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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: N.T., A            :     IN THE SUPERIOR COURT OF
 MINOR                                  :          PENNSYLVANIA
                                        :
                                        :
 APPEAL OF: S.T., MOTHER                :
                                        :
                                        :
                                        :
                                        :     No. 986 EDA 2018


          Appeal from the Dispositional Order, February 21, 2018,
           in the Court of Common Pleas of Philadelphia County,
             Family Court at No(s): CP-51-DP-0000329-2018,
                         FID: 51-FN-000308-2018.


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                    FILED FEBRUARY 14, 2019

      S.T. (Mother) appeals from the juvenile court’s finding that she

committed child abuse against her 12-year-old daughter, N.T. (Child). Mother

does not appeal the actual dependency adjudication, conceding that the Child

is without parental care and control.       Instead, she contends there was

insufficient evidence to support the court’s finding that she committed child

abuse, as defined by the Child Protective Services Law (CPSL), for failing to

prevent her former paramour from molesting the Child. See 23 Pa.C.S.A. §

6301(b.1). The Philadelphia Department of Human Services (DHS) agrees

with Mother and submitted to this panel an Application to Vacate Finding of

Child Abuse and Remand.        The Child, agreeing with DHS, joined the

Application.   However, Mother opposes the DHS Application, because she
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believes a remand is inappropriate. We vacate the child abuse finding, but we

do not remand.

      The pertinent facts are these:

      The Child (and a non-subject sibling) came to the attention of DHS in

November    2017   following   allegations   that   the   family’s   housing   was

uninhabitable. Mother agreed to move with her children into the home of the

Child’s Godmother until Mother could find suitable housing. A month later,

DHS learned that Mother moved out of the temporary home, leaving the

children with the Godmother. The Godmother reported that she was willing

to care for the children. Around the same time, but after Mother moved out,

DHS received a report, wherein the Child disclosed that Mother’s former

paramour touched and/or rubbed her back, legs, and buttocks. The allegation

specified that the touching occurred a year earlier in the bed where the Child,

Mother, and the former paramour all slept.

      DHS filed a dependency petition on February 14, 2018. The “type of

dependency,” i.e., the basis for the petition as indicated by the checked box,

was that the Child was without proper care or control. DHS did not select the

box indicating that child abuse was the pursued basis for dependency. The

petition did include, however, a reference to the Child’s disclosure.

      Mother states that, moments before the start of the ensuing

adjudication hearing, counsel for DHS handed to Mother a copy of the forensic

report. Although the report was dated two months prior, Mother avers that

this was the first time she learned such a report existed. The report contained

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the aforementioned disclosure, and the additional detail that the former

paramour had also attempted to touch the Child’s genitalia, but the Child

avoided the contact. The adjudication hearing began with a sidebar conference

involving previous discussions about possible stipulations to dependency. The

court inquired as the parties’ inability to reach an agreement.

      Mother’s counsel explained that she was just handed the forensic report,

and that if DHS intended to proceed on the child abuse allegation, she would

request that portion of the case be continued to a separate hearing as she

would need time to investigate. Counsel for DHS indicated that they were

prepared to proceed on the child abuse allegation. Mother objected, arguing

that she did not receive proper notice. She also objected on hearsay grounds,

because the witness for DHS, who was not the original investigator, testified

that she had to rely on the notes of the original investigator. The Child did

not testify.

      The court overruled the objections, accepting both the testimony and

the forensic report. Mother argued that she was not aware of the abuse, that

there was no co-sleeping arrangement, and that the former paramour left the

home when Mother left for work. However, Mother represented that she wants

to support her daughter and be fully cooperative. Still, her position was that

the evidence of the former paramour’s conduct was insufficient to show

Mother’s inaction constituted child abuse as defined by Section 6303(b.1) of

the CPSL.




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      The juvenile court disagreed, finding “Mother’s behavior [to be] reckless

and [that she] lacked insight and judgment in terms of the safety for [the

Child] in allowing the sleeping arrangements as [the Child] described. The

[juvenile court] believed Mother’s lack of judgment placed [the Child’s] safety

and well-being in harm’s way and made a finding of abuse.” See Trial Court

Opinion, 7/12/18, at *5 (not paginated) (citations to the transcript omitted).

      Mother filed this timely appeal. She presents seven questions involved,

all concerning the child abuse finding:

         1. Did the trial court commit an error of law and abuse of
            discretion by proceeding on a child abuse hearing where
            the Philadelphia Department of Human Services failed to
            provide adequate notice to Appellant that it intended to
            seek a finding of child abuse against her until after the
            adjudicatory hearing had already commenced?

         2. Did the trial court commit an error of law and abuse of
            discretion when it based its finding of child abuse under
            the Child Protective Services Law on hearsay statements,
            in violation of 23 Pa.C.S.A. § 6381(b), 42 Pa.C.S.A. §
            5986; the Juvenile Act; the Pennsylvania Rules of
            Evidence; and Appellant's right to due process?

         3. Did the trial court commit an error of law and abuse of
            direction when it based its finding of child abuse under
            the Child Protective Services Law on child hearsay
            statements in violation of 42 Pa.C.S.A. § 5986 where the
            court failed to find, in an in -camera hearing, that the
            time, content, and circumstances of the statement
            provided sufficient indicia of reliability?

         4. Did the trial court commit an error of law and abuse of
            direction when it based its finding of child abuse under
            the Child Protective Services Law on child hearsay
            statements in violation of 42 Pa.C.S.A. § 5986 where the
            court failed to determine whether the child was
            unavailable because requiring the child to testify would
            have resulted in the child suffering serious emotional

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            distress, as the Philadelphia Department of Human
            Services failed to provide the court with any competent
            evidence on which the court could have based such a
            finding, and where the perpetrator of the alleged abuse
            was not present in the courtroom?

