J-S50018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: L.S.-A., A                :   IN THE SUPERIOR COURT OF
 MINOR                                         :        PENNSYLVANIA
                                               :
                                               :
 APPEAL OF: E.S., FATHER                       :
                                               :
                                               :
                                               :
                                               :   No. 686 EDA 2017

                Appeal from the Order Entered February 21, 2017
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-DP-0002122-2016


BEFORE:      PANELLA, MOULTON, and RANSOM, JJ.

MEMORANDUM BY MOULTON, J.:                             FILED OCTOBER 10, 2017

       E.S. (“Father”) appeals from the February 21, 2017 orders entered in

the Philadelphia County Court of Common Pleas granting the petition of the

Philadelphia Department of Human Services (“DHS”), adjudicating L.S.-A.

(“Child”) dependent pursuant to 42 Pa.C.S. § 6302, and finding aggravated

circumstances.1 We affirm.

       The trial court summarized the procedural and factual history as

follows:

           [L.S.-A] was born [i]n March [] 2016.

           On September 15, 2016, DHS received a General
           Protective Services (GPS) report alleging that [C]hild,
           L.S.[-A.,] was taken to Saint Christopher’s Hospital for

____________________________________________


      Mother has filed a separate appeal at Superior Court Docket No. 750
       1

EDA 2017, which we address by separate Memorandum.
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             Children (SCHC) with multiple injuries. Injuries to the
             child included: multi-layer retin[a]l hemorrhages, acute
             subdural hematoma, unexplained brain bleeding and a
             frenulum tear between his gums and lip believed to be
             caused by an inflicted injury of abusive head trauma.

             On September 16, 2016, DHS learned that the mother had
             had her parental rights terminated as to the child’s, L.S.[-
             A.]’s[,] three siblings.

             On September 27, 2016[,] the child was scheduled to be
             released from the hospital. DHS obtained an Order of
             Protective Custody (OPC) for L.S.[-A.][2] L.S.[-A.] was
             placed in a foster home through the Bethanna Agency.

             On September 30, 2016, a shelter care hearing was held
             before the Honorable Vincent W. Furlong. Judge Furlong
             lifted the OPC and ordered the temporary commitment of
             L.S.[-A.] to the care and custody of DHS.

Trial Court Opinion, 3/27/17, at 1-2 (unpaginated) (“1925(a) Op.”).

        On October 4, 2016, DHS filed a dependency petition. The trial court

conducted an adjudicatory hearing on January 3, 2017 and February 10,

2017.        DHS presented the testimony of Shanequa Lewis, DHS intake

investigative worker; Dr. Maria McColgan, child abuse pediatrician; L.A.,

maternal uncle; D.E.1, maternal uncle’s paramour; D.E.2, paramour’s

mother;3 and Melanie Davis, DHS intern.4 Mother and Father were present


____________________________________________


       In its dependency order, the trial court based its findings of fact on
        2

the dependency petition. Order of Adjudication and Disposition, 2/21/17.
The DHS petition states that Child was released and an OPC was obtained on
September 27, 2016. At the hearing, Ms. Lewis stated that this occurred on
September 26, 2016. N.T., 1/3/17, at 39.

        3   L.A., D.E.1, and D.E.2 resided together.




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and represented by counsel, but did not testify or present evidence. At the

conclusion of the hearing on February 10, 2017, subsequent to argument,

the court held its decision under advisement. Thereafter, by order entered

February 21, 2017, the court adjudicated Child dependent pursuant to 42

Pa.C.S. § 6302 as a child “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.”            Order of

Adjudication and Disposition – Child Dependent, 2/21/17; see also 42

Pa.C.S. § 6302 (definition of dependent child paragraph (1)).       Further, by

separate order also entered February 21, 2017, the court found aggravated

circumstances, finding that “Child or another child of the parent has been

the victim of physical abuse resulting in serious bodily injury, sexual violence

or aggravated neglect by the parent; proven as to Mother and Father.” 5,       6




(Footnote Continued) _______________________

      4  DHS also called Kina Sapp, the community umbrella agency case
manager to testify. Father and Mother objected, as her testimony was
irrelevant to the adjudication hearing. N.T., 2/10/17, at 91-92. The trial
court sustained the objection and informed DHS it could recall Ms. Sapp at
later proceedings if Child was adjudicated dependent. Id. at 92-93.

