J. S11014/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: I.L., A MINOR :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: J.L., FATHER :

: No. 1457 EDA 2015

Appeal from the Order Entered April 8, 2015,

in the Court of Common Pleas of Philadelphia County

Family Court Division at Nos. DP# CP-51-DP-0000141-2015,

FN# 51-FN-002667-2014

IN THE INTEREST OF: I.S., A MINOR :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: J.L., FATHER :

: No. 1459 EDA 2015

Appeal from the Order Entered April 8, 2015,

in the Court of Common Pleas of Philadelphia County

Family Court Division at Nos. DP# CP-51-DP-0002926-2014,

FN# 51-FN-002667-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 09, 2016

J.L. (“Father” or “Putative Father”) appeals from the orders, dated and 

entered on April 8, 2015, that found child abuse as to a female child, I.S. 

(“Child 1”), born in March of 2007, and granted the petition filed by the 

Philadelphia Department of Human Services (“DHS” or the “Agency”) to 

adjudicate a second male child, I.L. (“Child 2”), born in January of 2015 
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(collectively referred to as “Children”) dependent pursuant to the Juvenile 

Act, 42 Pa.C.S.A. § 6302(1).1 We affirm.

In its opinion entered on August 31, 2015, the trial court set forth the 

following factual background and procedural history regarding Father’s 

appeal, which we incorporate herein, as follows.

On December 12, 2014, the Department of 

Human Services (“DHS”) received a Child Protective 

Services (CPS) report alleging that Child 1 had 

vaginal discharge for two weeks; that on 

December 10, 2014, Mother took Child 1 to the 

pediatrician; that a culture was done and it indicated 

that Child 1 contracted gonorrhea; that sexual abuse 

had occurred and that the perpetrator was 

unidentified. The report further alleged that 

[M]other denied knowing who abused Child 1 and 

Child 1 denied being touched in a sexual 

inappropriate manner. The report also alleged that 

Child 1’s [m]other was one of her primary caregivers 

and that this family had a history with DHS. The 

CPS report was indicated due to the fact that Mother 

and [f]ather of Child 2 tested positive for gonorrhea. 

(N.T. 4/8/15, pg. 50). Both Mother and [f]ather of 

Child 2 live with the Children. (N.T. 4/8/15, pg. 47). 

Father is only the biological [f]ather to Child 2.

On December 12, 2014, DHS obtained an 

Order of Protective Custody (“OPC”) for Child 1 to 

ensure her safety and well-being. Child 1 was placed 

in foster care through Turning Points for Children, 

where she currently remains. The whereabouts of 

 

1

In separate orders entered on April 8, 2015, the trial court found Child 1 

dependent pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6302(1), with 

placement in foster care and a permanency goal of return to parent or 

guardian, 42 Pa.C.S.A. § 6351, and found aggravated circumstances against 

Mother pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6341([c])(1). Mother 

(“Mother”) has filed a separate appeal, which we address in a separate 

memorandum at Docket Nos. 1393 and 1395 EDA 2015. Mother has filed 

her own appeal, and she is not a party in the present appeal.
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Child 1[’s] biological father [are] unknown. On 

December 15, 2014, at the Shelter Care hearing, the 

trial court ordered the OPC to be lifted and the 

temporary commitment to DHS stand. DHS was 

ordered to explore other family members as possible 

placement resources. [On December 17, 2014, DHS 

filed a dependency petition.] On December 19, 

2014, the trial court granted [a] continuance and 

deferred the adjudication hearing. On February 20, 

2015, the trial court granted [a] continuance due to 

Father’s attorney’s unavailability. [On April 8, 2015, 

the trial court held the adjudicatory hearing on the 

dependency petition.][Footnote 1] On April 8, 2015, 

the trial court adjudicated the Children dependent, 

found child abuse as to Child 1, as to [M]other and 

also found that aggravated circumstances existed as 

to Child 1 against [M]other[,] but DHS must make 

reasonable efforts to reunify [Child 1] with [M]other. 

Child abuse was also found against [F]ather of 

Child 2 as to Child 1. (N.T. 4/8/15, pg. 92-96).

[Footnote 1] At the hearing, DHS 

presented the testimony of Maria 

McColgan, the director of the child 

protection program at St. Christopher’s 

Hospital for Children, and a stipulated 

expert in child abuse pediatrics. N.T., 

4/8/15, at 6-8. DHS also presented the 

testimony of Dawn George, a DHS social 

worker investigator in the specialty unit 

assigned to the case. Id. at 43. DHS 

then presented the testimony of 

Christina Cross, the Community Umbrella 

Agency (“CUA”) case manager from 

Turning Points for Children. Id. at 57. 

Mother testified on her own behalf. Id.

at 65. 

