J. S11014/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: I.L., A MINOR      :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
APPEAL OF: J.L., FATHER                :
                                       :         No. 1457 EDA 2015


               Appeal from the Order Entered April 8, 2015,
           in the Court of Common Pleas of Philadelphia County
        Family Court Division at Nos. DP# CP-51-DP-0000141-2015,
                          FN# 51-FN-002667-2014



IN THE INTEREST OF: I.S., A MINOR      :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
APPEAL OF: J.L., FATHER                :
                                       :         No. 1459 EDA 2015


               Appeal from the Order Entered April 8, 2015,
           in the Court of Common Pleas of Philadelphia County
        Family Court Division at Nos. DP# CP-51-DP-0002926-2014,
                          FN# 51-FN-002667-2014


BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MAY 09, 2016

     J.L. (“Father” or “Putative Father”) appeals from the orders, dated and

entered on April 8, 2015, that found child abuse as to a female child, I.S.

(“Child 1”), born in March of 2007, and granted the petition filed by the

Philadelphia Department of Human Services (“DHS” or the “Agency”) to

adjudicate a second male child,   I.L. (“Child 2”), born in January of 2015
J. S11014/16


(collectively referred to as “Children”) dependent pursuant to the Juvenile

Act, 42 Pa.C.S.A. § 6302(1).1 We affirm.

     In its opinion entered on August 31, 2015, the trial court set forth the

following factual background and procedural history regarding Father’s

appeal, which we incorporate herein, as follows.

                 On December 12, 2014, the Department of
           Human Services (“DHS”) received a Child Protective
           Services (CPS) report alleging that Child 1 had
           vaginal discharge for two weeks; that on
           December 10, 2014, Mother took Child 1 to the
           pediatrician; that a culture was done and it indicated
           that Child 1 contracted gonorrhea; that sexual abuse
           had occurred and that the perpetrator was
           unidentified.     The report further alleged that
           [M]other denied knowing who abused Child 1 and
           Child 1 denied being touched in a sexual
           inappropriate manner. The report also alleged that
           Child 1’s [m]other was one of her primary caregivers
           and that this family had a history with DHS. The
           CPS report was indicated due to the fact that Mother
           and [f]ather of Child 2 tested positive for gonorrhea.
           (N.T. 4/8/15, pg. 50). Both Mother and [f]ather of
           Child 2 live with the Children. (N.T. 4/8/15, pg. 47).
           Father is only the biological [f]ather to Child 2.

                 On December 12, 2014, DHS obtained an
           Order of Protective Custody (“OPC”) for Child 1 to
           ensure her safety and well-being. Child 1 was placed
           in foster care through Turning Points for Children,
           where she currently remains. The whereabouts of

1
  In separate orders entered on April 8, 2015, the trial court found Child 1
dependent pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6302(1), with
placement in foster care and a permanency goal of return to parent or
guardian, 42 Pa.C.S.A. § 6351, and found aggravated circumstances against
Mother pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6341([c])(1). Mother
(“Mother”) has filed a separate appeal, which we address in a separate
memorandum at Docket Nos. 1393 and 1395 EDA 2015. Mother has filed
her own appeal, and she is not a party in the present appeal.


                                    -2-
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             Child 1[’s] biological father [are] unknown.       On
             December 15, 2014, at the Shelter Care hearing, the
             trial court ordered the OPC to be lifted and the
             temporary commitment to DHS stand. DHS was
             ordered to explore other family members as possible
             placement resources. [On December 17, 2014, DHS
             filed a dependency petition.]      On December 19,
             2014, the trial court granted [a] continuance and
             deferred the adjudication hearing. On February 20,
             2015, the trial court granted [a] continuance due to
             Father’s attorney’s unavailability. [On April 8, 2015,
             the trial court held the adjudicatory hearing on the
             dependency petition.][Footnote 1] On April 8, 2015,
             the trial court adjudicated the Children dependent,
             found child abuse as to Child 1, as to [M]other and
             also found that aggravated circumstances existed as
             to Child 1 against [M]other[,] but DHS must make
             reasonable efforts to reunify [Child 1] with [M]other.
             Child abuse was also found against [F]ather of
             Child 2 as to Child 1. (N.T. 4/8/15, pg. 92-96).

                    [Footnote 1] At the hearing, DHS
                    presented the testimony of Maria
                    McColgan, the director of the child
                    protection program at St. Christopher’s
                    Hospital for Children, and a stipulated
                    expert in child abuse pediatrics. N.T.,
                    4/8/15, at 6-8. DHS also presented the
                    testimony of Dawn George, a DHS social
                    worker investigator in the specialty unit
                    assigned to the case. Id. at 43. DHS
                    then    presented    the  testimony    of
                    Christina Cross, the Community Umbrella
                    Agency (“CUA”) case manager from
                    Turning Points for Children. Id. at 57.
                    Mother testified on her own behalf. Id.
                    at 65.

