J-S77031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.G., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: J.C.-R., FATHER

                                                      No. 814 MDA 2016


                  Appeal from the Order Entered April 26, 2016
               in the Court of Common Pleas of Lancaster County
               Juvenile Division at No.: CP-36-DP-0000181-2015


IN THE INTEREST OF: J.C., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: J.C.-R., FATHER

                                                      No. 815 MDA 2016


                  Appeal from the Order Entered April 26, 2016
               in the Court of Common Pleas of Lancaster County
               Juvenile Division at No.: CP-36-DP-0000180-2015


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 06, 2017

        J.C.-R. (Appellant) appeals from the April 26, 2016 orders of the Court

of Common Pleas of Lancaster County, Juvenile Division, in case numbers

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S77031-16


181-2015 and 180-2015.1 In its order at case number 181-2015, the court

adjudicated M.G. (born in March of 1999) dependent, and made a finding

that M.G. was the victim of abuse perpetrated by Appellant. In case number

180-2015, the court adjudicated J.C. (born in August of 2015) not

dependent, but found aggravated circumstances as to J.C. and against

Appellant. We affirm the order in case number 181-2015 as to M.G., and

vacate in part and remand the order in case number 180-2015 as to J.C.

       Lancaster County Children and Youth Social Service Agency (the

Agency) most recently became involved with the subject family on May 15,

2015, as a result of the pregnancy of sixteen-year-old M.G. and allegations

that she was impregnated by her step-father, Appellant. Other reports were

thereafter received regarding an alleged sexual relationship between M.G.

and Appellant.      In August of 2015, M.G. gave birth to J.C., of whom, as

confirmed by genetic testing in November 2015, Appellant is the biological

father.   M.G. and Appellant denied a sexual relationship, with M.G. first

claiming that she became pregnant by a peer named “Giggles,” and then

asserting that she inseminated herself through insertion of a condom used

by Appellant.



____________________________________________


1
 The orders are dated April 20, 2016, but are time-stamped April 26, 2016.
We will use the time-stamped date.




                                           -2-
J-S77031-16


      The Agency filed petitions for dependency on August 26, 2015.        On

November 24, 2015, after completion of genetic testing, the Agency filed an

amended petition requesting a finding of abuse as to M.G., as perpetrated by

Appellant, as well as a motion for aggravated circumstances as to J.C.,

against Appellant. Because the trial court aptly summarized the events that

led the Agency to file these petitions, and related factual history, in its

opinion entered June 17, 2016, we direct the reader to that opinion for

further recitation and detail as to the facts of this case.   (See Trial Court

Opinion, 6/17/16, at 4-12).

      The trial court held hearings on December 3, 2015, January 27, 2016,

and April 20, 2016.   In support of its petitions, the Agency presented the

testimony of Sonja Stebbins, Lancaster City Police Lieutenant Detective;

Ashley Himes, Agency caseworker; M.G.; C.C.-R., M.G.’s mother and J.C.’s

maternal grandmother; Julie Stover, nurse practitioner, as an expert in

reproduction; Aubrey Bond, Agency caseworker; and Dr. Robert Filer, as an

expert in fertility and related endocrinology. In its April 26, 2016 order in

case number 181-2015, the court adjudicated M.G. dependent, and found

that she was the victim of abuse perpetrated by Appellant.        By separate

order entered that day in case number 180-2015, the court adjudicated J.C.

not dependent, and found that aggravated circumstances existed as to him,




                                    -3-
J-S77031-16


and against Appellant.2        On May 18, 2016, Appellant, through appointed

counsel, filed timely notices of appeal, along with concise statements of

errors complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i), (b). The trial

court filed an opinion on June 17, 2016. See Pa.R.A.P. 1925(a)(2)(ii). This

Court consolidated the appeals sua sponte on June 24, 2016.

       On appeal, Appellant raises the following issues for our review:

       A. The [c]ourt erred in finding [Appellant] abused M.G.

       B. The [c]ourt erred in the Order of Adjudication finding aggravated
          circumstances existed as to J.C.[]

(Appellant’s Brief, at 9).

       Our standard of review for dependency cases is as follows:

       [T]he 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) (citation omitted).       “The trial

court is free to believe all, part, or none of the evidence presented, and is

likewise free to make all credibility determinations and resolve conflicts in

the evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation

omitted).

____________________________________________


2
  The trial court additionally issued a third order, a permanency review
order, on this date, in which it found aggravated circumstances against
Appellant as to M.G. Appellant, however, does not challenge this order
and/or raise this issue on appeal. (See Appellant’s Brief, at 9, 14-20).



                                           -4-
J-S77031-16


      To adjudicate a child dependent, a trial court must determine, by clear

and convincing evidence, that the 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 that places the health,
            safety or welfare of the child at risk[.] . . .

42 Pa.C.S.A. § 6302.

      In the case sub judice, we have examined the opinion entered by the

trial court on June 17, 2016 in light of the record in this matter and are

satisfied that the opinion is a complete and correct analysis regarding the

finding that M.G. was the victim of abuse and Appellant was the perpetrator.

We, therefore, adopt the concise, thoughtful, and well-written opinion of the

trial court as dispositive of this issue. (See Trial Ct. Op., at 13-19).

