In re B.W.

IN THE INTEREST OF: B.W., A MINOR APPEAL OF: T.W.A., MOTHER IN THE INTEREST OF: E.A., A MINOR APPEAL OF: T.W.A., MOTHER

Nos. 545 MDA 2022, 546 MDA 2022

No. J-A23010-22

Superior Court of Pennsylvania

December 28, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered March 10, 2022 In the Court of Common Pleas of York County Juvenile Division at No(s) CP-67-DP-0000191-2020, CP-67-DP-0000188-2020

BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

McCAFFERY, J.

In this dependency matter, T.W.A. (Mother) appeals from the order entered March 10, 2022, in the York County Court of Common Pleas, finding her to be a perpetrator of child abuse^[1] as to two of her children, B.W. (born in May of 2014), and E.A. (El.A.,^[2] born in August of 2019). Mother avers the trial court: (1) lacked jurisdiction to conduct the finding of abuse hearing, as she and Father had pending appeals from the goal change orders; and (2) erred in finding B.W.'s interview statements credible, where the court had not watched the video of the interview and another sibling, Ed.A., denied there was any abuse. We affirm.

I. Introduction

In addition to B.W. and El.A., Mother and Father (collectively, the Parents) are the parents of Ed.A. (born in June of 2015), R.A. (June of 2018), and A.A. (June of 2021) (collectively, the Children). Both Parents have several appeals currently pending before this Court, as follows.

First, we summarize that on January 13, 2022, the trial court changed the permanency goals for all five Children from reunification to adoption. The Parents' appeals therefrom are pending before a different panel of this Court at Dockets 201 through 205 MDA 2022 (Father's appeals) and 295 through 299 MDA 2022 (Mother's appeals). As of this writing, those appeals are stayed pending the resolution of the Parents' other appeals.

Meanwhile, on March 10, 2022, the trial court entered the underlying order, finding Mother was a perpetrator of abuse as to B.W. and El.A. This memorandum addresses that appeal. The trial court also made a finding of abuse against Father. However, he did not timely appeal, but instead filed petitions to reinstate his appeal rights nunc pro tunc. The trial court entered an order denying those petitions, and Father's appeal therefrom is currently pending before this same panel at Dockets 782 and 783 MDA 2022. We will dispose of his appeal separately.

Finally, on April 18, 2022, the trial court involuntarily terminated both Parents' rights to all five Children. Father's appeals therefrom are pending before this panel at Dockets 683 through 687 MDA 2022. Mother's appeals are pending at Dockets 755 through 759 MDA 2022. Counsel for El.A. and R.A. have also appealed, at, respectively, Dockets 740 and 741 MDA 2022.

II. Facts & Procedural History

In August of 2020, York County Offices of Children, Youth, and Families (CYF) received a referral, which alleged Parents were using heroin and not properly supervising the four older children, B.W., Ed.A., R.A., and El.A., who were then six, five, two, and one year old. These children were adjudicated dependent on September 16, 2020. The trial court established the Children's permanency goal as return to parent, and conducted ongoing shelter care, status review, and permanency review hearings. A.A. was born in June of 2021 and was adjudicated dependent the following month, on July 12, 2021.

Meanwhile, on December 29, 2020, CYF received a Child Protective Services (CPS) referral as to the alleged physical abuse of B.W., then approximately six years old, by Mother and Father. N.T., 3/10/22, at 23. At the time, B.W. was residing in a foster home. Id. at 38-39. CYF conducted a "minimal facts" interview,^[3] at which B.W. disclosed physical abuse by Mother and Father. Id. at 26.

On January 26, 2021, Lauren Carter, a forensic interviewer with the York County Children's Advocacy Center (CAC), conducted a forensic interview of B.W. See N.T., 3/10/22, at 10, 26. CYF Caseworker Marshall, as well as law enforcement, observed this forensic interview.^[4] N.T., 3/10/22, at 27. B.W. disclosed he, as well as his siblings, were physically abused by both Parents. His statements led to a referral alleging the Parents' abuse of El.A.

At a status review hearing on November 10, 2021, the Parents averred the "the criminal investigation [of their alleged abuse] has been ongoing for quite some time[, but] has gone nowhere[.]" N.T., 11/10/21, at 8-9. The trial court directed CYF to conduct an independent investigation and to provide a finding of "indicated" or "unfounded" by the next hearing in three months' time. Id. at 8-9; Status Review Order, 11/10/21.

