In the Int. of: M.M., Appeal of: E.M. ( 2023 )

J-S23016-23
2023 PA Super 159IN THE INTEREST OF: M.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: E.M. :
:
:
:
: No. 439 EDA 2023
Appeal from the Order Entered January 18, 2023,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-DP-0002129-2015.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
OPINION BY KUNSELMAN, J.: FILED AUGUST 30, 2023
In this matter, we decide whether a juvenile court’s dependency
adjudication may serve as a basis to amend a non-party’s report of child abuse
from “indicated” to “founded,” pursuant to the Child Protective Services Law
(CPSL). See 23 Pa.C.S.A. § 6303(a) (definition of “founded report”).
Pursuant to the CPSL, certain judicial adjudications – including a dependency
adjudication under the Juvenile Act1 – may serve as the basis for designating
a report as “founded,” so long as the judge determined there was clear and
convincing evidence of child abuse. See id. When a report is “founded,” the
name of the perpetrator is placed on a statewide registry, which in turn
triggers a litany of consequences. In this case, the Juvenile Division of the
Philadelphia County Court of Common Pleas (the juvenile court) adjudicated
dependent M.M., the 12-year-old son of J.D.-S. The dependency proceedings
____________________________________________
1 See 42 Pa.C.S.A. § 6341.
J-S23016-23
began after the death of M.M.’s sibling. Allegations of child abuse were made
against J.D.-S. (Mother) and E.M. (Appellant), a family friend. In its
adjudicatory order, the court found child abuse and determined that the
reports of Mother and Appellant should be amended from “indicated” to
“founded.” Appellant appealed, maintaining that the juvenile court exceeded
its authority under the CPSL, because she was not a party to the underlying
dependency action. After careful review, we agree, and therefore we vacate
that provision of the adjudicatory order pertaining to Appellant.
The record discloses the following factual history. Philadelphia
Department of Human Services (DHS) had been intermittently involved with
Mother and her Children for over a decade.2 In December 2021, Appellant
moved into Mother’s home to help Mother care for the Children. At the time,
the Children (son M.M., daughter C.S., and son Ch.S.) were 11, 12, and 13
years old, respectively. On February 19, 2022, C.S. (Decedent) died; she had
just turned 13. The circumstances surrounding her death are tragic.
The [child protective services] report alleged that the
[Decedent] was taken to Saint Christopher’s Hospital for
Children by emergency medical services after she was found
nonresponsive that morning. CPR was administered without
success, and the [Decedent] was pronounced dead at the
hospital. The report alleged that Mother and a family friend,
[Appellant], resided in the home with the [Decedent] and
the [two other] Children. The CPS report further alleged
that Mother and [Appellant] felt the [Decedent’s] anorexia
____________________________________________
2 W.M. (Father) appeared at the adjudicatory hearing.However, he wished to
be excused from the proceedings, and without objection, the juvenile court
granted his request. Father was not otherwise involved in this matter.
-2-
J-S23016-23
was [reoccurring] because she had not been eating as much
as normal. [Appellant] stated that when she checked on the
[Decedent] around 7:00 AM, she was slow to respond,
disoriented, and her heartbeat was racing. [Appellant]
checked on the [Decedent] two hours later and she was
nonresponsive. The report further alleged that the
[Decedent] was taken to the hospital wearing an adult
diaper. This report was indicated.
That same day, DHS received a supplemental [child
protective services] report alleging that once the [Decedent]
arrived at the hospital, staff performed CPR for 25 minutes,
which proved to be unsuccessful. It was also reported to
the Philadelphia Police Department that the [Decedent] had
lividity[3] in her right cheek, right earlobe, back, and
buttocks, and that her pupils were dialed six inches. The
report further alleged that Mother and [Appellant] resided
in the home […]. Based on the lividity of the [Decedent’s]
body, the Philadelphia Police Department [] believed that
[Appellant’s] account that the [Decedent] was alive at 7:00
AM was incorrect. This raised concerns that there was a
delay in medical care that could have contributed to her
death.
On February 22, 2022, DHS received [another]
supplemental [child protective services] report […]. This
report alleged that the [Decedent] slept in the same bed as
[Appellant]. The report further alleged that the [Decedent]
had been refusing food for days and that she was wearing a
diaper because she was too weak to walk to the bathroom.
The [] report alleged that at 7:00 AM, the [Decedent]
reportedly woke up and [Appellant] noticed that her heart
was racing. The report alleged that [Appellant] left the
room, went back to sleep, and when she returned two hours
later, the [Decedent] was cold to the touch and
nonresponsive.
____________________________________________
3 “Lividity” refers to “reddish to bluish-purple discoloration of the skin due to
the settling and pooling of blood following death.” Lividity, Merriam-Webster,
https://www.merriam-webster.com/dictionary/lividity.
-3-
J-S23016-23
Trial Court Opinion, 3/8/23 (T.C.O.), at 2-3 (style adjusted) (footnote added)
(citations to the record omitted).
