In the Interest of: L.J.A., Appeal of: A.A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.J.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: A.A., STEP MOTHER :
:
:
:
: No. 893 MDA 2018
Appeal from the Dispositional Order Entered May 10, 2018
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000124-2017
*****
IN THE INTEREST OF: L.J.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: J.S.A., FATHER :
:
:
:
: No. 933 MDA 2018
Appeal from the Dispositional Order May 10, 2018
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000124-2017
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 21, 2019
Appellants A.A. (Stepmother) and J.S.A. (Father) each filed an appeal
from the order, entered in the Court of Common Pleas of Cumberland County,
adjudicating L.J.A. (Child) (DOB 8/11) dependent, requiring legal custody be
shared among M.M. (Mother), Father, and Cumberland County Children and
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Youth (the Agency), and granting Mother and Father shared physical custody.
This dependency matter stems from a contentious custody battle between
Mother and Father. After our review, we affirm, based, in part, on the trial
court opinions authored by the Honorable N. Christopher Menges.1 See Trial
Court Opinion, Appeal of J.S.A., 7/13/18; Trial Court Opinion, Appeal of A.A.,
7/13/18.2
Between April and August of 2017, the Agency received six referrals
from Father naming Child as the victim of abuse and identifying Mother as the
alleged perpetrator. Five of the referrals were deemed unfounded; the sixth,
which identified someone with whom Mother associates as the alleged
perpetrator, is the subject of this appeal.
The Agency scheduled home visits, and the Agency caseworker
observed Child in both Mother’s home and Father’s home. According to the
caseworker’s observations, Child appeared comfortable in both homes.
In August, the Agency caseworker made a scheduled visit to Child at
Father’s home. The caseworker saw “circular red marks” on Child’s back.
Child told the caseworker she had fallen at daycare, however, Father and
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1 Because Father is a practicing attorney in Cumberland County, President
Judge Edward E. Guido appointed an out-of-county judge, Judge Menges, to
preside over the dependency hearing. Notably, Father is the Court Appointed
Mental Health Attorney for Cumberland County.
2The Guardian ad litem has not filed a brief and relies upon the trial court’s
opinion.
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Stepmother insisted the marks were not from a fall but, rather, were similar
to “injuries” precipitating the prior referrals.
After a shelter care hearing on August 31, 2017,3 Child was placed with
paternal grandfather and step-grandmother. After several continuances, an
amended dependency petition, and four adjudicatory hearings held between
September 2017 and May 2018, the court adjudicated Child dependent. The
Agency presented expert testimony from Valentins Krecko, M.D., a board
certified child and adolescent psychiatrist. Dr. Krecko opined that Child’s
recent behavioral issues, aggression toward animals and babies, was a result
of emotional abuse stemming from the custody battle. N.T. Adjudicatory
Hearing, 4/18/18, at 31-34.
The court found that “Father has coached the child to go along with his
fabricated theories. [Child] stated to her grandmother that Father had lied
about her being hit with a hammer [by Mother].” Trial Court Opinion, Appeal
of J.S.A., supra at 14. The court also found that “Father has created a
mountain of documentation, which he intends to use as a weapon in the
custody battle.” Id.
The court entered a disposition order that same day, finding Child
dependent and requiring legal custody of Child be shared among Mother,
Father and the Agency; the court also ordered physical custody of Child be
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3We note the typographical error, 2018 instead of 2017, on page 3 of the trial
court’s opinions with respect to the date of the shelter care hearing.
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returned to Mother and ordered Father have unsupervised visitation.4 The
order further provided:
The Court hereby finds that the Child is a victim of child abuse as
defined at 23 Pa.C.S. § 6303, in that [Father] and [Stepmother]
are found to have been the perpetrators of emotional
abuse/serious mental injury[.]
Order, 5/10/18.
Father and Stepmother filed separate appeals from the order, which we
have consolidated sua sponte. See Pa.R.A.P. 513. Father raises the following
claims on appeal:
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4 The Juvenile Act provides:
(a) General rule.--If the child is found to be a dependent child the
court may make any of the following orders of disposition best
suited to the safety, protection and physical, mental, and moral
welfare of the child:
(1) Permit the child to remain with his parents, guardian, or
other custodian, subject to conditions and limitations as the
court prescribes, including supervision as directed by the
court for the protection of the child.
42 Pa.C.S.A. § 6351(a). Upon a finding of clear and convincing evidence that
the child is dependent, the court is authorized to remove a child from the
parents’ custody, or to permit the child to remain with his or her parents
subject to conditions. Id.; see also In interest of C.S., 580 A.2d 418 (Pa.
Super. 1990).
We note that neither party challenged the trial court’s granting legal
custody of Child to the Agency as well as the parents, and then ordering that
Child return to Mother’s home. As a result, we do not have jurisdiction to
address whether the Juvenile Act or the Juvenile Court Procedural Rules
authorizes the trial court to grant legal custody to an agency as well as
parents, especially when the court returns the child to one of the parents.
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1. Were the due process rights of [Father] violated when the
lower court made a finding of emotional abuse, when
emotional abuse was not part of either of the two
dependency petitions?
2. Did the lower court err as a matter of law or abuse its
discretion in finding emotional abuse of the Child when CYS
agreed that issue was part of a collateral proceeding and not
part of the herein dependency petitions and the report of
January 4, 2018 never having been served upon [Father]?
Father’s Brief, at 4.
Stepmother raises the following claims on appeal:
1. Whether the lower court erred as a matter of law and or
abused its discretion in its order dated May 10, 2018, finding
[Stepmother] was a perpetrator of emotional abuse?
2. Whether the lower court erred as a matter of law or abused
its discretion in its order dated May 10, 2018, finding
[Stepmother] was given proper notice of the Agency’s
intention to pursue a finding of emotional abuse?
3. Whether the lower court erred as a matter of law or abused
its discretion in its order dated May 10, 2018, that
adjudicated Child dependent?5
4. Whether the lower court erred as a matter of law or abused
its discretion in denying the motion to release Child from
shelter custody?
5. Whether the lower court erred as a matter of law or abused
its discretion in denying the motion to remove
[Stepmother’s] name as legal custodian or guardian of
[Child]?
Stepmother’s Brief, at 4.
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5In her brief, Stepmother noted that she no longer wished to pursue this claim
on appeal. See Stepmother’s Brief, at 4.
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Our standard of review in dependency cases is well established;
the standard this Court employs is broad. We accept the trial
court’s factual findings that are supported by the record, and defer
to the court’s credibility determinations. We accord great weight
to this function of the hearing judge because he is in the position
to observe and rule upon the credibility of the witnesses and the
parties who appear before him. Relying upon his unique posture,
we will not overrule [the trial court’s] findings if they are
supported by competent evidence.
