J-A13002-20
2020 PA Super 203
IN THE INTEREST OF: A.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.C., MOTHER :
:
:
:
: No. 3251 EDA 2019
Appeal from the Order Entered October 15, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000911-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*
OPINION BY BENDER, P.J.E.: FILED AUGUST 19, 2020
D.C. (“Mother”) appeals from the October 15, 2019 order finding Mother
to be a perpetrator of child abuse against A.C., born in August of 2018
(“Child”), pursuant to 23 Pa.C.S. § 6303, adjudicating Child dependent,
pursuant to 23 Pa.C.S. § 6302(1), and transferring custody of Child to the
Philadelphia Department of Human Services (“DHS”). After careful review, we
affirm.1
The trial court issued the following Findings of Fact in its Pa.R.A.P.
1925(a) opinion:
On May 27, 2019, [DHS] received a Child Protective
Services (“CPS”) report that Child arrived at St. Christopher’s
Children[’s] Hospital on March 26, 2019. DHS learned that Child
was taken to St. Christopher’s by Mother and Father[,] and that
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* Retired Senior Judge assigned to the Superior Court.
1 J.M.-C. (“Father”) is not a party to this appeal.
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Child was suffering from hematomas on the right side of her head.
A retinal exam also indicated additional trauma. Hospital staff told
DHS that Mother stated that Child had fallen from [Mother and
Father’s] bed. Also, Mother and Father could not explain the cause
of older injuries discovered by CAT scans revealing that Child had
subdural[2] hematomas which likely occurred prior to March 26,
2019. DHS interviewed Mother who stated that … Child’s injury
was caused when … Child fell from a three-foot high bed when
Mother was changing … Child’s diaper upstairs. Mother denied
that Child experienced pervious [sic] trauma. DHS interviewed
Father who stated that he heard Child fall from the bed when he
was downstairs. On May 28, 2019, a report by Dr. Bryan Spellman
of St. Christopher’s Hospital indicated that Child suffered from
non-accidental trauma to the right side of her head, showing
layered hematomas, both old and new. Child also suffered from
retinal hemorrhaging, indicative of non-accidental trauma in which
… [C]hild could have been shaken, dropped[,] or pushed very
hard. Dr. Spellman reported that the ten (10) month[-]old Child
could not have sustained these types of injuries from solely falling
from a bed. On May 30, 2019, DHS obtained an Order of
Protective Custody (“OPC”) for Child. At a Shelter Care Hearing
on May 31, 2019, the court lifted the OPC and ordered the
temporary commitment to DHS to stand. DHS filed the underlying
Petition for Dependency on June 5, 2019. Thereafter, on October
15, 2019, the [c]ourt held an Adjudicatory Hearing to determine
if Mother was a perpetrator of child abuse and if … Child should be
adjudicated dependent. Mother was present at the hearing and
represented by counsel. After extensive testimony, the trial court
made a finding of child abuse versus Mother.[3] The trial court
also adjudicated the Child dependent.
Trial Court Opinion (“TCO”), 1/3/20, at 1-3 (citations to record omitted).
On November 14, 2019, Mother filed a timely notice of appeal, along
with a concise statement of errors complained of on appeal, in accordance
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2“Subdural” refers to the space between the dura (the inner lining of the skull)
and the brain. See N.T. Hearing, 10/15/19, at 22-23.
3 There was no finding of child abuse versus Father. See N.T. Hearing at 93.
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with Pa.R.A.P. 1925(a)(2). Mother presents the following issues for our
review:
1. Did the trial court err as a matter of law and abuse its discretion
by entering a finding of child abuse against Mother pursuant to
23 Pa.C.S. § 6303(b.1)(1) when insufficient evidence was
introduced to demonstrate that Mother intentionally,
knowingly, or recklessly caused bodily injury to [Child] through
a recent act or failure to act?
2. Did the trial court err as a matter of law and abuse its discretion
by applying 23 Pa.C.S. § 6381(d) to presume Mother
responsible for [Child’s] injury in the absence of clear and
convincing evidence that [Child’s] injury was child abuse as
defined in 23 Pa.C.S. § 6303(b.1)(1)?
3. Did the trial court err as a matter of law and abuse its discretion
by finding that Mother failed to rebut the prima facie
presumption of responsibility for [Child’s] injury pursuant to 23
Pa.C.S. § 6381(d)?