Trial court opinion, 9/3/15 at 1-2 [Father] (footnotes added).

On May 8, 2015, Father filed notices of appeal, along with concise 

statements of errors complained of on appeal pursuant to 
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Pa.R.A.P. 1925(a)(2)(i) and (b). On June 8, 2015, this court, sua sponte, 

entered an order consolidating the appeals.

Father raises two issues on appeal:

Whether the trial court erred and/or abused its 

discretion by adjudicating the child I.L. dependent 

pursuant to 42 Pa.C.S.A. [§] 6301, 6302 and 6341.

Whether the trial court erred and/or abused its 

discretion by determining that Appellant (and 

Mother) had abused the child pursuant to 

23 Pa.C.S.A. [§] 6301 and 6303.

Father’s brief, at 4.2

Father’s arguments in his brief amount to challenges to the sufficiency 

of the evidence to support the trial court’s determinations in its orders on 

appeal.

The Pennsylvania Supreme Court recently set forth our standard of 

review in a dependency case as follows.

“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, [27], 9 A.3d 1179, 1190 (Pa. 

2010). We review for abuse of discretion[.]

In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).

Section 6302 of the Juvenile Act defines a “dependent child” as:

 

2

Father stated his issues somewhat differently in his concise statements. 

We, nevertheless, find them preserved for this court’s review. 
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[a] child who:

(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. A 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 welfare of the child at risk[.]

42 Pa.C.S.A. § 6302.

In In re G., T., 845 A.2d 870 (Pa.Super. 2004), this court clarified the 

definition of “dependent child” further.

The question of whether a child is lacking proper 

parental care or control so as to be a dependent 

child encompasses two discrete questions: whether 

the child presently is without proper parental care 

and control, and if so, whether such care and control 

are immediately available. 

Id. at 872 (internal quotations and citations omitted); see also In re J.C., 

5 A.3d 284, 289 (Pa.Super. 2010). Additionally, we note that “[t]he burden 

of proof in a dependency proceeding is on the petitioner to demonstrate by 

clear and convincing evidence that a child meets that statutory definition of 

dependency.” G., T., 845 A.2d at 872.

With regard to a dependent child, in In re D.A., 801 A.2d 614 

(Pa.Super. 2002) (en banc), this court explained:

[A] court is empowered by 42 Pa.C.S. § 6341(a) 

and (c) to make a finding that a child is dependent if 

the child meets the statutory definition by clear and 

convincing evidence. If the court finds that the child 

is dependent, then the court may make an 

appropriate disposition of the child to protect the 
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child's physical, mental and moral welfare, including 

allowing the child to remain with the parents subject 

to supervision, transferring temporary legal custody 

to a relative or public agency, or transferring custody 

to the juvenile court of another state. 42 Pa.C.S. 

§ 6351(a).

Id. at 617.

The Juvenile Act defines “Aggravated circumstances” as including the 

following circumstances:

(2) The child or another child of the parent has been 

the victim of physical abuse resulting in serious 

bodily injury, sexual violence or aggravated physical 

neglect by the parent.

42 Pa.C.S.A. § 6302.

The Juvenile Act defines “serious bodily injury” as “bodily injury which 

creates a substantial risk of death or which causes serious, permanent 

disfigurement or protracted loss or impairment of the function of any bodily 

member or organ.” 42 Pa.C.S.A. § 6302. The Juvenile Act defines 

“sexual violence” as follows.

“Sexual violence.” Rape, indecent contact as 

defined in 18 Pa.C.S. § 3101 (relating to definitions), 

incest or using, causing, permitting, persuading or 

coercing the child to engage in a prohibited sexual 

act as defined in 18 Pa.C.S. § 6312(a) (relating to 

sexual abuse of children) or a simulation of a 

prohibited sexual act for the purpose of 

photographing, videotaping, depicting on computer 

or filming involving the child.

42 Pa.C.S.A. § 6302.
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The Juvenile Act, in turn, defines “aggravated physical neglect” as, 

“Any omission in the care of a child which results in a life-threatening 

condition or seriously impairs the child’s functioning.” Id.

Upon a determination that aggravated circumstances exist, the 

Juvenile Act at 42 Pa.C.S.A. § 6341(c.1), states the following.

(c.1) Aggravated circumstances.--If the county 

agency or the child’s attorney alleges the existence 

of aggravated circumstances and the court 

determines that the child is dependent, the court 

shall also determine if aggravated circumstances 

exist. If the court finds from clear and convincing 

evidence that aggravated circumstances exist, the 

court shall determine whether or not reasonable 

efforts to prevent or eliminate the need for removing 

the child from the home or to preserve and reunify 

the family shall be made or continue to be made and 

schedule a hearing as required in section 6351(e)(3) 

(relating to disposition of dependent child).