In March 2022, DHS obtained an order of protective custody for the
Decedent’s surviving brothers, M.M. and Ch.S. Two days after the order of
protective custody, Ch.S. went “AWOL.”4 Meanwhile, DHS filed a dependency
petition against Mother, alleging that M.M. was without proper parental care
or control. In April 2022, DHS determined there was substantial evidence of
abuse, and thus DHS “indicated” the report of child abuse and named Mother
and Appellant as perpetrators for their failure to provide the Decedent with
necessary medical care.
The juvenile court conducted dependency proceedings over the course
of four dates: May 4, 2022; July 19, 2022; October 20, 2022; and January
18, 2023. Evidently, the proceedings were continued on each on the first
three dates, culminating with a substantive adjudicatory hearing on January
18, 2023. Only the transcript for the final January date was made a part of
the record. As far as we can discern from record, the appellate briefs and the
T.C.O., the following procedural history transpired:
On the first hearing date, May 4, 2022, Appellant appeared before the
dependency court in answer to a witness subpoena.5 At the conclusion of that
____________________________________________
4 DHS had yet to locate Ch.S. as of January 18, 2023, the date of the order
from which Appellant appealed.
5 We note that the only subpoena in the record is for Appellant’s presence on
January 18, 2023 – the last hearing date.
-4-
J-S23016-23
first date, the dependency court appointed counsel to represent Appellant in
an “unassigned role.” Also on this date, DHS notified Appellant, pursuant to
CPSL, that the report of child abuse against her was deemed “indicated.” The
court evidently heard testimony from DHS about the death of Decedent, and
the Agency’s subsequent investigation. See DHS’s Brief at 3. Later that
month, on May 26, 2022, Mother was criminally charged with third-degree
murder and endangering the welfare of a child.
The dependency proceedings resumed on July 19, 2022. On this second
date, Mother’s counsel requested a continuance, which the court granted.
Appellant and her lawyer were present for the second day. Appellant’s counsel
objected to the dependency court’s jurisdiction over Appellant, maintaining
that Appellant was a non-party and that she had not been served with any
sort of petition. Appellant’s counsel also informed the court that she could not
access the sealed juvenile docket, because Appellant was not a party to the
dependency proceedings. DHS countered that it had informed Appellant’s
counsel, via email, of its witness list and exhibits 30 days prior to the hearing.
DHS also said that it sent a letter to Appellant informing her that the child
abuse report against her was “indicated.” The court agreed with DHS, noting
that Appellant was aware of the evidence and testimony against her, and,
because Appellant’s counsel was present, Appellant must have received
notice. Id. at 5.
The proceedings resumed on October 20, 2022. On this third date,
Appellant’s counsel renewed her jurisdiction objection and further argued that
-5-
J-S23016-23
while DHS emailed a redacted version of the dependency petition, service was
still deficient. The court determined that if notice had been defective
originally, it was cured by Appellant’s signature of her subpoena in July and
her receipt of the emailed, redacted dependency petition.6
The proceedings culminated on the fourth and final date, January 18,
2023, which we understand to be the substantive hearing. Counsel for
Appellant re-raised the jurisdiction and notice objections. Appellant’s counsel
reasoned that even if Mother’s dependency petition somehow sufficed as
notice, notice was still defective because the narrative contained in the petition
did not allege any specific abuse or neglect on the part of Appellant – only on
the part of Mother. See N.T., 1/18/23, at 9-11. Appellant maintained that
she had never received a formal written petition, summons, or other
documentation explaining that DHS sought to establish a “finding” of child
abuse against her through this juvenile court hearing. See id. at 11. The
court overruled Appellant’s objections and proceeded with witness testimony.
The DHS investigative social worker testified about the allegations in
the child protective services reports. In addition to the allegations mentioned
above, the social worker testified that Appellant told her of the following: that
Appellant moved into the home to help Mother care for the Children; that the
Children considered Appellant to be a maternal aunt; that the Decedent was
____________________________________________
6 The record contains a copy of the dependency petition, but the copy does
not appear to be redacted. It is unclear what version of the petition Appellant
received.
-6-
J-S23016-23
being cyber-bullied prior to her death, which may have contributed to her
suspected anorexia; that the Decedent wore adult diapers because she was
too weak to walk to the bathroom; and that the Decedent did not receive any
medical treatment for these concerns. See T.C.O. at 4-5 (citations to the
record omitted).
The social worker also testified to the deplorable living conditions: there
were animal feces and urine throughout the house; there was a foul odor in
each room; there were no sheets on the Children’s beds; and the mattresses
were stained with urine. Moreover, Children were not up to date on routine
medical or dental care. The Children did not have seasonally appropriate
clothing; the Children were unkempt; and they were not enrolled in school.
Id. at 6 (citations to the record omitted). The DHS investigative supervisor
also testified to these facts. The supervisor further testified that Appellant
told her: the Decedent stopped eating food four months prior to her death and
was only drinking water; that the Decedent slept in the same bed as Appellant;
and that Appellant gave the Decedent a shower the night before her death.
Id. at 8-9 (citations to the record omitted).
