J-S71031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: K.C.S., A               :   IN THE SUPERIOR COURT OF
    MINOR                                       :        PENNSYLVANIA
                                                :
                                                :
    APPEAL OF: A.C., FATHER                     :
                                                :
                                                :
                                                :
                                                :   No. 655 EDA 2018

               Appeal from the Order Entered January 25, 2018
     In the Court of Common Pleas of Philadelphia County Family Court at
                       No(s): CP-51-DP-0001528-2017


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                            FILED FEBRUARY 19, 2019

       A.C. (Father) appeals from the permanency review order finding that

Father committed child abuse as to his minor son, K.C.S. (Child), born in

February 2004, and that aggravated circumstances existed. 1              We are

constrained to vacate the findings of abuse and aggravated circumstances.

       On May 20, 2017, Mother brought Child to the emergency department

at the Children’s Hospital of Philadelphia (CHOP), and Child was transferred to

the pediatric intensive care unit.             On May 22, 2017, the Philadelphia

Department of Human Services (DHS) received a child protective services

(CPS) referral. The referral alleged that Child was diagnosed with diabetes in
____________________________________________


1 The court also found that P.S. (Mother) had committed child abuse against
Child and that aggravated circumstances existed. Mother did not file a
separate appeal from this order, and is not a party to the instant appeal.

The trial court deferred ruling on whether reasonable efforts to preserve or
reunify the family were necessary.
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September 2015, had a history of poor management of the disease, and was

suffering from diabetic ketoacidosis at the time of his admission to CHOP. The

referral also indicated that Child had a history of depression and suicidal

ideation.

      On May 23, 2017, a DHS social worker, Donetta Thomas, visited Child,

Mother, and Father at CHOP. Mother indicated that Child was old enough to

administer his own medication without supervision, and was aggressive and

defensive to DHS before asking social workers to leave the hospital room. Ms.

Thomas spoke with CHOP staff, who expressed concern regarding Mother’s

ability to care for Child on discharge and her inability to recognize the extent

of Child’s illness.

      Ms. Thomas also spoke with Father.             At the time of Child’s

hospitalization, Mother and Father were living separately.     Mother was the

primary parent. Father stated that he visited Child three or four times a week

and spoke with Mother on a regular basis. Father indicated that he could not

care for Child in his own home because he did not have stable housing and

lived with a roommate. During their conversation, Ms. Thomas and Father

discovered that Child and Mother were no longer in Child’s room.          After

approximately twenty minutes, Father stated that he was going to get Child

and left Ms. Thomas.     After approximately fifteen minutes, when no one

returned, Ms. Thomas found that Mother had left CHOP with Child, and that

their whereabouts were unknown. CHOP called the police, and an “Amber

Alert” was issued.

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      On May 24, 2017, DHS obtained Father’s address through Child’s school.

DHS contacted Father, who stated that he knew what Mother did was wrong

and was in contact with Mother. Father, however, refused to provide Mother’s

phone number to DHS and stated that he would contact Mother. Mother and

Father then called DHS, and Mother agreed to return Child to CHOP. That

same day, Mother returned Child to CHOP, and security restrictions were

implemented.

      On June 7, 2017, DHS obtained an order of protective custody (OPC) for

Child. He was placed with his older sister, B.E., who had completed training

for Child’s care and medical needs. At a shelter care hearing on June 9, 2017,

the OPC was lifted and the temporary commitment to DHS was ordered to

stand.

      On June 12, 2017, DHS filed a dependency petition alleging that

aggravated circumstances existed. Specifically, DHS asserted that Mother and

Father’s failures to meet Child’s medical needs constituted an aggravated

circumstance for abuse under 42 Pa.C.S. § 6302(2).

      On July 11, 2017, the trial court adjudicated Child dependent.        A

permanency review hearing was held in November 2017, at which time the

court found Child was safe in his kinship placement. Child’s placement goal

was to return to his parent or guardian.

      On January 25, 2018, the trial court convened a hearing on the abuse

allegations. Ms. Thomas testified for DHS regarding DHS’s receipt of the CPS




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report, the circumstances leading to Child’s hospitalization, and her

interactions with Mother and Father.2 See N.T., 1/25/18, at 5-13.

        Ms. Thomas stated that Father appeared more cooperative than Mother,

but indicated that Father refused to provide her with Mother’s phone number

after Mother left CHOP with Child. Ms. Thomas indicated that Father took a

passive approach to Mother’s care of Child.      See id. at 28-29. When Ms.

