In the Interest of: C.B. and K.B., Minors

J-S69002-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.B. AND K.B., : IN THE SUPERIOR COURT OF
MINORS : PENNSYLVANIA
:
:
APPEAL OF: A.M., MOTHER : No. 1123 EDA 2015
Appeal from the Orders March 17, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0002176-2014;
CP-51-DP-0002177-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 08, 2015
Appellant, A.M. (“Mother”), appeals from the orders entered in the
Philadelphia County Court of Common Pleas, which found aggravated
circumstances and reasonable efforts were no longer required of the
Department of Human Services (“DHS”) to reunify Mother with C.B. and K.B.
(“Children”). We affirm.
The trial court’s opinion sets forth the relevant facts and procedural
history of this case as follows:
On September 11, 2014, DHS received a Child Protective
Services (“CPS”) report alleging that [C.B.] had swelling
of her whole face, both lips and a large lump on her
forehead. [K.B.] had a bruise on the right side of his face.
The report also alleged that Children reside in a shelter
with their Mother at Mercy Hospice Recovery for
[Women], and that Mother had substance abuse issues.
The police were called to Mercy Hospice due to [C.B.]’s
injuries. Mother stated that she put both Children in bed
at approximately 7:30 P.M. Later that evening, Mother
went back upstairs to check on the Children and returned
downstairs with [C.B.] in her arms, screaming at a
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resident. Another resident at the recovery home came
downstairs with [K.B.]. [K.B.]’s face was swollen on the
right side. Mother stated that the Children must be
allergic to something. Paramedics and the police were
called. Mother and Children were transported to
Children’s Hospital of Philadelphia (“CHOP”). The
conditions of the Children did not coincide with Mother’s
explanation. As a result CHOP’s medical staff suspected
that this was a case of physical child abuse. Children
were then admitted into the hospital. The paramedics
touched [K.B.]’s face and he began to cry. On September
12, 2014, DHS received a supplement report to the
September 11, 2014 report alleging that [K.B.] had a
broken femur. Mother stated that the abuse was at the
hands of an unknown perpetrator. On the same day, DHS
went to CHOP and the Children’s father was present with
a CHOP social worker. The CHOP social worker and doctor
confirmed that the injuries to [C.B.] and [K.B.] were non-
accidental injuries. Children’s father stated that he was
concerned that someone from the shelter had hurt his
Children and he did not believe that Mother was the
perpetrator of the abuse. DHS went to father’s home and
completed a successful home assessment. DHS learned
that father resided with the Children’s paternal
grandmother. Mother agreed to ask father to obtain
alternate housing for himself in order for the Children to
reside in grandmother’s home. DHS was unable to clear
grandmother’s house due to her husband’s criminal
history. The home was appropriate, but there was some
concerns that father would not comply with a safety plan
because he did not believe that Mother was the
perpetrator of abuse. DHS visited Mother at a shelter.
Mother stated that when she left the room, someone must
have come inside and hurt her Children. Mother also
stated that she had a baby monitor. However, she did not
hear the Children crying, and when she returned to the
room the Children were injured.
On September 15, 2014, DHS obtained an Order for
Protective Custody (“OPC”) for Children. On September
17, 2014, at a Shelter Care hearing, the trial court lifted
the OPC and ordered the temporary commitment to stand.
The adjudicatory hearing was scheduled for September
24, 2014. On September 24, 2014, the trial court
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deferred Children’s adjudication hearing for December 9,
2014. On December 9, 2014, the trial court granted a
continuance request and again deferred the adjudicatory
hearing for March 17, 2015. On March 17, 2015, the
parties agreed to adjudicate the hearing, DHS requested a
finding of aggravated circumstances and child abuse also.
The trial court accepted [the] parties’ agreement, and also
found aggravated circumstances and child abuse in regard
to Mother. The Children were placed in foster care….
