Interest of: N.B.A. Appeal of: E.A. ( 2019 )

J-A27008-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.B.-A, A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: E.A., MOTHER :
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: No. 893 EDA 2018
Appeal from the Order entered on March 16, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002607-2016,
FID: 51-FN-002489-2016
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 19, 2019
E.A. (“Mother”) appeals from the juvenile court’s order entered on March
16, 2018, that (1) deemed Mother a perpetrator of child abuse against her
daughter, N.B.-A.; (2) determined that aggravated circumstances existed as
to Mother; and (3) relieved Philadelphia Department of Human Services
(“DHS”) from employing reasonable efforts toward reunification.1 We affirm
in part and reverse in part.
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1 When the juvenile court entered the aggravated circumstances order that is
the genesis of this appeal, it also entered a permanency review order that
reiterated the court’s finding that Mother perpetrated child abuse. Mother
attached both orders to her notice of appeal and she conflates the two orders
in the argument section of her brief. We address the merits of the aggravated
circumstances order, which presented the three juvenile court rulings that
Mother challenges on appeal. To the extent that we would also confront the
merits of the permanency review order’s superfluous finding that Mother
committed child abuse, we would affirm it for reasons identical to those that
we explain herein.
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The record reveals the following pertinent facts and procedural history.
N.B.-A. was born during February 2010. The child came to the attention of
the Philadelphia Department of Human Services (“DHS”) in November of 2016.
At that time, N.B.-A. resided with Mother, Mother’s husband (“Stepfather”),
the husband’s two adult sons, and the maternal grandmother. On November
17, 2016, Mother took N.B.-A. to Children’s Hospital of Philadelphia (“CHOP”)
because N.B.-A. was experiencing vaginal discharge. CHOP treated and
released N.B.-A. Further testing revealed that N.B.-A., then six-years-old,
tested positive for chlamydia. During the ensuing investigation, Mother and
one of the adult stepbrothers tested positive for the disease. Upon receiving
the test results, the stepbrother immediately “ran out of the hospital” and fled
to the Dominican Republic. N.T., 3/16/18, at 34. Stepfather’s test was
negative. However, prior to the evidentiary hearing, he followed his son to
the Dominican Republic.
On November 18, 2016, DHS received a Child Protective Services report
alleging that N.B.-A. was a victim of sexual abuse. Following DHS’s
investigation, the report was indicated as to both Mother and the stepbrother
who tested positive for chlamydia, with Mother identified as a perpetrator by
omission.2 On November 22, 2016, DHS obtained an order of protective
____________________________________________
2The Child Protective Services Law defines an indicated report, in pertinent
part, as:
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custody and N.B.-A. was placed in foster care. The juvenile court adjudicated
N.B.-A. dependent on December 5, 2016.
The court conducted permanency review hearings in June 2017,
September 2017, and December 2017. Subsequently, N.B.-A.’s guardian ad
litem filed a motion for a finding of aggravated circumstances. On March 16,
2018, the court conducted a child abuse and aggravated circumstances
hearing. At the hearing, DHS presented the testimony of Sharina Johnson, a
DHS investigator, and Maria McColgan, M.D., who treated N.B.-A. and is
board-certified in child abuse pediatrics. Mother testified on her own behalf.
N.B.-A.’s guardian ad litem appeared on N.B.-A.’s behalf, although N.B.-A.
was not present at the hearing. As it relates to the issues on appeal, during
the hearing, DHS and N.B.-A.’s guardian ad litem requested findings of child
abuse and aggravated circumstances as to Mother.
On March 16, 2018, the juvenile court entered an aggravated
circumstances order that found that Mother committed child abuse,
determined that aggravated circumstances existed against Mother, and
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[a] report of child abuse made pursuant to this chapter if an
investigation by the department or county agency determines that
substantial evidence of the alleged abuse by a perpetrator exists
based on any of the following:
(i) Available medical evidence.
(ii) The child protective services investigation.
(iii) An admission of the acts of abuse by the perpetrator.
23 Pa.C.S. § 6303(a).
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concluded that DHS no longer needed to make reasonable efforts to reunify
N.B.-A. with Mother.
Mother timely filed a notice of appeal and a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The
juvenile court filed its Rule 1925(a) opinion on May 21, 2018.