      We next address the issue of the court’s finding of aggravated

circumstances as to J.C. Specifically, in finding that J.C. is not dependent,

the trial court found that, “under such circumstances as existed as of the

date of its determination, there was not clear and convincing evidence that

J.C. was a dependent child.” (Trial Ct. Op., at 21). The court then made a

finding of aggravated circumstances as to J.C.          We are constrained to

conclude that this was error.

      Pursuant to 42 Pa.C.S.A. § 6341:

      (c) Finding of dependency.─If the court finds from clear and
      convincing evidence that the child is dependent, the court shall

                                      -5-
J-S77031-16


       proceed immediately or at a postponed hearing . . . to make a
       proper disposition of the case.

       (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), (c.1) (emphasis added).3

       In other words, the statute provides that, if the trial court makes a

finding of dependency, then it shall also determine the existence of

aggravated circumstances.          See id.     Instantly, the trial court determined

____________________________________________


3
  “Aggravated circumstances” is defined as “[t]he 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. “Sexual violence” is defined as:

              Rape, indecent contact as defined in 18 Pa.C.S.[A.] § 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.[A.] § 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. We have held that the doctrine of in loco parentis is
applicable “for purposes of defining ‘parent’ in the context of ‘aggravated
circumstances[.]’” In re C.B., 861 A.2d 287, 297 (Pa. Super. 2004), appeal
denied, 871 A.2d 187 (Pa. 2005).




                                           -6-
J-S77031-16



J.C. was not dependent.     Therefore, its inquiry should have ended there.

Hence, while we are sympathetic to the trial court’s attempt to protect J.C.

in the future, its finding of aggravated circumstances as to him was in

contravention of Pennsylvania law, and is therefore a legal nullity.

Accordingly, we must vacate the court’s order to the extent it found

aggravating circumstances as to J.C.

      Consequently, we affirm the order of the Court of Common Pleas of

Lancaster County, Juvenile Division, finding M.G. to be the victim of abuse

perpetrated by Appellant, on the basis of the trial court’s opinion. We vacate

the order of the trial court to the extent it found the existence of aggravated

circumstances as to J.C., and remand to the trial court for any further

proceedings.

      Order as to M.G. affirmed.       Order as to J.C. vacated in part and

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017




                                     -7-
                                                                               ,&irçulatgd 12/20/2016 04:13 PM
                                                                           i

                                                                                  1
                                                                           k...       i   d
                                                                                                    t
 `G)

   IN,QSHE COURT OF         COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                                   JUVENILE DIVISION



cov THE INTEREST OF                               Term No. CP -36 -DP -180 -2015
 ,. _ n                                           FID: 36 -FN -109 -2015

 and

 IN        HE ?NTEREST OF                         Term No.     CP -36 -DP -181 -2015
                                                  FID:    36 -FN -110 -2015



                               OPINION :SUR APPEAL
               This opinion addresses two snparai.e but related appeals

 Ci!   ,   1    by LimilmMMOOMOMMOMOMb (hereinafter, "the Appellant ")                        .




               The first appeal addresses   t:his   Court's Order of

 Adjudication -Child Not Dependent in the case of amomplimz (date

 of birth          August-.    2015; hereinafter,        "J.C.   ")   wherein the Court

 found that aggravated circumstances had been establis'lect                                   ac,   tc


 the Appellant.

               The second appeal addresses this Court's Order of

 Adjudication and Dispositiol          -Chil,..   Dependent in the case of

 411111111M1111116    (date of birth March 11. 1999; hereinafter,                         "M.G.     ")


           Both Orders are dated April 20,          2016.        The Order in the J.C.

 case was entered upon the Clerk of Courts' docket on April 22,

 2016.           The Order in the M.G. case was entered upon the Clerk of

 Court's docket on April 2', 2016.`


             One opinion is beiw; submitted for both appeals for the following
 reasons: the Court found                    to be the perpetrator of sexual
 abuse upon               which was the basis for the finding of aggravated
 circumstances with regard toOMOMMOMMIN     These are the two issues stated in
 the Errors Complained of on Appeal, and the Court's findings as represented in
                                                              May
       The Appellant's Notices of Appeal were timely filed on

18,    2016.

        In the M.G.   case,   the family within the household consists

of M.G.'s biological mother,                                    (hereinafter,

"C.C. -R. "),   her husband (and M.G.'s stepfather)

(the Appellant),      and her three children:

Ari, and                      all of whom are the biological children of

CIMINBW1(hereinafter          "G.G. "), who is C.C. -R.'s former husband

(but who was and is not a household member).                 (See the Lancaster

County Children and Youth Social Service Agency's Petition for

Temporary Custody.)

        In the J.C.   case,   the family consists of J.C.'s bic.ulogical

mother, M.G.,     J.C.'s biological father         -   the Appellant,   and the

child, J.C.

        The Appellant,   therefore, is stepfather to M.G. and is the

biological father of J.C.

        Adjudication /Disposition Hearings were held over the course

of three days and culminated in the Orders under appeal.

