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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.L., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: BRADFORD COUNTY No. 1824 MDA 2014
CHILDREN & YOUTH SERVICES
Appeal from the Order entered September 29, 2014,
in the Court of Common Pleas of Braford County, Juvenile
Division, at No(s): CP-08-DP-0000006-2014
BEFORE: GANTMAN, P.J., MUNDY, and JENKINS, JJ.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 10, 2015
Appellant, Bradford County Children and Youth Services (“CYS”),
appeals from the trial court’s order entered on September 29, 2014,
adopting the Master’s Recommendation finding that J.L. (“Mother”) did not
emotionally abuse B.L. (“Child”), and that aggravated circumstances against
Mother did not exist.1 This finding followed a request by CYS at a
September 24, 2014 permanency review hearing that the Master find Mother
emotionally abused Child. We reverse and remand, with instructions.
On April 20, 2014, CYS received a report that Child, who was born in
August, 2008, had been locked in his bedroom for three days, and was
permitted out of his bedroom only to eat. The reporter informed CYS the
room was bare except for a potty chair. CYS contacted the police
department. When police officers arrived at the residence, Child was locked
1
B.G., Child’s father (“Father”), was incarcerated at the time of the incident
and remains incarcerated. Father is not a party to this appeal.
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inside the bedroom. Child’s bed was inside the closet, and the bed was
soaked in urine. The officers found feces on Child’s bedroom floor and on
the wall.
On April 20, 2014, CYS filed an amended dependency petition2 and,
that same day, the trial court issued an emergency order temporarily placing
Child in the protective custody of CYS. Emergency Order, 4/2-/2014. On
April 23, 2014, following a shelter care hearing, the trial court ordered CYS
to obtain custody of Child, and Child was placed in foster care.
Mother testified at a May 22, 2014 adjudicatory hearing. Mother
admitted Child was locked in the bedroom at night and several times during
the day. Mother regularly left Child home with Mother’s girlfriend, A.W.,
whom Child feared. On May 22, 2014, Child was adjudicated dependent.
The dependency order allowed Mother to have supervised visits with Child,
but A.W. was not allowed to have contact with Child.
Following a June 26, 2014 dispositional hearing, the Master filed a
Recommendation, which the trial court adopted on July 1, 2014 and which
included the following findings:
2
On February 10, 2014, CYS filed a dependency petition alleging Child was
without proper care or control and alleging he remained in the home but was
in imminent risk of placement in foster care absent preventive services. The
petition filed by CYS followed a report that Child had unexplained injuries
inconsistent with Child’s report of such injuries. The petition requested
access to Child at school and home to assess Child’s safety. That same day,
the trial court issued an order granting CYS access to Child to view the
injuries and interview Child.
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1. The report of Richard E. Dowell, Jr., Ph.D., clinical
neuropsychologist, finds [Child] suffers from post
traumatic stress disorder arising from the environment in
which Mother has raised [Child].
2. The Child has extreme behavioral issues that have
resulted in his having to repeat Kindergarten and his
having an inability to interact appropriately with others.
Master’s Recommendation for Disposition, 6/26/2014, at 2; Order,
7/1/2014.
On September 24, 2014, the Master held a permanency hearing. At
the permanency hearing, Samantha Group, a foster care coordinator; G.K.,
Child’s foster mother (“Foster Mother”); and Nicole Pidcoe, a CYS
caseworker, testified. At the hearing, CYS presented the written report of
Richard E. Dowell, Jr., Ph.D., a clinical neuropsychologist. Dr. Dowell opined
that Child suffered from Post-Traumatic Stress Disorder (“PTSD”). The trial
court quoted the following portions of Dr. Dowell’s report:
According to available records/reports,
[C]hild’s history is remarkable for the presence of
multiple home environment risk factors including
parental separation, paternal absences, reports of
residing with multiple sexual perpetrators including
biological father, paternal arrests/incarcerations
(multiple), inconsistencies, unpredictability, foster
care placement, multiple caretakers, possible abuse,
neglect and deprivation. Biological (family history)
risk factors are not clear, but likely include significant
mental health issues. No child medical or biological
risk factors were identified. Symptom onset was
described as being gradual during early childhood
with interval history being characterized by a trend
for worsening of problems as a function of
environmental demands.
