In the Int. of: S.V., Appeal of: S.V. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: S.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.V., MINOR :
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: No. 3107 EDA 2022
Appeal from the Order Entered November 14, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000235-2022
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 2, 2023
S.V. (“Child”) appeals from the trial court’s order adjudicating him
dependent, to the extent that the order did not include a finding of child abuse
against his parents, C.K. (“Mother”) and P.V. (“Father”). We vacate and
remand with instructions.
In March 2022, the Philadelphia Department of Human Services (“DHS”)
received a Child Protective Services (“CPS”) report alleging that Child, 11
weeks old, was brought to the Emergency Room at St. Christopher’s Hospital
for Children with symptoms of diarrhea and vomiting. DHS Exh. 1 at p.5. The
doctors noticed a “gaze deviation” and conducted a neurology MRI, which
showed multiple hemorrhages around Child’s brain. Id. A consult was
completed with the neurology surgery unit and the findings were of non-
accidental trauma. Id. Child was then admitted to the Intensive Care Unit. Id.
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On March 9, 2022, DHS obtained an Order of Protective Custody and placed
Child with his paternal uncle after he was released from the hospital.
DHS filed a dependency petition on March 15, 2022. An evidentiary
hearing on the petition was held on November 14, 2022. DHS presented the
testimony of Dr. Norrell Atkinson, a child abuse pediatrician and Director of
the Child Protection Program at St. Christopher’s. N.T., 11/14/22, at 7. She
testified as both an expert witness in child abuse and as a fact witness based
on her evaluation of Child at the hospital.1 She stated that Child had presented
to the hospital with “concerns for abnormal eye movement and kind of jerking
of extremities, which are clinically concerning for seizure activity.” Id. at 10.
Dr. Atkinson noted that the MRI revealed several areas of bleeding on Child’s
brain, as well as retinal hemorrhaging. Id. at 10-11. Child was also having
seizures, which indicated a significant head injury. Id. at 22. Mother and
Father offered no explanation for the cause of Child’s injuries. Id. at 19-20.
Dr. Atkinson opined that Child’s injuries were new and would have been
sustained in the last 24 to 48 hours. Id. at 30. She also stated that additional
testing and a skeletal survey was done, which yielded no indication of any
bleeding disorders or any other medical conditions. Id. at 23. Child also had
no underlying medical conditions that would have caused abnormal bleeding.
Id. at 31. Dr. Atkinson determined that Child’s injuries were caused by an
external force from either “[s]ome type of full head rotational injury or
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1 The parties stipulated to Dr. Atkinson’s expertise as a child abuse
pediatrician. N.T. at 6.
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acceleration/deceleration force to the head” or “some type of blunt force
impact.” Id. at 29. She stated that these types of head injuries could not have
been sustained during normal caretaking activity. Id. at 24. Rather, this type
of injury would have been caused by shaking, significant falls from heights, or
car accidents. Id. at 24, 29. Dr. Atkinson concluded that Child suffered
abusive head trauma. Id. at 11, 23, 27-28.
Dr. Atkinson spoke to Mother and Father separately at the hospital. Id.
at 14. Mother reported that Child began vomiting two days prior to Dr.
Atkinson’s examination and then began having abnormal eye and body
movements. Id. at 15. Neither parent reported a car accident, fall, or any
other accident. Id. at 30. Mother and Father told Dr. Atkinson that Child had
been solely in their care in the days leading up his hospitalization. Id. They
explained that Mother primarily cared for Child during the daytime and Father
cared for Child at night. Id. at 17-18. Paternal grandmother also would
sometimes assist in Child’s care at their house, but she was never alone with
Child. Id. at 17, 30. Father and Mother also had three other children living at
the house – ages 7, 8, and 13 – but the parents stated that they would
supervise their children when they would hold Child. Id. at 20. Dr. Atkinson
stated that it would be “unlikely” for a child under the age of 12 to inflict the
type of injuries that were found on Child. Id. at 25.
DHS next presented Portia Henderson, DHS investigator. Henderson
testified the family had no prior history with DHS. Id. at 42. She stated that
as part of her investigation, she visited Child at the hospital and went to the
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family’s home. Id. Mother and Father told Henderson that no one watched
Child except for themselves and paternal grandmother. Id. at 46, 49.
Henderson testified that Mother and Father were unable to provide any
explanation as to how Child’s injuries occurred, but they understood the
severity of Child’s injuries. Id. at 46-47. They told Henderson that Mother
generally cared for Child during the day and Father cared for him at night, and
that paternal grandmother sometimes came over to assist. Id. at 48. The
parents said that paternal grandmother came to assist recently because
Father had surgery and Mother was not feeling well. Id. The parents stated
that paternal grandmother was never alone with Child. Id.
