In the Int. of: A.S., Appeal of: DHS ( 2021 )

J-A08005-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: PHILADELPHIA :
DEPARTMENT OF HUMAN SERVICES :
:
:
:
: No. 2178 EDA 2020
Appeal from the Order Entered October 20, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0000759-2020
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: MAY 28, 2021
One-year old A.S. suffered from opiate and cocaine poisoning while in
the care of her mother and father. The Philadelphia Department of Human
Services (“DHS”) requested a finding that both parents were presumed to
have abused the child pursuant to 23 Pa.C.S.A. § 6381(d). The trial court
granted the request as to Mother but found that DHS had failed to establish
by clear and convincing evidence that Father had been present when the
poisoning occurred. In this appeal, DHS argues the court applied the incorrect
standard when refusing to find that Father was a presumed abuser of A.S. We
agree with DHS, and therefore reverse only that part of the order that found
that Father was not presumed to have abused the child.
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* Former Justice specially assigned to the Superior Court.
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Neither Mother nor Father appeared at the hearing on DHS’s petition
and neither presented any evidence. DHS submitted an exhibit, without
objection, indicating that A.S. had tested positive for opiates at birth. See
DHS Exh. 5, at 4. DHS social worker Shaylin Kreider1 testified that she
interviewed Mother at the hospital shortly after A.S. was admitted for
treatment. See N.T., 10/20/2020, at 28-29. Mother told Kreider that A.S. had
celebrated her first birthday two days before she was admitted to the hospital.
A.S. lived with Mother and Mother’s great-grandmother. See id., at 30, 35.
There is some dispute as to whether Father also resided in the home.
Regardless, Mother told Kreider that Father visited the home on the night
before A.S. was brought to the hospital to give A.S. a birthday gift. See id.,
at 29. Mother stated that Mother and Father were in the room while A.S.
played on the floor. See id., at 29. A.S. had been eating cereal puffs when
Mother noticed that she appeared to be choking. See id. After checking to
make sure A.S. was not choking on something, Mother called for an
ambulance. See id. The ambulance took Mother and A.S. to the hospital.
DHS also presented the testimony of pediatrician Norell Atkinson, M.D.
Dr. Atkinson was accepted as an expert witness and a fact witness, as she
examined A.S. in the emergency room the night she was admitted to the
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1 The transcript spells the social worker’s name as “Cryder,” while DHS, in its
brief, spells the name as “Kreider.” We will utilize the spelling provided by
DHS in its brief.
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hospital. See id., at 10, 12. Dr. Atkinson testified that upon arriving at the
hospital, a preliminary physical screening indicated that A.S. had opiates in
her system. See id., at 14. The hospital administered Narcan2 to A.S., whose
condition immediately improved. See id., at 15. This response also indicated
the presence of opiates in A.S.’s system. See id.
A preliminary test of A.S.’s urine revealed the presence of cocaine. See
id., at 16. A second, comprehensive urine test confirmed the presence of
cocaine but also detected fentanyl3 in A.S.’s system. See id. Dr. Atkinson
stated that in her opinion, it was possible that the amount of opiates and
cocaine in A.S.’s system could have been fatal if Narcan had not been
administered. See id., at 19. Dr. Atkinson noted that the mixture of cocaine
and fentanyl was common in illicit narcotic transactions. See id., at 19-20.
While Dr. Atkinson was unable to provide a precise time for when A.S.
ingested fentanyl or cocaine, she explained that opiates are generally fast-
acting drugs. See id., at 17. She therefore estimated that A.S. would have
ingested the fentanyl shortly before she began exhibiting symptoms. See id.
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2 Narcan is the brand name for Naloxone. “Naloxone is a medication designed
to rapidly reverse opioid overdose.” https://www.drugabuse.gov/drug-
topics/opioids/opioid-overdose-reversal-naloxone-narcan-evzio, last visited
5/14/2021.
3 Fentanyl is a “synthetic opioid that is similar to morphine but is 50 to 100
times more potent.”
https://www.drugabuse.gov/publications/drugfacts/fentanyl, last visited
5/14/2021.
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Mother informed Dr. Atkinson that Mother has a history of opiate abuse
and was in a treatment program. See id., at 19. Mother also stated that Father
had a history of drug abuse. See id. Father had not accompanied Mother and
A.S. to the hospital after the poisoning. See id., at 20-21. In fact, DHS was
never able to locate or contact Father. See id., at 32. Father’s current
whereabouts are unknown. See Dependency Petition, 7/27/2020, at ¶ 5(q).
After hearing this evidence, the trial court found that Mother “was
present and responsible for the care of the Child at the time of the injury, and
that Mother knowingly or recklessly caused bodily injury to the Child through
her act or failure to act.” Trial Court Opinion, 12/16/2020, at 15. However,
the court found that DHS had not presented “clear and convincing evidence
[of] Father’s presence at the incident thereby making Father also responsible
for the Child’s care at the time of the near-fatal incident.” Id. Therefore the
court refused to apply the § 6381(d) presumption to Father.
DHS filed this timely appeal and argues that the court erred in requiring
clear and convincing evidence of Father’s presence in order to apply the §
6381(d) presumption. We agree with DHS that the court erred in requiring
DHS to establish Father’s presence at the time of the poisoning by clear and
convincing evidence.
We review dependency adjudications with deference to the trial court's
findings of fact, but not its conclusions of law:
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[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.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted). Here, DHS
argues that the court utilized the incorrect standard in assessing the evidence.
This constitutes an error of law, which we review de novo. See In the
Interest of L.Z., 111 A.3d 1164, 1176 (Pa. 2015).
DHS contends the court erred by “conditioning the application of the
Section 6381(d) presumption upon proof of Father’s physical presence at the
time of Child’s injury.” Appellant’s Brief, at 13. There is no doubt that DHS is
correct. In L.Z., the Supreme Court of Pennsylvania addressed this exact issue
and agreed with DHS. The § 6381(d) presumption does not require clear and
convincing evidence of a parent’s presence at a time of alleged neglect or
abuse. See id., at 1184-85. Rather, the presumption “encompasses situations
where the parent or responsible person is not present at the time of the injury
but is nonetheless responsible due to his or her failure to provide protection
for the child.” Id., at 1184.
Arguably, the court here was focused on whether Father had any
responsibility for the care of A.S., as there was conflicting evidence about his
residence and contact with A.S. However, there is no indication in the record
that A.S. had previously been found dependent (even though born positive for
opiates), or that Father’s parental rights and responsibilities had been legally
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altered in any manner. As a result, Father’s responsibility for A.S.’s health and
welfare, as a matter of law, was as broad in scope as any parent with the right
to full physical custody of his child. See L.Z., at 1185 (noting that “parents
are always responsible for their children, absent extenuating circumstances”).
That Father possibly abdicated his responsibility does not act to save him from
the application of the § 6381(d) presumption.
Order reversed in part. Case remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/21
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