42 Pa.C.S.A. § 6341(c.1).

Regarding the disposition of a dependent child, Section 6351(e), (f), 

(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for 

its permanency plan for the subject child. Pursuant to those subsections of 

the Juvenile Act, the trial court is to determine the disposition that is best 

suited to the safety, protection and physical, mental and moral welfare of 

the child.

Section 6351(e) of the Juvenile Act provides in pertinent part:

(e) Permanency hearings.--

(1) [t]he court shall conduct a 

permanency hearing for the purpose of 
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determining or reviewing the 

permanency plan of the child, the date 

by which the goal of permanency for the 

child might be achieved and whether 

placement continues to be best suited to 

the safety, protection and physical, 

mental and moral welfare of the child. 

In any permanency hearing held with 

respect to the child, the court shall 

consult with the child regarding the 

child’s permanency plan in a manner 

appropriate to the child's age and 

maturity. . . .

(2) If the county agency or the 

child’s attorney alleges the existence 

of aggravated circumstances and the 

court determines that the child has 

been adjudicated dependent, the 

court shall then determine if 

aggravated circumstances exist. If 

the court finds from clear and 

convincing evidence that aggravated 

circumstances exist, the court shall 

determine whether or not 

reasonable efforts to prevent or 

eliminate the need for removing the 

child from the child's parent, 

guardian or custodian or to preserve 

and reunify the family shall be made 

or continue to be made and schedule 

a hearing as provided in paragraph 

(3).

. . . .

42 Pa.C.S.A. § 6351(e) (some emphasis added).

Section 6351(f) of the Juvenile Act prescribes the pertinent inquiry for 

the reviewing court:

(f) Matters to be determined at permanency 

hearing.--
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At each permanency hearing, a court shall 

determine all of the following:

(1) The continuing necessity for and 

appropriateness of the placement. 

(2) The appropriateness, feasibility and 

extent of compliance with the 

permanency plan developed for the child. 

(3) The extent of progress made toward 

alleviating the circumstances which 

necessitated the original placement. 

(4) The appropriateness and feasibility 

of the current placement goal for the 

child. 

(5) The likely date by which the 

placement goal for the child might be 

achieved. 

(5.1) Whether reasonable efforts were 

made to finalize the permanency plan in 

effect. 

(6) Whether the child is safe. 

(7) If the child has been placed outside 

the Commonwealth, whether the 

placement continues to be best suited to 

the safety, protection and physical, 

mental and moral welfare of the child.

. . . .

(9) If the child has been in placement 

for at least 15 of the last 22 months or 

the court has determined that 

aggravated circumstances exist and that 

reasonable efforts to prevent or eliminate 

the need to remove the child from the 

child’s parent, guardian or custodian or 
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to preserve and reunify the family need 

not be made or continue to be made, 

whether the county agency has filed or 

sought to join a petition to terminate 

parental rights and to identify, recruit, 

process and approve a qualified family to 

adopt the child unless:

(i) the child is being cared 

for by a relative best suited 

to the physical, mental and 

moral welfare of the child;

(ii) the county agency has 

documented a compelling 

reason for determining that 

filing a petition to terminate 

parental rights would not 

serve the needs and welfare 

of the child; or

(iii) the child’s family has 

not been provided with 

necessary services to achieve 

the safe return to the child’s 

parent, guardian or custodian 

within the time frames set 

forth in the permanency 

plan.

. . . .

(f.1) Additional determination.--Based upon the 

determinations made under subsection (f) and all 

relevant evidence presented at the hearing, the court 

shall determine one of the following:

(1) If and when the child will be 

returned to the child’s parent, guardian 

or custodian in cases where the return of 

the child is best suited to the safety, 

protection and physical, mental and 

moral welfare of the child.
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(2) If and when the child will be placed 

for adoption, and the county agency will 

file for termination of parental rights in 

cases where return to the child’s parent, 

guardian or custodian is not best suited 

to the safety, protection and physical, 

mental and moral welfare of the child.

(3) If and when the child will be placed 

with a legal custodian in cases where 

return to the child’s parent, guardian or 

custodian or being placed for adoption is 

not best suited to the safety, protection 

and physical, mental and moral welfare 

of the child.

(4) If and when the child will be placed 

with a fit and willing relative in cases 

where return to the child’s parent, 

guardian or custodian, being placed for 

adoption or being placed with a legal 

custodian is not best suited to the safety, 

protection and physical, mental and 

moral welfare of the child.

(5) If and when the child will be placed 

in another living arrangement intended 

to be permanent in nature which is 

approved by the court in cases where the 

county agency has documented a 

compelling reason that it would not be 

best suited to the safety, protection and 

physical, mental and moral welfare of the 

child to be returned to the child’s parent, 

guardian or custodian, to be placed for 

adoption, to be placed with a legal 

custodian or to be placed with a fit and 

wiling relative.

