J-A10032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


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

APPEAL   OF:   BRADFORD          COUNTY        No. 1824 MDA 2014
CHILDREN & YOUTH SERVICES


            Appeal from the Order entered September 29, 2014,
         in the Court of Common Pleas of Braford County, Juvenile
                Division, at No(s): CP-08-DP-0000006-2014

BEFORE: GANTMAN, P.J., MUNDY, and JENKINS, JJ.

MEMORANDUM BY JENKINS, J.:                        FILED AUGUST 10, 2015

     Appellant, Bradford County Children and Youth Services (“CYS”),

appeals from the trial court’s order entered on September 29, 2014,

adopting the Master’s Recommendation finding that J.L. (“Mother”) did not

emotionally abuse B.L. (“Child”), and that aggravated circumstances against

Mother did not exist.1     This finding followed a request by CYS at a

September 24, 2014 permanency review hearing that the Master find Mother

emotionally abused Child. We reverse and remand, with instructions.

     On April 20, 2014, CYS received a report that Child, who was born in

August, 2008, had been locked in his bedroom for three days, and was

permitted out of his bedroom only to eat. The reporter informed CYS the

room was bare except for a potty chair.           CYS contacted the police

department. When police officers arrived at the residence, Child was locked


1
 B.G., Child’s father (“Father”), was incarcerated at the time of the incident
and remains incarcerated. Father is not a party to this appeal.
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inside the bedroom.    Child’s bed was inside the closet, and the bed was

soaked in urine. The officers found feces on Child’s bedroom floor and on

the wall.

      On April 20, 2014, CYS filed an amended dependency petition2 and,

that same day, the trial court issued an emergency order temporarily placing

Child in the protective custody of CYS.    Emergency Order, 4/2-/2014. On

April 23, 2014, following a shelter care hearing, the trial court ordered CYS

to obtain custody of Child, and Child was placed in foster care.

      Mother testified at a May 22, 2014 adjudicatory hearing.        Mother

admitted Child was locked in the bedroom at night and several times during

the day.    Mother regularly left Child home with Mother’s girlfriend, A.W.,

whom Child feared.    On May 22, 2014, Child was adjudicated dependent.

The dependency order allowed Mother to have supervised visits with Child,

but A.W. was not allowed to have contact with Child.

      Following a June 26, 2014 dispositional hearing, the Master filed a

Recommendation, which the trial court adopted on July 1, 2014 and which

included the following findings:



2
  On February 10, 2014, CYS filed a dependency petition alleging Child was
without proper care or control and alleging he remained in the home but was
in imminent risk of placement in foster care absent preventive services. The
petition filed by CYS followed a report that Child had unexplained injuries
inconsistent with Child’s report of such injuries. The petition requested
access to Child at school and home to assess Child’s safety. That same day,
the trial court issued an order granting CYS access to Child to view the
injuries and interview Child.
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           1. The report of Richard E. Dowell, Jr., Ph.D., clinical
           neuropsychologist, finds [Child] suffers from post
           traumatic stress disorder arising from the environment in
           which Mother has raised [Child].

           2. The Child has extreme behavioral issues that have
           resulted in his having to repeat Kindergarten and his
           having an inability to interact appropriately with others.

Master’s     Recommendation      for    Disposition,    6/26/2014,     at   2;   Order,

7/1/2014.

      On September 24, 2014, the Master held a permanency hearing. At

the permanency hearing, Samantha Group, a foster care coordinator; G.K.,

Child’s    foster   mother   (“Foster   Mother”);      and   Nicole   Pidcoe,    a   CYS

caseworker, testified. At the hearing, CYS presented the written report of

Richard E. Dowell, Jr., Ph.D., a clinical neuropsychologist. Dr. Dowell opined

that Child suffered from Post-Traumatic Stress Disorder (“PTSD”). The trial

court quoted the following portions of Dr. Dowell’s report:

                     According     to    available     records/reports,
              [C]hild’s history is remarkable for the presence of
              multiple home environment risk factors including
              parental separation, paternal absences, reports of
              residing with multiple sexual perpetrators including
              biological father, paternal arrests/incarcerations
              (multiple), inconsistencies, unpredictability, foster
              care placement, multiple caretakers, possible abuse,
              neglect and deprivation. Biological (family history)
              risk factors are not clear, but likely include significant
              mental health issues. No child medical or biological
              risk factors were identified. Symptom onset was
              described as being gradual during early childhood
              with interval history being characterized by a trend
              for worsening of problems as a function of
              environmental demands.


