In the Int. of: J.M., Appeal of: D.M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: D.M., FATHER :
:
:
:
:
: No. 824 EDA 2022
Appeal from the Order Entered March 2, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001160-2021
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED AUGUST 19, 2022
D.M. (“Father”) appeals from the March 2, 2022 order in which the trial
court found by clear and convincing evidence that Father was a perpetrator of
child abuse against his son, J.M. (“Child”), and that Child was dependent.
After careful review, we affirm.
The trial court aptly set forth the relevant facts and procedural history
as follows:
The Philadelphia Department of Human Services (“DHS”) first
became aware of this family on November 3, 2021, when DHS
received a General Protective Services (“GPS”) report alleging that
on November 3, 2021, J.M.’s Mother presented at Children’s
Hospital of Philadelphia (“CHOP”) Karabots Pediatric Care Center
requesting medical attention for J.M., who was four years old. At
that time, J.M. disclosed that Father physically abused him. J. M.
was observed with two black eyes, a gash to his left check, a gash
above his left eye, a lump on his forehead, bruised and swollen
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* Retired Senior Judge assigned to the Superior Court.
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cheeks, and red welts on both sides of his chest and abdomen.
The report alleged that Mother and Father were the primary
caregivers for J.M. The GPS report was valid.
On November 3, 2021, DHS learned that Father was
arrested for physically abusing J.M. J.M confirmed the allegations
in the GPS report to DHS and to Philadelphia Police Officers later
that day. On November 4, 2021, Mother successfully obtained a
Protection from Abuse (PFA) Order against Father, and J.M. and
his sibling returned to her care. On November 9, 2021, DHS
learned that Mother had posted Father’s bond and secured his
release from jail.
On November 10, 2021, DHS obtained an Order of
Protective Custody (“OPC”) for J.M. and his sibling and placed
them in the care of their adult sibling to ensure their safety. At
the November 12, 2021 shelter care hearing, the Court lifted the
OPC and ordered the temporary commitment to DHS to stand.
Trial Court Opinion, April 8, 2022 (“TCO”), at 1-2 (citations omitted).
The trial court held an adjudicatory and child abuse hearing for Child
and his sibling on March 2, 2022. Both Father and Mother appeared but did
not testify. There, counsel for DHS called as a witness Children’s Hospital of
Philadelphia (“CHOP”) physician Dr. Maria Aldana-Sierra, who was qualified as
an expert in the field of pediatric child abuse and testified that in preparation
for her CHOP consultation report, she spoke to Mother and to the primary
team who were treating Child’s injuries. N.T. at 13. Dr. Aldana-Sierra testified
that, based upon the information she reviewed, including her review of Child’s
medical records and her physical examination of Child, he had suffered
“multiple injuries to several parts of his body which were consistent with
inflicted trauma or physical abuse.” Id. at 14.
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As reported by Dr. Aldana-Sierra, when she interviewed Mother, Mother
stated that upon arriving home in the evening from a nursing school class on
November 2, 2021, she found Child sitting in a corner with injuries and Father
sitting on the sofa with a belt in his lap. Id. at 17. In her conversation with
Dr. Aldana-Sierra, Mother further indicated that Child told her that “daddy
beat my ass” because he did not know his alphabet letters. Id. at 18. Dr.
Aldana also reviewed photos of Child’s injuries that had been taken by Mother
and testified that these injuries were consistent with those exhibited at CHOP
the next day; these injuries included linear abrasions, or pattern injuries,
which may be caused by an object, such as a belt or ruler, leaving an
impression on the body. Id. at 22. According to Dr. Aldana-Sierra, Child
experienced and expressed, during her physical examination of him,
substantial pain, especially in the areas of his eyes and right lower chest,
where he had significant swelling. Id. at 22-23, 25. She determined, within
a reasonable degree of medical certainty, that Child had suffered
nonaccidental trauma child abuse. Id. at 26.
At the hearing, DHS also called Ms. Amber Daniels, who was assigned
to investigate the GPS and CPS reports1 involving the family. She testified
that both reports indicated that Child presented initially to CHOP with the
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1 The GPS and CPS reports contain specific allegations that must be
investigated by the assigned DHS investigator. The reports sub judice
contained a description of the injuries observed at CHOP together with
allegations of inappropriate discipline and substance use by Father as
caregiver, and enumerated allegations of beating, hitting, and punching.