Thomas suggested that Father make decisions regarding Child, Father

responded that “he did not want to start or get in an argument with” Mother.

Id. at 29.

        During its examination of Ms. Thomas, DHS entered three exhibits into

evidence, including: (1) the CPS referral (DHS-1); (2) Child’s discharge

summary from CHOP (DHS-2); and (3) a Child Protective Services Law3

(CPSL) report from a CHOP physician, which also included an attachment

containing emergency department notes (DHS-3).4 Father’s counsel objected

____________________________________________


2 DHS also called Jasmine Jackson, a case manager for Community Umbrella
Agency Turning Points, who testified in support of DHS’s position that no
further efforts should be made toward reunification.

3   23 Pa.C.S. §§ 6301-6386.

4Specifically, DHS-3 was a form signed by Katherine Lord, M.D., of CHOP,
which read:

        Dear Child Fatality Program Administrator:

        Consistent with the mandates of the Pennsylvania Child Protective
        Services Law, this letter is to certify that:



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to the admission of all three exhibits based on the failure of DHS to call

witnesses to testify as to the information or expert opinions contained in the

documents or that the reports were “accurate.” See id. at 7-8, 31. The trial

court overruled the objections. Id.

         Ms. Thomas, using DHS-1, testified, in part, that: (1) Child was admitted

to CHOP because he was “deprived of insulin and the medications he was

supposed to receive[;]” and (2) Child showed symptoms—including vomiting,

unresponsiveness, and incontinence—for three or four days before Mother

brought him to the hospital. Id. at 7-9. Additionally, Ms. Thomas stated that

DHS-3 was the document that “certified this [incident] as a near fatality.” Id.

at 30.

         Father testified on his own behalf. Id. Father acknowledged that Child

was diagnosed with diabetes at age eleven and was seeing a therapist to

manage his depression following the diagnosis.          Id. at 50.   According to

Father, he spoke with Mother on the night before Child’s admission to CHOP.

____________________________________________


               I am a physician who has treated or consulted on the case
               of the above-named child;

               The above named child is or was in serious or critical
               condition related to an event that generated a report to the
               DHS Hotline or to ChildLine (requiring a CY 47);

               This child has suffered injuries from an act that meets the
               definition of a near fatality (an act that as certified by a
               physician, places a child in serious or critical condition) 23
               Pa.C.S. § 2303.

DHS-3. Additionally, DHS-3 contained the Emergency Department’s Provider
Notes.

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Id. at 47. Mother told him Child was sick. When Father asked if they should

“take him,” Mother suggested that they try to use “the stuff they teach us.”

Id. When Mother called him on the morning of May 20, 2017, they took Child

to CHOP. Id.

       Father denied the allegations in DHS’s exhibits that Child was sick for

three or four days before his admission to CHOP, Child was breathing heavily

overnight, and Child was unconscious and incontinent upon being brought to

CHOP. Id. at 53. Instead, Father asserted that Child appeared “a little sick,”

was conscious and able to talk, and was complaining of tiredness. Id. 46-

47.   Father stated he believed Child was taking his medication because Child

and Mother told Father he was doing so. Id. at 50-51.

       At the conclusion of the hearing, the trial court found that both Mother

and Father had committed child abuse and that aggravated circumstances

existed as to both parents.5 When finding abuse, the court quoted DHS-3 and

credited the statement indicating that the incident involved a near fatality.

Id. at 61-63 (noting that the incident was deemed a near fatality, that DHS-

3 was signed by a clinician, and that the report was “part of today’s

evidence”). The court further found that Father did not fully cooperate with

DHS and “abdicated his responsibility to ensure that the medical needs of Child

[were] met.” Id. at 62-63. However, the court deferred ruling on whether

____________________________________________


5 Child’s guardian ad litem (GAL) opposed finding child abuse and aggravated
circumstances at the hearing, arguing that DHS failed to carry its burden of
proof. See N.T. at 59-60.

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further efforts to reunify the family were necessary. That same day, the court

entered its permanency review order memorializing its conclusions.

      Father timely filed a notice of appeal and statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) raising the following

issues:

      1. The trial court erred and/or abused its discretion when it found
      that [DHS] by clear and convincing evidence had met its burden
      to establish that aggravated circumstances and child abuse
      exist[ed] as to [F]ather . . . .

      2. The trial court erred and/or abused its discretion when it
      “founded” the CPS report of May 23, 2017 as to [F]ather.