Counsel for Mother filed a notice of appeal on [April 14,
2015,] only as to the finding of child abuse and
aggravated circumstances against Mother.
(Trial Court Opinion, filed July 10, 2015, at 1-2) (citations to record
omitted). On April 14, 2015, Mother also timely filed a contemporaneous
statement of errors complained on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i).1
Mother raises the following issues for our review:
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN MAKING A FINDING OF CHILD ABUSE
REGARDING [MOTHER]?
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN MAKING A FINDING THAT [MOTHER] WAS A
PERPETRATOR BY OMISSION?
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN MAKING A FINDING OF AGGRAVATED
CIRCUMSTANCES REGARDING [MOTHER]?
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
1
We observe that it was improper for Mother to file a single notice of appeal
and statement of errors complained on appeal from separate orders for C.B.
and K.B., which found the presence of aggravated circumstances and that
reasonable efforts were unnecessary. See Pa.R.A.P. 341 (providing that
where more than one order resolves issues arising on more than one docket,
or relating to more than one judgment, separate notices of appeal are
required). Nevertheless, we decline to reject Mother’s appeal on this basis.
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ERROR IN MAKING A FINDING OF NO REASONABLE
EFFORTS REQUIRED TO REUNITE [MOTHER] WITH [HER
CHILDREN]?
(Mother’s Brief at 4).
In Mother’s issues combined, she argues the findings on aggravated
circumstances and reasonable efforts were in error. Mother admits the
record demonstrated clear and convincing evidence that Children suffered
abuse, but she contends the error lies in the court’s finding that she had
abused Children by omission where the evidence was insufficient to support
the finding. Mother alleges she presented rebuttable evidence to refute the
presumption that she abused Children. Mother avers the court imposed an
impossible standard that required her to protect Children from unknown
harms at all times. Additionally, Mother insists that founded cases of child
abuse or neglect do not necessarily constitute cases of aggravated
circumstances. Mother contends the court based its finding of aggravated
circumstances solely on the grounds that Children suffered abuse and
Mother was the primary caregiver. Mother maintains the court abused its
discretion in finding the presence of aggravated circumstances, which
permitted the court to terminate any reasonable efforts necessary to reunify
Mother with Children. Mother concludes this Court should reverse the
court’s orders regarding aggravated circumstances and reasonable efforts.
We disagree.
The applicable scope and standard of review for dependency cases is
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as follows:
[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 inference or conclusions of law.
Accordingly, we review for an abuse of discretion.
In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (quoting In re R.J.T., 608
Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)).
The previous version of the Child Protective Services Law2 defined
“child abuse,” in relevant part, as follows:
§ 6303. Definitions
(b) Child abuse.—
(1) The term “child abuse” shall mean any of the
following:
(i) Any recent act or failure to act by a
perpetrator which causes nonaccidental serious
physical injury to a child under 18 years of
age.
* * *
(iii) Any recent act, failure to act or series of
such acts or failures to act by a perpetrator
which creates an imminent risk of serious
physical injury to or sexual abuse or sexual
exploitation of a child under 18 years of age.
(iv) Serious physical neglect by a perpetrator
constituting prolonged or repeated lack of
2
Section 6303 was amended, effective December 31, 2014, and now
includes a revised definition of “child abuse.” See 23 Pa.C.S.A § 6303(b.1).
Because Children’s injuries occurred prior to the effective date of the
amendment, we apply the previous version of Section 6303.
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supervision or the failure to provide essentials
of life, including adequate medical care, which
endangers a child’s life or development or
impairs the child’s functioning.
23 Pa.C.S.A. § 6303(b)(1)(i), (iii)-(iv).
The existence of “child abuse” pursuant to Section 6303(b)(1) must be
proven by clear and convincing evidence. In re L.Z., ___ Pa. ___, 111 A.3d
1164, 1174 (2015). Under certain circumstance, however, the identity of an
abuser may be established by prima facie evidence. Id. See also In re
L.V., ___A.3d ___, 2015 PA Super 234 (filed November 12, 2015).