Trial court opinion, 9/3/15 at 1-2 [Father] (footnotes added).

      On May 8, 2015, Father filed notices of appeal, along with concise

statements     of    errors   complained    of   on    appeal    pursuant   to



                                      -3-
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Pa.R.A.P. 1925(a)(2)(i) and (b). On June 8, 2015, this court, sua sponte,

entered an order consolidating the appeals.

      Father raises two issues on appeal:

             Whether the trial court erred and/or abused its
             discretion by adjudicating the child I.L. dependent
             pursuant to 42 Pa.C.S.A. [§] 6301, 6302 and 6341.

             Whether the trial court erred and/or abused its
             discretion by determining that Appellant (and
             Mother) had abused the child pursuant to
             23 Pa.C.S.A. [§] 6301 and 6303.

Father’s brief, at 4.2

      Father’s arguments in his brief amount to challenges to the sufficiency

of the evidence to support the trial court’s determinations in its orders on

appeal.

      The Pennsylvania Supreme Court recently set forth our standard of

review in a dependency case as follows.

             “The standard of review in dependency cases
             requires an appellate court to accept 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.” In re
             R.J.T., 608 Pa. 9, [27], 9 A.3d 1179, 1190 (Pa.
             2010). We review for abuse of discretion[.]

In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).

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



2
 Father stated his issues somewhat differently in his concise statements.
We, nevertheless, find them preserved for this court’s review.


                                     -4-
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            [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.

      In In re G., T., 845 A.2d 870 (Pa.Super. 2004), this court clarified the

definition of “dependent child” further.

            The question of whether a child is lacking proper
            parental care or control so as to be a dependent
            child encompasses two discrete questions: whether
            the child presently is without proper parental care
            and control, and if so, whether such care and control
            are immediately available.

Id. at 872 (internal quotations and citations omitted); see also In re J.C.,

5 A.3d 284, 289 (Pa.Super. 2010). Additionally, we note that “[t]he burden

of proof in a dependency proceeding is on the petitioner to demonstrate by

clear and convincing evidence that a child meets that statutory definition of

dependency.” G., T., 845 A.2d at 872.

      With regard to a dependent child, in In re D.A., 801 A.2d 614

(Pa.Super. 2002) (en banc), this court explained:

            [A] court is empowered by 42 Pa.C.S. § 6341(a)
            and (c) to make a finding that a child is dependent if
            the child meets the statutory definition by clear and
            convincing evidence. If the court finds that the child
            is dependent, then the court may make an
            appropriate disposition of the child to protect the


                                     -5-
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              child's physical, mental and moral welfare, including
              allowing the child to remain with the parents subject
              to supervision, transferring temporary legal custody
              to a relative or public agency, or transferring custody
              to the juvenile court of another state. 42 Pa.C.S.
              § 6351(a).

Id. at 617.

      The Juvenile Act defines “Aggravated circumstances” as including 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 the parent.

42 Pa.C.S.A. § 6302.

      The Juvenile Act defines “serious bodily injury” as “bodily 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.”         42 Pa.C.S.A. § 6302.       The Juvenile Act defines

“sexual violence” as follows.

              “Sexual violence.”        Rape, indecent contact as
              defined in 18 Pa.C.S. § 3101 (relating to definitions),
              incest or using, causing, permitting, persuading or
              coercing the child to engage in a prohibited sexual
              act as defined in 18 Pa.C.S. § 6312(a) (relating to
              sexual abuse of children) or a simulation of a
              prohibited    sexual    act   for the    purpose     of
              photographing, videotaping, depicting on computer
              or filming involving the child.

42 Pa.C.S.A. § 6302.




                                       -6-
J. S11014/16


      The Juvenile Act, in turn, defines “aggravated physical neglect” as,

“Any omission in the care of a child which results in a life-threatening

condition or seriously impairs the child’s functioning.” Id.

      Upon a determination that aggravated circumstances exist, the

Juvenile Act at 42 Pa.C.S.A. § 6341(c.1), states the following.

             (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).

      Regarding the disposition of a dependent child, Section 6351(e), (f),

(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for

its permanency plan for the subject child. Pursuant to those subsections of

the Juvenile Act, the trial court is to determine the disposition that is best

suited to the safety, protection and physical, mental and moral welfare of

the child.