      5 The trial court does not reference the prior terminations of parental
rights as to Mother in its aggravated circumstances order. Aggravated
Circumstances Order, 2/21/17.

      6 Despite a finding of aggravated circumstances, the court ordered that
efforts were to continue to be made towards reunification. Aggravated
Circumstances Order, 2/21/17.




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Aggravated Circumstances Order, 2/21/17; see 42 Pa.C.S. § 6302 (defining

“aggravated circumstances” paragraph (2)).7

       On February 21, 2017, Father filed a timely notice of appeal, along

with a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).8 The trial court filed its opinion pursuant to

Pa.R.A.P. 1925(a) on March 27, 2017.9

       On appeal, Father raises the following issues for our review:


____________________________________________


       7The court’s orders finding Child dependent and finding aggravated
circumstances did not include a finding of “child abuse” pursuant to 23
Pa.C.S. § 6303(b.1). Although the trial court stated at the hearing that it
found “child abuse” existed, N.T., 2/21/17, at 5, the court did not include a
finding of child abuse under section 6303 in either its adjudication order or
its aggravated circumstances order. Order of Adjudication and Disposition –
Child Dependent, 2/21/17. Rather, the trial court found “physical abuse” as
an aggravating circumstance under section 6302. The parties in their briefs
and the trial court in its Rule 1925(a) opinion discuss section 6303.
However, because the trial court did not include a finding of child abuse
under section 6303 in its final orders, any challenge to such a finding cannot
be addressed on appeal. See Pa.R.A.P. 341 (an appeal may be taken from
an order entered as a final order).

       8Noting that counsel for Father failed to file a brief on or before May
15, 2017 as previously ordered, this Court, by order dated May 18, 2017,
remanded the matter to the trial court to determine whether counsel had
abandoned Father and take further action as necessary to protect Father’s
appellate rights. By order dated May 24, 2017, as counsel had filed a brief
on behalf of Father on May 23, 2017, this Court vacated the remand order.
By separate order dated May 24, 2017, this Court additionally denied as
moot counsel for Father’s motion for reconsideration as to the remand order.

      The trial court addressed both Mother’s and Father’s appeals in the
       9

same opinion.




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        1. Whether the Court erred in finding that Father either
           directly or by neglect caused the child’s injuries as DHS
           failed to prove by “clear and convincing evidence” that
           Father either directly or by neglect caused the child’s
           injuries, as required by 42 Pa.C.S.[] § 6302?

        2. Whether the Court erred in determining that aggravated
           circumstances exist against Father as DHS failed to
           prove by “clear and convincing evidence” that Father
           either directly or by neglect caused the child’s injuries,
           as required by 42 Pa.C.S.[] § 6302?

        3. Whether the adjudication of dependency should be
           reversed where the City of Philadelphia failed to prove
           by clear and convincing evidence that the child was
           presently without proper parental care and control?

Father’s Br. at 7 (unnecessary capitalization and emphasis removed).

     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); see also In re L.Z., 111 A.3d

1164, 1174 (Pa. 2015). “The trial court is free to believe all, part, or none

of the evidence presented, and is likewise free to make all credibility

determinations and resolve conflicts in the evidence.” In re M.G., 855 A.2d

68, 73-74 (Pa.Super. 2004) (quoting In re Diaz, 669 A.2d 372, 375

(Pa.Super. 1995)).