The juvenile court also heard testimony from Dr. Julia de la Garza-
Jordan, an employee of the Philadelphia Medical Examiner’s Office, who
conducted the Decedent’s autopsy:
Dr. de la Garza-Jordan testified that when the [Decedent’s]
body arrived at the [Medical Examiner’s] Office, it appeared
as if it were recently bathed, yet her hair contained copious
amounts of lice, which she described as unusual. She also
stated that it was striking that the 13-year-old Decedent
-7-
J-S23016-23
was wearing an adult diaper upon arrival. Dr. de la Garza-
Jordan testified that the [Decedent] was underweight and
had pressure ulcers on her bilateral heels and in the
lumbosacral region. The pressure ulcers were significant
because it meant that the [Decedent] was in stasis,
positioned on her back with her heels on a surface, which
caused her blood to stop circulating properly.
Dr. de la Garza-Jordan also testified that there were several
inconsistences between the findings she observed from
examining the [Decedent’s] body and the statements made
in the DHS investigator’s report. […].
After conducting the autopsy, Dr. de la Garza-Jordan was
able to determine, to a reasonable degree of medical
certainty, that the [Decedent’s] cause of death was
inanition. She defined inanition as starvation to the point of
organ failure and death. Dr. de la Garza-Jordan came to
this conclusion because the [Decedent] had a low body mass
index, had a significant weight loss of over 60 pounds [7],
had lice when she arrived at the [Medical Examiner’s] Office,
and underwent several unsuccessful rounds of CPR at the
hospital. She also came [to] this conclusion because the
[Decedent] was underweight and wearing an adult diaper,
yet received no medical care. Dr. de la Garza-Jordan also
determined, to a reasonable degree of medical certainty,
that the [Decedent’s] manner of death was a homicide.
T.C.O. at 7-8 (citations to the record omitted) (footnote added).
At the close of testimony, the juvenile court entered an order
adjudicating M.M. dependent. The court did not rule on the dependency
petition regarding the brother, Ch.S., which it left “open,” due to DHS’s
inability to locate him. In its adjudicatory order, the court stated:
____________________________________________
7 The court heard testimony that the decedent weighed between 160-180
pounds in October 2021, and 107 pounds at the time of her death in mid-
February 2022. See T.C.O. at 10 (citations to the record omitted).
-8-
J-S23016-23
After consideration of the evidence, it is ORDERED that the
Child [(M.M.)] is found, by clear and convincing evidence,
to be a Dependent Child pursuant to: Child Abuse.
(1) The child is without proper care or control,
subsistence, education as required by law, or other
care or control necessary for his physical, mental, or
emotional health, or morals.
Adjudicatory Order, 1/18/23, at 2.
However, the juvenile court did not find M.M. was a victim of abuse in
the disposition section of the order.
Victim Of Abuse Determined
The court hereby finds that the Child [(the Decedent)] is a
victim of child abuse as defined as 23 Pa.C.S.A. § 6303, in
that: [the] report is upgraded from indicated to founded
under B.17 and B.19 as to [Mother] and [Appellant].
Id. 8
We note that the juvenile court did not find “aggravated circumstances”
as to M.M.’s dependency.9
____________________________________________
8 The record does not indicate what “B.17” and “B.19” refer to, although we
presume they relate to the court’s internal dependency forms.
9 The Juvenile Act provides:
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 […].”
(Footnote Continued Next Page)
-9-
J-S23016-23
Appellant timely filed this appeal. She presents the following issues for
our review:
1. Did the trial court err and/or abuse its discretion by
making a finding of child abuse under the Child
Protective Services Law, 23 Pa.C.S. §§ 6303 and
upgrading [the child abuse] report from indicated to
founded under B.17 and B.19 as to [Appellant],
because the court lacked jurisdiction to make such a
finding against a non-party to a dependency
proceeding: [Appellant] is not a parent, guardian or in
loco parentis to [the subject child, M.M.] or any of his
siblings; [Appellant] was not served with a summons
outlining with specificity the cause of action against
her; nor was she served with a dependency petition
which purported to bring the allegations of child abuse
against her to court. Appellant [] was thus denied her
federal and state constitutional rights to due process?
2. Did the trial court err and/or abuse its discretion
because a dependency proceeding against parents or
guardians in the Court of Common Pleas is not a
proper forum for finding of child abuse against a non-
parent or non-guardian; such a finding is the province
of the Bureau of Hearings and Appeals, and the
Commonwealth Court?
____________________________________________
42 Pa.C.S.A. § 6341(c.1).
Section 6302 defines aggravated circumstances as:
(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. § 6341 (emphasis added).
“Aggravated physical neglect” is further defined as: “Any omission in the care
of a child which results in a life-threatening condition or seriously impairs the
child’s functioning.” Id.
- 10 -
J-S23016-23
3. Did the trial court err and/or abuse its discretion by
making a finding of child abuse under the Child
Protective Services Law, 23 Pa.C.S. §§ 6301-6385
because [DHS] did not present clear and convincing
evidence of each of the necessary elements of such a
finding.
Appellant’s Brief at 6.
