sexual violence” to the Juvenile Act including
siblings of children who have been sexually abused.
In re of [sic] S.B., 833 A.2d 1116, 1122 (Pa.
Super. 2003).
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The record established that Child 2 is a
vulnerable six-month year [sic] old infant. The trial
court is extremely concerned about leaving Child 2 in
an environment where his sibling, Child 1, has been
sexually abused and infected with a sexually
transmitted disease. Under these circumstances, the
threat of harm evidenced on the conduct of Father as
to Child 1 is sufficient for a finding of dependency as
to Child 2. Both Children live with Father. The lack
of parental care as to Child 1 places the health,
safety, and welfare of Child 2 at risk. Father is
unable to provide immediate care that is at the
minimum likely to prevent serious injury to Child 2.
Accordingly, the trial court used its discretion to
adjudicate Child 2 as a dependent fitting the
definition of a dependent child under 42 Pa.C.S.A.
§ 6302(1). All DHS witnesses were unwavering and
credible.
Conclusion:
For the aforementioned reasons, the court
finds that DHS met its statutory burden regarding
Chld 1 child abuse against [P]utative Father and
Child 2 dependency adjudication. Accordingly, the
order entered on April 8, 2015, should be affirmed.
Trial court opinion, 9/3/15 at 2-5 [Father].
As our supreme court explained in In Interest of: L.Z., multiple
caretaker child abuse situations are rife with credibility determinations for
the trial court, and call for the trial court to make credibility determinations
as to the plausible and implausible explanations for the child’s injuries. Id.
at 1186 n.25.
After a careful review of the record in this matter, we find the trial
court’s credibility findings are supported by competent evidence in the
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record. In re R.J.T., 9 A.3d at 1190. We find no abuse of the trial court’s
discretion. Accordingly, we affirm the orders of the trial court.
Orders affirmed.
Musmanno, J. joins the Memorandum.
Ott, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2016
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