Father’s Statement of Matters Complained of on Appeal, 2/23/18.

      The trial court, in its Rule 1925(a) opinion, suggested that we affirm.

With respect to its finding of abuse and aggravated circumstances, the court

reasoned:

      The [c]ourt found the social worker’s testimony credible. The
      [c]ourt was reflective of the social worker’s testimony of an Amber
      Alert trigger due to Mother’s removal of [Child] from the hospital
      and Father's reluctant and uncooperative behavior. The [c]ourt
      found DHS met their burden of proof through clear and convincing
      evidence. The [c]ourt found [DHS-3], [the] medical report of
      medical physician at CHOP, supported Father’s obstructive
      behavior. The [c]ourt was reflected of the physician’s entry which
      stated [Child] had suffered injuries from an act that met the
      definition of near fatality.      The [c]ourt further noted the
      physician’s report stated the act was certified by a physician
      pursuant to 23 Pa.C.S. § 6303.           Hence the [c]ourt found
      Aggravated Circumstances and Child Abuse existed as to [Child]
      by Father.

Trial Ct. Op., 6/20/18, at 5 (record citations omitted).



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       On appeal, Father raises the following questions for our review:6

       1. Did the trial court err and/or abuse its discretion when it found
       that [DHS] by clear and convincing evidence met its burden to
       establish that child abuse and aggravated circumstances [existed]
       as to [F]ather?

       2. Did the trial court abuse its discretion when it “founded” the
       CPS report of May 23, 2017 as to [F]ather?

See Father’s Brief at vi (some capitalization omitted).

       Before reaching the merits of Father’s appeal, we must first determine

whether he has preserved his issues.             See Krebs v. United Ref. Co. of

Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that a failure to

preserve issues by raising them both in the concise statement of errors

complained of on appeal and statement of questions involved portion of the

brief on appeal results in a waiver of those issues); Pa.R.A.P. 1925(b).

Father’s statement of questions, as identified in his brief, is identical to his

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

       As presented in his brief, Father’s arguments are intertwined.

Essentially, he argues that DHS did not prove by clear and convincing evidence

that he committed child abuse or that aggravated circumstances existed. Id.

at 4. With regard to Father’s first issue, he contends that the trial court did

not identify a specific statutory basis upon which it made its abuse finding,

____________________________________________


6 We have reordered these questions to reflect the order in which Father
addresses them in his brief. See Father’s Brief at 4-6. Additionally, we note
that the GAL has filed a brief arguing that the orders should be vacated based
upon the lack of clear and convincing evidence, and that DHS has not filed a
brief.

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and that no testimony was presented as to what caused Child’s illness and

whether it was related to any action or inaction of Father. Id. at 4-5. With

regard to Father’s second issue, he argues that the court erred in admitting

DHS exhibits two and three into the record: as they were reports from a doctor

at CHOP and admitted for the truth of the matter asserted – namely, that

Father committed acts of neglect or abuse—the reports constitute hearsay.

Id. at 6. There was no witness present to authenticate the exhibits, and,

accordingly, Father contends that they were not admissible under the business

records exception. Id.; see also Pa.R.E. 803(6)(d).

      Here, Father objected to the admission of the exhibits in question at the

hearing. However, his statement of errors complained of on appeal makes no

mention of the exhibits or any issues regarding hearsay. The trial court did

not address the hearsay issue or the business records exception in its

Pa.R.A.P. 1925(a) opinion. Accordingly, we conclude that Father has waived

any hearsay issues or challenges to the admission of the evidence – his second

issue – due to the vagueness of his Pa.R.A.P. 1925(b) statement. Krebs, 893

A.2d at 797; see also In re B.C., 36 A.3d 601, 605 (Pa. Super. 2012) (where

a parent does not raise his issues in his Pa.R.A.P. 1925(b) statement, he

cannot raise such claims for the first time on appeal).

      We now turn to the sole issue Father has preserved, namely, that DHS

did not prove by clear and convincing evidence that he committed child abuse,

because there was no evidence that Father’s actions or inactions led to Child’s

near fatality.

