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06/23/97 MATTER C.R.S. BORN 7/27/95 DEPENDENT

June 23, 1997


Appeal from the Order of the Court of Common Pleas of Cumberland County, Juvenile Division at No. 95-0161. Before HOFFER, J.

Before: Cirillo, P.j.e., Popovich and Hester, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich


filed June 23, 1997

This is an appeal by parents, K.A. and A.S., from the order of April 17, 1996, adjudicating the child, C.R.S., a dependent child and issuing a finding of abuse naming either or both parents as perpetrators of such abuse. Herein, the parents contend (1) that there was no clear and convincing evidence presented to support a finding of abuse, (2) that there was no clear and convincing evidence presented to support a finding of dependency, and (3) that Cumberland County Children and Youth Services (CYS) failed to comply with the procedural requirements of the Child Protective Services Law, 11 P.S. § 2201 et seq., and the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. We reverse. *fn1

C.R.S. was born on July 27, 1995. Shortly after birth, because there was a history of sudden infant death syndrome in C.R.S.'s extended family, C.R.S. was placed on an apnea (breathing) and bradycardia (heart rate) monitor which warned the parents of interruptions in the child's breathing or decreases in the child's heart rate. *fn2 The monitor revealed that C.R.S. had numerous episodes of apnea. *fn3 Specifically, during the month of September, 1995, C.R.S.'s monitor recorded six episodes of apnea. N.T. 2/21/96 pp. 36-37. On October 3, 1995, C.R.S. was examined by Maryellen Gusic, M.D. During the examination, C.R.S.'s father reported that C.R.S. suffered a severe apnea episode on September 29, 1995.

On October 7, 1995, C.R.S.'s monitor beeped, warning the parents that he was having another apnea attack. Father tickled the child's feet in an attempt to revive him. When this method did not work, and the child "turned dusky," Father shook the child. Father was still unable to revive C.R.S., and, therefore, he dialed 911 requesting assistance. Emergency Medical Technicians (EMTs) responded to Father's 911 call. Upon arrival, they found the child in respiratory arrest with no pulse. EMT Christopher Leonard immediately performed cardiopulmonary resuscitation on C.R.S., which included chest compressions and ventilation with a bag-valve mask. *fn4 Mr. Leonard's efforts were successful, and C.R.S. was transported to Holy Spirit Hospital. The child was subsequently transported to Poly Clinic Hospital's Emergency Room. Physicians who examined C.R.S. noticed a bruise on the child's left eyelid and two bruises under his chin. The physicians suspected that C.R.S. had been abused, and, therefore, they decided to transfer him to the Hershey Medical Center's Emergency Room. Upon arrival, C.R.S. was examined extensively by physicians. The physicians discovered bruises on C.R.S.'s eyelid, chin and nose, and a healing scab on the crown of his head. They also discovered intercranial hemorrhaging and approximately thirty retinal hemorrhages in the child's right eye.

On October 8, 1995, physicians at the Hershey Medical Center referred the case to CYS. CYS contacted Father and informed him that they suspected that C.R.S. had been abused. On October 13, 1995, the child was discharged from the hospital and placed in his parents' custody. CYS told the parents that pending further investigation the child should not be left alone with either parent. On November 15, 1995, CYS informed Father that their investigation was not completed but that C.R.S. should stay with a relative until further notice. The child's paternal grandparents agreed to care for C.R.S. until the matter was settled.

On December 11, 1995, CYS informed Father that the investigation was complete and that abuse was "indicated." C.R.S. continued to live with his grandparents. CYS made no efforts to reunify the family. Following an altercation between C.R.S.'s parents and grandparents, Father requested CYS to return the child to his custody. CYS refused and filed a petition on December 19, 1995, alleging that the child was dependent and abused. An emergency shelter hearing was held on December 22, 1995. Following the hearing, the trial court determined that C.R.S. was abused and that he was a "dependent child" as defined in Section 6302 of the Juvenile Act. A full adjudicatory hearing was held on February 21, 1996. On April 12, 1996, the lower court entered an order finding that C.R.S. was abused by one or both of his parents, finding that he was a dependent child and awarding care and custody of the child to the child's paternal grandparents. A Dispositional hearing was held on April 17, 1996. By order entered April 17, 1996, the lower court reiterated its finding that C.R.S. was an abused and dependent child but returned care and custody of the child to his parents, subject to CYS's protective supervision. See 42 Pa.C.S.A. § 6351(a)(1) (if a child is found to be a dependent child, the court is permitted to allow the child to remain with his parents subject to limitations and supervision). This timely appeal by C.R.S.'s parents followed.

"Dependency proceedings concern themselves with the correction of situations in which children are lacking proper parental care or control." In Interest of J.M., 438 Pa. Super. 409, 652 A.2d 877, 880 (1995) (citations omitted). A dependent child is one who "is without proper parental care or control...necessary for his physical, mental, or emotional health...." 42 Pa.C.S.A. § 6302. "Whether a child is lacking proper parental care and control encompasses two discrete questions: (1) Is the child at this moment without proper parental care or control? and (2) If so, is such care and control immediately available?" In Re Jeffrey S., 427 Pa. Super. 79, 628 A.2d 439, 440 (1993) (citations omitted). See In Interest of JOV, 454 Pa. Super. 630, 686 A.2d 421 (1996). "The burden of proof in a dependency proceeding is on the petitioner...who must show [that] the juvenile is without proper parental care, and that such care is not available immediately." In Interest of J.M., 652 A.2d at 880 (citations omitted). "Both of these determinations must be supported by clear and convincing evidence." In Interest of JOV, 686 A.2d at 423 (citation omitted). Such a Conclusion requires that testimony be "so clear, direct, weighty, and convincing as to enable the trier of facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In Re S.M., 418 Pa. Super. 359, 614 A.2d 312, 313 (1992) (citation omitted).

A finding of abuse may support an adjudication of dependency. In the Matter of Read, No. 47 Harrisburg 1996 (March 21, 1997); In Interest of J.M., (supra) ; In Interest of J.R.W., 428 Pa. Super. 597, 631 A.2d 1019 (1993). When the court's adjudication of dependency is premised upon physical abuse, its finding of abuse must be supported by clear and convincing evidence. In the Matter of Read, (supra) ; In Interest of J.R.W., (supra) . However, "its findings 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 (parents)." In Interest of J.R.W., 631 A.2d at 1024.

Our standard of review in dependency cases is well-established.

The standard of review which this Court employs in cases of dependency is broad. However, the scope of review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. We accord great weight to this function of the hearing Judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. Relying ...

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