J-A13002-20

                                  2020 PA Super 203


    IN THE INTEREST OF: A.C., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: D.C., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 3251 EDA 2019

                Appeal from the Order Entered October 15, 2019
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                        No(s): CP-51-DP-0000911-2019


BEFORE:       BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*

OPINION BY BENDER, P.J.E.:                              FILED AUGUST 19, 2020

        D.C. (“Mother”) appeals from the October 15, 2019 order finding Mother

to be a perpetrator of child abuse against A.C., born in August of 2018

(“Child”), pursuant to 23 Pa.C.S. § 6303, adjudicating Child dependent,

pursuant to 23 Pa.C.S. § 6302(1), and transferring custody of Child to the

Philadelphia Department of Human Services (“DHS”). After careful review, we

affirm.1

        The trial court issued the following Findings of Fact in its Pa.R.A.P.

1925(a) opinion:

              On May 27, 2019, [DHS] received a Child Protective
        Services (“CPS”) report that Child arrived at St. Christopher’s
        Children[’s] Hospital on March 26, 2019. DHS learned that Child
        was taken to St. Christopher’s by Mother and Father[,] and that

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   J.M.-C. (“Father”) is not a party to this appeal.
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        Child was suffering from hematomas on the right side of her head.
        A retinal exam also indicated additional trauma. Hospital staff told
        DHS that Mother stated that Child had fallen from [Mother and
        Father’s] bed. Also, Mother and Father could not explain the cause
        of older injuries discovered by CAT scans revealing that Child had
        subdural[2] hematomas which likely occurred prior to March 26,
        2019. DHS interviewed Mother who stated that … Child’s injury
        was caused when … Child fell from a three-foot high bed when
        Mother was changing … Child’s diaper upstairs. Mother denied
        that Child experienced pervious [sic] trauma. DHS interviewed
        Father who stated that he heard Child fall from the bed when he
        was downstairs. On May 28, 2019, a report by Dr. Bryan Spellman
        of St. Christopher’s Hospital indicated that Child suffered from
        non-accidental trauma to the right side of her head, showing
        layered hematomas, both old and new. Child also suffered from
        retinal hemorrhaging, indicative of non-accidental trauma in which
        … [C]hild could have been shaken, dropped[,] or pushed very
        hard. Dr. Spellman reported that the ten (10) month[-]old Child
        could not have sustained these types of injuries from solely falling
        from a bed. On May 30, 2019, DHS obtained an Order of
        Protective Custody (“OPC”) for Child. At a Shelter Care Hearing
        on May 31, 2019, the court lifted the OPC and ordered the
        temporary commitment to DHS to stand. DHS filed the underlying
        Petition for Dependency on June 5, 2019. Thereafter, on October
        15, 2019, the [c]ourt held an Adjudicatory Hearing to determine
        if Mother was a perpetrator of child abuse and if … Child should be
        adjudicated dependent. Mother was present at the hearing and
        represented by counsel. After extensive testimony, the trial court
        made a finding of child abuse versus Mother.[3] The trial court
        also adjudicated the Child dependent.

Trial Court Opinion (“TCO”), 1/3/20, at 1-3 (citations to record omitted).

        On November 14, 2019, Mother filed a timely notice of appeal, along

with a concise statement of errors complained of on appeal, in accordance


____________________________________________


2“Subdural” refers to the space between the dura (the inner lining of the skull)
and the brain. See N.T. Hearing, 10/15/19, at 22-23.

3   There was no finding of child abuse versus Father. See N.T. Hearing at 93.


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with Pa.R.A.P. 1925(a)(2).      Mother presents the following issues for our

review:

      1. Did the trial court err as a matter of law and abuse its discretion
         by entering a finding of child abuse against Mother pursuant to
         23 Pa.C.S. § 6303(b.1)(1) when insufficient evidence was
         introduced to demonstrate that Mother intentionally,
         knowingly, or recklessly caused bodily injury to [Child] through
         a recent act or failure to act?

