In re Interest of G.R.

282 A.3d 376

In the INTEREST OF: G.R., a Minor

Appeal of: K.M., Mother

In the Interest of: G.R., a Minor

Appeal of: B.R., Father

No. 242 EDA 2022

No. 370 EDA 2022

Superior Court of Pennsylvania.

Submitted May 31, 2022

Filed August 9, 2022

Lisa Marie Visco, Philadelphia, for K.M., appellant.

James J. DeMarco, Jr., Philadelphia, for B.R., appellant.

Robert D. Aversa, Philadelphia, for Department of Human Services, appellee.

Kathleen Bola Kim, Philadelphia, for Department of Human Services, appellee.

Paul McLaughlin, Philadelphia, for Department of Human Services, appellee.

Marilyn Suzanne Hodges, Philadelphia, for Guardian Ad Litem and G.R., participating parties.

Barbara A. Berry, Philadelphia, or McAfee, participating party.

BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.

OPINION BY LAZARUS, J.:

K.M. (Mother) and B.R. (Father) (collectively, Parents) appeal from the trial court's order reunifying their daughter G.R. (Child) (born August 2019) with Parents, finding that Child was the victim of child abuse, and concluding that Mother and Father were the perpetrators of the abuse.¹ See 42 Pa.C.S.A. § 6302 ; 23 Pa.C.S.A. §§ 6303, 6381(d).² After careful review, we affirm.

On February 12, 2020, Father took then-five-month-old Child to the emergency room at St. Christopher's Hospital where she was treated by Dr. Norell Atkinson, MD, an attending physician in the Department of Pediatrics, Child Protection Section, and an expert in child abuse pediatrics. Following a skeletal survey, genetic testing, and a full medical examination, Dr. Atkinson diagnosed Child with three acute³ leg fractures—an oblique right femur (thigh bone) fracture and two lower left leg buckle fractures.⁴

Mother and Father reported to a DHS caseworker that, on the evening of February 10, 2020, while they were getting ready to take Child to paternal grandmother's (M.M.) home, Child had rolled off their bed and onto the carpeted floor. Mother and Father also reported that hours after this happened, they took Child to M.M.’s home, where Child stayed for two days while Parents went out of town, and that before leaving for their trip, Parents told M.M. that Child had rolled off their bed and to contact them while they were away if "there was anything different or unusual about her." N.T. Abuse Hearing, 10/6/21, at 11-12. Parents told Caseworker Butler that they had no concerns leaving Child with M.M. Id. at 81.

Doctor Atkinson testified that Parents reported while they were away, M.M. never called Parents to tell them that there was anything "different" regarding Child's behavior, id. at 12; however, when Parents picked Child up at M.M.’s house on February 12^th, they noticed that something was distinctly different about Child's leg. Id. at 12 (Doctor Atkinson testifying Father told her he recalled when he picked Child up from M.M.’s home, Child's "leg appeared to be hanging—her right leg appeared to be hanging, and that it looked as if it was broken... So, they brought her into the hospital at that point[.]"); id. at 69 (DHS case worker testifying Father reported Child's leg looked "flimsy as it was dangling. She looked uncomfortable" when they went to pick her up at M.M.’s house); id. (DHS caseworker testifying Mother reported when she touched Child's wrist, Child "tensed up" and when Mother tried to bounce Child on her leg, Child could not put weight on her leg).

Upon picking Child up from M.M.’s, Parents took Child to St. Christopher's. See id. at 14 (Doctor Atkinson testifying Child was brought in by parents to hospital "with a concern that the leg was injured and they were potentially attributing that to the fall"). Doctor Atkinson testified that "[i]t was later ... reported that a fall [off of the bed] had happened also, in [M.M.’s] care." Id. at 21.

Doctor Atkinson was unable to opine as to how or exactly when the injuries occurred.⁵ See id. at 16 (doctor testifying "given the kind of narrow time frame of three different caretakers over a short period of time, and not being able to precisely say all the fracture is on x-ray, it makes it somewhat difficult to say when exactly the injury was sustained"). Doctor Atkinson, however, testified that Child's leg fractures could not have been sustained, as Parents and M.M. had reported, from falling off of a bed. Doctor Atkinson also opined that Child's injuries did not result from bone abnormalities or genetic diseases, and that they were non-accidental and not self-sustained. Id. at 18-22, 29. Doctor Atkinson noted that the most common injury resulting from a short fall from a bed is a skull fracture, not a leg injury, let alone multiple, bilateral leg fractures. Id. at 15-16. The oblique fracture Child sustained, Dr. Atkinson opined, most likely occurred from a compression or "twisting or torsional force or bending force to the leg." Id. at 9. The other type of fracture Child sustained, a buckle fracture, is caused by force being applied to either end of the bone. Id.