4. Did the trial court err as a matter of law and abuse its discretion
by adjudicating [Child] to be a “dependent child” pursuant to
42 Pa.C.S. § 6302 in the absence of clear and convincing
evidence that [Child] was “without proper parental care and
control … as required by law?”
5. Did the trial court err as a matter of law and abuse its discretion
by committing [Child] to the legal custody of [DHS] in the
absence of clear and convincing evidence that removal was
clearly necessary?
Mother’s Brief at 3-4.
Preliminarily, we note:
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.
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Interest of S.L., 202 A.3d 723, 727 (Pa. Super. 2019) (quoting In re R.J.T.,
9 A.3d 1179, 1190 (Pa. 2010)).
The Child Protective Services Law, 23 Pa.C.S. §§ 6301-6387 (“CPSL”),
defines “child abuse,” in relevant part, 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.
…
(5) Creating a reasonable likelihood of bodily injury to a
child through any recent act or failure to act.
23 Pa.C.S. § 6303(b.1)(1), (5). “Bodily injury” is defined as “[i]mpairment of
physical condition or substantial pain.” 23 Pa.C.S. § 6303(a) (“Bodily Injury”).
Additionally, for the purposes of the CPSL, the terms “intentionally,”
“knowingly,” and “recklessly” have the same meaning as set forth in 18
Pa.C.S. § 302. See 23 Pa.C.S. § 6303(a). Section 302 of the Crimes Code
defines these kinds of culpability as follows:
(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.
(2) A person acts knowingly with respect to a material element
of an offense when:
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(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).
The requisite standard of proof for a finding of child abuse pursuant to
Section 6303(b.1) is clear and convincing evidence. In re L.Z., 111 A.3d
1164, 1174 (Pa. Super. 2015). Clear and convincing evidence is “evidence
that 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.” G.V. v. Department of Public Welfare, 91 A.3d 667, 672
(Pa. 2014). In certain situations, however, the identity of the abuser need
only be established through prima facie evidence:
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.
In re L.Z., 111 A.3d at 1170 (quoting 23 Pa.C.S. § 6381(d)).
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This Court has long recognized the applicability and importance of the
evidentiary presumption in Section 6381(d) regarding the identity of the
abuser in dependency cases. See In the Interest of J.R.W., 631 A.2d 1019
(Pa. Super. 1993). In J.R.W., we explained:
Prima facie evidence is not the standard that establishes the child
has been abused, which must be established by clear and
convincing evidence; it is the standard by which the court
determines whom the abuser would be in a given case. There is
no conflict, constitutional or otherwise, with the clear and
convincing evidence standard imposed by the Juvenile Act[, 42
Pa.C.S. §§ 6301-6375 (“Juvenile Act”),] to establish child abuse.
The Legislature has determined that the likelihood clearly
established abuse has occurred, other than at the hands of the
custodian, is so small that prima facie evidence the custodian has
caused the injury, either by acts or omissions, is all that is
required…. Such a standard provides maximum protection for the
child victim…. Thus[,] the Legislature has balanced the needs of
society and children for protection against the abuser’s possible
patterned behavior and his/her right to freedom unless found
guilty beyond a reasonable doubt.
Id. at 1024.
Our Supreme Court reiterated our observation that “the Legislature
deemed it wise and necessary to establish a different evidentiary standard by
enacting Section 6381(d)’s presumption,” to avoid the evidentiary conundrum
where the existence of abuse is rather easily proven but the court is unable
“to assign responsibility for the heinous act among the responsible adults[,]”
and to protect children from future abuse. In re L.Z., 111 A.3d at 1185
(quoting J.R.W., 631 A.2d at 1023). The L.Z. Court emphasized that, “when
a child is in the care of multiple parents or other persons responsible for care,
those individuals are accountable for the care and protection of the child
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whether they actually inflicted the injury or failed in their duty to protect the
child.” Id. Moreover,
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 by 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.
Instantly, Mother claims that the trial court’s finding that she was a
perpetrator of child abuse, pursuant to 23 Pa.C.S. § 6303(b.1)(1), was an
error of law and abuse of discretion, because “DHS failed to present clear and
convincing evidence that Mother intentionally, knowingly, or recklessly caused
bodily injury to … [C]hild through act or omission.” Mother’s Brief at 18-19.