On appeal, Mother presents the following issues for our review:
1. Did the trial court abuse its discretion when it made a finding
of child abuse against Mother when insufficient evidence was
introduced to demonstrate that Mother intentionally, knowingly,
or recklessly caused or created a likelihood of sexual abuse?
2. Did the trial court err as a matter of law and abuse its
discretion when it made a finding of aggravated circumstances on
the basis of an indicated child protective services report, in the
absence of clear and convincing evidence that the child was a
victim of “physical abuse resulting in serious bodily injury, sexual
violence or aggravated physical neglect by the parent” as required
under 42 Pa.C.S. § 6302?
3. Did the trial court err as a matter of law and abuse its
discretion when it allowed the DHS investigator to testify to the
hearsay statements of the medical staff at the Children’s Hospital
of Philadelphia over Mother’s objection?
4. Did the trial court err as a matter of law and abuse its
discretion when it admitted into evidence the written summary of
the child’s forensic interview, for which no foundation had been
laid and which contained prejudicial hearsay statements, denying
Mother her constitutional right to cross-examine any witnesses or
evidence against her?
5. Did the trial court err as a matter of law and abuse its
discretion when it relieved DHS of its obligation to provide
reasonable efforts towards reunification without conducting a
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searching inquiry as to Mother’s progress towards reunification or
the effect on the child of terminating reunification efforts?
Mother’s brief at 3-4.3
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
the Interest of 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) (citation omitted).
The Child Protective Services Law (“CPSL”) defines child abuse, in
pertinent part, as follows:
(b.1) Child abuse.--The term “child abuse” shall mean
intentionally, knowingly or recklessly doing any of the following:
....
(4) Causing sexual abuse or exploitation of a child through any
act or failure to act.
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3 The argument section of Mother’s brief combines issues one, three, and four
into her first argument. Further, DHS has filed a brief arguing in support of
affirmance with respect to the juvenile court’s finding that Mother committed
child abuse, but DHS asserts that the juvenile court erred in concluding
aggravated circumstances existed and that DHS need not make further efforts
to reunify N.B.-A. with Mother. DHS’s brief at 17-31. N.B.-A.’s guardian ad
litem filed a letter joining the brief filed by DHS.
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....
(6) Creating a likelihood of sexual abuse or exploitation of a
child through any recent act or failure to act.
23 Pa.C.S. § 6303(b.1) (4) and (6).
In defining intentionally, knowingly, and recklessly, the CPSL refers to
the Crimes Code definitions, in relevant part:
(b) Kinds of culpability defined.--
(1) A person acts intentionally with respect to a
material element of an offense when:
(i) if the element involves the nature of his
conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to
cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of
such circumstances or he believes or hopes that
they exist.
(2) A person acts knowingly with respect to a material
element of an offense when:
(i) if the element involves the nature of his
conduct or the attendant circumstances, he is
aware that his conduct is of that nature or that
such circumstances exist; and
(ii) if the element involves a result of his
conduct, he is aware that it is practically certain
that his conduct will cause such a result.
(3) A person acts recklessly with respect to a material
element of an offense when he consciously disregards
a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk
must be of such a nature and degree that, considering
the nature and intent of the actor’s conduct and the
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circumstances known to him, its disregard involves a
gross deviation from the standard of conduct that a
reasonable person would observe in the actor’s
situation.
18 Pa.C.S. § 302.
In In the Interest of J.R.W., 631 A.2d 1019, 1024 (Pa.Super. 1993),
we explained that, pursuant to the doctrine of incorporation, the Juvenile Act’s
definition of dependent child subsumed the definition of child abuse outlined
in the CPSL.4 Thus, we stated the two laws “must be applied together in the
resolution of child abuse complaints.” Id. at 1023. We reasoned,
The Legislature intended a detailed and specific definition of abuse
to leave no doubt as to the capacity of the trial court, which in this
case can only be the Juvenile Court, to make a finding and
determination that a child has been abused. In its capacity as a
trial judge, the Juvenile Court judge will look and must look to the
above definition of child abuse in a case referred by the child
protective service agency to the Court under petition for review of
dependency when child abuse has been alleged.
Id.____________________________________________
4 In this context, a dependent child is defined as one who:
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(1).
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In addition to establishing the pertinent definition of child abuse, the
court in In the Interest of J.R.W. also stressed that the juvenile court’s
determination of whether child abuse occurred must be supported by clear
and convincing evidence. Id.
[T]he clear and convincing evidence necessary to find
dependency, has been imposed by the Legislature as the standard
which the Juvenile Court must apply in deciding abuse cases. . . .