[E]vidence that a child suffered injury that would not
ordinarily be sustained but for 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. 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. The 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 CYS agency and the rebuttal of the
parent or responsible person.
In re L.Z., supra at ___, 111 A.3d at 1185 (internal footnote omitted).
Significantly, courts do not require a parent’s physical presence during
the injury for “abuse” to occur. Id. at ___, 111 A.3d at 1184. To the
contrary, our Supreme Court has stated, “parents are always responsible for
their children, absent extenuating circumstances….” Id. Moreover, “[t]he
inclusion of ‘omissions’ encompasses situations where the parent or
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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.
Furthermore, the Juvenile Act provides, in relevant part:
§ 6302. Definitions
The following words and phrases when used in this chapter
shall have, unless the context clearly indicates otherwise,
the meanings given to them in this section:
“Aggravated circumstances.” Any of the following
circumstances:
* * *
(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.
* * *
“Aggravated physical neglect.” Any omission in the
care of a child which results in a life-threatening condition
or seriously impairs the child’s functioning.
42 Pa.C.S.A. § 6302. “The court need not find the existence of aggravated
circumstances as to a particular party; rather it merely must determine
whether [those circumstances] are present in the case.” In re R.P., 957
A.2d 1205, 1219 (Pa.Super. 2008). “If the court finds from clear and
convincing evidence that aggravated circumstances exist, the court shall
determine whether…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….” 42 Pa.C.S.A. § 6341(c.1).
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Nevertheless, a court may end reasonable efforts at its discretion. In re
A.H., 763 A.2d 873, 878 (Pa.Super. 2000).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Joseph
Fernandes, we conclude Mother’s issues merit no relief. The trial court’s
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion at 4-8) (finding: (1) and (3) at time of
injuries, C.B. was one year old, and K.B. was five months old; C.B. sustained
several injuries, including bruising to her face, forehead, right ear, and back
waistline, swelling and abrasion of her upper lip, and blood in her nose as
result of trauma; testimony of Dr. Parking-Joseph, Children’s treating
physician, established that C.B.’s injuries caused her severe pain and
restricted her ability to eat and speak; K.B. sustained several injuries,
including bruising down left side of his face and ear, and skeletal fracture of
his right femur; doctors found additional fracture to K.B.’s right tibia, which
they believed healed with no treatment; Dr. Parking-Joseph’s testimony
established that K.B. was in severe pain during treatment and will likely
have some residual pain in future as result of skeletal fractures; Children’s
treating physicians determined that injuries to Children resulted from non-
accidental trauma; other possible causes of Children’s injuries were ruled
out, such as medical deficiencies, allergic reaction, or self-infliction of their
own injuries; Dr. Parking-Joseph’s testimony established that K.B.’s skeletal
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fractures were result of shaking, flailing, pulling, or yanking at his
extremities, and Children did not possess strength necessary to cause such
injuries to themselves or each other; Mother was primary caregiver when
injuries occurred; Mother admitted she left Children alone in bedroom, and
used monitor that was out of range; Mother was gone for 38 minutes while
Children were alone in room; Mother was unable to explain her whereabouts
during 38 minutes; Mother claimed she returned to room and noticed bruises
on C.B.’s face and assumed it was allergic reaction; no one else was
responsible for Children’s injuries and Mother was exclusive caregiver when
injuries occurred; (2) Dr. Parking-Joseph’s testimony established Children
were in severe pain during medical examination; both Children required
Tylenol and Motrin to palliate their pain; Children were victims of physical
abuse that resulted in injuries which caused severe pain and temporarily
impaired Children’s physical functions; (4) existence of aggravated
circumstances; record established Mother was primary caregiver for
Children; Mother admitted leaving Children alone and using out-of-range
monitor; without Mother’s omission in her duty to care for Children,
Children’s injuries would not have occurred; Mother’s lack of awareness of
her omission and conduct in caring for Children demonstrated that returning
Children to Mother’s care would put Children’s physical integrity at risk).
