J-S06002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.R., A              :   IN THE SUPERIOR COURT OF
MINOR                                    :        PENNSYLVANIA
                                         :
                                         :
APPEAL OF: M.R., MOTHER                  :
                                         :
                                         :
                                         :
                                         :   No. 954 EDA 2017

             Appeal from the Order Entered February 17, 2017
           In the Court of Common Pleas of Philadelphia County
             Family Court at No(s): CP-51-DP-1000194-2016


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 12, 2018

     M.R. (“Mother”) appeals from the respective orders entered on

February 17, 2017, that (1) deemed Mother a perpetrator of child abuse

against her son, M.R.; (2) determined that aggravated circumstances

existed as to mother; and (3) directed that reasonable efforts toward

reunification were no longer warranted. We affirm.

     The record reveals the following pertinent facts and procedural history.

M.R. was born during May 2009.         On February 2, 2015, DHS received a

report alleging that Mother physically abused M.R., then age six.      Upon

investigation, the report was indicated.     DHS implemented a safety plan

placing M.R. in the home of his father, D.J. (“Father”).    In 2016, Father

returned M.R. to the care of Mother.
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      On May 27, 2016, DHS received a second report alleging that Mother

physically abused M.R. The trial court immediately placed M.R. in protective

custody, and transferred him to shelter care three days later. On June 10,

2016, the court adjudicated M.R. dependent. On that date, the investigation

into the May 27, 2016 report remained pending. The court scheduled a child

abuse hearing for September 9, 2016, which was continued upon agreement

of the parties.

      In the interim, a permanency review hearing occurred on December 9,

2016. The trial court found that Mother was in substantial compliance with

her single case plan (“SCP”) objectives, which included participating in

mental health treatment at the Wedge Recovery Center; participating in a

parenting program and anger management at the Achieving Reunification

Center (“ARC”); and participating in supervised visits with M.R.         N.T.,

2/17/17, at 20.

      On February 17, 2017, a combined permanency review and child

abuse hearing occurred.    DHS presented the testimony of Kitia Scott, the

Community Umbrella Agency (“CUA”) supervisor; Latoya Gallman, M.R.’s

school counselor; and Jamir Butler and Belinda Twumasi, the DHS social

services managers who investigated the reports of physical abuse. Mother

testified on her own behalf. As it relates to the issues on appeal, during the

permanency review hearing, DHS requested findings of child abuse and

aggravated circumstances as to Mother.


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      On February 17, 2017, the trial court entered a permanency review

order finding that Mother committed “child abuse” against M.R.as the term is

defined in § 6303(b.1) of the Child Protective Services Law (“CPSL”), which

we reproduce infra. In addition, the court acknowledged that Mother was in

full compliance with her permanency plan.        However, by separate order

entered on the same date, the court found that aggravated circumstances

existed against Mother pursuant to 42 Pa.C.S. § 6341(c.1) and directed that

no reasonable efforts be made to reunify her with M.R.

      Mother timely filed a notice of appeal and a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

The trial court filed its Rule 1925(a) opinion on October 27, 2017.

      On appeal, Mother presents the following issues for our review:

      1.   Did the trial court [err] when it found that [DHS] by clear
      and convincing evidence had met its burden to establish that
      aggravated circumstances and child abuse exist as to Mother
      pursuant to 23 Pa.C.S.A. § 6300, et al.?

      2.    Did the trial court [err] when it found that no efforts are to
      be made to preserve the family and reunify the child with the
      Mother and that [DHS] had met its burden pursuant to 23
      Pa.C.S.A. § 6300, et al.?

Mother’s brief at vi. Through appointed counsel, M.R. joined in the brief filed

by the Philadelphia Department of Human Services (“DHS”) in support of the

subject order.

      The following legal principles are pertinent to our review.

      [T]he standard of review in dependency cases requires an
      appellate court to accept the findings of fact and credibility

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     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. In re R.J.T., 9
     A.3d 1179, 1190 (Pa. 2010).       We review for an abuse of
     discretion, id. . . .

