J - S59015 - 16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: D.C., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: D.C., FATHER No. 3624 EDA 2015

Appeal from the Order Entered November 5 , 2015 In the Court of Common Pleas of Philadelphia County

Juvenile Division at No(s): CP - 51 - DP - 0001815 - 2015 FID: 51 - FN - 1533 - 2015 BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J. * MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 22, 2016 D.C. (Father) appeals from the November 5, 2015 order that adjudicated D.C. (Child) 1 dependent, that ordered Child removed from C.H.’s (Mother) home with legal custody transferred to the Philadelphia De partment of Human Services (DHS), that directed Child was to be placed in kinship care, and that found child abuse was established. 2 After careful review, we affirm.

____________________________________________ * Former Justice specially assigned to the Superior Court. 1 Child was born in October of 2014. 2 We note that the trial court references the Child Protective Services Law, 23 Pa.C.S. § 6303, and identifies a definition of “child abuse.” See Trial Court Opinion, 3/24/16, at 12. That section was amended and became effective as of December 31, 2014, a nd applies to the present case. Although the court’s citation references the pre - amendment definition, the court’s findings and analysis comport with the post - amended language and Father’s actions here fall within the revised definition. See 23 Pa.C.S. § 6303(.1)(8)(i).J - S59015 - 16

- 2 -

Father filed a timely appeal and a statement of matters complained of on appeal. In h is brief, Father states his questions as follows: 1) Whether the evidence was sufficient in making a finding of child abuse[?] 2) Whether the evidence was sufficient in adjudicating Child dependent[?] 3) Whether the evidence was sufficient to sustain placement into agency custody[?] Father’s brief at 5. Our scope and standard of review in dependency cases is as follows: We must accept the facts as found by the trial court unless they are not supported by the record. 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. We review for abuse of discretion. Our scope of review, accordingly, is of the broadest possible nature. It is this Court's responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriat e legal principles to that record. Nevertheless, we accord great weight to the court's fact - finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses. In the Interest of A.N. , 39 A.3d 326, 330 (Pa. Super. 2012) (quoting In re C.M.T. , 861 A.2d 348, 351 (Pa. Super. 2004) (citations omitted)). We have reviewed the certified record, the briefs of the parties, the applicable law, and the thorough, well - written 13 - page opinion authored by the Honorable Vincent L. Johnson of the Court of Common Pleas of Philadelphia County, dated March 24, 2016. We conclude that JudgeJ - S59015 - 16

- 3 -

Johnson’s extensive opinion accurately disposes of the issues presented by Father on appeal and we discern no abuse of disc retion or error of law. Accordingly, we adopt Judge Johnson’s opinion as our own and affirm the November 5, 2015 order on that basis. Order affirmed. Fitzgerald, J., joins this decision. Olson, J., concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/22/2016

### his basic dail y n ee d s were m et.

Father wo ul d n ot re s i de in the h ome un til D HS co mpl e ted th e inv esti gati on o f the CP S re p o rt . I 

### w as indic ate d . Fath er, t o o k th e C hil d to St C hri s toph e r 's Ho s pit al for C hil dre n be c au se th e C hild w as

· expe ri e ncin g di s c o mfort in hi s l e ft arm ; Fathe r s t ate d th at th e C hil d was falli ng fr om th e\ b ed, and \ h e grabbe d the Ch il d b y h is l e ft arm topr e vent hi m fr om hi tti ng th e flo o r . An X -r ay rev~aled th at \

I I 

### th e C hil d s u stain e d a frac tur e t o his l e ft arm, h ow e v e r , th e inju ries w e r e not se ri o us. T h e\r e p o rt 

## I 

# I O n th e sam e day, D HS v i s it ed the famil y's ho me and i mp l e m ented a safety p l an i~ w hi c h \ \ I ) 

### The Ch ild 's m at ernal grand mothe r was li s ted as th e p e r so n t o 

### s u perv i se th e C hil d and ens u re 

### th at Pro te c tiv e S erv i ces R e po rt ("C P S" ) all egi n g th at th e C hil d's pare nt s, C. H . ("Mo th er'') an d O n Apri l 18 , 201 5, th e Dep artment o f Hum an S erv i ces (" DHS ' ') rece i v ed a C hild B a ckground 

### . . . .. . · I . I 

### T hi s O pin i on i s s ubmitt e d r e l ati v e t o the app eal o f D .C. (" F athe r" ) from thi s ~ -c?. urt 's \ O r d er d ate d Novemb er 5 , 2015 , which a dju di c ated D.C (th e " Child " ) , d ep e n d en t. Fo r-~l1 e reas on s \

