In re Interest of L.B.

258 A.3d 498 (Table)

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

Appeal of: C.B., Mother

No. 2179 EDA 2020

Superior Court of Pennsylvania.

Filed: June 7, 2021

MEMORANDUM BY OLSON, J.:

C.B. ("Mother") appeals the adjudication and disposition order entered on October 22, 2020, that: found Mother had abused her male child, L.B., ("Child") (born in June 2018); adjudicated Child dependent; removed Child from the home of Mother and L.J. ("Father") (collectively, "Parents"); and, placed Child in the legal and physical custody of Philadelphia Department of Human Services ("DHS"), with the permanency goal of reunification with Parents.¹ We affirm.

On May 19, 2020, DHS filed a petition for emergency protective custody alleging that, on May 4, 2020, DHS received a General Protective Services ("GPS") report which stated Child had a fractured femur on his left leg, for which Parents took Child to the hospital for treatment on May 2, 2020. The trial court placed Child and his older half-brother, J.B., who was four years old (born in 2016) (collectively, the "Children"), in the care of Child's paternal uncle, K.J. ("Paternal Uncle"). On May 20, 2020, the trial court held a shelter care hearing. On that same date, the trial court entered a shelter care order finding that: continuation of Child in Parents’ home was not in Child's best interest; as of May 19, 2020, Child was safe and in a foster home through First Choice Home and Community Services; to allow Child to remain in Parents’ home would be contrary to his welfare; and, DHS made reasonable efforts to prevent or eliminate the need for removal of Child from Parents’ home. The court transferred legal and physical custody of Child to DHS, and directed that Parents were to have supervised visits. The order provided the caregiver could supervise the visits if the caregiver consented. The trial court lifted the order of protective custody, directed that the temporary commitment of Child would stand, and directed DHS to explore placement with Father.

On May 27, 2020, DHS filed a dependency petition and requested that the trial court: adjudicate Child dependent pursuant to 42 Pa.C.S. § 6302(1) ; find child abuse against Mother pursuant to 23 Pa.C.S. § 6303(b.1)(1) ; and, find aggravated circumstances against Mother pursuant to 23 Pa.C.S. § 6303(b)(1).² DHS alleged:

[5]b. On May 24, 2018, DHS received a [GPS] report alleging that Mother was seven months pregnant and due to give birth in July of 2018; that [Mother] was abusing Percocet, marijuana, and cigarettes; that [Mother] was using drugs around [J.B.]; that [Mother] was selling her food stamps for drugs and other things; that [Mother] was violent and aggressive; that [Mother] spent one week at a rehabilitation facility eight months prior to the report; that Mother stayed one week at a rehabilitation facility and then left the facility; that [J.B.] was very hyperactive; that [Mother] suffered from bipolar disorder and anxiety; that [Mother] was not taking her medications; and that [Mother] yelled at [J.B.] and hit him. DHS determined the report was valid.

c. On June 30, 2018, DHS received a GPS report alleging that [Mother] had given birth to [Child in June 2018] and Mother and [Child] tested positive for marijuana upon delivery; [that] Mother was reported to have had little to no prenatal care; that [Mother] stated she was around marijuana but did not smoke marijuana; that [Mother] stated she was likely to miscarry so she had stopped going to prenatal appointments; that [Child] was healthy and scheduled to go home on July 1, 2018, pending DHS’ clearance; and that [Mother] stated that she had what she needed to care for [Child]. This report was determined to be valid.

d. The family was subsequently referred for services through the Rapid Service Response Initiative ("RSRI"). The case was not accepted for services by DHS at that time[,] and DHS closed the investigation.

e. On May 4, 2020, DHS received a GPS report alleging that [Child] was in the care of [Mother]; that [Mother] had left [Child] on a bed with her paramour, [Father], and went into the bathroom; that when [Mother] returned to the room, [Child] was crying and his leg was swollen; that [Child] had an unexplained left femur fracture; and that [Child] had no other fractures identified on babygram of the bilateral legs. This report is pending determination.

f. On May 4, 2020, DHS visited the family at St. Christopher's Hospital for Children. [Mother] stated that [Child] had been crying and that she picked [Child] up and placed him on her bed. [Mother] later stated that [Child's] leg may have become intertwined in the bunk bed where he was sleeping. [Father] stated that he heard [Child] crying, but that it sounded like normal crying. [Maternal Grandmother], who also resided in the home, stated that Child's leg was very sensitive[,] and that she thought Child should be taken to the hospital. It was determined that [Child] would reside with [Paternal Uncle], with a Safety Plan.

