In the Int. of: D.D., a Minor

• Court: Superior Court of Pennsylvania
• Decided: September 4, 2020
• Docket: 503 MDA 2020
• Status: Unpublished

Opinion

J.S31034/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.D., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: K.D., FATHER : No. 503 MDA 2020

Appeal from the Order Entered March 4, 2020, in the Court of Common Pleas of Lycoming County Juvenile Division at No. CP-41-DP-0000061-2018

IN THE INTEREST OF: D.D., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: K.D., FATHER : No. 504 MDA 2020

Appeal from the Order Entered March 4, 2020, in the Court of Common Pleas of Lycoming County Juvenile Division at No. CP-41-DP-0000062-2018

IN THE INTEREST OF: D.D., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: K.D., FATHER : No. 505 MDA 2020

Appeal from the Order Entered March 4, 2020, in the Court of Common Pleas of Lycoming County Juvenile Division at No. CP-41-DP-0000063-2018

BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 04, 2020 J. S31034/20

Appellant, K.D. (“Father”), appeals from the permanency review orders

dated February 18, 2020, and entered on March 2, 2020, continuing the

dependency of his three dependent, minor male sons with S.D. (“Mother”)

D.D.1 (born in June of 2012); D.D.2 (born in February of 2014); and D.D.3

(born in August of 2018) (collectively, the “Children”), and continuing the legal

and physical custody of the Children in the Lycoming County Children and

Youth Services (“CYS” or the “Agency”), with their placement in foster care

under the Juvenile Act, 42 Pa.C.S.A. § 6302(1) and § 6351. Additionally, in

the permanency review orders, as well as in separate aggravated

circumstances orders dated February 18, 2020 and entered on March 4, 2020,

the trial court found aggravated circumstances against Father under the

definition at 42 Pa.C.S.A. § 6302(5), which Father challenges. We affirm.

The factual background and procedural history of this appeal is as

follows. On December 20, 2018, CYS filed motions for emergency protective

custody with regard to the Children after it received a report that D.D.3, who

was then four months old, was covered with scratches and bruises. Mother

was unable to provide a reasonable explanation for the injuries. D.D.3 was

admitted to Geisinger Hospital for an evaluation. Mother stated to the CYS

caseworker that her two older sons, D.D.1, age six, and D.D.2, age 4, were

at Hoopla’s Family Fun & Grill (a local family fun center) with a childcare

provider. When an Agency caseworker went to Mother’s residence, however,

she discovered that D.D.1 and D.D.2 were home alone. D.D.1 and D.D.2 also

were covered in scratches and bruises, and the conditions in the home were

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deplorable. D.D.1 and D.D.2 were taken to Williamsport Hospital for

evaluation. Mother stated that Father was working out of town, and that she

has no family in the area to care for the Children. The trial court, the

Honorable Judge Joy Reynolds McCoy, entered emergency custody order on

December 20, 2018, and scheduled a shelter care hearing to occur the

following day. On December 21, 2018, the trial court appointed conflict

counsel, Julian Allatt, Esq., to represent Father. On that same date, CYS filed

dependency petitions regarding the Children, and the trial court held the

shelter care hearing. In orders dated December 21, 2018, and entered on

December 24, 2018, the trial court found sufficient evidence to support a

conclusion that the return of the Children to the home of their parents was

not in the Children’s best interests, and that the Children should remain in

CYS’s care and custody.

On January 8, 2019, the trial court appointed

Trisha Hoover Jasper, Esq., to represent Father, and Attorney Allatt withdrew

his representation. On February 19, 2019, CYS filed motions for a finding of

aggravated circumstances against Mother as an indicated perpetrator of abuse

of D.D.3 and for causing D.D.3 to have scratches, a broken femur, two broken

ribs, and burns, and for a failing to provide D.D.3 with nutrition. In the motion

relating to D.D.3, CYS also sought a finding of aggravated circumstances

against Father for failing to provide D.D.3 with nutrition. In the motions

relating to D.D.1 and D.D.2, CYS alleged that Mother had been indicated as

the perpetrator of abuse causing them bruising, and of repeated failure to

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supervise those children, but did not state any aggravated circumstances as

to Father. On February 20, 2019, the trial court appointed

Angela Lovecchio, Esq., as the guardian ad litem (“GAL”) to represent the

Children.

On February 27, 2019, the trial court held an evidentiary hearing on the

dependency petitions and aggravated circumstances motions. At the

commencement of the hearing on February 27, 2019, CYS’s counsel,

John Pietrovito, Esq., stated that the Agency was seeking a finding of

aggravated circumstances with respect to each of the parents and with respect

to each of the Children.1 CYS presented the testimony of Emily A.

Olmes, D.O.; Pat J. Bruno, M.D.; Patrick Ward, a Physician’s Assistant; and

Paul J. Bellino, M.D. Thereafter, on March 19, 2019, the trial court held a

second day of the hearings, at which CYS presented the testimony of

Corporal Joseph Akers, a criminal investigator with the Pennsylvania State

Police; and Melissa Hume and Jordan McGill, caseworkers with CYS. Father

testified on his own behalf, and the GAL presented Mother’s testimony.

Significantly, the following exchange took place between Judge McCoy

and the GAL at the conclusion of the hearing on March 19, 2019:

MS. LOVECCHIO: . . . I don’t think reasonable efforts should be made. I think the parents need to – we

1 Also on February 27, 2019, CYS filed amended motions for findings of aggravated circumstances as to both parents with regard to D.D.1 and D.D.2 alleging the same aggravated circumstances for Mother, and alleging that Father was indicated as a perpetrator of abuse on D.D.3, the sibling of D.D.1 and D.D.2.

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need to see what’s going on. I’ve never seen anything – I’ve never seen children in that state. Never seen it. That was horrendous. And it’s very difficult for me to believe that [Father] just knew nothing about any of this. Nothing. Nothing. I – I don’t understand that.

And, you know, he had to have seen at least – [Mother] was this depressed—that’s the only thing I can attribute this to is severe post-partum depression, he didn’t see that? And he just – he just washed himself. He just went. I have to work, I have to work, I have to work. I have to buy things. I have to buy things. No. Your Honor, I think it’s very strange too that after these children have gone through what they’ve gone through that he wouldn’t have immediately found another job to come back here and be with them.

