In the Interest of: A.M., Appeal of C.M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF C.M., STEP-FATHER :
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: No. 664 WDA 2021
Appeal from the Order Dated April 29, 2021
In the Court of Common Pleas of Blair County Orphans' Court at No(s):
CP-7-DP-000042-2019
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: MARCH 25, 2022
Appellant, C.B. (“Stepfather”), appeals from the order entered on April
29, 2021, which found Stepfather to be a perpetrator of child abuse against
A.M. (“Child,” DOB 9/04).1 After careful review, we affirm.
On August 6, 2019, Blair County Children, Youth, and Families (“BCCYF”
or the “Agency”), received a report stating that Child was being sexually,
physically, and emotionally abused by Stepfather. The trial court granted
immediate emergency protective custody to BCCYF. After a hearing on August
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* Retired Senior Judge assigned to the Superior Court.
1 Additionally, the April 29, 2021 order found that D.M. (“Mother”) was a
perpetrator of child abuse against Child for failure act to protect Child from
Stepfather. Mother also appealed the April 29, 2021 order, but her appeal is
docketed separately from the instant matter.
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19, 2019, the trial court adjudicated Child dependent on August 27, 2019.
See Trial Court Order, 8/27/19. The trial court also found aggravated
circumstances against Mother.2 See Trial Court Order, 2/19/20.
In the meantime, BCCYF conducted an investigation and indicated
Stepfather and Mother as perpetrators of abuse on October 4, 2019.3 See
Permanency Review Order, 8/6/20, at 6. BCCYF subsequently filed a petition
for a finding of child abuse on November 4, 2020, naming both Mother and
Stepfather as alleged perpetrators, and requesting to change the “indicated”
status to a “founded” claim of abuse. See BCCYF Petition for Finding of Child
Abuse, 11/10/20, at 3 (unpaginated). The trial court held an evidentiary
hearing on the petition on November 10, 2020. Present at the hearing was
BCCYF’s counsel, Danielle Donivan, Esquire; Mother and her appointed
counsel, Matthew McGregor, Esquire; Child and Child’s guardian ad litem
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2 Mother did not appeal the dependency or aggravated circumstances
determination.
3 Stepfather’s administrative appeal to the Department of Human Services
Bureau of Hearings and Appeals was denied on January 23, 2020. Thereafter,
Stepfather requested a hearing, but such proceedings have been stayed
pending the conclusion of the instant dependency proceedings. See
Permanency Review Order, 8/6/20, at 6. Mother similarly filed an
administrative appeal which was denied on April 16, 2020; however, Mother
did not request a subsequent hearing on her appeal. Id.
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(“GAL”), Mary Ann Probst, Esquire; counsel for Child’s Biological Father, P.M.
(“Biological Father”), Matthew Dombrosky, Esquire;4 and Stepfather.5
Child testified to three separate interactions involving Stepfather. She
explained that the first incident happened while the family was living in
Juniata, Pennsylvania when Child was ten years old. N.T. Abuse Hearing,
11/10/20, at 11, 21. While Mother was at the hospital for a hysterectomy,
Stepfather woke Child in the middle of the night and told Child to sleep in his
room. Id. Child explained, “I thought he was going to go downstairs and he
actually came into the bedroom and slept in the bed also[,] and he started to
rub my back and then he had his hands down my pants and into my vagina.”
Id. This incident lasted “until he went to the bathroom and I ran and hid
under my blankets in my bed.” Id. Child testified that she told Stepfather to
stop, but he ignored her. Id. at 12. Child further testified that she told Mother
about this incident a few days later, but Mother “looked at me and said
[‘]aren’t you sure it wasn’t a dream.[’]” Id. Child responded no, however
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4 In a criminal sentencing order for a case unrelated to the proceedings sub
judice, the trial court incarcerated Child’s Biological Father, P.M., for child
sexual offenses and precluded him from attending hearings or obtaining
information in relation to Child. Nevertheless, counsel for Child’s Biological
Father represented the interests of Child’s Biological Father in the November
10, 2020 proceeding in his absence. Thereafter, Child’s Biological Father
signed a consent to voluntarily terminate his parental rights to Child.
