In re S.V.

1

IN THE INTEREST OF: S.V., A MINOR APPEAL OF: S.V., MINOR

No. 3107 EDA 2022

Superior Court of Pennsylvania

August 2, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered November 14, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000235-2022.

Joseph D. Seletyn, Esq.

BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM

McLAUGHLIN, J.:

S.V ("Child") appeals from the trial court's order adjudicating him dependent, to the extent that the order did not include a finding of child abuse against his parents C.K. ("Mother") and P.V. ("Father"). We vacate and remand with instructions.

In March 2022, the Philadelphia Department of Human Services ("DHS") received a Child Protective Services ("CPS") report alleging that Child, 11 weeks old, was brought to the Emergency Room at St. Christopher's Hospital for Children with symptoms of diarrhea and vomiting. DHS Exh. 1 at p.5. The doctors noticed a "gaze deviation" and conducted a neurology MRI, which showed multiple hemorrhages around Child's brain. Id. A consult was completed with the neurology surgery unit and the findings were of non-accidental trauma. Id. Child was then admitted to the Intensive Care Unit. Id.

On March 9, 2022, DHS obtained an Order of Protective Custody and placed Child with his paternal uncle after he was released from the hospital.

DHS filed a dependency petition on March 15, 2022. An evidentiary hearing on the petition was held on November 14, 2022. DHS presented the testimony of Dr. Norrell Atkinson, a child abuse pediatrician and Director of the Child Protection Program at St. Christopher's. N.T., 11/14/22, at 7. She testified as both an expert witness in child abuse and as a fact witness based on her evaluation of Child at the hospital.^[1] She stated that Child had presented to the hospital with "concerns for abnormal eye movement and kind of jerking of extremities, which are clinically concerning for seizure activity." Id. at 10. Dr. Atkinson noted that the MRI revealed several areas of bleeding on Child's brain, as well as retinal hemorrhaging. Id. at 10-11. Child was also having seizures, which indicated a significant head injury. Id. at 22. Mother and Father offered no explanation for the cause of Child's injuries. Id. at 19-20. Dr. Atkinson opined that Child's injuries were new and would have been sustained in the last 24 to 48 hours. Id. at 30. She also stated that additional testing and a skeletal survey was done, which yielded no indication of any bleeding disorders or any other medical conditions. Id. at 23. Child also had no underlying medical conditions that would have caused abnormal bleeding. Id. at 31. Dr. Atkinson determined that Child's injuries were caused by an external force from either "[s]ome type of full head rotational injury or acceleration/deceleration force to the head" or "some type of blunt force impact." Id. at 29. She stated that these types of head injuries could not have been sustained during normal caretaking activity. Id. at 24. Rather, this type of injury would have been caused by shaking, significant falls from heights, or car accidents. Id. at 24, 29. Dr. Atkinson concluded that Child suffered abusive head trauma. Id. at 11, 23, 27-28.

Dr. Atkinson spoke to Mother and Father separately at the hospital. Id. at 14. Mother reported that Child began vomiting two days prior to Dr. Atkinson's examination and then began having abnormal eye and body movements. Id. at 15. Neither parent reported a car accident, fall, or any other accident. Id. at 30. Mother and Father told Dr. Atkinson that Child had been solely in their care in the days leading up his hospitalization. Id. They explained that Mother primarily cared for Child during the daytime and Father cared for Child at night. Id. at 17-18. Paternal grandmother also would sometimes assist in Child's care at their house, but she was never alone with Child. Id. at 17, 30. Father and Mother also had three other children living at the house - ages 7, 8, and 13 - but the parents stated that they would supervise their children when they would hold Child. Id. at 20. Dr. Atkinson stated that it would be "unlikely" for a child under the age of 12 to inflict the type of injuries that were found on Child. Id. at 25.

