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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.L., MOTHER :
:
:
:
:
: No. 1868 EDA 2021
Appeal from the Order Entered September 1, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001016-2019
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 23, 2022
N.L. (“Mother”) appeals from the order finding K.L. (“Child”) was the
victim of child abuse. We conclude the court did not abuse its discretion in
finding that Child was the victim of child abuse and Mother caused Child bodily
injury by recklessly failing to supervise her children. We affirm.
In June 2019, DHS received a Child Protective Services (“CPS”) Report
regarding potential child abuse of Child. The Department of Human Services
(“DHS”) found the report to be indicated. In October 2019, Child was
adjudicated dependent. The trial court conducted a four-day child abuse
hearing.1
After the hearing, trial court made the following findings of fact:
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1The court held hearings on February 18, 2020, February 3, 2021, May 12,
2021, and June 22, 2021. It issued its decision at a September 2021 hearing.
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On June 12, 2019, DHS received a [CPS] Report alleging
that at 7:00 AM that day, Child’s Mother noticed that Child
had swelling on the left front side of his head toward the
front of his head. Later that night, Mother brought the Child
to St. Christopher’s Hospital for Children (“SCHC”) for head
imaging. On June 13, 2019, DHS spoke with Dr. Norell
Atkinson from the SCHC Child Protection Unit. Dr. Atkinson
stated that Child had a left, non-displaced skull fracture
overlying hematoma and an extra-axial hemorrhage and
was admitted to the Pediatric Intensive Care Unit (“PICU”)
for further treatment. Dr. Atkinson also stated to DHS that
the Child’s injuries were the result of a significant blunt force
impact to the head and that the injuries either resulted from
an undisclosed accident or they were inflicted injuries.
Mother provided no information to SCHC as to the cause of
Child’s injuries.
On June 14, 2019, DHS conducted a home visit. During the
home visit, DHS learned from Mother that Child may have
been injured on June 8, 2019 when Child fell from his
unsecured car seat while the Child’s ten-year-old sibling
(“Sibling” or “Daughter”) attempted to load Child into the
family’s pickup truck[, which had “monster truck” tires,] at
Mother’s direction while Mother was on the opposite side of
the pickup truck. Mother told DHS that she did not seek
immediate medical attention because there was no swelling
until June 12, 2019.
Trial Court Op., filed Dec. 10, 2021, at 2-3 (citations to record omitted)
(“1925(a) Op.”). The court stated that it did not find Mother’s testimony
credible, noting her “story changed quite a bit.” N.T., Sept. 1, 2021, at 5. The
court found Child was the victim of child abuse and that Mother caused the
injury by reckless behavior. Mother filed a timely notice of appeal.
Mother raises the following issues on appeal:
I. Whether the trial court erred and/or abused its discretion
by making a finding of child abuse under the Child Protective
Services Law, 23 Pa.C.S. [§]§ 6301-6385 inasmuch as this
finding was not supported by the record and testimony
proffered.
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II. Whether the trial court erred and abused its discretion by
finding child abuse as to Mother . . . where DHS failed to
prove by clear and convincing evidence that the injury to
the Child was the result of child abuse rather than accidental
injury.
Mother’s Br. at 3 (suggested answers and unnecessary capitalization omitted).
Mother’s issues are interrelated, and we will address them together.
Mother argues that she had “no reason to believe that any issue would
arise when [Daughter] took [Child] back to the car.” Id. at 11. She argues
this was an accident for which she is remorseful “every waking day of her life.”
Id. at 12. Mother argues she learned of the accident when she heard Child
crying and “immediately spr[a]ng into action, running to his side, comforting
him[,] and checking him for injury.” Id. She claims the lump did not appear
immediately and that she brought Child to the hospital when it appeared. She
concludes the facts do not support a finding of child abuse.
Mother also argues the court erred in finding she was reckless. She
states she believed Child was strapped into his car seat and, as she was on
the other side of the vehicle, she could not know Child was unbuckled. She
asserts she did not see the fall, cause the fall, or know that Child was unsafe
until she heard him cry. Mother points out that Dr. Atkinson testified that the
injury could have been accidental.
