In re Interest of N.B.-A.

224 A.3d 661

In the INTEREST OF: N.B.-A., a Minor

Appeal of: E.A., Mother

No. 11 EAP 2019

Supreme Court of Pennsylvania.

Argued: September 10, 2019

Decided: January 22, 2020

OPINION

JUSTICE TODD

In this appeal by allowance, we consider whether the evidence was sufficient to establish that E.A. (hereinafter, "Mother") was a perpetrator of child abuse under the Child Protective Services Law ("CPSL"), 23 Pa.C.S. §§ 6301 - 6386. For the reasons that follow, we hold that it was not, and reverse the decision of the Superior Court.

Shortly after 8:30 a.m. on November 17, 2016, Mother presented to the emergency department of The Children's Hospital of Philadelphia ("CHOP") with her six-year-old daughter, N.B.-A. (hereinafter, "Child"). Mother reported that Child had been experiencing vaginal discharge for three days. According to the emergency department records, Mother advised that she and Child had moved to Philadelphia from the Dominican Republic approximately one year earlier. In response to questions by CHOP staff, Mother further indicated that she had no concerns that Child may have been sexually abused, and she stated that Child lived with her and Child's maternal grandmother (hereinafter, "Grandmother"). Mother also stated that no males lived in the home. Following a physical examination, which included vaginal swabs, Child was discharged at approximately 11:30 a.m., with instructions to take baths and maintain good hygiene.

Lab testing of the vaginal swabs revealed that Child had chlamydia, a sexually-transmitted infection. Thus, at approximately 2:50 p.m. on November 18, 2016, a nurse practitioner at CHOP telephoned Mother and asked that she return to the hospital with Child for additional testing. Mother and Child returned to CHOP at approximately 4:40 p.m. that afternoon, at which time Child underwent another physical examination and additional testing. According to a Child Protective Services Report ("CPS Report") which CHOP filed with the Department of Human Services ("DHS") later that day, and which was introduced into evidence at a subsequent hearing on March 16, 2018, while at CHOP, both Mother and Child denied any sexual abuse, and Mother again denied that any males lived in the home. The CPS Report also contained a notation that a nurse at CHOP described that "mother's affect was completely unconcerned, and she was wondering where she could order pizza." CPS Report, 11/18/16, at 7.

Additionally, the CPS Report indicated that, although Mother told CHOP staff that no males lived in the home, Child stated that she lived with Mother, Grandmother, and three adult male "uncles." In actuality, the males were Mother's husband (hereinafter, "Stepfather"), and Mother's two stepsons. Child explained that she slept with Mother, while Mother's stepsons slept in one room, and Stepfather slept alone in another room. Child also denied feeling uncomfortable with the males present in the home. When asked if other adults came to their home, Child stated, "[s]ome friends come, they sit on a bench outside, they leave money and they leave." Id. at 5. Child further explained, "My mommy tells them numbers and they give her money." Id. When confronted with the discrepancy between her and Child's description of who lived in the home, Mother first stated that the men were Grandmother's uncles, and then stated that the men had moved out of the house one month earlier. Mother and Child remained in the hospital overnight, and Child was discharged at 4:30 p.m. the following day, November 19, 2016. In light of a safety plan that required Child to remain out of her original home, Mother and Child went to stay with Mother's aunt.

On or about November 21, 2016, Sharina Johnson, an investigator with DHS, interviewed Mother.¹ Johnson advised Mother that, as a result of Child testing positive for chlamydia, DHS had opened an investigation. According to Johnson's testimony at a subsequent hearing on March 16, 2018, Mother "appeared very relaxed and not very concerned about ... the results of the STD testing." N.T. Hearing, 3/16/18, at 15. Johnson also recounted that Mother was having her hair done when she arrived, and, while Johnson was there, that Mother "sat under the dryer to dry her hair with rollers." Id. at 22. During this interview, when Johnson asked Mother who lived with her and Child, Mother responded that she, Child, Grandmother, Stepfather, and two of Mother's stepsons lived together. Id. at 16. Mother explained, however, that Child slept with Mother in one bedroom; Grandmother slept either on the couch or with Mother and Child; Mother's stepsons shared a separate bedroom; and Stepfather slept in a shed behind the kitchen. Id. at 17-18. Mother also stated that none of the men ever slept in the room with her and Child. Mother maintained that she was unaware as to how Child could have contracted chlamydia, and suggested Child may have contracted it at birth, as a friend of her mother had a baby who tested positive for a sexually transmitted disease at birth. Id. at 18.

