J-A13003-20

                                  2020 PA Super 202


    IN THE INTEREST OF: K.D., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: T.D., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 24 EDA 2020

               Appeal from the Order Entered December 5, 2019
    In the Court of Common Pleas of Philadelphia County Domestic Relations
                      at No(s): CP-51-DP-0001179-2018


BEFORE:      BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*

OPINION BY BENDER, P.J.E.:                             FILED AUGUST 19, 2020

        T.D. (“Mother”) appeals from the December 5, 2019 order finding her

to be a perpetrator of child abuse against K.D. (“Child”), born in October of

2017, pursuant to Section 6303(b.1)(5) of the Child Protective Services Law,

23 Pa.C.S. §§ 6301-6387 (“CPSL”). 1 We affirm.

        We glean the following facts from the record: On January 29, 2019, the

Philadelphia Department of Human Services (“DHS”) received a Child

Protective Services (“CPS”) report, which alleged that Mother had become

agitated after she and her live-in girlfriend (“Paramour”) argued over

Paramour’s refusal to return to their home on January 25, 2019. According

to the report, Mother told Paramour that she would stab Child with a knife if

she did not return home. Paramour informed Mother’s sister, C.S., of Mother’s
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   Child’s father is not named in the record and is not a party to this action.
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statement, and C.S. removed Child and his nine-year-old sibling, M.G., from

Mother’s home.

     DHS interviewed M.G. during its investigation of the report:

     M.G. stated … that Mother was extremely emotional during the
     incident and had threatened to drown and stab [Child]. M.G.
     stated that Mother had rubbed a knife over [Child’s] body and had
     threatened to cut his fingers multiple times. M.G. stated that he
     managed to convince Mother not to drown [Child] in the bath
     water, and that she then threatened to place a plugged-in iron in
     the bath tub, which was filled with water and in which both M.G.
     and [Child] were sitting.

     M.G. further reported that Mother gets upset when [P]aramour
     does not come home or if she goes away for a long time. M.G.
     stated that he is fearful of Mother and believes that she will harm
     [Child].

DHS’s Brief at 3-4. DHS found the allegations in the report to be true and,

accordingly, determined the report to be “indicated.”

     On the same date that DHS received the CPS report, it obtained an Order

of Protective Custody (“OPC”) for the children and placed them with their

maternal aunt, C.S. Mother demanded that the children be returned to her.

A shelter care hearing was held on January 31, 2019, at which the OPC was

lifted and the temporary commitment to DHS was ordered to stand.           On

February 7, 2019, a dependency hearing was held and Child was adjudicated




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dependent.2, 3 Permanency review hearings were subsequently held on March

7, 2019, June 18, 2019, August 22, 2019, October 17, 2019, and December

5, 2019.

       At the December 5, 2019 hearing, the trial court heard DHS’s request

for a finding of child abuse against Mother. Ms. Massey testified on behalf of

DHS, and DHS moved into evidence the testimony that M.G. gave in chambers

at the February 7, 2019 hearing, as well as the testimony given by Ms. Massey

and C.S. on that same date. After hearing argument from all counsel, the trial

court made a finding that Mother was the perpetrator of child abuse against

Child, pursuant to 23 Pa.C.S. § 6303(b.1)(5).

       Mother filed a timely appeal on December 26, 2019, along with a concise

statement of errors complained of on appeal, in accordance with Pa.R.A.P.

1925(a)(2). Mother now presents the following sole issue for our review: Did

the trial court err in ruling that DHS met its burden of proof to support a

finding of child abuse under Section 6303 of the CPSL? See Mother’s Brief at

2.

       Preliminarily, we note:

____________________________________________


2Adjudication was deferred for M.G., because his father was present at the
hearing and presented himself as a ready, willing, and able parent. M.G.’s
petition was eventually discharged when his father was deemed to be
appropriate.

3 At the February 7, 2019 hearing, DHS presented the testimony of the
assigned DHS social worker, Regina Massey, C.S., and M.G. Mother presented
no witnesses.


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      The standard of review in dependency cases requires an appellate
      court to accept the findings of fact and credibility determinations
      of the trial court if they are supported by the record, but does not
      require the appellate court to accept the lower court’s inferences
      or conclusions of law. Accordingly, we review for an abuse of
      discretion.