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           Under the heading "FAMILY HISTORY,” Dr. Dowell included
     the following:

                 According to parental reports, family history is
           remarkable    for   significant  problems/conditions
           including problems with aggression, attentional
           problems, learning disability, depression, anxiety or
           adjustment problems, alcohol abuse, substance
           abuse, antisocial behavior, arrests/incarceration,
           physical abuse (victim), sexual abuse (victim) and
           sexual abuse (perpetrator).

          The Dowell report also included the following under
     "PSYCHOSOCIAL HISTORY”:

                  According to parental reports, the home
           environment throughout infancy, early childhood is
           remarkable for the presence of multiple home
           environment      risk    factors    including    parental
           separation, paternal absences, reports of residing
           with multiple sexual perpetrators including biological
           father, paternal arrests/ incarcerations (multiple),
           inconsistencies,      unpredictability,    foster    care
           placement, multiple caretakers, possible abuse,
           neglect and deprivation. Recent social history has
           been remarkable for significant problems including
           sibling rivalry, aggression, argumentativeness,
           having few friends and difficulties making friends.

           Dr.    Dowell’s   neuropsychological    test     results    and
     interpretation yielded the following conclusions:

                 While no specific etiology can be identified
           based solely on this profile, children with similar
           presentations commonly have histories of exposure
           to significant home environment stressors (i.e.,
           abuse, neglect, deprivation, exposure to domestic
           violence, multiple moves, inconsistencies, placement
           outside the home, etc.) or limited support (i.e.,
           parental arrests/ incarcerations, limited parental
           support for education, parental egocentricity, etc.).

           Dr. Dowell further opines:


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                This discrepancy between abilities and skills is
          common among children with histories of neglect,
          deprivation, limited parental supervision and/or
          elevated distress levels secondary to multiple
          caretakers, inconsistencies, abuse or unpredictable
          conditions.

          The Dowell Report continues:

                The validity scale profile of the PIC-R is
          remarkable for an open and honest response style
          with evidence of significant parental distress (T =
          98). In contrast, parental report on the Family
          Relations (T = 67) scale is suggestive of a relatively
          predictable and stable current home environment.
          The     observed    discrepancy     between     home
          environment (low) and parental (high) distress levels
          is atypical and, when present, tends to be associated
          with parental feelings of being overwhelmed by the
          demands of parenting this child and/or parental
          requirements to compensate for child weaknesses
          particularly with respect to higher level executive
          functions or coping resources. Findings imply that
          parent education, training and/or support to assist
          the family in implementing intervention programs or
          plans may be of benefit in assisting them in
          generalizing their understanding of intervention
          strategies into the real world setting. Parents with
          similar presentations also often receive community
          or home-based therapies.

          Dr. Dowell concludes:

                 The child P1C-R profile is remarkable for
          clinically significant elevation on an overall measure
          of adjustment (Adj T = 114). This level of child
          distress is about 6.4 standard deviations above the
          norm. Children with similar distress levels typically
          display elevated limbic system-driven “fight or flight”
          distress responses for which they perceive very
          limited control.       As noted above, no specific
          biological/neurological etiologies are identified on
          testing. Therefore, an environmental explanation or


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               etiology appears likely.      This   presentation   is
               consistent with a [PTSD].

