J-S70014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: C.H., A                :   IN THE SUPERIOR COURT OF
MINOR                                      :        PENNSYLVANIA
                                           :
                                           :
APPEAL OF: T.D., MATERNAL                  :
AUNT                                       :
                                           :
                                           :
                                           :   No. 1114 EDA 2016

                 Appeal from the Order Entered March 16, 2016
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-DP-0000576-2014


BEFORE: OLSON, OTT, MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                           FILED SEPTEMBER 28, 2016

        Appellant, T.D., the prior guardian and a female cousin1 of C.H.,

(“Child), a female born in September of 2009, appeals from the order

entered on March 16, 2016, finding Appellant abused Child pursuant to 42

Pa.C.S.A. § 6303(b) and thereby granting a petition filed by the Philadelphia

Department of Human Resources (“DHS”) for a permanency goal change to

adoption. We affirm.

        We briefly summarize the facts and procedural history of this case as

follows.    In March 2011, Appellant obtained primary and legal custody of

Child. On January 16, 2014, Child tested positive for gonorrhea. Thereafter,

____________________________________________


1
    The trial court also refers to Appellant as Child’s maternal aunt.
J-S70014-16


DHS removed Child from Appellant’s care.         After Child was adjudicated

dependent she was placed in the custody of DHS. On March 16, 2014, the

trial court held a child abuse hearing. The doctor, who performed tests on

Child for sexually transmitted diseases, testified that the four-year-old could

not have contracted gonorrhea without penetrative sexual contact. It was

undisputed that Appellant was the primary caregiver for Child at all relevant

times.   The trial court determined that there was clear and convincing

evidence of child abuse as to Appellant and granted the petition filed by DHS

for a permanency goal change to adoption. This timely appeal resulted.

      On appeal, Appellant raises three interrelated issues, claiming that the

trial court erred by finding: 1) child abuse regarding Appellant; 2) Appellant

was a perpetrator by omission because she was primary caretaker; and 3)

clear and convincing evidence of abuse. Appellant’s Brief, at 8. Appellant

concedes that the issues are consolidated and “essentially … appeals the

court’s finding of child abuse.” Id.

      The Pennsylvania Supreme Court recently set forth our standard of

review in a dependency case as follows:

         The standard of review in dependency cases requires an
         appellate court to accept 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. We
         review for abuse of discretion[.]

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

      Further, our Supreme Court determined:


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J-S70014-16


         [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.

      We reviewed the certified record, the parties’ briefs, the relevant law,

and the trial court’s opinion entered on May 18, 2016. The trial court found

credible the doctor’s testimony that Child must have contracted gonorrhea

through sexual contact.     The trial court further recognized that Appellant

was the primary caregiver for Child and Child lived exclusively in Appellant’s

home when Child contracted the disease. The trial court presumed Appellant

was the perpetrator of the abuse because Child would not have contracted

gonorrhea but for Appellant’s acts or omissions. Sexual exploitation, sexual

abuse, and serious physical injuries inflicted upon Child showed clearly and

convincingly that Child suffered child abuse as defined in 23 Pa.C.S.A. §

6303(b)(i)-(iii).   The trial court further determined that Appellant did not

offer rebuttal evidence; instead, she testified that she did not know how

Child contracted gonorrhea. Upon review, we conclude there has been no

error or abuse of discretion in this case and that the trial court’s May 18,

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J-S70014-16


2016    opinion   meticulously,   thoroughly,   and    accurately   disposes    of

Appellant’s issue on appeal.      Therefore, we affirm on the basis of the trial

court’s opinion and adopt it as our own. Because we have adopted the trial

court’s opinion, we direct the parties to include the trial court’s opinion in all

future filings relating to our examination of the merits of this appeal, as

expressed herein.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




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J-S70014-16




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                                                                               Circulated 09/20/2016 12:57 PM



                        IN THE COURT OF COMlVION PLEAS
                       FOR THE COUNTY OF PHIL_ADELPHIA
                             FAMILY COURT DMSION                                                  ..
                                                                                                  ...


                                                                                       .,vi

                                                                                       ~
                                                                                       . .~ ...
                   ~                                                               .
                                                                                        ::-~~           .::.:1
 In the interest of C.H.~ a Minor                     CP-5l-DP-0000576-2014

                                                     FID: 5l-FN-000549-2014
          ...                                                                                              t.
 APPEAL QF: T.D., prior Guardian                    . l114EDA2016: · .