Interest of S.L., 202 A.3d 723, 727 (Pa. Super. 2019) (quoting In re R.J.T.,

9 A.3d 1179, 1190 (Pa. 2010)).

      Mother claims the trial court erred in its determination that she

perpetrated child abuse pursuant to Section 6303(b.1)(5) of the CPSL.          In

accordance with Section 6303(b.1)(5), “[t]he term ‘child abuse’ shall mean

intentionally, knowingly or recklessly … [c]reating a reasonable likelihood of

bodily injury to a child through any recent act or failure to act.” 23 Pa.C.S. §

6303(b.1)(5). “Bodily injury” is defined as “[i]mpairment of physical condition

or substantial pain.” 23 Pa.C.S. § 6303(a) (“Bodily Injury”). Additionally, for

the purposes of the CPSL, the terms “intentionally,” “knowingly,” and

“recklessly” have the same meaning as set forth in 18 Pa.C.S. § 302. See 23

Pa.C.S. § 6303(a). Section 302 of the Crimes Code defines these kinds of

culpability as follows:

      (1)   A person acts intentionally with respect to a material
            element of an offense when:

            (i)       If the element involves the nature of his conduct or
                      a result thereof, it is his conscious object to engage
                      in conduct of that nature or to cause such a result;
                      and

            (ii)      If   the   element     involves    the   attendant
                      circumstances, he is aware of the existence of such
                      circumstances or he believes or hopes that they
                      exist.


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      (2)   A person acts knowingly with respect to a material element
            of an offense when:

            (i)        If the element involves the nature of his conduct or
                       the attendant circumstances, he is aware that his
                       conduct is of that nature or that such
                       circumstances exist; and

            (ii)       If the element involves a result of his conduct, he
                       is aware that it is practically certain that his
                       conduct will cause such a result.

      (3)   A person acts recklessly with respect to a material element
            of an offense when he consciously disregards a substantial
            and unjustifiable risk that the material element exists or will
            result from his conduct. The risk must be of such a nature
            and degree that, considering the nature and intent of the
            actor’s conduct and the circumstances known to him, its
            disregard involves a gross deviation from the standard of
            conduct that a reasonable person would observe in the
            actor’s situation.

18 Pa.C.S. § 302(b).

      The requisite standard of proof for a finding of child abuse pursuant to

Section 6303(b.1) is clear and convincing evidence.       In re L.Z., 111 A.3d

1164, 1174 (Pa. Super. 2015). Clear and convincing evidence is “evidence

that 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.” G.V. v. Department of Public Welfare, 91 A.3d 667, 672

(Pa. 2014). In certain situations, however, the identity of the abuser need

only be established through prima facie evidence:

      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.


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In re L.Z., 111 A.3d at 1170 (quoting 23 Pa.C.S. § 6381(d)).

      Here, Mother argues that DHS failed to meet its burden of proof in

establishing child abuse, in accordance with Section 6303(b.1)(5).         See

Mother’s Brief at 3. Mother does not deny running a knife along Child’s body

or threatening to drop a plugged-in iron in the bathtub. Rather, she argues

that her actions were for the purpose of getting the attention of her Paramour

and that she did not intend to cause any injury to Child. Id. In regards to

the incident with the knife, Mother avers that “[a]t no time did Mother place

the sharp part of the knife near … [C]hild or stab the sharp part of the knife

near … [C]hild[;]” thus, there was no reasonable likelihood of Child getting

injured. Id. at 4. Mother claims that the trial court abused its discretion in

inferring that there was a likelihood of injury to Child. Id. As to the bathtub

incident, Mother claims that it was never established whether “the iron could

actually reach the bathtub or how close the iron came to the bathtub[,]” and

that without these facts, there is no clear and convincing evidence of a

reasonable likelihood of injury. Id. at 5. Mother concludes that the trial court

abused its discretion by inferring that the iron could reach the bathtub and,

therefore, making a finding of child abuse. Id.   We deem Mother’s claims to

be wholly without merit.