         5. Did the trial court commit an error of law and abuse of
            discretion by finding child abuse where the Philadelphia
            Department of Human Services failed to prove by clear
            and convincing evidence that Appellant acted
            intentionally, knowingly, or recklessly, or that Appellant
            caused any harm or created a risk of harm to the Child,
            as required by 23 Pa.C.S.A. § 6303(b.1)?

         6. Did the trial court commit an error of law and abuse of
            discretion by finding child abuse where the Philadelphia
            Department of Human Services failed to prove by clear
            and convincing evidence that the child was abused, as
            defined by 23 Pa.C.S.A. § 6303(b.1)?

         7. Did the trial court commit an error of law and abuse of
            discretion where the Philadelphia Department of Human
            Services failed to prove by clear and convincing evidence
            that the child suffered sexual abuse or exploitation, or a
            likelihood of sexual abuse or exploitation, as defined by
            23 Pa.C.S.A. § 6303(b.1)?

      See Mother’s Brief at 7.

      Generally speaking, Mother’s contentions fall into three types of error:

due process (relating to the lack of notice); rules of evidence (relating to

hearsay); and sufficiency of the evidence. Because it disposes of the appeal,

we begin by reviewing Mother’s fifth issue, which challenges the sufficiency of

the evidence of the child abuse finding. We immediately observe that both

DHS and the Child concur that this abuse finding was not supported by the




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evidence.    They also ask us to vacate the juvenile court’s finding.        After

conducting an independent analysis, we agree.1

       This Court reviews a trial court’s finding of child abuse for an abuse of

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

Court must accept the            trial court’s findings of fact and credibility

determinations but is not required to defer to the trial court’s conclusions of

law. See id. (citation omitted).

       Instantly, the Philadelphia Department of Human Services (“DHS”) was

required to prove Mother abused Child by clear and convincing evidence. 42

Pa.C.S.A. § 6341(c.1).         Clear and convincing evidence requires that the

evidence be

          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 this issue. It is not
          necessary that the evidence be uncontradicted provided it
          carries a clear conviction to the mind or carries a clear
          conviction of its truth.

In Interest of J.M., 166 A.3d 408, 423 (Pa. Super. 2017).

____________________________________________


1 Even if the parties agree that a trial court erred, this Court must still conduct
an independent analysis to determine if the parties are correct. See, e.g.,
Commonwealth v. Williams, 2018 WL 5668251, *4 (Pa. Super. Nov. 1,
2018) (parties agreed at oral argument that sentence was illegal and this
Court conducted an independent analysis of the legality of the sentence);
Commonwealth v. Karl, 476 A.2d 908, 911 (Pa. Super. 1984) (parties
agreed that the evidence was insufficient to convict the defendant and this
Court conducted an independent analysis of the sufficiency of the evidence);
cf. Bancorp Mortgage Co v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994)
(Judicial precedents are presumptively correct and valuable to the legal
community as a whole. They are not merely the property of private litigants.)

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      The juvenile court found “Mother’s behavior [to be] reckless and [that

she] lacked insight and judgment in terms of the safety for [the Child] in

allowing the sleeping arrangements as [Child] described. See Trial Court

Opinion, 7/12/18, at *5 (not paginated) (citations to the transcript omitted).

The court “believed Mother’s lack of judgment placed [Child’s] safety and well-

being in harm’s way….” Id.       Beyond these conclusions, the court never

detailed its basis for finding Mother abused Child. Presumably, the juvenile

court determined that Mother “intentionally, knowingly, or recklessly…created

a likelihood of sexual abuse or exploitation of a child through …[her] failure to

act.” See 23 Pa.C.S.A. § 6303(b.1)(6).

      When viewing the evidence in a light most favorable to DHS, the

evidence showed that Mother slept in the same bed with Child and paramour.

The practice of a parent or guardian sleeping with a child is often referred to

as co-sleeping. While in bed, Mother’s paramour would touch Child’s buttocks

and rub her legs. See N.T., 2/21/18, at 22. He attempted to touch her vagina,

but Child avoided such contact. Id. Mother’s paramour also followed Child

when she left the bedroom. Id. Mother was unaware of this abuse and did

not learn of her paramour’s action until approximately one year later. Based

on this evidence, the trial court found that Mother’s recklessly created a

likelihood of abuse when she allowed Child to co-sleep while the paramour

was in bed and failed to prevent his illicit touching. Without more, we cannot

conclude that Mother’s actions or inactions constituted abuse. We vacate the

child abuse finding.

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      The parties correctly concluded that there was insufficient evidence to

support this finding, but they disagree on the resulting disposition.

Specifically, DHS and Child seek a remand.

      To the contrary, when evidence is insufficient to sustain a finding of child

abuse, the appropriate remedy is to vacate the finding of child abuse and not

remand the matter to the trial court. See In re L.Z., 91 A.3d 208, 221 (Pa.

Super. 2014) (en banc), rev’d in part on other grounds, 111 A.3d 1164 (Pa.

2015); see also In Interest of J.M., supra, 166 A.3d 408, 427 (Pa. Super.

2017); and see, e.g., Matter of Read, 693 A.2d 607 (Pa. Super. 1997)

appeal denied 723 A.2d 1025 (Pa. 1998). Based on our decision, we need

not address Mother’s other claims of error.

      Application to Vacate is deemed moot. Order reversed as to finding of

Mother’s child abuse. Jurisdiction relinquished.

      Judge Bowes joins this memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/19




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