      Section 6351(e) of the Juvenile Act provides in pertinent part:

             (e) Permanency hearings.--

                  (1) [t]he court   shall   conduct   a
                  permanency hearing for the purpose of


                                      -7-
J. S11014/16


                 determining     or     reviewing     the
                 permanency plan of the child, the date
                 by which the goal of permanency for the
                 child might be achieved and whether
                 placement continues to be best suited to
                 the safety, protection and physical,
                 mental and moral welfare of the child.
                 In any permanency hearing held with
                 respect to the child, the court shall
                 consult with the child regarding the
                 child’s permanency plan in a manner
                 appropriate to the child's age and
                 maturity. . . .

                 (2) If the county agency or the
                 child’s attorney alleges the existence
                 of aggravated circumstances and the
                 court determines that the child has
                 been adjudicated dependent, the
                 court    shall  then    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    child's    parent,
                 guardian or custodian or to preserve
                 and reunify the family shall be made
                 or continue to be made and schedule
                 a hearing as provided in paragraph
                 (3).

                 ....

42 Pa.C.S.A. § 6351(e) (some emphasis added).

     Section 6351(f) of the Juvenile Act prescribes the pertinent inquiry for

the reviewing court:

           (f) Matters to be determined at permanency
           hearing.--


                                   -8-
J. S11014/16



               At each permanency hearing, a court shall
          determine all of the following:

               (1) The continuing necessity for and
               appropriateness of the placement.

               (2) The appropriateness, feasibility and
               extent   of   compliance    with     the
               permanency plan developed for the child.

               (3) The extent of progress made toward
               alleviating the circumstances which
               necessitated the original placement.

               (4) The appropriateness and feasibility
               of the current placement goal for the
               child.

               (5) The likely date by which the
               placement goal for the child might be
               achieved.

               (5.1) Whether reasonable efforts were
               made to finalize the permanency plan in
               effect.

               (6) Whether the child is safe.

               (7) If the child has been placed outside
               the    Commonwealth,      whether      the
               placement continues to be best suited to
               the safety, protection and physical,
               mental and moral welfare of the child.

               ....

               (9) If the child has been in placement
               for at least 15 of the last 22 months or
               the     court   has    determined     that
               aggravated circumstances exist and that
               reasonable efforts to prevent or eliminate
               the need to remove the child from the
               child’s parent, guardian or custodian or


                                 -9-
J. S11014/16


               to preserve and reunify the family need
               not be made or continue to be made,
               whether the county agency has filed or
               sought to join a petition to terminate
               parental rights and to identify, recruit,
               process and approve a qualified family to
               adopt the child unless:

                     (i) the child is being cared
                     for by a relative best suited
                     to the physical, mental and
                     moral welfare of the child;

                     (ii) the county agency has
                     documented a compelling
                     reason for determining that
                     filing a petition to terminate
                     parental rights would not
                     serve the needs and welfare
                     of the child; or

                     (iii) the child’s family has
                     not been provided with
                     necessary services to achieve
                     the safe return to the child’s
                     parent, guardian or custodian
                     within the time frames set
                     forth in the permanency
                     plan.

                     ....

          (f.1) Additional determination.--Based upon the
          determinations made under subsection (f) and all
          relevant evidence presented at the hearing, the court
          shall determine one of the following:

               (1) If and when the child will be
               returned to the child’s parent, guardian
               or custodian in cases where the return of
               the child is best suited to the safety,
               protection and physical, mental and
               moral welfare of the child.



                                 - 10 -
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                (2) If and when the child will be placed
                for adoption, and the county agency will
                file for termination of parental rights in
                cases where return to the child’s parent,
                guardian or custodian is not best suited
                to the safety, protection and physical,
                mental and moral welfare of the child.

                (3) If and when the child will be placed
                with a legal custodian in cases where
                return to the child’s parent, guardian or
                custodian or being placed for adoption is
                not best suited to the safety, protection
                and physical, mental and moral welfare
                of the child.

                (4) If and when the child will be placed
                with a fit and willing relative in cases
                where return to the child’s parent,
                guardian or custodian, being placed for
                adoption or being placed with a legal
                custodian is not best suited to the safety,
                protection and physical, mental and
                moral welfare of the child.

                (5) If and when the child will be placed
                in another living arrangement intended
                to be permanent in nature which is
                approved by the court in cases where the
                county agency has documented a
                compelling reason that it would not be
                best suited to the safety, protection and
                physical, mental and moral welfare of the
                child to be returned to the child’s parent,
                guardian or custodian, to be placed for
                adoption, to be placed with a legal
                custodian or to be placed with a fit and
                wiling relative.

