J-S61016-18

                                   2019 PA Super 10

    IN THE INTEREST OF: S.L., A MINOR          :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: J.B., MOTHER                    :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 3384 EDA 2017

             Appeal from the Order Entered September 20, 2017
     In the Court of Common Pleas of Philadelphia County Family Court at
                       No(s): CP-51-DP-0000421-2017,
                           FID: 51-FN-000411-2017


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

OPINION BY BOWES, J.:                                 FILED JANUARY 08, 2019

       J.B. (“Mother”) appeals from the trial court’s order entered on

September 20, 2017, finding aggravated circumstances against her as to her

minor daughter, S.L., born in November 2016, on the basis that she had

committed child abuse.1         Following our review of the certified record and

relevant case law, we vacate the findings of aggravated circumstances and

child abuse, and remand for a new hearing.2

       On February 14, 2017, the Department of Human Services (“DHS”)

received a child protective services (“CPS”) report that Mother arrived at the


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1 The trial court also found that S.L.’s father, E.L., committed child abuse
against S.L. and that aggravated circumstances existed. He did not appeal.

2 S.L.’s “Motion to Substitute Exhibit” is granted. The Prothonotary is directed
to substitute the redacted “Exhibit A” that the guardian ad litem appended to
the present motion for the exhibit that is attached to the brief filed on August
27, 2018.
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Children’s Hospital of Philadelphia (“CHOP”) Emergency Room (“ER”) with

three-month old S.L.      Mother informed Kristine Fortin, MD., the attending

physician, that she first noticed a cracking sound in S.L.’s back during the

week of February 6, 2017, and by February 12, 2017, the child became

agitated and would only sleep on her side. Mother indicated that S.L. had not

fallen or experienced other trauma. Subsequent tests revealed that S.L. had

suffered six fractured ribs, consisting of twelve distinct bone fractures in

various stages of healing, and a fresh fracture on her right proximal tibia

(shin).     S.L. was admitted to the hospital in stable condition.   CHOP staff

determined that the injuries were non-accidental in nature, but neither Mother

nor and her then-live-in paramour, E.L. (“Father”), could explain how they

had occurred.

      DHS visited Mother, Father, and Maternal Grandparents at CHOP the

next day. Both parents denied harming S.L. Likewise, Mother and Father met

with the CHOP child protection team to review their family history and discuss

the manner of the injury. Again, neither parent professed any knowledge of

the injury during that meeting.         However, Mother initiated a private

conversation with Dr. Fortin and informed her that she was “concerned about

Father’s reactions and behaviors” following the discovery of their daughter’s

injuries.     N.T., 7/19/17, at 33.    Specifically, she reported that Father

suggested, “why don’t we just blame it on the family dog.” Id. at 33. She

also described Father’s opposition with her decision to take the child to the

hospital. In this vein, Mother contacted the hospital and requested that it not

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permit Father to visit the child. Likewise, even though Mother initially denied

domestic violence in the home, during a subsequent interview with a DHS

investigator, she indicated that verbal abuse had, in fact, occurred in the

home, and she stated her intention to terminate her relationship with Father

and move from the family residence.

      The resulting CPS report was indicated for physical abuse, and Mother

and Father were identified as perpetrators.      On February 17, 2017, DHS

obtained an order for protective custody (“OPC”). S.L. was placed in kinship

care with a family friend; however, after Mother violated the placement order

by visiting S.L. in the kinship home, the court placed the child with a foster

family.

      On February 28, 2017, DHS filed a dependency petition, which

requested a determination whether aggravated circumstances existed as to

S.L. and whether reasonable efforts need be made towards reunification. On

March 1, 2017, the juvenile court adjudicated S.L. dependent.        Contested

permanency review hearings were held on July 19, 2017 and September 20,

2017 to determine whether child abuse had occurred. Dr. Fortin and Danielle

Nesmith, the DHS social worker who investigated the CPS report, both testified

at the hearing. As it relates to the central issue Mother raises in this appeal,

we observe that Ms. Nesmith recounted Mother’s concern over Father’s

suggestion that they blame the dog for their daughter’s injuries, Father’s

opposition to bringing the child to the hospital, and the ruse that Mother

employed to avoid Father’s interference. N.T., 9/20/17, at 25-27. Likewise,

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Ms. Nesmith summarized Mother’s efforts to have Father barred from

unsupervised contact with S.L. at the hospital, and she confirmed that, while

Mother denied domestic violence in the home, during a subsequent

investigation with another case worker, she alleged verbal abuse. Id. at 29-

31. Mother’s counsel and the Child Advocate both revisited these aspects of

Ms. Nesmith’s testimony during cross-examination. Id. at 41-44, 48-51.

      After DHS completed its case, the trial court denied Mother’s attempt to

present the testimony of several witness, including Dr. Reinhold, the court-

appointed psychologist.      As it relates to Dr. Reinhold’s psychological

evaluation report, Mother argued, “it’s detailed conversations with the doctor

[who] is going to be coming in and testifying as to [what] [either] parent

believed or didn’t believe as to how the child got injured.” Id. at 61. The trial

court rejected Mother’s entreaty, finding that neither Dr. Reinhold’s

observations nor the court-ordered report were germane to the child abuse

hearing.   Id. 62.   Accordingly, Mother did not present any independent

evidence to rebut the presumption that she was a perpetrator of abuse.

