In the Interest of: J.M., a Minor

J-S18016-17

2017 PA Super 200

IN THE INTEREST OF: J.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: JA.M., MOTHER

No. 2515 EDA 2016

Appeal from the Order Entered July 25, 2016
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0000557-2016
FID: 51-FN-000503-2016

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

OPINION BY SOLANO, J.: FILED JUNE 27, 2017

Ja.M. (“Mother”) appeals from an order entered by the Family Court of

Philadelphia County on July 25, 2016, holding that her child, J.M. (“the

Child”), born in 2015, was the victim of physical abuse perpetrated by

Mother and that Mother’s conduct constituted “aggravated circumstances”

under the Juvenile Act1 and “child abuse” under the Child Protective Services

Law.2 The family court also held that, as the Child’s father, A.S. (“Father”),

was available to assume custody, the Child is not “dependent” under the

Juvenile Act. Mother contends that, because the family court held that the

Child is not dependent, it was precluded as a matter of law from making a
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*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 6301-6375.
2
23 Pa.C.S. §§ 6301-6386.
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finding of “aggravated circumstances.” Mother additionally argues that the

family court’s finding of “child abuse” is not supported by the record. We

reverse.

Mother and Father are not married and do not live together. They

shared custody of the Child, and the Child was scheduled to be in Father’s

care every Tuesday and Thursday and every other weekend.

Mother testified that Father had physical custody of the Child from

Friday, February 19, 2016, to Sunday, February 21, 2016, and that on

February 19, Father and the Child were at the home of father’s mother

(“Paternal Grandmother”). N.T., 7/25/16, at 14-21; Family Ct. Op.,

11/14/16, at 14-15. According to Mother, she “was texting” Father that day,

and Father gave her permission to see the Child briefly. Mother stated that

when she arrived at Paternal Grandmother’s house, she had an altercation

with Paternal Grandmother and that Paternal Grandmother assaulted her.

On Tuesday, February 23, 2016, Mother and Father were supposed to

meet at a police station for a custody exchange. Mother did not appear for

the exchange. After waiting for forty-five minutes, Father filed a police

report. N.T., 5/19/16, at 13-14, 50-56; Family Ct. Op., 11/14/16, at 6, 8.

Mother also did not arrive with the Child for the next scheduled custody

exchange on Thursday, February 25, 2016.

The petitioner in this action, the City of Philadelphia’s Department of

Human Services (“DHS”), contends that Mother had the Child in her physical

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custody ”from February 26th through . . . March 1, 2016.” DHS’s Brief at 5

(citing N.T., 5/19/16, at 14). Mother testified that she had the Child for half

of the day on February 26, and that her mother (“Maternal Grandmother”)

had the Child from then until February 29. N.T., 7/25/16, at 22-26; Family

Ct. Op., 11/14/16, at 7, 15.

On February 28, 2016, Maternal Grandmother took the Child to St.

Mary Medical Center, where he was diagnosed with a fractured right wrist;

there was no clear explanation for the injury. Statement of Facts (attached

to Dependency Pet.), 3/9/16, ¶ c; Family Ct. Op., 11/14/16, at 8. Mother

testified that the injury occurred while he was with her mother, 3 but, as

discussed below, she also sought at other times to blame the injury on

Paternal Grandmother. See N.T., 5/19/16, at 106 (testimony about what

she told doctors). Mother also testified that she did not know how the injury

occurred. N.T., 7/25/16, at 29. The Medical Discharge Instructions from St.

Mary Medical Center state: “Your child has a broken bone (fracture) in the

forearm (radius or ulna bone). This is a very common fracture in children.”
____________________________________________
3
Mother testified:

Q.: What happened during your mom’s custody with regard to
the child? Did he get injured?

A: Yes, he did.

When she was asked to explain further, Mother began to relate what she
was told by her mother, but opposing counsel objected on hearsay grounds
and the court sustained the objection. N.T., 7/25/16, at 24-25. No party
called Maternal Grandmother as a witness.

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Ex. M-1 at 2. The Child’s wrist was placed in a splint, and he was

discharged. Family Ct. Op., 11/14/16, at 18.

On March 1, 2016, Mother found the Child in distress in his playpen.

N.T., 7/25/16, at 35; Ex. DHS-3 at 81-82. She took him to the Emergency

Department of the Children’s Hospital of Philadelphia (“CHOP”) for

treatment. N.T., 7/25/16, at 36. According to Mother, she “told them that

my mother had my son over the weekend, he came back with a fracture. I

don’t really know what took place.” Id. The doctors placed the Child’s arm

in a cast. Id. at 37.

The CHOP doctors sought a consultation by CHOP’s Suspected Child

Abuse and Neglect team, and the Child was seen by Dr. Stephanie Ann

Deutsch of that team. N.T., 5/19/16, at 63. Dr. Deutsch testified that her

team is consulted when there is a concern about possible abuse or neglect.

Id. at 64-65. In this case, the Child “had two fractures in his right forearm,

with no explanation as to why — why or how he sustained those injuries.

Additionally, mother had expressed several safety concerns to the primary

team. . . .” Id. at 66. Dr. Deutsch related that Mother had told CHOP of a

possible “poisoning episode” by Paternal Grandmother that turned out to be

unfounded, and of the physical altercation that Mother had had with Paternal

Grandmother and that the Child “may have been injured while under

[P]aternal [G]randmother’s supervision, following the assault event on the

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Friday.” Id. at 70-71.4 Her report, which was admitted into evidence as

Exhibit DHS-3, id. at 115, contained extensive notes relating to Mother’s

reported concerns about Father and Paternal Grandmother. 5 Dr. Deutsch

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4
Dr. Deutsch recorded the date of the altercation that Mother reported with
Paternal Grandmother as February 26, 2016. N.T. 5/19/16, at 92-93, 97,
105-07. At the hearing in this matter, Mother claimed that when she had
spoken with a doctor at CHOP on Tuesday, March 1, 2016, she mistakenly
told the doctor that Paternal Grandmother’s assault had happened on “the
prior Friday.” N.T., 7/25/16, at 32. Mother continued that she had “meant”
Friday, February 19, 2016, even though the immediate “prior Friday” was
February 26, 2016. Id. Mother testified that she was “confused,” “because
this is about my son and his safety.” Id. Dr. Deutsch testified that the date
of the altercation was important for determining whether the Child was
injured at that time, because the Child’s injury had not yet begun to heal
when the Child was seen at CHOP and an injury that occurred on February
19, rather than on February 26, should have begun healing by then. N.T.
5/19/16, at 77-81.
5
In part, the report reads:

Mother states she has had ongoing concerns for [the Child’s]
safety while under paternal relatives’ care, reporting a prolonged
history of domestic violence between herself and [the Child’s]
father, and several verbal and physical altercations between
herself and [the Child’s] paternal grandmother. . . . Mother
states she is concerned in general for his safety in that home
environment. . . . Mother states that [the Child’s] paternal
grandmother is currently under investigation for [a] safety issue
by police for issues of harassment/assault against mother.
Mother states she is concerned that paternal grandmother
injured [the Child’s] arm intentionally on Friday afternoon after
the altercation between mother and paternal grandmother . . . .
Mother is concerned that paternal grandmother is still able to
care for [the Child] . . . .

