In re K.D.

1

IN THE INTEREST OF: K.D., A MINOR APPEAL OF: K.G.

No. 3175 EDA 2022

No. J-S16032-23

Superior Court of Pennsylvania

June 9, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Order Entered December 12, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000778-2022

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM

McCAFFERY, J.

K.G (Stepfather) appeals from the order entered in the Philadelphia County Court of Common Pleas adjudicating his minor stepson K.D. (Child)^[1] dependent, and finding he was a perpetrator of Child abuse^[2] pursuant to Section 6303(b.1)(1) of the Child Protective Services Law (CPLS).^[3] On appeal, Stepfather argues the Philadelphia Department of Human Services (DHS) did not present clear and convincing evidence that he caused Child's injuries. We affirm.

The underlying facts of this matter are as follows. On June 15 2022, DHS received a report from Child Protective Services (CPS) that Child - who was three years old at that time and resided with Mother and his five siblings^[4]- was admitted to the emergency room at the Children's Hospital of Philadelphia (CHOP) for abdominal pain caused by unexplained injuries. N.T. 12/12/22, at 81-82, 97-100, 119-20; see also Dependency Petition at 3 (stating Child was "at home" with his five siblings between June 13th through June 15th). Stepfather was also in Mother's home when Child was injured, but it is unclear if he lived there at that time. See N.T. at 138, 165-66, 177, 191. Child's injuries were marked as "near fatality" and he remained in the hospital for "approximately 44 days[.]" Id. at 95, 102.

After Child was admitted to the hospital, DHS indicated Mother and Stepfather as perpetrators of child abuse and on August 30, 2022, filed a dependency petition regarding Child. N.T. at 131; see also Dependency Petition. On December 12, 2022, the trial court held an adjudicatory hearing.^[5] Mother appeared in person with counsel. Stepfather appeared via phone and had counsel in the room. Child was represented by Child Advocate Shannon Sherwood, Esquire.^[6] DHS presented the evidence as outlined below.

Doctor Kristine Fortin, an attending physician on the CHOP child protection team and an expert in "child abuse pediatrics" stated she began working on Child's case on June 16, 2022, the day after he was admitted to the CHOP emergency room for abdominal pain. N.T. at 79-80, 82. Child had injuries to three organs - a liver laceration, "a hematoma in the area where the stomach becomes the small intestine[,]" and a "transection of his pancreas." Id. Child also had "skin injuries" in the form of bruising to his face, ears, back, and chin. Id. at 87. Doctor Fortin testified that the bruising to Child's face and ears were not common in accidental injuries and the injuries to his organs were "concerning for inflicted trauma." Id. at 84, 92. She stated that these types of injuries were caused by "blunt impact[,]" which includes "punching or kicking[.]" Id. at 93. She explained she would not "expect [to see Child's injuries] from a regular trip and fall." Id.

In the hospital, Child was fed intravenously^[7] because he was not "able to eat for a prolonged amount of time[,]" and he was given opiates to manage the pain from his injuries. Id. at 85-86, 95-96. Child "receiv[ed] nutrition through intravenous" until July 5th, then "gradually transitioned" to a feeding tube. Id. at 85-86. Child's injuries were marked as "near fatality" and he remained in the hospital for "approximately 44 days[.]" Id. at 95, 102.

When Doctor Fortin asked Mother about the timeline leading up to Child's admission to CHOP, Mother told her:

[On] June 13[, 2022,] she went to work and [Child] didn't want to go to daycare, and his younger brother had a telemedicine appointment, so [Stepfather] would be home. So the children stayed home. [Mother] reported that [Child] was doing fine before she went to work. And then when she called [Child] around lunchtime, he said he didn't want to eat. And when she got home, he also didn't want to eat, but he was still walking.

[Mother] reported that the next day[, June 14th,] she took the day off, and [Child] wasn't himself. He was laying around and he had abdominal pain. And then [M]other reported that she was worried it could be related [to a surgery Child had one year prior.

Mother] reported that she checked him with a doctor [ sic], and they said if [Child is] keeping [liquids] down to monitor him.

[Mother went to work the next day, June 15th, while Child] was still asleep. [Mother's] sister[, Jasmine,^[8] called and said [Child] wasn't well, and [Mother] reported that when she came home, [Child] wasn't able to walk, and he was in pain. And at that point[,] they brought [Child] to the emergency room.

N.T. at 42-43, 98-99 (paragraph breaks added).

