IN THE MATTER OF: L.Z. APPEAL OF: L.F., MOTHER
No. 473 EDA 2012
IN THE SUPERIOR COURT OF PENNSYLVANIA
April 29, 2014
2014 PA Super 85
J-E04003-13. 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: BENDER, P.J., FORD ELLIOT, P.J.E., BOWES, PANELLA, DONOHUE, SHOGAN, LAZARUS, OLSON AND WECHT, JJ.
I respectfully dissent from the decision of my distinguished colleagues in the Majority. My discussion will be restricted to the Majority’s reversal of the trial court’s finding that Mother, L.F., should be identified as a perpetrator of abuse. I believe sufficient evidence exists to list Mother, who was the primary caretаker, as a perpetrator of the brutal child abuse inflicted upon L.Z.
Instead of viewing each of Child’s injuries in isolation to ascertain whether he suffered a “serious physical injury” necessary to establish child abuse, I would focus on the totality of Child’s injuries to make this determination. This form of analysis is consistent with well-established precedent in Pennsylvania.
At the hearing held on January 6, 2012, before the Court of Common Pleas of Philadelphia, Family Court Division – Juvenile Branch, there was strong, undisputed expert testimony provided by Dr. Deborah Silver, the Medical Director of the Pediatric Inpatient Unit at the CHOP Pediatric Care Network, Abington Memorial Hospital.1 Not only did Dr. Silver review Child’s records, she personally examined Child, at the request of the emergency room physician, not long after Child was presented at the hospital’s emergency room.
With this in mind, I would find that the cumulative effect of Child’s penile laceration, cheek bruising, and severe diaper rash resulted in severe pain sufficient to support a finding of child abuse pursuant to Section 6303(b)(1)(i) or (b)(1)(iii).
I do not read Section 6381(d) to require the agency to prove Mother was present at the time of Child’s injuries because such a requirement is inconsistent with the prima facie standard. See
§ 6381. Evidence in court proceedings
. . .
(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 thе 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.
The reason for the prima facie standard in determining the identity of an “abuser,” rather than the higher standard of clear and convincing evidence to prove whether a child has been abused, has been well established by our Cоurt:
This lessened standard of establishing abuse by the caretakers . . . 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.
In the Interest of J.R.W., 631 A.2d 1019, 1024 (Pa. Super. 1993) (emphasis added). The panel continued:
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 defeсt 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 nеeds 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. (emphasis added).
This Court further refined the prima facie evidence standard for the identity of abusers in In re R.P., 957 A.2d 1205 (Pa. Super. 2008). In In re R.P., the mother argued on appeal that she had not caused the serious injuries to her children, but that rather it was the father who was the perpetrator, and therefore she should not have been found to be an abuser in the underlying dependency matter. Our Court affirmed the trial court’s decision that the mother was a perpetrator by omission. The panel explained that in determining whether the mother was properly found to be a “perpetrator by omission of … abuse“, the omissions as well as the actions of a parent must “weigh equally since parental duty includes protection of a child from the harm others may inflict.” Id. at 1212.3
Under
23 Pa.C.S.A. § 6381(d) , a person is an abuser if it is established that the child suffered a particular type of harm, namely “of such nature as would ordinarily not be sustained or exist except by reasоn of the acts or omissions,” and the person is proved to have had responsibility “for the welfare of the child” at the time of injury. Id. The statute eases the burden of proof by providing for a presumption on the basis that the parent
(Footnote Continued)
In dependency proceedings . . . the county agency first has the burden of establishing through clear and convincing evidence that a minor was abused, but then neеd only prove the identity of the perpetrator by prima facie evidence . . . The Superior Court has defined the prima facie standard in dependency cases as a mere presumption “that the abuse normally would not have occurred except by reason of acts or omissions of the parents.” In re R.P., 957 A.2d 1205, 1218 (Pa.Super. 2008)(quoting In the Interest of J.R.W., 428 Pa.Super. 597, 631 A.2d 1019, 1024 (1993)).
C.S. v. Department of Public Welfare, 972 A.2d 1254, 1259 (Pa. Cmwlth. 2009), appeal denied, 604 Pa. 708, 987 A.2d 162 (2009).
In interpreting
Where the trial court finds that based upon the evidence, it is unable to determine which parent(s) or person(s) “assumed responsibility for the welfare of” child at the time of the injury, the viability of the presumption in
Th[e] 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 determinеs whom the abuser would be in a given case.
Id. at 547 (emphasis added).
While Mother’s counsel argues that Mother had not seen Child for the two days prior to Child being taken to the emergency room, there is ample support in the record for the trial court’s finding that Mother consistently cared for Child, and Child consistently resided with Mother.4 See Trial Court Opinion, 5/17/12 at 2. The trial court’s decision is exactly in line with our decision in In re J.G., supra. Without altering the burden of proof, it cannot be ignored that the persons who had the responsibility for the welfare of L.Z. did not provide any sworn evidence at the hearing as to who in particular had responsibility for L.Z. during the time of the penile laceration.5 Therefore, while she may or may not have been present when
While the Majority declines to view this fact as relevant, Mother’s oversight, or actual infliction of abuse, was on full display based upon the undisputed evidence regarding the child’s penile laceration. The penile laceration was extremely serious and painful, which Dr. Silver described as follows:
The concern about the – penile laceration is аn extremely uncommon presentation for a child of this age. The laceration was on the underside of the penis. It was from approximately 5:00, 6:00 p.m. to about 11:00 p.m., on the clock. It was very deep. It was linear. There were no signs of healing yet. There were no jagged edges. There were no other signs of cuts or other marks indicating cuts in the area, it was a single laceration.