There is no conflict, constitutional or otherwise, with the clear and
convincing evidence standard imposed by the Act to establish child
abuse.
Id.; see also In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).
Moreover, 23 Pa.C.S. § 6381 provides, in part:
(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.
Mother asserts the juvenile court erred in concluding that she committed
child abuse as defined in the CPSL. Mother claims that DHS failed to present
evidence that she intentionally, knowingly, or recklessly caused or created a
likelihood of sexual abuse or exploitation. Mother’s brief at 12. Mother also
faults the juvenile court for admitting and relying on hearsay statements about
her reaction to the abuse. Id. at 16. While Mother acknowledges that N.B.-
A. was sexually abused,5 she contends that DHS failed to present evidence
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5 “Here, Mother does not contest the trial court’s finding that N.B.[-]A. was
the victim of child abuse as defined pursuant to the CPSL.” Mother’s brief at
13.
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that Mother was aware of any such risk, claiming “Mother had no reason to
believe that any of her household members would harm N.B.[-]A.” Id. at 15-
16. Further, Mother argues that § 6381 does not apply, because there is an
identified perpetrator. These contentions are unpersuasive.
The evidence of record supports the juvenile court’s finding that Mother
is a perpetrator of child abuse. At the hearing, DHS presented the testimony
of Dr. Maria McColgan, a board certified doctor in child abuse pediatrics. N.T.,
3/16/18, at 43-44. After CHOP discharged N.B.-A., Dr. McColgan treated
N.B.-A. at St. Christopher’s Hospital. Id. at 55-56. Dr. McColgan testified
that chlamydia is transmitted either by sexual contact or at birth. Id. at 46.
When it is transmitted at birth, the infection resolves by the time the child is
two or three at the latest. Id. at 48. Since N.B.-A. was nearly seven at the
time of her diagnosis, Dr. McColgan was adamant that her infection did not
arise from her birth. Id. Dr. McColgan concluded N.B.-A. was the victim of
sexual abuse. Id. at 50, 55. Further, Dr. McColgan testified that the
symptoms of chlamydia can include genital discharge, irritation, and pain. Id.
at 47. Dr. McColgan also identified a risk of pelvic inflammatory disease,
although she testified that pelvic inflammatory disease does not typically occur
in younger children. Id. at 57.
DHS also presented the testimony of Sharina Johnson, an investigator
in the DHS sex abuse department. Id. at 12. Ms. Johnson testified that she
first spoke with Mother the day after N.B.-A. was removed from her home.
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Id. at 13-14. Mother initially reported to Ms. Johnson that she spoke English
and Ms. Johnson observed Mother speaking English fluently. Id. at 27.
Accordingly, when Ms. Johnson asked Mother whether she needed an
interpreter, Mother declined. Id. at 27-28.6
During the ensuing discussion, Mother appeared relaxed and indifferent
to the results of the chlamydia testing. Id. at 15. Indeed, Ms. Johnson
conducted the investigative interview while Mother was having her hair styled.
Id. at 22. In this vein, Ms. Johnson recalled that Mother did not believe that
N.B.-A.’s positive chlamydia test was a serious matter, and was not visibly
upset by the diagnosis. Id. Over Mother’s objection, Ms. Johnson testified
that, as part of her investigation, she interviewed the medical providers at the
emergency room, who similarly observed that Mother was relaxed during their
conversations, seemingly more concerned about a good place from which to
order pizza than her daughter’s wellbeing.7 Id. at 23-24. Mother denied any
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6 Mother requested an interpreter when interviewed by the police. N.T.,
3/16/18, at 27.
7 Mother asserts that the juvenile court erred in admitting Ms. Johnson’s
testimony as well as information from a forensic interview. She contends that
this evidence constitutes hearsay and lacked authentication. DHS responds
that the testimony was unnecessary for DHS to meet its burden of proof and
argues that its admission did not prejudice Mother. DHS brief at 25. While
Mother objected to Ms. Johnson’s testimony as hearsay, she did not object to
DHS admitting a concomitant report that included the observation, “[M]other’s
affect was completely unconcerned, and she was wondering where she could
order pizza.” DHS Exhibit 1, at 7. Accordingly, the testimony that Mother
challenges is cumulative of information admitted without objection in DHS
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knowledge of how N.B.-A. contracted chlamydia, and believed that she might
have contracted it at birth. Id. at 18-19.
