J-S63001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.G., A MINOR          :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: N.H., MOTHER                    :      No. 2119 EDA 2019

                    Appeal from the Order Dated July 8, 2019
              In the Court of Common Pleas of Philadelphia County
              Juvenile Division at No(s): CP-51-DP-0002511-2017


BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.E.:                        FILED JANUARY 08, 2020

        Appellant, N.H. (“Mother”), appeals from the order entered in the

Philadelphia County Court of Common Pleas that extended the dependency

adjudication of J.G. (“Child”) and found Mother was the perpetrator of child

abuse against Child. We affirm.

        The relevant facts and procedural history of this case are as follows.

Mother and J.G. (“Father”) are the natural parents of Child, born in August

2017.     On September 18, 2017, the Philadelphia Department of Human

Services (“DHS”) filed a dependency petition for Child based on a lack of

parental care and supervision.         The court adjudicated Child dependent on

September 26, 2017, but permitted Child to remain at home with Mother and

Father. A few months later, on December 20, 2017, Child was admitted to St.

Christopher’s Hospital for Children based on his pediatrician’s concerns


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S63001-19


regarding Child’s failure to thrive.       At four months old, Child was severely

underweight and malnourished.            Child was also dirty and had multiple rib

fractures in various stages of healing. Due to Child’s condition, the hospital

referred Child to DHS.

       On December 27, 2017, DHS filed an application for an order of

protective custody of Child, which the court subsequently granted. Following

a shelter care hearing on December 28, 2017, the court placed Child in foster

care upon his release from the hospital.          DHS filed a second dependency

petition on January 18, 2018, requesting a finding of abuse against Mother

and Father. Following hearings on April 2, 2019, and July 8, 2019, the court

entered an order extending the dependency adjudication of Child and finding

Mother and Father had committed child abuse against Child. On July 25, 2019,

Mother filed a timely notice of appeal and a contemporaneous concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.1

       Mother raises the following issue for our review:

          WHETHER THE EVIDENCE WAS INSUFFICIENT FOR THE
          COURT TO FIND MOTHER AN INDICATED PERPETRATOR OF
          ABUSE BY CLEAR AND CONVINCING EVIDENCE WHERE
          THERE WAS NO EVIDENCE THAT MOTHER EITHER
          INTENTIONALLY OR RECKLESSLY CAUSED HER CHILD TO
          BE DEPRIVED OF FOOD AND CAUSED THE INJURIES
          PURSUANT TO 23 PA.C.S. [§] 6303?

(Mother’s Brief at 3).


____________________________________________


1Father filed a separate appeal from the order, which is docketed at No. 2120
EDA 2019 (J-S63002-19).

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J-S63001-19


      Our standard of review from an adjudication of dependency:

         [R]equires 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 [trial] court’s inferences or conclusions
         of law. Accordingly, we review for an abuse of discretion.

In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (internal citation omitted). In

other words: “Although bound by the facts, we are not bound by the trial

court’s inferences, deductions, and conclusions therefrom; we must exercise

our independent judgment in reviewing the court’s determination, as opposed

to its findings of fact, and must order whatever right and justice dictate.” In

re D.A., 801 A.2d 614, 618 (Pa.Super. 2002) (en banc).

      During the course of dependency proceedings, a trial court may find a

parent to be the perpetrator of child abuse as defined under the Child

Protective Services Law (“CPSL”). In Interest of J.M., 166 A.3d 408, 421-

22 (Pa.Super. 2017). The “CPSL does not create or include a separate action

for child abuse, and, under the Juvenile Act, a finding of abuse can only be

made as part of a dependency proceeding in which abuse is alleged.”         In

Interest of R.T., 592 A.2d 55, 59 (Pa.Super. 1991). See also 23 Pa.C.S.A.

§ 6370(b)(2)(i) (stating that if county agency deems it appropriate in

dependency or delinquency proceeding, including instance in which alleged

perpetrator has access or poses threat to child, county agency may petition

court for finding of child abuse).

