In re Interest of S.L.

202 A.3d 723

In the INTEREST OF: S.L., a Minor

Appeal of: J.B., Mother

No. 3384 EDA 2017

Superior Court of Pennsylvania.

Submitted September 17, 2018

Filed January 8, 2019

Maureen F. Pie ’, Philadelphia, for appellant.

Kathleen B. Kim, Philadelphia, for appellee.

Emily B. Cherniack Philadelphia, for Child Advocate, participating party.

Yalonda E. Houston, Philadelphia, for E.L., participating party

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

OPINION BY BOWES, J.:

J.B. ("Mother") appeals from the trial court's order entered on September 20, 2017, finding aggravated circumstances against her as to her minor daughter, S.L., born in November 2016, on the basis that she had committed child abuse.¹ Following our review of the certified record and relevant case law, we vacate the findings of aggravated circumstances and child abuse, and remand for a new hearing.²

On February 14, 2017, the Department of Human Services ("DHS") received a child protective services ("CPS") report that Mother arrived at the Children's Hospital of Philadelphia ("CHOP") Emergency Room ("ER") with three-month old S.L. Mother informed Kristine Fortin, MD., the attending physician, that she first noticed a cracking sound in S.L.'s back during the week of February 6, 2017, and by February 12, 2017, the child became agitated and would only sleep on her side. Mother indicated that S.L. had not fallen or experienced other trauma. Subsequent tests revealed that S.L. had suffered six fractured ribs, consisting of twelve distinct bone fractures in various stages of healing, and a fresh fracture on her right proximal tibia (shin). S.L. was admitted to the hospital in stable condition. CHOP staff determined that the injuries were non-accidental in nature, but neither Mother nor and her then-live-in paramour, E.L. ("Father"), could explain how they had occurred.

DHS visited Mother, Father, and Maternal Grandparents at CHOP the next day. Both parents denied harming S.L. Likewise, Mother and Father met with the CHOP child protection team to review their family history and discuss the manner of the injury. Again, neither parent professed any knowledge of the injury during that meeting. However, Mother initiated a private conversation with Dr. Fortin and informed her that she was "concerned about Father's reactions and behaviors" following the discovery of their daughter's injuries. N.T., 7/19/17, at 33. Specifically, she reported that Father suggested, "why don't we just blame it on the family dog." Id. at 33. She also described Father's opposition with her decision to take the child to the hospital. In this vein, Mother contacted the hospital and requested that it not permit Father to visit the child. Likewise, even though Mother initially denied domestic violence in the home, during a subsequent interview with a DHS investigator, she indicated that verbal abuse had, in fact, occurred in the home, and she stated her intention to terminate her relationship with Father and move from the family residence.

The resulting CPS report was indicated for physical abuse, and Mother and Father were identified as perpetrators. On February 17, 2017, DHS obtained an order for protective custody ("OPC"). S.L. was placed in kinship care with a family friend; however, after Mother violated the placement order by visiting S.L. in the kinship home, the court placed the child with a foster family.

On February 28, 2017, DHS filed a dependency petition, which requested a determination whether aggravated circumstances existed as to S.L. and whether reasonable efforts need be made towards reunification. On March 1, 2017, the juvenile court adjudicated S.L. dependent. Contested permanency review hearings were held on July 19, 2017 and September 20, 2017 to determine whether child abuse had occurred. Dr. Fortin and Danielle Nesmith, the DHS social worker who investigated the CPS report, both testified at the hearing. As it relates to the central issue Mother raises in this appeal, we observe that Ms. Nesmith recounted Mother's concern over Father's suggestion that they blame the dog for their daughter's injuries, Father's opposition to bringing the child to the hospital, and the ruse that Mother employed to avoid Father's interference. N.T., 9/20/17, at 25-27. Likewise, Ms. Nesmith summarized Mother's efforts to have Father barred from unsupervised contact with S.L. at the hospital, and she confirmed that, while Mother denied domestic violence in the home, during a subsequent investigation with another case worker, she alleged verbal abuse. Id. at 29-31. Mother's counsel and the Child Advocate both revisited these aspects of Ms. Nesmith's testimony during cross-examination. Id. at 41-44, 48-51.