Mother also informed Ms. Johnson that she had researched chlamydia
and understood that it was transmitted through sexual contact. Id. at 16.
Nonetheless, she protested that it was impossible for N.B.-A. to have been
sexually abused in the household, and that it was simply a “big
misunderstanding.” Id. at 38-39. Mother explained that she and N.B.-A.
slept in the same bed and that the maternal grandmother would either sleep
in the same bed or on the couch. Id. at 33. When asked whether N.B.-A.
were exposed to any other people in the home, she replied no. Id. at 16.
However, Mother testified paradoxically that she and N.B.-A. resided with
Mother’s husband and two stepsons. Id. Mother indicated that both stepsons
shared a bedroom in the home and that her husband slept in a shed behind
the kitchen. Id. at 17-18. In addition to those potential contacts, Ms. Johnson
subsequently received information that N.B.-A. might have been exposed to
various people who visited the home to give Mother money for unexplained
reasons. Id. at 30.
Mother testified that either she, N.B.-A.’s grandmother, or her great-
aunt always cared for N.B.-A. Id. at 63-64. She denied that N.B.-A. disclosed
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Exhibit 1. Therefore, any error in the admission of hearsay statements is
harmless. Schuenemann v. Dreemz, LLC, 34 A.3d 94, 99 (Pa.Super. 2011)
(“[Evidentiary] rulings must be shown to have been not only erroneous but
also harmful to the complaining part[y].”).
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any abuse to her. Id. at 64. However, her testimony suggests that, at a
subsequent point in the investigation, N.B.-A. leveled allegations of abuse
against both Stepfather and the stepbrother who fled the country. Id. at 66-
67. When questioned as to whether she believed her daughter’s later
allegations, Mother asserted, if “she says that that’s what happened, that’s
what happened.” Id. at 64. Nevertheless, despite these supportive
sentiments, Mother failed to act on her daughter’s allegations or attempted to
protect her from abuse. She acknowledged that she did not tell the medical
providers that Stepfather or his sons lived in the home. Her rationale for
failing to immediately disclose this vital information was “[b]ecause, honestly,
I didn’t know what was going on and I didn’t want to involve . . . anybody,
like dad or [N.B.-A.’s] brother in something involved with the -- the child.”
Id. at 62. Even at this juncture, she persists that her failure to disclose the
presence of Stepfather and his sons in the home was not an effort to protect
them. Id. Mother testified that she is no longer married to Stepfather and
that she has no relationship with either him or his sons. Id. at 62-63. She
further denied that Stepfather ever provided care for N.B.-A. Id. at 64. As it
relates to the peculiar visitors that would frequent the home, Mother explained
that people came to her house to pay her money for lottery tickets that her
uncle sold. Id. at 65.
Based on the foregoing testimony adduced at the hearing, we conclude
that the juvenile court did not abuse its discretion in concluding that Mother
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was a perpetrator of child abuse regardless of the fact that her stepson had
been identified as the actual perpetrator of the sexual abuse. It is undisputed
that N.B.-A. was assaulted sexually. Mother acknowledged that she was N.B.-
A.’s primary caregiver, and denied that either Stepfather or his sons cared for
N.B.-A. While Mother disclaimed any knowledge that N.B.-A. suffered sexual
abuse, the juvenile court determined that she lacked credibility. Juvenile
Court Opinion, 5/21/18, at 5. Indeed, Mother’s own testimony establishes
that when she first learned that six-year-old N.B.- A. contracted chlamydia,
she passed it off as a birth-related malady and was untruthful about whether
any males lived in her house. In sum, Mother was indifferent to the fact that
her daughter contracted a sexually transmitted disease, and she chose to
disregard the obvious indicia of abuse.
The totality of this evidence adduced by DHS supports the juvenile
court’s conclusion that Mother was a perpetrator of child abuse. In addition
to the evidence that established that Mother’s inattentiveness to her daughter
around the adult stepbrother knowingly or recklessly created a likelihood of
sexual abuse, the certified record demonstrates that N.B.-A. suffered child
abuse of such a nature as would ordinarily not be sustained or exist except by
reason of the acts or omissions of Mother. Hence, through the foregoing
evidence of record, DHS established a prima facie case pursuant to 23 Pa.C.S.
