In the Int. of: S.V., Appeal of: S.V.

• Court: Superior Court of Pennsylvania
• Decided: August 2, 2023
• Docket: 3107 EDA 2022
• Status: Unpublished

Opinion

J-A12032-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: S.V., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: S.V., MINOR : : : : : No. 3107 EDA 2022

Appeal from the Order Entered November 14, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000235-2022

BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 2, 2023

S.V. (“Child”) appeals from the trial court’s order adjudicating him

dependent, to the extent that the order did not include a finding of child abuse

against his parents, C.K. (“Mother”) and P.V. (“Father”). We vacate and

remand with instructions.

In March 2022, the Philadelphia Department of Human Services (“DHS”)

received a Child Protective Services (“CPS”) report alleging that Child, 11

weeks old, was brought to the Emergency Room at St. Christopher’s Hospital

for Children with symptoms of diarrhea and vomiting. DHS Exh. 1 at p.5. The

doctors noticed a “gaze deviation” and conducted a neurology MRI, which

showed multiple hemorrhages around Child’s brain. Id. A consult was

completed with the neurology surgery unit and the findings were of non-

accidental trauma. Id. Child was then admitted to the Intensive Care Unit. Id. J-A12032-23

On March 9, 2022, DHS obtained an Order of Protective Custody and placed

Child with his paternal uncle after he was released from the hospital.

DHS filed a dependency petition on March 15, 2022. An evidentiary

hearing on the petition was held on November 14, 2022. DHS presented the

testimony of Dr. Norrell Atkinson, a child abuse pediatrician and Director of

the Child Protection Program at St. Christopher’s. N.T., 11/14/22, at 7. She

testified as both an expert witness in child abuse and as a fact witness based

on her evaluation of Child at the hospital.1 She stated that Child had presented

to the hospital with “concerns for abnormal eye movement and kind of jerking

of extremities, which are clinically concerning for seizure activity.” Id. at 10.

Dr. Atkinson noted that the MRI revealed several areas of bleeding on Child’s

brain, as well as retinal hemorrhaging. Id. at 10-11. Child was also having

seizures, which indicated a significant head injury. Id. at 22. Mother and

Father offered no explanation for the cause of Child’s injuries. Id. at 19-20.

Dr. Atkinson opined that Child’s injuries were new and would have been

sustained in the last 24 to 48 hours. Id. at 30. She also stated that additional

testing and a skeletal survey was done, which yielded no indication of any

bleeding disorders or any other medical conditions. Id. at 23. Child also had

no underlying medical conditions that would have caused abnormal bleeding.

Id. at 31. Dr. Atkinson determined that Child’s injuries were caused by an

external force from either “[s]ome type of full head rotational injury or ____________________________________________

1 The parties stipulated to Dr. Atkinson’s expertise as a child abuse pediatrician. N.T. at 6.

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acceleration/deceleration force to the head” or “some type of blunt force

impact.” Id. at 29. She stated that these types of head injuries could not have

been sustained during normal caretaking activity. Id. at 24. Rather, this type

of injury would have been caused by shaking, significant falls from heights, or

car accidents. Id. at 24, 29. Dr. Atkinson concluded that Child suffered

abusive head trauma. Id. at 11, 23, 27-28.

Dr. Atkinson spoke to Mother and Father separately at the hospital. Id.

at 14. Mother reported that Child began vomiting two days prior to Dr.

Atkinson’s examination and then began having abnormal eye and body

movements. Id. at 15. Neither parent reported a car accident, fall, or any

other accident. Id. at 30. Mother and Father told Dr. Atkinson that Child had

been solely in their care in the days leading up his hospitalization. Id. They

explained that Mother primarily cared for Child during the daytime and Father

cared for Child at night. Id. at 17-18. Paternal grandmother also would

sometimes assist in Child’s care at their house, but she was never alone with

Child. Id. at 17, 30. Father and Mother also had three other children living at

the house – ages 7, 8, and 13 – but the parents stated that they would

supervise their children when they would hold Child. Id. at 20. Dr. Atkinson

stated that it would be “unlikely” for a child under the age of 12 to inflict the

type of injuries that were found on Child. Id. at 25.

DHS next presented Portia Henderson, DHS investigator. Henderson

testified the family had no prior history with DHS. Id. at 42. She stated that

as part of her investigation, she visited Child at the hospital and went to the

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family’s home. Id. Mother and Father told Henderson that no one watched

Child except for themselves and paternal grandmother. Id. at 46, 49.

Henderson testified that Mother and Father were unable to provide any

explanation as to how Child’s injuries occurred, but they understood the

severity of Child’s injuries. Id. at 46-47. They told Henderson that Mother

generally cared for Child during the day and Father cared for him at night, and

that paternal grandmother sometimes came over to assist. Id. at 48. The

parents said that paternal grandmother came to assist recently because

Father had surgery and Mother was not feeling well. Id. The parents stated

that paternal grandmother was never alone with Child. Id.