Ex. DHS-3, at 69-70; see also id. at 72 (“There is reported history of prior
involvement with law enforcement, including assault charges against father
for domestic disputes . . . . There is history of intimate partner violence.
There is reported prior involvement of child protective services”), 78
(Footnote Continued Next Page)

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also testified that, “[Mother] had mentioned to us that [the Child] is

ambulatory and had started to walk in January, but that there were no

witnessed fall events and that, per [M]aternal [G]randmother’s report to her,

there had been no falls or no trauma while under [M]aternal

[G]randmother’s supervision.” Id. at 75.

Dr. Deutsch provided the following explanation of the Child’s injury:

[A] transverse fracture of the radius and buckle fracture of the
ulna [bone in the forearm] is a common accidental injury in a
developmentally normal ambulatory child. It’s commonly
sustained by an axial load, meaning that the load is the same
direction as the bone. So the most common mechanism would
be a child falling and trying to break the fall by falling on an
outstretched arm.

N.T., 5/19/16, at 74. Dr. Deutsch testified that this is “a common accidental

injury” and “a plausible explanation” for this fracture type is that “there is a

developmentally normal ambulatory child who had a fall on an outstretched

arm.” Id. at 88-89. However, when asked whether “intentional injury [can]

be ruled out” as a cause, Dr. Deutsch answered, “No, it cannot.” Id. at 74-

75; see id. at 88.

CHOP performed several tests on the Child, including a CAT scan of his

brain, a urine toxicology test “to assess for any illicit substances,” a

cardiology evaluation “to assess for any cardiac arrhythmias,” and a skeletal

_______________________
(Footnote Continued)
(“mother describes a history of significant violence involving herself and [the
Child’s] father and paternal grandmother”).

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survey as a screening for other fractures. All of those tests were negative for

signs of other health problems. N.T., 5/19/16, at 67, 74.

On March 2, 2016, DHS received a Child Protective Services (“CPS”)

Report about the Child’s fracture. Statement of Facts (attached to

Dependency Pet.), 3/9/16, ¶¶ c-e. The next day, DHS Investigative Case

Worker Rachel DiStephanis went to CHOP to meet with the family and

learned that the Child had arrived with pinpoint pupils and intermittent,

altered mental status. However, “toxicity screens were completed and

admitted,” and “the results of the toxicity screens were normal.” Family Ct.

Op., 11/14/16, at 4 (citing Statement of Facts (attached to Dependency

Pet.), 3/9/16, ¶ e). No reason for the observed symptoms was ever

determined. N.T., 7/25/16, at 107.

Ms. DiStephanis interviewed Mother, Father, Maternal Grandmother,

and Paternal Grandmother, regarding the cause of the Child’s wrist fracture.

Family Ct. Op., 11/14/16, at 6. Mother initially “related to [Ms. DiStephanis]

that she did not know how the injury occurred.” Id. (citing N.T., 5/19/16, at

11-12). Mother then claimed that the fracture occurred while the Child was

in Paternal Grandmother’s care, but Ms. DiStephanis doubted Mother’s story:

Ms. DiStephanis did not find Mother credible during her
investigation because evidence such as[ p]olice [r]eports, text
messages and emails did not corroborate Mother’s version [that
the Child was in Paternal Grandmother’s care when he was
injured]. Mother never provided a consistent story as to the
custody arrangement of the Child during the week in question.

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Ms. DiStephanis found Father’s version of that week in question
to be credible. He provided evidence which corroborated his
version. She reviewed text messages and [p]olice [r]eports that
Father filed when Mother failed to bring the Child to the drop off
for the exchange of custody. Therefore, she determined that the
Child was most likely, based on the evidence, in the care of
either Mother or Maternal Grandmother when he sustained the
injury. Both Mother and Maternal Grandmother were indicated,
and the basis of the indication was egregious lack of supervision,
resulting in a fracture that was not explained.

Id. at 7 (citing N.T., 5/19/16, at 14-18, 48); see also id. at 10; N.T.,

5/19/16, at 57-58.

On March 4, 2016, DHS filed an application for protective custody

pursuant to the Juvenile Act, 42 Pa.C.S. § 6324, and obtained an order for

protective custody of the Child. 6 On March 7, 2016, after a hearing, a

shelter care order was entered by the family court, and the Child was placed

in a foster home.

On March 9, 2016, DHS filed a dependency petition, stating: “Upon

information provided by the social worker, this child is dependent and/or

abused pursuant to the Juvenile Act (42 Pa.C.S. § 6302 (Dependent

Child)(1)) and/or the Child Protective Services Law (23 Pa.C.S.

§ 6303(b)(1)).” Dependency Pet., 3/9/16, at ¶ 6. 7 Mother claims that this

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6
Section 6324(1) states: “Prior to entering a protective custody order
removing a child from the home of the parent, guardian or custodian, the
court must determine that to allow the child to remain in the home is
contrary to the welfare of the child.”
7
23 Pa.C.S. § 6303(b)(1), which was cited in the petition, was deleted in
2014 and replaced by 23 Pa.C.S. § 6303(b.1) (defining “child abuse”).

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dependency petition “ask[ed] for a finding of aggravated circumstances,”

Mother’s Brief, at 5, but the petition made no specific mention of

“aggravated circumstances.” Instead, it alleged the existence of abuse or

neglect in a “Statement of Facts” attached to the petition and recommended

that the Child “be committed to the City of Philadelphia Department of

Human Services.” Dependency Pet., 3/9/16, at ¶ 8.

On March 16, 2016, DHS transferred the social work for the Child and

his family to the Bethanna Community Umbrella Agency (“CUA”), and the

Child was assigned a new case worker, Tijuanna Harris. N.T., 7/25/16, at 7.

On May 19, 2016, the family court held “an adjudicatory hearing for

[the Child] and a child abuse hearing as to biological mother.” N.T.,

5/19/16, at 6. Dr. Deutsch testified about the Child’s injury, as set forth

above. Id. at 63-71, 74-86, 92-93, 109-110, 113-114. Ms. DiStephanis

testified about her investigation and her conversations with Mother and

Father, including Mother’s assertion that she did not know how the Child’s

injury occurred. Id. at 11-16. Father testified that the Child was not in his

possession at the end of February 2016 and recounted that the Child was

not present for a custody exchange on February 23 and 25, 2016. Id. at

54-61. When asked if she found “Father to be credible during [her]

investigation,” Ms. DiSephanis answered affirmatively, stating that she “was

able to find evidence that backed up his story.” Id. at 16-17. Ms.

