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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: K.M., A             :   IN THE SUPERIOR COURT OF
 MINOR                                   :        PENNSYLVANIA
                                         :
                                         :
 APPEAL OF: York County Office of        :
 Children, Youth and Families            :
                                         :
                                         :
                                         :   No. 1089 MDA 2018

                Appeal from the Order Entered June 4, 2018
  In the Court of Common Pleas of York County Juvenile Division at No(s):
                          CP-67-DP-0000158-2009


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                   FILED DECEMBER 21, 2018

      The York County Office of Children, Youth and Families (“CYS”) appeals

from the order denying its petition seeking a finding that K.W. and A.W.

perpetrated child abuse. We conclude the trial court did not abuse its

discretion in finding CYS failed to establish by clear and convincing evidence

that child abuse occurred. We affirm.

      In January 2018, K.M. (“Child”), born November 2001, resided with her

legal custodians, K.W. and A.W. On February 1, 2018, CYS received a referral

for physical abuse against Child by K.W. and A.W. for an incident that occurred

on January 31, 2018. CYS obtained a verbal order to place Child with her

mother. Following a February 5, 2018, shelter care hearing, the court ordered

that Child remain with her mother. On February 7, 2018, CYS filed a

dependency petition claiming Child lacked proper parental care and control. It

also requested a finding of child abuse against K.W., as the perpetrator of
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physical abuse, and A.W., as a perpetrator by omission. K.W. and A.W. are

not seeking the return of Child.

        The trial court held a hearing on the petition.1 Child testified that she

had resided with K.W. and A.W., and their children and foster children, for

three years. N.T., 5/7/18, at 29-30. She testified that on the evening of

January 31, 2018, she returned home, and a police officer was at the residence

to ask her questions regarding pills she had stolen from another child who

resided at the home. Id. at 31-32. Later that night, K.W. came into Child’s

room with a belt in his hand. Id. at 37. He told her to stand up, pulled her off

the bed, and said, “I am tired of you stealing stuff from my house.” Id. He

then beat her with the belt on her left thigh. Id. at 37-38. She stated he was

holding the belt in a loop with his hand over the buckle. Id. at 38. She stated

he hit her off and on for ten-to-15 minutes and it felt like her “leg was on fire.”

Id. at 39. She stated that after dinner she started packing to leave the home.

Id. at 42.

        Child testified that when A.W. returned later that night, she spoke with

Child. Child told A.W. what happened and showed A.W. her leg, which was

black and blue. Id. at 43. A.W. advised Child to take a shower and said Child

“had got [her] first [W.] house beating.” Id. at 43-44. Child further testified

that A.W. observed her limping, but said she would be fine. Id. at 46.



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1   The hearing was continued to allow time for discovery.


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      Child told K.W. that she did not want to go to gym class the next day

because she would be wearing shorts, and he told her he would take her to

school after gym class. Id. The next day, although school started at 7:35

a.m., K.W. did not take Child until 9:00 a.m. Id. at 45. While at school, Child

went to the nurse for pain medication. Id. at 45-46. She described the pain

as a nine on a scale of one-to-ten, and stated she was limping. Id. at 46.

      The nurse put ice on the bruise, and Child’s caseworker took her to see

Dr. David Pater, Child’s primary care doctor. Id. at 48. Dr. Pater gave her pain

medication and referred her to York Hospital. Id. at 49. The doctors at the

hospital told her to take the medication prescribed by her primary doctor and

to walk to avoid stiffness. A nurse also took photographs of her leg, which

were admitted into evidence and showed bruising to her thigh. Id. at 53. She

walked with a limp for around one week. Id. at 54. Child returned to the care

of her mother, where she remains. Id. at 53.

      Dr. Pater testified that he treated Child on February 1, 2018, due to an

“extensive purplish area of discoloration and tenderness” on her thigh. Id. at

76-77. Child told him that she had been struck with a belt, and that the bruise

was painful and made it difficult to walk. Id. a 77-78. He testified that Child’s

explanation of the injury was consistent with his observations. Id. at 79. Dr.