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Under the heading "FAMILY HISTORY,” Dr. Dowell included
the following:
According to parental reports, family history is
remarkable for significant problems/conditions
including problems with aggression, attentional
problems, learning disability, depression, anxiety or
adjustment problems, alcohol abuse, substance
abuse, antisocial behavior, arrests/incarceration,
physical abuse (victim), sexual abuse (victim) and
sexual abuse (perpetrator).
The Dowell report also included the following under
"PSYCHOSOCIAL HISTORY”:
According to parental reports, the home
environment throughout infancy, early childhood is
remarkable for the presence of multiple home
environment risk factors including parental
separation, paternal absences, reports of residing
with multiple sexual perpetrators including biological
father, paternal arrests/ incarcerations (multiple),
inconsistencies, unpredictability, foster care
placement, multiple caretakers, possible abuse,
neglect and deprivation. Recent social history has
been remarkable for significant problems including
sibling rivalry, aggression, argumentativeness,
having few friends and difficulties making friends.
Dr. Dowell’s neuropsychological test results and
interpretation yielded the following conclusions:
While no specific etiology can be identified
based solely on this profile, children with similar
presentations commonly have histories of exposure
to significant home environment stressors (i.e.,
abuse, neglect, deprivation, exposure to domestic
violence, multiple moves, inconsistencies, placement
outside the home, etc.) or limited support (i.e.,
parental arrests/ incarcerations, limited parental
support for education, parental egocentricity, etc.).
Dr. Dowell further opines:
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This discrepancy between abilities and skills is
common among children with histories of neglect,
deprivation, limited parental supervision and/or
elevated distress levels secondary to multiple
caretakers, inconsistencies, abuse or unpredictable
conditions.
The Dowell Report continues:
The validity scale profile of the PIC-R is
remarkable for an open and honest response style
with evidence of significant parental distress (T =
98). In contrast, parental report on the Family
Relations (T = 67) scale is suggestive of a relatively
predictable and stable current home environment.
The observed discrepancy between home
environment (low) and parental (high) distress levels
is atypical and, when present, tends to be associated
with parental feelings of being overwhelmed by the
demands of parenting this child and/or parental
requirements to compensate for child weaknesses
particularly with respect to higher level executive
functions or coping resources. Findings imply that
parent education, training and/or support to assist
the family in implementing intervention programs or
plans may be of benefit in assisting them in
generalizing their understanding of intervention
strategies into the real world setting. Parents with
similar presentations also often receive community
or home-based therapies.
Dr. Dowell concludes:
The child P1C-R profile is remarkable for
clinically significant elevation on an overall measure
of adjustment (Adj T = 114). This level of child
distress is about 6.4 standard deviations above the
norm. Children with similar distress levels typically
display elevated limbic system-driven “fight or flight”
distress responses for which they perceive very
limited control. As noted above, no specific
biological/neurological etiologies are identified on
testing. Therefore, an environmental explanation or
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etiology appears likely. This presentation is
consistent with a [PTSD].
Comparison of Externalizing (average T 96) vs.
Internalizing (average T = 98) coping resources
reveals balance. This balanced coping style is
generally associated with low levels of distress. The
coincidence of high levels of distress despite
balanced coping resources is atypical and, when
present, is almost universally associated with a
history of victimization or exposure to life stressors
for which the child has control.
Trial Court Pa.R.A.P. 1925(a) Opinion, 11/10/14, at 1-3.
