J-S70014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: T.D., MATERNAL :
AUNT :
:
:
: No. 1114 EDA 2016
Appeal from the Order Entered March 16, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0000576-2014
BEFORE: OLSON, OTT, MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 28, 2016
Appellant, T.D., the prior guardian and a female cousin1 of C.H.,
(“Child), a female born in September of 2009, appeals from the order
entered on March 16, 2016, finding Appellant abused Child pursuant to 42
Pa.C.S.A. § 6303(b) and thereby granting a petition filed by the Philadelphia
Department of Human Resources (“DHS”) for a permanency goal change to
adoption. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. In March 2011, Appellant obtained primary and legal custody of
Child. On January 16, 2014, Child tested positive for gonorrhea. Thereafter,
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1
The trial court also refers to Appellant as Child’s maternal aunt.
J-S70014-16
DHS removed Child from Appellant’s care. After Child was adjudicated
dependent she was placed in the custody of DHS. On March 16, 2014, the
trial court held a child abuse hearing. The doctor, who performed tests on
Child for sexually transmitted diseases, testified that the four-year-old could
not have contracted gonorrhea without penetrative sexual contact. It was
undisputed that Appellant was the primary caregiver for Child at all relevant
times. The trial court determined that there was clear and convincing
evidence of child abuse as to Appellant and granted the petition filed by DHS
for a permanency goal change to adoption. This timely appeal resulted.
On appeal, Appellant raises three interrelated issues, claiming that the
trial court erred by finding: 1) child abuse regarding Appellant; 2) Appellant
was a perpetrator by omission because she was primary caretaker; and 3)
clear and convincing evidence of abuse. Appellant’s Brief, at 8. Appellant
concedes that the issues are consolidated and “essentially … appeals the
court’s finding of child abuse.” Id.
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. We
review for abuse of discretion[.]
In Interest of L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).
Further, our Supreme Court determined:
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[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.
Id. at 1185.
We reviewed the certified record, the parties’ briefs, the relevant law,
and the trial court’s opinion entered on May 18, 2016. The trial court found
credible the doctor’s testimony that Child must have contracted gonorrhea
through sexual contact. The trial court further recognized that Appellant
was the primary caregiver for Child and Child lived exclusively in Appellant’s
home when Child contracted the disease. The trial court presumed Appellant
was the perpetrator of the abuse because Child would not have contracted
gonorrhea but for Appellant’s acts or omissions. Sexual exploitation, sexual
abuse, and serious physical injuries inflicted upon Child showed clearly and
convincingly that Child suffered child abuse as defined in 23 Pa.C.S.A. §
6303(b)(i)-(iii). The trial court further determined that Appellant did not
offer rebuttal evidence; instead, she testified that she did not know how
Child contracted gonorrhea. Upon review, we conclude there has been no
error or abuse of discretion in this case and that the trial court’s May 18,
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J-S70014-16
2016 opinion meticulously, thoroughly, and accurately disposes of
Appellant’s issue on appeal. Therefore, we affirm on the basis of the trial
court’s opinion and adopt it as our own. Because we have adopted the trial
court’s opinion, we direct the parties to include the trial court’s opinion in all
future filings relating to our examination of the merits of this appeal, as
expressed herein.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2016
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J-S70014-16
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Circulated 09/20/2016 12:57 PM
IN THE COURT OF COMlVION PLEAS
FOR THE COUNTY OF PHIL_ADELPHIA
FAMILY COURT DMSION ..
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In the interest of C.H.~ a Minor CP-5l-DP-0000576-2014
FID: 5l-FN-000549-2014
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APPEAL QF: T.D., prior Guardian . l114EDA2016: · .
OPINION
Fernandes, J.:
Appellant, T .D. ("Guardian"), appeals from the order entered on March 16, 2016, making a finding
that child abuse existed as to Guardian pursuant to 23 Pa.C.S. §6303(b). Aaron Mixon, Esq.,
counsel for Guardian, filed a timely Notice of Appeal with a Statement ofMatters Complained of
on Appeal pursuant to Rule 1925(b ).