Pater testified that he recommended she go to the emergency room to be

assessed by a SAFE nurse, who would conduct a forensic assessment

regarding the question of abuse. Id. at 78, 80-81. The doctor did not have

concerns that any bones were broken, believed it was something that would

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heal on its own, and agreed that Child could do regular activities as she

tolerates. Id. at 80-81.

       Mitra Honardoost, a CYS caseworker, also testified. She accompanied

Child to the doctor and hospital on February 1, and testified consistently with

Child as to the events of that day.

       Chelsea Rhoads, a CYS case worker, testified that on February 1, 2018,

she visited the home of K.W. and A.W. due to the allegations of abuse. Id. at

172-73. She spoke with A.W, who told her that K.W. did hit Child with a belt.

Id. at 173. A.W. also informed Ms. Rhoads that she does use a belt and her

hands for discipline, but does not use anything that would cause severe injury.

Id. at 175. K.W. refused to speak with Ms. Rhoads. Id. at 174.2

       Mark Shrode, a DHS investigator, testified regarding the investigation

that led to him finding an indication for abuse against K.W. as to Child, which

included reviewing a child advocacy center interview of Child, the medical

records, and the photographs. Id. at 187-99. Bethany Gamber, a counselor

at Child’s high school, testified regarding her interaction with Child on

February 1, 2018. Id. at 199-207. Michelle Frey, the forensic SAFE nurse who

examined Child, also testified. Id. at 209. The testimony included that Child

stood for about 15 minutes while Frey took photographs of her leg. Id. at 215-

16.



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2 Ms. Rhoads also spoke with the other children in the home, An.W., M.L.,
A.L., K.M., Av.W., and C.P. Id. at 173-74.

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      K.W. testified that he has a disability. N.T., 6/4/18, at 3. He had a

discectomy and laminectomy of the L-5 lumbar disc, which causes him to have

limited mobility. Id. He cannot reach back, bend back far, or twist his upper

body too far. Id. at 10. Also, his right arm cannot go back more than

approximately six inches from his hip. Id. at 10-11. He has nine children,

ranging in age from eight to 35. Id. at 3. Three of the children are biological

and six are adopted. Id. at 4.

      In October 2017, K.W. contacted CYS because he and A.W. were having

issues with Child’s “manipulation, triangulation, lying, stealing, [and]

aggressive behavior towards smaller kids.” Id. at 4-5. He did not ask for

removal at that time. Id. at 6. He testified that on January 31, 2018, he called

the police because his son informed him that Child stole prescription

medication from K.W.’s daughter. Id. at 6. Later that evening, he went

upstairs, got his belt, and told Child that he was “really tired of her deciding

to steal out of” his home. Id. at 8. He stated he “attempted to spank her,”

but she “jumped up against her desk and she was turning her body as to me

not being able to spank her.” Id. at 9. He decided to use this discipline because

he had “exhausted all other methods of discipline.” Id. at 10. He had “tried

modelling[,] tried positive reinforcement[, and] tried taking away privileges,

no extracurricular activities.” Id. The other forms of discipline had not

changed Child’s behavior. Id. When Child said stop, he did. Id. at 11. The

incident lasted for about one minute. Id. Although Child initially started

packing, she stopped when she saw that a police car still was outside, and,

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after she and K.W. talked for about 45 minutes, she decided to put her things

away. Id. at 11-12. Child was not crying, did not ask for pain killers, and was

not limping. Id. at 13-14.3

       K.W. took Child to school the next day, but testified that was not

unusual. Id. at 15. He testified that there was an agreement between Child

and A.W. that Child could go to school late that morning. Id.

