IN INTEREST OF: L.Z., A MINOR CHILD. APPEAL OF: L.Z
Argued November 19, 2014.
Appeal from the Judgment of Superior Court entered on 04/29/2014 affirming in part and vacating in part the Order dated 01/06/2012 in the Court of Common Pleas, Family Division, Philadelphia County at CP-51-DP-0002428-2011, FID: 51-FN-004522-2011. Ann M. Butchard, Trial Court Judge.
For L.Z., APPELLANT: Patricia Anne Korey, Esq., Donella R. Shaffer, Esq., Defender Ass'n of Philadelphia.
For Dep't of Human Servs, APPELLEE: Michael Eugene Angelotti, Esq., Deborah Lenora Canty, Esq., City of Philadelphia Law Dep't.
For L.F., Mother, APPELEE: Edward M. Flannery, Esq., Claire Leotta, Esq.
For D.Z., Father, APPELEE: Lisa Che' Harding, Esq., Johnson, Harding & Russeck, LLC.
For Community Legal Servs., Inc. and Allegheny County Bar Foundation Juvenile Justice Project, APPELLEE AMICUS CURIAE: Elizabeth Ann Larin, Esq., Catherine L. Volponi, Esq., Juvenile Court Project.
MR. JUSTICE BAER. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ. Former Chief Justice Castille did not participate in the decision of this case. Mr. Chief Justice Saylor, Mr. Justice Eakin, Madame Justice Todd and Mr. Justice Stevens join the opinion.
MR. BAER, JUSTICE.
We granted review to consider whether the Superior Court exceeded its scope and standard of review in substituting its judgment for that of the trial court in determining whether the child at issue in this case suffered abuse and whether that abuse was perpetrated by his mother. This inquiry necessarily entails a determination of whether the Superior Court misapplied the Child Protective Services Law's (CPSL) definition of child abuse and whether the court misconstrued the evidentiary presumption of 23 Pa.C.S. § 6381(d), which provides that when a
child incurs abuse not ordinarily suffered absent acts or omissions of a parent or other person responsible, the fact of abuse suffices to establish prima facie evidence of abuse by the parent or person responsible. For the reasons set forth below, we reverse.
On December 3, 2011, twenty-one-month-old L.Z. (Child) was brought to Abington Memorial Hospital by L.F., his mother (Mother), and R.F., his maternal-aunt (Aunt), who lived and cared for child together, to be treated for a deep cut nearly halfway around the base of his penis. The physicians also observed a dark bruise in the buckle area (above the jawbone and below the cheekbone) of Child's right cheek and another on his left cheekbone, as well as a severe diaper rash and yeast infection on the front of his body. Notes of Testimony (N.T.), 1/6/12, at 6-7. Child was also unkempt with very dirty legs and feet. N.T. at 14. As discussed below in more detail, the presentation of these injuries was consistent with abuse and inconsistent with several explanations given by Mother and Aunt, which led the treating physicians to suspect that the injuries were non-accidental. The hospital staff filed a report with the Philadelphia Department of Human Services (DHS or Appellant).
After initial emergency proceedings, the court placed the child in protective custody, with physical custody given to Child's maternal grandfather (Grandfather). At an adjudicatory hearing on January 6, 2012, at which Mother was present and represented by counsel but, significantly, did not testify, the court considered DHS's dependency and aggravated circumstances petitions. A caseworker testified that Mother acknowledged at the hospital that she and Aunt were Child's primary caregivers, but claimed that she had been staying with her paramour for the two days prior to the hospital visit, while Child was with Aunt. N.T. at 8. She noted that the Child Protective Services (CPS) report indicated Aunt, rather than Mother, as the perpetrator of the abuse. N.T. at 19.
Dr. Deborah Silver, the Medical Director of Abington Memorial's Pediatric Inpatient Unit, who examined Child in the hospital, testified at the adjudication hearing as an expert in pediatric medicine. She opined that Child was abused. N.T. at 46. Regarding the penile laceration, the expert indicated that it was an " extremely uncommon presentation." N.T. at 37. She rejected Aunt's extrajudicial claim that Child caused the laceration when he tugged on his penis during a diaper change; instead, the doctor testified that Child was not strong enough to cause the injury and that the laceration was linear, rather than having jagged edges, which would have been consistent with ripping the skin. N.T. at 39-40. The doctor also opined that Child would have suffered severe pain. N.T. at 37.
Speaking to the bilateral cheek bruising, the doctor testified that it was a " common abuse injury" caused by an adult planting a thumb in one cheek and squeezing the child's face between the thumb and fingers. N.T. at 42. She explained that injuries to the buckle of the cheek are inconsistent with a fall onto a table, as Mother had claimed, which would instead cause injury to the protruding parts of the face such as the cheekbone or orbital area. N.T. at 41. The expert opined that Child's bruises were more than a day but less than a week old. N.T. at 42. Significantly, after detailing the dark bruising and
their likely cause, the doctor was asked whether that would " cause a child severe pain," and responded, " I am sure it couldn't have been very comfortable."  N.T. at 42.
Turning to the yeast infection and diaper rash, the doctor rejected Mother's out-of-court claim that the severe skin condition resulted from sustained diarrhea that did not respond to treatment with diaper rash creams. The doctor explained that Child's rash was inconsistent with diarrhea, which would be on the buttocks area, given that the rash was on Child's front and thighs, which was " usually from being in urine for extended periods of time." N.T. at 42-43. Thus, the doctor testified that the injuries (the penile laceration, cheek bruises and diaper rash/yeast infection) were " consistent with a pattern of suspected child abuse" and that Child was a " victim of child abuse." N.T. at 46-47.
After the hearing, the trial court entered an order finding Child dependent. The court specifically found that it was in Child's best interest to be removed from Mother's home and that preventive services were not necessary prior to the removal because of the need for emergency placement. Significantly, the court found that Child was a victim of child abuse as defined at 23 Pa.C.S. § 6303, and that
Mother was the perpetrator of such abuse. Dependency Order of Jan. 6, 2012. The court transferred temporary legal custody to DHS and placed Child in Grandfather's physical custody, with Child's parents receiving supervised weekly visitation. The trial court also entered an order finding that aggravated circumstances existed because Child was " the victim of physical abuse resulting in serious bodily injury, sexual violence, or aggravated neglect by the parent; proven as to Mother." Aggravated Circumstances Order of Jan. 6, 2012. Accordingly, the court concluded that DHS did not need to make further efforts to reunify Child with Mother.
In a subsequent Pa.R.A.P. 1925(a) opinion, the court elaborated that " clear and convincing evidence existed that the Child was without parental care" and that " Child's injuries would not have occurred but for Mother's omissions as his primary caretaker." Tr. Ct. Op. at 6. The court cataloged the following injuries, which it noted were inconsistent with Mother and Aunt's explanations: " an untreated yeast infection and diaper rash from being in urine for extended periods of time," the very deep penile laceration, and the inflicted rather than accidental bilateral cheek bruising " caused by someone grabbing the face and squeezing it between their fingers." Id. at 7. The court then concluded,
Based on those facts, the Court determined that Mother was the perpetrator of the abuse because the Child was in her care. Whether or not she inflicted the injuries directly was irrelevant. She failed to act and protect the Child from the serious physical injuries he suffered. The medical evidence established that the Child's injuries were consistent with child abuse.
Id. at 7-8. As discussed infra, a dependency court's finding that an individual perpetrated abuse allows for the filing of a founded report of child abuse with the Department of Public Welfare and inclusion in the statewide ChildLine Registry, which inter alia restricts an individual's ability to engage in employment related to children. See 23 Pa.C.S. § § 6331, 6338(a), 6344-6344.2, and 6355.
Mother appealed the orders to the Superior Court claiming that the trial court erred in finding that Mother was responsible for the child abuse under 23 Pa.C.S. § 6303. The Superior Court initially entered an opinion of a three-judge panel, affirming the adjudication of dependency but vacating the trial court's determination that Mother was the perpetrator of abuse.