The trauma that these children suffered, I wonder what’s going to happen to them when they get older. This is severe, severe trauma. So I don’t believe any reasonable efforts should be made. I think the parents – let’s see what happens now. That’s what I believe. I don’t think they should be helped.

THE COURT: Okay, let me ask you, in regards to Father, what do you believe is the basis for me to find – because I would have to find that he caused serious bodily injury for aggravated physical neglect.

MS. LOVECCHIO: Okay, my thoughts are if this child – he knew that this child had problems gaining weight. He knew this and yet – I just want to come to this point. He goes – this baby since January 3rd [, 2018] gains two and a half pounds in 14 days because when you feed children that what happens, they grow. And he didn’t see this? He didn’t call the doctor? He didn’t – he’s having all kinds of trouble with [Mother]. No, I – we’re – they were not having a good relationship. This is a serious, serious relationship between the two of them and he doesn’t find out? Just because he fed

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him some bottles while he was there and he sees the child is 4-months-old [sic] and weighs nine pounds?

I’m sorry. I don’t think you can just say, I’m going to say, nope, don’t know. Don’t know. That’s serious bodily injury. What does that do to a child when they don’t – when they’re not feeding properly in the first few months, in the formative months of their lives. That’s gotta do something. It’s got to be traumatic. I mean that’s when their brains are forming and they’re being basically – he called cachectic, malnourished. That’s what the doctor [Emily A. Olmes, D.O.,] said. I don’t know how that’s not aggravated, aggravated, serous – or bodily injury. Serious bodily injury.

THE COURT: Okay. All right, I’ll issue this Order.

Notes of testimony, 3/19/19 at 133-135.

On March 25, 2019, Judge McCoy entered Orders of Adjudication and

Disposition, dated March 19, 2019, adjudicating the Children dependent

pursuant to 42 Pa.C.S.A. § 6302(1) “Dependent child.”2 Also on March 25,

2019, the trial court entered separate orders dated March 19, 2019, finding

2 Section 6302 of the Juvenile Act defines a “dependent child” as:

[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[.]

42 Pa.C.S.A. § 6302.

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clear and convincing evidence to establish that the alleged aggravated

circumstances existed as to both Mother and Father. Judge McCoy also

entered separate Orders, in which she discussed her findings with regard to

the Children. Judge McCoy found that Mother had caused serious bodily injury

to the Children, as well as aggravated physical neglect, and that Father had

caused aggravated physical neglect. Notably, Judge McCoy indicated that,

although she had a suspicion that Father might have caused serious bodily

injury, she did not believe such conduct had been proven at the hearings.

(Orders, 3/25/19 at 3 (unpaginated).) Judge McCoy stated:

AND NOW, this 19th day of March, 2019, at a time set for a dependency hearing, the [trial court] hereby adjudicates all three children dependent. The [C]hildren shall remain in the legal and physical custody of the Agency for continued placement in an approved resource home. The Family Service Plan and Child Permanency Plan dated December 20, 2018 to June 20, 2019 are hereby approved.

By way of background, [Father and Mother] are the parents of [the Children]. The parents resided together in a home in Montgomery, Pennsylvania. Father worked for the gas industry and worked approximately two weeks on with one week off. Mother is the primary caregiver of the [C]hildren and Father would spend time with the [C]hildren when he was home on his days off.

On December 11, 2018 [D.D.3] was at a doctor’s appointment where there were concerns regarding his weight gain and it was noted that he had approximately two scratches on him. On December 20, 2019[, D.D.3] was brought back for a follow up appointment. At that time there were still considerable issues regarding his ability to gain weight, and, ultimately, [D.D.3] was transported to

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Geisinger Medical Center from the Geisinger Clinic in Montoursville for hospitalization. At that time Children and Youth was contacted, as well as Children and Youth ultimately contacting the State Police. Children and Youth reported to the home where they discovered the older children, [D.D.1 and D.D.2], to be home alone.

The [trial court] heard testimony from four separate medical professionals including Dr. Olmes, Dr. Bruno, Patrick Ward, a Physician’s Assistant, and Dr. Paul J. Bellino, M.D. These physicians saw all three or at least some of the [C]hildren during this timeframe.

In regard to [D.D.3], it was described that the pictures that were presented to the [trial court] were consistent with a child that had been battered. One physician noted that there were so many marks that he did not do his usual catalog of injuries of each one as it would have been in the hundreds. He noted that the pictures described the injuries better than he could. He also noted a bite mark on [D.D.3]. He noted that the marks on [D.D.3] literally covered every body surface that he had. It was also ultimately discovered that he had two healing rib fractures which would have occurred sometime around Thanksgiving and two chip fractures at the bottom end of his femur that is seen almost exclusively with child abuse.

[D.D.1] was described as being battered and having too numerous to count bruises all over his body. He had unusual scars that were approximately six to eight inches long which were attributable to the use of some type of a flexible cord. He was described as having bruises in areas that you don’t normally see from an accident. He also was described as having poor hygiene on his feet. Patrick Ward, the Physician[’]s Assistant, indicated that the injuries [D.D.1] sustained would have been painful. [D.D.1] described that his [m]other had hit him with a telephone and when asked how many times[,] he put his head down and raised all 10 fingers. [D.D.1] also made statements that his [f]ather had made his lip bleed.

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[D.D.2] showed signs of bruises on his left temple. He had numerous scratches, bruises and marks over his entire body. It was described that the amount and number of bruises was to the extreme. He also had a fingerprint noted in the middle of his back.

When Children and Youth and the State Police reported to the home on December 20th[, 2018,] the home was found to be in extremely deplorable conditions. There were mice droppings everywhere throughout the house and a dead mouse noted. Mice were scurrying across the room when a door was opened. There was clothing and garbage throughout the house. Corporal Akers noted a rotted bag of potatoes that had come to the point that it was liquefied. The conditions of the home were clearly not in a state for the safety of any children being in the home, let alone a 4-year-old and 6½-year-old being left in a home alone.

It is noted that had there have been [sic] one indicated report filed in regard to Father in regards to [D.D.3’s] failure to thrive. There are have been [sic] four indicated reports against Mother encompassing nine allegations in regards to [D.D.3], including scratching, a broke [sic] femur, burning between the toes, failure to thrive, and broken ribs. In the regards [sic] to [D.D.2], beating and repeated or prolonged egregious failure to supervise [sic]. In regards [sic] to D.D.1, beating and repeated or prolonged egregious failure to supervise [sic].