Accordingly, we affirm on the basis of the trial court’s opinion.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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IN THE COURT OF COMMON PLEAS
FOR THE COUNTY OF PHILADELPHIA
FAMILY COURT DIVISION
In Re: C.B. : CP-51-DP-0002176-2014
K.B. : CP-51-DP-0002177-2014
APPEAL OF: A.M., Mother : 1123 EDA 2015
OPINION
Fernandes, J.:
Appellant, A.M. ("Mother"), appeals from the orders entered on March 17, 2015, finding that child
abuse and aggravated circumstances existed and reasonable efforts need not be made by the
Department of Human Services to reunify C.B. ("Child l ") and K.B. ("Child 2") (collectively
"Children") with their Mother pursuant to 42 Pa.C.S. § 6302. Marie Regine Charles-Asar, Esquire,
counsel for Mother, filed a notice of appeal with a Statement of Errors Complained Of pursuant to
Rule 1925 (b).
Factual and Procedural Background
On September 11, 2014, DHS received a Child Protective Services ("CPS") report alleging that
Child 1 had swelling of her whole face, both lips and a large lump on her forehead. Child 2 had a
bruise on the right side of his face. The report also alleged that Children reside in a shelter with
their Mother at Mercy Hospice Recovery for Woman, and that Mother had substance abuse issues.
The police were called to Mercy Hospice due to Child l's injuries. Mother stated that she put both
Children in bed at approximately 7:30 P.M. Later that evening, Mother went back upstairs to check
on the Children and returned downstairs with Child 1 in her arms, screaming at a resident. Another
resident at the recovery home came downstairs with Child 2. Child 2's face was swollen on the
right side. Mother stated that the Children must be allergic to something. Paramedics and the police
were called. Mother and Children were transported to Children's Hospital of Philadelphia
("CHOP"). The conditions of the Children did not coincide with Mother's explanation. As a result
CHO P's medical staff suspected that this was a case of physical child abuse. Children were then
admitted into the hospital. The paramedics touched Child 2's face and he began to cry. On
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September 12, 2014, DHS received a supplement report to the September 11, 2014 report alleging
that Child 2 had a broken femur. Mother stated that the abuse was at the hands of an unknown
perpetrator. On the same day, DHS went to CHOP and the Children's father was present with a
CHOP social worker. The CHOP social worker and doctor confirmed that the injuries to Child 1
and Child 2 were non-accidental injuries. Children's father stated that he was concerned that
someone from the shelter had hurt his Children and he did not believe the Mother was the
perpetrator of the abuse. DHS went to father's home and completed a successful home assessment.
DHS learned that father resided with the Children's paternal grandmother. Mother agreed to ask
father to obtain alternate housing for himself in order for the Children to reside in grandmother's
home. OHS :i.v.as unable to clear grandmother's house due to her husband's criminal history Ibe
home was appropriate, but there was some concerns that father would not comply with a safety
plan because he did not believe that Mother was the perpetrator of abuse. DHS visited Mother at
a shelter. Mother stated that when she left the room, someone must have come inside and hurt her
Children. Mother also stated that she had a baby monitor. However, she did not hear the Children
crying, and when she returned to the room the Children were injured.
On September 14, 2014, DHS obtained an Order for Protective Custody ("OPC") for Children. On
September 17, 2014, at a Shelter Care hearing, the trial court lifted the OPC and ordered the
temporary commitment to stand. The adjudicatory hearing was scheduled for September 24, 2014.