       A.W. testified that while Child lived with her and K.W., they had issues

with K.M.’s “lying, stealing, [and] manipulation,” and because she was

“hypersexual.” Id. at 28. On the night of January 31, 2018, A.W. attended a

master’s course, and arrived home around 10:30 p.m. Id. at 32-33. K.W. told

her that he had spanked Child, and A.W. went to speak with Child. Child

recounted the incident, including that K.W. had hit her four-to-five times. Id.

at 34. They proceeded to talk about everything, including her family, about

the police charges for the stolen prescription drugs, and about encouraging

Child. Id. at 35. A.W. saw Child’s leg, which had a mark on her upper hip that

was “probably the width of . . . two fingers.” Id. at 36. It was a light pink

color. Id. There was no bruising at that point. Id. She said that Child said she

had not showered yet, so A.W. told her to do so. Id. Further, they discussed

that, because Child was up so late, she could sleep in the next morning. Id.

at 37. A.W. never told Child that “it looks like she got her first W[.] [h]ouse

whooping.” Id. at 37. She stated that if Child’s leg looked like it did in the
____________________________________________


3 The parties stipulated that K.W. was charged with simple assault and
harassment related to the January 31, 2018 incident. Id. at 170-71.

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pictures, K.W. “wouldn’t have been sleeping because I would have wanted to

know why her leg looked like that,” and she would have sought some level of

medical attention. Id. at 38. She stated she told Ms. Rhoads about the incident

on January 31, 2018, but never said that they used a belt or hands any other

time. Id. at 43-44. She further testified that Child bruised easily. Id. at 53.

      Dr. Marcus Degraw, a pediatrician and child abuse pediatrician, testified

that Child’s bruising was “significant,” but “the injury itself isn’t really severe.”

N.T., 5/18/18, at 10. He stated “it was not an injury on the surface that [he]

would expect to cause significant limitation for any length of time.” Id. at 11.

He further testified that, although the “broad” bruising that “cover[ed] an

entire body part and surface area rather than a very specific pattern” could be

consistent with being hit by a belt multiple times, it was not “typical” of

bruising from being hit with a belt. Id. at 17. He would have been concerned

that the child “might be more prone to bruising and bleeding, and, therefore,

the bruising and bleeding might be more significant than you might expect or

different than you might expect.” Id. at 18.

      The trial court found that CYS did not support by clear and convincing

evidence a finding of abuse as to K.W. and A.W. Id. at 84-85. It concluded

that although “it heard testimony that [K.W.] did engage in corporal

punishment with the use of a belt in disciplining the minor youth, [it] does not

believe the evidence substantiates a clear and convincing finding that said

discipline meets the definition of child abuse under Pennsylvania statute.” Id.

at 85. The court found that the “conduct did not cause substantial pain to the

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child or impairment of the child’s physical condition.” Trial Court Op., July 6,

2018, at 1 (“1925(a) Op.”).

      CYS filed a timely notice of appeal. On appeal, the agency raises the

following issues:

         A. The trial court erred by failing to find abuse pursuant to
         23 Pa.C.S. §6303(b.1)(1) where there was clear and
         convincing evidence that the minor child, [K.M.], was struck
         with a belt by her legal custodian, [K.W.], more than once,
         which resulted in injury to [K.M.].

         B. The trial court erred by failing to give appropriate weight
         to the evidence of [K.M.]’s injury, which included credible
         testimony of the witnesses who observed the minor child to
         be in substantial pain and to be limping, as a result of her
         injury.

         C. The trial court erred by misapplying 23 Pa.C.S. §6304(d),
         which permits the use of reasonable force by a parent or
         guardian on or against a child for the purposes of discipline,
         in this case because the legal guardian’s use of force was
         not reasonable under the circumstances as it caused severe
         bruising to [K.M.]’s leg that required medical evaluation.

         D. The trial court erred by failing to make any findings of
         fact to support its decision that [K.M.] was not a victim of
         child abuse by her legal custodian, [K.W.].

CYS’s Br. at 5.

      In dependency cases, we “accept the findings of fact and credibility

determinations of the trial court if they are supported by the record” and we

review the determinations for an abuse of discretion. In re L.Z., 111 A.3d

1164, 1174 (Pa. 2015). As part of a dependency adjudication, a trial court

may find a person to be “the perpetrator of child abuse.” Id. at 1176. To do

so, it would need to find clear and convincing evidence of child abuse as



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defined by the Child Protective Services Law, 23 Pa.C.S.A. §§ 6301 et seq.