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above-stated injuries, and that Father beat, hit, and punched Child because
he did not know his homework subject. Id. at 32-34. Ms. Daniels stated that
as part of her investigation, she interviewed Mother, Father, Child, and Child’s
sibling; both children told her that Child sustained injuries as a result of Father
beating him with his hands and his belt. Id. at 35. Mother spoke to the DHS
investigator, Ms. Daniels, at CHOP on November 3, 2021, and reported to her
that on the night she returned home and found Child looking battered and
bruised, Father told her that he beat Child because he would not do his
homework correctly and did not understand his letters. Id. at 36. Mother,
who also works as a medical assistant at Einstein Hospital, reported that she
checked Child and gave him a bath and some pain medication, and laid in bed
with him throughout the night, with plans to take him to his primary care
provider in the morning. Id. at 37. The investigator spoke to Father, also on
November 3, 2021, at home and in the company of police officers; Father
admitted that he beat Child with a belt and his hands and mentioned that he
had been drinking that day because of a rough day at work and “some type
of tenant issue” that he had. Id. at 39.
The trial court summarized the testimony regarding the events that
followed:
Ms. Daniels testified that Father was arrested on November 4,
2021, and charged with aggravated assault, simple assault, and
endangering the welfare of children. On November 4, 2021,
[Child] was discharged from the hospital to his adult sibling under
a Safety Plan. The terms of the Safety Plan were that the children
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would reside with their adult sibling, and that there would be no
contact with Mother or Father until DHS informed them otherwise.
After Mother obtained a temporary Protection From Abuse (PFA)
Order on behalf of Child against Father, the children were returned
to Mother’s care. However, Ms. Daniels testified that the children
were only in Mother’s care for five days before an [Order of
Protective Custody] was obtained on November 10, 2021. DHS
learned that Mother bailed Father out of jail, which raised concerns
that Mother would allow Father to have contact with the children,
particularly Child. Ms. Daniels testified that because Mother bailed
Father out of jail, she was impeding the DHS investigation.
When Father was released on bail, a criminal stay-away order was
issued for Child against Father. For these reasons, as well as the
severity of Child’s injuries, Ms. Daniels felt it would be a great risk
for the children [to] return to Mother’s care at that time, thus an
OPC was obtained to ensure their safety. When the OPC was
obtained, Child and his sibling were returned to the care of their
adult sibling. Ms. Daniel[]s testified that the GPS report was valid,
and the CPS report was indicated. Father was determined to be
the perpetrator of abuse against Child, and the category of abuse
was “causing bodily injury to a child through any recent act or
failure to act.”
TCO at 6-7 (citations omitted).
The final witness at the adjudication and child abuse hearing was Ms.
Kayla Thurman, the community umbrella agency (“CUA”) case manager. Ms.
Thurman testified that in the course of her investigation she spoke with
Mother, who related to her the events, as described above, that occurred on
the evening of November 2, 2021, when she returned home from her nursing
school class and Father admitted to her that he had beaten Child. N.T.,
3/2/22, at 68. Ms. Thurman inquired as to why Mother bailed Father out of
jail following the incident and Mother explained that Father pays most, if not
all, of the bills at home and she needed him to continue to do that. Id. The
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CUA case manager also spoke to Father, who told her that he did not realize
what he was doing during the time he was beating Child, and that he was in
shock and disbelief at Child’s condition following the beating. Id. at 72. Ms.
Thurman testified that the children have since been reunited with Mother and
are presently in her home and doing well. Id. at 75. She stated that Child’s
sibling has supervised visits with Father for one hour a week at the sibling’s
discretion, and that of eight visits offered since the inception of the visitation,
Father has attended two of them. Id. at 75-76. She stated that as of her
most recent visit to see the children at Mother’s home, Mother and Father had
not communicated. Id. at 78.
The trial court found clear and convincing evidence to adjudicate Child
dependent based on present inability and to find child abuse as to Father.
Father filed a timely notice of appeal and concise statement of errors
complained of on appeal on March 24, 2022.
Father raises the following issues on appeal:
1. Did the [trial court] rule[] in error by allowing the children’s
statements into the record when there was no Tender Years
motion to determine if those statements could be allowed into the
record. [Did the trial court rule in error in a]lso allowing those
statements into the record when the children were not available
to be questioned about those statements?