Mother could not provide any instance of "accidental trauma" to explain the abdominal pain, but stated Child had bruising on his chin after he fell off of a bed. N.T. at 98-100. Because of this, the doctor had "high concern" that Child's injuries resulted from "non-accidental trauma[.]" Id. at 101-02. Doctor Fortin explained that Child's injuries were "consistent with punches or hits from an adult[,]" "fall[ing] on a bike and impal[ing] yourself on the handlebar[,]" or "getting kicked by a horse[.]" Id. at 105, 108, 112. Further, she testified that a "short fall" from a bed, like the one described by Mother, would not typically cause all of Child's injuries. See id. at 93-94.

CUA Supervisor Butler,^[9] testified that she began working on this case on August 21, 2022. N.T. at 20. Between August 21st and October 5th, Supervisor Butler saw Child and his siblings on a weekly basis. Id. at 21. After October 5th, she saw them "[r]oughly" every other week. Id. She testified that when the siblings initially arrived at the hospital after the incident, they gave "varying accounts" of how Child was injured. Id. at 37. However, during a November 11, 2022, visit with the children, Child and one of his siblings detailed how Child received his injuries. Id. at 35. Child's 10-year-old sibling, Che.L., stated he was at home when he heard Child "screaming" from an upstairs room. Id. at 26. Che.L. ran upstairs and "bang[ed] on the door." Id. Stepfather "told [Che.L.] to shut up[,] go downstairs[,] and mind his business." Id. Che.L. stated that after this incident, the siblings "as a collective" went to Mother and told her Stepfather "[did] this to" Child. Id. at 49. Mother "called them liars" and told them to say "[Child] was on the top bunkbed and fell, and [Che.L.] stepped on his stomach[.] Id. at 28-29, 40, 49-50. Che.L. expressed he was "scared that he was going to jail" because of this and did not understand why Mother and Stepfather were blaming him. See id. at 27, 40. Child told Supervisor Butler that he was "scared" of Stepfather and that Stepfather had "punched" him in the stomach. Id. at 30-32. Child also told another DHS investigator^[10] at the hospital that Stepfather was "hitting him." Id. at 55.

Supervisor Butler also spoke with Mother and Stepfather over the course of this case. During her "third visit"^[11] to Mother's home, Mother expressed "that she couldn't believe that [Stepfather] would do this to [Child.]" N.T. at 162-64. Supervisor Butler spoke with Stepfather on another occasion^[12] and he denied being in the home when Child's injuries occurred, but then later admitted he was present. Id. at 165-66. Stepfather denied the allegations that he hurt Child and told another CUA caseworker, Kyle Mitchell,^[13] "he would never hurt his kids, [and] that he would never hurt [the youngest, his biological child] in particular[.]" Id. at 164. The only explanation that he provided for Child's injuries was that "the kids were roughhousing[,]" but he did not provide a date when the injury occurred. Id. at 165-66.

DHS Investigator Anaya Brownwether testified that she became involved with this case after receiving a CPS report on June 15, 2022. N.T. at 119-20. Investigator Brownwether noted there were prior DHS reports related to this family, but could not recall the details. Id. at 142-43. The report she received on the 15th alleged Stepfather was "hitting and punching" the Child and his siblings and failing to provide medical attention.^[14] Id. at 120-21. On June 16th, Investigator Brownwether, along with a hospital social worker, spoke to Mother, Stepfather, and some of the siblings in the emergency room. See id. at 122-23, 127, 137. Initially, Child's siblings had "different stories[,]" which were "all over the place," stating Child "tripped over a shoe, or he fell off a bunkbed, or somebody kicked [him] in the stomach." Id. at 137. While in the hospital, Child indicated "Daddy hit him[,]" referring to Stepfather. Id. at 138. Two months later in a follow-up interview, the siblings stated Che.L. hurt Child. Id. at 137, 144.

When Investigator Brownwether spoke with Mother, she claimed she did not know how or when Child was injured. See id. at 123, 126-27, 140. Mother also stated Stepfather was at home all day Monday, June 13th through Wednesday, June 15th - the day Child went to the emergency room. See id. at 139-40. Mother was at work that Monday and Wednesday, but was home on Tuesday the 14th. See id. at 140.

When speaking with Stepfather, Investigator Brownwether asked him to leave the emergency room waiting area because he was "really loud[,]" "already on the defensive [and] a little irate." Id. at 128-29, 147. The hospital social worker also asked Stepfather to "calm down or they would . . . remove him." Id. at 128. During later phone calls, Investigator Brownwether informed Stepfather of the allegations against him and the...