. . \ 

### di sc u ss e d, thi s Co u rt r es pectfu lly s ubmit s th at it s d ec i si on s hould b e affi rm e d . OPINION 

### 3 6 24 E DA 2015 Ap peal of D. C . , F athe r I ! t · . . , 1 

## ~ .. - I 

# ~· . ~ .\.. 

### . . ;:. · ~ t .! ti 

### F ID : 51-FN-15 3 3 -2 015 CP -51

- DP-000 18 1 5 -2015 In T he Intere s t Of

: D. C . . Mino rs 

## · . \ IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FAMILY COURT DIVI S ION ' JUVENIL E BRANCH

\ 

### \ \ 

# I

\ i 

# I \ Circulated 09/12/2016 09:10 AM2 1 Th e Ch il d w as almo s t n inet ee n poun d s, in th e ni n ety e igh th p e r c entil e for hi s we i g ht. Id . at 2 7 . prop e rly in h i s cas t, how e v e r , th e l e v e l of p ai n for th e fracture w ould have be e n sev e r e . Id . at 20. 

### I d . at 14-15. Th e C hild w as l ater 

### x -r ayed on May 1 

### L 2015 , and th e Child's 

### fracture w as h ealin g Dr. McColgan al s o st ated th at: I n a n on-ambul atory chil d wher e th e c hil d didn ' t c ause th e inju ry h imse l fth at o f cour s e m ake s u s think about the pos s ib ility o f could child abus e have occ~irre d . Th e fr a ctu r e i s a p r e tty s ignificant fr a cture , a s you can s e e it go e s through '. th e bon e o f his ru m so it would h av e r e qui re d a s i g nifi c ant amount of force .. . rs not som e thing th at you woul d s ee with routine care of an infant , but, a gai n , pulling or yanking a c hild of thi s th ey ' r e falling is not r outin e care e ithe r .. . T here i s rio . re a s on to believ e he had m e dical bon e di s ease o r s omething wrong w ith hi k bon es to l ea d to hi s bo ne s to bre ak mor e e a sily th at another five mo n th old m al e.\ . "th e mi d portion o f his h um[ e ru s ) . Th e hum[erus) is th e bon e of the upper arm and h e had a l fra c tur e through an d thr ou g h th e hum[ e ru s ] " Id. at 10-11. The C hild wa s fi v e month s I old at th e \ time o f hi s injury. Id . at 12 . Dr. M cc olg an te sti fi ed that s he be came i nvolv e d in the cas e on or around M ay · 1 8, 2 0 1 4 after b e i n g c ontac t ed by th ~ E mergen~y D ep artm e nt ("ER") at St. Christoph er ' s r egar di\ng the I Child ' s injury. N . T. 1 1/5/15 at 

# 9 . An X- ray show e d th at the child h ad a fr a cture of hi s 

# 1 J ft arm at i .\ On Jun e 25, 2015 , Fath e r was info rmed by DHS, vi a t elephone, that the CPS r ~ port w a s I indi cate d and th at the c a se was op e n . for s ervice s . F ath er refu se d DHS s e rvice s and t e rminat e d 

# I th e c all . On Novemb e r 5, 201 5 , an a djudi catio n he aring w a s held . Du ring thi s h e aring, l he Court 

### I\ he ar d th e te stimon y of Doctor Maria McColgan ( P edi atrician at St. Chri s tophe r 's Hospital ), 

# - I C hri s tophe r L e e (DHS Social Worker) , Ke n i s h a Brown (CUA c asew orker) , F ath e r an d D av id



# . I Hamilton ( mat e rn al un c l e ). we re no a dditional injuries or he aling injuri e s d e te cted . I I i On May 1 8, 2015, DHS rece i ved the M ay 11 , 2015 x- r ay r esu lt s and le arn ed i . hat there \



### . 

## . . 

### .



# I I \ 

### \ 

# l

# I \3 2 F ath e r claim s th at he did not kn ow h e w as n o t all owed t o v i si t w ith th e C hild w i thout s uperv i s i o n , bec aus e h e b eliev e d th at M s . H ami lto n 's su p e rvis i on wa s su ffi ci e nt. Id . at 125 , 1 3 3 , 1 4 0-41. 3 T hey s till h a d n ot co mpl e te d th e D H S evalu atio n o f the C hil d's i nj ury . I d . at 6 6 . being left at the la s t c o upl e of p r eli min ary he arin gs ... " 

### :W. at 66 - 67. con s id ere d i n hi s e v alu ati o n we re F ath er ' s "beh av ior at ev ery turn , at my pho ne c all s, voice m ails pl an w a s implemented sh o wing Fathe r in th e res idenc e with Moth er, th e C hil d an d th e 

### maternal g r and m oth er . 

### Id . at 64

- 6 6 . This p o st g av e M r . L e e con c erns ab out Mother 's pr ot ec tiv e c apa citi es . 