      In finding that Mother is a perpetrator of child abuse, the trial court

relied heavily on the testimony of M.G. and C.S., “each having presented very

vivid and collaborating [sic] details regarding the incidents….”    Trial Court

Opinion (“TCO”), 2/10/20, at 2 (unnumbered). M.G. testified in camera at the

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February 7, 2019 hearing, with all counsel present. Following is a summary

of his testimony produced by DHS:

     M.G. stated that the family household consisted of Mother,
     [Paramour], … M.G.[,] and [Child]. M.G. testified that on the day
     of the incident, [Paramour] had picked him up from school and
     dropped him off at home. When he entered the family home,
     Mother asked him where [Paramour] had gone after dropping him
     off. M.G. responded that she had just dropped him off and had
     left without saying where she was going. Within a few minutes of
     being told this, Mother began to cry and to pound the floor. After
     a few minutes, Mother came out of her bedroom and told M.G.
     that [Paramour] had called her and told her to kill herself and the
     children. At this point, the only people in the home were Mother
     and the children. M.G. stated that Mother told him that she would
     not hurt him. According to M.G., Mother then grabbed a knife and
     went to [Child], who was in M.G.’s bedroom. M.G. stated that he
     saw Mother “rubbing the back rim of … [the knife] all over his
     body. And every time he put his hand right here she [would] like
     tap the knife right next to his hands.” M.G. described the knife as
     being a normal knife that was rigid and smooth.

     M.G. stated that Mother next grabbed [Child] and ran into the
     bathroom with him. M.G. stated that he approached the bathroom
     and saw Mother holding [Child,] and that she was about to place
     him in the water, as if she was going to drown him. M.G.
     convinced Mother to put [Child] down. At some point, both M.G.
     and [Child] ended up in the bathtub together. While they were in
     the tub, Mother went into the kitchen and returned with a clothes
     iron that had been plugged into a wall outlet. M.G. testified that
     he was scared while this was happening.

     [C.S.] came to the home immediately after the incident in the
     bathroom had ended. According to M.G., everything between
     Mother and [C.S.] was “normal” until Mother learned that [C.S.]
     had been texting with [Paramour], at which point Mother attacked
     [C.S.], who attempted to fend off the attack and to take the knife
     away from Mother. M.G. testified that [C.S.] called to him to dial
     911. M.G. ran to the kitchen and called 911. When he returned
     to [the] living room, he found that [C.S.] had managed to pin
     Mother down on the couch. M.G. testified that he felt sad and
     scared, and began to pull his hair out due to the stress caused by
     Mother’s behavior.

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DHS’s Brief at 6-7 (unnecessary capitalization and citations to record omitted).

      [C.S.] testified that she is five years older than Mother, that they had

grown up together, and that they now lived 12 minutes away from each other.

N.T., 2/7/19, at 25-26. C.S. indicated that she has been involved with both

children during their entire lives. Id. at 26.

      Regarding the incident at issue, [C.S.] stated that on [January 25,
      2019,] she received a telephone [call] from [Paramour], who told
      her that Mother was going to hurt the children and that
      [Paramour] did not know what to do. While she was on the phone
      with [Paramour], [C.S.] received calls from Mother and M.G.,
      which allowed [C.S.] to hear what was occurring in the house.
      [C.S.] stated that Mother said …, “Hey daddy, you were supposed
      to protect them, daddy. You failed. You didn’t protect them. You
      lied. I put them in the tub. That’s your fault, hahahahaha.” And
      then Mother hung up, ending the call.

      Concerned for the children’s safety, [C.S.] and [Paramour] went
      to Mother’s house, which [C.S.] likened to a “nightmare.” The
      lights in the home were turned off. At some point after [C.S.]
      arrived at the home, Mother came to the window and [C.S.] was
      able to see that the children were okay. [C.S.] entered the home
      and attempted to leave with the children, which led to [a] physical
      altercation between Mother and [C.S.] During the altercation,
      Mother brandished a knife, which [C.S.] was able to remove from
      Mother’s hand. Upon losing possession of the knife, Mother
      grabbed a wood[en] panel and attempted to batter [C.S.] with it.
      At one point during the altercation, Mother hit her head against
      the wall three times and then attempted to jump out of the
      bathroom window[,] after having … attempted unsuccessfully to
      jump out a window in the children’s bedroom. [C.S.] recalled that
      she had yelled to M.G. to call 911. M.G. placed the call and police
      were dispatched to the scene.