On September 24, 2014, the trial court deferred Children's adjudication hearing for December 9,
2014. On December 9, 2014, the trial court granted a continuance request and again deferred the
adjudicatory hearing for March 17, 2015. On March 17, 2015, the parties agreed to adjudicate the
Children dependent based on present inability. (N.T. 3/17/15, pgs, 7-8). During the adjudicatory
hearing, DHS requested a finding of aggravated circumstances and child abuse also. (N.T. 3/17/15,
pgs. 7,105). The trial court accepted parties' agreement (N.T. 3/17/15, pg. 113), and also found
aggravated circumstances and child abuse in regard to Mother. The Children were placed in foster
care through Bethanna. Counsel for Mother filed a notice of appeal on May 21, 2015 only as to
the finding of child abuse and aggravated circumstances against Mother.
Discussion:
On appeal, Mother raises the following issues:
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1. The trial court committed reversible error in finding that appellant was a perpetrator by
omission due to the fact that Mother was the primary caregiver.
2. The trial court committed reversible error in finding aggravated circumstances regarding
appellant.
3. The trial court committed reversible error in finding evidence of Child abuse regarding the
appellant.
4. The trial court committed reversible error in finding no reasonable efforts were required to
reunite the appellant with her Children.
For purposes of this appeal issue # 1 and # 3 will be consolidated into one main issue. The other
two issues will be treated as stated by the appellant.
Mother's first issue on appeal argues the trial court erred in determining that Children were victims
of Child abuse regarding Children's Mother. The Child Protective Services Law ( .. CPSL") 23.
C.S.A. §6303 (b) (i) establishes that any recent act or failure to act by a perpetrator which causes
non-accidental serious physical injury to a child under 18 years old constitutes child abuse. A
serious injury under CPSL 23. C.S.A. §6303 (a) is defined as that injury that causes severe pain or
that significantly impairs a child's physical functioning either temporally or permanently. The
record must show by clear and convincing evidence that the child suffered abuse as defined by the
CPSL 23. C.S.A. §6303 (b). In the Matter of L.Z. 111 A.3d 1164 (Pa. 2015). As to the identity of
the perpetrator of Child abuse, the trial court is required to find perpetrator's identity by prima
facie standard. In interest ofJR.W.. 631 A.2d 1019, 1023-1024 (Pa. Super. 1993). CPSL 23.
C.S.A. §6303 ( d) establishes that evidence that a child has suffered child abuse of such a nature as
would ordinarily not be sustained or exist except by reason of acts or omission 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 child This rule created an evidentiary
presumption against the child's caregiver at the time of the abuse. In re JG .. 984 A.2d 541,547
(Pa. Super.2009). Thus, proof of the nature of the child's harm, alone, is prima facie evidence of
child abuse by anyone who are found to be responsible for the welfare of the child at the time of
the alleged injuries. In re JG .. 984 A.2d 541,547 (Pa. Super.2009), In the Matter ofL.Z. 111 A.3d
1164 (Pa. 2015).
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Dr. Carla Parking-Joseph's testimony established that Child 1 presented several bruises on her
face. Child 1 first bruise was in the middle of Child 1 forehead and it extended to the right side of
her hairline. (N.T. 3/17/15, pgs. 21-22, 45, 57-58). Child l's forehead mark was the product of
trauma. (N.T. 3/17/15, pg. 62). Child 1 second bruise was on her right ear (N.T. 3/17/15, pg. 45)
and extended to the inner folds of Child 1 ear. (N.T. 3/17/15, pg. 45). A third bruise was noted on
Child 1 back on the waistline. (N.T. 3/17/15, pg. 45). The medical examination also revealed a
swelling area associated to the bruising, located in the middle of Child 1 forehead, a significant
swelling of Child 1 upperlip (OHS Exhibit E), and an abrasion on her lips. (N.T. 3/17/15, pgs. 22,
45, 57, 59). Child 1 presented dried blood on her nose that, according to Dr. Carla Parking-Joseph,
was the result of trauma. (DH8 &chibit E), (N.T. 3/17/15, pg. 59), Dr. Carla Parking-Joseph's
testimony established that Child 1 injuries were able to produce severe pain and restrict Child 1
ability to eat and speak. (N.T. 3/17/15, pgs. 49, 58-59). During Child 1 medical evaluation, she
was in severe pain. (N.T. 3/17/15, pgs. 47, 49, 58) and required Tylenol and Motrin to relieve her
pain (N.T. 3/17/15, pg. 47).
