In the Int. of: A.B., Appeal of: M.A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.A., FATHER :
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: No. 407 EDA 2021
Appeal from the Order Entered February 9, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000723-2020
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 20, 2021
M.A. (“Father”) appeals from the February 9, 2021 order of adjudication
and disposition, wherein the juvenile court adjudicated A.B. dependent and
entered a finding of child abuse against Father as a perpetrator by omission.
We affirm.
A.B. was born to Father and S.G., (“Mother”) in April 2019. The couple
resides in separate homes. Father lives in Darby, Pennsylvania. Since June
2020, Mother exercised physical custody of A.B. in Philadelphia. Prior to that
date, A.B. lived with his maternal aunt, who also cared for the child’s older
half-sibling under an informal agreement with Mother. Father visited A.B.
once per week.
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* Retired Senior Judge assigned to the Superior Court.
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Prior to the incident that precipitated this appeal, the Philadelphia
Department of Human Services (“DHS”) had been involved with the family
periodically since September 2019, due to Mother’s homelessness and mental
health problems. DHS either visited Mother or provided services to the family
through a community umbrella agency (“CUA”) on three occasions. The last
contact occurred in January 2020.
On June 12, 2020, at approximately 4:00 a.m., Mother and Father
transported then-thirteen-month-old A.B. to Children’s Hospital of
Philadelphia (“CHOP”) with second and third-degree burns covering
approximately twenty percent of his body: specifically, his feet, genitalia,
buttocks, lower back, and back of his legs. These injuries, which were
consistent with forced immersion into scolding liquid or boiling water, were so
severe that A.B. was transferred to the children’s burn center at St.
Christopher’s Hospital in Philadelphia (“St. Christopher’s”), which ultimately
classified the incident as “a near fatality.” N.T. 2/9/21 at 55. Norrell Atkinson,
M.D., who directs St. Christopher’s child protection program, testified at the
ensuing adjudication hearing that A.B. was in significant pain that required
several doses of morphine to manage. Id. at 33. Dr. Atkinson also relayed
that the child was subsequently hospitalized in the intensive care unit for over
one month and endured “multiple debridements and skin grafts for the burns
at that time.” Id.
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Further medical examination by the pediatricians in St. Christopher’s
child protection program revealed multiple fractures in varying stages of
healing, bruises on his chest and face, and two hematoma, i.e., collections of
blood, in his liver. Specifically, Dr. Atkinson testified at the adjudication
proceeding that a skeletal survey performed on June 12, 2020, revealed a
newer fracture to the child’s left shoulder and healing fractures to A.B.’s right
posterior rib cage and right hand. Dr. Atkinson noted that “healing of fractures
starts around 10 to 14 days after the injury is sustained” and that the nature
and type of these injuries implied that they were caused by the application of
external force. Id. at 27-28, 30, 40. She opined that A.B.’s hand injury
preceded his rib injuries, which fell within the ten-to-fourteen-day time frame.
As to the hematomas, which Dr. Atkinson believed were caused by blunt
force trauma to the child’s abdomen, no precise time frame could be provided.
Id. at 30. However, Dr. Atkinson believed the injuries were recently
sustained. Specifically, she explained that A.B.’s elevated liver enzymes and
“very low blood count” were reflective of a newer injury Id. at 31.
In sum, Dr. Atkinson offered her expert opinion that these injuries were
tantamount to child abuse. Id. at 34. She explained, “These are inflicted
injuries. This is child physical abuse—severe abuse on . . . more than one
occasion.” Id. at 34-35; see also id. at 42-43 (opining these types of
physical injuries were unlikely to be associated with household fall).
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On the same date that Mother and Father brought A.B. to the hospital
with the severe burns, DHS initiated a Child Protective Services (“CPS”)
investigation into the incident. As part of that inquiry, DHS interviewed
Mother, who stated that the burns were accidental and occurred when A.B.
overturned a bucket of boiling water on himself. Mother later amended her
account of the incident to state that A.B. turned on the hot water spigot when
she left him unattended in the bathtub. Id. at 53. She continued that, after
calling Father and waiting for him to arrive at her house, she and Father
transported A.B. to the hospital.1 Id. at 54.