 OPINION

 Fernandes, J.:

 Appellant, T .D. ("Guardian"), appeals from the order entered on March 16, 2016, making a finding
 that child abuse existed as to Guardian pursuant to 23 Pa.C.S. §6303(b). Aaron Mixon, Esq.,
 counsel for Guardian, filed a timely Notice of Appeal with a Statement ofMatters Complained of
 on Appeal pursuant to Rule 1925(b ).

 Factual and Procedural Background:
 On March 25, 2011, the Domestic Relations Court issued a custody order transferring primary
physical and legal custody of C.H. ("Child") from K.D. ("Mother") to Guardian, Child's cousin. ·
 Child was roughly eighteen months old at the time. On January 16, 2014, Guardian's cousin D.D.
 ("Cousin,,) took Child to the office of family physician Dr. Millen Gebreselassi. Following this
doctor's visit, DHS received a Child Protective Services C'CRS") report that Child had been
brought to the. doctor because she had a vaginal discharge, and had tested positive for gonorrhea.
On October 7, 2014, at the adjudicatory hearing, the Child Advocate put the court on notice that
· she would be requesting a child abuse hearing regarding Guardian.      Child was subsequently
removed from Guardian's care, adjudicated dependent and placed in DHS custody. Due to
requests for continuances, the chil~ abuse hearing was not completed until March 16, 2016. DHS
had already filed a petition for goal change and termination of parental rights to Child against
Child's parents.




                                           Page l of 6
    The court heard· the child ~buse hearing against Guardian on the ~orning of March 16> 2016. The
    trial on the termination· of Mother's parental rights. was held in the aftemoon.1                During the child
    abuse hearing, Dr. Gebreselassi testified that Cousin brought Child to the office because Child had.
    a cough,     Dr. Gebreselassi performed      a routine    physical examination and discovered "copious
    yellow discharge» issuing from Child's vagina. Cousin informed Dr. Gebreselassi that Child had
. had such discharge for a week. (N.T. 3/16/16, pg. 11). Child was swabbed for gonorrhea and
    chlamydia.   Child was positive for gonorrhea. Child was four years. old> and could not have~·.
                                                                                             .


    contracted the disease without sexual .contact. (N.T. 3/16116, pgs. 12-13). Gonorrhea has an
    incubation time between two and seven days before symptoms manifest. It can cause long-term
    fertility issues. (N.T. 3/16/16, -pgs, 14, 16).       A four-year-old child contracting gonorrhea was
    evidence of sexual abuse. ·(N.T. 3/16/16, pg. 15). Dr. Gebreselassi testified that after the physical
    she called Guardian ab~ut Child's condition, and that Guardian thought Child had-contracted the
    disease by putting a tissue in her vagina. (N'.T. 3/16/16, pg. 17); DHS's sexual abuse investigator
    testified that she made visits to the home during the time when the incident occurred. She had no
    concerns regarding the safety of any children in Guardian's home, and testified that Guardian was
    an active and involved caregiver. She also testified that Guardian's older children misbehaved and
    committed crimes which caused the family to become involved withDHS. (N.T. 3/16/16, pgs. 21-
. 23). The DHS investigator testified that she reviewed documents related to all the children in
    Guardian's care. (N.T. 3/16/16, pg. 23). The DHS investigator then testified that she had not
    reviewed all the documents related to the children in Guardian's care, and was not aware that
    Cousin had also been sexually abused in Guardian's home. {N.T. 3/16/16, pgs. 23-24). The DHS
.investigator wasalso not aware that Child had missed her scheduled physical. (N.T. 3/16/16> pgs.
25-26). Guardian testified that she did not take Child to her physical because two of her children
                                         .                .
were involved in criminal cases and their cases took up all of her time. (N.T. 3/16/16, pg. 28). ·
Guarclian testified that before the doctor's visit she walked in on Child using the toilet and noticed
the discharge from Child's vagina. Guardian asked Child if anyone had touched her> and Child
                          I                                         • -                          J

denied that anyone had. (N.T. 3/16/16, pgs. 28-29). Guardian testified that L.D., ("Daughter)))
her daughter, would sneak people into Guardian's house without Guardian's knowledge. (N.T.
3/16/16, pg. 31 ). Guardian moved from Daughter> s house because Daughter> s actions in sneaking


IBoth hearings were held on the same day, but for the purposes of this opinion, references to the Notes of
Testimony indicate the child abuse hearing only.                        ·