Accordingly, Child’s Biological Father is not a party to this appeal.
5Stepfather elected to proceed without an attorney. See N.T. Abuse Hearing,
11/10/20, at 2-3.
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“then I felt like [] I was being accused of lying so I just went with it and said
maybe it was a dream, after I had said no.” Id. at 13.
The second incident to which Child testified happened when the family
lived in Sinking Valley, Pennsylvania and Child was 12. Id. at 23. While
Mother was sleeping, Stepfather came into Child’s room, grabbed her, and
told her to kiss him. Id. at 13. Child testified that she said no, backed away,
and hid under the blankets. Id. When Child exited the room to play outside
with her brother, Stepfather grabbed her buttocks. Id. Child testified that
she reported this when Mother awoke, but Mother “just left it go again.” Id.
at 13-14.
Child testified that the third incident occurred during the summer prior
to seventh grade while she was alone with Stepfather as he was driving his
work truck. Id. at 14, 24. Stepfather put a five dollar bill down Child’s pants
and a ten dollar bill in her bra while inappropriately touching her in both
places, rubbing and touching both inside and outside of her body. Id. at
14-15. Child told Stepfather to stop but could not otherwise leave the moving
vehicle. Id. at 15. Child testified that Stepfather then pulled his penis through
the hole of his pants and grabbed her hand to touch his penis while stating
“come on, you know you like it.” Id. at 15-16. Child said no and pulled her
hand back without touching him. Id. at 16. Stepfather then offered to pay
Child 20 dollars to have sexual intercourse with him, saying, “we won’t tell
your mom and we’ll just tell her we’re late.” Id. at 16-17. When Child denied
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Stepfather, he threatened that if she did not kiss him, he would tell Mother.
Id. at 17. Child testified that she responded, “go right ahead, maybe she will
believe me,” and explained she was referencing Mother calling her a liar or
denying her accusations every time Child disclosed the incidents. Id. at
17-18.
Child testified that she reported this incident to her Mother directly after
getting out of the truck with Stepfather. Id. at 18. Mother immediately called
Child a liar. Id. Once they returned home, Mother called Child a “slut” and
asked where the money was. Id. Child testified that Mother never believed
her disclosures: “No, she has always called me a liar or tried to convince me
that it did not happen.” Id. Child further explained that despite each report
to her Mother, Mother never took steps to protect her from Stepfather;
instead, “all things remained the same,” and Child was “still left under
[Stepfather’s] watch.” Id. at 21.
Next, BCCYF caseworker, Kendra Wheelden, testified. Ms. Wheelden
conducted the child abuse investigation after Child’s removal from the home
on August 6, 2019. Id. at 33. She attended Child’s forensic interview at the
Child Advocate Center on August 7, 2019, and met with Child a few times at
her foster home. Id. at 34. Ms. Wheelden testified that Child’s testimony at
the hearing was consistent with her disclosures at the interview and
throughout Ms. Wheelden’s investigation. Id. Her investigation included
Child’s interview, and interviews with Mother and Stepfather, where the
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conversation “really was not very productive” because Mother was yelling and
screaming, or else refused to talk with caseworkers.6 Id. at 34-35. The
evidence Ms. Wheelden relied upon during her investigation included the
following:
[The e]vidence was [Child’s] consistent story. Across multiple
times her story did not change with what happened. There was
an active criminal investigation as well. That is still pending.
There was also a journal that [Child] spoke about writing down
accounts of what had happened and [Altoona Police Department]
was able to secure that and confirm that it existed[. T]here were
details listed in the journal as well. So with all of that[,] we were
able to say that we could indicate[] that for child abuse.
Id. at 35.