After DHS completed its case, the trial court denied Mother's attempt to present the testimony of several witness, including Dr. Reinhold, the court-appointed psychologist. As it relates to Dr. Reinhold's psychological evaluation report, Mother argued, "it's detailed conversations with the doctor [who] is going to be coming in and testifying as to [what] [either] parent believed or didn't believe as to how the child got injured." Id. at 61. The trial court rejected Mother's entreaty, finding that neither Dr. Reinhold's observations nor the court-ordered report were germane to the child abuse hearing. Id. 62. Accordingly, Mother did not present any independent evidence to rebut the presumption that she was a perpetrator of abuse.

At the conclusion of the hearing, the court made a finding of child abuse and held that aggravated circumstances existed as to both parents. It relieved DHS of the need to make additional efforts to reunify S.L. with Mother. The court did not hold a permanency review hearing, nor did it schedule a permanency review hearing within thirty days.

On October 10, 2017, Mother filed a motion for reconsideration. Before the court entered an order on the motion, Mother timely appealed and filed a concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i) ; Pa.R.A.P. 1925(b). She raises the following issues, which we re-order for ease of disposition.

1. Did the trial court err and/or abuse its discretion by denying Mother's [c]ounsel an opportunity to call witnesses, ruling that their testimony was irrelevant?

2. Was the evidence insufficient for the trial court to find, by clear and convincing evidence, [a]ggravated [c]ircumstances with no efforts to reunify [S.L.] with the Mother[?]

3. Did the trial court violate Mother's rights to due process by not allowing Mother's counsel to call witnesses in her defense of the child abuse allegations?

4. Did the trial court err in not ordering a permanency hearing within 30 days of the hearing where the court made a finding of [a]ggravated [c]ircumstances with a finding of no efforts to reunify [S.L.] with the Mother[?]

Mother's brief at 4 (trial court answers omitted).³

Our standard of review is as follows:

The 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.

In re R.J.T. , 608 Pa. 9, 9 A.3d 1179, 1190 (2010).

In pertinent part, the Juvenile Act describes the relevant aspect of aggravated circumstances as a situation where "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." 42 Pa.C.S. § 6302.

With regard to dependency cases involving child abuse, the safety of the child is paramount. In re R.P. , 957 A.2d 1205 (Pa.Super. 2008). As we have explained,

The Juvenile Act, 42 Pa.C.S. §§ 6301 –65, which was amended in 1998 to conform to the federal Adoption and Safe Families Act ("ASFA"), 42 U.S.C. § 671 et seq. , controls the adjudication and disposition of dependent children. The policy underlying these statutes aims at the prevention of children languishing indefinitely in foster care, with its inherent lack of permanency, normalcy, and long-term parental commitment. Furthermore, the 1998 amendments to the Juvenile Act, as required by ASFA, place the focus of dependency proceedings on the child. Safety, permanency, and the well-being of the child must take precedence over all other considerations, including the rights of the parents.

Id. at 1217–18 (some internal citations omitted).

In the instant case, the court made two determinations: first, that Mother was the perpetrator of child abuse, and second, that aggravated circumstances existed as to S.L. "As part of [a] dependency adjudication, a court may find a parent to be the perpetrator of child abuse," as defined by the Child Protective Services Law ("CPSL"). In re L.Z. , 631 Pa. 343, 111 A.3d 1164, 1176 (2015).

In cases of child abuse, a court's finding as to the identity of the abusers need only be established by prima facie evidence that the abuse normally would not have occurred except by reason of acts or omissions of the caretakers.

R.P. , supra at 1217–18 (Pa.Super. 2008) (some internal citations omitted).

As it is pertinent to this case, the CPSL defines "child abuse" as follows:

(b.1) Child abuse.-- The term "child abuse" shall mean intentionally, knowingly or recklessly doing any of the following:

(1) Causing bodily injury to a child through any recent act or failure to act.

....

23 Pa.C.S. § 6303(b.1) (1). Furthermore, § 6303(a) defines bodily injury as "impairment of physical condition or substantial pain."

In situations where a perpetrator of abuse is unknown, a parent's culpability may be established by prima facie evidence pursuant to § 6381(d),

Evidence 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 or other person responsible for the welfare of the

...