She further avers that the trial court’s conclusion that “[Child’s] injuries were
the result of ‘inflicted trauma’ by Mother amounts to ‘innuendo and suspicion,’
which is ‘… not enough to compel a finding of child abuse.’” Id. at 19 (quoting
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In Interest of J.M., 166 A.3d 408, 424 (Pa. Super. 2017)). In support of
her claim, Mother contends that Dr. Marita Lind’s testimony4 only established
that Child’s injuries “would not be expected typically after a short fall…,” and
that she did not conclude with a reasonable degree of medical certainty that
“Child could not have possibly sustained these injuries absent some sort of
non[-]accidental trauma.” Id. (citing N.T. Hearing at 38).
Additionally, Mother argues that “insufficient evidence was presented to
establish that [her] decision to change … [C]hild on the bed was ‘reckless….’”
Id.5 Mother states that while she usually changed Child’s diaper in the pack-
and-play, she had used the bed to change Child in the past without incident.
Id. at 20. “[S]he only turned around for a moment to get a new diaper for …
[C]hild, and she did not realize that … [C]hild would be able to roll in the way
that she observed.” Id. Although Mother admitted that it was a mistake to
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4Dr. Lind testified on behalf of DHS as an expert in pediatric child abuse. See
N.T. Hearing at 12.
5 Mother improperly relies on the finding in C.F. v. Pennsylvania Dept. of
Public Welfare, 804 A.2d 755 (Pa. Cmwlth. 2002), that leaving an infant
unattended on top of a bunk bed for approximately 15 minutes did not rise to
the level of criminal negligence, which similarly requires evidence that the
parent “should be aware of a substantial and unjustifiable risk,” and that the
parent’s failure to perceive that risk “involves a gross deviation from the
standard of care that a reasonable person would observe in the actor’s
situation.” Mother’s Brief at 19-20 (quoting C.F., 804 A.2d at 758). See
Wells Fargo Bank N.A. v. Spivak, 104 A.3d 7, 16 (Pa. Super. 2014) (noting
that a decision by the Commonwealth Court is not binding on this Court).
Regardless, C.F. is distinguishable from the instant matter as, in C.F., there
was no evidence of trauma to the child prior to the fall and the incident was
ruled to be a “dreadful accident[.]” C.F., 804 A.2d at 756, 760-61.
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lay Child on the bed when she was “restless,” she contends that her actions
amount to ordinary negligence, at most. Id. The record clearly belies
Mother’s claims.
In support of its finding of child abuse, the trial court opined the
following:
During the Adjudicatory Hearing on October 15, 2019, Dr.
[] Lind … testified that she met Mother and Child on May 27,
2019[,] at St. Christopher’s Children’s Hospital. During her
examination at the hospital, Dr. Lind found soft tissue swelling and
redness above … Child’s right eye. Dr. Lind testified that a CAT
scan was taken of … Child’s skull the night she was taken to the
hospital.[6] Dr. Lind testified that the CAT [s]can revealed that …
Child had a subdural hemorrhage showing different densities of
blood at the front of [her] skull suggesting that … Child had been
injured in the past. Dr. Lind testified that … Child’s brain had
shifted to a minimal extent as a result of the subdural
hemorrhaging. Dr. Lind also testified that … Child had been
examined by an ophthalmologist who determined that in addition
to subdural hemorrhage that … Child had hemorrhaging behind
both eyes. Dr. Lind testified that the nature of the hemorrhages
behind … Child’s eyes was not consistent with a short fall.
The DHS Social Worker, Felicia Harrison, testified that
Mother had indicated to her that Child had sustained an injury
when she fell from a bed. Ms. Harrison also testified that Mother
had told her that Child had hit her head on a baby swing and had
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6 Child’s Glasgow Coma Score (“GCS”) was 3 upon EMS’s arrival at the home.
A GCS can range from 3 to 15. A GCS of 3 indicates that the person is “deeply
unconscious or unresponsive.” N.T. Hearing at 16-17. Child’s GCS improved
to a 10 on the way to the hospital, which indicates that she was responsive to
stimulation or pain. Id. at 17-18. While in the ER, Child’s GCS improved to
15, meaning a normal level of consciousness, but then Child began vomiting.
Id. at 18-20. “[I]n the context of the reported injuries and the reported period
of unresponsiveness[,] the vomiting led to … [C]hild having a CAT [s]can done
of the head.” Id. at 20.