Ms. Wheelden testified that on October 4, 2019, the investigation
concluded and the case was marked “indicated.” Id. at 38. Regarding
Stepfather, all of the indications were for sexual abuse of a child “by
commission for aggravated indecent assault, indecent assault, indecent
exposure, unlawful contact with a minor, and influencing, using, persuading,
enticing or inducing a child to engage in or assist another individual.” Id. at
35-36. Mother was indicated “for omission because we were able to determine
through [Child’s] stories that she had told her mother multiple times about
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6 At a prior shelter care hearing, Ms. Wheelden testified that upon addressing
the allegations with Mother and Stepfather, Mother “got very hostile and threw
a fan at the caseworker,” claimed the allegations were untrue, requested Child
be placed out of the home, and “the only thing that they would allow the
caseworker to take was [Child’s] medication; not any clothing or anything
else.” N.T. Shelter Care Hearing, 8/9/19, at 3, 5.
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the abuse. [Mother] did not do anything to protect her and the abuse
continued to occur.” Id. at 36. Thus, Mother was indicated for omissions for
the same categories as Stepfather: aggravated indecent assault, indecent
assault, indecent exposure, unlawful contact with a minor, and influencing,
using, persuading, inducing, or enticing a child to engage in or assist another
individual. Id. at 37.
When asked if Mother ever explained the basis for her disbelief, Ms.
Wheelden testified that Mother stated “that [Child] was disobedient. She had
said that [Child] lies. She indicated that [Child] had very poor hygiene and
was dirty[,] so [Stepfather] would not want to touch her[. S]he also indicated
that [Stepfather] does not even touch [Mother] so he would not be touching
her daughter.” Id. at 36-37. Ms. Wheelden testified that she did not believe
Mother’s explanations were credible. Id. at 37.
Lastly, Ms. Wheelden explained that she did not have Child evaluated
by a doctor during her investigation because “when sexual abuse is reported[,]
there’s a [72] hour window from when evidence can be collected[. S]he was
not indicating that anything had happened in recent weeks to indicate the
need to be seen at a doctor.” Id. at 40-41.
After BCCYF rested, the trial court offered Mother and Stepfather the
opportunity to testify or present witnesses and evidence. Id. at 44-47.
Mother declined. Id. at 44. Stepfather took the stand specifically to solicit
questions from the trial court and counsel, all of whom declined. Id. at 45-46
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(Stepfather stating “I waive my right right now to testify” but that “I’ll take
questions.”). Stepfather then briefly testified that Child has made different
allegations against him “eighteen, twenty times” in the past, and stated “I
didn’t do it.” Id. at 46. Despite insinuating the existence of potential
witnesses, Stepfather declined to present any other testimony or evidence.
Id. at 46-48. Moreover, he confirmed his satisfaction with what he presented
to the court. Id. at 47-48. The trial court then closed the evidentiary record
after again verifying that no party desired to present further testimony or
evidence. Id. at 48.
After the hearing, the trial court directed BCCYF, and offered all other
parties the opportunity, to file proposed findings of fact and conclusions of
law. See Trial Court Order, 12/9/20; Trial Court Order, 3/31/21. BCCYF
timely complied. Stepfather filed an untimely memorandum of law on April
22, 2021.7 Mother did not file any memoranda.
On April 29, 2021, the trial court granted the petition for a finding of
child abuse, changing Child’s “indicated” abuse status to “founded” due to
Stepfather’s affirmative actions and Mother’s failure to act, “which caused
[Child] to suffer sexual abuse, more specifically, aggravated indecent assault;
causing sexual abuse to children by employing, using, persuading, inducing,
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7 Stepfather’s memorandum challenged Child’s credibility due to purported
mental health issues and the lack of supporting physical evidence. See
Stepfather’s Memorandum of Law, 4/22/21.
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enticing; indecent assault, indecent exposure; and unlawful contact with a
minor.” Trial Court Opinion, 4/29/21. Stepfather filed a petition to
reconsider/reopen the record on May 19, 2021, but filed his notice of appeal
to this Court on June 1, 2021, prior to the trial court acting on such petition.