Mother further argues that DHS did not prove by clear and convincing
evidence that child abuse occurred in this case. She argues she did not
intentionally harm Child and “there was no indication that her daughter could
not carry her brother in his car seat to the car as she had done in the past
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and earlier in the outing.” Id. at 17. Mother notes that Dr. Atkinson opined
that the injury could have been caused by an accident and could present itself
days after the fall. Mother argues she was cooperative with hospital staff and,
on the day of the accident, did everything she could to ensure Child was okay.
This Court reviews orders in dependency actions for an abuse of
discretion. Interest of T.G., 208 A.3d 487, 490 (Pa.Super. 2019). We must
“accept the findings of fact and credibility determinations of the trial court if
they are supported by the record,” but need not “accept the [trial] court’s
inferences or conclusions of law.” Id. (quoting In re R.J.T., 9 A.3d 1179,
1190 (Pa. 2010)).
“[A] petitioning party must demonstrate the existence of child abuse by
. . . clear and convincing evidence.” In Interest of J.M., 166 A.3d 408, 422
(Pa.Super. 2017) (quoting In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015)).
“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 a clear conviction to the
mind or carries a clear conviction of its truth.
Id. at 423 (quoting In re Novosielski, 992 A.2d 89, 107 (Pa. 2010)).
The Child Protective Services Act defines “child abuse” to include
“intentionally, knowingly or recklessly . . . [c]ausing bodily injury to a child
through any recent act or failure to act.” 23 Pa.C.S.A. § 6303(b.1)(1). Section
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6303(a) defines “bodily injury” as “[i]mpairment of physical condition or
substantial pain.” Id. at § 6303(a). It 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).” Id.; accord In Interest of
J.M., 166 A.3d at 422-23. Section 302 provides the following definition of
“recklessly”:
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.A. § 302(b)(3).
Here, the trial court concluded Child suffered bodily injury and Mother
caused the injury by failing to supervise her children:
In the instant case, Child was a victim of child abuse. DHS
clearly demonstrated that Child’s fractured skull satisfied
the element of “bodily injury” as defined by the CPSL in that
the skull fracture was a definite impairment to the Child’s
physical condition. See CPSL 23 Pa.C.S. § 6303(a). On
February 18, 2021, Dr. Atkinson testified that the skull
fracture extended from the top of the skull to ear level. Dr.
Atkinson testified that the injury could be sustained from a
short fall of three to four feet and that swelling from the
injury could occur shortly after the fall or days after the fall.
Dr. Atkinson testified that the Child sustained the injury at
the age of five (5) weeks. Dr. Atkinson testified that . . . the
injury was not caused by the Child rolling over or making a
sudden movement because the Child lacked the requisite
mobility to do so at five (5) weeks. Dr. Atkinson testified
that Child’s injury was the result of blunt force trauma.
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DHS did not provide clear and convincing evidence that the
child abuse was intentional on the part of Mother. No
evidence was presented showing a single or particular
intentional act by Mother showing that Mother intended to
cause Child’s skull fracture. DHS, however, provided the
required clear and convincing evidence that Mother caused
bodily injury to Child by her failure to supervise her Child.
Specifically, Mother allowed her ten (10) year old daughter
to act without adequate supervision to attempt to snap a
heavy car seat into a child car seat lock on the passenger
side seat of a Ford Expedition with “monster truck” tires,
which resulted in the five week old Child falling onto the
parking lot cracking his head. The daughter’s testimony
shows that the Child fell from the truck when she tried to
place the Child into the truck. Mother acted knowingly and
testified that she had allowed her ten (10) year of daughter
to place Child in the truck before and that she allowed the
daughter to do so on that day as well. Obviously, the
daughter is not to be blamed in this circumstance. It is the
Mother’s lack of supervision which is [to] blame. Mother was
reckless in her supervision of her daughter on that day and
the testimony of the Mother provides evidence so clear and
evidence so direct that but for her failure to supervise her
daughter that Child would not have fractured his skull.