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       In his first and third issues, Father challenges the trial court’s finding

that Child was without proper care and control and the finding of

dependency.10      Father contests the trial court’s reliance on Dr. McColgan’s

testimony that Child’s injuries were “highly suspicious of, if not diagnostic

of[,] inflicted head trauma,” as well the prior terminations of Mother’s

parental rights to her other children.11 Father’s Br. at 19. Father argues,

            An adjudication of dependency must be supported by clear
            and convincing evidence, meaning that the evidence is “so
            clear, direct, weighty and convincing as to enable the trier
            of fact to come to a clear conviction, without hesitancy, of
            truth of the precise facts at issue.” Here, the adjudication
            of dependency cannot withstand such scrutiny.

Id. We disagree.

       This Court has stated:

            [T]o adjudicate a child dependent, a trial court must
            determine, by clear and convincing evidence, that the
            child:

                  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
____________________________________________


       10To the extent Father raises a claim under section 6303, we will not
review it, as the trial court did not enter a finding of “child abuse” under
section 6303. See supra n. 6.

        Review of the trial court’s opinion suggests that the termination of
       11

parental rights as to Mother’s other children was not a factor as to
dependency. 1925(a) Op. at 2-4 (unpaginated).



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              other custodian that places the health, safety
              or welfare of the child at risk.

        42 Pa.C.S.[] § 6302. “Clear and convincing” evidence has
        been defined as testimony that is “so clear, direct,
        weighty, and convincing as to enable the trier of facts to
        come to a clear conviction, without hesitancy, of the truth
        of the precise facts in issue.” In re C.R.S., 696 A.2d 840,
        843 (Pa.Super. 1997) (citation omitted).

        In accordance with the overarching purpose of the Juvenile
        Act “[t]o preserve the unity of the family wherever
        possible,” see 42 Pa.C.S.[] § 6301(b)(1), “a child will only
        be declared dependent when he is presently without
        proper parental care and when such care is not
        immediately available.” In re R.T., [] 592 A.2d 55, 57
        ([Pa.Super.] 1991) (citation omitted).     This Court has
        defined “proper parental care” as “that care which (1) is
        geared to the particularized needs of the child and (2) at a
        minimum, is likely to prevent serious injury to the child.”
        In re C.R.S., supra at 845 (citation omitted).

In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013).

     In adjudicating Child dependent, the trial court concluded:

        In the instant case, Dr. Maria McColgan, an expert in child
        protection and child abuse, testified that she examined
        L.S.[-A.] at SCHC on September 16, 2016. L.S.[-A.] was
        five months old. Dr. McColgan observed that the child was
        agitated and fussy. He had a frenulum tear which is a tear
        to the tissue between the lips and gums. Additionally, the
        child presented with a bulging fontanelle, the soft spot on
        top of the head. The bulging indicated that there was
        increase[d] pressure in the fluid around the brain or in the
        brain itself. After several tests including a [CAT] scan,
        MRI, and x-rays, the child was diagnosed with a subdural
        hemorrhage, bilateral retinal hemorrhages and a frenulum
        tear. Furthermore, the child required neurosurgery to
        relieve the pressure in his brain. Moreover, the child had a
        drain placed into his head. The drain was necessary to
        help alleviate the pressure to the brain and to enable the
        brain to heal.




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            Dr. McColgan testified that the injuries may have been the
            result of one incident or multiple incidents. There were
            indications that the child had symptoms prior to
            September 15, 2016. On September 10, 2016, the child
            was taken to Einstein [H]ospital because he was vomiting
            and not feeding well.[12]       Vomiting is a symptom of
            increased pressure in the head.           Dr. McColgan was
            concerned that the previous episode of vomiting was
            caused by the pressure to the brain since there was no
            other medical reason to explain it. At SCHC, the child
            continued to suffer episodes of vomiting. Dr. McColgan
            testified that additional testing was ordered to determine if
            there were any underlying medical reasons for the brain
            injury.    The results were negative – there were no
            underlying medical reasons for the brain injury.
            Additionally, the doctor testified that the injuries were NOT
            the result of accidental trauma. The doctor concluded that
            the injuries were the result of child abuse.