      2. Did the trial court err as a matter of law and abuse its discretion
         by applying 23 Pa.C.S. § 6381(d) to presume Mother
         responsible for [Child’s] injury in the absence of clear and
         convincing evidence that [Child’s] injury was child abuse as
         defined in 23 Pa.C.S. § 6303(b.1)(1)?

      3. Did the trial court err as a matter of law and abuse its discretion
         by finding that Mother failed to rebut the prima facie
         presumption of responsibility for [Child’s] injury pursuant to 23
         Pa.C.S. § 6381(d)?

      4. Did the trial court err as a matter of law and abuse its discretion
         by adjudicating [Child] to be a “dependent child” pursuant to
         42 Pa.C.S. § 6302 in the absence of clear and convincing
         evidence that [Child] was “without proper parental care and
         control … as required by law?”

      5. Did the trial court err as a matter of law and abuse its discretion
         by committing [Child] to the legal custody of [DHS] in the
         absence of clear and convincing evidence that removal was
         clearly necessary?

Mother’s Brief at 3-4.

      Preliminarily, we note:

      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.




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Interest of S.L., 202 A.3d 723, 727 (Pa. Super. 2019) (quoting In re R.J.T.,

9 A.3d 1179, 1190 (Pa. 2010)).

      The Child Protective Services Law, 23 Pa.C.S. §§ 6301-6387 (“CPSL”),

defines “child abuse,” in relevant part, 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.
                                       …

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

23 Pa.C.S. § 6303(b.1)(1), (5). “Bodily injury” is defined as “[i]mpairment of

physical condition or substantial pain.” 23 Pa.C.S. § 6303(a) (“Bodily Injury”).

      Additionally, for the purposes of the CPSL, the terms “intentionally,”

“knowingly,” and “recklessly” have the same meaning as set forth in 18

Pa.C.S. § 302. See 23 Pa.C.S. § 6303(a). Section 302 of the Crimes Code

defines these kinds of culpability as follows:

      (1)   A person acts intentionally with respect to a material
            element of an offense when:

            (i)      If the element involves the nature of his conduct or
                     a result thereof, it is his conscious object to engage
                     in conduct of that nature or to cause such a result;
                     and

            (ii)     If   the   element     involves    the   attendant
                     circumstances, he is aware of the existence of such
                     circumstances or he believes or hopes that they
                     exist.

      (2)   A person acts knowingly with respect to a material element
            of an offense when:


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            (i)        If the element involves the nature of his conduct or
                       the attendant circumstances, he is aware that his
                       conduct is of that nature or that such
                       circumstances exist; and

            (ii)       If the element involves a result of his conduct, he
                       is aware that it is practically certain that his
                       conduct will cause such a result.

      (3)   A person acts recklessly with respect to a material element
            of an offense when he consciously disregards a substantial
            and unjustifiable risk that the material element exists or will
            result from his conduct. The risk must be of such a nature
            and degree that, considering the nature and intent of the
            actor’s conduct and the circumstances known to him, its
            disregard involves a gross deviation from the standard of
            conduct that a reasonable person would observe in the
            actor’s situation.

18 Pa.C.S. § 302(b).

      The requisite standard of proof for a finding of child abuse pursuant to

Section 6303(b.1) is clear and convincing evidence.       In re L.Z., 111 A.3d

1164, 1174 (Pa. Super. 2015). Clear and convincing evidence is “evidence

that is so clear, direct, weighty, and convincing as to enable the trier of fact

to come to a clear conviction, without hesitancy, of the truth of the precise

facts in issue.” G.V. v. Department of Public Welfare, 91 A.3d 667, 672

(Pa. 2014). In certain situations, however, the identity of the abuser need

only be established through prima facie evidence:

      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.

In re L.Z., 111 A.3d at 1170 (quoting 23 Pa.C.S. § 6381(d)).