### I d . at 6 6. In p artic ular , the r e were c on ce rn s of"a s suri n g that [ Fath e r] . . . do e s n ot return 

### inth e ho m e an d h ave cont ac t w ith the c hild until o ur cas e i s compl e t ed ' . I d . Th e fa ct ors M r. Le ~ s ubse quently m o ved on F e mhill Road . Id . at 141 . T here w as a F ace b o ok v ideo afte r th e 

### safe ty I d. at 6 6. Fathe r w as al s o tol d th at h e cou l d n ot s e e hi s s o n b y him se lf. Id. at 1 4 1 . F ath e r I returni ng and h av in g no c ont ac t w i th the C hild until a ft er 

### DHS h as c ompl e t ed it s i n ves tig ation. Next , ba s ed on th e C P S re p o rt and hi s inve s tigation of the p are n ts, Mr. L e e testif i ed on I th e potential of " creating a r ea sonab le like lihoo d of bodil y injury . " O n April 2 0 , 20 1 5, 

### I,>HS impl e m en ted a safety p lan which involved F ath e r mov i ng out o f th e r es id e nce of th e Child 2 , not Id. at 3 3-34, 3 7 .

Are inflicte d inju rie s. The child did n' t c ause th e m the m s el v e s , but a s 

### faras whether or not it happened th e w ay fath e r i s re p o rti n g . I don ' t kn ow th at\! cou ld say definite ly on e w ay or the other . I think it' s po s sible th at it h ap pe n e d th at way, but I do ag ain th i nk that it would require a fair am o u nt of fo rce . Y ou wo ~ ld h ave y anked pr e tty hard in o r der for this to happ e n . And s o I c o uld im a gine it :

. 

## . h appening i n the s tate o f p anic as th e child i s rolli n g off th e b e d . B ut, agai n, it rai se d s ign i fi cant concern . comm e nting o n Fathe r' s a ccount o f what happened to the C hild , Dr. M cC ol gan st ate d ; ! " (l)ts n o t 

## ! i mpo ssi ble th at it happ e n e d that w ay ." Id . at 30. 

## i . At th e conclu si o n of Dr . McColg an 's t es timony , s h e s tate d that th e Child 's i n j u ;:i e s : 

# I Aft e r a r e view of th e C hild' s r eco r ds, Dr. M c C o lg an indi cat ed th at F ather c aug h t th e q h ild as he\ w as falling off the bed by his arm right b e fore the Child hit the g round. Id . at 2 8-29.W~ en \



# I \ 

# I I \4 4 Mr. Le e wrote out the contents of the vol c ernall and read it Into the re co rd , because he dill not have the r e cording 'on hand . Id. at 54. s The s tate m e nt w as a que s tion and not an affirmativ e s t at em ent o f abuse . Id . at 7 2 . 6 S e e C ourt' s Ex hibit A (Continu anc e Order ) . 

### c arrying your b aby and y ou're up se t, I'm c o nc e rn e d. You're saying v e ry demeaning things to concern s about F ather' s judgment with regard to the Child. Id. In particular , s he s tated: "if 

### you're I I I 

# I I 

# I j Ms. B rown wa s then c alled to testify about her ob se rvation s of the vi s its betw e en \h e Child and th e parent s . Id . at 93. Du ring one of Father 's vi s its, M s . Brown te s tified th at sh ~ h a d I 

### to s upervi se d line of sight vi s it s at DHS 6 • 

### On July 16, 2015, 

### after Father 's violation of the s afety pl an, Fath e r's visit s were ch ang e d 

### l I was trying to explain to father, you know , th e s tep s we're taking, father beg an 

# I y e lling . He was irate on the phon e with me . F ather s tated th at DHS c annot tell , him wh at to do, wh at h e can't do. F ather st ated, "DHS has no righ t. .. " Every s tep 