The [trial court] notes that the abuse that’s been afflicted [sic] upon these three young children is the worst that [the trial court] has ever seen. There is no explanation for the fact that they were physically abused by their parents. The [trial court] finds that though Father was away from the home more than he was present, he still has an obligation and duty to provide care for his children and that in light of the knowledge he had of the failure of [D.D.3] to gain weight that [sic] he had an affirmative duty to ensure that he was getting the proper nutrition. The [trial

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court] also finds it very hard to believe, based on the pictures that were presented to this [c]ourt which shows [sic] a snapshot of the [C]hildren in the home on December 20th[, 2018], that these conditions miraculously happened between Father’s last time in the home on November 28th[, 2018] up until December 20th[, 2018]. The [trial court] strongly feels that Father, though maybe not to the extent that it was on December 20th[, 2018], was aware of the on goings [sic] in his home.

At this time the [trial court] does find aggravated circumstances in regard to both parents. The [trial court] specifically finds that Mother has caused serious bodily injury to the [C]hildren, as well as aggravated physical neglect. In regard to Father, though the [trial court] has suspicion that Father may have caused serious bodily injury, the [trial court] does not believe it has been proven at this point, but the [trial court] does find that Father did cause aggravated physical neglect to the [C]hildren. The [trial court] will not order efforts to reunify by the agency in regards to either parent.

Trial court orders, 3/25/19 at unpaginated 1-3 (italics added).

Subsequently, the trial court held a series of permanency review

hearings and entered a corresponding permanency review orders: on April 26,

2019, dated April 18, 2019; and on July 31, 2019, dated July 16, 2019. 3 On

June 5, 2019, Mother filed her appearance pro se. On November 6, 2019,

following a permanency review hearing held on October 17, 2019, the trial

court entered permanency review orders dated October 17, 2019.

In the meantime, on October 8, 2019, CYS received three Child

Protective Services (“CPS”) reports, one for each of the Children, based on

3 On August 5, 2019, the trial court amended its July 16, 2019 orders to reflect that the change of goal to adoption was withdrawn and not approved by the court.

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information gleaned from the October 3, 2019 interviews of D.D.1 and D.D.2.

conducted by Denise Feger, Ph.D., a psychologist. (Notes of testimony,

2/18/20 at 8-9, 20-22.) The CPS reports alleged that the Children had been

physically abused, that each was a victim, and that Father was a perpetrator

by omission for failing to protect them. (Id. at 8-9.) After the conclusion of

the CYS assessment, all three reports were indicated for abuse on

November 22, 2019. (Id. at 11.)

On December 6, 2019, CYS filed motions for a finding of aggravated

circumstances against Father. On January 26, 2020, CYS filed petitions for a

permanency review hearing. On February 18, 2020, the trial court, the

Honorable Ryan M. Tira, held an evidentiary hearing on the permanency

review petitions and the motions for a finding of aggravated circumstances.

At the hearing, CYS presented the testimony of its assessment

caseworker, Jordan McGill. (Notes of testimony, 2/18/20 at 7-8.) CYS then

presented the testimony of the Children’s foster mother, J.N., who has cared

for D.D.1 and D.D.2 since December 23, 2018, and for D.D.3 since

December 24, 2018. (Id. at 22-23.) Next, CYS presented the testimony of

its ongoing caseworker, Ashley Myers. (Id. at 32.)

Father then presented the testimony of Corey Burkholder, who is the

Outreach caseworker with the Lycoming County Joinder Board, and has

worked with Father since June 10, 2019 on anger management issues and

assertiveness training. (Id. at 63-64.) Next, Father presented the testimony

of William Pearson, the CYS Outreach visitation coordinator. (Id. at 69-70.)

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Father then testified on his own behalf. (Id. at 80.) Finally, the GAL

presented the testimony of Mother. (Id. at 94.)

On direct examination, Ms. McGill testified that she has been involved

with the case and the Children since it began in December of 2018. (Notes of

testimony, 2/18/20 at 7-8.) Ms. McGill testified concerning the CPS reports

that CYS had received on October 8, 2019, alleging that the Children were

victims of physical abuse, and that Father was a perpetrator by omission for

failing to protect them. (Id. at 8-9.) Ms. McGill stated that the three reports

were indicated for abuse on November 22, 2019, and were the basis for the

motions for aggravated circumstances. (Id. at 11.) Ms. McGill explained that

the information that was the basis of the CPS reports was derived from the

evaluations of D.D.1 and D.D.2 by Dr. Feger. (Id. at 9.) Ms. McGill testified

that typically CYS interviews alleged child victims, but Dr. Feger believed that

such an additional forensic interview with the Children would be detrimental

to them. (Id. at 9). Accordingly, Dr. Feger conducted interviews of the

Children and obtained the facts from them that formed the basis of CYS’s new

set of aggravated circumstances motions. (Id. at 10.) Ms. McGill stated that

CYS also interviewed Father and Mother, and, on November 22, 2019,

concluded that the CPS reports were indicated. (Id. at 11-12.)

Further, Ms. McGill testified that CYS had received an additional

CPS report on January 14, 2020, alleging that Father was a perpetrator of

abuse on D.D.1. (Id. at 12.) The report alleged that Father had been hitting

and punching D.D.1, and a separate second allegation that Father had created

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a reasonable likelihood of bodily injury to D.D.1. (Id. at 12-13.) Ms. McGill

testified that the investigation had been concluded on February 14, 2020. (Id.

at 13, 16.)

On cross-examination by Father’s counsel, Ms. McGill testified that the

conclusion of the investigation of the most recent CPS report was indicated for

abuse, but it was not part of the matter before the court. (Id. at 14.) On

cross-examination by Mother’s counsel, Ms. McGill testified that, in October of

2019, Dr. Feger had advised CYS that it would not be in the best interests of

the Children at that time for CYS to interview them. (Id.) She stated that

Dr. Feger had approved Ms. McGill’s interview of D.D.1 with regard to the

January 14, 2020 CPS report, and Ms. McGill had interviewed D.D.1. (Id.

at 15.) In response to cross-examination by the GAL, Ms. McGill explained

that the CPS reports filed on October 8, 2019, related to all of the original

reports from December 18, 2018, and the injuries that the Children had

sustained, alleging that Father knew about the abuse and/or did not stop it,

which was new information not previously available to CYS. (Id.) Ms. McGill

testified that the January 14, 2020, CPS report alleged that Father threw D.D.1

into the swimming pool in the backyard of the family home, although D.D.1

could not swim, and Father did not help him get out. (Id. at 16.) The report

contained an allegation of a second incident where D.D.1 had gotten into

trouble, and Father hit him in the mouth with a wooden spoon and made his

mouth bleed. (Id.)