DHS spoke to Father on July 13, 2020, the day after he brought his son
to the hospital. Id. at 62. During that interview, Father stated that he was
interested in taking the child home upon his discharge from the hospital, a
prospect that DHS rejected based upon its concerns about A.B.’s injuries and
his need for specialized care. Id. at 63. Father also shared his concern about
Mother’s discipline of A.B., her deficient parenting skills, and her inability to
care for A.B. and his sibling. Id. Father informed the investigator that, while
A.B. resided with Mother, Father treated an incident of severe diaper rash with
soap and water, and that on other two occasions, he discovered A.B. locked
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1 On June 19, 2020, the police charged Mother with aggravated assault.
endangering the welfare of children, simple assault, and recklessly
endangering another person. While Mother was imprisoned as of the date of
the adjudication hearing, it is unclear from the certified record whether she
was convicted of any of the above-referenced offenses.
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in a closet and a room, respectively, when he arrived at the home for a custody
transfer. Id. at 64. He also noticed bruising on the child’s body and noted
that A.B. was a clumsy child. Id. Father neglected to inform the police or
seek medical care for the child based on any of these incidents. Id. at 65-66.
Indeed, he left the child in Mother’s care notwithstanding his concerns. Id at
67.
The agency attempted a follow-up interview with Father but he advised
DHS that he did not want to participate in the investigation any further. Id.
While Father continued to believe that Mother needed help with her parenting
skills, he wanted DHS to drop the child abuse investigation. Id. Ultimately,
the CPS report was “indicated” both as to Mother as the perpetrator of abuse
and as to Father for his failure to act. Id. at 67-68.
DHS obtained protective custody of A.B. while he was in the hospital
and placed him in foster care through Bethany Christian Services. The older
sibling remained in the care of the maternal grandmother. Father maintained
remote, supervised visits. On July 28, 2020, DHS filed a dependency petition.
In September and November 2020, the juvenile court entered orders
continuing the adjudication proceedings.
During the ensuing evidentiary hearing on February 9, 2021, DHS
presented Dr. Atkinson’s expert testimony and the lay testimony of Nikkia
Plunkett and Glenda Rivera, the DHS investigators who interviewed Mother
and Father, respectively. In addition to the medical testimony, Dr. Atkinson
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revealed that she spoke with Father at the hospital and Father expressed
concern that Mother may have caused the injuries and noted that Mother
previously hit the young child as a form of discipline. N.T., 2/9/21, at 23.
Father testified on his own behalf.2 As it relates to the claims that he
asserts on appeal, Father testified that he previously confronted Mother about
the scratches and bruises that he observed on A.B., and, noting the child’s
clumsiness, he accepted as plausible her explanations that the toddler had
been roughhousing with his sibling or accidently tripped. Id. at 76. Likewise,
Father maintained that he filed for custody of A.B. in November of 2019, but
argued that the proceedings were derailed by the COVID-19 pandemic. Id.
at 75.
In addition, Father recounted the incident wherein he treated a diaper
rash that presented after A.B. had been in Mother’s care. Id. at 97. Father
vehemently denied, however, that he discovered A.B. locked in a room during
a custody exchange or that he told either Dr. Atkinson or Ms. Rivera that
Mother often hit the child. Id. at 84-85, 86, 87, 88, 95, 97. Father conceded
telling DHS that Mother suffered from mental health problems, that he was
concerned about her parenting skills and the manner in which she disciplined
the children, and that he observed cuts on the child’s hand, which he believed
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2 A.B. was represented by a child advocate, who participated in the cross-
examination of the witnesses. The child advocate submitted a brief to this
Court in support of the juvenile court’s finding of abuse and adjudication of
dependency.
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were self-inflicted. Id. at 90, 92. However, he ultimately defended Mother’s
behavior stating, “she just needs to go to a parenting class . . . that’s all[.]”