In re R.P., 957 A.2d 1205, 1211 (Pa. Super. 2008) (citations and quotations
omitted). “Although bound by the facts, we are not bound by the trial court’s
inferences, deductions, and conclusions therefrom; we must exercise our
independent judgment in reviewing the court’s determination, as opposed to
its findings of fact, and must order whatever right and justice dictate.” In re
C.J., 729 A.2d 89, 92 (Pa. Super. 1999) (citing In re Donna W., 472 A.2d
635 (Pa. Super. 1984) (en banc)). The trial court’s decision should not be
reversed merely because the record would support a different result. In re
Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).
Father claims he was denied due process when the court made a finding
of emotional abuse where the dependency petitions alleged physical abuse,
and, further, that the January 4, 2018 psychiatric re-evaluation, upon which
the Father claims the court’s finding was based, was not entered into evidence
or served upon Father. We find this claim meritless.
The Juvenile Act governs state intervention in the parent-child
relationship. 42 Pa.C.S.A. § 6301 et seq. In In re M.L., 757 A.2d 849, (Pa.
2000), our Supreme Court stated that a court
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is empowered by 42 Pa.C.S. § 6341(a) and (c) to make a finding
that a child is dependent if the child meets the statutory definition
by clear and convincing evidence. If the court finds that the child
is dependent, then the court may make an appropriate disposition
of the child to protect the child’s physical, mental and moral
welfare, including allowing the child to remain with the parents
subject to supervision, transferring temporary legal custody to a
relative or a private or public agency, or transferring custody to
the juvenile court of another state. 42 Pa.C.S. § 6351(a).
Id. at 850-51. See also In re D.A., 801 A.2d 614 (Pa. Super. 2002) (en
banc). The Juvenile Act defines a dependent child as one 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, including evidence of the parent’s, guardian’s or other
custodian’s use of alcohol or a controlled substance that places
the health, safety or welfare of the child at risk[.]
42 Pa.C.S.A. § 6302 (emphasis added).
Father’s argument is also meritless. The Agency filed an amended
dependency petition on December 6, 2017. The amended petition alleged that
Child was victim of abuse as defined at 23 Pa.C.S A. § 6303. Section 6303
defines child abuse as follows:
(b.1) Child abuse.—the term “child abuse” shall mean
intentionally, knowingly or recklessly doing any of the following:
****
(3) causing or substantially contributing to serious mental
injury to a child though any act or failure to act or a series
of such acts of failures to act.
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23 Pa.C.S.A. § 6303(b.1)(3). Mental injury is, as pointed out by the Agency,
synonymous with emotional abuse. Moreover, Father (and Stepmother) were
both aware that Child was undergoing psychiatric evaluation, that the
contentious custodial battle could cause mental injury to Child, and that Child’s
demonstration of aggression and behavioral issues could be symptoms of
emotional abuse. Although Child’s initial evaluation did not reveal “serious
mental injury,” Father’s claim that he was not on notice of potential emotional
abuse is implausible. See Report of Valentins F. Krecko, M.D., 9/21/17
(“[Child] is a 6-year-old girl who is embroiled in a bitter custody battle
between her parents. Multiple allegations of physical abuse have remained
unfounded. Regarding the concern of emotional abuse, while it is clear that
the hostile and contentious relationship between [Child’s] parents is not
emotionally healthy, their hostility does not meet the State legal requirement
that it be done `knowingly, intentionally, and recklessly.’ In addition,
psychiatric evaluation of [Child] today fails to reveal chronic or severe anxiety,
depression, agitation, psychosis, or reasonable fear of harm. Thus, [Child]
does not meet the State definition of a child with serious mental injury. . .
[Child] is too young to take sides in her parents’ custody dispute and should
not be asked to do so.”) (emphasis added). Although Dr. Krecko’s evaluation
of Child did not reveal serious mental injury at that time, Father was certainly
on notice that this was a significant “concern.” In fact, at the hearing three
months later, on December 7, 2017, Dr. Krecko testified that he was asked to
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perform the September 21, 2017 evaluation to determine whether Child had
suffered emotional abuse as a result of the “high conflict” custody battle. N.T.
Hearing, 12/7/17, at 55. He testified that 65% of children involved in these
battles “will display clinical symptoms of anxiety severe enough to warrant
therapy. The other potential risks include problems with attachment due to
fear of abandonment or fear of being hurt, fears and phobias, physical
aggression, sleep disorders, clinical depression, oppositional behavior, just to
name some of them.” Id. at 55-56. The court questioned Dr. Krecko as
follows:
Q: Dr. Krecko, you stated in your report and you testified today
that you do not believe that [Child] has a serious mental injury,
correct?
A: Well, I said that on September 21st, and that was prior to
being informed that she had actually developed some troublesome
-- troubling aggression.
Q: So, the fact that it’s been reported that she has now
experienced some troublesome aggression, does that change your
opinion as you stated it back on September 21?
A: I would have to change my opinion. I’d have to say that
because [Child] is experiencing problems with self-control and
with behavior that she is -- that she is experiencing evidence of
serious mental injury.
Id. at 60-61.
We agree with the trial court that one “in [Father’s] position is on notice
that the issue of emotional abuse is, in fact, before the court.” Trial Court
Opinion, Appeal of J.S.A., supra at 7. See supra n.1; see also Matter of
C.R.S., 696 A.2d 840, 842 (Pa. Super. 1997) (purpose of dependency
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adjudication is to correct situation in which children lack proper parental care
and control necessary for their physical, mental or emotional health). In
light of the foregoing, the trial court found, and we concur, that Father’s claim
of surprise at the February 14, 2018 hearing was disingenuous. After our
review, we conclude that the record supports the court’s findings, and we rely
on Judge Menges’ opinion to dispose of Father’s claims. See Trial Court
Opinion, Appeal of J.S.A., supra at 5-9.
Stepmother raises four issues on appeal. See note 3, supra.6
Stepmother’s primary concern, in issues one and five, is that the Agency
added her as “Custodian” in the December 6, 2017 amended dependency
petition. See Amended Dependency Petition, supra at 1. She argues that
she is neither a biological parent nor a legal guardian of Child, and, therefore,
she should not have been found to be a “perpetrator of emotional abuse.”
Stepmother’s Brief, at 13.
