IN THE INTEREST OF: J.M., A MINOR APPEAL OF: JA.M., MOTHER
from the Order Entered July 25, 2016 In the Court of Common
Pleas of Philadelphia County Juvenile Division at No(s):
CP-51-DP-0000557-2016, FID: 51-FN-000503-2016
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.
("Mother") appeals from an order entered by the
Family Court of Philadelphia County on July 25, 2016, holding
that her child, J.M. ("the Child"), born in 2015,
was the victim of physical abuse perpetrated by Mother and
that Mother's conduct constituted "aggravated
circumstances" under the Juvenile Act and "child
abuse" under the Child Protective Services
The family court also held that, as the Child's father,
A.S. ("Father"), was available to assume custody,
the Child is not "dependent" under the Juvenile
Act. Mother contends that, because the family court held that
the Child is not dependent, it was precluded as a matter of
law from making a finding of "aggravated
circumstances." Mother additionally argues that the
family court's finding of "child abuse" is not
supported by the record. We reverse.
and Father are not married and do not live together. They
shared custody of the Child, and the Child was scheduled to
be in Father's care every Tuesday and Thursday and every
testified that Father had physical custody of the Child from
Friday, February 19, 2016, to Sunday, February 21, 2016, and
that on February 19, Father and the Child were at the home of
father's mother ("Paternal Grandmother"). N.T.,
7/25/16, at 14-21; Family Ct. Op., 11/14/16, at 14-15.
According to Mother, she "was texting" Father that
day, and Father gave her permission to see the Child briefly.
Mother stated that when she arrived at Paternal
Grandmother's house, she had an altercation with Paternal
Grandmother and that Paternal Grandmother assaulted her.
Tuesday, February 23, 2016, Mother and Father were supposed
to meet at a police station for a custody exchange. Mother
did not appear for the exchange. After waiting for forty-five
minutes, Father filed a police report. N.T., 5/19/16, at
13-14, 50-56; Family Ct. Op., 11/14/16, at 6, 8. Mother also
did not arrive with the Child for the next scheduled custody
exchange on Thursday, February 25, 2016.
petitioner in this action, the City of Philadelphia's
Department of Human Services ("DHS"), contends that
Mother had the Child in her physical custody "from
February 26th through . . . March 1, 2016."
DHS's Brief at 5 (citing N.T., 5/19/16, at 14). Mother
testified that she had the Child for half of the day on
February 26, and that her mother ("Maternal
Grandmother") had the Child from then until February 29.
N.T., 7/25/16, at 22-26; Family Ct. Op., 11/14/16, at 7, 15.
February 28, 2016, Maternal Grandmother took the Child to St.
Mary Medical Center, where he was diagnosed with a fractured
right wrist; there was no clear explanation for the injury.
Statement of Facts (attached to Dependency Pet.), 3/9/16,
¶ c; Family Ct. Op., 11/14/16, at 8. Mother testified
that the injury occurred while he was with her mother,
but, as discussed below, she also sought at other times to
blame the injury on Paternal Grandmother. See N.T.,
5/19/16, at 106 (testimony about what she told doctors).
Mother also testified that she did not know how the injury
occurred. N.T., 7/25/16, at 29. The Medical Discharge
Instructions from St. Mary Medical Center state: "Your
child has a broken bone (fracture) in the forearm (radius or
ulna bone). This is a very common fracture in children."
Ex. M-1 at 2. The Child's wrist was placed in a splint,
and he was discharged. Family Ct. Op., 11/14/16, at 18.
March 1, 2016, Mother found the Child in distress in his
playpen. N.T., 7/25/16, at 35; Ex. DHS-3 at 81-82. She took
him to the Emergency Department of the Children's
Hospital of Philadelphia ("CHOP") for treatment.
N.T., 7/25/16, at 36. According to Mother, she "told
them that my mother had my son over the weekend, he came back
with a fracture. I don't really know what took
place." Id. The doctors placed the Child's
arm in a cast. Id. at 37.
CHOP doctors sought a consultation by CHOP's Suspected
Child Abuse and Neglect team, and the Child was seen by Dr.
Stephanie Ann Deutsch of that team. N.T., 5/19/16, at 63. Dr.