            The DHS investigative worker testified that on September
            15, 2016 the mother took the child to the home of his
            maternal uncle. The mother and father were working and
            the uncle’s paramour was babysitting. The maternal uncle,
            his paramour, and the paramour’s mother were present in
            the home. The mother placed the child on a bed. She
            informed the paramour that the child was asleep and the
            mother left.    Approximately ninety minutes later, the
            paramour went to feed the child. The child was crying,
            appeared limp and very pale. The paramedics arrived and
            transported the child to the hospital.           The DHS
            investigative   worker   stated    that    throughout  the
            investigation the paramour, the maternal uncle and the
            paramour’s mother were cooperative with her and
            consistent with their statements.        Furthermore, the
            paramour, the uncle and the paramour’s mother testified
            at the dependency hearing and their statements were
            consistent with those previously given to the DHS worker.

____________________________________________


       12There is conflicting evidence as to the date Child was taken to
Einstein Hospital; however, it appears it was somewhere between
September 10 and September 12.



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            The DHS worker testified that the mother and father made
            inconsistent statements throughout the investigation. The
            mother and father were inconsistent regarding the number
            of caregivers for the child, the timeline for the admission
            to Einstein Hospital and their recollection of events.
            Furthermore, the mother and the father denied having
            other children to the DHS social worker. The DHS worker
            learned that the father has adult children and the mother
            has three other children. Moreover, on June 11, 2012 the
            mother had her [parental] rights terminated for two of her
            children. On May 5, 2014, the mother had her parental
            rights terminated for the third child.[13]        The DHS
            investigation concluded that the perpetrators of the child
            abuse were the mother and father.

1925(a) Op. at 2-4 (unpaginated) (citations to record omitted).

       Upon careful review of the record, we conclude that the evidence

supports the trial court’s finding of a lack of parental care and control and

the finding of dependency. We conclude that the trial court did not abuse its

discretion when it adjudicated Child dependent

       Father also argues the trial court erred in finding aggravated

circumstances.        Father argues that the trial court erred by finding

aggravated circumstances for Father as a perpetrator of physical abuse,

suggesting that he took appropriate actions as necessary and that there is

no evidence of wrongdoing. Father’s Br. at 17-18. Again, we disagree.

       Pursuant to 42 Pa.C.S. § 6341(c.1):

            (c.1)    Aggravated circumstances.--If the county
            agency or the child’s attorney alleges the existence of
            aggravated circumstances and the court determines that
____________________________________________


       13   See DHS Exhibit 1.




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         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).

      “Aggravated circumstances” are defined by 42 Pa.C.S. § 6302, in part,

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.

                                    ...

         (5)      The parental rights of the parent have been
         involuntarily terminated with respect to a child of the
         parent.”

42 Pa.C.S. § 6302.    In turn, “serious bodily injury” is defined 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, “aggravated physical neglect”

is defined 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.

      Moreover, as we stated in In re R.P.: “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 . . .



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because the focus is not on the rights of the [p]arents; instead, the

children’s safety, permanence, and well-being take precedence.” 957 A.2d

1205, 1219 (Pa.Super. 2008).

     In supporting the finding of aggravated circumstances the trial court

stated “due to the extensive injuries and physical trauma to the child – the

Trial Court found that aggravated circumstances . . . exist to the mother and

father.” 1925(a) Op. at 5 (unpaginated).

     The evidence discussed above, including that the medical expert

opined that Child suffered “inflicted traumatic brain injury or physical

abuse,” N.T., 2/10/17, at 11, 36, requiring neurosurgery and the placement

of a drain to relieve the pressure on the brain, id. at 9, 11-12, supports a

finding of aggravated circumstances based upon physical abuse to Child.

See 42 Pa.C.S. § 6302.      We conclude the trial court did not abuse its

discretion in finding aggravated circumstances.

     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




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