The trial court found “with absolute certainty” that Stepmother falls into
the category of “other custodian,” as contemplated by section 6302 of the
Juvenile Act. Trial Court Opinion, Appeal of A.A., supra at 5. The record is
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6 The trial court states that a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal was not filed along with the notice of appeal in
accordance with children’s fast track procedure. See Pa.R.A.P. 905(a)(2) (“If
the appeal is a children’s fast track appeal, the concise statement of errors
complained of on appeal as described in Rule 1925(a)(2) shall be filed with
the notice of appeal and served in accordance with Rule 1925(b)(1).”). Our
review of the record indicates that, in fact, a Rule 1925(b) statement was filed
on June 1, 2018, simultaneously with the notice of appeal.
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replete with evidence that Stepmother, whom Child refers to as “mama,” is
considerably involved in parenting Child when Child is in Father’s custody,
which was 50% of the time. Stepmother prepares meals, oversees homework,
attends school functions and participates in Child’s therapy sessions. N.T.
Hearing, 2/14/18, at 66, 190, 192-93; N.T. Hearing, 5/10/18, at 43-44, 60,
62, 111. Stepmother acts as a co-parent and, based on our review of the
record, the trial court properly characterized her as “other custodian.”
The Agency made a prima facie case that Stepmother was one of the
perpetrators of abuse; the burden then shifted to Stepmother to demonstrate
that she was not a perpetrator. See In re L.Z., 111 A.3d 1164 (Pa. 2015).
Stepmother failed to do so. Based on the evidence provided over the four
hearings, the court found Father and Stepmother “acted in concert to make
multiple allegations of abuse against Mother.” Trial Court Opinion, Appeal of
A.A., 7/13/18, at 13. After our review of the record, we conclude that the
trial court’s finding that Stepmother was a perpetrator of the abuse is
supported by competent evidence, and we affirm based upon Judge Menges’
opinion. See id. at 5-6.
Next, Stepmother’s argument that she was not provided notice that
emotional abuse was an issue that could be determined by the court at the
April 18, 2018 adjudicatory hearing is, like Father’s identical claim, meritless.
See discussion above, supra at 6-10.
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Finally, Stepmother claims that the court abused its discretion in
denying her request to release Child from shelter care. We disagree. We refer
Stepmother to the decision in In re Kerr, 481 A.2d 1225 (Pa. Super. 1984)
(juvenile held beyond period of time provided by statute can petition court for
immediate release (which guardian ad litem did not, but Stepmother did), and
if not released, can petition the Superior Court (which Stepmother did not)).
Here, the court denied Stepmother’s petition at the April 18, 2018 hearing.
Stepmother did not petition this Court. Further, physical custody of Child has
been returned to the parents, and thus this is not grounds to disturb the
adjudication of dependency. See Pa.R.J.C.P. 1126 (“A child shall not be
released, nor shall a case be dismissed, because of a defect in the form or
content of the pleading or a defect in the procedures of these rules, unless the
party raises the defect prior to the commencement of the adjudicatory
hearing, and the defect is prejudicial to the rights of a party.”).
We find no error or abuse of discretion. See In re R.P., supra; In re
C.J., supra. The parties are instructed to attach the trial court’s opinions in
the event of further proceedings.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2019
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
JUVENILE DIVISION
In the Interest Of: CP-21-DP-0000124-2017
L.J.A., A Minor
933 MDA2018
Appeal of: J.S.A.
MEMORANDUM OPINION IN SUPPORT OF ORDER PURSUANT TO
RULE 1925(a)(2)(ii} OF THE PENNSYLVANIA RULES OF APPELLATE
PROCEDURE
AND NOW, this zo" day of June, 2018, the Court is in receipt of
AppeJlant's statement of errors complained of on appeal, as required by the Rules
of Appellate Procedure for a Children's Fast Track Appeal. Pa.R.A.P 1925(a)(2)(i).
The Court hereby reaffirms its Order of Adjudication and Disposition of February
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12, 2018, adopts its Findings of the same day, as well as the Findings of September
7, 2017, and offers further discussion, below.
HISTORY
L.J.A., six, is the natural born daughter of Justin Abel, Appellant (hereinafter
"Father"), and Ms. Margaret Murphy ("Mother"). L.J.A. is also at the center of a
contentious custody dispute which is the subject of litigation in Cumberland
County, Pennsylvania. Between April and August of 2017, the Cumberland County
Children and Youth Services Agency (CYS) received at least six referrals naming
L.J.A. as a victim of abuse. Five specifically identified Ms. Murphy as the alleged
perpetrator; one identified someone with whom Ms. Murphy associates as the
alleged perpetrator. Father freely acknowledges having made the referrals. Five of
the referrals were deemed unfounded. This appeal involves the sixth referral. On
August 23, 2017, a CYS caseworker made a scheduled visit to see L.J .A. at
Father's home. Present at the visit were Father, L.J.A., and Stepmother, Ashley
Abel. At that time, the caseworker observed injuries on the child's back, which
were described as "circular red marks." Dependency Petition 111 (Sept. 1, 2017).
L.J .A. told the caseworker that she had fallen at daycare; she was not experiencing
pain. However, Father and Stepmother insisted that the marks were not due to a
fall.
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CYS received a referral three days later on August 26, alleging that Mother
was not feeding L.J.A. Another referral was received four days later on August 30,
claiming that L.J .A. had disclosed that the circular red marks on her back were
caused by Mother hitting her with a hammer. The following day, Mother met with
the CYS caseworker. The caseworker attempted to engage Mother in a safety plan,
including supervised contact. Mother did not agree that a safety plan was
necessary; she provided time-stamped photographs taken the morning of August
23, the day of the alleged hammer injuries, showing L.J.A. without injuries,
minutes before going to before school care. Id. ,r,I14-15.When asked why she
would take such photographs, Mother reported that doing so was suggested to her
by Jaw enforcement officers during previous investigations to prove lack of injury
before custodial exchanges.
A shelter care hearing was held August 31, 2018 and L.J .A. was placed in
foster care.1 CYS filed a Dependency Petition September I, 2017, citing concerns
not only of where the red circular injuries had come from, but also about the very
contentious custody situation, and whether Father and Stepmother were pushing
the child to talk about inappropriate things and coaching her. Id. iJi!16-l 7. An
adjudicatory hearing was held before a hearing officer on September, 7. Kinship
1
Apparently it is the custom in Cumberland County to record shelter care hearings and produce
transcripts from the recordings as needed. Unfortunately, the recording of the shelter care
hearing in the instant case was lost, and no transcript is available.
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caregivers were identified, and L.J.A. was placed with her paternal grandparents.