      At the conclusion of the hearing, the court made a finding of child abuse

and held that aggravated circumstances existed as to both parents. It relieved

DHS of the need to make additional efforts to reunify S.L. with Mother. The

court did not hold a permanency review hearing, nor did it schedule a

permanency review hearing within thirty days.

      On October 10, 2017, Mother filed a motion for reconsideration. Before

the court entered an order on the motion, Mother timely appealed and filed a

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concise statement of errors complained of on appeal.               See Pa.R.A.P.

1925(a)(2)(i); Pa.R.A.P. 1925(b). She raises the following issues, which we

re-order for ease of disposition.

       1. Did the trial court err and/or abuse its discretion by denying
       Mother’s [c]ounsel an opportunity to call witnesses, ruling that
       their testimony was irrelevant?

       2. Was the evidence insufficient for the trial court to find, by clear
       and convincing evidence, [a]ggravated [c]ircumstances with no
       efforts to reunify [S.L.] with the Mother[?]

       3. Did the trial court violate Mother’s rights to due process by not
       allowing Mother’s counsel to call witnesses in her defense of the
       child abuse allegations?

       4. Did the trial court err in not ordering a permanency hearing
       within 30 days of the hearing where the court made a finding of
       [a]ggravated [c]ircumstances with a finding of no efforts to
       reunify [S.L.] with the Mother[?]

Mother’s brief at 4 (trial court answers omitted).3

       Our standard of review is as follows:

       The 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).

       In pertinent part, the Juvenile Act describes the relevant aspect of

aggravated circumstances as a situation where “The child or another child of

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3While DHS declined to file a brief, the guardian ad litem filed a brief in support
of the trial court order.

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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. § 6302.

     With regard to dependency cases involving child abuse, the safety of the

child is paramount. In re R.P., 957 A.2d 1205 (Pa.Super. 2008). As we have

explained,

     The Juvenile Act, 42 Pa.C.S. §§ 6301–65, which was amended in
     1998 to conform to the federal Adoption and Safe Families Act
     (“ASFA”), 42 U.S.C. § 671 et seq., controls the adjudication and
     disposition of dependent children. The policy underlying these
     statutes aims at the prevention of children languishing indefinitely
     in foster care, with its inherent lack of permanency, normalcy, and
     long-term parental commitment.              Furthermore, the 1998
     amendments to the Juvenile Act, as required by ASFA, place the
     focus of dependency proceedings on the child.                Safety,
     permanency, and the well-being of the child must take precedence
     over all other considerations, including the rights of the parents.

Id. at 1217–18 (some internal citations omitted).

     In the instant case, the court made two determinations: first, that

Mother was the perpetrator of child abuse, and second, that aggravated

circumstances existed as to S.L. “As part of [a] dependency adjudication, a

court may find a parent to be the perpetrator of child abuse,” as defined by

the Child Protective Services Law (“CPSL”). In re L.Z., 111 A.3d 1164, 1176

(Pa. 2015).

     In cases of child abuse, a court’s finding as to the identity of the
     abusers need only be established by prima facie evidence that the
     abuse normally would not have occurred except by reason of acts
     or omissions of the caretakers.

R.P., supra at 1217–18 (Pa.Super. 2008) (some internal citations omitted).


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      As it is pertinent to this case, the CPSL defines “child abuse” as follows:

      (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.

            ....

23 Pa.C.S. § 6303(b.1) (1). Furthermore, § 6303(a) defines bodily injury as

“impairment of physical condition or substantial pain.”

      In situations where a perpetrator of abuse is unknown, a parent’s

culpability may be established by prima facie evidence pursuant to § 6381(d),

      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. § 6381(d).

      With regard to the application of the rebuttable presumption provided

for by the statute, the Pennsylvania Supreme Court observed:

      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 the
      acts or omissions of the parent or responsible person is sufficient
      to establish that the parent or responsible person perpetrated that
      abuse unless the parent or responsible person rebuts the

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       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.

L.Z., supra at 1185 (emphases added).             In examining the rebuttable

presumption in L.Z., the High Court invoked a Commonwealth Court case

which stated that the presumption established in Section 6381(d) “can be

rebutted, like other statutory presumptions, with countervailing competent,

substantial evidence.” Id. at 1180 (quoting J.B. v. Department of Public

Welfare, 898 A.2d 1225-26 (Pa.Cmwlth. 2006)). Hence, it is now clear that,

once the agency presents prima facie evidence of abuse, a parent or caregiver

presumed to have perpetrated abuse is entitled to present evidence to rebut

that presumption. Thereafter, based upon the countervailing evidence, the

trial court must determine whether the presumption is valid.          With these

principles in mind, we turn to Mother’s brief.4

       First, Mother contends that the court erred in denying her the

opportunity to present evidence and testimony to rebut the prima facie

evidence that she was the perpetrator of child abuse, namely, the testimony

of the court-appointed psychologist who evaluated Mother’s mental health.

