J-S60031-15

                              2015 PA Super 234

IN THE INTEREST OF: L.V., A MINOR               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




APPEAL OF: R.M., MOTHER

                                                      No. 1116 EDA 2015


                Appeal from the Order Entered March 17, 2015
             In the Court of Common Pleas of Philadelphia County
                  Family Court at No(s): 51-FN-002320-2014
                           CP-51-DP-0002528-2014



BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

OPINION BY OTT, J.:                             FILED NOVEMBER 12, 2015

     R.M. (“Mother”) appeals from the order entered March 17, 2015, in the

Court of Common Pleas of Philadelphia County, which adjudicated dependent

her minor daughter, L.V. (“Child”), born in March of 2014. The order further

provided that Mother had committed “child abuse” pursuant to the Child

Protective Services Law (“CPSL”), 23 Pa.C.S.A. §§ 6301–6386, and that

Mother’s visits with Child would remain suspended.        In addition, Mother

appeals from a separate order entered that same day, which indicated that

aggravated    circumstances   were   present,   and    that   the   Philadelphia
J-S60031-15


Department of Human Services (“DHS”) need not make efforts to reunify

Child with her parents.1 We affirm.

       On October 19, 2014, Mother and Father brought Child to the

Emergency Department at Children’s Hospital of Philadelphia (“CHOP”),

where it was discovered that Child had suffered numerous injuries, some of

which were life-threatening. N.T., 3/17/2015, at 15, 17-26, 39-40. Mother

reported that Child had been in the care of Father that day, while Mother

was at work. Id. at 86. Father initially claimed that Child rolled off of a bed

while he was in the shower. Id. at 67. However, Father later admitted that

he hit Child. Id. at 71. Father was arrested and incarcerated as a result of

Child’s injuries. Id. at 68.

       Meanwhile, DHS obtained an order of protective custody with respect

to Child on October 27, 2014. A shelter care hearing was held on October

29, 2014, and Child’s commitment to DHS was ordered to stand. DHS filed

a dependency petition on November 17, 2014, and a dependency hearing

was held on March 17, 2015. During the hearing, the trial court heard the

testimony of Dr. Carla Parkin Joseph2; DHS social worker, Anthony Hussey;

Community Umbrella Agency case manager, Christoria Releford; and
____________________________________________


1
  Child’s father, D.V. (“Father”), did not file a notice of appeal from the trial
court’s orders.
2
 Dr. Joseph’s name is also written as “Parker Joseph” in the transcript of the
dependency hearing. See N.T., 3/17/2015, at 11-12.




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Mother’s mother, S.M. (Maternal Grandmother). Following the hearing, the

trial court entered its order adjudicating Child dependent, providing that

Mother had committed “child abuse” pursuant to the CPSL, and providing

that Mother’s visits with Child would remain suspended.3         The court also

entered its order finding aggravated circumstances and indicating that DHS

need not provide reunification services.4        Mother timely filed a notice of

appeal on April 13, 2015, along with a concise statement of errors

complained of on appeal.

       Mother now raises the following issues for our review.

       [1.] Whether the trial court erred and/or abused its discretion by
       adjudicating the child dependent pursuant to 42 Pa. C.S.A. 6302
       and 6341[?]

       [2.] Whether the trial court erred and/or abused its discretion by
       determining that Mother was responsible for the child abuse
       pursuant to 23 Pa. C.S.A. 6381[?]

       [3.] Whether the trial court erred and/or abused its discretion by
       making a finding of Aggravated Circumstances as to Mother
       pursuant to 42 Pa. C.S.A. 6302[?]

       [4.] Whether the trial court erred and/or abused its discretion by
       making a determination that DHS need not make reasonable
       efforts to reunify with Mother[?]
____________________________________________


3
  Mother’s visits originally were suspended by a December 9, 2014,
continuance order. The order permitted Mother to attend Child’s medical
appointments only. The order adjudicating Child dependent does not specify
whether Mother may continue to attend Child’s medical appointments.
4
  While the trial court permitted DHS to end reunification services, the
court’s adjudication order provided that Child’s permanency goal would be
“return to parent or guardian.”



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      [5.] Whether the trial court erred and/or abused its discretion by
      suspending Mother’s visits and contact with the child[?]