Four adjudicatory hearings were held before this court over the course of the next
nine months before a determination of dependency and a finding of abuse were
entered on May 10, 2018.2
On June 8, 2018, Father appealed and simultaneously filed a Concise
Statement of Matter Complained of Pursuant to Pa. R.A.P. 1925 (b). Appellant
identifies several alleged errors,
1. The Lower Court erred as a matter of law finding that the Appellant
herein was a perpetrator of emotional abuse because:
A. Two Petitions of Dependency were filed against the
Appellant herein, and neither raised the issue of emotional
abuse.
B. During the course of the proceedings, the issue of
"emotional abuse" arose sua sponte by the Court, but all parties
on the record agreed that no emotional abuse issue was part of
this proceeding.
2. The Lower Court erred as a matter of law or abused its discretion in
its Order of May 10, 2018, finding the Father, Justin Abel, was given
notice of the Agency's intention to pursue a finding of emotional
abuse.
3. The Lower Court erred as a matter of law or abused its discretion
in its Order of May 10, 2018, that the Child was dependent.
2
Father, Justin Abel, is the Court Appointed Mental Health Attorney for Cumberland County.
Accordingly, the Cumberland County Court of Common Pleas recused itself, and Appointed the
undersigned to preside over the case.
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4. The Lower Court erred as a matter of law or abused its discretion in
denying the Motion to Release the Child from Shelter Care custody.
The Lower Court erred as a matter of law or abused its discretion in
making a determination that the Child was emotionally abused by the
Father, Appellant herein, when it was expressly noted on the record
that the issue of"emotional abuse" was not part of the proceeding.
5. The Lower Court erred as a matter of law or abused its discretion in
that the Court declared that the Dependent was not subject of physical
abuse and the Court declared that the Child was not subject of
inappropriate suggestions from the Father, as contained in each of the
two Petitions, then on its own determined that the Child was the
subject of emotional abuse when there was no record of same.
Statement of Errors Complained of on Appeal. The court hereby reaffirms its
Findings, and Order of Adjudication and Disposition of May 10, 2018, as
discussed below.
DISCUSSION
The standard of review in dependency cases is abuse of discretion.
As the Superior Court stated, 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. Accordingly, we review for
an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (PA. 2010) (internal citations omitted).
1. Father first alleges that this Court erred in finding that Father was a
perpetrator of emotional abuse because the issue of emotional abuse was not raised
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by the dependency petition, and claims that the issue of emotional abuse was only
raised sua sponte. This is factually inaccurate. The Amended Dependency Petition
filed December 6, 2017 alleges that the child is a victim of child abuse as defined
at 23 Pa.C.S. §6303. The statute states inter alia,
(b. l) Child abuse.--The term "child abuse" shall mean intentionally,
knowingly or recklessly doing any of the following:
( 1) Causing bodily injury to a child through any recent act or failure to
act.
(2) Fabricating, feigning or intentionally exaggerating or inducing a
medical symptom or disease which results in a potentially harmful
medical evaluation or treatment to the child through any recent act.
(3) Causing or substantially contributing to serious mental injury to a
child through any act or failure to act or a series of such acts or
failures to act.
23 Pa:c.S.A. § 6303(b.l). The statute clearly includes provisions for mental injury,
which we take to be synonymous with emotional abuse. The dependency petition
alleges,
The child: 1) is without proper parental care or control, subsistence,
education as required by law, or other care or control necessary for
his/her physical, mental, or emotional health, or morals ....
Amended Dependency Petition at 3. While this may be standard boilerplate
language, that fact would only further reinforce the notion that a person in Father's
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position is on notice that the issue of emotional abuse is, in fact, before the court.
Appellant Father strongly protests that emotional abuse was raised sua sponte, but
it was clearly raised by the Amended Dependency Petition of December 6, 2017.
The fact that Father chooses to interpret the word "abuse" to mean only physical
abuse does not override the legislature's clear intent to include mental and
emotional abuse within the definition of abuse.
Further, the record clearly indicates that mental and emotional abuse were a
concern from the outset of the CYS investigation. The CYS solicitor questioned
psychologist Dr. Valentines Krecko:
Q: Dr. Krecko, you were asked in September of2017 evaluate
[L.J.A.] with an eye toward whether there was, perhaps, I think it was
emotional, well, you tell us. Was it for emotional abuse with the
potential for coaching?
A: My evaluation was geared toward determining whether [L.J.A.]
suffered mental injury due to the contentious custody battle between
her parents.
Hr'g Tr. 28. February 14, 2018. Dr. Krecko would go on to testify that he tested
L.J.A. for emotional abuse on September 21, 2017. Id. at 32. He found none at that
time. He evaluated her again on January 4, 2018, and came to a different
conclusion, "My conclusion as of January 4th was that-I'm reading this now.
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[L.J.A's] emotional and behavioral functioning show clear evidence of serious
mental injury .... " Id. at 34.
Father's counsel claimed surprise at the February hearing, because he
claimed he had not had opportunity to review Dr. Krecko's report of January 4th.
We recognize that there is some validity to that objection. However, all parties
were equally surprised by Dr. Krecko's report, and thus there was no unfair or
prejudicial surprise. Additionally the adjudicatory hearing was extended, to include
a full day in April and a full day in May. Thus, all parties had adequate opportunity
to review the report, call Dr. Krecko for cross-examination and provide argument
to the contrary.
The issue of emotional abuse did not arise sua sponte, but as the CYS
solicitor stated, "As we all recall during testimony, additional information came
out triggering an emotional abuse investigation." Id. at 37. At the December
hearing, the Court heard testimony that Lilian had displayed "troubling
aggression," and as a result Dr. Krecko expressed ''that she is experiencing
evidence of serious mental injury," and "is at high risk for future psychological
problems, especially if the conflict between her parents continues." Hr'g Tr. at 61
(Dec. 7, 2017). Clearly, the issue of emotional abuse was at issue from the
beginning of and throughout the proceedings. Father cannot claim that he was not
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on notice that emotional abuse was at issue during the proceedings when the record
clearly indicates otherwise. Accordingly, we reaffirm.
As to the second issue, we incorporate the above discussion and add, that we
agree with CYS that they "do not have to include every potential indication of
abuse in this hearing." The petition for dependency need only specify whether the
protective Agency seeks a finding of abuse. The petition need not specify which of
the several types of abuse defined by the statute is suspected. Nonetheless, Father
clearly was on notice as the record is replete with references to allegations of
coaching and suspected emotional and mental abuse.