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      This Court has long recognized the applicability and importance of the

evidentiary presumption in Section 6381(d) regarding the identity of the

abuser in dependency cases. See In the Interest of J.R.W., 631 A.2d 1019

(Pa. Super. 1993).   In J.R.W., we explained:

      Prima facie evidence is not the standard that establishes the child
      has been abused, which must be established by clear and
      convincing evidence; it is the standard by which the court
      determines whom the abuser would be in a given case. There is
      no conflict, constitutional or otherwise, with the clear and
      convincing evidence standard imposed by the Juvenile Act[, 42
      Pa.C.S. §§ 6301-6375 (“Juvenile Act”),] to establish child abuse.
      The Legislature has determined that the likelihood clearly
      established abuse has occurred, other than at the hands of the
      custodian, is so small that prima facie evidence the custodian has
      caused the injury, either by acts or omissions, is all that is
      required…. Such a standard provides maximum protection for the
      child victim…. Thus[,] the Legislature has balanced the needs of
      society and children for protection against the abuser’s possible
      patterned behavior and his/her right to freedom unless found
      guilty beyond a reasonable doubt.

Id. at 1024.

      Our Supreme Court reiterated our observation that “the Legislature

deemed it wise and necessary to establish a different evidentiary standard by

enacting Section 6381(d)’s presumption,” to avoid the evidentiary conundrum

where the existence of abuse is rather easily proven but the court is unable

“to assign responsibility for the heinous act among the responsible adults[,]”

and to protect children from future abuse.      In re L.Z., 111 A.3d at 1185

(quoting J.R.W., 631 A.2d at 1023). The L.Z. Court emphasized 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


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whether they actually inflicted the injury or failed in their duty to protect the

child.”   Id.   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 by 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
      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.

Id.

      Instantly, Mother claims that the trial court’s finding that she was a

perpetrator of child abuse, pursuant to 23 Pa.C.S. § 6303(b.1)(1), was an

error of law and abuse of discretion, because “DHS failed to present clear and

convincing evidence that Mother intentionally, knowingly, or recklessly caused

bodily injury to … [C]hild through act or omission.” Mother’s Brief at 18-19.

She further avers that the trial court’s conclusion that “[Child’s] injuries were

the result of ‘inflicted trauma’ by Mother amounts to ‘innuendo and suspicion,’

which is ‘… not enough to compel a finding of child abuse.’” Id. at 19 (quoting


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In Interest of J.M., 166 A.3d 408, 424 (Pa. Super. 2017)). In support of

her claim, Mother contends that Dr. Marita Lind’s testimony4 only established

that Child’s injuries “would not be expected typically after a short fall…,” and

that she did not conclude with a reasonable degree of medical certainty that

“Child could not have possibly sustained these injuries absent some sort of

non[-]accidental trauma.” Id. (citing N.T. Hearing at 38).

       Additionally, Mother argues that “insufficient evidence was presented to

establish that [her] decision to change … [C]hild on the bed was ‘reckless….’”

Id.5 Mother states that while she usually changed Child’s diaper in the pack-

and-play, she had used the bed to change Child in the past without incident.

Id. at 20. “[S]he only turned around for a moment to get a new diaper for …

[C]hild, and she did not realize that … [C]hild would be able to roll in the way

that she observed.” Id. Although Mother admitted that it was a mistake to
____________________________________________


4Dr. Lind testified on behalf of DHS as an expert in pediatric child abuse. See
N.T. Hearing at 12.

5 Mother improperly relies on the finding in C.F. v. Pennsylvania Dept. of
Public Welfare, 804 A.2d 755 (Pa. Cmwlth. 2002), that leaving an infant
unattended on top of a bunk bed for approximately 15 minutes did not rise to
the level of criminal negligence, which similarly requires evidence that the
parent “should be aware of a substantial and unjustifiable risk,” and that the
parent’s failure to perceive that risk “involves a gross deviation from the
standard of care that a reasonable person would observe in the actor’s
situation.” Mother’s Brief at 19-20 (quoting C.F., 804 A.2d at 758). See
Wells Fargo Bank N.A. v. Spivak, 104 A.3d 7, 16 (Pa. Super. 2014) (noting
that a decision by the Commonwealth Court is not binding on this Court).
Regardless, C.F. is distinguishable from the instant matter as, in C.F., there
was no evidence of trauma to the child prior to the fall and the incident was
ruled to be a “dreadful accident[.]” C.F., 804 A.2d at 756, 760-61.



