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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: H.M., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.C., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 37 EDA 2018

               Appeal from the Order Entered December 4, 2017
    In the Court of Common Pleas of Philadelphia County Domestic Relations
                      at No(s): CP-51-DP-0040041-2004


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

MEMORANDUM BY SHOGAN, J.:                           FILED SEPTEMBER 06, 2018

       Appellant, J.C. (“Father”), appeals from the December 4, 2017 order, in

the context of a dependency proceeding, finding him to be a perpetrator of

child abuse against his son, H.M., born in August of 2001.1          After careful

review, we affirm.

       The record reveals that H.M. was adjudicated dependent on January 24,

2012. In 2016, H.M. reported that he had been raped by Father when he was

approximately four years old. Child Protective Services Report, 11/1/17, at

4. Following an investigation, the Philadelphia Department of Human Services

(“DHS”) determined that H.M.’s report of sexual abuse was “indicated”

pursuant to 23 Pa.C.S. § 6303, and Father was the perpetrator. DHS moved

____________________________________________


1A finding of child abuse in the context of a dependency proceeding can be
appealed to the Superior Court. In re L.Z., 111 A.3d 1164, 1177 (Pa. 2015).
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to amend H.M.’s dependency status to include a finding of child abuse as one

of the bases for dependency. Motion, 11/3/17.

      The trial court held a hearing on this matter on December 4, 2017. At

the hearing, H.M. was represented by counsel and had a child advocate

present. N.T., 12/4/17, at 2-3. H.M.’s child advocate requested that the court

allow H.M. to testify in chambers outside of Father’s presence due to concerns

that testifying in front of Father would re-traumatize H.M. Id. at 4-6. Father’s

counsel objected at first, but the trial court informed Father’s counsel that he

was permitted to be in chambers and have the opportunity to observe H.M.’s

testimony and cross-examine H.M., and Father’s counsel responded, “okay.”

Id. at 6-8. Additionally, H.M.’s testimony would be broadcast live into the

courtroom for Father to hear, and Father’s counsel would be permitted to

consult with Father during cross-examination. Id.

      After the hearing, the trial court ordered that legal custody of H.M. would

remain with DHS and physical custody of H.M. would remain at a residential

facility through Woods Services. Order, 12/4/17, at 2. The trial court also

held that H.M. was a victim of child abuse as defined in 23 Pa.C.S. § 6303,

because the trial court concluded that the Child Protective Services report of

Father sexually abusing H.M. was founded under 23 Pa.C.S. § 6303. Id.

      Father filed a timely appeal on December 15, 2017. Both Father and

the trial court complied with Pa.R.A.P. 1925.




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      On appeal, Father presents the following issues for this Court’s

consideration:

      1. Did the judge rule in error that the Philadelphia City Solicitor’s
      Office met its burden of proof that there was a finding of child
      abuse against [F]ather?

      2. Did the trial court err by allowing [H.M.] to testify without
      [F]ather present w[h]ere there was no observation of questioning
      as required by the law and where he was not able to hear half of
      the testimony?

Father’s Brief at 5, 6 (full capitalization omitted).

      Our standard of review in dependency cases is as follows: we accept the

trial court’s factual findings that are supported by the record, and we defer to

the trial court’s credibility determinations. In re R.P., 957 A.2d 1205, 1211

(Pa. Super. 2008). We accord great weight to this function of the trial court

because it is in the position to observe and rule upon the credibility of the

witnesses and the parties who appear before it. Id. This Court will not disturb

the trial court’s findings if they are supported by competent evidence. Id.

      Father first avers that the Philadelphia City Solicitor’s Office, as counsel

for DHS, failed to meet its burden of proof with respect to the trial court’s

finding of child abuse. Specifically, Father assails H.M.’s credibility and argues

that H.M. made a prior inconsistent statement regarding the sexual abuse and

claims that H.M. has cognitive issues. Father’s Brief at 5-6.

      The requirements necessary to support a finding of child abuse are as

follows:




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      In [In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015)], the Supreme
      Court discussed the requirements to prove the two issues in a
      child abuse case. A petitioning party must demonstrate the
      existence of child abuse by the clear and convincing evidence
      standard, but if the court finds that abuse occurred, the identity
      of the abuser need only be established through prima facie
      evidence in certain situations. Id.