As to the third alleged error, we reaffirm our finding that the child was and
is dependent. Again,
As the Superior Court stated, 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. Accordingly, we review for
an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (PA. 2010) (internal citations omitted). We gave
great weight to Dr. Krecko' s analyses and opinions, including his statement that,
"In my medical opinion, father should be charged with child abuse in the form of
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inflicting serious psychological injury to [L.J.A.)." Hr'g Tr. at 38 (Feb. 14, 2018).
We also gave great credence to his observation that,
In my 26 years of clinical experience, I have found that allegations of
abuse that are made within the context of a custody evaluation must
be viewed with a high degree of suspicion and that continued
allegations of abuse can be detrimental to a child's mental health.
Hr'g Tr. at 54-55. (Dec. 7, 2017). As stated above, Father acknowledged that he
made a multitude of referrals to CYS alleging that Mother abused L.J.A. All of the
referrals were properly investigated and deemed unfounded, save for one. That
referral, however, did not lead to a finding that Mother had abused the child. Quite
the contrary. Mother produced evidence, in the form of photographs, showing
L.J.A. without bruises moments before she left Mother's home for school. This, of
course, begged the question of why Mother would be taking such pictures. Mother
testified, credibly and convincingly, that law enforcement had suggested she do so,
because of Father's repeated reports to CYS and law enforcement that Mother was
abusing the child.
Mother's testimony on this point was reinforced by the testimony of Officer
Lane Pryor of the Camp Hill Police Department. Officer Pryor testified, inter alia,
that he had received a call from Father on June 24, 2017. Father related to Officer
Pryor that L.J.A. had used a "safe word" during a telephone call. Father had taught
L.J .A. to use the safe word, actually a phrase, to signal to him that Mother was
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hitting or otherwise abusing her. Curiously, Father insisted that the officer not visit
Mother's residence to ensure that the child was safe. Rather he stated that he had
made the call for documentation purposes only. Hr'g Tr. at 10-11 (May 10, 2018).
We find this extremely incongruous with the expected mind-state of a Father who
suspects his child is being abused. Dr. Krecko testified that teaching a child to use
code words in this manner creates a "climate of mistrust in the child where the
child may fear that they cannot trust parents ... " and "instills fear." Hr'g Tr. at 56
(Dec. 7, 2017). In this case, Father had taught the child to use code words to
effectively create a climate of mistrust and fear of her Mother, when in fact, all of
Father's attempts to have Mother deemed abusive had failed.
Regarding the back bruising that that the CYS caseworker, Ms. Nieves,
witnessed, and that Father used as the grounds for another CYS referral, the child
stated to the caseworker at the time that they had come from a fa]l on the
playground. Father insisted that they were the results of mother hitting L.J.A. L.J.A
would later tell Ms. Tanya Blough, effectively her paternal grandmother, that
'
Father had lied, and that Mother had never hit her with a hammer. Hr'g Tr. at 81
(Dec. 7, 2017). Ms. Blough was so struck by L.J .A.' s disclosure that she reduced it
to writing. CYS Exhibit 9. We found Ms. Blough to be extremely credible.
We found Father, on the other hand, to be extremely not credible. Father
attempted to justify his multiple referrals to CYS and law enforcement as having
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been made because he was, he claimed, a mandated reporter. Hr' g Tr. at 54 (May
I 0, 2018). He testified that as an assistant lacrosse coach for a local high school, he
was mandated to report all suspected child abuse, and it was for that reason that he
made the multitude of referrals. We are not convinced. Father is an attorney,
trained in the law and licensed in the Commonwealth of Pennsylvania. As such, he
knew or should have known that his duties as a mandated reporter were meant to
protect the children he encountered during the course of his employment with the
school. The duties clearly do not extend into his contentious custody battle.
Father further lost credibility when he testified that he had never sought
primary physical custody of L.J .A. In fact, the Custody Complaint of August 8
2016, and the Petition for Modification of March 13, 2017 both seek primary
physical custody. Hr'g Tr. at 130-32 (May 10, 2018). Father would attempt to say
that the Complaint and Petition were the results of his lawyer not following
directions. As Father is an attorney, and Father signed the Verification for both
documents, we are forced to conclude that Father was not honest in his responses.
Finally, we find that Father was completely comfortable with attempting to
mislead the court. He was, in fact, entirely incapable of be honest about his use of
the pronoun "we." While describing points of frustration in the custody battle,
Father made innumerable statements such as "we were extremely frustrated," "we
sent Margaret an e-mail," and "we would receive an e-mail back." Id. at 111.
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Clearly, the "we" in these contexts referred to Father and Stepmother. However, in
an attempt to protect his wife Father insisted that the pronoun "we" referred to
himself and his attorney.3 We simply cannot believe that Father, an attorney
himself, sits down with his lawyer to email his ex-wife about summer camp for
L.J.A. Taken in the aggregate, we have no choice but to conclude that Father is
simply not credible, and that he is more than willing to resort to dishonesty to
further his goals.
Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S. §§
6301-6375.
The Juvenile Act defines "dependent child" as follows, in relevant
part. "Dependent child." A child who: (1) 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, including evidence of the parent's, guardian's or other
custodian's use of alcohol or a controlled substance that places the
health, safety or welfare of the child at risk[.] 42 Pa.C.S.A. § 6302. In
order to adjudicate a child dependent, the court must determine that
the above definition has been met by clear and convincing evidence.
3
Stepmother was also indicated in these proceedings, and a Finding of Abuse was entered
against her as well. Stepmother sought to have her name removed from the case, stating that
she is not a care-giver or acting as a parent. We disagree, and address that issue separately in
Stepmother's appeal.
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In re L.V., 127 A.3d 831, 835 (Pa. Super. 2015) (internal citations omitted). We do
find by clear and convincing evidence that Father's conduct places the health,
safety and welfare of the child at risk. Reading between the lines, it seems clear
that Father has attempted to use law enforcement and CYS to create a mountain of
documentation, which he intends to use as a weapon in the custody battle. He
practically admitted as much in his call to Officer Lane. It is undisputed that L.J.A.
is a boisterous and active child. It seems fairly evident that when L.J.A. came
home from school with bruises she acquired on the playground Mr. Abel seized
upon the opportunity and engaged in a course of action meant to further his goals
in the custody dispute. It seems equally evident that Father has coached the child to
go along with his fabricated theories. L.J.A. stated to her grandmother that Father
had lied about her being hit with a hammer. During her C.A.C. interview, L.J.A.
dutifully reported that the bruises on her back came from Mother hitting her with a
hammer. The dots clearly connect to a conclusion that the child was coached. We
reaffirm.