        At all of the hearings,       C.C. -R.   was present and was

represented by Gina      M.   Carnes, Esquire,         G.G. was present and was

represented by Catharine        I.   Roland, Esquire,      M.G. was present

and,    in her role as the mother of J.C.,             M.G. was represented by

Daniel    H.   Shertzer, Jr., Esquire.        In addition, M.G.'s Guardian



the two Orders are based upon a single evidentiary record.

                                        -2-
ad litem, JoAnne Murphy, Esquire, was present.              The Appellant was

present and was represented by Caprice Hicks Bunting, Esquire.

Finally, J.C.'s Guardian ad litem, Jeffrey        S.   Shank, Esquire,      was

present; the child J.C. was not present due to his young age.

      At all of the hearings in both cases,       David     J.   Natan,

Esquire,      was present as the solicitor for the Lancaster County

Children and Youth Social Service Agency        (hereinafter,        "the

Agency ").

       The three hearings were held on December        3,    2015,   on January

27,   2016,   and on April 20, 2016.

       In the M.G. case,      the Appellant complains on appeal that

this Court erred when it ruled that M.G.        is the victim of child

abuse and that the Appellant is the perpetrator of such abuse.

       In the J.C. case,      the Appellant complains on appeal that

this Court erred when it made a finding of aggravated

circumstances      (as   that term is defined in the Juvenile Act)

against the Appellant.

      The Appellant is the only party to these two cases who has

sought relief by appeal to the Superior Court.




                                      -3-
                                      FINDINGS OF FACT

       1.         M.G. was born on March           2,   1999.      (N.T.   01/27/2016

at page      5)


       2.         M.G. is the mother of J.C.              (N.T.     01/27/2016 at page    6)


       3.         J.C. was born on August 25,             2015, when M.G.       was sixteen

years of age.             (N.T.    01/27/2016 at page        6)


       4.         C.C. -R. has been employed as a full -time staff member

in a medical office from a time prior to when M.G. became

pregnant and throughout the course of these cases.                            (N.T.

01/27/2016 at pages 36 -37 and at page                    90)

       5.         The Appellant consistently lived as a part of the same

household as C.C.           -R.   and M.G.      for a period of about ten years

prior to the inception of these cases.                       (N.T.    01/27/2016 at page

41)

       6.         M.G.   had spent every other weekend with her biological

father, G.G.,            but during the couple of years before these cases

began M.G. did not visit with G.G.                      (N.T.     01/27/2016 at pages 41-

42)

       7.         M.G.   refers to G.G. as her "bio dad ", while she refers

to the Appellant as               "dad"   and the Appellant and C.C. -R.

collectively as her "parents ".                   (N.T.   01/27/2016 at page 11,        page

18,   and,    by example, page            8   and page 38)




                                                 -4-
       8.      During the time period when M.G. became pregnant, the

Appellant was responsible for supervising M.G. when M.G. was at

home while C.C. -R. was at work.               (N.T.   01/27/2016 at page 41)

       9.      The fact that M.G. was pregnant was confirmed when M.G.

saw a doctor in February 2015.             (N.T.       01/27/2016 at page 13)

       l0.    After M.G. was seen by        a   doctor in February of 2015 and

was told that she was pregnant, M.G. told C.C. -R.                  and the

Appellant that she had been impregnated by                 a   fellow high school

student.       (N.T.   01/27/2016 at pages 84 -85)

       11.     The Agency received its initial referral in respect to

M.G.   on May 15,      2015.    (N.T.   12/03/2015 at page 14)

       12.     The referent's allegation was that the Appellant, who

is M.G.'s stepfather,          is   the biological father of M.G.'s unborn

child.       (N.T.   12/03/2015 at pages 14 -15)

       13.    On June 30, 2015, the Agency received another referral

that M.G. was engaging in oral sex with the Appellant.                    However,

the Agency determined this referral to be unfounded.                    (N.T.

12/03/2015 at pages 32 -34)

       14.    M.G.'s brother,       1111=11Mgm~          (who had been a household

member but who had gone to live with his father, G.G., before the

Agency filed its Petition for Temporary Custody in respect to

M.G.), was interviewed and reported that he had seen the

Appellant and M.G. kissing as well as M.G. sleeping in the




                                         -5-
Appellant's bed when C.C.        -R.   was sick and sleeping on the couch.

(N.T.    12/03/15 at page      93)

        15.     Initially,   during a meeting at the family home on May

15,   2015, M.G.       reported to the Agency caseworker that she got

pregnant after engaging in sexual intercourse with                    a   fellow high

school student whom she knew by the name of "Giggles ".                      M.G.   was

unable to state where she met "Giggles ", what his real name is or

what he looks like, and she was unable to provide any other

details about him or about their sexual encounter,                    including the

location of the party where they had their alleged sexual

encounter       (or even   whether it was at   a   house or a park) or the

identity of any of the other persons who were present at the

party.        (N.T.   12/03/2015 at pages 17 -18)

        16.    The Agency arranged for M.G.        to participate in a

forensic interview on May 26,           2015, at the Lancaster Children's

Alliance.        This was the first interview in which M.G.

participated which was video recorded.              (N.T.     12/03/2015 at page

21)

        17.     In all, M.G.   participated in three video recorded

interviews as follows:          at the Lancaster Children's Alliance on

May 26,       2015; with Detective Lieutenant Sonja Stebbins at the

Lancaster City Bureau of Police on July             6,   2015; and again at the

Lancaster Children's Alliance on September               8,   2015.       (N.T.




