In the Int. of: L.E. Appeal of: C.E. ( 2018 )

J-S55017-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.E., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: C.E., FATHER : No. 3335 EDA 2017
Appeal from the Order Entered September 11, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No: CP-51-DP-0002728-2016,
FID: 51-FN-376869-2009
IN THE INTEREST OF: N.E., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.E., FATHER : No. 3338 EDA 2017
Appeal from the Order Entered September 11, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No: CP-51-DP-0002727-2016,
FID: 51-FN-376869-2009
BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 11, 2018
C.E. (Father) appeals from the orders entered September 11, 2017 in
dependency cases relating to his minor biological children, finding that Father
committed child abuse against his stepchild, Z.T., a female born in January
2003. After careful review, we affirm.
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We glean the factual and procedural history of this matter from the
certified record. Father is the husband of J.T. (“Mother”). Prior to the outset
of these proceedings, Father and Mother resided together with their biological
children, N.E., a male born in July 2005, and L.E., a female born in November
2008, as well as Z.T., who was Mother’s child from a previous relationship.
In July 2016, Z.T. accused Father of sexual abuse. She alleged that
Father touched her buttocks and chest over her clothes and made comments
to her of a sexual nature. The Philadelphia Department of Human Services
(“DHS”) commenced a child protective services investigation, while Father was
arrested and charged with crimes related to these accusations.1 The trial court
adjudicated Z.T. dependent on September 2, 2016.
On December 5, 2016, DHS obtained emergency protective custody of
N.E. and L.E. In dependency petitions filed on December 9, 2016, DHS
averred that N.E. and L.E. lacked proper parental care and control because
Mother was failing to comply with the court order in Z.T.’s dependency case.
According to DHS, Mother tested positive for controlled substances and failed
to attend dual diagnosis treatment. The trial court adjudicated N.E. and L.E.
dependent on December 15, 2016.
Later, at a time not specified in the record, the trial court commenced a
proceeding to determine whether Father committed “child abuse” against Z.T.,
as defined in the Child Protective Serves Law (“CPSL”), 23 Pa.C.S.A. §§ 6301-
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1The criminal charges against Father were dismissed on September 21, 2016,
after a preliminary hearing.
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6386. The court conducted a hearing on March 30, 2017, and September 11,
2017. Following the hearing, the court entered permanency review orders
with respect to N.E. and L.E., making a finding of child abuse as to Z.T.2
Father filed a timely notice of appeal and a concise statement of errors
complained of on appeal as to L.E. on October 9, 2017, and as to N.E. on
October 10, 2017.
Father now presents the following claim for our review: “Whether the
Trial Court erred in finding the evidence to have been sufficient in sustaining
a Finding of Child Abuse.” Father’s Brief at 5.3
We review the trial court’s orders pursuant to an abuse of discretion
standard of review. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). Accordingly,
we must accept the trial court’s findings of fact and credibility determinations
if the record supports them, but we need not accept the court’s inferences or
conclusions of law. Id.
In the instant matter, the trial court concluded that Father committed
child abuse by subjecting Z.T. to sexual abuse or exploitation. Trial Court
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2Father does not question whether the trial court had the authority to make
a finding of child abuse as to Z.T. in the dependency cases of N.E. and L.E.
Therefore, we express no opinion on that issue.
3 In his concise statement filed at Docket No. 3335 EDA 2017, Father alleged
that the trial court erred by finding the evidence sufficient to sustain a finding
of child abuse as to the “AboveCaptioned [sic] Minor Child.” Concise
Statement, 10/9/17. Only L.E., and not Z.T., appeared in the caption on that
docket. However, it is clear that Father was attempting to challenge the
court’s finding of abuse as to Z.T., and that his reference to L.E. was a simple
typographical error.
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Opinion, 5/10/18, at 4. The court found credible Z.T.’s testimony that Father
touched her inappropriately and in a sexual manner. Id.
The CPSL defines “child abuse” as follows, in relevant part.
(b.1) Child abuse.--The term “child abuse” shall mean
intentionally, knowingly or recklessly doing any of the following:
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(4) Causing sexual abuse or exploitation of a child
through any act or failure to act.
***
23 Pa.C.S.A. § 6303(b.1).
In addition, the CPSL provides the following definition of “sexual abuse
or exploitation.”
“Sexual abuse or exploitation.” Any of the following:
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(2) Any of the following offenses committed against a
child:
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(vii) Indecent assault as defined in 18
Pa.C.S. § 3126 (relating to indecent
assault).
***
23 Pa.C.S.A. § 6303(a).4
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4In its opinion, the trial court appears to quote a prior version of the CPSL,
with differing definitions of child abuse and sexual abuse or exploitation. The
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The Pennsylvania Crimes Code provides that an individual commits the
offense of indecent assault by engaging in the following conduct, in relevant
part.