DHS’s Brief at 9-10 (unnecessary capitalization and citations to record

omitted). C.S. further testified that after she managed to restrain Mother and

keep her from throwing herself out of the bathroom window, Mother grabbed



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a gallon of bleach and tried to drink from it. C.S. grabbed the bleach from

Mother and poured it down the sink. Id. at 10-11. The trial court found the

testimony of M.G. and C.S. to be both credible and consistent. Id. at 40-41.

       In addition to the testimony of M.G. and C.S., Ms. Massey testified on

behalf of DHS, regarding her investigation of the CPS report involving Mother.

Ms. Massey stated that she determined the report of abuse to be “indicated”

against Mother, as Mother “created a reasonable likelihood of bodily injury to

a child through [a] recent act or failure to act.” N.T., 12/5/19, at 7-8. Ms.

Massey further read from her investigation assessment:

       Upon investigation[,] this social worker finds this allegation to be
       indicated. Although [M]other denied the allegations, [M.G.]
       appeared to be credible while telling the story of how [M]other
       tried to harm him and [Child] because her [Paramour] refused to
       come home. M.G. stated that Mother had a knife running around
       [Child’s] neck, poking … the knife between his fingers while he
       was holding the crib, and threatening to throw an iron in the
       bathtub while he and [Child] [were] in the tub. The social worker
       last saw [the] children on [February 15, 2019,] at [C.S.’s] house,
       and at that time, they appeared to be safe, with their basic needs
       met.

Id. at 8-9. Ms. Massey also indicated that she had asked Mother about her

mental health status and that Mother had responded that she had post-

traumatic stress disorder (“PTSD”) and that she had not been taking her

medication. N.T., 2/7/19, at 16.4 When she inquired about the allegations in

the CPS report, Mother denied all of the allegations and asserted that C.S.

coaxed M.G. “to say these things.” Id. at 17. Finally, Ms. Massey indicated
____________________________________________


4C.S. testified that Mother is bi-polar, has depression, and has had several
past suicide attempts. Id. at 34.

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on cross-examination that she believed returning the children to Mother’s care

would be a risk to the children’s lives or health. Id. at 21.

      DHS argues that Mother’s “erratic behavior and highly agitated state

coupled with the unpredictable movements of an 18-month old child created

a reasonable likelihood of bodily injury to Child.” See DHS’s Brief at 18 (citing

12 Pa.C.S. § 6303(b.1)(5)). Mother acted recklessly with the knife, i.e., she

“consciously disregarded a substantial and unjustifiable risk” that Child could

have been cut or stabbed. Id.; see also 18 Pa.C.S. § 302(b)(3). Likewise,

Mother’s holding of a plugged-in iron over the children’s bathtub filled with

water created an unjustifiable risk of injury or death, as the iron could have

slipped from her grasp and fallen into the bathwater. Id.

      Applying the facts to the CPSL, the trial court found Mother to be a

perpetrator of child abuse, pursuant to Section 6303(b.1)(5). See TCO at 2

(unnumbered) (citing N.T., 12/5/19, at 14-17). Specifically, the trial court

determined that “holding an appliance that is plugged into a wall over a

bathtub of water would definitely create a reasonable likelihood of bodily injury

and, quite frankly, potentially death for two young children in a bathtub had

mom accidentally, unintentionally, or whatever, dropped that plugged-in

instrument into the water.” Id. at 16. The trial court added that Mother’s

actions of taking a knife and stabbing it in between the fingers of Child, who

was barely more than one-year-old at the time, could have severely injured

Child. Id. at 17 (e.g., “any miss could have severely injured … [C]hild, could

have struck a vein that [would] cause bleeding out, and [Mother] put the knife

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to [Child’s] neck”). Accordingly, the trial court found Child to be the victim of

child abuse and changed the report from “indicated” to “founded.” Id. We

deem the trial court’s findings to be supported by the record, and we discern

no abuse of discretion.

      Based on the foregoing, we affirm the December 5, 2019 order finding

Mother to be a perpetrator of child abuse, pursuant to 23 Pa.C.S. §

6303(b.1)(5).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2020




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