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In re J.G.


March 18, 2009


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.



¶ 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.

¶ 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 perpetrated on J.G. during a period wherein Parents had physical custody of him. Thus, CYF claims that Parents were the abusers of the child by commission and/or omission.

¶ 9 Our scope and standard of review in a dependency case are as follows:

In child dependency matters, we must accept the facts as found by the trial court unless they are not supported by the record. Although bound by the facts, we are not bound by the trial court's inferences, deductions, and conclusions therefrom; we must exercise our independent judgment in reviewing the court's determination, as opposed to its findings of fact, and must order whatever right and justice dictate. We review for abuse of discretion. Our scope of review, accordingly, is of the broadest possible nature.

It is this Court's responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Nevertheless, we accord great weight to the court's fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses.

In re R.W.J., 826 A.2d 10, 12 (Pa. Super. 2003) (citations omitted).

¶ 10 The standard to determine the identity of an abuser is set forth in 23 PA.CONS.STAT.ANN. § 6381(d) as follows:

(d) Prima facie evidence of abuse.--Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child.

¶ 11 This standard was explained in In Interest of J.R.W., 631 A.2d 1019 (Pa. Super. 1993). There, applying the presumption contained in Section 6381(d), the trial court found that J.R.W. had been abused by her parents, and consequently a "founded report" of child abuse was filed against both parents. On appeal, the parents argued that the presumption was insufficient to establish that they were the abusers because the law requires that clear and convincing evidence establish that one of the parents caused the serious injuries to the child. In reply, this Court said:

The lessened standard of establishing abuse by the caretakers, coupled with the clear and convincing evidence necessary to find dependency, has been imposed by the Legislature as the standard which the Juvenile Court must apply in deciding abuse cases. Prima facie evidence is not the standard that establishes the child has been abused, which must be established by clear and convincing evidence; it is the standard by which the court determines whom the abuser would be in a given case. There is no conflict, constitutional or otherwise, with the clear and convincing evidence standard imposed by the Act to establish child abuse. The Legislature has determined that the likelihood clearly established abuse has occurred, other than at the hands of the custodian, is so small that prima facie evidence the custodian has caused the injury, either by acts or omissions, is all that is required. We find no defect in this reasoning. Such a standard provides maximum protection for the child victim or other children in the community who might be subject to similar abuse if the alleged abuser was not identified and permitted free access to the victim or other vulnerable children. It is not equivalent to a finding of guilt in a criminal proceeding which could result in deprivation of freedom. Thus the legislature has balanced the needs of society and children for protection against the abuser's possible patterned behavior and his/her right to freedom unless found guilty beyond a reasonable doubt.

Id. at 1024 (emphasis added).

¶ 12 In In the Interest of G.C., 673 A.2d 932 (Pa. Super. 1996), aff'd, 558 Pa. 116, 735 A.2d 1226 (1999),*fn2 this Court discussed the test required to determine who constitutes an "other person responsible for the welfare of the child." In that case, a two-month-old child was hospitalized for trauma and injury to his head. Following an anonymous tip placed to the Northumberland County Children Youth and Services, the child was adjudicated dependent. Five potential perpetrators of the abuse were suspected; the mother and father, the maternal grandmother, the maternal grandfather, and the maternal step-grandfather. Following an investigation, it was revealed that the child was in the sole custody of maternal grandfather for nine and one-half hours on the day before the child's hospital admission and that the child was in his mother's custody for the twelve hours immediately preceding his admission to the hospital. Thereafter, maternal grandfather sought custody of the child, despite the fact that he was indicated as a potential abuser and had previously been placed on the Statewide Central Register as a perpetrator of abuse from an unrelated incident.