                                         -6-
 12/03/2015 at pages        4   -13,    Petitioner's Exhibits           1,   2   and   3   dated

 12/03/2015)

        18.       At the first interview of M.G.            at the Lancaster

Children's Alliance (on May 26, 2015), M.G. again stated that

 "Giggles"        is the father of her then - unborn child.                  M.G. related

that she and "Giggles" had engaged in sexual intercourse just

once    (at   a    party thrown by other high school students), and that

M.G.'s pregnancy resulted from this, her first and only sexual

experience for her.             (Petitioner's Exhibit         1   admitted 12/03/2015)

       19.        During the interim between M.G.'s first Lancaster

Children's Alliance interview (on May 26, 2015) and M.G.'s

interview with Detective Lieutenant Stebbins                      (on   July     6,    2015),

the Agency caseworker and the Appellant engaged in several

conversations in which the Appellant denied the allegations that

he sexually abused M.G.                (N.T.    12/3/2015 at page 23)

       20.     On or about July         5,     2015,   which was after M.G. had been

asked to meet for an interview by Lancaster City Bureau of Police

Detective Lieutenant Stebbins but before such interview occurred,

C.C. -R.     and the Appellant had a discussion at home where they

agreed that M.G. must get DNA testing to establish paternity of

her then unborn child.             (N.T.       1/27/2016 at page 86)

       21.    M.G.    overheard this discussion and reacted by ranting

and raving for twenty minutes.                   (N.T.   1/27/2016 at pages 86 and

111)



                                                -7-
        22.   After M.G. calmed down, M.G. told C.C.                  -R.   and the

Appellant that she had taken their used condom and inseminated

herself.      (N.T.   01/27/2016 at page 86)

        23.   M.G.    did not tell her story that she had become

pregnant via self -insemination with a used condom to anyone other

than C.C. -R. and the Appellant until she provided that

explanation during her July                6,   2015,   interview with Detective

Lieutenant Stebbins at the Lancaster City Bureau of Police.

(N.T.    12/03/2015 at page 74)

        24.   On July   6,    2015,    during the course of her interview by

Detective Lieutenant Stebbins at the Lancaster City Bureau of

Police, M.G.     stated that she had impregnated herself by inserting

a   condom containing semen into her vagina.                   According to M.G.,

she overheard her mother and the Appellant having sexual

intercourse and had retrieved the condom they had used from the

floor of their bedroom shortly after they finished having sex and

had left the room.           (N.T.    12/03/2015 at page 23)

        25.   During the July         6,   2015,      interview,   M.G.   told the

Detective she cut       a    hole in the tip of the condom and then

squeezed its contents into her vagina.                     (Petitioner's Exhibit      3


admitted 12/03/2015)

        26.   Thereafter, the Agency implemented a safety plan which

prohibited the Appellant from having any contact with M.G. or

with Mother's other children.                   (N.T.   12/03/2015 at page 27)


                                                -8-
       27.   On August 27,             2015,    which was two days after J.C.'s

birth, M.G. and J.C. were placed into the physical custody of the

Agency.      (N.T.      12/03/2015 at page 27)

       28.   M.G. was interviewed by the Lancaster Children's

Alliance for       a    second time on September               8,   2015.   During that

interview, M.G. maintained that she was impregnated by way of her

self - insemination through inserting a used and discarded condom

into her vagina.           However, M.G.'s precise description of how she

accomplished this was at variance with the description she gave

to Detective Lieutenant Stebbins on July 6,                         2015,   as M.G.   now

claimed that the condom was "halfway open" when she inserted it

(and made no mention of having cut off the tip and squeezing it).

(Petitioner's Exhibit             3    admitted 12/03/2015)

       29.   Julie Stover, who is a registered nurse practitioner

employed by Lancaster General Health and by the Lancaster

Children's Alliance and who has long experience working with

children and youth who have been victims of sexual abuse, was

present during the September                   8,    2015,   interview of M.G. at the

Lancaster Children's Alliance.                       (N.T.   01/27/2015 at pages 162-

167)

       30.   Ms.       Stover attempted to glean additional details about

how M.G. became pregnant from M.G. but M.G.                         shut down and was

non -responsive.          (N.T.       01/27/2015 at pages 185 -186)




                                                    -9-
        31.        Ms.    Stover was qualified as an expert in the field of

reproduction.              (N.T.   01/27/2016 at pages 162 -176; Petitioner's

Exhibit       5    of 01/27/2016)

        32.        Ms.    Stover's opinion was that M.G. could not have

gotten pregnant in the manner she described with the insertion of

the discarded condom into her vagina.                        (N.T.   01/27/2015 at page

185)

        33.        Ms.    Stover's opinion is that M.G. became pregnant as a

result of child sexual abuse.                  (N.T.    01/27/2015 at page 185)

        34.        On or about November        9,    2015,    genetic testing confirmed

that the Appellant is the biological father of J.C.