As to Child 2 injuries, Dr. Parking-Joseph's testimony found that Child 2 had significant bruising
on the left side of his face. (N.T. 3/17/15, pg. 45). Child2's bruise extended down from his temple,
down to his jawline and from the comer of his eye to his hairline. (N.T. 3/17/15, pg. 45-46). Child
2 also had a bruise on his ear. (N.T. 3/17/15, pg. 46). A skeletal survey identified a fracture on
Child 2's right femur. (N.T. 3/17/15, pgs. 22, 46). An additionalfracture was discovered on Child
2's right leg, specifically on his tibia (N.T. 3/17/15, pgs. 50, 60), which seems to have healed with
no treatment. (N.T. 3/17/15, pg. 50). The record established that Child 2 was already taking
medicine for his pain and a cast was already encased on his leg when Dr. Parking-Joseph's
evaluation took place. (N.T. 3/17/15, pg. 47). Moreover, Dr. Parking-Joseph's testimony
established that Child 2 suffered severe pain before setting the cast on his leg and needed pain
medicine. (N.T. 3/17/15, pg. 47). Tylenol and Motrin were provided to palliate Child 2's pain
(N.T. 3/17/15, pgs. 47-48). Child 2 has to remain with a cast between four and six weeks. (N.T.
3/17/15, pg. 63). In the future, Child 2 may have some residual pain. (N.T. 3/17/15, pg. 63).
In considering the nature of the Children injuries, Dr. Parking-Joseph determined that injuries
resulted from a non-accidental trauma. (N.T. 3/ 17I 15, pgs. 48, 52, 60, 62). Other possible causes
of the injuries, such as Children's medical deficiencies, disease, any allergic reaction, and
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birthmarks were ruled out. (N.T. 3/17/15, pg. 51-52, 62). In reference to Child 2 second fracture,
the testimony established that there have been reported a number of mechanisms that could result
in this type of fracture, such as shaking, flailing, pulling or yanking Child 2 at an extremity. (N.T.
3/ 17 I 15, pg. 51 ). Children's self-infliction of their own injuries was ruled out because they did not
have the strength to cause the injuries. (N.T. 3/17/15, pgs. 48, 60, 77). At the time in which the
Children were injured, on September 11, 2014, Child 1 was a one year-old and Child 2 was a five
months old. (DHS Exhibit E). Accordingly, the trial court did have clear and convincing evidence
to find the existence of Child abuse, as to Child 1 and Child 2, under CPLS 23. C.S. §6303 (b).
In relation to the identity of the abuser, the record established that Mother was Children's primary
caregiver at the moment in which the injuries occurred (N. T. 3/17 I 15, pgs. 46, 51, 75, 80-81, 90).
Mother was residing at Mercy Hospice Recovery for Woman with her Children at the time in
which the Children were injured. (N.T. 3/17/15, pgs. 22, 69, 91, 104). Mother admitted that on
September 11, 2014, she left the Children by themselves in the bedroom (N. T. 3/17 /15, pg. 23),
while she monitored the Children with an out of range monitor that did not allow her to hear her
Children. (N.T. 3/17/15, pgs. 27, 28). The record established that Mother left Children's bedroom
to obtain medication at approximately 7:30 P.M. (N.T. 3/17/15, pgs. 70, 83), and the Shelter's
enter/exit record shows that Mother was out from 8:00 P.M. to 8:38 P.M. (N.T. 3/17/15, pgs. 26,
28-29). Mother stated that she was smoking a cigarette and she was in other areas within Mercy
Hospice Recovery for Woman. (N.T. 3/17/15, pg. 23). Shelter's staff corroborated that Mother
was seen receiving a snack in the dining area and that Mother went for cigarettes. (N.T. 3/17/15,
pg. 83). Mother stated that she returned to her room after being downstairs and noticed the Children
bruises. (N.T. 3/17/15, pg. 20). However, Mother did not provide an explanation for her location
and actions from 8:00 P.M. to 8:38 P.M. (N.T. 3/17/15, pgs. 22, 24, 27, 29, 36). Instead, Mother
focused in providing information about other possible perpetrators and stated the Mercy Hospice
Recovery for Woman "was covering something up because they did not want to be sued". Mercy
Hospice Recovery for Woman staff could not provide a complete time line about Mother's actions.
