Opinion
J-S15030-16 No. 1393 EDA 2015 No. 1395 EDA 2015
04-25-2016
IN THE MATTER OF I.L., A MINOR v. APPEAL OF: L.N., MOTHER IN THE MATTER OF I.S., A MINOR v. APPEAL OF: L.N., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered April 8, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0000141-2015 Appeal from the Order Entered April 8, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0002926-2014 BEFORE: BENDER, P.J.E., OLSON AND PLATT, JJ. MEMORANDUM BY OLSON, J.:
Retired Senior Judge assigned to the Superior Court.
L.N. ("Mother") appeals from the April 8, 2015 orders adjudicating her female child, I.S. ("Child 1"), born in March 2007, and her male child, I.L. ("Child 2"), born in January 2015, (collectively referred to as "Children") dependent, finding child abuse and aggravated circumstances as to Child 1 against Mother, and ordering reasonable efforts at reunifying Child 1 with Mother. We affirm.
J.L. ("Father"), the biological father of Child 2, initiated his own appeals from the orders entered on April 8, 2015, which are docketed at Docket Nos. 1457 and 1459 EDA 2015. These appeals have been assigned to a different panel of this Court. As Father has filed his own appeals, he is not a party in the present appeal.
We acknowledge that there has been a significant delay in the disposition of this children's fast track matter. We are aware of our Supreme Court's admonishment that children's fast track cases should be resolved promptly. In re: T.S.M., 71 A.3d 251, 261 n.21 (Pa. 2013). By way of explanation, the panel notes that the original certified record was due in this Court by June 8, 2015. Owing to the Family Court Division's relocation to the Family Court Building in Philadelphia, however, this Court did not receive the certified record until September 10, 2015. As a result, the briefing schedule in these cases was delayed by nearly three months. Thereafter, Mother requested and received three extensions of time in which to file briefs, totaling approximately 40 days. The panel concludes that while certain external factors have delayed the disposition in these appeals, the Superior Court has worked diligently toward prompt resolution of this dispute.
In its opinion entered on August 31, 2015, the trial court set forth the following factual background and procedural history regarding Mother's appeal, which we incorporate herein, as follows.
On December 12, 2014, the Department of Human Services ("DHS") received a Child Protective Services (CPS) report alleging that Child 1 had vaginal discharge for two weeks; that on December 10, 2014, Mother took Child 1 to the pediatrician; that a culture was done and it indicated that Child 1 contracted gonorrhea; that sexual abuse had occurred and that the perpetrator was unidentified. The report further alleged that Mother denied knowing who abused Child 1 and Child 1 denied being touched in a sexual[ly] inappropriate manner. The report also alleged that Child 1's Mother was one of her primary caregivers and that this family had a history with DHS. The CPS report was indicated due to the fact that Mother and putative
Father of Child 2 tested positive for gonorrhea. (N.T. 4/8/15, pg. 50). Both Mother and Father of Child 2 live with the Children. (N.T. 4/8/15, pg. 47).Trial Court Opinion, 8/31/15, at 1-2 (footnote added).
On December 12, 2014, DHS obtained an Order of Protective Custody ("OPC") for Child 1 to ensure her safety and well-being. Child 1 was placed in foster care through Turning Points for Children, where she currently remains. The whereabouts of Child 1['s] biological father [are] unknown.
On December 15, 2014, at the Shelter Care hearing, the trial court ordered the OPC to be lifted and the temporary commitment to DHS stand. DHS was ordered to explore other family members as possible placement resources. [On December 17, 2014, DHS filed a dependency petition.] On December 19, 2014, the trial court granted [a] continuance and deferred the adjudication hearing. On February 20, 2015, the trial court granted [a] continuance due to Father's attorney's unavailability. [On April 8, 2015, the trial court held the adjudicatory hearing on the dependency petition.][1] On April 8, 2015, the trial court adjudicated the Children dependent, found child abuse as to Child 1, as to Mother[,] and also found that aggravated circumstances existed as to Child 1 against Mother[,] but DHS must make reasonable efforts to reunify [Child 1] with Mother. Child abuse was also found against [F]ather of Child 2 as to Child 1. (N.T. 4/8/15, pg. 92-96).