Trial Court Opinion, 7/7/21, at 2.8 This appeal followed.9
On appeal, Stepfather presents the following issue for our review:
Whether the [trial court] erred in finding that there was
substantial evidence to support the finding of abuse[?]
Stepfather’s Brief at 4.
We review a dependency court order for an abuse of discretion.
We accept the trial court’s credibility determinations and findings
of fact so long as we find support for them in the record[,
h]owever, we need not accept the [trial] court’s inferences or
conclusions of law.
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. The
admission of evidence is within the purview of the trial court’s
discretion.
While dependency proceedings are governed by the Juvenile Act,
42 Pa.C.S.A. §§ 6301-6375, the [Child Protective Services Law
(“CPSL”), 23 Pa.C.S.A. §§ 6301-6387,] controls determinations
regarding findings of child abuse, which the [trial court] must find
by clear and convincing evidence. As the Supreme Court
explained … “as part of a dependency adjudication, a [trial] court
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8 The trial court explained that it would have denied Stepfather’s request as
untimely, reasoning that Stepfather had “substantial opportunity to present
his evidence at the evidentiary hearing,” did not request to reopen the record
within his April 22, 2021 memorandum of law, and only requested such relief
after the trial court issued its ruling. See Trial Court Opinion, 7/7/21, at 4.
9 Both Stepfather and the trial court complied with Pa.R.A.P. 1925.
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may find a parent to be the perpetrator of child abuse as defined
by the CPSL.”
To justify a finding of child abuse under section 6303(b.1) of the
CPSL, a court must determine, among other possibilities, that
clear and convincing evidence supports a finding that a child was
sexually abused, or put at risk of such abuse, through any failure
to act.
Interest of S.C., 230 A.3d 446, 450-451 (Pa. Super. 2020) (citations and
quotations omitted; paragraphing edited). Clear and convincing evidence
“requires that a finding be based on testimony by credible witnesses who
clearly relate facts that are so clear, direct, weighty, and convincing as to
enable the trier of fact to come to a clear conviction, without hesitancy, of the
truth of the precise facts in issue.” J.M., 166 A.3d at 427 (quotation omitted).
While a finding of abuse must be supported by clear and convincing
evidence,10 a trial court’s “findings as to the identity of the abusers need only
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10 To the extent that Stepfather contends that the trial court employed an
incorrect standard of review in rendering its determination, we conclude that
he waived this argument for failing to raise it in both his concise statement
and the statement of questions involved portion of his brief. See Krebs v.
United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super.
2006) (holding an appellant waives issues that are not raised in both the
appellant’s concise statement of errors complained of on appeal and the
statement of questions involved portion of the appellant’s brief on appeal).
Notwithstanding waiver, this challenge warrants no relief. The trial court did
not expressly state the standard it employed in its determination; therefore,
we presume the court applied the proper legal standards. See
Commonwealth v. Hunter, 554 A.2d 550, 558 (Pa. Super. 1989)
(concluding that, where a trial court sits as a fact-finder, “we will presume
that the [trial] court applied proper legal standards.”). Moreover, as discussed
infra, we conclude that the trial court’s determination is supported under the
applicable clear and convincing evidentiary standard.
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be established by prima facie evidence[.]” Interest of H.Y., 233 A.3d 923,
928 (Pa. Super. 2020), quoting In re C.R.S., 696 A.2d 840, 843 (Pa. Super.
1997).
A trial court may find child abuse where an individual causes sexual
abuse or exploitation of a child through any act or failure to act, or creates a
likelihood of sexual abuse or exploitation of a child through any act or failure
to act. 23 Pa.C.S.A. §§ 6303(b.1)(4) and (6). The CPSL defines “sexual abuse
or exploitation” as any of the following:
(1) The employment, use, persuasion, inducement, enticement or
coercion of a child to engage in or assist another individual to
engage in sexually explicit conduct, which includes, but is not
limited to, the following:
(i) Looking at the sexual or other intimate parts of a child or
another individual for the purpose of arousing or gratifying
sexual desire in any individual.