Mother and Father informed Henderson that the other children in the

house were not allowed to hold Child without their supervision. Id. at 46, 51.

Henderson interviewed each child separately. Id. 46, 56. Henderson stated

that the seven-year-old and eight-year-old children told her that they do not

pick up Child and the 13-year-old child had no interest in being involved with

Child because he was heavily into his video games. Id. at 47, 56. Henderson

also testified that Mother and Father did not mention that they had adult

children, but she later learned of this information. Id. at 49-50. The adult

children did not live at the house. Id. at 50.

Henderson concluded that the CPS report was indicated, which meant

“there was a finding of suspected child abuse because of the significant injuries

that [Child] suffered and the fact that the parents couldn’t provide an

explanation for” the injuries. Id. at 54-55. She also noted that there was a

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criminal investigation pending against Mother and Father stemming from

Child’s injuries. Id. at 64

Mother and Father did not testify at the adjudicatory hearing or present

any evidence on their behalf.

The trial court adjudicated Child dependent because of Mother and

Father’s present inability to care for Child due to a stay-away order2 against

parents as to Child because of the related criminal proceedings. See Trial

Court Opinion, filed 2/3/23, at 4. However, the court declined DHS’s request

to make a finding of child abuse against the parents. Id. Child, through his

counsel, filed the instant appeal.3

Child raises the following issues:

1. Did clear, convincing, and competent evidence establish that [Child] suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of his parents, constituting prima facie evidence of abuse by Mother and Father pursuant to 23 Pa.C.S.[A.] §§ 6303(b.1) and 6381(d)?

2. Did the trial court err as a matter of law and abuse its discretion in failing to find [Child]’s parents perpetrators of child abuse, where clear and convincing evidence proved that parents were [Child]’s primary caretakers when he was a victim of child abuse, and they failed to rebut the presumption under 23 Pa.C.S.[A.] § 6381(d) because they presented no evidence?

Child’s Br. at 6 (suggested answers and answers of trial court omitted).

____________________________________________

2 See N.T. at 72, 74.

3 DHS also filed a brief arguing that the court erred by declining to find child

abuse against Mother and Father.

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We review orders entered in dependency cases for an abuse of

discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). We must accept the

findings of fact and credibility determinations if they are supported by the

record, but we are not required to accept the trial court’s inferences or

conclusions of law. Id.

Child does not contest his dependency adjudication, but rather argues

that the court abused its discretion in declining to make a finding of child

abuse against Mother and Father pursuant to the Child Protective Services

Law (“CPSL”).4 We address Child’s two issues together since they are related.

“Although dependency proceedings are governed by the Juvenile Act,

the Child Protective Services Law controls determinations regarding findings

of child abuse, which the juvenile courts must find by clear and convincing

evidence.” Interest of G.R., 282 A.3d 376, 380 (Pa.Super. 2022) (cleaned

up) (footnotes omitted). Clear and convincing evidence means “evidence that

is so clear, direct, weighty, and convincing as to enable the trier of fact to

come to a clear conviction, without hesitancy, of the truth of the precise facts

in issue.” Interest of A.C., 237 A.3d 553, 558 (Pa.Super. 2020) (citation

omitted).

As part of an adjudication of dependency, “a court may find a parent to

be the perpetrator of child abuse,” as defined by the CPSL. Interest of S.L.,

202 A.3d 723, 728 (Pa.Super. 2019) (citation omitted). The CPSL defines

4 See 23 Pa.C.S.A. §§ 6301-6388.

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“child abuse,” in relevant part as “intentionally, knowingly or recklessly. . .

[c]ausing bodily injury to a child through any recent act or failure to act.” 23

Pa.C.S.A. § 6303(b.1)(1).

In certain cases, pursuant to section 6381(d) of the CPSL, the identity

of the abuser need only be established through prima facie evidence. Interest

of A.C., 237 A.3d at 558. Prima facie evidence is “[s]uch evidence as, in the

judgment of the law, is sufficient to establish a given fact, or the group or

chain of facts constituting the party’s claim or defense, and which if not

rebutted or contradicted, will remain sufficient.” In re L.Z., 111 A.3d 1164,

1185 (Pa. 2015) (citation omitted). Section 6381(d) creates an evidentiary

presumption and states:

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.

23 Pa.C.S.A. § 6381(d) (emphasis added).

This presumption under section 6381(d) was established “to avoid the

evidentiary conundrum where the existence of abuse is rather easily proven

but the court is unable to assign responsibility for the heinous act among the

responsible adults[.]” Interest of A.C., 237 A.3d at 559 (citation and internal

quotations omitted). Indeed, “when a child is in the care of multiple parents

or other persons responsible for care, those individuals are accountable for

the care and protection of the child whether they actually inflicted the injury

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or failed in their duty to protect the child.” In re L.Z., 111 A.3d at 1185.