# I that I 

### tried to e x plain to him [Fathe r ] th at w e 're implementing s ervic es in the 

### I home and that you'r e allowed to re turn hom e , I 

### c ouldn't even g e t that acro ss . And \ that 's a s s imple as I 

### can e xplain it. "F'n 

### g ook s ," becam e irate . At that poi n t I hung up the phone . 1 

## \ Id . at 5 9 -60 . th e Court. During the conversation, Mr . Lee st ated that: Child and Mother. After Mr . L e e's conver sation with Fath e r, an urgent petition was filed with stat e d that he was originally calling to inform Father that he could return to the home with the conversation, DHS implemente d In-Home Protective Services ("IHPS") in the home . Id. at 58. On June 25th 

### 2015, the DHS worker had a conversation with Father . Id . at 44. Mr, 

### Le e - I I 

### voicemail", Father s tated: "Real (s***], homie. You take y our job too seriou s ly. I would hurt my 

### I



## . : I s on(?] 5 I 

### feel any type of any way I feel I can do whatever the [f***J I want. Who do yqu think you are ? You can eat [s***.] . I can feel anyway the [f***) I fe el. " Id . at 57-58 . After this On April 28 , 2015, DHS re c eived an inflamm atory voicemail from F ather which wa s its fi rs t contact with F ather since discussing the safety plan on April 20, 2015. Id . at 52. On the - I5 1 "Ind icatin g fo r th e reco rd th at f ath er i s rai si n g hi s h an ds ab o v e h is h ea d in a thro wi ng mo tio n and re l easi n g, hi s fing er s . .. [ th e Ch ild wo ul d b e ] about five i nc h es [ away from F ath er 's face ] " . Id. at 1 2 0 . 8 It s ho u l d b e n o t ed th at Vi s ion Q ue s t h ired Fath e r d e sp ite hi s cri min al rec o rd. I d. at 1 22. Se e al s o Exhibit B ( Fath e r' s C rimin al Ab s trac t w h ic h w as a dmitt ed in to th e rec o rd. I d . at 6 1, 1 1 2 . 

### te l evis ion to s et up hi s P l ayS tation4. Id. at 13 4- 39 . I 

### 25 . Imme d iat e ly b efor e th e C hil d fe ll fr om the bed, Fath er w as l eanin g ov er th e b edr oom '. F ath er al s o stated th at wh e n h e le ft the m essage o n M r. Le e' s phon e , h e w a s up set ab out \ lo s in g hi s job at V i s ion Q u e s t ' a s a resu lt o f DHS findi ng Fath er g uil ty o f c hild ab use . I d . \ at 1 23- 

# ll I I I It 

### s hould b e no te d that thi s is Fath er's fi r s t an d o n l y c hild. I d. at 123, . 1 32. Fath e r th en ad mi tt ed " I'm g uilty of n e g l ect fo r tu rni n g my b ack " on the i nfant. Id · . at 1 2 3. s tu ff like th at .. .I n h e r pr ese nc e I don ' t d o it b e c au se m e an d he r, th at cau ses an arg u ment. " Id . ! 

### o cc u rr e nce w h e re Moth er saw F ath e r thro w th e Ch il d in th e air , " s h e ge t s angry w ith m e l and I 

### Id. at 116, 11 8-2 0. When F ath e r h ad the child b a c k in h i s hand s , the Child w a s c ryin g, t ? ut F ath e r thought th e C hild w as "crying bec au s e he wa s st artl ed " from b eing thro w n in the\ air . Id . at 1 20-21 . When Fath e r would throw the Child i n th e ai r with Mother pre s ent , sh e would tell h im - I

. I 

### to " Stop " o r " You 're g o i ng to hu rt his s tom a ch b e cau s e h e 's eati n g. " Id . at 133 . On e a ch ; I 

### I turned around for like one qu i c k s econ d just to plug in my Play St ation i 4. He [the Child] got hi s littl e to es , he fallen b a ckw ard s and right befo re he h i t ! the g r ound I g rabb e d right th e re by hi s arm [the mid dl e of hi s arm s ]. I t~ro"1 him up. A n d I told him [Mr . L e e ] th at .. . It w as n ' t a sc oop on th e bed. It 

### wa s in th e air so like a s he' s about to hit the grou n d , I p ic ke d him up and thre w him in thJ. air7 

### ju s t like that. .. I've b e en doi ng th at s inc e my son 's b e en about thre e month s jfour month s . . . that w a s our littl e joyous time. Li ke I make him l augh. ; \ , _ F ather te s ti fi ed at th e adjudicat o ry h earing th at : b aby. " I d . at 10 2. After the in c id e nt with Fathe r, hi s v i s its wer e s u s pend e d. Id . peopl e. Y ou 're y e llin g i n a fo rc efu l tone and you' re carryi n g you r e l ev en, twe lv e month old6 9 M r . H amil t o n i s al s o th e ki n shi p p r ovi d er to the c hil d . .Id . at 1 4 8 . I I Wh e n fath e r further te s ti fie s th~t he' s b e en thr ow i ng 