(N.T. 3/17/15, pg. 84). No one else was found to be responsible for Children injuries. (N.T.
3/17/15, pgs. 23, 24, 39). As Pennsylvania law requires, parents have a duty not merely to refrain
from harming their children, but also a duty to protect the Children from others who may inflict
harm. In the Matter o(L.Z. 111 A.3d 1164 (Pa. 2015). The record established that Mother was
Children's exclusive caregiver at the moment in which the injuries occurred. However, Mother
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left the Children alone using inappropriate monitor. The Children would not ordinarily sustained
these types of injuries but for Mother's omission. As a result, the record established prima facie
evidence of child abuse as to the Mother, and the trial court did not heard competent evidence that
rebutted such a presumption.
Under 42 Pa.C.S. § 6341 (C) (1), the trial court shall determine if aggravated circumstances exist,
if the county agency or child's attorney request a finding of the existence of aggravated
circumstances and there is an adjudication of dependency. Under42 Pa.C.S. § 6302 (2), aggravated
circumstances exist when 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. A serious injury under CPLS 23. C.S. §6303 (a) is defined as the injury that causes severe
pain or that significantly injury impairs a child's physical functioning either temporally or
permanently.
The record established that DHS filed a dependency petition under the Pennsylvania Juvenile Act
42 Pa.C.S. § 6301-6365, (See Dependency Petition), on September 18, 2014, and the parties agreed
on Children dependency adjudication based on Mother's present inability. On March 17, 2015, at
the adjudicatory hearing, the trial court accepted parties' agreement (N.T. 3/17/15, pgs. 7, 8, 113)
and found the existence of aggravated circumstances. (N .T. 3/17/l 5, pgs. 115-116). On appeal
Mother argues that the trial court abused its discretion in finding the existence of aggravated
circumstances. Dr. Carla Parking-Joseph's testimony established Child 1 's injuries were able to
produce severe pain and restrict Child l's ability to eat. (N.T. 3/17/15, pg. 49). During Child's
medical evaluation, Child 1 appeared to be in severe pain (N.T. 3/17/15, pgs. 47, 49) and required
Tylenol and Motrin to relieve her pain. (N.T. 3/17/15, pg. 47). As to Child 2, Dr. Parking-Joseph's
testimony established that she evaluated Child 2 after taking medicine for his pain and encasing a
cast on his leg. However, she testified that Child 2 had to suffer severe pain due to the type of
injuries that he had. (N.T. 3/17/15, pg. 47). In fact, Child 2 also needed Tylenol and Motrin to
palliate his pain (N.T. 3/17/15, pg. 47). The record also established that Mother was Children's
primary caregiver (N.T. 3/17/15, pgs. 46, 75, 80-81), there was prima facie evidence ofchild abuse
as to Mother, and Mother did not introduce any evidence to rebut such a presumption. The Children
were victims of physical abuse that resulted in injuries that caused severe pain and temporarily
impaired Children physical functions. As a result, DHS has met its burden by clear and convincing
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evidence that aggravated circumstances existed due to Mother's abuse of her Children and the
seriousness of their injuries.
