J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.K., A

MINOR

APPEAL OF: N.G., FATHER :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2093 EDA 2021

Appeal from the Order Entered October 13, 2021

In the Court of Common Pleas of Philadelphia County

Juvenile Division at CP

- 51

- DP

- 0000667

- 2021

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E. *

MEMORANDUM BY MURRAY, J. : FILED MARCH 07, 2022

N.G. (Father) appeals from the order adjudicating his son, N.K. (Child),

dependent, and determining that Child was a victim of child abuse as defined

in 23 Pa.C.S.A. § 6303 (b.1) . Upon review, we affirm.

On June 24, 2021, the Philadelphia Department of Hu man Services

(DHS) received a Child Protective Services (CPS) report about Father shaking

and striking Child, who was ten

- month s

- old at the time

. 1 N.T., 10/13/21, at

10. Upon investigation

, Child’s m other , A.K. (Mother)

, confirmed to the DHS

social worker that she saw “Father shake [C] hild’s face in a forceful manner

and also str [i k e] [C] hild with an opened hand.” Id. at 12. Mother stated the

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 Child was born in August 2020.J

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- 2

-

reason Father “did that was because [Child] . . . tossed one of his bottles

towards the . . . TV in the family home.” Id. at 12. Mother also stated that

the force Father used in striking Child “was hard enough that she had to

contact the police.” Id. DHS categorized the CPS report as indicated. 2 Id.

at 18

- 19.

Father was arrested and charged with

, inter alia

, simple assault and

endangering the welfare of a child ; the charges were pending at the time of

the adjudication hearing

. Id. at 13

- 14. The court issued a stay

- away order

against Father with respect to Mother and Chi ld. Id. at 14

- 15.

DHS initially established a safety plan requiring Mother and Child to

reside in the home of Child’s maternal grandmother

. Id

. at 16. On June 30,

2021, t he trial court issued an order of protective custody due to DHS ’s

understanding that Mother intended to return to living with Father, who had

been released from prison . Trial Court Opinion, 11/9/21, at 3; N.T. 10/13/21,

at 16. Following a hearing on July 2, 2021 , the court placed Child in shelter

care.

On July 8, 2021, DHS filed a dependency petition alleging Child was

dependent and/or abused pursuant to the Juvenile Act

, 42 Pa.C.S. A. §

6302 ( “ Dependent Child ” is without proper care or control) and/or the Child

_________________ __________ ______ ____ _______

2 Although the report alleged that Child did not require medical treatment,

DHS “ indicated ” two of the three allegations in the report : 1) Father forcibly

striking a child under the age of one

, and 2) forcibly shaking a child under the

age of one. N.T., 10/13/21, at 19

- 20

.J

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- 3

-

Protective Services Law (CPSL), 23 Pa.C.S. A. § 6303(b.1) (defining “Child

Abuse”). Another hearing occurred on October 13, 2021, where Child , then

nearly 14 months old, was represented by a Child Advocate. DHS presented

testimony of its social worker, John P affen, and the Community Umbrella

Agency (CUA) caseworker, Eric Hawkins. Father and Mother, who were

represented by separate counsel, testified on their own behalf.

At the conclusion of testimony , the trial court adjudicated Child

dependent. In addition, the court found Child to be a victim of child abuse

and ordered that the CPS report be converted from indicated to founded. N.T.,

10/13/21, at 55

- 60. By order dated and entered on October 13, 2021, the

court memorialized its findings.

On Octo ber 14, 2021, Father filed a notice of appeal and a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b)

. 3 Father assert e d that the court erred in finding him to

be a perpetrator of child abuse

, and in convertin g the CPS report from

indicated to founded. Father did not challenge the court ’s adjudicati o n of

dependen cy . The court filed an opinion pursuant to Pa.R.A.P. 1925(a) on

November 9, 2021.

On appeal, Father presents the two issues he raised in his Rule 19 25(b)

concise statement :

_________________ __________ ______ ____ _______

3 Mother did not appeal.J

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- 4

-

1) Whether the trial court erred as a matter of law and abused its

discretion when it found [Father] was the perpetrator of child

abuse against [Child]?

2) Whether the trial court erred as a matter of law and abused its

discretion when it found that the report of abuse against

[Father], listed as a CY

- 48, should be converted to a CY

- 49?

Father’s Brief at 3. 4

Our standard of review in dependency cases “ requires an appellate court

to accept the 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. Accord ingly, we

review for an abuse of discretion. ” In the I nterest of X.P. , 2 48 A.3d 1274,

1276 (Pa. Super. 202 1 ) (citation omitted). “ The trial court is free to believe

all, part, or none of the evidence presented and is likewise free to make all

credibility determinations and resolve conflicts in the evidence. ” Id. (ci tation

omitted).