In the Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015).

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

§§ 6301–6375.        However, the CPSL controls determinations regarding

findings of child abuse, which the juvenile courts must find by clear and

convincing evidence.      See In the Interest of J.R.W., 631 A.2d 1019

(Pa.Super. 1993). The CPSL defines “child abuse” as follows:

     (b.1) Child abuse.-- The term “child abuse” shall mean
     intentionally, knowingly or recklessly doing any of the following:

           (1) Causing bodily injury to a child through any recent act or
           failure to act.

             ....

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

             ....

23 Pa.C.S. § 6303(b.1). Furthermore, the statute defines “bodily injury” as

“[i]mpairment of physical condition or substantial pain.”         23 Pa.C.S. §

6303(a).

     If the juvenile 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, by clear and

convincing evidence, aggravated circumstances exist.             42 Pa.C.S. §

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6341(c.1). 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. § 6302. Serious bodily injury is “[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.

      If the juvenile court determines that aggravated circumstances exist, it

“shall determine whether or not reasonable efforts . . . to preserve and

reunify the family shall be made or continue to be made. . . .” 42 Pa.C.S. §

6341(c.1). A court may end reasonable efforts at its discretion. See 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)).

      In her first issue, Mother argues that the evidence is insufficient to

support   the       court’s   findings   of    “child   abuse”     and     “aggravated

circumstances.” She advances her argument with discussion and analysis of

the CPSL only, and not with the relevant provisions of the Juvenile Act,




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supra.   Moreover, her argument is founded upon an outdated definition of

“child abuse.” Specifically, Mother asserts:

      [S]erious physical injury is any injury that causes “severe pain”
      or “significantly impairs” the child’s ability to function physically.
      23 Pa.C.S. § 6303(b). There is no testimony from any witness
      that [M.R.] was ever in “severe pain” or had any type of
      significant impairment to his ability to function physically.

      In addition, there was nothing in the testimony which indicated
      any recent act, failure to act or series of acts on the part of
      [M]other which created an imminent risk of serious physical
      injury [or] serious physical neglect which endangered the child’s
      life or development or impaired his functioning.

      Hence, there was no evidence to support a finding of child abuse
      as to [M]other under 23 Pa.C.S. § 6303(b).

Mother’s brief at 5.

      However, as previously noted, the CPSL was amended, effective

December 31, 2014, “to broaden the term ‘child abuse’ significantly.”          In

the Interest of L.Z., supra at 1168 n. 3. For instance, “bodily injury” is

now defined as “[i]mpairment of physical condition or substantial pain,”

which is considerably broader than the prior requirement of ‘serious physical

injury.’ [23 Pa.C.S.] § 6303(a).” Id. As Mother’s instant argument relies

upon the definition of child abuse in the prior version of § 6303, it is

defective.

      In contrast to Mother’s misdirected assertion, the trial court relied

upon the correct version of § 6303, as set forth above, to determine that

Mother perpetrated child abuse against M.R. Specifically, the court reasoned

as follows.

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      M.R. reported to his school counselor and teacher he was
      physically abused by his Mother on two separate occasions. The
      school counselor testified M.R. reported he was beaten with an
      extension cord and a stick by his mother on both occasions.
      [The] [s]chool counselor and nurse personally observed several
      bruises and welps [sic] on M.R.’s body. At the time of both
      incidents, M.R. reported high level of chest and hand pain. [The]
      . . . counselor testified M.R.’s injuries . . . impaired his mobile
      functions to participate in school. [She] found M.R.’s story of
      the beatings and description of a high level of pain to be
      credible.

      The DHS social worker investigator of child abuse and neglect
      testified M.R. . . . [was a victim] of physical abuse. DHS
      confirmed allegations of the Child Protective Services (CPS)
      reports where Mother was identified as the perpetrator of the
      physical abuse on both occasions.         The DHS investigator
      personally observed M.R.’s bruises and injuries. Furthermore,
      DHS testified that a safety plan for M.R. was implemented
      because M.R. stated he was fearful to return home. M.R. is
      receiving therapeutic treatment for Posttraumatic Stress
      Disorder (PTSD) as a result of the physical abuse.

