In re B.W.

1

IN THE INTEREST OF: B.W., A MINOR APPEAL OF: E.A., JR., FATHER IN THE INTEREST OF: E.A., A MINOR APPEAL OF: E.A., JR., FATHER

Nos. 117 MDA 2023, 118 MDA 2023

No. J-A16035-23

Superior Court of Pennsylvania

August 28, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37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

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

MEMORANDUM

McCAFFERY, J.

In this dependency matter, following a remand by this Court, E.A Jr., (Father) appeals nunc pro tunc^[1] from the order entered March 10, 2022, in the York County Court of Common Pleas, finding him to be a perpetrator of child abuse^[2] with respect to two of his children, B.W. (born in May of 2014), and E.A. (El.A.,^[3] born in August of 2019). Father presents several arguments challenging the weight of the evidence presented.^[4] We affirm.

I. Introduction

In addition to B.W. and El.A., Father and Mother (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 docketed 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). On October 12, 2022, the panel issued one order staying all of these appeals, pending the resolution of the Parents' additional appeals.

Meanwhile, on March 10, 2022, the trial court entered the underlying order, finding both parents were perpetrators of abuse as to B.W. and El.A. This memorandum addresses Father's appeal from that order. As noted above, Mother has also appealed, and this Court affirmed on December 28, 2022. Interest of B.W., 545 & 546 MDA 2022.

Finally, on April 18, 2022, the trial court involuntarily terminated both Parents' rights to all five Children. Both parents have also appealed from those orders, at this Court's Dockets 683 through 687 MDA 2022 (Father) and Dockets 755 through 759 MDA 2022 (Mother). Additionally, Counsel for El.A. and R.A. have appealed from the termination orders, at, respectively, Dockets 740 and 741 MDA 2022. On December 8, 2022, this Court likewise stayed all of these appeals pending resolution of, inter alia, Father's instant appeal.

II. Facts & Procedural History

In August of 2020, CYF received a referral, which alleged Parents were using heroin and not properly supervising the four older children, B.W. (then six years old), Ed.A. (five), R.A. (two), and El.A. (one). 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,^[5] 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.^[6] 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. Furthermore, with respect to El.A. only, both Parents were 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.^[7]

III. March 10, 2022, Finding of Abuse Hearing

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. CYF called CAC forensic interviewer, Ms. Carter, as well as CYF Caseworker Marshall, to testify about B.W.'s forensic interview. We now review their testimony in detail.

First, Ms. Carter, testified to the following. B.W., who was six years old at the time of the interview, was able to distinguish the difference between a truth and a lie, and he appeared to have normal cognitive functioning. N.T., 3/10/22, at 10, 14. B.W. disclosed: he and El.A. were "being beat;" Mother slapped him; El.A. "was slapped with a belt;" Father "beat" R.A.; and Mother slapped both El.A. and R.A. Id. at 12. With respect to whether B.W. had been "coached" ahead of the interview, Ms. Carter denied it was "her job to determine if someone's being coached[,]" and instead, she merely "gathered] information." Id. at 19. While she could not say whether B.W. had been coached, she did not "recall anything that would [suggest] that during [B.W.'s] interview." Id. at 14, 19. Finally, Ms. Carter conceded she had not reviewed the video of the interview, but confirmed her written summary of the interview was accurate. Id. at 13, 18. Ms. Carter also stated that in Ed.A.'s separate forensic interview that same day, Ed.A. revealed: there was "physical abuse occurring in the home[;]" but there was no indication either parent was slapping the children or hitting them with belts. Id. at 14.

CYF Caseworker Marshall, who observed the forensic 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. Caseworker Marshall sought, but did not receive, medical records that might show physical injury to B.W. See id. at 31; Trial Ct. Op., 6/6/22, at 10.

With respect to El.A., Caseworker 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. "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. Caseworker Marshall "attempted multiple times" to schedule an interview with Mother and Father, but was unsuccessful. N.T., 3/10/22, at 31-32.

CYF entered into evidence the forensic interview summary^[8] and a DVD video of B.W.'s forensic interview. However, the trial court declined to play the video, stating,

. . . I don't see any reason to play it in open court. That's not going to accomplish anything. Counsel have already seen it, they've asked their questions, we have the summary [of the forensic interview.^[9]

N.T., 3/10/22, at 21-22.

Finally, relevant to Father's arguments in this appeal, we note that a forensic interview of another sibling, Ed.A. was conducted on the same day as B.W.'s interview, 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 Father and Mother were perpetrators of abuse against B.W. and El.A. N.T., 3/10/22, at 53-54.

As noted above, the trial court initially denied Father's petition to reinstate his appeal rights nunc pro tunc. However, on appeal, another panel of this Court reversed, remanding the case and directing the reinstatement of Father's appeal rights and appointment of new counsel. Interest of E.A., 782 & 783 MDA 2022. Father has filed separate notices of appeal^[10] and the trial court issued a new opinion on February 16, 2023.

IV. Statement of Question Involved & Standard of Review

On appeal, Father presents the following issue for our review:

Whether or not the lower court erred when it entered a finding of abuse against [Father] without clear and convincing evidence.

Father's Brief at 4.

At this juncture, we note the applicable standard of

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