Mother and Father informed Henderson that the other children in the
house were not allowed to hold Child without their supervision. Id. at 46, 51.
Henderson interviewed each child separately. Id. 46, 56. Henderson stated
that the seven-year-old and eight-year-old children told her that they do not
pick up Child and the 13-year-old child had no interest in being involved with
Child because he was heavily into his video games. Id. at 47, 56. Henderson
also testified that Mother and Father did not mention that they had adult
children, but she later learned of this information. Id. at 49-50. The adult
children did not live at the house. Id. at 50.
Henderson concluded that the CPS report was indicated, which meant
“there was a finding of suspected child abuse because of the significant injuries
that [Child] suffered and the fact that the parents couldn’t provide an
explanation for” the injuries. Id. at 54-55. She also noted that there was a
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criminal investigation pending against Mother and Father stemming from
Child’s injuries. Id. at 64
Mother and Father did not testify at the adjudicatory hearing or present
any evidence on their behalf.
The trial court adjudicated Child dependent because of Mother and
Father’s present inability to care for Child due to a stay-away order2 against
parents as to Child because of the related criminal proceedings. See Trial
Court Opinion, filed 2/3/23, at 4. However, the court declined DHS’s request
to make a finding of child abuse against the parents. Id. Child, through his
counsel, filed the instant appeal.3
Child raises the following issues:
1. Did clear, convincing, and competent evidence establish that
[Child] suffered child abuse of such a nature as would ordinarily
not be sustained or exist except by reason of the acts or
omissions of his parents, constituting prima facie evidence of
abuse by Mother and Father pursuant to 23 Pa.C.S.[A.] §§
6303(b.1) and 6381(d)?
2. Did the trial court err as a matter of law and abuse its discretion
in failing to find [Child]’s parents perpetrators of child abuse,
where clear and convincing evidence proved that parents were
[Child]’s primary caretakers when he was a victim of child
abuse, and they failed to rebut the presumption under 23
Pa.C.S.[A.] § 6381(d) because they presented no evidence?
Child’s Br. at 6 (suggested answers and answers of trial court omitted).
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2 See N.T. at 72, 74.
3 DHS also filed a brief arguing that the court erred by declining to find child
abuse against Mother and Father.
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We review orders entered in dependency cases for an abuse of
discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). We must accept the
findings of fact and credibility determinations if they are supported by the
record, but we are not required to accept the trial court’s inferences or
conclusions of law. Id.Child does not contest his dependency adjudication, but rather argues
that the court abused its discretion in declining to make a finding of child
abuse against Mother and Father pursuant to the Child Protective Services
Law (“CPSL”).4 We address Child’s two issues together since they are related.
“Although dependency proceedings are governed by the Juvenile Act,
the Child Protective Services Law controls determinations regarding findings
of child abuse, which the juvenile courts must find by clear and convincing
evidence.” Interest of G.R., 282 A.3d 376, 380 (Pa.Super. 2022) (cleaned
up) (footnotes omitted). Clear and convincing evidence means “evidence that
is so clear, direct, weighty, and convincing as to enable the trier of fact to
come to a clear conviction, without hesitancy, of the truth of the precise facts
in issue.” Interest of A.C., 237 A.3d 553, 558 (Pa.Super. 2020) (citation
omitted).
As part of an adjudication of dependency, “a court may find a parent to
be the perpetrator of child abuse,” as defined by the CPSL. Interest of S.L.,
202 A.3d 723, 728 (Pa.Super. 2019) (citation omitted). The CPSL defines
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4 See 23 Pa.C.S.A. §§ 6301-6388.
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“child abuse,” in relevant part as “intentionally, knowingly or recklessly. . .
[c]ausing bodily injury to a child through any recent act or failure to act.” 23
Pa.C.S.A. § 6303(b.1)(1).
In certain cases, pursuant to section 6381(d) of the CPSL, the identity
of the abuser need only be established through prima facie evidence. Interest
of A.C., 237 A.3d at 558. 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.” In re L.Z., 111 A.3d 1164,
1185 (Pa. 2015) (citation omitted). Section 6381(d) creates an evidentiary
presumption and states:
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) (emphasis added).
This presumption under section 6381(d) was established “to avoid the
evidentiary conundrum where the existence of abuse is rather easily proven
but the court is unable to assign responsibility for the heinous act among the
responsible adults[.]” Interest of A.C., 237 A.3d at 559 (citation and internal
quotations omitted). Indeed, “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
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or failed in their duty to protect the child.” In re L.Z., 111 A.3d at 1185.
Therefore, section 6381(d) “carve[s] out a very limited exception to [] more
stringent evidentiary standards, allowing for the possibility of identifying the
perpetrator of abuse based on prima facie evidence in cases where the abuse
is ‘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.’” Id. at 1184-85 (quoting 23 Pa.C.S.A. § 6381(d)).