These issues concern the complicated interface between the Child
Protective Services Law and the Juvenile Act. Questions regarding the
application or interpretation of a statute are questions of law, for which our
standard of review is de novo and our scope of review is plenary. See E.C.S.
v. M.C.S., 256 A.3d 449, 454 (Pa. Super. 2021); see also Interest of D.R.,
232 A.3d 547, 554-55 (Pa. 2020) (citation omitted).
A court’s role when interpreting a statute is to determine
the intent of the General Assembly so as to give it its
intended effect. 1 Pa.C.S. § 1921(a). “In discerning that
intent, the court first resorts to the language of the statute
itself. If the language of the statute clearly and
unambiguously sets forth the legislative intent, it is the duty
of the court to apply that intent to the case at hand and not
look beyond the statutory language to ascertain its
meaning.” In re L.B.M., 161 A.3d 172, 179 (Pa.
2017); see also 1 Pa.C.S. § 1921(b) (“When the words of
a statute are clear and free from all ambiguity, the letter of
it is not to be disregarded under the pretext of pursuing its
spirit.”).
D.R., 232 A.3d at 555.
We begin our discussion with necessary background. The CPSL “was
created primarily for reporting suspected child abuse, providing the means for
doing so, and establishing the persons responsible for reporting the abuse.”
Interest of C.B., 264 A.3d 761, 771 (Pa. Super. 2021) (en banc) (citation
- 11 -
J-S23016-23
omitted); see also 23 Pa.C.S.A. § 6302(b). Upon receiving a report of alleged
child abuse, the Department of Human Services, or its designated county
children and youth agency, investigates the veracity of the allegations. Under
the CPSL, “[t]he term ‘child abuse’ shall mean intentionally, knowingly or
recklessly doing” any of an express list of ten forms of conduct including, inter
alia, “[c]ausing bodily injury to a child through any recent act or failure to
act[,]” “[c]reating a reasonable likelihood of bodily injury to a child through
any recent act or failure to act[,]” and, “[c]ausing serious physical neglect of
a child.” 23 Pa.C.S.A. § 6303(b.1)(1), (5), (7).10
After the agency completes its investigation, it categorizes the
investigated report as “indicated,” “founded,” or “unfounded.” Id. §
____________________________________________
10 Section 6303 further defines “serious physical neglect” as:
Any of the following when committed by a perpetrator
that endangers a child’s life or health, threatens a child’s
well-being, causes bodily injury or impairs a child’s
health, development or functioning:
(1) A repeated, prolonged or egregious failure to
supervise a child in a manner that is appropriate
considering the child’s developmental age and
abilities.
(2) The failure to provide a child with adequate
essentials of life, including food, shelter or medical
care.
Id. § 6303(a) (definition of “serious physical neglect”).
- 12 -
J-S23016-23
6368(n)(1); see also J.F. v. Department of Human Services, 245 A.3d
658, 660 (Pa. 2021).
A report of suspected child abuse is “unfounded” if the report
cannot be either indicated or founded. Id. § 6303(a) (definition
of “unfounded report”). An “indicated” report is one wherein
the determination relies on DHS's or the county agency's own
assessment that their investigation revealed “substantial
evidence of the alleged abuse by a perpetrator exists based on”
available medical records, the child protective services
investigation, or an admission of the acts of abuse by the
perpetrator. Id. (definition of “indicated report”). A report is
“founded” as a result of a determination or disposition made by
a judicial authority, external to DHS, but in reliance on the
same factual circumstances involved in the allegation of child
abuse. Id. (definition of “founded report”).
J.F. v. Department of Human Services, 245 A.3d 658, 660-61 (Pa. 2021)
(some internal quotations omitted).
When a report of child abuse is substantiated as either “indicated” or
“founded,” or amended from “indicated” to “founded,” the named perpetrator
is provided with notice of the status, including the effect of a substantiated
report upon future employment opportunities involving children, and the
individual’s name is added to the statewide child abuse database – i.e., the
ChildLine Registry – where it could remain indefinitely. J.F., 245 A.3d at 661
(citing 23 Pa.C.S.A. §§ 6331, 6338(a), 6368(f)). A perpetrator’s inclusion on
- 13 -
J-S23016-23
a statewide database has a “bundle of consequences,” thereby implicating an
individual’s right to due process. Id. at 671.11
The substantive difference between an “indicated” report and a
“founded” report is how the veracity of the allegations is established, and the
mechanism by which an individual – once deemed a perpetrator – can contest
that designation. An “indicated” report is based on the agency’s own
assessment. J.F., 245 A.3d at 660. An individual named in an “indicated”
report may “request an administrative review by, or appeal and request a
hearing before, the [Department of Human Services] secretary.” Id. at 661
(citing 23 Pa.C.S.A. § 6341(a)(2)). “Unlike an indicated report, which is solely
an agency-level adjudication, a founded report additionally reflects a judicial
adjudication or disposition made based on the same factual circumstances.”