(f.2) Evidence.--Evidence of conduct by the parent 

that places the health, safety or welfare of the child 

at risk, including evidence of the use of alcohol or a 

controlled substance that places the health, safety or 

welfare of the child at risk, shall be presented to the 
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court by the county agency or any other party at any 

disposition or permanency hearing whether or not 

the conduct was the basis for the determination of 

dependency. 

(g) Court order.--On the basis of the 

determination made under subsection (f.1), the 

court shall order the continuation, modification 

or termination of placement or other 

disposition which is best suited to the safety, 

protection and physical, mental and moral 

welfare of the child.

. . . .

42 Pa.C.S.A. § 6351 (some emphasis added).

At the time of the decision in this matter, Section 6303(b) of the Child 

Protective Services Law (“CPSL”), provided”

(b.1) Child abuse.--The term “child abuse” shall 

mean intentionally, knowingly or recklessly doing 

any of the following:

(1) Causing bodily injury to a child 

through any recent act or failure to act.

(2) Fabricating, feigning or intentionally 

exaggerating or inducing a medical 

symptom or disease which results in a 

potentially harmful medial evaluation or 

treatment to the child through any 

recent act.

(3) Causing or substantially contributing 

to serious mental injury to a child 

through any act or failure to act or series 

of such acts or failures to act.

(4) Causing sexual abuse or exploitation 

of a child through any act or failure to 

act.
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(5) Creating a reasonable likelihood of 

bodily injury to a child through any 

recent act or failure to act.

(6) Creating a likelihood of sexual abuse 

or exploitation of a child through any 

recent act or failure to act.

(7) Causing serious physical neglect of a 

child.

(8) Engaging in any of the following 

recent acts:

(i) Kicking, biting, throwing, 

burning, stabbing or cutting 

a child in a manner that 

endangers the child.

(ii) Unreasonably restraining 

or confining a child, based on 

consideration of the method, 

location or the duration of 

the restraint or confinement.

(iii) Forcefully shaking a 

child under one year of age.

(iv) Forcefully slapping or 

otherwise striking a child 

under one year of age.

(v) Interfering with the 

breathing of a child.

(vi) Causing a child to be 

present at a location while a 

violation of 18 Pa.C.S. 

§ 7508.2 (relating to 

operation of 

methamphetamine 

laboratory) is occurring, 

provided that the violation is 
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being investigated by law 

enforcement.

(vii) Leaving a child 

unsupervised with an 

individual, other that the 

child’s parent, who the actor 

knows or reasonably should 

have known:

(A) Is required to 

register as a Tier II or 

Tier III sexual offender 

under 42 Pa.C.S. Ch. 97 

Subch. H (relating to 

registration of sexual 

offenders),[Footnote 8] 

where the victim of the 

sexual offense was 

under 18 years of age 

when the crime was 

committed.

(B) Has been 

determined to be a 

sexually violent 

predator under 

42 Pa.C.S. § 9799.12 

(relating to definitions).

(9) Causing the death of the child 

through any act or failure to act. 

. . . .

 

[Footnote 8] 42 Pa.C.S.A. § 9799.10 et seq.
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23 Pa.C.S.A. § 6303 (footnote in original).3

The identity of the abuser(s) may be established by prima facie 

evidence that the abuse normally would not have occurred except by reason 

of acts or omissions of the caregivers. Section 6381 of the CPSL provides as 

follows:

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 the 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.

23 Pa.C.S.A. § 6381(d).

This court has stated:

[T]he focus of all dependency proceedings, 

including change of goal proceedings, must be on the 

safety, permanency, and well-being of the child. The 

best interests of the child take precedence over all 

other considerations, including the conduct and the 

rights of the parent. . . . [W]hile parental progress 

toward completion of a permanency plan is an 

important factor, it is not to be elevated to 

determinative status, to the exclusion of all other 

factors.

In re A.K., 936 A.2d 528, 534 (Pa.Super. 2007).

 

3 The CPSL was amended, effective December 31, 2014, to broaden the 

term “child abuse,” as explained in In Interest of: L.Z., 111 A.3d at 

1168 n.3. Our supreme court’s decision in In Interest of: L.Z. involved an 

application of the statute as it existed prior to the effective date of the 

amendment. 
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In In Interest of: L.Z., our supreme court considered the question of 

whether this court, sitting en banc, improperly reversed the determination 

of the trial court that the child at issue suffered child abuse, and, through 

the application of the presumption of prima facie evidence of abuse set 

forth at 23 Pa.C.S.A. § 6381(d), that the abuse was perpetrated by his 

mother.

