In re C.B.

Full title: IN THE INTEREST OF: C.B. AND K.B., MINORS APPEAL OF: A.M., MOTHER

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Dec 8, 2015

No. J-S69002-15 (Pa. Super. Ct. Dec. 8, 2015)

Opinion

J-S69002-15 No. 1123 EDA 2015

12-08-2015

IN THE INTEREST OF: C.B. AND K.B., MINORS APPEAL OF: A.M., MOTHER

MEMORANDUM BY GANTMAN, P.J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Orders March 17, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0002176-2014; CP-51-DP-0002177-2014 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J. MEMORANDUM BY GANTMAN, P.J.:

Appellant, A.M. ("Mother"), appeals from the orders entered in the Philadelphia County Court of Common Pleas, which found aggravated circumstances and reasonable efforts were no longer required of the Department of Human Services ("DHS") to reunify Mother with C.B. and K.B. ("Children"). We affirm.

The trial court's opinion sets forth the relevant facts and procedural history of this case as follows:

On September 11, 2014, DHS received a Child Protective Services ("CPS") report alleging that [C.B.] had swelling of her whole face, both lips and a large lump on her forehead. [K.B.] had a bruise on the right side of his face. The report also alleged that Children reside in a shelter with their Mother at Mercy Hospice Recovery for [Women], and that Mother had substance abuse issues. The police were called to Mercy Hospice due to [C.B.]'s injuries. Mother stated that she put both Children in bed at approximately 7:30 P.M. Later that evening, Mother went back upstairs to check on the Children and returned downstairs with [C.B.] in her arms, screaming at a

resident. Another resident at the recovery home came downstairs with [K.B.]. [K.B.]'s face was swollen on the right side. Mother stated that the Children must be allergic to something. Paramedics and the police were called. Mother and Children were transported to Children's Hospital of Philadelphia ("CHOP"). The conditions of the Children did not coincide with Mother's explanation. As a result CHOP's medical staff suspected that this was a case of physical child abuse. Children were then admitted into the hospital. The paramedics touched [K.B.]'s face and he began to cry. On September 12, 2014, DHS received a supplement report to the September 11, 2014 report alleging that [K.B.] had a broken femur. Mother stated that the abuse was at the hands of an unknown perpetrator. On the same day, DHS went to CHOP and the Children's father was present with a CHOP social worker. The CHOP social worker and doctor confirmed that the injuries to [C.B.] and [K.B.] were non-accidental injuries. Children's father stated that he was concerned that someone from the shelter had hurt his Children and he did not believe that Mother was the perpetrator of the abuse. DHS went to father's home and completed a successful home assessment. DHS learned that father resided with the Children's paternal grandmother. Mother agreed to ask father to obtain alternate housing for himself in order for the Children to reside in grandmother's home. DHS was unable to clear grandmother's house due to her husband's criminal history. The home was appropriate, but there was some concerns that father would not comply with a safety plan because he did not believe that Mother was the perpetrator of abuse. DHS visited Mother at a shelter. Mother stated that when she left the room, someone must have come inside and hurt her Children. Mother also stated that she had a baby monitor. However, she did not hear the Children crying, and when she returned to the room the Children were injured.

On September 15, 2014, DHS obtained an Order for Protective Custody ("OPC") for Children. On September 17, 2014, at a Shelter Care hearing, the trial court lifted the OPC and ordered the temporary commitment to stand. The adjudicatory hearing was scheduled for September 24, 2014. On September 24, 2014, the trial court

deferred Children's adjudication hearing for December 9, 2014. On December 9, 2014, the trial court granted a continuance request and again deferred the adjudicatory hearing for March 17, 2015. On March 17, 2015, the parties agreed to adjudicate the hearing, DHS requested a finding of aggravated circumstances and child abuse also. The trial court accepted [the] parties' agreement, and also found aggravated circumstances and child abuse in regard to Mother. The Children were placed in foster care.... Counsel for Mother filed a notice of appeal on [April 14, 2015,] only as to the finding of child abuse and aggravated circumstances against Mother.

(Trial Court Opinion, filed July 10, 2015, at 1-2) (citations to record omitted). On April 14, 2015, Mother also timely filed a contemporaneous statement of errors complained on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).¹

1 We observe that it was improper for Mother to file a single notice of appeal and statement of errors complained on appeal from separate orders for C.B. and K.B., which found the presence of aggravated circumstances and that reasonable efforts were unnecessary. See Pa.R.A.P. 341 (providing that where more than one order resolves issues arising on more than one docket, or relating to more than one judgment, separate notices of appeal are required). Nevertheless, we decline to reject Mother's appeal on this basis.

Mother raises the following issues for our review:

WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN MAKING A FINDING OF CHILD ABUSE REGARDING [MOTHER]?

WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN MAKING A FINDING THAT [MOTHER] WAS A PERPETRATOR BY OMISSION?

WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN MAKING A FINDING OF AGGRAVATED CIRCUMSTANCES REGARDING [MOTHER]?

WHETHER THE TRIAL COURT COMMITTED REVERSIBLE

ERROR IN MAKING A FINDING OF NO REASONABLE EFFORTS REQUIRED TO REUNITE [MOTHER] WITH [HER CHILDREN]?

(Mother's Brief at 4).