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fallen on the floor days prior to being taken to the hospital.[7] Ms.
Harrison testified that she went to the upstairs bedroom where …
Mother said … Child had fallen. Ms. Harrison testified that the bed
where … Child had allegedly fallen was not three feet high[,] but
shorter. Ms. Harrison also testified that … Mother was … Child’s
primary caregiver.[8] Ms. Harrison testified that she believed that
the height of the bed did not coincide with the injuries sustained
by Child. The testimony of Dr. Lind and Ms. Harrison was accorded
great weight.
The trial court found clear and convincing evidence … for
child abuse based upon the severity and unexplained nature of …
Child’s injuries. Furthermore, Mother’s explanation that the
injuries were caused by a single fall from a bed (and possibly by
being hit by a swing and falling backwards on another single
occasion) did not satisfy the trial court as a plausible explanation
to explain the extent of … Child’s injuries. Accordingly, the trial
court made the determination that Mother was the perpetrator of
child abuse….
TCO at 6-8 (citations to record omitted). The trial court’s findings are
supported by the record.
In regards to Mother’s assertion that Dr. Lind failed to testify with a
reasonable degree of medical certainty that Child’s injuries “could not have
possibly [been] sustained” from a fall from the bed, we note that the proper
issue that must be addressed here is whether the injuries are entirely
consistent with common types of child abuse and inconsistent with Mother’s
____________________________________________
7Ms. Harrison clarified that Child did not fall from the swing but, rather, hit
her head while Mother was trying to put her in the swing. N.T. Hearing at 69-
70. When asked if there had been any previous falls, Mother also indicated to
Dr. Lind that Child was sitting on the floor the day before, lost her balance,
and fell backwards. Id. at 32-33.
8Ms. Harrison reported that Father works outside of the home, Mother stays
home with the children, and that she was not aware of any other caretakers.
Mother indicated to Ms. Harrison that she primarily takes care of Child. N.T.
Hearing at 33.
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explanation. See In re L.Z., 111 A.3d at 1167. As DHS points out, Dr. Lind
testified that the retinal hemorrhages in the right eye were “consistent” with
“an injury of higher velocity such as a crush to the head or a shaking or
sheering injury” and were not consistent with Mother’s description of a short
fall from a bed. DHS’s Brief at 14 (citing N.T. Hearing at 28, 36-37, 60).
Additionally, Dr. Lind stated that tests performed at the hospital failed to
reveal any other explanation for Child’s injuries, i.e., a bleeding disorder or
metabolic disease. N.T. Hearing at 38. Dr. Lind stated:
I think what I can say with a degree of medical certainty is that
these injuries are not consistent and would not be expected
typically after a short fall…. [T]he constellation of the change in
consciousness for a period of time[,] the subdural hematoma[,]
and the retinal hemorrhages would not be explained with a short
fall or a fall of three feet.
Id. at 38-40. She further opined that “the process of falling and impacting
the ground is not typically sufficient to cause retinal hemorrhages because the
forces required to disrupt the blood vessels in the back of the eye usually
require that the eye is moving violently within the eye socket and not just one
impact.” Id. at 53-54. “[Child’s] subdural hematomas could be caused … by
higher velocity injury involving the head moving violently.” Id. at 62. Based
on the foregoing, we deem Dr. Lind’s testimony to meet the standard set forth
in L.Z.
Contrary to Mother’s suggestion that the trial court’s finding of inflicted
trauma was based on mere “innuendo and suspicion[,]” we ascertain that the
trial court relied heavily on the overwhelming medical testimony, which
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indicated that Child’s injuries are likely the result of non-accidental trauma
and proved the injuries to be inconsistent with Mother’s explanation. See TCO
at 6-7.9 We deem the trial court’s finding of child abuse to be supported by
clear and convincing evidence and, thus, we discern no abuse of discretion.
Next, Mother asserts that “DHS is not entitled to invoke Section 6381(d)
to establish a prima facie presumption” that she perpetrated the child abuse.
She again basis her argument on the assertion that DHS failed to present clear
and convincing evidence of child abuse. Mother’s Brief at 22-23.