This Court has explained:

“ [Although] dependency proceedings are governed by the Juvenile

Act (Act),

. . . the CPSL

. . . controls determinations regarding

findings of child a buse

, which the juvenile courts must find by

clear and convincing evidence. ” In re L.V.

, 209 A.3d 399, 417

(Pa. Super 2019) (citations omitted); see also In the Interest

of X.P.

, 248 A.3d 1274, 1276 (Pa. Super. 2021) (same). The

CPSL “ does not provide for legal determinations of abuse; it is

mainly a vehicle for reporting abuse and bringing quickly into play

those services (including court hearings) available through county

prot ective service facilities for the care of the child. ” In the

_________________ __________ ______ ____ _______

4 The Child Advocate filed an appellate brief advocating for affirmance of the

court’s adjudication and disposition

.J

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- 5

-

Interest of J.R.W.

, 631 A.2d 1019, 1022 (Pa. Super. 1993).

“ [T]he Act and the [CPSL] must be applied together in the

resolution of child abuse complaints under the [CPSL and]

reference must be m ade to the definition sections of both the Law

and the [CPSL] to determine how that finding [of child abuse ] is

interrelated. ” Id. at 1023.

“‘ As part of [a] dependency adjudication, a court may find a parent

[or caregiver] to be the perpetrator of child abuse [] ’ as defined by

the

. . . CPSL. ” In re S.L.

, 202 A.3d 723, 728 (Pa. Super.

2019) (citation and quotations omitted). Section 6381 of the

CPSL, which governs evidence in court proceedings, states that

“ [i]n addition to the rules of evidence

. . . r elating to juvenile

matters, the rules of evidence in this section shall govern in child

abuse proceedings in court[.] ” 23 Pa.C.S. § 6381(a) (emphasis

added).

. . .

In In the Interest of N.B.

- A.

, 224 A.3d 661 (Pa. 2020), the

Pennsylvania Supreme Court recently reiterated the appropriate

standard of proof for a finding of child abuse :

The requisite standard of proof for a finding of child

abuse pursuant to [s]ection 6303(b.1) of the CPSL is clear

and convincing evidence. [A] petitioning party must

demonstrate the existence of child abuse by the clear and

convincing evidence standard applicable to most

dependency determinations, 42 Pa.C.S. § 6341(c)[]. Clear

and convincing evidence is “ evidence that is so clear,

direct, weight y, and convincing as to enable the trier of fact

to come to a clear conviction, without hesitancy, of the

truth of the precise facts in issue. ”

. . .

Id. at 668 (citations omitted).

“ The purpose of the CPSL is to bring about quick and effective

reporting of suspected child abuse so as to serve as a means for

providing protective services competently and to prevent further

abuse of the children while providing rehabilitative services for

them and the parents. ” J.R.W.

, supra at 1021, citing 23 Pa.C.S.

§ 6302(b). The CPSL “ was created primarily for reporting

suspected child abuse

, providing the means for doing so[,] and

establishing the persons responsible for reporting the

abuse[.] ” Id. See also 23 Pa.C.S. §§ 6311

- 6320.J

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- 6

-

I n the Interest of C.B.

, ___ A.3d ___, ___, 2021 Pa. Super. LEXIS 595,

*14

- 17 (Pa. Super. 9/23/21) ( en banc ) (footnote s omitted) (emphasis

omitted)

.

The relevant provisions of Section 6303(b.1) of the CPSL are as follows.

(b.1) Child abuse

. — The term “child abuse” shall mean

intentionally, knowingly or recklessly doing any of the following:

. . .

(8) Engaging in any of the following recent acts:

. . .

(iii) Forcefully shaking a child under one year of age.

(iv) Forcefully slapping or otherwise striking a child

under one year of age.

23 Pa.C.S. A. § 6303(b.1)( 8 ) (iii)

- (iv)

.

Section 6303(d) provides , “ The term ‘ child abuse ’ does not include any

conduct for which an exclusion is provided in section 6304 (relating to

exclusions from child abuse). ” 23 Pa.C.S.A. § 6303 (d) ( Child abuse

exclusions). Section 6304 states :

(d) Rights of parents.

— Nothing in this chapter shall be

construed to restrict the generally recognized existing rights of

parents to use reasonable force on or against their children for the

purposes of supervision, control and discipline of their children.

S uch reasonable force shall not constitute child abuse.

23 Pa.C.S.A. § 630 4(d).

On appeal, Father contends for the first time that “the contact he had

with Child was for the purpose of supervision, control, and discipline.” Father’sJ

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- 7

-

Brief at 11. Thus

, he argues his actions did not constitute “ child abuse ” under

Section 6304(d) of the CPSL

, but rather, reasonable force in disci plining Child

.