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On re-direct examination by CYS, Ms. McGill testified that Father did not

wish to be interviewed by CYS with regard to the January 14, 2020 CPS report,

and advised CYS that, after consulting with his counsel, his statement would

not change. (Id.) On re-cross-examination by Father’s counsel, Ms. McGill

testified that Father’s statement in the past had been that he did not know

about the abuse. (Id. at 17.) In the past, Father had shown CYS his work

schedules demonstrating that he worked a substantial number of hours during

the time period when the abuse allegedly occurred, and that he worked out of

town much of the time. (Id.) Father was last in the family home for five to

seven days around Thanksgiving of 2018, and, subsequently, was outside of

Pennsylvania for a few weeks. (Id. at 18.) On re-cross examination by

Mother’s counsel, Ms. McGill testified that Mother did not respond to the notice

of the report by requesting an opportunity to be interviewed regarding the

January 14, 2020 CPS report, nor did CYS extend her an opportunity to be

interviewed about it. (Id.) In response to re-cross-examination by the GAL,

Ms. McGill testified that she recalled medical testimony from the prior hearings

that D.D.3’s broken ribs could have occurred during the time that Father was

home during Thanksgiving of 2018. (Id. at 18-19.)

The trial court admitted into evidence Dr. Feger’s individual evaluations

of Mother and Father, performed on September 26, 2019 (id. at 20-22;

CYS Exhibit (“Ex.”) 15 and 18, respectively); and her evaluations of D.D.1 and

D.D.2 performed on October 3, 2019 (notes of testimony, 2/18/20 at 20-22;

CYS Ex. 16 and CYS Ex. 17, respectively).

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Relevant to the aggravated circumstances determination on appeal,

Ms. Myers, the ongoing CYS caseworker, testified that when the case

commenced, Father resided in Montgomery, Lycoming County, but he

subsequently moved to western Pennsylvania for his full-time employment.

(Id. at 33-34.) She stated that Father lives with his paramour, B.B., in

Bridgeville, Pennsylvania, in Washington County, and that he travels to the

visits with the Children for a three-hour weekly visit in Lycoming County. (Id.

at 33-35.) She testified that Father has supervised, in-person, one-on-one

visits with the Children once a week, and that he has video chats with the

Children once a week. (Id. at 35-37.) Ms. Myers testified that Father had

attended D.D.3’s surgery on January 21, 2020, but that he had called her that

same day to cancel his visit scheduled for January 23, 2020, because he was

sick, but stated he would visit via Skype. (Id. at 36-37.) Ms. Myers also

testified that Father was aware of an Individualized Education Program (“IEP”)

phone meeting in which he was scheduled to participate on November 4, 2019,

concerning D.D.1’s school, but she and the school principal were both unable

to reach Father during the meeting. (Id. at 40.)

Mr. Burkholder testified that Father had completed the anger

management training using a curriculum for assertiveness training, and an

active parenting course tailored to his court-ordered obligations, but Father

had found the reading material overwhelming. (Notes of testimony, 2/18/20

at 64.) He stated that Father had worked actively on his goals. (Id. at 64-65.)

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Mr. Pearson, the CYS Outreach visitation coordinator for Father, testified

that he has observed the majority of Father’s visits with the Children. (Id. at

69-70.) Mr. Pearson testified that Father has a high rate of attendance at

visits, and that, for the visits, Father travels to Lycoming County from the

Pittsburgh area at least once a week, and sometimes more frequently. (Id.

at 70.) Mr. Pearson stated that Father does well with the foster mother and

with providing the Children the resources that they might need, in helping

with their homework and bathroom issues, and also in helping with emotional

issues. (Id. at 71-72.) Mr. Pearson was concerned with assisting Father in

continuing to grow and change, and to be able to address the Children’s

energy levels during the three-hour visits. (Id. at 76.)

On direct examination, Father testified that he resides with his

paramour, B.B., in Bridgeville, Pennsylvania, and that he works full-time for a

tire business, 7 a.m. to 4 p.m., Monday through Friday, and 7 a.m. to 11 a.m.

on Saturday. (Notes of testimony, 2/18/20 at 80-81.) Father stated that he

has regularly visited the Children since they were placed in foster care in

December of 2018. (Id. at 81). Father testified that he had missed a visit

with D.D.3 on a Thursday, after the child’s medical appointment on a Tuesday

that same week, because he had taken time to be with D.D.3 on Tuesday,

which was not on his routine day off, and he was sick himself. (Id. at 81-84.)

Father stated that he visits the Children via Skype once each week. (Id. at

84-85.) Father also testified that he missed an IEP phone meeting because

he was extremely busy at work, and that he had attempted to return the call

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later in the day, but no one answered the phone. (Id. at 85-86.) Father

stated that he had enrolled in a Batterer’s Intervention Program pursuant to

the trial court’s October 17, 2019 order. (Id. at 86-87.) Father also testified

that he had undergone a drug and alcohol evaluation, and was advised that

he seemed to be “doing a very good job of keeping sober.” (Id. at 87.)

Father stated that he is a very good father and he would never harm

the Children. (Id. at 88.) Father testified that he planned to return a phone

call from Dr. Feger and to do everything he could for the return of the Children

to home and to him. (Id.) On cross-examination by CYS, Father testified

that he had canceled the January 23, 2020 visit with D.D.3 two days in

advance because he was sick himself, and that he had missed the phone call

regarding the IEP because he was waiting for another call. (Id. at 89-90.)

Father stated that B.B. or a friend usually transported him to the visits in

Williamsport. (Id. at 90.) Father confirmed Mr. Burkholder’s testimony that

he had found the parenting workbook overwhelming, so he had ceased

working on it. (Id.) On cross-examination by the GAL, Father confirmed that

he remains married to Mother, but a divorce is in progress, and that, although

he referred to B.B. as his spouse in his testimony, he is not married to B.B.

(Id. at 93.)