Hence, DHS has met its burden to provide clear and
convincing evidence for the finding of child abuse.
1925(a) Op. at 8-9 (citations to the record omitted).
Mother does not contest that Child suffered bodily injury. She argues
the court erred in finding the injury was a result of child abuse and that she
acted recklessly. The record supports the trial court’s credibility findings and
factual findings. There was clear and convincing evidence that Mother acted
recklessly by failing to either ensure personally that Child was properly
buckled into his car seat before being lifted into the vehicle, or supervise her
daughter adequately to make sure she had secured the baby and could safely
load him into a tall truck. The court did not abuse its discretion in finding that
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Mother acted recklessly, and that her reckless conduct caused Child bodily
injury.
Mother cites C.F. v. Pennsylvania Department of Public Welfare,
804 A.2d 755 (Pa.Cmwlth. 2002), and In the Matter of Read, 693 A.2d 607
(Pa.Super. 1997), to support her claim that the evidence did not show that
this was not an accident, but rather child abuse. In both of the cases she cites,
the courts were applying a prior version of the statute at issue, which defined
“child abuse” as “[a]ny recent act or failure to act by a perpetrator which
causes nonaccidental serious physical injury.” C.F., 804 A.2d at 758
(emphasis added); see also Matter of Read, 693 A.2d at 610.
In C.F., the appellant filed a request to expunge an indicated report of
child abuse. There, the appellant had placed her ten-and-a-half-month-old
son on the top level of a bunk bed while she went downstairs to prepare a
bottle of milk. Approximately 15 minutes later, she returned and found the
child stuck with his head between the edge of the mattress and bed frame and
with his legs dangling over the side. She immediately sought assistance and
the child was taken to the hospital, where he was pronounced dead. The
medical examiner listed the cause of death as accidental. DHS concluded the
appellant committed child abuse by leaving the child on the top bunk alone
for 15 minutes and filed an indicated report of child abuse. The Commonwealth
Court concluded the evidence did not support a finding of child abuse, as the
medical examiner had found that the child’s death was an accident, and the
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appellant could not have predicted the child would die if she left him on the
bunk bed to prepare his bottle. Id. at 758-59.
In Matter of Read, J.R. and K.R. were hospitalized at five months old
from suspected child abuse. In their five months, J.R. had suffered an ankle
fracture and K.R. had suffered fractures of her skull, arm, and clavicle. K.R.’s
father testified regarding the skull fracture, stating K.R. slipped from his grasp
at the top of the steps, and he grabbed her with his hand and made hard
contact with her head. At the time, the doctors did not think the skull fracture
was abuse. The parents provided no explanation for the remaining fractures.
The doctor stated all fractures could have been caused by accidents or caused
by other children or adults. This Court noted that Children and Youth Services
(“CYS”) had not made a final determination as to whether abuse had occurred.
We concluded that the testimony did not rise to the level required to find
abuse, stating it was “an unwarranted conclusion to find abuse simply because
the parents did not introduce any explanations for the injuries.” Id. at 611.
We stated CYS had to show by clear and convincing evidence the injuries were
nonaccidental and the testimony did not support that conclusion, as the
medical testimony and testimony from CYS was inconsistent as to whether the
injuries were accidental. Id. at 611-12.
The current version of the statute does not require that the injury be
“nonaccidental,” as the statute at issue in both Matter of Read and C.F. did.
Rather, it requires a finding of abuse where a perpetrator recklessly
“[c]aus[es] bodily injury to a child through any recent act or failure to act.”
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23 Pa.C.S.A. § 6303(b.1)(1). Further, here, unlike in Matter of Read, Mother
provided inconsistent statements about the incident and, after hearing
testimony about the incident and the circumstances leading up to it, the court
concluded Mother’s actions were reckless. Similarly, unlike in C.F., the injury
here was a foreseeable result of the conduct at issue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2022
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