Factual and Procedural Background:
On March 25, 2011, the Domestic Relations Court issued a custody order transferring primary
physical and legal custody of C.H. ("Child") from K.D. ("Mother") to Guardian, Child's cousin. ·
Child was roughly eighteen months old at the time. On January 16, 2014, Guardian's cousin D.D.
("Cousin,,) took Child to the office of family physician Dr. Millen Gebreselassi. Following this
doctor's visit, DHS received a Child Protective Services C'CRS") report that Child had been
brought to the. doctor because she had a vaginal discharge, and had tested positive for gonorrhea.
On October 7, 2014, at the adjudicatory hearing, the Child Advocate put the court on notice that
· she would be requesting a child abuse hearing regarding Guardian. Child was subsequently
removed from Guardian's care, adjudicated dependent and placed in DHS custody. Due to
requests for continuances, the chil~ abuse hearing was not completed until March 16, 2016. DHS
had already filed a petition for goal change and termination of parental rights to Child against
Child's parents.
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The court heard· the child ~buse hearing against Guardian on the ~orning of March 16> 2016. The
trial on the termination· of Mother's parental rights. was held in the aftemoon.1 During the child
abuse hearing, Dr. Gebreselassi testified that Cousin brought Child to the office because Child had.
a cough, Dr. Gebreselassi performed a routine physical examination and discovered "copious
yellow discharge» issuing from Child's vagina. Cousin informed Dr. Gebreselassi that Child had
. had such discharge for a week. (N.T. 3/16/16, pg. 11). Child was swabbed for gonorrhea and
chlamydia. Child was positive for gonorrhea. Child was four years. old> and could not have~·.
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contracted the disease without sexual .contact. (N.T. 3/16116, pgs. 12-13). Gonorrhea has an
incubation time between two and seven days before symptoms manifest. It can cause long-term
fertility issues. (N.T. 3/16/16, -pgs, 14, 16). A four-year-old child contracting gonorrhea was
evidence of sexual abuse. ·(N.T. 3/16/16, pg. 15). Dr. Gebreselassi testified that after the physical
she called Guardian ab~ut Child's condition, and that Guardian thought Child had-contracted the
disease by putting a tissue in her vagina. (N'.T. 3/16/16, pg. 17); DHS's sexual abuse investigator
testified that she made visits to the home during the time when the incident occurred. She had no
concerns regarding the safety of any children in Guardian's home, and testified that Guardian was
an active and involved caregiver. She also testified that Guardian's older children misbehaved and
committed crimes which caused the family to become involved withDHS. (N.T. 3/16/16, pgs. 21-
. 23). The DHS investigator testified that she reviewed documents related to all the children in
Guardian's care. (N.T. 3/16/16, pg. 23). The DHS investigator then testified that she had not
reviewed all the documents related to the children in Guardian's care, and was not aware that
Cousin had also been sexually abused in Guardian's home. {N.T. 3/16/16, pgs. 23-24). The DHS
.investigator wasalso not aware that Child had missed her scheduled physical. (N.T. 3/16/16> pgs.
25-26). Guardian testified that she did not take Child to her physical because two of her children
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were involved in criminal cases and their cases took up all of her time. (N.T. 3/16/16, pg. 28). ·
Guarclian testified that before the doctor's visit she walked in on Child using the toilet and noticed
the discharge from Child's vagina. Guardian asked Child if anyone had touched her> and Child
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denied that anyone had. (N.T. 3/16/16, pgs. 28-29). Guardian testified that L.D., ("Daughter)))
her daughter, would sneak people into Guardian's house without Guardian's knowledge. (N.T.
3/16/16, pg. 31 ). Guardian moved from Daughter> s house because Daughter> s actions in sneaking
IBoth hearings were held on the same day, but for the purposes of this opinion, references to the Notes of
Testimony indicate the child abuse hearing only. ·
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people in made Guardian feel the other children in the house were unsafe. Guardian testified that
Daughter was not living in the house during January 2014, when Child likely contracted gonorrhea.