On direct examination by the GAL, Mother testified that she had seen

the photographs of the Children with the bruises that commenced the

dependency proceedings. (Id. at 96.) She stated that Father had seen the

Children with the bruises in the family home because he had regularly seen

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the Children in the home and that he had done nothing. (Id. at 96, 100).

Mother testified that Father was rough with the Children at times, but she

stated that she could not say that he caused the bruises on the Children. (Id.

at 96.) Mother also stated that Father sometimes spanked the “boys.” (Id.)

Mother testified that she had to get between Father and D.D.1 at times

because she did not know what was going on, when Father was chasing D.D.1

from the garage and into the house. (Id. at 96-97.) Mother indicated that

Father would have spanked D.D.1’s buttocks, but she was not sure whether

he would have spanked the child in such a manner as to cause bruising. (Id.

at 97-98.) Mother testified that there was domestic violence between Father

and her. (Id. at 98.) She stated that Father had broken her finger such that

it required surgery, and that she no longer has full use of it. (Id.) Mother

stated that she could only do what Father allowed. (Id. at 99-100.) Mother

testified that she had agreed with Father that she would homeschool the

Children so that he could work out of town, and that she could homeschool

them in a hotel room. (Id. at 100-101.) Mother testified that she did not

know about D.D.3’s fractured ribs and broken femur until she was arrested,

and that she did not know how D.D.3’s injuries happened. (Id. at 100-101.)

Mother also stated that she did not know that D.D.3 was not gaining weight

or what caused his bruises. (Id. at 101.) Mother testified that Father was a

“1950s dad,” and that she did all of the parenting, although Father would

engage in activities, such as baseball, with “the boys” when he was at home.

(Id. at 100). Mother stated that Father can be different from the man he was

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in his testimony, which is the one with whom she fell in love and married, and

that he can be a different person. (Id. at 103.)

On cross-examination by CYS, Mother testified that she had seen Father

hit D.D.1 with the handle of a small, metal “Swiffer” duster. (Id. at 104.) On

re-direct examination by the GAL, Mother testified that she had walked in on

the situation after Father had hit D.D.1 on his back with the duster handle,

and that she did not observe any bruises, because it had just happened. (Id.

at 106-107.) She observed D.D.1 was crying. (Id. at 106.) The incident

occurred in August of 2018, after the birth of D.D.3. (Id. at 107.)

At the close of the testimony, the GAL, Attorney Lovecchio was in

agreement with CYS’s request for a finding of abuse with regard to Father as

a perpetrator by omission. (Notes of testimony, 2/18/20 at 11.)

Attorney Lovecchio stated that Mother testified Father had seen the bruises

on the Children while he was in the family home which were depicted in the

photographs, and he had done nothing. (Id.) Attorney Lovecchio reasoned

that, based on Mother’s testimony, the court could make a finding that Father

was a perpetrator by omission. (Id.) She did not believe it would be in the

best interests of the Children for Father to be reunified with the Children or

for him to have unsupervised or extended home visits until he was truthful

with the court concerning what had happened to the Children that had caused

their bruises. (Id.)

On March 2, 2020, Judge Tira entered permanency review orders dated

February 18, 2020, finding that, although Father had made moderate

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compliance with the permanency plan, the placement of the Children remains

necessary and appropriate, continuing the Children in dependency, and

continuing legal and physical custody in CYS, with the Children placed in foster

care. The permanency orders also found that the Agency did make reasonable

efforts to prevent or eliminate the need for the removal of the Children from

the home. Moreover, the orders found aggravated circumstances existed

based on Father’s failure to report the abuse of the Children, and found Father

was a perpetrator of the abuse by omission. The permanency review orders

provided that the prior orders remain in full force and effect.

On March 4, 2020, Judge Tira entered separate aggravated

circumstances orders dated February 18, 2020 on the trial court’s docket at

the same trial court docket number as the permanency review orders.4 In the

aggravated circumstances orders, the trial court found clear and convincing

evidence had been presented to establish the alleged aggravating

circumstances as to Father.

4 The trial court docket in the record reflects that, on March 6, 2020, CYS filed petitions for a change of goal. Further, the trial court’s aggravated circumstances orders and the notes of testimony from the hearing indicate that petitions to terminate both Father’s and Mother’s parental rights were pending before the trial court. (See notes of testimony, 2/18/20 at 5.) The trial court scheduled the termination hearings to be held on March 25, 2020. (Id.) Moreover, the trial court stated that it would appoint legal interest counsel to represent the Children at the termination hearing, in addition to the GAL, with which both the GAL and CYS were in agreement. (Id. at 5-6.) There is no ruling on any of these petitions presently before this court for our review.

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On March 13, 2020, Father timely filed three notices of appeal, along

with concise statements pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which

this court, acting sua sponte, consolidated on April 24, 2020.

In his brief on appeal, Father raises the following issues:

1. Whether the court erred in making a finding of abuse as a perpetrator by omission as defined at 23 Pa.C.S.[A.] § 6303 against Appellant as there is no evidence he was present when harm was caused to the [C]hild(ren).

2. Whether the court erred in making a finding of abuse as a perpetrator by omission as defined at 23 Pa.C.S.[A.] § 6303 against Appellant as there was no evidence he observed or was aware of any harm being done to the [C]hild(ren).

3. Whether the court erred in granting the Agency’s motion for a finding of aggravated circumstances as it pertains to Appellant as there is no evidence [Father] was present when injuries occurred or was aware of the injuries to the [C]hild(ren).

Father’s brief at 7.

Our standard of review for dependency cases is as follows:

[T]he standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court’s 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) (citations omitted); see also

In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).

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Initially, in its brief on appeal, CYS re-raises issues from its motions to

quash Father’s appeals, which we denied without prejudice. We will first

address CYS’s issue concerning whether Father filed the proper number of

appeals. Our Supreme Court’s decision in Commonwealth v. Walker, 185

A.3d 969 (Pa. 2018), requires an appellant to file a separate notice of appeal

for each trial court docket number he or she intends to appeal. CYS argues

that we should dismiss Father’s appeal because the trial court entered two

separate orders per child, a permanency review order and an aggravated

circumstances order, and Father filed only one appeal per child.