[1] At the hearing, DHS presented the testimony of Dr. Maria McColgan, the director of the child protection program at St. Christopher's Hospital for Children, and a stipulated expert in child abuse pediatrics. N.T., 4/8/15, at 6-8. DHS also presented the testimony of Dawn George, a DHS social worker investigator in the specialty unit assigned to the case. Id. at 43. DHS then presented the testimony of Christina Cross, the Community Umbrella Agency ("CUA") case manager from Turning Points for Children. Id. at 57. Mother testified on her own behalf. Id. at 65.
On May 8, 2015, Mother filed notices of appeal, along with concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On June 8, 2015, this Court, sua sponte, entered an order consolidating the appeals.
Mother raises three issues on appeal:
1. Did Petitioner, DHS, prove by "clear and convincing evidence" that Mother either directly or by neglect caused the child's injuries, as required by 42 Pa.C.S.A. § 6341(c.1) and 42 Pa.C.S.A. § 6302?Mother's Brief, at 4.
2. Did the lower court err in determining that aggravated circumstances exist against Mother as DHS failed to prove by "clear and convincing" evidence that Mother either directly or by neglect caused the child's injuries, as required by 42 Pa.C.S.A. § 6341(c.1) and 42 Pa.C.S.A. § 6302?
3. Did the lower court err in finding [Child 2], the baby brother of [Child 1], dependent?
Mother stated her issues somewhat differently in her concise statements, but we, nevertheless, find those issues preserved for our review.
Mother's arguments in her brief amount to challenges to the sufficiency of the evidence to support the trial court's determinations in its orders on appeal. Specifically, Mother first claims that she rebutted DHS' evidence of child abuse and, therefore, the agency failed to prove its claims by clear and convincing evidence. Here, Mother notes that Dr. McColgan conceded that gonorrhea could be transmitted without sexual contact and Mother asserts that Child 1 could have been infected by a dirty wash rag. Mother also notes that Child 1 denied inappropriate contact. Mother next claims that the trial court erred in finding aggravated circumstances and in imputing abuse to Mother. Lastly, Mother concludes that because the trial court erred in finding that Child 1 was sexually abused, it also erred in adjudicating Child 1 to be dependent.
The Pennsylvania Supreme Court recently set forth our standard of review in a dependency case as follows.
"[T]he 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[.]In Interest of: L.Z., A Minor Child , 111 A.3d 1164, 1174 (Pa. 2015).
Section 6302 of the Juvenile Act defines a "dependent child" as:
[a] child who:42 Pa.C.S.A. § 6302.
(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. 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[.]
In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this Court clarified the definition of "dependent child" further.
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.Id. at 872 (internal quotations and citations omitted); see also In re J.C., 5 A.3d 284, 289 (Pa. Super. 2010). Additionally, we note that "[t]he 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." G., T., 845 A.2d at 872.
With regard to a dependent child, in In re D.A., 801 A.2d 614 (Pa. Super. 2002) (en banc), this Court explained:
[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make a finding that a child is dependent if the child meets the statutory definition by clear and convincing evidence. If the court finds that the child is dependent, then the court may make an appropriate disposition of the child to protect the child's physical, mental and moral welfare, including allowing the child to remain with the parents subject to supervision, transferring temporary legal custody to a relative or public agency, or transferring custody to the juvenile court of another state. 42 Pa.C.S. § 6351(a).Id. at 617.
The Juvenile Act defines "Aggravated circumstances" as including the following circumstances:
. . .42 Pa.C.S.A. § 6302.
(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.
The Juvenile Act defines "serious bodily injury" as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." 42 Pa.C.S.A. § 6302. The Juvenile Act defines "sexual violence" as follows.