(N.T. 3/16/16, pg. 33). Guardian testified that during January 2014, the following people were
living in her house: Guardian, Child, Cousin, Cousin's child, M.D. ("Son l "), J.D., (''Son 2") D.D.,
("Son 3") and Daughter. (N.T. 3/16/1_6, pg. 33). After Child tested positive for gonorrhea, all
these people were tested. Guardian testified that their results were all negative, but later testified
that she didnot have the results for any of her sons, because they were all removed from her care
by DHS soon after. (N.T. 3/16/16, pgs. 34, 36). Guardian testified that she only ever left Child
with Cousin and for some short periods with Daughter. Her sons were never allowed to be alone
with Child. (N.T. 3/16/16, pgs. 32, 41 ). Guardian testified that her ex-husband P.B. ("Husband")
sexually abused Daughter and Cousin· while Daughter and Cousin were living with Guardian.
(N.T. 3/16/16, pgs. 35-37). Guardian pied guilty to acharge of child endangerment regarding one
of the other children living with her. (N.T. 3/16/16, pg. 41). The court found by clear and
convincing evidence that there was child abuse as to Guardian, and that the CPS report alleging
sexual abuse was founded. (N.T. 3/16/16, pgs. 49~50). On April 13, 2016, Aaron Mixon, Esq.,
counsel for Guardian, filed this appeal.
Discussion:
Guardian raises the following errors on appeal:
1. The trial court committed reversible error in making a finding that appellant, [Guardian],
was a perpetrator by omission due to the fact that [Guardian] was the Primary Caretaker at
the time.
2. The trial court committed reversible error in making a finding of child abuse regarding
[Guardian].
3. The trial court' s determinations set forth above were not supported by clear and convincing
evidence.
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All these issues on appeal were consolidated, wereby essentially Guardian appeals the court's
finding of child abuse. Child abuse is defined at 23 Pa.C.S. §6303(b)(l)2 ae:
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(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.
2 Because the abuse in this case occurred in January 2014·, the law in place at that time applies. The current
.definition of child abuse is found at 23 Pa.C.S. §6303(b.J ) .
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(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·.·
exploitationof a child wider 18 years of age.
Serious physical injury is any injury that "signiflcantly impairs a child's physical functioning,
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either temporarily or permanently." Sexual abuse and sexual exploitation include the
"employment, ll:Se, persuasion, inducement, enticement or coercion of a child to engage in or assist
another individual to engage in sexually explicit conduct." 23 Pa.C.S. §6303(a). Child abuse must
. be found by clear and convincing evidence. However the identity of the perpetrator is dictated by
statutory presumption. The person responsible for the welfare of the child is presumed a
perpetrator of child abuse if the child sustains injuries which would not ordinarily be sustained
absent some act or omission by the person responsible for the welfare of the· child. 23 Pa.C.S.
§6303(d), In Interest Q{JR.W., 631 A.2d 1019, 1023-1024 (Pa. Super. 1993). · The person
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responsible for the child does· not need to be physically present at the time the abuse occurred, so
long as their failure to act allowed the abuse to occur while the child was in their care. · In re L.Z.,
111 A.3d 1164, 1184 (Pa. 2015).
Guardian argues that the court erred in finding child abuse. Child in this case. was four years old
when she tested positive for gonorrhea. Dr. Gebreselassi testified that contracting gonorrhea can
cause scarring of the fallopian tubes, damage to the ovaries and infertility. (N.T. 3/16/16, pgs. 12,
16). Dr. Gebreselassi also testified that Child could not have contracted gonorrhea without sexual
contact, and that no environmental cause could have transmitted the disease. (N.T. 3/16/16, pgs.
12- 13). Dr. Gebreselassi testified that for a child of Child's age to have gonorrhea indicated per
se sexual abuse, because it showed that someone had had penetrative sex with a four-year-old.