                                           -8-
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lay Child on the bed when she was “restless,” she contends that her actions

amount to ordinary negligence, at most.          Id.   The record clearly belies

Mother’s claims.

       In support of its finding of child abuse, the trial court opined the

following:

             During the Adjudicatory Hearing on October 15, 2019, Dr.
       [] Lind … testified that she met Mother and Child on May 27,
       2019[,] at St. Christopher’s Children’s Hospital. During her
       examination at the hospital, Dr. Lind found soft tissue swelling and
       redness above … Child’s right eye. Dr. Lind testified that a CAT
       scan was taken of … Child’s skull the night she was taken to the
       hospital.[6] Dr. Lind testified that the CAT [s]can revealed that …
       Child had a subdural hemorrhage showing different densities of
       blood at the front of [her] skull suggesting that … Child had been
       injured in the past. Dr. Lind testified that … Child’s brain had
       shifted to a minimal extent as a result of the subdural
       hemorrhaging. Dr. Lind also testified that … Child had been
       examined by an ophthalmologist who determined that in addition
       to subdural hemorrhage that … Child had hemorrhaging behind
       both eyes. Dr. Lind testified that the nature of the hemorrhages
       behind … Child’s eyes was not consistent with a short fall.

             The DHS Social Worker, Felicia Harrison, testified that
       Mother had indicated to her that Child had sustained an injury
       when she fell from a bed. Ms. Harrison also testified that Mother
       had told her that Child had hit her head on a baby swing and had
____________________________________________


6 Child’s Glasgow Coma Score (“GCS”) was 3 upon EMS’s arrival at the home.
A GCS can range from 3 to 15. A GCS of 3 indicates that the person is “deeply
unconscious or unresponsive.” N.T. Hearing at 16-17. Child’s GCS improved
to a 10 on the way to the hospital, which indicates that she was responsive to
stimulation or pain. Id. at 17-18. While in the ER, Child’s GCS improved to
15, meaning a normal level of consciousness, but then Child began vomiting.
Id. at 18-20. “[I]n the context of the reported injuries and the reported period
of unresponsiveness[,] the vomiting led to … [C]hild having a CAT [s]can done
of the head.” Id. at 20.




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J-A13002-20


       fallen on the floor days prior to being taken to the hospital.[7] Ms.
       Harrison testified that she went to the upstairs bedroom where …
       Mother said … Child had fallen. Ms. Harrison testified that the bed
       where … Child had allegedly fallen was not three feet high[,] but
       shorter. Ms. Harrison also testified that … Mother was … Child’s
       primary caregiver.[8] Ms. Harrison testified that she believed that
       the height of the bed did not coincide with the injuries sustained
       by Child. The testimony of Dr. Lind and Ms. Harrison was accorded
       great weight.

              The trial court found clear and convincing evidence … for
       child abuse based upon the severity and unexplained nature of …
       Child’s injuries.   Furthermore, Mother’s explanation that the
       injuries were caused by a single fall from a bed (and possibly by
       being hit by a swing and falling backwards on another single
       occasion) did not satisfy the trial court as a plausible explanation
       to explain the extent of … Child’s injuries. Accordingly, the trial
       court made the determination that Mother was the perpetrator of
       child abuse….

TCO at 6-8 (citations to record omitted).          The trial court’s findings are

supported by the record.

       In regards to Mother’s assertion that Dr. Lind failed to testify with a

reasonable degree of medical certainty that Child’s injuries “could not have

possibly [been] sustained” from a fall from the bed, we note that the proper

issue that must be addressed here is whether the injuries are entirely

consistent with common types of child abuse and inconsistent with Mother’s
____________________________________________


7Ms. Harrison clarified that Child did not fall from the swing but, rather, hit
her head while Mother was trying to put her in the swing. N.T. Hearing at 69-
70. When asked if there had been any previous falls, Mother also indicated to
Dr. Lind that Child was sitting on the floor the day before, lost her balance,
and fell backwards. Id. at 32-33.