The facts in In Interest of: L.Z. were similar to the facts in the 

instant case. A 20-month-old male infant was brought to an emergency 

room by his mother and his maternal aunt, to be treated for a deep cut 

nearly halfway around the base of his penis. The physicians at the hospital 

noted bruising to the child’s cheeks, severe diaper rash, and a yeast 

infection on the front of his body. Both women cared for the child together. 

The physicians suspected child abuse, as the women’s explanations for the 

injuries to the child were consistent with abuse, and the injuries were 

inconsistent with the women’s explanations. The physicians also suspected 

that the injuries were non-accidental.

The physician who treated the child at the hospital testified at the 

dependency adjudication hearing as an expert in pediatric medicine. When 

the doctor was asked whether the dark bruising to Child’s cheeks would 

“cause a child severe pain,” she responded, “I am sure it couldn’t have been 

very comfortable.” In Interest of: L.Z., 111 A.3d at 1168. The doctor 

testified that the injuries (the penile laceration, cheek bruises and diaper 
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rash/yeast infection) were “consistent with a pattern of suspected child 

abuse,” and that the child was a “victim of child abuse.” Id.

The trial court found that the child was a victim of child abuse as 

defined at 23 Pa.C.S.A. § 6303, and that the mother was the perpetrator of 

the abuse. In Interest of: L.Z., 111 A.3d at 1168-1169. The court 

transferred temporary legal custody of the child to the county agency, and 

placed the child in his maternal grandfather’s physical custody, with his 

parents receiving supervised weekly visitation. The trial court also entered 

an order finding that aggravated circumstances existed because the child 

was “the victim of physical abuse resulting in serious bodily injury, sexual 

violence, or aggravated neglect by the parent; proven as to Mother.” Id. at 

at 1169. The trial court concluded that the county agency did not need to 

make further efforts to reunify the child with his mother.

The mother filed an appeal to this court. Sitting en banc, the majority 

of the court affirmed the dependency adjudication but vacated the abuse 

determination. The majority of the court en banc recognized that the 

mother had waived certain issues for purposes of appellate review, as she 

had voluntarily relinquished her parental rights while the appeal was 

pending, prior to reargument. Id. The mother waived her challenges to the 

trial court’s rulings that aggravated circumstances existed, and that the 

county agency need not make reasonable efforts at reunification.
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The dissenting Judges sitting on the court en banc would have 

affirmed the trial court’s findings that the child’s injuries constituted abuse. 

The dissent took the position that the majority improperly limited the 

evidentiary presumption of Section 6381(d) to find prima facie evidence of 

an abuser’s identity only when the abuser was proven to be present at the 

time of the injuries. Id. at at 1171.

The guardian ad litem for the child successfully sought relief in our 

supreme court. Our supreme court held that presumption set forth in 

Section 6381(d) was applicable to the case, and that the mother offered no 

testimony to rebut it. Id. at at 1186. Our supreme court concluded that the 

trial court properly found that the mother perpetrated the abuse on the child 

either by inflicting the injuries, or by failing to protect the child from his 

maternal aunt. Thus, our supreme court reversed this court’s en banc

decision, and reinstated the trial court’s order. Id. 

In reaching this conclusion, our supreme court stated as follows.

[C]hild abuse cases often involve a child 

presenting to a hospital with significant injuries that 

are entirely consistent with common types of child 

abuse and entirely inconsistent with the implausible 

explanations concocted by the parents and 

responsible persons to avoid allegations of child 

abuse. As noted, in cases where multiple caregivers 

are involved, the individuals frequently “circle the 

wagons” or alternatively point fingers at each other. 

As the children may be too young or fearful to 

describe the abuse, CYS agencies are left to prove 

their case with only the physical evidence of injuries 

that would not ordinarily be sustained but for the 

action of the parents or responsible persons and the 
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implausible statements of the parents and 

responsible persons. Thus, while they can prove the 

existence of abuse rather easily, they have no ability 

to assign responsibility for the heinous act among 

the responsible adults. As Judge Tamilia observed in 

1993, “the Legislature deemed it wise and necessary 

to establish a different evidentiary standard” by 

enacting Section 6381’s(d)’s presumption to avoid 

this evidentiary conundrum and protect children from 

future abuse. [In the Interest of J.R.W., 631 A.2d 

1019, 1023 (Pa. Super. 1993)]. . . . We emphasize 

that, when a child is in the care of multiple parents 

or other persons responsible for care, those 

individuals are accountable for the care and 

protection of the child whether they actually inflicted 

the injury or failed in their duty to protect the child.

Moreover, the Legislature balanced the 

presumption of Section 6381(d) by making it 

rebuttable as it merely establishes “prima facie

evidence” that the parent perpetrated the abuse. 