Addressing the orders that Father intended to appeal, in each of the

three notices of appeal, Father stated that he was appealing from “the

Permanency Review Order and Finding of Aggravating Circumstances and

Abuse entered in this matter on the 18th day of February, 2020 by the

Honorable Ryan M. Tira. A copy of the docket entry showing the entry of the

order appealed from is attached to this Notice.” The trial court docket entries

attached to the notices of appeal reflect the entry of both the permanency

review orders and the aggravated circumstances orders, however. As both

the permanency review orders and the aggravated circumstances orders were

dated February 18, 2020, and none of the orders was entered on February 18,

2020, we cannot discern Father’s intent from the statement on the face of his

notices of appeal.

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In response to this court’s docketing statements pursuant to

Pa.R.A.P. 3517, Father attached only the aggravated circumstances orders,

and not the February 18, 2020 permanency review orders. The three issues

that Father raised in his concise statement and in his brief on appeal all relate

to the finding of aggravated circumstances against him, which leads us to

conclude that Father intended to appeal the aggravated circumstances orders.

Additionally, there was only one trial court docket number listed on both the

permanency review orders and the aggravated circumstances orders.

Accordingly, we find that Father did not violate the Supreme Court’s ruling in

Walker by filing only one notice of appeal with respect to each of the Children

where he intended to challenge only the aggravated circumstances order in

each matter, and there was only one trial court docket number assigned in

each child’s case. See Commonwealth v. Jerome Johnson, 2020 WL

3869723 (Pa.Super. July 9, 2020) (en banc) (holding that the appellant’s

filing the correct number of notices of appeal to match the number of trial

court cases, but listing all of the docket numbers on each notice of appeal and

italicizing the relevant trial court docket number does not run afoul of Walker

(overruling Commonwealth v. Creese 216 A.3d 1142 (Pa.Super. 2019),5 to

the extent it holds that it would run afoul of Walker). See also

5 The Creese panel construed Walker to mean that “we may not accept a notice of appeal listing multiple docket numbers, even if those notices are included in the records of each case.” Creese, 216 A.3d at 1144. Instead, the panel concluded “a notice of appeal may contain only one docket number.” Id. (emphasis added).

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Commonwealth v. Larkin, 2020 WL 3869710 (Pa.Super. July 9, 2020)

(en banc) (holding that, where a pro se appellant filed one notice of appeal

listing both of the trial court criminal docket numbers, and included an original

and five copies of the notice appeal, under the panel decision in

Commonwealth v. Stansbury, 219 A.3d 157 (Pa.Super. 2019),6 which the

en banc court in Larkin reaffirmed, there was a breakdown in court

operations because the trial court directed the appellant to file “a notice of

appeal”).

Even if we were to conclude that Father intended to appeal the

February 18, 2020 permanency review orders with respect to each of the

Children, and not the aggravated circumstances orders, we would find that

Walker would not preclude our review, as the trial court placed its finding

that aggravated circumstances exist as to Father in each of the permanency

review orders, rendering the filing of separate appeals from the aggravated

circumstances orders unnecessary and duplicative.

6 In Stansbury, this court noted that we have many times declined to quash an appeal when the defect resulted from an appellant’s acting in accordance with misinformation that the trial court relayed to him. Id. at 159-160. In Stansbury, the panel stated that, while Walker required the appellant, Stansbury, to file separate notices of appeal at each docket number, the Post Conviction Relief Act court informed him that he could pursue appellate review by filing a single notice of appeal. The panel concluded that such misstatements as to the manner that Stansbury could effectuate an appeal from the PCRA court’s order amounted to a breakdown in court operations such that we could overlook the defective nature of his timely notice of appeal. Therefore, the panel declined to quash the appeal pursuant to Walker, and addressed the substance of his appeal.

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Next, we address CYS’s challenge to the finality of the orders on appeal,

raised in its motion to quash which we denied without prejudice, so we may

determine whether we have jurisdiction over the appeals. CYS contends that

the orders that Father appealed are not final but interlocutory, and are not

appealable as of right.

It is well settled that, “[a]n appeal lies only from a final order, unless

permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471

(Pa.Super. 2013); see also In the Interest of J.M., 219 A.3d 645, 650

(Pa.Super. 2019). Generally, a final order is one that disposes of all claims

and all parties. See Pa.R.A.P. 341(b). However, in the context of

dependency, we have stated:

“[D]ue to dependency’s unique nature, the fact that further proceedings are contemplated is not dispositive of the finality of the order. In the Interest of J.L., 216 A.3d 233, 2019 WL 3295100, at 3 n.1 (Pa. Super. 2019). In the dependency context, the court “must examine the practical consequences of the order to determine if the party challenging it has effectively been put out of court.” In re Interest of M.B., 388 Pa. Super. 381, 565 A.2d 804, 806 (1989).

J.M., 219 A.3d at 652. We continued, stating:

Based upon the two-step procedure contemplated by the Juvenile Act for declaring a child dependent (i.e., an adjudication followed by a disposition, see 42 Pa.C.S.[A.] 6341(c)), this Court has held that it is the dispositional order following a dependency adjudication that is a final appealable order. In the Interest of C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979).

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J.M., 219 A.3d at 651-652.

Here, as the trial court orders on appeal (either the aggravated

circumstances orders or the permanency review orders) are not the

dispositional orders subsequent to adjudication, and Father is not put “out of

court,” they are not final orders. We, therefore, turn to whether the orders

are otherwise appealable.

An appeal may additionally be taken from an interlocutory order

appealable by right or permission, or a collateral order. See Pa.R.A.P. 311,

312, 313; see also J.M., 219 A.3d at 650. As Father did not assert that the

orders in question appealable by right or permission pursuant to Pa.R.A.P. 311

or 312, we examine whether they are collateral orders pursuant to

Pa.R.A.P. 313. “A collateral order is an order separable from and collateral to

the main cause of action where the right involved is too important to be denied

review and the question presented is such that if review is postponed until

final judgment in the case, the claim will be irreparably lost.”

Pa.R.A.P. 313(b); see also J.M., 219 A.3d at 655; see also In re J.S.C., 851

A.2d 189, 191 (Pa.Super. 2004). Critically, “[o]ur Supreme Court has directed

that Rule 313 be interpreted narrowly so as not to swallow the general rule

that only final orders are appealable as of right. To invoke the collateral order

doctrine, each of the three prongs identified in the rule’s definition must be

clearly satisfied.” J.M., 219 A.3d at 655, citing In re W.H., 25 A.3d 330, 335

(Pa.Super. 2011).