Id. at 21

- 24. Father asserts the court erred in not considering Section

6304(d)

, despite referenc ing Mother’s testimony that she called police in

response to Father ’s physical disciplin e of Child, as well as Mr. Paffen’s

testimony that Father asserted his right to physically discipline his children. 5

Id. at 15 ; Trial Court Opinion, 11/9/21, at 7 (citations to record omitted).

Notably

, our review reveals Father unequivocally denied having physical

contact with Child

. 6 N.T., 10/13/21 , at 42

- 44. We further conclude Father

did not raise Section 6304(d) as a defense

.

_________________ __________ ______ ____ _______

5 Father and Mother have a nother child

, approximately a year older than Child

. N.T., 10/13/21, at 5. The older child is not involved in this appeal.

6 Father state d that he and Mother had an argument. N .T., 10/13/21, at 42.

He then testified on direct examination:

Q. And during that argument, did you ever strike your child?

A. No, I haven’t.

Q. And did you ever shake your child?

A. No, I haven’t.

Id. Father further denied ever striking or hitting his children :

Q. Have you ever struck a child in your life?

A. No, I didn’t.

Q. Do you have any other children?

A. Yes, I do.

(Footnote Continued Next Page)J

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- 8

-

This Court has explained:

Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal. Pa.R .A.P. 302(a).

In Jahanshahi v. Centura Development Co., Inc.

, 816 A.2d

1179 (Pa. Super. 2003), we noted that our Supreme Court has

frequently stressed the necessity of raising claims at the earliest

opportunity to “ eliminate the possibility that an appella te court will

be required to expend time and energy reviewing claims on

which no trial ruling has been made

. ” Id. at 1189 (emphasis

in original) (citation omitted). More recently, we clarified:

On appeal, we will not consider assignments of error that

were not brought to the tribunal ’ s attention at a time at

which the error could have been corrected or the

alleged prejudice could have been mitigated. Tindall v.

Friedman

, 970 A.2d 1159, 1174 (Pa. Super. 2009). “ In

this jurisdiction one must object to errors, improprieties or

irregularities at the earliest possible stage of the

adjudicatory process to afford the jurist hearing the case

the first occasion to remedy the wrong and possibly avoid

an unnecessary appeal to complain of the matter. ” Id.

(q uoting Thompson v. Thompson

, 963 A.2d 474, 475

-

76 (Pa. Super. 2008) (citation omitted)).

State Farm Mutual v. Dill

, 108 A.3d 882, 885 (Pa. Super.

2015) ( en banc ) (emphasis added).

In re T.M. , 239 A.3d 193, 201 (Pa. Super. 2020).

Father did not raise th e Section 6304(d) “control and discipline” issue in

his Rule 1925(b) concise statement

. As a result , the court did not address it

in its Rule 1925(a) opinion. Accordingly, Father has waived his argument that

the court erred in failing to conside r Section 6304(d) in making its “child

_________________ __________ ______ ____ _______

Q. Have you ever hit them?

A. No, I h aven’t.

Id. at 43.J

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- 9

-

abuse” determination

. See In re M.Z.T.M.W.

, 163 A.3d 462, 466 (Pa. Super.

2017 ) (“[I] t is well

- settled that issues not included in an appellant’s statement

of questions involved and concise statement of errors complained of on appeal

are waived.”).

Father additionally disputes three findings by the court as being

unsupported by the evidence . He asserts the court’s findings “help form a

narrative which becomes the lens through which the trial court both views and

presents this case.” Father’s Brief at 26

- 29. Father describes t he narrative

as “a man who drunkenly beat his child repeatedly, leaving multiple scratches

all over his face and ear, this coming from a man who previously choked

Mother unconscious.” Id. at 29; Trial Court Opinion, 11/9/21, at 1

- 2 (trial

court found “Father also admitted to drinking alcohol at the time of the

reported incident”; the CPS report alleged Father hit “Child several times,

causing scratches on the right side of his face and left ear”; “Mother stated

there had been domestic violence between her and Father, including an

incident in January 2021 where Father hit and choked Mother into

un consciousness.”).

The record reveals that the disputed findings appear as allegations in

the dependency petition, for which no evidence was presented at the hearing.

Therefore, Father is correct that these findings are not supported by the

record. Noneth eless

, DHS asserts, “the disputed findings of fact are not

material to the abuse finding[ ; ] they need not be considered on appeal, andJ

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- 10

-

the abuse finding may be affirmed without reference to them.” DHS ’s Brief at

11 (citing In re C.B. , 26 4 A.3d 761 (Pa. Su per. 2021) ( en banc ) )

. We agree

.

