Opinion
J-S70013-12 No. 473 EDA 2012
03-25-2013
IN THE MATTER OF: L.Z. APPEAL OF: L.F., MOTHER
Appeal from the Order dated January 6, 2012,
Court of Common Pleas, Philadelphia County,
Family Court at No. CP-51-DP-0002428-2011
and FID: 51-FN-004522-2011
BEFORE: DONOHUE, OLSON and FITZGERALD, JJ. OPINION BY DONOHUE, J.:
Former Justice specially assigned to the Superior Court.
Appellant, L.F. ("Mother"), appeals from the trial court's January 6, 2012 order adjudicating L.Z. ("Child") dependent, finding aggravated circumstances, and finding Mother a perpetrator of child abuse. We affirm in part and vacate in part.
The trial court recited the following facts in its Pa.R.A.P. 1925(a) opinion:
On December 31, 2011, the Department of Human Services (hereinafter, 'DHS') received a Child Protective Services (hereinafter, 'CPS') report alleging that [Child] was brought to Abington Memorial Hospital with a deep cut to the base of his penis, a bruise on each of his cheeks, and severe diaper rash.Trial Court Opinion, 5/17/12, at 1-5 (record citations omitted).
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On January 6, 2012, there was an adjudicatory hearing held before Judge Butchart. Mother was present at his hearing and was represented by counsel. The Court heard testimony from DHS social worker, Kelly Brown [('Brown')]. [Brown] testified
that she met with Mother at the hospital on December 3, 2011. Mother told her that she had been residing with her paramour for two days prior to the incident and that she had not seen [Child] since that time. Mother told [Brown] that she and [Child] resided with [Rebecca Franklin ('Franklin'), Child's maternal aunt], and that they were the two primary caregivers for [Child]. In her testimony, [Brown] stated that Mother indicated that one of the green circular marks on [Child's] cheekbones was caused by a fall where he hit his face on a table. Mother was unable to provide any explanation as to the cause of the other mark. It was also noted that [Child] consistently resided with Mother. [Brown] testified that she had received another report that [Child] was unkempt, his feet were filthy, and his toes were dirty. It was also learned that while Mother and [Franklin] were transporting [Child] to the hospital they stopped at Dunkin Donuts. Mother was diagnosed as suffering from bipolar disorder. However, Mother's level of compliance with treatment was unknown.
Brown testified that there was a General Protective Services (hereinafter, 'GPS') report that was substantiated against Mother regarding lack of supervision for [Child] and [Child] suffering from a yeast infection. Mother was not indicated as a perpetrator of abuse either by commission or omission for the CPS report. [Franklin] was indicated as the perpetrator of abuse in the CPS report.
The Court also heard testimony from Dr. Deborah Silver [('Silver')], the Medical Director of the Pediatric Inpatient Unit at Abington Memorial Hospital. [Silver] was qualified as an expert in pediatric medicine. [Silver] received training in identifying and treating child abuse and during the course of her career had seen several cases of abuse. [Silver] testified that she believed that [Child] was the victim of child abuse. [Silver] testified that in cases where there is a suspicion of abuse pictures were taken as a matter of ordinary
course. The pictures provided to the Court indicated a bruise on [Child's] left cheekbone, a bruise on his right cheek, a penis laceration in his genital area, and a significant diaper rash. [Silver] testified that [Child's] penile laceration was an 'extremely uncommon presentation' for a child of his age. [Silver] also indicated in her professional opinion that the injury caused [Child] severe pain. She also stated that the injury appeared to be non-accidental in nature. The explanation for the injury provided by [Franklin] was that [Child] pulled firmly on his foreskin and put traction on his penis causing it to bleed. [Silver] opined that this explanation did not seem plausible because [Child] was not strong enough to cause such an injury to himself.
[Silver] described [Child's] bruises on his cheeks in detail. [Child's] bruises were very dark and were located on opposite sides of his face. He had a large bruise in the meat of his right cheek and the buckle area as well as his left cheekbone. Mother stated that the bruises were caused when [Child] fell on top of a T.V. [sic] table. [Silver] testified that in her professional opinion the explanation provided was not consistent with the injuries. [Silver] opined that the injury to the right cheek was caused by someone grabbing [Child's] face and 'squeezing it between their fingers and planting their thumb in the cheek.' [Silver] stated that [Child] could not have been very comfortable and that this was a common abuse injury that she saw. [Silver] testified that although she could not provide an exact date of when [Child] suffered the bruises, she did state that they were less than a week and more than a day old.