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Specifically, as to the first prong, we have stated,

Regarding the first prong, “an order is separable from the main cause of action if it is ‘entirely distinct from the underlying issue in the case’ and if it can be resolved without an analysis of the merits of the underlying dispute.’” [K.C. v. L.A., 633 Pa. 722, 728, 128 A.3d 774, 778 (2015)] (citing Commonwealth v. Blystone, 632 Pa. 260, 119 A.3d 306, 312 (2015)); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (“We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.”); Barak v. Karolizki, 196 A.3d 208, 218 (Pa. Super. 2018) (citing Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547, 552 (1999) (“The element of separability requires that the merits of the appeal must be resolvable ‘without analysis’ of the substantive claims in the underlying lawsuit.”). “Although [appellate courts] tolerate a degree of interrelatedness between merit issues and the question sought to be raised in the interlocutory appeal, the claim must nevertheless be conceptually distinct from the merits of plaintiff’s claim.” Blystone, 119 A.3d at 312 (citation and quotation marks omitted).

One of the complications with the collateral order doctrine as applied to dependency matters is what precisely constitutes the main cause of action. This Court has not been consistent with that determination. In [In re Tameka M., 534 A.2d 782 (Pa. Super. 1987)], which is a child welfare agency’s appeal from an order mandating that the agency reimburse the foster parents of a dependent child for preschool tuition, an en banc panel of this Court offered a narrow interpretation of the main cause of action. After reviewing the purposes behind the Juvenile Act, this Court concluded that “the main cause of action consists of a dependency determination and disposition,” a conclusion this Court believed was reinforced by the fact it is the

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dispositional order that constitutes a final, appealable order. Tameka M., 534 A.2d at 786. . . .

J.M., 219 A.3d at 655-656.

We have stated that a child must be adjudicated dependent for the trial

court to have the authority to enter an order finding aggravated

circumstances. See In the Interest of J.M., 166 A.3d 408, 421 (Pa.Super.

2017). This court has also held that the fact that an issue is a statutory matter

to be addressed by the trial court has no bearing on what constitutes the main

cause of action. In the Interest of J.M., 219 A.3d at 658 n.13.

In In re R.C., 945 A.2d 182, 184 (Pa.Super. 2008), this court stated

that an appeal from an order finding aggravated circumstances is “by

definition . . . an appeal as of right from a collateral [o]rder.” See In re R.C.,

945 A.2d at 184. In In re R.C., this court reasoned that, if we were to wait

to address the finding of aggravated circumstances until a petition for

involuntary termination of parental rights were filed, the appellant would

consequently lose the opportunity to challenge what is likely to be the very

basis for such a petition, his failure to have contact with his child for more

than six months. Id. Thus, we ruled that an order finding for aggravated

circumstances satisfies the second and third prongs of the collateral order test

because the appellant risks losing the opportunity to appeal the order. See

id. Accordingly, this court concluded that an order finding aggravated

circumstances is a collateral order and is immediately appealable as of right.

See In re R.C., 945 A.2d at 184. As the instant appeals stem from the orders

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finding aggravated circumstances, the orders are appealable as collateral

orders pursuant to Pa.R.A.P. 313.

Next, we address Father’s first two issues together: whether the court

erred in finding he was a perpetrator of abuse by omission as defined at

23 Pa.C.S.A. § 6303, as there is no evidence he was present when harm was

caused to any or all of the Children, or that he observed or was aware of any

harm being done to any or all of the Children. As the abuse alleged in the

instant appeal occurred in December of 2018, the current version of the Child

Protective Services Law (“CPSL”), 18 Pa.C.S.A. § 301 et seq., which became

immediately effective on June 12, 2018, controls our review.

Section 6303 of the CPSL defines child abuse, in relevant part, as

follows:

(b.1) 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.

....

(5) Creating a reasonable likelihood of bodily injury to a child through any recent actor failure to act.

23 Pa.C.S.A. § 6303(b.1) (footnote omitted).

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The CPSL refers to 18 Pa.C.S.A. § 302 with respect to the definitions of

intentionally, knowingly, and recklessly. 18 Pa.C.S.A. § 302(b) provides as

(1) A person acts intentionally with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(2) A person acts knowingly with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(3) A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the

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standard of conduct that a reasonable person would observe in the actor’s situation.

18 Pa.C.S.A. § 302(b).

Bodily injury is defined as “[i]mpairment of physical condition or

substantial pain.” 23 Pa.C.S.A. § 6303(a).

In In the Interest of J.R.W., 631 A.2d 1019, 1024 (Pa.Super. 1993),

we explained that, pursuant to the doctrine of incorporation, the Juvenile Act’s

definition of dependent child subsumed the definition of child abuse outlined

in the CPSL. Thus, we stated the two laws “must be applied together in the

resolution of child abuse complaints.” Id. at 1023. We reasoned:

The Legislature intended a detailed and specific definition of abuse to leave no doubt as to the capacity of the trial court, which in this case can only be the Juvenile Court, to make a finding and determination that a child has been abused. In its capacity as a trial judge, the Juvenile Court judge will look and must look to the above definition of child abuse in a case referred by the child protective service agency to the Court under petition for review of dependency when child abuse has been alleged.

Id.

The prima facie evidence rule set forth in the CPSL, 23 Pa.C.S.A.

§ 6381, provides, in part:

(d) Prima facie evidence of abuse.--Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist 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.

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23 Pa.C.S.A. § 6381.

The panel in J.R.W. indicated that the trial court correctly determined

that a finding of child abuse must be supported by clear and convincing

evidence, as the Legislature imposed such standard for the trial court to apply

in deciding abuse cases. J.R.W., 631 A.2d at 1025. Although the

prima facie evidence rule imposes a lesser standard to determine the identity

of the abuser, “[t]here is no conflict, constitutional or otherwise, with the clear

and convincing evidence standard imposed by the [Juvenile] Act to establish

child abuse. Id. at 1024; see also In re L.Z., 631 A.3d at 361, 111 A.3d at

1174.

We have defined clear and convincing evidence as that which is so

“clear, direct, weighty and convincing as to enable the trier of fact to come to

a clear conviction, without hesitance, of the truth of the precise facts in issue.”

In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (citation

omitted).

The Juvenile Act at 42 Pa.C.S.A. § 6302, in part, defines “Aggravated

circumstances” as:

Any of the following circumstances:

(2) The child or another child of the parent has been the victim of physical abuse resulting in serious bodily injury, sexual violence or aggravated physical neglect by a parent.