DiStephanis also agreed when asked if “Father’s story [was] consistent

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throughout [her] investigation.” Id. At the conclusion of this first hearing,

the family court removed the Child from foster care and “reunified [him]

with Father forthwith [and] grant[ed] custody to Father.” Id. at 119.

When the hearing was resumed on July 25, 2016, Ms. Harris, the CUA

case worker, testified that she supervised the Child at the Father’s home

“and he seems very bonded with his Father and with the paternal side of the

family.” Family Ct. Op., 11/14/16, at 14 (citing N.T., 7/25/16, at 8-9). Ms.

Harris continued that “Mother has line of sight supervised visits twice a week

at the CUA” and “has been consistent with the visits.” Id. (citing N.T.,

7/25/16, at 9). She suggested, “At this time, the CUA may ask that

[Mother] have unsupervised visits.” N.T., 7/25/16, at 10. Ms. Harris added

that “[a] home evaluation was done as to Mother’s residence and it was

deemed to be appropriate housing.” Family Ct. Op., 11/14/16, at 14 (citing

N.T., 7/25/16, at 10). Ms. DiStephanis “testified Mother has completed all

her single case plan goals [and] the parenting, the housing and all other

testing that was asked.” Family Ct. Op., 11/14/16, at 14 (citing N.T.,

7/25/16, at 11-12). She said she would rate Mother as “fully compliant” and

agreed that Mother’s visits were “appropriate.” N.T., 7/25/16, at 11, 13.

Later during the July 25, 2016 hearing, Mother testified. She told

about the altercation with Paternal Grandmother on February 19, 2016,

Family Ct. Op., 11/14/16, at 14-15; N.T., 7/25/16, at 14-20; confirmed that

she had the Child in her custody from Monday, February 22, 2016, until

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Friday, February 26, 2016, and that Maternal Grandmother had physical

custody of him from then until Monday, February 29, 2016, Family Ct. Op.,

11/14/16, at 15 (citing N.T., 7/25/16, at 22-24, 26); and explained that

“she took the Child to CHOP on Tuesday, March 1, 2016, Family Ct. Op.,

11/14/16, at 15 (citing N.T., 7/25/16, at 35-36, 38). Mother testified: “I

would never hurt my son.” Id. at 38.

At the conclusion of July 25, 2016 hearing, the family court stated:

With respect to the claim of aggravated circumstances, the
[family c]ourt finds that the Child was in the custody of [M]other
when the [C]hild was injured, and the testimony went back and
forth.

Sometimes it was clear; sometimes it was as muddy as the
Mississippi can be, and [M]other’s testimony is inherently not
believable. Mother began her testimony and she was well-
rehearsed and she appeared to be reading off of a script.

Her answers were not spontaneous. Her answers were
unbelievable, and she tried as best as she could to confuse the
issue. The issue was that the [C]hild was injured.

Mother’s unbelievable testimony further indicates that she’s
attempting to conceal what happened to the [C]hild while in her
care, and she is responsible for the injuries to the child while in
her care.

Therefore, the [family c]ourt grants the petition for aggravated
circumstances against Mother.

N.T., 7/25/16, at 44.8

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8
At that time, the family court also ordered supervised, “line of sight”
visitation with the Child by Mother at the Bethanna CUA, hoping that “there
will be some remediation of the hostility between [M]other and [F]ather.”
N.T., 7/25/16, at 47-48, 50; see also Family Ct. Op., 11/14/16, at 20.

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The family court then entered two written orders, both dated July 25,

2016. In one, the “Order of Adjudication – Child Not Dependent,” the family

court “ORDERED that the child is found not to be a Dependent Child

pursuant to the Pennsylvania Juvenile Act, that the petition for dependency

is dismissed[, and that] Legal and Physical Custody is transferred to

[Father].” Although the family court did not explain this decision in its

order, the parties agree that the court correctly held that the Child was not

dependent because a parent — Father — was able to assume custody. See

In re M.L., 757 A.2d 849, 851 (Pa. 2000) (stating “a child is not dependent

if the child has a parent who is willing and able to provide proper care for the

child”). Mother does not challenge this order.9

The court called its other order the “Aggravated Circumstances Order,”

and it is that order that Mother challenges in this appeal. In that order, the

family court found “that clear and convincing evidence has been presented

to establish that the alleged aggravated circumstances exist as to [Mother]”

and that the Child “has been the victim of physical abuse resulting in serious

bodily injury, sexual violence or aggravated neglect by the parent; proven as

to Mother.” The order also contained a paragraph called “Additional

Findings” that read, “The Court hereby finds that the above named child is a

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9
Because Mother has not appealed this order, we do not disturb the court’s
transfer of legal and physical custody to Father. Any change of custody
should be made pursuant to appropriate proceedings under the Child
Custody Law, 23 Pa. C.S. §§ 5321 et seq.

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victim of child abuse as defined at 23 Pa.C.S. § 6303, in that Court finds

Child Abuse against Mother.”

In an opinion dated November 14, 2016, the family court stated that

DHS had met its burden by clear and convincing evidence to establish the

existence of “child abuse” pursuant to 23 Pa.C.S. § 6303(b.1). Family Ct.

Op., 11/14/16, at 16-17. The court did not specifically discuss its finding

that the Child was abused, but instead devoted the bulk of its opinion

regarding the abuse to why it concluded that Mother was responsible for any

abuse that occurred. See id. at 17-19. The court relied on In re L.Z., 111

A.3d 1164, 1174 (Pa. 2015), in which the Supreme Court stated: “While a

petitioning party must demonstrate the existence of child abuse by the clear

and convincing evidence standard applicable to most dependency

determinations, . . . the identity of the abuser need only be established

through prima facie evidence in certain situations.” The court found that the

credible testimony led to the conclusion that the Child was not injured while

in the custody of Father or Paternal Grandmother, and that Mother therefore

should be held responsible. Family Ct. Op., 11/14/16, at 17-19.

The family court also asserted that it “properly found [that DHS] met

its burden by clear and convincing evidence [to prove] the existence of

aggravated circumstances as to Mother pursuant to [42] Pa.C.S.A.

§6341(c.1).” Family Ct. Op., 11/14/16, at 19 (capitalization omitted). The

court again focused on who was responsible for the Child’s injuries and

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“relie[d] on the testimony of the medical provider, the Agency workers, and

Father to establish that Mother was the primary care giver of the Child and

did not present credible evidence to rebut this evidence.” Id. The court

concluded: “The Child was the victim of child abuse and DHS has met [its]

burden by clear and convincing evidence that aggravated circumstances

existed due to Mother’s abuse of her Child and the seriousness of that

injury.” Id.

Mother filed a timely appeal. The “Order in Question” section of

Mother’s Brief, at 2, confirms that Mother’s appeal challenges only the

Aggravated Circumstances Order, and not the Order of Adjudication – Child

Not Dependent, even though the Order of Adjudication transferred legal and

physical custody of the Child to Father.