23 Pa.C.S. § 6381(d). As commonly understood, 

prima facie evidence is “[s]uch evidence as, in the 

judgment of the law, is sufficient to establish a given 

fact, or the group or chain of facts constituting the 

party’s claim or defense, and which if not rebutted or 

contradicted, will remain sufficient.” Black’s Law 

Dictionary 825 (6th ed. Abridged 1991). Accordingly, 

evidence that a child suffered injury that would not 

ordinarily be sustained but for acts or omissions of 

the parent or responsible person is sufficient to 

establish that the parent or responsible person 

perpetrated that abuse unless the parent or 

responsible person rebuts the presumption. The

parent or responsible person may present evidence 

demonstrating that they did not inflict the abuse, 

potentially by testifying that they gave responsibility 

for the child to another person about whom they had 

no reason to fear or perhaps that the injuries were 

accidental rather than abusive. The evaluation of 

the validity of the presumption would then rest with 

the trial court evaluating the credibility of the 

prima facie evidence presented by the CYS agency 

and the rebuttal of the parent or responsible person.
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Applying Section 6381(d) as set forth above to 

the case at bar, we affirm the trial court’s 

determination that [the mother] perpetrated the 

abuse in the form of the laceration, the cheek 

bruising, and the severe diaper rash and yeast 

infection. First, because the medical evidence 

presented by [the agency] demonstrated that [the 

child’s] injuries were neither accidental nor 

self-inflicted and because [the child] was only in the 

care of [his mother and aunt], the injuries were 

shown to be “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 the welfare of the child[.]” 23 Pa.C.S. § 6381(d). 

Ergo, either [the aunt or mother] or both inflicted 

the abuse [the child] suffered or failed to protect him 

from the other’s abuse. [The mother] failed to rebut 

the presumption by presenting evidence or 

testimony from her, [the aunt] or her boyfriend 

establishing that [the child] was not in her care when 

the injuries were suffered and that she had no 

reason to question her decision to leave [the child] in 

[his aunt’s] care. Likewise, neither [the aunt] nor 

anyone on her behalf testified. [The mother and 

aunt’s] self-serving claims made at the hospital were 

neither under oath nor subject to cross-examination. 

They were outside-the-record and do not constitute 

rebuttal evidence.[Footnote 25]

[Footnote 25] Moreover, we would not 

fault a trial court for failing to credit any 

explanations that would have been given 

considering the implausibility of the other 

assertions provided at the hospital 

regarding [the child’s] injuries. 

Instead, ample, uncontested, unrebutted 

evidence existed for the trial court to presume that 

[the mother] perpetrated the abuse on [the child]. 

In regard to the diaper rash, it was put into evidence 

that [the mother] acknowledged to the hospital staff 

her awareness of the condition and blamed it on 

weeks of diarrhea. Dr. Silver testified rejecting [the 
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mother’s] extrajudicial contention because the rash 

was on the front of [the child’s] body, indicative of 

prolonged contact with urine, rather than on the 

buttocks, which would have been consistent with 

diarrhea. Thus, the trial court was well within its 

discretion and fully supported by the record when it 

properly concluded that [the child] suffered physical 

neglect as a result of the severe diaper rash and 

yeast infection due to his caregiver’s failure to 

change his diaper (or obtain medical treatment).

Additionally, the trial court did not abuse its 

discretion in discrediting [the mother’s] implausible 

out-of-court explanation and instead crediting the 

treating doctor’s testimonial determination that the 

cheek bruising was classic child abuse. The court 

found Dr. Silver credible given the pattern of bruises 

showing that someone squeezed [the child’s] face 

between her thumb and fingers, bruising which could 

have occurred during the window of time [the 

mother] acknowledged having control of [the child] 

and bruising that the doctor testified would have 

cause [the child] severe pain. Moreover, even 

assuming [the mother] did not inflict the penile 

laceration or the cheek bruising, she is still 

responsible for [the child’s] injuries by failing to 

protect him from [the aunt], absent rebuttal from 

[the mother] that she had no reason to fear leaving 

[the child] with [the aunt]. 

We conclude that the presumption of 

Section 6381(d) is applicable to this case and that 

[the mother] offered no testimony to rebut it. Thus, 

the trial court properly found [the mother] 

perpetrated the abuse on [the child] either by 

inflicting the injuries or failing to protect [the child] 

from [the aunt].

In Interest of: L.Z., 111 A.3d at 1185-1186 (footnote omitted).

Here, the trial court addressed Father’s issues, stating as follows.
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Father filed separate appeals, but the grounds 

for both appeals were consolidated. On appeal, 

Father raises the following issues:

1. The trial court erred in making a finding 

of child abuse as to Child 1 against 

[f]ather of Child 2 pursuant to 

23 Pa.C.S.A. § 6301 as DHS failed to 

meet its burden of proof.