At the hearing, CYS requested that the Master find that Mother
committed emotional abuse of Child. N.T., 9/24/2014, at 25-26.3 Following
the hearing, the Master recommended that:
[B]ased upon Dr. Dowell’s report it [cannot] be found by
clear and convincing evidence that Mother perpetrated
emotional abuse [of Child]. It is only clear someone or
some combination of persons within that environment
committed the abuse. The actor may have been a third
party or parties. Mother clearly neglected to protect this
[C]hild from this environment, but [cannot] be found to
have actually perpetrated the abuse. The Master finds that
based upon this record the requested finding [cannot] be
made applying the applicable burden of proof to the facts.
Master’s Recommendation – Permanency Review, 9/24/2014, at 1-2.4 On
September 29, 2014, the trial court adopted the Master’s Recommendation
in an order.
3
It appears CYS made a similar request at a prior hearing. N.T., 9/24/2014,
at 25-26. At that time, the trial court withheld judgment. Id. at 26. The
certified record does not contain the notes of testimony from the prior
hearing.
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On October 24, 2014, CYS filed a timely notice of appeal from the
order, along with a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). CYS raises the following issues
on appeal:
1. Did the lower court err in failing to find that [M]other’s failure
to protect [Child] caused non-accidental serious mental injury
to [Child]?
2. Did [CYS] fail to properly preserve this matter for appeal?
CYS’s Brief at 6.
We will address CYS’s second issue first, as it questions whether CYS
has waived its first claim. The trial court maintained that CYS waived any
challenge to the Master’s Recommendation because it failed to file a
challenge to the Recommendation within three days of receipt of the
recommendation. See Pa. R.J.C.P. 1191 (“A party may challenge the
master’s recommendation by filing a motion with the clerk of courts within
three days of receipt of the recommendation”). The Master did not make a
finding regarding whether Mother perpetrated emotional abuse at the
hearing, N.T., 9/24/2014, at 25-27, and the trial court docket indicates the
Recommendation, which was dated September 24, 2014, was not entered on
the docket until September 29, 2014. Further, the docket does not contain
any notation that the Recommendation was served on CYS. Because the
4
The Master further recommended, inter alia, that the court find that Child
continues to be dependent, legal and physical custody of Child continue to
be with CYS, and Child’s foster-care placement shall continue.
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court did not serve CYS with a copy of the Master’s Recommendation, CYS
did not waive its issues for failure to file a challenge. 5 In re L.M., 923 A.2d
505, 509 (Pa.Super.2007) (“Where there is no indication on the docket that
Rule 236(b) notice has been given, then the appeal period has not started to
run.”).
CYS challenges the Master’s recommendation, adopted by the trial
court, which found CYS did not prove by clear and convincing evidence
Mother abused Child. The Pennsylvania Supreme Court recently set forth
our standard of review in a dependency case as follows.
“The standard of review in dependency cases requires an
appellate court to accept 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.” In re R.J.T.,
608 Pa. 9, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for
abuse of discretion[.]
In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).
Section 6341 of the Juvenile Act governs dependency hearings and
provides:
(c) Finding of dependency.--If the court finds from clear
and convincing evidence that the child is dependent, the
court shall proceed immediately or at a postponed hearing,
which shall occur not later than 20 days after adjudication
if the child has been removed from his home, to make a
proper disposition of the case.
5
Because CYS was not served with the Master’s Report, we need not
determine whether CYS would have waived its issue for failure to challenge
the report.
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(c.1) Aggravated circumstances.--If the county agency
or the child’s attorney alleges the existence of aggravated
circumstances and the court determines that the child is
dependent, the court shall also determine if aggravated
circumstances exist. If the court finds from clear and
convincing evidence that aggravated circumstances exist,
the court shall determine whether or not reasonable efforts
to prevent or eliminate the need for removing the child
from the home or to preserve and reunify the family shall
be made or continue to be made and schedule a hearing as
required in section 6351(e)(3) (relating to disposition of
dependent child).
42 Pa.C.S. § 6341(c)-(c.1).
Section 6302 of the Juvenile Act defines a “dependent child” as:
[a] child who:
(1) is without proper parental care or control, subsistence,
education as required by law, or other care or control necessary
for his physical, mental, or emotional health, or morals. A
determination that there is a lack of proper parental care or
control may be based upon evidence of conduct by the parent,
guardian or other custodian that places the health, safety or
welfare of the child at risk[.]