Regarding Father's fourth alleged error, regarding shelter care, we
incorporate the above discussion. Additionally, we observe that Father blatantly
misstates the situation. Our Order of May 10, 2018 states,
She [L.J .A.} shall be discharged from the legal and physical
custody of the Agency and her placement in the KidsPeace formal
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kinship foster home of her paternal grandfather, Mr. David Abel,
effective 05/10/2018. She shall be returned to the physical custody of
her mother, Ms. Margaret Murphy. Father, Mr. Justin Abel, shall have
the right to periods of unsupervised visitation as stated below. She
shall be placed in the shared legal custody of the Agency, Mr. Abel,
and Ms. Murphy, effective 5/10/2018.
Father shall immediately begin to enjoy unsupervised visits,
and they may be made overnight, and they may even be made over a
weekend, as the Agency may determine; however, they are not to go
to 50/50 until further Order of Court. Father's contact need not be
supervised.
Order of Adjudication and Disposition, at (2 May 10, 2018). Clearly, the child is
not in shelter care. The Order was crafted thus to ensure that the best interests of
the child were met, and in the least restrictive means possible. We are aware that
the Superior Court "has stated strong disapprova] of the use of a dependency
proceeding as a means of transferring custody of a child from one parent to
another." In re A.E., 722 A.2d 213, 215 (Pa. Super 1998). The decision to adopt
this scheme of physical custody was based upon the Guardian ad Litem's valued
opinion and well-reasoned preference that" ... Father's time be expanded to include
unsupervised time," and her statement that, "I don't know that it is appropriate for
the parties to immediately resume their prior custody schedule, however." Hr'g Tr.
at 151 (May 10, 2018).
Father's fifth issue has been addressed above.
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As to Father's sixth alleged error, we adopt the reasoning given above, and
add that we simply could not find by clear and convincing evidence that physical
abuse had been perpetrated. Father's allegation of error on this point is not entirely
clear, but he again seems to petition for a finding of abuse against Mother. As
stated, Mother produced photographic evidence to support her claim that L.J.A.
was not injured when she left Mother's home. Further, L.J.A. stated at the time of
the injury that it came from a fall on the playground. There is simply no evidence,
only Father's insistence that Mother perpetrated physical abuse.
Father alleges that this Court erred in that" ... the Court declared that the
Child was not subject of inappropriate suggestion from the Father ... /' This is
inaccurate. As discussed above, we do find by clear and convincing evidence that
L.J .A. was the subject of inappropriate suggestion.
CONCLUSION
For the reasons indicated above, we find that Cumberland County Children
and Youth Services did provide substantial evidence that L.J .A. was abused, as
well as clear and convincing evidence that L.J.A. is a dependent child.
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Accordingly, we reaffirm the Order of Adjudication and Disposition of May I 0,
2018.
BY THE COURT,
/
N. CHRIS�GES, JUDGE
YORK COUNTY COURT OF
COMMON PLEAS
The Clerk of Court is directed to serve notice of the entry of this Opinion as
required by law and rule of court.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
JUVENILE DMSION
In the Interest Of: CP-21-DP-0000124-2017
L.J.A., A Minor
933MDA2018
Appeal of: A.A., Stepmother
MEMORANDUM OPINION IN SUPPORT OF ORDER PURSUANT TO
RULE 1925(a)(2)(ii) OF THE PENNSYLVANIA RULES OF APPELLATE
PROCEDURE
AND NOW, this 6th day of July, 2018, the Court is in receipt of Appellant's
statement of errors complained of on appeal, as required by the Rules of Appellate
Procedure for a Children's Fast Track Appeal. Pa.R.A.P l 925(a)(2)(i). The Court
hereby reaffirms its Order of Adjudication and Disposition of May I 0, 2018,
1
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adopts its Findings of the same day, as well as the Findings of September 7, 2017,
and offers further discussion, below.
HISTORY
L.J.A., six, is the natural born daughter of Justin Abel, (hereinafter
"Father"), and Ms. Margaret Murphy ("Mother"). Appellant, A.A, is L.J.A. 's
Stepmother ("Stepmother"). L.J.A. is also at the center of a contentious custody
dispute which is the subject of litigation in Cumberland County, Pennsylvania.
Between April and August of .2017, the Cumberland County Children and Youth
Services Agency (CYS) received at least six referrals naming L.J.A. as a victim of
abuse. Five specifically identified Mother as the alleged perpetrator; one identified
someone with whom Mother associates as the alleged perpetrator. Father
acknowledges having made the referrals. Five of the referrals were deemed
unfounded. This appeal involves the sixth referral. On August 23, 2017, a CYS
caseworker made a scheduled visit to see L.J.A. ·at Father's home. Present at the
visit were Father, L.J.A., and Stepmother. At that time, the caseworker observed
injuries on the child's back, which were described as "circular red marks."
Dependency Petition ,r11 (Sept. 1, 2017). L.J.A. told the caseworker that she had
fallen at daycare. However, Father and Stepmother insisted that the marks were not
due to a fall. Interestingly, similar marks were at the center of prior referrals
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indicating Mother, which the Agency investigated. Those referrals were deemed
unfounded and the marks were found to be skin irritations. Hr'g Tr. at 53 (Feb. 14,
2018).
CYS received a referral three days Jater on August 26, alleging that Mother
was not feeding L.J .A. Another referral was received four days later on August 30,
claiming that L.J .A. had disclosed that the circular red marks on her back were
caused by Mother hitting her with a hammer. The following day, Mother met with
the CYS caseworker. The caseworker attempted to engage Mother in a safety plan,
including supervised contact. Mother did not agree that a safety plan was
necessary; she provided time-stamped photographs taken the morning of August
23, the day of the alleged hammer injuries, showing L.J.A. without injuries,
minutes before going to before school care. Id. ,r,r 14-15. When asked why she
would take such photographs, Mother reported that doing so was suggested to her
by law enforcement officers during previous investigations to prove lack of injury
before custodial exchanges.
A shelter care hearing was held August 31, 2018 and L.J .A. was placed in
foster care.1 CYS filed a Dependency Petition September 1, 2017, citing concerns
not only of where the red circular injuries had come from, but also about the very
1
Apparently it is the custom in Cumberland County to record shelter care hearings and produce
transcripts from the recordings as needed. Unfortunately, the recording of the shelter care
hearing in the instant case was lost, and no transcript is available.
3
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contentious custody situation, and whether Father and Stepmother were pushing
the child to talk about inappropriate things and coaching her. Id. 1116-17. An
adjudicatory hearing was held before a hearing officer on September 7, 2017.