At the next permanency review hearing, on January 11, 2022, CYF reported it found both Mother and Father indicated as perpetrators of physical abuse against both El.A. and B.W., for causing bodily injury. N.T., 1/11/22, at 7. With respect to El.A. only, both Parents were also indicated for striking a child under the age of one. Id. at 6-7. On that same day, the trial court changed all the Children's permanency goals to adoption with the concurrent goals noted as return to parent or guardian.^[5]

Next, on March 10, 2022, the trial court conducted a finding of abuse hearing. Mother and Father were present and represented by counsel, but did not testify. The Children were excused from attending the hearing, but were represented by a guardian ad litem and separate legal counsel. N.T., 3/10/22, at 4. The CAC forensic interviewer, Ms. Carter, testified: testified: "[B.W.] disclosed being beat - his words - that [El.A.] was slapped with a belt," Father beat R.A and El.A., Mother slapped B.W., and B.W. observed potential drug use. Id. at 12. B.W. further reported El.A. suffered injuries, including bleeding from the mouth. Id. at 13, 17.

CYF Caseworker Marshall, who observed the interview, testified:

[B.W.] disclose[d] that [he] and his siblings were being punished with . . . a black belt with little spikes on it. He reported that it was hurtful. [B.W.] actually stated it hurt more than a gun. He stated . . . the spikes were sharp and caused him to bleed. He stated he would cry and . . . and he was hit over and over. The very red marks like - were left like it was bleeding, but it wasn't. And he stated that both parents would hit him. . . .

N.T., 3/10/22, at 28-29.

CYF additionally entered into evidence the forensic interview summary^[6]and a DVD video of the forensic interview. Ms. Marshall sought, but did not receive, medical records that might show physical injury to B.W.^[7] See N.T., 3/10/22, at 31; Trial Ct. Op., 6/6/22, at 10. She also "attempted multiple times" to schedule an interview with Mother and Father, but was unsuccessful. N.T., 3/10/22, at 31-32.

With respect to El.A., Ms. Marshall testified that B.W. stated Mother and Father "sometimes . . . slapped [El.A.], so there was blood under his tongue, and that [El.A.] would cry a lot and neighbors would hear." N.T., 3/10/22, at 29. As stated above, B.W.'s statements led to a referral as to El.A. Id. at 32. "An investigation revealed [El.A. was] taken to the York Hospital emergency room for bleeding from the mouth in August 2019 when he was less than a month old." Trial Ct. Op., 3/4/22, at 3-4.

Finally, relevant to Mother's arguments in this appeal, we note that a forensic interview of another sibling, Ed.A. was conducted on the same day, January 26, 2021. This interview did not reveal any physical abuse against Ed.A., although there was "indication that physical abuse was occurring in the home[.]" N.T., 3/10/22, at 15. Neither this interview nor the ensuing summary report was presented as evidence at the finding of abuse hearing.

At the conclusion of the hearing, the trial court rendered a finding that both Mother and Father were perpetrators of abuse against B.W. and E.A. N.T., 3/10/22, at 53-54. Mother filed timely, counseled notices of appeal, along with Pa.R.A.P. 1925(a)(2)(i) concise statements of errors complained of on appeal.^[8] This Court sua sponte consolidated Mother's appeals.

III. Statement of Questions Involved & Standard of Review

On appeal, Mother presents the following issues for our review:

I. Whether the juvenile court erred as a matter of law and/or abused its discretion by making a finding of abuse despite [Pa.]R.A.P. 1701, which [precludes] the court from proceeding in the matter when there was already a pending appeal with the Superior Court. II. Whether the juvenile court erred as a matter of law and/or abused its discretion when it accepted the testimony from B.W. made at the Children's Advocacy Center as credible despite admitting on the record that he had not yet watched the recording[?] III. Whether the juvenile court erred as a matter of law and/or abused its discretion when it made the finding of abuse despite the testimony from B.W.'s sibling, [Ed.A.], which did not include those allegations[?]

Mother's Brief at 4 (suggested answers & some capitalization omitted).

At this juncture, we note the relevant standard of review:

[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 inferences or conclusions of law. Accordingly, we review for an abuse of discretion.

Interest of R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citations omitted).

IV. Trial Court's Jurisdiction

In her first issue, Mother avers that pursuant to Pa.R.A.P. 1701 the trial court lacked jurisdiction to enter the March 10, 2022, finding of abuse, where she and Father had appeals pending from the January 13th goal change orders. Mot...