      The CPSL defines “child abuse,” in relevant part, as follows:


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J-S63001-19


         § 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.

                                    *    *    *

                 (7) Causing serious physical neglect of a child.

                                    *    *    *

23   Pa.C.S.A.    §   6303(b.1)(1),(5),(7).       “Bodily   injury”   is   defined   as

“[i]mpairment of physical condition or substantial pain.”             23 Pa.C.S.A. §

6303(a). “Serious physical neglect” is defined as, inter alia, “[t]he failure to

provide a child with adequate essentials of life, including food, shelter, or

medical care” which “endangers a child’s life or health, threatens a child’s well-

being, causes bodily injury or impairs a child’s health, development, or

functioning.” Id.

      The existence of “child abuse” pursuant to Section 6303(b.1) must be

proved by clear and convincing evidence. In re L.Z., 631 Pa. 343, 361, 111

A.3d 1164, 1174 (2015). Under certain circumstance, however, the identity

of an abuser may be established by prima facie evidence. Id. See also In

re L.V., 127 A.3d 831, 837-38 (Pa.Super. 2015).

                                        -4-
J-S63001-19


         [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…agency and
         the rebuttal of the parent or responsible person.

In re L.Z., supra at 379, 111 A.3d at 1185 (internal footnote omitted).

      Significantly, courts do not require a parent’s physical presence during

the injury for “abuse” to occur. Id. at 377, 111 A.3d at 1184. To the contrary,

our Supreme Court has stated, “parents are always responsible for their

children, absent extenuating circumstances….” Id. Moreover, “[t]he inclusion

of ‘omissions’ encompasses situations where the parent or responsible person

is not present at the time of the injury but is nonetheless responsible due

to…her failure to provide protection for the child.” Id.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Vincent

Furlong, we conclude Mother’s issue merits no relief.           The trial court

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed August 28, 2019, at 3-6) (finding: Dr. Marita

Lind, Director of Child Protection Program at St. Christopher’s Hospital and

expert in child abuse, testified that Child was underweight because Child was

                                      -5-
J-S63001-19


not being fed properly; Dr. Lind additionally explained there were no medical

explanations for Child’s fractured ribs other than compression, squeezing, or

direct blows to Child’s body; Mother admitted to DHS representative that she

had “trouble” mixing Child’s formula; Mother offered no explanation for Child’s

fractured ribs; court found credible testimony of child abuse expert and DHS

representatives; Mother has five children and should have known how to mix

Child’s formula correctly; Mother also should have noticed Child’s obvious

discomfort from fractured ribs; furthermore, Child recovered after placement

in foster care; evidence was sufficient to show Mother was perpetrator of

abuse based on her acts or omissions).       The record supports the court’s

decision; therefore, we see no reason to disturb it. Accordingly, we affirm

based on the trial court opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/20




                                     -6-
                                                               Circulated 12/23/2019 02:15 PM




         THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
        PHILADELPHIA COUNTY COURT OF COMMON PLEAS

IN THE INTEREST OF:                           FAMILY COURT DIVSION r-.;,,:::=
J.G, a Minor                                  CP-51-DP-0002511-2017 .,, '"o
D.O.B.   o'8 /:» l"t-                         FID # 51-FN-001198-201&o �
                                              2119 EDA 2019         o ,:;-,
                                                                         -u      N
Appellant N.H., Mother                                                   ;ir:;   0::,

                                                                         O       v
                                                                         -·J     3�
                                     OPINION                             :r:

                           PROCEDURAL HISTORY

       On April 2, 2019 and July 8, 2019, the trial court held hearings to determine

if Mother was a perpetrator of child abuse as to Child J .G. ("Child,,). Mother was

present at the hearing and represented by counsel. After extensive testimony, the

court made a finding of child abuse versus Mother on July 8, 2019. A Notice of

Appeal was filed by Mother on July 25, 2019.

      STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

       Mother's Statement of Matters Complained of on Appeal is set forth below

in verbatim:

       1. The evidence was insufficient for the court to find mother an indicated
          perpetrator of abuse by· clear and convincing evidence where there was
          no evidence that Mother either intentionally or recklessly caused her
          child to be deprived of food caused the injuries to the child pursuant to
          23 Pa.C.S. 6303.

                             FINDINGS OF FACT

       On December 10, 2017, following an examination by his pediatrician, Child

was referred to St. Christopher's Hospital for Children and a subsequent report was

made to the Philadelphia Department of Human Services ("DHS") based on

observations of Child's failure to thrive. Child was also foul smelling and dirty.

                             Page 1 of 6
•,




                        (Statement of Narrative-DRS Exhibit 6). DHS issued a Child Protective Services

                        ("CPS") Report which indicated that Mother was not properly mixing Child's

                        formula causing the Child to be severely underweight and malnourished. Upon

                        further medical examination, it was determined that Child had multiple fractured

                        ribs. Based upon these findings, Child was hospitalized for several of weeks during

                        which Child gained significant weight and Child's fractures healed. Child was

                        placed in a foster care home and since placement has never incurred a fractured

                        bone and is well nourished and thriving. Neither Mother nor Father offered a

                        satisfactory explanation for Child's fractured ribs or why Child was severely

                        underweight. After extensive testimony, the court made a finding of child abuse

                        versus Mother on July 8, 2019. A Notice of Appeal was filed by Mother on July

                        25, 2019.

                                                              LEGAL ANALYSIS

                                 In order for the court to determine if a parent is a perpetrator of child

                        abuse pursuant to the Child Protective Services Law ("CPSL"), DHS, as the

                        moving party, must demonstrate by clear and convincing evidence that the

                        statute is satisfied. Since proof of child abuse is often circumstantial, the

                        CPSL permits evidence that would normally be barred tinder the Juvenile

                        Act. Evidence that a child has suffered abuse of such a nature as would

                        ordinarily not be sustained or exist except by reason of the acts or omissions

                        of the parents shall be prima facie evidence of child abuse by the parents                 1•




     1
       23 Pa.C.S.A. § 6381 General rule. -In addition to the rules of evidence provided under 42 Pa.C.S. Ch. 63
     (relating to juvenile matters), the rules of evidence in this section shall govern in child abuse proceedings in court or
                                                            Page 2 of 6
                            I.       The trial court did not commit reversible error when it
                                     made a finding of child abuse against Mother

                            During the hearing on April 2, 2019. the' trial court heard testimony

                   from Dr. Marita Lind, the Director of the Child Protection Program at St.

                   Christopher's Hospital for Children in Philadelphia and an expert in child

                   abuse (N.T. April 2, 2019 Page 7). Dr. Lind concluded that the Child was

                   underweight due to not being fed properly. This appeared unusual to Dr. Lind

                   since this was Mother's fifth child. (N.T. April 2, 2019 Pages 30-32). Dr.

                   Lind indicated that there was probably no other medical cause for Child being

                   underweight and noted ( 1) Child's weight increased dramatically as result of

                  proper feeding; (2) there was no indication that the Child was born unhealthy;