Alternatively, she argues that, even if Section 6381(d) is applicable, the prima
facie presumption has been rebutted. Id. at 23. As rebuttal, Mother avers
that when Child became unresponsive, she called for Father and directed their
son to call 911. Id. at 25. She also points to the fact that she stayed with
Child in the emergency room overnight, seated in “a little plastic chair,” that
she gave the doctor a “thorough history[,]” and that she asked appropriate
questions. Id. Additionally, Mother asserts that she and Father have five
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9 In support of her assertion that the trial court’s ruling was based on mere
innuendo, Mother relied on In Interest of J.M., in which we held that the
record lacked sufficient proof to support a finding of child abuse where “there
was no clear and convincing evidence that [the child] was abused or that his
injuries were non-accidental.” J.M., 166 A.3d at 424. J.M. is distinguishable
from the instant matter, however, as the child in J.M. had a fracture that,
according to the medical testimony, was consistent with a normal accident
involving a child of his age. Id. There was no evidence in J.M., as there is in
the instant matter, suggesting that the fracture was more likely to have been
caused by abuse than by an accident. Id. Moreover, there was no history of
past injuries to the child, and the mother’s testimony did not contradict the
medical testimony; rather, she proffered no explanation of how the injury
occurred, insisting that she did not know. Id. at 427.
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older children (“Siblings”), that all Siblings were medically evaluated as part
of DHS’s investigation, and that Siblings were discharged back to the care of
Mother and Father. Id. at 25-26. Siblings remain in the care of Mother and
Father, and the family has no reported history with DHS. Id. at 26.
Having already determined that the trial court properly found sufficient
evidence to establish child abuse, we deem Mother’s claim that DHS failed to
establish prima facie evidence that she was the perpetrator of the abuse to be
meritless. The record establishes clear and convincing evidence that Child
was in Mother’s care at the time of injury and that Child’s injuries would not
ordinarily have been sustained but for the acts or omissions of Mother. See
23 Pa.C.S. § 6381(d); In re L.Z., 111 A.3d at 1185-86. Thus, DHS met its
burden of establishing prima facie evidence that Mother was the perpetrator
of child abuse. See id. at 1185 (emphasizing that a parent is responsible for
the care and protection of a child in his or her care, “whether they actually
inflicted the injury or failed in their duty to protect the child”).
It is clear that once prima facie evidence against Mother is established,
she is entitled to present evidence to rebut that presumption. See Interest
of S.L., 202 A.3d at 729. “Thereafter, based upon the countervailing
evidence, the trial court must determine whether the presumption is valid.”
Id. Here, the trial court found that Mother’s account of Child’s injuries being
“caused by a single fall from the bed (and possibly by being hit by a swing
and falling backwards on another single occasion)” was not a plausible
explanation, considering the severity of Child’s injuries. TCO at 7-8. The trial
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court did not abuse its discretion in discrediting Mother’s implausible
explanation and in giving weight to the testimony of Dr. Lind and Ms. Harrison.
See In re L.Z., 111 A.3d at 1186. See also Interest of S.L., 202 A.3d at
730 (“Whether or not Mother’s rebuttal evidence is credible or persuasive is
within the trial court’s ultimate purview.”).
Moreover, aside from her implausible story, the only other form of
“rebuttal” Mother provides consists of statements regarding her actions
following Child’s injury, i.e., seeking medical attention, staying at the hospital
with Child, providing doctors with a thorough history, and asking appropriate
questions. Mother fails to offer any evidence that she did not inflict Child’s
injuries, that Child’s injuries were accidental, or that she had given
responsibility of Child to someone else whom she had no reason to fear at the
time of the incident. See In re L.Z., 111 A.3d at 1185. Accordingly, we
discern no abuse of discretion in the trial court’s determination that Mother
perpetrated child abuse.
Next, Mother challenges both the trial court’s dependency adjudication
and its determination that removal of Child from Mother and Father’s custody
was necessary. Mother’s Brief at 26-31. It is well-established that:
A “dependent child” is defined, in relevant part, as one who
is “without proper parental care or control,[10] subsistence,
education as required by law or other care or control
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10“Proper parental control” is defined as “that care which (1) is geared to the
particularized needs of the child and (2) at a minimum, is likely to prevent
serious injury to the child.” Matter of C.R.S., 696 A.2d 840, 845 (Pa. Super.
1997) (internal quotation marks and citation omitted).
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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 question of whether a child is lacking
proper parental care or control so as to be a dependent child
encompasses two discrete questions: whether the child
presently is without proper parental care and control, and if
so, whether such care and control are immediately
available.” In re D.A., 801 A.2d 614, 619 (Pa. Super. 2002)
(en banc).