(“CPSL”). Id. The CPSL defines “child abuse” in relevant part as follows: “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.” 23 Pa.C.S.A. § 6303(b.1)(1). The CPSL defines “bodily injury”

as “[i]mpairment of physical condition or substantial pain.” Id. at § 6303(a).

      CYS first argues that the trial court erred by failing to find abuse

pursuant to 23 Pa.C.S.A. §6303(b.1)(1) where there was clear and convincing

evidence that Child was struck with a belt by K.W. more than once, and that

Child was injured.

      The trial court found that K.W. struck child with a belt, but that CYS

failed to establish, by clear and convincing evidence, that he caused an

“impairment of physical condition or substantial pain.” 1925(a) Op. at 1. The

trial court heard testimony from numerous witnesses. Although Child testified

she suffered pain and walked with a limp, and she reported to others those

same symptoms, K.W. and A.W. also testified that Child did not inform them

that she was in pain and they did not notice her limping. Further, although the

pictures show a large bruise on her thigh, the trial court was not required to

find that, because of the bruise and Child’s testimony, K.W.’s actions caused

Child to suffer impairment of physical condition or substantial pain. Cf.

Chronister ex rel. Morrison v. Brenneman, 742 A.2d 190, 193 (Pa.Super.

1999) (affirming denial of protection from abuse order and finding appellant

hit 16-year old child with belt, and, although child testified it “was painful and

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made her cry,” finding appellant’s actions did not cause bodily injury as there

was “no indication that it resulted in anything more than a temporary painful

condition”). There was conflicting evidence regarding the seriousness of the

injury inflicted and we cannot find, based on the totality of the evidence, that

the trial court abused its discretion when it found CYS did not establish, by

clear    and    convincing     evidence,       that   child   abuse   occurred.   See

Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011) (“The

weight to be accorded conflicting evidence is exclusively for the fact finder,

whose findings will not be disturbed on appeal if they are supported by the

record.” (quoting Commonwealth v. Lyons, 833 A.2d 245, 259 (Pa.Super.

2003)).4

        In its second issue, CYS argues the trial court failed to properly weigh

the evidence. It argues that because Child and others testified that the bruise

caused pain, that the trial court was required to enter a finding of child abuse.

The court, however, also heard testimony that Child did not seek pain

medication on the evening of January 31 and did not walk with limp that

evening. Further, it heard testimony that although the bruising was

substantial, it likely did not cause severe pain or lasting injury. We decline

CYS’s invitation to re-weigh the evidence. See Ratushny, 17 A.3d at 1272.

____________________________________________


4 In support of its contention of trial court error, CYS cited Commonwealth
v. Parks, No. 262 WDA 2015, unpublished memorandum, (Pa.Super. filed
July 28, 2015). Unpublished memoranda may not be relied on or cited by the
parties or the court. Oliver v. Irvello, 165 A.3d 981, 984 (Pa.Super. 2017);
Superior Court Internal Operating Procedure § 65.37(A).

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      Next, CYS argues the trial court improperly determined that the use of

force by K.W., a person responsible for Child’s welfare, was reasonable. It

argues the use of force was not reasonable because it caused severe bruising

which required medical attention.

      The CPSL excludes from the definition of child abuse “the use of

reasonable force on or against a child by the child’s own parent or person

responsible for the child’s welfare,” where certain conditions apply. 23

Pa.C.S.A. § 6304(c). The trial court, however, did not reach that exception.

Rather, the court found that Child did not suffer bodily injury, as required to

establish child abuse occurred. CYS’s issue, therefore, lacks merit.

      In its last issue, CYS argues the trial court erred by failing to make any

findings of fact to support its decision that Child was not a victim of child abuse

by K.W. It argues the court failed to offer analysis of the testimony or physical

evidence.

      CYS cites no case law in support of its assertion that the trial court must

make specific factual findings when finding child abuse did not occur. Further,

although we agree that more discussion of the testimony and evidence would

have been useful, we also note that the court did make two findings, that is,

that child abuse did not occur and that Child did not suffer physical impairment

or substantial pain. Because the findings are supported by the record, and we

can determine from a review of the record that the trial court did not abuse

its discretion, we decline to remand for additional findings.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2018




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