8Ms. Harrison reported that Father works outside of the home, Mother stays
home with the children, and that she was not aware of any other caretakers.
Mother indicated to Ms. Harrison that she primarily takes care of Child. N.T.
Hearing at 33.

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explanation. See In re L.Z., 111 A.3d at 1167. As DHS points out, Dr. Lind

testified that the retinal hemorrhages in the right eye were “consistent” with

“an injury of higher velocity such as a crush to the head or a shaking or

sheering injury” and were not consistent with Mother’s description of a short

fall from a bed. DHS’s Brief at 14 (citing N.T. Hearing at 28, 36-37, 60).

Additionally, Dr. Lind stated that tests performed at the hospital failed to

reveal any other explanation for Child’s injuries, i.e., a bleeding disorder or

metabolic disease. N.T. Hearing at 38. Dr. Lind stated:

      I think what I can say with a degree of medical certainty is that
      these injuries are not consistent and would not be expected
      typically after a short fall…. [T]he constellation of the change in
      consciousness for a period of time[,] the subdural hematoma[,]
      and the retinal hemorrhages would not be explained with a short
      fall or a fall of three feet.

Id. at 38-40. She further opined that “the process of falling and impacting

the ground is not typically sufficient to cause retinal hemorrhages because the

forces required to disrupt the blood vessels in the back of the eye usually

require that the eye is moving violently within the eye socket and not just one

impact.” Id. at 53-54. “[Child’s] subdural hematomas could be caused … by

higher velocity injury involving the head moving violently.” Id. at 62. Based

on the foregoing, we deem Dr. Lind’s testimony to meet the standard set forth

in L.Z.

      Contrary to Mother’s suggestion that the trial court’s finding of inflicted

trauma was based on mere “innuendo and suspicion[,]” we ascertain that the

trial court relied heavily on the overwhelming medical testimony, which


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indicated that Child’s injuries are likely the result of non-accidental trauma

and proved the injuries to be inconsistent with Mother’s explanation. See TCO

at 6-7.9 We deem the trial court’s finding of child abuse to be supported by

clear and convincing evidence and, thus, we discern no abuse of discretion.

       Next, Mother asserts that “DHS is not entitled to invoke Section 6381(d)

to establish a prima facie presumption” that she perpetrated the child abuse.

She again basis her argument on the assertion that DHS failed to present clear

and convincing evidence of child abuse.            Mother’s Brief at 22-23.

Alternatively, she argues that, even if Section 6381(d) is applicable, the prima

facie presumption has been rebutted. Id. at 23. As rebuttal, Mother avers

that when Child became unresponsive, she called for Father and directed their

son to call 911. Id. at 25. She also points to the fact that she stayed with

Child in the emergency room overnight, seated in “a little plastic chair,” that

she gave the doctor a “thorough history[,]” and that she asked appropriate

questions. Id. Additionally, Mother asserts that she and Father have five

____________________________________________


9 In support of her assertion that the trial court’s ruling was based on mere
innuendo, Mother relied on In Interest of J.M., in which we held that the
record lacked sufficient proof to support a finding of child abuse where “there
was no clear and convincing evidence that [the child] was abused or that his
injuries were non-accidental.” J.M., 166 A.3d at 424. J.M. is distinguishable
from the instant matter, however, as the child in J.M. had a fracture that,
according to the medical testimony, was consistent with a normal accident
involving a child of his age. Id. There was no evidence in J.M., as there is in
the instant matter, suggesting that the fracture was more likely to have been
caused by abuse than by an accident. Id. Moreover, there was no history of
past injuries to the child, and the mother’s testimony did not contradict the
medical testimony; rather, she proffered no explanation of how the injury
occurred, insisting that she did not know. Id. at 427.

