J-S63001-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.G., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : APPEAL OF: N.H., MOTHER : No. 2119 EDA 2019
Appeal from the Order Dated July 8, 2019 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0002511-2017
BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.E.: FILED JANUARY 08, 2020
Appellant, N.H. (“Mother”), appeals from the order entered in the
Philadelphia County Court of Common Pleas that extended the dependency
adjudication of J.G. (“Child”) and found Mother was the perpetrator of child
abuse against Child. We affirm.
The relevant facts and procedural history of this case are as follows.
Mother and J.G. (“Father”) are the natural parents of Child, born in August
2017. On September 18, 2017, the Philadelphia Department of Human
Services (“DHS”) filed a dependency petition for Child based on a lack of
parental care and supervision. The court adjudicated Child dependent on
September 26, 2017, but permitted Child to remain at home with Mother and
Father. A few months later, on December 20, 2017, Child was admitted to St.
Christopher’s Hospital for Children based on his pediatrician’s concerns
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S63001-19
regarding Child’s failure to thrive. At four months old, Child was severely
underweight and malnourished. Child was also dirty and had multiple rib
fractures in various stages of healing. Due to Child’s condition, the hospital
referred Child to DHS.
On December 27, 2017, DHS filed an application for an order of
protective custody of Child, which the court subsequently granted. Following
a shelter care hearing on December 28, 2017, the court placed Child in foster
care upon his release from the hospital. DHS filed a second dependency
petition on January 18, 2018, requesting a finding of abuse against Mother
and Father. Following hearings on April 2, 2019, and July 8, 2019, the court
entered an order extending the dependency adjudication of Child and finding
Mother and Father had committed child abuse against Child. On July 25, 2019,
Mother filed a timely notice of appeal and a contemporaneous concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.1
Mother raises the following issue for our review:
WHETHER THE EVIDENCE WAS INSUFFICIENT FOR THE COURT TO FIND MOTHER AN INDICATED PERPETRATOR OF ABUSE BY CLEAR AND CONVINCING EVIDENCE WHERE THERE WAS NO EVIDENCE THAT MOTHER EITHER INTENTIONALLY OR RECKLESSLY CAUSED HER CHILD TO BE DEPRIVED OF FOOD AND CAUSED THE INJURIES PURSUANT TO 23 PA.C.S. [§] 6303?
(Mother’s Brief at 3).
1Father filed a separate appeal from the order, which is docketed at No. 2120 EDA 2019 (J-S63002-19).
-2- J-S63001-19
Our standard of review from an adjudication of dependency:
[R]equires 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 [trial] court’s inferences or conclusions of law. Accordingly, we review for an abuse of discretion.
In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (internal citation omitted). In
other words: “Although bound by the facts, we are not bound by the trial
court’s inferences, deductions, and conclusions therefrom; we must exercise
our independent judgment in reviewing the court’s determination, as opposed
to its findings of fact, and must order whatever right and justice dictate.” In
re D.A., 801 A.2d 614, 618 (Pa.Super. 2002) (en banc).
During the course of dependency proceedings, a trial court may find a
parent to be the perpetrator of child abuse as defined under the Child
Protective Services Law (“CPSL”). In Interest of J.M., 166 A.3d 408, 421-
22 (Pa.Super. 2017). The “CPSL does not create or include a separate action
for child abuse, and, under the Juvenile Act, a finding of abuse can only be
made as part of a dependency proceeding in which abuse is alleged.” In
Interest of R.T., 592 A.2d 55, 59 (Pa.Super. 1991). See also 23 Pa.C.S.A.
§ 6370(b)(2)(i) (stating that if county agency deems it appropriate in
dependency or delinquency proceeding, including instance in which alleged
perpetrator has access or poses threat to child, county agency may petition
court for finding of child abuse).
The CPSL defines “child abuse,” in relevant part, as follows:
-3- J-S63001-19
§ 6303. Definitions
(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 act or failure to act.
(7) Causing serious physical neglect of a child.
23 Pa.C.S.A. § 6303(b.1)(1),(5),(7). “Bodily injury” is defined as
“[i]mpairment of physical condition or substantial pain.” 23 Pa.C.S.A. §
6303(a). “Serious physical neglect” is defined as, inter alia, “[t]he failure to
provide a child with adequate essentials of life, including food, shelter, or
medical care” which “endangers a child’s life or health, threatens a child’s well-
being, causes bodily injury or impairs a child’s health, development, or
functioning.” Id.