In re M.W., [842 A.2d 425, 428] (Pa. Super. 2004). The burden
of proof in a dependency proceeding is on the petitioner to
demonstrate by clear and convincing evidence that a child meets
that statutory definition of dependency. In Interest of J.M., …
652 A.2d 877, 880 ([Pa. Super.] 1995)….
In re G.T., 845 A.2d 870, 872 (Pa. Super. 2004) (internal brackets omitted).
“Even after a child has been adjudicated dependent, … a court may not
separate that child from his or her parent unless it finds that the separation is
clearly necessary.” Id. at 873. “Such necessity is implicated where the
welfare of the child demands that he or she be taken from his or her parents’
custody.” Id. (internal quotation marks and citation omitted). Moreover, a
finding of abuse may support an adjudication of dependency. See Interest
of I.R.-R., 208 A.3d 514, 520 (Pa. Super. 2019); Matter of C.R.S., 696 A.2d
at 843. “When the court’s adjudication of dependency is premised upon
physical abuse, its finding of abuse must be supported by clear and convincing
evidence.” Matter of C.R.S., 696 A.2d at 843.
Mother claims that the trial court’s finding of child abuse against her is
not supported by sufficient evidence and, thus, the determination of abuse
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cannot sustain the dependency adjudication in this matter. Mother’s Brief at
27. Having already determined that the trial court’s finding of abuse is
supported by clear and convincing evidence, we deem Mother’s claim to be
meritless. DHS presented medical evidence, which substantiated that Child
suffered serious physical injuries, most likely caused by inflicted trauma. This
evidence, coupled with Mother’s failure to satisfactorily explain the injuries,
led the trial court to conclude that Child was without proper parental care and
control. See In re R.P., 957 A.2d 1205, 1217 (Pa. Super. 2008); Matter of
C.R.S., 696 A.2d at 845. The trial court’s adjudication of dependency was
clearly supported by its finding of abuse versus Mother. See Interest of
I.R.-R., supra. Thus, we discern no error or abuse of discretion by the trial
court, and we conclude that the trial court properly adjudicated Child
dependent.
“Following a finding of dependency, the [trial] court may make an order
for the child’s disposition pursuant to the Juvenile Act, which is ‘best suited to
the safety, protection and physical, mental, and moral welfare of the child.’”
In re E.B., 83 A.3d 426, 431 (Pa. Super. 2013) (quoting 42 Pa.C.S. §
6351(a)).11 See also In Interest of N.M., 186 A.3d 998, 1001 n.9 (Pa.
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11 The Juvenile Act provides in relevant part:
§ 6351. Disposition of dependent child
(a) General rule.—If the child is found to be a dependent child
the court may make any of the following orders of
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Super. 2018) (“Once a child has been adjudicated dependent, the issue of
custody and continuation of foster care are determined according to a child’s
best interest.”). Before entering an order of disposition, the trial court is
required to make the following findings:
(b) Required preplacement findings.—Prior to entering any
order of disposition under subsection (a) that would remove
a dependent child from his home, the court shall enter
findings on the record or in the order of court as follows:
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disposition best suited to the safety, protection and
physical, mental, and moral welfare of the child:
(1) Permit the child to remain with his parents, guardian,
or other custodian, subject to conditions and
limitations as the court prescribes, including
supervision as directed by the court for the protection
of the child.
(2) Subject to conditions and limitations as the court
prescribes transfer temporary legal custody to any of
the following:
(i) Any individual resident within or without this
Commonwealth, including any relative, who, after
study by the probation officer or other person or
agency designated by the court, is found by the
court to be qualified to receive and care for the
child.
(ii) An agency or other private organization licensed
or otherwise authorized by law to receive and
provide care for the child.
(iii) A public agency authorized by law to receive and
provide care for the child.
42 Pa.C.S. § 6351(a)(1), (2).
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(1) that continuation of the child in his home would be
contrary to the welfare, safety or health of the child;
and
(2) whether reasonable efforts were made prior to the
placement of the child to prevent or eliminate the need
for removal of the child from his home, if the child has
remained in his home pending such disposition; or
(3) if preventive services were not offered due to the
necessity for an emergency placement, whether such
lack of services was reasonable under the
circumstances….