2. Did the [trial court] rule in error that the Philadelphia City
Solicitor’s Office [met] its burden of proof that there should be a
finding of child abuse under the [C]hild [P]rotective [S]ervices
[Law], 23 Pa.C.S. [§§ 6301-6387]?
Father’s Brief at 4.
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Our standard of review of a finding of child abuse in a dependency
case is as follows:
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) (citation
omitted); see also In the Interest of L.Z., 111 A.3d
1164, 1174 (Pa. 2015). “The trial court is free to
believe all, part, or none of the evidence presented
and is likewise free to make all credibility
determinations and resolve conflicts in the evidence.”
In re M.G., 855 A. 68, 73-4 (Pa. Super. 2004)
(citation omitted).
While dependency proceedings are governed by the
Juvenile Act, 42 Pa.C.S. §§ 6301-6375, the [CPSL]
controls determinations regarding findings of child
abuse, which the juvenile courts must find by clear
and convincing evidence. See In the Interest of
J.R.W., 631 A.2d 1019, (Pa. Super. 1993). As the
Supreme Court explained in In the Interest of
L.Z., supra at 1176, “[as] part of [a] dependency
adjudication, a court may find a parent to be the
perpetrator of child abuse,” as defined by the CPSL.
In The Interest of T.G., 208 A.3d 487, 490 (Pa. Super. 2019).
Under Section 6381(d) of the Child Protective Services Law (CPSL),
while the petitioning party in a dependency action is required to demonstrate
the evidence of child abuse by clear and convincing evidence, the identity of
the abuser need only be established by prima facie evidence. 23 Pa.C.S. §
6381(d); In re L.Z., 111 A.3d at 1179. Section 6381(d) establishes the
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rebuttable presumption for finding child abuse by a parent or person
responsible for the Child’s care:
Evidence that a child has suffered child abuse of such a nature as
would ordinarily not be sustained except by reason of the acts or
omissions 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 of the child.
23 Pa.C.S. § 6381(d).
‘Child abuse’ is defined as “intentionally, knowingly, or
recklessly…causing bodily injury to a child through any recent act or failure to
act” or “creating a reasonable likelihood of bodily injury to a child through any
recent act or failure to act.” 23 Pa.C.S. § 6303(b.1). ‘Bodily injury’ is defined
as “[i]mpairment of physical condition or substantial pain.” 23 Pa.C.S. §
6303(a).
Under Sections 6341(c) and (d) of the CPSL, after a child has been found
dependent, the court shall proceed to make a proper disposition of the case
and “[i]n disposition under subsections (b) and (c) all evidence helpful in
determining the questions presented, including oral and written reports, may
be received by the court and relied upon to the extent of its probative value
even though not otherwise competent in the hearing on the petition.” 42
Pa.C.S. §§ 6341(c) and 6341(d)(1)(i). This evidence may include expert
testimony and reports to aid in the decision for disposition. Pa.R.J.C.P.
1509(A) and (B).
Before this Court, Father avers, first, that the trial court erred in
admitting hearsay statements by Child and his sibling into the record without
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first conducting a hearing to determine whether the tender years2 exception
would apply to permit introduction of the children’s statements into evidence.
Father’s counsel acknowledges that had such hearing been held, it is likely
that the hearsay statements of Child and his sibling would have been
admitted, but asserts nevertheless that the trial court erred by failing to
conduct a hearing. Father’s Brief at 8.
In the initial stages of the hearing, Father’s counsel voiced his objection
to the introduction into evidence of Dr. Aldana-Sierra’s child consultation
report (Exhibit DHS-2), as well as to the GPS report (Exhibits DHS-5) and the
CPS report (Exhibit DHS-6); each report, it was averred, contained hearsay
evidence in the form of statements by Child and his sibling, as well as from
Mother, as to how and at whose hands the injuries to Child occurred. N.T. at
7-12. Father’s counsel stipulated to Dr. Aldana-Sierra’s qualification as an
expert witness and the trial court permitted her testimony pending its
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2 The tender years statute creates an exception to the hearsay rule in
recognition of the fragile nature of young victims of sexual abuse; it allows
statements made by a child victim of enumerated offenses not otherwise
admissible by statute or rule of evidence to be admitted into evidence if
the statements are relevant and sufficiently reliable and if the child either
testifies at the proceeding or the court determines that testimony would result
in serious emotional distress such that the child is deemed “unavailable.” 42
Pa.C.S. § 5985.1.