It rеquired surgical repair with generalized sedation for the child . . . .
N.T., 1/6/12 at 37. When asked if the penile laceration would have caused Child to suffer “severe pain” Dr. Silver answered, “Absolutely.” Id. Dr. Silver testified that she could not surmise any possibility that the injury had been accidental. See id. at 38.6 No one gave Dr. Silver any plausible
The trial court found that Mother and her sister stoрped at Dunkin Donuts while Child was suffering from this severe penile laceration.7 The pair stopped while on the way to the hospital to seek treatment for Child’s bleeding penis. Such clouded decision-making, when combined with the trial court’s findings, evidences a dereliction of parental duties sufficient to support a finding that Mother is a perpetrator of child abuse by actions or omission.
Evеn considering the Majority’s isolation of each occurrence of abuse, the evidence establishes, on a prima facie basis, that Mother knew of the injuries to Child and did nothing to protect the child, and was, in fact, present for at least one of Child’s injuries: the cheek bruising.
Dr. Silver opined that the cheek bruising is a common abuse injury that is caused by “[a caretaker] grabbing the face аnd squeezing it between their fingers and planting their thumb in the cheek.” N.T., 1/6/12, at 42. While Dr. Silver did not explicitly state that the injury caused Child severe
Q. You indicated that [Child] also had bruising to his face, is that correct?
A. Yes. He had quite apparent bruising on the surface of his cheeks.
Q. And, when you say quite apparent, can you be a little more descriptive?
A. They were very dark. He had a large bruise that was several centimeters large in the meat of his right cheek, in the buckle area, as well as on the left cheekbone. And they were clearly on opposite sides of the face.
Q. Why is that concerning about them being on opposite sides of the face?
A. Generally, when children fall and get bruises оr injuries to their face, they fall and hit boney prominences. So, they frequently get what people refer to as like an egg on their forehead. They will hit the orbital area, so they will bang around the orbit. The cheekbone injury could have been potentially from banging against it. The buckle injury is something we [call] pathopneumonic or an inflicted injury. It is very hard to land directly on something unless you аctually landed on like a very sharp, pointy implement. Or to injure, to bruise, the cheekbone would take the hit or the jaw would take the hit but not the meat of the cheek. And, this kind of injury is something that we learn about that is usually caused, these bilateral injuries, by someone grabbing the face and squeezing it between their fingers and planting their thumb in the cheek. And that is a common abuse injury we do see.
Q. And, Doctor, аt the time that would occur would that cause a child severe pain?
A. I am sure that it couldn’t have been very comfortable.
Q. And, at the time that [Child] presented on December 3rd, are you able to estimate approximately how old the bruises were?
A. They weren’t immediate because bruising usually takes at least about a day or so, hours to days to form, and they weren’t healing. You cannot age bruises.
No doctor will ever tell you they can аge a bruise. So, it looked reasonably recent, but I can’t tell you what it was exactly. So, it was probably more than a day and less than a week, and that’s about as good as I can get.
Dr. Silver also indicated that Mother’s explanation regarding the bruising — that Child fell onto a table — was inconsistent with this type of injury. See id. at 52. This evidence also satisfies the prima facie burden of Section 6381(d) by showing that Mother knew of abusive conduct inflicted upon L.Z. but did nothing to protect him, possibly inflicting the abuse herself.
Lastly, the necessary findings to establish Mother as a perpetrator were made by the trial court. On appeal, “[o]ur scope of review in child dependency cases is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court.” In re J.G., 984 A.2d at 546 (citation and internal quotation marks оmitted). Our role as an appellate court requires us to accept the findings of fact and credibility determinations of the trial court in a dependency case. See In re J.J., 69 A.3d 724, 728 (Pa. Super. 2013). It has long been held that we should accord great weight to the hearing judge’s findings of fact because the trial judge is in the best position to observe and rule upon the credibility of the witnesses. See Matter of Read, 693 A.2d 607, 610 (Pa. Super. 1997), appeal denied, 555 Pa. 708, 723 A.2d 1025 (1998).
The trial court made the following findings after a full hearing at which Mother was represented, and at which the court had a full opportunity to see and hear the witnesses and make credibility decisions:
The Court found clear and convincing evidence that the Child was without proper parental care. The Child suffered from bruises to both his left and right cheeks, a penis laceration, and a significant diaper rash. Mother’s explanation for the rash was inconsistent with the location. Mother’s explanation for the bruises on the Child’s face was also inconsistent with the injuries. Dr. Silver testified that the penis laceration was non accidental in nature. Dr. Silver concluded that the Child was the victim of child abuse. The Child consistently resided with Mother. Therefore, the Court found that Mother failed to provide propеr parental care and failed to protect the Child. The Child’s injuries would not have occurred but for Mother’s omissions as his primary caretaker.
Trial Court Opinion, 5/17/12 at 7 (citations to the record omitted).
Moreover, after examining the Juvenile Act and correctly summarizing the standard of review, the trial court concluded:
[T]he child suffered physical neglect and lacked adequate supervision due to the fact that he suffered from an untreated yeast infection and diaper rash from being in urine for extended periods of time.8 The Court heard testimony that the Child consistently resided with Mother. The Court heard testimony that the very deep penile
Id. at 7-8 (citations to the record omitted; footnote added). All of the above findings are well established in the record.
Accоrdingly, because we can reject the factual findings of the trial court only if they are not supported by competent evidence, there is no reason to reverse the decision of the knowledgeable trial court judge. As such, because the trial court’s findings are supported by competent evidence, and for all the reasons stated above, I would affirm.