Id. at 96. Father then reiterated, “I never indicated that she’s hurt anyone
[or] noting [sic]” Id. at 97.
Ruling from the bench at the close of evidence, the juvenile court
adjudicated A.B. dependent and found Father to be a perpetrator of abuse by
omission. Id. at 100-01. As to the dependency adjudication, the court
reasoned that neither parent was ready, willing or able to care for A.B. Id. at
100. In relation to Father’s role in the child abuse inflicted upon A.B., the
court stated,
[F]ather’s story is inherently inconsistent. I know [F]ather wants
to deny that he had anything to do with it, and he did not have
anything to do with the commission of any child abuse against the
child, but he is found to be a perpetrator by omission.
By his own admission, [F]ather had many . . . opportunities
to save this child from this horrible abuse, and he did nothing.
The evidence is clear and convincing. Father’s statements to the
contrary are not believable by this Court.
Id. at 101. The juvenile court did not find aggravated circumstances against
Father and it ordered weekly line-of-sight supervised visitation between
Father and A.B. at the agency. Id. at 104.
The court-ordered placement goal was “return to parent or guardian.”
Order of Adjudication and Disposition, 2/9/21, at 2. As to Father’s prospects
of reunification with A.B., the court observed, “I believe that there’s an
opportunity to reunify this child with his father, but there will have to be
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significant education done for [F]ather so he understands his role in protecting
this child, going forward.” N.T., 2/9/21, at 102. This timely appeal followed.
Both Father and the juvenile court complied with Pa.R.A.P. 1925. Father
presents three questions for our review:
1. Did the trial court err by finding that Father was a perpetrator
of child abuse in the absence of clear and convincing evidence
that he intentionally, knowingly, or recklessly caused or
created a likelihood of the child’s injuries through a recent act
or failure to act?
2. Did the trial court err by adjudicating the child dependent
without clear and convincing evidence that Father could not
provide proper parental care and control?
3. Did the trial court err by not hearing any evidence relating to
Father’s ability to care for the child?
Father’s brief at 9.
We review the juvenile court’s adjudication of dependency and finding
of child abuse for an abuse of discretion. As stated by our Supreme Court,
the 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 L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (quotations and citation omitted).
As this case involves a finding of abuse in the context of an adjudication
of dependency governed by the Juvenile Act, 42 Pa.C.S. §§ 6301–6375, we
start by reiterating the interrelation of the Juvenile Act and the Child Protective
Services Law (“CPSL”). As stated by the High Court in In re L.Z.,
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As part of the dependency adjudication, a court may find a parent
to be the perpetrator of child abuse[.] If the court finds the parent
to have perpetrated abuse, the relevant CYS 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, specifically 23 Pa.C.S. § 6331.
In re L.Z., supra at 1176–77 (footnotes omitted).
Furthermore, pursuant to the doctrine of incorporation, the Juvenile
Act’s definition of dependent child subsumed the definition of child abuse
outlined in the CPSL and the statutes “must be applied together in the
resolution of child abuse complaints.”. In the Interest of J.R.W., 631 A.2d
1019, 1024 (Pa.Super. 1993). We explained:
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.The CPSL defines child abuse, in pertinent part, as “intentionally,
knowingly or recklessly . . . [c]ausing bodily injury to a child through any
recent act or failure to act . . .[or] [c]reating a reasonable likelihood of bodily
injury to a child through any recent act or failure to act. 23 Pa.C.S.
§ 6303(b.1), (1) and (5). Critically, a “recent act or failure to act” is defined
as “[a]ny act or failure to act committed within two years of the date of the
report to the department or county agency.” 23 Pa.C.S. § 6303(a). The CPSL
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further defines bodily injury as “[i]mpairment of physical condition or
substantial pain.” Id.
As to the necessary mental state, the CPSL adopts the definitions of
intentionally, knowingly, and recklessly as outlined in our Crimes Code, 18
Pa.C.S. § 302. See 23 Pa.C.S. § 6303(a). Since Father’s argument challenges
the juvenile court’s finding of his reckless failure to protect A.B., we outline
the pertinent definition as follows:
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 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(b)(3).