Mother now presents five issues for our review:

1. Did the [family] court commit an error of law by entering
an Order finding aggravated circumstances as to [Mother] where
the [family] court found that the [C]hild was not dependent?

2. Did the [family] court commit an error of law and abuse of
discretion by finding child abuse and aggravated circumstances
as to [Mother] where [DHS] failed to prove by clear and
convincing evidence that the injury to the [C]hild was the result
of child abuse rather than accidental injury?

3. Did the [family] court commit an error of law and abuse of
discretion by entering an Order finding child abuse and
aggravated circumstances as to [Mother] where DHS failed to
prove by clear and convincing evidence that the [Child] was in
the care and custody of [Mother] at the time that the [C]hild
suffered the injury?

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4. Did the [family] court commit an error of law and abuse of
discretion by applying the presumption of perpetrator’s identity
under [23] Pa.C.S. § 6381(d) to [Mother] where DHS failed to
prove the existence of child abuse?

5. Did the [family] court commit an error of law and abuse of
discretion by finding child abuse and aggravated circumstances
as to [Mother] where DHS failed to prove by clear and
convincing evidence that [Mother] committed physical neglect?

Mother’s Brief at 4.

In L.Z., the Supreme Court stated:

“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.

L.Z., 111 A.3d at 1174. In addition, we have observed:

In dependency proceedings our scope of review is broad. . . .
Although bound by the facts, we are not bound by the trial
court’s inferences, deductions, and conclusions therefrom; we
must exercise our independent judgment in reviewing the court’s
determination, as opposed to its findings of fact, and must order
whatever right and justice dictate.

In re C.B., 861 A.2d 287, 294 (Pa. Super. 2004) (quoted citation omitted),

appeal denied, 871 A.2d 187 (Pa. 2005).

Aggravated Circumstances

Mother’s first issue questions whether the family court had the

authority to make a finding that the Child was subject to aggravated

circumstances under the Juvenile Act even though the court found that the

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Child was not dependent under that Act.10 So far as we have been able to

determine, this is a question of first impression. It is a question of law as to

which our review is plenary and de novo. In re G.D., 61 A.3d 1031, 1036-

37 (Pa. Super. 2013) (citation omitted). We conclude that the family court

did not have authority to make a finding of aggravated circumstances absent

a finding of dependency.

We begin with a review of the relevant statutory provisions. The

Juvenile Act was enacted, insofar as is relevant here, “[t]o provide for the

care, protection, safety and wholesome mental and physical development of

children coming within the provisions of [the Act].” 42 Pa.C.S.

§ 6301(b)(1.1). The statute therefore covers “only those children who come

within [its] provisions” and not all children. Commonwealth v. Davis,

479 A.2d 1041, 1045 (Pa. Super. 1984) (emphasis in original), aff’d, 510

A.2d 722 (Pa. 1985) (per curiam). Apart from juvenile delinquency and

similar proceedings that are not at issue here, the Juvenile Act provides that

it “shall apply exclusively to . . . [p]roceedings in which a child is alleged to

be . . . dependent.” 42 Pa.C.S. § 6303(a)(1). A child is “dependent” if he or

she:

(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 . . .;
____________________________________________
10
This issue was included in Mother’s Rule 1925(b) Statement of Errors, see
Family Ct. Op., 11/14/16, at 1-2, but the family court did not address the
issue in its opinion or orders.

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(2) has been placed for care or adoption in violation of law;

(3) has been abandoned by his parents, guardian, or other
custodian;

(4) is without a parent, guardian, or legal custodian;

(5) while subject to compulsory school attendance is habitually
and without justification truant from school;

(6) has committed a specific act or acts of habitual disobedience
of the reasonable and lawful commands of his parent, guardian
or other custodian and who is ungovernable and found to be in
need of care, treatment or supervision;

(7) has committed a delinquent act or crime, other than a
summary offense, while under the age of ten years;

(8) has been formerly adjudicated dependent, and is under the
jurisdiction of the court, subject to its conditions or placements
and who commits an act which is defined as ungovernable in
paragraph (6);

(9) has been referred pursuant to section 6323 (relating to
informal adjustment), and who commits an act which is defined
as ungovernable in paragraph (6); or

(10) is born to a parent whose parental rights with regard to
another child have been involuntarily terminated under 23
Pa.C.S. § 2511 (relating to grounds for involuntary termination)
within three years immediately preceding the date of birth of the
child and conduct of the parent poses a risk to the health, safety
or welfare of the child.

Id. § 6302.

A child dependency proceeding under the Juvenile Act is instituted by

the filing of a petition alleging “[t]he facts which bring the child within the

jurisdiction of the court and this [Act], with a statement that it is in the best

interest of the child and the public that the proceeding be brought.” 42

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Pa.C.S. § 6334(a)(1); see also id. § 6321(a)(3); Pa.R.J.C.P. 1200. After

hearings required by the statute, a court may find a child dependent by clear

and convincing evidence. 42 Pa.C.S. § 6341(a), (c). If the court finds the

child dependent, then it then has a broad range of options for disposition of

the child’s case in a way that best assures “the safety, protection and

physical, mental, and moral welfare of the child,” including options to place

the child in the custody of persons other than the child’s parents. See id.

§ 6351(a). However, “[i]f the court finds that the child is not a dependent

child . . .[,] it shall dismiss the petition and order the child discharged from

any detention or other restriction theretofore ordered in the proceeding.” Id.

§ 6341(a).11

The Juvenile Act provides that a dependency petition may allege that

there are “aggravated circumstances” relating to an allegedly dependent

____________________________________________
11
The Rules of Juvenile Court Procedure further provide:

(2) No dependency. If the court finds the child not to be
dependent or the court finds a parent ready, willing, and able to
provide proper parental care or control, the court shall:

(a) dismiss the petition;

(b) order the child to be discharged from custody and any
restrictions ordered in the proceedings; and

(c) enter an order identifying individual(s) who will have
the legal and physical custody until such order is modified
by further order of the court.

Pa.R.J.C.P. 1409(A)(2).

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J-S18016-17

child. 42 Pa.C.S. § 6334(b). The Act defines “aggravated circumstances” as

“[a]ny of the following circumstances”:

(1) The child is in the custody of a county agency and either:

(i) the identity or whereabouts of the parents is unknown
and cannot be ascertained and the parent does not claim
the child within three months of the date the child was
taken into custody; or

(ii) the identity or whereabouts of the parents is known
and the parents have failed to maintain substantial and
continuing contact with the child for a period of six
months.

(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.

(3) The parent of the child has been convicted of any of the
following offenses where the victim was a child: [list of offenses
omitted].

(4) The attempt, solicitation or conspiracy to commit any of the
offenses set forth in paragraph (3).