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42 Pa.C.S.A. § 6302. In turn, Section 6302 defines “serious bodily injury” as

“[b]odily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement or protracted loss or impairment of the

function of any bodily member or organ.” Id. Further, Section 6302 defines

“aggravated physical neglect” as “[a]ny omission in the care of a child which

results in a life-threatening condition or seriously impairs the child’s

functioning.” Id.

Regarding aggravated circumstances, 42 Pa.C.S.A. § 6341(c.1)

provides:

(c.1) Aggravated circumstances.--If the county agency or the child’s attorney alleges the existence of aggravated circumstances and the court determines that the child is dependent, the court shall also determine if aggravated circumstances exist. If the court finds from clear and convincing evidence that aggravated circumstances exist, the court shall determine whether or not reasonable efforts to prevent or eliminate the need for removing the child from the home or to preserve and reunify the family shall be made or continue to be made and schedule a hearing as required in section 6351(e)(3) (relating to disposition of dependent child).

42 Pa.C.S.A. § 6341(c.1).

Moreover, as we stated in In re R.P., 957 A.2d 1205 (Pa.Super. 2008),

The court need not find the existence of aggravated circumstances as to a particular party; rather, it merely must determine whether they are present in the case. This is so, as noted supra, because the

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focus is not on the rights of the [p]arents; instead, the children’s safety, permanence, and well-being take precedence.

Id. at 1219 (citation omitted).

In the present appeal, in finding the Children were the victims of child

abuse, the trial court reasoned:

Section 6303 defines “perpetrator” as “a person who has committed child abuse” which 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.A. § 6303(a); 23 Pa.C.S.A. § 6303(b.1)(1) and (5). Finally, “aggravated circumstances” include when “the child . . . has been the victim of physical abuse resulting in serious bodily injury, sexual violence, or aggravated physical neglect by the parent.” 42 Pa.C.S.A. § 6302.

During the February 18, 2020 hearing, the [m]other of the child, who had nothing to gain from her testimony, testified that Father either caused the [Children’s] bodily injuries or at the very least was aware of and saw the [Children’s] bodily injuries, particularly extensive bruising, and failed to act upon that knowledge. See February 18, 2020 Transcript at pages 95-107. The [Children’s] bodily injuries were so severe the doctors that examined the child could not catalog them in accordance with their standard practice. See February 27, 2019 Transcript at page 79, line 3 through page 80, line 13. The [m]other testified the [f]ather was present and saw the [Children] during the period the injuries occurred. See February 18, 2020 Transcript at page 96, lines 3-11. The [trial c]ourt specifically addresses its findings of fact and analysis at pages 117-119 of the February 18, 2020 hearing transcript.

The [c]ourt’s Aggravated Circumstances Order and the hearing transcript of February 18, 2020, which is

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considered the Opinion of the Court in support of said Order, should be affirmed and Father’s appeal denied. The Order and transcript provide a comprehensive analysis of the [c]ourt’s decisions and findings of fact, and are supported by the testimony from the hearing held on February 18, 2020, particularly the [m]other’s testimony. This [c]ourt will rely on the transcript and Order for this appeal.

Trial court opinion, 3/27/20 at 1-3.

After our careful review, we find that there was clear and convincing

evidence in the record to support the trial court’s finding of the existence of

aggravated circumstances and that Father was a perpetrator of abuse by

omission on the Children, who had previously been ruled victims of child

abuse. See 23 Pa.C.S.A. § 6303(b.1); 23 Pa.C.S.A. § 6381; 42 Pa.C.S.A.

§ 6302; 42 Pa.C.S.A. § 6341(c.1).

We are not persuaded by Father’s contention that the trial court erred

in concluding that Mother was credible and had nothing to gain by her

testimony, and in giving her testimony more credibility and weight than his

own testimony. We find it worthy of note that, in the previous dependency

proceeding before Judge McCoy that led to aggravated circumstances orders

against Father, Judge McCoy added that, although she suspected that Father

might have caused serious bodily injury to D.D.3, the court did not find such

proven at the hearings. (Orders, 3/25/19 at 3 (unpaginated), supra.)

Moreover, Judge McCoy found that, in light of the photographs that showed

the condition of the Children in the home on December 20, 2018, it was

unlikely that the conditions occurred after Father’s last time in the home

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approximately three weeks prior, and that Father was unaware of what was

going on in his home. (See Orders, 3/25/19 at 3 (unpaginated).)

Likewise, we find Father’s contention that Mother’s testimony at the

February 18, 2020 hearing was not credible and was biased against him, and

should not have been afforded any weight, lacks merit. In relation to the

October 8, 2019 CPS reports that were before the trial court, Judge Tira

indicated that he found Mother’s testimony to be very honest and very telling.

(Notes of testimony, 2/18/20 at 117-119.) Judge Tira found that, although

Father presented to the court as a loving father, Father would have been

“hands-on” with the Children in the past, and, at the least, would have known

that they had bruises and injuries. (Id.) Thus, significantly, both of the trial

court judges who heard the testimony concerning the injuries of the Children

believed that Father had more knowledge and involvement in the abuse of the

Children than he admitted in court, but found that there was insufficient

evidence upon which to conclude that he committed the abuse acts that

caused serious bodily injuries to the Children.

Given the evidence, the trial court’s factual findings and determination

that Father was not credible in asserting that he knew nothing about the abuse

because he was not present when it was committed, and did not observe it

and was unaware of it, are supported by the clear and convincing, competent

evidence in the record. Thus, we will not disturb the trial court’s findings of

fact and credibility assessments. In re R.J.T., 9 A.3d at 1190; see also

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In re L.Z., 111 A.3d at 1174. Moreover, as the trial court’s rejection of

Father’s claims that he was not a perpetrator of abuse of the Children by

omission because he was not present for any abuse, nor did not observe nor

was he aware of any abuse, is supported by the clear and convincing evidence

in the record, the trial court did not abuse its discretion in finding the existence

of aggravated circumstances as to Father. Id.; 42 Pa.C.S.A. § 6341(c.1). We

discern no abuse of the trial court’s discretion in finding that Father was the

perpetrator by omission of abuse on the Children, who were previously ruled

to be victims of child abuse.

Accordingly, we affirm the February 18, 2020 orders, and the

contemporaneous findings of the existence of aggravated circumstances.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/4/2020

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