§ 6381, that Mother was a perpetrator of child abuse, and Mother failed to
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rebut that presumption of abuse. Accordingly, we do not disturb the juvenile
court’s finding of child abuse as perpetrated by Mother.8
Mother’s second and third issues, which we consider together, present
a challenge to the juvenile court’s finding of aggravated circumstances, as well
as the court’s conclusion that DHS did not need to make further efforts to
reunify N.B.-A. with Mother. The framework for the court’s analysis is well
settled. If the juvenile court determines that a child is dependent and
aggravated circumstances have been alleged by either the county agency or
by the child’s attorney, the court must also determine whether, by clear and
convincing evidence, aggravated circumstances exist. 42 Pa.C.S. §
6341(c.1).9
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8While the Juvenile Court did not specifically invoke § 6381(d), this Court can
affirm the trial court on any basis supported by the certified record. See In
re Adoption of Z.S.H.G., 34 A.3d 1283, 1288 (Pa.Super. 2011) (“we may
affirm the orphans' court on any basis supported by the certified record”.).
9 Specifically, § 6341(c.1) provides:
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).
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The Juvenile Act defines “aggravated circumstances,” in relevant part,
as follows.
“Aggravated circumstances.” 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 the parent.
....
42 Pa.C.S. § 6302. Serious bodily injury is “[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. Sexual violence is “[r]ape, 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)[10] (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.” Id. Aggravated physical
neglect is “[a]ny omission in the care of a child which results in a life-
threatening condition or seriously impairs the child’s functioning.” Id.
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10 Effective September 14, 2009, the General Assembly deleted
subparagraph (a) from the statute and transferred the definition of prohibited
sexual act to 18 Pa.C.S. § 6312(g).
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If the juvenile court determines that aggravated circumstances exist, it
“shall determine whether or not reasonable efforts . . . to preserve and reunify
the family shall be made or continue to be made[.]” 42 Pa.C.S. § 6341(c.1).
A court may end reasonable efforts at its discretion. See In re L.V., 127 A.3d
831, 839 (Pa.Super. 2015) (citing In re A.H., 763 A.2d 873, 878 (Pa.Super.
2000)).
Our review of the certified record confirms that the juvenile court erred
in concluding that DHS established aggravated circumstances as to Mother by
clear and convincing evidence. In fact, DHS admits that it presented no
evidence that Mother was an actual perpetrator of physical abuse or sexual
violence, a view that the guardian ad litem endorses. Moreover, we observe
that the juvenile court’s finding of Mother’s accountability for purposes of the
CPSL is not tantamount to clear and convincing evidence that she actually
committed sexual violence, which the Juvenile Act defines as tantamount to a
criminal act, i.e., “[r]ape, indecent contact . . ., incest or using, causing,
permitting, persuading or coercing the child to engage in a prohibited sexual
act[.]” 42 Pa.C.S. § 6302. The CPSL is preventative rather than criminal.
See Interest of L.J.B., 2018 WL 6816576, *1, (OAJC) (stating non-criminal,
protective purposes of CPSL, including statewide database identifying
perpetrators of abuse).
Furthermore, although the sexual abuse that N.B.-A. endured was
unquestionably traumatic, the evidence does not reveal that it caused serious
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bodily injury. Indeed, neither Dr. McColgan, nor any other witness, testified
that N.B.-A.’s functioning was seriously impaired. Likewise, while Dr.
McColgan testified that N.B.- A. contracted chlamydia as a result of the sexual
abuse, her testimony was insufficient to establish that the child suffered from
a life-threatening physical condition as contemplated by the definition of
“aggravated physical neglect.” See 42 Pa.C.S. § 6302. As noted, the parties
that originally petitioned for a finding of aggravated circumstances now
concede that the certified record does not sustain the juvenile court’s
determination. Accordingly, for all of the foregoing reasons, we reverse the
portion of the March 16, 2018 order finding that aggravated circumstances
existed pursuant to § 6303.
Finally, since the juvenile court grounded its concomitant determination
under § 6341(c.1), that DHS should discontinue reasonable efforts toward
reunifying N.B.-A. with Mother, on the unsound finding the aggravated
circumstances existed, we also reverse that determination.
In sum, we sustain the juvenile court’s findings of child abuse
perpetrated by Mother, but we reverse the juvenile court’s finding of
aggravated circumstances and its attendant determination that no reasonable
efforts should be extended by DHS in reunifying N.B.-A. with Mother.
Order affirmed in part and reversed in part. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/19
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