Thus, “evidence that a child suffered injury that would not ordinarily be
sustained but by the 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.” Id.
at 1185.
To rebut section 6381(d)’s 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.” Id. At that point, “[t]he
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
[] agency and the rebuttal of the parent or responsible person.” Id. Out-of-
court statements made by parents to a caseworker or treating doctor are not
considered rebuttal evidence since they are neither under oath nor subject to
cross-examination. See id. at 1186; Interest of G.R., 282 A.3d at 385.
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In sum, once the moving party establishes the existence of child abuse
by clear and convincing evidence “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,” see 23 Pa.C.S.A. §
6381(d), the burden then shifts to the parents or other responsible person to
rebut the presumption that they perpetrated the abuse.
Here, the trial court found that DHS did not present clear and convincing
evidence of child abuse. Trial Ct. Op. at 6. The court found that there were
numerous caretakers for Child at the time of the incident, including Mother,
Father, and paternal grandmother. Id. It also noted that there were adult
children who had access to the home. Id. at 7. The court found that although
the parents stated that none of their other minor children were permitted to
be around Child without parental supervision, it was likely that the other
children, including the 13-year-old “of unknown size,” were assisting in some
caretaking and were near Child absent supervision. Id. at 6, 7. The court
emphasized that there was no family history of abuse or neglect and there
was no evidence of more than one incident giving rise to Child’s injuries. Id.
at 6. The court also noted that Henderson testified that Mother and Father told
her that they did not know how Child’s injuries occurred and Henderson found
their statements to be credible. Id. at 7. The court stated it could not conclude
whether Child’s injuries “were the result of child abuse . . . or the outcome of
an innocent accident unknown to Mother and Father.” Id. at 6-7.
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Child argues that the court applied the wrong standard in denying DHS’s
request for a finding of child abuse. Child’s Br. at 27. He asserts that the court
improperly “identified its lack of certainty as to the various particulars of the
surrounding circumstances as the basis to deny DHS’s petition.” Id. at 31.
Child contends that the court should have found that DHS presented prima
facie evidence of child abuse when it presented medical evidence of
unexplained, inflicted, and non-accidental injuries to Child that would not have
occurred but for the acts or omissions of his caregivers. Id. at 22. Thus, since
DHS presented prima facie evidence of child abuse, Child argues that section
6318(d)’s presumption that Mother and Father were responsible for Child’s
injuries should have been triggered and the burden then shifted to the parents
to rebut the presumption. Id. at 22-23. Child argues that since Mother and
Father did not present any evidence, they failed to rebut the presumption that
they were the perpetrators of the abuse. Id. at 23.
Upon review, we conclude the trial court erred in declining to make a
finding of child abuse. The court declined to find child abuse because of the
uncertainty as to certain circumstances surrounding Child’s injuries. However,
this logic is contrary to the dictates of section 6318 and is the precise situation
that section 6318 sought to address. At the adjudicatory hearing, DHS
presented uncontroverted medical evidence that Child, who was 11 weeks old
at the relevant time, suffered injuries that were the result of non-accidental
trauma that occurred while Mother and Father were responsible for Child. Dr.
Atkinson concluded that Child’s injuries were the result of abusive head
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trauma. N.T. at 11, 27-28. She testified that Child suffered from bleeding on
the brain and retinal hemorrhaging. Id. at 10-11. Child also was having
seizures, which indicated a significant brain injury. Id. at 22. Dr. Atkinson
stated that Child’s injuries were caused by an external inflicted force or blunt
force impact to the head and were not the type of injuries that would have
been sustained in normal caretaking. Id. at 24, 29. The injuries were new and
were sustained 24 to 48 hours prior to Child’s hospital admission. Id. at 30.
Further, Child had no underlying medical conditions or bleeding disorders that
would have caused abnormal bleeding. Id. at 23, 31. Thus, DHS sustained its
burden of proving by clear and convincing evidence that Child suffered from
abuse.
Under these facts, the court should have applied the evidentiary
presumption under section 6381(d), which establishes a prima facie case of
abuse by the persons who were responsible for the child when the abuse
occurred, which in this case were Child’s parents. The burden then shifted to
Mother and Father to rebut the presumption. See In re L.Z., 111 A.3d at
1185. Mother and Father did not present any rebuttal evidence – testimony
or otherwise – at the hearing. Thus, Mother and Father failed to rebut section
6381(d)’s presumption. As a result, the trial court erred as a matter of law by
failing to find Mother and Father the perpetrators of Child’s abuse pursuant to
section 6381(d). See Interest of G.R., 282 A.3d at 385. Therefore, we vacate
the trial court’s order and remand for the trial court to re-enter the order and
include a finding that Child is the victim of abuse by Mother and Father.
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Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/02/2023
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