(N.T. 3/16/16, pg. 15). Damage to Child's fallopian tubes and future infertility constitute
significant permanent or temporary impairment of Child's physical functioning, so they are serious
physical injuries as defined by .statute. Penetrative sex is clearly "sexually explicit conduct," and
since Child could not have contracted gonorrhea any other way.Child' s positive test indicates that
Child engaged in sexually explicit conduct with another of the kind classified by statute as sexual
abuse and sexual exploitation. Because Child could not have picked up the disease from the
. environment, only by penetrative sex, the serious physical injury and sexual abuse suffered by
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Child were nonaccidental, constituting child abuse under 23 Pa.CS. §6303(b)(l)(i) and (ii).
Guardian testified that she had no idea how Child had contracted gonorrhea, or who had given it
to Child. (N.T, 3/16/16, pg. 34). Guardian testified that all members of her household tested
negative for gonorrhea, but later testified that she did not have test results for her three sons who
had been living in the house during the time when Child contracted the disease. (N.T. 3/J 6/16,
pgs. 33-34, 36): Guardian also testified that Daughter would sneak men into the house without
Guardian's knowledge. (N.T. 3/16/16, pg. 31). Guardian's inability to stop Daughter from
sneaking people in caused Guardian to fear for the welfare of the children· in her home, so she
moved away from Daughter. However, at the time when Child contracted gonorrhea, Daughter
was again living in the home and had resumed sneaking men into the home at night. (N.T. 3/16/16,
pgs. 31, 33). Guardian had plead guilty to child endangerment in the past. (N.T. 3/16/16, pg. 41).
Guardian testified that Husband had sexually abused Daughter and Cousin in Guardian's home.
(N.T. 3/16/16, pgs, 35-37). These facts, testified to by Guardian, were clear and convincing
evidence of series of failures to act by a Guardian which created an imminent risk of serious
physical injury to or sexual abuse or sexual exploitation of Child, constituting child abuse under
23 Pa.C.S. §6303(b)(l)(iii). Guardian was unable to rebut the statutory presumption. DHS
witnesses including Dr. Gebreselassi, the family doctor, were credible.
Guardian alleges that the court erred in finding that she was the perpetrator by omission of child
abuse. Guardian had physical and legal custody of Child, since she had obtained a custody order
on March 25, 2011. (N.T. 3/16/16, pg. 39). Guardian was the primary caregiver for Child. Dr.
Gebreselassi testified that gonorrhea incubates for up to a week before symptoms appear. (N.T.
3/16/16, pg. 14). Child showed symptoms for about a week before she was taken to Dr.
Gebreselassi's office on January 16, 2014. (N.T. 3/16/16, pgs. 11, 17). This indicates that Child .
contracted gonorrhea in December 2013 or January 2014. Guardian acknowledged that she was
responsible for Child's welfare during that time. Guardian testified that she took care to make sure
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that only Cousin and Daughter were allowed to supervise Child. (N.T. 3/16/16, pg. 32). Guardian
was the legal and physical custodian of Child, Child lived exclusively in Guardian's home and
Guardian. identified herself as the person with responsibility for Child's care during the December
2013 to January 2014 period when Child contracted gonorrhea. Because Child would not have
contracted gonorrhea but for some act or omission by Guardian, while in Guardian's care,
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Guardian is presumed to be the perpetrator of child abuse. Guardian did not offer any evidence to
rebut this presumption._ Guardian only testified that she did not know how Child contracted
gonorrhea. (N.T. 3/16/16, pg. 34). Because Guardian did not rebut the statutory presumption that
she was the perpetrator,the court's finding that Guardian was the perpetrator was proper.
The court heard an affirmative case that Guardian was the perpetrator by omission .. As the person
responsible for Child's welfare, Guardian had an affirmative duty to keep Child safe. While in her
care, Child was abused. The court heard clear and convincing evidence that Guardian failed to
act, and in doing so allowed Child tobe abused while in her care. The court's finding that Guardian
was the perpetrator was proper and should be. affirmed.
Conclusion:
For the aforementioned reasons, the court met its statutory burden by clear and convincing
evidence to find that Guardian was the perpetrator of child abuse. The court's finding was properly
made and should be affirmed.
By the court, J '~
Josep~~·~
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