In Mother's issues combined, she argues the findings on aggravated circumstances and reasonable efforts were in error. Mother admits the record demonstrated clear and convincing evidence that Children suffered abuse, but she contends the error lies in the court's finding that she had abused Children by omission where the evidence was insufficient to support the finding. Mother alleges she presented rebuttable evidence to refute the presumption that she abused Children. Mother avers the court imposed an impossible standard that required her to protect Children from unknown harms at all times. Additionally, Mother insists that founded cases of child abuse or neglect do not necessarily constitute cases of aggravated circumstances. Mother contends the court based its finding of aggravated circumstances solely on the grounds that Children suffered abuse and Mother was the primary caregiver. Mother maintains the court abused its discretion in finding the presence of aggravated circumstances, which permitted the court to terminate any reasonable efforts necessary to reunify Mother with Children. Mother concludes this Court should reverse the court's orders regarding aggravated circumstances and reasonable efforts. We disagree.

The applicable scope and standard of review for dependency cases is as follows:

[T]he standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court's inference or conclusions of law. Accordingly, we review for an abuse of discretion.

In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (quoting In re R.J.T., 608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)).

The previous version of the Child Protective Services Law² defined "child abuse," in relevant part, as follows:

2 Section 6303 was amended, effective December 31, 2014, and now includes a revised definition of "child abuse." See 23 Pa.C.S.A § 6303(b.1). Because Children's injuries occurred prior to the effective date of the amendment, we apply the previous version of Section 6303.

§ 6303. Definitions

(b) Child abuse.—

(1) The term "child abuse" shall mean any of the following:

(i) Any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age.


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(iii) Any recent act, failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age.

(iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of

supervision or the failure to provide essentials of life, including adequate medical care, which endangers a child's life or development or impairs the child's functioning.

23 Pa.C.S.A. § 6303(b)(1)(i), (iii)-(iv).

The existence of "child abuse" pursuant to Section 6303(b)(1) must be proven by clear and convincing evidence. In re L.Z., ___ Pa. ___, 111 A.3d 1164, 1174 (2015). Under certain circumstance, however, the identity of an abuser may be established by prima facie evidence. Id. See also In re L.V., ___A.3d ___, 2015 PA Super 234 (filed November 12, 2015).

[E]vidence that a child suffered injury that would not ordinarily be sustained but for the acts or omissions of the parent or responsible person is sufficient to establish that the parent or responsible person perpetrated that abuse unless the parent or responsible person rebuts the 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.

In re L.Z., supra at ___, 111 A.3d at 1185 (internal footnote omitted).

Significantly, courts do not require a parent's physical presence during the injury for "abuse" to occur. Id. at ___, 111 A.3d at 1184. To the contrary, our Supreme Court has stated, "parents are always responsible for their children, absent extenuating circumstances...." Id. Moreover, "[t]he inclusion of 'omissions' encompasses situations where the parent or responsible person is not present at the time of the injury but is nonetheless responsible due to his or her failure to provide protection for the child." Id.

Furthermore, the Juvenile Act provides, in relevant part:

§ 6302. Definitions

The following words and phrases when used in this chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:

"Aggravated circumstances." Any of the following circumstances:

* * *

(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.


* * *

"Aggravated physical neglect." Any omission in the care of a child which results in a life-threatening condition or seriously impairs the child's functioning.

42 Pa.C.S.A. § 6302. "The court need not find the existence of aggravated circumstances as to a particular party; rather it merely must determine whether [those circumstances] are present in the case." In re R.P., 957 A.2d 1205, 1219 (Pa.Super. 2008). "If the court finds from clear and convincing evidence that aggravated circumstances exist, the court shall determine whether...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...." 42 Pa.C.S.A. § 6341(c.1). Nevertheless, a court may end reasonable efforts at its discretion. In re A.H., 763 A.2d 873, 878 (Pa.Super. 2000).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Joseph Fernandes, we conclude Mother's issues merit no relief. The trial court's opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion at 4-8) (finding: (1) and (3) at time of injuries, C.B. was one year old, and K.B. was five months old; C.B. sustained several injuries, including bruising to her face, forehead, right ear, and back waistline, swelling and abrasion of her upper lip, and blood in her nose as result of trauma; testimony of Dr. Parking-Joseph, Children's treating physician, established that C.B.'s injuries caused her severe pain and restricted her ability to eat and speak; K.B. sustained several injuries, including bruising down left side of his face and ear, and skeletal fracture of his right femur; doctors found additional fracture to K.B.'s right tibia, which they believed healed with no treatment; Dr. Parking-Joseph's testimony established that K.B. was in severe pain during treatment and will likely have some residual pain in future as result of skeletal fractures; Children's treating physicians determined that injuries to Children resulted from non-accidental trauma; other possible causes of Children's injuries were ruled out, such as medical deficiencies, allergic reaction, or self-infliction of their own injuries; Dr. Parking-Joseph's testimony established that K.B.'s skeletal fractures were result of shaking, flailing, pulling, or yanking at his extremities, and Children did not possess strength necessary to cause such injuries to themselves or each other; Mother was primary caregiver when injuries occurred; Mother admitted she left Children alone in bedroom, and used monitor that was out of range; Mother was gone for 38 minutes while Children were alone in room; Mother was unable to explain her whereabouts during 38 minutes; Mother claimed she returned to room and noticed bruises on C.B.'s face and assumed it was allergic reaction; no one else was responsible for Children's injuries and Mother was exclusive caregiver when injuries occurred; (2) Dr. Parking-Joseph's testimony established Children were in severe pain during medical examination; both Children required Tylenol and Motrin to palliate their pain; Children were victims of physical abuse that resulted in injuries which caused severe pain and temporarily impaired Children's physical functions; (4) existence of aggravated circumstances; record established Mother was primary caregiver for Children; Mother admitted leaving Children alone and using out-of-range monitor; without Mother's omission in her duty to care for Children, Children's injuries would not have occurred; Mother's lack of awareness of her omission and conduct in caring for Children demonstrated that returning Children to Mother's care would put Children's physical integrity at risk). Accordingly, we affirm on the basis of the trial court's opinion.

Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/8/2015

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