Id. at 671. The CPSL affords individuals named as perpetrators in “founded”
reports of child abuse no rights to administrative or judicial review. However,
these individuals are not entirely without recourse, as our Supreme Court
explained:
If [a dependency court] finds the parent to have
perpetuated abuse, the relevant [county protective
services] agency would file with the Department of Public
Welfare a “founded report” as defined by Section 6303(a) of
the CPSL, which would trigger inclusion on the statewide
ChildLine Registry, which is also governed by the CPSL,
____________________________________________
11 These consequences include: the prohibition of employment, volunteer,
foster parent, adoption, and housing opportunities to individuals named as a
perpetrator in the statewide database. See 23 Pa.C.S.A. §§ 6344, 6344.1,
6344.2.
- 14 -
J-S23016-23
specifically 23 Pa.C.S. § 6331. The finding of child abuse in
a dependency proceeding can be appealed to the Superior
Court[…]. An individual can also petition to expunge the
founded report from ChildLine through a Department of
Public Welfare administrative process that would eventually
be subject to appeal in the Commonwealth Court.
Additionally, the inclusion on the ChildLine Registry can be
triggered outside of the Juvenile Act’s dependency process
through the filing by [child protective services] agency or
the Department of Public Welfare of an “indicated report” of
child abuse when “substantial evidence” exists that an
individual perpetrated child abuse as defined in Section
6303(a). 23 Pa.C.S. §§ 6303(a), 6331(3). […] As with a
founded report, an individual may petition for the
expungement of an indicated report through DPW’s
administrative process that could eventually be appealed to
the Commonwealth Court.
Interest of L.Z., 111 A.3d 1164, 1176-77 (Pa. 2015) (footnotes omitted).
Our Supreme Court further explained: “Because the ‘founded’
designation is dependent upon a judicial determination, the denial of a hearing
on an administrative appeal of a founded report has typically been upheld by
the Commonwealth Court where it could constitute an impermissible collateral
attack on the judicial action.” J.F., 245 A.3d at 671-72 (citations omitted).12
This appeal concerns the precise conditions whereby a judicial
adjudication may serve as a basis for designating a report as “founded.” The
____________________________________________
12 Appellant’s appeal to this Court is proper for these reasons. As the High
Court explained, the Superior Court traditionally hears appeals regarding child
abuse determinations within dependency orders; moreover, if Appellant
directly sought an administrative appeal, where she presented these issues,
the same might have been construed as a collateral attack on the juvenile
court’s substantive decision.
- 15 -
J-S23016-23
CPSL provides an exhaustive list of situations in which judicial determination
(or disposition) may serve as a basis for a founded report:
(1) There has been a judicial adjudication based on
a finding that a child who is a subject of the report
has been abused and the adjudication involves the
same factual circumstances involved in the
allegation of child abuse. The judicial adjudication
may include any of the following:
(i) The entry of a plea of guilty or nolo contendere.
(ii) A finding of guilt to a criminal charge.
(iii) A finding of dependency under 42
Pa.C.S.A. § 6341 (relating to adjudication) if
the court has entered a finding that a child
who is the subject of the report has been
abused.
(iv) A finding of delinquency under 42 Pa.C.S.A. §
6341 if the court has entered a finding that the
child who is the subject of the report has been
abused by the child who was found to be
delinquent.
(2) There has been an acceptance into an accelerated
rehabilitative disposition program and the reason for the
acceptance involves the same factual circumstances
involved in the allegation of child abuse.
(3) There has been a consent decree entered in a juvenile
proceeding under 42 Pa.C.S. Ch. 63 (relating to juvenile
matters), the decree involves the same factual
circumstances involved in the allegation of child abuse
and the terms and conditions of the consent decree
include an acknowledgment, admission or finding that a
child who is the subject of the report has been abused by
the child who is alleged to be delinquent.
(4) A final protection from abuse order has been granted
under section 6108 (relating to relief), when the child
who is a subject of the report is one of the individuals
protected under the protection from abuse order and:
- 16 -
J-S23016-23
(i) only one individual is charged with the abuse in
the protection from abuse action;
(ii) only that individual defends against the charge;
(iii) the adjudication involves the same factual
circumstances involved in the allegation of child
abuse; and
(iv) the protection from abuse adjudication finds
that the child abuse occurred.
23 Pa.C.S.A. § 6303(a) (definition of “founded report”) (emphasis added).
This matter implicates subsection (1)(iii) of the definition above. Proper
application of that subsection might entail the following scenario: A county
protective services agency receives a report of a parent’s child abuse.
Following an investigation, the agency petitions the juvenile court to
adjudicate the child dependent under the Juvenile Act – that is to say, the
child is without proper parental care. See 42 Pa.C.S.A. §§ 6302 (definition of
“dependent child”), 6341 (relating to adjudication). Supposing that the
juvenile court subsequently finds that the child was, in fact, abused and grants
the dependency petition, then the court’s adjudication could serve as a basis
for designating the parent’s child abuse report as “founded.” In this
hypothetical, the parent was a party to the dependency proceedings, received
notice, and was afforded an opportunity to be heard.