T he court’s determination of child abuse pursuant to Section

6303(b.1)(8)(iii)

- (iv) is supported by the evidence

. As the court explained:

The DHS Social Worker testified that during his investigation of

the CPS report received around June 24, 2021, Mother confirmed

that she witnessed Father shake and strike Child’s face with an

open hand, in a forceful manner. (N.T., 10/12/21, [at] 12). Ch ild

was under one year of age, only ten

- months

- old at the time.

(N.T., 10/12/21, [at] 10). DHS came to investigate the report

approximately eight hours after the incident was reported. (N.T.,

10/12/21, [at] 19

- 20). . . . DHS observed a scratch on the right

side of Child’s face. (N.T., 10/12/21, [at] 20, 22). . . . Mother

reported to DHS that Father had grabbed Child ’s face by both

cheeks and shook his head. (N.T., 10/12/21, [at] 24). The DHS

Worker demonstrated the action at the bar of the court. ([ Id. ]).

The observed scratch corresponded with the location Mother

observed Father grabbing Child’s face. (N.T., 10/12/21, [at] 25).

Trial Court Opinion, 11/9/21, at 6

- 7.

Mr. Paffen testified that Mother “specifically said that [Father] grabbed

[Child’s] face by his two cheeks and shook his head in this manner.” Id. at

24. The court stated, “Let the record reflect the witness i s actually grabbing

his face at the chin and shaking it back and forth.” Id. Importantly, Section

6303(b.1)(8 )(iii)

- (iv) does not require that Child suffer injury. Here , Mr.

Paffen’s testimony that he observed a scratch on the right side of Child’s face

corroborated Mother’s allegation that Father shook Child’s head. N.T.,

10/13/21, at 25 (Mr. Paffen affirm ing the scratch on Child’s face was in the

area where Mother described Father h olding Child’s face as he was shaking

it.).J

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- 11

-

In addition, the following testimony by Mr. Paffen corroborated Mother’s

allegation that Father’s conduct resulted from Child throwing hi s bottle at the

television.

[Father] . . . didn’t deny or he didn’t admit to the incident;

however, he did pretty boldly state that he . . . is able to discipline

his children however he sees fit.

I had another conversation with him about the age and

vuln erability of his children, and he still had said that it was his

right to discipline his children how he wanted to discipline his

children, which was obviously a concerning statement for us.

N.T., 10/13/21, at 17

- 18. Mr. Paffen confirmed:

Q. So did Fath er admit to physically disciplining [Child] on June

24?

A. He didn’t admit it outright

.

Id. at 18.

F ather testified with respect to his conversation with Mr. Paffen, “I said

that . . . I can pop my older children on their hand[.] [T] that’s what I was

referring to when I was conversating [ sic ] with him . . . . But not about this

(unintelligible).” Id. at 44.

Based on the foregoing, we discern no abuse of discretion by the court

in finding Father’s conduct of shaking and striking Child constituted c hild abuse

under Section 6303(b.1)(8)(iii)

- (iv). F ather’s first issue does not merit relief.

It thus follows that Father is not entitled to relief o n his second issue , in

which he asserts the court erred in ordering that the CPS report be converted

,

or amended, from “ indicated ” to “ founded. ” Father accurately states

, “a

report is founded where ‘there has been a judicial adjudication based onJ

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- 12

-

finding that a child who is a subject of the report has been abused and the

adjudication involve s the same factual circumstances involved in the

allegation of child abuse.’” Father’s Brief at 32 ( citing J.F. v. Department of

Human Services , 245 A.3d 658, 660 (Pa. 2021 )). The Pennsylvania

Supreme Court in J.F. explained:

A report is “ founded ” as a result of a determination or disposition

made by a judicial authority, external to DHS, but in reliance on

the same factual circumstances involved in the allegation of child

abuse. [23 Pa.C.S.A. § 6303(a)] (definition of “ founded report ” ).

The CPSL provides the following exhaustive list of situations in

which a disposition external to DHS may serve as a basis for a

founded report:

(1) There has been a judicial adjudication based on a

finding that a child who is a subject of the report has been

abuse d and the adjudication involves the same factual

circumstances involved in the allegation of child abuse.

The judicial adjudication may include any of the following:

. . .

(iii) A finding of dependency under 42 Pa.C.S.

§6341 (relating to adjudication) if the court has

entered a finding that a child who is the subject of the

report has been abused.

J.F.

, supra

.

In this case , the court adjudicated Child dependent based on the

substantiated facts of the child abuse in the CPS report , and thus acted

properly when it ordered that the report be amended from “indicated” to

“founded.” Accordingly, we affirm the order of adjudication and disposition.

Order affirmed.J

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- 13

-

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/7/2022