"Sexual violence." Rape, indecent contact as defined in 18 Pa.C.S. § 3101 (relating to definitions), incest or using, causing, permitting, persuading or coercing the child to engage in a prohibited sexual act as defined in 18 Pa.C.S. § 6312(a) (relating to sexual abuse of children) or a simulation of a prohibited sexual act for the purpose of photographing, videotaping, depicting on computer or filming involving the child.42 Pa.C.S.A. § 6302.
The Juvenile Act, in turn, defines "aggravated physical neglect" as, "Any omission in the care of a child which results in a life-threatening condition or seriously impairs the child's functioning." Id.
Upon a determination that aggravated circumstances exist, the Juvenile Act at 42 Pa.C.S.A. § 6341(c.1), states the following.
(c.1) Aggravated circumstances.— 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 disposition of dependent child).42 Pa.C.S.A. § 6341(c.1).
Regarding the disposition of a dependent child, section 6351(e), (f), (f.1), and (g) of the Juvenile Act provides the trial court with the criteria for its permanency plan for the subject child. Pursuant to those subsections of the Juvenile Act, the trial court is to determine the disposition that is best suited to the safety, protection and physical, mental and moral welfare of the child.
Section 6351(e) of the Juvenile Act provides in pertinent part:
(e) Permanency hearings.—
(1) [t]he court shall conduct a permanency hearing for the purpose of determining or reviewing the permanency plan of the child, the date by which the goal of permanency for the child might be achieved and whether placement continues to be best suited to the safety, protection and physical, mental and moral welfare of the child. In any permanency hearing held with respect to the child, the court shall consult with the child regarding the child's permanency plan in a manner appropriate to the child's age and maturity. . . .
(2) If the county agency or the child's attorney alleges the existence of aggravated circumstances and the court determines that the child has been adjudicated dependent, the court shall then 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 child's parent, guardian or custodian or to preserve and reunify the family shall be made or continue to be made and schedule a hearing as provided in paragraph (3).
42 Pa.C.S.A. § 6351(e) (emphasis added).* * *
Section 6351(f) of the Juvenile Act prescribes the pertinent inquiry for the reviewing court:
(f) Matters to be determined at permanency hearing.-
At each permanency hearing, a court shall determine all of the following:
(1) The continuing necessity for and appropriateness of the placement.
(2) The appropriateness, feasibility and extent of compliance with the permanency plan developed for the child.
(3) The extent of progress made toward alleviating the circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current placement goal for the child.
(5) The likely date by which the placement goal for the child might be achieved.
(5.1) Whether reasonable efforts were made to finalize the permanency plan in effect.
(6) Whether the child is safe.
(7) If the child has been placed outside the Commonwealth, whether the placement continues to be best suited to the safety, protection and physical, mental and moral welfare of the child.
* * *
(9) If the child has been in placement for at least 15 of the last 22 months or the court has determined that
aggravated circumstances exist and that reasonable efforts to prevent or eliminate the need to remove the child from the child's parent, guardian or custodian or to preserve and reunify the family need not be made or continue to be made, whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child unless:
(i) the child is being cared for by a relative best suited to the physical, mental and moral welfare of the child;
(ii) the county agency has documented a compelling reason for determining that filing a petition to terminate parental rights would not serve the needs and welfare of the child; or
(iii) the child's family has not been provided with necessary services to achieve the safe return to the child's parent, guardian or custodian within the time frames set forth in the permanency plan.
* * *
(f.1) Additional determination. — Based upon the determinations made under subsection (f) and all relevant evidence presented at the hearing, the court shall determine one of the following:
(1) If and when the child will be returned to the child's parent, guardian or custodian in cases where the return of the child is best suited to the safety, protection and physical, mental and moral welfare of the child.