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determination as to whether the child consultation report was admissible
under Pa.R.E. 803(6), the business record exception.3
We begin our analysis by noting that this exception specifically applies
to the admissibility of the medical record; however, the statements contained
within the record still need to fulfill the hearsay within the hearsay rule. See
Pa.R.E. 805. Under Rule 805, “hearsay within hearsay is not excluded by the
rule against hearsay if each part of the combined statements conforms with
an exception to the rule. Id.
Here, the CHOP consultation report was properly admitted into evidence
pursuant to the business record exception. As noted by the trial court:
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3Under the Pennsylvania Rules of Evidence, hearsay evidence is inadmissible
unless it meets an exception set forth in the Rules of Evidence or one
prescribed by the Pennsylvania Supreme Court or by statute. Pa.R.E. 802.
Under the business record exception, a record of an act, event, or condition is
admissible hearsay if the following exist:
(A) the record was made at or near the time by – or from information
transmitted by someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of
a “business”, which term includes business, institution, association,
profession, occupation, and calling of every kind, whether or not
conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, a by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6).
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Dr. Aldana-Sierra wrote and prepared the CHOP Consultation
Report marked as DHS-2. Dr. Aldana-Sierra testified that the
childrens’ statements were given to her in preparation for her
CHOP consultation report. She testified that it is general practice
for an expert in her field to interview the victim child and anyone
else who was present when the injuries were discovered or may
be able to provide an explanation for how the victim child
sustained the injuries. The information Dr. Aldana-Sierra testified
to is contained in her Consultation Report. Dr. Aldana-Sierra’s
findings and report were recorded in the regular course of
business. Additionally, a qualified expert witness may rely on
hearsay when forming opinions and making determinations if
experts in their particular field would reasonably rely on those
kinds of facts or data in forming an opinion. Dr. Aldana-Sierra
relied on [Child’s] medical records related to his admission, the
statements she received from her interviews with Mother and the
children, notes from [Child’s] visit with his primary care provider,
as well as medical evidence of [Child’s] injuries in her
determination that [Child] sustained injuries consistent with child
abuse.
TCO at 15. Moreover, where, as in this case, the record is a medical record,
statements made within the record – or hearsay within hearsay – may be
admissible under the medical diagnosis or treatment exception to the rule
against hearsay, Pa.R.E. 803(4).4 The comment to Rule 803(4) provides that
“[s]tatements as to causation may be admissible, but statements as to fault
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4 Pa.R.E. 803(4) excepts from the hearsay rule a statement that:
(A) is made for – and is reasonably pertinent to – medical
treatment or diagnosis in contemplation of treatment; and
(B) describes medical history, past or present symptoms, pain,
or sensations, or the inception or general character of the
cause or external source thereof, insofar as reasonably
pertinent to treatment, or diagnosis in contemplation of
treatment.
Pa.R.E. 803(4).
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or identification of the person inflicting harm have been held to be
inadmissible.” Pa.R.E. 803(4), Comment (citing Commonwealth v. Smith,
681 A.2d 1288 (Pa. 1996)). Thus, within the CHOP consultation report some,
but not all of the children’s statements are admissible pursuant to this
exception: their statements regarding the injuries being the result of a beating
with a belt and hands are admissible as evidence of the cause of the injury,
while statements directly identifying Father as the perpetrator of the abuse
are not admissible since they are not pertinent to Child’s medical diagnosis or
treatment.
We find, however, that the statement by Mother to Dr. Aldana-Sierra
identifying Father as the person who beat Child with his hands and a belt are
admissible nonetheless; Mother’s statement as to what Child reported to her
is admissible under Pa.R.E. 803(2), the excited utterance exception, and her
statement reporting said excited utterance to Dr. Aldana-Sierra was in turn
admissible under the hearsay exception for an opposing party’s statement, as
she was a party to the dependency proceeding. See Pa.R.E. 803(25)(A)
(statement by an opposing party and offered against her shall not be excluded
by rule against hearsay). Under the excited utterance exception, hearsay is
permitted if it is a “statement relating to a startling event or condition, made
while the declarant was under the stress of excitement that it caused.” Pa.R.E.