____________________________________________


4 Based upon our resolution of the first issue, we do not address Mother’s
remaining issues.



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Mother’s brief at 11-13. Mother argues that this evidence was necessary to

rebut the presumption that, as a custodian, she was responsible for S.L.’s

injuries.5 Id.

       As noted, the trial court barred the prospective witness’s testimony. The

trial court reasoned that the evidence was unnecessary in the context of the

child abuse hearing. N.T., 9/20/17, at 55-56. Mother’s counsel argued that

the testimony of Dr. Reinhold and the current caseworker, in particular, would

be important for credibility determinations, where one parent might be more

credible than the other, and what the parent did or did not believe as to how

S.L. was injured. Id. at 59. Ultimately, the court prohibited the testimony as

being irrelevant to the case at “this time.” Id. at 62. We disagree with the

trial court’s characterization of the evidence as facially irrelevant.

       Our review is guided by the following principles.      One of the stated

purposes of the Juvenile Act is to ensure due process.         See 42 Pa.C.S. §

6301(b)(4) (“[t]o provide means through which the provisions of this chapter

are executed and enforced and in which the parties are assured a fair hearing

and their constitutional and other legal rights recognized and enforced.”). “A

question regarding whether a due process violation occurred is a question of

law for which the standard of review is de novo and the scope of review is

plenary.” Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa.Super. 2017).
____________________________________________


5 Mother does not dispute the nature and severity of S.L.’s injuries. N.T.,
9/20/17, at 15-16. Instead, she argues that she was entitled to present
evidence to rebut the presumption that she was the perpetrator of abuse.
Mother’s brief at 10.

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“Due process requires that the litigants receive notice of the issues before the

court and an opportunity to present their case in relation to those issues.”

Brooks–Gall v. Gall, 840 A.2d 993, 997 (Pa.Super. 2003) (recognizing that

dependency proceedings implicate due process concerns). It is well settled

that “procedural due process requires, at its core, adequate notice,

opportunity to be heard, and the chance to defend oneself before a fair and

impartial tribunal having jurisdiction over the case.” S.T. v. R.W., 192 A.3d

1155, 1161 (Pa.Super. 2018).       Significantly, the in-court presentation of

evidence is a fundamental component of due process. M.O. v. F.W., 42 A.3d

1068, 1072 (Pa.Super. 2012). “[I]n almost every setting where important

decisions turn on questions of fact, due process requires an opportunity to

confront and cross-examine adverse witnesses.” Id. at 1072.

      Instantly, DHS established the threshold presumption of abuse pursuant

to § 6381(d).    Namely, S.L. suffered non-accidental injuries, Mother was

among the adults responsible for the child when the injuries occurred, and she

denied knowing how S.L. was injured.          Accordingly, the certified record

contained prima facie evidence that S.L. suffered an injury that would not be

ordinarily sustained but for the acts or omissions of the parents or responsible

persons. L.Z., supra at 1185. However, the trial court’s finding of prima

facie evidence against Mother did not end the analysis.

      Pursuant to the High Court’s discussion in L.Z., due process dictates that

Mother was entitled to present testimony “demonstrating that [she] did not

inflict the abuse.” Id. Mother attempted to introduce the testimony of the

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court-appointed psychologist in an effort to deflect her culpability for the

physical abuse her daughter suffered; however, the trial court summarily

rejected that evidence as irrelevant. That ruling was erroneous.

      Relevant evidence has a “tendency to make a fact [that is of

consequence to the determination of the action] more or less probable than it

would be without the evidence.”      Pa.R.E. 401(a) and (b).    Instantly, the

psychologist’s report and testimony regarding Mother’s psychological profile

and behavioral health was relevant in determining Mother’s culpability and in

rebutting the presumption that she perpetrated child abuse.        That is, the

evidence has a tendency to make a finding of Mother’s responsibility for her

daughter’s injuries more or less probable than it would be without it. At a

minimum, Dr. Reinhold’s testimony would have corroborated the competent

evidence in the record that established that Mother had suspected that Father

was the perpetrator of abuse since the day that she brought S.L. to the

emergency room.

      Whether or not Mother’s rebuttal evidence is credible or persuasive is

within the trial court’s ultimate purview. Id. However, in order to satisfy due

process, Mother was entitled to present her evidence to rebut the presumption

that she was the perpetrator of child abuse, and have the trial court make its

ultimate determination based upon the countervailing evidence.            L.Z.,

supra at 1180; M.O., supra at 1072. Mother was denied this opportunity.

Accordingly, we vacate the trial court order entered September 20, 2017, and

remand for a new hearing, wherein Mother is permitted to present competent

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evidence to rebut the § 6318(d) presumption that she perpetrated child abuse

in accordance with our High Court’s discussion in L.Z. Thereafter, the trial

court will review the countervailing evidence and evaluate the validity of the

statutory presumption.

     Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/19




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