(2) If and when the child will be placed for adoption, and the county agency will file for termination of parental rights in cases where return to the child's parent, guardian or custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(3) If and when the child will be placed with a legal custodian in cases where return to the child's parent,
guardian or custodian or being placed for adoption is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(4) If and when the child will be placed with a fit and willing relative in cases where return to the child's parent, guardian or custodian, being placed for adoption or being placed with a legal custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(5) If and when the child will be placed in another living arrangement intended to be permanent in nature which is approved by the court in cases where the county agency has documented a compelling reason that it would not be best suited to the safety, protection and physical, mental and moral welfare of the child to be returned to the child's parent, guardian or custodian, to be placed for adoption, to be placed with a legal custodian or to be placed with a fit and wiling relative.
42 Pa.C.S.A. § 6351 (emphasis added).
(f.2) Evidence. - Evidence of conduct by the parent that places the health, safety or welfare of the child at risk, including evidence of the use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk, shall be presented to the court by the county agency or any other party at any disposition or permanency hearing whether or not the conduct was the basis for the determination of dependency.
(g) Court order.— On the basis of the determination made under subsection (f.1), the court shall order the continuation, modification or termination of placement or other disposition which is best suited to the safety, protection and physical, mental and moral welfare of the child.
* * *
At the time of the decision in this matter, section 6303(b) of the Child Protective Services Law ("CPSL"), provided
(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.
(2) Fabricating, feigning or intentionally exaggerating or inducing a medical symptom or disease which results in a potentially harmful medial evaluation or treatment to the child through any recent act.
(3) Causing or substantially contributing to serious mental injury to a child through any act or failure to act or series of such acts or failures to act.
(4) Causing sexual abuse or exploitation of a child through any act or failure to act.
(5) Creating a reasonable likelihood of bodily injury to a child through any recent act or failure to act.
(6) Creating a likelihood of sexual abuse or exploitation of a child through any recent act or failure to act.
(7) Causing serious physical neglect of a child.
(8) Engaging in any of the following recent acts:
(i) Kicking, biting, throwing, burning, stabbing or cutting a child in a manner that endangers the child.
(ii) Unreasonably restraining or confining a child, based on consideration of the method, location or the duration of the restraint or confinement.
(iii) Forcefully shaking a child under one year of age.
(iv) Forcefully slapping or otherwise striking a child under one year of age.
(v) Interfering with the breathing of a child.
(vi) Causing a child to be present at a location while a violation of 18 Pa.C.S. § 7508.2 (relating to operation of
methamphetamine laboratory) is occurring, provided that the violation is being investigated by law enforcement.
(vii) Leaving a child unsupervised with an individual, other that the child's parent, who the actor knows or reasonably should have known:
(A) Is required to register as a Tier II or Tier III sexual offender under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual offenders),[] where the victim of the sexual offense was under 18 years of age when the crime was committed.
(B) Has been determined to be a sexually violent predator under 42 Pa.C.S. § 9799.12 (relating to definitions).
23 Pa.C.S.A. § 6303.
(9) Causing the death of the child through any act or failure to act.
The CPSL was amended, effective December 31, 2014, to broaden the term "child abuse," as explained in In Interest of: L.Z., 111 A.3d at 1168 n.3. The Supreme Court's decision in In Interest of: L.Z. involved an application of the statute as it existed prior to the effective date of the amendment.
The identity of the abuser(s) may be established by prima facie evidence that the abuse normally would not have occurred except by reason of acts or omissions of the caregivers. Section 6381 of the CPSL provides as follows:
6381. Evidence in court proceedings.
(d) Prima facie evidence of abuse.—Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the
child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child.23 Pa.C.S.A. § 6381(d).
This Court has stated:
[T]he focus of all dependency proceedings, including change of goal proceedings, must be on the safety, permanency, and well-being of the child. The best interests of the child take precedence over all other considerations, including the conduct and the rights of the parent. . . . [W]hile parental progress toward completion of a permanency plan is an important factor, it is not to be elevated to determinative status, to the exclusion of all other factors.In re A.K., 936 A.2d 528, 534 (Pa. Super. 2007).
In In Interest of: L.Z., supra , our Supreme Court considered the question of whether this Court, sitting en banc, improperly reversed the determination of the trial court that the child at issue suffered child abuse, and, through the application of the presumption of prima facie evidence of abuse set forth at 23 Pa.C.S.A. § 6381(d), that the abuse was perpetrated by his mother.
