J-S63002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: J.G., FATHER                    :      No. 2120 EDA 2019

                   Appeal from the Order Entered 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, J.G. (“Father”), appeals from the order entered in the

Philadelphia County Court of Common Pleas that extended the dependency

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

abuse against Child. We affirm.

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

Father and N.H. (“Mother”) 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 Father and

Mother. 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-S63002-19


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 Father and

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

entered an order extending the dependency adjudication of Child and finding

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

Father 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

       Father raises the following issues for our review:

          DID THE TRIAL JUDGE RULE IN ERROR THAT THE
          PHILADELPHIA CITY SOLICITOR’S OFFICE [MET] ITS
          BURDEN OF PROOF THAT THERE SHOULD BE A FINDING OF
          CHILD ABUSE UNDER THE CHILD PROTECTIVE SERVICES
          ACT, 23 PA.C.S. SEC. 6303[?]

          DID THE TRIAL COURT JUDGE ERR IN ALLOWING FATHER’S
          CRIMINAL DOCKET AND CRIMINAL COURT SUMMARY IN AS
          PART OF THE CHILD ABUSE HEARING[?]
____________________________________________


1Mother filed a separate appeal from the order, which is docketed at No. 2119
EDA 2019 (J-S63001-19).



                                           -2-
J-S63002-19



(Father’s Brief at 2).2

       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



____________________________________________


2 Concerning his second issue, Father’s appellate brief contains only a single-
paragraph argument with no citations to any supporting legal authority.
Father’s failure to develop his issue on appeal compels waiver. See Lackner
v. Glosser, 892 A.2d 21 (Pa.Super. 2006) (explaining arguments must adhere
to rules of appellate procedure and arguments which are not appropriately
developed are waived; arguments not appropriately developed include those
where party has failed to cite relevant authority to support contention);
Pa.R.A.P. 2119(a). Moreover, even if properly preserved, Father’s claim would
merit no relief for the reasons stated in the trial court’s opinion. (See Trial
Court Opinion, filed August 28, 2019, at 5) (finding: testimony indicated
Father was with Child often because he was under house arrest; Father’s
criminal summary was also relevant to show if Father was incarcerated in
December 2017, which could have negated finding of child abuse against
Father; Father showed no prejudice from admission of criminal summary).

                                           -3-
J-S63002-19


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:

         § 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. §

                                         -4-
J-S63002-19


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).

         [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

                                      -5-
J-S63002-19


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

his…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 Father’s remaining 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 3-5) (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

not being fed properly; Dr. Lind additionally testified that 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; neither parent

offered explanation for Child’s fractured ribs; court found credible testimony

of child abuse expert and DHS representatives; Father spent extended periods

of time with Child and should have known how to feed Child properly; Father

also should have noticed Child’s obvious discomfort from fractured ribs;

furthermore, Child recovered after placement in foster care; evidence was

sufficient to show Father was perpetrator of abuse based on his 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.


                                     -6-
J-S63002-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/20




                          -7-
                                                          ·,
                                                                 Circulated 12/23/2019 01:33 PM




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

IN THE INTEREST OF:                            FAMILY COURT DIVSIO�
                                                                       ""°
J.G, a Minor                                   CP-51-DP-0002511-2017 � �-              �··. . ·
                                                                                       ";•1


D.O.B.     0�/ 7-.Dt+                           FID # 51-FN-001198-20:ttS        �     ; :\
                                                2119 EDA 2019            i �
Appellant J.G., Father                                                   C;
                                                                         -; -n
                                                                            :J:
                                      OPINION
                                                                         :..'C
                                                                                 -..
                                                                                 N
                                                                                 N
                            PROCEDURAL IDSTORY

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

if Father was a perpetrator of child abuse as to Child J. Gt. ("Child"). Father was

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

court made a finding of child abuse versus Father. A Notice of Appeal was filed by

Father on July 25, 2019.

      STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

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

in verbatim:

         1. The Judge ruled in error that the Philadelphia City Solicitor's Office met
            its burden of proof to prove that he was a perpetrator of child abuse
            under 23 Pa.C.S. §6303. The burden in a child abuse hearing is clear
            and convincing. At the hearing the City and DHS did not put on enough
            evidence to meet its burden of proof that Father should be considered a
            perpetrator of child abuse under 23 Pa.C.S. §6303.

         2. The Judge ruled in error by allowing Father's criminal docket and
            summary in as evidence as part of the child abuse hearing. The evidence
            was not relevant. If there was any relevance the prejudicial effects
            greatly outweighed the relevance. Father's criminal record had nothing
            to do with the child abuse allegations.




                               Page 1 of 7
                               FINDINGS OF FACT

        On December '24, 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.

(Statement of Narrative-DBS 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 time 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 Father on July 8, 2019. A Notice of Appeal was filed by Father 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"), DRS, 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 under the Juvenile


                              Page 2 of 7
                  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 parents1•

                            I.       The trial court did not commit reversible error when it
                                     made a finding of child abuse against Father

                            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 the Child not being properly fed. 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


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
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 ofthat person shall be admissible in evidence
in any proceedings arising out of child abuse other than proceedings wider 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 ofhospitals,
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. --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.
(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 7
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 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 DHS

Representative, testified that she interviewed Mother who indicated that she

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

providing care 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. Ms. Aquila indicated during her testimony that Father

was with the Child for extended periods of time because he was under house

arrest for a criminal matter. Both parents indicated that other family members

also took care of the Child. 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 oftime when Mother and Father and possibly other

family members had access to the Child. Mr. Francis James, a DHS




                              Page 4 of 7
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. Father

was a caregiver who spent entire days with the Child, who should have

properly fed the Child and noticed the Child's discomfort from his fractured

ribs.

        Counsel for Father alleges that the introduction of the Father's

criminal record and conviction was not relevant. Testimony indicated Father

spent time with Child because he was under house arrest for a criminal matter.

Moreover, the trial court also wanted to determine if the Father was in

custody in December 2017, which would have actually become evidence

tending to negate the charge of child abuse as to Father. Furthermore, this

was not a jury trial and Counsel for the Father has offered no evidence that

the trial court's ability to reason the facts and laws applicable to this case was

prejudiced by the introduction of Father's criminal history. 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 both

Parents' acts or omissions.




                               Page 5 of 7
..
                                       . 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

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

     Order be AFFIRMED.

                                                    BY THE COURT




                                   Page 6 of 7
                        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-16111. Floor
                            Philadelphia, PA 19102
                               Attorney for DBS

                         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




                           Page 7 of 7