Kinship caregivers were identified, and L.J .A. was placed with her paternal
grandparents. Four adjudicatory hearings were held before this court over the
course of the next nine months before a determination of dependency and a finding
of abuse were entered on May 10, 2018.2
On June 6, 2018, Stepmother appealed, filing a children's fast track appeaJ.
However, the required Concise Statement of Matters Complained of on Appeal
was not filed. Thus, we cannot address particular concerns. The court hereby
reaffirms its Findings, and Order of Adjudication and Disposition of May 10, 2018,
as discussed below.
DISCUSSION
The standard of review in dependency cases is abuse of discretion.
As the Superior Court stated, 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
2
Father, Justin Abel, is the Court Appointed Mental Health Attorney for Cumberland County.
Accordingly, the Cumberland County Court of Common Pleas recused itself, and Appointed the
undersigned to preside over the case.
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court's inferences or conclusions of law. Accordingly, we review for
an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (PA. 2010) (internal citations omitted). All
determinations regarding dependency and abuse were findings of fact, which were
largely influenced by determinations of credibility.
Stepmother has long disputed her role in these proceedings, claiming that
she ought not to be named in the dependency petition, because she is not a
biological parent or legal guardian of the child. The Juvenile Act is clear in its
intent to apply to more classes of persons than just parents,
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, including evidence of the parent's, guardian's or other custodian's
use of alcohol or a controlled substance that places the health, safety
or welfare of the child at risk.... ·
42 Pa.C.S.A§ 6302. We find with absolute certainty that Stepmother falls into the
category of "other custodian." Father testified that it was Stepmother who first
noticed the injuries which were at the center of the final referral to CYS. Hr'g Tr.
at 58 (May 10, 2018). Stepmother prepared L.J.A. 's meals. Id. Stepmother was
present and participating along with Father during the CYS visit to the home. Id. at
60. Stepmother attended Back to School Night, and registered L.J.A. for the after-
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school-care program. On August 30, 2017, Father sent an email to the school with
instructions to release L.J.A. to Father or Stepmother, only; not to Mother.
Stepmother clearly falls within the category of "other custodian." Thus, CYS's
inclusion of Stepmother in the dependency petition was proper. It seems then, that
only two issues remain which could form the basis of Stepmother's appeal: the
finding of abuse and the finding of dependency. We address them in turn.
The Amended Dependency Petition filed December 6, 2017 alleges that the
child is a victim of child abuse as defined at 23 Pa.C.S. §6303. The statute states
inter alia,
(b. l) Child abuse.--The term "child abuse" shall mean intentionally,
knowingly or recklessly doing any of the following:
(1) Causing bodily injury to a child through any recent act or failure to
act.
(2) Fabricating, feigning or intentionally exaggerating or inducing a
medical symptom or disease which results in a potentially harmful
medical evaluation or treatment to the child through any recent act.
(3) Causing or substantially contributing to serious mental injury to a
child through any act or failure to act or a series of such acts or
failures to act.
23 Pa.C.S.A. § 6303(b.1). The statute clear]y includes provisions for mental
injury, which we take to be synonymous with emotional abuse. The dependency
petition alleges,
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The child: 1) is without proper parental care or control, subsistence,
education as required by law, or other care or control necessary for
his/her physical, mental, or emotional health, or morals ....
Amended Dependency Petition as 3. We find that CYS produced clear and
convincing evidence that L.J.A. is the victim of abuse. Dr. Krecko testified
convincingly,
Q: Dr. Krecko, you were asked in September of2017 to evaluate
[L.J.A.] with an eye toward whether there was, perhaps, I think it was
emotional, well, you tell us. Was it for emotional abuse with the
potential for coaching?
A: My evaluation was geared toward determining whether [L.J.A.]
suffered mental injury due to the contentious custody battle between
her parents.
Hr'g Tr. 28. (Feb. 14, 2018). Dr. Krecko would go on to testify that he tested
L.J.A. for emotional abuse on September 21, 2017.Id. at 32. He found none at that
time. He evaluated her again on January 4, 2018, and came to a different
conclusion,
... My conclusion as of January 4th was that-I'm reading this now.
[L.J.A's] emotional and behavioral functioning show clear evidence
of serious mental injury ....
Id. at 34.
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At the December hearing, the Court heard testimony that Lilian had
displayed "troubling aggression," and as a result Dr. Krecko opined "that she is
experiencing evidence of serious mental injury," and "is at high risk for future·
psychological problems, especially if the conflict between her parents continues."
Hr'g Tr. 61 (Dec. 7, 2017). We also gave great credence to his observation that,
In my 26 years of clinical experience, I have found that allegations of
abuse that are made within the context of a custody evaluation must
be viewed with a high degree of suspicion and that continued
allegations of abuse can be detrimental to a child's mental health.
Hr'g Tr. 54-55. December 7, 2017. We find, by clear and convincing evidence, that
L.J.A. is the victim of emotional abuse. Only the question of who perpetrated the
abuse remains. We find, also by clear and convincing evidence that Father and
Stepmother colluded in perpetrating emotional abuse.3
As stated above, Father acknowledged that he made a multitude of referrals
to CYS alleging that Mother abused L.J.A. All of the referrals were properly
investigated and deemed unfounded, save for one. That referral, however, did not
lead to a finding that Mother had abused the child. Quite the contrary. Mother
produced evidence in the form of photos showing L.J .A. without bruises moments
3
Father was also found, on the record, in our Order of Adjudication and Disposition of May 10,
2018 to have been abusive. Father fried an appeal as well, to which we responded via Opinion
on July 10, 2018.
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before she left Mother's home for school. This of course begged the question of
why she would be taking such pictures. Mother testified, credibly and
convincingly, that law enforcement had suggested she do so, because of Father's
repeated reports to CYF and law enforcement that Mother was abusing the child.
Mother's testimony on this point was reinforced by the testimony of Officer
Lane Pryor of the Camp Hill Police Department. Officer Pryor testified, inter alia,
that he had received a call from Father on June 24, 2017. Father related to Officer
Pryor that L.J.A. had used a "safe word" during a telephone call. Father testified
that he and Stepmother had taught L.J .A. to use the safe word, actually a phrase, to
signal them that Mother was hitting or otherwise abusing her.
We told her [L.J.A.] that if her mother was hitting her and she wanted
to tell us about it, to use the phrase 'I don't like cheese, because it
would be exactly opposite of what she does.
