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In re J.M.

Superior Court of Pennsylvania

June 27, 2017

IN THE INTEREST OF: J.M., A MINOR APPEAL OF: JA.M., MOTHER

         Appeal 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. [*]

          SOLANO, J.

         Ja.M. ("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[1] and "child abuse" under the Child Protective Services Law.[2] 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.

         Mother 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 other weekend.

         Mother 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.

         On 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.

         The 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.

         On 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, [3] 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.

         On 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.

         The 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.[4] 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.[5] 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 Child's injury:

[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.

         CHOP 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.

         On 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 Mother's story:
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.

         On 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.[6] 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.

         On 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 ¶ 6.[7] 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.

         On 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.

         On May 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.

         When 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.

         Later 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 stated:

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 script.

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.[8]

          The 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 order.[9]

         The 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 Mother."

         In an 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.

         The 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 [42] 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.

         Mother 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 Father.

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 [23] Pa.C.S. § 6381(d) to [Mother] where DHS failed to prove the existence of child abuse?

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 physical neglect?

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, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for abuse of discretion.

L.Z., 111 A.3d at 1174. In addition, we have observed:

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 dictate.

In re C.B., 861 A.2d 287, 294 (Pa. Super. 2004) (quoted citation omitted), appeal denied, 871 A.2d 187 (Pa. 2005).

         Aggravated Circumstances

         Mother's 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.[10] 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.

         We 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 custodian;
(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 as ...

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