                                                    Page? of 6
    people in made Guardian feel the other children in the house were unsafe. Guardian testified that
    Daughter was not living in the house during January 2014, when Child likely contracted gonorrhea.
    (N.T. 3/16/16, pg. 33). Guardian testified that during January 2014, the following people were
    living in her house: Guardian, Child, Cousin, Cousin's child, M.D. ("Son l "), J.D., (''Son 2") D.D.,
    ("Son 3") and Daughter. (N.T. 3/16/1_6, pg. 33). After Child tested positive for gonorrhea, all
    these people were tested. Guardian testified that their results were all negative, but later testified
    that she didnot have the results for any of her sons, because they were all removed from her care
    by DHS   soon after. (N.T. 3/16/16, pgs. 34, 36). Guardian testified that she only ever left Child
    with Cousin and for some short periods with Daughter. Her sons were never allowed to be alone
    with Child. (N.T. 3/16/16, pgs. 32, 41 ). Guardian testified that her ex-husband P.B. ("Husband")
    sexually abused Daughter and Cousin· while Daughter and Cousin were living with Guardian.
    (N.T. 3/16/16, pgs. 35-37). Guardian pied guilty to acharge of child endangerment regarding one
    of the other children living with her.            (N.T. 3/16/16, pg. 41).      The court found by clear and
    convincing evidence that there was child abuse as to Guardian, and that the CPS report alleging
    sexual abuse was founded. (N.T. 3/16/16, pgs. 49~50). On April 13, 2016, Aaron Mixon, Esq.,
    counsel for Guardian, filed this appeal.

    Discussion:
    Guardian raises the following errors on appeal:
       1. The trial court committed reversible error in making a finding that appellant, [Guardian],
           was a perpetrator by omission due to the fact that [Guardian] was the Primary Caretaker at
           the time.
       2. The trial court committed reversible error in making a finding of child abuse regarding
           [Guardian].
       3. The trial court' s determinations set forth above were not supported by clear and convincing
           evidence.
                       .                          .    \                                                          i
All these issues on appeal were consolidated, wereby essentially Guardian appeals the court's
finding of child abuse. Child abuse is defined at 23 Pa.C.S. §6303(b)(l)2 ae:
                           .         .
           (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.


2 Because the abuse in this case occurred in January 2014·, the law in place at that time applies. The current
.definition of child abuse is found at 23 Pa.C.S. §6303(b.J ) .

                                                      . Page 3 of 6
,·


                  (ii) An act or failure to act by a perpetrator which causes nonaccidental serious mental
                  injury to or sexual abuse or sexual exploitation of 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·.·
                  exploitationof a child wider 18 years of age.

          Serious physical injury is any injury that "signiflcantly impairs a child's physical functioning,
      .                                                                                            i

          either temporarily or permanently."          Sexual abuse and sexual exploitation include the
          "employment, ll:Se, persuasion, inducement, enticement or coercion of a child to engage in or assist
          another individual to engage in sexually explicit conduct." 23 Pa.C.S. §6303(a). Child abuse must
      . be found by clear and convincing evidence. However the identity of the perpetrator is dictated by
          statutory presumption.     The person responsible for the welfare of the child is presumed a
          perpetrator of child abuse if the child sustains injuries which would not ordinarily be sustained
          absent some act or omission by the person responsible for the welfare of the· child. 23 Pa.C.S.
          §6303(d), In Interest Q{JR.W., 631 A.2d 1019, 1023-1024 (Pa. Super. 1993). · The person
                                                                                                       ..
          responsible for the child does· not need to be physically present at the time the abuse occurred, so
          long as their failure to act allowed the abuse to occur while the child was in their care. · In re L.Z.,
          111 A.3d 1164, 1184 (Pa. 2015).

      Guardian argues that the court erred in finding child abuse. Child in this case. was four years old
      when she tested positive for gonorrhea. Dr. Gebreselassi testified that contracting gonorrhea can
      cause scarring of the fallopian tubes, damage to the ovaries and infertility. (N.T. 3/16/16, pgs. 12,
          16). Dr. Gebreselassi also testified that Child could not have contracted gonorrhea without sexual
      contact, and that no environmental cause could have transmitted the disease. (N.T. 3/16/16, pgs.
      12- 13). Dr. Gebreselassi testified that for a child of Child's age to have gonorrhea indicated per
      se sexual abuse, because it showed that someone had had penetrative sex with a four-year-old.
      (N.T. 3/16/16, pg. 15).         Damage to Child's fallopian tubes and future infertility constitute
      significant permanent or temporary impairment of Child's physical functioning, so they are serious
      physical injuries as defined by .statute. Penetrative sex is clearly "sexually explicit conduct," and
      since Child could not have contracted gonorrhea any other way.Child' s positive test indicates that
      Child engaged in sexually explicit conduct with another of the kind classified by statute as sexual
      abuse and sexual exploitation.        Because Child could not have picked up the disease from the
     . environment, only by penetrative sex, the serious physical injury and sexual abuse suffered by


