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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.K., A       :   IN THE SUPERIOR COURT OF
MINOR AND M.K., A MINOR           :        PENNSYLVANIA
                                  :
                                  :
                                  :
                                  :
                                  :
                                  :
APPEAL OF J.K., FATHER            :   No. 1024 MDA 2016

              Appeal from the Order Entered May 26, 2016
            in the Court of Common Pleas of Lebanon County
           Juvenile Division at Nos: CP-38-DP-0000001-2016,
                         CP-38-DP-0000002-2016

IN THE INTEREST OF: A.K., M.K.,   :   IN THE SUPERIOR COURT OF
S.D., MINORS                      :        PENNSYLVANIA
                                  :
                                  :
                                  :
                                  :
                                  :
                                  :
APPEAL OF: K.S., MOTHER           :   No. 1025 MDA 2016

                 Appeal from the Order Entered May 26, 2016
              in the Court of Common Pleas of Lebanon County
  Juvenile Division at Nos: CP-38-DP-0000001-2016, CP-38-DP-0000002-
                       2016, CP-38-DP-0000003-2016

BEFORE: LAZARUS, STABILE, and RANSOM, JJ.

MEMORANDUM BY STABILE, J.:                        FILED JUNE 22, 2017

     In these consolidated appeals, J.K. (“Father”) and K.S. (“Mother”)

challenge the order entered May 26, 2016, in the Court of Common Pleas of

Lebanon County, finding aggravated circumstances and directing that no
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additional efforts should be made to reunify them with their minor children. 1

Also before us is a motion to dismiss filed by Lebanon County Children and

Youth Services (“CYS”) on December 1, 2016.            After careful review, we

affirm the order finding aggravated circumstances, and we deny the motion

to dismiss.

        The children at issue in this appeal are S.D., a female born in February

2006, M.K., a female born in July 2009, and A.K.1, a male born in August

2015. M.K. and A.K.1 are the children of both Father and Mother, while S.D.

is the child of Mother only.2         CYS became involved with S.D., M.K., and

A.K.1 following the death of A.K.1’s twin brother, A.K.2., on January 12,

2016.    The record reveals that Father was at home with the children that

day, while Mother was at work. N.T., 4/18/16, at 32. At some point in the

early evening, Father put A.K.2 to sleep by laying him on his abdomen in a

swing, with his head tilted to the side, and with a blanket covering most of

his face.3 Id. at 10, 32, 51-52. M.K. later picked up A.K.2 so that she could

hold him, but Father instructed M.K. that she had leave A.K.2 lying down so

____________________________________________


1
    We have consolidated these appeals sua sponte. See Pa.R.A.P. 513.
2
  Mother reportedly does not know the identity of S.D.’s father.           N.T.,
4/18/16, at 8-9.
3
  According to the pleadings filed in this matter, Father indicated that he put
A.K.2 to sleep at approximately 7:45 p.m. See, e.g., Dependency Petition
(S.D.), 2/10/16, at 3.




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that he would stay asleep, and placed A.K.2 back in his previous position.

Id. at 33. Father then failed to monitor A.K.2. During that evening, Father

left the children home alone and spent approximately fifteen minutes at a

local bar purchasing beer. Id. at 32, 50. Father then returned home and

watched television. Id. at 32. Mother returned home at approximately 9:15

p.m., ate dinner, and also watched television.4              Id. at 32, 51.   Neither

Father nor Mother checked on A.K.2 until approximately 10:30 p.m., at

which time they discovered that he was non-responsive and no longer

breathing.    Id. at 10-11, 32, 51.            Following’s A.K.2’s death, both he and

A.K.1. received skeletal surveys at Hershey Medical Center. Id. at 16, 20.

A.K.2’s skeletal survey revealed that he had suffered two left rib fractures,

which were six to eight weeks old, as well as a possible acute right rib

fracture, and a compression fracture of his spine. Id. at 16, 73-74. A.K.1’s

skeletal survey revealed that he had a healed right rib fracture. Id. at 20,

87.