In that case, a twenty-month-old male infant was brought to an emergency room by his mother and his maternal aunt, to be treated for a deep cut nearly halfway around the base of his penis. The physicians at the hospital noted bruising to the child's cheeks, severe diaper rash, and a yeast infection on the front of his body. Both women cared for the child together. The physicians suspected child abuse, as the women's explanations for the injuries to the child were consistent with abuse, and the injuries were inconsistent with the women's explanations. The physicians also suspected that the injuries were non-accidental.
The physician who treated the child at the hospital testified at the dependency adjudication hearing as an expert in pediatric medicine. The doctor testified that the injuries (the penile laceration, cheek bruises and diaper rash/yeast infection) were "consistent with a pattern of suspected child abuse," and that the child was a "victim of child abuse." Id., 111 A.3d at 1168.
The trial court found that the child was a victim of child abuse as defined at 23 Pa.C.S.A. § 6303, and that the mother was the perpetrator of the abuse. The court transferred temporary legal custody of the child to the county agency, and placed the child in his maternal grandfather's physical custody, with his parents receiving supervised weekly visitation. The trial court also entered an order finding that aggravated circumstances existed because the child was "the victim of physical abuse resulting in serious bodily injury, sexual violence, or aggravated neglect by the parent; proven as to Mother." Id. at 1169. The trial court concluded that the county agency did not need to make further efforts to reunify the child with his mother.
The mother filed an appeal to this Court. Sitting en banc, the majority of the Court affirmed the dependency adjudication but vacated the abuse determination. The guardian ad litem for the child successfully sought relief in our Supreme Court. The Supreme Court concluded that the trial court properly found that the mother perpetrated the abuse on the child either by inflicting the injuries, or by failing to protect the child from his maternal aunt. Thus, the Supreme Court reversed this Court's en banc decision, and reinstated the trial court's order.
In reaching this conclusion, our Supreme Court stated as follows.
[C]hild abuse cases often involve a child presenting to a hospital with significant injuries that are entirely consistent with common types of child abuse and entirely inconsistent with the implausible explanations concocted by the parents and responsible persons to avoid allegations of child abuse. As noted, in cases where multiple caregivers are involved, the individuals frequently "circle the wagons" or alternatively point fingers at each other. As the children may be too young or fearful to describe the abuse, CYS agencies are left to prove their case with only the physical evidence of injuries that would not ordinarily be sustained but for the action of the parents or responsible persons and the implausible statements of the parents and responsible persons. Thus, while they can prove the existence of abuse rather easily, they have no ability to assign responsibility for the heinous act among the responsible adults. As Judge Tamilia observed in 1993, "the Legislature deemed it wise and necessary to establish a different evidentiary standard" by enacting Section 6381's(d)'s presumption to avoid this evidentiary conundrum and protect children from future abuse. [ In the Interest of J.R.W., 631 A.2d 1019, 1023 (Pa. Super. 1993)]. . . . We emphasize 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 whether they actually inflicted the injury or failed in their duty to protect the child.
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 for acts or omissions of the parent or responsible person is sufficient to establish that the parent or responsible person perpetrated that abuse unless the parent or responsible person rebuts the presumption. The parent or responsible person may present evidence demonstrating that they did not inflict the abuse, potentially by testifying that they gave responsibility for the child to another person about whom they had no reason to fear or perhaps that the injuries were accidental rather than abusive. The evaluation of the validity of the presumption would then rest with the trial court evaluating the credibility of the prima facie evidence presented by the CYS agency and the rebuttal of the parent or responsible person.Id. at 1185-1186 (footnote omitted).
Here, the trial court found clear and convincing evidence that DHS met its burden of proof with respect to each of its claims. The court reasoned as follows.