      [The] [s]ocial worker manager testified she interviewed . . . M.R.
      [with respect to] the allegations of physical abuse[,] including
      but not limited [to,] beatings, hitting and punching. [She]
      indicated that M.R.’s injuries appear to be an extension cord
      mark on his chest in the shape of a U. M.R. expressed a pain
      level of 10 with 10 being the most painful.

      [The] [s]ocial worker testified during the interview [that] M.R.
      expressed he was fearful of returning home due to concern
      Mother would continue to inflict physical harm on him.
      Furthermore[,] during [the] investigation, M.R. reported [that]
      the physical abuse was ongoing and [that] it was his Mother’s
      typical form of discipline.

      Mother testified she did not possess any belts, extension cords
      or weapons. Mother . . . denied any physical abuse of M.R.
      [and] . . . testified that DHS social workers and M.R. were false
      in their stories. Furthermore, Mother testified M.R.[’s] . . .
      injuries were caused by playing outside.

Trial Court Opinion, 10/27/17, at 3 (citations to record omitted).

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      The certified record supports the court’s findings.     Latoya Gallman,

who was M.R.’s school counselor during 2015 and 2016, testified that M.R.’s

teacher sent him to her twice with injuries.      On the first occasion, M.R.

stated “that he was beaten with an extension cord[.]” N.T., 2/17/17, at 46.

Specifically, M.R. informed her that “it had happened a few times before . . .

[a]nd . . . that mom was . . . mad at him for [being] late to school.” Id.

Ms. Gallman testified that M.R. was fearful of returning home.       Id. at 47.

Ms. Gallman took M.R. to the school nurse for a physical examination, that

revealed, “bruises and welps [sic]” on the child’s back.         Id. at 46-47.

Further, Ms. Gallman testified that M.R. “said he was in pretty bad pain. . . .”

Id. at 48.

      On the second occasion, M.R. disclosed that he had sustained

additional injuries to his hand, chest, and back while trying to shield himself

from Mother’s assault with an extension cord and a stick. Id. Again, Ms.

Gallman accompanied M.R. to the school nurse, and during the ensuring

physical examination, she personally observed bruises on his “chest area.”

Id. at 49.    She stated that M.R. complained of pain in his hand, which

resulted from “trying to shield himself” during the beating.         Id.    She

explained that the pain was so significant that it was difficult for him to

write. Id. at 50.

      Jamir Butler, the DHS social services manager, testified that he

investigated the February 2, 2015 report of Mother’s physical abuse of M.R.


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The report alleged M.R. “had two scratches on the left side of his forehead

and . . . [M.R.] reported that he was smacked in the face by his mother

sometime in the past.      It also stated that . . . Mother . . . pushed [M.R.]

down the steps.” Id. at 63-64. Mr. Butler observed “a linear scratch on the

right side of [M.R.’s] right hand” that was “about four to five inches long.”

Id. at 64, 72. In addition, M.R. “had bruising on his forehead[,] . . . linear

marks . . . up and down his back[,] and old linear marks on his back that

appeared to be welts” or healing bruises. Id. at 64, 72. The investigator

also described “an old burn mark [o]n the front of the stomach.” Id. at 64.

Moreover,   Mr.   Butler    confirmed   that   M.R.   identified   Mother   as   the

perpetrator of his abuse. Id. Specifically, M.R. stated that the welts on his

back “came from his mom using sticks and cords” to beat him. Id. at 72-

73.   Mr. Butler deemed M.R. credible.”          Id. at 65, 67.      As such, he

determined that the report was indicated as to Mother’s physical abuse of

M.R. Id. at 63.