(Petitioner's Exhibit A attached to the Agency's Amended Petition

for Custody filed November 24,                 2016).

        35.        At the hearing held on January 27,                2016, M.G.   admitted

that she had lied during the Children's Alliance interview on May

26,    2015,       when she stated that the Appellant is not the

biological father of the Child.                     (N.T.    01/27/2016 at pages    8   -9)

        36.       M.G.    further went on to testify that on the night she

had inseminated herself she had placed the used condom over her

index and middle fingers and had then inserted it into her

vagina.           (N.T.   01/27/2016 at pages 31 -32)

       37.        As of the December      3,    2015,       hearing, M.G. had informed

the Agency caseworker that she wanted no contact with her

biological father, G.G.               (N.T.    12/03/2015 at page 46)


                                              -10-
                38.     M.G. gave J.C. the same name as the Appellant.                (N.T.

    01/27/2016 at page 43)

                39.     M.G. stated that she had decided to have a baby to make

    C.C. -R.          happy because C.C.      -R.    could not have any more children.

     (N.T.       01/27/2016 at pages 46 and             58)

                40.     On January 26, 2016,          the Appellant was charged

    criminally as a result of the inappropriate sexual contact with

    M.G.2         (N.T.       01/27/2016 at page 101)

                41.     On January 27,       2016,    M.G.    testified that she loves the

    Appellant and that she was upset that the Appellant was

    incarcerated.               (N.T.    01/27/2016 at page 70)

             42.        Robert    B.    Filer, M.D.,    was called as a witness on

    behalf of the Agency.                  (N.T.    04/20/2016 at page 37)
4
             43.        Dr.    Filer was qualified as an expert with regard to

    fertility and related endocrinology.                        (N.T.   04/20/2016 at page

    38)

             44.       Dr.     Filer offered his opinion that assuming a

    hypothetical factual setting which accepts as true the version of

    facts and conditions rendered by M.G.                      which is most likely to

    result in pregnancy,                the best chance of getting pregnant under




            2
                The Court takes judicial notice that Jamie (sic) Cruz -Rivera,
    d.o.b. 10/04/1978, was charged on January 26, 2016, with violations of 18
    Pa.C.S.A. § 3122.1 §§ B Statutory Sexual Assault: 11 Years Older (F1), 18
    Pa.C.S.A. § 6301 §§ (A) (1) (ii) Corruption of Minors - Defendant Age 18 or
    Above (F3), and 18 Pa.C.S.A. § 6318 §§ (A) (1) Unlawful Contact with Minor           -

    Sexual Offenses (F3).   See Docket Number: MJ- 02101 -CR- 0000028 -2016.
such facts and conditions would be less than one percent.                  (N.T.

4/20/2016 at page 51)

       45.    The Court asked M.G.     to tell the story of the fateful

night that she got pregnant in reverse order,              from the end to the

beginning.      (N.T.   04/20/2016 at pages 60 -61)

       46.    M.G.   was unable to relate any portion of any version of

her story in reverse order.          (N.T.    04/20/2016 at pages 61 -68).

       47.    M.G. was unable to state a reason why she gave two

distinct versions of how she applied the used and discarded

condom to herself       (those being the version in which the condom

was "halfway open" and was placed over her index and middle

fingers inside -out and then inserted it and the version where

M.G.   cut a hole in the tip of the condom,            inserted it and

squeezed out the contents).          (N.T.    04/20/2016 at pages 68 -69)

       48.    M.G. stated that the correct method of self -

insemination she utilized was by turning the used condom inside

out and inserting it in herself.             (N.T.   04/20/2016 at page 69)

       49.   By the time of the final hearing, April 20,           2016,

Mother indicated she would be filing for divorce from

Father /Stepfather.       (N.T.   04/20/2016 at page 26)



                           CONCLUSIONS OF LAW
       1.    In respect to the case of M.G.,         the record contains

clear and convincing evidence that M.G. is a victim of child


                                      -12-
abuse as defined at 23 Pa. C.S.A.               §   6303 and that the Appellant

is the      perpetrator of such child abuse upon M.G.3

       2.     In respect to the case of J.C., Aggravated Circumstances

as defined at 42 Pa.        C.S.A.   §   6302 were established by clear and

convincing evidence with regard to the Appellant due to the fact

that a child of the Appellant            (specifically, M.G.)         other than

J.C.   is the   victim of sexual abuse perpetrated by the Appellant.



                                 DISCUSSION

                   FINDINGS IN RESPECT TO CHILD ABUSE

                  AND THE PERPETRATOR OF CHILD ABUSE

       Child abuse is defined in the Child Protective Services Law

(the               23 Pa.   C.S.A.   §   6303       (b.1),   in relevant part,   as

follows:

            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 recent act...

       Judicial findings in respect to:                (1)   whether child abuse

which supports a finding of dependency has occurred; and,                    (2)      if

child abuse has occurred, the identity of the perpetrator of such


      3     Due to the fact that M.G. had been in placement for a substantial
period of time, a permanency review was conducted as an integrated part of the
hearings.  The Court issued a Permanency Review Order dated April 20, 2016,
and filed April 26, 2016, in which the Court found that aggravated
circumstances existed as to the Appellant.  The Appellant did not raise any
issue as to this finding in either of his appeals to the Superior Court.