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older children (“Siblings”), that all Siblings were medically evaluated as part

of DHS’s investigation, and that Siblings were discharged back to the care of

Mother and Father. Id. at 25-26. Siblings remain in the care of Mother and

Father, and the family has no reported history with DHS. Id. at 26.

      Having already determined that the trial court properly found sufficient

evidence to establish child abuse, we deem Mother’s claim that DHS failed to

establish prima facie evidence that she was the perpetrator of the abuse to be

meritless. The record establishes clear and convincing evidence that Child

was in Mother’s care at the time of injury and that Child’s injuries would not

ordinarily have been sustained but for the acts or omissions of Mother. See

23 Pa.C.S. § 6381(d); In re L.Z., 111 A.3d at 1185-86. Thus, DHS met its

burden of establishing prima facie evidence that Mother was the perpetrator

of child abuse. See id. at 1185 (emphasizing that a parent is responsible for

the care and protection of a child in his or her care, “whether they actually

inflicted the injury or failed in their duty to protect the child”).

      It is clear that once prima facie evidence against Mother is established,

she is entitled to present evidence to rebut that presumption. See Interest

of S.L., 202 A.3d at 729.         “Thereafter, based upon the countervailing

evidence, the trial court must determine whether the presumption is valid.”

Id. Here, the trial court found that Mother’s account of Child’s injuries being

“caused by a single fall from the bed (and possibly by being hit by a swing

and falling backwards on another single occasion)” was not a plausible

explanation, considering the severity of Child’s injuries. TCO at 7-8. The trial

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court did not abuse its discretion in discrediting Mother’s implausible

explanation and in giving weight to the testimony of Dr. Lind and Ms. Harrison.

See In re L.Z., 111 A.3d at 1186. See also Interest of S.L., 202 A.3d at

730 (“Whether or not Mother’s rebuttal evidence is credible or persuasive is

within the trial court’s ultimate purview.”).

       Moreover, aside from her implausible story, the only other form of

“rebuttal” Mother provides consists of statements regarding her actions

following Child’s injury, i.e., seeking medical attention, staying at the hospital

with Child, providing doctors with a thorough history, and asking appropriate

questions.     Mother fails to offer any evidence that she did not inflict Child’s

injuries, that Child’s injuries were accidental, or that she had given

responsibility of Child to someone else whom she had no reason to fear at the

time of the incident. See In re L.Z., 111 A.3d at 1185. Accordingly, we

discern no abuse of discretion in the trial court’s determination that Mother

perpetrated child abuse.

       Next, Mother challenges both the trial court’s dependency adjudication

and its determination that removal of Child from Mother and Father’s custody

was necessary. Mother’s Brief at 26-31. It is well-established that:

          A “dependent child” is defined, in relevant part, as one who
          is “without proper parental care or control,[10] subsistence,
          education as required by law or other care or control
____________________________________________


10“Proper parental control” is defined as “that care which (1) is geared to the
particularized needs of the child and (2) at a minimum, is likely to prevent
serious injury to the child.” Matter of C.R.S., 696 A.2d 840, 845 (Pa. Super.
1997) (internal quotation marks and citation omitted).

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          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.[] § 6302. “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.” In re D.A., 801 A.2d 614, 619 (Pa. Super. 2002)
          (en banc).

      In re M.W., [842 A.2d 425, 428] (Pa. Super. 2004). The 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. In Interest of J.M., …
      652 A.2d 877, 880 ([Pa. Super.] 1995)….

In re G.T., 845 A.2d 870, 872 (Pa. Super. 2004) (internal brackets omitted).

“Even after a child has been adjudicated dependent, … a court may not

separate that child from his or her parent unless it finds that the separation is

clearly necessary.”    Id. at 873.   “Such necessity is implicated where the

welfare of the child demands that he or she be taken from his or her parents’

custody.” Id. (internal quotation marks and citation omitted). Moreover, a

finding of abuse may support an adjudication of dependency. See Interest

of I.R.-R., 208 A.3d 514, 520 (Pa. Super. 2019); Matter of C.R.S., 696 A.2d

at 843.    “When the court’s adjudication of dependency is premised upon

physical abuse, its finding of abuse must be supported by clear and convincing

evidence.” Matter of C.R.S., 696 A.2d at 843.