                   and (3) the Child had adequate calcium and Vitamin D levels and had no

                  symptoms of acid reflux. (N.T. April 2, 2019 Pages 16-21). Dr. Lind also

                  indicated that the Child's bone density was normal. (N.T. April 2, 2019 Page


in any department administrative hearing pursuant to section 6341 (relating to amendment or expunction of
information).
(b) Reports of unavailable persons. -Whenever a person required to report under this chapter is unavailable due to
death or removal from the jurisdiction of the court, the written report of that person shall be admissible in evidence
in any proceedings arising out of child abuse other than proceedings undor Title 18 (relating to crimes and offenses).
Any hearsay contained in the reports shall be given such weight, if any, as the court determines to be appropriate
under all of the circumstances. However, any hearsay contained in a written report shall not of itself be sufficient to
support an adjudication based on abuse.
(c) Privileged communications.-Except for privileged communications between a lawyer and a client and between
a minister and a penitent, a privilege of confidential communication between husband and wife or between any
professional person, including, but not limited to, physicians, psychologists, counselors, employees of hospitals,
clinics, day-care centers and schools and their patients or clients, shall not constitute grounds for excluding evidence
at any proceeding regarding child abuse or the cause of child abuse.
(d) Prima facie evidence of abuse. -Bvidence 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.
(e) Child victims and witnesses. -In addition to the provisions of this section, any consideration afforded to a child
victim or witness pursuant to 42 Ph.C. 's. Ch. 59 Such. D (relating to child victims and witnesses) 1 in any
prosecution or adjudication shall be afforded to a child in child abuse proceedings in court or in any department
administrative hearing pursuant to section 6341.


                                                      Page 3 of 6
36). Additionally. there was no medical explanation for the Child's fractured

ribs other than compression, squeezing or direct blows to the Child's body.

(N.T. April 2, 2019 Pages 28-29). Dr. Lind testified that she expected that

someone familiar with the Child would have noticed the Child experienced

discomfort from the rib fractures because Dr. Lind noticed the Child's

discomfort during her initial examination of the Child.

        During the hearing on July 8, 2019, Ms. Amanda Aquila, a DRS

Representative, testified that she interviewed the Mother who indicated that

she was having trouble mixing the Child's formula and that she and Father

were providing proper care for the Child. (N.T. July 8, 2019 Page 13-14). Ms.

Aquila also testified that she interviewed Father and he was not cooperative

during the interview. Both parents indicated that other family members also

took care of the Child at times. The Parents, however, could offer no

explanation for the Child's fractured ribs.   Ms.   Aquila testified that she

believed that it happened during a period of time when Mother and Father

and possibly other family members had access to the Child. Mr. Francis

James, the DHS Representative, testified that Child experienced no fractured

bones after being placed in foster care.

       The testimony of Dr. Lind and Ms. Aquila and Mr. James was

accorded great weight by the trial court. Special deference was given to Dr.

Lind's conclusion that the rib fractures were not accidental and that Child's

weight gain was immediate and significant upon being properly fed. In the

instant case, Mother is the parent of :five Children and Mother should have


                             Page4 of 6
been expected to properly feed Child and notice the Child's discomfort from

fractured ribs. Likewise, Father was a caregiver who spent entire days with

the Child, who also should have properly fed the Child and noticed the

Child's discomfort. Although no person ever admitted to striking the Child

or depriving the Child of food, the Child's fractured ribs, poor health and

poor hygiene and immediate recovery when placed in foster care were

indications of child abuse based upon the parents' acts or omissions.

                                   CONCLUSION

         After review of the testimony and supporting documentation, the trial

court finds it determined correctly that there be a finding of child abuse versus

Mother. For the foregoing reasons, this court requests that the July 8, 2019

Order be AFFIRMED.

                                                BYTHECOURT

Date:   8 . 'J-'8 ,. 11




                              Page S of 6
'   .
                                    CERTIFICATE OF SERVICE

                I hereby certify that a true and correct copy of the above-captioned

        Opinion was filed on the undersigned date in the Court of Common Pleas of

        Philadelphia County Family Court Division and served by first class mail

        upon the following:

                                       Paul McLaughlin, Esquire
                                     Philadelphia Law Department
                                             One Parkway
                                      1515 Arch Street-l S" Floor
                                        Philadelphia, PA 19102
                                           Attorney for DHS

                                     Mary Beth Cherniak, Esquire
                                           P.O. Box 6972
                                       Wyomissing, PA 19610

                                      Ruth Mabel Brice, Esquire
                                      1800 JFK Blvd Suite 300
                                          Philadelphia, PA

                                      Jeffrey C. Bruch, Esquire
                                    1515 Market Street Suite 1200
                                       Philadelphia, PA 19102


        Date:   8 _ J. � .- /   r




                                       Page 6 of 6