       As a result of these events, CYS filed applications for emergency

protective custody of S.D., M.K., and A.K.1 on January 29, 2016.5 The trial
____________________________________________


4
  Mother cannot drive, and Father routinely left the children home alone in
order to transport her to and from work. N.T., 4/18/16, at 44. It is not
clear from the record whether Father left the home to transport Mother on
January 12, 2016.
5
  In its applications, CYS averred that S.D., M.K., and A.K.1 were already in
foster care, because Father and Mother signed a voluntary placement
agreement on January 27, 2017, and because the trial court issued a verbal
(Footnote Continued Next Page)


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court entered orders for emergency protective custody and shelter care

orders on February 1, 2016. CYS filed dependency petitions on February 10,

2016, and motions for finding of aggravated circumstances on March 21,

2016. In its motions for finding of aggravated circumstances, CYS averred

that it investigated a report of suspected child abuse concerning the death of

A.K.2.   See, e.g., Motion for Finding of Aggravated Circumstances (S.D.),

3/21/16, at ¶ 5-8. CYS averred that the allegations of child abuse included

“whether the Father and the Mother caused the death of a child through any

act or failure to act and whether that act or failure to act was reckless and

resulted in asphyxiation[,]” and that the report was indicated as to both

Father and Mother.           Id. at ¶ 8.         The court held a dependency and

aggravated circumstances hearing on April 18, 2016, and entered orders

adjudicating S.D., M.K., and A.K.1 dependent on April 20, 2016. On April

21, 2016, the court entered an order directing the parties to provide the

court “with any written closing statements/briefs or memorandums of law on

the issue of whether or not aggravated circumstances applies in this case.”

Order, 4/21/16.

      On May 26, 2016, the court entered an order finding aggravated

circumstances, directing that no additional efforts should be made to reunify

Father and Mother with M.K. and A.K.1, and directing that no additional

                       _______________________
(Footnote Continued)

order granting emergency custody to CYS on January 28, 2016. See, e.g.,
Application for Emergency Protective Custody (S.D.), 1/29/16, at 4.



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efforts should be made to reunify Mother with S.D.6               In its opinion

accompanying the order, the court found that Father inflicted serious bodily

injuries to both A.K.1 and A.K.2, as evidenced by the rib fracture suffered by

A.K.1, and by the rib and spine fractures suffered by A.K.2.          Trial Court

Opinion, 5/26/16, at 10-11.         The court further found that Mother inflicted

serious bodily injuries to A.K.1 and A.K.2 by omission, in that she failed to

protect A.K.1 and A.K.2 from Father. Id. Next, the court found that Father

neglected A.K.2 by putting him to sleep in a dangerous position and then

failing to check on him, and that Mother neglected A.K.2 by failing to check

on him after Father put him to sleep. Id. at 11. The court found that Father

and Mother habitually neglected their children by leaving them at home by

themselves, and by allowing S.D. and M.K. to handle A.K.1 and A.K.2 in a

dangerous manner. Id. Mother timely filed a notice of appeal on June 22,

2016. Father timely filed a notice of appeal on June 23, 2016.7, 8

____________________________________________


6
  The trial court did not make a finding that Father or Mother committed
“child abuse” pursuant to the Child Protective Services Law (“CPSL”), 23
Pa.C.S.A. §§ 6301–6386.
7
   Both Father and Mother failed to file concise statements of errors
complained of on appeal at the same time as their notices of appeal
pursuant to Pa.R.A.P. 905(a)(2) and 1925(a)(2)(i). As a result, the trial
court ordered Father and Mother to file concise statements on June 23,
2016. Mother complied with the court’s order by filing a concise statement
on June 27, 2016, and Father complied with the court’s order by filing a
concise statement on June 28, 2016. We have accepted these concise
statements pursuant to In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super.
2009) (holding that the appellant’s failure to comply strictly with Pa.R.A.P.
(Footnote Continued Next Page)


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        Before addressing the merits of these appeals, we first must consider

the motion to dismiss filed by CYS. In its motion, CYS seeks dismissal on

the basis that Father and Mother failed to request the transcript of the

August 18, 2016 dependency and aggravated circumstances hearing.9          By

way of background, Mother filed a transcript request on June 22, 2017, the

same day that she filed her notice of appeal. However, Mother mistakenly

requested the transcript of a permanency review hearing held on June 13,

2016.    The children’s guardian ad litem also filed a transcript request on

June 30, 2016, but she too requested the wrong transcript. Father did not

file a transcript request. On November 21, 2016, this Court entered a per

curiam order directing that the correct transcript be requested within five

days. On December 1, 2016, CYS filed a motion to dismiss these appeals.