### a c hild, a b aby , an inf an t int o the ai r 

### si n ce the child w a s 

### thre e month s old and 

### th at the moth e r has warn ed him 

### on more th an o n e 

### occasion no t to and the 

### fath er h as a dmitt e d withou t 

### ques ti o ni ng from anyone e ls e th at he's done 

### it and then conti n ue d t o d o it 

### w ith ou t mom 's pr ese n ce , then th e Co urt 

### must look further 

### at the s t atute . A n d 

### w hat do es th e After findi n g the child d ep end e nt, th e C ourt ad dre s s ed th e iss u e of ch il d ab u se : co uld n o t t o a re a so nable d e gre e of medical c e rt ainty indi cat e th at the b re ak [l e ft humeru s ] th at took p l ac e in th e young c hil d w as c hild abu se . .. So the C ourt c ann ot find c hild abu s e by cle ar and c o nvin c in g evid e nc e . And th e c o urt [ would ] b e wro ng ful an d neg lige n t i f i n th at i ns t anc e ( b ro ken arm] it fo und c hil d abu se . . , Ho wev er , unfortun ate ly, c li e nt s and te s ti m on y d oe s take a lif e o f it s o w n. ; cle arly the l aw with re g ar d to wh at a d e p e nd e nt c hild i s, w ith regar d to prese n t inab ili ty, a d e p e nd en t child is one without p r op e r p aren t al c ontro l, care , c ontrol. M arl : importantly , w h e n you l o ok at the s t atut e furth er w h ere th e car e g i ver, p arJ nt or guard ian pl a c e s the health , safe ty , w e lfare of th e c hild at ri sk , cle arl y this l ! hild w a s at risk. So cl e arly b y d a d 's own a dmi s sion of ne g ligenc e, impro p er \ s up erv i s ion that Do c tor M c Colg an t es tified to , cl e arly we have p r e se n t in ab ility, c learly we have that . This is a dependen t chil d . : Id . at 1 6 8

- 6 9 . The Court noted that Dr . M c flolg an: . all a dmis s ion s o f n e gli g ence and la c k of s upervi s ion mad e b y him. " Id . at 1 6 7- 6 8 . te stimon y a cc ep t ed in fu ll ; 4) F ath er was c red ibl e an d h is te stim on y a cc epte d i n f ull , " i ircl udi ng I I I I I Aft er clo s ing ar gum e nts , th e Court m a de the following finding s a s to th e c red ib i lity of th e\.

. l witn e s ses : · 1) Doctor Mc C olgan w as credible an d h er t e stimon y acce pted in full ; 2) M s.\B~ o w n w a s cr edibl e and h e r t e s ti mony a cc e p te d in full; 3) Mr . Cummi n g s w a s c re dible and h is 

# I i Th e n M r. H amilt on 9 wa s c alled to te s ti fy about th e re l ation sh ip o f th e p ar en t s ~i th th e Child pri or to DHS involv e m e nt. Id. at 149 . 

### Mr . H amilton te s tifi e d th at F ath e r. was al iays

. I att e ntive to the C hi l d and th at h e woul d not h arm th e C hil d i nt ention ally. Id. at 150 . H e al s o - I s . t ate d th at F ath e r h as an ang e r problem but not dir ec t e d towar ds the ~ hild . Id . at 1 5 1 . ~ ifr . Hamilton ha s nev er se e n F athe r thro w th e Child in the air during an y of hi s encoun te r s \w ith th e Father and the Child. Id . at 152 .

# l I 

### i 

# I

7 10 Sic (fro m Fath e r 's I 925( b ) stat eme nt ) . wh o "is w i thout p ro pe r p are nt al car e o r co ntr o l , su b s i s ten c e. 

### e du cation a s required by la w , or 

### Pu r s u ant t o 

### 4 2 Pa . C.S . § 6302, a " d e p e nd e nt c hild " is 

### de fined, in relev an t p art, as o n e · C hil d . Fi r s t , Fathe r ar gues th at the re wa s in s uffi cie nt e v i d e n ce to s upport th e a d ju di c ation o f the I. The Trial Court did . not err in Adjudicating th e Child Dep e nd e nt. F ather h as raise d thr e e i ss u es on appe al i n hi s P a .R. A .P . l 925 (b ) St at e ment. Di s cu ss ion th e e vid e n c e to ha v e b ee n in s uffi c ient fo r that as w e ll. 