Mother reported that [Child's] diaper rash was caused by diarrhea. [Silver] reported that the location of [Child's] diaper rash indicated that he had been in urine for extended periods of time. Mother's explanation for the rash was not compatible with the location of the rash. [Child] was also treated for a yeast infection. [Silver] testified that [Child] was very dirty. [Child] had dirt from his knees to his
toes and his toenails were encrusted with black dirt. [Silver] diagnosed [Child's] injuries as 'non-accidental trauma.'
As a result of the foregoing, DHS filed a petition seeking to have Child adjudicated dependent. DHS also filed a petition for a finding of aggravated circumstances as defined in 42 Pa.C.S.A. § 6302. At the conclusion of the January 2, 2012 hearing, the court adjudicated Child dependent and granted the petition for a finding of aggravated circumstances. As a result of the finding of aggravated circumstances, the trial court ordered that DHS need not make any further efforts at reunifying Mother and Child. The trial court also made a finding that Mother was a perpetrator of abuse pursuant to 23 Pa.C.S.A. §§ 6303(b) and 6381(d). Mother filed a timely notice of appeal on February 6, 2012, in which she raises three issues:
See Pa.R.A.P. 905(a)(2) and Pa.R.A.P. 1925(b). The thirtieth day in the appeal period fell on Sunday, February 5, 2012. The Februay 6, 2012 notice of appeal is therefore timely.
1. Did the trial court err when it found that Mother was responsible for child abuse under 23 Pa.C.S.A. § 6303?Mother's Brief at 3 (reordered for clarity of analysis).
2. Did the trial court err in finding that aggravated circumstances existed under 42 Pa.C.S.A. § 6303 [sic]?
3. Did the trial court err in finding that DHS need not make reasonable efforts to reunify?
We review the trial court's decisions in a dependency action as follows:
[T]he standard this Court employs is broad. We accept the trial court's factual findings that are supported by the record, and defer to the court's credibility determinations. We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. Relying upon his unique posture, we will not overrule [the trial court's] findings if they are supported by competent evidence.R.P. v. L.P. , 957 A.2d 1205, 1211 (Pa. Super. 2008).
The Pennsylvania Juvenile Act ("the Act") defines a dependent child as one who is "without proper care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals." 42 Pa.C.S.A. § 6302.
In order to support an adjudication of dependency, the Juvenile Act does not require proof that the parent has committed or condoned abuse, but merely evidence that the child is without proper parental care. In determining whether there exists proper care, acts and omissions of a parent must weigh equally since parental duty includes protection of a child from the harm others may inflict.R.P. , 957 A.2d at 1211-12 (citations omitted). The trial court "is empowered by 42 Pa.C.S.A. § 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. Id. at 1211. Thus, the trial court may determine that a child is dependent pursuant to the Act whether or not the record demonstrates that a parent is the perpetrator of the abuse. A parent's failure to protect the child is sufficient to support a finding of dependency.
Mother concedes that Child is dependent within the meaning of the Act. N.T., 1/6/12, at 25; Mother's Brief at 8. In her first issue, Mother challenges the trial court's finding that she is a perpetrator of abuse pursuant to the Child Protective Services Law ("the Law"), 23 Pa.C.S.A. §§ 6303(b) and 6381(d). In order to find a person a perpetrator of abuse pursuant to the Law, the record must reflect clear and convincing evidence that the child suffered abuse, as defined in § 6303(b). In re Read , 693 A.2d 607, 610 (Pa. Super. 1997), appeal denied, 555 Pa. 708, 723 A.2d 1025 (1998). Section 6381(d) creates a presumption that the person responsible for a child's care at the time of the abuse is the perpetrator if the abuse would not ordinarily happen other than by the acts or omissions of the caretaker. Id.
The trial court's finding of abuse is reviewable on appeal, even if the parent does not dispute the underlying adjudication of dependency. In re J.R.W. , 631 A.2d 1019, 1021 (Pa. Super. 1993).
The trial court cited several of § 6303's subsections in support of its finding of abuse:
(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.23 Pa.C.S.A. § 6303(b)(1)(i), (iii), (iv); See Trial Court Opinion, 5/17/12, at 7. "Serious Physical Injury", as used in § 6303(b)(1)(i), is injury that "causes a child severe pain" or "significantly impairs a child's physical functioning, either temporarily or permanently." 23 Pa.C.S.A. § 6303(a).
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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 [...] 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.
The record reflects that Child suffered a deep laceration to his penis, bruising on his cheeks, and a diaper rash and yeast infection. Of these, Silver testified that the laceration would have caused Child severe pain and that it was clearly non-accidental and required surgical repair. N.T., 1/6/12, at 36-38. Silver stopped short of testifying that the bruises would have caused Child severe pain, stating only that they "couldn't have been very comfortable." Id. at 42. The diaper rash and yeast infection cleared up quickly with treatment. Id. at 23, 42-43. Child's legs and feet were very dirty, id. at 45-46, but nothing in the record indicates that this condition resulted in any injury to child. The expert found no evidence of poor hygiene other than Child's dirty legs and feet. Id. at 46.