42 Pa.C.S. § 6351(b). “[T]he child’s proper placement turns on what is in the
child’s best interest, not on what the parent wants or which goals the parent
has achieved.” In re J.J., 69 A.3d 724, 732 (Pa. Super. 2013).
Mother claims that the trial court abused its discretion by committing
Child to DHS’s custody, because DHS failed to establish by clear and
convincing evidence that the removal of Child was necessary. Mother’s Brief
at 30-31. She further avers that the trial court did not make any finding that
an alternative to removal, i.e., home agency supervision and services, would
not be feasible. Id. at 31. Under the provisions of the Juvenile Act, however,
the trial court is given broad discretion in meeting the goal of entering a
disposition “best suited to the protection and physical, mental, and moral
welfare of the child.” In re S.M., 614 A.2d 312, 315 (Pa. Super. 1992)
(quoting In re Lowry, 484 A.2d 383, 386 (Pa. 1984)). The trial court’s
decision to permit a child to either remain with his present caretaker(s), or to
temporarily transfer custody to a qualified agency or individual, is “subject
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only to the express limitation” that the disposition be in the best interest of
the child. In re Lowry, 484 A.2d at 385-86.
Here, the trial court ordered the transfer of custody of Child to the DHS.
See Order of Adjudication and Disposition (“Order”), 10/15/19, at 1.
Additionally, the trial court made the requisite pre-placement findings in
accordance with Section 6351(b) of the Juvenile Act, as reflected in the
following relevant portion of its Order:
CHILD REMOVED FROM HOME
The court finds that based upon the findings of abuse, neglect or
dependency of the minor Child, it is in the best interest of … Child
to be removed from the home of [Father] and [Mother]….
REASONABLE EFFORTS TO PREVENT REMOVAL FROM HOME
Further, the court hereby finds that to allow … [C]hild to remain
in the home would be contrary to … [C]hild’s welfare, and that the
Philadelphia [DHS] made reasonable efforts to prevent or
eliminate the need for removal of … [C]hild from the home.
CUSTODY/PLACEMENT
Legal custody of … [C]hild shall transfer to the Philadelphia [DHS].
CUSTODY AND CONDITIONS
PLACEMENT – The Child shall remain in kinship care through
Bethanna [Community Umbrella Agency]…. Child’s placement is
the least restrictive placement that meets the needs of … Child
and there is no less restrictive alternative available.
VISITATION – The additional condition of visitation is set forth as
follows: [Mother and Father] to have supervised visits in the
community. Visitation may be modified by agreement of the
parties.
CHILD’S SAFETY
[] [C]hild is safe in the current placement setting. Safety as of
10/1/2019.
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CURRENT PERMANENT PLACEMENT PLAN
The current placement goal for … [C]hild is return to parent or
guardian.
Order at 1-2 (unnecessary capitalization omitted).
Based on our review, it is evident that the trial court properly focused
on the best interests of Child in making its determination of disposition. See
In re R.P., 957 A.2d at 1220 (emphasizing that the 1998 amendments to the
Juvenile Act make clear that the health and safety of the child shall supersede
all other considerations, including the rights of the parents). Given the young
age of Child, the trial court had ample evidence to conclude that Child’s health,
safety, and welfare were best served by removing her from the home. See
In re Frank W.D., 462 A.2d 708, 712 (Pa. 1983) (indicating that the age of
a child is an appropriate factor to consider in determining whether separating
a child from her parent is a “necessity”).
We further note that the trial court has maintained a goal of reunification
with Mother and Father. See Order at 2. We have previously recognized that
reconciling the court’s decision to remove a child from her parents’ custody
with the “paramount purpose” of preserving the family unity “may require that
temporary custody of the child be given to someone other than the parents
until such time as the welfare of the child no longer demands that he be
separated from his parents.” In re S.M., 614 A.2d at 314-15 (citing In re
Frank W.D., supra (decrees concerning children are temporary and subject
to modification to meet changing conditions; appellant may institute
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proceedings to recover her child and present evidence or professional
evaluations regarding any improvement in her parenting skills and abilities)).
We conclude that the trial court’s order of disposition is supported by the
record, and we discern no abuse of discretion.
Accordingly, we affirm the October 15, 2019 order finding Mother to be
a perpetrator of child abuse, declaring Child dependent and transferring
custody of Child to DHS.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2020
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