J-S61016-18
2019 PA Super 10
IN THE INTEREST OF: S.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.B., MOTHER :
:
:
:
:
: No. 3384 EDA 2017
Appeal from the Order Entered September 20, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0000421-2017,
FID: 51-FN-000411-2017
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
OPINION BY BOWES, J.: FILED JANUARY 08, 2019
J.B. (“Mother”) appeals from the trial court’s order entered on
September 20, 2017, finding aggravated circumstances against her as to her
minor daughter, S.L., born in November 2016, on the basis that she had
committed child abuse.1 Following our review of the certified record and
relevant case law, we vacate the findings of aggravated circumstances and
child abuse, and remand for a new hearing.2
On February 14, 2017, the Department of Human Services (“DHS”)
received a child protective services (“CPS”) report that Mother arrived at the
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1 The trial court also found that S.L.’s father, E.L., committed child abuse
against S.L. and that aggravated circumstances existed. He did not appeal.
2 S.L.’s “Motion to Substitute Exhibit” is granted. The Prothonotary is directed
to substitute the redacted “Exhibit A” that the guardian ad litem appended to
the present motion for the exhibit that is attached to the brief filed on August
27, 2018.
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Children’s Hospital of Philadelphia (“CHOP”) Emergency Room (“ER”) with
three-month old S.L. Mother informed Kristine Fortin, MD., the attending
physician, that she first noticed a cracking sound in S.L.’s back during the
week of February 6, 2017, and by February 12, 2017, the child became
agitated and would only sleep on her side. Mother indicated that S.L. had not
fallen or experienced other trauma. Subsequent tests revealed that S.L. had
suffered six fractured ribs, consisting of twelve distinct bone fractures in
various stages of healing, and a fresh fracture on her right proximal tibia
(shin). S.L. was admitted to the hospital in stable condition. CHOP staff
determined that the injuries were non-accidental in nature, but neither Mother
nor and her then-live-in paramour, E.L. (“Father”), could explain how they
had occurred.
DHS visited Mother, Father, and Maternal Grandparents at CHOP the
next day. Both parents denied harming S.L. Likewise, Mother and Father met
with the CHOP child protection team to review their family history and discuss
the manner of the injury. Again, neither parent professed any knowledge of
the injury during that meeting. However, Mother initiated a private
conversation with Dr. Fortin and informed her that she was “concerned about
Father’s reactions and behaviors” following the discovery of their daughter’s
injuries. N.T., 7/19/17, at 33. Specifically, she reported that Father
suggested, “why don’t we just blame it on the family dog.” Id. at 33. She
also described Father’s opposition with her decision to take the child to the
hospital. In this vein, Mother contacted the hospital and requested that it not
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permit Father to visit the child. Likewise, even though Mother initially denied
domestic violence in the home, during a subsequent interview with a DHS
investigator, she indicated that verbal abuse had, in fact, occurred in the
home, and she stated her intention to terminate her relationship with Father
and move from the family residence.
The resulting CPS report was indicated for physical abuse, and Mother
and Father were identified as perpetrators. On February 17, 2017, DHS
obtained an order for protective custody (“OPC”). S.L. was placed in kinship
care with a family friend; however, after Mother violated the placement order
by visiting S.L. in the kinship home, the court placed the child with a foster
family.
On February 28, 2017, DHS filed a dependency petition, which
requested a determination whether aggravated circumstances existed as to
S.L. and whether reasonable efforts need be made towards reunification. On
March 1, 2017, the juvenile court adjudicated S.L. dependent. Contested
permanency review hearings were held on July 19, 2017 and September 20,
2017 to determine whether child abuse had occurred. Dr. Fortin and Danielle
Nesmith, the DHS social worker who investigated the CPS report, both testified
at the hearing. As it relates to the central issue Mother raises in this appeal,
we observe that Ms. Nesmith recounted Mother’s concern over Father’s
suggestion that they blame the dog for their daughter’s injuries, Father’s
opposition to bringing the child to the hospital, and the ruse that Mother
employed to avoid Father’s interference. N.T., 9/20/17, at 25-27. Likewise,
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Ms. Nesmith summarized Mother’s efforts to have Father barred from
unsupervised contact with S.L. at the hospital, and she confirmed that, while
Mother denied domestic violence in the home, during a subsequent
investigation with another case worker, she alleged verbal abuse. Id. at 29-
31. Mother’s counsel and the Child Advocate both revisited these aspects of
Ms. Nesmith’s testimony during cross-examination. Id. at 41-44, 48-51.
After DHS completed its case, the trial court denied Mother’s attempt to
present the testimony of several witness, including Dr. Reinhold, the court-
appointed psychologist. As it relates to Dr. Reinhold’s psychological
evaluation report, Mother argued, “it’s detailed conversations with the doctor
[who] is going to be coming in and testifying as to [what] [either] parent
believed or didn’t believe as to how the child got injured.” Id. at 61. The trial
court rejected Mother’s entreaty, finding that neither Dr. Reinhold’s
observations nor the court-ordered report were germane to the child abuse
hearing. Id. 62. Accordingly, Mother did not present any independent
evidence to rebut the presumption that she was a perpetrator of abuse.