          (f.2) Evidence.--Evidence of conduct by the parent
          that places the health, safety or welfare of the child
          at risk, including evidence of the use of alcohol or a
          controlled substance that places the health, safety or
          welfare of the child at risk, shall be presented to the


                                  - 11 -
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           court by the county agency or any other party at any
           disposition or permanency hearing whether or not
           the conduct was the basis for the determination of
           dependency.

           (g) Court    order.--On   the   basis    of   the
           determination made under subsection (f.1), the
           court shall order the continuation, modification
           or   termination    of  placement     or    other
           disposition which is best suited to the safety,
           protection and physical, mental and moral
           welfare of the child.

           ....

42 Pa.C.S.A. § 6351 (some emphasis added).

     At the time of the decision in this matter, Section 6303(b) of the Child

Protective Services Law (“CPSL”), provided”

           (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.

                  (2) Fabricating, feigning or intentionally
                  exaggerating or inducing a medical
                  symptom or disease which results in a
                  potentially harmful medial evaluation or
                  treatment to the child through any
                  recent act.

                  (3) Causing or substantially contributing
                  to serious mental injury to a child
                  through any act or failure to act or series
                  of such acts or failures to act.

                  (4) Causing sexual abuse or exploitation
                  of a child through any act or failure to
                  act.



                                    - 12 -
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               (5) Creating a reasonable likelihood of
               bodily injury to a child through any
               recent act or failure to act.

               (6) Creating a likelihood of sexual abuse
               or exploitation of a child through any
               recent act or failure to act.

               (7) Causing serious physical neglect of a
               child.

               (8) Engaging in any of the following
               recent acts:

                    (i) Kicking, biting, throwing,
                    burning, stabbing or cutting
                    a child in a manner that
                    endangers the child.

                    (ii) Unreasonably restraining
                    or confining a child, based on
                    consideration of the method,
                    location or the duration of
                    the restraint or confinement.

                    (iii) Forcefully shaking     a
                    child under one year of age.

                    (iv) Forcefully slapping or
                    otherwise striking a child
                    under one year of age.

                    (v) Interfering    with     the
                    breathing of a child.

                    (vi) Causing a child to be
                    present at a location while a
                    violation   of     18   Pa.C.S.
                    § 7508.2       (relating      to
                    operation                     of
                    methamphetamine
                    laboratory)     is    occurring,
                    provided that the violation is



                                - 13 -
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                      being investigated    by   law
                      enforcement.

                      (vii) Leaving     a     child
                      unsupervised      with     an
                      individual, other that the
                      child’s parent, who the actor
                      knows or reasonably should
                      have known:

                        (A) Is     required   to
                        register as a Tier II or
                        Tier III sexual offender
                        under 42 Pa.C.S. Ch. 97
                        Subch. H (relating to
                        registration of sexual
                        offenders),[Footnote 8]
                        where the victim of the
                        sexual     offense   was
                        under 18 years of age
                        when the crime was
                        committed.

                        (B) Has               been
                        determined to be a
                        sexually            violent
                        predator             under
                        42 Pa.C.S. § 9799.12
                        (relating to definitions).

               (9) Causing the death of the            child
               through any act or failure to act.

               ....


          [Footnote 8] 42 Pa.C.S.A. § 9799.10 et seq.




                                 - 14 -
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23 Pa.C.S.A. § 6303 (footnote in original).3

      The identity of the abuser(s) may be established by prima facie

evidence that the abuse normally would not have occurred except by reason

of acts or omissions of the caregivers. Section 6381 of the CPSL provides as

follows:

            6381. Evidence in court proceedings.

            (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.

23 Pa.C.S.A. § 6381(d).

      This court has stated:

                  [T]he focus of all dependency proceedings,
            including change of goal proceedings, must be on the
            safety, permanency, and well-being of the child. The
            best interests of the child take precedence over all
            other considerations, including the conduct and the
            rights of the parent. . . . [W]hile parental progress
            toward completion of a permanency plan is an
            important factor, it is not to be elevated to
            determinative status, to the exclusion of all other
            factors.

In re A.K., 936 A.2d 528, 534 (Pa.Super. 2007).


3
  The CPSL was amended, effective December 31, 2014, to broaden the
term “child abuse,” as explained in In Interest of: L.Z., 111 A.3d at
1168 n.3. Our supreme court’s decision in In Interest of: L.Z. involved an
application of the statute as it existed prior to the effective date of the
amendment.


