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In re J.G.

March 18, 2009

IN THE INTEREST OF J.G., A MINOR
APPEAL OF: CHESTER COUNTY DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES



Appeal from the Order entered January 2, 2008 In the Court of Common Pleas of Chester County, Domestic Relations, Juvenile No. 55CS07.

The opinion of the court was delivered by: Panella, J.

BEFORE: BOWES, PANELLA, JJ., and McEWEN, P.J.E.

OPINION

¶ 1 This case involves a dependency order entered regarding J.G., who was born on November 2, 2006. The Chester County Department of Children, Youth and Families ("CYF") appeals from the order entered January 2, 2008, in the Court of Common Pleas of Chester County, Juvenile Division. The order denied the motion requesting that the trial court reject the recommendation of the Hearing Master and issue an order finding J.G.'s parents, M.N. ("Mother") and J.G. ("Father") (collectively "Parents") to be perpetrators of abuse, as prescribed by 23 PA.CONS.STAT.ANN. §6381(d), or to conduct a rehearing.*fn1 After careful review, we reverse and remand for proceedings consistent with this Opinion.

¶ 2 On May 31, 2007, the babysitter for J.G., Gloria Petrone, who is the wife of Mother's nephew, telephoned Parents to tell them that J.G. was unresponsive. Parents both worked outside of the home and Ms. Petrone cared for J.G. during the work day. J.G. was subsequently taken to A.I. Dupont Hospital for Children in Wilmington, Delaware, where he was admitted and examined by Dr. Allan DeJong, M.D. Dr. DeJong conducted an examination and noted that there were no external signs of injuries on J.G. However, he reviewed a CT scan and discovered a subdural hematoma on J.G.'s head and healing fractures in his right arm. Dr. DeJong estimated that the fractures occurred around the first or second week of May 2007. Dr. DeJong then spoke with Mother about the broken arm, and Mother informed him that J.G. had rolled off the bed three weeks earlier. Dr. DeJong did not find her explanation sufficient to account for the child's injuries. CYF was subsequently informed of the circumstances.

¶ 3 On June 4, 2007, CYF filed a petition alleging that J.G. was a dependent and abused child within the meaning Section 1 of 42 PA.CONS.STAT.ANN. § 6302. A hearing was held before a Hearing Master, after which, on June 25, 2007, the Hearing Master recommended that the trial court adjudicate J.G. as dependent. However, based on the fact that, during the time of the abuse, J.G. was in the care of several different adults, the Hearing Master found that there was insufficient evidence to prove that Parents were the perpetrators of the abuse.

¶ 4 The Guardian Ad Litem for J.G. subsequently filed a timely motion challenging the Hearing Master's recommendation, alleging that Parents should be adjudicated as the perpetrators of the abuse. In a temporary order dated July 2, 2007, and entered on July 16, 2007, the trial court found J.G. dependent, but did not make a finding regarding the Parents' role as abusers. In the order, the trial court noted that further hearing would be held regarding the adjudication and disposition of the case. As this was only a temporary order, we note that the trial court did not enter a final order regarding whether it chose to accept or reject the Hearing Master's recommendation. See Pa.R.J.C.P. 1191(D) (stating that within seven days of receipt of the master's findings, a trial court is required to either accept the recommendation by order, reject the recommendation and issue an order with a different disposition, send the recommendation back to the hearing master for more specific findings, or conduct a rehearing). Since a final order was not entered and the temporary order noted that further hearing would be conducted, it appears that the trial court intended to conduct a hearing on July 30th, in accordance with Pa.R.J.C.P. 1191(D)(4), as the trial court stated in paragraph 6: "THIS CASE SHALL BE HEARD FOR ADJUDICATION/DISPOSITION ON MONDAY, JULY 30, 2007 . . . ."

¶ 5 However, the trial court did not conduct a rehearing on the underlying petition. In an order dated December 31, 2007, and entered on January 2, 2008, the trial court denied the Guardian Ad Litem's motion requesting the trial court adjudicate Parents as perpetrators of the abuse, as prescribed by section 6381(d).

¶ 6 Thereafter, on January 20, 2008, CYF filed a notice of appeal to this Court. This timely appeal followed.

¶ 7 On appeal, CYF presents the following claims of error:

A. Did the trial court err when, despite the fact that the minor child suffered serious inflicted injuries on more than one occasion and over the course of several weeks, in not finding that the parents were the perpetrators of this physical abuse?

B. Did the trial court err in failing to find, despite the evidence presented to the court and despite the presumption raised in 23 Pa.C.S.§ 6381(d) [sic], "Prima Facie Evidence of Abuse," that the perpetrators of the abuse against the minor child were his caretakers, i.e. his parents?

CYF's Brief, at 6.

ΒΆ 8 Although CYF presents two issues on appeal, the issues interrelate; thus, CYF presents only one discussion in the argument section of its brief. In its argument, CYF asserts that it met the requirements to prove "Prima Facie Evidence of Abuse" per Section 6381 of the Juvenile Act. As such, it asserts that a presumption should be applied that Parents are the perpetrators of the child abuse. CYF claims that there was no evidence presented to rebut this presumption in that there was no evidence that any person other than the parents, as primary caregivers, were the perpetrators of the abuse. Moreover, CYF emphasizes that two serious injuries were ...


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