¶ 13 This Court consequently interpreted section 6381(d) as providing that an "other person responsible for the welfare of the child" is defined as the child's caretaker at the time of the abuse. See id., at 944. Thus, we concluded that the statute included the maternal grandfather as a "perpetrator of the abuse" because he was the child's caretaker in the relevant period prior to his hospital admission. This Court additionally noted that the mother also constituted a perpetrator of the abuse, per section 6381(d), because she was also a caretaker of the child in the relevant period. See id. This Court stated that, although the treating physician for the child could not determine whether the injuries were inflicted during the maternal grandfather's period of care or during the mother's period of care, CYF was not required to show which caretaker was the perpetrator of the abuse; rather, both parties could be adjudicated as abusers, per section 6381(d). Accordingly, we note that section 6381(d) is inclusive of all people in a caregiver position for an abused child during the time of abuse, and it relieves the complainant from bearing the burden of proving the precise abuser in a situation where a child was under the care of more than one adult at the time of the abuse. With this principle in mind, we find error with the trial court's application of section 6381(d).

¶ 14 In concluding that Parents were not the perpetrators of the abuse of J.G., the trial court provided the following reasoning:

If J.G. had been solely in the custody of his parents at the time the injuries were inflicted, the evidence would clearly be sufficient to identify them as perpetrators of the abuse by commission or omission. However, the testimony clearly shows that the child was in the care of the babysitter while the parents worked during the three-month period preceding the child's hospitalization. Dr. DeJong opined that the forearm fractures were inflicted between two and four weeks prior to the child's hospitalization. During that two to four-week period, the child was in the custody of both the parents and the babysitter. Similarly, Dr. DeJong testified that the subdural hemotoma and related injuries, which brought about the child's hospitalization on May 31, 2007, were inflicted within the seventy-two hours preceding the CT scan which was taken at 3:30 p.m. on May 31, 2007. Because the child was in the care of both his parents and the babysitter for extended periods during the windows of time in which the injuries were inflicted, it is impossible to identify the perpetrator based on caregiver status alone. Other than caregiver status, there is no evidence of record to support a finding that J.G.'s parents were perpetrators of the abuse.

Trial Court Opinion, 4/18/08, at 12 (emphasis added).

¶ 15 Accordingly, it appears that the trial court implicitly concluded that Parents had rebutted the presumption that they were the perpetrators of the abuse, under section 6381(d), by proving that J.G. was also in the babysitter's custody during the periods of time in question; however, we find this rationale incompatible with In the Interest of G.C., supra, and In the Interest of J.R.W., supra. Parents could not rebut the presumption provided in section 6381(d) by showing that the child was also in the care of the babysitter. If Parents had shown that the child was solely in the care of the babysitter during the relevant period, then possibly the presumption would have been rebutted; however, that is not the case in the instant matter, as revealed by the testimony at the hearings.

¶ 16 At the time of the first hearing, on June 18, 2007, Scott Biedenkamp, the investigator from CYF, testified that he was conducting an ongoing investigation in the abuse of J.G. See N.T., 6/18/07, 106-107, 131-132. At this time, Mr. Biedenkamp testified that he did not have sufficient information to identify the perpetrator(s) of the abuse. See id., at 132. He stated that he named Mother and Father as the perpetrators of the abuse in the dependency petition because he was unaware that the parents had childcare. See id., at 123. Upon further investigation, Mr. Biedenkamp stated that he discovered that Mother and Father shared the caretaker responsibilities for J.G., but while they were at work, Ms. Petrone, the babysitter, cared for J.G. Additionally, he stated that J.G. had been in the care of Ms. Petrone during the work day for approximately three months prior to J.G.'s hospitalization. Mr. Biedenkamp further stated that he only spoke with Ms. Petrone briefly because she stated she was represented by counsel, who advised her not to discuss the matter with CYF. See id., at 115. Thereafter, at the hearing held on June 21, 2007, Mr. Biedenkamp testified that he had since concluded that the parents are the perpetrators of the abuse because they were the primary caregivers. See N.T., 6/21/07, at 88.