(5) The parental rights of the parent have been involuntarily
terminated with respect to a child of the parent.

(6) The parent of the child is required to register as a sexual
offender . . . or to register with a sexual offender registry in
another jurisdiction or foreign country.

Id. § 6302.

The Juvenile Act provides that if a county’s children and youth social

service agency “reasonably believes that aggravated circumstances exist, it

shall file the appropriate petition as soon as possible but no later than 21

days from the determination by the county agency that aggravated

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J-S18016-17

circumstances exist.” 42 Pa. C.S. § 6334(b). The agency’s petition must

“include a statement of the facts the county agency . . . intends to prove to

support the allegation.” Id. If such an allegation is made, the court has the

following obligation when it adjudicates the child’s dependency:

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 [permanent placement upon] disposition of
dependent child).

Id. § 6341(c.1).12

Mother contends that the family court “committed an error of law by

entering an Order finding aggravated circumstances as to [Mother] where

the court found that the [C]hild was not dependent.” Mother’s Brief at 10.

She continues:

The [C]hild, J.M., was found not dependent by the [f]amily
[c]ourt in this case. . . . The Juvenile Act does not provide for
free-standing determinations of aggravated circumstances by the
trial court. . . . “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.” 42 Pa.C.S. §
____________________________________________
12
In In re L.V., 127 A.3d 831, 839 (Pa. Super. 2015), we observed that a
finding of aggravated circumstances under Section 6341(c.1) “permits the
trial court to consider the immediate termination of attempts at reunification
between a child . . . and her family.” See In re M.S., 980 A.2d 612, 620
(Pa. Super.), appeal denied, 985 A.2d 220 (Pa. 2009).

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J-S18016-17

6341(c.1)(emphasis added). There is not provision for a ruling
of aggravated circumstances unless and until the court has
determined that the child is dependent. . . . The Pennsylvania
Rules of Juvenile Court Procedures likewise clearly provide that a
finding of dependency is to precede any ruling on aggravated
circumstances. . . . The ordering of events envisioned by the
statute and the rules makes good sense in light of the object of
the Juvenile Act and the purpose of a dependency proceeding:
to ensure the safety of the child. . . . Since the trial court in this
matter ruled that the Child J.M. was not dependent and
dismissed the petition, the court did not have authority to
proceed to rule on the issue of aggravated circumstances which
was alleged in that petition, and it was an error of law for the
court to make a ruling on this issue.

Mother’s Brief at 10-12.

In response, DHS argues that “Section 6341(c.1) merely states that

where aggravated circumstances are alleged and the [c]ourt finds the Child

dependent, the [c]ourt must determine if aggravated circumstances exist.”

DHS’s Brief at 39. DHS urges, however, that “nothing in the Juvenile Act

prohibits the Court from making such a finding where the facts meet the

definition within the Act.” Id. In DHS’s view, Mother’s argument rests on a

comment to one of the Pennsylvania Rules Juvenile Court Procedure, which,

according to DHS, conflicts with both Section 6341(c.1) and the Juvenile

Court Procedure Rules themselves. Finally, DHS points out that it believes

the Child would have been adjudicated dependent if it were not for Father’s

willingness to accept custody of him. In sum, DHS contends that a court

may find aggravated circumstances absent a finding of dependency.

In construing a statute, we are guided by the Statutory Construction

Act, which provides:

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J-S18016-17

(a) The object of all interpretation and construction of statutes is
to ascertain and effectuate the intention of the General
Assembly. Every statute shall be construed, if possible, to give
effect to all its provisions.

(b) When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.

1 Pa.C.S. § 1921. “As a general rule, the best indication of legislative intent

is the plain language of a statute.” Commonwealth v. McFadden, 156

A.3d 299, 305 (Pa. Super. 2017) (quoting Commonwealth v. Bradley, 834

A.2d 1127, 1132 (Pa. 2003)).

Here, the plain language of the Juvenile Act provides that a court may

make a finding of aggravated circumstances only if it finds that a child is

dependent. Section 6341(c.1) states: “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.” 42 Pa.C.S. § 6341(c.1) (emphasis added).

The statute contains no provision authorizing findings on aggravated

circumstances if no finding of dependency is made.

This interpretation makes sense in light of the statutory scheme under

the Juvenile Act as a whole. The Juvenile Act provides for allegations of

aggravated circumstances only in connection with the filing of a dependency

petition, and not as a freestanding basis for relief. If a child is found to be

dependent, the Juvenile Act uses a further finding regarding the existence of

aggravated circumstances as a basis for determining where to place the

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J-S18016-17

dependent child under Sections 6341 and 6351. Although a court otherwise

might consider reasonable efforts to return a dependent child to his or her

family, a finding of aggravated circumstances requires that the court

carefully evaluate whether to follow such a course under Section 6341(c.1).

Indeed, this restraint on placement is the only purpose of an aggravated

circumstances finding. The provisions regarding aggravated circumstances

were added to the Juvenile Act in 1998 to comply with federal laws

addressing Congressional concerns that a child found to be dependent not

then be returned to an abusive family. See In re S.B., 833 A.2d 1116,

1122-23 & n.6 (Pa. Super. 2003), appeal denied, 856 A.2d 835 (Pa. 2004).

The added provisions, culminating in Section 6341(c.1), enable the family

court to prevent such a result.

If a child is not found to be dependent, however, there will be no

placement decision that requires consideration of information about

aggravated circumstances, and there thus will be no need for such a finding.

Section 6341(a) of the Juvenile Act confirms our conclusion by providing that

if a child is not found to be dependent, the court “shall dismiss the petition

and order the child discharged from any detention or other restriction

theretofore ordered in the proceeding.” 42 Pa.C.S. § 6341(a). Section

6341(a) makes clear that a finding of no dependency must result in a

termination of the dependency proceedings, rather than a continuation of

proceedings to find and then address aggravated circumstances.

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J-S18016-17

The Rules of Juvenile Court Procedure that have been promulgated by

the Supreme Court to govern dependency proceedings are consistent with

this interpretation of the Act. Rule 1705(A) provides:

Finding after adjudication of dependency. After a finding of
dependency pursuant to Rule 1409, the court shall determine if
aggravated circumstances exist.

Pa.R.J.C.P. 1705(A) (emphasis added). An official comment to Rule 1705

states: “Under paragraph (A), the court is to find a child dependent before

determining if aggravated circumstances exist. See 42 Pa.C.S. §

6341(c.1).” Pa.R.J.C.P. 1705(A) cmt. In contrast, Rule 1409(A)(2) provides,

“If the court finds the child not to be dependent or the court finds a parent

ready, willing, and able to provide proper parental care or control, the court

shall (a) dismiss the petition . . . .” Pa.R.J.C.P. 1409(A)(2).