Returning to the instant matter, Appellant’s first and second appellate
issues present an interconnected jurisdictional question. She challenges
whether the juvenile court may “upgrade” – i.e., amend – a non-party’s report
- 17 -
J-S23016-23
of abuse from “indicated” to “founded.” 13 In essence, Appellant argues that
the juvenile court lacked jurisdiction to make a legal determination of child
abuse against her, a non-party, to amend her report from “indicated” to
“founded.” Appellant argues further that the adjudication of M.M. cannot
serve as a basis for amending her report, because the dependency
adjudication implicated Mother, not her.
Aside from the jurisdictional component, Appellant maintains she was
not afforded proper notice, and thus she was not afforded a meaningful
opportunity to be heard. She reasons that emailed service of a redacted
version of Mother’s dependency petition did not amount to proper notice –
especially since the dependency petition only focused on Mother’s conduct,
not the acts or omissions of Appellant. Lastly, in her third appellate issue,
Appellant challenges the substantive finding that she was a perpetrator of
child abuse, as defined by the CPSL.
We begin our analysis with Appellant’s jurisdictional challenge.
Appellant’s argument hinges on the fact that she was not a party to the
underlying dependency proceeding. In the context of a dependency
____________________________________________
13 Often, and upon the request from the child protective services agency, a
juvenile court’s dependency order will include an explicit provision determining
the report to be “founded,” upon its finding that the child was abused. Such
a provision serves the purpose of removing doubt whether the adjudication
was sufficiently based on the report’s child abuse allegation. Still, it is the
decision of the agency to file the report as “founded” on the ChildLine
Registry, upon the agency’s conclusion that the court’s adjudication met the
necessary criteria under the CPSL’s definition of “founded reported.” See L.Z.,
111 A.3d at 1176-77.
- 18 -
J-S23016-23
proceeding, we have defined a party to include “(1) the parents of the juvenile
whose dependency status is at issue; (2) the legal custodian of the juvenile
whose dependency status is at issue; (3) the person whose care and control
of the juvenile is in question.” In Interest of M.R.F., III, 182 A.3d 1050,
1055 (Pa. Super. 2018) (citations omitted); see also 42 Pa.C.S.A. § 6302
(defining a dependent child as inter alia one “without a parent, guardian, or
legal custodian” and providing that “[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.”). We explained that “[t]hese categories logically stem
from the fact that upon an adjudication of dependency, the court has the
authority to remove a child from the custody of his or her parents or legal
custodian.” M.R.F., 182 A.3d at 1055 (citing In re J.S., 980 A.2d 117, 120
(Pa. Super. 2009)).
Appellant was obviously not a parent. Significantly, she was also not a
“caregiver,” nor a “custodian,” for purposes of the Juvenile Act, which defines
those individuals as follows:
“Caregiver.” A person with whom the child is placed in an
out-of-home placement, including a resource family or an
individual designated by a county agency or private agency.
The resource family is the caregiver for any child placed with
them.
[…]
“Custodian.” A person other than a parent of legal
guardian, who stands in loco parentis to the child, or a
- 19 -
J-S23016-23
person to whom legal custody of the child has been given
by order of court.
42 Pa.C.S.A. § 6302.
Appellant meets neither of these definitions. None of Mother’s three
Children was placed with Appellant. Appellant was not the guardian of any of
the three Children, nor had she obtained legal custody through a court order.
Nor did Appellant stand in loco parentis, a status that would have required
Mother to “discharge” her “parental duties,” and for Appellant to assume the
same. See, e.g., Interest of K.N.L., 284 A.3d 121, 145 (Pa. 2022).
Although Appellant, by her own admission, moved into the home to help
Mother care for the Children, Appellant was ultimately not “a person whose
care and control” of the child was in question. For example, a live-in nanny
would similarly not qualify, nor would a teacher. Notably, the juvenile court,
DHS, and the GAL concede that Appellant was not a party to the dependency
proceedings. DHS even relied on this fact to explain to the juvenile court why
it did not have to serve Appellant in accordance with the normal juvenile court
procedure reserved for parents, guardians, or other custodians.14 Quite
clearly, Appellant was not a party to the dependency proceedings.
____________________________________________
14DHS maintained that it did not have to serve Appellant with the dependency
petition it filed against Mother; moreover, Appellant notes that DHS did not
seek the issuance of a summons, either.
The Juvenile Act requires the court to direct the issuance of a summons to
“the parents, guardian, or other custodian, guardian ad litem, and any other
persons as appear to the court to be proper or necessary parties to the
(Footnote Continued Next Page)
- 20 -
J-S23016-23
Having established that Appellant was not a party to the underlying
dependency adjudication, we next address the effect Appellant’s non-party
status had on the juvenile court’s ability to implement the CPSL against her.