In summary, the laceration on Child's penis obviously constitutes a serious physical injury, as it is a non-accidental injury that resulted in severe pain. None of Child's remaining injuries constitutes abuse for purposes of § 6303(b). Based on the foregoing, we will affirm the trial court's finding that Child suffered abuse because the laceration on his penis meets the definition of "serious physical injury" set forth in § 6303(a).
Next we must determine whether or not the trial court erred in finding that Mother was the perpetrator of that abuse. Pursuant to 23 Pa.C.S.A. § 6381(d), "[e]vidence 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 [...] shall be prima facie evidence of child abuse by the parent[.]" 23 Pa.C.S.A. § 6381(d). In other words, "[o]nce abuse has been established, a finding that the caretakers were the abusers need only be shown by prima facie evidence [...] because the likelihood that the abuse occurred at the hands of someone other than a caretaker is small." Read , 693 A.2d at 610. Section 6381(d) "creates a rule that is procedural in nature, particularly an evidentiary presumption, as opposed to a rule of substantive law." In re J.G. , 984 A.2d 541, 547 (Pa. Super. 2009) (en banc), appeal denied, 605 Pa. 715, 991 A.2d 313 (2010).
Section 6381(d) does not, however, permit the trial court to designate a parent a perpetrator of abuse where the record fails to establish that the child was in the parent's care at the time of the injury. Where the record is unclear as to which parent or person was responsible for the child at the time of the abuse, however, "the viability of the presumption in [§ 6381(d)] is questionable." Id.:
Given the facts of a particular case, it may be impossible for CYF or the trial court to determine which perpetrators(s) [sic] committed the abuse. This is especially true where, as here, the evidence is inconclusive as to who had control or supervision over the child at the time of the abuse. In these conditions, the presumption in [§ 6381(d)] is inherently self-rebutting, and applying it to one or both persons alleged to be the perpetrators would be arbitrary and capricious[.]"Id. at 548; see also C.E. v. Dep't of Pub. Welfare , 917 A.2d 348, 356-57 (Pa. Commw. 2007) (stating § 6381(d) presumption does not apply where the alleged perpetrator was one of several adults who was responsible for the child for part of the day on which the injury occurred).
The record establishes that Mother and Franklin, Child's maternal aunt, were Child's primary caretakers. N.T., 1/6/12, at 9. Mother and Child lived with Franklin. Id. Mother had not seen child for two days prior to Child's hospital visit, and she left Child in Franklin's care during that time. Id. at 21. The laceration on Child's penis was less than 24 hours old as of the time of his hospital examination. Id. at 45, 48. Franklin, and not Mother, was indicated as the perpetrator of abuse in the DHS report. Id. at 19. The DHS report did not list Mother as a perpetrator of abuse, by either commission or omission. Id. Brown, the DHS caseworker, testified as follows:
Q. So, is it fair enough to say that DHS doesn't believe that [Mother] was involved in the abuse of [Child]?N.T., 1/6/12, at 19.
A. That's correct.
The trial court analyzed the issue as follows:
[Child] suffered physical neglect and lacked adequate supervision due to the fact that he suffered from an untreated yeast infection and diaper rash from being in urine for extended periods of time. The Court heard testimony that [Child] consistently resided with Mother. The Court heard testimony that the very deep penile laceration was a 'non-accidental' trauma. The Court also heard testimony that the bruises on [Child's] cheeks were inflicted injuries. [...] The bruises looked as if they had been there anywhere from one to six days. Mother claimed not to have seen [Child] in at least two days, and provided an explanation that was not consistent with the injuries. Based on those facts, the Court determined that Mother was the perpetrator of the abuse because [Child] was in her care. Whether or not she inflicted the injuries directly was irrelevant.Trial Court Opinion, 5/17/12, at 7-8.
The final sentence in this passage, that Mother's direct involvement is irrelevant, is not entirely correct. As we explained above, a parent need not be directly responsible for abuse in order for a child to be found dependent pursuant to § 6302 of Juvenile Act. See R.P. , 957 A.2d at 1211-12 ("In determining whether there exists proper care, acts and omissions of a parent must weigh equally since parental duty includes protection of a child from the harm others may inflict."). The trial court's assertion is correct insofar as a finding of dependency under the Act is concerned, but Mother does not dispute that finding.