DHS contends that the comment to Rule 1705 somehow conflicts with

Rule 1401, which provides:

Under these rules and the Juvenile Act, 42 Pa.C.S. § 6301 et
seq., a determination for each case requires separate and
distinct findings. First, the court is to hold an adjudicatory
hearing, governed by Rule 1406 or accept stipulations, governed
by Rule 1405. Second, after hearing the evidence or accepting
the stipulations, the court is to make specific findings on the
petition as to each allegation pursuant to Rule 1408, stating with
particularity the allegations proven by clear and convincing
evidence. Third, after entering its findings, the court is to
determine if the child is dependent, pursuant to Rule 1409. If
aggravated circumstances are alleged, the court is to
determine if aggravated circumstances exist, pursuant to
Rule 1705. After the court has made these findings and if the
court finds that the child is dependent, the court is to hold a
dispositional hearing as provided for in Rule 1512 and is to enter
a dispositional order under Rule 1515. Nothing in these rules

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J-S18016-17

precludes the court from making these determinations at the
same proceeding as long as the requirements of each rule are
followed.

Pa.R.J.C.P. 1401 (emphasis added).

There is no conflict. Rule 1401 says that a finding of aggravated

circumstances is to be made “pursuant to Rule 1705,” which says that such

a finding is to be made only “[a]fter a finding of dependency.” Pa.R.J.C.P.

1705(A). Moreover, at the time the Supreme Court promulgated the

Juvenile Procedure Rules, it published an Explanatory Report that made this

same point: “Before the court is able to find aggravated circumstances, the

court must enter a finding of dependency pursuant to Rule 1409.” See

Order Approving the Rules of Juvenile Court Procedure — Dependency

Matters (Pa. Aug. 21, 2006), 36 Pa. Bull. 5571 (Sept. 2, 2006), http://www

.pabulletin.com/secure/data/vol36/36-35/1721.html (order approving rules

and mandating their publication with the Explanatory Report); id. 5599,

5605, http://www.pabulletin.com/secure/data/vol36/36-35/1721c.html

(Explanatory Report).

We therefore hold that the family court had no authority to enter an

order finding aggravated circumstances once it determined the Child was not

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J-S18016-17

dependent. Accordingly, the court’s finding of aggravated circumstances

must be reversed.13

Child Abuse

As part of its Aggravated Circumstances Order, the family court made

an “additional finding” that the Child is a victim of Mother’s child abuse

under Section 6303 of the Child Protective Services Law, 23 Pa. C.S. § 6303.

Mother presents various challenges to this finding.

We begin by noting that although we have vacated the family court’s

finding of aggravated circumstances because it was not authorized by the

Juvenile Act, our decision on that issue does not automatically vacate the

finding of child abuse as well. The trial court was authorized to make a

separate finding of child abuse under the Child Protective Services Law,

which provides that a local child services agency investigating child abuse

may institute dependency proceedings in which it petitions for a finding of

child abuse. 23 Pa. C.S. § 6370(b)(2)(i). See L.Z., 111 at 1176 (“As part

of the dependency adjudication, a court may find a parent to be the

perpetrator of child abuse”); In re J.R.W., 631 A.2d 1019, 1021-25 (Pa.

Super. 1993). In contrast to its treatment of aggravated circumstances,

nothing in the Juvenile Act, including in Section 6341(c.1), conditions a

finding of child abuse in such a dependency proceeding on a finding that a
____________________________________________
13
In view of this disposition, we need not reach the portions of Appellant’s
second, third, and fifth issues regarding the finding of aggravated
circumstances.

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J-S18016-17

child is dependent. DHS’ petition here included a child abuse allegation

under the Child Protective Services Law, and the trial court therefore acted

properly in adjudicating that issue.14

Mother maintains:

The [family] court committed an error of law and abuse of
discretion by finding child abuse . . . as to [Mother] where [DHS]
failed to prove by clear and convincing evidence that the injury
to the subject child was the result of child abuse rather than
accidental injury.

Mother’s Brief at 12. Mother also contends that “[t]he trial court committed

an error of law and abuse of discretion by applying the presumption of

perpetrator’s identity under [23] Pa.C.S. § 6381(d)[15 ] to [Mother] where

DHS failed to prove the existence of child abuse.” Mother’s Brief at 23.

____________________________________________
14
Even if a finding of child abuse does not cause further civil or criminal
proceedings to be instituted against the abuser, it still can have significant
consequences. As the Supreme Court has observed, “a dependency court's
finding that an individual perpetrated abuse allows for the filing of a founded
report of child abuse with the Department of Public Welfare and inclusion in
the statewide ChildLine Registry, which inter alia restricts an individual's
ability to engage in employment related to children.” L.Z., 111 A.3d at
1169.
15
In her brief, Mother referred to this section as “42 Pa.C.S. § 6381(d).”
Mother’s Brief at 23. No such statute exists, and we are confident that
Mother intended to refer to 23 Pa.C.S. § 6381(d), a provision of the Juvenile
Act dealing with proof in child abuse cases. Section 6381(d) provides:

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.
(Footnote Continued Next Page)

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J-S18016-17

In L.Z., 111 A.3d at 1174, the Supreme Court discussed the

requirements to prove the two issues in a child abuse case. “[A] petitioning

party must demonstrate the existence of child abuse by the clear and

convincing evidence standard,” but if the court finds that abuse occurred,

“the identity of the abuser need only be established through prima facie

evidence in certain situations.” Id. Here, much of the focus in the family

court was on identifying an abuser, as the court examined competing claims

about which parties had custody of the Child at which times. On appeal,

however, Mother first seeks review of the primary finding that DHS proved

abuse by clear and convincing evidence.

“Child abuse” encompasses a broad range of misconduct under the

Child Protective Services Law. Here, DHS contends that it established child

abuse under the following provisions:

The term “child abuse” shall mean intentionally, knowingly or
recklessly doing any of the following:

_______________________
(Footnote Continued)

See generally L.Z., 111 A.3d at 1175-86. With respect to this provision,
Mother argues:

The [family] court, in its Opinion, did not cite any direct
evidence, much less clear and convincing evidence, that Child
was in Mother’s custody when the injury was incurred. Instead,
the trial court discusses the fact that, under certain
circumstances, the identity of an abuser may be established by
prima facie evidence.

Id. (citing Family Ct. Op., 11/14/16, at 17 (citing L.Z., 111 A.3d at 1174)).

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J-S18016-17

(1) Causing bodily injury to a child through any recent act
or failure to act.

* * *

(5) Creating a reasonable likelihood of bodily injury to a
child through any recent act or failure to act.

* * *

(7) Causing serious physical neglect of a child.

23 Pa.C.S. § 6303(b.1)(1), (5), (7). Section 6303(a) defines “intentionally,”

“knowingly,” and “recklessly” as “hav[ing] the same meaning as provided in

18 Pa.C.S. § 302 (relating to general requirements of culpability),” which

provides:

(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:

(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

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J-S18016-17

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). Section 6303(a) defines “bodily injury” and “serious

physical neglect” as follows:

“Bodily injury.” Impairment of physical condition or
substantial pain.