2. The trial court erred when it found that 

DHS met its burden of clear and 

convincing evidence that Child 2 was 

dependent pursuant to 42 Pa.C.S.A. 

§ 6302.

Father’s first issue on appeal argues that the 

trial court erred in determining that Child 1 was a 

victim of child abuse. The Child Protective Services 

Law (“CPSL”) 23 [Pa].C.S.A. § 6303(b)(ii) 

establishes that any recent act or failure to act by a 

perpetrator which causes sexual abuse to a child 

under 18 years old constitutes child abuse. 

Section 6303(b)(iii) establishes that any recent act, 

failure to act or series of such acts or failures to act 

by a perpetrator which creates an imminent risk of 

sexual abuse of a child under 18 years of age also 

constitutes child abuse. Sexual abuse under CPSL 

23 [Pa.]C.S.A. § 6303(b) is defined as the 

employment, use, persuasion, inducement, 

enticement or coercion of a child to engage in or 

assist another individual to engage in sexually 

explicit conduct.

The record must show by clear and convincing 

evidence that the child suffered abuse as defined by 

the CPSL 23 [Pa.]C.S.A. § 6303(a). In the Matter 

of L.Z., 111 A.3d 1164 (Pa. 2015). As to the 

identity of the perpetrator of child abuse, the trial 

court is required to find perpetrator’s identity by 

prima facie standard. In Interest of J.R.W., 631 

A.2d 1019, 1023-1024 (Pa. Super. 1993). CPSL 

23 [Pa.]C.S.A. § 6303(d) establishes that evidence 

that a child has suffered child abuse of such a nature 
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as would ordinarily not be sustained or exist except 

by reason of acts or omission of the parent or other 

person responsible for the welfare of the child, shall 

be prima facie evidence of child abuse by the parent 

or other person responsible for the welfare [sic] 

child. This rule created an evidentiary presumption 

against the child’s caregiver at the time of the abuse. 

In re JG. [sic], 984 A.2d 541, 547 (Pa. Super. 

2009). Thus, proof of the nature of the child’s harm, 

alone, is prima facie evidence of child abuse by 

anyone who is found to be responsible for the 

welfare of the child at the time of the alleged 

injuries. In re JG., 984 A.2d 541, 547 (Pa. Super. 

2009), In the Matter of L.Z., 111 A.3d 1164 (Pa. 

2015).

The record established that Child 1 was 

diagnosed with gonorrhea in her throat, rectum and 

vagina. (N.T. 4/8/15, pgs. 10, 14). Such a 

diagnosis raised serious concerns to St. Christopher’s 

Hospital medical staff given that gonorrhea is 

typically transmitted by sexual contact. (N.T. 

4/8/15, pgs. 9-11). Likewise, Child 1’s diagnosis 

was highly concerning as to [c]hild abuse. (N.T. 

4/8/15, pg. 12). Expert testimony established that 

gonorrhea’s bacteria does not travel through the 

human body and Child 1’s diagnosis of gonorrhea in 

throat, rectum and vagina increased the sexual 

contact as to the method of transmission. (N.T. 

4/8/15, pgs. 11-12). In fact, the record established 

that it is very unlikely to be infected with pharyngeal 

gonorrhea through non-sexual contact. (N.T. 

4/8/15, pg. 23). Other non-sexual ways of 

transmission were considered and evaluated by 

Dr. McColgan. (N.T. 4/8/15, pg. 21). Dr. Maria 

McColgan’s testimony ruled out other possibilities of 

getting infected with gonorrhea. (N.T. 4/8/15, pgs. 

12-13, 15-16, 21-23, 32, 36). Accordingly, 

Dr. McColgan concluded to a medical degree of 

certainty that Child 1’s infection with gonorrhea was 

the product of sexual abuse. (N.T. 4/8/15, pg. 16). 

Dr. Maria McColgan’s testimony was very credible.
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In relation to the identity of the abuser, the 

record established that [M]other was one of Child’s 

primary caregivers at the moment in which Child 1 

was infected. The other was Child 2’s [f]ather who, 

like [M]other, admitted being infected with 

gonorrhea. (N.T. 4/8/15, pgs. 15, 17, 44, 45). The 

record established that Child 1 and Child 2 were 

residing with [M]other and Father. (N.T. 4/8/15, 

pgs. 44, 45, 47). Both Father of Child 2 and 

[M]other were found to be responsible for the 

welfare of the Children at the time of the alleged 

injuries. Putative Father was as much responsible 

for the care of Child 1 as was Mother. The 

transmission of gonorrhea, a sexually transmitted 

disease, would not have occurred except by 

[P]utative Father’s acts or omissions. As a result, 

the record established prima facie evidence of child 

abuse as to [P]utative Father, and the trial court did 

not hear competent evidence that rebutted such a 

presumption. Thus DHS met its burden by clear and 

convincing evidence that Child 1 suffered sexual 

abuse at the time Child 1 was in the care of 

[P]utative Father. Putative Father was responsible 

for the welfare of Child 1.