Deutsch testified that her team is consulted when there is a
concern about possible abuse or neglect. Id. at
64-65. In this case, the Child "had two fractures in his
right forearm, with no explanation as to why - why or how he
sustained those injuries. Additionally, mother had expressed
several safety concerns to the primary team. . . ."
Id. at 66. Dr. Deutsch related that Mother had told
CHOP of a possible "poisoning episode" by Paternal
Grandmother that turned out to be unfounded, and of the
physical altercation that Mother had had with Paternal
Grandmother and that the Child "may have been injured
while under [P]aternal [G]randmother's supervision,
following the assault event on the Friday." Id.
at 70-71. Her report, which was admitted into
evidence as Exhibit DHS-3, id. at 115, contained
extensive notes relating to Mother's reported concerns
about Father and Paternal Grandmother. Dr. Deutsch also
testified that, "[Mother] had mentioned to us that [the
Child] is ambulatory and had started to walk in January, but
that there were no witnessed fall events and that, per
[M]aternal [G]randmother's report to her, there had been
no falls or no trauma while under [M]aternal
[G]randmother's supervision." Id. at 75.
Dr. Deutsch provided the following explanation of the
[A] transverse fracture of the radius and buckle fracture
of the ulna [bone in the forearm] is a common accidental
injury in a developmentally normal ambulatory child.
It's commonly sustained by an axial load, meaning that
the load is the same direction as the bone. So the most
common mechanism would be a child falling and trying to
break the fall by falling on an outstretched arm.
N.T., 5/19/16, at 74. Dr. Deutsch testified that this is
"a common accidental injury" and "a plausible
explanation" for this fracture type is that "there
is a developmentally normal ambulatory child who had a fall
on an outstretched arm." Id. at 88-89. However,
when asked whether "intentional injury [can] be ruled
out" as a cause, Dr. Deutsch answered, "No, it
cannot." Id. at 74-75; see id. at 88.
performed several tests on the Child, including a CAT scan of
his brain, a urine toxicology test "to assess for any
illicit substances, " a cardiology evaluation "to
assess for any cardiac arrhythmias, " and a skeletal
survey as a screening for other fractures. All of those tests
were negative for signs of other health problems. N.T.,
5/19/16, at 67, 74.
March 2, 2016, DHS received a Child Protective Services
("CPS") Report about the Child's fracture.
Statement of Facts (attached to Dependency Pet.), 3/9/16,
¶¶ c-e. The next day, DHS Investigative Case Worker
Rachel DiStephanis went to CHOP to meet with the family and
learned that the Child had arrived with pinpoint pupils and
intermittent, altered mental status. However, "toxicity
screens were completed and admitted, " and "the
results of the toxicity screens were normal." Family Ct.
Op., 11/14/16, at 4 (citing Statement of Facts (attached to
Dependency Pet.), 3/9/16, ¶ e). No reason for the
observed symptoms was ever determined. N.T., 7/25/16, at 107.
Ms. DiStephanis interviewed Mother, Father, Maternal
Grandmother, and Paternal Grandmother, regarding the cause of
the Child's wrist fracture. Family Ct. Op., 11/14/16, at
6. Mother initially "related to [Ms. DiStephanis] that
she did not know how the injury occurred." Id.
(citing N.T., 5/19/16, at 11-12). Mother then claimed that
the fracture occurred while the Child was in Paternal
Grandmother's care, but Ms. DiStephanis doubted
Ms. DiStephanis did not find Mother credible during her
investigation because evidence such as[ p]olice [r]eports,
text messages and emails did not corroborate Mother's
version [that the Child was in Paternal Grandmother's
care when he was injured]. Mother never provided a consistent
story as to the custody arrangement of the Child during the
week in question.
Ms. DiStephanis found Father's version of that week in
question to be credible. He provided evidence which
corroborated his version. She reviewed text messages and
[p]olice [r]eports that Father filed when Mother failed to
bring the Child to the drop off for the exchange of
custody. Therefore, she determined that the Child was most
likely, based on the evidence, in the care of either Mother
or Maternal Grandmother when he sustained the injury. Both
Mother and Maternal Grandmother were indicated, and the
basis of the indication was egregious lack of supervision,
resulting in a fracture that was not explained.