At the outset, we note that Father’s third claim, relating to the juvenile
court’s purported failure to allow “any evidence relating to father’s ability to
care for the child,” is waived because he failed to preserve the issue in the
juvenile court. Father’s brief at 27. Pursuant to Pa.R.A.P. 302, “[i]ssues not
raised in the trial court are waived and cannot be raised for the first time on
appeal.”). Instantly, Father neglected to cite to the place in the record where
he objected to the juvenile court’s purported refusal to allow this evidence.
Indeed, the certified record bears out that Father never sought to present any
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testimony regarding his ability to care for A.B. Thus, that claimed is waived.
See Pa.R.A.P. 302(a).3
Next, we address Father’s argument that the juvenile court erred in
finding that Father was a perpetrator of child abuse by omission. As Father
correctly observes, the juvenile court must find child abuse by clear and
convincing evidence. In re L.V., 209 A.3d 399, 417 (Pa. Super. 2019). That
standard of proof requires,
that the witnesses must be found to be credible; that the facts to
which they testify are distinctly remembered and the details
thereof narrated exactly and in due order; and that their
testimony 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. It is not necessary that
the evidence be uncontradicted provided it carries a clear
conviction to the mind or carries a clear conviction of its truth.
In the Interest of J.M., 166 A.3d 408, 423 (Pa. Super. 2017).
Instantly, Father contends that DHS did not present clear and convincing
evidence that he recklessly created a likelihood of injury through a failure to
act. See Father’s brief at 20-25.
As we recently restated with regard to recklessness:
Recklessness implicates knowledge in two ways: (1) the actor
must consciously (i.e., with knowledge) disregard a substantial
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3 Moreover, Father’s two-paragraph argument in support of this assertion of
juvenile court error is woefully underdeveloped and lacks citation to any
pertinent legal authority beyond the applicable burden of proof in dependency
proceedings. Accordingly, the issue also is waived for this reason. See
Pa.R.A.P. 2119(b) and Thomas v. Thomas, 194 A.3d 220, 229 (Pa.Super.
2018) (failure to support each issue with discussion and analysis of pertinent
authority hampers review and risks waiver).
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and unjustifiable risk; and (2) the risk that the actor disregards is
measured by the circumstances known to the actor. Conscious
disregard of a risk, in turn, involves first becoming aware of the
risk and then choosing to proceed in spite of the risk.
Commonwealth v. Sanders, 2021 WL 3616039, 2021 PA Super 163(Pa.Super. filed Aug. 16, 2021) (en banc) (quotations and internal citations
omitted).
Our sister court succinctly phrased the applicable standard for
determining whether a parent or caregiver is a perpetrator of abuse by
omission under the CPSL as follows:
We think the appropriate standard to use to determine whether a
parent or caretaker is a perpetrator by omission is whether a
reasonable person in the position of the caretaker, knew or
should have known that acts of abuse were occurring and the
parent or caretaker failed to take steps to remove the child from
harm’s way.
In Bucks Co. Child & Youth Soc. Servs. Agency v. Dep’t of Pub. 616 A.2d
170, 174 (Pa.Cmwlth. 1992) (emphasis in original).4 Although this Court has
not stated this principle as artfully as the Commonwealth Court, we have
nonetheless applied it in cases involving child abuse by omission. See e.g.
In the Interest of L.V., 127 A.3d 831, 837 (Pa.Super. 2015) (“Even
assuming it was Father who directly caused Child’s injuries, Mother knew, or
should have known, that Child was being abused.”); In the Interest R.P.
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4 While we are not bound by the decisions of Commonwealth Court, we may
cite the decisions of that court as persuasive authority. Petow v. Warehime,
996 A.2d 1083, 1088 n.1 (Pa.Super. 2010).
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957 A.2d 1205, 1214 (Pa.Super. 2008) (“Mother knew or should have known
about Father’s abuse of [child].”).