The existence of “child abuse” pursuant to Section 6303(b.1) must be
proved by clear and convincing evidence. In re L.Z., 631 Pa. 343, 361, 111
A.3d 1164, 1174 (2015). Under certain circumstance, however, the identity
of an abuser may be established by prima facie evidence. Id. See also In
re L.V., 127 A.3d 831, 837-38 (Pa.Super. 2015).
-4- J-S63001-19
[E]vidence that a child suffered injury that would not ordinarily be sustained but for the acts or omissions of the parent or responsible person is sufficient to establish that the parent or responsible person perpetrated that abuse unless the parent or responsible person rebuts the presumption. The parent or responsible person may present evidence demonstrating that they did not inflict the abuse, potentially by testifying that they gave responsibility for the child to another person about whom they had no reason to fear or perhaps that the injuries were accidental rather than abusive. The evaluation of the validity of the presumption would then rest with the trial court evaluating the credibility of the prima facie evidence presented by the…agency and the rebuttal of the parent or responsible person.
In re L.Z., supra at 379, 111 A.3d at 1185 (internal footnote omitted).
Significantly, courts do not require a parent’s physical presence during
the injury for “abuse” to occur. Id. at 377, 111 A.3d at 1184. To the contrary,
our Supreme Court has stated, “parents are always responsible for their
children, absent extenuating circumstances….” Id. Moreover, “[t]he inclusion
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J-S63001-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.G., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : APPEAL OF: N.H., MOTHER : No. 2119 EDA 2019
Appeal from the Order Dated July 8, 2019 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0002511-2017
BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.E.: FILED JANUARY 08, 2020
Appellant, N.H. (“Mother”), appeals from the order entered in the
Philadelphia County Court of Common Pleas that extended the dependency
adjudication of J.G. (“Child”) and found Mother was the perpetrator of child
abuse against Child. We affirm.
The relevant facts and procedural history of this case are as follows.
Mother and J.G. (“Father”) are the natural parents of Child, born in August
2017. On September 18, 2017, the Philadelphia Department of Human
Services (“DHS”) filed a dependency petition for Child based on a lack of
parental care and supervision. The court adjudicated Child dependent on
September 26, 2017, but permitted Child to remain at home with Mother and
Father. A few months later, on December 20, 2017, Child was admitted to St.
Christopher’s Hospital for Children based on his pediatrician’s concerns
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S63001-19
regarding Child’s failure to thrive. At four months old, Child was severely
underweight and malnourished. Child was also dirty and had multiple rib
fractures in various stages of healing. Due to Child’s condition, the hospital
referred Child to DHS.
On December 27, 2017, DHS filed an application for an order of
protective custody of Child, which the court subsequently granted. Following
a shelter care hearing on December 28, 2017, the court placed Child in foster
care upon his release from the hospital. DHS filed a second dependency
petition on January 18, 2018, requesting a finding of abuse against Mother
and Father. Following hearings on April 2, 2019, and July 8, 2019, the court
entered an order extending the dependency adjudication of Child and finding
Mother and Father had committed child abuse against Child. On July 25, 2019,
Mother filed a timely notice of appeal and a contemporaneous concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.1
Mother raises the following issue for our review:
WHETHER THE EVIDENCE WAS INSUFFICIENT FOR THE COURT TO FIND MOTHER AN INDICATED PERPETRATOR OF ABUSE BY CLEAR AND CONVINCING EVIDENCE WHERE THERE WAS NO EVIDENCE THAT MOTHER EITHER INTENTIONALLY OR RECKLESSLY CAUSED HER CHILD TO BE DEPRIVED OF FOOD AND CAUSED THE INJURIES PURSUANT TO 23 PA.C.S. [§] 6303?
(Mother’s Brief at 3).
1Father filed a separate appeal from the order, which is docketed at No. 2120 EDA 2019 (J-S63002-19).
-2- J-S63001-19
Our standard of review from an adjudication of dependency:
[R]equires 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 [trial] court’s inferences or conclusions of law. Accordingly, we review for an abuse of discretion.