In its motion, CYS averred that a transcript request had not yet been filed as

of the morning of November 30, 2016. In Father’s answer to the motion,

filed December 7, 2016, he averred that his counsel did not review our

                       _______________________
(Footnote Continued)

1925(a)(2)(i) did not warrant waiver of her claims, as there was no
prejudice to any party).
8
  This Court treats aggravated circumstances orders as appealable collateral
orders pursuant to In re R.C., 945 A.2d 182 (Pa. Super. 2008).
9
  The motion to dismiss included only Mother’s appeal in its caption.
However, the motion listed Father’s appeal as a related case, Father filed an
answer to the motion, and this Court treated the motion as applying to
Father’s appeal as well.




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November 21, 2016 order until November 28, 2016, and promptly filed a

transcript request on November 30, 2016. Similarly, in Mother’s answer to

the motion, filed December 9, 2016, she averred that her counsel was out of

the office from the afternoon of November 23, 2016, until November 29,

2016, and promptly filed a transcript request after his return on December

1, 2016.      On January 3, 2017, this Court entered a per curiam order

deferring the disposition of the motion to dismiss until our merits review of

these appeals.10

        As this Court has stressed, our Rules of Appellate Procedure require

“an appellant to order and pay for any transcript necessary to permit

resolution of the issues raised on appeal.”       Commonwealth v. Preston,

904 A.2d 1, 7 (Pa. Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007)

(citing Pa.R.A.P. 1911(a)).         In the event an appellant fails to order a

necessary transcript, this Court is empowered to deem waived the

appellant’s claims, or to dismiss the appeal. Id. (citing Commonwealth v.

Williams, 715 A.2d 1101, 1105 (Pa. 1998)); Pa.R.A.P. 1911(d).

        Here, our review of the record reveals that Father and Mother failed to

request the transcript of the April 18, 2016 dependency and aggravated

circumstances hearing.         As a result of this procedural error, we were

rendered unable to review the merits of their appeals for several months.


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10
     This Court did not receive the correct transcript until March 7, 2017.



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However, Father and Mother requested the relevant transcript within a

reasonable period of time after being ordered to do so by this Court.

Further, this is a Children’s Fast Track appeal.     This Court has a critical

interest in ensuring that the trial court’s order serves the best interests of

S.D., M.K., and A.K.1, and in ensuring that the court’s order respects the

rights of Father and Mother as parents. In light of these critical interests,

and because we discern no prejudice, we decline to find that Father and

Mother waived their claims, and we decline to dismiss these appeals.         We

therefore deny the motion filed by CYS.

      We may now turn to the merits of these appeals. Father raises two

interrelated issues for our review.

      1. Did the [trial c]ourt err in finding that aggravated
      circumstances exist as to A.K.[1], and that no additional efforts
      should be made to reunify the minor child with Father[?]

      2. Did the [trial c]ourt err in finding that aggravated
      circumstances exist as to M.K[.], [and] that no additional efforts
      should be made to reunify the minor child with Father[?]

Father’s Brief at 2.

      In addition, Mother raises three interrelated issues for our review.

      1. Did the [trial c]ourt commit[] prejudicial error in finding that
      aggravated circumstances existed in the case of [A.K.1] and
      [o]rder[ing] that [CYS] take no further steps in reunifying
      [Mother] with her child?

      2. Did the [trial c]ourt commit[] prejudicial error in finding that
      aggravated circumstances existed in the case of [M.K.] and
      [o]rder[ing] that [CYS] take no further steps in reunifying
      [Mother] with her child?


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      3. Whether the [trial c]ourt committed prejudicial error in finding
      that aggravated circumstances existed in the case of [S.D.] and
      [o]rder[ing] that [CYS] take no further steps in reunifying
      [Mother] with her child?

Mother’s Brief at 15.

      We consider these claims mindful of our well-settled standard of

review.

      [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.A. §§ 6301–6375.      The Juvenile Act provides that a child may be

adjudicated dependent if he or she meets the requirements of one of ten

definitions listed at 42 Pa.C.S.A § 6302. If a trial court determines that a

child is dependent, and aggravated circumstances have been alleged by

either the county agency or by the child’s attorney, the court must also

determine   whether aggravated circumstances        exist.    42 Pa.C.S.A §

6341(c.1). Critically, a court may not find aggravated circumstances absent

a finding of dependency. Id. If the court finds from clear and convincing

evidence that aggravated circumstances exist, the court must then consider

whether reasonable efforts should be made to reunify the child with his or

her parent or parents. Id. Following a finding of aggravated circumstances,

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“[a] court may end reasonable efforts at its discretion.”      In re L.V., 127

A.3d 831, 839 (Pa. Super. 2015) (citing In re A.H., 763 A.2d 873, 878 (Pa.

Super. 2000)).