### 3 . Ap pe ll ant av e r s the Tri al C ou rt err ed in makin g a findin g o f c hild ab use, in th at cu s tody; and finally th at th e e vid e n ce to h ave b ee n in s uffi c i e nt to s u s t ain pl ac em e nt into age n c y ' 

### . 2 . Ap p e ll ant addition all y aver s th e T ri al C ourt erre d i n th e remov al of the C hild , in I e vid e nce to have been in s uffi c ient to subst an tiate th e adjudi cation . . ' 1 . A p pell ant ave r s the Trial C ourt err e d in adjudi catin g Child d e pende n t , in ~ hat the Father h as raised the following i ss ue s on appeal 10 : • 1 After c onsidering all of the te s timony and evid e nc e at the adjud i catory hearing, the Court ' i found by clear and convinc i ng evidence that the Child w as dep e nd e nt and co mmitte d 

### hirn to the 

# I

cu s tody of DHS . Id . at 2 0 . The C ourt al s o made a find i ng of child abu s e with regard to t ather . 

### Th is appeal follow e d. Id. at 170-71 • I

statute s ay? " any recent act, [f ailur e to a ct] or s erie s of s uch act s or f ailur e to [act] \ by the perpetrator which cre at e s an immin e nt risk of seriou s phy s ical injury." 1 That is clear and con v in c ing. The Court h as no choice .. . ba s ed upon that \ testimon y th at it's an a dmission th at goes throu g h with the ac t. The C ourt do es \ find child 

### abuse. ·



# I

\I I 

### I I 

# I I 

## i t I 1 

## I 

# I j

8 [O]ur scope of review is broad. Nevertheless, we will accept those factual findings of the trial court that are supported by the record because the trial judge 1999). 

### Specifically, with dependency proceedings: scope of review "is of the broadest possible nature . " In Re C.J., 729 A.2d 89, 92 (Pa. Super, In the Interest of C.M., 882 A.2d 507, 513 (Pa . Super. 2005) . Accordingly, the Superior Court's

[W] e must accept the facts as found by the trial court unless they are not supported by the record . . . We review for abuse of discretion ... [W]e accord great weight to the court's fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses. cases of dependency is as follows: The standard of appellate review which the Pennsylvania Superior Court employs . in necessary." In the Interest of C.P., 836 A.2d 984 , 987 (Pa. Super. 2003) . cannot be separated from his or her parents absent a showing that the separation is clearly psychological experts." Id. "If a child is adjudicated dependent under the Juvenile Act, h~ or she from objective, disintere sted witnesses, e. g . , neighbors, teachers, social workers, and I omitted) . Additionally, "the judge should receiv e , and if necessary should seek out, evidence from all interested parties." In re C.M.T., 861 A.2d 348, 356 (Pa. Super . 2004) (citations issue." Id . "In the course of conducting this inquiry, the court should of course receive e~(idence 2010). This means "evidence that is so clear, direct, weighty and convincing as to enable the I trier of fact to come to a clear conviction, without hesitance, of the truth of the precise (acts in I other care or control nec e ssary for his physical, mental, or emotional health, or morals . f Further, \ u[aJ determination that there is a lack of proper parental care or control may be based upon \ evidence of conduct by the parent, guardian or other custodian that places 

### the health, safety or I I 

### welfare of the child at risk ... " 42 Pa.C . S. § 6302 (emphasis added) . A finding of dependency · must be supported by clear and convincing evidence. In re J . C., 5 A.3d 284, 288 (Pa . Super.9

l d. atl 70-7 l i 

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## I When fath e r further testifi e s that he' s been thro w ing a c h il d, a bab y , an inf ant into the ai r sin c e the child w a s thre e months old and that the mother h as warn e d 1 him on mor e than on e o c ca s ion not to an d the fath er h as a dmitt e d w ithout que s tioning from anyone e ls e th at he' s do ne it and then conti n u e d t o do i t withou t mo ~ ' s pre se nc e , then th e Court must look further at the s tatute . A n d w h at doe s th e : statute say ? " any recent a c t , [failur e t o act] or seri es of s uch ac t s or failure t ; o [ a ct] by the perp e trator which cre ates an imminent risk of seri o u s phy s ical injuryt T hat is clear and convincing. The Court ha s n o c h o i c e .. . bas ed up o n th at . 't e stimony that it ' s an admi s sion that go e s throu g h w ith the a ct. The Court do e s find child abu s e. s tated at the a djudicatory hearing in response to F ather 's coun s el 's ar gu m e nt: This gav e the Court g rave conc e rn s about th e c h ildre n ' s safe ty and w e lfare. As th t Court him laugh . " Id . at 119-20 . my s on ' s be e n abou t thr e e month s , four month s . . . th at wa s our little j oyou s tim e. Like I m ake re s ulted in th e injury of the Chil d , F ather also admi tted to throwin g the C hild in the air; "s ince tu rn i ng my b a ck" on the infant. Id. at 123. 

