J-S19031-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: L.S., A MINOR          :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: M.K., MOTHER                    :   No. 3339 EDA 2019

                Appeal from the Order Entered October 24, 2019
              in the Court of Common Pleas of Philadelphia County
              Juvenile Division at No(s): CP-51-DP-0000475-2019

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

MEMORANDUM BY MUSMANNO, J.:                                   Filed: July 16, 2020

       M.K. (“Mother”) appeals from the Order finding that the injuries to her

child, L.S. (“Child”), a male born in June 2008, were the result of child abuse

pursuant to 23 Pa.C.S.A. § 6303(b.1) by Mother; discharging the dependency

of Child; and terminating the Philadelphia Department of Human Services’

(“DHS”) supervision of Child and his family.1,     2   We affirm.

       In its Opinion, the trial court ably and accurately set forth the factual

background and procedural history of this appeal as follows:

              DHS became involved with this family on December 7, 2018,
       when DHS received a Child Protective Services (“CPS”) report
       alleging that Child became upset and began hysterically crying
____________________________________________


1Child’s father, L.S., Sr., (“Father”) is not participating in this appeal, nor has
he filed a separate appeal on his own behalf.

2Notably, Mother does not challenge the portion of the Order that terminated
DHS supervision of the family.
J-S19031-20


       after stating that his life had been ruined after receiving Saturday
       detention at school; Child stated that he was hit with a wire; Child
       had cuts on his arms; and Child indicated that the last incident
       occurred approximately one week prior to the report. This report
       was indicated.

              On December 8, 2018, DHS interviewed Child, Mother, and
       Child’s siblings.[3] DHS informed Mother of the allegation and
       Mother admitted to physically disciplining Child. Mother stated
       that Child was misbehaving in school and being disobedient at
       home; Mother frequently received calls from Child’s school
       regarding his behavior; Child had been suspended from school;
       Mother’s usual methods of discipline consisted of making the
       children write essays, using time-out, and taking things away;
       Mother hit Child with a belt approximately three weeks prior and
       that in her homeland, it was acceptable for parents to physically
       discipline their children; and Father did not live in the home, but
       was there sporadically. DHS subsequently interviewed Child and
       [Sibling 1] with Mother’s permission. Child denied that he told
       anyone that he had been hit with a wire hanger. Child showed
       DHS the marks on his upper left arm and indicated that the marks
       were old and that they had been there for a long time; he could
       not recall how he got the marks or if they hurt at the time of the
       injury; he could not remember if he got the marks at home or at
       school; and the marks did not currently hurt him. DHS observed
       the marks to be old and healed. Child also stated that he was not
       fearful of his home environment and that he felt safe in the home.
       Sibling 1 indicated that he did not know of Child being hit with a
       wire hanger by Mother; Mother’s usual discipline including making
       the children write essays, stand in the corner, or be sent to their
       room. Sibling 1 indicated that he was also not fearful of the home
       environment and that he felt safe in the home. DHS observed
       [Sibling 2 and Sibling 3] playing in the living room of the home.
       These two children appeared safe and appropriately cared for[,]
       and did not appear to be fearful of the home environment.


____________________________________________


3 Child has three siblings (collectively, the “Siblings”): I.S. (“Sibling 1”), a
male who was twelve years old at the time of the hearing; A.S. (“Sibling 2”),
a female who was seven years old; and K.S. (“Sibling 3”), a female who was
two years old. In the October 24, 2019 Order, court supervision was
terminated for all Siblings, including Child. Trial Court Opinion, 1/2/20, at 1.
Child’s siblings are not subjects of the instant matter.

                                           -2-
J-S19031-20


            On December 10, 2018, Mother took Child to the Children’s
     Hospital of Philadelphia (“CHOP”) Emergency Department (“ED”)
     for evaluation of Child’s injuries. Mother explained to the CHOP
     staff that Child’s injury was the result of playing with his older
     sibling with a coat hanger. CHOP determined that this explanation
     at the time of the examination was plausible[,] and Child was sent
     home with no further instruction.