                                         -13-
abuse,      are subject to a "clear and convincing evidence" standard

of proof.          23   Pa.   C.S.A. 6341    (c);   In Re L.Z.,   111 A.3d 1164   (Pa.


2015).      Clear and convincing evidence must be established to

support a finding of Aggravated Circumstances.                     Clear and

convincing evidence is testimony that is so "clear, direct,

weighty and convincing as to enable the trier of fact to come to

a clear conviction,              without hesitance, of the truth of the

precise facts in issue.                 In Re K.M.,   53   A.3d 781 (Pa.Super.

2012)   .




        A further consideration is the presumption created under 23

Pa.C.S.A.      §    6381      (d),   which reads, in relevant part, as follows:

             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...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 the present case, it is a matter of scientific fact that

the Appellant is the biological father of J.C.                     M.G.'s pregnancy

with the Appellant's child, J.C., "would ordinarily not exist

except by reason of" the Appellant's acts.

        There were no witnesses who testified as to the act which

led to J.C.'s conception other than M.G.

        The Appellant offered no testimony to rebut the statutory

presumption which arises from the fact that the child, M.G.,




                                             -14-
became pregnant by her much older stepfather, which circumstance

by necessity falls within the concept of "sexual abuse ".

          M.G. offered numerous inconsistent stories in respect to the

manner in which she became pregnant.          Her stories were notable

for an absence of much detail and also for inconsistencies in one

or more critical details with each of her several iterations.

Also of significance is that M.G. was unable to respond at all

when the Court gave her an ample opportunity to tell the true

story of what happened on the fateful night when she became

pregnant but to do so by telling the story in a reverse order.'

      M.G.'s estrangement      from her own biological father, G.G.,

was established through several sources.           The Appellant had the

opportunity to engage in      a   sexual relationship with M.G., in that

he was responsible for supervising her while she was at home and

C.C. -R. was at work.      M.G.   admitted her affection for the

Appellant.      She gave her child J.C. the same name as the

Appellant.      She acknowledged her personal distress caused by the

Appellant's incarceration.        Clearly, M.G. had motives to protect

the Appellant.      Each of these nuances are individually indicia of

a potential absence     of candor on M.G.'s part,       or provide reasons


      4
             The undersigned attended the seminar presented at the Pennsylvania
Conference of State Trial Judges Mid -Annual meeting in February, 2016,
entitled "Verum or Mendacium" presented by Prof. Dr. Aldert Vrij of the
University of Portsmouth, Great Britain. Dr. Vrij is a recognized expert in
the field of lie detection.   One of the points he made is that liars tend to
omit detail, particularly any detail which is subject to verification, from
their stories.   Dr. Vrij also suggested that many liars find it difficult to
relate their stories in reverse order.

                                     -15-
for same.     Viewed cumulatively, these nuances point strongly to

the conclusion that none of varying renditions which M.G. offered

is credible.     "The trial court is free to believe all, part,          or

none of the evidence presented and it is likewise free to make

all credibility determinations and resolve conflicts            in the

evidence ".    In re M.G.,   855 A.2d 68,    73 -74   (Pa.Super. 2004)

     Once this Court has rejected the story that M.G. became

pregnant by way of self -insemination,        then the obvious manner in

which she became pregnant is by way her engaging in sexual

intercourse with the Appellant.

     The expert testimony of Robert B. Filer, M.D., was credible

and compelling, and is supportive of the Court's ultimate

conclusion regarding the manner that J.C.'s conception was

achieved.     Firstly, Dr. Filer's credentials as an expert in human

reproduction are beyond reproach.          His testimony established that

there is an infinitesimal chance that M.G. could have been

impregnated by inserting a used condom containing the Appellant's

semen.

     The testimony of Julie Stover, R.N.P.,           while not as

compelling as that of Dr. Filer      (as    her conclusion rests, at

least in part, upon her best sense of the situation based upon

her experience with child sexual abuse cases rather than upon the

science of human reproduction) is none the less supportive of the




                                   -16-
conclusion which this Court reached                   -   that J.C. was conceived

through direct sexual contact between the Appellant and M.G.

      In addition,         there are the reports of physical contact

between the Appellant and M.G. which are consistent with the

existence of       a   sexual relationship between them.                 Standing alone,

these reports would be insufficient proof of that relationship.

However,       in the context of the other cumulative                  evidence, they

bolster the Court's conclusion that such                     a    relationship did

exist.

     Under the CPSL at 23 Pa.C.S.A.                   §   6303,   the following is

included, inter alia,             within the definition of "sexual abuse or

exploitation ":

     ...(ii)      Statutory sexual assault as defined in 18 Pa.C.S.                     §


3122.1;...and,

     ...(xii)      Unlawful contact with a minor as defined in 18

Pa.C.S.    §   6318.

     18    Pa.C.S.     §   3122.1       (b)   states that "[a] person commits a

felony of the first degree when that person engages in sexual

intercourse with a complainant under the age of 16 years and that

person is 11 or more years older than the complainant and the

complainant and the person are not married to each other."                           Each

of the elements of this offense are present in the instant case.