Id. at 7 (citing N.T., 5/19/16, at 14-18, 48);
see also id. at 10; N.T., 5/19/16, at 57-58.
March 4, 2016, DHS filed an application for protective
custody pursuant to the Juvenile Act, 42 Pa.C.S. § 6324,
and obtained an order for protective custody of the
Child. On March 7, 2016, after a hearing, a
shelter care order was entered by the family court, and the
Child was placed in a foster home.
March 9, 2016, DHS filed a dependency petition, stating:
"Upon information provided by the social worker, this
child is dependent and/or abused pursuant to the Juvenile Act
(42 Pa.C.S. § 6302 (Dependent Child)(1)) and/or the
Child Protective Services Law (23 Pa.C.S. §
6303(b)(1))." Dependency Pet., 3/9/16, at ¶
Mother claims that this dependency petition "ask[ed] for
a finding of aggravated circumstances, " Mother's
Brief, at 5, but the petition made no specific mention of
"aggravated circumstances." Instead, it alleged the
existence of abuse or neglect in a "Statement of
Facts" attached to the petition and recommended that the
Child "be committed to the City of Philadelphia
Department of Human Services." Dependency Pet., 3/9/16,
at ¶ 8.
March 16, 2016, DHS transferred the social work for the Child
and his family to the Bethanna Community Umbrella Agency
("CUA"), and the Child was assigned a new case
worker, Tijuanna Harris. N.T., 7/25/16, at 7.
19, 2016, the family court held "an adjudicatory hearing
for [the Child] and a child abuse hearing as to biological
mother." N.T., 5/19/16, at 6. Dr. Deutsch testified
about the Child's injury, as set forth above.
Id. at 63-71, 74-86, 92-93, 109-110, 113-114. Ms.
DiStephanis testified about her investigation and her
conversations with Mother and Father, including Mother's
assertion that she did not know how the Child's injury
occurred. Id. at 11-16. Father testified that the
Child was not in his possession at the end of February 2016
and recounted that the Child was not present for a custody
exchange on February 23 and 25, 2016. Id. at 54-61.
When asked if she found "Father to be credible during
[her] investigation, " Ms. DiSephanis answered
affirmatively, stating that she "was able to find
evidence that backed up his story." Id. at
16-17. Ms. DiStephanis also agreed when asked if
"Father's story [was] consistent throughout [her]
investigation." Id. At the conclusion of this
first hearing, the family court removed the Child from foster
care and "reunified [him] with Father forthwith [and]
grant[ed] custody to Father." Id. at 119.
the hearing was resumed on July 25, 2016, Ms. Harris, the CUA
case worker, testified that she supervised the Child at the
Father's home "and he seems very bonded with his
Father and with the paternal side of the family." Family
Ct. Op., 11/14/16, at 14 (citing N.T., 7/25/16, at 8-9). Ms.
Harris continued that "Mother has line of sight
supervised visits twice a week at the CUA" and "has
been consistent with the visits." Id. (citing
N.T., 7/25/16, at 9). She suggested, "At this time, the
CUA may ask that [Mother] have unsupervised visits."
N.T., 7/25/16, at 10. Ms. Harris added that "[a] home
evaluation was done as to Mother's residence and it was
deemed to be appropriate housing." Family Ct. Op.,
11/14/16, at 14 (citing N.T., 7/25/16, at 10). Ms.
DiStephanis "testified Mother has completed all her
single case plan goals [and] the parenting, the housing and
all other testing that was asked." Family Ct. Op.,
11/14/16, at 14 (citing N.T., 7/25/16, at 11-12). She said
she would rate Mother as "fully compliant" and
agreed that Mother's visits were "appropriate."
N.T., 7/25/16, at 11, 13.
during the July 25, 2016 hearing, Mother testified. She told
about the altercation with Paternal Grandmother on February
19, 2016, Family Ct. Op., 11/14/16, at 14-15; N.T., 7/25/16,
at 14-20; confirmed that she had the Child in her custody
from Monday, February 22, 2016, until Friday, February 26,
2016, and that Maternal Grandmother had physical custody of
him from then until Monday, February 29, 2016, Family Ct.