Hr' g Tr. at 82 (May l 0, 2018). And,
We also instructed her that if she had been hurt, I believe, to let us
know, or, I am sorry, instruct is the wrong word. We asked her if she
wanted to let us know that she had been hurt to tell us that she liked
shrimp, because she hates it ....
Id. at 83. Curiously, Father insisted that the officer not visit Mother's residence to
ensure that the child was safe. Rather, he stated that the call had been for
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documentation purposes only. Id. The solicitor for CYS questioned Father on this
topic,
Q: And yet when you heard these code words from her, you instructed
the police not to check on her?
A: We did.
Q:Why?
A: The reason we did was it was late at night. I believe it was about, I
think Officer Pryor testified it was 8:51 in the evening. [L.J.A.]'s
bedtime as far as we knew was 8:00, so they would have to wake her
up. The other thing that concerned us at that time was that these,
[L.J .A.] had told us on a Saturday, and we were concerned that if
Officer Pryor approached Margaret and these things were actually
happening, that there was a possibility that further harm could come to
[L.J.A.} on Sunday, the full day of Sunday, and then Monday
morning as well, as we were concerned that that might happen.
Q: But you weren't concerned enough for him to go out and check on
her?
A: I think that's an oversimplification. We were scared. We were
scared sick, however, we were concerned that [L.J.A.] would not be
removed from the house, and that further abuse, there was a potential
for further harm, and so rather than risk that, we instructed him to
make is as a documentary only.
We find this extremely incongruous with the expected mind-state of a Father
who suspects his child is being abused. Further, we find Father's continued use of
the pronoun "we" to be extremely telling. Clearly, Father and Stepmother are
working in concert. Father's testimony makes it clear that Stepmother is taking part
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in the decision making process throughout the Abels' interactions with CYF ·and
law enforcement.
Dr. Krecko testified that teaching a child to use code words in this manner
creates a "climate of mistrust in the child where the child may fear that they cannot
trust parents ... " and "instills fear." Hr'g Tr. at 56 (Dec. 7, 2017). In this case,
Father and Stepmother had taught the child to use code words to effectively create
a climate of mistrust and fear of her Mother, when in fact, aJI of the Abels'
attempts to have Mother deemed abusive had failed.
Regarding the back bruising that that the CYS caseworker, Ms. Nieves,
witnessed, which formed the grounds for another CYS referral, the child stated to
the caseworker at the time that they had come from a fall on the playground.
L.J.A. 's teacher testified that L.J.A. did not seem to be in pain on the date in
question, nor did she express being in any pain or discomfort. Hr'g Tr. (April 18,
2018). The before and after school care providers testified to the same. Yet, Father
and Stepmother insisted that they were the results of mother hitting L.J.A.
During her C.A.C. forensic interview, L.J.A. did state that Mother had hit
her with a hammer. She could not, however, describe or identify a hammer. Nor
could she reproduce the likeness of a hammer. L.J.A would later tell Ms. Tanya
Blough, effectively her paternal grandmother, that Father had lied, and that Mother
had never hit her with a hammer. Hr'g Tr. 81 December 7, 2017. Ms. Blough was
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so struck by L.J.A.'s disclosure that she reduced it to writing. CYS Exhibit 9. We
found Ms. Blough to be extremely credible. Thus, it seems obvious that the child
was coached.
Father attempted to justify his multiple referrals to CYS and law
enforcement as having been made because he was, he claimed, a mandated
reporter. Hr'g Tr. at 54 (May 10, 2018). Although Father appears to be the primary
actor, we find by clear and convincing evidence that Stepmother and Father acted
in concert. While describing points of frustration in the custody battle, Father made
innumerable statements such as "we were extremely frustrated," "we sent Margaret
an e-mail," and "we would receive an e-mail back." Id. at 111. Clearly, the "we" in
these contexts was Father and Stepmother. However, in an attempt to protect his
wife Father insisted that the "we" referred to himself and his attorney. We simply
cannot believe that Father, an attorney himself, sits down with his lawyer to email
his ex-wife about summer camp for L.J.A. During the CYS visit Father stated, "We
indicated that Lilian had come home again with marks ... ," Stepmother was the
only other person present during the visit. Thus, Stepmother was clearly included
in the "we," not Father's attorney. Hr'g Tr. at 60 (May 10, 2018).
When asked about actions taken following the discovery of the bruises, but
before L.J.A.'s entrance into shelter care, Father stated
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... we had contacted [L.J .A.'] pediatrician, we had contacted other
independent medical, other independent medical practitioners for
advice, and contacted and actually e-mailed Jenna to find out what we
should do, and contacted Children & Youth Services, what we should
do with these marks"
Id. at 62. The record is rife with such examples. It is clear the Stepmother and
Father acted in concert to make multiple allegations of abuse against Mother.
Our finding of dependency follows naturally from our finding of abuse.
Thus, we will not repeat the rationale, but do adopt the preceding discussion
herein. Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S. §§
6301-6375.
The Juvenile Act defines "dependent child" as follows, in relevant
part. "Dependent child." A child who: (1) 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, including evidence of the parent's, guardian's or other
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custodian's use of alcohol or a controlled substance that places the
health, safety or welfare of the child at risk[.] 42 Pa.C.S.A. § 6302. In
order to adjudicate a child dependent, the court must determine that
the above definition has been met by clear and convincing evidence.
In re L.V., 127 A.3d 831, 835 (Pa. Super. 2015) (internal citations omitted). We do
find, for the reasons stated above, by clear and ·convincing evidence that
Stepmother's conduct places the health, safety and welfare of the child at risk. It is
clear that Father and Stepmother colluded to use law enforcement and CYS to
create a mountain of documentation to use as a weapon in the custody battle.
Father practically admitted as much in his call to Officer Lane. Again, throughout
his testimony regarding that call, Father described all actions and decision making
as having been done by "we," Father and Stepmother.
It is undisputed that L.J .A. is a boisterous and active child. It seems fairly
evident that when L.J.A. came home from school with bruises she acquired on the
playground, Father and Stepmother seized upon the opportunity and engaged in a
course of action meant to further Father's goals in the custody dispute. It seems
equally evident that the child was coached to go along with their fabricated
theories. Accordingly, we reaffirm.
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CONCLUSION
For the reasons indicated above, we find that Cumberland County Children
and Youth Services did provide substantial evidence that L.J.A. was abused, as
well as clear and convincing evidence that L.J .A. is a dependent child.
Accordingly, we reaffirm the Order of Adjudication and Disposition of May 10,
2018.
BY THE COURT,
ENGES, JUDGE
URTOF
The Clerk of Court is directed to serve notice of the entry of this Opinion as
required by law and rule of court.
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