Mother's first issue on appeal argued that the [trial court erred] in adjudicating the Children dependent. Under 42 Pa.C.S.A. § 6302 of the definition of a "Dependent Child" paragraph (1)[,] a child will be adjudicated dependent if the trial court determines, by clear and convincing evidence, that child 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. 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. Clear and convincing evidence has been defined as the testimony that is so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction without hesitance of the truth of precise facts in issue. In re C.R.S., 696 [A].2d 840, 843 (Pa. Super. 1997). The purpose of the Juvenile Act is to preserve the unity of the family whenever possible. 42 Pa.C.S.A. § 6301(b)(1). Nonetheless a child will be adjudicated dependent when he is presently without parental care and the care is not immediately available. In re R.T., 405 Pa.Super. 156 (1991).
The Superior Court has defined proper parental care as the care which is geared to the particularized needs of the child and, at the minimum, is likely to prevent serious injury to the child. In re C.R.S., supra at 845. In general, a finding of abuse has been held sufficient [] under most circumstances to support an adjudication of dependency. In [I]nterest of J.M., 652 A.2d 877, 881 (Pa. Super. 1997).
The record established that Mother and her paramour resided with Child 1 and Child 2 (N.T. 4/8/15, pgs. 44, 45, 47) and both admitted having gonorrhea. (N.T. 4/8/15, pgs. 15, 17, 44, 45). It was also established that Child 1 was diagnose[d] with gonorrhea in her throat, rectum and vagina. (N.T. 4/8/15, pgs. 10, 14). At the hospital, Mother stated that Child 1 was probably infected after touching a contaminated rag. (N.T, 4/8/15, pgs. 45-46, 49-50). However, Dr. McColgan's testimony indicated that gonorrhea is typically transmitted by sexual intercourse (N.T. 4/8/15, pgs. 10-11) and the fact that Child 1 was infected with pharyngeal gonorrhea makes it very unlikely to have been non-sexually transmitted. (N.T. 4/8/15, pg. 23). Mother's contaminated rag version and other non-sexual methods of transmission were meticulously evaluated by Dr. McColgan (N.T. 4/8/15, at pg. 21) and ruled out. (N.T. 4/8/15, pgs. 12, 15-6, 32, 36). Dr. McColgan indicated that gonorrhea can live short periods of time on inanimate objects such as warm washed clothes [sic] and never longer than a day. (N.T. 4/8/15, pgs. 12, 38). Theoretically, a person could be infected after being in contact with infected objects but no documented cases of transmission happened in the way described. (N.T. 4/8/15, pg. 12). Furthermore, gonorrhea [] [] does not move through water and if it is in contact with soap and oxygen, it is typically killed. (N.T. 4/8/15, pg. 13). Consequently, it is very unlikely [for a child] to be infected when sharing a bath with others. (N.T. 4/8/15, pg. 13). Accordingly, Dr. McColgan's testimony concluded to a medical degree of certainty that Child 1's infection with gonorrhea was the product of sexual abuse. (N.T. 4/8/15, pg. 16). Such sexual abuse could only [have] happened to Child 1 at the moment in which she was without proper parental care. If Mother would have provided Child 1 with appropriate parental care, at the minimum, she would have prevented Child 1 from being sexually abused and infected with a sexually transmitted disease. Mother's care was not immediately available to protect Child 1. In re R.R., 455 Pa. Super. 1, 686 (1996). Accordingly, the trial court['s]
adjudication of Child 1 as a dependent child is appropriate under 42 Pa.C.S.A. § 6302(1). DHS met its burden with clear and convincing evidence.
As to Child 2's dependency adjudication, the Pennsylvania Juvenile Act is now significantly more sensitive to the facts that sexually abused children may be without proper parental care and control as required by the law. In re W.M., 842 A.2d 425, 429 (Pa. Super. 2004). The Juvenile Act takes into consideration the sense of vulnerability, fear and helplessness that siblings may feel when living in an environment where their sibling has been sexually abused. Id. The focus is not on whether the other sibling is actually at risk of sexual abuse but if the siblings fit the definition of lacking proper parental care. Id. It is within the trial court's discretion to determine that siblings of sexually abused children fit that definition, even if there is no evidence that the siblings will be sexually abused. Id. This major sensitivity to sexually abused children without proper parental care and control was also reflected in the Pennsylvania Juvenile Act amendments, effective, January 1, 1999. Such an amendment, added the definitions of "aggravated circumstances" and "sexual violence" to the Juvenile Act including siblings of children who have been sexually abused. In re of [sic] S.B., 833 A.2d 1116, 1122 (Pa. Super. 2003).