Op., 11/14/16, at 15 (citing N.T., 7/25/16, at 22-24, 26);
and explained that "she took the Child to CHOP on
Tuesday, March 1, 2016, Family Ct. Op., 11/14/16, at 15
(citing N.T., 7/25/16, at 35-36, 38). Mother testified:
"I would never hurt my son." Id. at 38.
At the conclusion of July 25, 2016 hearing, the family court
With respect to the claim of aggravated circumstances, the
[family c]ourt finds that the Child was in the custody of
[M]other when the [C]hild was injured, and the testimony
went back and forth.
Sometimes it was clear; sometimes it was as muddy as the
Mississippi can be, and [M]other's testimony is
inherently not believable. Mother began her testimony and she
was well-rehearsed and she appeared to be reading off of a
Her answers were not spontaneous. Her answers were
unbelievable, and she tried as best as she could to confuse
the issue. The issue was that the [C]hild was injured.
Mother's unbelievable testimony further indicates
that she's attempting to conceal what happened to the
[C]hild while in her care, and she is responsible for the
injuries to the child while in her care.
Therefore, the [family c]ourt grants the petition for
aggravated circumstances against Mother.
N.T., 7/25/16, at 44.
family court then entered two written orders, both dated July
25, 2016. In one, the "Order of Adjudication - Child Not
Dependent, " the family court "ORDERED that the
child is found not to be a Dependent Child pursuant to the
Pennsylvania Juvenile Act, that the petition for dependency
is dismissed[, and that] Legal and Physical Custody is
transferred to [Father]." Although the family court did
not explain this decision in its order, the parties agree
that the court correctly held that the Child was not
dependent because a parent - Father - was able to assume
custody. See In re M.L., 757 A.2d 849, 851 (Pa.
2000) (stating "a child is not dependent if the child
has a parent who is willing and able to provide proper care
for the child"). Mother does not challenge this
court called its other order the "Aggravated
Circumstances Order, " and it is that order that Mother
challenges in this appeal. In that order, the family court
found "that clear and convincing evidence has been
presented to establish that the alleged aggravated
circumstances exist as to [Mother]" and that the Child
"has been the victim of physical abuse resulting in
serious bodily injury, sexual violence or aggravated neglect
by the parent; proven as to Mother." The order also
contained a paragraph called "Additional Findings"
that read, "The Court hereby finds that the above named
child is a victim of child abuse as defined at 23 Pa.C.S.
§ 6303, in that Court finds Child Abuse against
opinion dated November 14, 2016, the family court stated that
DHS had met its burden by clear and convincing evidence to
establish the existence of "child abuse" pursuant
to 23 Pa.C.S. § 6303(b.1). Family Ct. Op., 11/14/16, at
16-17. The court did not specifically discuss its finding
that the Child was abused, but instead devoted the bulk of
its opinion regarding the abuse to why it concluded that
Mother was responsible for any abuse that occurred. See
id. at 17-19. The court relied on In re L.Z.,
111 A.3d 1164, 1174 (Pa. 2015), in which the Supreme Court
stated: "While a petitioning party must demonstrate the
existence of child abuse by the clear and convincing evidence
standard applicable to most dependency determinations, . . .
the identity of the abuser need only be established through
prima facie evidence in certain situations."
The court found that the credible testimony led to the
conclusion that the Child was not injured while in the
custody of Father or Paternal Grandmother, and that Mother
therefore should be held responsible. Family Ct. Op.,
11/14/16, at 17-19.
family court also asserted that it "properly found [that
DHS] met its burden by clear and convincing evidence [to
prove] the existence of aggravated circumstances as to Mother
pursuant to  Pa.C.S.A. §6341(c.1)." Family Ct.
Op., 11/14/16, at 19 (capitalization omitted). The court
again focused on who was responsible for the Child's
injuries and "relie[d] on the testimony of the medical
provider, the Agency workers, and Father to establish that
Mother was the primary care giver of the Child and did not
present credible evidence to rebut this evidence."
Id. The court concluded: "The Child was the
victim of child abuse and DHS has met [its] burden by clear
and convincing evidence that aggravated circumstances existed
due to Mother's abuse of her Child and the seriousness of
that injury." Id.
filed a timely appeal. The "Order in Question"
section of Mother's Brief, at 2, confirms that
Mother's appeal challenges only the Aggravated
Circumstances Order, and not the Order of Adjudication -
Child Not Dependent, even though the Order of Adjudication
transferred legal and physical custody of the Child to
Mother now presents five issues for our review:
1. Did the [family] court commit an error of law by
entering an Order finding aggravated circumstances as to
[Mother] where the [family] court found that the [C]hild
was not dependent?