      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 (emphasis added).        The Juvenile Act defines “serious

bodily injury” as “[b]odily injury which creates a substantial risk of death or

which causes serious, permanent disfigurement or protracted loss or

impairment of the function of any bodily member or organ.”                  Id.

“Aggravated physical neglect” is defined 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.

      On appeal, Father and Mother first challenge the trial court’s finding

that aggravated circumstances exist due to serious bodily injuries suffered

by A.K.1 and A.K.2. Father argues that the evidence does not support such

a finding because neither child had visible bruises, and because there was no

evidence that he was aware the children had bone fractures or that he


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intended to cause bone fractures. Father’s Brief at 8, 10. Similarly, Mother

argues that there was no evidence presented during the dependency and

aggravated circumstances hearing to establish that she physically abused

any of her children. Mother’s Brief at 18-23. We agree that the evidence

presented during the hearing does not support a finding of aggravated

circumstances due to serious bodily injury, although our reasoning differs

from the arguments presented by Father and Mother.

      Initially, it is clear that the death of A.K.2 does not support a finding of

aggravated circumstances due to serious bodily injury. Pursuant to the plain

language of Section 6302, serious bodily injury will only support a finding of

aggravated circumstances if it results from “physical abuse.”            See 42

Pa.C.S.A. § 6302. In this case, CYS presented compelling evidence to prove

that A.K.2 was the victim of physical abuse resulting in fractured ribs and a

fractured spine. However, there was no evidence that this abuse was the

cause of A.K.2’s death.

      Moreover, CYS failed to present evidence that the rib and spine

fractures suffered by A.K.1 and A.K.2 were “serious bodily injuries.”          As

noted above, a serious bodily injury is one that causes serious, permanent

disfigurement or protracted loss or impairment of the function of any bodily

member or organ. See id. While it is clear that the fractures suffered by

A.K.1 and A.K.2 were abusive and tragic, there was no testimony presented

during the dependency and aggravated circumstances hearing to establish


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that the fractures were life-threatening, or that they would have caused

protracted impairment of the children’s functioning. During the hearing, the

trial court heard the testimony of pediatrician Kathryn Crowell, M.D., who

evaluates suspected abuse or neglect as a member of the child protection

team at Penn State Hershey Children’s Hospital. N.T., 4/18/16, at 68. At

best, Dr. Crowell testified that A.K.1’s rib fracture would have caused “some

pain and discomfort,” and that “[y]ou would think” that A.K.2’s spine

fracture “would have caused pain.” Id. at 91-92. This evidence falls short

of that required for a finding of physical abuse resulting in serious bodily

injury.

      Mother and Father next contend that the record does not support a

finding of aggravated circumstances due to aggravated physical neglect.

Neither parent challenges the allegation that A.K.2 asphyxiated as a result of

the dangerous sleeping position that he was placed in by Father. Instead,

Father argues that his actions on January 12, 2016, were merely negligent,

and did not rise to the level of aggravated physical neglect. Father’s Brief at

9.   Mother argues that A.K.2’s death was the result of “one unfortunate,

tragic accident,” and that an accidental death cannot support a finding of

aggravated circumstances. Mother’s Brief at 20-23. We disagree.

      During the hearing, CYS presented the testimony of child protective

services investigator, Ana Marquez.          Ms. Marquez testified that she

investigated a report of suspected child abuse concerning A.K.2’s death, and


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that the report was indicated as to both Father and Mother. N.T., 4/18/16,

at 9-10. In support of this determination, Ms. Marquez testified concerning

two photographs depicting A.K.2’s sleeping position on the evening that he

died, which were entered into evidence as Exhibit 2 and Exhibit 3. Id. at 14.

In the photographs, Father is shown recreating A.K.2’s sleeping position by

placing A.K.1 in an identical position in the same swing. Id. at 11-13.

     In Exhibit 2, A.K.1 is shown lying on his abdomen in the swing. A.K.1

has a small blanket either placed over him or wrapped around him, with only

A.K.1’s face, and his legs from the knees down, being visible. A.K.1’s face

appears to be turned slightly to the left, but his nose and face are pressed

directly against the padding of the swing. In addition, the blanket partially

covers A.K.1’s face starting about halfway down his cheek.      In Exhibit 3,

A.K.1 is in the same position as before, but this time has a thicker blanket

placed on top of him. This thicker blanket covers A.K.1’s entire body, other

than the top of A.K.1’s head. The blanket covers A.K.1’s face starting just

below his eye.