                                    - 15 -
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      In In Interest of: L.Z., our supreme court considered the question of

whether this court, sitting en banc, improperly reversed the determination

of the trial court that the child at issue suffered child abuse, and, through

the application of the presumption of prima facie evidence of abuse set

forth at 23 Pa.C.S.A. § 6381(d), that the abuse was perpetrated by his

mother.

      The facts in In Interest of: L.Z. were similar to the facts in the

instant case.   A 20-month-old male infant was brought to an emergency

room by his mother and his maternal aunt, to be treated for a deep cut

nearly halfway around the base of his penis. The physicians at the hospital

noted bruising to the child’s cheeks, severe diaper rash, and a yeast

infection on the front of his body. Both women cared for the child together.

The physicians suspected child abuse, as the women’s explanations for the

injuries to the child were consistent with abuse, and the injuries were

inconsistent with the women’s explanations. The physicians also suspected

that the injuries were non-accidental.

      The physician who treated the child at the hospital testified at the

dependency adjudication hearing as an expert in pediatric medicine. When

the doctor was asked whether the dark bruising to Child’s cheeks would

“cause a child severe pain,” she responded, “I am sure it couldn’t have been

very comfortable.”   In Interest of: L.Z., 111 A.3d at 1168.      The doctor

testified that the injuries (the penile laceration, cheek bruises and diaper



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rash/yeast infection) were “consistent with a pattern of suspected child

abuse,” and that the child was a “victim of child abuse.” Id.

      The trial court found that the child was a victim of child abuse as

defined at 23 Pa.C.S.A. § 6303, and that the mother was the perpetrator of

the abuse.     In Interest of: L.Z., 111 A.3d at 1168-1169.        The court

transferred temporary legal custody of the child to the county agency, and

placed the child in his maternal grandfather’s physical custody, with his

parents receiving supervised weekly visitation. The trial court also entered

an order finding that aggravated circumstances existed because the child

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

violence, or aggravated neglect by the parent; proven as to Mother.” Id. at

at 1169. The trial court concluded that the county agency did not need to

make further efforts to reunify the child with his mother.

      The mother filed an appeal to this court. Sitting en banc, the majority

of the court affirmed the dependency adjudication but vacated the abuse

determination.   The majority of the court en banc recognized that the

mother had waived certain issues for purposes of appellate review, as she

had voluntarily relinquished her parental rights while the appeal was

pending, prior to reargument. Id. The mother waived her challenges to the

trial court’s rulings that aggravated circumstances existed, and that the

county agency need not make reasonable efforts at reunification.




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      The dissenting Judges sitting on the court en banc would have

affirmed the trial court’s findings that the child’s injuries constituted abuse.

The dissent took the position that the majority improperly limited the

evidentiary presumption of Section 6381(d) to find prima facie evidence of

an abuser’s identity only when the abuser was proven to be present at the

time of the injuries. Id. at at 1171.

      The guardian ad litem for the child successfully sought relief in our

supreme court.     Our supreme court held that presumption set forth in

Section 6381(d) was applicable to the case, and that the mother offered no

testimony to rebut it. Id. at at 1186. Our supreme court concluded that the

trial court properly found that the mother perpetrated the abuse on the child

either by inflicting the injuries, or by failing to protect the child from his

maternal aunt.    Thus, our supreme court reversed this court’s en banc

decision, and reinstated the trial court’s order. Id.

      In reaching this conclusion, our supreme court stated as follows.

                  [C]hild abuse cases often involve a child
            presenting to a hospital with significant injuries that
            are entirely consistent with common types of child
            abuse and entirely inconsistent with the implausible
            explanations concocted by the parents and
            responsible persons to avoid allegations of child
            abuse. As noted, in cases where multiple caregivers
            are involved, the individuals frequently “circle the
            wagons” or alternatively point fingers at each other.
            As the children may be too young or fearful to
            describe the abuse, CYS agencies are left to prove
            their case with only the physical evidence of injuries
            that would not ordinarily be sustained but for the
            action of the parents or responsible persons and the


                                     - 18 -
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          implausible    statements of the          parents and
          responsible persons. Thus, while they can prove the
          existence of abuse rather easily, they have no ability
          to assign responsibility for the heinous act among
          the responsible adults. As Judge Tamilia observed in
          1993, “the Legislature deemed it wise and necessary
          to establish a different evidentiary standard” by
          enacting Section 6381’s(d)’s presumption to avoid
          this evidentiary conundrum and protect children from
          future abuse. [In the Interest of J.R.W., 631 A.2d
          1019, 1023 (Pa. Super. 1993)]. . . . We emphasize
          that, 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 or failed in their duty to protect the child.

