[J-66-2019] [MO: Todd, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

IN THE INTEREST OF: N.B.-A., A 

MINOR

APPEAL OF: E.A., MOTHER

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No. 11 EAP 2019

Appeal from the Order of Superior 

Court entered on February 19, 2019 at 

No. 893 EDA 2018 affirming in part 

reversing in part the Order dated 

March 16, 2018 in the Court of 

Common Pleas, Philadelphia County, 

Family Court Division at No. CP-51-

DP-0002607-2016.

ARGUED: September 10, 2019

CONCURRING AND DISSENTING OPINION

JUSTICE MUNDY DECIDED: January 22, 2020

I join the Majority’s conclusion that the evidentiary presumption at Section 6381(d) 

does not apply in this case. I write in dissent, however, as on this record, I would affirm 

the trial court which found child abuse was established under the totality of the evidence 

without reference to the presumption. 

In my view, the determination as to whether Mother’s actions amounted to child 

abuse in light of the evidence is best left to the trial court, and the record supports its 

findings in this case. As this Court has recognized, “we are not in a position to make the 

close calls based on fact-specific determinations.” In re R.J.T., 9 A.3d 1179, 1190 (Pa. 

2010). It is the trial judges that have the opportunity to observe the witnesses and assess 

their credibility, not the appellate courts which must base determinations on a cold reading 

of the record. See id. Particularly in the context of dependent children, “even where the 

facts could support an opposite result, . . . an appellate court must resist the urge to 
[J-66-2019] [MO: Todd, J.] - 2

second guess the trial court and impose its own credibility determinations and 

judgment[.]” In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2010). 

In this case, the credited testimony and evidence was clear that Mother repeatedly 

lied about the presence of the abuser in her home. She further presented with an affect 

that suggested to the professionals involved in the case that she was not appropriately 

responding to the reality that her young daughter was sexually assaulted. See e.g. N.T., 

3/16/18, at 22 (DHS investigator Sharina Johnson describing Mother’s reaction as “very 

alarming”). Under the totality of the evidence presented, and judging the credibility and 

demeanor of the witnesses, the trial court concluded Mother was aware that Stepbrother 

posed a risk to Child and consciously disregarded it. The trial court found it significant 

that Mother lied regarding who was in her home. See id. at 82-83 (explaining, in light of 

Child’s diagnosis, “I find it troubling that mom would testify or give information that’s not 

valid or accurate.”) The trial court further found as a fact that Mother put the interests of 

the men in her home “over the well-being of her child.” Id. at 83. 

Accordingly, under these particular facts, I find the evidence supports the trial 

court’s determination. Specifically, there is no dispute Child was sexually abused and 

contracted Chlamydia; Mother lied about the adult men with whom she and Child lived 

when she initially brought Child in the emergency room, and a number of times thereafter; 

and Mother appeared alarmingly at ease with the diagnosis, with knowledge that it was 

the result of her child’s sexual assault. As such, there was clear and convincing evidence 

for the trial court to find that Mother recklessly caused or created a likelihood of sexual 

abuse occurring through her failure to act. 

I further disagree with the Majority’s attempt to construct alternate narratives to 

explain Mother’s bizarre reaction to learning her six-year-old child contracted a sexuallytransmitted infection and was a victim of sexual abuse. See Majority Op. at 18. Of course, 
[J-66-2019] [MO: Todd, J.] - 3

an appellate court is not bound by inferences deduced from the evidence. However, I am 

troubled by the Majority’s attempt to rationalize Mother’s behavior and recast it in a light 

most favorable to her on a cold record when it was the trial court that had the opportunity 

to observe the testimony and make its credibility determinations. The trial court clearly 

stated it “did not find [Mother] to be credible[,]” a finding solely within the province of the 

factfinder. N.T., 3/16/18, at 85.

Because I would affirm the decision of the trial court which found DHS met its 

burden of proving Mother was a perpetrator of child abuse based on her failure to protect 

Child from the sexual abuse she suffered, I dissent.