     18 Pa.C.S.        §   6318   (a)     states, in relevant part,        that:




                                               -17-
       "A person commits an offense if he is            intentionally in

contact with a minor...for the purpose of engaging in an activity

prohibited under any of the following, and either the person

initiating the contact or the person being contacted is within

this Commonwealth:       (1)   Any of the offenses enumerated in Chapter

31   (relating to sexual offenses)..."             Again, each of the elements

of this offense are present in the instant case.

      Even in a criminal matter where proof beyond a reasonable

doubt is the evidentiary standard, it is well established that

the standard may be satisfied where only circumstantial evidence

is offered.     "The Commonwealth may sustain its burden of proving

every element of the crime beyond a reasonable doubt by means of

wholly circumstantial evidence."             Commonwealth v. Andrulewicz,
911 A.2d 162,    165   (Pa.Super.    2006)   ,   citing Commonwealth v.

DiStefano,    782 A.2d 574,    582   (Pa.Super 2004).       For further

exposition of the concept,       the Court reviewed the Pennsylvania

Suggested Standard Criminal Jury Instructions and found the

following:

           Circumstantial evidence alone may be sufficient to
     prove the defendant's guilt.   If there are several
     separate pieces of circumstantial evidence, it is not
     necessary that each piece standing alone separately
     convince you of the defendant's guilt beyond a
     reasonable doubt.   Instead, before you may find the
     defendant guilty, all the pieces of circumstantial
     evidence, when considered together, must reasonably and
     naturally lead to the conclusion that the defendant is
     guilty and must convince you of the defendant's guilt
     beyond a reasonable doubt.   In other words, you may
     find the defendant guilty based on circumstantial

                                      -18-
          evidence alone, but only if the total amount and
          quality of that evidence convince you of the
          defendant's guilt beyond a reasonable doubt.  Pa. SSJI
          (Crim) 7.02A 4.

          In the present case,   there is the direct scientific evidence

 that the Appellant is the biological father of J.C.             There is Dr.

 Filer's expert opinion that it is highly unlikely conception

 could have occurred through any of the methods described by M.G.

 The balance of the evidence is circumstantial in nature.

          In reviewing the totality of the evidence against the highly

 stringent standard of proof beyond a reasonable doubt,            this Court

 is satisfied that the evidence is sufficient to meet that test

 and is more than sufficient      to far exceed that degree of proof

necessary to meet the "clear and convincing evidence" standard

which is applicable in this case.'



                  FINDING OF AGGRAVATED CIRCUMSTANCES

          The Court found that "aggravated circumstances" had been

proven as to the Appellant due to its finding that the Appellant

had sexually abused M.G.

      The relevant definition of "aggravated circumstances"

applicable to the instant matter is... "(2)         ...another child of




      5
            After the record was closed in these proceedings, according to the
Agency's brief in the appeal, M.G. has admitted that she and the Appellant had
a sexual relationship.  The Answer To Statement Of Matters Complained Of On
Appeal filed on behalf of C.C. -R. indicates the same.

                                     -19-
 the parent has been the victim of...sexual violence...by the

 parent ".     23    Pa.       C.S.A.   §    6302.   (Irrelevant material omitted.)

          The Appellant is not the biological father of M.G., but he

 is her stepfather.               The Superior Court has established that for

 the purpose of defining the term "parent"                      in the context of

 aggravated circumstances,                   the doctrine of in loco parentis may be

 appropriately applied.                 In    the Interest of C.B.       and A.L.,     861

A.2d 287 (Pa.Super. 2004).                    The Appellant stood in the

relationship of            a   parent to M.G. by assuming the obligations

incident to the parental relationship.                        In the case of J.C., M.G.

is    "another child of the parent"                    (the Appellant)   who "has been

the victim of sexual violence by the parent."

        Clear and convincing evidence must be established to support

a finding of        Aggravated Circumstances.                42 Pa.C.S.A.    8   6341

 (c.1).     Again,    "clear and convincing evidence"                is testimony that

is    so "clear,     direct,       weighty and convincing as to enable the

trier of fact to come to a clear conviction, without hesitance,

of the truth of the precise facts in issue.                        In Re K.M.,    53    A.3d
781    (Pa.Super.     2012).

       The same evidence which supports the Court's findings in

respect to child abuse more than amply supports its finding that

aggravated circumstances exist in respect to the actions of the

Appellant vis -à -vis M.G.               The analysis of the evidence set forth

in the first part of the discussion above                      (regarding the Court's


                                                -20-
 findings in respect to child abuse)         is applicable in this

 instance as well.

         The Appellant may argue that it is improper for this Court

 to make a finding of aggravated circumstances in the context of

an adjudication order where the subject child is found to not be

dependent, as occurred here.       It is axiomatic that the finding of

dependency,     or the lack thereof, must be based upon the facts and

circumstances as they exist when a court makes its ruling on the

issue.     As of the date of the final hearing in this case          (April

20,   2016),   the circumstances had evolved significantly from those

which existed as of the time the Agency brought its petition.