2. Did the [family] court commit an error of law and
abuse of discretion by finding child abuse and aggravated
circumstances as to [Mother] where [DHS] failed to prove by
clear and convincing evidence that the injury to the [C]hild
was the result of child abuse rather than accidental injury?
3. Did the [family] court commit an error of law and abuse
of discretion by entering an Order finding child abuse and
aggravated circumstances as to [Mother] where DHS failed to
prove by clear and convincing evidence that the [Child] was
in the care and custody of [Mother] at the time that the
[C]hild suffered the injury?
4. Did the [family] court commit an error of law and
abuse of discretion by applying the presumption of
perpetrator's identity under  Pa.C.S. § 6381(d)
to [Mother] where DHS failed to prove the existence of child
5. Did the [family] court commit an error of law and abuse
of discretion by finding child abuse and aggravated
circumstances as to [Mother] where DHS failed to prove by
clear and convincing evidence that [Mother] committed
Mother's Brief at 4.
In L.Z., the Supreme Court stated:
"The standard of review in dependency cases requires
an appellate court to accept findings of fact and
credibility determinations of the trial court if they are
supported by the record, but does not require the appellate
court to accept the lower court's inferences or
conclusions of law." In re R.J.T., 608 Pa. 9');">608 Pa. 9,
, 9 A.3d 1179, 1190 (Pa. 2010). We review for abuse of
L.Z., 111 A.3d at 1174. In addition, we have
In dependency proceedings our scope of review is broad. . . .
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
In re C.B., 861 A.2d 287, 294 (Pa. Super. 2004)
(quoted citation omitted), appeal denied, 871 A.2d
187 (Pa. 2005).
first issue questions whether the family court had the
authority to make a finding that the Child was subject to
aggravated circumstances under the Juvenile Act even though
the court found that the Child was not dependent under that
Act. So far as we have been able to
determine, this is a question of first impression. It is a
question of law as to which our review is plenary and de
novo. In re G.D., 61 A.3d 1031, 1036-37 (Pa.
Super. 2013) (citation omitted). We conclude that the family
court did not have authority to make a finding of aggravated
circumstances absent a finding of dependency.
begin with a review of the relevant statutory provisions. The
Juvenile Act was enacted, insofar as is relevant here,
"[t]o provide for the care, protection, safety and
wholesome mental and physical development of children coming
within the provisions of [the Act]." 42 Pa.C.S. §
6301(b)(1.1). The statute therefore covers "only those
children who come within [its] provisions" and not all
children. Commonwealth v. Davis, 479 A.2d 1041, 1045
(Pa. Super. 1984) (emphasis in original), aff'd,
510 A.2d 722 (Pa. 1985) (per curiam). Apart from
juvenile delinquency and similar proceedings that are not at
issue here, the Juvenile Act provides that it "shall
apply exclusively to . . . [p]roceedings in which a child is
alleged to be . . . dependent." 42 Pa.C.S. §
6303(a)(1). A child is "dependent" if he or she:
(1) is without proper parental care or control, subsistence,
education as required by law, or other care or control
necessary for his physical, mental, or emotional health, or
morals . . .;
(2)has been placed for care or adoption in violation of law;
(3) has been abandoned by his parents, guardian, or other
(4)is without a parent, guardian, or legal custodian;
(5) while subject to compulsory school attendance is
habitually and without justification truant from school;
(6)has committed a specific act or acts of habitual
disobedience of the reasonable and lawful commands of his
parent, guardian or other custodian and who is ungovernable
and found to be in need of care, treatment or supervision;
(7) has committed a delinquent act or crime, other than a
summary offense, while under the age of ten years;
(8) has been formerly adjudicated dependent, and is under the
jurisdiction of the court, subject to its conditions or
placements and who commits an act which is defined as
ungovernable in paragraph (6);
(9) has been referred pursuant to section 6323 (relating to
informal adjustment), and who commits an act which is defined