Child's legs were casted and she was placed in a Pavlick harness;⁶ Child fully healed within one month. Id. at 41. Child had no record or signs of previous injuries and Parents had no prior history with DHS. Child Protective Services (CPS) prepared three reports detailing the alleged abuse inflicted on Child, describing Child's injuries, and listing Mother, Father, and M.M. as alleged perpetrators of the abuse.⁷ On February 14, 2020, DHS obtained an order of protective custody (OPC) for Child. Child was discharged from the hospital and placed in temporary care with her maternal grandmother, E.M.

After a February 17, 2020 shelter care hearing, the trial court found it was not in Child's best interest to return Child to Parents’ care and that to allow Child to remain in Parents’ home would be contrary to her welfare. However, Parents were granted supervised visitation with Child. On February 21, 2020, DHS filed a petition alleging that Child was a dependent child and the victim of child abuse. See 42 Pa.C.S.A. § 6302 ; 23 Pa.C.S.A. § 6303. Following a hearing held on October 7, 2020, Child was adjudicated dependent and legal custody of Child was transferred to DHS.

After a March 26, 2021 permanency review hearing, Child remained in kinship care with E.M., but Parents were granted unsupervised visitation, with overnight visits by agreement of the parties. The court continued the child abuse hearing until M.M. was appointed counsel. On July 14, 2021, the court granted Parents liberal, unsupervised and weekend overnight visits. DHS found the report of child abuse to be indicated with regard to Parents and M.M.

On October 6, 2021, and January 12, 2022, child abuse hearings were held before the Honorable Vincent Furlong. At the October 6, 2021 hearing, Dr. Atkinson, DHS Intake Worker/Investigator, Jaabir Butler, and Community Umbrella Agency (CUA) case manager Carolyn Smith testified. Neither Mother, Father, nor M.M. testified. At the conclusion of the CUA case manager's testimony, Child was reunited with Parents.

On January 12, 2022, Judge Furlong stated that he found DHS’ witnesses credible, N.T. Abuse Hearing, 1/12/22, at 5, that clear and convincing evidence existed to prove that Child was a victim of child abuse, and that Mother and Father were the perpetrators of the abuse. Id. at 5-6.⁸ The case was discharged, and Father and Mother were referred to aftercare services. Id. at 7, 11.⁹

On appeal, Mother presents the following issue for our consideration: "Did the [trial] court err by making a finding of abuse as to Mother where ‘clear and convincing evidence’ was not provided, that Mother, either directly or by neglect[,] caused injuries to [C]hild, as required by [23] Pa.C.S.A. § 6381(d) and 23 Pa.C.S.A. § 6303 ?" Mother's Brief, at 6. Father presents a similar question for our appellate review: "Whether the trial court abused its discretion and erred as a matter of law when it found that [DHS] had met its burden of proof by clear and convincing evidence that Father had committed [c]hild [a]buse." Father's Brief, at 7.

We review this appeal for an abuse of discretion. In the Interest of L.Z. , 631 Pa. 343, 111 A.3d 1164, 1174 (2015). "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.’ " Id. (citation omitted).

"[Although] dependency proceedings are governed by the Juvenile Act (Act),^{[10 ]} ... the C[hild] P[rotective] S[ervices] L[aw] [(CPSL)]^{[11 ]} ... controls determinations regarding findings of child abuse, which the juvenile courts must find by clear and convincing evidence." In re L.V. , 209 A.3d 399, 417 (Pa. Super. 2019) (citations omitted; footnotes added); see also In the Interest of X.P. , 248 A.3d 1274, 1276 (Pa. Super. 2021) (same). The CPSL "does not provide for legal determinations of abuse; it is mainly a vehicle for reporting abuse and bringing quickly into play those services (including court hearings) available through county protective service facilities for the care of the child."

In the Interest of J.R.W. , 428 Pa.Super. 597, 631 A.2d 1019, 1022 (1993). "[T]he Act and the [CPSL] must be applied together in the resolution of child abuse complaints under the [CPSL and] reference must be made to the definition sections of both the [Act] and the [CPSL] to determine how that finding [of child abuse] is interrelated." Id. at 1023.

" ‘As part of [a] dependency adjudication, a court may find a parent [or caregiver] to be the perpetrator of child abuse[ ]’ as defined by the ... CPSL." In re S.L. , 202 A.3d 723, 728 (Pa. Super. 2019) (citation and quotations omitted). Section 6381 of the CPSL, which governs evidence in court proceedings, states that "[i]n addition to the rules of evidence ... relating to juvenile matters, the rules of evidence in this section shall govern in child abuse proceedings in court...