            On December 29, 2018, DHS visited Child and Sibling 2.
     DHS observed new injuries on Child’s arm and Child stated that
     he was injured while “play fighting” with Sibling 1; the injuries
     occurred approximately one week prior; he had gotten in trouble
     at school; Mother disciplined him by making him rewrite a Harry
     Potter book. Child denied being hit by Mother and indicated that
     he felt safe in the home. Child also indicated that Father came to
     the family home approximately twice per week and did not live in
     the home. Sibling 2 stated that Child was hit with a wire because
     he had gotten in trouble at school and she could not remember
     who had hit Child with the wire.

           On January 22, 2019, DHS spoke with Sibling 1, who stated
     that he felt safe in the home; Child had gotten in trouble at school
     and Mother made Child rewrite a Harry Potter book. DHS did not
     observe any injuries on Sibling 1. Sibling 1 denied allegations of
     physical abuse and [Mother stated to DHS and testified] that
     Father did not live in the home. Mother stated that she believes
     Child got his injuries from “play fighting” at school.

           On January 24, 2019, Mother took Child to CHOP for a
     second opinion about his injuries. The CHOP Buerger Center for
     Advanced Pediatric Care (“BCC”) determined that Child had
     multiple healed patterned injuries to his upper left extremity and
     back, which were consistent with non-accidental trauma/physical
     abuse; Child had no history that would constitute a plausible
     explanation to support the injuries noted; the patterned scars
     were not consistent with injuries sustained in the process of
     normal play; and the cause of the findings for Child were most
     consistent with being repetitively hit with an object. CHOP BCC
     recommended that all four children undergo a forensic interview[,]
     and that Siblings should be evaluated by their pediatrician or at a
     hospital ED to determine if any injuries were present.




                                    -3-
J-S19031-20


             On January 29, 2019, DHS attempted to contact Mother, but
     was unsuccessful. Mother became noncompliant and refused DHS
     access to the family home. Mother also refused any future direct
     contact with DHS, and informed DHS that she had retained
     Counsel. On February 5, 2019, DHS visited Child, Sibling 1, and
     Sibling 2 at their school. The children reported that they felt safe
     in the home and denied any allegations of abuse. On February
     28, 2019, DHS visited Sibling 3 at her daycare. DHS was unable
     to interview Sibling 3, due to her age, but there were no marks or
     bruises observed on Sibling 3. On March 5, 2019, DHS mailed a
     letter to Mother and Counsel. On March 13, 2019, DHS spoke with
     Counsel via telephone. Counsel stated that he was in the process
     of filing an appeal regarding the indicated CPS report and refused
     further communication with DHS. On March 21, 2019, DHS filed
     a dependency [P]etition for Child.

            On April 3, 2019, the trial court adjudicated Child dependent
     with DHS supervision in the family home. Mother was present for
     this hearing. The trial court ordered Child be referred to the
     Philadelphia Children’s Alliance (“PCA”) for an interview and to
     Behavioral Health Services (“BHS”) for a consultation and/or
     evaluation. The trial court referred Mother to the Achieving
     Reunification Center (“ARC”) for parenting. Mother was ordered
     to allow the Community Umbrella Agency (“CUA”) to perform a
     home assessment.

           On April 26, 2019, Child completed a psychological
     evaluation with Mother present at the evaluation.               The
     psychologist diagnosed Child with unspecified disruptive impulse
     control and conduct disorder[,] and recommended that Child
     receive 10 hours of behavior consultation services in the school
     over a 60[-]day period in order to determine what future services
     may be beneficial; Child should enroll in a social/athletic program
     where he can interact with peers; and Mother should make a
     formal request in writing for an education evaluation for Child.

           On June 12, 2019, a permanency review hearing was held
     for Child. Mother was present for this hearing. The trial court
     determined that Mother was fully compliant with the permanency
     plan. The trial court ordered DHS supervision to stand.

           On July 3, 2019, a permanency review hearing was held for
     Child. Mother was present for this hearing. The trial court ordered
     DHS supervision to stand and that all discovery, as well as a list

                                    -4-
J-S19031-20


       of witnesses, be passed to all parties by August 1, 2019, for the
       upcoming child abuse hearing.