The Appellant had been incarcerated.          C.C. -R. had indicated her

intention to divorce the Appellant.          J.C. had been in M.G.'s care

since his birth, and there was every indication that he would be

safe if he were to remain in her care.          The Agency, while arguing

that both M.G. and J.C. were dependent, was supportive of its

retaining only legal custody of M.G., with her physical custody

to be returned to C.C. -R.    and with J.C. to remain with M.G.

(N.T.    04/20/2016 at pages 75 -79)      M.G.'s counsel argued

persuasively that M.G. herself was         a ready,   willing and able
parent    (albeit with the supports in place for her in her mother

C.C. -R.'s home).    The Court found that, under such circumstances

as existed as of the date of its determination,          there was not
clear and convincing evidence that J.C. was a dependent child and



                                  -21--
issued its Order so finding, but the Court also made its finding

that clear and convincing evidence,        as noted above,   existed which

established aggravated circumstances as to the Appellant.

        It   may be argued that the Court's finding of aggravated

circumstances is      a   nullity where there is no finding that a child

is dependent.       It may be   further argued that without an ongoing

case,    a   finding of aggravated circumstances accompanied by a

finding that the Agency need not offer a plan for reunification

serves no practical purpose.

        In the ordinary course of events,     a court will address the

issue of aggravated circumstances subsequently to making its

finding that a child is dependent.         See In the Interest of R.P.,

957 A.2d 1205      (Pa.Super. 2008).

        The Court has attempted to find appellate authority on the

issue of whether a court may make a finding of aggravated

circumstances where there is no finding in the same case that           a

child is dependent, but has been without success.

        The Court is aware of the provision in 42 Pa.C.S.A.      §   6341

(c.1)    which provides that:

               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

                                    -22-
            hearing as required in section 6351(e)(3) (relating to
            disposition of dependent child). (Emphasis supplied.)

            The legislature's choice of the word "shall"      indicates that
 it    is   mandatory for   a   court to rule on the issue of whether

 aggravated circumstances exist where a child has been determined

 to be dependent and motion for the finding has been made.               A
 finding of aggravated circumstances is a legal conclusion drawn

by a court having jurisdiction and is based upon the facts as

found by the court.         The Juvenile Act defines what constitutes

aggravated circumstances and states when a court is compelled to

make a legal determination upon the issue.             The Juvenile Act does

not exclude the finding of aggravated circumstances by a court

where,       as in the instant case,      the issue has been fully and

fairly litigated and there is a factual basis proven by clear and

convincing evidence which supports a finding of aggravated

circumstances.        Rather,    a   court should be permitted to make the

finding where, as here, the court is not mandated to make the

determination by the strict terms of the statute but the finding

is nonetheless appropriate and in the interest of the subject

child and of justice.

        The Court is highly mindful of its responsibility to enter

an order of "disposition best suited to the protection and

physical, mental and moral welfare of the child."             24 Pa.C.S.A.   §

6351    (a).    Under the circumstances,       the Court has concern that in

the absence of a finding of aggravated circumstances,           the

                                        -23-
Appellant's chances of his eventually reuniting with J.C. will be

enhanced.     That eventuality would be contrary to the protection

and physical, mental and moral welfare of J.C.      A finding of

aggravated circumstances carries with it collateral consequences

which the Court believes are appropriate in this case and which

the Appellant should not escape only because J.C.         is now in a

safe place with M.G.    Those consequences may include, but are not

limited to,   forming an appropriate consideration for a court in

the future should it be faced with the issue of whether to grant

the Appellant a plan for reunification.      The finding may also be

a   significant part of a court's consideration of the safety of a

child in a child custody case where the Appellant is a party or

is a household member of a party.      See 23 Pa.C.S.A.    §   5329.1.   As

such,   there is ample legal basis and good reason to sustain this

Court's finding of aggravated circumstances.




                                -24-
                                                                 CONCLUSION
                 The Appellant's appeals are without merit.                                  The Order of
        Adjudication and Disposition -Child Dependent with regard to

        Monica Geib dated April 20, 2016, and the Order of
                                                           Adjudication -
        Child not Dependent with regard to Jaime Cruz dated April
                                                                  20,

        2016,         should be affirmed.
            ,.   _.        ..    ...   .
                                                ....


i   C?rtify this document to be filed                                       BY THE COURT:
in ::he Lancaster County Office
    ,
                                                            of
the » ;eri` of the Courts.
                                                                                iliMalTarM
                                                        )
                                                                 %
                                                                                  Wi eich,      Judge
                      ``?.,
                                           ,"

                       7.72 " CJ
                                                7
                                                       ¡,    -AL,...,
                                                                   ..,

                      //    L-


                        7JaJcµ.,Eryn P.CF4sÍCh
                            Clerk of Courts

        Copies to:

         David J. Natan, Esquire, Counsel for Children and Youth
                                                                 Agency
         Gina M. Carnes, Esquire, Counsel for C.C. -R.
         Catharine I. Roland, Jr., Esquire, Counsel for G.G.
         JoAnne Murphy, Esquire, Guardian ad litem for M.G.
         Daniel S. Shertzer, Jr., Esquire, Counsel for M.G.
         Caprice Hicks Bunting, Esquire, Counsel for the
                                                         Appellant
         Jeffrey S. Shank, Esquire, Guardian ad litem for J.C.




                                                                     -25-