The crux of Father’s argument challenges the weight of the evidence.
As explained infra, Father does not argue that there is insufficient evidence to
support the juvenile court’s ruling. Instead, highlighting that he was not
present when Mother scalded A.B. with hot liquid on June 12, 2020, and
invoking evidence favorable to his position that he had no reason to suspect
that Mother was inflicting child abuse, Father asserts that the juvenile court
erred in concluding that his conduct was reckless in failing to protect A.B. from
Mother under these circumstances. See Father’s brief at 25.
Father’s position is founded upon his testimony that he did not have any
knowledge of the numerous additional injuries that the body scans revealed
after A.B. was admitted to St. Christopher’s. He also relies upon Dr. Atkinson’s
testimony that she was not able to state with certainty when two of those
latent injuries, the left shoulder fracture and the liver hematomas, occurred.
Removing those injuries from the calculation, Father reasons that the
remaining injuries, i.e., A.B.’s fractured rib, fractured hand and bruised torso
and face, “could easily have [been] missed” based on Father’s limited
interaction with his son. Id. at 23. In this vein, Father notes that an agency
caseworker assigned to the family never voiced any concerns with A.B.’s
appearance. Father’s brief at 23. In addition, he highlights that A.B.’s broken
bones and bruises were less severe than the injuries that the respective
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victims endured in the two above-referenced cases where we upheld findings
of abuse. See In re R.P., supra (mother culpable for abuse by omission
where 18 month-old child suffered multiple bruises, indications of skull, hip ,
and wrist fractures); In re L.V., supra (seven-month-old child with twenty-
three rib fractures in various stages of healing, internal organ damage, and
acute subdural hemorrhage). As explained infra, Father’s reliance on these
cases is unavailing.
DHS counters that the evidence presented at the hearing established
that Father was previously concerned about Mother’s parenting skills and her
treatment of A.B., including striking the child, but failed to act to prevent any
future harm. Specifically, Father admitted that he had observed unexplained
injuries and bruises on A.B.’s body and had serious concerns about Mother’s
parenting skills and her methods of disciplining A.B. Further, witnesses
testified that Father admitted knowing that Mother hit A.B. and locked him in
isolation. Moreover, DHS points out that, despite these concerns, Father took
no action to remove A.B. from Mother’s care or bring the abuse to the attention
of DHS or the proper authorities. Hence, the DHS concludes that because
Father knew, or should have known, of the dangerous and precarious situation
with Mother, and recklessly failed to remove A.B. from harm’s way, the
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juvenile court properly found that Father was a perpetrator of abuse by
omission.5
In addressing this issue in the Rule 1925(a) opinion, the juvenile court
reasoned,
After hearing expert medical testimony from Dr. Atkinson, the
child abuse expert witness: credible, persuasive testimony from
the DHS investigator, Nikkia R. Plunkett, and Glenda Rivera, DHS
Social Worker Supervisor, this court found clear and convincing
evidence existed to substantiate the allegations set forth in the
petition filed by DHS for this child. . . . This court . . . found that
this child was the victim of child abuse as defined at 23 Pa.C.S.
§6303 (b.1)(1), “[t]he term ‘child abuse’ shall mean intentionally,
knowingly or recklessly . . . causing bodily injury to a child through
any recent act” by Mother and “failure to act” as to Father.
....
Father testified he saw bruises on his son at various prior
occasions. He testified that he knew Mother hit the child[6] and
treated him differently than her other child. Then, in further
testimony, Father denied making statements to Dr. Atkinson and
Ms. Rivera about Mother’s actions. Father testified he did not take
his injured child to a doctor on various other occasions when he
saw injuries because he did not have any documents. It is clear
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5 DHS also highlights that: (1) Father’s alleged attempt to obtain custody of
A.B. in November 2019 is unsupported by any documentation in the certified
record; and (2) that Father’s concomitant assertion that the COVID-19
pandemic disrupted the ensuing custody proceeding scheduled for February
20, 2020, is belied by the fact that the Pennsylvania Supreme Court did not
declare the COVID-19 statewide judicial emergency until March 16, 2020,
approximately three weeks after the supposedly scheduled hearing.