              On October 24, 2019, a permanency review and child abuse
       hearing was held for Child. Mother was present for this hearing.[4]
       The trial court found child abuse against Mother and the CY48
       [“indicated” report] to be founded and turned [the CY48 report]
       into a CY49 [founded report].       Additionally, the trial court
       determined that there were no safety or dependency concerns in
       Mother’s home. The trial court discharged DHS supervision and
       the dependency [P]etition.

Trial Court Opinion, 1/2/20, at 1-4 (footnotes added; citations and footnotes

omitted).

       On November 25, 2019, Mother timely filed a Notice of Appeal, along

with a Concise Statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(ii) and (b).

       On appeal, Mother raises the following issue: “[] Did the [t]rial [c]ourt

err and abuse its discretion by making a finding of abuse that was not

supported by clear and convincing evidence[?]” Mother’s Brief at 7.

       Mother argues the trial court’s finding of abuse was not supported by

clear and convincing evidence.           Id. at 12.   Mother contends that DHS’s


____________________________________________


4 Mother, Mother’s counsel, and Father’s counsel were present at the hearing.
Child was represented by Elizabeth Flanagan, Esquire as his child advocate.
DHS presented the testimony of Brian Brennan, M.D. (“Physician”), the DHS
case manager assigned to the family, and a DHS intake supervisor. Mother
testified on her own behalf. The trial court accepted Physician, a doctor with
CHOP, as an expert in pediatric child abuse. Though the parties did not
stipulate to Physician’s expertise at the start of the hearing, there were no
objections to the trial court’s acceptance of Physician as an expert on pediatric
child abuse. N.T., 10/24/19, at 10; Trial Court Opinion, 1/2/20, at 6, n.4.


                                           -5-
J-S19031-20


assertion that Mother beat Child is based solely on the hearsay testimony of

Sibling 2. Id. Mother also complains that Physician, DHS’s expert witness,

evaluated Child to render a second opinion more than one month after Child

sustained the injury. Id. at 12-13.

     Our standard of review in dependency cases is well established.

     The standard of review which this Court employs in cases of
     dependency is broad. However, the scope of review is limited in
     a fundamental manner by our inability to nullify the fact-finding of
     the [trial] court. We accord great weight to this function of the
     hearing judge because he is in the position to observe and rule
     upon the credibility of the witnesses and the parties who appear
     before him. Relying upon his unique posture, we will not overrule
     his findings if they are supported by competent evidence.

In re R.R., 686 A.2d 1316, 1317 (Pa. Super. 1996) (citations omitted).

     We have stated that the Child Protective Services Law (“CPSL”) “controls

determinations regarding findings of child abuse, which the juvenile courts

must find by clear and convincing evidence.” In re L.V., 209 A.3d 399, 417

(Pa. Super. 2019) (citations omitted).      “Clear and convincing evidence”

requires

     that the witnesses must be found to be credible; that the facts to
     which they testify are distinctly remembered and the details
     thereof narrated exactly and in due order; and that their
     testimony is so clear, direct, weighty, and convincing as to enable
     the trier of fact to come to a clear conviction, without hesitancy,
     of the truth of the precise facts in issue. It is not necessary that
     the evidence be uncontradicted[,] provided it carries a clear
     conviction to the mind or carries a clear conviction of its truth.




                                      -6-
J-S19031-20


In the Interest of J.M., 166 A.3d 408, 423 (Pa. Super. 2017) (citing In re

Novosielski, 992 A.2d 89, 107 (Pa. 2010) (citations and internal brackets

omitted)).

        Section 6303 of the CPSL defines “child abuse” as follows, in relevant

part:

        § 6303. Definitions.

                                      ***

        (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.A. § 6303(b.1)(1), (5). “Bodily injury” is defined as “[i]mpairment

of      physical    condition   or   substantial    pain.”       23    Pa.C.S.A.

§ 6303(a).

        Our Supreme Court has stated that the identity of the perpetrator of

child abuse “need only be established through prima facie evidence in certain

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

Prima facie evidence is “[s]uch evidence as, in the judgment of the law, is

sufficient to establish a given fact, or the group or chain of facts constituting

the party’s claim or defense, and which if not rebutted or contradicted, will

remain sufficient.” Id. at 1184 (citation omitted).