                     Comparison of Externalizing (average T 96) vs.
               Internalizing (average T = 98) coping resources
               reveals balance.      This balanced coping style is
               generally associated with low levels of distress. The
               coincidence of high levels of distress despite
               balanced coping resources is atypical and, when
               present, is almost universally associated with a
               history of victimization or exposure to life stressors
               for which the child has control.

Trial Court Pa.R.A.P. 1925(a) Opinion, 11/10/14, at 1-3.

      At the hearing, CYS requested that the Master find that Mother

committed emotional abuse of Child. N.T., 9/24/2014, at 25-26.3 Following

the hearing, the Master recommended that:

         [B]ased upon Dr. Dowell’s report it [cannot] be found by
         clear and convincing evidence that Mother perpetrated
         emotional abuse [of Child]. It is only clear someone or
         some combination of persons within that environment
         committed the abuse. The actor may have been a third
         party or parties. Mother clearly neglected to protect this
         [C]hild from this environment, but [cannot] be found to
         have actually perpetrated the abuse. The Master finds that
         based upon this record the requested finding [cannot] be
         made applying the applicable burden of proof to the facts.

Master’s Recommendation – Permanency Review, 9/24/2014, at 1-2.4        On

September 29, 2014, the trial court adopted the Master’s Recommendation

in an order.


3
 It appears CYS made a similar request at a prior hearing. N.T., 9/24/2014,
at 25-26. At that time, the trial court withheld judgment. Id. at 26. The
certified record does not contain the notes of testimony from the prior
hearing.


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      On October 24, 2014, CYS filed a timely notice of appeal from the

order, along with a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). CYS raises the following issues

on appeal:

      1. Did the lower court err in failing to find that [M]other’s failure
         to protect [Child] caused non-accidental serious mental injury
         to [Child]?

      2. Did [CYS] fail to properly preserve this matter for appeal?

CYS’s Brief at 6.

      We will address CYS’s second issue first, as it questions whether CYS

has waived its first claim. The trial court maintained that CYS waived any

challenge to the Master’s Recommendation because it failed to file a

challenge to the Recommendation within three days of receipt of the

recommendation.      See Pa. R.J.C.P. 1191 (“A party may challenge the

master’s recommendation by filing a motion with the clerk of courts within

three days of receipt of the recommendation”). The Master did not make a

finding regarding whether Mother perpetrated emotional abuse at the

hearing, N.T., 9/24/2014, at 25-27, and the trial court docket indicates the

Recommendation, which was dated September 24, 2014, was not entered on

the docket until September 29, 2014. Further, the docket does not contain

any notation that the Recommendation was served on CYS.             Because the


4
  The Master further recommended, inter alia, that the court find that Child
continues to be dependent, legal and physical custody of Child continue to
be with CYS, and Child’s foster-care placement shall continue.
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J-A10032-15


court did not serve CYS with a copy of the Master’s Recommendation, CYS

did not waive its issues for failure to file a challenge. 5 In re L.M., 923 A.2d

505, 509 (Pa.Super.2007) (“Where there is no indication on the docket that

Rule 236(b) notice has been given, then the appeal period has not started to

run.”).

      CYS challenges the Master’s recommendation, adopted by the trial

court, which found CYS did not prove by clear and convincing evidence

Mother abused Child.    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.” In re R.J.T.,
      608 Pa. 9, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for
      abuse of discretion[.]

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

      Section 6341 of the Juvenile Act governs dependency hearings and

provides:

          (c) Finding of dependency.--If the court finds from clear
          and convincing evidence that the child is dependent, the
          court shall proceed immediately or at a postponed hearing,
          which shall occur not later than 20 days after adjudication
          if the child has been removed from his home, to make a
          proper disposition of the case.