6 As the certified record does not support the court’s finding that Father
testified that he knew Mother hit the child, we do not consider it. For clarity,
we note that Dr. Atkinson testified that Father informed her that Mother hit
the child. Father has vigorously denied making this statement to Dr. Atkinson
or anyone else. The juvenile court found that Father’s denials lacked
credibility.
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to this court that Father knew his son was being abused by
Mother, however, he did not remove A.B. from Mother’s care.
Father's testimony at the close of the hearing, when he opined
that “Mother just needed to go to parenting class and that he did
not see anything that concerned him,” was also relevant to his
ability to comprehend the critical need to provide a safe, and a
healthy, environment for this child. This court found Father's
testimony incredible and found that the totality of the evidence
presented showed this court that Father is not ready, willing, and
able to care for his son at this time.
Trial Court Opinion, 3/31/21 at 19-21.
We discern no abuse of discretion. The certified record supports the
juvenile court’s determination that Father consciously disregarded a
substantial and unjustifiable risk that A.B. would be subject to abuse in
Mother’s care. The record bears out that Father was aware of prior incidents
of abuse and Mother’s mental health problems. Indeed, he noted his concerns
about Mother’s behavior to both Dr. Atkinson and DHS investigators and
specifically indicted her parenting skills, discipline, and apparent indifference
toward the wellbeing of her one-year-old son. N.T., 2/9/21, at 63-65, 67, 90.
Contrary to Father’s contentions, the comparative severity of the
victims’ injuries in In re R.P., and In re L.V., is of no moment in this case.
The determinative factor is not the extent of A.B.’s physical trauma, but
whether Father knew or should have known of the risk of bodily injury to A.B.
and failed to act to prevent it. In In re R.P., and In re L.V., we highlighted
the number and severity of the injuries in order to infer that the perpetrator
by omission had ignored clear evidence of abuse. Unlike the parents in those
cases, Father admitted to observing evidence of Mother’s potential abuse of
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A.B. As Father’s statements satisfy the knowledge element of the
determination, it is unnecessary to focus on the comparative severity of A.B.’s
injuries.
Furthermore, although Father subsequently denied observing some
signs of child abuse and asserted that he acted properly to avoid others, i.e.
his undocumented claim that he filed for physical custody in November 2019,
the juvenile court simply found Father’s assertions lacked credibility. See Trial
Court Opinion, 3/31/21, at 21. Father is essentially requesting this Court to
overturn the juvenile court’s credibility determination in favor of Dr. Atkinson
and the DHS child abuse investigator, and make a new determination that
adopts Father’s testimony. As the certified record supports the court’s
assessment of the witnesses’ credibility, we cannot disturb it. See In re L.Z.,
supra at 1174 (appellate court must accept findings of fact and credibility
determinations that are supported by the record). For all of the foregoing
reasons, we find that the juvenile court did not abuse its discretion in finding
that the certified record supported the finding that Father was a perpetrator
of child abuse by omission insofar as he recklessly created a likelihood of injury
by failing to act when he knew or should have known that acts of abuse were
occurring. See Bucks Co. Child & Youth Soc. Servs. Agency, supra; In
the Interest of L.V., supra; In the Interest of L.V., supra.
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Finally, we address Father’s contention that the juvenile court abused
its discretion in adjudicating A.B. dependent pursuant to 42 Pa.C.S. § 6302.7
The Juvenile Act defines a dependent child, in relevant part, as a child
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.
As we previously explained, “[t]he petitioner bears the burden of proof
in a dependency hearing, and must prove by clear and convincing evidence
that (1) the child is presently without proper parental care or control; and (2)
such care and control is not immediately available.” In re R.W.J., 826 A.2d
10, 14 (Pa. Super. 2003) (citation and quotation marks omitted). Proper
parental care is defined as “that care which (1) is geared to the particular
needs of the child and (2) at a minimum, is likely to prevent serious injury to
the child.” In the Matter of C.R.S., 696 A.2d 840, 845 (Pa.Super.1997).