(a) Offense defined.--A person is guilty of indecent assault if
the person has indecent contact with the complainant, causes the
complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with
seminal fluid, urine or feces for the purpose of arousing sexual
desire in the person or the complainant and:
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(7) the complainant is less than 13 years of age; or
(8) the complainant is less than 16 years of age and
the person is four or more years older than the
complainant[5] and the complainant and the person
are not married to each other.
18 Pa.C.S.A. § 3126(a).
Indecent contact is defined as “[a]ny touching of the sexual or other
intimate parts of the person for the purpose of arousing or gratifying sexual
desire, in any person.” 18 Pa.C.S.A. § 3101.
In challenging the trial court’s finding of child abuse, Father makes no
effort to claim that he did not touch Z.T. as she alleges. Instead, he maintains
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definitions quoted above took effect on December 31, 2014. The definition of
child abuse as a whole has been amended or reenacted in part on several
occasions since that time, but the portion relevant to this appeal has remained
the same.
5 The record indicates that Father was born in November 1968.
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that the evidence was insufficient because of “serious ambiguity regarding any
arousal of sexual desire[,]” and attempts to distinguish his case from several
other cases, including two criminal appeals and one CPSL expungement
appeal. Father’s Brief at 10-11 (citing Commonwealth v. Capo, 727 A.2d
1126 (Pa. Super. 1999), appeal denied, 749 A.2d 465 (Pa. 1999);
Commonwealth v. Fisher, 47 A.3d 155 (Pa. Super. 2012), appeal denied,
62 A.3d 378 (Pa. 2013); J.S. v. Dept. of Public Welfare, 596 A.2d 1114
(Pa. 1991)). Father states that, in this case, “there was no kissing, and
certainly not any fondling. There was not even any caressing or rubbing; and
most obviously no visible indication, whatsoever that [Father] had been
sexually aroused.” Id. at 11.
We discern no abuse of discretion by the trial court. On March 30, 2017,
the court conducted an in camera interview of Z.T. During this interview,
Z.T. reported that Father touched her inappropriately on multiple occasions.
N.T., 3/30/17, at 15, 20-21. She could not recall how often the touching
occurred, but stated that it was more than twice. Id. at 20-21. These
incidents took place around the time of her eleventh or twelfth birthday in
January of 2014 or 2015,6 in either the living room, dining room, or kitchen.
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6 Originally, Z.T. stated that the incidents occurred after she turned thirteen,
which would have happened in January 2016. See DHS’s Exhibit 1 (forensic
interview summary); Father’s Exhibit 1 (transcript of preliminary hearing).
The child abuse hearing appears to have been the first time of record that Z.T.
indicated the incidents occurred in 2014 or 2015.
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Id. at 15, 20. Z.T. stated that Father touched both her buttocks and her chest
over her clothes. Id. at 16-17. On one occasion while Father was touching
Z.T., he commented that she “finally got a chest.” Id. at 18.
In addition, the trial court viewed a video of Z.T.’s forensic interview at
Philadelphia Children’s Alliance in July 2016, and admitted a summary of the
interview into evidence. See DHS Exhibit 1. The summary contained further
disclosures by Z.T. detailing Father’s inappropriate touching. The disclosures
were largely consistent with Z.T.’s in camera interview, but included several
additional details. Z.T. alleged that Father’s behavior included one incident
during which he “pinched her chest with both hands,” and another incident
during which he “squeezed” her buttocks and stated, “you finally got cheeks.”
Id. at 7.
Based on this evidence, the record supports the trial court’s findings and
conclusions. As stated above, Father does not claim that he did not touch Z.T.
as she alleges. Instead, he claims that the evidence was insufficient to prove
that he touched Z.T. for the purpose of sexual arousal. Father’s argument is
without merit. The record is clear that Father touched Z.T.’s buttocks and
chest on multiple occasions. Father’s conduct included “squeezing” Z.T.’s
buttocks and “pinching” her chest. He also made comments to her of a sexual
nature. Under these circumstances, we conclude the trial court did not abuse
its discretion in finding that Father touched Z.T. for the purpose of arousing
his sexual desire. Thus, Father subjected Z.T. to indecent contact and
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committed the offense of indecent assault. See 18 Pa.C.S.A. § 3126(a).
Father therefore engaged in sexual abuse or exploitation and perpetrated child
abuse pursuant to the CPSL. See 23 Pa.C.S.A. § 6303(a), (b.1)(4).
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by concluding that Father committed child abuse against Z.T.
under the CPSL and we affirm the court’s September 11, 2017 orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/18
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