Johnson also spoke with Child, utilizing an interpreter. According to Johnson, Child was happy and upbeat, and, when asked "if anyone touched her in a bad way," she replied "no." Id. at 25. When asked specifically if she was ever touched in a bad way by Stepfather or his sons, Child once again replied "no." Id. at 26. Johnson testified that she requested that all members of the household be tested for chlamydia. Id. at 19. Mother was tested on November 21, 2016, and one of her stepsons, F.R.M. (hereinafter, "Stepbrother") was tested on November 23, 2016; both tested positive. Stepfather tested negative. Upon receiving his test results, Stepbrother reportedly fled the hospital and went back to the Dominican Republic. Stepfather eventually went back to the Dominican Republic as well.

On November 22, 2016, DHS obtained an Order for Protective Custody for Child and Child was placed in foster care. On December 5, 2016, Child was adjudicated dependent and it was ordered that she remain in foster care. One month later, Stepbrother was identified as the perpetrator of sexual abuse against Child.² The trial court conducted several permanency review hearings between March 2017 and December 2017. On March 15, 2018, Child's guardian ad litem ("GAL") filed a motion for a finding of aggravated circumstances against Mother under 42 Pa.C.S. § 6302(2).³

At a hearing on March 16, 2018, DHS first presented the testimony of DHS investigator Johnson, detailed above. DHS also presented the testimony of Dr. Maria McColgan, who treated Child for chlamydia on one occasion after Child was discharged from CHOP.⁴ Dr. McColgan explained that, although chlamydia can be contracted through birth, it resolves by the time a child is 2 or 3 years old. As Child was 6 years old at the time of her diagnosis, Dr. McColgan opined that Child was a victim of sexual abuse. Dr. McColgan testified, however, that Child did not have any other physical signs of injury or abuse when she examined her. N.T. Hearing, 3/16/18, at 50. Her testimony in this regard was consistent with Child's medical records from CHOP, which also indicated that Child did not present with any sign of physical injury or abuse, aside from the vaginal discharge initially reported by Mother.

Finally, Mother testified at the hearing. When asked if she could "explain" the testimony of the DHS investigator regarding people who visited her home and gave her money, Mother stated that she worked at her uncle's store, which sold lottery tickets and other items, and "some people would take things and then they would come and pay me later, but I never let them come into the house." Id. at 64-65. When asked why she initially did not tell the staff at CHOP that there were males living in the home, Mother replied, "honestly, I didn't know what was going on and I didn't want to involved (sic) anybody, like dad or -- or her brother in something involved with the -- the child." Id. at 62. Mother further stated that Child was always cared for by her, Grandmother, or Mother's aunt, and that Child had never told her that she had been sexually abused, which she found to be "very strange because she always tells me everything." Id. at 64. With respect to the suggestion that she seemed "unconcerned" at the hospital when told of Child's diagnosis, Mother explained that "it was just hard for [me] to believe that something could have happened to her because my mom was always with her, and I was always with her." Id. at 65. When asked if she currently believed that Child had been sexually abused, Mother stated that, while she never observed the abuse, Child had no need to lie, and Mother did believe and would always believe what Child said. Id. at 66-67.

At the conclusion of the hearing, the juvenile court, Judge Lyris F. Younge, stated that she "found Ms. Johnson to be credible," and "found Dr. McColgan to be credible," but "did not find [Mother] to be credible." Id. at 85. The juvenile court then entered an order finding that Mother was a perpetrator of child abuse under 23 Pa.C.S. § 6303(b.1), which provides, in relevant part:

Child abuse.-- The term "child abuse" shall mean intentionally, knowingly or recklessly doing any of the following:

* * *

(4) Causing sexual abuse or exploitation of a child through any 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.

23 Pa.C.S. § 6303(b.1). The juvenile court further concluded that aggravated circumstances existed pursuant to 42 Pa.C.S. § 6302(2), and that DHS was not required to continue to make reasonable efforts at reunification.

In support of its finding of child abuse under Section 6303(b.1), the juvenile court explained:

So, if you're confronted with a diagnosis that indicates that your child has been subjected to a sexually transmitted disease, I find it troubling that mom would testify or give information that's not valid or accurate.

...