                                       -7-
J-S19031-20


      Section 6381(d) of the CPSL provides, in part, the following:

      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 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.A. § 6381(d). The L.Z. Court held:

      [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 [children and youth services]
      agency and the rebuttal of the parent or responsible person.

In re L.Z., 111 A.3d at 1185 (footnote omitted).

      Mother does not dispute that Child sustained injuries and was in her sole

custody during the relevant time period in this case; rather, she disputes the

trial court’s determination that Child’s injuries were caused by non-accidental

trauma. Mother’s Brief at 12. She contends that Child’s injuries could have

occurred during normal care as a result of Child playing with his older brother,

as was initially accepted as the explanation when Child was examined at

CHOP. Id.

      In its Opinion, the trial court addressed Mother’s issue as follows:

           Mother alleges that the trial court erred in finding child
      abuse by clear and convincing evidence. Child first became known

                                      -8-
J-S19031-20


     to DHS after Child disclosed to a school employee that his life was
     “ruined” because he received detention in school and that he was
     beat with a wire by his parents.

            As part of DHS’s investigation, Mother was interviewed
     regarding Child’s allegations. Mother indicated that she could not
     recall how Child’s injuries occurred, but later indicated that it could
     have happened at school, it could have happened because Child
     and his older sibling “fight” all of the time, and that it could have
     happened during the course of play. Mother indicated that Father
     was not residing in the home at the time of the investigation[,]
     and there were no other caregivers living in the home. During the
     investigation, the DHS social worker observed men’s clothing and
     shoes in the home, although Mother claimed the clothes were in
     the home because she sends donated clothes to Africa. Mother
     denied the use of any physical abuse and explained that her
     method of discipline for the children in the home was to re-write
     books and words from the dictionary. Mother denied using this
     form of punishment with the children.

            The DHS social worker ultimately determined that Mother’s
     explanation was not credible after Mother provided multiple
     explanations for the cause of Child’s injuries. The DHS social
     worker recommended that Child be taken to the hospital to be
     examined, [and] Mother complied. The DHS social worker also
     spoke with Child alone in the dining room while Mother was in the
     living room, and Child indicated his scars were from “playing
     swords with hangers.” The DHS social worker also observed
     multiple loop marks on his arm. Child appeared calm while
     speaking with the DHS social worker, but would look over to
     Mother at times when he seemed unsure of how to respond. The
     DHS social worker attempted to complete the interview without
     Mother present, but Mother attempted to hover. The DHS social
     worker determined that Child’s story did not seem plausible,
     based on the looped shape of Child’s injuries.

            The DHS social worker later spoke with Sibling 1, who did
     not have any apparent injuries, and provided the same story as
     Child.   Sibling 1 also appeared slightly nervous during the
     interview[,] and would look towards Mother. The DHS social
     worker did not find Sibling 1’s story to be plausible for the same
     reason that Child’s story was not plausible. The DHS social worker
     also interviewed Sibling 2. No injuries were observed on Sibling
     2[,] and she indicated that she was aware of Child’s injury. Sibling


                                      -9-
J-S19031-20


     2 indicated that their parents did hit Child with a wire, but failed
     to go into more detail. The DHS social worker also reviewed Child
     and [S]iblings’ medical records from the[ir] primary care
     physician, which indicated that scars were observed on the
     children in the past.

             It was established from the testimony of [Physician] that
     Physician was contacted to consult on Child’s matter at CHOP after
     Child [] was brought into the [ED] with injuries to his arm. The
     initial story provided to hospital staff was that Child was injured
     after Sibling 1 hit him with a coat hanger. However, Sibling 2 later
     disclosed to the [ED] that Child was hit with a wire. When
     Physician later spoke with Child about the cause of the injuries to
     his arm, Child did not disclose any abuse and indicated that Sibling
     1 hit him with a coat hanger when they were playing. Physician
     did not speak with Mother about the cause of Child’s injuries.
     Physician indicated that in matters where a forensic interview will
     be conducted, the physician will not typically interview the child
     involved to preserve the truth of the story, since in some cases,
     when children are asked the same question multiple times,
     children will change their answer in fear of answering the question
     “wrong.”