Mother also argued that the trial court erred in finding that DHS does not have to make reasonable
efforts, as the petitioner failed to prove the prerequisites finding of aggravated circumstances.
Under 42 Pa.C.S. § 6341 (C) (1) if the county agency or the child's attorney request a finding of
the existence of aggravated circumstances and the court determines by 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. The Pennsylvania Juvenile Act, 42
Pa.C.S.A. §§ 6301-6365, complies with the Adoption and Safe Families Act and provides the
court with discretion to "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" when the court finds aggravated circumstances exist In the Interest ofLillev •
719 A.2d 327, 333 (Pa.Super.1998) In re A.H, 763 A.2d 873,878 (Pa. Super. 'L0oo). The focus of
the inquiry into whether to terminate efforts to reunify is in the best interest of the child. The
child's health and safety supersede all other considerations. In re RP .. 957 A.2d 1205, 1220
(Pa.Super.7..ooe,).
In Pennsylvania parents have a duty not merely to refrain from harming their children, but also a
duty to protect their Children from others who may inflict harm. In re R. WJ, 826A.2d 10, 14 (Pa.
Super. 2003). The record clearly established that Mother was the Children primary caregiver and
no other person had that responsibility. Mother admitted she left the Children alone in their
bedroom at Mercy Hospice Recovery for Woman (N.T. 3/17/15, pgs, 20, 23) while she was unable
to monitor the Children. (N.T. 3/17/15, pgs. 27, 28). Without Mother's omission in the care of her
Children, the injuries would have not occurred. The period of time of Mother's absence and
location is uncertain. Mother's version of the facts did not explain the thirty-eight minutes period
in which her location is unknown (N.T. 3/17/15, pgs. 22, 24, 27, 29, 36), and Shelter staff could
not provide a complete timeline about Mother's actions. (N.T. 3/17/15,pg. 84). During Children's
injuries investigation, Mother focused more in providing information of others possible
perpetrators and also stated that the shelter "was covering something up because they did not want
to be sued". However, no one else was found to be responsible for the Children injuries. (N.T.
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3/17/15, pgs. 23, 24, 39). Mother's absence from Children's bedroom without an appropriate
monitor device and her lack of awareness of her omission, leads the trial court to consider that
returning the Children to Mother's care would put Children's physical integrity at risk. (N.T.
3/17/15, pgs. 53-54). Consequently, it was within the trial court's discretion to order that no
reasonable efforts to reunify Mother and Children be made, as it is in the best interest of the
Children's safety, health and welfare. DHS witnesses testimony was credible.
Conclusion:
For the aforementioned reasons, the court finds that DHS met its statutory burden by clear and
convincing evidence regarding Child abuse and existence of aggravated circumstances. The court
also finds that DHS need not make further reasonable efforts to reunify the Children with Mother.
Accordingly, the order entered on March 17, 2015, should be affirmed.
By the court
J.
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IN THE COURT OF COMMON PLEAS
FOR THE COUNTY OF PHILADELPHIA
FAMILY COURT DIVISION
In Re: C.B. : CP-51-DP-0002176-2014
K.B. : CP-51-DP-0002177-2014
APPEAL OF: A.M., Mother : 1123 EDA 2015
PROOF OF SERVICE
I laereby cm:tify tlaat this coyrt is serving, tod~ Friclay, July 10, 2015, the foregoing Opinion, by
regular mail, upon the following person(s):
Katherine Holland, Esquire
City of Philadelphia Law
Office of the City Solicitor
Department 1515 Arch Street, 16th Floor
Philadelphia, Pennsylvania 19102-1595
Attorney for D.H.S.
Collin Swim, Esquire
Defender Association of Philadelphia
Suite 300
Child advocacy Unit
1414 Samson Street 4th Floor
Philadelphia, PA 19102
Child Advocate
Marie Regine Charles-Asar, Esquire
100 South Broad Street, Suite 1518
Philadelphia, PA 19110
Attorney for Mother
BY THE COURT: