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In re L.Z.

Superior Court of Pennsylvania

April 29, 2014

IN THE MATTER OF: L.Z. APPEAL OF: L.F., MOTHER

As Amended May 6, 2014.

Appeal from the Order Dated January 6, 2012. In the Court of Common Pleas of Philadelphia County. Family Court at No(s): CP-51-DP-0002428-2011 FID: 51-FN-004522-2011. Before Butchart, J.

Edward M. Flannery, Philadelphia, for appellant.

Patricia A. Korey, Philadelphia, for appellee.

Michael E. Angelotti, Philadelphia, for Dept. of Human Services, participating party.

BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, PANELLA, DONOHUE, SHOGAN, LAZARUS, OLSON AND WECHT, JJ. OPINION BY OLSON, J. DISSENTING OPINION BY PANELLA, J.

OPINION

Page 209

OLSON, J.

Appellant, L.F. (" Mother" ), appeals from the juvenile court's January 6, 2012 order adjudicating L.Z. (" Child" ) dependent, finding aggravated circumstances, and finding Mother a perpetrator of child abuse. We affirm in part and vacate in part.

The juvenile court recited the following facts in its Pa.R.A.P. 1925(a) opinion:

On December 31, 2011, the Department of Human Services (hereinafter, " DHS" ) received a Child Protective Services (hereinafter, " CPS" ) report alleging that [] Child was brought to Abington Memorial Hospital with a deep cut to the base of his penis, a bruise on each of his cheeks, and severe diaper rash.
[* * *]
On January 6, 2012, there was an adjudicatory hearing held before Judge [Ann M.] Butchart. Mother was present at the hearing and was represented by counsel. The [c]ourt heard testimony from DHS social worker, Kelly Brown [(" Ms. Brown" )]. Ms. Brown testified that she met with Mother at the hospital on December 3, 2011. Mother told [Ms. Brown] that she had been residing with

Page 210

her paramour for the two days prior to the incident and that she had not seen [] Child since that time. Mother told Ms. Brown that she and [] Child resided with [R.F., Child's maternal aunt (" Aunt" )], and that [she and Aunt] were the two primary caregivers for [] Child. In her testimony, Ms. Brown stated that Mother indicated that [] one of the green circular marks on [] Child's cheekbones was caused by a fall where he hit his face on a table. Mother was unable to provide any explanation as to the cause of the other mark. It was also noted that [] Child consistently resided with Mother. Ms. Brown testified that she had received another report that [] Child was unkempt, his feet were filthy, and his toes were dirty. It was also learned that while Mother and [Aunt] were transporting [] Child to the hospital they stopped at Dunkin['] Donuts. Mother was diagnosed as suffering from bipolar disorder. However, Mother's level of compliance with treatment was unknown.
Ms. Brown testified that there was a General Protective Services (hereinafter, " GPS" ) report that was substantiated against Mother, regarding lack of supervision for [] Child and [] Child suffering from a yeast infection. Mother was not indicated as a perpetrator of abuse either by commission or omission for the CPS report. [Aunt] was indicated as a perpetrator of abuse in the CPS report.
The [c]ourt also heard testimony from Dr. Deborah Silver [(" Dr. Silver" )], the Medical Director of the Pediatric Inpatient Unit at Abington Memorial Hospital. Dr. Silver was qualified as an expert in pediatric medicine. Dr. Silver received training in identifying and treating child abuse and during the course of her career had seen several cases of abuse. Dr. Silver testified that she believed [] Child was the victim of child abuse. Dr. Silver stated that in cases where there is a suspicion of child abuse pictures were taken as a matter of ordinary course. The pictures provided to the [c]ourt indicated a bruise on [] Child's left cheekbone, a bruise on his right cheek, a penis laceration in his genital area, and a significant diaper rash. Dr. Silver testified that [] Child's penile laceration was an " extremely uncommon presentation" for a child of his age. Dr. Silver also indicated in her professional opinion that the injury caused [] Child severe pain. She also stated that the injury appeared to be non-accidental in nature. The explanation for the injury provided by [Aunt] was that [] Child pulled firmly on his foreskin and put traction on his penis causing it to bleed. Dr. Silver opined that this explanation did not seem plausible because [] Child was not strong enough to cause such an injury to himself.
Dr. Silver described [] Child's bruises in detail. [] Child's bruises were very dark and were located on opposite sides of his face. He had a large bruise in the meat of his right cheek in the buckle area as well as his left cheekbone. Mother stated that the bruises were caused when [] Child fell on top of a T.V. table. Dr. Silver testified that in her professional opinion the explanation provided was not consistent with the injuries. Dr. Silver opined that the injury to the right cheek was caused by someone grabbing [] Child's face and " squeezing it between their fingers and planting their thumb in the cheek." Dr. Silver stated that [] Child could not have been very comfortable and that this was a common abuse injury that she saw. Dr. Silver testified that although she could not provide an exact date of when [] Child suffered the bruises, she

Page 211

did state that they were less than a week and more than a day old.
Mother reported that [] Child's diaper rash was caused by diarrhea. Dr. Silver reported that the location of [] Child's diaper rash indicated that he had been in urine for extended periods of time. Mother's explanation for the rash was not compatible to the location of the rash. [] Child was also treated for a yeast infection. Dr. Silver testified that [] Child was very dirty. [] Child had dirt from his knees to his toes and his toenails were encrusted with black dirt. Dr. Silver diagnosed [] Child's injuries as " non-accidental trauma."

Juvenile Court Opinion, 5/17/12, at 1-5 (record citations and footnotes omitted).

As a result of the foregoing, DHS filed a petition on December 9, 2011 seeking to have Child adjudicated dependent. The Defender Association of Philadelphia Child Advocacy Unit was appointed counsel and guardian ad litem (" Child Advocate" ) for Child. On January 4, 2012, the Child Advocate filed a motion seeking a ruling that Child was a victim of child abuse, that Mother was the perpetrator of said abuse, and that aggravated circumstances as defined by 42 Pa.C.S.A. § 6302 existed. On January 6, 2012, a hearing was held on DHS' dependency petition and the Child Advocate's motion. At the conclusion of the hearing, the juvenile court adjudicated Child dependent based upon present inability to care for Child and child abuse. The juvenile court specifically found that Child was the victim of abuse perpetrated by Mother, and that there were aggravated circumstances. Aggravated Circumstances Order, 1/6/12. As a result of the finding of aggravated circumstances the juvenile court ordered that " no efforts are to be made to preserve the family and reunify [] Child with [] Mother." Id.

Mother filed a timely notice of appeal on February 6, 2012,[1] in which she raised three issues: 1) the juvenile court erred in finding Mother responsible for child abuse under 23 Pa.C.S.A. § 6303; 2) the juvenile court erred in finding that aggravated circumstances existed under 42 Pa.C.S.A. § 6302; and, 3) the juvenile court erred in finding that DHS did not need to make reasonable efforts to reunify. In a prior opinion, a divided panel of this Court affirmed in part and vacated in part the order of the juvenile court. Specifically, the juvenile court's order was affirmed insofar as it declared Child dependent. The juvenile court's findings that Mother was the perpetrator of abuse and that aggravated circumstances existed were vacated. Moreover, the juvenile court's order permitting cessation of reunification efforts was vacated. Appellee, the Child Advocate, sought reargument of our decision and we granted en banc review. This matter is now ready for this Court's consideration.

In her brief upon reargument, Mother raised three issues for the en banc Court's review:

1. Did the [juvenile] court err in finding that aggravated circumstances existed under 42 Pa.C.S.A. § 6303 [ sic ]?
2. Did the [juvenile] court err in finding that DHS need not make reasonable efforts to reunify [Mother and Child]?
3. Did the [juvenile] court err when it found that Mother was responsible for child abuse under 23 Pa.C.S.A. § 6303?

Page 212

Mother's Reformatted Brief at 3. Although Mother and Appellee briefed all three issues, Mother's counsel advised this Court during oral argument that Mother was waiving the first two issues. When asked for clarification, Mother's counsel stated that at some point during the appeal, Mother voluntarily relinquished her parental rights as to Child. Therefore, she was waiving any arguments with respect to a finding of aggravated circumstances and the cessation of reunification efforts. Hence, Mother's counsel stated during oral argument that the only issue for this Court to decide is whether the juvenile court erred when it concluded that Mother was a perpetrator of child abuse.

Yet, before we are able to consider the merits of Mother's remaining claim, we must first determine whether said claim is moot. Indeed, although neither party has argued that Mother's claim is moot, we may sua sponte raise the issue of mootness, as we generally " cannot decide moot or abstract questions, nor can we enter a judgment or decree to which effect cannot be given." Orfield v. Weindel, 2012 PA Super. 135, 52 A.3d 275, 277 (Pa. Super. 2012) (internal citations and quotations omitted); see also Commonwealth v. Pruitt, 615 Pa. 182, 41 A.3d 1289 (Pa. 2012) ( sua sponte dismissing the appeal as moot); In re Estate of Baehr, 533 Pa. 70, 618 A.2d 944 (Pa. 1993) (same).

Given that Mother's appeal lies from the juvenile court's order adjudicating Child dependent, and given that Mother has admitted to this Court that she no longer has any parental rights to Child, one could argue that Mother's claim of error is moot. We, however, conclude that Mother's claim on appeal is not moot.

As we have explained:

The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten underway - changes in the facts or in the law - which allegedly deprive the litigant of the necessary stake in the outcome. The mootness doctrine requires that an actual controversy [exist] at all stages of review, not merely at the time the complaint is filed.
As a general rule, an actual case or controversy must exist at all stages of the judicial process, or a case will be dismissed as moot. An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case or due to an intervening change in the applicable law. In that case, an opinion of this Court is rendered advisory in nature. An issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect. . . .
Nevertheless, this Court will decide questions that otherwise have been rendered moot when one or more of the following exceptions to the mootness doctrine apply: 1) the case involves a question of great public importance, 2) the question presented is capable of repetition and apt to elude appellate review, or 3) a party to the controversy will suffer some detriment due to the decision of the trial court.

In re D.A., 2002 PA Super. 184, 801 A.2d 614, 616 (Pa. Super. 2002) ( en banc ) (internal citations and quotations omitted).

With respect to the third of the above-listed exceptions, we have held that - in determining whether a party " will suffer some detriment due to the decision of the trial court" - a court may consider the collateral legal consequences of the court order. For example, in In re D.A., the child was adjudicated dependent and the mother appealed to this Court. Within the mother's

Page 213

appellate brief to this Court, the mother primarily argued that the juvenile court erred when it adjudicated the child dependent. Id. at 615 and 618. However, during the pendency of the mother's appeal, the juvenile court closed the dependency case and dissolved the child's status as a dependent child. Id. at 616. Notwithstanding this fact, an en banc panel of this Court held that the mother's appeal was not moot, as the dependency adjudication could potentially cause the mother detrimental collateral legal consequences in the future. Specifically, we held:

[The m]other will suffer a detriment due to the trial court's initial decision declaring [the child dependent]. The finding of dependency regarding [the child] could detrimentally affect any future proceedings in which [Children, Youth, and Family] would be involved with this family, either with [the child] directly or with any other child in the family. In determining whether a child is dependent, " the court must ascertain . . . what sort of parental care the child received in the past. . . ." In the Interest of Ryan C., 294 Pa.Super. 417, 440 A.2d 535, 536 (Pa. Super. 1982). . . . Any future allegations regarding [the m]other's care of [the child] necessarily will encompass consideration of the dependency finding rendered herein.

Id. at 616-617; see also In re E.B., 898 A.2d 1108, 1111, 2006 PA Super. 102 (Pa. Super. 2006) (citing In re D.A. and holding that the mother's appeal from the adjudication of dependency was not moot - even though the juvenile court discharged the dependency petition during the pendency of the appeal - " since due to the adjudication, [the] mother will suffer a detriment in any future proceedings with DHS" ); cf. In the Interest of C.L., 436 Pa.Super. 630, 648 A.2d 799, 800 (Pa. Super. 1994) (holding that the mother's paramour had standing to appeal the adjudication of dependency, as the adjudication was based upon a direct finding that the paramour sexually abused the children and the juvenile court ordered the paramour to have no contact with the children).

Here, Mother is challenging the juvenile court's specific determination that Mother was the perpetrator of child abuse, as those terms are defined under the Child Protective Services Law (" the Law" ), 23 Pa.C.S.A. § § 6301-6386. See Juvenile Court Order of Adjudication and Disposition, 1/6/12, at 1-3 (declaring " [t]he [juvenile c]ourt hereby finds that [Child] is a victim of child abuse as defined at 23 [Pa.C.S.A. § ] 6303, in that as to [M]other" ). Clearly, this determination has caused, and will cause, Mother detrimental collateral legal consequences. Indeed, the judicial adjudication that Mother was a perpetrator of child abuse constitutes the legal prerequisite for the Philadelphia DHS to lodge a " founded report" of child abuse against Mother, with the Department of Public Welfare of the Commonwealth. See 23 Pa.C.S.A. § 6303(a) (defining a " founded report" as " [a] child abuse report made pursuant to [the Law] if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused, including the entry of a plea of guilty or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse" ) (emphasis added).

Pursuant to statute, once Mother is named as the perpetrator of abuse in a founded report, Mother immediately suffers a number of legal sanctions, including: Mother's name is placed in the Statewide central register; [2] Mother may not become

Page 214

a school employee; [3] and, for five years, Mother may not become an adoptive parent, may not become a foster parent, may not be hired by an administrator of child-care services, may not be certified to operate a family day-care home, and may not be hired in an " occupation[] with a significant likelihood of regular contact with children." [4],[5]

Given the above, it is clear that the juvenile court's adjudication - finding Mother to be the perpetrator of child abuse - will cause Mother substantial, detrimental collateral legal consequences. Therefore, pursuant to In re D.A., we conclude that Mother's challenge to this specific aspect of the juvenile court's adjudication is not moot, as Mother " will suffer some detriment due to the decision of the [juvenile] court." In re D.A., 801 A.2d at 614-617. We may thus reach the merits of Mother's third claim.

We review the juvenile court's decisions in a dependency action as follows:

[T]he standard this Court employs is broad. We accept the [juvenile] court's factual findings that are supported by the record, and defer to the court's credibility determinations. We accord great weight to this function of the hearing judge because [s]he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before [her]. Relying upon [her] unique ...

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