Therefore, section 6381(d) “carve[s] out a very limited exception to [] more

stringent evidentiary standards, allowing for the possibility of identifying the

perpetrator of abuse based on prima facie evidence in cases where the abuse

is ‘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.’” Id. at 1184-85 (quoting 23 Pa.C.S.A. § 6381(d)).

Thus, “evidence that a child suffered injury that would not ordinarily be

sustained but by 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.” Id.

at 1185.

To rebut section 6381(d)’s 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.” Id. At that point, “[t]he

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.” Id. Out-of-

court statements made by parents to a caseworker or treating doctor are not

considered rebuttal evidence since they are neither under oath nor subject to

cross-examination. See id. at 1186; Interest of G.R., 282 A.3d at 385.

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In sum, once the moving party establishes the existence of child abuse

by clear and convincing evidence “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,” see 23 Pa.C.S.A. §

6381(d), the burden then shifts to the parents or other responsible person to

rebut the presumption that they perpetrated the abuse.

Here, the trial court found that DHS did not present clear and convincing

evidence of child abuse. Trial Ct. Op. at 6. The court found that there were

numerous caretakers for Child at the time of the incident, including Mother,

Father, and paternal grandmother. Id. It also noted that there were adult

children who had access to the home. Id. at 7. The court found that although

the parents stated that none of their other minor children were permitted to

be around Child without parental supervision, it was likely that the other

children, including the 13-year-old “of unknown size,” were assisting in some

caretaking and were near Child absent supervision. Id. at 6, 7. The court

emphasized that there was no family history of abuse or neglect and there

was no evidence of more than one incident giving rise to Child’s injuries. Id.

at 6. The court also noted that Henderson testified that Mother and Father told

her that they did not know how Child’s injuries occurred and Henderson found

their statements to be credible. Id. at 7. The court stated it could not conclude

whether Child’s injuries “were the result of child abuse . . . or the outcome of

an innocent accident unknown to Mother and Father.” Id. at 6-7.

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Child argues that the court applied the wrong standard in denying DHS’s

request for a finding of child abuse. Child’s Br. at 27. He asserts that the court

improperly “identified its lack of certainty as to the various particulars of the

surrounding circumstances as the basis to deny DHS’s petition.” Id. at 31.

Child contends that the court should have found that DHS presented prima

facie evidence of child abuse when it presented medical evidence of

unexplained, inflicted, and non-accidental injuries to Child that would not have

occurred but for the acts or omissions of his caregivers. Id. at 22. Thus, since

DHS presented prima facie evidence of child abuse, Child argues that section

6318(d)’s presumption that Mother and Father were responsible for Child’s

injuries should have been triggered and the burden then shifted to the parents

to rebut the presumption. Id. at 22-23. Child argues that since Mother and

Father did not present any evidence, they failed to rebut the presumption that

they were the perpetrators of the abuse. Id. at 23.

Upon review, we conclude the trial court erred in declining to make a

finding of child abuse. The court declined to find child abuse because of the

uncertainty as to certain circumstances surrounding Child’s injuries. However,

this logic is contrary to the dictates of section 6318 and is the precise situation

that section 6318 sought to address. At the adjudicatory hearing, DHS

presented uncontroverted medical evidence that Child, who was 11 weeks old

at the relevant time, suffered injuries that were the result of non-accidental

trauma that occurred while Mother and Father were responsible for Child. Dr.

Atkinson concluded that Child’s injuries were the result of abusive head

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trauma. N.T. at 11, 27-28. She testified that Child suffered from bleeding on

the brain and retinal hemorrhaging. Id. at 10-11. Child also was having

seizures, which indicated a significant brain injury. Id. at 22. Dr. Atkinson

stated that Child’s injuries were caused by an external inflicted force or blunt

force impact to the head and were not the type of injuries that would have

been sustained in normal caretaking. Id. at 24, 29. The injuries were new and

were sustained 24 to 48 hours prior to Child’s hospital admission. Id. at 30.

Further, Child had no underlying medical conditions or bleeding disorders that

would have caused abnormal bleeding. Id. at 23, 31. Thus, DHS sustained its

burden of proving by clear and convincing evidence that Child suffered from

abuse.

Under these facts, the court should have applied the evidentiary

presumption under section 6381(d), which establishes a prima facie case of

abuse by the persons who were responsible for the child when the abuse

occurred, which in this case were Child’s parents. The burden then shifted to

Mother and Father to rebut the presumption. See In re L.Z., 111 A.3d at

1185. Mother and Father did not present any rebuttal evidence – testimony

or otherwise – at the hearing. Thus, Mother and Father failed to rebut section

6381(d)’s presumption. As a result, the trial court erred as a matter of law by

failing to find Mother and Father the perpetrators of Child’s abuse pursuant to

section 6381(d). See Interest of G.R., 282 A.3d at 385. Therefore, we vacate

the trial court’s order and remand for the trial court to re-enter the order and

include a finding that Child is the victim of abuse by Mother and Father.

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Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/02/2023

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