42 Pa.C.S. § 6302. The Juvenile Act’s definition of “Aggravated
circumstances” includes:
(2) 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.
42 Pa.C.S. § 6302. The Juvenile Act, in turn, defines “aggravated physical
neglect” 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.
Further, “[t]he Juvenile Act must be applied together with the Child
Protective Services law in resolution of child abuse complaints.” In re R.P.,
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957 A.2d 1205 (Pa.Super.2008). In September of 2014, Section 6303(b) of
the Child Protective Services Law (“CPSL”), provided that “child abuse” shall
mean any of the following:
(i) Any recent act or failure to act by a perpetrator which causes
nonaccidental serious physical injury to a child under 18 years of
age.
(ii) An act or failure to act by a perpetrator which causes
nonaccidental serious mental injury to or sexual abuse or sexual
exploitation of a child under 18 years of age.
(iii) Any recent act, failure to act or series of such acts or failures
to act by a perpetrator which creates an imminent risk of serious
physical injury to or sexual abuse or sexual exploitation of a
child under 18 years of age.
(iv) Serious physical neglect by a perpetrator constituting
prolonged or repeated lack of supervision or the failure to
provide essentials of life, including adequate medical care, which
endangers a child’s life or development or impairs the child’s
functioning.
23 Pa.C.S. § 6303. The CPSL was amended, effective December 31, 2014,
to broaden the term “child abuse,” as explained in In Interest of: L.Z., 111
A.3d at 1168 n.3.
The identity of the perpetrator(s) of abuse may be established by
prima facie evidence that the abuse normally would not have occurred
except by reason of acts or omissions of the caregivers. Section 6381 of the
CPSL provides a presumption of abuse as follows:
6381. Evidence in court proceedings.
(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
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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.
23 Pa.C.S. § 6381(d).
In In Interest of: L.Z., the Supreme Court of Pennsylvania stated
[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 CYS agency and the rebuttal of the
parent or responsible person.
In re L.Z., 111 A.3d at 1185.
CYS argues that the trial court should have found that Child was the
victim of child abuse by Mother for her failure to protect Child and that
aggravating circumstances exist. CYS’s Brief at 11-14. CYS contends that
Mother’s omission caused Child a nonaccidental serious mental injury, PTSD.
Id. The Master’s recommendation stated:
[i]t cannot be found by clear and convincing evidence that
Mother perpetrated the abuse of [C]hild. It is only clear
someone or some combination of person within that environment
committed the abuse. The actor may have been a third party or
parties. Mother clearly neglected to protect [C]hild from this
environment, but cannot be found to have actually perpetrated
the abuse.
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Master’s Recommendation, 9/24/15, at 2-3. The trial court, in adopting the
Master’s Recommendation, found, “in the absence of a specific etiology
attributable directly to Mother, the Master cannot find an omission in care
that results in serious impairment of [Child]’s functioning.” Trial Court
Opinion, 11/10/14, at 5.
The Master found “someone or some combination of person within
[Child’s] environment committed the abuse” and Mother failed to protect
Child from an abusive environment, but the Master failed to apply the
presumption or to explain why the presumption would not apply. Based on
our Supreme Court’s instructions in In Interest of: L.Z. regarding the
proper application of the presumption set forth in section 6381(d) of the
CPSL, we find that the trial court erred. We direct the trial court to address
the section 6381(d) presumption as it applies to Mother.
The trial court must also address the issue of whether the PTSD that
Dr. Dowell diagnosed is nonaccidental serious mental injury. Further, on
remand, the trial court must consider whether Child’s PTSD seriously impairs
Child’s functioning as to be aggravated physical neglect pursuant to section
6302 of the Juvenile Act, and, if so, make a finding that aggravated
circumstances exist as to Mother. Accordingly, we must reverse and remand
for further proceedings consistent with this Memorandum.
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Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2015
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