g. On May 5, 2020, DHS evaluated the home of [Paternal Uncle] and found it to be appropriate. [Paternal Uncle] passed all necessary background checks.

h. On May 5, 2020, [Child] was discharged from St. Christopher's Hospital for Children to the care of [Paternal Uncle].

i. On May 6, 2020, DHS evaluated the home of [Mother] and found it to be appropriate.

j. On May 15, 2020, [Child] was evaluated at St. Christopher's Hospital for Children. [Child's] leg was healing well, and no other broken bones or healing bones were found on the [x]-rays.

k. On May 18, 2020, it was determined by DHS that [J.B.] was at risk in the home with [Child]. [J.B.] began residing with [Paternal Uncle] with a Safety Plan.

l. On May 19, 2020, a final report from St. Christopher's Hospital for Children stated: "[Child's] leg injury is the result of a combined compressive with twisting/bending force applied to the bone. If [Child's] leg was injured in the manner which [M]other described, then she was using excessive force when she removed [Child] from his bed. It is important to note that she does report that [Child] was throwing a tantrum at the time she was trying to lift him from the bed, and so this becomes a worrisome scenario where she was potentially using this excessive force out of frustration with [Child's] behavior. A child who breaks his femur will immediately show symptoms at the time the injury happens. A fracture to the femur would be an injury that is extremely painful. Although [M]other reports that [Child] was crying/whining prior to being lifted from the bed, she does not report any change in the way he was crying (i.e.[,] crying more) or that he exhibited significant pain symptoms. This symptom history does not coincide with what would be expected with a femur fracture. Therefore, [M]other is either minimizing his symptoms or there is another injury event that caused [Child's] injury, which [P]arents have not reported."

m. On May 19, 2020, DHS obtained a OPC [("Order of Protective Custody")] for J.B. and [Child]. [J.B.] and [Child] were placed in foster care through First Choice Home and Community Services.

n. On May 19, 2020, [I.A.], the father of [J.B.], contacted DHS concerning [J.B.]. I.A. was directed to appear at the shelter care hearing on May 20, 2020.

Petition for Dependency and Aggravated Circumstances, 5/27/20, at 1-3 (unpaginated).

Further, in the petition, DHS stated:

o. At the shelter care hearing held on May 20, 2020, the [c]ourt lifted the OPC and ordered the temporary commitment to DHS to stand. An evaluation of the home of [J.B.’s] father, [I.A.], was ordered. DHS was ordered to explore [I.A.] as a placement resource. If the home was found to be appropriate and clearances approved, the [c]ourt ordered that [J.B.] may be reunified with [I.A.] prior to the next court date. Family Finding for [Child] was ordered. Supervised virtual visitation was to be arranged. [J.B.’s] and [Child's] dependent matters return to court on June 23, 2020 in Courtroom 4D.

p. On May 20, 2020, DHS assessed the home of [I.A.] and found it to be appropriate. [I.A.] passed all necessary background and clearances.

q. On May 20, 2020, [J.B.] was reunified with [I.A.], where he currently remains. [Child] remains in foster care through First Choice Home and Community Services.

r. DHS has determined that there is a sufficient basis to find that aggravated circumstances exist pursuant to 42 Pa.C.S. § 6302 (aggravated circumstances (2)).

s. [Child] sustained an unexplained left femur fracture while in the care of his parents, [Mother] and [Father], on or about May 4, 2020. The final medical report from St. Christopher's Hospital for Children regarding [Child's] injury stated that "[Child's] leg injury is the result of a combined compressive with twisting/bending force applied to the bone."

t. Father has a history of convictions and incarceration for theft.

u. [I.A.] has a history of convictions and incarceration for theft, conspiracy, and driving under the influence of drugs and/or alcohol.

v. [Mother] may have substance abuse concerns and undiagnosed mental health concerns. [Mother] is not currently receiving any treatment.

w. DHS is recommending that [Child] be committed to [DHS].

6. The following services and/or referrals have been offered, provided and/or considered to enable the parent to care for this child: HIS/FSS; RSRI, parent training, mental health services, substance abuse treatment. In-home services will not reasonably eliminate the risk of harm to the child because the mother may have mental health and substance abuse concerns and the child suffered serious unexplained injury in the care of the parents.

Petition for Dependency and Aggravated Circumstances, 5/27/20, at 3-4 (unpaginated).

On July 2, 2020, the trial court held an initial adjudicatory hearing. Present at the hearing via videoconference were: DHS's counsel, Attorney Kelly Conway; Father's counsel, Attorney Janice M. Sulman; Child's guardian ad litem ("GAL")/legal interests counsel,...