* * *

“Serious physical neglect.” Any of the following when
committed by a perpetrator that endangers a child’s life or
health, threatens a child’s well-being, causes bodily injury or
impairs a child’s health, development or functioning:

(1) A repeated, prolonged or egregious failure to supervise
a child in a manner that is appropriate considering the child’s
developmental age and abilities.

(2) The failure to provide a child with adequate essentials
of life, including food, shelter or medical care.

23 Pa.C.S. § 6303(a).

The question is whether DHS proved child abuse under these

provisions by clear and convincing evidence. “Clear and convincing

evidence” requires:

that the witnesses must be found to be credible; that the facts to
which they testify are distinctly remembered and the details
thereof narrated exactly and in due order; and that their
testimony 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. It is not
necessary that the evidence be uncontradicted provided it carries

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J-S18016-17

a clear conviction to the mind or carries a clear conviction of its
truth.

In re Novosielski, 992 A.2d 89, 107 (Pa. 2010) (citations and internal

brackets omitted). The cases exemplify the heavy burden imposed by this

standard.16

In In re Read, 693 A.2d 607, 610-11 (Pa. Super. 1997), appeal

denied, 723 A.2d 1025 (Pa. 1998), the juvenile court found that twin

infants with bone fractures were the victims of child abuse. The treating

physician testified that he could not definitively state whether the injuries

were caused by abuse or by an accident, and the parents gave no

explanation for the injuries. Id. at 611. The parents had immediately

sought medical care for the children. Id. Upon review, this Court reversed

the finding of abuse, stating:

A thorough review of the testimony simply does not rise to the
level required to declare these children abused. It is an
unwarranted conclusion to find abuse simply because the parents
did not introduce any explanations for the injuries. The evidence
must show by clear and convincing evidence that the children
were abused and that the injuries were not accidental. The
testimony here fails to support a conclusion that the injuries were
not accidental. The only conclusive fact is that these children
suffered bone fractures. The medical testimony and the
testimony from CYS was inconsistent as to whether these injuries
____________________________________________
16
The cases we discuss here predate amendments that expanded the
definition of “child abuse” under the Child Protective Services Law, which, as
each cited case relates, previously required proof only of a “nonaccidental
serious physical injury.” We do not consider these cases as controlling with
respect to the current meaning of “child abuse.” Rather, we discuss them as
illustrations of our application of the clear and convincing evidence standard
in child abuse cases.

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J-S18016-17

where in fact accidental. Innuendo and suspicion alone are
not enough to compel a finding of child abuse.

Id. at 611-12 (emphasis added).

Similarly, in In re C.R.S., 696 A.2d 840, 843-44 (Pa. Super. 1997),

the child’s treating physician testified that he could not definitively diagnose

whether the trauma suffered by the child was accidental or nonaccidental.

Four additional expert physicians, including two pediatricians and a pediatric

ophthalmologist, who reviewed the child’s medical records, testified that the

child’s injuries could have been accidental but that they could not make a

definitive statement as to their cause. Id. at 844-45. The child’s regular

treating pediatrician testified that she had observed no earlier symptoms of

abuse. Id. at 845. Based upon an independent review of the record, this

Court disagreed with the trial court’s inference that the medical testimony

established that the child was abused. Id. at 844. “A thorough review of

the testimony indicates that there was no clear and convincing evidence that

C.R.S. was abused or that his injuries were non-accidental.” Id. at 845.

Thus, we reversed the trial court’s finding of abuse. Id. at 846.

The stark fact in this case is that there is no evidence clearly showing

that the Child was abused. The Child had a fracture that, according to the

medical testimony, was consistent with a normal accident involving a child of

his age. Indeed, Dr. Deutsch testified that if Mother had told her that the

Child had fallen on his outstretched arm, that would have been a satisfactory

explanation to avoid any involvement by Child Protective Services. N.T.,

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J-S18016-17

5/19/16, at 86-87. The fracture became a cause of concern only because

Mother said she did not know what caused it and volunteered that there was

a history of physical altercations involving Father’s family. There is no

evidence in this record — medical or otherwise — suggesting that this is a

fracture that was more likely to have been caused by abuse than by an

accident.

In the absence of such evidence, the child advocate argues that abuse

was proven through the “conflicting histories” Mother provided regarding

custody of the Child over the period when the fracture occurred. DHS’s Brief

at 25. According to the child advocate, Mother gave a “timeline of custody”

that “misled both the hospital and DHS and blamed the paternal relatives for

the Child’s history.” Id. The advocate points out that “[t]he Court rejected

Mother’s change in histories and multiple conflicting stories” and that Dr.

Deutsch noted that such conflicts “were a ‘red flag’ for child abuse.” Id. at

31 (citing N.T., 5/19/16, at 78-79). The advocate also argues that it was

appropriate to find that the Child was the victim of abuse by Mother because

Mother was the Child’s custodial parent and was unable to explain the Child’s

injuries. Id. at 30-31.

With respect to the “conflicting histories,” Mother points out that her

testimony was never in conflict regarding the cause of the fracture; she

consistently said she did not know how it happened. Mother’s Brief at 18

(citing N.T. 7/25/16, at 29, 36). Our review of the record confirms this fact,

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J-S18016-17

but it also confirms that Mother, whose ongoing hostility toward Paternal

Grandmother is clear, speculated that Paternal Grandmother could be

responsible for the injury. The CHOP report by Dr. Deutsch includes

Mother’s statement that “she is concerned that paternal grandmother injured

[the Child’s] arm intentionally on Friday afternoon after the altercation

between mother and paternal grandmother.” Ex. DHS-3 at 70. The record

also shows that Mother provided conflicting information about when the

Child was in her custody and when he was in the custody of Father and

Paternal Grandmother, though much of the evidence about dates in the

record seems simply to be confused. In light of the inconsistencies in the

record, as well as its observations of Mother’s demeanor, the family court

concluded that Mother’s testimony was not believable, that Mother “tried as

best as she could to confuse,” and Mother was “attempting to conceal what

happened to the child while in her care and she is responsible for the injuries

to the child while in her care.” N.T., 7/25/16, at 44.

We are bound by the findings of the family court. L.Z., 111 A.3d at

1174. But we are aware of no case that has ever held that such evidence is

sufficient to prove child abuse under a standard requiring clear and

convincing proof.17 We have reviewed each of the cases cited to us by the

____________________________________________
17
We need not reach the issue in light of our disposition, but we note that if
it had properly found child abuse, the family court may have had greater
leeway to then rely on less rigorous evidence to support a finding that
Mother perpetrated the abuse, the primary focus of the hearing below. That
(Footnote Continued Next Page)

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J-S18016-17

child advocate, and each of them found child abuse on the basis of far

greater evidence than this.