DHS next presented Portia Henderson, DHS investigator. Henderson testified the family had no prior history with DHS. Id. at 42. She stated that as part of her investigation, she visited Child at the hospital and went to the family's home. Id. Mother and Father told Henderson that no one watched Child except for themselves and paternal grandmother. Id. at 46, 49. Henderson testified that Mother and Father were unable to provide any explanation as to how Child's injuries occurred, but they understood the severity of Child's injuries. Id. at 46-47. They told Henderson that Mother generally cared for Child during the day and Father cared for him at night, and that paternal grandmother sometimes came over to assist. Id. at 48. The parents said that paternal grandmother came to assist recently because Father had surgery and Mother was not feeling well. Id. The parents stated that paternal grandmother was never alone with Child. Id.

Mother and Father informed Henderson that the other children in the house were not allowed to hold Child without their supervision. Id. at 46, 51. Henderson interviewed each child separately. Id. 46, 56. Henderson stated that the seven-year-old and eight-year-old children told her that they do not pick up Child and the 13-year-old child had no interest in being involved with Child because he was heavily into his video games. Id. at 47, 56. Henderson also testified that Mother and Father did not mention that they had adult children, but she later learned of this information. Id. at 49-50. The adult children did not live at the house. Id. at 50.

Henderson concluded that the CPS report was indicated, which meant "there was a finding of suspected child abuse because of the significant injuries that [Child] suffered and the fact that the parents couldn't provide an explanation for" the injuries. Id. at 54-55. She also noted that there was a criminal investigation pending against Mother and Father stemming from Child's injuries. Id. at 64

Mother and Father did not testify at the adjudicatory hearing or present any evidence on their behalf.

The trial court adjudicated Child dependent because of Mother and Father's present inability to care for Child due to a stay-away order^[2] against parents as to Child because of the related criminal proceedings. See Trial Court Opinion, filed 2/3/23, at 4. However, the court declined DHS's request to make a finding of child abuse against the parents. Id. Child, through his counsel, filed the instant appeal.^[3]

Child raises the following issues:

1. Did clear, convincing, and competent evidence establish that [Child] suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of his parents, constituting prima facie evidence of abuse by Mother and Father pursuant to 23 Pa.C.S.[A.] §§ 6303(b.1) and 6381(d)?

2. Did the trial court err as a matter of law and abuse its discretion in failing to find [Child]'s parents perpetrators of child abuse, where clear and convincing evidence proved that parents were [Child]'s primary caretakers when he was a victim of child abuse, and they failed to rebut the presumption under 23 Pa.C.S.[A.] § 6381(d) because they presented no evidence?

Child's Br. at 6 (suggested answers and answers of trial court omitted).

We review orders entered in dependency cases for an abuse of discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). We must accept the findings of fact and credibility determinations if they are supported by the record, but we are not required to accept the trial court's inferences or conclusions of law. Id.

Child does not contest his dependency adjudication, but rather argues that the court abused its discretion in declining to make a finding of child abuse against Mother and Father pursuant to the Child Protective Services Law ("CPSL").^[4] We address Child's two issues together since they are related.

"Although dependency proceedings are governed by the Juvenile Act, the Child Protective Services Law controls determinations regarding findings of child abuse, which the juvenile courts must find by clear and convincing evidence." Interest of G.R., 282 A.3d 376, 380 (Pa.Super. 2022) (cleaned up) (footnotes omitted). Clear and convincing evidence means "evidence that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Interest of A.C., 237 A.3d 553, 558 (Pa.Super. 2020) (citation omitted).

As part of an adjudication of dependency, "a court may find a parent to be the perpetrator of child abuse," as defined by the CPSL. Interest of S.L., 202 A.3d 723, 728 (Pa.Super. 2019) (citation omitted). The CPSL defines "child abuse," in relevant part as "intentionally, knowingly or recklessly. . . [c]ausing bodily injury to a child through any recent act or failure to act." 23 Pa.C.S.A. § 6303(b.1)(1).

In certain cases, pursuant to section 6381(d) of the CPSL, the identity of the abuser need only be established through prima facie evidence. Interest of A.C., 237 A.3d at 558. Prima facie evidence is "[s]uch evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient." In re L.Z., 111 A.3d 1164, 1185 (Pa. 2015) (citation omitted)...