In the Interest of: C.H., Appeal of: S.K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.K., NATURAL MOTHER :
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: No. 1554 WDA 2019
Appeal from the Order Entered September 18, 2019
In the Court of Common Pleas of Bedford County Orphans' Court at
No(s): DP - 39 for the year 2019
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 20, 2020
S.K. (Mother) appeals from the order of the Bedford County Orphans
Court (trial court) adjudicating dependent1 her minor son, C.H. (Child), for
leaving him unsupervised with a registered sex offender. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1Section 6302 of the Juvenile Code defines a “dependent child,” in relevant
part, as one 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, including evidence of the parent’s,
guardian’s or other custodian’s use of alcohol or a controlled
J-S03045-20
On August 23, 2019, Bedford County Children and Youth Services (CYS)
received a report that Mother had left Child, who was born in December 2009
and nine years old at the time, unsupervised with her boyfriend who is a
lifetime registered sex offender. Upon confirming that Child was left alone
with him on several occasions, CYS applied for an emergency protective order,
alleging that Child was “dependent” under the Juvenile Act because he was
“without proper care or control.” The trial court agreed and, after holding a
shelter care hearing the next day, placed Child in protective custody with his
maternal grandparents pending a dependency hearing.
At the September 12, 2019 hearing, CYS admitted documents from the
Somerset County Clerk of Courts showing that in 1992, Mother’s boyfriend
was sentenced to serve an aggregate 12 to 24 years’ imprisonment after
pleading guilty to Involuntary Deviate Sexual Intercourse (IDSI) and Indecent
Assault with a female minor who was ten or eleven years of age at the time
of the offense. Mother’s boyfriend also pleaded guilty to Statutory Rape in a
separate case.2
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substance that places the health, safety or welfare of the child at
risk[.]
42 Pa.C.S. § 6302.
2CYS did not introduce evidence about when the boyfriend was paroled or
whether he served the statutory maximum.
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A CYS caseworker testified that she spoke with both Mother and her
boyfriend before the hearing. Mother admitted that she left Child alone with
her boyfriend and knew he was a registered sex offender but did not believe
that he committed the underlying sexual offenses. Mother’s boyfriend told the
caseworker the same thing, but when asked whether he completed sexual
offender treatment, he stated that he did not because he was “kicked out” of
the program.
Mother contended that CYS removed Child because they believed her
boyfriend was a Tier III sexual offender under the Sexual Offenders
Registration and Notification Act (SORNA). However, she argued, leaving
Child alone with her boyfriend could not be considered “child abuse” as defined
in the Child Protective Services Law as, among other things, “[l]eaving a child
unsupervised with an individual, other than 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), where the victim of the sexual offense was
under 18 years of age when the crime was committed.” 23 Pa.C.S. §
6303(b.1)(8)(vii)(A). Because of this definition, as well as the absence of any
specific abuse allegation, Mother argued that CYS could not rely on the
boyfriend’s sexual offender status alone in finding Child dependent.
While acknowledging that the boyfriend was not classified as a Tier III
sexual offender under SORNA, the trial court found that the undisputed
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evidence was that Mother left Child alone with a man who had been convicted
of multiple felony sexual offenses involving a minor and had never completed
sexual offender treatment. Based on this, the trial court determined that Child
was dependent. Mother timely appealed.3
On appeal, Mother reasserts that CYS did not present clear and
convincing evidence to adjudicate Child dependent based on him being left
unsupervised with Mother’s boyfriend. Mother contends that boyfriend falls
outside of 23 Pa.C.S. § 6303(b.1)(8)(vii)(A) definition of “child abuse”
because he is not required to register as a Tier II or Tier III sexual offender
under Subchapter H of SORNA. Absent the conduct falling within this
definition of child abuse, Mother argues that CYS needed to demonstrate
“actual harm or real risk of harm to the child’s interests and welfare.” Mother’s
Brief at 14.
However, Mother overlooks that in the very same subsection that she
relies on for her argument, “child abuse” also includes leaving a child
unsupervised with someone who “has to register for life under 42 Pa.C.S.
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3 Our standard of review in dependency cases is abuse of discretion. See In
re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). “An abuse of discretion is not merely
an error of judgment; if, in reaching a conclusion, the court overrides or
misapplies the law, or the judgment exercised is shown by the record to be
either manifestly unreasonable or the product of partiality, prejudice, bias or
ill will, discretion has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107,
111 (Pa. Super. 2007) (citations omitted).
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§ 9799.55(b) (relating to registration).” 23 Pa.C.S.
§ 6303(b.1)(8)(vii)(D) (emphasis added). At the hearing, CYS admitted a
Megan’s Law public report confirming that as of July 30, 2019, Mother’s
boyfriend was subject to lifetime registration requirements under SORNA.4
Neither at the hearing nor on appeal does Mother argue that her boyfriend is
not subject to lifetime reporting requirements based on his conviction in 1992
for IDSI with a minor.5 Leaving a child alone with boyfriend, therefore,
constituted “child abuse” within the meaning of “child abuse” under 23 Pa.C.S.
§ 6303(b.1)(8)(vii)(D).
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4 It would appear that Mother’s boyfriend is subject to lifetime registration
requirements under Subchapter I of SORNA. See 42 Pa.C.S.
§ 9799.55(b)(2)(i)(B) (subjecting individuals to lifetime registration convicted
of, among other offenses, ISDI and “who were required to register with the
Pennsylvania State Police under a former sexual offender registration law of
this Commonwealth on or after April 22, 1996, but before December 20, 2012,
whose period of registration has not expired[.]”).
5 We also note that Mother leaving Child unsupervised with her boyfriend could
meet the definition of “child abuse” for “intentionally, knowingly, or recklessly
… [c]reating 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)(6). In requiring the
continued registration of sexual offenders, the General Assembly stated
“[t]hese sexually violent predators and offenders pose a high risk of engaging
in further offenses even after being released from incarceration or
commitments, and protection of the public from this type of offender is a
paramount governmental interest.” 42 Pa.C.S. § 9799.51(a)(2). Because the
purpose behind the registration requirements is to protect the public, Mother’s
leaving of Child with a registered sexual offender, especially one who denies
any wrongdoing and has never completed sexual offender treatment, could be
considered an act “creating a likelihood of sexual abuse or exploitation.”
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Besides establishing that Mother’s boyfriend was under lifetime sexual
offender registration, CYS’s investigating caseworker testified that Mother was
aware of her boyfriend’s past convictions involving minors, but that she did
not believe he committed the offenses based on what he had told her. See
Notes of Dependency Hearing, 9/12/19, at 11. Likewise, the caseworker
testified that boyfriend denied that he ever committed the offenses and also
never completed sexual offender treatment because he was discharged from
treatment. Id. at 12. Based on this evidence, the trial court did not abuse
its discretion in concluding that Mother’s actions could place the health, safety
or welfare of Child at risk by allowing him to be unsupervised with an individual
convicted of numerous sexual offenses involving a minor and who has never
completed sexual offender treatment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2020
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