                Moreover, the Legislature balanced the
          presumption of Section 6381(d) by making it
          rebuttable as it merely establishes “prima facie
          evidence” that the parent perpetrated the abuse.
          23 Pa.C.S. § 6381(d). As commonly understood,
          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.” Black’s Law
          Dictionary 825 (6th ed. Abridged 1991). Accordingly,
          evidence that a child suffered injury that would not
          ordinarily be sustained but for 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 CYS agency
          and the rebuttal of the parent or responsible person.


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                 Applying Section 6381(d) as set forth above to
          the case at bar, we affirm the trial court’s
          determination that [the mother] perpetrated the
          abuse in the form of the laceration, the cheek
          bruising, and the severe diaper rash and yeast
          infection.     First, because the medical evidence
          presented by [the agency] demonstrated that [the
          child’s] injuries were neither accidental nor
          self-inflicted and because [the child] was only in the
          care of [his mother and aunt], the injuries were
          shown to be “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[.]” 23 Pa.C.S. § 6381(d).
          Ergo, either [the aunt or mother] or both inflicted
          the abuse [the child] suffered or failed to protect him
          from the other’s abuse. [The mother] failed to rebut
          the presumption by presenting evidence or
          testimony from her, [the aunt] or her boyfriend
          establishing that [the child] was not in her care when
          the injuries were suffered and that she had no
          reason to question her decision to leave [the child] in
          [his aunt’s] care. Likewise, neither [the aunt] nor
          anyone on her behalf testified. [The mother and
          aunt’s] self-serving claims made at the hospital were
          neither under oath nor subject to cross-examination.
          They were outside-the-record and do not constitute
          rebuttal evidence.[Footnote 25]

                [Footnote 25] Moreover, we would not
                fault a trial court for failing to credit any
                explanations that would have been given
                considering the implausibility of the other
                assertions provided at the hospital
                regarding [the child’s] injuries.

                Instead, ample, uncontested, unrebutted
          evidence existed for the trial court to presume that
          [the mother] perpetrated the abuse on [the child].
          In regard to the diaper rash, it was put into evidence
          that [the mother] acknowledged to the hospital staff
          her awareness of the condition and blamed it on
          weeks of diarrhea. Dr. Silver testified rejecting [the


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J. S11014/16


           mother’s] extrajudicial contention because the rash
           was on the front of [the child’s] body, indicative of
           prolonged contact with urine, rather than on the
           buttocks, which would have been consistent with
           diarrhea. Thus, the trial court was well within its
           discretion and fully supported by the record when it
           properly concluded that [the child] suffered physical
           neglect as a result of the severe diaper rash and
           yeast infection due to his caregiver’s failure to
           change his diaper (or obtain medical treatment).

                  Additionally, the trial court did not abuse its
           discretion in discrediting [the mother’s] implausible
           out-of-court explanation and instead crediting the
           treating doctor’s testimonial determination that the
           cheek bruising was classic child abuse. The court
           found Dr. Silver credible given the pattern of bruises
           showing that someone squeezed [the child’s] face
           between her thumb and fingers, bruising which could
           have occurred during the window of time [the
           mother] acknowledged having control of [the child]
           and bruising that the doctor testified would have
           cause [the child] severe pain.         Moreover, even
           assuming [the mother] did not inflict the penile
           laceration or the cheek bruising, she is still
           responsible for [the child’s] injuries by failing to
           protect him from [the aunt], absent rebuttal from
           [the mother] that she had no reason to fear leaving
           [the child] with [the aunt].

                   We conclude that the presumption of
           Section 6381(d) is applicable to this case and that
           [the mother] offered no testimony to rebut it. Thus,
           the trial court properly found [the mother]
           perpetrated the abuse on [the child] either by
           inflicting the injuries or failing to protect [the child]
           from [the aunt].

In Interest of: L.Z., 111 A.3d at 1185-1186 (footnote omitted).

     Here, the trial court addressed Father’s issues, stating as follows.




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               Father filed separate appeals, but the grounds
          for both appeals were consolidated.      On appeal,
          Father raises the following issues:

          1.    The trial court erred in making a finding
                of child abuse as to Child 1 against
                [f]ather   of   Child   2  pursuant    to
                23 Pa.C.S.A. § 6301 as DHS failed to
                meet its burden of proof.

          2.    The trial court erred when it found that
                DHS met its burden of clear and
                convincing evidence that Child 2 was
                dependent pursuant to 42 Pa.C.S.A.
                § 6302.