At the conclusion of the hearing, the court made a finding of child abuse
and held that aggravated circumstances existed as to both parents. It relieved
DHS of the need to make additional efforts to reunify S.L. with Mother. The
court did not hold a permanency review hearing, nor did it schedule a
permanency review hearing within thirty days.
On October 10, 2017, Mother filed a motion for reconsideration. Before
the court entered an order on the motion, Mother timely appealed and filed a
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concise statement of errors complained of on appeal. See Pa.R.A.P.
1925(a)(2)(i); Pa.R.A.P. 1925(b). She raises the following issues, which we
re-order for ease of disposition.
1. Did the trial court err and/or abuse its discretion by denying
Mother’s [c]ounsel an opportunity to call witnesses, ruling that
their testimony was irrelevant?
2. Was the evidence insufficient for the trial court to find, by clear
and convincing evidence, [a]ggravated [c]ircumstances with no
efforts to reunify [S.L.] with the Mother[?]
3. Did the trial court violate Mother’s rights to due process by not
allowing Mother’s counsel to call witnesses in her defense of the
child abuse allegations?
4. Did the trial court err in not ordering a permanency hearing
within 30 days of the hearing where the court made a finding of
[a]ggravated [c]ircumstances with a finding of no efforts to
reunify [S.L.] with the Mother[?]
Mother’s brief at 4 (trial court answers omitted).3
Our standard of review is as follows:
The 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).
In pertinent part, the Juvenile Act describes the relevant aspect of
aggravated circumstances as a situation where “The child or another child of
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3While DHS declined to file a brief, the guardian ad litem filed a brief in support
of the trial court order.
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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.
With regard to dependency cases involving child abuse, the safety of the
child is paramount. In re R.P., 957 A.2d 1205 (Pa.Super. 2008). As we have
explained,
The Juvenile Act, 42 Pa.C.S. §§ 6301–65, which was amended in
1998 to conform to the federal Adoption and Safe Families Act
(“ASFA”), 42 U.S.C. § 671 et seq., controls the adjudication and
disposition of dependent children. The policy underlying these
statutes aims at the prevention of children languishing indefinitely
in foster care, with its inherent lack of permanency, normalcy, and
long-term parental commitment. Furthermore, the 1998
amendments to the Juvenile Act, as required by ASFA, place the
focus of dependency proceedings on the child. Safety,
permanency, and the well-being of the child must take precedence
over all other considerations, including the rights of the parents.
Id. at 1217–18 (some internal citations omitted).
In the instant case, the court made two determinations: first, that
Mother was the perpetrator of child abuse, and second, that aggravated
circumstances existed as to S.L. “As part of [a] dependency adjudication, a
court may find a parent to be the perpetrator of child abuse,” as defined by
the Child Protective Services Law (“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.
R.P., supra at 1217–18 (Pa.Super. 2008) (some internal citations omitted).
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As it is pertinent to this case, the CPSL defines “child abuse” as follows:
(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.
....
23 Pa.C.S. § 6303(b.1) (1). Furthermore, § 6303(a) defines bodily injury as
“impairment of physical condition or substantial pain.”
In situations where a perpetrator of abuse is unknown, a parent’s
culpability may be established by prima facie evidence pursuant to § 6381(d),
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.
23 Pa.C.S. § 6381(d).
With regard to the application of the rebuttable presumption provided
for by the statute, the Pennsylvania Supreme Court observed:
the Legislature balanced the presumption of Section 6381(d) by
making it rebuttable as it merely establishes “prima facie
evidence” that the parent perpetrated the abuse. 23 Pa.C.S. §
6381(d). As commonly understood, prima facie evidence is
“[s]uch evidence as, in the judgment of the law, is sufficient to
establish a given fact, or the group or chain of facts constituting
the party's claim or defense, and which if not rebutted or
contradicted, will remain sufficient.” Black’s Law Dictionary 825
(6th ed. abridged 1991). Accordingly, evidence 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
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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.
L.Z., supra at 1185 (emphases added). In examining the rebuttable
presumption in L.Z., the High Court invoked a Commonwealth Court case
which stated that the presumption established in Section 6381(d) “can be
rebutted, like other statutory presumptions, with countervailing competent,
substantial evidence.” Id. at 1180 (quoting J.B. v. Department of Public
Welfare, 898 A.2d 1225-26 (Pa.Cmwlth. 2006)). Hence, it is now clear that,
once the agency presents prima facie evidence of abuse, a parent or caregiver
presumed to have perpetrated abuse is entitled to present evidence to rebut
that presumption. Thereafter, based upon the countervailing evidence, the
trial court must determine whether the presumption is valid. With these
principles in mind, we turn to Mother’s brief.4
First, Mother contends that the court erred in denying her the
opportunity to present evidence and testimony to rebut the prima facie
evidence that she was the perpetrator of child abuse, namely, the testimony
of the court-appointed psychologist who evaluated Mother’s mental health.