      Mother claims that the trial court’s finding of child abuse against her is

not supported by sufficient evidence and, thus, the determination of abuse



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cannot sustain the dependency adjudication in this matter. Mother’s Brief at

27.     Having already determined that the trial court’s finding of abuse is

supported by clear and convincing evidence, we deem Mother’s claim to be

meritless. DHS presented medical evidence, which substantiated that Child

suffered serious physical injuries, most likely caused by inflicted trauma. This

evidence, coupled with Mother’s failure to satisfactorily explain the injuries,

led the trial court to conclude that Child was without proper parental care and

control. See In re R.P., 957 A.2d 1205, 1217 (Pa. Super. 2008); Matter of

C.R.S., 696 A.2d at 845. The trial court’s adjudication of dependency was

clearly supported by its finding of abuse versus Mother.       See Interest of

I.R.-R., supra. Thus, we discern no error or abuse of discretion by the trial

court, and we conclude that the trial court properly adjudicated Child

dependent.

        “Following a finding of dependency, the [trial] court may make an order

for the child’s disposition pursuant to the Juvenile Act, which is ‘best suited to

the safety, protection and physical, mental, and moral welfare of the child.’”

In re E.B., 83 A.3d 426, 431 (Pa. Super. 2013) (quoting 42 Pa.C.S. §

6351(a)).11     See also In Interest of N.M., 186 A.3d 998, 1001 n.9 (Pa.

____________________________________________


11   The Juvenile Act provides in relevant part:

        § 6351. Disposition of dependent child

        (a)   General rule.—If the child is found to be a dependent child
              the court may make any of the following orders of



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Super. 2018) (“Once a child has been adjudicated dependent, the issue of

custody and continuation of foster care are determined according to a child’s

best interest.”).     Before entering an order of disposition, the trial court is

required to make the following findings:

       (b)    Required preplacement findings.—Prior to entering any
              order of disposition under subsection (a) that would remove
              a dependent child from his home, the court shall enter
              findings on the record or in the order of court as follows:




____________________________________________


              disposition best suited to the safety, protection and
              physical, mental, and moral welfare of the child:

              (1)     Permit the child to remain with his parents, guardian,
                      or other custodian, subject to conditions and
                      limitations as the court prescribes, including
                      supervision as directed by the court for the protection
                      of the child.

              (2)     Subject to conditions and limitations as the court
                      prescribes transfer temporary legal custody to any of
                      the following:

                     (i) Any individual resident within or without this
                         Commonwealth, including any relative, who, after
                         study by the probation officer or other person or
                         agency designated by the court, is found by the
                         court to be qualified to receive and care for the
                         child.

                     (ii) An agency or other private organization licensed
                          or otherwise authorized by law to receive and
                          provide care for the child.

                     (iii) A public agency authorized by law to receive and
                          provide care for the child.

       42 Pa.C.S. § 6351(a)(1), (2).


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            (1) that continuation of the child in his home would be
                contrary to the welfare, safety or health of the child;
                and

            (2) whether reasonable efforts were made prior to the
                placement of the child to prevent or eliminate the need
                for removal of the child from his home, if the child has
                remained in his home pending such disposition; or

            (3) if preventive services were not offered due to the
                necessity for an emergency placement, whether such
                lack of services was reasonable under the
                circumstances….

42 Pa.C.S. § 6351(b). “[T]he child’s proper placement turns on what is in the

child’s best interest, not on what the parent wants or which goals the parent

has achieved.” In re J.J., 69 A.3d 724, 732 (Pa. Super. 2013).