5
  Because CYS was not served with the Master’s Report, we need not
determine whether CYS would have waived its issue for failure to challenge
the report.
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         (c.1) Aggravated circumstances.--If the county agency
         or the child’s attorney alleges the existence of aggravated
         circumstances and the court determines that the child is
         dependent, the court shall also determine if aggravated
         circumstances exist. If the court finds from clear and
         convincing evidence that aggravated circumstances exist,
         the court shall determine whether or not reasonable efforts
         to prevent or eliminate the need for removing the child
         from the home or to preserve and reunify the family shall
         be made or continue to be made and schedule a hearing as
         required in section 6351(e)(3) (relating to disposition of
         dependent child).

42 Pa.C.S. § 6341(c)-(c.1).

      Section 6302 of the Juvenile Act defines a “dependent child” as:

      [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[.]

42   Pa.C.S.   §   6302.   The   Juvenile   Act’s   definition   of   “Aggravated

circumstances” includes:

      (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. The Juvenile Act, in turn, 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.

      Further, “[t]he Juvenile Act must be applied together with the Child

Protective Services law in resolution of child abuse complaints.” In re R.P.,

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957 A.2d 1205 (Pa.Super.2008). In September of 2014, Section 6303(b) of

the Child Protective Services Law (“CPSL”), provided that “child abuse” shall

mean any of the following:

     (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.

     (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 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. § 6303. The CPSL was amended, effective December 31, 2014,

to broaden the term “child abuse,” as explained in In Interest of: L.Z., 111

A.3d at 1168 n.3.

     The identity of the perpetrator(s) of abuse may be established by

prima facie evidence that the abuse normally would not have occurred

except by reason of acts or omissions of the caregivers. Section 6381 of the

CPSL provides a presumption of abuse as follows:

     6381. Evidence in court proceedings.

     (d) Prima facie evidence of abuse.—Evidence that a child has
     suffered child abuse of such a nature as would ordinarily not be
     sustained or exist except by reason of the acts or omissions of

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     the parent or other person responsible for the welfare of the
     child shall be prima facie evidence of child abuse by the parent
     or other person responsible for the welfare of the child.

23 Pa.C.S. § 6381(d).

     In In Interest of: L.Z., the Supreme Court of Pennsylvania stated

        [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.

In re L.Z., 111 A.3d at 1185.

     CYS argues that the trial court should have found that Child was the

victim of child abuse by Mother for her failure to protect Child and that

aggravating circumstances exist. CYS’s Brief at 11-14. CYS contends that

Mother’s omission caused Child a nonaccidental serious mental injury, PTSD.

Id. The Master’s recommendation stated:

     [i]t cannot be found by clear and convincing evidence that
     Mother perpetrated the abuse of [C]hild.     It is only clear
     someone or some combination of person within that environment
     committed the abuse. The actor may have been a third party or
     parties. Mother clearly neglected to protect [C]hild from this
     environment, but cannot be found to have actually perpetrated
     the abuse.


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Master’s Recommendation, 9/24/15, at 2-3. The trial court, in adopting the

Master’s Recommendation, found, “in the absence of a specific etiology

attributable directly to Mother, the Master cannot find an omission in care

that results in serious impairment of [Child]’s functioning.”     Trial Court

Opinion, 11/10/14, at 5.

      The Master found “someone or some combination of person within

[Child’s] environment committed the abuse” and Mother failed to protect

Child from an abusive environment, but the Master failed to apply the

presumption or to explain why the presumption would not apply. Based on

our Supreme Court’s instructions in In Interest of: L.Z. regarding the

proper application of the presumption set forth in section 6381(d) of the

CPSL, we find that the trial court erred. We direct the trial court to address

the section 6381(d) presumption as it applies to Mother.

      The trial court must also address the issue of whether the PTSD that

Dr. Dowell diagnosed is nonaccidental serious mental injury.      Further, on

remand, the trial court must consider whether Child’s PTSD seriously impairs

Child’s functioning as to be aggravated physical neglect pursuant to section

6302 of the Juvenile Act, and, if so, make a finding that aggravated

circumstances exist as to Mother. Accordingly, we must reverse and remand

for further proceedings consistent with this Memorandum.




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      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/10/2015




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