Subsequently, the Superior Court granted the Guardian ad litem 's (GAL or Appellant) petition for reargument en banc. The en banc panel again affirmed the dependency adjudication and vacated the abuse determination, after recognizing that Mother had waived certain issues by voluntarily relinquishing her parental rights to Child prior to reargument. In re L.Z., 2014 PA Super 85, 91 A.3d 208, 212 (Pa. Super. 2014).
In deciding whether Mother had perpetrated abuse on Child, the court first considered which of Child's injuries constituted abuse. While the trial court viewed the laceration, the cheek bruising, and the diaper rash as abuse, the Superior Court Majority concluded that only the penile laceration was proven by clear and convincing evidence to have resulted from " non-accidental serious physical injury" and therefore constituted child abuse pursuant to Section 6303(b). Id. at 215-16. It rejected labeling the dark bilateral
bruising on Child's cheeks as abuse based upon the medical expert's comment that Child " couldn't have been very comfortable." Id. at 215; see supra at 3 n.2. Likewise, the court dismissed the yeast infection and severe diaper rash, in part because " it responded well to treatment" in the hospital. Id. at 216.
The panel next considered whether the trial court erred in determining Mother to be the perpetrator of the laceration, the only injury it found to constitute abuse. The court recognized that 23 Pa.C.S. § 6381(d) provides for prima facie evidence of abuse in certain situations:
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.
23 Pa.C.S. § 6381(d). In interpreting the statutory section, the en banc panel quoted its prior decision in In re J.G., 2009 PA Super 217, 984 A.2d 541, 547 (Pa. Super. 2009), which stated that Section 6381(d) only applies if the abuse is of such a nature that it " would ordinarily not be sustained or exist except by reason of the acts or omissions [of the person], and the person is proved to have had responsibility for the welfare of the child at the time of the abuse." L.Z., 91 A.3d at 216 (emphasis in L.Z.).
The en banc Majority emphasized the final phrase of the J.G. quotation regarding " time of abuse." The court looked to prior Superior Court and Commonwealth Court caselaw utilizing the " time of abuse" terminology in cases involving multiple caregivers. In those multiple caregiver cases, some intermediate appellate courts have opined that " [w]here the record is unclear as to which parent or person was responsible for the child at the time of the abuse, 'the viability of the presumption in [§ 6381(d)] is questionable.'" Id. (citing In re J.G., 984 A.2d at 547; C.E. v Dep't of Pub. Welfare, 917 A.2d 348, 356-57 (Pa. Cmwlth. 2007)); but
see In the Interest of J.R.W., 428 Pa.Super. 597, 631 A.2d 1019 (Pa. Super. 1993) (applying Section 6381(d) presumption in multi-caregiver situation). In multiple caregiver cases, the court continued, " the presumption in 23 [Pa.C.S.] § 6381(d) is inherently self-rebutting, and applying it to one or both persons alleged to be the perpetrators would be arbitrary and capricious." L.Z., 91 A.3d at 216 (quoting J.G., 984 A.2d at 548). Given this precedent, the en banc panel held that " Section 6381(d) does not, however, permit the court to designate a parent a perpetrator of abuse where the record fails to establish that the child was in the parent's care at the time of the injury." L.Z.,
91 A.3d at 216.
The en banc Majority proceeded to apply this reading of Section 6381(d) to the facts of the case at bar. It recognized that there was no dispute that Mother and Aunt were Child's primary caregivers. The en banc Majority, then, set forth the facts as Mother and Aunt supplied them to the case worker at the hospital as if there were no dispute regarding their truth, even though neither Mother nor Aunt testified at the hearing and the hospital staff and trial judge found their assertions regarding Child's injuries implausible. Thus, the Superior Court Majority, essentially, made a finding of fact that Mother had not seen Child for two days before
Aunt told her that Child's penis was bleeding. Id. at 217. Given that the doctor testified that the laceration was less than twenty-four hours old when it was examined in the hospital, the Majority proceeded to make the factual finding that the injury " was ...