In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (internal citation omitted). In
other words: “Although bound by the facts, we are not bound by the trial
court’s inferences, deductions, and conclusions therefrom; we must exercise
our independent judgment in reviewing the court’s determination, as opposed
to its findings of fact, and must order whatever right and justice dictate.” In
re D.A., 801 A.2d 614, 618 (Pa.Super. 2002) (en banc).
During the course of dependency proceedings, a trial court may find a
parent to be the perpetrator of child abuse as defined under the Child
Protective Services Law (“CPSL”). In Interest of J.M., 166 A.3d 408, 421-
22 (Pa.Super. 2017). The “CPSL does not create or include a separate action
for child abuse, and, under the Juvenile Act, a finding of abuse can only be
made as part of a dependency proceeding in which abuse is alleged.” In
Interest of R.T., 592 A.2d 55, 59 (Pa.Super. 1991). See also 23 Pa.C.S.A.
§ 6370(b)(2)(i) (stating that if county agency deems it appropriate in
dependency or delinquency proceeding, including instance in which alleged
perpetrator has access or poses threat to child, county agency may petition
court for finding of child abuse).
The CPSL defines “child abuse,” in relevant part, as follows:
-3- J-S63001-19
§ 6303. Definitions
(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 act or failure to act.
(7) Causing serious physical neglect of a child.
23 Pa.C.S.A. § 6303(b.1)(1),(5),(7). “Bodily injury” is defined as
“[i]mpairment of physical condition or substantial pain.” 23 Pa.C.S.A. §
6303(a). “Serious physical neglect” is defined as, inter alia, “[t]he failure to
provide a child with adequate essentials of life, including food, shelter, or
medical care” which “endangers a child’s life or health, threatens a child’s well-
being, causes bodily injury or impairs a child’s health, development, or
functioning.” Id.
The existence of “child abuse” pursuant to Section 6303(b.1) must be
proved by clear and convincing evidence. In re L.Z., 631 Pa. 343, 361, 111
A.3d 1164, 1174 (2015). Under certain circumstance, however, the identity
of an abuser may be established by prima facie evidence. Id. See also In
re L.V., 127 A.3d 831, 837-38 (Pa.Super. 2015).
-4- J-S63001-19
[E]vidence that a child suffered injury that would not ordinarily be sustained but for the acts or omissions of the parent or responsible person is sufficient to establish that the parent or responsible person perpetrated that abuse unless the parent or responsible person rebuts the presumption. The parent or responsible person may present evidence demonstrating that they did not inflict the abuse, potentially by testifying that they gave responsibility for the child to another person about whom they had no reason to fear or perhaps that the injuries were accidental rather than abusive. The evaluation of the validity of the presumption would then rest with the trial court evaluating the credibility of the prima facie evidence presented by the…agency and the rebuttal of the parent or responsible person.
In re L.Z., supra at 379, 111 A.3d at 1185 (internal footnote omitted).
Significantly, courts do not require a parent’s physical presence during
the injury for “abuse” to occur. Id. at 377, 111 A.3d at 1184. To the contrary,
our Supreme Court has stated, “parents are always responsible for their
children, absent extenuating circumstances….” Id. Moreover, “[t]he inclusion
of ‘omissions’ encompasses situations where the parent or responsible person
is not present at the time of the injury but is nonetheless responsible due
to…her failure to provide protection for the child.” Id.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Vincent
Furlong, we conclude Mother’s issue merits no relief. The trial court
comprehensively discusses and properly disposes of the question presented.