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4 Based upon our resolution of the first issue, we do not address Mother’s
remaining issues.
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Mother’s brief at 11-13. Mother argues that this evidence was necessary to
rebut the presumption that, as a custodian, she was responsible for S.L.’s
injuries.5 Id.
As noted, the trial court barred the prospective witness’s testimony. The
trial court reasoned that the evidence was unnecessary in the context of the
child abuse hearing. N.T., 9/20/17, at 55-56. Mother’s counsel argued that
the testimony of Dr. Reinhold and the current caseworker, in particular, would
be important for credibility determinations, where one parent might be more
credible than the other, and what the parent did or did not believe as to how
S.L. was injured. Id. at 59. Ultimately, the court prohibited the testimony as
being irrelevant to the case at “this time.” Id. at 62. We disagree with the
trial court’s characterization of the evidence as facially irrelevant.
Our review is guided by the following principles. One of the stated
purposes of the Juvenile Act is to ensure due process. See 42 Pa.C.S. §
6301(b)(4) (“[t]o provide means through which the provisions of this chapter
are executed and enforced and in which the parties are assured a fair hearing
and their constitutional and other legal rights recognized and enforced.”). “A
question regarding whether a due process violation occurred is a question of
law for which the standard of review is de novo and the scope of review is
plenary.” Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa.Super. 2017).
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5 Mother does not dispute the nature and severity of S.L.’s injuries. N.T.,
9/20/17, at 15-16. Instead, she argues that she was entitled to present
evidence to rebut the presumption that she was the perpetrator of abuse.
Mother’s brief at 10.
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“Due process requires that the litigants receive notice of the issues before the
court and an opportunity to present their case in relation to those issues.”
Brooks–Gall v. Gall, 840 A.2d 993, 997 (Pa.Super. 2003) (recognizing that
dependency proceedings implicate due process concerns). It is well settled
that “procedural due process requires, at its core, adequate notice,
opportunity to be heard, and the chance to defend oneself before a fair and
impartial tribunal having jurisdiction over the case.” S.T. v. R.W., 192 A.3d
1155, 1161 (Pa.Super. 2018). Significantly, the in-court presentation of
evidence is a fundamental component of due process. M.O. v. F.W., 42 A.3d
1068, 1072 (Pa.Super. 2012). “[I]n almost every setting where important
decisions turn on questions of fact, due process requires an opportunity to
confront and cross-examine adverse witnesses.” Id. at 1072.
Instantly, DHS established the threshold presumption of abuse pursuant
to § 6381(d). Namely, S.L. suffered non-accidental injuries, Mother was
among the adults responsible for the child when the injuries occurred, and she
denied knowing how S.L. was injured. Accordingly, the certified record
contained prima facie evidence that S.L. suffered an injury that would not be
ordinarily sustained but for the acts or omissions of the parents or responsible
persons. L.Z., supra at 1185. However, the trial court’s finding of prima
facie evidence against Mother did not end the analysis.
Pursuant to the High Court’s discussion in L.Z., due process dictates that
Mother was entitled to present testimony “demonstrating that [she] did not
inflict the abuse.” Id. Mother attempted to introduce the testimony of the
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court-appointed psychologist in an effort to deflect her culpability for the
physical abuse her daughter suffered; however, the trial court summarily
rejected that evidence as irrelevant. That ruling was erroneous.
Relevant evidence has a “tendency to make a fact [that is of
consequence to the determination of the action] more or less probable than it
would be without the evidence.” Pa.R.E. 401(a) and (b). Instantly, the
psychologist’s report and testimony regarding Mother’s psychological profile
and behavioral health was relevant in determining Mother’s culpability and in
rebutting the presumption that she perpetrated child abuse. That is, the
evidence has a tendency to make a finding of Mother’s responsibility for her
daughter’s injuries more or less probable than it would be without it. At a
minimum, Dr. Reinhold’s testimony would have corroborated the competent
evidence in the record that established that Mother had suspected that Father
was the perpetrator of abuse since the day that she brought S.L. to the
emergency room.
Whether or not Mother’s rebuttal evidence is credible or persuasive is
within the trial court’s ultimate purview. Id. However, in order to satisfy due
process, Mother was entitled to present her evidence to rebut the presumption
that she was the perpetrator of child abuse, and have the trial court make its
ultimate determination based upon the countervailing evidence. L.Z.,
supra at 1180; M.O., supra at 1072. Mother was denied this opportunity.
Accordingly, we vacate the trial court order entered September 20, 2017, and
remand for a new hearing, wherein Mother is permitted to present competent
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evidence to rebut the § 6318(d) presumption that she perpetrated child abuse
in accordance with our High Court’s discussion in L.Z. Thereafter, the trial
court will review the countervailing evidence and evaluate the validity of the
statutory presumption.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/19
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