                 Father’s first issue on appeal argues that the
          trial court erred in determining that Child 1 was a
          victim of child abuse. The Child Protective Services
          Law     (“CPSL”)     23   [Pa].C.S.A.   §    6303(b)(ii)
          establishes that any recent act or failure to act by a
          perpetrator which causes sexual abuse to a child
          under 18 years old constitutes child abuse.
          Section 6303(b)(iii) establishes that any recent act,
          failure to act or series of such acts or failures to act
          by a perpetrator which creates an imminent risk of
          sexual abuse of a child under 18 years of age also
          constitutes child abuse. Sexual abuse under CPSL
          23 [Pa.]C.S.A. § 6303(b) is defined as the
          employment,        use,    persuasion,     inducement,
          enticement or coercion of a child to engage in or
          assist another individual to engage in sexually
          explicit conduct.

                 The record must show by clear and convincing
          evidence that the child suffered abuse as defined by
          the CPSL 23 [Pa.]C.S.A. § 6303(a). In the Matter
          of L.Z., 111 A.3d 1164 (Pa. 2015). As to the
          identity of the perpetrator of child abuse, the trial
          court is required to find perpetrator’s identity by
          prima facie standard. In Interest of J.R.W., 631
          A.2d 1019, 1023-1024 (Pa. Super. 1993). CPSL
          23 [Pa.]C.S.A. § 6303(d) establishes that evidence
          that a child has suffered child abuse of such a nature


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J. S11014/16


          as would ordinarily not be sustained or exist except
          by reason of acts or omission 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 [sic]
          child. This rule created an evidentiary presumption
          against the child’s caregiver at the time of the abuse.
          In re JG. [sic], 984 A.2d 541, 547 (Pa. Super.
          2009). Thus, proof of the nature of the child’s harm,
          alone, is prima facie evidence of child abuse by
          anyone who is found to be responsible for the
          welfare of the child at the time of the alleged
          injuries. In re JG., 984 A.2d 541, 547 (Pa. Super.
          2009), In the Matter of L.Z., 111 A.3d 1164 (Pa.
          2015).

                 The record established that Child 1 was
          diagnosed with gonorrhea in her throat, rectum and
          vagina.     (N.T. 4/8/15, pgs. 10, 14).         Such a
          diagnosis raised serious concerns to St. Christopher’s
          Hospital medical staff given that gonorrhea is
          typically transmitted by sexual contact.           (N.T.
          4/8/15, pgs. 9-11). Likewise, Child 1’s diagnosis
          was highly concerning as to [c]hild abuse. (N.T.
          4/8/15, pg. 12). Expert testimony established that
          gonorrhea’s bacteria does not travel through the
          human body and Child 1’s diagnosis of gonorrhea in
          throat, rectum and vagina increased the sexual
          contact as to the method of transmission. (N.T.
          4/8/15, pgs. 11-12). In fact, the record established
          that it is very unlikely to be infected with pharyngeal
          gonorrhea through non-sexual contact.              (N.T.
          4/8/15, pg. 23).          Other non-sexual ways of
          transmission were considered and evaluated by
          Dr. McColgan. (N.T. 4/8/15, pg. 21). Dr. Maria
          McColgan’s testimony ruled out other possibilities of
          getting infected with gonorrhea. (N.T. 4/8/15, pgs.
          12-13, 15-16, 21-23, 32, 36).               Accordingly,
          Dr. McColgan concluded to a medical degree of
          certainty that Child 1’s infection with gonorrhea was
          the product of sexual abuse. (N.T. 4/8/15, pg. 16).
          Dr. Maria McColgan’s testimony was very credible.




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J. S11014/16


                 In relation to the identity of the abuser, the
          record established that [M]other was one of Child’s
          primary caregivers at the moment in which Child 1
          was infected. The other was Child 2’s [f]ather who,
          like [M]other, admitted being infected with
          gonorrhea. (N.T. 4/8/15, pgs. 15, 17, 44, 45). The
          record established that Child 1 and Child 2 were
          residing with [M]other and Father. (N.T. 4/8/15,
          pgs. 44, 45, 47).       Both Father of Child 2 and
          [M]other were found to be responsible for the
          welfare of the Children at the time of the alleged
          injuries. Putative Father was as much responsible
          for the care of Child 1 as was Mother.            The
          transmission of gonorrhea, a sexually transmitted
          disease, would not have occurred except by
          [P]utative Father’s acts or omissions. As a result,
          the record established prima facie evidence of child
          abuse as to [P]utative Father, and the trial court did
          not hear competent evidence that rebutted such a
          presumption. Thus DHS met its burden by clear and
          convincing evidence that Child 1 suffered sexual
          abuse at the time Child 1 was in the care of
          [P]utative Father. Putative Father was responsible
          for the welfare of Child 1.