      Belinda Twumasi was the DHS social work service manager who

investigated the May 27, 2016 report. She testified that M.R. reported being

“beaten by mom with an extension cord, and he also stated that he was

punched by mom.” Id. at 85. M.R. stated that Mother punched him “[i]n

the back side.”   Id.      Ms. Twumasi personally observed injuries on M.R.,

which she described as being consistent with being whipped with an

extension cord. She explained,


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      [M.R.] had an extension cord mark on his chest that was in the
      shape of a U, as if it was wrapped around and then hit. It was
      right above his chest area. And then he also had red marks on
      his hand areas. And then he had some older bruises that were
      linear in shape.

Id. Further, she testified that M.R. stated that his level of pain was “a 10

out of a 10,” with 10 being the most painful.       Id. at 86.    Ms. Twumasi

testified that M.R. told her “this is how mother typically disciplines him.” Id.

Ms. Twumasi also confirmed that the hand injury he sustained in the assault

prevented him from holding a pencil correctly. Id. at 86-87.

      Mother denied the allegations of physical abuse that had been leveled

in both reports. Id. at 93-95. She testified that M.R. was not telling the

truth, and she called him “a liar.”    Id. at 96-97.   Mother baldly asserted,

“when [M.R. is] upset, he tells the school something.” Id. at 96. Further,

Mother testified that she does not own an extension cord and attempted to

explain M.R.’s scares and bruises as the result of “normal things that kids

do.” Id. at 94, 101.

      All of the foregoing evidence supports the trial court’s conclusion that

Mother committed “child abuse” against M.R. pursuant to § 6303(b.1)(1)

and (5) of the CPSL, supra.        The evidence demonstrates that Mother

intentionally caused bodily injury by striking M.R. with objects in a manner

that endangered him.      Specifically, DHS’s witnesses validated that M.R.

suffered impairment of physical condition or substantial pain as a result of

his injuries. See 6303(a) (defining bodily injury as “Impairment of physical


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condition or substantial pain”). Likewise, the evidence supports the court’s

determination that aggravated circumstances exist as to Mother pursuant to

§ 6302, in that at least one injury impaired the function of a bodily member,

M.R.’s hand.    Multiple witnesses testified that the injuries that Mother

inflicted upon M.R.’s hand impaired its function insofar as he could not hold a

pencil to complete his classwork.      Accordingly, we discern no abuse of

discretion.

      In her second issue, Mother argues that the court erred in ordering

that reasonable efforts toward reunification were no longer required. Mother

asserts that since she was in full compliance with her SCP objectives, the

court’s decision was tantamount to an abuse of discretion. While Mother’s

characterization of her progress is accurate, no relief is due.

      At the conclusion of the testimonial evidence, the court stated on the

record in open court that Mother was fully compliant with her SCP

objectives. N.T., 2/17/17, at 115. However, the trial court also highlighted

the overarching safety concern that required DHS to supervise Mother’s

visitations with her son.   Id.   Moreover, the court recognized that Mother

was incapable of remedying the behavior that created the underlying safety

issues. It reasoned,

      [A]t some point in time mom has to have insight as to what
      brought the case into court.    And based on the testimony
      presented today and based on mom’s presence today and her
      testimony, I don’t think that mom really gets . . . why we’re
      here. I think that mom at best minimizes what happened or


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      totally rejects it, especially when she’s calling a seven-year-old a
      liar.

Id.

      In its Rule 1925(a) opinion, the trial court further explained, “due to

the allegations of child abuse of M.R. by Mother, reasonable efforts to

reunify M.R. with Mother were not in the best interest of the child, based on

the testimony regarding the child’s safety, protection, mental, physical and

moral welfare.”   Trial Court Opinion, 10/27/17, at 4.      Our review of the

certified record verifies the court’s concerns notwithstanding Mother’s

progress with her SCP objectives. Thus, for the reasons outlined above, we

discern no abuse of discretion by the court in directing that DHS need not

continue to employ reasonable efforts to reunify M.R. with Mother pursuant

to § 6341(c.1). See In re L.V., 127 A.3d at 839. As such, Mother’s second

issue fails.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/18




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