(ii) Participating in sexually explicit conversation either in
person, by telephone, by computer or by a computer-aided
device for the purpose of sexual stimulation or gratification of
any individual.
(iii) Actual or simulated sexual activity or nudity for the purpose
of sexual stimulation or gratification of any individual.
(iv) Actual or simulated sexual activity for the purpose of
producing visual depiction, including photographing,
videotaping, computer depicting or filming.
This paragraph does not include consensual activities between a
child who is 14 years of age or older and another person who is
14 years of age or older and whose age is within four years of the
child’s age.
23 Pa.C.S.A. § 6303(a)(1). Moreover, the definition includes offenses
committed against a child, including, inter alia, aggravated indecent assault,
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indecent assault, indecent exposure, and unlawful contact with a minor, as
those offenses are defined within the Crimes Code. 23 Pa.C.S.A.
§ 6303(a)(2).
Here, the trial court credited Child’s testimony “in all respects,” and
found her testimony sufficient to support its finding of child abuse. Trial Court
Opinion, 7/7/21, at 3.
Specifically, Child testified that Stepfather penetrated her vagina
with his fingers on two separate occasions without her consent.
Child also testified to other incidents where Stepfather requested
that she kiss him and that he touched private areas of her body.
Child also testified that Stepfather forced Child to grab his penis
and attempted to elicit Child’s consent to have sexual intercourse
with him for money. In addition to the numerous credible
allegations testified to by Child, she also testified that she
informed Mother of each of the incidents. Mother brushed off the
original incident as a dream and essentially blamed her for other
incidents. Mother took no steps to inquire further into the
allegations nor did she have any further conversations with Child
to determine the exact facts. As a result, Child was subject to
further abuse by Stepfather.
Id. at 3-4.11
After a careful review of the evidence, we find sufficient, clear and
convincing evidence in the record for the trial court to reach its conclusions in
the April 29, 2021 order. There was sufficient evidence from which the trial
court could have properly concluded that Stepfather perpetrated sexual abuse
upon Child. Child testified about three separate incidents whereby Stepfather
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11To protect the identities of Child and the parties, we replaced their names
with “Stepfather,” “Mother,” and “Child” within the trial court opinion.
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penetrated her vagina with his fingers, fondled her breasts, directed that she
kiss him, grabbed her buttocks, and solicited sexual intercourse for money.
Ms. Wheelden testified that Child’s allegations and version of events remained
consistent throughout the BCCYF child abuse investigation and in her
testimony at trial. Therefore, the record supports the trial court’s findings.
Stepfather’s sole argument baldly challenges the trial court’s credibility
determination regarding Child. See Stepfather’s Brief at 9. In its entirety,
Stepfather’s three sentence argument is:
In the case at bar, the only evidence presented concerning any
type of abuse was the testimony of [Child. Child’s] testimony was
not credible to the point where the fact[-]finder was presented
with clear and convincing evidence. Without clear and convincing
evidence of this alleged abuse, the [trial court] erred in making a
founded pronouncement.
Id. at 9-10.
Pennsylvania law is clear that a victim’s uncorroborated testimony to
sexual offenses committed upon her is sufficient in-and-of itself. See, e.g.,
Commonwealth v. Trippett, 932 A.2d 188, 201 (Pa. Super. 2007) (“the
uncorroborated testimony of a sexual assault victim, if believed by the trier of
fact, is sufficient to convict a defendant.”). The trial court found Child credible,
and we will not upset this finding on appeal. See S.C., supra, Interest of
L.V., 209 A.3d 399, 314 (Pa. Super. 2019) (“We are required to defer to a
trial court’s credibility findings if they are supported by the evidence.”).
After careful review, we conclude that the trial court did not abuse its
discretion in finding that Stepfather perpetrated child abuse against Child,
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specifically sexual abuse or exploitation. Accordingly, we affirm the April 29,
2021 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/2022
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