Mother's argument is that the trial court erred in finding that she was a perpetrator of abuse pursuant to § 6303(b) and § 6381(d) of the Child Protective Services Law. Binding precedent establishes that the presumption created in § 6381(d) of the Law applies if it is clear that the caretaker in question was responsible for the supervision and control of the child at the time of the abuse. J.G. , 984 A.2d at 548. The instant record, including the testimony of the DHS caseworker, conclusively establishes that Franklin, and not Mother, was responsible for Child's supervision when he sustained the laceration to his penis. The laceration was less than one day old at the time of Child's hospital visit, and Child had been in Franklin's care for two days. Mother has thoroughly rebutted the § 6381(d) presumption in this case concerning the laceration. Since the laceration is the only one of Child's injuries that meets § 6303's criteria for child abuse, we conclude that the trial court erred in finding that Mother is a perpetrator of abuse pursuant to the Law.
Mother's remaining two arguments challenge the trial court's finding of aggravated circumstances pursuant to the Act and the order permitting DHS to cease efforts at achieving reunification. She did not include these two issues in her Pa.R.A.P. 1925(b) concise statement:
A finding of aggravated circumstances carries significant consequences, in that it permits the trial court to order a cessation of reunification efforts:
[W]e note that a trial court's finding of aggravated circumstances lends strong support for a change in a child's permanency goal to adoption. Pennsylvania's adoption and juvenile acts permit a court to consider certain aggravated circumstances which militate against returning the dependent child to his or her parent. Our legislation favors more expeditious adoptions; thus, when aggravated circumstances exist and the court determines reunification efforts need not be continued, OCY may proceed directly to change the child's permanency plan goal to adoption and terminate parental rights.
1. The trial court erred when it found that the evidence was sufficient to adjudicate [Child] dependent based on child abuse.Mother's Pa.R.A.P. 1925(b) statement, at ¶¶ 1-4.
2. The trial court erred when it found that the evidence was sufficient to remove [Child] from Mother's custody.
3. The trial court erred when it limited Mother's visitation.
4. The trial court erred when it found that [Child] was a victim of Child abuse as
defined at 23 Pa.C.S.A. § 6303, in that as to Mother.
Mother changed counsel in between the filing of her 1925(b) statement and her appellate brief. The record does not reflect the reason for this change. In any event, new counsel did not attempt to obtain permission to file an amended concise statement. At the hearing, Mother objected without elaboration to the trial court's finding of aggravated circumstances and the order permitting cessation of reunification efforts. N.T., 1/6/12, at 76-77.
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Ordinarily, the failure to include an issue in a concise statement results in waiver. Pa.R.A.P. 1925(b)(4)(vii); In re M.W. , 842 A.2d 425, 431 (Pa. Super. 2004). On the facts before us, however, our conclusion that the trial court erred in finding Mother to be a perpetrator of abuse pursuant to the Law leads inexorably to a conclusion that the court also erred in finding aggravated circumstances pursuant to the Act. The Act's definition of aggravated circumstances includes circumstances where "[t]he child [...] of the parent has been the victim of physical abuse resulting in serious bodily injury [...] or aggravated physical neglect by the parent." 42 Pa.C.S.A. § 6302. The Law and the Act employ identical definitions of "serious bodily injury." "Aggravated Physical Neglect" under the Act is "[a]ny omission in the care of a child which results in a life-threatening condition or seriously impairs the child's functioning." Id.
We believe it is plainly evident from our analysis of Child's injury under the Law that Child did not suffer serious bodily injury or aggravated physical neglect. The laceration on Child's penis was sufficient to constitute abuse under the Law because it caused Child "severe pain." See 23 Pa.C.S.A. § 6303(b)(1)(i). "Severe pain," without more, does not give rise to aggravated circumstances as defined in § 6302 of the Act. Mother's failure to include the aggravated circumstances issue in her Pa.R.A.P. 1925(b) statement could have been fatal to our review of the issue, but given the clarity of the error in this case, and the potential irreversible consequences, see note 3 supra , we will not find waiver here.
To summarize, we affirm the trial court's order insofar as it declared Child dependent. We vacate the trial court's finding that Mother is a perpetrator of abuse, we vacate the trial court's finding of aggravated circumstances under the Act, and we vacate the order permitting cessation of reunification efforts.
Order affirmed in part and vacated in part. Jurisdiction relinquished.
Olson, J. files a Concurring and Dissenting Opinion.
In re A.H. , 763 A.2d 873, 878 (Pa. Super. 2000). Thus, any subsequent efforts to reunify the family become a matter of agency discretion rather than a matter of constitutional Due Process. See Santosky v. Kramer , 455 U.S. 745, 753 (1982)("Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life."). Furthermore, as potentially implicated in this case, persons facing termination of their parental rights have no means of seeking collateral review of counsel's effectiveness in the representation culminating in termination of parental rights.