In Re Jg

984 A.2d 541, 2009 WL 3790564
CourtSuperior Court of Pennsylvania
DecidedNovember 13, 2009
Docket585 EDA 2008
StatusPublished
Cited by2 cases

This text of 984 A.2d 541 (In Re Jg) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Jg, 984 A.2d 541, 2009 WL 3790564 (Pa. Ct. App. 2009).

Opinion

984 A.2d 541 (2009)

In the Interest of J.G., a Minor.
Appeal of Chester County Department of Children, Youth and Families.

No. 585 EDA 2008.

Superior Court of Pennsylvania.

Argued September 24, 2009.
Filed November 13, 2009.

*543 John J. Teti, Jr., West Chester, for appellant.

Jeremiah F. Kane, West Chester, for appellee.

Kathleen M. Creamer, Philadelphia, for Community Legal Services, amicus curiae.

Jason Kutulakis, Carlisle, for Pennsylvania Children and Youth Solicitors Association, amicus curiae.

Ubel G. Velez, West Chester, for parents of J.G., participating party.

*544 BEFORE: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN, BENDER, BOWES, PANELLA, DONOHUE, SHOGAN and ALLEN, JJ.

OPINION BY ALLEN, J.:

¶ 1 The Chester County Department of Children Youth and Families ("CYF") appeals from the trial court's order denying the motion of the guardian ad litem to reject the recommendation of the hearing master or, alternatively, to conduct a rehearing. Finding that CYF was the prevailing party in the proceedings below, we dismiss the appeal under Pa.R.A.P. 501 because CYF was not aggrieved by the trial court's order.

¶ 2 On June 4, 2007, CYF filed a petition alleging that J.G., a seven-month-old child, was physically abused. In that petition, CYF "believed" and "averred" that M.N. ("Mother") and J.G. ("Father") (collectively "Parents") perpetrated the physical abuse against J.G. by commission and/or omission. R.R. at 6a. In their prayer for relief, CYF requested that the court "adjudicate [J.G.] a dependent child, [and] award temporary legal and physical custody to [CYF]." Id. at 7a.

¶ 3 The trial court appointed a Master to hear CYF's petition for dependency and a guardian ad litem was appointed to represent the interest of J.G. Following hearing, the Master, on June 25, 2007, found that J.G. was "a dependent child due to lack of proper parental care and control." R.R. at 527a. Given the serious and grave nature of J.G.'s injuries, the Master further found that J.G. was "an abused child as that term is defined by Pennsylvania's Child Protective Services Act." Id. The Master, however, found that the evidence was insufficient to establish the precise perpetrator of the abuse. Id. This is because the Master found that J.G. was equally in the control and custody of a baby-sitter ("Baby-sitter") at the time of his injuries. See Trial Court Opinion (T.C.O.), 4/18/08, at 2-13. Ultimately, the Master recommended that the trial court adjudicate J.G. dependent and proposed that CYF be awarded temporary legal and physical custody of J.G. so that J.G. could be placed in foster care. R.R. at 527a.

¶ 4 On June 29, 2007, J.G.'s guardian ad litem filed a motion challenging the Master's recommendation. R.R. at 523a. Specifically, the guardian ad litem requested that the trial court reject the Master's finding that the evidence failed to establish Parents as the perpetrators of the abuse and enter an order finding that Parents perpetrated the abuse. Id. at 524a. In the alternative, the guardian ad litem asked the trial court to conduct a rehearing on the issue. Id.[1] On July 16, 2007, the trial court adopted the Master's recommendation in part, and entered a temporary order which concluded that J.G. was a dependent child and awarded legal and physical custody to CYF. Id. The trial court, however, decided to revisit the Master's findings insofar as they recommended the evidence was inadequate to identify Parents as the perpetrators of the abuse. *545 Id. The trial court scheduled the case to be "heard for adjudication/disposition" on July 30, 2007, ostensibly to address this single issue. Id.

¶ 5 Following oral arguments and review of the transcripts of the Master's hearings, the trial court entered an order on January 2, 2008 denying the guardian ad litem's motion challenging the Master's recommendation. R.R. at 546a. In this order, the trial court specifically denied the guardian ad litem's request for a rehearing and adopted the Master's recommendation that the evidence failed to demonstrate that Parents were the perpetrators of the abuse. Id. In its Pa.R.A.P. 1925(a) opinion, the trial court addressed this issue as follows:

If J.G. had been solely in the custody of his parents at the time the injuries were inflicted, the evidence would clearly be sufficient to identity them as perpetrators of the abuse by commission or omission. However, the testimony clearly shows that the child was in the care of the babysitter while the parents worked during the three-month period preceding the child's hospitalization. Dr. [Allan] DeJong opined that the forearm fractures were inflicted between two and four weeks prior to the child's hospitalization. During that two to four-week period, the child was in the custody of both the parents and the babysitter. Similarly, Dr. DeJong testified that the subdural hematoma and related injuries, which brought about the child's hospitalization on May 31, 2007, were inflicted within the seventy-two hours preceding the CT scan which was taken at 3:30 p.m. on May 31, 2007. Because the child was in the care of both his parents and the babysitter for extended periods during the windows of time in which the injuries were inflicted, it is impossible to identify the perpetrator based on caregiver status alone. Other than caregiver status, there is no evidence of record to support a finding that J.G.'s parents were perpetrators of the abuse.

T.C.O., 4/18/08, at 12.

¶ 6 The trial court's orders of July 16, 2007 and January 2, 2008 collectively demonstrate that the trial court adopted the Master's recommendation in whole, and that the order of January 2, 2008 constituted a final and appealable order.

¶ 7 Following the trial court's decision on January 2, 2008, CYF filed a timely notice of appeal to this Court.

¶ 8 On appeal, CYF raises the following issues for review:

A. DID THE TRIAL COURT ERR WHEN, DESPITE THE FACT THAT THE MINOR CHILD SUFFERED SERIOUS INFLICTED INJURIES ON MORE THAN ONE OCCASION AND OVER THE COURSE OF SEVERAL WEEKS, IN NOT FINDING THAT THE PARENTS WERE THE PERPETRATORS OF THIS PHYSICAL ABUSE?
B. DID THE TRIAL COURT ERR IN FAILING TO FIND, DESPITE THE EVIDENCE PRESENTED TO THE COURT AND DESPITE THE PRESUMPTION RAISED IN 23 PA.C.S. § 6381(d), "PRIMA FACIE EVIDENCE OF ABUSE," THAT THE PERPETRATORS OF THE ABUSE AGAINST THE MINOR CHILD WERE HIS CARETAKERS, I.E., HIS PARENTS?

Brief for CYF at 6.[2]

¶ 9 As a prefatory matter, we must determine whether CYF's appeal is *546 properly before this Court. Rule 501 of the Pennsylvania Rules of Appellate Procedure states:

Rule 501. Any Aggrieved Party May Appeal
Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom.
Note: Whether or not a party is aggrieved by the action below is a substantive question determined by the effect of the action on the party, etc.

Pa.R.A.P. 501.

¶ 10 Under Pa.R.A.P. 501, "[o]nly an aggrieved party can appeal from an order entered by a lower court." Commonwealth v. Polo, 563 Pa.

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Cite This Page — Counsel Stack

Bluebook (online)
984 A.2d 541, 2009 WL 3790564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jg-pasuperct-2009.