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

      We first address Mother’s claim that the trial court erred and/or

abused its discretion by adjudicating Child dependent. Mother asserts that

she provided appropriate care for Child, had no reason to believe that Father

was harming Child, and participated in various services after Child’s injuries

were discovered. Mother’s brief at 13-16.

      [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 A.B., 63 A.3d 345, 349 (Pa. Super. 2013) (quoting In re R.J.T., 9

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

      Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S.

§§ 6301-6375.     The Juvenile Act defines “dependent child” as follows, in

relevant part.

      “Dependent child.” A child who:

      (1) is without proper parental care or control, subsistence,
      education as required by law, or other care or control necessary
      for his physical, mental, or emotional health, or morals. A
      determination that there is a lack of proper parental care or
      control may be based upon evidence of conduct by the parent,
      guardian or other custodian that places the health, safety or
      welfare of the child at risk, including evidence of the parent’s,
      guardian’s or other custodian’s use of alcohol or a controlled



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      substance that places the health, safety or welfare of the child at
      risk[.]

42 Pa.C.S.A. § 6302.    In order to adjudicate a child dependent, the court

must determine that the above definition has been met by clear and

convincing evidence. A.B., 63 A.3d at 349.

      Instantly, the trial court found that Child was dependent as a result of

the severe abuse inflicted on Child by Father, and as a result of Mother’s

failure to seek medical treatment for Child’s injuries prior to October 19,

2014. Trial Court Opinion, 6/9/2015, at 1-5 (unpaginated). The court also

noted that Mother continues to have a relationship with Father. Id. at 3-4.

      After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion. Dr. Carla Parkin Joseph testified

that she is a fellow in the Department of Child Abuse Pediatrics at CHOP, and

that she was part of a team that conducted an evaluation of Child on

October 20, 2014. N.T., 3/17/2015, at 12, 14-15. Dr. Joseph determined

that Child had suffered at least twenty-three rib fractures, two or three

vertebrae fractures, two pelvic fractures, and a fracture to her left foot. Id.

at 39-40. In addition, Child suffered an acute subdural hemorrhage, as well

as lacerations to her spleen and liver, pulmonary contusions to both lungs,

and small pneumothoraces on both sides of her torso. Id. at 19-20. There

was “some evidence” that Child suffered an acute kidney injury, which may

have been caused by blood loss associated with the other injuries.      Id. at




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22-26. Based on these injuries, Child was certified as a “near fatality.” Id.

at 26.

         Dr. Joseph further explained that some of Child’s rib fractures showed

signs of healing, while others did not. Id. at 18, 23. The rib fractures that

were in the process of healing would have occurred about ten to fourteen

days prior to the date Child was hospitalized, while the rib fractures that had

not yet begun to heal would have occurred a few minutes to about ten days

prior to Child’s hospitalization. Id. at 23. Dr. Joseph testified as follows.

         Q. . . . . Now, you stated the healing fractures, how much to a
         degree of certainty is [it that the fractures] happened between
         10 and 14 days?

         A. So we see the healing of the bones and we see that callous
         formation at about 10 or 14 days. And that’s really an estimate
         and, unfortunately, looking at these images and these x-rays is
         not an exact science so it could be a range and that’s why we
         say usually about 10-to-14 days is when we start to see that
         healing.

         Q. . . . . So that actually would be the 5th until the 18th [of
         October] from your estimate would be 10-to-14 days before?

         A. So between the 5th and the 9th I guess would be the 10-to-
         14 days.

         Q. . . . . What if any symptoms would a baby show that had
         previous injuries such as these?

         A. So she would be noted to be in pain with normal handling
         with the number of rib fractures that she had even normal
         handling could cause pain, fussiness in a 7[-]month[-]old child.
         ....

Id. at 48-49.




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       Dr. Joseph believed that the injuries to Child’s organs occurred within

twenty-four hours prior to her hospitalization. Id. at 22. Child’s subdural

hemorrhage was indicative of “abusive head trauma, which could be related

to a shaking mechanism or a direct impact to the head.” Id. at 36. Child’s

abdominal injuries likely occurred as a result of a direct blow or other direct

trauma to the abdomen. Id. at 37. Dr. Joseph opined that Child’s injuries

would not occur as a result of normal care, and that Child had been the

victim of non-accidental trauma or physical abuse. Id. at 23, 31, 36-37.