In Interest of J.M., 166 A.3d 408, 422 (Pa. Super. 2017) (internal quotation

marks omitted). Child abuse is defined, in relevant part, as follows:

      (b.1) Child abuse.--The term “child abuse” shall mean
      intentionally, knowingly or recklessly doing any of the following:

                                    * * *

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

23 Pa.C.S. § 6303(b.1)(4).

      At the hearing on December 4, 2017, H.M. testified that when he was

four or five years old, Father raped him. N.T., 12/4/17, at 13. H.M. stated

that Father placed his “private part” inside H.M.’s “behind.” Id. at 15. The

child informed his grandmother, but he claimed that she did not believe H.M.

was being truthful. Id. at 16. On cross-examination, H.M. admitted that at

one point, he denied that Father had assaulted him. Id. at 19. However,

H.M. said that when he learned that other people have been subjected to

similar abuse and that he was not alone in being a victim, this prompted him

to retract his recantation. Id. Additionally, Father’s counsel stipulated to the

admissibility and authenticity of the DHS report and an interview with H.M.




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Id. at 22-23. These documents identified Father as the perpetrator of the

abuse. Id.

         We reiterate that we defer to the trial court’s credibility determinations.

In re R.P., 957 A.2d at 1211. Here, the trial court found as follows:

         The [c]ourt found H.M.’s testimony credible. (N.T. 12/4/17, pg.
         27) The [c]ourt expressed [its] initial concern with H.M.’s prior
         inconsistent statement. (N.T. 12/4/17, pgs. 26-27) The [c]ourt
         reasoned H.M.’s reluctancy was due to unaddressed disclosure of
         the incident to Paternal Grandmother and failure of a support
         system. (N.T. 12/4/17, pg. 28) Furthermore, the [c]ourt reasoned
         H.M. was empowered to revisit the abuse disclosure through
         therapeutic sessions and interventions. (N.T. 12/4/17, pg. 27) The
         [c]ourt concluded with clear and convincing evidence that H.M.
         did experience sexual abuse by his Father. (N.T. 12/4/7, pg. 28)
         The [c]ourt ordered that the DHS report be marked “founded”.
         (N.T. 12/4/17, pg. 28)

         The [c]ourt found DHS met [its] burden of proof providing
         sufficient clear and convincing evidence to provide a basis for a
         finding of child abuse in this case pursuant to Child Protective
         Services Law, 23 Pa. C.S. 6302(b.1)(4).

Trial Court Opinion, 5/2/18, at 5.

         After review, we discern no error in the trial court’s conclusion that DHS

established that Father committed child abuse by clear and convincing

evidence. H.M. testified in detail about the abuse perpetrated upon him by

Father, and the trial court found H.M.’s testimony to be credible. Trial Court

Opinion, 5/2/18, at 5. We conclude that Father is entitled to no relief on this

issue.

         In his second issue, Father asserts that the trial court erred when it

permitted H.M. to testify in chambers outside of Father’s presence. Father’s


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Brief at 6. Father alleges that the in camera testimony prevented Father from

observing H.M. testify, and he further claims that he was unable to hear “half”

of the testimony. Id.

      As set forth above, when the trial court allowed H.M. to testify in

camera, Father’s counsel initially objected. N.T., 12/4/17, at 6. However, the

trial court did not rule on this objection; rather, the trial court informed

counsel that he would be permitted to be in chambers, observe the

proceedings, cross-examine H.M., and confer with Father. Id. at 6-7. When

the trial court apprised counsel of these measures, counsel responded by

saying, “okay.” Id. at 7. The trial court never made any ruling on Father’s

objection, and therefore, there is no ruling for this Court to review. Stapas

v. Giant Eagle, Inc., 153 A.3d 353, 369 (Pa. Super. 2016). Moreover, Father

never renewed the objection or sought a ruling on the initial objection;

accordingly, we conclude that this issue is waived.         See Keffer v. Bob

Nolan's Auto Service, Inc., 59 A.3d 621, 657-658 (Pa. Super. 2012) (“When

the trial court overlooks or fails to rule on an issue, the party seeking the

court’s ruling must remind the court that it has not ruled and obtain a

definitive ruling on the issue. Failing to do so results in the waiver of the issue

not ruled upon.”).

      For the reasons set forth above, we conclude that Father is entitled to

no relief on appeal. Accordingly, we affirm.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/18




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