      Mother claims that the trial court abused its discretion by committing

Child to DHS’s custody, because DHS failed to establish by clear and

convincing evidence that the removal of Child was necessary. Mother’s Brief

at 30-31. She further avers that the trial court did not make any finding that

an alternative to removal, i.e., home agency supervision and services, would

not be feasible. Id. at 31. Under the provisions of the Juvenile Act, however,

the trial court is given broad discretion in meeting the goal of entering a

disposition “best suited to the protection and physical, mental, and moral

welfare of the child.”   In re S.M., 614 A.2d 312, 315 (Pa. Super. 1992)

(quoting In re Lowry, 484 A.2d 383, 386 (Pa. 1984)).          The trial court’s

decision to permit a child to either remain with his present caretaker(s), or to

temporarily transfer custody to a qualified agency or individual, is “subject




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only to the express limitation” that the disposition be in the best interest of

the child. In re Lowry, 484 A.2d at 385-86.

      Here, the trial court ordered the transfer of custody of Child to the DHS.

See Order of Adjudication and Disposition (“Order”), 10/15/19, at 1.

Additionally, the trial court made the requisite pre-placement findings in

accordance with Section 6351(b) of the Juvenile Act, as reflected in the

following relevant portion of its Order:

      CHILD REMOVED FROM HOME

      The court finds that based upon the findings of abuse, neglect or
      dependency of the minor Child, it is in the best interest of … Child
      to be removed from the home of [Father] and [Mother]….

      REASONABLE EFFORTS TO PREVENT REMOVAL FROM HOME

      Further, the court hereby finds that to allow … [C]hild to remain
      in the home would be contrary to … [C]hild’s welfare, and that the
      Philadelphia [DHS] made reasonable efforts to prevent or
      eliminate the need for removal of … [C]hild from the home.

      CUSTODY/PLACEMENT

      Legal custody of … [C]hild shall transfer to the Philadelphia [DHS].

      CUSTODY AND CONDITIONS

      PLACEMENT – The Child shall remain in kinship care through
      Bethanna [Community Umbrella Agency]…. Child’s placement is
      the least restrictive placement that meets the needs of … Child
      and there is no less restrictive alternative available.

      VISITATION – The additional condition of visitation is set forth as
      follows: [Mother and Father] to have supervised visits in the
      community. Visitation may be modified by agreement of the
      parties.

      CHILD’S SAFETY

      [] [C]hild is safe in the current placement setting. Safety as of
      10/1/2019.

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      CURRENT PERMANENT PLACEMENT PLAN

      The current placement goal for … [C]hild is return to parent or
      guardian.

Order at 1-2 (unnecessary capitalization omitted).

      Based on our review, it is evident that the trial court properly focused

on the best interests of Child in making its determination of disposition. See

In re R.P., 957 A.2d at 1220 (emphasizing that the 1998 amendments to the

Juvenile Act make clear that the health and safety of the child shall supersede

all other considerations, including the rights of the parents). Given the young

age of Child, the trial court had ample evidence to conclude that Child’s health,

safety, and welfare were best served by removing her from the home. See

In re Frank W.D., 462 A.2d 708, 712 (Pa. 1983) (indicating that the age of

a child is an appropriate factor to consider in determining whether separating

a child from her parent is a “necessity”).

      We further note that the trial court has maintained a goal of reunification

with Mother and Father. See Order at 2. We have previously recognized that

reconciling the court’s decision to remove a child from her parents’ custody

with the “paramount purpose” of preserving the family unity “may require that

temporary custody of the child be given to someone other than the parents

until such time as the welfare of the child no longer demands that he be

separated from his parents.” In re S.M., 614 A.2d at 314-15 (citing In re

Frank W.D., supra (decrees concerning children are temporary and subject

to modification to meet changing conditions; appellant may institute




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proceedings to recover her child and present evidence or professional

evaluations regarding any improvement in her parenting skills and abilities)).

We conclude that the trial court’s order of disposition is supported by the

record, and we discern no abuse of discretion.

      Accordingly, we affirm the October 15, 2019 order finding Mother to be

a perpetrator of child abuse, declaring Child dependent and transferring

custody of Child to DHS.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2020




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