803(2). According to Pennsylvania case law,
[f]or a hearsay statement to qualify as an excited utterance, the
statement must be a spontaneous declaration by a person whose
mind has been suddenly made subject to an overpowering
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emotion caused by some unexpected and shocking occurrence,
which that person had just participated in or closely witnessed,
and made in reference to some phase of that occurrence which he
perceived, and this declaration must be made so near the
occurrence both in time and place as to exclude the likelihood of
its having emanated in whole or in part from his reflective
faculties.
Commonwealth v. Upshur, 764 A.2d 69, 75 (Pa. Super. 2000) (citations
and quotations omitted). Here, both Child’s and his sibling’s statements to
Mother were made shortly after Child experienced, and his sibling witnessed,
the beating by Father, and fit squarely into the parameters of the exception.
We discern no error, therefore, in the trial court’s determination that the
children’s statements to Dr. Aldana-Sierra, including those regarding the
identity of the perpetrator, in preparation for her consultation report were
relevant and admissible;5 the trial court did not err in its determination to
admit the report under the above-mentioned hearsay exceptions in lieu of
holding a tender years hearing to determine admissibility of the children’s
statements.
In his second issue, Father challenges the trial court’s finding of child
abuse; Father avers that, assuming the trial court excludes the statements
made by Child and his sibling, DHS has thus failed to establish by clear and
convincing evidence that he was the perpetrator. Father’s Brief at 15. In
addition, Father argues that clear and convincing evidence has not been
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5 [W]e may uphold a decision below if there is any proper basis for the result
reached; thus, our affirmance may be based on different grounds from the
trial court. In re Adoption of R.J.S., 889 A.2d 92, 98 (Pa. Super. 2005)
(citations omitted).
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shown that Child suffered the requisite “substantial pain.” Id. at 14-15. See
23 Pa.C.S. §§ 6303(a) and 6303(b.1). Here, the elements of child abuse were
sufficiently established by clear and convincing evidence in the form of Dr.
Aldana-Sierra’s testimony and her consultation report. As previously stated,
the trial court properly admitted the entirety of Dr. Aldana-Sierra report,
including the information obtained from Mother regarding the identity of the
perpetrator of child abuse. Furthermore, and as stated above, under Section
6381(d), the fact of abuse alone was sufficient to establish prima facie
evidence of abuse by Father, as the parent or person responsible for Child’s
welfare at the time of the incident. Father not only failed to offer any evidence
whatsoever to rebut the evidentiary presumption that he inflicted the abuse,
but he in fact admitted to Ms. Daniels, who interviewed him as a normal part
of her DHS investigation of the CPS and GPS reports, as well as to Mother and
Ms. Thurman, that he hit Child with a belt and his hands because he was angry
that Child did not understand his letters.
Father’s assertion that there was not clear and convincing evidence that
Child experienced “substantial pain,” is completely without merit. Father
avers that the CT scan taken at CHOP showed no orbital or skeletal fractures,
and the only medication administered to Child was Motrin. Father’s Brief at
14. However, as the trial court noted, “Dr. Aldana-Sierra testified that [Child]
expressed pain during the evaluation in areas where he had significant
bruising and swelling,” and she “testified that [Child] experienced substantial
pain” as a result of his injuries. TCO at 12. At the hearing, she described
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Child’s reactions during his examination when she palpated him: “[s]o,
especially the areas where [Child] had significant swelling, so on both of his
eyes and it was also swelling to the right lower side of his chest – so he
expressed pain. He said aye, aye when we were palpating those parts.” Id.
at 23. Dr. Aldana-Sierra testified that linear abrasions visible in the
photographs that Mother took on the night of the incident were consistent with
linear patterns or impressions from a belt, supporting the history that had
been provided to her. Id. at 22.
Finally, we note that to the extent that Father also challenges the
admissibility of statements of Child and Child’s sibling made to Ms. Daniels,
the DHS investigator, which are contained within the GPS and CPS reports,
the trial court’s admittance of such evidence was, at most, harmless error in
the context of the court’s determinations.
Harmless error exists where: (1) the error did not prejudice the
defendant or the prejudice was de minimus; (2) the erroneously
admitted evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously
admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict. The
Commonwealth has the burden of proving harmless error beyond
a reasonable doubt.
Commonwealth v. Radecki, 189 A.3d 441, 461 (Pa. Super. 2018) (citations
and quotations marks omitted; some formatting).
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Based on the foregoing, we conclude that the trial court did not abuse
its discretion or commit legal error in its adjudication of dependency and its
finding of child abuse as to Father.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2022
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