       In addition, Dr. Joseph testified that Child previously had been brought

to the Emergency Department at CHOP on September 30, 2014, due to

second degree burns to her right hand and right foot. Id. at 25, 41. Mother

and Father claimed that the burns occurred while Child was receiving a bath.

Id. at 25, 44. Reportedly, “the family had just moved into a new home and

had not realized that the hot and cold water was switched . . . .” Id. at 25.

Child was treated and discharged, “with a plan to follow up with our burn

clinic in about three to five days.” Id. However, Mother and Father did not

bring Child back for any follow-up treatment.5 Id.

____________________________________________


5
  Dr. Joseph also noted that, during a visit at Child’s primary care office on
an unspecified date, a physician observed that Child had certain facial
abnormalities, and requested that Child be tested for a possible genetic
syndrome. N.T., 3/17/2015, at 42. Mother and Father failed to schedule
the requested follow-up appointment. Id.




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      DHS social worker, Anthony Hussey, testified that he discussed Child’s

burns with Mother, and that Mother reported that Child was in Father’s care

at the time she was hurt. Id. at 65. Mother claimed that she did not take

Child back for follow-up care because she was working, and because Father

“may have been working.”       Id. at 65-66.    Mr. Hussey investigated the

parents’ home, and explained, “I did check the water faucets and the knobs

were on backwards and they did reside in a basement apartment and the

water heat was extremely hot and hot enough to burn or boil eggs.” Id. at

75.

      Mr. Hussey further testified that Mother seemed to be in denial, and

could not believe that Father would hurt Child.     Id. at 72.   “Mother just

appeared to be in line with [F]ather and wanted [F]ather to participate with

more DHS stuff, . . . . She wanted him to be part of the overall case.” Id.

Mr. Hussey later indicated that he was not sure if Mother was in denial, or if

she did not appreciate the seriousness of the injuries sustained by Child. Id.

at 76.    Mr. Hussey believed that Mother and Father continued their

relationship after Child was injured, because Mother would get rides with

Father to Child’s medical appointments. Id. at 71-72, 78.

      Community Umbrella Agency case manager, Christoria Releford,

testified that Father currently is incarcerated at Philadelphia Industrial

Correctional Center.   Id. at 98.   Ms. Releford believed that Mother and

Father remain in communication, and it was reported to Ms. Releford that


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Mother continues to visit Father while he is incarcerated.     Id. at 99-100.

Ms. Releford expressed concern that Mother “is not able to explain why the

injuries occurred, and neither is she was [sic] to identify who caused the

injuries as well as [M]other doesn’t seem to grasp or to accept whether

[F]ather caused injuries or not.” Id. at 100. Ms. Releford noted that Mother

has been very cooperative, and was in full compliance with the programs

that she had been involved with. Id. at 102-03.

        Accordingly, the record supports the conclusion of the trial court that

Child “is without proper parental care or control . . . .” 42 Pa.C.S.A. § 6302.

Child suffered severe abuse at the hands of Father, and it is possible that

Mother also participated in the abuse. At the very least, Mother should have

known that Child was being abused, as Dr. Joseph testified that Child’s rib

fractures would have caused her to be in noticeable pain, even with normal

handling. See N.T., 3/17/2015, at 49. Mother did nothing to stop Father

from abusing Child, or to ensure that Child received appropriate medical

care.    Moreover, Mother has a history of failing to provide appropriate

medical care for Child, as evidenced by her failure to seek follow-up

treatment for Child’s second degree burns, and by her failure to schedule an

appointment to test Child for a possible genetic syndrome. Finally, Mother

has continued to associate with Father. No relief is due.

        Mother’s second issue is that the trial court erred or abused its

discretion by concluding that she committed “child abuse,” as the record


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indicates that Child’s injuries were inflicted by Father, and Mother had no

reason to know that abuse was taking place. Mother’s brief at 16-18.

       The applicable version of the CPSL defines “child abuse” as follows, in

relevant part.