¶ 17 Doctor DeJong testified that J.G.'s two broken bones in his right arm were in the healing stages and, therefore, he opined that they were inflicted approximately three weeks prior to J.G's initial admission to the hospital. See N.T., 6/18/07, at 12. As for the acute head injury suffered by J.G., Dr. DeJong stated that the injury could have occurred within three days prior to J.G.'s hospital admission. See id., at 20. Dr. DeJong additionally stated that, based on Parent's inability to provide a reasonable explanation for the broken arm, he found it to be an inflicted injury. See id., at 15. Relative to the head injury, Dr. DeJong found that Parents' reason for the injury, that J.G. rolled off the couch, was insufficient to account for the extensive nature of the damage to J.G. See id., at 22.

¶ 18 The testimony indicated that J.G. suffered abuse during periods where either Mother, Father, or the babysitter were the caretakers, although it is unclear precisely whose care J.G. was in during the time of his injuries. This fact pattern is similar to that in In the Interest of G.C., supra, where the child was in the care of the mother and the maternal grandfather during the period of time where the abuse was inflicted and this Court found that, despite the inability to isolate the precise abuser, both adults were perpetrators of the abuse as prescribed by section 6381(d). See id., 673 A.2d at 944.

¶ 19 Accordingly, we find that the trial court improperly concluded that the inability to allocate the blame amongst the three caretakers precludes a finding of Parents as perpetrators of abuse; instead, we find that, as applied in both J.R.W. and G.C., the presumption in section 6381(d) operates to relieve the burden of allocating blame among custodians. As such, it was legal error for the trial court to conclude that it could not find Parents as the perpetrators of the abuse "[b]ecause the child was in the care of both his parents and the babysitter for extended periods during the windows of time in which the injuries were inflicted." See Trial Court Opinion, 4/18/08, at 12.

¶ 20 In accordance with our clarification of the applicable legal standard, the trial court should make the factual determination regarding whether the Parents are indeed perpetrators of abuse, pursuant to section 6381(d). We emphasize that, contrary to the trial court's conclusions, it is not precluded from finding Parents as perpetrators of abuse in light of the numerous caretakers for the child during the period of time wherein the abuse occurred. Therefore, we reverse the order of the trial court denying the motion of the Guardian Ad Litem for J.G., requesting that Mother and Father be found as perpetrators of abuse, pursuant to section 6381(d). Further, we remand the matter to the trial court for proceedings consistent with this Opinion. Additionally, we direct that trial court review the Hearing Master's recommendation and respond in such a manner as required by Pa.R.J.C.P. 1191(D).

¶ 21 Order reversed. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

¶ 22 McEwen, P.J.E., files a Dissenting Statement.


¶ 1 While author of the majority Opinion reveals a careful analysis and presents a perceptive rationale of position, I am unable to join the decision.

¶ 2 As a threshold issue, I am of the mind that this appeal is interlocutory and should be quashed. Pennsylvania Rule of Appellate Procedure 501 states, "Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order . . . may appeal therefrom." Pa.R.A.P. 501 (emphasis supplied). Here, the Chester County Department of Children, Youth and Families (DCYF) filed a petition with the court of common pleas seeking relief in the form of a declaration of dependency, and the relief sought was granted.*fn3 Since DCYF prevailed, and the child, J.G., was declared dependent, make a determination regarding the utilization of reasonable efforts and whether it is contrary to the welfare of [J.G.] to remain in his own home.

DCYF's mere disenchantment with the factual findings underlying the trial court's ultimate ruling does not strike me as providing grounds for an appeal.*fn4

Moreover, there is no indication in the record that DCYF filed exceptions to the recommendation of the Master, thus preserving any issues for appeal. See: Pa.R.A.P. 302(a).