### In addition to Fath er admitting that hi s ne g l e ct Specific ally, th e Court heard te s timony th at Father admitted "rm guilty of n e gl ec t for

. ! sa f ety and welfare wer e at ri s k. c are and control wa s not imm e di ately av ailable to the Child by F ath e r, an d th at the c hild ( s he alth, \

. I a dj u dicatory hearing . Th e evidence th at w a s presented supported th e findi ng that proper j parental seve ral w itne s se s and car e fully c on s id e red all of the evidence th at w a s presented at the i wa s d e pendent und e r 42 Pa.C.S . § 6302 . In making this finding, th e Court he ar d testim o n y from \ 

# I I i 

### In re C . B . • 861 A.2d 287, 294 (Pa . Super.2004). H e re, th e Court determined that th ere w as clear an d c onv i ncing evidence that th e Child i s in the best position to ob s erve the witnesses and e valu at e th e ir credib i lity . W e i accord gre at weight to the trial judge's credibility determi nations . Althobgh 

### bound] by the fact s , we are 

### not bound by the tri al court 's inf e rence s, d e duction s, 

### and I conclusion s therefrom; we mu s t e xercise our ind e pendent judgm e nt in re v i e w i n g \ th e court's d eterminati on, a s oppo s ed to its findings of fact, and must order what e v e r right and justice dictate . ·

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10 1 1 See Court's Exhibit C for the Order of Adjudication. (3) if preventive services were not offered due to the necessity for an emergency placement , whether such lack of services was reasonable under the circwnstanf es; or (4) 

### if the court has previously determined pursuant to section 6332 (relating to infJ,rmal

. I hearing) that reasonable efforts were not made to prevent the initial removal of\the child from his home, whether reasonable efforts are under way to make it possible for the child to return home; and (2) whether reasonable efforts were made prior to the placement of the child to 

### prevent or eliminate the need for removal of the child from his home, if the child h a s 

### remained in his home pending such disposition; or \ ( 1) that continuation of the child in his home would be contrary to the welfare, safety or health of the child; and following requirements of §6351 (b) must be placed on the order!' : placing the child into agency care: According to 

### 42 Pa.C . S.A § 6351, after a child is found to be dep e ndent, the 

### Coilrt may

. I i then make a disposition of the child in the best interest of the "safety, protection and physic al,

. \ I mental, and moral welfare of the child."§ 635l(a)-(b). Prior to the disposition of the child, the I Second, Father avers that the Court erred in removing the Child from the home and II II. The Trial Court did ' not err in Placing the Child into Agency Custody • 

## . child within the meaning of the statute and placed him in the custody of DHS. welfare of the children at risk. As such, the Court properly found that the child was dependent I Based on the testimony received at the adjudicatory hearing, the evidence cleatl ly showed ] by clear and convincing evidenc e, that the Child was without proper parental care and \he Court \ ! 

### I was compelled to find, based upon the facts before it , that Father placed the health saf6ty and ! ' I 'I 

### i 

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l l 12 Fath e r claims th at he did not know he was not allowed to visit . with th e Ch il d but mo ve d o ut of th e hou se an d i s c u rr entl y st aying at a s e parate residence. lg. at 125, 1 3 3, 140

- 41. 

### determin ation of la c k 

### of parental 

### control may b e ba s ed upon evidence o f conduct by the prent 

### that plac e s 

### the health, s afety, or welfare of the child 

### al risk). In determining wh e ther ther e ex ists In re 

### R.R . , 686 A.2d 1316 , 1317-18 (1996); 

### see also 42 Pa.C . S. § 6302(1)(e x plaining 

### thatt a committed o r condoned abuse, but merely evidence th at the c hild is without proper 

### parental care . I ! For a finding of child abuse, the Juvenile Act does not require proof that the 

### parent has FinaJly, Father asserts that there was insufficient evidence to find child abus e. III. The Trial Court did not err in Finding Child Abuse Against Father agency . For the fo r egoing rea s on s , the Court did not err in placing the Child in th e cu s tod y of the s afety plan by visiting the Child in his home . I danger to the Child . It was by F ather' s own admi ssion th at hi s negligence le a d to the Child's broken arm. Id. at 123 , . 132. Further, Father knew that he was not allowed in Mother ' s h9me a s part of the DHS safety plan 12 . Id. at .Yet there i s documentation that F ath e r viol ated the impo s ed Despite the fact that the Child was not removed from Father ' s care, F ather still po s ed a Based on the order of adjudication, the Child was taken out of Mothe r 's home after a