       (i) Any recent act or failure to act by a perpetrator which causes
       nonaccidental serious physical injury to a child under 18 years of
       age.

                                          ***

       (iii) Any recent act, failure to act or series of such acts or failures
       to act by a perpetrator which creates an imminent risk of serious
       physical injury to or sexual abuse or sexual exploitation of a
       child under 18 years of age.

       (iv) Serious physical neglect by a perpetrator constituting
       prolonged or repeated lack of supervision or the failure to
       provide essentials of life, including adequate medical care, which
       endangers a child’s life or development or impairs the child’s
       functioning.


23 Pa.C.S.A. § 6303(b)(1).6

       The existence of “child abuse” pursuant to Section 6303(b)(1) must be

proven by clear and convincing evidence. In re L.Z., 111 A.3d 1164, 1174

(Pa. 2015). However, under certain circumstances, the identity of an abuser

may be established by only prima facie evidence. Id.


____________________________________________


6
   Section 6303 was amended, effective December 31, 2014, and now
includes a revised definition of “child abuse.” See 23 Pa.C.S.A. § 6303(b.1).
Because Child’s injuries occurred prior to the effective date of the
amendment, we apply the previous version of Section 6303.



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     [E]vidence that a child suffered injury that would not ordinarily
     be sustained but for the acts or omissions of the parent or
     responsible person is sufficient to establish that the parent or
     responsible person perpetrated that abuse unless the parent or
     responsible person rebuts the 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. at 1185 (footnote omitted).

     Here, the trial court found that Child had suffered abuse at the hands

of Mother, because Child suffered injuries while in the care of Mother and

Father, and because Child’s injuries would not have occurred except for the

acts or omissions of Mother and Father. Trial Court Opinion, 6/9/2015, at 3-

4 (unpaginated).

     We discern no abuse of discretion. As discussed supra, Child suffered

numerous severe injuries which would not ordinarily be sustained but for the

acts or omissions of Mother and Father. While Child reportedly was in the

care of Father when she sustained the injuries to her internal organs, some

of Child’s rib fractures occurred between ten and fourteen days prior to

Child’s hospitalization. There was no evidence presented by Mother, or by

anyone else, which demonstrated that Child was in the care of Father, rather

than Mother, at the time Child’s ribs were fractured. Thus, Mother has failed

to rebut the presumption that her actions, or failure to act, caused those


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injuries. Additionally, even if Mother did not intentionally harm Child, it is

clear that she failed to stop Father’s abuse of Child, and failed to seek

medical treatment for Child’s fractured ribs. Mother’s omissions endangered

Child’s life, impaired Child’s functioning, and created an imminent risk of

serious physical injury to Child.   See 23 Pa.C.S.A. § 6303(b)(1)(iii)-(iv).

The record supports the conclusion of the trial court that Mother committed

“child abuse” pursuant to Section 6303(b)(1).

      Mother’s third issue is that the trial court erred and/or abused its

discretion by finding aggravated circumstances as to Mother. Mother’s brief

at 18-19. Mother repeats her previous arguments that Child was abused by

Father, and that she was not aware of the injuries inflicted by Father prior to

October 19, 2014. Id.

      The Juvenile Act defines aggravated circumstances as follows, in

relevant part.

      “Aggravated       circumstances.”      Any    of    the   following
      circumstances:

                                     ***

      (2) The child or another child of the parent has been the victim
      of physical abuse resulting in serious bodily injury, sexual
      violence or aggravated physical neglect by the parent.

42 Pa.C.S.A. § 6302. The Juvenile Act defines “aggravated physical neglect”

as “[a]ny omission in the care of a child which results in a life-threatening

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




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     In this case, the trial court found that the evidence presented during

the dependency hearing “supported the finding of aggravated circumstances

based on the finding of child abuse alone and additionally on the mother’s

lack of her protective capacity regarding the child.”    Trial Court Opinion,

6/9/2015, at 4 (unpaginated). Additionally, the court observed that it “‘need

not find the existence of aggravated circumstances as to a particular party;

rather it merely must determine whether they are present in the case[.]’”

Id. (quoting In re R.P., 957 A.2d 1205, 1219 (Pa. Super. 2009)).          We

agree.