(See Trial Court Opinion, filed August 28, 2019, at 3-6) (finding: Dr. Marita
Lind, Director of Child Protection Program at St. Christopher’s Hospital and
expert in child abuse, testified that Child was underweight because Child was
-5- J-S63001-19
not being fed properly; Dr. Lind additionally explained there were no medical
explanations for Child’s fractured ribs other than compression, squeezing, or
direct blows to Child’s body; Mother admitted to DHS representative that she
had “trouble” mixing Child’s formula; Mother offered no explanation for Child’s
fractured ribs; court found credible testimony of child abuse expert and DHS
representatives; Mother has five children and should have known how to mix
Child’s formula correctly; Mother also should have noticed Child’s obvious
discomfort from fractured ribs; furthermore, Child recovered after placement
in foster care; evidence was sufficient to show Mother was perpetrator of
abuse based on her acts or omissions). The record supports the court’s
decision; therefore, we see no reason to disturb it. Accordingly, we affirm
based on the trial court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/8/20
-6- Circulated 12/23/2019 02:15 PM
THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA PHILADELPHIA COUNTY COURT OF COMMON PLEAS
IN THE INTEREST OF: FAMILY COURT DIVSION r-.;,,:::= J.G, a Minor CP-51-DP-0002511-2017 .,, '"o D.O.B. o'8 /:» l"t- FID # 51-FN-001198-201&o � 2119 EDA 2019 o ,:;-, -u N Appellant N.H., Mother ;ir:; 0::,
O v -·J 3� OPINION :r:
PROCEDURAL HISTORY
On April 2, 2019 and July 8, 2019, the trial court held hearings to determine
if Mother was a perpetrator of child abuse as to Child J .G. ("Child,,). Mother was
present at the hearing and represented by counsel. After extensive testimony, the
court made a finding of child abuse versus Mother on July 8, 2019. A Notice of
Appeal was filed by Mother on July 25, 2019.
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
Mother's Statement of Matters Complained of on Appeal is set forth below
in verbatim:
1. The evidence was insufficient for the court to find mother an indicated perpetrator of abuse by· clear and convincing evidence where there was no evidence that Mother either intentionally or recklessly caused her child to be deprived of food caused the injuries to the child pursuant to 23 Pa.C.S. 6303.
FINDINGS OF FACT
On December 10, 2017, following an examination by his pediatrician, Child
was referred to St. Christopher's Hospital for Children and a subsequent report was
made to the Philadelphia Department of Human Services ("DHS") based on
observations of Child's failure to thrive. Child was also foul smelling and dirty.
Page 1 of 6 •,
(Statement of Narrative-DRS Exhibit 6). DHS issued a Child Protective Services
("CPS") Report which indicated that Mother was not properly mixing Child's
formula causing the Child to be severely underweight and malnourished. Upon
further medical examination, it was determined that Child had multiple fractured
ribs. Based upon these findings, Child was hospitalized for several of weeks during
which Child gained significant weight and Child's fractures healed. Child was
placed in a foster care home and since placement has never incurred a fractured
bone and is well nourished and thriving. Neither Mother nor Father offered a
satisfactory explanation for Child's fractured ribs or why Child was severely
underweight. After extensive testimony, the court made a finding of child abuse
versus Mother on July 8, 2019. A Notice of Appeal was filed by Mother on July
25, 2019.
LEGAL ANALYSIS
In order for the court to determine if a parent is a perpetrator of child
abuse pursuant to the Child Protective Services Law ("CPSL"), DHS, as the
moving party, must demonstrate by clear and convincing evidence that the
statute is satisfied. Since proof of child abuse is often circumstantial, the
CPSL permits evidence that would normally be barred tinder the Juvenile
Act. Evidence that a child has suffered abuse of such a nature as would
ordinarily not be sustained or exist except by reason of the acts or omissions
of the parents shall be prima facie evidence of child abuse by the parents 1•
1 23 Pa.C.S.A. § 6381 General rule. -In addition to the rules of evidence provided under 42 Pa.C.S. Ch. 63 (relating to juvenile matters), the rules of evidence in this section shall govern in child abuse proceedings in court or Page 2 of 6 I. The trial court did not commit reversible error when it made a finding of child abuse against Mother
During the hearing on April 2, 2019. the' trial court heard testimony
from Dr. Marita Lind, the Director of the Child Protection Program at St.
Christopher's Hospital for Children in Philadelphia and an expert in child
abuse (N.T. April 2, 2019 Page 7). Dr. Lind concluded that the Child was
underweight due to not being fed properly. This appeared unusual to Dr. Lind
since this was Mother's fifth child. (N.T. April 2, 2019 Pages 30-32). Dr.