### wa.s finding that the Childma ,.._. dependent and not s afe in Mother's home. The court shall not enter findings under paragraph (2), (3) o r ( 4) if the court pr e viously determined th at aggravated circumstances exist and no new or additional rea s onable I effort s to prevent or eliminate the need for removing the child from the home or ' to preserve and reunify the family are required. l (5) if the child h a s a sibling who i s subject to r e moval from hi s home, whether re a sonable] effort s were mad e prior to the placement of th e child to place the siblings together or 

### I whether such joint placement is contrary to the safety or well-being of the child or sibling . -l I I I \ I 

## I '

12 In 

### a non-ambulatory child where 

### the child didn't cau s e the injury hims e lf 

### tl ?at of course makes us think about the 

### possibility of could child abu s e have o cc urred. The fracture is a pretty s ignificant fr a cture, a s you can s ee it goe s throu g h the bone of his arm so it would have required a significant am o unt o f fo r ce . . . It' s not In addition to Father's own admis s ions , Dr . McColgan 

### te s tified th at: Id. at 170-71. (F]ather further testifies th at he's be e n throwing a child , a baby, an infant into th e

air since the child was three months old and that the moth e r h as warned hi 1 m on more th an on e occasion not to and the father h as a dmitte d without qu es tio n ing from anyone else that he's done it and then continued to do it without morn's presence, then the Court must look further at the statute. And what does th e statute say? "any recent act , [failure to act] or s erie s of such acts or f ailure'to [ a ct] by the perpetrator which creates an imminent risk of s erious physical injury ." That i s clear and convincing. The Court ha s no choice ... ba s ed upon that ; testimony that it' s an admi s sion that go e s through with the a c t. The Court 

### d oe s find child abu s e. child abuse . Id . at 168

- 69 . Especially when: me di cal certai nty that the Child wa s the victim of child abuse, F ather's own a dmis s ions showed The Court noted that although Dr. McColgan could not s tate with a rea s onable deg r ee of the child . In the in s tant case , there wa s ample uncont es ted testimony o f se rious physical injury to physi call y. Id. At 6303(a) ; see also In re 

### L.Z . , 111 A.3d 1164, 1174 (2015). any injury that causes "severe p ain " or "significantly impairs" the child ' s ability to functi on impair s the child ' s functioning." 23 Pa.C . S . § 6303(b)(l)(i) , (iii) , (iv). Seriou s phy s ic al 

### injury i s physical injury [or] serious physical n e glect ... which endangers a child' s life or development or (2008); 

### citing to In re R.W.J., 826 A.2d 10 (Pa.Super.2003). Child Abuse includes" any recent a ct or failure to a ct.. . {which · cau s e s ] nonaccidental s erious phy s ic al injuri e s ... [or] any recent a c t , \



### . ! failure to act or series of s uch acts or failures to act. .. which cr e ates an imminent ri s k of. s e rious prote c tion o f a child from th e harm other s may inflict. In re R . P. , 957 A.2d 1205 , . 1211 · ; · 12 prope r care, act s and omissions of a parent mu s t weigh equally s in ce parental duty inc lu d es13



### Dated: March 24, 2016 1 I 

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# - ~_ ~-- · - ·· · ·· · 

### · · · ·· 

# --- ·-- ... . . . BY THE COURT, /

. , « -----; .. . . 

### For these reasons , the Court respectfully submits that its decision be affirmed. • Conclusion 

### \ 

# I I l 

### For the foregoing rea s ons, the Court did not err in its finding of child abu s e. been severe fo r the Child. Id. at 20 . I



### something that you would see with routine car e of an infant, but, again, [pulling or 

# I yanking a child ... is not routine care either .. . There is no reason to beli e ve he had 

# I medical bone disease or something wrong with his bones to lead to his bone s to ' I 

### break more easily that another five month old male . 1 

### Id . at 14

- 15 . Dr . M c Colgan also testified that the level of pain for the fr ac ture W:ould have\ I 

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