Notwithstanding Appellant’s non-party status, the Appellees maintain the
juvenile court had the ability to make a child abuse finding against Appellant,
such that the dependency adjudication could ultimately serve as the basis to
amend Appellant’s “indicated” report to “founded.” They reason that while
Appellant did not meet the definition of a “party” under the Juvenile Act, she
did meet the definition of a “perpetrator,” as well as the definition of “person
responsible for the welfare of the child” under CPSL Sections 6303
(“Definitions”) and 6381(d) (“Prima facie evidence of abuse”).15 See
____________________________________________
proceeding, requiring them to appear before the court at the time fixed to
answer the allegations of the [dependency] petition.” 42 Pa.C.S.A. § 6335(a)
(emphasis added). The Rules of Juvenile Court Procedure provide, “[t]he
court shall issue a summons compelling all parties to appear for the
adjudicatory hearing.” Pa.R.C.P. 1360(A) (emphasis added). The summons
shall include, inter alia, a copy of the dependency petition. See Pa.R.C.P.
1360(C)(5).
DHS did not follow this procedure, because it concluded Appellant was not a
party to the dependency proceedings. Instead, DHS subpoenaed Appellant as
a witness, pursuant to 42 Pa.C.S.A. § 6333(a). When the juvenile court
ultimately directed DHS to provide Appellant with some form of notice, it
apparent did so under Pa.R.J.C.P. 1361(7) (“The court shall give notice of the
adjudicatory hearing to: (7) any other persons as directed by the court.”)
(emphasis added).
15 Sections 6303 and 6381 of the CPSL set forth, who may be deemed a
“perpetrator,” and how the evidentiary standard applies when a child is abused
(Footnote Continued Next Page)
- 21 -
J-S23016-23
generally T.C.O. at 12-13, 17-19; see also DHS’s Brief at 17-20; and see
GAL’s Brief at 8-12.
Under these CPSL provisions, the juvenile court opines – and the
Appellees argue – that the court had jurisdiction because Appellant was: an
adult; who lived with Mother and the Children; for the express purpose of
helping Mother care for the Children. While Appellant might not be a party
under the Juvenile Act, they maintain that Appellant fit squarely under the
CPSL. In other words, if Appellant was not a caregiver under the Juvenile Act,
she was still a caregiver under the CPSL. Moreover, to the extent Appellant
does not fit neatly within the Juvenile Act, the GAL emphasizes that the
definition sections of the Juvenile Act and the CPSL must be read together to
resolve complaints of child abuse. See GAL’s Brief at 8 (citing In re J.R.W.,
631 A.2d 1019, 1022 (Pa. Super. 1992)). Without citation to authorities, DHS
argues: “Pennsylvania law holds that [a] dependency court has jurisdiction
over a person who is alleged to have abused a child and the CPSL authorizes
____________________________________________
in the care of a person responsible for the child’s welfare. Under the CPSL, “a
perpetrator” is an individual who has committed child abuse (as defined by
the CPSL) and who is, inter alia: “An individual 14 years of age or older who
resides in the same home as the child.” 23 Pa.C.S.A. § 6303(a) (definition of
“perpetrator”). The CPSL further defines “a perpetrator for failing to act” to
include: “A person 18 years of age or older who resides in the same home as
the child.” Id. Elsewhere in the CPSL, Section 6381(d) creates the rebuttable
presumption that, when a child suffers abuse that would not ordinarily occur
but for the acts or omissions of a person responsible for the child’s care, then
that individual is responsible. See 23 Pa.C.S.A. § 6381(d); see also L.Z.,
111 A.3d at 1185.
- 22 -
J-S23016-23
the dependency court to enter an abuse finding in a dependency proceeding.”
See DHS’s Brief at 15.
At first glance, the reasoning of the juvenile court and Appellees appears
sound. Indeed, we have said that the Juvenile Act and the CPSL must be read
together in the resolution of child abuse complaints and “reference must be
made to the definition sections of both the [CPSL] and the [Juvenile Act] to
determine how that finding of child abuse is interrelated.” C.B., 264 A.3d at
770 (citing J.R.W., 631 A.2d at 1022). However, the rationale set forth by
the juvenile court and the Appellees ultimately misconstrues the interplay
between the CPSL and the Juvenile Act.
The question is not whether a juvenile court, sitting under the Juvenile
Act, can make a finding of “child abuse” under the CPSL. That question has
long been settled. Of course, the juvenile court has jurisdiction to implement
the CPSL; in fact, we said that it would be “totally spurious” to argue
otherwise. J.R.W., 631 A.2d at 1023.16 But the question Appellant asks is
whether the juvenile court had authority over her, a non-party, to do the
things it would normally be authorized to do to proper parties – namely, make
a legal determination of child abuse under the CPSL, which could ultimately
serve as the basis for a founded report. The answer to that question is no.
____________________________________________
16 “[B]y mandate of the [CPSL], the one and only available resource for
custody, change of custody or detention of a child who is suspected of being
abused under the [CPSL] is the juvenile court pursuant to the Juvenile Act.”
J.R.W., 631 A.2d at 1023 (citing 23 Pa.C.S.A. § 6315 (“Taking child into
protective custody”)).
- 23 -
J-S23016-23
The CPSL does not provide for legal determinations of abuse; it is mainly
a vehicle for reporting abuse. C.B., 264 A.3d at 770 (citing J.R.W., 631 A.2d
at 1022). “The [Juvenile] Act, however, is a procedural act which establishes
jurisdiction in the courts to legally intervene and make findings of dependency
which [could] also include[] child abuse.” J.R.W., 631 A.2d at 1022.