                                                       Page4of6
,·



       Child were nonaccidental, constituting child abuse under 23 Pa.CS. §6303(b)(l)(i) and (ii).
       Guardian testified that she had no idea how Child had contracted gonorrhea, or who had given it
       to Child. (N.T, 3/16/16, pg. 34). Guardian testified that all members of her household tested
       negative for gonorrhea, but later testified that she did not have test results for her three sons who
      had been living in the house during the time when Child contracted the disease. (N.T. 3/J 6/16,
      pgs. 33-34, 36): Guardian also testified that Daughter would sneak men into the house without
      Guardian's knowledge.      (N.T. 3/16/16, pg. 31). Guardian's inability to stop Daughter from
      sneaking people in caused Guardian to fear for the welfare of the children· in her home, so she
      moved away from Daughter. However, at the time when Child contracted gonorrhea, Daughter
      was again living in the home and had resumed sneaking men into the home at night. (N.T. 3/16/16,
      pgs. 31, 33). Guardian had plead guilty to child endangerment in the past. (N.T. 3/16/16, pg. 41).
      Guardian testified that Husband had sexually abused Daughter and Cousin in Guardian's home.
      (N.T. 3/16/16, pgs, 35-37). These facts, testified to by Guardian, were clear and convincing
      evidence of series of failures to act by a Guardian which created an imminent risk of serious
      physical injury to or sexual abuse or sexual exploitation of Child, constituting child abuse under
      23 Pa.C.S. §6303(b)(l)(iii).    Guardian was unable to rebut the statutory presumption.         DHS
      witnesses including Dr. Gebreselassi, the family doctor, were credible.

      Guardian alleges that the court erred in finding that she was the perpetrator by omission of child
     abuse. Guardian had physical and legal custody of Child, since she had obtained a custody order
     on March 25, 2011. (N.T. 3/16/16, pg. 39). Guardian was the primary caregiver for Child. Dr.
     Gebreselassi testified that gonorrhea incubates for up to a week before symptoms appear. (N.T.
     3/16/16, pg. 14).    Child showed symptoms for about a week before she was taken to Dr.
     Gebreselassi's office on January 16, 2014. (N.T. 3/16/16, pgs. 11, 17). This indicates that Child .
     contracted gonorrhea in December 2013 or January 2014. Guardian acknowledged that she was
     responsible for Child's welfare during that time. Guardian testified that she took care to make sure
                                 I                                                         .   i
     that only Cousin and Daughter were allowed to supervise Child. (N.T. 3/16/16, pg. 32). Guardian
     was the legal and physical custodian of Child, Child lived exclusively in Guardian's home and
     Guardian. identified herself as the person with responsibility for Child's care during the December
     2013 to January 2014 period when Child contracted gonorrhea. Because Child would not have
     contracted gonorrhea but for some act or omission by Guardian, while in Guardian's care,


                                                 Page 5 of 6
 ..
,;




       Guardian is presumed to be the perpetrator of child abuse. Guardian did not offer any evidence to
      rebut this presumption._ Guardian only testified that she did not know how Child contracted
      gonorrhea. (N.T. 3/16/16, pg. 34). Because Guardian did not rebut the statutory presumption that
      she was the perpetrator,the court's finding that Guardian was the perpetrator was proper.

      The court heard an affirmative case that Guardian was the perpetrator by omission .. As the person
      responsible for Child's welfare, Guardian had an affirmative duty to keep Child safe. While in her
      care, Child was abused. The court heard clear and convincing evidence that Guardian failed to
      act, and in doing so allowed Child tobe abused while in her care. The court's finding that Guardian
      was the perpetrator was proper and should be. affirmed.

      Conclusion:
      For the aforementioned reasons, the court met its statutory burden by clear and convincing
      evidence to find that Guardian was the perpetrator of child abuse. The court's finding was properly
      made and should be affirmed.



                                                           By the court,             J            '~
                                                           Josep~~·~




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