In L.Z., the child had a deep cut around his penis and bilateral bruising

of his cheeks. 111 A.3d at 1167. A medical expert testified that the injuries

could not have occurred in the way the family claimed (that the laceration

was caused by the child tugging on his penis during a diaper change and the

bruising was caused by a fall onto a table). Id. The Court held that the

injuries were proven to be abuse on the basis of the medical testimony. Id.

at 1175.

In In re A.H., 763 A.2d 873 (Pa. Super. 2000), the treating physician

testified that the mother’s explanation for her child’s bone fractures was

“inconsistent with the medical evaluation,” and the doctor had no doubt that

those injuries were the result of abuse. Id. at 876. “In addition, the doctor

found a healed fracture of the left radius, which was inflicted approximately

one to two months prior to the examination, and a fracture of the upper

humerus of the left arm, which was inflicted within the two to four week

period prior to the exam.” Id. We concluded there was “ample evidence in

the record to support the court’s findings” of child abuse. Id.

In In re R.P., 957 A.2d 1205 (Pa. Super. 2008), a child presented

with more than 100 bruises over his entire body. The parents offered a

_______________________
(Footnote Continued)
finding would not require clear and convincing evidence. See L.Z., 111 A.3d
at 1174.

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J-S18016-17

“multitude” of “ever-changing and often conflicting” explanations for the

child’s injuries, including a fall from a trampoline. An examination showed

that the child had multiple injuries of various ages, indicating that harm had

occurred over a long period of time. Id. at 1208. A forensic pediatrician

testified that the child had “old bruises on specific areas that are concerning

for abuse and old fractures” and that the child’s injuries were inconsistent

with the parents’ explanation as to how the most recent and most serious

injury had occurred. Id. at 1215-16. A second forensic pediatrician

specifically testified that the child’s injuries were “non-accidental.” Id. at

1223. This Court concluded that “the trial court was correct in adjudicating

[that] there was clear and convincing evidence that R.P. was the victim of

abuse.” Id. at 1213.

In In re J.O.V., 686 A.2d 421 (Pa. Super. 1996), a dependency

proceeding, the four-month-old child had suffered fractures on multiple

occasions, indicating a pattern of abusive behavior. Id. at 422. The

parents’ inability to explain any of the injuries proved that the child was

without proper parental care or control, enabling a finding of dependency.

In J.R.W., 631 A.2d 1019, the two-month-old child suffered multiple

fractures and head injuries. In addition to the fact “that the parents

provided various, inconsistent reasons for the injuries . . . [that were]

inconsistent with the evidence and medical testimony presented,” id. at

1021, there was medical evidence of trauma by an external source: that is,

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J-S18016-17

“several experts testified without qualification that this child had been

seriously abused.” Id. at 1025 (emphasis in original).

In In re Frank W.D., 462 A.2d 708 (Pa. Super. 1983), the medical

testimony was that the child’s broken arm was caused by a direct trauma

involving a great deal of force – at least ten times the child’s body weight.

Id. at 710. When a babysitter claimed that the break occurred when he

grabbed the child’s arm to prevent a fall, a doctor testified, “this fracture

could not have been caused by the way [the babysitter] described the

incident and I am a hundred percent certain of that.” Id.

We also researched actions arising under an earlier version of the child

abuse statute that involved parents or other caregivers who could not

explain the cause of the child’s injuries or who gave conflicting explanations.

In K.N. v. Commonwealth, Dep’t of Pub. Welfare, 554 A.2d 994, 996

(Pa. Cmwlth.), appeal denied, 568 A.2d 1250 (Pa. 1989), the medical

expert testified that “the severity of [the child]’s facial bruising was

inconsistent with” the explanation that the parents had originally given to

the hospital for those injuries. The doctor continued that the child’s injuries

unequivocally were the result of abuse, not an accident. Id. A social worker

also testified that, when speaking to her, the parents “had been inconsistent

in their rendition of the events leading to the child’s injuries.” Id. The

Commonwealth Court affirmed the finding of child abuse, concluding that it

was “supported by substantial evidence.” Id. at 998.

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In K.S. v. Commonwealth, Dep’t of Pub. Welfare, 564 A.2d 561,

562, 564 (Pa. Cmwlth. 1989), the parents offered conflicting explanations

for a laceration that the child had suffered, and neither parent could explain

how the child suffered fractures of lower leg bones. The medical expert

testified that the injuries were undoubtedly the result of abuse. Id. at 563.

The Commonwealth Court affirmed the finding of child abuse. Id. at 562.

In In re Sharpe, 374 A.2d 1323, 1325 (Pa.Super. 1977), a mother

“offered no plausible explanation for the cause of [her child’s]

injuries.” After the mother brought the child to the hospital for a skin rash,

the doctor discovered other harm, but the mother could offer no explanation

for why she had not previously sought treatment for the child. Id.

Additionally, further medical exams revealed signs of neglect “and social

deprivation.” Id. at 1325-26. This Court affirmed the finding that the child

was “a deprived child.” Id. at 1324.

In each of these cases, there was far more evidence of child abuse

than has been presented here. In many of the cases, there was unequivocal

medical evidence that the child’s injury could not have been accidental;

here, however, Dr. Deutsch, the only doctor who testified, stated that the

Child’s fracture is a type that often occurs in accidents involving children of

his age and rendered no opinion that the Child was abused. In many of the

cases, there was evidence of past injuries that reflected a history of abuse;

here, however, there is no such history. And, significantly, when these

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cases have relied on the fact that the caregiver gave incredible testimony,

they have pointed to testimony seeking to explain the child’s injury in a way

contrary to the medical evidence. Here, Mother proffered no explanation of

how the injury occurred, insisting that she did not know.

Clear and convincing evidence requires that a finding be based on

testimony by credible witnesses who clearly relate facts that are “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.”

Novosielski, 992 A.2d at 107. There was no such testimony of abuse in

this record. Rather, the evidence was only of an injury that commonly

results from childhood accidents, a mother who said she did not know how

that injury occurred, and conflicting testimony by that mother about who

had custody at the time of the injury. Rather than finding the testimony

clear, the trial court said it was “as muddy as the Mississippi can be.” N.T.,

7/25/16, at 44. The trial court said it did not believe Mother and inferred

that she might be hiding something. See id. But suspicions are not a

substitute for clear and convincing evidence. Read, 693 A.2d at 612.

Although the trial court was free to rely on its findings about Mother’s

testimony, it could not, as a matter of law, find that the Child was abused

solely on that basis.

In sum, in light of the clear and convincing standard we are required

to apply, we hold that the record lacks sufficient proof to enable a finding

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that the Child was the victim of child abuse. Accordingly, we are constrained

to reverse the finding of child abuse in this case. In light of this disposition,

we need not address Mother’s other issues.

We reverse the family court’s July 25, 2016 “Aggravated

Circumstances Order” and its findings of aggravated circumstances and child

abuse.

Order reversed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2017

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