Father’s second issue on appeal argued that 

the trial court erred in adjudicating the Child 2 

dependent. Under 42 Pa.C.S.A. § 6302 of the 

definition of a “Dependent Child” paragraph(1) a 

child will be adjudicated dependent if the trial court 

determines, by clear and convincing evidence, that 

child 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. A 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. Clear and convincing

evidence has been defined as the testimony that is 

so clear, direct, weight and convincing as to enable 

the trier of fact to come to a clear conviction without 

hesitance of the truth of the precise facts in issue. 

In re C.R.S., 696 [A.]2d 840, 843 (Pa. Super. 

1997). The purpose of the Juvenile Act is to 
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preserve the unity of the family whenever possible. 

42 Pa.C.S.A. § 6301(b)(1), Nonetheless a child will 

be adjudicated dependent when he is presently 

without parental care and the care is not 

immediately available. In re R.T., 405 Pa. Super. 

156 (1991). The Superior Court has defined proper 

parental care as the care which is geared to the 

particularized needs of the child and, at the 

minimum, is likely to prevent serious injury to the 

child. In re C.R.S., supra at 845. In general, a 

finding of abuse has been held sufficient under most 

circumstances to support an adjudication of 

dependency. In [I]nterest of J.M., 652 A.2d 877, 

881 (Pa. Super. 1997). The trial court adjudicated 

Child 1 dependent under 42 Pa.C.S.A. § 6301(b)(1) 

by finding that Child 1 was sexually abused and 

infected with a sexual transmitted disease.

The Pennsylvania Juvenile Act is now 

significantly more sensitive to the facts that sexually 

abused children may be without proper parental care 

and control as required by the law. In re W.M., 842 

A.2d 425m 429 (Pa. Super 2004). The Juvenile Act 

takes in consideration the sense of vulnerability, fear 

and helplessness that siblings may feel when living in 

an environment where their sibling has been sexually 

abused. Id. The focus is not on whether the other 

sibling is actually at risk of sexual abuse but if the 

siblings fit the definition of lacking proper parental 

care. Id. It is within the trial court’s discretion to 

determine that siblings of sexually abused children fit 

that definition, even if there is no evidence that the 

siblings will be sexually abused. Id. This major 

sensitivity to sexually abused children without proper 

parental care and control was also reflected in the 

Pennsylvania Juvenile Act amendment effective, 

since January 1, 1999. Such an amendment, added 

the definitions of “aggravated circumstances” and 

“sexual violence” to the Juvenile Act including 

siblings of children who have been sexually abused. 

In re of [sic] S.B., 833 A.2d 1116, 1122 (Pa. 

Super. 2003).
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The record established that Child 2 is a 

vulnerable six-month year [sic] old infant. The trial 

court is extremely concerned about leaving Child 2 in 

an environment where his sibling, Child 1, has been 

sexually abused and infected with a sexually 

transmitted disease. Under these circumstances, the 

threat of harm evidenced on the conduct of Father as 

to Child 1 is sufficient for a finding of dependency as 

to Child 2. Both Children live with Father. The lack 

of parental care as to Child 1 places the health, 

safety, and welfare of Child 2 at risk. Father is 

unable to provide immediate care that is at the 

minimum likely to prevent serious injury to Child 2. 

Accordingly, the trial court used its discretion to

adjudicate Child 2 as a dependent fitting the 

definition of a dependent child under 42 Pa.C.S.A. 

§ 6302(1). All DHS witnesses were unwavering and 

credible.

Conclusion:

For the aforementioned reasons, the court 

finds that DHS met its statutory burden regarding 

Chld 1 child abuse against [P]utative Father and 

Child 2 dependency adjudication. Accordingly, the 

order entered on April 8, 2015, should be affirmed.

Trial court opinion, 9/3/15 at 2-5 [Father].

As our supreme court explained in In Interest of: L.Z., multiple 

caretaker child abuse situations are rife with credibility determinations for 

the trial court, and call for the trial court to make credibility determinations 

as to the plausible and implausible explanations for the child’s injuries. Id.

at 1186 n.25.

After a careful review of the record in this matter, we find the trial 

court’s credibility findings are supported by competent evidence in the 
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record. In re R.J.T., 9 A.3d at 1190. We find no abuse of the trial court’s 

discretion. Accordingly, we affirm the orders of the trial court.

Orders affirmed.

Musmanno, J. joins the Memorandum.

Ott, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/2016