The record established that Child 2 is a vulnerable six-month year [sic] old infant. The trial court is concerned about leaving Child 2 in an environment where his sibling, Child 1, has been sexually abused and infected with a sexually transmitted disease. Under these circumstances, the threat of harm evidenced on the conduct of Mother as to Child 1 is sufficient for a finding of dependency as to Child 2. Mother's lack of parental care as to Child 1 places the health, safety, and welfare of Child 2 at risk. Accordingly, the trial court used it discretion to adjudicate Child 2 dependent under the definition of a dependent child in 42 Pa.C.S.A. § 6302(1).
Mother's second issue on appeal argues that the trial court erred in determining that Child 1 was a victim of child abuse. The Child Protective Services Law ("CPSL"), 23 Pa.C.S.A. §6303(b)(ii), establishes that any recent act or failure to act by a perpetrator which causes sexual abuse to a child under 18 years old constitutes child abuse. Section 6302(b)(iii) establishes that any recent act, failure to act or series of such
acts by a perpetrator which creates an imminent risk of sexual abuse of a child under 18 years of age constitutes child abuse. Sexual abuse under CPSL 23 [Pa.C.S.A.] § 6303(b) is defined as the employment, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage I sexually explicit conduct.
The record must also show clear and convincing evidence that the child suffered abuse as defined by the CPSL. 23 [Pa.C.S.A.] § 6303(a). In the Interest of L.Z., 111 A.3d 1164 (Pa. 2015). As to the identity of the perpetrator of child abuse, the trial court is required to find [the] perpetrator's identity by the prima facie standard. In [I]nterest of J.R.W., 631 A.2d 1019, 1023-1024 (Pa. Super. 1993). CPSL 23 [Pa.C.S.A.] § 6303(d) establishes that evidence that a child has suffered child abuse of a nature as would not ordinarily be sustained or exist except by reason of acts or omission 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. This rule created an evidentiary presumption against the child's caregiver at the time of the abuse. In re J.G., 984 A.2d 541, 547 (Pa. Super. 2009). Thus, proof of the nature of the child's harm, alone, is prima facie evidence of child abuse by anyone who is found to be responsible for the welfare of the child at the time of the alleged injuries. In re J.G., 984 A.2d 541, 547 (Pa. Super. 2009), In the Interest of L.Z[.] , 111 A.3d 1164 (Pa. 2015).
The record established that Child 1 was diagnosed with gonorrhea in her throat, rectum and vagina. (N.T. 4/8/15, pgs. 10, 14). Such a diagnos[is] raised serious concern's [sic] to St. Christopher's Hospital medical staff given that gonorrhea is typically transmitted by sexual contact. (N.T. 4/8/15, pgs. 9-11). Likewise, Child 1's diagnos[is raised grave concerns] as to [c]hild abuse. (N.T. 4/8/15, pg. 12). Expert testimony established that gonorrhea's [sic] bacteria does not travel through the human body and Child 1's diagnosis of gonorrhea in throat, rectum and vagina [revealed that] sexual contact [w]as the method of transmission. (N.T. 4/18/15, pgs. 11-12). In fact, the record established that it is very unlikely [for an individual to be] infected with pharyngeal gonorrhea through non-sexual contact. (N.T. 4/8/15, pg. 23). Other non-sexual ways were considered and evaluated by Dr. McColgan. (N.T. 4/8/15, pg. 21). Dr. [] McColgan's testimony ruled out other
possibilities of getting infected with gonorrhea. (N.T. 4/8/15, pgs. 12, 15-16, 21-23, 32, 36). Accordingly, Dr. McColgan concluded to a medical degree of certainty that Child 1's infection with gonorrhea was the product of sexual abuse. (N.T. 4/8/15 ,pg. 16). Dr. [] McColgan's testimony was very credible.