Moreover, “the dependency of a child is not determined as to a particular
person, but rather must be based upon two findings by the trial court: whether
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7 As Father does not challenge the juvenile court’s removal of A.B. from Mother
or the child’s placement in the legal custody and care of DHS, we do not
address that aspect of the disposition.
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the child is currently lacking proper care and control, and whether such care
and control is immediately available.” In re J.C., 5 A.3d 284, 289 (Pa.Super.
2010) (cleaned up). Furthermore, “a finding of dependency can be made on
the basis of prognostic evidence and such evidence is sufficient to meet the
strict burden of proof necessary to declare a child dependent.” In re E.B., 83
A.3d 426, 433 (Pa.Super. 2013) (citation omitted). Significantly, when an
adjudication of dependency is premised on a finding of child abuse supported
by clear and convincing evidence, the finding of abuse may support the
adjudication of dependency. In the Matter of C.R.S., supra at 843.
Father argues that the record does not support the adjudication of
dependency because he: 1) acted appropriately during the ordeal on June 12,
2020, by immediately transporting A.B. to the hospital upon being informed
of the injury and observing his son’s condition; 2) denied any knowledge of
the additional injuries that were discovered after A.B.’s admission to
St. Christopher’s; 3) responded suitably to his concerns with Mother’s
parenting skills and treatment of A.B.; and 4) made himself available to take
A.B. home following his discharge from St. Christopher’s. See Father’s brief
at 26-27. In sum, Father concludes that he “did everything that any
responsible parent would do to ensure A.B’s safety and wellbeing.” Id at 27.
Citing In the Matter of C.R.S., supra, DHS argues that the
adjudication of dependency is supported by the juvenile court’s finding of child
abuse by clear and convincing evidence. DHS brief at 24-25. Similarly, in
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adjudicating A.B. dependent, the juvenile court reasoned that the same
conduct that supported the finding that Father was a perpetrator of abuse by
omission sustained the finding that Father was not able to provide care and
safety for his son. Trial Court Opinion, 3/31/21, at 20-21. We agree.
As we explained in In the Matter of C.R.S., supra, a finding of child
abuse by clear and convincing evidence, which we have in the case at bar,
supports the concomitant adjudication of dependency. We stated as follows:
“A finding of abuse may support an adjudication of dependency. When the
court's adjudication of dependency is premised upon physical abuse, its
finding of abuse must be supported by clear and convincing evidence. Id. at
843 (citations omitted).
As previously discussed, the trial court’s finding of child abuse by
omission was founded upon clear and convincing evidence. Again, the trial
court found credible testimony establishing that Father was concerned about
Mother’s treatment of A.B. and her methods of discipline, even noting that
Mother hit their one-year-old son, and observed unexplained injuries on the
child, but then failed to act to prevent any future harm. That conscious
disregard of the substantial and unjustifiable risk of continued child abuse was
tantamount to abuse by omission. Indeed, even after the heinous immersion
burns that A.B. suffered at Mother’s hands, Father defended Mother. He not
only questioned the continuing necessity of the subsequent child abuse
investigation, but during the ensuing hearing, he suggested that Mother
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simply needed to complete a parenting class. Father’s disconnect with the
gravity of Mother’s actions is telling.
The preceding clear and convincing evidence that established that
Father was a perpetrator of abuse by omission was also sufficient for the
juvenile court to adjudicate A.B. a dependent child without immediately
available proper parental care or control. In the Matter of C.R.S., supra at
843. As the trial court’s finding of child abuse by Father is supported by clear
and convincing evidence, the juvenile court did not abuse its discretion in
adjudicating A.B. dependent.
For all of the foregoing reasons, the trial court did not abuse its
discretion or commit an error of law in finding that Father committed child
abuse by omission and by adjudicating A.B. dependent, with a permanency
goal of reunification. Accordingly, we affirm the juvenile court’s February 9,
2021 order of adjudication and disposition
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2021
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