In cases predating the current iteration of the CPSL, we explained:
Even though the Juvenile Act and the CPSL are
complementary in nature, neither of the acts provide for an
independent action of “abuse.” In Interest of Justin S.,
[543 A.2d 1192, 1197 (Pa. Super. 1988)]; In Interest of
M.B., 514 A.2d 599 (Pa. Super. 1986) affirmed per curiam,
538 A.2d 496 (Pa. 1988). “[W]e have held that [the] CPSL
does not create or include a separate action for child abuse
[…].” In Interest of Justin S., 543 A.2d at 1197 (citing In
Interest of R.M.R. [530 A.2d 1381 (Pa. Super. 1987)]).
In Interest of R.T., 592 A.2d 55, 59 (Pa. Super. 1991).
Under the prior iteration of the CPSL, a founded report may be based
on a “judicial adjudication of child abuse.” See R.M.R., 530 A.2d at 1384-85;
see also 11 P.S. § 2203 (repealed). This Court grappled with the ambiguity
of what may constitute a “judicial adjudication of child abuse” to answer the
larger question of whether the CPSL provided for an independent cause of
action. Id. Ultimately, we concluded that the CPSL does not provide for an
independent action for child abuse, and for the relevant provisions of the CPSL
to apply, there must be a previously recognized cause of action. Id. at 1385.
Although these cases concerned the prior iteration of the CPSL, the
substantive difference between the prior and current iterations only buttresses
- 24 -
J-S23016-23
Appellant’s argument that the juvenile court lacked jurisdiction to find that
she committed “child abuse” under the CPSL. The current CPSL now specifies
what types of “judicial adjudications” may serve as basis for a founded report.
See 23 Pa.C.S.A. § 6303(a) (definition of “founded report”). They are: the
entry of a guilty plea or nolo contendere; a finding of guilt to a criminal charge;
acceptance into an accelerated rehabilitative disposition (ARD) program; a
final Protection From Abuse (PFA) order; an adjudication of delinquency; a
consent decree relating to juvenile delinquency; and finally, an adjudication
of dependency. See id. Thus, for a report to be founded, the finding of abuse
must stem from one of these recognized causes of action. If an alleged
perpetrator is not a party to one of these underlying causes of action, then it
follows that the court lacks authority under the CPSL to make a finding of child
abuse, such that the alleged perpetrator’s report could be deemed “founded.”
We understand that the juvenile court attempted to afford Appellant
notice and an opportunity to be heard. The hearing was continued several
times over the course of eight months; Appellant was appointed counsel; and
at the hearing, Appellant was given an opportunity to introduce evidence and
cross-examine witnesses. The CPSL does not provide for an independent
cause of action, and because Appellant was not party to the dependency
proceedings, it is not surprising that DHS and the juvenile court were
perplexed as to how Appellant should receive notice. DHS had no mechanism
to seek a “finding” of abuse against Appellant. In any event, our conclusion
regarding the jurisdictional aspect of this case renders moot the rest of
- 25 -
J-S23016-23
Appellant’s procedural due process claim. The juvenile court had no authority
under the CPSL to make a legal determination of abuse against Appellant to
deem her report “founded” – no matter what process was given, no matter
the evidence of her culpability, because Appellant was not a party to this
case.17
The effect of our decision does not leave local child protective services
agencies without recourse to protect children from alleged abusers. Indeed,
DHS already determined Appellant was “indicated” for abuse.
In sum, we conclude the juvenile court exceeded its authority, as
conferred by 23 Pa.C.S.A. § 6303(a) (definition of “founded report”), to find
that Appellant committed child abuse for the purpose of deeming her report
“founded.” Because we conclude that the juvenile court exceeded its authority
under the CPSL, we do not address Appellant’s other issues. This Court has
no authority to address the propriety of Appellant’s “indicated” report; the
____________________________________________
17 In reaching this conclusion, we are cognizant of dependency cases where
the juvenile court had made findings of child abuse against stepparents or
parents’ significant others. See, e.g., Interest of K.D., 2023 WL 3916155(Pa. Super. June 9, 2023) (non-precedential decision). In some instances,
the local child protective services agency categorized their reports as
“founded.” See, e.g., J.M. v. Department of Public Welfare, 94 A.3d 1095,
1099 (Pa. Cmwlth. 2014); see also J.P. v. Department of Human
Services, 150 A.3d 173 (Pa. Cmwlth. 2016). But among this line of cases,
we have not discovered one in which the stepparent or significant other
challenged the juvenile court’s jurisdiction, as Appellant does here. Although
we might fairly distinguish this line of cases as involving “guardians,”
“individuals with in loco parentis status,” or other individuals whose “care and
control” of the child was in question (i.e., proper parties to dependency
proceedings), those scenarios are not before us.
- 26 -
J-S23016-23
proper procedure for challenging that determination is explained above. See
J.F., 245 A.3d at 661.
Order vacated insofar as it pertains to Appellant’s report being
“founded.”
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2023
- 27 -