In relation to the identity of the abuser, the record established that Mother was one of Child's primary caregivers at the moment in which Child 1 was infected. The other was Mother's paramour who, like Mother, admitted being previously infected with gonorrhea. (N.T. 4/8/15, pgs. 15, 17, 44, 45). The record established that Child 1 was residing with Mother and Mother's paramour. (N.T. 4/8/15, pgs. 44-45). At St. Christopher's Hospital Mother stated a contaminated rag infected Child 1. (N.T. 4/8/15, pgs. 45-46, 49-50). As Pennsylvania law requires, parents have a duty not merely to refrain from harming their children, but also a duty to protect [c]hildren from others who may inflict harm. In the Interest of L.Z., 111 A.3d 1164 (Pa. 2015). The record clearly established that Mother failed to do so. The transmission of gonorrhea, a sexually transmitted disease, would not have occurred except by Mother's acts or omissions. As a result, the record established prima facie evidence of child abuse as to [] Mother, and the trial court did not hear competent evidence that rebutted such a presumption. Thus, DHS met its burden by clear and convincing evidence that Child 1 suffered sexual abuse at the time Child 1 was in the care of Mother. Mother was responsible for the welfare of Child 1.
Under 42 Pa.C.S.A. § 6341([c])(1), the trial court shall determine [whether aggravated circumstances] exist, if the county agency or child's attorney request a finding of the existence of aggravated circumstances and there is an adjudication of dependency. Under 42 Pa.C.S.A. § 6302(2), aggravated circumstances exist when 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. Sexual violence under 42 Pa.C.S.A. § 6302(2), is defined as rape, indecent contact as defined in 18 Pa.C.S.A. § 3101 (relating to definitions), incest or using, causing, permitting, persuading or coercing the child to engage in a prohibited sexual act as defined in 18 Pa.C.S.A. 6312(a) (relating to sexual abuse of children) or a simulation of a prohibited sexual act for the purpose of photographing, videotaping, depicting on computer or filming involving the child.
The record established that the trial court adjudicated Child 1 dependent and found the existence of aggravated circumstances [in response to] a motion filed February 18, 2015, (N.T. 4/8/15, pgs. 80-83) as to Child 1 with reasonable efforts to be made for reunification. On appeal Mother argues that the trial court abused its discretion in finding the existence of aggravated circumstances. Nonetheless, the record established that Child 1's infection with gonorrhea in her throat, rectum and vagina was the product of sexual abuse. (N.T.. 4/8/15, pgs. 10, 14, 16). Mother is the parent of Child 1. Aggravated circumstances can only be found against the parent of a child. The trial court used its discretion to order DHS to continue reasonable efforts to reunify [Child 1] with Mother. As a result, DHS has met its burden by clear and convincing evidence that aggravated circumstances existed due to the finding of abuse of Child 1 against Mother.Trial Court Opinion, 8/31/15, at 3-7.
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For the aforementioned reasons, the court finds that DHS met its statutory burden [of proving] by clear and convincing evidence [that] Child 1 and Child 2 [are dependent], [that a child abuse finding as to Child 1 should be entered] against Mother[, and that aggravated circumstances existed as to Child 1 against Mother.] []Accordingly, the order entered on April 8, 2015, should be affirmed.
As the Supreme Court explained in In Interest of: L.Z., multiple caretaker child abuse situations are rife with credibility determinations for the trial court, and call for the trial court to make credibility determinations as to the plausible and implausible explanations for the child's injuries. Id. 111 A.3d at 1186, n. 25. After a careful review of the record in this matter, we find the trial court's credibility findings are supported by competent evidence in the record. In re R.J.T., 9 A.3d 1179 (Pa. 2010). We find no abuse of the trial court's discretion. Accordingly, we affirm the orders of the trial court.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/25/2016