¶ 3 Moreover, I am compelled to differ with the majority's resolution of the merits of this appeal. The underlying facts of this case evoke every working parent's nightmare. In order to sustain employment the parents in this case, as many parents do, employed childcare. Thus, the seven-month-old child in question, J.G., spent most of his time in the company of either his parents or his childcare provider. When a question arose as to how the child sustained the serious injuries that resulted in his admission to the hospital,*fn5 the police conducted an investigation. Based on the results of the police investigation, and a less thorough investigation conducted by DCYF,*fn6 DCYF filed a petition in the Court of Common Pleas of Chester County seeking a declaration of dependency. It is of particular interest to note that, at the time of the filing of this petition, the initial investigative DCYF report had not identified the parents as "perpetrators of abuse," but the petition nevertheless alleged that the parents were the "perpetrators of abuse." The investigator for DCYF subsequently testified that this averment was based solely on the fact that the parents were the "primary caretakers of the child," and DCYF did not even know that the child regularly attended daycare. See: N.T., June 18, 2007, p. 123.

¶ 4 The Court of Common Pleas of Chester County thereafter provided for a Master to conduct a fact hearing prior to rendering a decision on the petition. The Master held three days of hearings in which she heard testimony from the medical expert, the police, the parents, and the investigator from DCYF. Significantly, the childcare provider was called as a witness, but refused to testify on grounds of the Fifth Amendment to the United States Constitution. Following the close of testimony and the argument of counsel, the Master submitted a recommended Order to the trial court, in which she concluded that the child was dependent, but that the evidence did not support designation of the parents as the perpetrators of abuse.*fn7 Exceptions were filed with the Court of Common Pleas of Chester County by the Guardian ad litem for J.G., and those exceptions were considered and rejected by the trial judge, the learned Judge Jacqueline Cody, who entered a final order denying the exceptions, thereby approving the recommended disposition of the Master. This appeal followed.

¶ 5 Presently, the majority is of the mind that the order of the trial court should be reversed, and grounds its decision upon the enunciation of the following "principle":

[S]section 6381(d)*fn8 is inclusive of all people in a caregiver position for an abused child during the time of abuse, and it relieves the complainant [CYF] from bearing the burden of proving the precise abuser in a situation where a child was under the care of more than one adult at the time of the abuse.

Majority Opinion, p. 8 (emphasis supplied). This principle is quite sweeping in its scope, the application of which may include not only parents who have exclusive control over their children,*fn9 but all persons - including teachers, babysitters, childcare providers, and relatives - who happened to have spent significant time with a child prior to that child being diagnosed with injuries caused by abuse, to the real possibility of being labeled a "perpetrator of abuse."*fn10 This result may obtain without any proof of the identity of the real abuser, all while relieving the agency of the responsibility of establishing adequate grounds for branding an individual with the scarlet letter of "A" for abuse.

23 Pa.C.S. § 6381(d).

¶ 6 Surely, the General Assembly could not have intended, nor anticipated, such a result. In my view the paramount intent of the General Assembly was the protection of the child, rather than the aggressive, and perhaps wrongful identification of otherwise innocent persons as "perpetrators of abuse." That paramount interest was amply protected in this case by the trial court's decision to declare the child dependent, a decision rendered after the fact finder was able to observe and pass on the credibility of the suspected abusers, before declining to designate them as "perpetrators of abuse." The fact that the trial court in this case accepted the Master's recommendation not to so brand these parents, even if the Master's hesitancy was impacted by the refusal of the childcare provider to provide testimony, compels me to accept its ruling, especially since there exists credible support for that decision. See: In re R.W.J., 826 A.2d 10, 12 (Pa.Super. 2003). Here, not only was the evidence presented by DCYF inadequate to identify the parents as abusers, that evidence consisted primarily of an accusation by DCYF, accompanied by the obvious admitted fact of parental proximity.*fn11 At its core, the position of DCYF was that the parents should be responsible for proving the negative proposition that that they did not commit the abuse.*fn12 That is a prospect that would, and should, frighten any individual accused of such an egregious offense.

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