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     Initially, we note that

     [t]he 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.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).        The burden of proof in a

dependency case is on the petitioner to demonstrate by clear and convincing

evidence that a parent has committed child abuse or that aggravated

circumstances apply. See In re G.T., 845 A.2d 870, 872 (Pa. Super. 2004);

see also In re A.H., 763 A.2d 873, 876 (Pa. Super. 2000) (stating that a

finding of abuse must be supported by clear and convincing evidence). The

trial court’s findings must be supported by competent evidence. See In re

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

     In the instant case, the court made two determinations: first, that

Father was the perpetrator of child abuse; and second, that aggravated

circumstances existed as to Child. As part of “[a] dependency adjudication, a

court may find a parent to be the perpetrator of child abuse,” as defined by

the CPSL. In re L.Z., 111 A.3d 1164, 1176 (Pa. 2015).

     In cases of child abuse, a court’s finding as to the identity of the
     abusers need only be established by prima facie evidence that the
     abuse normally would not have occurred except by reason of acts
     or omissions of the caretakers.

In re R.P., 957 A.2d 1205, 1217-18 (Pa. Super. 2008) (some citations

omitted).



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

       (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. § 6303(b.1).7

       Section 6303(a) defines “intentionally,” “knowingly,” and “recklessly” as

“hav[ing] the same meaning as provided in 18 Pa.C.S. § 302 (relating to

general requirements of culpability),” which provides:

       (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.
____________________________________________


7 Additionally, the CPSL defines a “near fatality” as “[a] child’s serious or
critical condition, as certified by a physician, where that child is a subject of
the report of child abuse.” Id. at § 6303.

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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).    Section 6303(a) defines “bodily injury” and “serious

physical neglect” in the following manner:

     “Bodily injury.” Impairment of physical condition or substantial
     pain.

                                     ***

     “Serious physical neglect.”         Any of the following when
     committed by a perpetrator that 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:

           (1) A repeated, prolonged or egregious failure to supervise
           a child in a manner that is appropriate considering the
           child’s developmental age and abilities.

           (2) The failure to provide a child with adequate essentials of
           life, including food, shelter or medical care.

23 Pa.C.S. § 6303(a).


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      Finally, aggravated circumstances include cases where “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.” See 42 Pa.C.S. § 6302. Aggravated physical neglect is defined 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.

      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.

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

brackets omitted).

      Here, DHS did not establish by clear and convincing evidence that Father

had committed child abuse or that aggravated circumstances existed as to

Father.    Father has, indeed, waived his challenge to the admission of the

medical documents, including the certification of near fatality.       However,

neither the documents nor the testimony of the DHS social worker

demonstrate a causal link between Father’s actions, or inactions, and Child’s

illness.

      The evidence established the following. Father was not living full time

with Mother and Child when Child was admitted into the hospital, although he

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kept in contact with Mother and visited three to four times a week. Father

assumed that Child was managing his medication properly based upon Mother

and Child’s representations, despite some indication that the thirteen-year-

old Child had been dishonest about taking his medication in the past. Child’s

condition had deteriorated over the course of three to four days, including

vomiting, headaches, and abdominal pain, until he was found unconscious and

incontinent. Father and Mother then took Child to the hospital.

      DHS-1, the CPS report, indicated that hospital staff were concerned

that parents did not recognize how serious Child’s deterioration had become.

DHS-1 at 5, 7. Additionally, there were concerns that Father expected Child

to manage his own diabetes. Id. Ms. Thomas further testified that she was

concerned about Father because he seemed to defer to Mother and took a

submissive stance to avoid arguing with Mother. N.T. at 28-29.

      Father’s own testimony was that, in the days leading up to the

hospitalization, Child had complained of tiredness, was “a little sick,” and was

not himself.   Father testified that Child was conscious when taken to the

hospital, and the trial court found his testimony not credible in this regard.

Even with that credibility determination, however, nothing in the medical

records established that Father’s actions or inactions had led to Child’s

condition. See In re J.M., 166 A.3d 408, 427 (Pa. Super. 2017) (noting that

suspicions are not a substitute for clear and convincing evidence). Nothing in

the medical records offers a definitive opinion as to what “act” caused Child’s


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illness, only that he had suffered from a near fatality. Similarly, nothing in

the records indicated that Father knew or had serious reason to believe Child’s

insulin levels were not correctly monitored, or that Father interfered with

Child’s medical treatment.

      Therefore, we conclude the evidence did not establish clear and

convincing proof that Father intentionally, knowingly, or recklessly caused

bodily injury or physical neglect to Child through any recent act or failure to

act, or that aggravated circumstances existed. Accordingly, we vacate the

trial court’s orders. R.J.T., 9 A.3d at 1190;   Novosielski, 992 A.2d at 107.

      Orders vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/19




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