                 Father’s second issue on appeal argued that
          the trial court erred in adjudicating the Child 2
          dependent.      Under 42 Pa.C.S.A. § 6302 of the
          definition of a “Dependent Child” paragraph(1) a
          child will be adjudicated dependent if the trial court
          determines, by clear and convincing evidence, that
          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 other custodian. Clear and convincing
          evidence has been defined as the testimony that is
          so clear, direct, weight 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.R.S., 696 [A.]2d 840, 843 (Pa. Super.
          1997).     The purpose of the Juvenile Act is to


                                  - 24 -
J. S11014/16


          preserve the unity of the family whenever possible.
          42 Pa.C.S.A. § 6301(b)(1), Nonetheless a child will
          be adjudicated dependent when he is presently
          without parental care and the care is not
          immediately available. In re R.T., 405 Pa. Super.
          156 (1991). The Superior Court has defined proper
          parental care as the care which is geared to the
          particularized needs of the child and, at the
          minimum, is likely to prevent serious injury to the
          child. In re C.R.S., supra at 845. In general, a
          finding of abuse has been held sufficient under most
          circumstances to support an adjudication of
          dependency. In [I]nterest of J.M., 652 A.2d 877,
          881 (Pa. Super. 1997). The trial court adjudicated
          Child 1 dependent under 42 Pa.C.S.A. § 6301(b)(1)
          by finding that Child 1 was sexually abused and
          infected with a sexual transmitted disease.

                 The Pennsylvania Juvenile Act is now
          significantly more sensitive to the facts that sexually
          abused children may be without proper parental care
          and control as required by the law. In re W.M., 842
          A.2d 425m 429 (Pa. Super 2004). The Juvenile Act
          takes in consideration the sense of vulnerability, fear
          and helplessness that siblings may feel when living in
          an environment where their sibling has been sexually
          abused. Id. The focus is not on whether the other
          sibling is actually at risk of sexual abuse but if the
          siblings fit the definition of lacking proper parental
          care. Id. It is within the trial court’s discretion to
          determine that siblings of sexually abused children fit
          that definition, even if there is no evidence that the
          siblings will be sexually abused. Id. This major
          sensitivity to sexually abused children without proper
          parental care and control was also reflected in the
          Pennsylvania Juvenile Act amendment effective,
          since January 1, 1999. Such an amendment, added
          the definitions of “aggravated circumstances” and
          “sexual violence” to the Juvenile Act including
          siblings of children who have been sexually abused.
          In re of [sic] S.B., 833 A.2d 1116, 1122 (Pa.
          Super. 2003).




                                  - 25 -
J. S11014/16


                   The record established that Child 2 is a
            vulnerable six-month year [sic] old infant. The trial
            court is extremely concerned about leaving Child 2 in
            an environment where his sibling, Child 1, has been
            sexually abused and infected with a sexually
            transmitted disease. Under these circumstances, the
            threat of harm evidenced on the conduct of Father as
            to Child 1 is sufficient for a finding of dependency as
            to Child 2. Both Children live with Father. The lack
            of parental care as to Child 1 places the health,
            safety, and welfare of Child 2 at risk. Father is
            unable to provide immediate care that is at the
            minimum likely to prevent serious injury to Child 2.
            Accordingly, the trial court used its discretion to
            adjudicate Child 2 as a dependent fitting the
            definition of a dependent child under 42 Pa.C.S.A.
            § 6302(1). All DHS witnesses were unwavering and
            credible.

            Conclusion:

                  For the aforementioned reasons, the court
            finds that DHS met its statutory burden regarding
            Chld 1 child abuse against [P]utative Father and
            Child 2 dependency adjudication. Accordingly, the
            order entered on April 8, 2015, should be affirmed.

Trial court opinion, 9/3/15 at 2-5 [Father].

      As our supreme court explained in In Interest of: L.Z., multiple

caretaker child abuse situations are rife with credibility determinations for

the trial court, and call for the trial court to make credibility determinations

as to the plausible and implausible explanations for the child’s injuries. Id.

at 1186 n.25.

      After a careful review of the record in this matter, we find the trial

court’s credibility findings are supported by competent evidence in the




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J. S11014/16


record. In re R.J.T., 9 A.3d at 1190. We find no abuse of the trial court’s

discretion. Accordingly, we affirm the orders of the trial court.

      Orders affirmed.



      Musmanno, J. joins the Memorandum.

      Ott, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/9/2016




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