     As to why this sleeping position would be dangerous, the trial court

heard the testimony of the children’s former pediatrician, Gene P. Otto III,

M.D. Upon examining Exhibit 2 and Exhibit 3, Dr. Otto testified that Father

placed A.K.1 “in the wrong sleeping position and on the wrong sleeping

surface.” Id. Dr. Otto expressed particular concern regarding the padding




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of the swing. He explained, “The soft surface allows the baby to sink into

the surface and not raise it’s [sic] head out of it as it needs to.” Id.

      Concerning the parents’ knowledge of safe sleeping positions, Dr.

Crowell testified that both A.K.1 and A.K.2 were born at Penn State Hershey

Children’s Hospital. Id. at 72, 77-78. Dr. Crowell explained that the staff at

Children’s Hospital instructs parents that babies should sleep on their back

until they are old enough roll over regularly by themselves, which can be as

early as four months, but varies from baby to baby. Id. at 79, 81. Parents

also are instructed that the baby’s crib should be “fairly empty,” and that

babies should not sleep with “big fluffy blankets or pillows, and no soft toys.”

Id. Upon reviewing the relevant medical records, Dr. Crowell testified that

Father refused to receive certain instruction from the nursing staff at

Children’s Hospital, although she was not sure what type of instruction that

was. Id. at 84. Dr. Crowell explained, “Father had said he didn’t need to

receive that information, that he had other children and was familiar with it.”

Id.

      As noted above, the Juvenile Act defines “aggravated physical neglect”

as any omission in the care of a child which results in a life-threatening

condition or seriously impairs the child’s functioning.       See 42 Pa.C.S.A.

§ 6302.   With respect to Father, the record confirms that he put A.K.2 to

sleep in a position that was dangerous. Father then failed to monitor A.K.2

and to ensure his safety.     Father’s actions, and his failures to act, were


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omissions in the        care of A.K.2,         and resulted in A.K.2’s   death by

asphyxiation. Thus, it is clear that these omissions placed A.K.2 in a life-

threatening condition and seriously impaired his functioning.11

        With respect to Mother, the record confirms that she too engaged in

omissions in the care of A.K.2. Mother arrived home from work at 9:15 p.m.

on January 12, 2016, but made no effort to check on A.K.2. for over an hour

knowing that Father left the children alone while he picked her up from

work.    Instead, Mother ate dinner and watched television.          By the time

Mother went to check on A.K.2 at 10:30 p.m., he was already non-

responsive and no longer breathing. Contrary to Mother’s argument, this act

of neglect was not an isolated incident.           Among other things, the record

reveals that Mother habitually neglected S.D., M.K., A.K.1, and A.K.2 by

leaving them home alone while Father drove her to work.             Thus, Mother

shares responsibility for the death of A.K.2.

        Accordingly, because A.K.2 was a victim of aggravated physical

neglect, aggravated circumstances exist with respect to S.D., M.K., and



____________________________________________


11
   The Juvenile Act is unclear as to what constitutes a “life-threatening
condition.” The language of Section 6302 does not specify whether “life-
threatening condition” means that the child must sustain a life-threatening
injury, or whether placing a child in a situation where he or she might
sustain such an injury would suffice. Under either interpretation, A.K.2 was
placed in a “life-threatening condition” by Father.




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A.K.1.12 See 42 Pa.C.S.A. § 6302; In the Interest of S.B., 833 A.2d 870

(Pa. Super. 2003) (finding of aggravated circumstance based upon sexual

abuse of one child is sufficient to support a dependency determination of

sibling not subject of abuse). We therefore conclude that the trial court did

not abuse its discretion by entering its May 26, 2016 aggravated

circumstances order, or by directing that Father and Mother should not be

provided with reunification efforts.

       Order affirmed. Motion to dismiss denied.

       Judge Lazarus joins the memorandum.

       Judge Ransom concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017

____________________________________________


12
    Our holding in this matter should not be construed to suggest that
aggravated circumstances exist in every case where a child’s sibling passes
away due to Sudden Infant Death Syndrome, commonly referred to as
“SIDS,” or due to other unexplained circumstances. As we stressed above, a
trial court may only find aggravated circumstances if it first determines that
a child is dependent. Often, this means that a court must find that a child is
without proper parental care or control. See 42 Pa.C.S.A. § 6302. If a
parent exercises proper parental care and control and his or her child passes
away due to a tragic accident, that parent’s remaining children would not be
dependent, and a finding of aggravated circumstances could not be made.



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