            During Physician’s consultation with Child, Physician
     observed a linear scar at the top of Child’s arm, a curvilinear scar
     below the linear scar, and a hyperpigmented mark with some
     scarring below the curvilinear scar. Physician also observed that
     Child had a looped pattern mark on his back. Physician noted that
     when Child scars, he develops keloids, which is a genetic
     predisposition for heavy, robust scarring. Since Child develops
     keloids, the thickness of the scarring does not indicate the level of
     force used to cause the injuries. Based on Physician’s observation
     of Child’s injuries to his arm, Physician determined that Child’s
     injuries did not match the description given at the [ED]. The two
     lower scars on Child’s arm are curved, which is typically caused
     by a linear type of flexible cord, wire, rope, or belt. The item is
     typically something that has been looped over itself and then held
     in the hand and use[d] to hit the other person. This type of injury
     is not caused by an item that is more rigid, like a coat hanger or
     a ruler. Even if the coat hanger were molded into a sword-shape,
     this would not change Physician’s conclusion regarding the item
     used because the scarring indicates that the object used was
     significantly more flexible.     The type of injury that Child
     experienced can cause bleeding, since the scarring indicated that


                                    - 10 -
J-S19031-20


      the skin had been opened at both the top and lower layer of the
      skin. This injury would cause substantial pain to anyone that
      experienced it, including Child.

             At the time of Physician’s consultation with Child, Child
      noted that he was not in any pain. Physician was unable to
      determine the timeframe of the injury, except that it wasn’t
      immediately recent, since the injury had time to heal and scar.
      Physician also noted that the scarring that Child experienced will
      likely be permanent, even though it may fade slightly over time.
      Physician concluded that Child’s injuries were intentionally
      inflicted[,] and are not consistent in the process of normal play,
      although he cannot determine the intent behind the injury. Child’s
      injuries are consistent with being hit repetitively with an object[,]
      and child abuse. Physician’s conclusion regarding Child were also
      made by the attending physician working alongside of Physician.
      Physician indicated that[,] although there is a finding of child
      abuse, Physician does not know who inflicted the injury. Physician
      was able to rule out any other medical conditions as the cause of
      Child’s injuries.

            Mother claims that she has never hit any of her children.
      Mother indicated that when any of the children are misbehaving,
      she will take things away from the children. Based on DHS’s
      investigation, DHS indicated the CPS report[,] based on Sibling
      2’s testimony and the report from Physician and his team. Based
      on the exhibits and testimony on October 24, 2019, the trial court
      found clear and convincing evidence that Child’s injuries were the
      result of child abuse under 23 Pa.C.S.A. §[ ]6303(b.1).
      Furthermore, there was prima facie evidence that Mother is the
      perpetrator of child abuse under 23 Pa.C.S.A. §[ ]6381(d)[,] since
      Mother was the primary caregiver for Child[,] and the only
      caregiver that resides in the home. Mother was unable to rebut
      the presumption.         The DHS witnesses were credible.
      Consequently, the trial court did not err or abuse its discretion in
      finding child abuse.

Trial Court Opinion, 12/2/19, at 5-8 (some paragraph breaks added, some

citations and footnote omitted).

      Based its findings, which are supported by competent evidence in the

record, the trial court reasonably rejected Mother’s contentions regarding


                                     - 11 -
J-S19031-20


Sibling 2’s explanation being inadmissible hearsay, and Physician’s expert

examination of Child and his scarring coming too late in any investigation to

have credibility. The trial court did not abuse its discretion in finding clear and

convincing evidence to conclude that Child, who was previously adjudicated

dependent pursuant to 42 Pa.C.S.A. § 6302, was not injured accidentally

through play with his older sibling, but rather was the victim of child abuse by

Mother, as defined by 23 Pa.C.S.A. § 6303(b.1). Accordingly, we affirm the

Order finding Child was the victim of child abuse by Mother, discharging the

dependency of Child, and terminating the supervision of the family by DHS.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/20




                                      - 12 -