Lind indicated that there was probably no other medical cause for Child being
underweight and noted ( 1) Child's weight increased dramatically as result of
proper feeding; (2) there was no indication that the Child was born unhealthy;
and (3) the Child had adequate calcium and Vitamin D levels and had no
symptoms of acid reflux. (N.T. April 2, 2019 Pages 16-21). Dr. Lind also
indicated that the Child's bone density was normal. (N.T. April 2, 2019 Page
in any department administrative hearing pursuant to section 6341 (relating to amendment or expunction of information). (b) Reports of unavailable persons. -Whenever a person required to report under this chapter is unavailable due to death or removal from the jurisdiction of the court, the written report of that person shall be admissible in evidence in any proceedings arising out of child abuse other than proceedings undor Title 18 (relating to crimes and offenses). Any hearsay contained in the reports shall be given such weight, if any, as the court determines to be appropriate under all of the circumstances. However, any hearsay contained in a written report shall not of itself be sufficient to support an adjudication based on abuse. (c) Privileged communications.-Except for privileged communications between a lawyer and a client and between a minister and a penitent, a privilege of confidential communication between husband and wife or between any professional person, including, but not limited to, physicians, psychologists, counselors, employees of hospitals, clinics, day-care centers and schools and their patients or clients, shall not constitute grounds for excluding evidence at any proceeding regarding child abuse or the cause of child abuse. (d) Prima facie evidence of abuse. -Bvidence 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. (e) Child victims and witnesses. -In addition to the provisions of this section, any consideration afforded to a child victim or witness pursuant to 42 Ph.C. 's. Ch. 59 Such. D (relating to child victims and witnesses) 1 in any prosecution or adjudication shall be afforded to a child in child abuse proceedings in court or in any department administrative hearing pursuant to section 6341.
Page 3 of 6 36). Additionally. there was no medical explanation for the Child's fractured
ribs other than compression, squeezing or direct blows to the Child's body.
(N.T. April 2, 2019 Pages 28-29). Dr. Lind testified that she expected that
someone familiar with the Child would have noticed the Child experienced
discomfort from the rib fractures because Dr. Lind noticed the Child's
discomfort during her initial examination of the Child.
During the hearing on July 8, 2019, Ms. Amanda Aquila, a DRS
Representative, testified that she interviewed the Mother who indicated that
she was having trouble mixing the Child's formula and that she and Father
were providing proper care for the Child. (N.T. July 8, 2019 Page 13-14). Ms.
Aquila also testified that she interviewed Father and he was not cooperative
during the interview. Both parents indicated that other family members also
took care of the Child at times. The Parents, however, could offer no
explanation for the Child's fractured ribs. Ms. Aquila testified that she
believed that it happened during a period of time when Mother and Father
and possibly other family members had access to the Child. Mr. Francis
James, the DHS Representative, testified that Child experienced no fractured
bones after being placed in foster care.
The testimony of Dr. Lind and Ms. Aquila and Mr. James was
accorded great weight by the trial court. Special deference was given to Dr.
Lind's conclusion that the rib fractures were not accidental and that Child's
weight gain was immediate and significant upon being properly fed. In the
instant case, Mother is the parent of :five Children and Mother should have
Page4 of 6 been expected to properly feed Child and notice the Child's discomfort from
fractured ribs. Likewise, Father was a caregiver who spent entire days with
the Child, who also should have properly fed the Child and noticed the
Child's discomfort. Although no person ever admitted to striking the Child
or depriving the Child of food, the Child's fractured ribs, poor health and
poor hygiene and immediate recovery when placed in foster care were
indications of child abuse based upon the parents' acts or omissions.
CONCLUSION
After review of the testimony and supporting documentation, the trial
court finds it determined correctly that there be a finding of child abuse versus
Mother. For the foregoing reasons, this court requests that the July 8, 2019
Order be AFFIRMED.
BYTHECOURT
Date: 8 . 'J-'8 ,. 11
Page S of 6 ' . CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above-captioned
Opinion was filed on the undersigned date in the Court of Common Pleas of
Philadelphia County Family Court Division and served by first class mail
upon the following:
Paul McLaughlin, Esquire Philadelphia Law Department One Parkway 1515 Arch Street-l S" Floor Philadelphia, PA 19102 Attorney for DHS
Mary Beth Cherniak, Esquire P.O. Box 6972 Wyomissing, PA 19610
Ruth Mabel Brice, Esquire 1800 JFK Blvd Suite 300 Philadelphia, PA
Jeffrey C. Bruch, Esquire 1515 Market Street Suite 1200 Philadelphia, PA 19102
Date: 8 _ J. � .- / r
Page 6 of 6