     It is undisputed that Father inflicted serious bodily injuries on Child.

Moreover, the record reveals that Mother engaged in aggravated physical

neglect of Child, by failing to protect Child from Father, and by failing to

seek medical treatment for Child’s fractured ribs.      As such, the record

supports the trial court’s finding of aggravated circumstances pursuant to 42

Pa.C.S.A. § 6302, supra. No relief is due.

     Mother’s fourth issue is that the trial court erred and/or abused its

discretion by finding that DHS need not make reasonable efforts to reunify

Child with Mother. Mother’s brief at 19-20. Mother again suggests that she

has provided appropriate care for Child, that she did not abuse Child, that

she had no reason to suspect that Child was being abused by Father, and

that she participated in services soon after discovering the abuse. Id.




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      Pursuant to the Juvenile Act, if a court finds that aggravated

circumstances exist in a given case, the court must then “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 . . . .”      42 Pa.C.S.A. § 6341(c.1).       A court may end

reasonable efforts at its discretion. See In re A.H., 763 A.3d 873, 878 (Pa.

Super. 2000).

      Instantly,   the   trial   court   explained   that   the   “totality   of   the

circumstances in the instant case supports the cessation of reunification

services.”   Trial Court Opinion, 6/9/2015, at 5 (unpaginated).           Again, we

agree.

      Child was subjected to severe physical abuse. Even if Mother did not

personally participate in this abuse, she failed to protect Child from Father,

and failed to seek medical treatment for Child’s rib injuries.          Mother has

demonstrated an inability or unwillingness to provide Child with appropriate

medical care, as evidenced by her failure to seek follow-up treatment for

Child’s second degree burns, and by her failure to schedule an appointment

to test Child for a possible genetic syndrome.              Moreover, Mother has

continued to associate with Father.        Given these circumstances, the court

was within its discretion when it ordered that reunification services need not

be made. Mother is not entitled to relief.




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      Finally, Mother’s fifth issue is that the trial court erred and/or abused

its discretion by suspending her visits and contact with Child. Mother’s brief

at 20-21.     Mother emphasizes that Child’s permanency goal remains

reunification, and contends that the trial court was not permitted to end her

visits with Child absent a finding that Mother poses a grave threat of harm to

Child. Id.

      It is well-settled that,

             [i]n dependency cases such as this, the standard against
      which visitation is measured also depends upon the goal
      mandated in the family service plan.              Where, as here,
      reunification still remains the goal of the family service plan,
      visitation will not be denied or reduced unless it poses a grave
      threat. If, however, the goal is no longer reunification of the
      family, then visitation may be limited or denied if it is in the best
      interests of the child or children. The “best interests” standard,
      in this context, is less protective of parents’ visitation rights than
      the “grave threat” standard.

In re C.J., 729 A.2d 89, 95 (Pa. Super. 1999) (citations and footnote

omitted).

      The “grave threat” standard is met when the evidence clearly
      shows that a parent is unfit to associate with his or her children;
      the parent can then be denied the right to see them. This
      standard is satisfied when the parent demonstrates a severe
      mental or moral deficiency that constitutes a grave threat to the
      child.




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In re C.B., 861 A.2d 287, 294 (Pa. Super. 2004), appeal denied, 871 A.2d

187 (Pa. 2005) (citations and some quotation marks omitted).7

       For the reasons discussed throughout this opinion, it is clear that

Mother has demonstrated a severe mental or moral deficiency that

constitutes a grave threat to Child. Even assuming that it was Father who

directly caused Child’s injuries, Mother knew, or should have known, that

Child was being abused.         However, Mother did nothing to help or protect

Child until Father nearly killed her on October 19, 2014.         Mother then

continued her relationship with Father, even after Father admitted to hitting

Child. Once again, we conclude that no relief is due.8

       Accordingly, because we conclude that none of Mother’s claims entitles

her to relief, we affirm the orders of the trial court.


     Orders affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015
____________________________________________


7
 In its brief, DHS agrees that Child’s permanency goal remains reunification,
and that the grave threat standard applies. DHS’s brief at 22-23.
8
 We note that Child’s guardian ad litem filed a brief in this matter, in which
he argues that the trial court’s orders should be affirmed.



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